IN THE INTEREST OF CHILD v. << (2026)

OPINION

In this appeal from the termination of her parental rights to L.S. (Liam), Mother challenges Foster Mother and Foster Father's standing to file a suit affecting the parent-child relationship (SAPCR).¹ Concluding that the trial court correctly determined that Foster Parents had standing to seek termination and adoption under section 102.005, and as a matter of first impression, that section 102.0031's affidavit requirement does not apply to nonparents who satisfy section 102.005, we affirm.²

BACKGROUND

Because Mother's arguments on appeal concern Foster Parents' standing rather than the merits of the trial court's termination decision, a lengthy recitation of facts is unnecessary. Liam was born on March 10, 2022, while Mother was incarcerated. Liam has lived continuously with Foster Parents since April 2022.³ In October 2022, Foster Parents filed an original petition seeking to terminate Mother's parental rights to Liam. Later, Foster Parents amended their petition to seek adoption. The case proceeded to trial, and on May 12, 2026, the trial court signed an order terminating Mother's parental rights to Liam and appointing Foster Parents as joint managing conservators.⁴ Mother appeals.

ISSUES AND ANALYSIS

Mother did not challenge Foster Parents' standing in the trial court. For the first time on appeal, she argues that Foster Parents lacked standing under either section 102.003(a)(9) or 102.003(a)(12), or that they lost standing under those provisions by failing to file an affidavit as required by section 102.0031.

In response, Foster Parents contend that: (1) Mother has waived any standing challenges; (2) the trial court expressly found that Foster Parents had standing under section 102.005, a finding unchallenged by Mother in her opening brief; and (3) section 102.0031's nonparent affidavit requirement does not apply to those with standing under section 102.005. We reject Foster Parents' waiver arguments but agree with the remainder of their contentions.

A. Standard of Review and Applicable Law

Standing is a component of subject matter jurisdiction and is a threshold issue in a custody proceeding. In re K.D.H., 426 S.W.3d 879, 882 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). As part of subject matter jurisdiction, standing cannot be waived and may be raised for the first time on appeal by the parties or by the court sua sponte.⁵ In re E.G., No. 14-14-00967-CV, 2016 WL 1128137, at *3 (Tex. App.—Houston [14th Dist.] Mar. 22, 2016, no pet.) (mem. op.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); In re A.C.F.H., 373 S.W.3d 148, 150 (Tex. App.— San Antonio 2012, no pet.)). Standing is a question of law we review de novo. In re H.S., 550 S.W.3d at 155. In evaluating standing, we construe the pleadings in the plaintiff's favor and consider relevant evidence offered by the parties. Id.

The Texas Legislature has provided a comprehensive framework for standing in the context of suits involving the parent-child relationship. In re K.S., 492 S.W.3d 419, 423 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). When standing is conferred by statute, we use that statutory framework to analyze whether the petition has been filed by a proper party. Id. The party seeking relief must allege and establish standing within the parameters of the language used in the statute. Id.

Statutory interpretation presents a question of law subject to de novo review. Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). When interpreting statutes, we presume the legislature's intent is reflected in the words of the statute and give those words their fair meaning. In re H.S., 550 S.W.3d at 155. We analyze statutes “as a cohesive, contextual whole, accepting that lawmaker-authors chose their words carefully, both in what they included and in what they excluded.” Id. (quoting Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017)). We presume that the legislature intended the entire statute to be effective. Vitol, Inc. v. Harris Cty. Appraisal Dist., 529 S.W.3d 159, 168 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Another fundamental principle of statutory construction is that, when construing a statute, a reviewing court must consider the act as a whole and not just as single phrases, clauses, or sentences. Fredericksburg Care Co. v. Perez, 461 S.W.3d 513, 520 (Tex. 2015). We must give effect to each provision of a statute so that none is rendered meaningless or mere surplusage. TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).

B. Standing under Section 102.005

In their live pleading, Foster Parents asserted that they were not related to Liam but had “standing to bring this suit under Texas Family Code section 102.003(a)(12), inasmuch as they are the foster parents of this child, the child was placed in their home by the Department of Family and Protective Services, and the child has remained in their care for over 12 months.” Alternatively, Foster Parents claimed standing “under Texas Family Code section 102.003(a)(9), inasmuch as they have had actual care, control, and possession of the child for at least six months ending no more than 90 days preceding the date of the filing of this petition.” Mother's first two issues concerning Foster Parents' standing under these subsections, respectively. However, in its termination order, the trial court expressly found that Foster Parents had standing under section 102.005:

The Court finds that [Foster Parents] filed their Petition to Terminate Parent-Child Relationship on October 19, 2022. The Court further finds that at the time that the Petition to Terminate Parent-Child Relationship was filed [Foster Parents] had 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 and that they had substantial past contact with the child sufficient to warrant standing to request termination of the parent-child relationship joined with a petition for adoption in accordance with Texas Family Code § 102.005.

We consider whether the record supports the trial court's finding of standing under section 102.005, and if so, we need not address Foster Parents' standing under section 102.003(a)(12) or (a)(9). See, e.g., In re I.H., No. 14-26-00463-CV, 2026 WL 3132249, at *9 & n.5 (Tex. App.—Houston [14th Dist.] Oct. 20, 2026, no pet. h.) (mem. op.) (describing section 102.005 as an independent basis for standing); In re E.G., 2016 WL 1128137, at *2 (explaining that section 102.005 “confers standing on an individual who may not have standing under section 102.003 (the more general provision governing standing)”); see also Tex. R. App. P. 47.1.

Section 102.005 details the standing requirements for a person filing “[a]n original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption.” Tex. Fam. Code § 102.005. The version of section 102.005 in force at the time of Foster Parents' suit provided that “[a]n original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by ․ (3) an adult who has 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 ․ or (5) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.” Tex. Fam. Code § 102.005(3), (5).⁶ The record reflects—and Mother does not dispute—that Liam has lived exclusively with Foster Parents since April 2022, a few weeks after his birth. See, e.g., In re M.J.R.B., No. 12-11-00004-CV, 2012 WL 4502433, at *2–3 (Tex. App.—Tyler Sept. 28, 2012, no pet.) (mem. op.) (holding that foster parents with whom child had lived for seven months prior to filing of suit met standing requirements under both subsections (3) and (5) of section 102.005).

Mother argues that “control must mean more than the control that is implicit in having care and possession of the child” and suggests that Foster Parents lacked standing under section 102.005(3) because they had no “legal” control of Liam.⁷ However, the Texas supreme court rejected this argument in interpreting the meaning of “actual care, control and possession of the child” under section 102.003(a)(9). See In re H.S., 550 S.W.3d at 160 (“The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.”).

Mother also argues that the trial court erred in finding standing under section

102.005 because Foster Parents did not specifically identify that section as a basis for standing in their pleadings.⁸ Mother raised no challenges to Foster Parents' pleadings in the trial court. Regardless, Foster Parents' second, third, and fourth amended petitions all stated that they sought termination of Mother's parental rights and adoption of Liam. And in an affidavit attached to her fourth amended petition (the live pleading), Foster Mother stated that Liam had lived with her and Foster Father since April 4, 2022. Thus, we conclude that Foster Parents' petition alleged facts sufficient to show that they 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” as contemplated by section 102.005(3) and “substantial past contact” with Liam as contemplated by section 102.005(5). See In re D.A., No. 02-14-00265-CV, 2015 WL 510255, at *3 (Tex. App.—Fort Worth Feb. 5, 2015, no pet.) (mem. op.) (concluding trial court erred in finding grandmother lacked standing; although she did not identify specific statute under which she sought standing, her affidavit outlined facts establishing “substantial past contact” under 102.005(5)).

We overrule Mother's first and second issues.

C. Affidavit Required by Section 102.0031

Mother's third issue concerns recently enacted section 102.0031,⁹ titled “Required Affidavit for Standing of Nonparent”:

(a) A nonparent who files or intervenes in a suit affecting the parent-child relationship in which another party to the suit is a parent of the child shall execute and serve with the nonparent's initial pleading an affidavit that:

(1) attests, based on the nonparent's personal knowledge or representations made to the nonparent by a person with personal knowledge of the matter, that denying the relief sought would significantly impair the child's physical health or emotional development; and

(2) contains facts that support the allegation under Subdivision (1).

(b) The court shall deny the relief sought and dismiss the suit or strike the intervention, as applicable, unless the court determines, based on the affidavit, that the affidavit contains facts adequate to support the allegation under Subsection (a)(1).

Tex. Fam. Code § 102.0031. In her opening brief, Mother argues that even if Foster Parents had standing under section 102.003(12) or section 102.003(9) as they alleged in their petition, they lost standing under either provision by failing to file the affidavit required by section 102.0031. In response, Foster Parents argue that section 102.005 provided an independent basis for standing, and the affidavit requirement does not apply to that provision. In her reply, Mother contends that section 102.0031 applies to all suits filed by nonparents where a parent is a party. We agree with Foster Parents.

This is an issue of first impression. At the time of this opinion, only two cases have meaningfully discussed section 102.0031. See In re S.N., No. 02-25-00525-CV, 2025 WL 3713587 (Tex. App.—Fort Worth Dec. 22, 2005, orig. proceeding); In re L.S., No. 02-26-00574-CV, 2026 WL 3011028 (Tex. App.—Fort Worth Oct. 6, 2026, orig. proceeding) (mem. op.). Both cases described section 102.0031 as “effectively add[ing] an additional requirement to former Section 102.003(a)(9).” See In re S.N., 2025 WL 3713587, at *3 n.2; In re L.S., 2026 WL 3011028, at *2. Neither case concerned the interplay between section 102.0031 and section 102.005, if any.

Our primary goal in construing a statute is to give effect to the legislature's intent. See Martin, 498 S.W.3d at 74. In determining legislative intent, we may look to the language of the statute, its legislative history, the nature and object to be obtained, and the consequences that would follow from alternate constructions. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Section 102.0031 was part of a series of amendments to the Family Code that began with Senate Bill 2052. The Statement of Intent for Senate Bill 2052 explained that with these amendments, the legislature sought to codify the Texas supreme court's ruling in In re C.J.C., 603 S.W.3d 804 (Tex. 2020) (orig. proceeding), and to “clarif[y] that suits by nonparents requesting conservatorship, possession, or access to the child must overcome the presumption that a parent acts in the best interest of the parent's child and it is in the best interest of a child to be in the care, custody, and control of a parent.” Senate Comm. on Jurisprudence, Bill Analysis, Tex. S.B. 2052, 89th R.S. (2025). In re S.N. provides a concise summary of In re C.J.C.:

The question that the majority and concurring opinions in In re C.J.C. addressed is what [a nonparent] needed to show before the trial court could properly appoint him as a possessory conservator with visitation rights. Despite the absence of supporting language in the applicable statute, [603 S.W.3d at] 813, the majority concluded that the father was entitled to a presumption that he was a fit parent and was acting in [the child's] best interest and that [nonparent] had presented no evidence to rebut either presumption, id. at 819–20.

2025 WL 3713587, at *6.

As Foster Parents point out, this case does not concern conservatorship, possession, or access—the considerations at issue in In re C.R.C.—but termination and adoption. Standing to seek termination and adoption is governed by an entirely different statutory provision: section 102.005. While section 102.003 concerns “general standing” to file a SAPCR, section 102.005 deals with a specific type of SAPCRs: those seeking only termination and adoption. See In re I.H., 2026 WL 3132249, at *10; In re E.G., 2016 WL 1128137, at *2. If the legislature wanted to impose the affidavit requirement on suits seeking termination and adoption, it could have done so. See In re K.D.H., 426 S.W.3d at 884–85 (discussing legislature's decision to provide another basis for standing in addition to the standing afforded by section 102.003). Indeed, a similar provision exists within the grandparent access statute. See Tex. Fam. Code 153.432; see also In re S.N., 2025 WL 3713587, at *4 (discussing “nearly identical language” in section 153.432). In the absence of a clear legislative intent to impose section 102.0031's affidavit requirement on those claiming standing under section 102.005, we decline to do so. See Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013) (“We must take the Legislature at its word, respect its policy choices, and resist revising a statute under the guise of interpreting it.”).

We overrule Mother's third issue.

CONCLUSION

We affirm the trial court's judgment.

FOOTNOTES

1.   “Liam” is a pseudonym. We use fictitious names to identify the minor and other individuals involved in this case. Tex. R. App. P. 9.8.

2.   All references herein are to the Texas Family Code.

3.   Mother signed a Temporary Placement Agreement giving Loving Houston Adoption Agency the right to arrange foster care for Liam. The Texas Department of Family and Protective Services was not involved in the underlying proceedings. At the time that Foster Parents initiated suit against Mother, no orders concerning Liam were in place.

4.   The trial court also terminated the parental rights of Liam's unknown father.

5.   We recognize that in In re J.W.G., No. 14-17-00389-CV, 2017 WL 5196223 (Tex. App.—Houston [14th Dist.] Nov. 9, 2017, pet. denied) (mem. op.), this court held that the Department could not challenge whether a grandfather met the statutory requirements for maintaining suit under the Family Code for the first time on appeal. Id. at *6 (citing In re K.S., 492 S.W.3d 419, 423 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)). In so holding, we distinguished constitutional standing, which can never be waived and may be raised by a party or court at any time, even on appeal, from statutory restrictions on who can bring suit, which “affect a plaintiff's right to relief rather than the court's jurisdiction.” Later, the Texas supreme court decided In re H.S., which also concerned a grandparent's ability to maintain a suit under the Family Code. 550 S.W.3d 151, 152 (Tex. 2018). In re H.S. characterized the issue as one of standing—not statutory prerequisites to suit—and reiterated the familiar principle that without standing, a court lacks subject matter jurisdiction. Id. at 155. Based on this language, we decline to hold that Mother has waived her standing challenges.

6.   This section of the Family Code was amended effective September 1, 2025. Foster Parents filed suit on October 18, 2022, before the effective date of the amendments. We therefore apply the former law, and all citations to the Family Code in this opinion (other than citations to Section 102.0031, discussed below) are to the version effective prior to the September 1, 2025 amendments.

7.   Mother contends that without imposing some legal aspect to the definition, of control, a kidnapper could have standing to sue for termination and adoption under section 102.005(3), “so long as he kept the child for two months prior to filing suit despite doing so without superior legal right to the child or consent of the parent.” Maybe so, at least under former section 102.005(3). But that is a problem for the legislature, not the courts. See In re K.D.H., 426 S.W.3d 879, 884–85 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (recognizing legislature's policy choice in enacting section 102.004 to expand standing to those who may not have standing under section 102.003). In any event, the current version of section 102.005 is much narrower than the former. See Tex. Fam. Code § 102.005 (current version).

8.   Foster Parents argue that Mother waived any challenge to a finding of standing under section 102.005 by failing to address it in her opening brief. After Foster Parents raised the issue of section 102.055 in their brief, Mother addressed it in her reply. Therefore, Mother did not waive her section 102.005 arguments. See Tex. R. App. P. 38.3 (“The appellant may file a reply brief addressing any matter in the appellee's brief.”) (emphasis added).

9.   Section 102.0031 was effective September 1, 2025, and applies not only to suits filed after that date, but also to “a suit affecting the parent-child relationship that is pending in a trial court on or after the effective date.” Act of May 15, 2025, 89th Leg., R.S., ch. 236, §§ 4–5, 2025 Tex. Sess. Law Serv. Ch. 236 (to be codified at Tex. Fam. Code § 102.0031).

Ken Wise Justice