VACATE and DISMISS; and Opinion Filed June 1, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01629-CV
IN THE INTEREST OF I.C.G., A CHILD
On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-07-00258-T
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers CPG (Father) appeals the trial court’s order terminating his parental rights to ICG (Child)
arguing that the trial court did not have jurisdiction to terminate his parental rights because the
petitioner did not have standing. We agree, and we vacate the trial court’s Final Order of
Termination and dismiss the petition for want of jurisdiction.
BACKGROUND
Mother and Father were in a relationship in 2004, but were not married. Mother gave
birth to Child on December 7, 2004, and gave him Father’s last name. On December 9, 2004,
Mother and Father signed a “State of Texas Acknowledgment of Paternity” declaring “under
penalty of perjury” that Father was the biological father of Child. At some point, Mother and
Father ceased to be “girlfriend/boyfriend.” In a January 2007 order, the trial court appointed
Father and Mother joint managing conservators of Child and ordered Father to pay child support. The record reflects that over the next few years Mother and Father filed various pleadings
involving modification of child support and possession of Child.
Sometime in 2013, 1 Child filed a petition challenging Father’s acknowledgment of
paternity. Father answered, asserting a general denial and affirmative defenses of statute of
limitations, fraud, and lack of legal capacity. In early 2013, Child, through “his GUARDIAN,
NEXT FRIEND [MOTHER],” amended the petition, alleged that another man, EH, was his
biological father, and sought to change his last name to EH’s last name. Child alleged that EH
had taken a DNA test in 2007 that proved to a 99.5% probability that EH was Child’s biological
father. Child alleged that Mother “did not have sexual relations with [Father] for a minimum of
four (4) months before [Child] was conceived and in fact she was living with [EH] . . . during
those 4 months preceding the conception of [Child].” As alternative relief, Child sought
involuntary termination of Father’s parental rights under Texas Family Code section
161.001(1)(D) and (E). 2 Also in early 2013, the trial court suspended Father’s access to and
possession of Child and obligation to pay child support.
About a year later, Father moved to enforce his periods of possession and access. The
court appointed an “amicus attorney to represent the child the subject of this suit.” Meanwhile,
Father obtained new counsel and filed objections and special exceptions to Child’s amended
petition. Father also amended his answer to allege, among other things, that Child lacked
standing to obtain the relief sought in the amended petition.
The court set the matters for a bench trial. At trial, Mother presented testimony that the
acknowledgment of paternity form was presented to her “while [she] was sedated right after I
1 The original petition is not in the clerk’s record. 2 The subsection (D) ground for termination states that a parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[.]” TEX. FAM. CODE ANN. § 161.001(1)(D) (West 2014). The subsection (E) ground for termination states that a parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]” Id. § 161.001(1)(E).
–2– had my child” and implied that Father signed it fraudulently. Mother said she “went to the AG’s
office to have the child support terminated” in 2007 and, pursuant to a conversation she had
there, paid for a DNA test for EH. 3
On cross-examination, Mother agreed that she signed documents, including a court order,
in January 2007 acknowledging that Father was Child’s biological father. She testified that she
did not know until she hired a lawyer that she had only four years to contest an acknowledgment
of paternity, and that is why Child filed the petition through Mother as next friend. 4 The trial
court told Mother that she understood that Mother believes Father “is not the biological parent,
[but] he has been found by a court to be the parent of this child.” The court advised the parties
that they needed “to focus in on” the question of “whether it is in the best interest of this child
that we terminate the parental rights of [Father].”
After the presentation of evidence and an oral report from the amicus attorney regarding
the best interest of the child, the court took the matter under advisement. The court subsequently
issued an order terminating the parent-child relationship between Father and Child on the
subsection (D) ground. The court also ordered Mother to “initiate a case with the Office of the
Attorney General for the child the subject of this suit and [EH] (the biological father) within 45
days of the entry of this order.” And the court ordered that Mother “may change the name on the
child’s birth certificate from [ICG] to [ICH].” The court filed findings of fact and conclusions of
law.
Father appealed the trial court’s Final Order of Termination contending that (1) Child did
not having standing to sue for the relief granted by the trial court, (2) the evidence was factually
and legally insufficient to support the termination of Father’s parental rights, and (3) the trial
3 The DNA test was not offered into evidence and is not part of our appellate record. 4 Mother’s lawyer also represented to the trial court that “the suit was brought by the child . . . .”
–3– court erred by permitting the amicus attorney to testify at trial and by improperly considering and
making findings based on matters outside the trial record. Mother did not file a brief. The
Office of the Attorney General filed an amicus brief addressing the trial court’s order to
adjudicate EH as Child’s biological father, but none of the arguments in its brief affect the issues
on appeal.
During the pendency of this appeal, Father filed an emergency motion asking us to
suspend the operation of the trial court’s Final Order of Termination. We stayed the portions of
the Final Order of Termination that required Mother to initiate a suit to adjudicate EH as Child’s
father and permitted Mother to change Child’s name on Child’s birth certificate.
DISCUSSION
In issue one, Father argues that the trial court did not have jurisdiction to terminate his
parental rights because Child did not have standing to seek involuntary termination of Father’s
parental rights. We agree.
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). The petitioner is required to allege facts affirmatively demonstrating
the trial court has jurisdiction to hear the case. Id.
The Texas Family Code defines who has standing to file an original suit affecting the
parent-child relationship (SAPCR). In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas
2012, pet.
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VACATE and DISMISS; and Opinion Filed June 1, 2015.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-01629-CV
IN THE INTEREST OF I.C.G., A CHILD
On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-07-00258-T
MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Whitehill Opinion by Justice Lang-Miers CPG (Father) appeals the trial court’s order terminating his parental rights to ICG (Child)
arguing that the trial court did not have jurisdiction to terminate his parental rights because the
petitioner did not have standing. We agree, and we vacate the trial court’s Final Order of
Termination and dismiss the petition for want of jurisdiction.
BACKGROUND
Mother and Father were in a relationship in 2004, but were not married. Mother gave
birth to Child on December 7, 2004, and gave him Father’s last name. On December 9, 2004,
Mother and Father signed a “State of Texas Acknowledgment of Paternity” declaring “under
penalty of perjury” that Father was the biological father of Child. At some point, Mother and
Father ceased to be “girlfriend/boyfriend.” In a January 2007 order, the trial court appointed
Father and Mother joint managing conservators of Child and ordered Father to pay child support. The record reflects that over the next few years Mother and Father filed various pleadings
involving modification of child support and possession of Child.
Sometime in 2013, 1 Child filed a petition challenging Father’s acknowledgment of
paternity. Father answered, asserting a general denial and affirmative defenses of statute of
limitations, fraud, and lack of legal capacity. In early 2013, Child, through “his GUARDIAN,
NEXT FRIEND [MOTHER],” amended the petition, alleged that another man, EH, was his
biological father, and sought to change his last name to EH’s last name. Child alleged that EH
had taken a DNA test in 2007 that proved to a 99.5% probability that EH was Child’s biological
father. Child alleged that Mother “did not have sexual relations with [Father] for a minimum of
four (4) months before [Child] was conceived and in fact she was living with [EH] . . . during
those 4 months preceding the conception of [Child].” As alternative relief, Child sought
involuntary termination of Father’s parental rights under Texas Family Code section
161.001(1)(D) and (E). 2 Also in early 2013, the trial court suspended Father’s access to and
possession of Child and obligation to pay child support.
About a year later, Father moved to enforce his periods of possession and access. The
court appointed an “amicus attorney to represent the child the subject of this suit.” Meanwhile,
Father obtained new counsel and filed objections and special exceptions to Child’s amended
petition. Father also amended his answer to allege, among other things, that Child lacked
standing to obtain the relief sought in the amended petition.
The court set the matters for a bench trial. At trial, Mother presented testimony that the
acknowledgment of paternity form was presented to her “while [she] was sedated right after I
1 The original petition is not in the clerk’s record. 2 The subsection (D) ground for termination states that a parent has “knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child[.]” TEX. FAM. CODE ANN. § 161.001(1)(D) (West 2014). The subsection (E) ground for termination states that a parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]” Id. § 161.001(1)(E).
–2– had my child” and implied that Father signed it fraudulently. Mother said she “went to the AG’s
office to have the child support terminated” in 2007 and, pursuant to a conversation she had
there, paid for a DNA test for EH. 3
On cross-examination, Mother agreed that she signed documents, including a court order,
in January 2007 acknowledging that Father was Child’s biological father. She testified that she
did not know until she hired a lawyer that she had only four years to contest an acknowledgment
of paternity, and that is why Child filed the petition through Mother as next friend. 4 The trial
court told Mother that she understood that Mother believes Father “is not the biological parent,
[but] he has been found by a court to be the parent of this child.” The court advised the parties
that they needed “to focus in on” the question of “whether it is in the best interest of this child
that we terminate the parental rights of [Father].”
After the presentation of evidence and an oral report from the amicus attorney regarding
the best interest of the child, the court took the matter under advisement. The court subsequently
issued an order terminating the parent-child relationship between Father and Child on the
subsection (D) ground. The court also ordered Mother to “initiate a case with the Office of the
Attorney General for the child the subject of this suit and [EH] (the biological father) within 45
days of the entry of this order.” And the court ordered that Mother “may change the name on the
child’s birth certificate from [ICG] to [ICH].” The court filed findings of fact and conclusions of
law.
Father appealed the trial court’s Final Order of Termination contending that (1) Child did
not having standing to sue for the relief granted by the trial court, (2) the evidence was factually
and legally insufficient to support the termination of Father’s parental rights, and (3) the trial
3 The DNA test was not offered into evidence and is not part of our appellate record. 4 Mother’s lawyer also represented to the trial court that “the suit was brought by the child . . . .”
–3– court erred by permitting the amicus attorney to testify at trial and by improperly considering and
making findings based on matters outside the trial record. Mother did not file a brief. The
Office of the Attorney General filed an amicus brief addressing the trial court’s order to
adjudicate EH as Child’s biological father, but none of the arguments in its brief affect the issues
on appeal.
During the pendency of this appeal, Father filed an emergency motion asking us to
suspend the operation of the trial court’s Final Order of Termination. We stayed the portions of
the Final Order of Termination that required Mother to initiate a suit to adjudicate EH as Child’s
father and permitted Mother to change Child’s name on Child’s birth certificate.
DISCUSSION
In issue one, Father argues that the trial court did not have jurisdiction to terminate his
parental rights because Child did not have standing to seek involuntary termination of Father’s
parental rights. We agree.
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). The petitioner is required to allege facts affirmatively demonstrating
the trial court has jurisdiction to hear the case. Id.
The Texas Family Code defines who has standing to file an original suit affecting the
parent-child relationship (SAPCR). In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas
2012, pet. denied). Consequently, the petitioner “‘must plead and establish standing within the
parameters of the language used in the code.’” Id. (quoting In re M.K.S.-V., 301 S.W.3d at 464).
Whether a party has standing to pursue a cause of action is a question of law which we review de
novo. Id.
–4– In this case, the petition for involuntary termination begins, “NOW COMES [ICG], a
child by and through, his GUARDIAN, NEXT FRIEND [MOTHER] . . . .” In the opening
paragraphs, the petition defines “Petitioner” as Child, “by and through, his GUARDIAN, NEXT
FRIEND [MOTHER] . . . .” In paragraph three, the amended petition refers to the trial court’s
“continuing exclusive jurisdiction over the subject matter of this suit because . . . the court’s final
decree . . . rendered on May 23, 2011, . . . was a modification of child support and establishment
of arrearage.” Paragraph four refers to the court’s “child custody jurisdiction” under family code
section 152.201. And paragraph eight states, “Petitioner requests the involuntary termination of
the parent child relationship BETWEEN [CPG] and the child [ICG] under Tex. Family Code
§ 161.001(1)(D) and (E).”
None of the allegations in the amended petition cites a provision in the family code
giving Child standing to seek involuntary termination of Father’s parental rights. See In re
E.G.L., 378 S.W.3d at 547 (party seeking relief must plead and establish standing). Chapter 161
of the family code governs “Termination of the Parent-Child Relationship.” TEX. FAM. CODE
ANN. §§ 161.001–.211 (West 2014). Chapter 161 does not contain a provision giving a child
standing to file a SAPCR. See id. We next look to the family code’s general standing statute.
Id. § 102.003 (“General Standing to File Suit”). It states that an original SAPCR may be filed by
fourteen different persons, including:
(1) a parent of the child;
(2) the child through a representative authorized by the court;
(3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;
(4) a guardian of the person or of the estate of the child;
....
–5– Id. § 102.003(a)(1)–(14). None of the provisions of section 102.003 gives standing to a child
through the child’s mother as next friend. And the amended petition in this case is clear, and is
confirmed by Mother’s testimony and her lawyer’s representation to the trial court, that Child
filed the SAPCR and is the petitioner.
CONCLUSION
The amended petition does not plead or establish that Child has standing, and we have
not found a provision in the family code giving a child standing, to seek involuntary termination
of the child’s relationship with a parent. Because Child lacked standing, the trial court did not
obtain subject matter jurisdiction over the petition to terminate Father’s parental rights.
Consequently, we vacate the December 9, 2014 Final Order of Termination and dismiss the
amended petition seeking to involuntarily terminate Father’s parental rights for want of
jurisdiction. See TEX. R. APP. P. 43.2(e). Because of our disposition of issue one, we do not
need to reach issues two and three.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
141629F.P05
–6– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF I.C.G., A CHILD On Appeal from the 301st Judicial District Court, Dallas County, Texas No. 05-14-01629-CV Trial Court Cause No. DF-07-00258-T. Opinion delivered by Justice Lang-Miers, Justices Francis and Whitehill participating.
In accordance with this Court’s opinion of this date, we VACATE the trial court’s December 9, 2014 Final Order of Termination and DISMISS for want of trial court jurisdiction I.C.G.’s Amended Petition to Challenge Acknowledgement of Paternity in which I.C.G. sought to involuntarily terminate Cyrus Palmer Gates’s parental rights.
It is ORDERED that appellant Cyrus Palmer Gates recover his costs of this appeal from appellee Cashunda Nicholson. .
Judgment entered this 1st day of June, 2015.
–7–