Requirements for Nonparent Intervention in a CPS Case

It is when a nonparent asks to become a party to an existing CPS case. The person who files the petition is called an "intervenor."  A person can intervene in a CPS case to seek custody of a child ("managing conservatorship") or to terminate the parents' rights so they can legally adopt the child.

After a person intervenes in the case, that person can attend court, file legal documents, present evidence, and ask the court for certain orders. 

Not just anyone can intervene in a CPS case. You must have “standing” to intervene. Standing is the requirement that a person must show some legal interest in the case to join. 

As a nonparent, you can file an intervention if you are:

• A person with court-ordered access or visitation to the child (ordered by a court from another state or country)
• A man alleging to be the father of a child;
• A foster parent of the child placed by DFPS in your home for at least 12 months ending not more than 90 days before the date you file the petition;
• A prospective adoptive parent or intended parent of a child under a gestational agreement;
• You have had “actual care, control, and possession” of the child for at least six months ending not more than 90 days before the date you file the petition;
• You are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece, or nephew (“third degree of consanguinity”), and:
  • Both parents are dead;
  • Both parents, the surviving parent, or the managing conservator agree;
  • The child’s present circumstances will significantly harm the child’s physical health or emotional development;
• You have lived with the child and the child’s parent, guardian, or conservator for at least six months ending not more than 90 days before the date you file the termination case, and the child’s parent, guardian, or conservator has died;
• You are named managing conservator in an affidavit of relinquishment or are the recipient of a written consent to adoption;
• You are a guardian of the child’s person or estate;
  
  Note: This list does not include every applicable situation under the statute. Read Texas Family Code 102.003 and Texas Family Code 102.004(a) for a complete list.

You may also file an intervention if you are a grandparent or other nonparent who:

• The court decided has substantial past contact with the child and
• There is proof that the appointment of the child’s parent(s) would significantly impair the child’s physical health or emotional development. 
• You will have to take an extra step and get the court’s permission (“request leave”) to intervene.
• Texas Family Code 102.004(b).

You may seek termination of the parents’ rights and adoption of the child if you are:

• A stepparent of the child;
• An adult who, as the result of a placement for adoption, has had actual possession and control of the child at any time during the 30-day period preceding the filing of the petition;
• An adult who has had actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition;
• An adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child; or
• Another adult the court finds has had substantial past contacts with the child enough to merit standing to do so.
• Texas Family Code Section 102.005

It depends. If you file with standing under Texas Family Code 102.003(a) or 102.004(a) you are automatically added as a party, and the court cannot deny the intervention unless a motion to strike is filed.   

But: if you file the intervention under Texas Family Code Section 102.004(b), you do not automatically become a party. The judge must first grant "leave" to intervene. A judge can decide to (1) allow the intervention or (2) deny it—even if no party files a motion to strike and you meet all legal requirements.

The law says:

“In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the court may not require 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.”

Texas Family Code 102.003.

The facts of every case will be different, but the Texas Supreme Court provides some guidance that courts must follow:

 “…a nonparent has “actual care, control, and possession of the child” under section 102.003(a)(9) if, for the requisite six-month time period, the nonparent served in a parent-like role by:

(1) sharing a principal residence with the child,

(2) providing for the child's daily physical and psychological needs, and

(3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children.

The statute does not require the nonparent to have the ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.”

In Interest of H.S.

The law does not define what “significant impairment” means. The court looks at the facts of your case and decides if there is significant impairment. Several appellate cases on the issue reference abuse, extreme neglect, abandonment, substance abuse, immoral behavior, recent criminal arrests, or a combination of these things.

When filing an intervention under Texas Family Code 102.004(a)(1) or 102.004(b), you must offer evidence of specific, identifiable behavior or conduct of the parent(s), and evidence that the parents’ acts or omissions will probably cause harm to the child.

If you are unsure if you have sufficient evidence of significant impairment, you should speak to an attorney.

The law does not define what “substantial past contacts” means. The trial court looks at the facts of your case and decides whether you have substantial past contacts with the child. In many cases where the appellate courts have found substantial past contacts, the child has lived with the intervenor for an extended period of time (often over a year). Sporadic visits, telephone calls, or exchanging cards may not be sufficient to establish substantial past contacts. However, every case is different.

If you are unsure if you have sufficient evidence of substantial past contacts, you can speak to an attorney.

The law is unclear about whether grandparents must prove substantial past contacts or not. Different appellate courts in Texas interpret the law differently, so the answer to this question may depend on where you file your case. Several appellate courts have ruled that grandparents must show substantial past contacts, but at least one appellate court has stated that grandparents do not have to show substantial past contacts.

You should speak to an attorney if you have questions about whether the substantial past contacts requirement applies to your case.