FAMILY
LAW
FALL
2009
Waltenburg v. Waltenburg, 270 S.W.3d 308 (Tex. App.Dallas 2008)
Uniform Child Custody Jurisdiction and Enforcement
Act: This case presented a fairly straight-forward issue: whether the
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied to an
unborn child. The Mother and the Father
were married and residing in Arizona.
Shortly before giving birth to the child at issue, the Mother left the Father
and moved to Texas where the child was born.
After the Mother’s departure, but prior to the birth of the child, the Father
filed his petition in Arizona, seeking to divorce the Mother and to obtain
custody of the unborn child. After the
birth of the child, the Mother filed her own petition in Texas, similarly
seeking to divorce the Father and to obtain custody of the child. The Father filed a plea in abatement,
challenging the Texas court’s jurisdiction.
After conferring with the Arizona court, the Texas district court
dismissed the Mother’s case, concluding that the Arizona court had continuing
exclusive jurisdiction pursuant to Texas Family Code § 155.002, although it was
not clear what order the Arizona court entered that could have resulted in it
acquiring continuing exclusive jurisdiction.
In any event, the Arizona court subsequently entered a final divorce
decree as well as an order regarding the child custody issues. That then raised the question of which of the
states had jurisdiction to make a custody determination of the child.
The UCCJEA, codified in chapter 152 of the Family
Code, was adopted specifically to address this kind of situation, and served as
the exclusive basis for jurisdiction over child custody issues. § 152.201 set out a hierarchy of four
jurisdictional basis, with home state jurisdiction having the highest priority
among the different basis for exercising jurisdiction. Pursuant to § 152.102, the “home state” was
defined as the place where a child had lived with a parent for at least six
consecutive months preceding the suit, or in the case of an infant, the place
where the child had lived with a parent since birth. None of the other jurisdictional basis was
considered unless the child did not have a home state or the home state court
declined to exercise jurisdiction as provided by the UCCJEA. If there was no home state jurisdiction,
potentially two states could legitimately have jurisdiction on the same basis,
in which case, pursuant to § 152.206, a first-in-time rule applied. The Father argued that the UCCJEA did not
apply to unborn children, and therefore, the Arizona judgment must be given
effect based on comity. Held: The appellate court agreed with the
Father about the UCCJEA’s applicability–to a point. Based on the definition of “child” the court
concluded that indeed, the UCCJEA did not apply to unborn children, as had been
the conclusion reached by a number of other courts that have decided the
issue. In part, the court was concerned
that to hold that the UCCJEA was applicable to unborn children would result in
pre-birth filings, with jurisdiction based on one of the lower priority
jurisdictional basis, including potentially that no other state had
jurisdiction (sometimes referred to as vacuum jurisdiction), and a party
relying on § 152.206 to control jurisdiction.
Such an outcome would be inconsistent with the goal of prioritizing home
state jurisdiction above the other basis.
Having decided that the UCCJEA did not apply to unborn children, the
court did not adopt the Father’s conclusion that comity should result in
recognition of the Arizona judgment.
Rather, according to the UCCJEA, jurisdiction should be determined at
the time a case was filed. As such,
Arizona did not have jurisdiction at the time that suit was filed. Texas did have jurisdiction at the time of
the Mother’s petition, however, based on home state jurisdiction. The Texas district court could have declined
jurisdiction on the basis of inconvenient forum and that another court was a more
appropriate forum. There was no
indication, however, that this consideration played any role in the court’s
conclusion that Arizona had jurisdiction, and the appellate court declined to
infer that the court found Texas to be an inconvenient forum. In short, Texas had jurisdiction to make the
initial child custody determination, and the court remanded the case to the
district court.
In re S.J.A., 272 S.W.3d 678
(Tex. App.Dallas 2008)
Modification of a Child Custody Order: The
court was called on to determine whether Texas or Florida had jurisdiction to
modify a child custody order. The
factual posture of this case was a bit unusual in that the dispute was between
the children’s biological Mother and their Stepmother following the death of
the children’s Father. The Stepmother,
who resided in Florida, claimed that Texas had jurisdiction pursuant to the
UCCJEA, while the Mother, who resided in Texas, argued that Florida had
jurisdiction. The children at issue were
residing in Louisiana when their parents divorced and a Louisiana court entered
the initial child custody order, giving the Father primary custody of the
children. Eventually, the Father, the
children moved to Florida; the Mother subsequently moved to Florida as
well. But for those moves, Louisiana
would likely have been the court with continuing exclusive jurisdiction on the
custody issues. Once in Florida, the Father
remarried such that the children primarily resided with him and their Stepmother. When the Father died, the children indicated
their desire to continue residing with the Stepmother in Florida. The Mother, however, wasted little time in
seeking immediate custody of the children, filing her petition in Florida just
one month following the Father’s death.
The Florida court did not enter an order, but rather indicated that the
children should have time to grieve the death of their Father. Two months later, when the Mother picked the
children up for a weekend visit, the Florida court had still not entered an
order. The Mother’s weekend visit turned
out to be something more when she brought the children to Texas where her
fiancé and other children were living.
That prompted the Stepmother to file suit in Texas, seeking custody of
the children, and the trial court favored the Stepmother, appointing her the
sole managing conservator while appointing the Mother the sole possessory
conservator of the children. The Mother
appealed the trial court’s order, claiming that Texas lacked jurisdiction to
enter a child custody order. That
prompted the Mother’s appeal.
In analyzing the case, the court turned to the
provisions of the UCCJEA to determine which state had jurisdiction. No one argued that Louisiana, which had
entered the initial custody determination, continued to have jurisdiction,
which made sense given that no one with an interest had any connection to
Louisiana at the time of the Stepmother’s petition. Had a motion to modify the custody order been
filed during the long stretch of time when the Mother, the Father, and the
children lived in Florida, clearly Florida would have had home state
jurisdiction, the jurisdictional basis afforded the highest priority in § 152.201;
the children had resided in Florida with a parent for at least six consecutive
months. The Florida’s entry of a child
custody order would have resulted in Florida having continuing exclusive
jurisdiction to enter orders related to custody. However, prior to the Father’s death, a
Florida court entered only one order, and it pertained to child support rather
than child custody. Consequently, when
the Stepmother filed her suit in Texas, the question arose as to where
jurisdiction was proper inasmuch as there was no court that had continuing
exclusive jurisdiction.
Held: The court
looked to Texas Family Code § 152.201 and concluded that Florida did not have
home state jurisdiction once the Father passed away. By definition, home state jurisdiction was
dependent on the child residing in the state with a parent or “person acting as
a parent” for six months or, in the case of extended home state jurisdiction, a
parent or person acting as a parent continuing to live in the home state,
although the child was absent from the state.
See §§ 152.102; 152.201(a).
The court concluded that the Stepmother did not qualify as a “person
acting as a parent” because although she acted as a parent and arguably had had
physical custody of the children for years when the statute required custody
for a mere six consecutive months, she had never been awarded legal custody by
a court and had no other claim to custody under the law. In short, Florida did not have home state
jurisdiction. Texas also could not claim
home state jurisdiction, given that at the time the Stepmother filed suit in
Texas, the children had lived in Texas less than five months, albeit with a
parent, when home state jurisdiction required six months of residence in the
state. Because the children had no home
state at the time of the Stepmother’s suit, the court needed to look to one of
the other basis in § 152.201 for jurisdiction.
Significant connection jurisdiction was given priority after home state
jurisdiction. It turned on the nature
and quality of the children’s contacts with a state. A state was not required to have the most
significant connections to the children, as long as there were significant connections. In the present case, the fact that the Mother,
her fiancé, and her other three children lived in Texas was sufficient for a
Texas court to exercise jurisdiction on this ground. Consequently, Texas had jurisdiction to enter
an order appointing the Stepmother sole managing conservator.
In re Nabors, 276 S.W.3d 190 (Tex. App.Houston [14th Dist.] 2009)
Venue: The court
sided with the foster parents who argued that venue was properly transferred to
their county of residence because the foster children had resided with them
there prior the State’s removal of the children from their foster home. The children had resided with the Nabors in
Fort Bend County for some 17 months before the Texas Department of Family and
Protective Services removed the children from their home. The rights of the children’s biological
parents had previously been terminated by a court in Harris County. Consequently, two weeks after the children’s
removal from their home, the Nabors filed a petition to adopt the children in
the Harris County court and sought to transfer venue to Fort Bend County. The Department objected to the transfer of
venue, arguing that § 103.001 provided that a child resided in the county where
his parents reside. According to the
Department, upon the termination of the rights of the biological parents, it
was appointed the temporary managing conservator, and as such, it should be
denominated the “parent” of the children, and thus venue was proper in Harris
County.
Held: The court
rejected the Department’s argument, as have a number of other appellate courts,
opting to focus on the plain language of the Family Code, which was the
exclusive source of the rules for venue in suits affecting the parent-child
relationship. The plain language of § 155.201(b)
made a transfer of venue mandatory when the children have resided in a county
for at least six months when the modification suit was filed. The statute did not specifically require that
the children presently reside in the county on the date the modification was
filed, but rather, in determining a child’s county of residence, the court was
to look to the child’s principal residence during the six months preceding the
commencement of the suit, pursuant to § 155.203. That section did not require that the period
of residence be continuous or uninterrupted.
Rather, the court interpreted it to require a consideration of the
elements of permanency that were critical to establishing the county of
residence for venue purposes. To do
otherwise, the court suggested, was to allow parties to manipulate the venue
issue by spiriting the children away to a new county prior to filing a motion
to transfer venue.
Note: One
judge dissented, concluding that the majority erred in suggesting that venue
was mandatory in any county where a child had resided at least six months at any
time in the past. This judge
interpreted Family Code § 155.201 to require transfer when the children have
lived in the new county at least six months prior to the date the motion to
transfer venue is filed, with the six months ending on the date of the
filing. He carefully analyzed the verb
tense used in § 155.201 to reach his conclusion. He further concluded that to interpret Family
Code § 155.201(b) as the majority did renders § 155.202(a), which addresses
discretionary transfers of venue, meaningless.
As between the two, the majority opinion appears to be better
reasoned. It seems consistent with the
language of § 155.201(b) as well as with the spirit of that section inasmuch as
venue was in the county where much of the evidence relevant to the underlying
issues was likely to be easily available.
The dissenting justice seemed to misread the majority opinion because no
where did it suggest that venue would be proper in a county where years have
passed since the children resided there simply because they at one time resided
there for six months. Moreover, the
court’s conclusion was consistent with the policy of the Uniform Child Custody
Jurisdiction and Enforcement Act, in which a state generally retained
jurisdiction until a child has lived elsewhere for six months.
In re J.M.T.,
280 S.W.3d 490 (Tex. App.Eastland 2009)
Grandparents’
Rights: This controversy involved a battle between
the grandparents of J.M.T. His paternal
grandparents, with whom he had been living for some 18-months, succeeded in
terminating the rights of his biological parents and adopting J.M.T. Consequently, the paternal grandparents were
legally J.M.T.’s parents. His maternal grandparents
consequently sought court-ordered visitation with J.M.T., which the trial court
granted, notwithstanding the opposition of J.M.T.’s paternal grandparents. The paternal grandparents were quite willing
to allow visits, but simply did not wish to be bound by a fixed schedule
ordered by the court. Held: The appellate court reversed the
trial court’s order, finding that it had abused its discretion. § 153.433 addressed grandparents’ rights and
was amended following the decision in Troxel v. Granville, 530 U.S. 57 (2005), in which the Supreme
Court held that fit parents enjoy a fundamental right to make decisions about
the care, custody, and control of their children. Consequently, § 153.433 established a
presumption that fit parents act in the best interest of their children. To rebut the presumption, the grandparents
who were seeking visitation must prove that denial of access to the child would
significantly impair the child’s physical health or emotional well-being. The appellate court concluded that the
maternal grandparents would face two problems in trying to obtain visitation. First, the grandparents, now as the legal
parents of the child, were entitled to rely on the presumption that benefits
fit parents. All of the evidence,
including testimony of the maternal grandparents, supported a conclusion that
the paternal grandparents indeed were fit.
Moreover, there was no evidence that the paternal grandparents intended
to deny access to J.M.T. In fact, the
paternal grandparents testified that they wanted J.M.T. to have a healthy
relationship with his other grandparents.
Finally, if there was anything that suggested that the child’s emotional
development would be impaired, the maternal grandparents failed to put it into
evidence. Note: It should be noted that the grandparents avoided the
implications of § 153.434 which denied standing to grandparents if the parental
rights of both parents have been terminated.
The maternal grandparents intervened in the suit filed by the paternal
grandparents that sought to terminate the parental rights. Consequently, at the time they sought
visitation, J.M.T.’s biological parents’ rights were still intact.
In the Interest of A.M.S., 277 S.W.3d 92 (Tex. App.Texarkana 2009)
Standing: The
court concluded that A.M.S.’s aunt had standing to seek appointment as a
managing conservator of the child, but her uncle did not. Shortly after A.M.S.’s birth, her Aunt
Darlene and Uncle Larry sought to be appointed joint managing conservators. They based their standing to file a Suit
Affecting the Parent-Child Relationship on § 102.004(a), which granted standing
to a grandparent or another relative of the child related within the third
degree by consanguinity, provided that at least one of three other conditions
were satisfied. Ultimately, the aunt and
uncle relied on subsection (2) of § 102.004(a), allowing standing if both
parents consented to the suit. A.M.S.’s
parents’ challenged the aunt’s and uncle’s standing on the grounds that their
consent was not obtained until after the aunt and uncle had filed their
SAPCR. The parents argued that allowing
consent after the filing of the SAPCR made the provision unconstitutional in
that it violated the open courts provision and the separation of powers
doctrine. According to the parents, § 102.004(a)
resulted in a waiver of the constitutional requirements of standing. The court explained that in addition to the
constitutional limitations on standing (i.e. that a party must demonstrate a
particularized injury), standing can be limited by statutory or common law
authority. Held: The court concluded that § 102.004(a) was an example of a
statute that placed additional limits on standing in that only certain
relatives were allowed to file SAPCRs.
Furthermore, the court rejected the parents’ argument that consent must
be given prior to the relatives filing their SAPCR. The statute contained no such requirement,
and the court declined to rewrite the statute to add such a requirement. The court did, however, conclude that Uncle
Larry did not have standing. Aunt
Darlene was a sister to A.M.S.’s Father.
Consequently, she was very clearly a relative within three degrees of
consanguinity. On the other hand, Uncle
Larry, the husband of Aunt Darlene, was a relative only by affinity. The court assumed that the legislature was
familiar with the definition of consanguinity, and thus it refused to interpret
the term beyond its very specific definition.
In the Interest of N.A.F. 282 S.W.3d 113 (Tex. App.Waco 2009)
Involuntary Termination of Parental
Rights Sufficiency of Evidence: The court reversed the trial court’s
termination of a Father’s parental rights based on the insufficiency of
evidence. The child’s Mother petitioned
the court to terminate the Father’s rights on the grounds that the Father had
failed to support the child. She put on
evidence that for nearly two years, she had not received the full amount of
support previously ordered. She did not,
however, put on any evidence of the Father’s ability to pay, and that was the
flaw in the case that resulted in the appellate court’s reversal. The appellate court, in rejecting the
reasoning in In re R.R.F., 846
S.W.2d 65 (Tex. App.Corpus
Christi 1992, writ denied), explained
that the burden of proof in a contempt case was different than that in a
termination case. In a contempt
proceeding, the child support obligor could raise as an affirmative defense his
inability to pay, and as such, must prove it.
On the other hand, in a termination case, the petitioner must prove by
clear and convincing evidence one of the statutory grounds set out in § 161.001,
as well as that termination was in the best interest of the child. § 161.001(F) authorized termination when a
parent “fails to support the child in accordance with the parent’s ability
during a period of one year . . .” (emphasis added). As such, the Mother’s proof was deficient and
reversal was proper.
Vallejo v. Texas Dept. of Family Protective Services, 280 S.W.3d 917 (Tex. App.Austin 2009)
Grounds for Termination of
Parental Rights: The execution of a voluntary relinquishment of
parental rights did not result in an immediate and automatic termination of the
affiant’s parental rights. Rather, the
court was free to find other basis that support the termination, and the court
must additionally find that termination was in the child’s best interest, as was
set out in Texas Family Code § 161.001.
Vallejo signed an affidavit of relinquishment. He later objected to the court’s terminating
his rights because the order stated other grounds besides the affidavit for
terminating his parental rights and the order expressly stated that termination
was in the child’s best interest.
Vallejo did not contest the actual termination. Rather, he challenged the alternative grounds
out of concern for the future and how those findings could affect his rights to
other children he might have. However § 161.001,
as well as § 161.003, which addressed voluntary relinquishment, anticipated a
finding regarding best interest, and it did not limit the court’s discretion to
make alternative findings regarding the basis for termination.
In re Dept. of Family and Protective Services, 273 S.W.3d
637 (Tex 2009)
Termination Dismissal Date Issue: The
provisions of § 263.401 continue to raise many legal questions. That provision established a dismissal date
approximately one year following the date the Department of Family and
Protective Services was appointed temporary managing conservator. Before the dismissal date, the court must
render a final order or dismiss the case.
The provision allowed for one 180-day extension, provided that the court
makes the necessary findings. In this
case, having removed the children from the Mother’s care and been appointed the
children’s temporary managing conservator, the Department later sought to
terminate the Mother’s parental rights.
Prior to the dismissal date, the case was tried and the trial court
rendered its order terminating the Mother’s rights. The dismissal date came and went, and only
after that date did the Mother move for a new trial. Neither the Department’s attorney nor the
attorney for the children considered the implications of a new trial, including
that such a grant would vacate the court’s order terminating the Mother’s rights. The trial court in fact granted the Mother’s
motion, but no one sought the statutory 180-day extension, nor did the court sua
sponte make the necessary findings and enter an order extending the
dismissal date. The court did set a new
trial date, and the parties subsequently agreed to continue the case because
the attorneys were in trial elsewhere.
Almost eight months after the one-year dismissal date, the Mother moved
to dismiss the case on the grounds that the court had failed to enter a final
order prior to the dismissal date. The
court denied the Mother’s motion.
Consequently, the Mother sought mandamus relief to require the trial
court to dismiss her case, and the appellate court granted the Mother’s
mandamus petition.
The first issue before the court was whether the trial
court retained jurisdiction over the case once the dismissal date passed and
the court failed to extend the case for 180 days, as set out in § 263.401. The Supreme Court concluded that § 263.401
was not jurisdictional. The court
reasoned that subject-matter jurisdiction cannot be waived by the parties. § 263.402, however, specifically provided for
waiver if a party failed to make a timely motion to dismiss the suit or to
enter a final order. Therefore, because
a party could waive the right to dismissal as laid out in § 263.401, it must
not be jurisdictional in nature, according the court. Moreover, the court was concerned with the
implications of concluding that § 263.401 was jurisdictional in nature, given
that to hold as such would open up some termination orders to collateral attack
long after those orders had been entered and the kids adopted by new parents. The court next addressed whether the Mother
had actually waived her right to dismiss.
As § 263.402 read at the relevant time, a party waived dismissal when
she failed to make a timely motion to dismiss or failed to make a motion
requesting that the court enter a final order before the dismissal deadline. A motion to dismiss was timely if the motion
was made prior to the Department’s introducing all of its evidence. See § 263.402. The court concluded that the Mother had not
waived her right to seek dismissal. The
Department argued that the Mother failed to move for a final order prior to the
dismissal date. However, when, prior to
the one-year dismissal date, the court issued its oral order terminating her
rights, that constituted a final order.
Therefore, according to the court, it would have made little sense to
request the court to enter a final order simply for the sake of avoiding
waiver; the court had already done so.
Of course, the trial court granted the Mother a new
trial after the dismissal date had passed, although it failed to extend the
dismissal deadline by the 180 days allowed by statute. The consequences of that was to vacate the
final order that had been issued.
Consequently, the Mother’s motion to dismiss occurred long past the
dismissal date and when there was no final order, but prior the Department introducing
all of its evidence. That was sufficient
to make her dismissal motion timely.
Because the trial court had no discretion about dismissing the case, the
trial court’s failure to do so was an abuse requiring mandamus relief. In response to the dissent’s conclusion that the
Mother invited error by seeking a new trial and the majority opinion had
essentially made the deadlines set out in §263.401 unwaivable, the court
refused to require the Mother to forfeit her dismissal right simply because
neither the trial court, nor apparently the attorneys for the Department or the
children, realized the implications for the grant of a new trial. The Department or the attorney for the
children could have opposed the motion for new trial or sought the 180-day extension
if they believed it was in the children’s best interest to do so. Note:
§ 263.401 has since been amended, but the outcome would likely to be the same
under the amended section. § 263.401 now
requires dismissal only where a trial on the merits has not commenced prior to
the dismissal date, rather than when the court has failed to enter a final
order. That section has also been
amended to delete one of the grounds for waiver, namely, failure to request the
trial court to render a final order before the dismissal deadline. It also has
been amended to redefine a timely motion to dismiss to be one that is filed
prior to the commencement of a trial on the merits, moving forward the deadline
for a timely motion to dismiss.
Texas Dept. Of Family and Protective Services v.
Dickensheets, 274 S.W.3d 150 (Tex. App.Houston [1st Dist.] 2008)
§ 263.041 Unconstitutional?: In yet another
case involving § 263.401, the Department of Family and Protective Services
challenged the constitutionality of this provision. It attempted to equate § 263.401 with the
Speedy Trial Act found unconstitutional by the court of criminal appeals in Mehell
v. State, 739 S.W.2d
246 (Tex. Crim. App. 1987). The Mehell
court concluded that the Speedy Trial Act encroached on the district attorney’s
exclusive prosecutorial discretion in his preparation of cases. The Department attempted to make a similar
argument about § 263.401, claiming that it encroached on the district
attorney’s prosecutorial discretion, and as such, it violated art. II, § 1 of
the Texas Constitution. The court first
reviewed the reason the Legislature enacted §263.401. According to the court, the provision was
meant to provide guidelines for assuring that Texas children do not languish in
the State’s care, but rather were either returned to their families or adopted
as quickly as possible. The purpose was
not to speed up the prosecutor’s preparation and readiness for trial, as was
the case with the Speedy Trial Act. Moreover,
unlike the Speedy Trial Act, missing the deadline set out in § 263.401(a) did
not necessarily result in dismissal of the case. Rather, § 263.401(b) allowed for a 180-day
extension provided that the court made the finding that continuing the
Department’s temporary managing conservatorship was in the child’s best
interest. Moreover, pursuant to § 263.403,
notwithstanding the deadlines set out in § 263.401, the trial court could
retain jurisdiction of the case even after the dismissal date, provided that
the conditions set forth in § 263.403 were satisfied, including returning the
child to the child’s parents. In other
words, there were a number of ways for the Department to avoid dismissal at the
one year deadline. The court further
distinguished Mehell in that the Speedy Trial Act mandated
dismissal with prejudice, whereas dismissal in these family law cases is
without prejudice. The Department may
refile the case, asserting the same grounds for termination as were asserted
in the original suit. Only if the
Department wished to retain the child in foster care must the Department allege
new facts to support its claim that returning the child to his parent would
endanger the child. In short, the
Department failed to make the case that § 263.401 was unconstitutional.
In the Interest of M.L.B., 269 S.W.3d 757 (Tex. App.Beaumont 2008); In the Interest of N.C.M., 271 S.W.3d 327 (Tex. App.–San Antonio 2008)
Parental Termination; Constitutionality of Family Code
§ 263.405: The petitioners in both cases challenged the
constitutionality of Texas Family Code §
263.405, which set up a process for expedited appeal of termination
cases. The party seeking appeal had
only 15 days after a judgment was signed to request a new trial or to file
points for appeal. The trial court must
then hold a hearing to determine, among other issues, whether the appeal was
frivolous. § 263.405(I) precluded
raising an issue in the appellate court that was not specifically presented to
the trial court in the points for appeal.
In M.L.B., the Mother whose rights were subject to
termination was represented by appointed counsel for her bench trial. After the court’s order terminating the Mother’s
parental rights, the Mother’s trial lawyer timely filed the points for appeal,
as required by § 263.405(b), and the court conducted a vigorously contested
hearing on the points for appeal. The
Department of Family and Protective Services essentially took the position that
any appeal would be frivolous given the Mother’s long history of drug abuse and
evidence that she continued to abuse drugs and miss drug tests even after
completing a 90 day rehabilitation program.
The Mother’s trial lawyer argued that her appeal was not frivolous
because although the child at issue tested positive for controlled substances
at birth, the Mother was not aware that her drug use would harm her unborn
child. One point that was not raised or
argued at the hearing was an ineffective assistance of counsel claim, given the
obvious conflict of interest. The trial
court ultimately found that the Mother’s appeal would be frivolous.
Pursuant to the expedited procedure, the Mother’s
appeal of the trial court’s finding that her appeal was frivolous meant that
proceedings in the appellate court were subject to the expedited review set out
in § 263.405(g). Pursuant to that
section, the appellant was entitled to a record of the post-trial hearing, free
of charge, but the short deadline by which pleadings must be filed, coupled
with the fact that § 263.405(h) limited the appellate court’s ability to extend
the deadline for filing the pleadings except in instances of good cause meant
that the appellate court did not have a complete record of the trial at the
time it considered the appeal. Based on
the various deadlines set out in § 263.405, the Mother claimed that § 463.405(b)
was unconstitutional on due process grounds, because neither her appellate
lawyer nor the appellate court would have the full trial record for the
appeal. She further claimed that § 236.405
was unconstitutional on equal protection grounds. Held: The court concluded that § 263.405 presented no equal
protection problem because it was applied without regard to ability to
pay. The lack of the complete record was
based on the fact that an appeal would be frivolous. According to the court, the State had a
compelling interest in avoiding a delay in resolving the child’s future while
awaiting the preparation of a record.
While a parent had an interest when there were substantial issues to
appeal, there was no compelling reason to delay the appeal to allow for
preparation of a complete record when the parent’s issues were demonstrably
frivolous. Moreover, the court concluded
that there was no due process problem because the lack of the full record did
not preclude the Mother from meaningfully participating in the process. The Mother would have a record of the
post-trial hearing, and her trial lawyer’s participation in the post-trial
hearing and his ability to identify the issues and the evidence, as well as the
trial court’s findings were sufficient to comport with due process
requirements. One justice dissented on
the grounds that the record of the post-trial hearing showed disagreement about
the evidence supporting termination. As
such, he thought the court should have ordered a full record of the trial. He did not address the constitutional
question.
The court in N.C.M.,
similarly rejected the petitioner’s constitutional challenge. This time a Father’s parental rights were at
issue. Following the termination of his
rights, he attempted to argue that § 263.405(I) was facially
unconstitutional. To prevail, the Father
needed to prove that every application of the statute violated the
constitution. Although the San Antonio
appellate court was seemingly sympathetic that the section raised due process
concerns, it concluded that the Father failed to meet the heavy burden of
establishing that the provision was unconstitutional in every case.
In the Interest of S.A.A., 279 S.W.3d
853 (Tex. App.Dallas 2009)
Mutual
Adultery-Court Sua Sponte Dissolves the Marriage?: The trial
court abused its discretion when it sua sponte, and without a supporting
pleading, entered a divorce decree dissolving the marriage based on mutual
adultery. The Wife filed for divorce on
the grounds of insupportability, but not adultery. The Husband, on the other hand,
counter-petitioned, alleging insupportability and her adultery as grounds for
the divorce. There was nothing to
suggest a trial by consent of the unpled adultery claim. As such, the court could not base its divorce
decree on that basis. Moreover, even if
there was not the issue about the unpled claim, the evidence did not support a
finding of the Husband’s adultery.
Rather than the clear and positive evidence needed to prove adultery, the
Wife only conjectured that Husband was “seeing” some unidentified woman.
In re Coppock, 277 S.W.3d 417
(Tex. 2009)
Contempt of Court: If a judgment was to be
enforced by contempt, it must contain a clear mandate that served to advise the
parties of the conduct that was prohibited.
In this case, the final divorce decree included the court’s finding that
an injunction should be granted and stated that the injunction was binding on
both parties with respect to communicating with each other “in a coarse or
offensive manner.” The Supreme Court
avoided consideration of the constitutional issues raised by the
injunction. Rather its decision was
based on other grounds, concluding that
the decree was defective because it did not mandate or order compliance with
the terms, and thus it could not be enforced by holding the party in
contempt.
In re A.L.E., 279 S.W.3d 424 (Tex. App.Houston [14th Dist.] 2009)
Modification
of a Custody Order: The appellate court affirmed a modification
to a custody order, which appointed the Father as the primary joint managing
conservator and provided the Mother, the former primary joint managing
conservator, visitation pursuant to the standard possession order, conditioned
on her remaining drug free. Specifically, the modified order provided for
unsupervised visits with the child provided that the Mother submitted to
regular drug testing on a schedule set out in the order. It further required that she test negative
for drugs. Pursuant to the order, a
positive drug test would result in her having only supervised visits with the
child. The appellate court rejected the Mother’s
claim that access to her child was subject to the sole discretion of the
child’s Father. Rather, the court
concluded that, 1) the order was sufficiently specific, inasmuch as it set out
the terms for her to have unsupervised access to her child; and 2) the order
could be enforced through contempt. The
order did not vest the Father with any discretion about visitation or require
his agreement for visits to occur.
Rather, provided the Mother submitted the requisite test results, his
failure to allow visits could result in a finding of contempt. Note:
The court did not decide the more interesting issue in the case, that was whether
the consequences of a positive drug test–a change from unsupervised visits to
supervised visits–constituted a modification requiring a motion and a hearing
to comply with due process requirements.
The Mother characterized the order as “self-modifying.” Unfortunately for her, however, she failed to
preserve the issue in the trial court, raising it for the first time in the
appellate court.
In re J.S.P., 278 S.W.3d 414 (Tex. App.San Antonio 2008)
Unlawful
Delegation of Discretion?: The court concluded that the trial court did
not improperly delegate its discretion to make determinations regarding a Father’s
access and possession to his child. The Father
sought to modify the initial order, which appointed J.S.P.’s maternal Grandmother
as his sole managing conservator.
Ultimately, the court entered an order appointing the Grandmother the
primary joint managing conservator and the Father the non-primary joint
managing conservator. In addition, the
court appointed a child psychologist, a Dr. Larson, as an agent of the court
for the purpose of developing a schedule of unsupervised periods of
possession. Dr. Larson was ordered to
develop a transitory program leading to unsupervised possession. The order further provided that Dr. Larson
would determine when it would be appropriate for the Standard Possession Order
to apply, and upon that determination, the Father would have possession
pursuant to it. The appellate court
noted that in some situations, a limited delegation of authority might be
necessary to protect the interest of the child and to comply with the Family
Code’s mandate to minimize restrictions placed on a parent’s access to his
child. The court characterized this case
as “complex” given that the Father possessed limited cognitive abilities as the
result of a closed-head injury and J.S.P. had special needs, making it
difficult for a court to determine when this parent would be capable of
exercising unsupervised possession. The
court distinguished the other cases in which an improper delegation of
authority was found, noting that rather than the delegation being used to limit
Father’s possession, Dr. Larson was delegated the authority to expand Father’s
possession. At the time of the Father’s
motion to modify, he had only supervised visits with J.S.P. The court further noted that the court’s
authority had been delegated to a neutral third party as opposed to another
conservator. Finally, as added weight,
the court stated that delegating specific issues of access and possession may
be permissible as long as the parent maintained access to the child and faced
only the possibility of denial of specific periods of possession. However, the court did remand the case,
finding that the order was not sufficiently specific to be enforced by
contempt. The order failed to state any
deadlines by which Dr. Larson was to develop the transitory program or provide
the trial court with a status report documenting why a transitory program could
not be developed.
In re Brown, 277 S.W.3d 478
(Tex. App.Houston [14th
Dist] 2009)
Psychiatric Exams:
This mandamus action arose when the trial
court ordered the Father of the children at issue in this case to undergo a
psychiatric evaluation. The children’s Mother
sought to modify the existing conservatorship orders to limit the Father’s
access to the children. She further
moved to compel the Father to undergo a psychiatric evaluation. She supported her motions with an affidavit
from the Father’s second wife, which described his violent behavior with her
and their children and the Father’s subsequent abandonment of his second
family. The Father initially filed a
counterpetition to modify the parent-child relationship and sought to require
the Mother to undergo mental examination.
The Father later nonsuited his counter-petition and stipulated to the
relief sought by the Mother in her petition, leaving the court to decide the
request for a mental evaluation of the Father.
Based on the second wife’s affidavit, the trial court ordered the
requested psychiatric evaluation. Consequently,
the Father sought a writ of mandamus to order the trial court to set aside its
order, based on two grounds. First, the Father
claimed that the court lacked good cause to order the examination and claimed
that his mental condition was not at issue inasmuch as he had non-suited all of
his claims and agreed to the relief sought by his first wife in her motion to
modify the parent-child relationship. On
reviewing the record, however, the court concluded that there apparently were
still issues to be resolved, and even if the Father had stipulated to the
relief sought by the Mother, some of the items of relief sought were
inconsistent such that the trial court would have to sort out what was in the
children’s best interest. The evidence
in his second wife’s affidavit was sufficient support for both of the court’s
findings that the Father’s mental condition was in controversy and that there
was good cause to compel the mental examination. The Father further argued that the court’s
initial order failed to specify the time, manner, conditions, and scope of the
exam. The Father, however, failed to
satisfy the predicate requirement for a mandamus order, namely that he had
requested the relief from the trial court but been refused. As such, he was not entitled to the relief
requested.
Note: One should note that the court assumed, without
deciding, that the requested exam was subject to Tex. Rules of Civil Procedure
204.1, which required that the court have “good cause” to order a physical or
mental examination. The Mother argued
that the matter was actually governed by Rule 204.4, which specifically
referenced Family Code matters and authorized the court to appoint
psychiatrists to make “any and all appropriate mental examinations” of the
parents or the children who are the subject of a suit. Whether rule 204.1 applied to family law
matters appeared to be an open issue. One
judge dissented. She was concerned that
given the invasive nature of a psychiatric exam, the court’s order was based on
only the second wife’s affidavit with no consideration by the court of less
invasive means of obtaining relevant information. Given that the challenged ordered contained
no limits on the scope of the exam, the psychiatrist was free to conduct a
maximally intrusive examination. In
response to the plurality opinion (one judge concurred without opinion), the
dissenting judge concluded that based on the record, the Father’s request for
specificity about the time, manner, conditions, and scope of the exam would
have been futile.
In the Interest of D.D., 279 S.W.3d
849 (Tex. App.Dallas 2009)
Anders Applicability:
Joining the eight other courts
that have ruled on the issue, the court concluded that the procedures set forth
in Anders v. California, 386 U.S. 738 (1967), applied in parental termination cases. Pursuant to Anders, if a
court-appointed attorney determined an appeal to be frivolous, the attorney
must file a motion requesting permission to withdraw. In this case, following the trial court’s
termination of the Mother’s parental rights, the Mother’s court-appointed
counsel reviewed the trial record and thoroughly analyzed the factual and legal
sufficiency of the evidence before concluding that there were no arguable
grounds for reversal. The Mother’s
counsel served her with the brief and the Mother, given a choice of retaining
other counsel or filing a pro se response, chose the latter option. The court agreed that the Mother’s appeal was
frivolous, and as such, it affirmed the trial court’s termination order and
granted the Mother’s lawyer’s motion to withdraw from representation.
In re
Guardianship of Hahn, 276 S.W.3d 515
(Tex. App.San Antonio
2008)
Anders Applicability:
Facing an issue of first
impression, the court of appeals concluded that conditions set forth in Anders
v. California, 386 U.S. 738 (1967) should apply to appeals of
orders declaring an individual incapacitated and appointing a guardian. The court recognized that a guardianship
proceeding implicated the individual’s liberty interest, and as such, the
Probate Code mandated strict procedural safeguards, including the appointment
of counsel for indigent individuals. The
court further noted that all attorneys have an ethical obligation to avoid
filing frivolous pleadings.
Consequently, the court held that when a court-appointed attorney
determined that an appeal of the guardianship order would be frivolous, the
attorney must file a brief and motion that follows the Anders procedure.