Jasek v. Texas Department of Family & Protective Services
348 S.W.3d 523
| Tex. App. | 2011Background
- DFPS filed a SAPCR in Feb 2007 seeking termination of parental rights and named DFPS as sole managing conservator in Jan 2008.
- In Apr 2007, DFPS placed K.E. and T.E. with the Jaseks under a Placement Authorization that required care but did not give legal decision rights to the Jaseks.
- In Oct 2009, DFPS removed the children from the Jaseks after Philip Jasek tested positive for marijuana; prior plans had been for permanent placement with the Jaseks.
- In Dec 2009, the Jaseks filed a Petition in Intervention asserting standing under 102.003(a)(9) and seeking appointment as managing conservators; they also referenced 102.004(b).
- The district court struck the petition, ruling the Jaseks lacked standing and there was no pending suit to intervene; the Jaseks appealed.
- The Texas Court of Appeals held: the Jaseks had standing under 102.003(a)(9) to file an original SAPCR based on actual care, control, and possession for six+ months ending within 90 days of filing; 102.004(b) did not apply because no pending suit existed; the case is remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jaseks had standing to intervene under 102.004(b). | Jaseks had substantial past contact and a pending suit to intervene; placement proceedings kept the case adaptable. | There was no pending suit to intervene; 102.004(b) requires a pending proceeding. | No standing to intervene under 102.004(b). |
| Whether Jaseks had standing to bring an original SAPCR under 102.003(a)(9) based on actual care, control, and possession. | Jaseks had lived with and cared for the children for over two years, satisfying actual care, control, and possession. | Actual control required a legal right to control; DFPS retained ultimate legal authority. | Jaseks had standing under 102.003(a)(9) to file an original SAPCR based on actual control, care, and possession. |
Key Cases Cited
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 1999) (fair notice standard for pleading sufficiency; notice suffices if adequate to prepare a defense)
- In re Kelso, 266 S.W.3d 586 (Tex.App.-Fort Worth 2008) (stands for limits on 102.003(a)(9) standing based on relinquishment of care and control)
- In re K.K.C., 292 S.W.3d 788 (Tex.App.-Beaumont 2009) (ex-boyfriend lacked standing where no ultimate right to control child; discusses 102.003(a)(9) vs other standing provisions)
- In re M.J.G., 248 S.W.3d 753 (Tex.App.-Fort Worth 2008) (possession focus; informs limits of 102.003(a)(9) standing)
- In re Derzapf, 219 S.W.3d 327 (Tex. 2007) (grandparent-access context; discusses interplay of standing provisions)