AFFIRMED and Opinion Filed December 12, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-18-00725-CV IN THE INTEREST OF A.G. AND A.G., CHILDREN On Appeal from the County Court At Law No. 1 Kaufman County, Texas Trial Court Cause No. 97715CC 

### MEMORANDUM OPINION Before Justices Bridges, Brown, and Boatright Opinion by Justice Bridges V.R.D. appeals the trial court’s denial of her petition in inte rvention in the underlying proceeding that resulted in the termination of the parental rig hts of Mother and Father to their children, A.G. and A.G. In two issues, V.R.D. argues the trial court erred in striking her petition in intervention and appointing th e Texas Department of Family a nd Protective Services permanent managing conservator of the ch ildren. We affirm the trial cour t’s judgment. On June 2, 2017, the Department filed its original petition see king, among other things, termination of Mother’s and Fath er’s parental rights and appoin tment of the Department as permanent managing conservator of the children if the children could not be reunified with either parent or placed with a relativ e or other suitable person. On February 15, 2018, the trial court set this case for trial o n May 24, 2018. On May 16, 2018, V.R.D. filed her petition in intervention seeking to have herself appointed sole managing conservator of the children. On May 18, 2018, the Department f iled its motion to strike V.R.D.’s–2– petition in intervention on the ground that the petition “asser ts standing by merely referencing Texas Family Code Section 102.004” and therefore “wholly fails to meet the pleading requirements set forth by said section.” As a result, the Depa rtment argued, there was sufficient cause to strike V.R.D.’s petiti on “for lack of standing and jus ticiable interest under the statutory provisions outlined by the Texas Family Code.” At trial on May 24, 2018, Department caseworker Rhonda Davis re ported that mediation in the case was unsuccessful, Father was incarcerated, and Moth er had “not completed services or submitted to drug testing.” The children were in a foster home where, “if the children were free for adoption, they would wish to a dopt these children.” V.R.D. , twenty-four years old at the time of trial, testified the childr en were placed with her for two w eeks at the beginning of the case, but she was told the children could no longer stay with her because she “had prior CPS history.” V.R.D.’s prior history involved an “altercation” between her hu sband and his brother. As a result, V.R.D. had to attend counseling. When asked why she “wait[ed] so late to hire a lawyer,” V.R.D. responded that she thought “there was just no hope” because she had been told she could not have custody of the children because of her “CPS case.” On cross-ex amination, V.R.D. testified her husband had been “hospitalized for mental health,” he had “stru ggled with anger,” and he “got into an altercation with his aunt.” V.R.D.’s husband was prescribed medications, but he no longer took medication because he had “gotten better.” V.R.D. testified sh e had been diagnosed with depression but did not take medication because “[t]hat was a lo ng time ago.” V.R.D. testified she had a four-year-old son, a six-ye ar-old son, and a two-year-old daughter. Both Mother and Father testified that they approved of V.R.D. filing a petition for in tervention asking the trial court to give her managing conservatorship of the children. At the conclusio n of the hearing, the trial court entered oral findings that the petition for intervention was un timely, and the statutory requirements had not been met. Therefore, the trial court denied leave to i ntervene and granted the Department’s–3– motion to strike the plea for intervention. That same day, the trial court signed an order granting the Department’s motion to strike, dismissing V.R.D. and her pl eadings, and denying any and all relief V.R.D. requested. V.R.D. filed a motion to reconsider her petition for interventi on. V.R.D. argued the trial court abused its discretion in striking her plea in interventio n because she met the factors set forth
in Guaranty Federal Savings Bank v. Horseshoe Operating Co. , 793 S.W.2d 652, 657 (Tex. 1990), a case analyzing a party’s right to intervene under Rule 60 of the Texas Rules of Civil Procedure then in effect. The motion also cited In re S.B. , No. 02–11–00081–CV, 2011 WL 856963 (Tex. App.—Fort Worth, March 11, 2011, orig. proceeding) for the prop osition that consent of both parents gave an intervenor standing under Texas Family Code sec tion 102.004(a)(2). On June 5, 2018, the trial court signed an order denying V.R.D.’s motion t o reconsider. This appeal followed. In her first issue, V.R.D. argues the trial court erred in stri king her petition for intervention. Specifically, V.R.D. argues she had standing to intervene under Texas Family Code section 102.004(a)(2) because Mother and Father consented to the interv ention. In addition, V.R.D. argues her petition was timel y, and the trial cour t abused its discret ion in striking her plea in intervention because she met the factors set forth in Guaranty Federal . In making these arguments, V.R.D. does not address the issue of whether she had standing under se ction 102.004(b) of the family code. In pertinent part, secti on 102.004 provides as follows: § 102.004. Standing for Grandparent or Other Person (a) In addition to the general standing to file suit provided b y Section 102.003, a grandparent, or another relative of the child related within th e third degree by consanguinity, may file an original suit requesting managing co nservatorship if there is satisfactory pr oof to the court that: (1) the order requested is necessa ry because the child's presen t circumstances would significantly impair the child's physical health or emotional d evelopment; or–4– (2) both parents, the surviving pa rent, or the managing conserv ator or custodian either filed the petition o r consented to the suit. (b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. Howe ver, the court may grant a gra ndparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfact ory proof to the court that app ointment of a parent as a sole managing conservator or b oth parents as joint managing c onservators would significantly impair the child's physical health or emotional d evelopment. T EX

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. C ODE A NN . § 102.004(a), (b). Thus, unde r family code section 102.004(b ), the trial court may grant leave to intervene to grandparents and those “d eemed by the court to have had substantial past cont act with the child.” See Id. We review a trial court’s ruling on a motion to strike a petiti on in intervention for abuse of discretion. See Mendez v. Brewer , 626 S.W.2d 498, 499 (Tex. 1982); In re J.P. , 196 S.W.3d 434, 440 (Tex. App.—Dallas 2006, no pet.). A trial court abuses its discretion if it acts in an unreasonable or arbitrary manne r, “without reference to any gui ding rules or principles.” Beaumont Bank, NA v. Buller , 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985)). We will not reverse a t rial court for abuse of discretion because we disagree with its decision if that dec ision was within the court’s discretionary authority. Id. A trial court has no discretion in determining what the law i s or in applying the law to the facts. Baylor Coll. of Med. v. Camberg , 247 S.W.3d 342, 345 (Tex. App.— Houston [14th Dist.] 2008, pet. denied). Generally, intervention in a lawsuit is allowed as a matter of right; permission by the trial court is not required. See TEX. R. CIV. P. 60; Smith v. City of Garland , 523 S.W.3d 234, 241 (Tex. App.—Dalla s 2017, no pet.); Prototype Mach. Co. v. Boulware , 292 S.W.3d 169, 172 (Tex. App.—San Antonio 2009, no pet.). H owever, in suits affecting t he parent-child relationship, where the child’s best interest is “always” the court’s primary consideration, the circumstances under which a person may intervene is left to the trial court’s discretion. See T EX

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NN . §§ 102.004(b), 153.002 (West 2014); In re M.T. , 21 S.W.3d 925, 927 (Tex. App.—Beaumont 2000, no pet.). A person seeking conservatorship of a child must have standing to bring suit. In re I.I.G.T. , 412 S.W.3d 803, 805 (Tex. App.—Dallas 2013, no pet.); In re M.K.S.–V. , 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied). Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit. See Tex. Ass’n of Bus. v. Tex. Air Control
Bd. , 852 S.W.2d 440, 443–44 (Tex. 1993); M.K.S.–V. , 301 S.W.3d at 463. We review standing under the same standard we use for subject-matter jurisdiction generally: whether the pleader alleged facts that affirmatively demonstrated the court’s juris diction to hear the cause. Tex. Ass’n of Bus. , 852 S.W.2d at 446; M.K.S.–V. , 301 S.W.3d at 463. Standing in a suit affecting th e child-parent relationship (SAP CR) is governed by the family code, and a party bringing a SAPCR must plead and establ ish standing under the family code’s provisions. I.I.G.T. , 412 S.W.3d at 806. If the party fails to do so, the trial co urt must dismiss the suit. Id. A party’s standing to pursue a cause of action is a question of law. Id. Section 102.004(b) governs the question whether a party attempting to i ntervene in a pending SAPCR has established standing to do so. In re E.C. , No. 05-17-00723-CV, 2017 WL 6505867, at *4 (Tex. App.—Dallas Dec. 20, 2017, no pet.); see In re Derzapf , 219 S.W.3d 327, 332 (Tex. 2007) (family code’s specific standing requirements control over general stan ding provision). Section 102.004(b) applies to a person who seeks to intervene in a pend ing suit even if the person may have had standing to bri ng an original suit. In re E.C. , 2017 WL 6505867, at *4. Here, we assume without deciding that V.R.D.’s petition was tim ely. V.R.D. argues she had standing to intervene under Texas Family Code section 102.0 04(a)(2) because Mother and Father consented to the inter vention. Section 102.004(a)(2) pe rtains to original suits brought by grandparents or other persons a nd permits such original suits i f, among other things, the person–6– bringing suit proves both parents consented to the suit. See T EX

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. C ODE A NN . § 102.004(a). However, section 102.004(b) governs the question whether V.R.D. , as a party attempting to intervene in a pending SAPCR, established standing to do so. In re E.C. , 2017 WL 6505867, at *4. Section 102.004(b) applies to V.R.D.’s attempt to interven e in the underlying suit even if she may have had standing to b ring an original suit. Id. Thus, Mother and Father’s consent were not relevant to the issue of whether V.R.D. had standing under sect ion 102.004(b). See T EX

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. C ODE A NN . § 102.004(b); In re E.C. , 2017 WL 6505867, at *4. Similarly, Guaranty Federal was not a SAPCR, and the factors set forth therein do not apply to a case under section 102.004(b). See Guaranty Federal , 793 S.W.2d at 657; I.I.G.T. , 412 S.W.3d at 806. Under these circumstances, we conclude the trial court did not abuse its di scretion in striking V.R.D.’s petition in intervention. See Mendez , 626 S.W.2d at 499. We overrule V.R .D.’s first issue. In her second issue, V.R.D. argue s the trial court erred in app ointing the Department permanent managing conservator of the children. However, becau se V.R.D. was dismissed as a party for lack of standing, and we have determined the trial co urt did not err in doing so, we will not consider V.R.D.’s argument concerning the appointment of th e Department as managing

conservator. See In re J.S. , No. 2-04-277-CV, 2005 WL 1693537, at *3 (Tex. App.—Fort Worth July 21, 2005, no pet.) (refusi ng to consider grandmother’s cha llenge to Department’s appointment as managing conservator where gr andmother dismissed as party fo r lack of standing). We affirm the trial court’s judgment.

180725F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF A.G. AND A.G., CHILDREN
No. 05-18-00725-CV On Appeal from the County Court At Law No. 1, Kaufman County, Texas Trial Court Cause No. 97715CC. Opinion delivered by Justice Bridges. Justices Brown and Boatr ight participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered December 12, 2018.