law-SAPCR-intervention | best interest of the child criteria | termination of parental rights |
INTERVENTION IN SAPCR PROCEEDING
A trial court has discretion in deciding whether to strike an intervention in a SAPCR. Tex. R. Civ. P. 60.
Texas Rule of Civil Procedure 60 provides that “[a]ny party may intervene by filing a pleading, subject to
being stricken out by the court for sufficient cause on the motion of any party.” Id.
Pursuant to the Family Code, the best interest of the child should be the primary consideration for the
court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam.
Code Ann. § 153.002 (Vernon 2008). It is presumed that the prompt and permanent placement of the
child in a safe environment is in the child’s best interest. Tex. Fam. Code Ann. § 263.307 (Vernon 2008).
Delay in the prompt and permanent placement of a child caused by the late filing of an intervention has
been held sufficient cause for a trial court to strike an intervention in a SAPCR. See In re C.A.L., No. 02-
05-308-CV, 2007 WL 495195, at *8 (Tex. App.—Fort Worth Feb. 15, 2007, orig. proceeding)(mem. op.);
Oehlerich v. Tex. Dep’t Prot. & Reg. Servs., No. 03-98-00309-CV, 1999 WL 546970, at *2 (Tex. App.—
Austin July 29, 1999, orig. proceeding)(not designated for publication).
In In re C.A.L., a grandmother, who was designated as a conservator in an affidavit of relinquishment,
petitioned to intervene fourteen months after the Department was appointed temporary managing
conservator and just two months before the case was set for dismissal under the extended deadline. In re
C.A.L., 2007 WL 495195, at *8. In support of its motion to strike, the Department argued that because of
the dismissal deadline approaching in six weeks, the Department had inadequate time and opportunity to
investigate the appropriateness of the grandmother who was seeking to intervene. Id. On appeal, the
court held it was not an abuse of discretion to strike the grandmother’s petition in intervention filed two
months before the dismissal date. Id. at *9.
Similarly, in Oehlerich, a grandmother petitioned to intervene eight months after the Department initiated
the SAPCR and just two months before the case was set for trial. Oehlerich, 1999 WL 546970, at *1–2.
The trial court granted the motion to strike, explaining that “intervention must be timely and should not be
allowed when it would delay the cause, unless the intervenor demonstrates facts which justify tardiness in
coming forward.” Id. at *2. The Austin Court of Appeals held that it was not an abuse of discretion to strike
the petition to intervene because the petition was untimely and the grandmother offered no evidence to
justify her late intervention. Id. at *2. The Oehlerich court notes,
In the absence of a prescribed time, the issue of timeliness is governed by equitable principles and
determined by the facts and circumstances of the particular case. Relevant factors may be the purpose
for which intervention is requested; the point to which the suit has progressed and the time elapsed from
its initiation; the length of time the applicant knew of his interest in the litigation; possible prejudice
occasioned to existing parties by the delay; the applicant’s interest and potential harm to that interest if
intervention is denied; the reason for the applicant’s delay; interference resulting to orderly trial processes
if intervention is allowed. . . . Some of these factors are determinable without evidence; others, such as the
length of time the applicant knew of his interest and his reason for delay, require evidence before they
may be considered by the trial court in deciding whether to grant the application to intervene. The latter
have particular relevance in the present case. Id. at *2 n.4 (citing 59 Am. Jur. 2d Parties § 157, at 632–36
Because the Texas Family Code creates a presumption that the prompt and permanent placement of the
child in a safe environment is in the child’s best interest, we cannot say that the court abused its discretion
in striking the petition in intervention. See Tex. Fam. Code Ann. § 263.307 (Vernon 2008); see also Tex.
Fam. Code Ann. § 153.002 (Vernon 2008) (providing best interest of child should be primary consideration
in determining issues of conservatorship and possession of and access to child). Considering the notice
requirements of the Texas Rules of Civil Procedure and the lengthy process required by the Family Code
in evaluating a potential placement, we cannot conclude that the trial court abused its discretion
because it could have found that the petition in intervention would jeopardize the prompt resolution of the
In Re Northrop (Tex.App.- Houston [1st Dist.] Oct. 15, 2009)(Hanks)
(SAPCR petition in intervention in DFPS/CPS suit to terminate parental rights, timeliness issue)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-09-00814-CV In Re David Arnold Northrop
Appeal from 257th District Court of Harris County
Trial Court Judge: Hon. Judy Warne
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