The First District Court of Appeals released an interesting published opinion yesterday, an opinion on rehearing which replaces and reverses the COA’s prior, memorandum opinion in Turrubiartes v. Olvera, No. 01-16-00322-CV. The original memorandum opinion was issued on June 1, 2017. Here is my post on the original opinion in its entirety:
In Turrubiartes v. Olvera, No. 01-16-00322-CV, the mother appealed the trial court’s decision awarding the father SMC and PC to the mother. The evidence showed that, inter alia, the mother was not a legal citizen of this country, that she had been living here peaceably for six years, that she had secreted the children from their father, refused to tell him where they were living and denied him access to the children, and that the mother’s brother-in-law approached the father and threatened to kill him or have him killed if he attempted to visit the children. On appeal, the mother argued that the trial court improperly based its ruling on her immigration status but the Court of Appeals found that there was sufficient evidence in the record to support the SMC/PC finding.
So what changed? The new opinion (like the original opinion) acknowledges that the record included enough evidence to overcome the presumption in favor of JMC, but found the trial court went outside the statutory factors to be considered in deciding whether the presumption has been rebutted by considering the mother’s immigration status. Specifically, the trial court found that the mother “was an undocumented immigrant without a driver’s license who could be detained by the police for driving without a license and subsequently deported due to her immigration status,” and that her immigration status had prevented her from obtaining her own residence. As a result of these findings, the trial court entered orders which required mother find a licensed driver for her periods of possession and ordered the father to designate the child’s primary residence.
“Immigration status, standing alone, is not probative of [mother]’s fitness to be a parent to her children so as to deny her joint managing conservatorship,” the COA wrote. The trial court, the COA wrote, heard no evidence regarding any detention or immigration-related charge, any pending removal proceeding, or that mother was a subject of any criminal prosecution. The trial court expressly found that there was no evidence that the mother had been detained by immigration authorities since coming to the U.S. in 2006 or that she was the subject of any removal proceedings. “Absent evidence showing that it has had a material, adverse effect on the ability to parent, immigration status should not be used as a basis to deny joint managing conservatorship.” Because immigration status is not a statutory factor to determine best interest and the evidence did not establish its relevance, the trial court erred in relying on the mother’s immigration status in determining whether she can be a JMC. In other words, because the statutory factors do not include immigration status, and “it is not otherwise relevant on this record to its determination,” the COA held that the trial court erred in denying mother’s MNT, which challenged the trial court’s reliance on her immigration status. The matter was remanded for new trial.
It will be interesting to see how this issue is developed in the future (barring amendment of the statute by the Legislature). Both the original opinion and the current opinion note that the record included evidence sufficient to overcome the presumption that the parents should be JMCs, without immigration status figuring into the analysis at all. However, whereas the original opinion did not have any problem with the trial court finding mother’s immigration status to be relevant because it affected her ability to legally drive and secure stable housing, the new opinion found that such evidence was not relevant because the children were protected from such dangers because the trial court ordered mother procure someone else to drive when the children were in her possession and by designating the father as the parent to determine the children’s primary residence.
But this ruling seems to raise some questions, in my humble opinion. First, if the trial court felt it was necessary to enter orders to protect the children from possible repercussions of mother’s immigration status (which the new opinion seems to approve of), does that not mean that the immigration status was, ipso facto, at least relevant, if not material or dispositive? Secondly, then when is immigration status relevant to a JMC determination? Does there have to be an open removal proceeding? A history of detention?
It is also interesting to note that the panel that issued the original opinion consisted of Justices Keyes, Bland, and Huddle, with Justice Bland writing the original opinion. Thereafter Justice Huddle resigned her office (apparently returning to private practice) and did not participate with the rehearing, so the panel issuing the new opinion consisted of just Justices Keyes and Bland, with Justice Bland again the author. In other words, after rehearing, the remaining Justices performed a 180 of their original opinion. That must have been some rehearing.