What is Actual Care, Control, & Possession?: Opinions, June 15, 2018

On June 15, 2018, the Texas Supreme Court released an important opinion on standing to file a SAPCR under TFC §102.003, specifically the interpretation of §102.003(a)(9) (“actual care, control, and possession of the child for at least six months”) in In re H.S., No. 16-0715. The vote was 5-4, with Justices Johnson, Guzman, and Brown joining a dissent authored by Justice Blacklock. Justice Guzman also authored her own dissent.

The child at issue lived in her maternal grandparents’ home for the first 23 months of her life. During the last 8 months, her grandparents were the primary caretakers and providers. The child’s mother was in rehab much of this time. The child saw her father intermittently. While the mother was in rehab, the grandparents directed the child’s day-to-day activities and took care of her daily needs, such as feeding her, clothing her, and paying for her daycare. The parents did still participate in some parenting decisions and saw the child on occasion.

The issue is whether or not the grandparents had standing under §102.003(a)(9) to bring a SAPCR and what the meaning of “actual care, control, and possession” in the statute is. The trial court dismissed the grandparents petition and the Fort Worth Court of Appeals affirmed. The Supreme Court reversed, finding they did have standing and that the meaning of the statutory text does not require any additional considerations posited by other Courts of Appeal, such as legal control, exclusive control, permanent control, or a showing that the parent has abdicated or relinquished his/her rights. In other words, just being a (not necessarily the sole) caretaker for the child on a day-to-day basis for a period of six months is sufficient under the statute, even if the parents continue to help care for the child and make decisions for the child. The Supreme Court emphasized that the issue is standing under the statute, not the final determination.

The test put forward by the Supreme Court is whether:

if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.

The Supreme Court specifically rejected an interpretation from the Beaumont Court of Appeals, which found the statute required legal right of control over the child. (In re K.K.C., 292 S.W.3d 788, 793 (Tex.App–Beaumont 2009, orig. proceeding). The Court also cited approvingly both Smith v. Hawkins, No. 01-0900060-CV, 2010 WL 3718546 at *3 (Tex.App.–Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem. op.) (finding nothing in the statute required the nonparent’s care and control to be exclusive) and Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 535 (Tex.App.–Austin 2011, no pet.) (finding the Legislature’s word choice manifests an intent to confer standing on a person who had for six months developed and maintained a relationship with the child by virtue of that person’s de facto care, control and possession “as distinguished from a bare legal right of care, control, and possession”).

The Blacklock dissent begins:

Today the Court holds that nearly anyone who has “played an unusual and significant parent-like role in a child’s life” may sue for legal rights of visitation and control over the child even if the child’s parents remain actively involved in the child’s life and oppose the non-parents’ wishes. According to the Court, section 102.003(a)(9) of the Family Code dictates this outcome. I respectfully disagree.

Noting that the grandparents established actual care and actual possession, the dissent goes on to examine what is meant by “actual control.” Both the majority and the dissent cite dictionaries, as they must because the phrase “actual care, control, and possession” is not defined by the statute and it is not a legal term of art. The dissent posits, without citing any authority, that “control” here “means more than day-to-day or hour-to-hour supervision and discipline” and “means responsibility for the important choices that must be made for the child.” (While this is certainly a reasonable interpretation, I do not believe it is the only reasonable interpretation and the statute does not provide much guidance on the point.)

The dissent goes on to argue that the control contemplated by the statute can only take place after the child’s parents have relinquished control, on the theory that “control” must mean something different from “care” and “possession” or the word would be surplusage: “If all parental ‘control’ means is deciding ‘when [a child] gets up and goes to bed, how much television she watches, whether she gets dessert, [and] when she needs to go to the doctor,’ then I can discern no distinction between ‘care’ and ‘control.'” While it is important to give meaning to each word of a statute, reasonable minds can differ on what is taking an axiom of statutory construction too far.

Justice Guzman’s dissent cites how the parents remained involved in the child’s life and exercised their parental rights during the relevant time period to make an overlapping argument that “control” implies a single point of decision-making and that a “non-parent’s supportive participation in parental decision-making commensurate with actual control over the child is neither reasonable nor consistent with the plain meaning of the term.”

Even if one agrees the Supreme Court’s holding, one must acknowledge that is a relatively-broad reading that might open the door to more petitioners in the future. Stay tuned for further cases over what constitutes “control.”  I know a lot of parents who say that there is no such thing.

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