Jasek v. Tex. Dep't of Family

• Decision Date: 17 August 2011
• Docket Number: No. 03–10–00812–CV.,03–10–00812–CV.
• Parties: Philip JASEK and Lorine Jasek, Appellants,v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
• Court: Texas Court of Appeals

348 S.W.3d 523

Philip JASEK and Lorine Jasek, Appellants,

v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

No. 03–10–00812–CV.

Court of Appeals of Texas, Austin.

Aug. 17, 2011.

Robert Galvin, Rob Galvin, P.C., Austin, TX, for appellants.Samuel B. Katz, Chief Appellate Prosecutor, Comal County Criminal District Attorney's Office, Rachel Linn, Assistant Criminal District Attorney, Comal County District Attorney's Office, New Braunfels, TX, for appellee.Before Justices PURYEAR, PEMBERTON, and ROSE.

OPINION

BOB PEMBERTON, Justice.

The principal issue presented in this appeal is what constitutes the “actual control” of a child that is required to establish standing to bring a suit affecting the parent-child relationship (SAPCR) under family code section 102.003(a)(9). See Tex. Fam.Code Ann. § 102.003(a)(9) (West 2008). Appellants Philip and Lorine Jasek ¹ assert that they had “actual control” of the two children affected by this case where appellee, the Texas Department of Family and Protective Services (DFPS), placed the children with the Jaseks and the children lived with the Jaseks for more than two years thereafter. DFPS argues that “actual control” turns on whether one has the legal right of control over the children, and the district court was persuaded to render an order predicated on that conclusion. We disagree with that conclusion, hold that the Jaseks satisfied the “actual control” requirement as a matter of law, and will reverse and remand.

BACKGROUND

The material facts are undisputed. In February 2007, DFPS filed a SAPCR against the biological parents of two children, K.E. and T.E., seeking to terminate the parent-child relationship. The district court issued an order of termination in January 2008 and named DFPS as K.E. and T.E.'s sole managing conservator.

In April 2007, two months after filing the termination proceeding, DFPS had placed K.E. and T.E. with the Jaseks, who were friends of the children's family according to the record. The placement was made pursuant to a DFPS “Placement Authorization” agreement that required the Jaseks to “provide for the child [ren's] daily care, protection, control, and reasonable discipline,” “enroll them in public school,” and “provide routine transportation.” The placement authorization did not allow the Jaseks to travel with the children outside of Texas or for longer than seventy-two hours without first notifying DFPS, and it required the Jaseks to “give DFPS access to information about the child[ren] at all times.” It also advised that “DFPS, at its sole discretion, may remove the child[ren] from the care giver at any time, subject to applicable court orders.”

In October 2009, Philip Jasek tested positive for marijuana. Not long thereafter, DFPS removed the children from the Jaseks' home. Before that positive drug test, both the DFPS and the Jaseks had intended to have K.E. and T.E. stay with the Jaseks permanently.

Two months later, the Jaseks filed what they styled as a “Petition in Intervention in Suit Affecting the Parent–Child Relationship” in the same cause number as the termination proceedings that had concluded in January 2008. DFPS filed a motion to strike, asserting that the Jaseks lacked standing to intervene in the termination proceeding or to file an original SAPCR regarding K.E. and T.E. After a hearing on the motion to strike, at which evidence was introduced, the district court found that—

• K.E. and T.E. had lived with the Jaseks between April 2007 and October 13, 2009;

• the Jaseks were “Fictive Kin, not a parent, foster parent, or otherwise” to the children;

• the “[p]arental rights to K.E. and T.E. were terminated on January 10, 2008”;

• DFPS had removed K.E. and T.E. from the Jaseks' home on October 13, 2009 as a result of Philip Jasek's positive marijuana test; and

• the Jaseks had filed a “Petition for Intervention in a Suit Affecting Parent–Child Relationship” on December 17, 2009, asserting standing under family code sections 102.004(b), 102.003(a)(9), and 102.005.

However, concluding that the Jaseks lacked standing under section 102.004(b) because their petition was not filed during a pending suit and that they lacked standing under section 102.003(a)(9) because they did not have “control” of the children, the district court granted DFPS's motion and struck the Jaseks' petition. The Jaseks appeal from this judgment.

DISCUSSION

In two issues, the Jaseks assert that the district court erred in granting DFPS's motion to strike because (1) they had standing to bring an original SAPCR under family code section 102.003(a)(9) and (2) they had standing to intervene in the termination case under family code section 102.004(b).

Standard of review

Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443–44 (Tex.1993). As with other issues implicating subject-matter jurisdiction, analysis of whether a party has standing begins with the plaintiff's live pleadings. See Good Shepherd Med. Ctr., Inc. v. State, 306 S.W.3d 825, 831 (Tex.App.-Austin 2010, no pet.) (citing Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004)). The plaintiff has the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the cause. Miranda, 133 S.W.3d at 225–26 (citing Texas Ass'n of Bus., 852 S.W.2d at 446). We must also consider evidence the parties presented below that is relevant to the jurisdictional issues, Bland Independent School District v. Blue, 34 S.W.3d 547, 555 (Tex.2000), including any evidence that a party has presented to negate the existence of facts alleged in the plaintiff's pleading. See Miranda, 133 S.W.3d at 227; see also Combs v. Entertainment Publ'ns, Inc., 292 S.W.3d 712, 719 (Tex.App.-Austin 2009, no pet.) (summarizing different standards governing evidentiary challenges to the existence of pleaded jurisdictional facts where such facts implicate both jurisdiction and the merits versus where they implicate only jurisdiction). If the facts relevant to jurisdiction are undisputed, as they are here, the jurisdictional determination is a matter of law. See Miranda, 133 S.W.3d at 228; Combs, 292 S.W.3d at 719.

“The Texas Legislature has provided a comprehensive statutory framework for standing in the context of suits involving the parent-child relationship.” In re H.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, no pet.) (citing Tex. Fam.Code Ann. §§ 102.003, .004, .0045, .005, .006 (West 2008)). 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. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984). The party seeking relief must allege and establish standing within the parameters of the statutory language. In re H.G., 267 S.W.3d at 123.

To the extent that the parties' issues turn on the construction of a statute, we review these questions de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective in statutory construction is to give effect to the Legislature's intent. See id. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh'g) (citing Shumake, 199 S.W.3d at 284; Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651–52 (Tex.2006)). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008) (citing Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004)); see also Tex. Gov't Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). We also presume that the Legislature was aware of the background law and acted with reference to it. See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301 (Tex.1990). We further presume that the Legislature selected statutory words, phrases, and expressions deliberately and purposefully. See Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010); Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.-Austin 2010, no pet.). Our analysis of the statutory text may also be informed by the presumptions that “the entire statute is intended to be effective” and that “a just and reasonable result is intended,” Tex. Gov't Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as “the object sought to be attained,” “circumstances under which the statute was enacted,” legislative history, “common law or former statutory provisions, including laws on the same or similar subjects,” “consequences of a particular construction,” and the enactment's “title.” Id. § 311.023(1)-(5), (7) (West 2005). However, only when the statutory text is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’ ” Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)).

Standing to intervene under family code section 102.004(b)

We begin by addressing the Jaseks' second issue, which concerns whether they have standing to intervene in the termination proceeding under family code section 102.004(b). The Jaseks' pleading, which they titled “Petition in Intervention in Suit Affecting...