IN RE: JOHN AND LESLI HOOVER (2017)

MEMORANDUM OPINION

Relators have brought this petition for a writ of mandamus in connection with several proceedings in which they seek to adopt a child. Relator, Leslie Hoover, is the child's maternal aunt. The instant mandamus petition arises from an order denying relators' claim of standing to intervene in a district court action more than ninety days after the district court entered an order terminating the rights of the child's natural parents. For the reasons that follow, we deny the petition.

Background

The child at issue is in foster care and under supervision of the Texas Department of Family and Protective Services (TDFPS). On November 12, 2015, the district court announced its order terminating the rights of the child parents in an action brought for that purpose (“the termination case”). Meanwhile, the child's foster parents had instituted an adoption suit, which was consolidated with the termination case.

Relators timely filed a “Petition in Intervention in Suit Affecting Parent-Child Relationship” in the foster parents' original adoption suit, which was carried into the termination proceeding as a result of the consolidation. By their intervention Relators sought sole managing conservatorship of the child and asserted standing under Texas Family Code section 102.004(a), which provides that certain relatives of the child may file suit requesting managing conservatorship of the child if the order is “necessary because the child's present circumstances would significantly impair the child's physical health or emotional development.” TEX. FAM. CODE ANN. § 102.004(a)(1) (West 2014). TDFPS moved to strike relators' intervention on August 26, 2016. The court granted the motion and struck the intervention on November 7, 2016. As the foster parents had non-suited their request for adoption in the termination case, the order denying the intervention resulted in a final judgment. Relators did not appeal that order and do not complain about that order here.

Before the court struck the intervention in the consolidated cause, relators filed an independent Petition for Kinship Adoption on October 21, 2016, which was assigned its own cause number. TDFPS filed a plea to the jurisdiction in the kinship adoption suit, arguing that relators' standing was limited by section 102.006 of the family code. TDFPS argued that the adoption suit was filed more than 90 days after the court terminated the parental rights of the biological parents and, as such, section 102.006(c) could not apply to give relators the standing necessary to seek a kinship adoption. The court granted the plea to the jurisdiction on May 19, 2017 and this proceeding followed.

Standard for Mandamus Relief

To be entitled to mandamus relief, a relator generally must show both that the trial court has clearly abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

Applicable Law

Section 102.005 of the Texas Family Code details the standing requirements for a person filing a petition for adoption. TEX. FAM. CODE ANN. § 102.005 (West 2014). Although section 102.005 provides that an original suit requesting adoption may be filed by an “adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so,” the next proceeding section, 102.006, goes on to limit standing in cases where the parent-child relationship has been terminated by order of the court. In re J.C., 399 S.W.3d 235, 239–40 (Tex. App.—San Antonio 2012, no pet.); In re M.G., No. 13–09–00305–CV, 2010 WL 2776566, at *2 (Tex. App.—Corpus Christi 2010, no pet.). Generally, relatives of terminated parents do not have standing to file an original suit concerning the child. TEX. FAM. CODE ANN. § 102.006(a)(3) (West 2014). However, section 102.006(c) provides the following exception to this bar where:

the adult sibling, grandparent, aunt, or uncle files an original suit or a suit for modification requesting managing conservatorship of the child not later than the 90th day after the date the parent-child relationship between the child and the parent is terminated in a suit filed by the Department of Family and Protective Services requesting the termination of the parent-child relationship.

In re J.C., 399 S.W.3d at 239–40 (citing TEX. FAM. CODE ANN. 102.006(c)).

Analysis

Here, the parental rights of the child's parents were terminated. Relator Lesli Hoover is the child's maternal aunt. As such, section 102.006 prohibited relator from seeking to adopt the child unless she fit within its exception. Relator points to her intervention in the foster parents' earlier, original adoption suit shortly before its consolidation into the termination proceeding,¹ noting that this pleading was filed within 90 days of the date the court terminated the parental rights of the child's parents. Citing no authority, she argues that the filing of her kinship adoption proceeding relates back in time to the filing of her attempted intervention in what became the termination proceeding – notwithstanding the order striking her intervention or the end of that case – so as to permit her to take advantage of the section 102.006(c) exception in this new proceeding.

We disagree. Relators filed the kinship adoption suit more than 11 months after the order terminating parental rights. Nothing in the plain language of section 102.006(c) would suggest that the exception it makes would reach to a failed petition in intervention in another case. See In re M.G., 2010 WL 2776566, at *2–3 (affirming dismissal of adoption suit filed more than 90 days after parental termination and holding that petition for adoption did not relate back to previously-filed and dismissed SAPCR petition). Moreover, Relators' original petition in intervention and first amended petition in intervention requested possession of and access to the child and asked to be appointed sole managing conservators or possessory conservators of the child. The petition for kinship adoption was the first filing in which relator sought to adopt her niece and it was filed nearly almost a year after the court terminated parental rights and was, therefore, well outside of the 90-day window under section 102.006(c). Relators' petition for adoption was filed too late and, as such, section 102.006(c) did not apply. The trial court did not abuse its discretion in dismissing relators' suit.

Accordingly, we deny relators' petition for writ of mandamus.

FOOTNOTES

1.   Though not relevant to our analysis here, the foster parents also intervened in relators' kinship adoption proceeding to join in TDFPS's standing challenge and to reassert their own request for adoption.

DAVID J. SCHENCK JUSTICE