Family Code 102.004(a)(2) Consent Standing | In re Thapa (2026)

In re Ganga Thapa, 03-26-00406-CV, June 24, 2026.

On appeal from Williamson County

Synopsis

Texas Family Code Section 102.004(a)(2) gives a grandparent standing to seek managing conservatorship when the current managing conservator consents to the suit, and that same original-suit standing supports intervention in a pending SAPCR. In In re Thapa, the Third Court held that the trial court clearly abused its discretion by striking the grandmother’s intervention after the Department, as managing conservator, had consented, and mandamus was the proper remedy.

Relevance to Family Law

This is a standing case, but its practical effect is immediate for Texas family-law litigators handling CPS matters, modifications, and contested conservatorship disputes involving grandparents or other nonparents. The opinion confirms that in a live SAPCR, intervention analysis tracks original-suit standing unless a statute says otherwise, and that a managing conservator’s consent under Section 102.004(a)(2) is not merely persuasive—it is jurisdictionally sufficient to support a grandparent’s conservatorship claim. For practitioners in divorce and custody litigation, the broader lesson is strategic: when a nonparent’s standing depends on a statutory gateway, the record establishing that gateway must be locked down early, because trial courts do not retain free-floating discretion to disregard standing once the statute is satisfied.

Case Summary

Fact Summary

The Department of Family and Protective Services filed the underlying SAPCR concerning two children. The trial court later signed an agreed order terminating both parents’ rights and appointing the Department as managing conservator. At the same time, the parties—including the children’s attorney ad litem and guardian ad litem—entered into a Rule 11 agreement providing that they would not contest maternal grandmother Ganga Thapa’s standing to file an intervention or modification petition if she did so within ninety days of the termination decree.

Thapa filed within that window. Her pleading combined a petition in intervention in the pending SAPCR with a request related to adoption, and she later amended and requested leave to intervene. Her standing theory was straightforward: as the children’s grandmother, she had standing under Texas Family Code Section 102.004(a)(2) because the children’s managing conservator, the Department, had consented to the suit. The Department then filed its own written consent to filing and also requested visitation orders designed to support what it described as a path toward permanency with Thapa.

Despite that consent posture, the trial court raised standing sua sponte at a temporary-orders hearing. After briefing and a later hearing, the trial court orally ruled that Thapa lacked standing and effectively struck her intervention, even though no written order memorializing that ruling had yet been signed. The docket reflected the trial court’s view that it retained discretion to allow or deny intervention even if the statutory requirements were met. Thapa sought mandamus relief, and notably the Department agreed that mandamus should be granted.

Issues Decided

• Whether a grandparent has standing under Texas Family Code Section 102.004(a)(2) to bring an original suit for managing conservatorship when the current managing conservator consents to the suit.
• Whether that original-suit standing also allows the grandparent to intervene in a pending SAPCR.
• Whether a trial court may strike the intervention notwithstanding the managing conservator’s consent.
• Whether mandamus is the proper remedy for an order effectively denying intervention in a SAPCR on standing grounds.

Rules Applied

The court relied on several familiar standing and mandamus principles, along with one key Family Code provision.

• Standing in a SAPCR is jurisdictional and is reviewed as a question of law. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018).
• A party seeking conservatorship must establish standing consistent with the Texas Family Code. In re Ramirez, No. 03-21-00145-CV, 2021 WL 1991269, at *3 (Tex. App.—Austin May 19, 2021, orig. proceeding) (mem. op.).
• Mandamus is available when the trial court clearly abuses its discretion and there is no adequate appellate remedy. Walker v. Packer, 827 S.W.2d 833, 838, 840 (Tex. 1992) (orig. proceeding).
• An erroneous legal conclusion constitutes an abuse of discretion, even in an unsettled area of law. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996) (orig. proceeding).
• It is well established that a party denied intervention in a SAPCR lacks an adequate appellate remedy, making mandamus an appropriate vehicle. In re Ramirez, 2021 WL 1991269, at 2; In re Salverson, No. 01-12-00343-CV, 2012 WL 1454549, at *3 (Tex. App.—Houston [1st Dist.] Apr. 23, 2012, orig. proceeding) (mem. op.).
• Under Texas Family Code Section 102.004(a)(2), a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof that the managing conservator or custodian consented to the suit.
• As a general rule, an intervenor in a pending SAPCR must be able to show standing to bring an original suit unless a statute expressly authorizes intervention, and the burden to intervene is not higher than the burden to initiate the original suit. In re S.B., No. 02-11-00081-CV, 2011 WL 856963, at 2-3 (Tex. App.—Fort Worth Mar. 11, 2011, orig. proceeding) (mem. op.); City of Rockwall v. Hughes*, 246 S.W.3d 621, 625-26 (Tex. 2008).

Application

The Third Court treated the problem as a clean standing question, not a discretionary case-management issue. Once the Department became the children’s managing conservator, its consent mattered under the plain text of Section 102.004(a)(2). Thapa, as a grandparent, therefore fit within a statutory pathway that authorized her to file an original suit for managing conservatorship so long as there was satisfactory proof of the Department’s consent. There was not merely inferential proof here; there was a Rule 11 agreement and, more importantly, a filed written consent from the Department itself.

From there, the rest of the court’s reasoning followed the established intervention framework. Because a nonparent intervenor ordinarily must show standing to bring the same claim as an original suit, and because the burden to intervene is no greater than the burden to file that original action, Thapa’s Section 102.004(a)(2) standing necessarily carried over into the pending SAPCR. The court relied on In re S.B. for that proposition and rejected the trial court’s apparent premise that it retained residual discretion to deny intervention despite satisfaction of the statutory standing requirements.

The mandamus posture was equally straightforward. The trial court’s ruling rested on a legal conclusion about standing. If that legal conclusion was wrong, it was an abuse of discretion. And because erroneous denial of intervention in a SAPCR cannot be adequately remedied on appeal, extraordinary relief was appropriate. The appellate court therefore conditionally granted mandamus and directed the trial court to vacate both its standing finding and its ruling striking the petition in intervention.

Holding

The court held that a grandparent who obtains the consent of the children’s managing conservator has standing under Texas Family Code Section 102.004(a)(2) to bring an original suit requesting managing conservatorship. In this case, the Department’s consent supplied the statutory basis for Thapa’s standing.

The court further held that because Thapa had standing to bring an original conservatorship suit, she also had standing to intervene in the Department’s pending SAPCR. The law does not impose a higher standing burden on an intervenor than on a party initiating the same conservatorship claim as an original action.

Finally, the court held that the trial court clearly abused its discretion by striking Thapa’s intervention despite the Department’s consent and that mandamus was the proper remedy because there was no adequate remedy by appeal. The writ was conditionally granted.

Practical Application

For practitioners, Thapa is most useful as both a pleading case and a record-making case. If you represent a grandparent seeking to enter a pending CPS or post-termination SAPCR, Section 102.004(a)(2) should now be front and center whenever the Department or another managing conservator is willing to consent. Do not leave the consent implicit. Put it in a filed writing, tie it expressly to Section 102.004(a)(2), and frame intervention as a direct extension of original-suit standing.

The case also matters for lawyers representing the Department, foster-placement stakeholders, or children’s advocates. If permanency planning includes a grandparent track, Thapa confirms that a formal consent can open the courthouse door for that relative. That can be advantageous where the agency wants the relative to participate fully, seek conservatorship, or position the matter for adoption or monitored return alternatives.

For litigators opposing intervention, Thapa narrows the available attack when statutory consent exists. The fight will usually have to shift away from standing and toward the merits, best interest, placement evidence, permanency concerns, or the scope of relief. Put differently, once Section 102.004(a)(2) is satisfied, the court cannot simply invoke generalized discretion to keep the grandparent out of the suit.

The opinion also has implications beyond CPS dockets. In private custody disputes, including modification suits arising out of divorce decrees, family-law litigators should revisit whether a nonparent relative may have a viable statutory standing theory if the existing managing conservator consents. Even if the surrounding facts differ, the structural lesson remains the same: standing statutes are not advisory, and courts must apply them as written.

A few strategic takeaways stand out:

• If you represent the grandparent, prove consent with multiple record anchors: a Rule 11 agreement, a written consent, hearing admissions, and live testimony if needed.
• If you represent the managing conservator and intend to consent, draft the consent carefully so there is no ambiguity about the relief being supported.
• If you represent an opposing party, evaluate whether the challenge is truly to standing or instead to the requested conservatorship outcome; conflating the two is unlikely to survive mandamus review.
• If the trial court orally denies standing or effectively strikes intervention without signing an order, preserve the oral ruling and docket notation in the mandamus record.

Checklists

Building a Section 102.004(a)(2) Standing Record

• Confirm the petitioner is a grandparent within the meaning of the statute.
• Confirm who currently serves as managing conservator or custodian.
• Obtain written consent from the managing conservator or custodian expressly consenting to the suit.
• Cite Texas Family Code Section 102.004(a)(2) in the petition itself.
• Attach or separately file the written consent so it is part of the clerk’s record.
• If there is a Rule 11 agreement, ensure it is signed, filed, and specific as to timing and scope.
• Request a hearing if the trial court raises standing sua sponte.
• Make a clear record that the standing basis is statutory consent, not merely equitable participation.

Drafting the Intervention Petition

• Plead intervention in the existing SAPCR and identify the cause number accurately.
• Allege the specific statutory basis for standing under Section 102.004(a)(2).
• State that the intervenor would have standing to file an original suit for managing conservatorship.
• Describe the managing conservator’s consent with dates and references to filed documents.
• Distinguish standing allegations from merits allegations regarding best interest and conservatorship.
• If adoption-related relief is sought, separately identify the legal basis for that relief.

Responding to a Trial Court’s Standing Concerns

• Ask the court to specify the perceived jurisdictional defect.
• Submit a focused brief on statutory standing and intervention law.
• Cite In re H.S., Walker, In re S.B., and Thapa.
• Emphasize that intervention standing is not subject to a higher burden than original-suit standing.
• Object to any suggestion that the court has unfettered discretion to deny intervention once statutory standing is established.
• Ensure a court reporter is present for all hearings addressing standing.

Preserving the Mandamus Record

• Obtain the reporter’s record of the oral ruling.
• Include docket entries reflecting the court’s standing determination.
• File a written request for a signed order if none issues.
• Include the intervention petition, amended pleadings, Rule 11 agreement, and written consent in the mandamus appendix or record.
• Show why appeal is inadequate under SAPCR intervention precedent.
• If the real party agrees the ruling was erroneous, secure that position in a filed response.

Opposing Intervention Without Repeating the Trial Court’s Error

• Analyze whether the statute actually applies before filing a standing challenge.
• Test the sufficiency and authenticity of the alleged consent, not merely its policy wisdom.
• Consider whether the petitioner’s requested relief exceeds what the consent supports.
• Separate jurisdictional objections from merits-based arguments about conservatorship, best interest, and permanency.
• Avoid arguing that the court may deny intervention solely in its discretion once statutory standing exists.
• Build a factual record on why the intervenor should not prevail on the merits, even if standing is present.

Citation

In re Ganga Thapa, No. 03-26-00406-CV, 2026 WL ___ (Tex. App.—Austin Jan. 24, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion here

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