In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-21-00251-CV
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IN RE J.G. AND A.G.
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Original Proceeding
County Court at Law of Orange County, Texas
Trial Cause No. C200555-D
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MEMORANDUM OPINION
J.G. and A.G., Relators, filed a petition for a writ of mandamus and a motion
for temporary relief. See Tex. R. App. P. 52; see also Tex. Gov’t Code Ann. §
22.221. Relators ask this Court to stay the trial set for September 2, 2021, on a
petition for termination of parental rights filed by the Texas Department of Family
and Protective Services (“the Department”), to compel the trial court to vacate an
order striking Relators’ petition in intervention for lack of standing, and require the
trial court to conduct a trial on the merits of their petition for termination and
adoption. We deny the petition for mandamus and the motion for temporary relief.
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On September 22, 2020, the Department filed Trial Cause Number C200555-
D, In the Interest of S.C., an Original Petition for Protection of a Child, For
Conservatorship, and For Termination in Suit Affecting the Parent-Child
Relationship. In the suit, the Department sought termination of the parental rights of
F.N.J. and D.C. and appointment of the Department as sole managing conservator
of S.C. On April 26, 2021, Relators filed an Original Petition in Intervention and for
Termination of Parental Rights. They alleged standing as adults who have had actual
possession and control of S.C. for not less than two months during the three-month
period preceding the filing of the petition. See Tex. Fam. Code Ann. § 102.005(3).
The Department moved to strike and dismiss the plea in intervention. The
Department argued that Relators cannot maintain standing under section 102.005(3)
because a specific standing statute applies to foster parents and Relators cannot
establish standing under that section. Compare Tex. Fam. Code. Ann. § 102.005(3),
with § 102.003(a)(12). The Department further argued that section 102.005 did not
apply because the Department did not seek adoption in its petition.
On July 8, 2021, the trial court signed an order striking the intervention and
dismissing Relators as parties to the case.
On August 31, 2021, Relators filed their mandamus petition in this Court.
They argue that because S.C. was placed in their home on October 23, 2020, and
removed on April 9, 2021, when they filed their petition in intervention on April 26,
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2021, they had standing to sue for termination and adoption because they had actual
possession and control of S.C. for the period required by section 102.005(3). They
also claim the trial court abused its discretion in the permanency hearing by
considering only the length of time in placement when considering the best interest
of the child. Relators argue that an appeal is inadequate as a remedy for the trial
court’s alleged error in granting the motion to strike their intervention because the
case will proceed to final judgment without them, and they suggest S.C.’s adoption
will likely be consummated before an appeal could be resolved.
To obtain extraordinary relief in a writ of mandamus, Relators must show that
the trial court abused its discretion and there is no adequate remedy by appeal. See
In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). In determining whether appeal is an adequate remedy, we consider
whether the benefits outweigh the detriments of mandamus review. In re BP Prods.
N. Am., Inc., 244 S.W.3d 840, 845 (Tex. 2008) (orig. proceeding).
When a person intervenes before the trial court signs a final judgment and the
trial court strikes a petition in intervention, the intervening party dismissed from the
suit may appeal from the final judgment. See Kenneth D. Eichner, P.C. v.
Dominguez, 623 S.W.3d 358, 362 (Tex. 2021). Relators argue that they will lack a
realistic avenue to perfect an appeal because they will not receive notice of future
proceedings. But they filed their mandamus petition two days before the trial will
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commence, and the Rules of Appellate Procedure allow a party to a civil case to file
a notice of appeal before the trial court signs the judgment. See Tex. R. App. P.
27.1(a). The Department’s suit is subject to a dismissal date of September 27, 2021.
Termination of the parental rights of F.N.J. and D.C. is before the trial court in a trial
that will begin on September 2, 2021. But the record in the mandamus proceeding
fails to show that any party other than Relators have filed a claim for adoption. Thus,
by striking the intervention, there is no longer any active claim seeking the adoption
of S.C. Should Relators be successful in an accelerated appeal from the final
judgment that will decide the issues involved in the Department’s petition, the
Relators will be able to appeal and if successful, the trial court will be required to
consider their claim on remand.
Under the circumstances, we conclude the Relators have not shown that
appeal from the final judgment will not provide an adequate remedy. In this opinion
we neither consider nor decide whether Relators established standing to file a
petition for termination and adoption. We deny the petition for a writ of mandamus
and motion for temporary relief. See Tex. R. App. P. 52.8(a), 52.10.
PETITION DENIED.
PER CURIAM
Submitted on September 1, 2021
Opinion Delivered September 1, 2021
Before Golemon, C.J., Kreger and Horton, JJ.
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