### IN THE TENTH COURT OF APPEALS

No. 10
- 22
- 00210
- CV
IN THE INTEREST OF T.W., J.W. AND L.W., CHILDREN

From the 82nd District Court Falls County, Texas Trial Court No. 40508

MEMORANDUM OPINION

The mot her (Mother) of T.W., J.W., and L.W. and the father (F ather) of J.W. and
L.W. appeal the trial court ’ s judgment awarding joint managing conservatorship of
L.W. to the foster parents ( the Intervenors) who intervene d. 1 Mother and Father do not appeal the trial court ’ s judgment as it relates to T.W. and J.W. We will affirm. Background T.W. and J.W. were removed by the Department of Family and Protective Services (the Department) due to Mother ’s and Fat her ’ s drug us e and neglect. Mother and Father were storing drugs and drug paraphernalia in the room they shared with the

1 The father of T.W. is not a party to this appeal.In the Interest of T.W

. , J.W., and L. W., Children Pag e 2 children. T.W. and J.W. were placed with t he Intervenors. While the case was pending, Mother gave bi rth to L.W

. , who was also remove d b y the D epartment and placed with
the Intervenors. The Department initially focused on terminati ng the rights of Mother and Father, but subseq uently sought fami ly reunification. After a bench trial, the Department was
dismiss ed, and the Intervenors w ere granted joint managing conservatorship of all
three children. Mother and Father w ere named joint possessory conservator s and limited to an eight

- hour , unsupervis ed visitation with the children once a month.
Mother and Father then filed the present ap pea l. 2
Issues
Mother and Father prese nt the following issues: 1) The trial court erred in finding that Intervenors had standing as to L.W. 2) The trial cou rt did not have jurisdiction to render a final order

. Issue One
Moth er an d Father argue that the tr ial court erred in determining that the Intervenors had standing because the Intervenors did not have possession of L.W. for twelve months prior to filing their original petition

.

2 All parties agree , and the trial court fo und, that the parents did not receive notice from the district clerk of the trial court ’ s final order within twenty days after it was signed , that th e post

- judgment period be ga n to run on April 18, 2022 , and that the r equest for findings of fact and conclusions of law was timely filed

. We therefore construe the parties ’ joint notice of appeal as timely filed. Additionally, we suspend operation of th e submission dea dline s of Rule 39.8

. See T EX

. R. J UD

. A DMIN

. 6.2 , reprinted in T EX

. G OV ’ T C ODE A NN

. , tit. 2, subtit. F app.; T EX

. R. A PP

. P. 2 and 39.8.In the Interest of T.W

. , J.W., and L. W., Children Pag e 3 A UTHORITY
We review the issue of stand ing de novo. In re H.S. , 550 S.W.3d 15 1, 155 (Tex. 2018)

. We con stru e the pleadings in favor of the petitioner and consider r elevant evidence offered by the parties. Id

. If a party fails t o establish standing , the trial court
must dismiss the suit. Id . (citing In re C.M.C. , 192 S.W.3d 8 66, 870 (Tex. App.

— Texarkana 2006, no pet.)). Standing to bring a suit affecting the parent

- child relationship is governed by the family code

. See In re K eith , 549 S.W.3d 747, 751 (Tex. App.

— Waco 2017, orig. proceeding ) (citing T EX

. F AM

. C ODE A NN

. §§ 102 .00 3

- .007; and In re H.G. , 267 S.W.3d 120, 124 (Tex. App.

— San Antonio 2008, pet. denied)).
Tex as Family Code s ection 102.003 provides , in pertinent pa rt : (a) An original suit may be filed at any time by: (12) a pe rson who is the foster parent of a c hil d placed by the Department of Family and Protective Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition; (b) In computing the time necess ary for standing under Subsecti ons ( a)( 9), (11), and (12), the court may not requir e that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit. (c) Notwithstanding the time req uire men ts of Subsection (a)(12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at a ny time after the person has been approved to adopt the child. T he standing to file suit under t his sub section applies only to the adoption of a chi ld who is eligible to be adopted. Section 102.004 additionally provides:In the Interest of T.W

. , J.W., and L. W., Children Pag e 4 (b) An original suit requesting p ossessory conservatorship may not be filed by a grandparent or o ther person. However, the court ma y gra nt a grandparent or other person, subject to the requirements of Subsection (b

1) if applicable, 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 t hi s c hapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conserva tors would significantly impair the child's physical health or e motional development. (b

- 1) A fo s te r p arent may only be granted leave to intervene under Subsection (b) if the foster parent would have standing to file an original suit as provided by Sectio n 102.003(a)(12).
Rule 44.1 of the Rules of Appellate Procedure provides: (a) Standard for Rev er sib le Error. No judgment may be reversed on appeal on the ground th at the trial court made an error of law unless the court of appeals concludes that the er ror complained of: (1) probably caused the rendition of an improper judgment; or (2) probab ly pre vented the appellant from properly presenting the case to the co urt of appeals.
T EX

. R. A PP

. P . 44.1

. D ISCUSSION The Depa rtment ’ s original petition as to L .W. was filed on February 10, 2020, four days after L.W. ’ s birth

. The trial court consolida ted L. W. ’ s case with that of T.W. and J.W. on February 26, 2020 , and a temporary order regarding L.W. was signed the same day . The Department was appointed t emporary managing conservator for L.W. , and L.W. was placed with the Intervenors , who already had cu sto dy of T.W. and J.W. The Intervenors filed their original petition for intervention as to all three
children o n May 21, 2020. The petition referenced s ections 102.003(a) ( 12) and 102.003(b)In the Interest of T.W

. , J.W., and L. W., Children Pag e 5 as the ba sis for standing. Father filed a motion to strike the pe tition in intervention on May 28, 2020 . Mother joined in the motion at a hearing on July 14, 2020. The trial court
denied the motion on the same day

. The trial court delayed proceedings in the ca se in an order signe d September 2, 2020 pursuant to th e S upreme Court ’ s Twenty

- Second Emergency Order Regarding the
COVID

- 19 State of Disaster. The trial court extended the dismissal date from November 13, 2020 to February 2, 2021. Mother filed a m otion for continuance on December 3, 2020 based on the Su pre me Court ’ s Twenty

- Ninth Emergency Order and
the rise in COVID

- 19 cases. The Intervenors filed an amended petition in intervention on December 7, 2020, approximately ten months after L.W. ’ s birth. The amended pe tition referenced s ections 102.003(a) ( 12) an d 1 02.003(b) as the basis for standing. The trial court sign ed another order r etaining the suit on the court ’ s docket pursuant to the Supreme Court ’ s Twenty

- Ninth Emergency Order and set the new
dismis sal date for May 10, 2021.
The Intervenors filed a se con d amended petition in intervention on March 20, 2021, appr oximately thirt een months after L.W. ’ s birth. The second amended petition
in intervention again referenced s ections 102.003(a) ( 12) and 102.0 03(b) as the basis for standing

. On April 1, 2021 , t he Department advised the trial court that its primary

perman ency goal had changed to family reunification

. On the same day, the trial courtIn the Interest of T.W

. , J.W., and L. W., Children Pag e 6 granted the Intervenors ’ oral motion for a con tinuance and e xtended the dismissal date to September 1, 2021.
On Ap ril 13, 2021, the trial court signed another order retaining the suit on the

court ’ s docket pursuant to the Supreme Court ’ s Thirty

- Sixth Emergency Order and
reaffirmed the new dismi ssal date as September 1 , 2021. On Ju ly 22, 2021, the trial court si gne d a not her order retaining the suit on the

court ’ s docket pursuant to the Supreme Court ’ s Thirty

- Eighth Emergency Order and set the new dismissal date for October 13, 2021. The case proceeded to a bench trial on October 13, 2021

. At that point , L.W. ha d b een in the custody of the Intervenors for at least eighteen months. We find that the Intervenors had standing as a result of the second amended petition for intervention. L.W. had been in the Intervenors ’ c ustody “ for at least [twelve] months ending n ot mor e than [ninety] days ” prior to the filing of the second amended petition in intervention. Even if it was error for the trial court to allow intervention based upon the original or first amended petition , it did not cause the
rendition of an imprope r j udg ment as the Intervenors had standing to request
intervention in the case of T.W. and J.W. , and the ca ses of all the children were
consolidated. T EX

. R. A PP

. P. 44.1(a). Additionally, the evidence supporting the trial

court ’ s judgment was the same a s t o a ll three children.
We overrule the first issues raise d by Mother and Father.In the Interest of T.W

. , J.W., and L. W., Children Pag e 7 Issue Two Mother and Father argue that the Texas Supreme Court did not have the authority to extend the dismissal deadline of s ection 263.401 , and, thus, the trial cour t
l ack ed juris dict ion t o enter an order of termination. Specif ically, Mother and Father argue that the Supreme Court ’ s emergency orders v iolate the separation of powers
doctrine of the Texas Consti tution

. 3 Mother and Father do not otherwise question the
val idi ty of the extensions of the deadlines

. A UTHORITY
We re view the constitutionality of a sta tute de novo , beginning with the presumption that the statute is constitutional. S ee T EX

. G OV ’ T C ODE A NN

. § 311.021(1);
see also Stockton v. Offenbach , 336 S .W. 3d 610, 614

- 15 (Tex. 201 1)

. Rule 33.1 of the Rules of Appel late Procedure Provides: (a) In General. As a prerequisite to presenting a complaint for appellate review, th e record must show that: (1) the complaint was made to the trial court by a timely re que st, objection, or motion that: (A) stated the grounds fo r the ruling that the complaining party sought from the trial court with sufficient specificity to make the tria l court aware of the complaint, unless the specific grounds were apparent from th e c ont ext; and (B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and

3 Mother and Father also make reference to the United States Constitution. To the extent th is is a separate ground fo r th e i r second issue s , we determine it is not adequately briefed. Se e T EX

. R. A PP

. P. 38.1.In the Interest of T.W

. , J.W., and L. W., Children Pag e 8 (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to ru le on the request, objection, or motion, and the complain ing party objected to the refusal.
T EX

. R. A PP

. P. 33.1 (a).
D ISCUSSION
The record does not reflect that either Mother or Father made an objection in the trial court regarding the alleged viol atio n o f separation of powers due to t he Supreme
Court ’ s emerge n cy orders regarding the COVID

- 19 pandemic. Additionally, as noted,
Mother ’ s motion for continuance us ed the Supreme Court ’ s Twenty

- Nint h Emergency
Order and the rise in COVID

- 19 cases as the ba si s f or relief. Even constitutional complaints can be waived abs ent a timely objection. See Zorrilla v. Aypco Construction II, LLC , 469 S.W.3d 143, 1 55 n.10 (Tex. 2015 ) (complaint on appeal must comport with complaint presented to trial court including complaints of
constitutional violations ) ; see also In re B.L.D. , 113 S.W.3d 340, 352 (Tex. 2003); In re
S.A.S. , 200 S.W.3d 823, 826 (Tex. App.

— Beaumont 2006, pet. denied)

. We overrule Mother ’ s and Father ’ s second issues as they were not preserved for

app ell ate re view. T EX

. R. A PP

. P. 33. 1.
Conclusion Having overruled t he issues raised by Mother and Father, we affirm the judgment of the trial court.In the Interest of T.W

. , J.W., and L. W., Children Pag e 9 We deny as moot the Request for Rule 34.5(d) Instruction filed by Mother and Father on Septe mber 12, 2002 as a supplem ental record was fi led by the district clerk.

MAT T JOHNSON Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed; motion denied Opinion delivered and filed November 2, 2022 [CV06]