Articles Posted in Parental Rights

In a recent custody case before the Texas Supreme Court, the mother appealed a trial court’s decision to terminate her parental rights, asking the court to reconsider this ruling. The appellate court originally declined to issue an order on the mother’s appeal, deciding she failed to follow an important procedural step when she filed her appeal. Later, however, the Texas Supreme Court overruled this decision, telling the appellate court it should have reached the merits of the mother’s request.

Facts of the Case

According to the opinion, a trial court in Texas issued an order terminating both the mother’s and father’s rights to parent their child. The trial court judge announced his ruling in July 2022, and the mother appealed in October 2022. The trial judge’s written ruling, though, did not issue until November 2022. At that point, the appellate court dismissed the mother’s appeal, since it was filed before the final order was issued.

The court issued a second order in January 2023, naming a guardian for the minor child. The mother filed a second appeal the same month, again asking the court to reconsider the trial court’s ruling. At that point, the court again rejected the mother’s order, telling her she should have appealed the November 2022 order instead of the January 2023 order.

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Family law practice in Texas involves complex procedures and intricate legal maneuvers, which often define the process of filing an appeal. A recent judicial opinion involving a Texas family law case where a father sought to appeal the termination of his parental rights demonstrates the intricacies and potential pitfalls of the appeal process and serves as a reminder of the importance of retaining counsel with a sufficient understanding of the law’s nuances when fighting for parental rights.

According to the facts discussed in the recent judicial opinion, a father was faced with losing his parental rights to his two children after he was found unfit during a bench trial. The trial court ultimately ordered the termination of both the father’s and the mother’s rights, citing several legal grounds under the Family Code. The parents’ world turned upside down, and they decided to appeal this life-altering decision.

Texas law allows parties to appeal to one of two different courts of appeals, and this choice can have significant implications for the case. This decision requires careful consideration and could ultimately impact the fate of the appeal. In this particular case, the father initially noticed his appeal to one court of appeals, while the mother chose the other. However, as the parties recognized the need for consolidation of their appeals from the same trial court order, a jurisdictional dispute arose. This situation necessitated a subsequent amendment to the notice of appeal to reflect the mother’s chosen appellate court.

Navigating the intricate landscape of family law proceedings is no easy task, and when parental rights are on the line, the stakes are incredibly high. A parent’s rights to parent their child are seen as fundamental under both the federal and Texas state constitutions A recent judicial published by the Texas Court of Appeals sheds light on the challenges parents can face in cases seeking the termination of parental rights.

According to the facts discussed in the recently published opinion, the Texas Department of Family and Protective Services embarked on a legal journey to terminate the parental rights of N.R. (Father) and E.R. (Mother) concerning their two-year-old child. The case eventually made its way to court, leading to a judgment that would significantly impact the lives of those involved. N.R. (Father) appealed this judgment, resulting in the appellate proceeding.

The heart of Father’s appeal rested on the contention that the associate judge overseeing the trial had erred by proceeding with the trial on the merits, despite Father’s objection to the case referral. The legal landscape, as outlined by the Texas Family Code, permits judges to refer certain matters, including parent-child relationship suits, to associate judges for trial. However, this referral is not without its constraints. If a party raises a timely objection to the associate judge hearing the trial on the merits, the judge must then preside over the trial themselves.

Texas child abuse and neglect cases often require that a child be placed in the temporary custody of another person besides the parent during the pendency of the proceeding. This may be necessary because serious allegations of abuse or neglect can warrant an urgent change in custody to protect a child from harm. Texas law works with a presumption that a child is best suited to be placed in the custody of a blood relative, especially if the child has a preexisting relationship with the relative.

In instances where parental rights are terminated after a judicial proceeding, the child will be placed in the permanent custody of another party besides the parent at issue. Courts often choose to make whatever temporary arrangement permanent after termination so long as the temporary custodian is interested in obtaining full custody of the child. A recent Texas appellate decision demonstrates the difficulty blood relatives may have in gaining custody of a child when the child was initially placed in the temporary custody of another person.

According to the facts discussed in the recently published appellate opinion, the child at issue was removed from the custody of his mother after he was hospitalized as unresponsive and tested positive for PCP, a powerful and illegal sedative drug. The child was received at the hospital, and a welfare proceeding was initiated on his behalf. During the proceeding, the child was placed in the care of a foster family, although later, a maternal aunt of the child was also interested in taking care of him as the aunt also had custody of the child’s younger brother.

It has been said that the termination of a natural parent’s parental rights is akin to “the death penalty” of child welfare cases. When the Texas Department of Family and Protective Services makes the decision that it is in a child’s best interest to terminate the rights of a natural parent, the proceedings are often taken as a last resort. Because the rights involved are so important and fundamental, the DFPS must follow strict procedural guidelines when pursuing a termination case. The Texas Supreme Court recently addressed a natural father’s appeal from a ruling terminating his parental rights.

According to the facts discussed in the recently published appellate opinion, the Texas DFPS had sought to terminate a man’s parental rights over his son. The man and the child’s mother were married in 2016 and the child was born in 2017. The mother had a history of drug problems and appeared to expose the child to drugs before and after her pregnancy. In a different proceeding, the mother’s parental rights were terminated for her failure to abide by a safety plan enacted by the DFPS.

In the instant case, the DFPS alleged that the man did not have a safe home for his son to live in with him. Additionally, the DFPS was concerned about the man’s continued contact with the child’s mother, and his minimization of her drug and behavioral issues. The father proposed that he and his son could move in with a family member, however, the plans were not guaranteed, and the DFPS continued to pursue termination proceedings. At trial, a jury found that terminating the father’s parental rights was in the best interest of the child, in part because the father knowingly allowed the child to be endangered by the mother’s drug abuse.

The State of Texas has an interest in the welfare of children living in the state. When there are accusations that a child is being abused or neglected, the Texas Department of Family and Protective Services (the Department) may get involved to protect endangered children. If a Department investigation finds that a child is at risk of abuse or neglect, custody of the child may be taken from the parent or parents and placed in the temporary custody of a relative or other responsible adult.

When child welfare proceedings are initiated by the Department, parents are given a safety plan outlining what needs to be done to safely return the child to their custody. If a parent substantially and repeatedly fails to uphold their end of a Department service plan, the Department may seek to terminate that parent’s parental rights, paving the way for the child to be adopted by another family that can safely care for them. The Texas Supreme Court recently addressed a Texas Court of Appeals decision that had ordered a new trial after a man’s parental rights had been terminated.

The parent in the recently decided case was brought to the attention of the Texas Department of Family and Protective Services when an anonymous source reported that he and the child’s mother had hurt the child. An agent from the Department visited the parents’ home and noted that the child was bruised. Later, test results showed that the child had a measurable amount of cocaine and methamphetamine in her system. As a result of this, an emergency custody order was made and the child was placed in the care of a relative. In order to regain custody of the child, the father was placed on a safety plan that required him to submit to drug and alcohol testing and seek psychological care. Because the father failed to meet the requirements of the service plan, the Department initiated termination proceedings.

Courts are working to head off problems with custody orders caused by the Coronavirus.  If you have a custody order you must keep up with these orders, since they apply to you. The most recent order on family cases in Kaufman County is from March 25th.

Standing Order Governing Possession and Access During the Shelter in Place Order of Kaufman County Judge Signed March 24, 2020

For all cases arising from the Family Law Courts of Kaufman County, the Court ORDERS that:

Can I ask a Texas Court for visitation rights for my grandchild?

Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.

How does Grandparent visitation work in Texas?

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.

You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established.  However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then?  Most people say that you can “save the child support” but that is not ideal.  Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school.  Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.”  In the Interest of W.R.B. and B.K.B., Children.  So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas.     There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a).  Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments.  In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing.  In the agreed modification orders, the parties had done just that.  Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support.  However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code.  Rather, the proper avenue is breach of contract.  This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority.   This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

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