Brewer v. Mendez

620 S.W.2d 709, 1981 Tex. App. LEXIS 3799
CourtCourt of Appeals of Texas
DecidedJune 5, 1981
DocketNo. 20626
StatusPublished
Cited by4 cases

This text of 620 S.W.2d 709 (Brewer v. Mendez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. Mendez, 620 S.W.2d 709, 1981 Tex. App. LEXIS 3799 (Tex. Ct. App. 1981).

Opinion

AKIN, Justice.

In this suit for termination of parental rights, the sole question on appeal is whether the juvenile judge abused his discretion in striking the intervention of the Brewers, who had served as foster parents. This question depends on whether the motion to strike of the appellee Mendez, the natural father, stated sufficient cause and on whether the Brewers themselves could have sued. In this respect, Mendez asserted among other grounds, that intervenors lacked standing. We hold that Mendez’s motion to strike failed to state sufficient cause to strike and that the Brewers had standing to intervene under Tex.Fam.Code Ann. § 11.01(5) (Vernon 1975). Consequently, the trial judge abused his discretion in striking the plea. Accordingly, we reverse the judgment of the trial court granting custody to Mendez and remand so that the Brewers may proceed with their plea in intervention.

In 1978 the Texas Department of Human Resources filed a suit to terminate the parental rights of Mendez and his wife for alleged child abuse. Pending hearing, the child was placed by the Texas Department of Human Resources in a foster home with appellants Brewer. While the termination suit was pending, the Brewers sought to intervene in the Department’s suit to terminate the natural parents’ parental rights and to adopt the child. On motion of appel-lee Mendez, the plea was stricken. The suit then proceeded to ■ a final judgment terminating the mother’s rights and appointing the father sole conservator. From this judgment intervenors have appealed complaining of the striking of their intervention.

Mendez asserted in his motion to strike the intervention that intervenors had no legally assertible interest in the child and, therefore, the judge had “sufficient cause” to strike it under Tex.R.Civ.P. 60 which provides that “any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party . . . .” [Emphasis added.] Under this rule and the case law existing before its adoption, a person or entity has the right to intervene if the intervenor could have brought the same action, or any part thereof, in his own name. The interest asserted by the intervenor may be either legal or equitable. King v. Olds, 71 Tex. 729, 12 S.W. 65 (1888); Inter-Continental Corp. v. Moody, 411 S.W.2d 578, 589 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.); 1 R. McDonald, Texas Civil Practice § 3.47 (1981). The rationale behind this well established test is based upon judicial economy and upon fairness to an intervenor who has a legal or equitable interest in the subject matter of the suit and whose rights may be affected by the judgment.

Our question then is whether the Brewers could have brought the original suit in the interest of the child seeking termination of the natural parents’ rights and seeking custody. Essentially, the question is whether the Brewers had standing to bring the original suit. See San Antonio Conservation Soc. v. City of San Antonio, [711]*711250 S.W.2d 259, 264 (Tex.Civ.App.—Austin 1952, writ ref’d). We hold that the Brewers had standing to seek termination, custody and adoption of the child in question because the Brewers have alleged such a personal interest in the litigation, which is adverse to Mendez and the Department, that the presentation of the issues is likely to be sharpened. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

Our holding is in accord with the rationale of the Houston Court of Civil Appeals [1st Dist.] in Harris County Child Welfare Unit v. Caloudas, 590 S.W.2d 596, 599 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ). In a remarkably similar fact situation, with the exception that in that case the trial judge permitted intervention, the foster parents intervened seeking termination of the natural mother’s rights and custody in a suit affecting the best interest of a child. There, as here, the Department sought termination of the mother’s parental rights, then modified its position and requested that the child be returned to her natural mother. But the foster parents, who had been caring for the child over a period of several years, intervened seeking termination, custody and adoption. The trial judge declined to strike the intervention, and after trial to a jury, the natural mother’s rights were terminated and custody was awarded to the foster parents. Additionally, they were permitted to proceed with adoption of the child. Both the mother and the welfare department appealed, asserting that the foster parents lacked standing and that the right of natural parents to their child was paramount. The Department contended that once it had commenced a program to reunite mother and child, public policy demanded that the Department have discretion to continue its program with respect to the child and that foster parents lacked standing to intervene. In rejecting this argument, the Houston Court of Civil Appeals noted that Tex.Fam. Code Ann. § 14.02(b) and (c) (Vernon 1975) makes no distinction between an authorized agency and a person. In holding that the foster parents had standing to sue, the court noted that under section 11.03 of the Family Code any interested person may bring a suit affecting the parent-child relationship as defined by section 11.01(5) (Vernon 1975). We agree with the Houston Court of Civil Appeals.

In our view, the guiding beacon of the Family Code is the best interest of the child, rather than the rights of the natural parents. C_v. C_, 534 S.W.2d 359, 361 (Tex.Civ.App.—Dallas 1976, no writ). Tex. Fam.Code Ann. § 14.07(a) (Vernon 1975) provides that “the best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.” [Emphasis added.] The supreme court in Holley v. Adams, 544 S.W.2d 367, 371 (Tex.1976) set forth criteria for determining what is in the best interest of the child. These include: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody, (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by the individuals or agency seeking custody; (G) the stability of the home or the proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent [Emphasis added.]

Thus, both the legislature and the supreme court recognize that parties other than parents or relatives or state agencies may have a legal right to assert their concern for the best interest of the child. .

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Related

Yevak v. Yevak
713 S.W.2d 164 (Court of Appeals of Texas, 1986)
Meno v. State
681 S.W.2d 294 (Court of Appeals of Texas, 1984)
Mendez v. Brewer
626 S.W.2d 498 (Texas Supreme Court, 1982)

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Bluebook (online)
620 S.W.2d 709, 1981 Tex. App. LEXIS 3799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-mendez-texapp-1981.