In the Interest of C.A.M.M.--Appeal from 310th District Court of Harris County

Affirmed as Modified and Majority and Concurring Opinions filed October 30, 2007

Affirmed as Modified and Majority and Concurring Opinions filed October 30, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00279-CV

____________

IN THE INTEREST OF C.A.M.M.

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 94-029839

C O N C U R R I N G O P I N I O N

The United States Supreme Court has concluded in a line of cases that, under the Due Process Clause of the Fourteenth Amendment, parents have a fundamental right to make decisions concerning the care, custody, and control of their children.[1] The Texas Supreme Court likewise has held that Athe natural right which exists between parents and their children is one of constitutional dimensions.@[2] It used to be that in a contest between a fit parent and non-parents, the fit parent would prevail. See State v. Deaton, 93 Tex. 243, 54 S.W. 901, 903 (Tex. 1900). That is no longer the case. Under the Texas Family Code, a trial court is authorized to deprive a fit parent of the exclusive right to parent his own child and instead place fundamental parental rights in the hands of non-parents, to the exclusion of the fit parent. Though the result the court reaches today is correct under existing law, this case raises serious questions about the fundamental rights of fit parents to make decisions concerning the care, custody, and control of their own children.

Consistent with the constitutional rights of fit parents, the Texas Legislature, for the most part, gives fit parents priority over non-parents in matters relating to the parents= children. For example, except as to parents with a history of domestic violence, the Legislature, in the Texas Family Code, requires that the trial court appoint a parent as managing conservator in an original conservatorship suit, unless the court Afinds 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.@[3] Though grandparents are given standing to file an original suit seeking to be appointed managing conservators of a child, they must show satisfactory proof that Athe order requested is necessary because the child=s present circumstances would significantly impair the child=s physical health or emotional development.@[4] Likewise, though the trial court may grant a person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so, there must be satisfactory proof that Aappointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child=s physical health or emotional development.@[5] Similarly, the trial court is authorized to order reasonable possession of or access to a grandchild by a grandparent only if, among other things, the grandparent Aovercomes the presumption that a parent acts in the best interest of the parent=s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child=s physical health or emotional well being.@[6] This strong statutory preference favoring parents, known as the Aparental presumption,@ is a powerful force in a conservatorship proceeding. Without it, a fit parent is on equal footing with non-parents vis- -vis the conservatorship of the parent=s children.

Although our lawmakers have adopted a general approach of giving fit parents priority over non-parents for matters relating to the parents= children, they have not done so in all cases. In cases such as the one now under review, our lawmakers have chosen to deprive fit parents of the parental presumption, effectively placing them on a par with non-parents in a contest over conservatorship of the parents= children.

In this case, the petitioners (collectively ANon-Parents@) filed an original suit seeking their appointment as primary managing conservators of Camille[7] rather than the child=s fit parent (AParent@). The Legislature explicitly allows non-parents to do so when they are people Awith whom the child and the child=s . . . managing conservator . . . or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child=s . . . managing conservator . . . or parent is deceased at the time of the filing of the petition.@[8] This statutory regime makes sense in an original action, because the non-parents would have to overcome the strong parental presumption before they could be appointed managing conservators.[9] But, in a modification suit, a parent is not given the benefit of the parental presumptionCeven in a contest with non-parents. Consequently, the trial court can modify a conservatorship order based only upon its determination that Amodification would be in the best interest of the child and (1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed . . . [or] (2) the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child=s preference to have the exclusive right to designate the primary residence of the child.@[10] In this case, the child filed with the court a document reflecting her preference that the Non-Parents have the exclusive right to designate her primary residence. Therefore, without applying the parental presumption and without determining that the child=s only living parent is unfit, the trial court could appoint non-parents as managing conservators with the exclusive right to determine the child=s residence based solely on a Abest interests of the child@ determination, an inquiry that traditionally did not even come into play where a fit parent was concerned. In this way, the Texas Family Code allows non-parents to usurp fundamental parental rights from a fit parent.

By allowing the appointment of non-parents as primary managing conservators instead of the only surviving parent, who has never been shown to be unfit, the Texas Legislature has permitted surviving parents= fundamental constitutional rights C rights Afar more precious than any property right@[11] C to be defeated without requiring the non-parents to overcome the parental presumption. Under the Texas Family Code, even parents whose fitness is unquestioned may be deprived of the exclusive right to rear their children following the death of the child=s other parent. Trial courts are permitted to endow non-parents with the fundamental decision-making power over where the child will live and where the child will go to school. By allowing non-parents to assert a modification action in this context, the Legislature has sanctioned this result as long as the trial court finds that it is in the child=s best interest and as long as the child states that she wants the non-parents to determine where she lives.

In 1995 our lawmakers enacted a statute providing that any person who has standing to file an original suit also has standing to file a modification action.[12] Therefore, without explicitly listing them, the Legislature incorporated by reference the fourteen categories of people or entities who have standing to file original suits and stated that these parties also may file modification actions. Under the unambiguous language enacted by the Legislature in 1995, the Non-Parents could seek to modify the prior conservatorship order so that they could be appointed as primary conservators because they are people Awith whom the child and the child=s . . . managing conservator . . . or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child=s . . . managing conservator . . . or parent is deceased at the time of the filing of the petition.@[13]

Under this statutory language, a non-parent with whom a deceased parent has lived for six months can become the primary joint managing conservator in lieu of the surviving fit parent, based solely on the stated preference of a twelve-year-old child and a finding by the trial court that such an arrangement is in the child=s best interest. Some have suggested that, in an as-applied context, the Texas Family Code violates the substantive due process rights of the fit parent.[14] However, the plurality in Troxel v. Granville expressly declined to define the scope of the parental substantive due process right to which it referred in the context of the grandparent-access statute at issue in that case.[15] Furthermore, prior to the trial court=s original order on the petition to modify, the Parent did not request to be appointed primary or sole managing conservator, and he never asserted pleadings seeking this relief. Existing precedent from the United States Supreme Court suggests that in this context the Parent=s substantive due process rights were sufficiently protected by the trial court=s Abest interests of the child@ determination.[16] Research has not revealed any precedent from the United States Supreme Court, the Texas Supreme Court, or this court holding that substantive due process requires that the Parent be proved unfit or that the parental presumption be rebutted under the circumstances of this case. For these reasons, there is no merit in the Parent=s as-applied challenge to the constitutionality of the relevant provisions of the Texas Family Code.

More than a century ago, in another contest between a fit parent and non-parents over a child, the Texas Supreme Court addressed the tension between the rights of a fit parent and the desire for stability for the child who had been living for an extended time with two non-parents.[17] Our high court, reaching a result different than would be permitted under the current Texas Family Code, stated that, whatever the form of the proceeding, courts would interfere with parents= rights to custody of their minor children Awith great caution, and with a deep sense of responsibility.@ State v. Deaton, 93 Tex. 243, 54 S.W. 901, 903 (Tex. 1900). The Texas Supreme Court held that Ain the absence of any positive disqualification of the [parent] for the proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his [child], which no court is at liberty to disregard.@ Id.

Under the former paradigm, fit parents were allowed to parent their own children. As long as the parent was not unfit, the courts did not interfere. A fit parent was presumed to act in his child=s best interest, so if non-parents sought rights over the fit parent=s child, there was no need for an analysis of the Holley factors.[18] Likewise, in a contest between a fit parent and non-parents, the desires of a twelve-year old would not be sufficient to overcome the Aparamount right@ of the fit parent to custody of the child. See id. Under our current statutory scheme, if the child of a fit parent would rather live with a non-parent, the trial court canC and in this case didChonor the child=s wishes. As a result, the Parent=s child is living with the Non-Parents and they have been awarded the exclusive right to make important decisions in the child=s life.

Clearly, this paradigm shift has adversely impacted the ability of fit parents to make decisions concerning the care, custody, and control of their own children. Under the unambiguous statutes, the Non-Parents were allowed to file a petition to modify, and the trial court had the statutory authority to appoint them as primary managing conservators and grant them rights to the exclusion of the Parent, without application of the parental presumption or evidence rebutting it, and without any showing that the child=s only living parent was unfit. Whether or not our lawmakers actually envisioned such a result when they enacted the relevant statutes, this court must enforce the unambiguous statutory language as written.[19] For these reasons, I respectfully concur in the court=s judgment.[20]

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed October 30, 2007.

Panel consists of Justices Frost, Seymore, and Guzman. (Guzman, J., majority).

[1] See Troxel v. Granville, 530 U.S. 57, 65B66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000) (plurality op.) (collecting cases and concluding that Ait cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972) (stating that Athe rights to conceive and to raise one=s children have been deemed >essential,= >basic civil rights of man,= and >rights far more precious . . . than property rights=@) (citations omitted); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 2d 645 (1944) (stating that Ait is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder@).

[2] Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004).

[3] Tex. Fam. Code Ann. ' 153.131 (Vernon 2002).

[4] Tex. Fam. Code Ann. ' 102.004(a) (Vernon Supp. 2006).

[5] Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006).

[6] Tex. Fam. Code Ann. ' 153.433 (Vernon Supp. 2006).

[7] Camille is the fictitious name used by the majority for the Parent=s child.

[8] Tex. Fam. Code Ann. ' 102.003(11) (Vernon Supp. 2006).

[9] Tex. Fam. Code Ann. ' 153.131.

[10] Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006); In re V.L.K., 24 S.W.3d 338, 342B43 (Tex. 2000).

[11] Stanley, 405 U.S. at 651, 92 S. Ct. at 1212.

[12] See Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 113, 172 (current version at Tex. Fam. Code Ann. ' 153.002).

[13] Tex. Fam. Code Ann. '' 102.003(11), 156.002(b).

[14] See, e.g., David F. Johnson, In re V.L.K. v. Troxel: Is the ABest Interest@ Standard in a Motion to Modify the Sole Managing Conservator Subject to a Due Process or Due Course Challenge?, 34 St. Mary=s L.J. 623, 639-49 (2003).

[15] See Troxel, 530 U.S. at 73, 120 S. Ct. at 2064.

[16] See Quilloin v. Walcott, 434 U.S. 246, 252B56, 98 S. Ct. 549, 553B55, 54 L. Ed. 2d 511 (1978) (holding that due process rights of father were sufficiently protected by trial court=s Abest interest of the child@ determination, even though there was no showing that he was an Aunfit parent,@where he did not seek to legitimatize the child for the first eleven years of the child=s life and where father had a relationship with the child but had never had custody of the child).

[17] The child of the fit parent had resided in the home of non-parents for four years (from the time the child was two years old until trial, when the child was six years old).

[18] See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976) (listing a range of factors that courts consider in determining the best interest of the child, including (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 individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent).

[19] See Lee v. City of Houston, 807 S.W.2d 290, 293 (Tex. 1991).

[20] The court correctly modifies the trial court=s order because of the trial court=s error in issuing a supervised possession order rather than a standard possession order as to the Parent.