Section 102.0031 Affidavit Does Not Apply to Section 102.005 | In re L.S. (2026)

In the Interest of L.S., a Child, 14-26-00541-CV, November 10, 2026.

On appeal from 505th District Court, Fort Bend County

Synopsis

Texas Family Code section 102.0031’s nonparent-affidavit requirement does not apply when a petitioner independently establishes standing under section 102.005 to seek termination of parental rights joined with adoption. Because section 102.005 provides a distinct statutory basis for standing, failure to satisfy section 102.0031 does not defeat jurisdiction when section 102.005 is otherwise established.

Relevance to Family Law

In re L.S. is significant for termination-and-adoption proceedings filed by foster parents, prospective adoptive parents, and other nonparents. It confirms that section 102.005 is not merely derivative of the general SAPCR-standing provisions in section 102.003. A petitioner who satisfies section 102.005 therefore need not establish standing under section 102.003(a)(9) or section 102.003(a)(12), nor comply with an affidavit requirement tied to section 102.003.

The opinion should not be read as creating a general avenue for nonparents to pursue conservatorship or possession. Section 102.005 is directed to adoption or termination joined with adoption. In custody litigation arising from a divorce or an existing SAPCR, a nonparent seeking conservatorship, possession, or access must still identify and prove an independently applicable standing provision. Counsel also must distinguish statutory standing from the heightened merits standards that protect a parent’s constitutional rights.

The case has little direct effect on marital-property litigation. Its procedural lesson nevertheless carries over to complex divorce cases involving third-party claims: identify the precise statutory source of each requested remedy rather than assuming that a procedural requirement attached to one cause of action governs every claim in the case.

Case Summary

Fact Summary

Liam was born in March 2022 while Mother was incarcerated. Mother signed a temporary placement agreement authorizing an adoption agency to arrange foster care, and Liam began living with Foster Mother and Foster Father in April 2022. The Department of Family and Protective Services was not involved, and no existing order governed Liam when the litigation began.

In October 2022, Foster Parents filed an original petition seeking termination of Mother’s parental rights. They later amended their pleading to seek adoption. Liam had remained continuously in their home from April 2022 through the filing of suit and the ensuing proceedings.

Foster Parents’ live pleading alleged standing under two general SAPCR provisions. They invoked section 102.003(a)(12) based on their asserted status as foster parents and, alternatively, section 102.003(a)(9) based on their actual care, control, and possession of Liam. Following trial, the district court terminated Mother’s parental rights and appointed Foster Parents as joint managing conservators.

The termination order also expressly found that Foster Parents had standing under section 102.005. Specifically, the court found that they had actual possession and control of Liam for at least two months during the three-month period preceding suit and had substantial past contact with him sufficient to warrant standing to request termination joined with adoption.

Mother did not challenge standing in the trial court. On appeal, however, she argued that Foster Parents did not qualify under section 102.003(a)(9) or section 102.003(a)(12) and that their failure to file the affidavit required by section 102.0031 defeated standing.

Issues Decided

• Whether Mother could raise Foster Parents’ statutory standing for the first time on appeal.

• Whether Foster Parents independently established standing under section 102.005 to seek termination of parental rights joined with adoption.

• Whether “actual possession and control” under section 102.005 requires the nonparent to possess formal or ultimate legal authority over the child.

• Whether section 102.0031’s nonparent-affidavit requirement applies to a petitioner whose standing arises independently under section 102.005.

• Whether the court needed to decide if Foster Parents also had standing under section 102.003(a)(9) or section 102.003(a)(12).

Rules Applied

Standing in a SAPCR is a component of subject-matter jurisdiction and presents a question of law reviewed de novo. Because standing implicates jurisdiction, it cannot be waived and may be raised for the first time on appeal. In reaching that conclusion, the Fourteenth Court relied on the Texas Supreme Court’s treatment of Family Code standing in In re H.S., 550 S.W.3d 151 (Tex. 2018).

When standing is conferred by statute, the claimant must allege and establish standing within the statute’s terms. Courts construe the statutory framework as a cohesive whole, giving effect to the Legislature’s chosen language and avoiding an interpretation that renders another provision meaningless or surplusage.

Under the version of section 102.005 applicable when Foster Parents filed suit, an original suit seeking adoption, or termination joined with adoption, could be filed by:

• An adult who had actual possession and control of the child for at least two months during the three-month period preceding the filing of the petition; or

• Another adult whom the trial court determined had substantial past contact with the child sufficient to warrant standing.

The court treated section 102.005 as an independent standing provision rather than an extension of section 102.003. It cited its prior decisions recognizing that section 102.005 may confer standing on a person who does not qualify under the more general SAPCR-standing provisions.

The court also applied In re H.S. when addressing Mother’s argument that “control” required Foster Parents to possess legal authority over Liam. Under H.S., statutory language referring to actual care, control, and possession does not necessarily require ultimate legal authority over the child.

Finally, the court construed section 102.0031 according to its text and statutory placement. The affidavit requirement associated with section 102.003 does not extend to a petitioner who independently qualifies under section 102.005.

Application

The record established that Liam had lived continuously with Foster Parents since April 2022. They filed suit in October 2022, after caring for him for approximately six months. Those undisputed circumstances supported the trial court’s findings that Foster Parents had actual possession and control of Liam for at least two months during the relevant three-month period and that they had substantial past contact with him.

Mother argued that physical possession and day-to-day control were insufficient because Foster Parents lacked formal legal control. The court rejected that construction. Relying on In re H.S., it concluded that the statute did not require Foster Parents to hold ultimate legal authority over Liam. Their continuous possession and exercise of parental functions satisfied the applicable statutory standard.

Once section 102.005 standing was established, the alleged defects under section 102.003 were no longer dispositive. Even if Foster Parents could not prove standing under section 102.003(a)(9) or section 102.003(a)(12), section 102.005 supplied an independent basis for them to maintain the termination-and-adoption proceeding.

The same reasoning disposed of Mother’s section 102.0031 argument. The affidavit requirement could not be imported from the section 102.003 standing framework into section 102.005. Treating section 102.0031 as a limitation on section 102.005 would disregard the Legislature’s decision to provide separate standing provisions for different forms of relief.

Although Mother had not objected to standing below, the court declined to find waiver. Under In re H.S., standing remained a jurisdictional issue that could be raised for the first time on appeal. Mother could therefore present the challenge, but the challenge failed on its merits.

Holding

The Fourteenth Court held that Foster Parents established standing under section 102.005. Liam’s continuous placement with them satisfied the statute’s actual-possession-and-control requirement and supported the trial court’s substantial-past-contact finding.

The court held, as a matter of first impression, that section 102.0031’s nonparent-affidavit requirement does not apply to a person who independently establishes standing under section 102.005 to pursue termination of parental rights joined with adoption. Section 102.005 confers standing separately from section 102.003.

The court further held that it did not need to decide whether Foster Parents also had standing under section 102.003(a)(9) or section 102.003(a)(12). The independently sufficient section 102.005 ground resolved the jurisdictional question.

Finally, the court rejected Foster Parents’ waiver argument. Mother was entitled to raise standing for the first time on appeal because statutory standing in a SAPCR implicates subject-matter jurisdiction. The termination judgment was affirmed.

Practical Application

For petitioners, the principal lesson is to plead the standing provision that corresponds to the relief actually requested. If the proceeding seeks termination joined with adoption, section 102.005 should be pleaded expressly and supported with facts addressing every statutory element. Counsel should not rely solely on the general standing provisions in section 102.003.

Alternative pleading remains prudent. A prospective adoptive parent may qualify under section 102.005 and one or more provisions of section 102.003. If section 102.003 is invoked, counsel should comply with any affidavit or pleading requirement applicable to that particular ground, even though noncompliance will not eliminate an independently established section 102.005 basis.

For respondents, an attack focused exclusively on section 102.003 may not dispose of the case. Before filing a plea to the jurisdiction or presenting an appellate standing challenge, examine the live petition, the relief requested, the evidence, and the judgment for every possible statutory basis for standing. An unchallenged alternative ground may independently sustain the proceeding.

The opinion also reinforces the importance of obtaining express standing findings. In termination-and-adoption cases, request findings addressing the dates and duration of possession, the nature of the petitioner’s control, the petitioner’s past contact with the child, and the relationship between the requested termination and adoption.

In divorce and post-divorce custody cases, do not assume that section 102.005 permits a nonparent to seek ordinary conservatorship or possession. Its application depends on the requested termination-and-adoption relief. A grandparent, stepparent, former foster parent, or other third party seeking only custody-related relief must establish standing under a statute authorizing that form of SAPCR.

Finally, preserve a complete standing record even when no jurisdictional objection is raised before trial. Because standing can be challenged for the first time on appeal, an uncontested trial record should still contain evidence proving the applicable statutory dates, placement history, decision-making responsibilities, daily care, and requested relief.

Checklists

Pleading Section 102.005 Standing

• Identify section 102.005 expressly as a basis for standing.

• Plead adoption or termination of the parent-child relationship joined with adoption, as required by the applicable version of the statute.

• Identify the specific subsection of section 102.005 on which the petitioner relies.

• Plead the dates on which the petitioner obtained possession and control of the child.

• Address the statutory lookback period measured from the filing date.

• Plead facts showing substantial past contact if relying on that alternative.

• Confirm which version of section 102.005 governs based on the date suit was filed.

• Plead alternative standing grounds when supported by the facts.

Building the Standing Record

• Obtain placement agreements, agency records, and communications concerning the child’s placement.

• Create a chronology showing where the child lived before suit was filed.

• Document the petitioner’s responsibility for medical care, education, childcare, transportation, and daily decisions.

• Establish who provided food, clothing, shelter, supervision, and financial support.

• Present testimony describing the petitioner’s relationship and substantial past contact with the child.

• Prove the filing date and connect it to each statutory timing requirement.

• Request express findings on possession, control, substantial past contact, and the statutory source of standing.

• Ensure that the termination and adoption requests are reflected in the live pleadings and final judgment.

Evaluating the Section 102.0031 Affidavit

• Determine whether standing is asserted under section 102.003.

• Identify the precise subsection invoked and whether section 102.0031 applies to it.

• If section 102.0031 applies, prepare and file the required affidavit rather than relying on an alternative-standing argument.

• Do not assume that section 102.0031 applies to section 102.005 standing.

• Keep the section 102.003 and section 102.005 analyses separate in the petition and supporting briefing.

• Explain why each standing ground independently authorizes the relief requested.

Challenging a Nonparent’s Standing

• Review the live petition rather than only the original petition.

• Identify every statutory standing provision supported by the pleadings or record.

• Determine whether the requested relief falls within section 102.005.

• Test the petitioner’s possession and control against the applicable statutory period.

• Challenge conclusory allegations of substantial past contact with record evidence.

• Do not limit the challenge to section 102.003 if section 102.005 may apply.

• Address alternative standing grounds in both trial and appellate briefing.

• Recognize that standing may be raised for the first time on appeal, but develop the issue in the trial court whenever possible.

Avoiding Appellate Vulnerability

• Prove standing even if the opposing party does not contest it.

• Obtain a ruling or express finding on each independently sufficient ground.

• Match the requested relief to the statute conferring standing.

• Avoid treating physical possession, legal custody, and statutory “control” as interchangeable concepts.

• Include all evidence necessary to calculate statutory timing periods in the reporter’s record.

• Brief the applicable version of the Family Code and any intervening amendments.

• On appeal, challenge every independent ground capable of supporting standing.

Citation

In re L.S., ___ S.W.3d ___, No. 14-26-00541-CV (Tex. App.—Houston [14th Dist.] Nov. 10, 2026, no pet. h.).

Full Opinion

Read the full opinion in In re L.S.

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