In RE C.J.C. v. the State of Texas

Texas Supreme Court

In RE C.J.C. v. the State of Texas

DecidedJune 26, 2020

Docket19-0694

StatusPublished

This text of In RE C.J.C. v. the State of Texas (In RE C.J.C. v. the State of Texas) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In RE C.J.C. v. the State of Texas, (Tex. 2020).

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Opinion

IN THE SUPREME COURT OF TEXAS ══════════ No. 19-0694 ══════════

IN RE C.J.C., RELATOR

══════════════════════════════════════════ ON PETITION FOR WRIT OF MANDAMUS ══════════════════════════════════════════

JUSTICE LEHRMANN, concurring.

Today the Court answers an important question about the constitutionally mandated

presumption that a fit parent acts in his child’s best interest, holding that the presumption applies

not just in an original suit affecting the parent–child relationship but also in a proceeding by a

nonparent to modify a conservatorship order that appoints a parent managing conservator. I

wholeheartedly agree. While a modification proceeding presents policy considerations that are

not necessarily at issue in an original suit, 1 those considerations do not affect or diminish the

constitutional underpinning of the presumption—parents’ fundamental right to make decisions

concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65

(2000) (plurality opinion). The Court thus correctly concludes that a best-interest determination

in any proceeding involving a nonparent’s request for conservatorship or possession, over the

objection of a child’s fit parent, must accord that parent the presumption that he is acting in the

child’s best interest so long as that presumption has not previously been overcome. Ante at ___.

1 We explained in In re V.L.K. that “modification suits raise additional policy concerns such as stability for the child and the need to prevent constant litigation in child custody cases.” 24 S.W.3d 338, 343 (Tex. 2000). I write separately to highlight an equally important issue that the Court appropriately does

not reach but with which trial courts will undoubtedly continue to struggle: the proper evaluation

of whether the fit-parent presumption has been overcome in a particular case. The trial court’s

temporary orders and oral pronouncements in this case give no indication that the court considered

the presumption in conducting its best-interest analysis. See ante at ___. And while the petitioning

nonparent argues (erroneously) that the presumption does not apply to modification proceedings,

he does not alternatively argue that, in the event the presumption applies, he has adduced evidence

to overcome it. Id. at ___. This has left the Court with no basis on which to evaluate whether the

presumption has indeed been overcome at this stage of the proceeding.

On this issue, the Troxel plurality provided guidance but not a definitive standard. In

Troxel, the United States Supreme Court was asked to determine the constitutionality of

Washington’s nonparent visitation statute, which allowed “[a]ny person” to petition for visitation

with a child “at any time” and authorized the trial court to grant such visitation if it would be in

the best interest of the child. 530 U.S. at 60 (plurality opinion) (quotation omitted). The trial court

in Troxel awarded grandparent visitation over the objection of the child’s mother, who did not seek

“to cut off visitation entirely” but disagreed with the grandparents as to the appropriate amount.

Id. at 71.

The plurality saw two fundamental problems with the statute as it was applied to the

mother. First, it “effectively permit[ted] any third party seeking visitation to subject any decision

by a parent concerning visitation of the parent’s children to state-court review.” Id. at 67. Second,

as the statute had been construed by the Washington Supreme Court, it “accorded no deference”

to the decision of a “fit” parent—described as a parent who “adequately cares for his or her

2 children”—that visitation would not be in the child’s best interest. Id. at 67–68. Instead, the statute

allowed the trial court to overturn such a decision merely because the court “believe[d] a ‘better’

decision could be made.” Id. at 73. Importantly, while the plurality explained that a court “must

accord at least some special weight” to a fit parent’s best-interest determination, it declined to

define “the precise scope of the parental due process right in the visitation context” or to consider

whether a “showing of harm or potential harm to the child [is] a condition precedent to granting

visitation.” Id. at 70, 73.

After Troxel, the question remains: under what circumstances may a trial court award

custody or visitation to a nonparent over a fit parent’s objection, notwithstanding the special weight

that must be accorded the parent’s decision? In Texas, the Family Code provides a standard for

resolving this question in some types of proceedings but not in others. In an original suit affecting

the parent–child relationship, section 153.131 requires that a parent or parents be named managing

conservators “unless the court finds that appointment of the parent or parents would not be in the

best interest of the child because the appointment would significantly impair the child’s physical

health or emotional development.” TEX. FAM. CODE § 153.131(a). Similarly, a court may award

a grandparent possession of or access to a child over a parent’s objection only if, among other

things, the grandparent “overcome[s] the presumption that a parent acts in the best interest of the

parent’s child by proving by a preponderance of the evidence that the denial of possession of or

access to the child would significantly impair the child’s physical health or emotional well-being.”

Id. § 153.433(b)(2). However, as the Court recognizes, the Family Code says nothing about how

the presumption may be overcome in a modification proceeding like the one at issue here. See

ante at ___. Nor does the Code specifically address awards of possession or access (rather than

3 conservatorship) to a nonparent whose standing to file suit is premised on the parent-like role he

has played in a child’s life. See TEX. FAM. CODE § 102.003(a)(9) (granting standing to “a person,

other than a foster parent, who has had actual care, control, and possession of the child for at least

six months ending not more than 90 days preceding the date of the filing of the petition”). And

determining whether an award of such possession or access is in the child’s best interest while

according the requisite weight to a fit parent’s objection is no easy task.

A person who establishes standing under section 102.003(a)(9) of the Family Code has

“general standing to file a suit for conservatorship and access.” Shook v. Gray, 381 S.W.3d 540,

543 (Tex. 2012). 2 We held in In re H.S. that a nonparent has standing under subsection (a)(9) “if,

for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a

principal residence with the child, (2) providing for the child’s daily physical and psychological

needs, and (3) exercising guidance, governance, and direction similar to that typically exercised

on a day-to-day basis by parents with their children.” 550 S.W.3d 151, 160 (Tex. 2018). We

explained that “the relationship that develops over time between a child and a person who serves

in a parent-like role . . . justifies allowing that person to seek to preserve involvement in the child’s

life.” Id. at 159.

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