FAMILY LAW
SPRING 2020
In the Interest of F.E.N., 579
S.W.3d 74 (Tex. 2019)
Termination
of Parental Rights; Conservatorship: The Texas Supreme Court denied
review of the appellate court’s decision.
However, in an unusual move, the Court opted to explain its denial. Faye, the child at issue in this case, was
born to parents who never married.
Although Father’s name was listed on Faye’s birth certificate, until the
appeal to the appellate court, he had been viewed as only the “alleged”
father. Nonetheless, while Faye was in
Mother’s care, Father visited with her when his work schedule allowed. As a shrimper, he was often away at sea for
extended periods of time. These visits
continued until the Department of Family and Protective Services removed Faye
from her mother’s care because of neglect and Mother’s drug addiction. Father, perhaps because he was way at sea,
was unaware of Mother’s problems. The
Department eventually petitioned to terminate both Mother’s and Father’s
parental rights and to be appointed Faye’s sole managing conservator, serving
Father for the first time.
At
trial, Father established his paternity.
The court, nonetheless, terminated both Father’s and Mother’s parental
rights and appointed the Department Faye’s managing conservator. The trial court found that the appointment of
Faye’s parents would significantly impair the child’s physical health and emotional
development, thus rebutting the presumption found in Texas Family Code
§153.131, specifically that the court will appoint a parent as managing
conservator. That prompted Father to
appeal the case. The appellate court
found that there was insufficient evidence to support termination of Father’s
parental rights and that appointment of the Department as Faye’s managing
conservator was an abuse of the trial court’s discretion. The appellate court therefore remanded the
case for determination of the conservatorship issue. This prompted the Department to seek review
of the appellate court decision.
Held: Review denied. Although the court did not entirely agree
with the appellate court’s analysis of the evidence, it did conclude that the
conservatorship issue was not adequately developed, as indicated by the trial
court’s boilerplate disposition of the conservatorship issue. The Court noted that the main
focus at trial was termination of Father’s rights, but there was little
or no evidence on whether the parental conservatorship presumption had been
rebutted. To rebut that presumption, the Department needed to prove that
appointing Father as a conservator would not be in Faye’s best interest because
it would significantly impair the child's physical health or emotional
development. Ultimately, the consequence
of the appellate court’s judgment was that the parties returned to the
positions they occupied before the termination suit, except that now there is
no issue about Father’s paternity.
In
the Interest of G.X.H., 584 S.W.3d 543 (Tex. App.—Houston
[14th Dist.] 2019
Termination
of Parental Rights: The
court addressed important questions about the deadline for commencing a
termination proceeding when the Department of Family and Protective Services has
been appointed a child’s temporary managing conservator. Texas Family Code §263.401 states that the
trial court loses jurisdiction and the case is automatically dismissed if the
termination proceeding has not commenced essentially by the first anniversary
of the Department’s appointment, although the trial court is authorized to
grant a one-time 180-day extension.
Although a trial on the merits of the termination did not commence
before the deadline, the trial court proceeded to terminate Mother and Father’s
rights. Both parents appealed, arguing
that the trial court’s decree was void because the trial court failed to
commence its action before it lost jurisdiction. The Department, on the other hand, argued
that a trial on the merits had commenced before the deadline. In the alternative, the Department argued
that §263.401 is unconstitutional.
Held: The trial court lacked
jurisdiction, and thus, its decree was void.
The court rejected the Department’s argument that trial on the merits
had commenced before the deadline when the trial court considered Father’s
paternity. This argument required the
court to consider when a case had been called for trial on the merits. It concluded that a hearing on Father’s
paternity did not suffice. Paternity is
governed by Chapter 160 of the Family Code, which has its own procedures and
results in a decree that addresses paternity.
The plain language of §263.401 does not suggest that a paternity hearing
would be sufficient for that proceeding. Perhaps more importantly, paternity is
determined without a jury while parents have a constitutional right to a jury
in a termination case.
Moreover,
the court rejected the Department’s argument that it could “re-confer”
jurisdiction on the trial court by filing a permanency progress report. The Department attempted to rely on Leach
v. Brown, 292 S.W.2d 329 (Tex. 1956), a mineral case in which the
court concluded that a first amended petition invoked the trial court’s
jurisdiction. Clearly Leach is
distinguishable. First, it was not a
parental termination case. Second, a
permanency progress report is not a petition.
So, nice try, Department; the progress report, filed four days after the
dismissal date, did not re-confer jurisdiction on the trial court.
Finally,
the court addressed the Department’s constitutional challenge, notwithstanding
the parents’ contention that the Department failed to preserve the
constitutional issues. The court noted
that, having obtained the relief t sought in the trial court, the Department
was not seeking to modify the trial court’s order. Rather, it was offering another basis on
which the judgement could be affirmed.
Thus, the court could consider the Department’s constitutional
challenge.
Turning
to the merits of the constitutional issue, the court noted that the
Department’s challenge was not about the existence of the deadline, but rather
about the automatic nature of the dismissal, raising equal protection and due
process claims, as well as a question about separation of powers. The Department lost on all accounts. As to the equal protection claim, there was
no similarly situated lass. According to
the court, children removed from their homes and placed in state care
constitute a unique class, unlike children that are the subject of other suits
affecting the parent-child relationship.
Moreover, even if the Department overcame the similarly-situated hurdle,
rational basis was the correct level of scrutiny. Applying that standard to §263.401, the
automatic dismissal statute is rationally related to the State’s interest in
timely resolution of these cases. The
court rejected the Department’s hypothetical parade of horribles
that could possibly occur due to the automatic dismissal provision as
inappropriate; hypothetical situations are relevant only in a facial
challenge. The claim here, however, was
apparently an as-applied challenge to the statute’s constitutionality.
The
Department’s due process claim did not fare any better. Relying on the three-factor test outlined in Matthews
v. Eldridge, 424 U.S. 319 (1976), the court recognized the substantial
overlap between the State’s interests and that of the parents regarding a just
and expeditious result. The court noted that the private interest of the child is
indisputably a commanding one. In looking at the risk of error, the court
concluded that it did not have sufficient evidence to determine the risk, while
noting that Texas procedure reduced whatever risk existed in that the Family
Code requires the court to notify all parties of the approaching dismissal date
and the automatic dismissal is without prejudice, which the court characterized
as unusual. Ultimately, the court concluded that the
Department had not established a due process problem.
Finally,
the court determined that there was no problem from a separation of powers
standpoint, rejecting the Department’s argument that §263.401(a) unduly
interferes with the court’s ability to render a valid judgement and increases
the risk of risk of arbitrary or child-endangering decisions. However, the court disagreed. According to the court, the various
provisions in the relevant statutes, including the trial court’s ability to
grant a 180-day extension and the fact that the dismissal is without prejudice,
no more interferes with the court’s ability to render a final judgment than
does a statue of limitations or a deadline for
perfecting an appeal. In short, the court concluded that the trial court did
not have jurisdiction to enter a decree that terminated the parents’ rights,
and thus, the appellate court had no jurisdiction to consider the merits of the
appeal. It vacated the trial court’s
decree and dismissed the case.
In
the Interest of C.W., 586 S.W.3d 405 (TX. 2019)
Parental
Termination: In yet another per curiam opinion, the Texas Supreme Court reiterated that
when a parent challenges the trial court’s termination of her rights based on
Texas Family Code §161.001(b)(1)(D), due process requires the court to review
the trial court’s findings and to detail its analysis. See In
the Interest of Z.M.M., 577 S.W.3d 541 (Tex. 2019); In
the Interest of N.G., 577 S.W.3d 230 (Tex. 2019). Indeed, the court cited In
re N.G. in resolving this case.
Sections 161.001(b)(1)(D) and (E) require special treatment on appeal
because §161.001(b)(1)(M) allows for termination in future proceedings
involving other children based on a prior termination under subsections (D) or
(E). As the court stated in N.G.,
“When
a parent has presented the issue on appeal, an appellate court that denies
review of a section 161.001(b)(1)(D) or (E) finding deprives the parent of a
meaningful appeal and eliminates the parent’s only chance for review of a
finding that will be binding as to parental rights to other children.”
Thus,
when a parent challenges the trial court’s findings based on either subsection
(D) or (E), the trial court cannot simply affirm termination simply because
other provisions of §161.001(b)(1) have been proven. Rather, the appellate court must specifically
consider the merits of a parent’s appeal based on §161.001 (D) and (E).
Highsmith
v. Highsmith, 587 S.W.3d 771 (Tex. 2019)
Mediated
Settlement Agreements: The issue in this case is
whether Texas Family Code §6.602(b) applies to mediated settlements signed
prior to the filing of the divorce petition.
Husband and Wife, prior to filing for divorce, voluntarily participated
in mediation and reached agreement about their property division and issues
related to their children. They further
set the timing for their divorce and agreed that Wife would file the petition
to terminate the marriage. Neither party
was represented by attorneys, but their signed mediated settlement agreement
did state in underlined, capital letters that it was not subject to revocation,
which seemingly would mean that it satisfied the conditions set out in
§6.602(b), meaning that the MSA was binding on the parties, and according to
§6.602(c), the court was obligated to enter judgment on the MSA.
Notwithstanding
the MSA, Husband petitioned for divorce, referencing the MSA in his petition;
Wife filed a general denial, making no mention of the MSA. Husband, now represented by counsel,
subsequently attended what was deemed an uncontested hearing, giving evidence
of the insupportability of the marriage, and asking
the court to render judgement on the MSA, which the court did, as well as
issuing the divorce decree. Wife did not
receive notice of the hearing, and thus did not attend. However, Wife subsequently filed a motion to
set aside the judgement, arguing that the MSA was not subject to
§6.602(b). She relied on the language in
§6.602(a), which permits the parties or the court to refer the matter to
mediation. She argued that this language
meant that §6.602(b) applied only if a divorce petition was pending at the time
of the MSA. The appellate court agreed,
leading Husband to appeal this issue to the Texas supreme court.
Held: Reversed. The MSA was still subject to §6.602(b)
notwithstanding the lack of a pending petition at the time of its execution;
there is no requirement that a petition be filed as a prerequisite to
§6.602(b). The plain language of §6.602(a) provides that the court may
refer a suit for dissolution to mediation.
Of course, the language refers to a suit for dissolution because the
court has no power to order anything outside of a pending lawsuit, as the court
explained. In reviewing §6.602(b), the
court noted that it contained only three conditions for the MSA to be binding on
the parties, none of which included a pending divorce petition. The court refused to read into the §6.602(b)
a requirement that the legislature did not see fit to include. Moreover, making the MSA binding on the parties
if it satisfied the conditions set forth in §6.602(b) without anything more was
consistent with the legislature’s goal to encourage settlement. In sum, the parties’ MSA was binding on them
and the court was required to enter their agreement as its judgment.
While Wife did not prevail in setting aside the trial
court’s judgment based on §6.602, the court nonetheless reversed the trial
court’s judgment based on a lack of notice to the wife of the hearing. The court rejected Husband’s argument that
the divorce was uncontested based on the MSA, noting that Wife had indeed filed
a general denial. Moreover, although
§6.602 limit the trial court’s power to review the terms of the MSA, judgment
on the MSA is not automatic. The parties
may still challenge the MSA relying on statutory defenses. Finally, the court noted the due process
concern that arises when a party does not receive notice of a hearing. Thus, the court held that Wife was entitled
to notice. When she did not receive it,
the court erred in rendering judgment.
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