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Click here for the full text of this decision FACTS:Melissa Cole and her husband lost their parental rights to their two children in November 2004. The children were placed in the care of the husband’s sister. On Jan. 27, 2005, Lindsay and Milton Tope, Melissa’s parents, who live in Montana, filed a petition to adopt their grandchildren. Brazoria County Children Protective Services filed a motion to dismiss, based on the Topes lack of standing to file an original petition for adoption. The trial court granted the motion. On appeal, the Topes argue that there was no procedural basis by which to dismiss their case, that they had “substantial past contact” with the children, and that they were not allowed to conduct discovery on CPS’ refusal to let them adopt. HOLDING:Affirmed. The court rejects the Topes’ argument that the issue of standing raised by CPS could only be resolved through a motion for summary judgment. The court points out that the Texas Supreme Court has specifically authorized standing to be challenged through a plea to the jurisdiction. Based on its substance, rather than its form or caption, CPS’ motion to dismiss is “in essence” a plea to the jurisdiction. The issue of standing was thus properly before the trial court and dismissal is the appropriate disposition should the trial court find a lack of standing. The court explains that Family Code �102.005 sets forth the categories of non-parents who can file an original petition for adoption, including a stepparent, an adult who has had actual possession of the child and “another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.” The court emphasizes that the Topes have the same status as any other adult with “substantial past contact.” Noting that there is no definition of “substantial past contact,” the court nonetheless declines the Topes’ invitation to set a standard of what is and is not “substantial past contact.” The court, instead, says that whether “substantial past contact” exists is a fact-intensive inquiry that involves flexibility to deal with unexpected situations. Next, examining the Topes’ contact with their grandchildren, the court observes that however well intentioned they were (they sent gifts and cards), and however understandable their difficulty in seeing their children (based on the distance involved and the type of work the Topes were in), the fact remains “that actual contact was extremely minimal.” They only met their grandchildren twice, and they didn’t even know about the younger of the two children until she was several months old. “Under any conceivable definition of ‘substantial past contact,’ the Topes lack substantial contact with the children.” The court then holds that it need not decide whether the trial court abused its discretion by ruling on CPS’ refusal to consent to the adoption without first allowing discovery on the matter. Since the Topes did not have standing to bring their original petition, their argument regarding their entitlement to discovery fails. OPINION:Carter, J.; Morriss, C.J., Ross and Carter, J.J. CONCURRENCE AND DISSENT:Ross, J. “I agree that grandparents are not specifically listed in that provision as having standing to file a petition for adoption. I disagree, however, with the majority’s conclusion that the Topes’ status as grandparents is of no legal consequence in determining whether they have standing. . . . Their status as grandparents is a fact that cannot be ignored, and should be affirmatively considered, along with all other facts, in determining substantial past contact. It is at least relevant in weighing the grandparents’ testimony on this issue.” The author agrees that standing can be challenged by means other than summary judgment, but also thinks the trial court abused its discretion by ruling before allowing discovery.

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