Transcript

Holly Draper: Nobody thinks that dangerous, abusive people should be allowed around the children they abused, or should be allowed around an ex that they abused. But getting a protective order, which can sometimes be used as a weapon in family law cases, as you all know, should not be easy to do. And it should require a certain level of proof in order to get.

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, it’s Holly Draper. And I wanted to hop on and do a solo episode today to talk a little bit about a case that I have, where we just found out the Supreme Court of Texas is taking it to full briefing. That case is Stary versus Ethridge. And I think it’s a really interesting case for a variety of reasons. And I thought that some of you all as family lawyers might be interested in hearing about it. So before Stary came to me, I was not the trial attorney.

This case originated out of Harris County, where if you’re not familiar, Harris County has a specific court that deals with protective orders. So you can have a divorce or a SAPCR going on in a district court. But if you have a protective order issue, it is going to be heard strictly in the protective order report. I understand why this was done. I think it has some issues that will come up in the course of this discussion today. So before Stary came to me, I really hadn’t ever given a whole lot of thought to some of the flaws in our protective order laws in the state of Texas.

As you know, a protective order is a pretty big deal. And if someone has a protective order entered against them, it can negatively impact their lives in a variety of ways. You know, it can prevent them from being around certain people or being around certain places. They can be arrested just for showing up. It could show up on a background check. It can prevent somebody from employment, those sorts of things. So as I started digging in on the Stary case, I realized that the way our protective order statutes are written, can make a protective order way too easy to get for something that is so life altering.

Now, to be clear, nobody thinks that dangerous, abusive people should be allowed around the children they abused, or shouldn’t be allowed around an ex that they abused. But getting a protective order, which can sometimes be used as a weapon in family law cases, as you all know, should not be easy to do. And it should require a certain level of proof in order to get. So in general, some of my concerns regarding protective orders.

Number one, the statutes require a hearing be held relatively quickly. 14 to 20 days, depending on the size of the county. Yes, I know they can be extended beyond that, and they often are. But many protective order hearings are held that quickly, 14 to 20 days after a temporary protective order is entered, or a request for protective order is filed. These hearings are often restricted to a relatively short amount of time in courts. Some of the counties where I practice I’ve seen them give 20 to 30 minutes per side for a trial on a protective order. And sometimes I’ve seen that mesh together with a temporary orders hearing or something like that.

So really your protective order time is even less if you have other issues to address outside of that. When you have these short timelines for getting to a trial. There’s no opportunity for discovery. There could be evidence out there that is exculpatory, or that is going to weigh against the entry of a protective order. But there’s no opportunity to find that when you have a trial happening so quickly. Another concern that I have with these quick, relatively quick trials is that oftentimes the person defending a protective order is also facing criminal charges related to the same incident.

When this happens, I see very regularly, criminal attorneys will tell their client you cannot testify at the protective order hearing because it could negatively impact them in their criminal case. Practically speaking, this means that a lot of protective order defendants can’t even get up and defend themselves and put on a case to try and get out of this significant issue, because the criminal charges take precedence. And the last concern I have that I’m going to talk about today is really at the heart of the Stary versus Ethridge case. And that is, the burden of proof to get a protective order is preponderance of the evidence.

This is a low burden. Going back to law school and, you know, 101 level classes, we all learned about preponderance of the evidence and how you could show this, as you know, you have two scales, and you’re just tipping the scales very slightly, just one tiny grain of sand tips the scale in favor of one side or the other. That is enough to meet the burden of proof of preponderance of the evidence. So Stary versus Ethridge came out of Harris County, and the Court of Appeals was the First District Court of Appeals.

We actually got a majority and a dissent out of our three judge panel in the court of appeals. You can find those at 2022 Westlaw, 17684334. It’s also the cause number in the court of appeals was No. 01-21-00101. So you can find, you know, the opinions through the court appeal’s website. And by looking up the case. Right now, it’s pending in the Texas Supreme Court under cause number 23-0067. It’s been pending there for quite some time. When we filed our petition for review, the Supreme Court asked for response on the other side pretty quickly. The other side did not respond. They did not respond in the court of appeals either.

We subsequently had an amicus file a brief in support of our position, and the Supreme Court kept asking over and over for the other side’s response. Never did. Obviously this guy cares a lot about his protective order, you can tell. So this past weekend, we learned that the Texas Supreme Court has asked the appellate section of the state bar to find a volunteer to be an amicus attorney and write a brief in support of the court of appeals’ decision.

I thought this was really interesting. I’d heard from some pretty seasoned appellate attorneys that the odds of the Supreme Court taking this case went down dramatically if the other side didn’t participate, because the court wants it to be fully briefed, and they want to know all angles of the case. So I was really, really excited to see the court take this action and letting us know that we are moving forward with full briefing.

So the underlying facts of Stary versus Ethridge, two parents they were divorced a couple of years before, and they had an agreed decree that joint managing conservators gave them a 50/50 possession schedule and provided support for their three children. In March of 2020, there were allegations of abuse by the mother against one of the children. The father very promptly filed for a protective order against the mother on behalf of himself and their three children. The father abandoned his request for a protective order for himself at trial and only proceeded with requesting a protective order on behalf of the children.

After a relatively short trial, where the only testimony on the father’s side was from the father himself, who didn’t witness any of the alleged abuse, the trial court granted a lifetime protective order for all three children for the duration of the children’s lives against the mother. The First District Court of Appeals issued a majority and a dissent in December of 2022. The majority found that a lifetime protective order did not amount to a termination of parental rights and upheld the trial court’s opinion.

So diving in a little bit on what the family code says about protective orders. So at the time of this trial, a court could only issue a protective order after finding both that family violence had occurred, and that family violence was likely to occur in the future. This was in section 85.001 of the Texas Family Code. Obviously, now we all know that this standard has since been changed to remove the requirement of a showing of future violence. And I think that makes this case even that much more important because it’s making protective orders even easier to obtain.

So when a protective order is granted under section 85.001, the protective order generally lasts for two years or less. And then the burden is on the applicant to prove that an extension is needed. However, that burden is shifted when, as in Stary, the protective order extends longer than two years. So under the Texas family code, a party enjoined by a family violence protective order can petition the court one year after the court enters it to determine if there is a continuing need for the order. This is in section 85.025 of the family code.

This places the burden on the party enjoined by the protective order to prove that it is no longer necessary, as opposed to placing the burden on the applicant to prove that it is still necessary. Further, a party enjoined by a protective order lasting longer than two years is limited to only two motions to terminate the protective order. Ever.

The first motion to terminate cannot be filed until at least one year after the protective order was rendered. And the second motion to terminate cannot be filed until at least one year after the court rules on the first motion. If the enjoined party does not prevail on either of those two motions, the order will be in effect until its expiration. In this case, the order has no expiration date, which means that it will extend for the entire life of the mother.

So I wanted to read for you what I included in my reasons for review section and my petition for review, because I think it really summarizes well, the crux of our argument in this case. So in case you don’t know, if you are practicing, trying to get a case before the Texas Supreme Court, they do not have to take every case, they don’t take every case. In fact, they take very few. And so you have to convince them that this case matters to the law of the state of Texas, not just to this one particular family. So we put a reasons for review section in our petition and set forth why this case is so important to the law in the state of Texas, which I really truly believe is the case.

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. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So here’s my reasons for review. The state of Texas takes protecting the constitutional rights of parents very seriously. Our legislature has rightfully set a high burden for the termination of parental rights under Chapter 161 of the Texas Family Code. In contested cases, we do not terminate parental rights without a lengthy trial that occurs after many months of discovery and without proof by clear and convincing evidence that termination is justified. Parents who have their children removed by child protective services are typically given a year or more to complete court ordered services and regain custody of their children.

Similarly, when it comes to protecting the rights of people accused of a crime, the accused is given numerous constitutional protections to ensure he or she is not wrongfully convicted. A criminal defendant would never be convicted of a crime without the opportunity for discovery, without the protections of the Fifth Amendment and without evidence of guilt sufficient to meet the extremely high burden of beyond a reasonable doubt.

Unfortunately, the Court of Appeals’ opinion in this case has stripped parents of their constitutional rights, creating an easy end around for terminating parental rights when someone has been merely accused of a felony. Now, a parent’s rights can be terminated for life after a short hearing, with only 14 to 20 days notice, without any opportunity for discovery, and with evidence only by a preponderance of the evidence standard.

As Justice Farris rightfully found in her dissent, quote, the infinite duration of this order prohibiting contact between a parent and her children effectively terminated mother’s parental rights and deprive her of the fundamental liberty interests in the care, custody and control of her children, end quote, without the due process required heightened standard of proof of clear and convincing evidence.

No other case in Texas had addressed the issue of the constitutionality of a lifetime protective order under Section 85.025 of the Texas Family Code. But the Fifth Circuit recently addressed a legislator’s ability to restrict constitutional rights with a civil protective order in the case of United States versus Rahimi, which held it unconstitutional to restrict the right to bear arms of someone against whom there is a civil protector. Here, the civil protective order statute has been used to restrict a different constitutional right, the constitutional right to the care, custody and control of our children.

Surely protecting one’s constitutional parental rights is at least as important as protecting the constitutional right to bear arms. This court must step in to protect the constitutional rights of Texas parents. When three justices on one panel can diverge so drastically over the issue of the constitutionality of the protective order statute as applied in this case, this court must weigh in to protect the constitutional rights of parents faced with de facto terminations through protective order lawsuits.

So those are the reasons for review that I gave the Texas Supreme Court. And the Rahimi case is actually pending now, the United States Supreme Court. It wasn’t at the time I wrote this. And they have had oral arguments if you want to hear about it. One of my favorite legal podcasts is Strict Scrutiny. And they have a really great discussion about the oral argument that happened.

I think the consensus among legal experts is that the United States Supreme Court is going to overturn Rahimi. But it sounds like the reasons for doing it are different than the reasons for which I have cited it in this case. So I don’t think it will have any negative impact on this particular case.

So in our appeal, we have made several arguments as to why this protected order has to be overturned. And I’m gonna go through two of those reasons here today, because those are really the crux of the legal arguments, and really what I think are super important legal issues that need to be addressed. Our first issue was that the trial court clearly abused its discretion and violated the mother’s constitutional rights, when it ordered a lifetime protective order for her children, constituting a de facto termination of parental rights without due process.

So, I go through a discussion about how the United States Supreme Court has really, historically protected parental rights to a very high level. It’s considered one of the most important natural fundamental rights that we have as United States citizens. And because of that, under Texas law, our termination statutes require a clear and convincing standard of proof. There is a United States Supreme Court case where the Court said, the right to enjoy a natural family unit is no less important than the right to liberty, which requires at least a clear and convincing standard of proof to inhibit such liberty.

So due to the severity and permanency of a termination process, due process requires that the party seeking to terminate parental rights prove the necessary elements by the heightened burden of clear and convincing evidence. As a result under Texas Family Code section 161.001, Texas law requires proof by clear and convincing evidence at the trial court level in order to terminate someone’s parental rights. Clear and convincing evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.

The protective order burden of proof of preponderance of the evidence is significantly less than the clear and convincing burden. But I contend that the interests at stake when a court orders a lifetime protective order against a parent is equivalent to the interests at stake that require proof by clear and convincing evidence. When the trial court in this case ordered a lifetime protective order against the mother for the duration of her children’s lives, the Court essentially terminated her constitutional parental rights to the care, custody and control of her children through a loophole that allowed the effect of a termination proceeding without the due process of one.

The protective order in this case prevents the mother from communicating directly with her children or going within 100 yards of them forever. Calling this a lifetime protective order rather than a termination is a distinction without a difference. It truly cuts off her ability to be a parent and to meaningfully participate in the core activities of being a parent. She can’t see them. She can’t communicate with them. She can’t attend their school activities. She can’t have any type of relationship with them. Forever.

And without a guarantee that mother can take certain actions and rebuild a relationship with her children, she is left standing in the same shoes as a parent whose parental rights have been terminated by a court without recourse. Except that here the father was not held to a clear and convincing burden of proof as required for termination of the family code.

So the majority opinion here argued that because the mother retained certain extremely limited parental rights, that this lifetime protective order did not amount to a termination. I personally much more agree with the dissent, which found that the lifetime protective order here divested the mother of all meaningful contact between her and her children forever, and that it is even more restricted than a termination order. Because termination orders do not bar parents from contacting or directing activities toward their children, once the child has reached the age of majority. Here, it’s forever.

So the dissent said that by depriving the mother of her liberty interests in seeing, communicating with and having a relationship with her children, the lifetime protective order deprived the mother of her fundamental liberty interest in the care, custody and control of her children, without the mandate and heightened standard of proof by clear and convincing evidence. I think it’s so clear when you read this record, how low the bar was, in this particular court for this particular judge on that day to grant a lifetime protective order against this mother. And it’s just wrong, and that should not be the case. It should be a high bar, and you shouldn’t be able to do it without a heightened burden of proof.

So the second issue that I raised is that the trial court abused its discretion and violated the mother’s constitutional rights when it ordered a lifetime protective order based on a felony charge that had not been adjudicated without proper due process considerations. So, as I mentioned several times, the civil protection order burden of proof is preponderance of the evidence. In a criminal case, the burden of proof for a conviction requires a significantly higher standard of proof beyond a reasonable doubt.

So, under section 85.025, a court can issue a protective order that exceeds a period of two years, if it is alleged that the party committed an act constituting a felony offense involving family violence against the applicant or a member of applicant’s family or household, regardless of whether the person has been charged with or convicted of the offense. Diving in on this, it was just shocking to me to really understand that it is the mere allegation of a felony that is enough to get someone a lifetime protective order.

Despite the normally high burdens of proof required to protect constitutional rights, the protective order statute gives the judge the authority to order a lifetime protective order, effectively terminating a parent’s rights based on mere allegations of a felony. Even if other fact finders find insufficient evidence to prosecute or convict. Here, the mother was not afforded the constitutional protections of a criminal trial when she was accused by the father of committing a felony, which is the only means by which father could obtain a lifetime protective order for the children.

The court held a quick short trial and applied the preponderance of the evidence standard when it involuntarily and arbitrarily entered a lifetime protective order against the mother, barring her from ever seeing or speaking with her children again. Not only is this unjust, but it also results in unconstitutional termination of the mother’s parental rights, and the trial court’s decision must be reversed.

So in this case, we just now are getting to the stage of doing full briefing, there’s not even a calendar or deadlines put out yet. Our full brief probably won’t be due until, I don’t know, March or April, April, probably at this point. Then the other side will have an opportunity to respond. So I would predict we probably won’t really know a lot more about this until the fall. If we’re gonna get to have oral argument, it’ll probably be in the fall. I don’t know that for sure, just to guess.

But I think this case is really important. And I hope attorneys will take notice and pay attention to these issues and help guarantee that the constitutional rights of the citizens of Texas are being protected. So if you have any two cents on this, I’d love for you to reach out to me and share that. I love discussing these types of constitutional legal issues with other attorneys and would be happy to do that with you as well. So that’s all I have for today. 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 www.draperfirm.com.