Justice, concurring in part, dissenting in part.
The majority concludes that standing can be challenged through means other than summary judgment and that the *874Topes lacked substantial contact with the children as a matter of law. I concur that standing can be challenged through procedural means other than a motion for summary judgment. I respectfully dissent in part, however, because I believe a fact issue exists concerning whether the Topes had substantial past contact with their grandchildren.
A Fact Issue Exists Concerning Substantial Past Contact
I agree with the majority that the standard of review is de novo. I disagree, though, that there is no fact issue concerning substantial past contact. If a fact issue exists, the trial court is prohibited from granting the plea to the jurisdiction and the fact issue must be presented to the fact-finder at trial. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.2004); see County of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex.2002). The trial court is only permitted to rule on the fact issue as a matter of law.
I also agree with the majority that what constitutes “substantial past conduct” must be a flexible standard to encompass unforeseeable situations. See Rodarte v. Cox, 828 S.W.2d 65, 69-70 (Tex.App.-Tyler 1991, writ denied). And, while the majority admits that the determination of whether “substantial past contact” has occurred is a fact-intensive inquiry, it concludes the contact in this case was not sufficient to be substantial contact as a matter of law. I disagree.
"While there may be those circumstances where “substantial past contact” does not exist as a matter of law, this case is not one of them. Reasonable people could disagree on whether regular correspondence, monthly telephone calls, and the sending of gifts and cards for special occasions and holidays by grandparents in Montana to their grandchildren in Texas, and personal contact by those grandparents with one of their grandchildren on two occasions, constitute “substantial past contact.” This evidence is enough to create a fact issue.
The majority points out that, under Section 102.005(4), the Topes have the same status as any adult with “substantial past contact.” I agree that grandparents are not specifically listed in that provision as having standing to file a petition for adoption. I disagree, however, with the majority’s conclusion that the Topes’ status as grandparents is of no legal consequence in determining whether they have standing. (See slip opinion, p. 8, footnote 6). Their status as grandparents is a fact that cannot be ignored, and should be affirmatively considered, along with all other facts, in determining substantial past contact. It is at least relevant in weighing the grandparents’ testimony on this issue.
The majority also states that, “Texas cases in which substantial past contact has been found have involved considerably more contact than the contact alleged in this case,” and cites a number of such cases in a footnote. However, the finding of substantial past contact in each and every case cited was made after a full trial on the merits, not at a preliminary hearing on a plea to the jurisdiction. This is what the Topes are entitled to in this case — to have this issue submitted to a fact-finder. They may not prevail, but they are entitled to have their day in court. I would sustain the Topes’ second point of error.
The Trial Court Abused its Discretion in Holding the Hearing Before Discovery
According to CPS, the Topes lack standing because the children’s parents had their parental rights terminated before the suit. See Tex. Fam.Code Ann. § 102.006 (Vernon 2002). CPS, though, could consent to the adoption under one of the exceptions to this limitation on standing. See id. Despite a prior request to CPS to *875be notified of any proceedings,12 the Topes were not notified by CPS concerning the parental termination proceedings.13 The Topes did not learn of the termination of Melissa Cole’s and her husband’s parental rights until January 5, 2005. Lindsay contacted CPS and was informed there was nothing she could do. It is undisputed that CPS did not undertake a home study on the Topes or request that Montana CPS undertake such a study. The record contains no evidence concerning why CPS withheld consent to the adoption. The Topes argue the trial court should have waived the requirement of consent because Brazoria County is withholding consent without good cause and waiver of the consent would be in the best interests of the children. Chapman v. Home, 561 S.W.2d 265, 267 (Tex.Civ.App.-Fort Worth 1978, no writ) (court can waive consent under former Section 16.04 of Texas Family Code). The trial court found there was no evidence the “movant’s failure to consent to respondents’ petition for adoption was not in good faith.”
I believe the trial court abused its discretion in ruling on the motion before discovery. “Whether a determination of subject-matter jurisdiction can be made in a preliminary hearing or should await a fuller development of the merits of the case must be left largely to the trial court’s sound exercise of discretion.” Bland In-dep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to guiding rules and principles. Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex.App.-Austin 2004, no pet.). The trial court may have been able to waive the requirement that a managing conservator consent to the filing of the adoption petition if the consent was withheld without good cause and waiver of consent is in the best interest of the child.14 Discovery is intended to prevent “trial by ambush.” See Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex.1987). Without discovery, a ruling on whether Brazoria County withheld consent without good cause is premature. Further, whether the waiver of consent is in the best interests of the children is clearly a fact issue which must be decided by the fact-finder. I would sustain the Topes’ third point of error.
Conclusion
Although I concur with the majority that standing can be challenged through procedural means other than summary judgment and that we should review de novo the trial court’s ruling on standing, I believe a fact issue exists concerning whether the Topes had substantial past contact. I believe the trial court erred in dismissing the Topes’ suit at this point in the proceedings. The issue of “substantial past contact” should have been allowed to proceed to trial. Further, the trial court abused its discretion in ruling on the issue of whether CPS withheld consent without good cause before discovery. I would reverse the judgment of the trial court and remand for further proceedings.
*876I concur in part and respectfully dissent in part.
. In 2002, CPS became involved in the life of Melissa Cole. In March 2003, Lindsay wrote a caseworker at CPS requesting notification should her grandson become involved or "returns to or remains in your child welfare system.”
. Lindsay testified that her daughter informed her in March 2004 that CPS had custody of the grandchildren.
.We note that Chapman concerns a statutory waiver of the general requirement that a managing conservator consent to the adoption. Chapman, 561 S.W.2d at 267; see Tex. Fam.Code Ann. § 162.010 (Vernon 2002). CPS has not argued on appeal that this waiver is inapplicable to standing.