Opinions, Sept. 15, 2015

The Fourteenth Court of Appeals released two memorandum opinions in parental rights termination cases this morning, in In re A.A.L.A., F.K.A., and C.M.A., No. 14-15-00265-CV and In re S.S.B. and R.D. III, No. 14-15-00352-CV. In both cases the trial court’s termination of the parental rights was affirmed.

In In re A.A.L.A., F.K.A., and C.M.A., the father but not the mother appealed termination of rights to the couple’s three children. Father asserted five issues challenging the legal and factual sufficiency of the evidence. Father had been incarcerated since 2009 while the three children lived with Mother. After being evicted from her apartment, Mother and the children stayed with a friend. Then Mother evidently fled in the friend’s car, leaving the children with the friend. The friend brought the children to the police station and reported his car stolen. Mother was apprehended. The DFPS took possession of the children in June 2013. The Mother was candid with the DFPS about her drug use and said the children would be better off without her.

Father was paroled in December 2014 and trial was held on January 28, 2015, at which Father was present and represented by counsel. At the end of the trial, the associate judge found both parents committed acts establishing predicate termination grounds under Tex. Fam. Code sec. 161.001(1), subsections D, E, and M and that termination was in the children’s best interests.

Under subsection M, a previous termination of parental rights to another child premised on subsections D or E (endangerment of the child) is sufficient predicate. In other words, subsection M effectively provides that D and E have a ripple effect: once an endangerer, always an endangerer. Father’s rights previously had been terminated to another child in 2004 under subsection E, a fact not challenged by the Father in either the trial court or on appeal. The Court of Appeals noted that since M was stipulated, it need not address the Father’s challenges as to D and E. Father urged on appeal, however, that the Court of Appeals should review the D and E findings for fear of the negative collateral consequences those findings may carry in the future–i.e. that those endangerment findings would support termination of his rights, per subsection M, in a future termination proceeding. Father argued he was entitled to review of the endangerment findings as a matter of due process.

The Court of Appeals stated Father’s incarceration when the proceeding began supported an endangerment finding, even if the 2004 termination was disregarded. Yet, “remembering that involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights,” the Court of Appeals agreed that where two termination proceedings are more than a decade apart, the potential negative collateral consequences of the 2015 termination warranted review of the D and E findings. The Court of Appeals was careful to limit its decision to the facts of this case, stating it was not addressing whether the collateral consequences doctrine applies in every parental termination + endangerment case.

Somewhat perplexingly, the Court of Appeals also stated it did not

address the broader question of whether the collateral consequences doctrine has a place in parental termination cases at all, given that the existence of a future termination proceeding will depend on the parent’s conduct, which is within the parent’s control, and the concept of collateral consequences generally refers to matters beyond a person’s control.

Despite its statement that it was not stating whether the collateral consequences doctrine applied in parental termination cases, it clearly applied the concept to this case to at least analyze the legal and factual sufficiency of the endangerment findings. The Court of Appeals appears to be leaving the door open a crack on this issue.

Turning to the endangerment findings, the Court of Appeals summarized the Father’s lengthy criminal history and his knowledge of Mother’s drug use and concluded the evidence was legally and factually sufficient to support the D and E findings.

In In re S.S.B. and R.D., III, the mother and father separately appealed the trial court’s termination of their parental rights to the children. The Court of Appeals addressed each parent’s appeal individually.

The mother’s parental rights were terminated on the grounds of D, E, M, and O. Her attorney filed an Anders brief, alleging the appeal was frivolous and without merit. The Court of Appeals agreed.

As for the Father’s appeal, though the trial court found grounds for termination under under D, E, and O and the trial court’s findings that termination was in the child’s best interest (Father was the father of R.D. III only, not of S.S.B.), the father appealed only the O and best interest findings.

Trial was held in March 2015. The father was was 22 at the time, lived with his grandmother, and had tested positive for drugs five times in 2014 and entered rehab in December 2014. He testified that he chose drugs over his child.  Father testified he had attended over 40 Narcotics Anonymous meetings since leaving rehab in January 2015; that he was participating in outpatient therapy at the time of trial; attending relapse therapy twice a week; had enrolled at Houston Community College; was employed full time; and had attended all scheduled visits with the son.

Nevertheless, the caseworker testified the children had been placed with the Father’s mother, but were removed for medical neglect. The Father’s mother wanted the daughter removed because she could not handle her behavior, but the DFPS wanted to keep the children together. The caseworker also testified that the father failed to complete the recommendations from his psychosocial evaluation, failed to maintain six months of stable employment or housing, and had not met the requirement to attend ninety NA meetings in ninety days. The caseworker did not believe the Father had completed his family plan of service. Based on Father’s continued drug use through the pendency of the case and his failure to complete his plan, the DFPS recommended termination.

Because the father did not challenge the trial court’s D and E findings, the Court of Appeals upheld the predicate grounds without addressing Father’s challenge of the O finding.

The Court of Appeals reviewed the Father’s challenge to the best interest finding and the record and found the evidence was legally and factually sufficient to support the trial court’s finding that termination was in the child’s best interest.


Delgado v. Araguz: Obergefell’s Past Future

Today the Texas Supreme Court denied the petition for review in Delgado v. Araguz without comment, possibly based on the position that the U.S. Supreme Court’s holding in Obergefell has retroactive effect, but that is not certain.

Nikki Araguz Loyd was born Justin Purdue in California in 1975. As recounted by the Thirteenth Court of Appeals’ opinion, she was diagnosed with “gender identity disorder” at the age of 18 and began feminizing hormone therapy as prescribed by her physician. At 21 she changed her name and then had her California birth certificate amended to reflect her name change. Then she obtained a Kansas drivers’ license which indicated she was female. She then obtained a Texas drivers’ license with the female designation.

In 2008, she and Thomas Trevino Araguz III, a firefighter, obtained a marriage license in Wharton County, Texas and were married on August 23, 2008. Nikki underwent reassignment surgery in October 2008. There was a dispute as to whether Thomas was aware of Nikki’s transition. Nikki and Thomas lived as husband and wife until his death in the line of duty in 2010. After Thomas’ death, his mother filed suit to have his marriage to Nikki declared void on the grounds that Texas law does not recognize a transgender person’s right to marry after gender reassignment. The trial court granted summary judgment in favor of the mother, finding “any purported marriage” between Thomas and Nikki was void.

The Thirteenth Court of Appeals reversed and remanded for further proceedings, citing 2009 amendments to the Family Code which indicated Texas permits post-transition individuals to marry, so long as they marry someone of the opposite sex.

After Obergefell was handed down, the parties filed supplemental briefing. Nikki argued that the ruling in favor of federally-protected same-sex marriage rights applied retroactively and effectively mooted the dispute. Thomas’ mother disagreed, arguing Obergefell was distinguishable because: 1) Obergefell was not retroactive and 2) Obergefell concerned same-sex couples who sought same-sex marriage but in this case, Nikki and Thomas sought opposite-sex marriage.

The Supreme Court did not issue an opinion, so any conclusions drawn from the denial of petition for review would have to be tentative at best. All we can say with certainty is the Thirteenth Court of Appeals’ opinion stands. Thus the question is what the Thirteenth’s opinion stands for. The Thirteenth’s opinion states that it holds:

“[U]nder Texas law a valid marriage could exist between Nikki and Thomas only if Nikki was a woman during their marriage such that there was a marriage between one man and one woman, as set forth in the Texas Constitution.”

In other words, an opposite-sex marriage is valid under Texas law even if one of the spouses is transgender. In 2009, the Texas Family Code was amended to permit transgender individuals to obtain marriage licenses upon presentation of “an original or certified copy of a court order relating to the applicant’s name change or sex change.” Tex. Fam. Code sec. 2.005(b)(8). The term “sex change” was not defined in the statute, as noted by the Thirteenth. There is no dispute that Nikki had male sex organs at the time of her marriage to Thomas. But, the Court said, mere reproductive organs are not the end of the debate and Nikki’s expert testimony regarding Nikki’s transition, not to mention her prior diagnosis and hormonal treatment, was sufficient to raise a fact issue to preclude summary judgment. Accordingly, the trial court’s summary judgment was reversed and remanded for further proceedings. Prospectively, the Thirteenth’s opinion is not of great precedential value, given Obergefell‘s legalization of all marriages between any two people.

Now that the Texas Supreme Court has denied review of the Thirteenth’s holding, the case will return to trial court where it will resume. When it does, there will be the additional issue of whether Obergefell‘s holding is retroactive, as Nikki argues it is under Harper v. Va. Dept. of Taxation, 509 U.S. 86 (1993), citing the general rule that the U.S. Supreme Court’s constitutional decisions are retroactive.

Thus it would appear Nikki can now win in trial court in one of two ways: 1) By establishing Obergefell is retroactive in which case it is moot whether or not Nikki was a male at the time of her marriage to Thomas; or 2) establishing she was female at the time of the ceremonial marriage. In her Reply in the Texas Supreme Court, Nikki argued the Office of the Attorney General has already chosen to recognize Obergefell‘s retroactive effect.

Retroactive effect appears to be one of the major questions to be countenanced in the wake of Obergefell. Hopefully Nikki will not require another favorable U.S. Supreme Court decision to prevail.

On a related note, I cannot recommend highly enough the remarkable profile of Judge Frye in the New York Times (Judge Frye was one of Nikki’s attorneys).