in Re: M.T.G.

• Court: Court of Appeals of Texas
• Decided: January 20, 2022
• Docket: 05-21-00763-CV
• Status: Published

Opinion

Writ Conditionally Granted and Opinion Filed January 20, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00763-CV

IN RE: M.T-G., a Child

Original Proceeding from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-19-01074-W

MEMORANDUM OPINION Before Justices Schenck, Nowell, and Garcia Opinion by Justice Nowell Relators, C.A.D. and M.L.D. (Foster Parents), seek a writ of mandamus to

order the trial court to vacate its order striking their petition to intervene in a suit

affecting the parent-child relationship (SAPCR) regarding M.T-G. The Texas

Department of Family and Protective Services (Department) filed the SAPCR under

Subtitle E, Title 5 of the family code seeking termination of the parental rights of

Mother and Father (Parents) to M.T-G. We conclude the trial court abused its

discretion in applying the Texas Supreme Court’s Fortieth Emergency Order

Regarding the COVID-19 State of Disaster to suspend the time for Foster Parents to

establish standing to intervene. We conditionally grant the petition for a writ of

mandamus. Background

According to its petition and supporting affidavit in the SAPCR, the

Department received multiple referrals regarding Mother’s use of drugs and violent

and suicidal behavior while she was pregnant with M.T-G. Mother tested positive

for cocaine at the hospital when she arrived to deliver the child. The child also tested

positive for cocaine. M.T-G. was born 6 weeks premature and required respiratory

support and a feeding tube. She remained in the hospital for almost three months

before being discharged in September 2019.

The Department alleged that Mother’s long history of suicidal ideations and

substance abuse demonstrates her inability to properly care for the child and make

decisions in the child’s best interest. Mother admitted to drinking alcohol and using

cocaine, which caused her to go into premature labor. Father admitted a history of

using cocaine and struggling with alcohol addiction. Although he had been sober for

two years, when confronted with a positive test for cocaine he admitted to relapsing

and using cocaine when Mother went into premature labor. After the child was

discharged from the hospital, law enforcement was contacted due to an altercation

between Mother and Father. Father reported previous incidences of domestic

violence with Mother being the aggressor.

The Department determined the child was not safe in the care of the parents

and removed the child on October 14, 2015. The Department filed this SAPCR and

placed the child with Foster Parents on October 15, 2019.

–2– Foster Parents filed a petition in intervention on January 29, 2021. They

sought termination of the parental rights of both parents and appointment as joint

permanent managing conservators of the child. Six months later, the parents filed a

motion to strike Foster Parents’ intervention based solely on the ground that the

current supreme court emergency order regarding the COVID-19 state of disaster

suspended the time necessary for Foster Parents to establish standing to intervene in

this case. The trial court conducted a hearing on the motion to strike on September

2, 2021.1 The court agreed with the parents and granted the motion to strike the

intervention. The court signed an order granting the motion to strike on October 5,

2021.

Afterwards, Foster Parents filed this petition for writ of mandamus to vacate

the order granting the motion to strike the petition in intervention. While the petition

was pending, the trial court ruled the Department could place the child with relatives

in Mexico. Foster Parents filed a motion for emergency relief requesting this Court

to stay the order. We granted the motion for emergency relief on September 28,

2021, stayed the order allowing placement of the child in Mexico, and requested a

response from the real parties in interest. Only the Department filed a response.

Foster Parents raise one issue in their petition. They contend the trial court

abused its discretion by striking their intervention because the Texas Supreme

1 The record shows that Foster Parents have had possession of the child since October 15, 2019, through at least the date of the hearing on the motion to strike, September 2, 2021. –3– Court’s Fortieth Emergency Order Regarding the COVID-19 State of Disaster

(Emergency Order) provides that the deadlines and procedures in suits under Subtitle

E, Title 5 of the family code “must not be modified or suspended” and this

proceeding was filed pursuant to Subtitle E, Title 5.

Mandamus Standard

Mandamus is an extraordinary remedy that is available only when the trial

court has clearly abused its discretion and there is no adequate remedy by appeal. In

re Prudential Ins. Co., 148 S.W.3d 124, 135–36, 137 (Tex. 2004) (orig. proceeding).

A clear abuse of discretion occurs when a trial court “reaches a decision so arbitrary

and unreasonable as to amount to a clear and prejudicial error of law.” Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). A trial court has no

discretion in determining what the law is or applying the law to the facts. Id.

Therefore, a clear failure by the trial court to analyze or apply the law correctly will

constitute an abuse of discretion and may result in appellate reversal by

extraordinary writ. Id. at 840.

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

prerequisite to maintaining a lawsuit under Texas law. In re M.K.S.–V., 301 S.W.3d

460, 463 (Tex. App.—Dallas 2009, pet. denied). Thus, it may be raised for the first

time on appeal by the parties or by the court. Texas Ass’s of Bus. v. Texas Air Control

Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Whether a party has standing to seek

–4– relief in a suit affecting the parent-child relationship is governed by the Texas Family

Code. In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas 2012, pet. denied).

A person seeking conservatorship of a child must have standing to bring suit.

In re I.I.G.T., 412 S.W.3d 803, 805–06 (Tex. App.—Dallas 2013, no pet.). Standing

in SAPCRs is governed by the family code, and a party bringing a SAPCR must

plead and establish standing under the family code’s provisions. M.K.S.–V., 301

S.W.3d at 464. Intervention in a pending SAPCR is governed by specific provisions

of the family code. See TEX. FAM. CODE § 102.004(b).

Discussion

To intervene in the SAPCR, Foster Parents were required to establish statutory

standing under the family code. See TEX. FAM. CODE § 102.004(b). Under this

section, the trial court may permit a grandparent or other person deemed to have had

substantial contact with the child leave to intervene in a pending suit if there is

satisfactory proof that appointment of one or both parents as managing conservator

would significantly impair the child’s physical health or emotional development. Id.

Foster parents may only be granted leave to intervene if they would also have

standing to file an original suit. Id. § 102.004(b-1). A foster parent has standing to

file an original suit if the child has been placed in their home “for at least 12 months

ending not more than 90 days preceding the date of the filing of the petition.” Id.

§ 102.003(a)(12).

–5– The supreme court issued the Emergency Order on July 19, 2021. Paragraph 3

of that order states:

Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal, without a participant’s consent:

a. except as provided in paragraph 4, modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than October 1, 2021 . . . .

Supreme Court of Texas, Fortieth Emergency Order Regarding the COVID-19 State

of Disaster, Misc. Docket No. 21-9079, 629 S.W.3d 911(Tex. 2021) (emphasis

added).

The Parents argued in the motion to strike that this provision suspended the

running of the 12-month-placement requirement for Foster Parents to establish

standing under family code section 102.003(a)(12). The trial court agreed. The

record of the hearing shows that the only ground argued and the basis for the trial

court’s ruling was the asserted suspension of the 12-month-placement requirement

by the Emergency Order.

However, paragraph 3 of the Emergency Order is subject to paragraph 4 of

the order. Paragraph 4 provides:

In any proceeding under Subtitle E, Title 5 of the Family Code, all deadlines and procedures must not be modified or suspended, unless permitted by statute, except the dismissal date may be extended as follows: . . . .

Id. ¶ 4 (emphasis added).

–6– The Department’s petition in this case was filed under family code section

262.105, which is part of Subtitle E, Title 5 of the family code. See TEX. FAM. CODE

§ 262.105. Thus, paragraph 4 of the Emergency Order, not paragraph 3, applies to

this case. Paragraph 4 provides that deadlines and procedures, except the dismissal

date, in proceedings under Subtitle E, Title 5 of the family code “must not be

modified or suspended, unless permitted by statute.” Thus, the 12-month-placement

requirement for Foster Parents to establish standing was not suspended by the

Emergency Order. We conclude the trial court abused its discretion by failing to

apply the law correctly to this case. See Walker, 827 S.W.2d at 839.

The Department agrees that the Emergency Order did not suspend the 12-

month-placement requirement but argues the trial court did not abuse its discretion

because there are other grounds for striking the intervention. Specifically, the

Department argues that the Foster Parents did not present satisfactory proof that

appointment of the Parents as sole or joint managing conservators would

significantly impair the child’s physical health or emotional development.2

In its petition, the Department is seeking termination of the parental rights of

Mother and Father based on their long history of cocaine and alcohol abuse, family

violence, Mother’s suicidal ideations, her inability to properly care for the child and

2 The Department also argues there was no showing of substantial past contact with the child and Foster Parents did not request leave to file the petition in intervention. Neither of these grounds was raised in the trial court. –7– to make decisions in the child’s best interest. Clear, deliberate, and unequivocal

assertions of fact in live pleadings are regarded as judicial admissions. Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (holding judicial

admissions in plaintiff’s petition established that defendant was health care

provider); Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983)

(holding assertions of fact, not pled in alternative, in live pleadings are regarded as

formal judicial admissions and any fact admitted is conclusively established in case

without introduction of pleadings or presentation of other evidence). A judicial

admission “‘not only relieves [an] adversary from making proof of the fact admitted

but also bars the party himself from disputing it.’” Horizon/CMS Healthcare, 34

S.W.3d at 905 (quoting Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d

877, 884 (Tex. App.—San Antonio 1996, writ denied)). Further, we presume the

trial court has judicial notice of the contents of its own records in a case even in the

absence of a request, because “[a] trial judge judicially knows what has previously

taken place in the case on trial.” Asplundh Tree Expert Co. v. Abshire, 517 S.W.3d

320, 344 n.13 (Tex. App.—Austin 2017, no pet). We cannot say at this point that the

record fails to show proof of the significant impairment requirement.

More importantly, however, this ground was never raised in the motion to

strike the intervention or at the hearing on the motion. Thus, we do not know how

the trial court would have exercised its discretion had it considered the remaining

grounds for intervention under section 102.004(b). Nor were Foster Parents given –8– an opportunity to respond and make the showing required by that section. While in

general we may affirm a trial court order if it is correct on any legal theory applicable

to the case, we will not affirm the trial court’s order based on a legal theory not

presented to the trial court and to which the other party had no opportunity to

respond. Ethicon Endo-Surgery, Inc. v. Gillies, 343 S.W.3d 205, 210–11 (Tex.

App.—Dallas 2011, pet. denied); Victoria Gardens of Frisco v. Walrath, 257 S.W.3d

284, 290 (Tex. App.—Dallas 2008, pet. denied). We agree the burden is on Foster

Parents to make the showing required by section 102.004(b), but at this juncture the

trial court has not considered that showing or exercised its discretion based on a fully

developed record. Because standing was not challenged on any ground other than

the suspension of the placement requirement by the Emergency Order, we decline

to consider other grounds not raised in the trial court.

Finally, the Department argues that Foster Parents have an adequate remedy

by appeal from a final judgment. The Texas Supreme Court has held that mandamus

review is appropriate when the trial court’s jurisdiction is challenged in a proceeding

involving child custody issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.

1994) (orig. proceeding). Due to the unique and compelling circumstances presented

in a SAPCR action, mandamus relief is an appropriate remedy for an order denying

or granting a motion to dismiss for lack of standing in a SAPCR action. In re Martin,

523 S.W.3d 165, 169 (Tex. App.—Dallas 2017, orig. proceeding); In re Shifflet, 462

S.W.3d 528, 541–42 (Tex. App—Houston [1st Dist.] 2015, orig. proceeding) (no –9– adequate remedy on appeal and mandamus proceeding appropriate to seek relief

from order granting motion to dismiss intervention in SAPCR case for lack of

standing).

In this case, the trial court’s jurisdiction over Foster Parents’ petition in

intervention, which sought custody of the child, was challenged by the parents’

motion to strike the intervention. In this context, we conclude Foster Parents do not

have an adequate remedy by appeal.

Conclusion

We conditionally grant the petition for writ of mandamus. We order the trial

court to vacate its order of October 5, 2021 striking the Foster Parents’ petition in

intervention. We vacate the stay granted in our September 28, 2021 order. The writ

will issue only in the event the trial court fails to comply with this opinion and the

order of this date.

/Erin A. Nowell// ERIN A. NOWELL JUSTICE

210763f.p05

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