CONCURRING OPINION

No. 04-09-00069-CV

IN THE INTEREST OF A.M., A.M., and B.M., Children

From the 131st District Court, Bexar County, Texas

Trial Court No. 2008-PA-01447

Honorable Antonia Arteaga, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Concurring opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

Marialyn Barnard, Justice

Delivered and Filed: February 24, 2010

I concur in the judgment; however, I write separately to urge the Legislature to amend the

Family Code so as to avoid the inequitable result reached in this case. 

Chapter 102 of the Texas Family Code sets forth the provisions governing the filing of a suit

affecting the parent-child relationship. Section 102.005 lists the individuals who have standing to

file a suit for adoption. See TEX. FAM. CODE ANN. § 102.005 (Vernon 2009). Section 102.006, on

the other hand, lists the individuals who lack standing to file such a suit, including “a family member

or relative . . . of . . . a former parent whose parent-child relationship has been terminated . . . .” Id.

§ 102.006(a)(3). However, section 102.006 also provides an exception to this exclusion, which as

applicable here, is “an aunt who is a sister of a parent of the child . . . .” Id. § 102.006(c). To

establish her standing to file a suit affecting the parent-child relationship, the aunt must satisfy one

of three requirements; she (1) has a continuing right to possession of or access to the children under

an existing court order; (2) has the consent of the children’s managing conservator, guardian, or legal

custodian to bring the suit; or (3) files an original suit “not later than the 90th day after the date the
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parent-child relationship between the child and the parent is terminated in a suit filed by the

Department of Family and Protective Services requesting the termination of the parent-child

relationship.” Id. § 102.006(b), (c). 

Chapter 162 of the Texas Family Code sets forth the provisions specifically governing the

adoption of a child, including a requirement that, “[u]nless the managing conservator is the

petitioner, the written consent of a managing conservator to the adoption must be filed.” Id. §

162.010(a). However, section 162.010 allows the court to “waive the requirement of consent by the

managing conservator if the court finds that the consent is being refused or has been revoked without

good cause.” Id. Unlike section 162.010(a), section 102.006(b) does not include the same good

cause component. Although I must agree with the majority’s conclusion that there is no statutory

basis to import the good cause requirement of section 162.010(a) into section 102.006(b), I believe

the State’s interest in keeping families together is best served by amending section 102.006(b) to

include such a requirement. 

The children at issue in this case lived with their aunt for two years until they were removed

by the Department based upon unsubstantiated allegations of abuse. After determining the abuse

allegations were unsubstantiated, the Department allowed the aunt to visit the children, including

unsupervised overnight visits. The aunt believed, based at least in part upon the Department’s own

actions, that she would be allowed to adopt the children. However, once she moved forward with

her attempt to adopt the children, the Department filed a motion to dismiss based on lack of standing

despite her substantial past contact with the children. See id. § 102.005(5) (allowing “another adult
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whom the court determines to have had substantial past contact with the child sufficient to warrant

standing” to file an original suit requesting adoption). Because ninety-days had passed since the

termination of the parent-child relationship, the Department could refuse consent for any reason or

for no reason at all. And, because section 102.006(b) does not include a good cause component, the

trial court is prevented from hearing evidence on the issue of consent. I do not believe the

Legislature intended to give the Department such unchecked authority; therefore, I ask the

Legislature to amend section 102.006 to allow the trial court to waive the requirement of consent by

the Department if the court finds that the consent is being refused or has been revoked without good

cause. 

Sandee Bryan Marion, Justice