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.).