in Re J.G. and A.G.

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-21-00251-CV __________________

IN RE J.G. AND A.G.

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Original Proceeding County Court at Law of Orange County, Texas Trial Cause No. C200555-D __________________________________________________________________

MEMORANDUM OPINION

J.G. and A.G., Relators, filed a petition for a writ of mandamus and a motion

for temporary relief. See Tex. R. App. P. 52; see also Tex. Gov’t Code Ann. §

22.221. Relators ask this Court to stay the trial set for September 2, 2021, on a

petition for termination of parental rights filed by the Texas Department of Family

and Protective Services (“the Department”), to compel the trial court to vacate an

order striking Relators’ petition in intervention for lack of standing, and require the

trial court to conduct a trial on the merits of their petition for termination and

adoption. We deny the petition for mandamus and the motion for temporary relief.

1 On September 22, 2020, the Department filed Trial Cause Number C200555-

D, In the Interest of S.C., an Original Petition for Protection of a Child, For

Conservatorship, and For Termination in Suit Affecting the Parent-Child

Relationship. In the suit, the Department sought termination of the parental rights of

F.N.J. and D.C. and appointment of the Department as sole managing conservator

of S.C. On April 26, 2021, Relators filed an Original Petition in Intervention and for

Termination of Parental Rights. They alleged standing as adults who have had actual

possession and control of S.C. for not less than two months during the three-month

period preceding the filing of the petition. See Tex. Fam. Code Ann. § 102.005(3).

The Department moved to strike and dismiss the plea in intervention. The

Department argued that Relators cannot maintain standing under section 102.005(3)

because a specific standing statute applies to foster parents and Relators cannot

establish standing under that section. Compare Tex. Fam. Code. Ann. § 102.005(3),

with § 102.003(a)(12). The Department further argued that section 102.005 did not

apply because the Department did not seek adoption in its petition.

On July 8, 2021, the trial court signed an order striking the intervention and

dismissing Relators as parties to the case.

On August 31, 2021, Relators filed their mandamus petition in this Court.

They argue that because S.C. was placed in their home on October 23, 2020, and

removed on April 9, 2021, when they filed their petition in intervention on April 26,

2 2021, they had standing to sue for termination and adoption because they had actual

possession and control of S.C. for the period required by section 102.005(3). They

also claim the trial court abused its discretion in the permanency hearing by

considering only the length of time in placement when considering the best interest

of the child. Relators argue that an appeal is inadequate as a remedy for the trial

court’s alleged error in granting the motion to strike their intervention because the

case will proceed to final judgment without them, and they suggest S.C.’s adoption

will likely be consummated before an appeal could be resolved.

To obtain extraordinary relief in a writ of mandamus, Relators must show that

the trial court abused its discretion and there is no adequate remedy by appeal. See

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). In determining whether appeal is an adequate remedy, we consider

whether the benefits outweigh the detriments of mandamus review. In re BP Prods.

N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding).

When a person intervenes before the trial court signs a final judgment and the

trial court strikes a petition in intervention, the intervening party dismissed from the

suit may appeal from the final judgment. See Kenneth D. Eichner, P.C. v.

Dominguez, 623 S.W.3d 358, 362 (Tex. 2021). Relators argue that they will lack a

realistic avenue to perfect an appeal because they will not receive notice of future

proceedings. But they filed their mandamus petition two days before the trial will

3 commence, and the Rules of Appellate Procedure allow a party to a civil case to file

a notice of appeal before the trial court signs the judgment. See Tex. R. App. P.

27.1(a). The Department’s suit is subject to a dismissal date of September 27, 2021.

Termination of the parental rights of F.N.J. and D.C. is before the trial court in a trial

that will begin on September 2, 2021. But the record in the mandamus proceeding

fails to show that any party other than Relators have filed a claim for adoption. Thus,

by striking the intervention, there is no longer any active claim seeking the adoption

of S.C. Should Relators be successful in an accelerated appeal from the final

judgment that will decide the issues involved in the Department’s petition, the

Relators will be able to appeal and if successful, the trial court will be required to

consider their claim on remand.

Under the circumstances, we conclude the Relators have not shown that

appeal from the final judgment will not provide an adequate remedy. In this opinion

we neither consider nor decide whether Relators established standing to file a

petition for termination and adoption. We deny the petition for a writ of mandamus

and motion for temporary relief. See Tex. R. App. P. 52.8(a), 52.10.

PETITION DENIED.

PER CURIAM

Submitted on September 1, 2021 Opinion Delivered September 1, 2021

Before Golemon, C.J., Kreger and Horton, JJ. 4