in Re J.S.G. and A.G.

• Court: Court of Appeals of Texas
• Decided: September 23, 2021
• Docket: 09-21-00252-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00252-CV __________________

IN RE J.S.G. AND A.G.

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Original Proceeding County Court at Law of Orange County, Texas Trial Cause Nos. C200227-D and C200696-D __________________________________________________________________

MEMORANDUM OPINION

J.S.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 13, 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 March 26, 2020, the Department filed Trial Cause Number C200227-D,

In the Interest of C.E.L., Jr., 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

D.N.M. and C.E.L. and appointment of the Department as sole managing

conservator of C.E.L. Jr.

On November 20, 2020, the Department filed Trial Cause Number C2002696-

D, In the Interest of S.O.L., 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

D.N.M. and C.E.L. and appointment of the Department as sole managing

conservator of S.O.L. In later pleadings, the Department identified the child by the

initials B.B.M.

On April 26, 2021, Relators filed an Original Petition in Intervention and for

Termination of Parental Rights in Trial Cause Numbers C200227-D and C200696-

D. In each case, they alleged standing as adults who have had actual possession and

control of the child 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).

In each case, the Department moved to strike and dismiss the plea in

intervention. The Department argued that Relators cannot maintain standing under

2 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.

The trial court heard Relators’ motion in intervention on May 14, 2021.

Counsel for Relators admitted Relators could not establish standing to file an original

suit affecting the parent-child relationship under section 102.003(a)(12) of the Texas

Family Code and argued they established standing to file a suit for termination and

adoption under section 102.005(c).

On May 14, 2021, the trial court informed the parties by e-mail that she was

ruling that Relators lack standing. On July 8, 2021, the trial court signed orders

striking the interventions and dismissing Relators as parties to the cases. On July 29,

2021, the trial court consolidated the two cases under Trial Cause Number C200227-

D, styled In the Interest of C.E.L., Jr. and S.O.L.

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

They argue they had actual possession and control of the children for the requisite

time period to establish their standing to sue for termination and adoption when they

filed their petitions in intervention on April 26, 2021. According to Relators, the

Department placed C.E.L. Jr. in their home on August 5, 2020, placed S.O.L. in their

3 home on December 23, 2020, and removed both children on April 9, 2021. Relators

argue that an appeal is an inadequate remedy for the trial court’s alleged error in

granting the motion to strike their interventions because the case will proceed to final

judgment without them. It appears the children’s parents have executed affidavits of

relinquishment.

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 thirteen days before the trial

will 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 regarding C.E.L., Jr. is subject to a dismissal date

4 of September 24, 2021. Termination of the parental rights of D.N.M. and C.E.L. is

before the trial court in a trial commencing on September 13, 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 C.E.L. Jr. and S.O.L. Should Relators be

successful in an accelerated appeal from the final judgment that will decide the issues

involved in the Department’s petition, 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 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 22, 2021 Opinion Delivered September 23, 2021

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