Holly Draper | Key Takeaways from C.J.C. and Post-C.J.C. Updates

In today’s episode of the Texas Family Law Insiders podcast, I’m going to give you all the updates on what’s happened in Texas following the C.J.C. decision.

As you may know, I represented the father in the C.J.C. case from the trial court to the Texas Supreme Court…

I already discussed the background and opinions from C.J.C. in Episode 19, but today we will dive deeper into the takeaways from C.J.C. and what has happened in family law since that time. I will discuss cases that have substantively addressed the fit parent presumption since C.J.C. and where the law stands in setting forth the standard to overcome that presumption.

And I’m going to give you an inside look at how this case affects family law.

Listen to learn:

  • Distinguishing standing from the right to relief
  • The difference between the Constitutional Fit Parent Presumption and the Statutory Parental Presumption
  • When the Fit Parent Presumption applies
  • Cases since C.J.C.
  • Where we are in establishing a standard for overcoming the fit parent presumption
  • And more

Mentioned in this episode:


Holly Draper: CJC is not about standing. Standing gets you in the door, but it does not entitle you to any relief.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly: Hi, everyone. Welcome to the Texas Family Law Insiders podcast. This is Holly Draper. And today I’m going to do a solo episode to give you some updates on what’s happened in Texas since the C.J.C Decision. As you probably already know, I represented the father in C.J.C, all the way from the trial court up through the Texas Supreme Court. And that opinion came out in June of 2020. And there have been quite a few updates since then. And I recently did a presentation at the advanced family law seminar about those updates. And I thought I would do a podcast today to give you that same information in case you missed it. And also to dig in to a little, a few more of the cases that I didn’t get a chance to discuss there.

For those of you watching on video, I’m gonna share my screen with my PowerPoint presentation. But otherwise, if you’re just listening to audio, no big deal, you don’t really need to see the slides. So I’m gonna skip past the background of the C.J.C case. I did a podcast episode on that earlier. So if you want more detail about the particulars of that case in the background, then go back and listen to that episode first. Or I guess you could listen to it afterwards. But here I’m gonna go into the ruling from C.J.C. And then key takeaways, and then cases that have come out since that time.

So the Texas Supreme Court in C.J.C ruled nine nothing in favor of the father, making clear that the constitutional fit parent presumption applies not just in original suits, but also in modification proceedings, where the parent had previously been appointed a managing conservator, and a non parent enters a suit for the first time. Justice Bland wrote the majority opinion with Justice Lehrmann writing a concurring opinion. The question presented to the court was whether the presumption that fit parents act according to the best interests of their children applies when modifying an existing order that names a parent as a child’s managing conservator.

Because the fit parent presumptively acts in the best interest of his or her child, and has a fundamental right to make decisions concerning the care custody and control of that child. The court held that it does. It’s important to note that C.J.C involved and unquestionably fit parent where the fiance made no attempt whatsoever to argue that the father was unfit, because there wasn’t any legitimate argument to be made to that end. Although the non parents standing threshold in Texas is higher than the exceptionally broad standing statute at issue at Troxel. And if you don’t what Troxel is, Troxel versus Granville, is a United States Supreme Court case from the year 2000 that formed the basis of the C.J.C opinion and the arguments were made in that case. But the standing statute in Troxel was very broad.

The standing statutes that gave the fiancee standing in C.J.C were less, much more narrow, than the Troxel standing statute. But they did not incorporate a fit parent presumption into a custody modification proceeding. The court in C.J.C said, you know, those who established standing must face a different burden under the modification statute. A court may modify a custody order if it is in the best interest of the child. And the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed. When we were making our oral argument in C.J.C, we thought a lot about the issue of constitutional avoidance. And if you don’t know what that is, essentially, the Supreme Court, no court wants to find things unconstitutional, they can help it.

And based on the standing statutes that were issue and the chapter 156 modification statute, none of those incorporated this constitutional protection of a fit parent presumption. And if we could not find a way for the Supreme Court to read it into the case or into the existing law, they would have had to find a lot of statutes unconstitutional. So during oral argument, we argued that the court should read the fit parent presumption into the best interest standard, not as one of the factors like the holley factors, you know, not just one of many factors, but as the primary first factor you must overcome before you get to those other factors. Because neither the standing statutes nor the modification statute included the fit parent presumption, the Supreme Court determined just as we suggested that it must be read into the best interest determination.

This is not merely one factor to be weighed against others in a traditional best interest analysis. This means that the first prong of any best interest analysis in a case against a non parent must be to determine if the fit parent presumption has been overcome before moving on to any additional factors. If it is not, the non parent is not entitled to any rights or possession over the objections of the fit parent. In C.J.C, the court held that in awarding the fiance visitation and overnight possession over the fit father’s objections, the trial court substituted its determination of the child’s best interest for her father’s. This is exactly the opposite of the fit parent presumption that must be applied. The court said quote, a court must apply the presumption that a fit parent, not the court, determines the best interest of the child in any proceeding in which a non parent sees conservatorship or access over the objection of a child’s fit parent.

And further, the burden of overcoming the fit parent presumption must be on the non parent. In her concurring opinion, Justice Lehrmann pointed out that this ruling leaves unanswered the question of the burden of proof required to overcome the fit parent presumption. Because there was no evidence the father was unfit. And the fiancee made no attempt to make that argument. It was unnecessary for the court to determine the standard for overcoming the fit parent presumption. I tried to convince them at that time to incorporate it, but they didn’t. So I’m gonna go now through several of the key takeaways from C.J.C, where I see a lot of confusion among both attorneys and judges.

Key take away number one, standing. C.J.C is not about standing. Standing gets you in the door, but it does not entitle you to any relief. Following this United States Supreme Court’s decision in Troxel versus Granville, certain standing statutes related to grandparents and other relatives added constitutional protections, specifically incorporating a significant impairment requirement at the standing stage. The standing statutes where this was added were 102.004 and 153.432, which is the grandparent access statute. 102.004 provides general standing for custody suits to grandparents, and other relatives if they can show significant impairment. But there are other standing statutes that do not incorporate any constitutional protections. Specifically, the two that were issued and C.J.C that allowed the fiancee in on standing were 102.003a9 and 102.003a11.

So a9 is the actual care control and possession standing statute. And this is probably the most common standing statute we see in non parent custody litigation. The burden of overcoming that standing threshold is really, really not that hard, and does not come close to overcoming the constitutional fit parent presumption. 102.003a11 is a standing statute that applies where somebody lived in the primary home with the child and a child’s parents for over six months and the parent died. I actually thought C.J.C was going to be fight about this statute because it has absolutely nothing in the realm of constitutional protections. But it wasn’t as you already probably know. So just because somebody has standing does not mean they’re entitled to relief. Proving that a non parent had actual care, control and possession of a child does not mean that non parent has overcome the fit parent presumption as required to receive any rights or possession of that child.

Key takeaway number two. There are two different presumptions. Texas law has two distinct different presumptions. The statutory parental presumption found in section 153.131 of the Texas family code, and the constitutional fit parent presumption as set forth in Troxel and C.J.C. Many, many lawyers and judges confuse and conflate these two presumptions. Family lawyers all over the state for years, leading up to C.J.C just talked about the, quote, parental presumption. And in doing so they were talking about the statutory parental presumption. And everybody said, you know, it only applies in original suits and thought this was limited. This was the one and only presumption that applied to parents or custody cases in Texas. The statutory parental presumption is contained in 153.131.

It is a statutory presumption that it is in the best interest of a child that a parent be appointed as the managing conservator over a non parent unless the appointment would significantly impair the child’s physical health or emotional development. This statutory presumption applies only in original suits. And it only relates to the issue of managing conservatorship. It does not prohibit a court from giving rights or possession to a non parent. If this statutory presumption had applied in C.J.C, which it didn’t, because C.J.C was a modification. But if it had applied, it would not have prevented the result that occured, which was the court giving a non parent possessory conservator rights and possession over the fit father’s objection.

So this is why you must look also to the constitutional fit parent presumption in original suits, not just the statutory parental presumption. The statutory parental presumption was explicitly excluded from the chapter 156 modification statute. And as the court in C.J.C noted, quote, chapter 156 modification suits raise additional policy concerns such as stability for the child and the need to prevent constant litigation in child custody cases. So when you have a modification between the same two parties, the first judgment between the parties is race judicata of the question of the child’s best interest and of custody. Where this policy doesn’t come into play, is when we have a non parent entering a modification for the first time, which is what happened in C.J.C.

This brings us to the second presumption, which is the constitutional fit parent presumption as set forth in Troxel and C.J.C. C.J.C addressed this constitutional presumption that a fit parent is presumed to act in the best interests of his or her child. The constitutional presumption discussed in C.J.C prevents a court from giving a non parent any rights, duties or possession over the objections of a fit parent in certain situations. This presumption is separate and apart from the statutory parental presumption. The constitutional presumption provides that, quote, a court must apply the presumption that a fit parent, not the court determines the best interest of the child in any proceeding in which a non parent sees conservatorship or access over the objections of a child’s fit parent.

Key takeaway number three. When does this constitutional fit parent presumption apply? It applies in original suits between a parent and a non parent. The statutory parental presumption is insufficient to protect the constitutional rights of fit parents, because it only addresses whether or not the parent or the non parents should be named managing conservator. It does not prohibit it, or from awarding possessory conservatorship or visitation to a non parent, even if the parent is fit. If the constitutional fit parent presumption did not apply in original suits, we would be giving greater protections to parents when a non parent files into a case with a prior order than when a non parent files against a parent in an original suit. Such a result would be illogical and unconstitutional.

The fit parent presumption also applies in certain types of modifications, specifically, where the parent or parents were previously named as managing conservator and a non parent enters the case for the first time. The court in C.J.C said quote, but when non parents seek court ordered custody of a child, subject to an existing order, under which one or both fit parents were appointed managing conservators, that parent or parents retain the presumption that protects their fundamental right to determine their child’s best interest. At first glance, it might appear that the fit parent presumption applies in all modifications involving a parent and a non parent based on this language. But that is not the case.

A parent is not entitled to the benefit of the fit parent presumption when one, the parent was named as a possessory conservator in the prior order. Two if a parent and a non parent were appointed as managing conservators together in the prior order, even if it was agreed. So although C.J.C did not involve a modification proceeding in which a parent and a non parent were previously appointed joint managing conservators in the prior order, the court’s opinion gave us a clear indication as to what the result would be in such a situation. Specifically that the prior order is race judicata and the parent is no longer entitled to any presumption in favor of that parent.

There’s a footnote in C.J.C specifically is footnote 78, where the court cited to a Nevada Supreme Court case called Reynolds versus Reynolds and said, you know, as the Nevada Supreme Court stated in construing a modification without a parental presumption, which is just like our modification statute, quote, when a non parent obtains visitation through a court order or judicial approval, they have successfully overcome the parental presumption and are in the same position as a parent seeking to modify or terminate visitation. You need to keep this in mind if you have a client considering agreeing to let a non parent into a final order. If they do that they’re gonna have a very hard time getting them out in the future and your your parent client is going to have lost the benefit of the fit parent presumption in a future modification.

So, key take away number four. What is the standard? As I mentioned before, in Justice Lehrmann’s concurrence in C.J.C, she pointed out that the majority opinion did not address the standard for overcoming the fit parent presumption. It wasn’t necessary in that case, because the father was so clearly a fit parent, and there was no legitimate argument to be made otherwise. I argued in C.J.C and in every mandamus, and appeal and appeal that I’ve had on this issue, since that case, that the significant impairment standard is the correct standard to be used for the fit parent presumption. Texas has long used a significant impairment standard when protecting parental rights. For example, the statutory criminal presumption that we’ve already talked about contains a significant impairment standard.

There’s a significant impairment requirement to flip primary custody on a temporary orders basis. Following Troxel, the legislature and Texas Supreme Court added in a requirement to show significant impairment to rebut the presumption that a parent acts in the child’s best interest with regard to standing for grandparents and other relatives. C.J.C pointed out to us the kind of strange case of Texas law post Troxel, which was that it is easier for a non parent who just, or non relative, who just happened to be living in the home with a child in the child’s primary residence, to get in the door on standing than it is for grandparents and other relatives. It doesn’t make any sense. But the legislature limited it to grandparents and other relatives because Troxel was a grandparent case. So by incorporating the fit parent presumption, you know, we need to make sure that it’s not easier for non relatives to actually have rights and access to a child than it is for grandparents and other relatives.

There’s a lot of case law out there showing what it takes to show significant impairment. And that burden is quite high. I did a paper for advanced this in 2022, listing out a number of cases showing where courts had found significant impairment and where they did not. So if you can find can get access to that paper through Texas bar CLE. And you can find that list. If you can’t access it, feel free to reach out to me, I’m happy to send that to you. Keep in mind that there are multiple types of significant impairment. One, you can show that the actions of the parent constitute significant impairment to the child’s physical health or emotional development. For example, if mom is a meth addict, and she leaves her three year old child home alone, while she goes out and gets high and parties all night, her actions are neglectful, and therefore are significantly impairing the child’s physical health or emotional development.

The other way you can show significant impairment is that denial of access to the non parent would significantly impair the child’s physical health or emotional development. The only place that was in the law, prior to some recent cases, which we’ll talk about in a minute, wasn’t the grandparent access statute. And it appears that Texas law is going to incorporate that to extend to all non parents involved in parent versus non parent custody litigation with respect to the fit parent presumptions standard. So since C.J.C, as of when I’m recording this podcast, which is mid August of 2022. So far, there have been 12 cases that substantively interpret C.J.C. The paper that I did for advanced goes into some more detail about the cases, but I’ll try and go through them here to help you understand, you know, what’s out there and what may be useful for you if you’re arguing for or against a non parent in a child custody case.

So I’m going to start by talking about the two most recent decisions to come out because I think these are the most important and they finally show us what the standard is, or what you know where we think it’s going. So these are both appeals that I, where I represented the parents. The first one is in the interest of NH and I realize my graphic says in re NH , that’s not right. It’s in the interest of NH. It is out of the 14th District Court of Appeals in Houston. This was a case involving a same sex couple. The mother had been trying to conceive via assisted reproduction prior to meeting her ex girlfriend, but she did not become pregnant until she was with the ex girlfriend. And the mother became pregnant via in vitro fertilization during that relationship.

The law gives very specific rules as to how someone can become a parent as a result of assisted reproduction. But the girlfriend did not do any of those things that would have made her a parent right out of the gates. She also could have become a legal parent by marrying the mother or by adopting the child, but neither of those things ever happened. So when the child was about a year and a half old, the parties broke up and the mother and child moved out of the house and the ex girlfriend filed a sapcr seeking rights and possession of the child. The trial court named the mother as sole managing conservator, but named the ex girlfriend as a non parent possessory conservator with a standard possession order. And its findings of fact and conclusions of law, which I’m sure you know, generally gets drafted by the party seeking to uphold the ruling.

The court found that the mother was unfit and that the ex girlfriend had proven significant impairment. The mother then appealed based on C.J.C. So the ex girlfriend largely argued that Texas law should recognize her as a second parent or as a psychological parent. But the law in Texas currently does not recognize those rights. There are other states that have incorporated laws for this type of scenario. But Texas has not done so at this point. So the court of appeals rejected those arguments. The court of appeals reversed the trial court’s judgment finding that the ex girlfriend had failed to overcome the fit parent presumption.

This case in the interest of NH is the first time any court in Texas has incorporated a standard for overcoming the fit parent presumption. The court held that the evidence was insufficient to support the trial court’s finding the mother was unfit. But that did not end the inquiry of the fit parent presumption. The second prong of the inquiry was that the non parent had to show it would significantly impair the child’s physical health or emotional development if the non parent was denied access. And this was essentially marrying the standard from the grandparent access statute, but was definitely referring to the fit parent presumption because we didn’t have a grandparent involved in this case. And there’s no other place in the law, saying that.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So, in the interest of NH did not address you know how you would show a parent is unfit before you get to that second prong of inquiry. In Troxel, the United States Supreme Court said you know, a fit parent is one who quote, adequately cares for his or her child. Adequately caring for your child is not a very high threshold to overcome. And I would say that you should look at the question of, once again, you should be looking to the significant impairment standard there. You should look at the question of whether or not the appointment of the parent alone would significantly impair the child’s physical health or emotional development. If it would, you’ve shown significant impairment and I believe you have overcome the fit parent presumption.

The other case that came out recently that where I represented the parent again, was in the interest of AV. This came out about a week after in the interest of NH, these both came out in July of 2022. Of AV is out of the Fifth District Court of Appeals in Dallas. This case was an original sapcr filed by the maternal grandparents. And it’s really it was maternal grandparents against mother. The father was really not involved in the suit. And so we’re not even going to address him for purposes of this discussion. In this particular case, the trial was limited to an hour per side because the parties did not attend mediation. There was very, very little done in this case. I think the record reflected that the total attorneys fees for both sides, up to the trial were less than $10,000.

So there really wasn’t discovery done. There wasn’t mediation, there wasn’t a lot of things that really need to happen if you’d have any hope of overcoming the fit parent presumption. So at trial, only the parties testified and the grandparents raised only vague concerned about the mother’s instability and her history of volatile relationships. Nonetheless, the trial court named the grandparents as sole managing conservators, mother as a possessory conservator and gave the mother supervised only access. The Court of Appeals reversed, finding that the trial court abused its discretion, because the grandparents failed to overcome both the statutory parental presumption and the constitutional fit parent presumption.

So this case, the court once again, did reference a significant impairment standard, saying that the non parent has the burden of showing either that the parent was unfit, or that the denial of access to the grandparents would significantly impair the child’s physical health or emotional development. And even though this case happened to involve grandparents, once again, the court was not talking about the grandparent access statute, because this case was about, you know, actual custody and conservatorship of this child. Today, NH and AV are the only cases that have set out any standard for overcoming the Fit parent presumption. And the standard appears to be the same in both cases. So it’ll be really interesting to see if the Texas Supreme Court follows that lead and incorporates this as the standard.

We might find out pretty soon exactly what the Texas Supreme Court is going to do with that. Because there is a case currently pending in the Texas Supreme Court, which is in the interest of SK and LK. It’s a case that comes out of the Corpus Christi Court of Appeals. This was a CPS case where the department was named a temporary managing conservator and the maternal grandmother had the children placed with her for over 12 months while the case is pending. I want to point out really quick, a lot of people have asked me about you know whether, you know, if somebody overcomes the fit parent presumption at a temporary orders hearing and becomes a conservator, a non parent, does that mean that non parent has overcome it for good in a prior order such that they did not have to overcome it in or address it in the final trial.

And we can tell from these types of CPS cases that overcoming on a temporary orders basis does not mean the non parent is relieved of the obligation to overcome it in a final trial. Because in SK in the interest of SK and LK, CPS obviously overcame that hurdle early on where CPS was named temporary managing conservator. The Corpus Christi Court of Appeals issued its initial opinion in this case the day before the C.J.C opinion came out, and that was in favor of the non parents. After C.J.C came out the court sua sponte issued a new opinion in favor of the father. So although the mother was clearly unfit, the father had successfully completed his service plan and the children were bonded to him. So it’s important also to keep in mind that just because one parent is unfit does not eliminate the fit parent presumption with respect to the other parents.

So in SK and LK, both the caseworker and CASA testified they believed it will be harmful for the children to be cut off from the maternal grandmother, and they believe the father would not give her access without a court order. So the trial court made the father sole managing conservator, but made the grandmother a possessory conservator with periods of possession. The father appealed. The Court of Appeals initially upheld the trial court’s ruling and sided with the grandmother. But then after C.J.C The Court of Appeal said nope, grandmother did not overcome the fit parent presumption, father wins, grandmother is out.

So the nonparent petitioned the Texas Supreme Court, which initially denied the petition, however, following a motion for rehearing, the Texas Supreme Court has now granted full briefing in this case. In early August, the petitioner just filed their brief on the merits. And of note, former Supreme Court justice Ava Guzman just appeared as counsel for the respondent father. So watch for an opinion in this case to come out in 2023, which will very likely give us more clarification on the level of proof required to overcome the fit parent presumption. So the question then is how will the Texas Supreme Court rule in this case, in light of the two opinions that just gave us a standard for the first time, NH and AV.

If this Texas Supreme Court follows these two opinions, then it is very possible that the trial court’s decision to grant possessory conservatorship to the grandmother will be affirmed, because there was testimony both that the father was likely to cut off access to the grandmother without a court order, and that the children would be harmed if access to the grandmother was cut off. Now, I say that with you know, the caveat that I have not read the record I’ve only read the opinions And I don’t know the extent to which these issues were addressed in the trial. There is case law out there showing it is very hard to overcome this significant impairment standard of, you know, that denial of access to the non parent would harm the children.

For example, there’s a case that the Supreme Court called Derzapf, and they they had a mental health professional saying that cutting off access to the grandparent would significantly impair the children. And that was not enough to overcome the presumption. So it’ll be interesting to see what the facts of that case do show in that regard. But this case does give the Texas Supreme Court a very good opportunity to follow the lead of these other two courts of appeals in issuing this standard. There are a handful of other cases that have addressed C.J.C. I’m gonna go through pretty quickly. The other opinions, although they didn’t address the standard really fell into one of two categories.

There were cases very heavily favoring the parent and kicking out non parents or saying they’re not entitled to any rights or visitation. And then there are a few cases where the Court of Appeals very heavily deferred to the trial court, and essentially said, you know, if there was any reason that the trial court could have found the parents be unfit, we’re not going to overturn that. I think that’s a very dangerous line of precedent, because you know, what Troxel and C.J.C told us explicitly was that a court cannot substitute its opinion of best interests for that with a fit parent. And so those cases really seem to kind of fly in the face of that rationale.

So a couple of other cases of the cases that found in favor of the parents. We had in re BF out of the Fort Worth Court of Appeals. This is 2020 case. Of note the CDC or C.J.C case, went through the Fort Worth Court of Appeals. So I think that may be partly why they weighed so heavily in favor of the parent in this case. In that case, the court granted mandamus in favor of a father. Finding the evidence he had abused methamphetamines in the past and evidence that his girlfriend was involved in a CPS case was insufficient to overcome the fit parent presumption. In re GB and LB is a case out of Dallas from the Dallas Court Appeals from 2021 of the trial court had awarded rights in possession to grandparent and a temporary order. The court of appeals granted mandamus in favor of the father finding the grandparent did not overcome the fit parent presumption when the only evidence against the father was that he did not use his Thursday periods of possession.

I think it’s noteworthy to point out this case came out of Collin County, and Collin County, Denton County and I’m sure there are others too, they really restrict your time on temporary orders. Collin County you get 20 minutes a side that you might get 30 minutes a side. Overcoming the fit parent presumption, when you’re limited in time that much is going to be extremely hard to do unless you have a silver bullet. You know, mom shot dad in front of the kids, okay, you have a silver bullet. But if you’re trying to show a lot of little things to add up to either the parents actions are going to significantly impair the child or denial of access to the non parent is going to significantly impair the child. I think you’re gonna have a really hard time doing that, in a short temporary orders hearing.

Another case, coming out in favor, the parents was in re SD. This was out of the 14th District Court of Appeals in Houston. The trial court named the mother as temporary sole managing conservator and the paternal grandmother as temporary possessory conservator with possession after the father died. The mother filed for mandamus. She argued she was necessarily fit based on the trial court’s decision to name her as sole managing conservator. And as such, the trial court could not name the grandmother as a possessory conservator. The grandmother argued that she rebutted any fit parent presumption, as demonstrated by the trial court’s decision to appoint her as a possessory. conservator. The grandmother in that case raised concerns about the mother’s decision to remove the special needs child from his private school, and the mother’s decision to live with her longtime boyfriend.

She argued the mother could not provide a safe environment for the child. The grandmother argued the trial court was authorized to consider her as a possessory conservator citing the case of Shook versus Gray. But the court of appeals in ruling in favor of the mother found that quote, the Texas Supreme Court’s decision in C.J.C forecloses consideration of grandmother as a possessory conservator over a fit parent’s objections. Now, I think that the subsequent opinion out of the same court of appeals have in the interest of NH backtracked a little bit on this because it does indicate that you can name a non parent as a possessory conservator even if the parent is fit, if you can prove denial of access to the non parent will be harmful to the child.

Another case in re BAB out of the Amarillo Court of Appeals. The father had been named joint managing conservator with the mother, mother died and the maternal grandmother and step grandfather intervened. The trial court found they had standing and awarded grandparents conservatorship and possession. Father filed for mandamus. And the grandparents allege the father voluntarily relinquished the child for over a year tracking the language of section 153.373 of the Family Code, which rebuts the statutory parental presumption if the trial court finds voluntary relinquishment has occurred. The court found that the grandparents failed to establish voluntary relinquishment for the requisite time, which suggests that the court believed that voluntary relinquishment for a period of a year or more would be enough to rebut the fit parent presumption, not just the statutory parental presumption.

The grandparents argued they successfully rebutted the fit parent presumption by presenting evidence the father did not contact CPS when he learned it was investigating mother for alcohol abuse, and that the father’s attendance at AA meetings demonstrated his own addiction. The court noted the grandparents did not allege grounds nor did they offer any evidence intended to rebut the presumption the father was acting in the child’s best interest, and ultimately concluded the court abused its discretion by awarding rights and possession to the non parents over the father’s objections. In reaching its conclusion, the Court of Appeals noted that the trial court did not make a finding that the father was unfit. It’s common for trial courts to enter temporary, temporary orders without explicitly making any findings of fact or conclusions of law, and the parties are not required to request them following a temporary order ruling. But it would be prudent for attorneys to request this specific finding one way or another to support the court’s ruling.

Shift gears a little bit and look at some cases that defer to the trial courts. And the first would be a case of a Dallas called in re CDC. I represented the father in this case, in the on the appeal, or the mandamus sorry. The mother and father had been named joint managing conservators in a prior order, with the mother having the exclusive right to designate the primary residence. The mother and the child lived with the maternal grandparents. Both parents had a history of drug use. But the father had had no problems in several years leading up to this case. The mother could not stay clean, so the father filed to modify seeking to become the primary parent. The maternal grandparents intervened seeking to be named sole managing conservators, or to be given the exclusive right to designate the primary residence.

They alleged the father and mother had neglected the child. The trial court issued temporary orders that flipped primary custody to the father, but named the grandparents and mother as joint managing conservators with the standard possession order. And the father argued that the evidence could not simultaneously be sufficient to flip primary custody to him, but also sufficient for grandparents to overcome the fit parent presumption as to the father. Three justice panel of the Court of Appeals split on this one and issued a majority and a dissent. The majority found in favor of the grandparents and found that if there was any evidence at all, to support a finding that a parent is unfit, the Court of Appeals would not overturn it. Justice Peterson issued a dissent.

In my opinion, the majority opinion here is is a terrible decision that minimizes the burden one must overcome when a constitutional right is at stake. We did take this case up to the Texas Supreme Court, who initially declined to take the case. We filed for a rehearing and somebody was interested in it so the court requested a response, but the trial court refused to grant a continuance in the underlying suit. So when the trial court entered a file order that ultimately gave no rights or possession to the grandparents, the Texas Supreme Court case was dismissed as moot. Unfortunately, that leaves this majority opinion standing.

Another case came out of the Austin Court of Appeals which is SC vs. The Texas Department of Family and Protective Services. And this was a CPS case initiated by a report of inadequate supervision. And the mother, who had previously been named a managing conservator in the prior order subsequently failed a drug test and tested positive for methamphetamines. Prior to the trial, the mother tested negative for drugs for nine months obtained housing and attended visits with her children. The mother had a history of relapsing and of CPS involvement. There was evidence questioning the reliability of the mother’s negative drug test results, since the mother rarely tested on her assigned date and failed to submit for a nail test when requested.

The trial court name the grandmothers managing conservator and the mother as a possessory. conservator. The mother appealed incorrectly arguing that the court should have applied the statutory parental presumption. The Court of Appeals found that the statutory presumption did not apply because this was a modification, but that the fit parent presumption in C.J.C did apply. In applying the fit parent presumption, the court noted that, quote, evidence of a recent turnaround in behavior by the parent does not totally offset evidence of a pattern of instability and harmful behavior in the past. The court also found it reasonable that the trial court weighed the evidence questioning the reliability of the mother’s drug tests against mother.

The court ultimately found that the constitutional fit parent presumption had been rebutted. And the trial court did not abuse its discretion in naming and nonparent as managing conservator. So in this case, you know, if you had sufficient evidence for the department to be named managing conservator on a temporary basis, or, you know, enough evidence for removal of the children. You know, this is this case would really weigh in favor of a finding that the fit parent presumption was overcome, even if the parent had kind of turned things around or in the case.

One more case, citing for non parents was in re Tad Mayfield. In that case, the children have been removed from the father in a prior CPS cases. But the prior order named the father as managing conservator. Drug test results came back positive for meth so CPS filed again to terminate. CPS was named temporary managing conservator and the father was named temporary possessory conservator, but the case was ultimately dismissed after the statutory deadline passed. CPS did not refile. The child had been living with foster parents for 20 months. Foster parents then filed suit seeking to be named managing conservators alleging the parents had engaged in the history or pattern of child neglect. The father had only phone visits and did not provide any financial support. He had been involved in three CPS cases for drug use, admitted to testing positive for meth in late 2019.

He testified he had not been tested since July of 2020, where he had a negative hair follicle and urinalysis test, that he was subject to random drug testing at work and had never failed, and that he had done everything he could to prove and maintain sobriety. The trial court found the father to be an unfit parent. It referenced his history of CPS cases and said the father’s rights would have been terminated due to instability and drug use had the CPS case not been dismissed for missing the statutory deadline. The judge noted that the father testified contrary to ways he had testified in the past. So the trial court name dad and foster parents joint managing conservators with foster parents primary and limited the father to supervised only possession.

The Court of Appeals refused to overturn the trial court’s factual determination that father was an unfit parent. They said if there is, quote, some evidence to support a finding of unfitness, mandamus is not appropriate. And this court cited to the CDC opinion for from Dallas for the proposition that quote, the law does not provide a basis for mandamus relief based on a trial court’s factual determination and application of the law to that determination. In my opinion, the facts of this case, this particular case do support the determination that the fit parent presumption was overcome. But it concerns me that the language the court used suggests it would not overturn any trial court’s decision, as long as there was, quote, some evidence to support it. This should be a high burden, and deferring to the trial court places the best interest analysis back into the hands of the trial judge, rather than in the hands of the fit parent.

The only other two substantive cases at this point that address C.J.C are cases that deal with the application of the fit parent presumption. We have in re BB out of the El Paso Court of Appeals. This was a CPS case where the court held that the fit parent presumption did not apply, because the father was named the equivalent of a possessory conservator under the prior California order. And in the interest of HBS out of the San Antonio Court of Appeals, and this was also a CPS case. The court found that because the mother was not a managing conservator in the original order, she did not receive the benefit of the fit parent presumption.

So that brings us up to date on what has happened in you know Texas law since C.J.C with respect to the fit parent presumption. Keep an eye out and 2023 for an opinion from the Texas Supreme Court and in the interest of SK and LK. And as any more interesting developments happen in this area, I will certainly do some more podcast episodes to keep you updated. Thanks! If you enjoyed this episode, go leave me a five star review and encourage other family lawyers you know to give us a listen. Thanks.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.

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