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Grandparents and Other Third Parties
(Suit Affecting the Parent Child Relationship)

Foster Parents

A. Statutes

An original suit may be filed at any time by a person who is the foster parent of a child placed by the Department of Protective and Regulatory Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition. Tex.Fam.Code §102.003(a)(12).  Notwithstanding the time requirements of Subsection (a)(12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child. The standing to file suit under this subsection applies only to the adoption of a child who is eligible to be adopted. Tex.Fam.Code §102.003(c).

B. Cases
1. Mendez v. Brewer, 626 S.W.2d 498 (Tex. 1982) Respondent foster parents sought to intervene in an action by the state to terminate the parent-child relationship between their foster son and his parents. The trial court denied the motion, and respondents filed a new suit seeking termination as well as their adoption of the child. The trial court refused to consolidate the suits and rendered judgment terminating the parent-child relationship of the mother and appointing the father of the child as managing conservator. Respondents appealed, complaining of the striking of their plea in intervention and the denial of their motion to consolidate. The appellate court reversed the judgment and remanded for a new trial. The Texas Supreme Court reversed the judgment of the appellate court and affirmed the trial court. TRCP 60 "provides in part that any party may intervene, subject to being stricken by the court for sufficient cause on the motion of the opposite party. The intervenor bears the burden to show a justiciable interest, legal or equitable, in the lawsuit. The only relationship the [foster parents] had with [the child] was as agent for the Department under the written contract to provide foster home care for [him]. The [foster parents] admitted that the contract expressly provided that the [TDHR now DFPS], as temporary managing conservator of the child, retained the absolute right to remove the child for any of several reasons: to place it with another family, to return the child to his home, or to have the child adopted by other persons. The sole interest alleged by the [foster parents] in their petition in intervention was their wish to adopt the child if the parent-child relationship with the [biological parents] was terminated…. We do not believe this was sufficient standing to entitle them to join in this suit." Mendez v. Brewer, 626 S.W.2d 498, 499-500.

2. Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App. - El Paso, 2002, no pet.) The child's mother and father were divorced. The stepmother lived with the child's father for over three years at the time of his death. The stepmother's relationship with the child was similar to a parent-child relationship, and the child had a half-sister, who was important to him. The stepmother volunteered for school activities and was active in the child's sporting "Grandparents And Other Third Parties Chapter 22 8" events. After the death of the father, the mother refused to allow the stepmother access to the child. The evidence showed that in some years the child was in the stepmother's care 51% of the time and in some years 48% of the time. The trial court found that the joint managing conservatorship resulted in the child living with the father and stepmother nearly, but less than half of the time, and so found that the stepmother never had actual care, control and possession of the child for a period of six months and dismissed the suit for lack of standing. Stepmother appealed. "Subsection 102.003(a)(11) was designed as a 'stepparent' statute, affording standing to, among others, a stepparent who helps raise a child when the stepparent's spouse--one of the child's parents--dies. A traditional application would indicate that upon the death of the mother, as a sole managing conservator of the child, her current husband would have standing. In her first issue for review, Doncer contends this section should apply equally to the surviving spouse of the parent who, as a joint managing conservator of the child, does not have de jure primary possession but has de facto possession for approximately 50 percent of the time. Doncer v. Dickerson, 81 S.W.3d 349, 358. The court also addressed whether "principal residence" as used in Section 102.003(b) of the Family Code (in computing the time necessary for standing, the court shall consider the child's principal residence during the relevant time) carries the same connotation as "primary residence" as used in Section 153.134(b)(1) (in rendering an order appointing joint managing conservators, the court shall designate the conservator who has the exclusive right to determine the primary residence of the child). See Tex.Fam.Code Ann. §102.003(b) (Vernon Supp. 2002); §153.134(b)(1) (Vernon 1996). Finding that the phraseology carries different connotations, the appellate court reversed and remanded. The court found that the phraseology carried different connotations, and so reversed and remanded the case. The court reiterated that the six months' possession need not be continuous and uninterrupted, but rather, the court should look at the child's principal residence during that time frame and defined "principle residence" as "a fixed place of abode occupied consistently over a substantial period of time which is permanent, rather than temporary." Doncer v. Dickerson, 81 S.W.3d 349 at 362. The court then goes on to say that a standard possession order would not automatically confer standing, but that the cases must be decided on a case by case basis. Based on the facts in this case, the court found that the stepmother had standing.

3. In the Interest of C.G.B. a/k/a M.G.K. and J.R.B. a/k/a R.R.K., 163 s.w.3D 805 (Tex. App.- Texarkana 2005, no pet.) This case involves foster parents with whom two children were placed by the Texas Department of Protective and Regulatory Services (TDPRS). After two years in the home of the foster parents, TDPRS removed the children based on allegations of abuse and neglect by the foster parents. After the removal, the foster parents filed a motion to modify. The children were then out of the care of the foster parents for over a year before a final trial could be had on the underlying suit. The trial court found that the foster parents had no standing because TDPRS by contract could remove the children at any time, but then exonerated the foster parents from any wrong doing, and ordered TDPRS to expunge the administrative findings of neglect and abuse from its records. TDPRS appealed, claiming that once a trial court determines a lack of standing, it has no subject matter jurisdiction to take any further action relating to the parties that had no standing. The court of appeals found that the foster parents had standing pursuant to Tex.Fam.Code §102.003(a)(12) because the children were in their home, and they were foster parents for over 21 months, which period ended 78 days prior to the foster parents filing their motion to modify.

4. In the Interest of N.L.G., 238 S.W.3d 828 (Tex. App.- Fort Worth, 2007) The Texas Department of Family and Protective Services ("TDFPS") brought suit to terminate the parental rights of mother to her five-day-old daughter. Foster parents intervened. Following a jury trial, the trial court signed a judgment terminating mother's parental rights. In her sole point on appeal, mother argues that the trial court abused its discretion by allowing the foster parents to intervene in the suit. "The substantial past contact test established by section 102.004(b) for foster parent intervenors was a dramatic change from the traditional intervenor standing requirement. For several years, the Texas Supreme Court case of Mendez v. Brewer dominated the jurisprudence of when foster parents could intervene in termination proceedings. 626 S.W.2d 498, 499 (Tex. 1982). The court in Mendez established a 'justiciable interest' standard for intervenors. Id. Applying this standard to the foster parents, the Mendez court held that their interest was wholly contingent on the outcome of the termination suit--an interest that was too weak to be justiciable. Id. Mendez v.Brewer, 626 S.W.2d 498, 499-500. Since Mendez, however, the Texas Legislature has passed section 102.004, which….creates the new, more relaxed substantial past contact test for establishing intervenor standing in a SAPCR. See TEX. FAM.   CODE ANN. § 102.004; Rodarte v. Cox, 828 S.W.2d 65, 70 (Tex. App.--Tyler 1991, writ denied). Thus, a party who cannot file a SAPCR under the Mendez 'justiciable interest' standard may nonetheless intervene in a suit filed by a qualified party under the statutory 'substantial past contact' standard. In re A.M., 60 S.W.3d 166, 169 (Tex. App.--Houston [1st Dist.] 2001, no pet.)." "Foster parents now have two avenues to the courthouse. First, foster parents can bring an original suit affecting the parent child relationship (SAPCR) if the child has lived with the foster parents "for at least [twelve] months ending not more than [ninety] days preceding the date of the filing of the petition." Tex.Fam.Code Ann. §102.003(a)(12) Vernon Supp.2006). Second, foster parents who have not had possession of the child for at least twelve months ninety days before they file suit may nevertheless intervene in a SAPCR brought by someone with standing if the foster parents can demonstrate that they have had substantial past contact with the child. Id. at § 102.004(b)." Id. at 830. The Texas Supreme Court also discussed the foster parents' burden to establish substantial past contacts with the child.