
    In the Interest of J.C., a Child.
    No. 04-12-00116-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 31, 2012.
    
      Jeff Small, Law Office of Jeff Small, San Antonio, TX, for Appellant.
    Rosa Maria Gonzalez, Attorney At Law, Kevin P. Yeary, Assistant Criminal District Attorney, San Antonio, TX, for Appel-lee.
    Sitting: KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Appellants, the foster parents of J.C., appeal the trial court’s order denying their motion to dismiss for lack of standing the paternal grandparents’ petition to adopt J.C. We reverse the trial court’s order and render judgment dismissing the paternal grandparents’ suit for lack of standing.

BACKGROUND

J.C., who was born three months premature on September 4, 2010, was removed from her parents’ care and placed into the care of the Texas Department of Family and Protective Services (“the Department”). She remained in the hospital for the next two months. On November 1, 2010, J.C. left the hospital and was placed with her foster parents with whom she has remained since. After the parental rights of J.C.’s natural parents were terminated, both J.C.’s foster parents and her paternal grandparents filed in separate causes of action original petitions for adoption. The two petitions for adoption were then consolidated, and on November 4, 2011, J.C.’s foster parents filed a motion to dismiss the paternal grandparents’ adoption suit for lack of standing, arguing the paternal grandparents failed to meet the standing requirements of section 102.005 of the Texas Family Code. On February 15, 2012, after an evidentiary hearing at which the paternal grandparents testified, the trial court found that the paternal grandparents had failed to establish substantial past contact with J.C. sufficient to confer standing under section 102.005(5). Nevertheless, the trial court found that the paternal grandparents had standing to file a petition for adoption of J.C. pursuant to section 102.006(c). Therefore, the trial court denied the foster parents’ motion to dismiss. The foster parents then brought this interlocutory appeal, pursuant to former section 51.014(d) of the Texas Civil Practice and Remedies Code.

Discussion

On appeal, the foster parents argue the trial court erred in holding the paternal grandparents have standing pursuant to section 102.006(c) of the Family Code. They argue standing to file an original petition for adoption must be established pursuant to section 102.005 and that section 102.006 does not confer standing itself but instead limits those who would otherwise qualify for standing under section 102.005. Thus, they argue the trial court erred in finding that the paternal grandparents failed to meet the requirements of section 102.005 but nonetheless finding standing existed pursuant to section 102.006. We agree with the foster parents.

Section 102.005, titled “Standing to Request Termination and Adoption,” provides the following:

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by:
(1) a stepparent of the child;
(2) an adult who, as the result of a placement for adoption, has had actual possession and control of the child at any time during the 30-day period preceding the filing of the petition;
(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;
(4) an adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child; 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 Ann. § 102.005 (West Supp. 2012). Section 102.006, titled “Limitations on Standing,” provides the following:

(a) Except as provided by Subsections (b) and (c), if the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by:
(1) a former parent whose parent-child relationship with the child has been terminated by court order;
(2) the father of the child; or
(3) a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child.
(b) The limitations on filing suit imposed by this section do not apply to a person who:
(1) has a continuing right to possession of or access to the child under an existing court order; or
(2) has the consent of the child’s managing conservator, guardian, or legal custodian to bring the suit.
(c) The limitations on filing suit imposed by this section do not apply to an adult sibling of the child, a grandparent of the child, an aunt who is a sister of a parent of the child, or an uncle who is a brother of a parent of the child if 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.

Tex. Fam.Code Ann. § 102.006 (West 2008). Here, although the trial court found that the paternal grandparents had not established sufficient substantial past contact with J.C. to confer standing pursuant to section 102.005(5), it nonetheless held that the paternal grandparents had standing to bring their adoption suit pursuant to section 102.006(c). Thus, we must determine whether section 102.006(c), in and of itself, can confer standing.

Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). The Texas Legislature has provided a comprehensive statutory framework for standing in the context of suits involving the parent-child relationship. In re K.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, pet. denied). When standing to bring a particular type of lawsuit has been conferred by statute, we use that statutory framework to analyze whether the petition has been filed by a proper party. Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 528 (Tex.App.-Austin 2011, no pet.). The party seeking relief must allege and establish standing within the parameters of the statutory language. Jasek, 348 S.W.3d at 528; In re K.G., 267 S.W.3d at 123.

To the extent that the issue in this appeal turns on the construction of relevant statutes, we apply a de novo standard of review. Jasek, 348 S.W.3d at 528. Our primary objective in statutory construction is to give effect to the Legislature’s intent. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g). “Where text is clear, text is determinative of that intent.” Id. “This general rule applies unless enforcing the plain language of the statute as written would produce absurd results.” Id. “Therefore, our practice when construing a statute is to recognize that the words the Legislature chooses should be the surest guide to legislative intent.” Id. (quotation omitted). “Only when those words are ambiguous do we resort to rules of construction or extrinsic aids.” Id. Further, in considering the plain language of the text, we look at the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We also presume that the Legislature was aware of the background law and acted with reference to it. Jasek, 348 S.W.3d at 528-29. We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully. Id. Thus, for purposes of this appeal, we must look at the plain language of sections 102.005 and 102.006, and consider how these sections work together in context of the entire statutory scheme.

Section 102.005 details the standing requirements for a person filing a petition for adoption. See Tex. Fam.Code Ann. § 102.005 (West Supp.2012). Section 102.006 then limits standing where the parent-child relationship has been terminated. See id. § 102.006 (West 2008). For example, pursuant to section 102.005(5), an “adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing” may file an original suit requesting adoption. Id. § 102.005(5) (West Supp.2012). However, if the parent-child relationship between the child and every living parent of the child has been terminated and if the adult seeking the adoption is a family member of either former parent, then section 102.006 provides that the relative seeking adoption will not have standing to file the adoption suit. See id. § 102.006(a)(3) (West 2008) (“Except as provided by subsections (b) and (c), if the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by: ... (3) a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child.”). Thus, if a party has standing under section 102.005, the party may be prohibited from having standing to file an original petition pursuant to section 102.006. There are, however, exceptions to this limitation found in subsections (b) and (c) of section 102.006. According to subsection (b), the “limitations on filing suit imposed by this section do not apply to a person who: (1) has a continuing right to possession of or access to the child under an existing court order; or (2) has the consent of the child’s managing conservator, guardian, or legal custodian to bring the suit.” Id. § 102.006(b). Similarly, subsection (c) provides that the

limitations on filing suit imposed by this section do not apply to an adult sibling of the child, a grandparent of the child, an aunt who is a sister of a parent of the child, or an uncle who is a brother of a parent of the child if 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.

Id. § 102.006(c).

In reviewing the plain text of sections 102.005 and 102.006, we agree with J.C.’s foster parents that in order for a party to have standing to bring an original petition for adoption, the party must first meet the standing requirements of section 102.005. Section 102.006 does not confer standing, but instead limits which parties have standing to file a petition for adoption pursuant to section 102.005. See In re A.M., 312 S.W.3d 76, 81 (Tex.App.San Antonio 2010, pet. denied) (explaining that section 102.005 details the standing requirements for a person filing a petition for adoption and section 102.006 “limits the standing of particular individuals in cases where an original suit is filed and the parents’ rights were previously terminated”); In re C.M.C., 192 S.W.3d 866, 873 (Tex.App.-Texarkana 2006, no pet.) (explaining that “[s]ection 102.006 merely bars certain parties from filing suit who would otherwise have standing to file the suit” and holding that because the maternal grandparents lacked standing under section 102.005, there was “no need to decide whether section 102.006 prohibited [them] from filing an original petition for adoption”); In re M.G., No. 13-09-00305-CV, 2010 WL 2776566, at *2 (Tex.App.Corpus Christi 2010, no pet.) (explaining that although an adult whom the court determines has had substantial past contact with the child has standing to file an original suit requesting adoption pursuant to section 102.005(5), “section 102.006 limits standing where the parent-child relationship has been terminated”). Therefore, the trial court erred in finding that the paternal grandparents did not meet the requirements of section 102.005 but nonetheless had standing to bring their original petition for adoption pursuant to section 102.006(c). And, because the trial court has found that the paternal grandparents did not meet the requirements of section 102.005, a finding which has not been appealed, we reverse the order of the trial court and render judgment that the paternal grandparents’ suit for adoption of J.C. be dismissed for lack of jurisdiction.

Concurring Opinion by: PHYLIS J. SPEEDLIN, Justice.

PHYLIS J. SPEEDLIN, Justice,

concurring.

I concur in the judgment, but write separately because I am troubled by the circumstances these grandparents find themselves in with respect to their inability to establish standing to seek adoption of their grandchild. As the majority has noted, section 102.005 is the general statute governing standing to file an original suit for adoption of a child. Tex. Fam.Code Ann. § 102.005 (West Supp.2012). Subsection (5) requires an adult without actual possession of the child to establish “substantial past contact” with the child in order to have standing to sue for adoption. Id. § 102.005(5). Section 102.006 then sets forth three limitations on who has standing to request adoption in cases in which all parental rights have been terminated. Id. § 102.006 (West 2008). For example, subsection (a)(3) of section 102.006 prohibits a relative of either parent whose rights have been terminated, i.e., the grandparents in this case, from filing an adoption suit. Id. § 102.006(a)(3). Subsection (c), in turn, creates an exception to (a)(3)’s limitation for grandparents, among other relatives, who file an original suit or modification requesting managing conservatorship of the child no later than 90 days after the date of parental termination if the Department filed the termination suit. Id. § 102.006(c). Thus, the statutory structure consists of general standing requirements, with limitations on standing applicable to any parental termination case, and a specific exception to such limitations if the parental termination suit was filed by the Department.

At the evidentiary hearing on the foster parents’ motion to dismiss the grandparents’ adoption suit, both grandparents testified. The grandmother testified she visited J.C. at the hospital on approximately six occasions. The evidence showed that J.C., who was born premature, remained in the hospital for four to seven weeks after birth; after the Department initiated termination proceedings against J.C.’s parents, J.C. was placed with foster-adopt parents on November 1, 2010. Both the grandmother and grandfather sought to determine where J.C. had been taken, but the Department would not provide any information because their son’s parental rights had not yet been terminated. Once his parental rights were terminated in June 2011, the grandparents filed suit to adopt J.C. and the Department thereafter allowed them one hour of supervised visitation with J.C. twice a month, i.e., two hours per month. The grandparents fully exercised their visitation rights, and there was no inappropriate interaction reported. At the conclusion of the hearing, the trial court found that the paternal grandparents failed to establish “substantial past contact” with J.C. and thus did not satisfy section 102.005(5), the only general standing provision that applies in this situation. However, the trial court found that the grandparents did satisfy section 102.006(c) by filing their petition for adoption within the 90-day timeframe, and thus had standing to sue for adoption of J.C.

The majority opinion concludes that section 102.006(c) does not separately confer standing in the absence of compliance with one of the subsections of the general standing statute, section 102.005; therefore, because the grandparents failed to satisfy section 102.005, the grandparents lack standing and their suit for adoption must be dismissed. Based on the structure of the two statutes, when read together, I agree with the majority’s interpretation. I am troubled, however, by the inequitable position in which such statutory interpretation places these grandparents — unable to show “substantial past contact” with their grandchild because the Department removed the child from her birth parents shortly after birth and severely restricted access by the grandparents. In situations like this where the Department removes an infant and terminates parental rights, restricting grandparent access during the process, it is practically impossible, absent the Department’s approval, for a grandparent to establish substantial past contact sufficient to satisfy section 102.005(5) and attain standing to sue for adoption of the grandchild, even if they comply with section 102.006(c). It seems unlikely that the legislature intended this harsh result, or intended to give the Department such unchecked authority. Cf. In re A.M., 312 S.W.3d 76, 89 (Tex.App.-San Antonio 2010, pet. denied) (Marion, J., concurring).

As the United States Supreme Court has recognized, there is a fundamental liberty interest in the parent-child relationship that extends to grandparents, as well as other traditional relatives, under certain circumstances. See Moore v. City of E. Cleveland, 431 U.S. 494, 504-05, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In construing the applicable standing requirements for adoption, we must strike a balance between the State’s legitimate interest in promoting the welfare of the child by establishing a stable permanent home and the private liberty interest of a grandparent or other relative seeking to provide such a home to the child. See In re A.M., 312 S.W.3d at 87. Given the statutory construction mandated by the structure of sections 102.005 and 102.006, and the inequitable result reached in this case, I respectfully urge our legislature to clarify the interplay between section 102.006(c)’s exception and section 102.005(5)’s general standing requirement of “substantial past contact” in situations such as this one where the child is removed by the Department shortly after birth and relatives’ access is restricted.

Concurring Opinion by: STEVEN C. HILBIG, Justice.

STEVEN C. HILBIG, Justice,

concurring.

I agree with the reasoning expressed by Justice Angelini in her opinion and concur in the judgment. I also agree with the concerns expressed by Justice Speedlin in her concurring opinion.' I write separately to express my concern about the result reached in this case.

Justice Angelini correctly sets forth the standard by which we are to interpret statutes. Based on a plain reading of the relevant statutes, the paternal grandparents were required to establish standing by demonstrating they had substantial past contact with J.C. See Tex. Fam.Code Ann. § 102.005(5) (West Supp.2012). The record contains evidence that the grandparents sought to have contact with J.C. while J.C. was in the hospital and before the parental rights were terminated, but the Department failed to provide any information about J.C. or her location to the paternal grandparents. The grandfather testified that the Department “didn’t want to give us visits. We had to go back to court until they decided to give us visits.” He also testified that he and the grandmother would have visited J.C. more often, but the Department did not allow it. The grandmother testified that she wanted to visit J.C., but the Department kept her away despite her repeated requests.

I am troubled because it appears a government agency prevented the paternal grandparents from having the opportunity to establish standing by denying them the opportunity to have substantial past contact. As Justice Speedlin asserts in her concurrence, under certain circumstances, “a fundamental liberty interest in the parent-child relationship” extends to grandparents. Concurring Opinion, at 241-42. While the exact parameters of this interest have not been established, it seems fundamentally unfair to deny standing to a grandparent when government action prevented the actions or activity necessary to establish the right to be considered for adoption. 
      
      . Both petitions for adoption allege that J.C. was born on September 3, 2010. At the hearing, there was testimony that she was born on September 4, 2010.
     
      
      . We are not suggesting that section 102.006 limits standing only with respect to section 102.005.
     
      
      . We note that although the paternal grandparents have not hied an appellees' brief, the Department has filed a brief, which does not take a position on whether the paternal grandparents have standing but nonetheless requests we consider whether they do pursuant to sections 102.003, 102.004, and 153.432 of the Texas Family Code. After reviewing the statutes, the clerk’s record, and the reporter’s record of the evidentiary hearing, we conclude that the paternal grandparents do not have standing pursuant to these statutes.
     
      
      . Although the only issue presented in this appeal is one of pure statutory construction, I am also sensitive to the concerns expressed in the concurring opinions.
     