Opinions, April 28, 2015

The First Court of Appeals released a published opinion this morning in Ashfaq v. Ashfaq, No. 01-14-00329-CV (Tex.App.–Houston [1st Dist.] Apr. 28, 2015) and the Fourteenth released an unpublished opinion in In re R.N.Y., No. 14-14-00984-CV (Tex.App.–Houston [14th Dist.] Apr. 28, 2015).

In Ashfaq, the husband and wife were married in Pakistan in 2007. In 2011, the wife petitioned for divorce in Harris County, Texas. Trouble was, the husband had already procured a divorce in Pakistan in 2010. Thus the trial court dismissed the petition for divorce for want of jurisdiction and treated the rest of the petition as a post-divorce petition for division of marital assets. In the Houston proceeding, the husband provided the testimony of an expert in Pakistani divorce law who testified that the divorce procured by the husband in Pakistan was valid. In addition to other procedural hoops, Pakistani divorce requires the husband to pronounce “talaq” (“I divorce you”) three times and then provide a copy of the divorce deed to the wife. At trial, the wife admitted she had received Pakistani divorce papers from the husband. On appeal, the wife raised a number of objections which the Court of Appeals dismissed. First, the wife alleged that the husband and wife did not meet the domiciliary requirements under Texas law to be divorced. The Court of Appeals noted that Pakistani divorce law does not appear to have the same domiciliary requirements Texas does and thus the issue did not affect the validity of the Pakistani divorce. The Pakistani expert said as along as the husband and the wife were still Pakistani citizens when the Pakistani divorce happened, they met Pakistani’s domiciliary requirements (wife was a Pakistani citizen and the husband had dual U.S. and Pakistani citizenship). Further, Texas courts treat foreign law as a fact issue and the wife did not present any evidence to contradict the husband’s Pakistani expert. Additionally, the wife argued on appeal that the Pakistani divorce was invalid because it offended public policy because it denies due process and was fundamentally unfair. But the Court of Appeals noted that she had admitted at trial that she received some notice of the Pakistani divorce proceedings and that, as a matter of comity, Pakistani divorces can be recognized as valid where there is notice. Finally, the wife argued the divorce was not valid under Pakistani law, but she only raised some of these issues for the first  time on appeal. Because she only raised some of the issues for the first time on appeal and failed to controvert the husband’s expert testimony that the Pakistani divorce was valid at trial, the Court of Appeals affirmed.

In R.N.Y., the mother and father appealed the trial court’s decree terminating their parental rights. The father’s appointed counsel filed an Anders brief but the mother’s sole issue on appeal was whether the termination was in the child’s best interest. The Court of Appeals affirmed. The child incurred broken ribs and bruises a few months after birth, in or around December 2013. In February 2014, the father was arrested for injury to the child and incarcerated.  The mother tested positive for drugs on four out of twelve occasions throughout 2014. The trial court made predicate findings that the mother had committed acts establishing grounds set out in subsections D, E, and O, of section 161.001(1) of the Texas Family Code which the mother did not challenge. Instead the mother argued that the DFPS did not defeat the presumption in favor of keeping the parent-child relationship. The Court of Appeals then reviewed the Holley factors as applied to the case, emphasizing the drug history, the mother’s failure to complete the service plan, and that testimony which indicated the mother knew or should have known about the broken ribs. Also, the maternal grandmother was ruled out as a potential placement because the injuries to the child occurred in her house despite the fact that the father was solely responsible for the injuries. Despite evidence that the mother had made significant attempts to complete the service plan, visited her son frequently, the maternal grandmother might have been a suitable placement, and that the service plan was difficult for her to complete, the Court of Appeals, perhaps surprisingly, found the evidence was sufficiently clear and convincing to terminate her parental rights.


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