in Re Abelardo and Elida Torres

• Court: Court of Appeals of Texas
• Decided: December 30, 2020
• Docket: 10-20-00266-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00266-CV

IN RE ABELARDO AND ELIDA TORRES

Original Proceeding

From the County Court at Law Bosque County, Texas Trial Court No. CV 18090

OPINION

Abelardo and Elida Torres filed a petition for a writ of mandamus in this Court

after the trial court denied their “Plea to the Jurisdiction, Motion to Strike Petition in

Intervention, and Motion to Dismiss.” The motion was filed in response to a petition in

intervention filed by the Speedys, who are the former foster parents of two children, D.T.

and A.T. The Torreses are the paternal grandparents and are the temporary managing

conservators of D.T. and A.T. After a hearing on the motion, the trial court denied the Torreses’ motion and granted the Speedys leave to intervene in the proceeding. Because

we find that the trial court erred by denying the Torreses’ motion and granting leave to

intervene because the Speedys did not have standing, we conditionally grant the writ.

BACKGROUND

The Department of Family and Protective Services removed D.T. and A.T. from

their mother in April of 2018. The children were placed with the Speedys in foster care.

In September of 2018, the Torreses filed a petition in intervention, and the trial court

granted them leave to intervene in the proceedings. In February of 2019, the trial court

entered a temporary order that named the mother the sole managing conservator of the

children and named the father and the Torreses possessory conservators. The children

were returned to their mother in February of 2019 and the Department was dismissed as

a party to the proceedings. The children resided with the Speedys for approximately ten

and a half months until they were returned to their mother.

The mother and children moved to Oklahoma and during the months between

February and December of 2019, the Speedys were able to visit with the children via

phone and video calls and according to Sam Speedy’s testimony at the hearing on the

motion to strike, the Speedys had possession of the children at their residence for 14 days

in July and 7 days in November of 2019 as well as several weekend visits where the

Speedys would travel to Oklahoma to visit with the children.

In re Torres Page 2 The record from the hearing is not clear as to what happened in December of 2019

except for Sam Speedy’s testimony that the mother had “fled with the children” on

December 6, 2019. A hearing was conducted on December 11 and 17 to modify the

temporary orders at the request of the Torreses, and the Torreses were named the

temporary managing conservators of the children and the mother and father were named

possessory conservators.

The Speedys filed their petition in intervention after the conclusion of the

temporary orders hearing on December 17, 2019. In their pleadings, they asserted

standing pursuant to Section 102.003(a)(9) of the Family Code. The hearing on the motion

to strike was conducted on September 28, 2020. After taking the matter under

advisement, the trial court signed an order that denied the motion to strike and granted

the Speedys leave to intervene in this proceeding. This order is the basis for the

mandamus petition filed in this proceeding.

The Torreses complain that the trial court abused its discretion by denying the

motion to strike the Speedys’s petition in intervention because the Speedys did not prove

that they had standing to intervene. They contend that the Speedys were not able to claim

standing pursuant to Section 102.003(a)(9) by including the months they were the foster

parents of the children but were required to prove standing pursuant to Section

102.003(a)(12).

In re Torres Page 3 STANDARD OF REVIEW

“A writ of mandamus will issue if a trial court abuses its discretion and no

adequate remedy by appeal exists.” In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig.

proceeding). In determining whether to grant mandamus relief, we defer to the trial

court's factual determinations supported by the record. See Id. However, we may grant

mandamus relief if the trial court "fails to correctly analyze or apply the law." Id. (internal

citations omitted). In this proceeding, we are required to consider the proper application

of two subsections of the Texas Family Code relating to standing of former foster parents.

We review questions of statutory interpretation de novo. In re C.Y.K.S., 549 S.W.3d 588,

591 (Tex. 2018). "Our aim in interpreting a statute is to ascertain and give effect to the

Legislature's intent." In re C.Y.K.S., 549 S.W.3d at 591.

STANDING TO INTERVENE

Standing is a component of subject-matter jurisdiction and is a constitutional

prerequisite to maintain suit. See In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). In assessing

standing, the merits of the underlying claims are not at issue. See In re H.S., 550 S.W.3d at

155 ("Here, the merits of Grandparents' claims—that is, whether they should be

appointed Heather's managing conservators with the right to designate her primary

residence—have not yet been considered by any court and are not before us.").

The party asserting standing bears the burden of proving that issue. In re A.D.T.,

588 S.W.3d 312, 316 (Tex. App.—Amarillo 2019, no pet.); In re S.M.D., 329 S.W.3d 8, 13

In re Torres Page 4 (Tex. App.—San Antonio 2010, pet. dism'd). In assessing standing, a reviewing court

should look to the pleadings but may consider relevant evidence of jurisdictional facts

when necessary to resolve the jurisdictional issues raised. In re H.S., 550 S.W.3d at 155.

Standing is a question of law that the court reviews de novo. Id. If a party does not have

standing, the court is deprived of subject matter jurisdiction, and the merits of the party's

claims cannot be litigated or decided. In re H.S., 550 S.W.3d at 155. However, if the

evidence creates a question of fact on standing, then the matter will be resolved by the

fact finder. In re Shifflet, 462 S.W.3d 528, 538 (Tex. App.—Houston [1st Dist.] 2015, orig.

proceeding).

Standing in a suit affecting the parent-child relationship (“SAPCR”) is governed

by the Family Code. See In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas 2012, pet.

denied). A party seeking relief in a SAPCR must allege and establish standing within the

parameters of the language used in the relevant statute. See In re Tinker, 549 S.W.3d 747,

751 (Tex. App.—Waco 2017, orig. proceeding). "Because standing to bring a SAPCR is

governed by statute, we apply statutory-interpretation principles in determining whether

a plaintiff falls within the category of persons upon whom such standing has been

conferred." In re H.S., 550 S.W.3d at 155.

Here, the Speedys assert that they have standing to seek conservatorship of the

children pursuant to § 102.003(a)(9) of the Texas Family Code. See TEX. FAM. CODE ANN.

§102.003(a)(9). Section 102.003, entitled "General Standing to File Suit," provides that an

In re Torres Page 5 original suit may be filed at any time by "a person, other than a foster parent, who has

had actual care, control, and possession of the child for at least six months ending not

more than 90 days preceding the date of the filing of the petition." TEX. FAM. CODE ANN.

§102.003(a)(9). They argue that this section applies to them in this proceeding because

they were not foster parents at the time of the filing of their petition for intervention. The

Torreses argue that the Speedys were required to establish standing pursuant to Section

102.003(a)(12), which states that 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 Family and Protective

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 ANN. §102.003(a)(12).

The Torreses contend that the Speedys did not establish that they have standing because

they were the foster parents of the children for the majority of the time that they had

“actual care, control, or possession” of the children, regardless of their status at the time

of the filing of their petition in intervention. The Torreses further argue that the Speedys

were not entitled to rely on Section 102.003(a)(9) because they did not establish that they

had “actual care, control, or possession” of the children for six months if the time the

Speedys were the children’s foster parents is not counted.

In computing the time necessary for standing under either section, the "court may

not require that the time be continuous and uninterrupted but shall consider the child's

principal residence during the relevant time preceding the date of commencement of the

In re Torres Page 6 suit." TEX. FAM. CODE ANN. §102.003(b). For purposes of establishing standing pursuant

to Section 102.003(a)(9), this language has been held to exclude nonparents who do not

share a principal residence with a child for the statutory time period, "regardless of how

extensively they participate in caring for [the child]." In re H.S., 550 S.W.3d at 156. A

nonparent other than a foster parent has standing under §102.003(a)(9)'s language

requiring "actual care, control, and possession of the child" if, for the requisite six-month

time period, the nonparent served in a parent-like role by (1) sharing a principal residence

with the child, (2) providing for the child's daily physical and psychological needs, and

(3) exercising guidance, governance, and direction similar to that typically exercised on a

day-to-day basis by parents with their children. Id. at 160. We believe that the same

standard would apply to Section 102.003(a)(12), because while an individual is a child’s

foster parent, they generally would be in a parent-like role and meet the three standards

as listed above but for twelve months, rather than six.

We examine the pleadings and relevant evidence of jurisdictional facts to

determine the Speedys’s standing. See In re H.S., 550 S.W.3d at 155. In their pleadings, the

Speedys asserted that they had actual care, control, and possession of the children for at

least six months ending not more than 90 days preceding the date of the filing of the

petition. At the hearing, Sam Speedy attempted to prove this to be true. TEX. FAM. CODE

ANN. § 102.003(b). Sam testified that they had two visits in their home with the children

that totaled 21 days, the last of which occurred less than a month prior to the filing of

In re Torres Page 7 their petition in intervention. In their response to the petition filed in this proceeding, the

Speedys argue that these visits should count as periods of “actual care, control, or

possession” of the children for purposes of establishing that their “actual care, control, or

possession” of the children ended within 90 days of the filing of their petition in

intervention and as part of the six months required to establish standing.

The Speedys have provided no authority to support their position that the ten

months that they were indisputably the foster parents of the children should count as

part of the six-month requirement for them to establish standing but should not require

them to meet the twelve-month requirement for foster parents because of their status at

the time of the filing of their petition in intervention. We disagree. When the time relied

on by a party to establish “actual care, control, or possession” of children includes time

as a foster parent, we find that the party must establish standing pursuant to Section

102.003(a)(12). To hold otherwise would invalidate the language in Section 102.003(a)(9)

that specifically excludes a foster parent. See TEX. FAM. CODE ANN. §102.003(a)(9) (“a

party, other than a foster parent…”)(emphasis added). The status held by a party at the time

of the filing of their pleading is not determinative for purposes of establishing standing.

To hold otherwise would give any foster parent who had children in their home for more

than six but less than twelve months from whom children were removed the ability to

file a petition in intervention solely because they were no longer the foster parents.

Therefore, we hold that the Speedys were required to either establish that they had

In re Torres Page 8 “actual care, control, or possession” of the children for six months exclusive of their time

as foster parents pursuant to Section 102.003(a)(9) or that they had “actual care, control,

or possession” of the children for twelve months including the time they were foster

parents pursuant to Section 102.003(a)(12). The Speedys did not meet either standard,

even when we give deference to the trial court’s findings of fact. They were foster parents

of the children for approximately 10.5 months, and had very limited visitation afterward,

which by their own admission in their response to the petition in this proceeding, was

only 11.34 months. Thus, they did not meet the twelve-month requirement of Section

102.003(a)(12). Outside of the 313 days the Speedys were the foster parents of the children,

their response to the petition in this proceeding lists an additional 32 days in which they

contend they had “actual care, control, or possession” of the children, which does not

meet the six-month requirement of Section 102.003(a)(9). 1

Because the Speedys did not meet their burden to establish that they had standing

to intervene in this proceeding, the trial court abused its discretion by denying the

Torreses’ plea to the jurisdiction, motion to strike, and motion to dismiss. Accordingly,

we conditionally grant the petition for writ of mandamus and direct the trial court to

vacate its “Order Denying Intervenor Torres’ Plea to the Jurisdiction” signed on

September 28, 2020 and to enter an order granting the Torreses’ Plea to the Jurisdiction

1Some of the days listed in the Speedys’s response are not supported by the record; however, those discrepancies are not material to our analysis or holding.

In re Torres Page 9 and dismissing the Petition in Intervention filed by Patrick and Cindy Speedy within

twenty-one days from the date of this opinion. We are confident the trial court will

comply; our writ will issue only if it fails to do so.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Petition granted Opinion delivered and filed December 30, 2020 [CV06]

In re Torres Page 10