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

OTHER PERSONS WITH SUBSTANTIAL PAST CONTACTS

1. Statute
Texas Family Code section 102.004 authorizes grandparents and other persons deemed by the court to have had substantial past contact with the child to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. Tex.Fam.Code §102.004(b).

2. Cases
a. Bolton v. Schultz (In the Interest of H.B.N.S.), 2007 Tex. App. LEXIS 5541 (Tex. App.-Houston [14th Dist.] 2007, pet. denied Nov. 9, 2007) In a termination of parental rights and adoption proceeding, the parents of the child's babysitter had standing to intervene pursuant to Tex.Fam.Code Ann. § 102.004(b); the intervenor's had substantial past contact with the child; the child spent large amounts of time with the intervenors and they considered her a member of the family. In this case, the managing conservators petitioned for termination of parental rights and adoption of a minor child. The babysitter's parents were permitted to intervene under Tex.Fam.Code §102.004(b) and had standing to request adoption. Mother named the Bolton's managing conservators of the child and allowed the child to go home from the hospital with the Bolton's. The Bolton's hired a teenage babysitter who was living with her parents (the Schultzes) and often brought the child to the Schultzes home. The child spent large amounts of time with the Schultzes and was given her own room in their home. The Schultzes provided food, clothing, medical and dental for the child. They included her in family trips and celebrated holidays with her. The Bolton's attempted to terminate mother's parental rights and adopt the child, but the proceeding did not go forward due to the trial court's concern about pending criminal charges against Mr. Bolton. It should be noted that both Mr. and Mrs. Bolton had significant criminal histories. The Schultes filed an Original Petition for Termination and Adoption of a Child as well as an Original SAPCR requesting primary conservatorship. These were dismissed by the court. Subsequently, the Schultzes filed a Petition in Intervention in the Bolton's original termination and adoption proceeding. Approximately 5 months later, the Schultzes filed suit for the adoption of the child. The trial court granted the Schultzes request to adopt the child. The appellate court affirmed. On appeal, the court held that the standing to intervene must be judged at the time the intervention is filed, not at the time the original petition is filed. At the time the intervention is filed, the intervenor must be able to establish their substantial past contact.

b. In the Interest of N.B.B., 2007 Tex.App. LEXIS 8639 (Tex.App. San Antonio Oct. 31, 2007) Father and Mother had two children, were never married, but lived together in Florida. Father and Mother separated. Mother moved to Texas and was diagnosed with cancer soon thereafter. One child had Down Syndrome and was placed in a residential facility. N.B.B. went to live with Mother's Friend ("Friend"). After Mother died, Friend refused to allow Father to take the children to Florida. Father filed an original SAPCR petition. Friend filed a counter petition. The trial court appointed Father and Friend joint managing conservators, granted Friend the right to determine the primary residence of the child, and gave Father standard visitation. The appellate court affirmed the trial courts ruling that a friend of children's deceased mother had standing to participate in child custody proceedings under TEX.FAM.CODE § 102.004(b) as she had substantial past contact with the children and showed that appointing their father as sole managing conservator would have significantly impaired the "Grandparents And Other Third Parties Chapter 22 6" children's physical health or emotional development; the evidence supported findings that the father had little contact with his children after they moved to Texas, he relied on his daughter and other family members to take care of the son, who had special needs, he showed an unwillingness to support his children, and the daughter had testified that his violent temperament caused her to fear him.

c. In the Interest of N.L.G., 238 S.W.3d 828 (Tex.App.-Fort Worth 2007) In this case foster parents intervened in a termination case filed by the Texas Department of Family and Protective Services. The court relied on the "substantial past contact" provision of Texas Family Code section 102.004(b). The evidence at the trial court level showed that the child had lived with the foster parents for her entire life, excluding the first seven days following her birth. Furthermore, the foster parents had become emotionally attached to the child and had decided to adopt her if Sarah's parental rights were terminated. "Under these circumstances, we cannot say that the trial court abused its discretion by deciding that the foster parents had had substantial past contact with the child." In the Interest of N.L.G., 238 S.W.3d 828, 831. [Author's note: See section IX of this paper for an in depth discussion on N.L.G.]