Texas Child Protection Law Bench Book

Updated September 2025

Interventions

Introduction

In CPS cases, legal interventions raise a number of issues. This chapter addresses:

•   Standing requirements for non-parties to intervene in CPS legal cases and in cases with other stages of CPS involvement;

•   Considerations in responding to interventions filed; and

•   Special issues when addressing an intervention in a CPS case.

A. General Standing

There are two avenues for a non-parent party to establish standing in a SAPCR:

•   Standing to file an original suit; and

•   Standing to intervene in a pending suit.

1. Standing to File Original Suit

An original suit may be filed at any time by:

•   A parent of the child;

•   The child through a representative authorized by the court;

•   A custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;

•   A guardian of the person or of the estate of the child;

•   A governmental entity;

•   The Department of Family and Protective Services;

•   A licensed child placing agency;

•   A man alleging himself to be the father of a child filing in accordance with Tex. Fam. Code Chapter 160, subject to the limitations of that chapter, but not otherwise;

•   A person other than a foster parent, relative, or designated caregiver of a child placed by the Department of Family and Protective Services, who has had exclusive care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;

•   A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Tex. Fam. Code Chapter 161 or to whom consent to adoption has been given in writing under Tex. Fam. Code Chapter 162;

•   A person who is the foster parent, relative, or designated caregiver of a child 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 unless:

◦   the child has been returned to the parent under Tex. Fam. Code § 263.403; or

◦   the child has been placed with a parent and the suit by the Department of Family and Protective Services has been dismissed under Tex. Fam. Code § 263.401;

•   A person who is a relative of the child within the 4th degree of consanguinity, as determined by Tex. Gov't Code Chapter 573, if the child's parents are deceased at the time of the filing of the petition;

•   A person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Tex. Fam. Code § 102.0035, regardless of whether the child has been born. Tex. Fam. Code § 102.003(a); or

•   Subject to Tex. Fam. Code § 102.003(d), a person who is an intended parent of a child or unborn child under a gestational agreement that complies with the requirements of Tex. Fam. Code § 160.754. Tex. Fam. Code § 102.003(a).

In computing the time necessary for standing under Tex. Fam. Code § 102.003(a)(9) and (a)(11), 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. Tex. Fam. Code § 102.003(b).

Notwithstanding the time requirements of Tex. Fam. Code § 102.003(a)(11), 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 any time after the person has been approved to adopt the child. The standing to file suit under Tex. Fam. Code § 102.003(c) applies only to the adoption of a child who is eligible to be adopted. Tex. Fam. Code § 102.003(c).

2. Exclusive Care, Control, and Possession

Tex. Fam. Code § 102.003(a)(9) provides standing to a person, other than a foster parent, relative, or designated caregiver of a child placed by DFPS, who has had exclusive care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.

a. Time-Specific in Applicability

•   No standing when child in home for only five and a half months at time of filing. In re E.C., No. 02-13-00413-CV, 2014 WL 3891641 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.)(mem.op).

•   No standing when child in home for only three months at time of filing. In re C.M.J., No. 02-12-00036-CV, 2012 WL 6632748 (Tex. App.—Fort Worth Dec. 21, 2012, no pet.)(mem.op).

b. Elements of “Actual Care, Control, and Possession” Under Jasek v. Texas Department of Family and Protective Services, the court looked to the composite elements of the care, control, and possession in reaching its decision, considering:

•   The individual asserting standing under Tex. Fam. Code § 102.003(a)(9) will have:

◦   lived in a home where the child consistently and frequently stayed overnight;

◦   financially supported the child;

◦   participated in the child's education; and

◦   fed, clothed, and provided health care to the child.

•   “Actual control” does not require the authority to make legal decisions for the child. Jasek v. Texas Department of Family and Protective Services, 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.). See also In re H.S., 550 S.W.3d 151, 157 (Tex. 2018).

•   A non-parent's "actual care, control, and possession" of a child does not need to be exclusive to have standing under Tex. Fam. Code § 102.003(a)(9). In re H.S., 550 S.W.3d 151 (Tex. 2018).

3. Standing to Request Termination and Adoption

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by:

•   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; or

•   An adult who has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child. Tex. Fam. Code § 102.005.

4. Standing for Certain Relatives and Other Persons

In addition to the general standing to file suit provided by Tex. Fam. Code § 102.003, a grandparent, or other relative of the child related within the fourth degree of consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof that:

•   The order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or

•   Both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.004(a).

a. Relatives and degrees of consanguinity:

•   A parent or child (relatives in the first degree);

•   A brother, sister, grandparent, or grandchild (relatives in the second degree); and

•   A great-grandparent, great-grandchild, aunt who is a sister of a parent of the child, an uncle who is the brother of a parent of the child, a nephew who is the child of a brother or sister of the child, or a niece who is a child of a brother or sister of the child (relatives in the third degree). Tex. Gov't Code § 573.023(c).

b. Limits on Tex. Fam. Code § 102.004(a) Standing

•   Step-grandfather excluded. In re E.C., No. 02-13-00413-CV, 2014 WL 3891641 (Tex. App.—Fort Worth, Aug. 7,2014, no pet.)(mem.op.).

•   Step-uncle excluded. In re A.M.S., 277 S.W.3d 92 (Tex. App.—Texarkana 2009, no pet.).

•   Great-aunt or great-uncle excluded. In re N.L.D., 344 S.W.3d 33 (Tex. App.—Texarkana 2011, no pet.).

c. Proving Significant Impairment pursuant to Tex. Fam. Code § 102.004(a)

•   Significant impairment of child's physical health and emotional development found with evidence of parental drug use and criminal convictions and incarceration. (In re K.D.H., 426 S.W.3d 879 (Tex. App.—Houston [14th Dist.] April 3, 2014, no pet.)).

•   Significant impairment of child's physical health and emotional well-being found with evidence of physical and emotional abuse of the child even if the last alleged incident occurred months before the filing of the petition when the parent's ideas regarding discipline had not changed during the period and the parent had not received any counseling or other services during that time to mitigate the risk of continued abuse. In re McDaniel, 408 S.W.3d 389 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

•   Significant impairment of emotional development found where a parent fails to send their child to school on a regular basis and fails to provide necessary therapeutic interventions for a child with poor school performance and behavioral issues. Maudlin v. Clements, 428 S.W.3d 247 (Tex. App.—Houston [1^st Dist.] 2014, no pet.).

•   Acts or omissions that constitute significant impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by a parent. In re M.P., No. 13-21-00013-CV, 2022 WL 1572267 (Tex. App.—Corpus Christi-Edinburg May 19, 2022, no pet.)(mem.op). See also In re B.B.M., 291 S.W.3d 463, 469 (Tex. App.—Dallas 2009, pet. denied).

d. Applicability and Implications of Tex. Fam. Code § 102.004(a) in Child Welfare Cases

•   Avenue for grandparents and other relatives within the requisite degree of consanguinity to file for custody of a child in an investigation or Family Based Safety Services stage of a child welfare case.

•   An original action for conservatorship under Tex. Fam. Code § 102.004(a) does not have the rehabilitative and service requirements of a child welfare case or the same strict timelines.

5. Required Affidavit for Standing of Nonparent

A nonparent who initiates or intervenes in a suit affecting the parent-child relationship in which another party to the suit is a parent of the child of the child shall execute and serve with the nonparent's initial pleading an affidavit that:

•   Attests, based on the nonparent's personal knowledge or representations made to the nonparent by a person with personal knowledge of the matter, that denying the relief sought would significantly impair the child's physical health or emotional development; and

•   Contains facts that support the allegation. Tex. Fam. Code § 102.0031(a).

The Court must deny the relief sough and dismiss the suit or strike the intervention, as applicable, unless the court determines, based on the affidavit, that the affidavit contacts facts adequate to support the allegations. Tex. Fam. Code § 102.0031(b).

B. Standing to Intervene in a Pending Suit

An original suit requesting possessory conservatorship may not be filed by a grandparent or other relative or other person. However, a grandparent or other relative or other person may intervene in a pending suit under Tex. Fam. Code § 102.003(b-1) or (b-2), as applicable. Tex. Fam. Code § 102.004(b).

A grandparent or other relative of the child within the fourth degree of consanguinity may intervene in a pending suit filed by a person authorized to do so under Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. Tex. Fam. Code § 102.004(b-1).

The court may grant a person, other than a grandparent or other relative of the child within the fourth degree of consanguinity, subject to the requirements of Tex. Fam. Code § 102.004(b-3), 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 Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. The court may not grant a person leave to intervene unless each parent consents to the intervention. Tex. Fam. Code § 102.004(b-2).

A foster parent, relative, or designated caregiver may only be granted leave to intervene under Tex. Fam. Code § 102.004(b-2) if the foster parent, relative, or designated caregiver would have standing to file an original suit as provided by Tex. Fam. Code § 102.003(a)(11). Tex. Fam. Code § 102.004(b-3).

1. Case Law related to Substantial Past Contact

Courts have applied the standard definition of “substantial” from the Random House Dictionary as “of ample or considerable amount, quantity, size, etc.” and have evaluated the amount of actual contact and not the difficulties of the intervening party maintaining contact. (In re C.M.C., 192 S.W.3d 866 (Tex. App.—Texarkana 2006, no pet.)).

“Substantial past contact” has been found to involve more than seeing a child regularly during their life. Substantial past contact has been shown by parties who have “frequently cared for the children, lived nearby, and spent a great deal of time with the family.” (Blackwell v. Humble, 241 S.W.3d 707 (Tex. App.—Austin 2007, no pet.)).

Relatives who have cared for a child for as few as 7 weeks have been found to have substantial past contact. The Court's analysis focused on the caretaker's daily supervision of the child during that time and found the intervening party to have established substantial past contact in undertaking the daily functions of legal custody during that time. (In re A.L.W., No. 02-11-00480-CV, 2012 WL 5439008 (Tex. App.—Fort Worth Nov. 8, 2012, pet. denied)(mem. op.). See also In the Interest of R.I., 610 S.W.3d 581, 590 (Tex. App.—Tyler 2020, no pet.)).

In a case of first impression, the Dallas Court of Appeals has held that grandparents, as opposed “other persons,” are not required to establish substantial past contact under Tex. Fam. Code § 102.004(b). See In re Nelke, 537 S.W. 3d 917, 922-23 (Tex. App.—Dallas 2019, no pet h.).

2. Evidence that Appointment of Parent(s) as Managing Conservator Would Significantly Impair the Child's Physical Health and Emotional Development

A person with substantial past contact with a child will be unable to show evidence that the appointment of a parent as the managing conservator would cause significant impairment when facts show only speculation of potential harm if the parent is appointed conservator. (In re S.M.D., 329 S.W.3d 8 (Tex. App.—San Antonio 2010, pet. dismissed)).

Frequent moves “are acts that may constitute significant impairment of a child's physical health or emotional development.” In the Interest of A.D.T., 588 S.W.3d 312, 318 (Tex. App.—Amarillo 2019, no pet.).

3. “Significant Impairment” During Reunification Phase of a Child Welfare Case

Alleged father who had independently raised the child for two and a half years submitted to paternity testing and was dismissed as a party to the case after genetic testing ruled him out as the father. He intervened alleging substantial past contact. He was denied leave to intervene because he failed to show that the appointment of the mother as sole managing conservator would significantly impair the child's physical health and emotional development. Testimony offered by the Department at multiple hearings had shown that she had complied with all court orders and service plan requirements, that the child had already been placed with her and that the Department was recommending dismissal of the case. The Court of Appeals found no abuse of discretion in the trial court's refusal to grant leave to intervene. (L.J. v. Texas Department of Family & Protective Services, No. 03-11-00435-CV, 2012 WL 3155760 (Tex. App.—Austin August 1, 2012, pet. denied) (mem. op.)).

C. Foster Parent Interventions

1. General Standing Provision: Tex. Fam. Code § 102.003 (a)(11)

An original suit may be filed at any time by a person who is the foster parent, relative, or designated caregiver of a child placed by DFPS 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 unless the child has been returned to the parent under Tex. Fam. Code § 263.403 or the child has been placed with a parent and the suit by DFPS has been dismissed under Tex. Fam. Code § 263.401. Tex. Fam. Code § 102.003(a)(11).

2. Foster Parent Intervention Limited

The court may grant persons other than a grandparent or other relative of the child within the fourth degree of consanguinity with substantial past contact with a child leave to intervene in a pending suit if they can provide satisfactory proof to the court that the appointment of a parent as Sole Managing Conservator or both parents as Joint Managing Conservators would significantly impair the child's physical health or emotional development and each parent consents to the intervention. Tex. Fam. Code § 102.004(b-2). However, a foster parent, relative, or designated caregiver may only be granted leave to intervene under Tex. Fam. Code § 102.004(b-2) if the foster parent, relative, or designated caregiver would have standing to file an original suit as provided by Tex. Fam. Code § 102.003(a)(11). Tex. Fam. Code § 102.004(b-3).

D. Limitations on Standing

1. Limitations on Standing

Except as provided by Tex. Fam. Code § 102.006(b) and (c), if the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by:

•   A former parent whose parent-child relationship has been terminated by court order;

•   The father of the child; or

•   A family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or the father of the child. Tex. Fam. Code § 102.006(a).

The limitations on filing suit imposed by Tex. Fam. Code § 102.006 do not apply to a person who:

•   Has a continuing right to possession of or access to the child under an existing court order; or

•   Has the consent of the child's managing conservator, guardian, or legal custodian to bring the suit. Tex. Fam. Code § 102.006(b).

The limitations on filing suit imposed by Tex. Fam. Code § 102.006 do not apply toa relative within the fourth degree of consanguinity of a former parent whose parent-child relationship with the child has been terminated by court order if the relative files an original suit or a suit for modification requesting managing conservatorship of the child not later than the 90th day after the date the parent-child relationship between the child and the parent is terminated. Tex. Fam. Code § 102.006(c).

Immediately after a court renders an order terminating the parent-child relationship in a suit filed by DFPS, DFPS must notify relatives who have been identified under Tex. Fam. Code § 262.1095 that the parent-child relationship has been terminated and they have 90 days after the date the order is rendered to file an original suit or a suit for modification requesting managing conservatorship of the child in accordance with Tex. Fam. Code § 102.006(c). Tex. Fam. Code § 161.2081.

Courts have affirmed that Tex. Fam. Code § 102.006(c) serves to limit the standing of particular individuals when the parent-child relationship has been terminated; it does not confer standing. (In re N.A.D., 397 S.W.3d 747 (Tex. App.—San Antonio 2013, no pet.)) and (L.H. v. Texas Dep't of Family and Protective Services, No. 03-13-00348-CV, 2014 WL 902555 (Tex. App.—Austin Mar. 6, 2014, no pet.)).

•   Narrows the class of individuals who would otherwise have standing to file an original proceeding for modification or adoption.

•   Restricts time period for filing.

2. Consequences of Missing the 90-Day Deadline

Even parties who would otherwise have standing will lose that standing if they fail to file their petition for custody or adoption within 90 days after the date the termination order was rendered.

Petition to adopt children by aunt with substantial past contact filed 7 months after parental rights were terminated was barred by Tex. Fam. Code § 102.006(c) because it had not been filed within 90 days of the termination order. (In re A.M., 312 S.W.3d 76 (Tex. App.—San Antonio 2010, pet. denied)).

E. Petitions to Modify the Parent-Child Relationship

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child must show that the modification is in the child's best interest and:

•   The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

◦   the date of the rendition of the order; or

◦   the date of the signing of a mediated or collaborative law settlement on which the order is based;

•   The child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or

•   The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months. Tex. Fam. Code § 156.101(a).

If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Tex. Fam. Code § 156.102(b). Tex. Fam. Code § 156.102(a).

The affidavit must contain, along with supporting facts, at least one of the following allegations that:

•   The child's present environment may endanger the child's physical health or significantly impair the child's emotional development;

•   The person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

•   The person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child. Tex. Fam. Code § 156.102(b).

The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Tex. Fam. Code § 156.102(b) are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing. Tex. Fam. Code § 156.102(c). In a jury trial, a jury verdict regarding the right to determine the child's primary residence for a joint or sole managing conservator may be authorized by the court. Tex. Fam. Code § 105.002(c).

A modification of the right to determine primary residence must include a sworn affidavit that shows that the child's present environment may endanger the child's physical health or emotional development. See In re N.A.D., 397 S.W.3d 747 (Tex. App.—San Antonio 2013, no pet.). (Holding that Tex. Fam. Code § 102.006 did not confer standing and the procedural requirements of Tex. Fam. Code § 156.102 applied in cases where a modification of the Department's conservatorship of a child is sought).

F. Practical Considerations

1. Timing

a. Some courts have successfully struck interventions as untimely if filed too close to the dismissal deadline.

Grandmother filed petition in intervention two months before dismissal date when permanency plan changed from reunification to termination although she had been aware of the case for over a year. Motion to Strike granted and affirmed by appellate court as within the discretion of the Court. (In re C.A.L., No. 2-05-308-CV, 2007 WL 495195 (Tex. App.—Fort Worth Feb. 15, 2007 orig. proceeding) (mem. op.)).

Grandfather who lived in Kentucky filed an intervention two months before trial. (Waiting to file an intervention when out of state and required ICPC study problematic). (Anderson v. Texas Dep't of Family and Protective Services, No. 03-06-00327-CV, 2007 WL 1372429 (Tex. App.—Austin May 9, 2007, pet. denied (mem. op)).

b. Court should balance the complication of the issues in the case and the rights of the intervening party.

A trial court abuses its discretion if it strikes a petition in which (1) the intervener could bring the same action, or any part thereof, in their own names, (2) the intervention will not complicate the case by an excessive multiplication of the issues, and (3) the intervention is almost essential to effectively protect the interveners' interest. In applying that analysis, the court found that even though the intervention was filed only two weeks before trial that the intervening party had standing and should have been allowed to participate in the trial. (Seale v. Texas Dept. of Family & Protective Services, No. 01-10-00440-CV, 2011 WL 765886 (Tex. App.—Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.)).

2. Procedural Issues

a. Effect of Intervention

Rule 60 of the Texas Rules of Civil Procedure provides that “any party may intervene by filing a pleading, subject to being stricken by the court for sufficient cause on the motion of any party.” Thus, intervening parties, absent a Motion to Strike, are immediately granted the status of a party and can participate in discovery, participate in hearings and mediations, and receive court reports, and other filings with the court. Tex. R. Civ. P. 60.

A grandparent or other relative of the child within the fourth degree of consanguinity may intervene in a pending suit filed by a person authorized to do so under Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. Tex. Fam. Code § 102.004(b-1).

b. Leave of Court

The court may grant a person, other than a grandparent or other relative of the child within the fourth degree of consanguinity, 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 Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. The court may not grant a person leave to intervene unless each parent consents to the intervention. Tex. Fam. Code § 102.004(b-2)

Following the plain language of the statute, the court finds a request for leave to intervene is necessary under Tex. Fam. Code § 102.004(b) and that the Intervener's Amended Petition for Intervention which requested that the court “grant the relief requested in this intervention” be read as a request for leave to intervene. (In re A.T., No 14-14-00071-CV, 2014 WL 11153028 (Tex. App.—Houston, July 15, 2014, (no pet.) (mem. op.)).

A court found that Tex. R. Civ. P. 60 does not apply to interventions filed under Tex. Fam. Code § 102.004(b). The court noted that the legislature developed a separate provision governing intervention in family law cases and gave the trial court discretion to determine whether to allow an intervention even when the statutory requirements are met. Court then found that no written motion to strike was required. (L.J. v. Texas Department of Family & Protective Services, No. 03-11-00435-CV, 2012 WL 3155760 (Tex. App.—Austin Aug. 1, 2012, pet. denied) (mem. op.)).

c. Imperfect Pleadings Can Establish Standing

Appellate courts review standing issues by construing the pleadings in favor of the petitioner and by looking to the pleader's intent. The question is whether a party provides other parties and the court fair notice of their claim. (Jasek v. TDFPS, 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.)); In re D.A., No. 02-14-00265-CV, 2015 WL 510255 (Tex. App.—Fort Worth, February 5, 2015) (mem. op.); In re N.I.V.S, No. 04-14-00108-CV, 2015 WL 1120913 (Tex. App.—San Antonio, March 11, 2015) (mem. op.).

G. Resources

•   GRANDPARENTS OR OTHER PERSON, 2020 TXCLE-AFL 18-VI, 2020 WL 5608033

•   STANDING, 2018 TXCLE-AFL 36-III, 2018 WL 6366549