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Jasek v. Texas Department of Family and Protective Services

Two months after filing a termination proceeding, the Texas Department of Family and Protective Services placed K.E. and T.E. with Philip and Lorine Jaseks, who were friends of the children's family. DFPS later removed the children from the Jaseks' home. The Jaseks petitioned to intervene in the termination suit. Concluding that the Jaseks lacked standing under Texas Family Code §102.004(b) because their petition was not filed during a pending suit and that they lacked standing under §102.003(a)(9) because they did not have "control" of the children, the district court granted the department's motion and struck the Jaseks' petition. On appeal, the Jaseks assert that they had "actual control" of the two children affected by this case where DFPS placed the children with the Jaseks and the children lived with the Jaseks for more than two years thereafter. The Jaseks satisfied the "actual control" requirement as a matter of law. The district court's judgment is reversed and remanded. Austin Court of Appeals, No. 03-10-00812-CV, 08-17-2011.

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OPINION

The principal issue presented in this appeal is what constitutes the “actual control” of a child that is required to establish standing to bring a suit affecting the parent-child relationship (SAPCR) under family code section 102.003(a)(9). See Tex. Fam. Code Ann. § 102.003(a)(9) (West 2008). Appellants Philip and Lorine Jasek*fn1 assert that they had “actual control” of the two children affected by this case where appellee, the Texas Department of Family and Protective Services (DFPS), placed the children with the Jaseks and the children lived with the Jaseks for more than two years thereafter. DFPS argues that “actual control” turns on whether one has the legal right of control over the children, and the district court was persuaded to render an order predicated on that conclusion. We disagree with that conclusion, hold that the Jaseks satisfied the “actual control” requirement as a matter of law, and will reverse and remand.

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