in the Interest of H.S., a Minor Child , 550 S.W.3d 151 ( 2018 )

IN THE SUPREME COURT OF TEXAS
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No. 16-0715
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IN THE INTEREST OF H.S., A MINOR CHILD
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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JUSTICE BLACKLOCK, joined by JUSTICE JOHNSON, JUSTICE GUZMAN, and JUSTICE BROWN,
dissenting.
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.
Section 102.003(a)(9) grants standing to file a suit affecting the parent-child relationship
to non-parents who have had “actual care, control, and possession of the child for at least six
months.” The court of appeals essentially reasoned that “actual care, control, and possession” of
a child belongs presumptively to the child’s parents. Thus, for a non-parent to achieve the “actual
care, control, and possession” required for standing, the child’s parents must first give up “actual
care, control, and possession.” We should adopt this simple formulation, primarily because it
comports with the statute’s text but also because it avoids potential encroachment on “the
fundamental right of parents to make decisions concerning the care, custody, and control of their
children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion). Even if the choice were
between two equally persuasive readings of section 102.003(a)(9)—and it is not—I would adopt
the reading that avoids burdening parents’ unalienable right to raise their children as they see fit,
rather than the reading that follows modern trends in family law.
The Court instead condenses the statute’s three-pronged requirement of “actual care,
control, and possession” into one question: Did the non-parent “play[] an unusual and significant
parent-like role in a child’s life”? Ante at __ [19]. In the Court’s view, this “parent-like role” may
be played simultaneously by parents and by multiple non-parents alike. As a matter of statutory
interpretation, the principal defect in the Court’s approach is its failure to afford independent
meaning to the statute’s “actual control” requirement apart from the control already entailed in
“actual care” and “actual possession.” The result is that parents who remain in control of their
children’s lives can be forced into visitation and custody fights over their own children by any
non-parent whose relationship with the child triggers the Court’s malleable “parent-like role”
standard. The Court rightly recognizes that non-parents who care for and reside with a child may
often develop a special bond with the child. Heather’s grandparents surely have such a bond with
Heather, and I join Justice Guzman in commending them for their admirable willingness to help
provide for Heather during a difficult time in her parents’ lives. But Texas law recognizes the
unique, exclusive, and constitutionally protected relationship between parents and their children.
One way it does so is through section 102.003(a)(9), which limits non-parent standing in custody
and visitation cases to situations in which parents no longer exercise their unique and exclusive
right of “actual control” over their child. Only then can a non-parent take up the “parent-like role”
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of “actual control” required for standing. No one can fully stand in a parent’s shoes unless the
parent first steps out of those shoes and walks away.
In the case before us, the child’s Mother and Father sent their daughter “Heather” to live
with her Grandparents for a temporary period. After an evidentiary hearing, the trial court found
that although Grandparents were Heather’s primary caregivers during this time, both Mother and
Father remained actively involved in their daughter’s life, made medical decisions for her, and
never intended to relinquish control over her upbringing to her Grandparents. I agree with the trial
court and the court of appeals that the child’s parents, not her Grandparents, retained “actual
control” over her throughout the time in question. Because Grandparents did not have “actual
care, control, and possession” of the child for the required six-month period, they failed to satisfy
section 102.003(a)(9)’s standing requirements. We should affirm the court of appeals’ judgment
dismissing the case.
I. Factual Background
The trial court entered detailed findings of fact supporting its conclusion that the child’s
parents remained sufficiently involved in her life to exclude the possibility that anyone else
exercised actual control over her. We should review these findings of fact under a deferential legal
sufficiency standard. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
The Court’s recitation of the facts does not track the trial court’s findings. We are obliged to afford
the trial court’s fact findings “the same force and dignity as a jury’s verdict upon questions.”
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). Instead, the Court engages
in its own summary of the testimony, some of which comports with the trial court’s factual findings
and some of which does not. This case turns primarily on a legal question of statutory construction,
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and presumably the Court would reach the same conclusion on the meaning of section
102.003(a)(9) even if it had explicitly deferred to the trial court’s fact-findings. But in any event,
re-stating the facts as the trial court found them provides the best basis for understanding the nature
of the case before us. The trial court found as follows:
Mother and Heather lived with Grandparents for several months before Mother moved out
to begin a temporary stay at a rehab facility called Sober Living, where Mother could address her
alcohol problem. Mother, Father, and Grandparents held a family meeting and reached an
agreement regarding the terms of Heather’s stay at Grandparents’ house. Mother’s absence was
intended to be, and actually was, temporary. The living arrangement was a temporary solution
until Mother was able to stabilize in her recovery. After her stay at Sober Living, Mother wanted
Heather to live with her and for Father to continue co-parenting Heather.
During the time Heather lived with Grandparents, Mother continued to make certain
decisions for Heather, including decisions regarding medical and wellness care. Mother gave
Grandmother permission to take Heather to the doctor for specific doctor office visits. Mother
signed a consent form allowing Grandparents to seek emergency medical care for Heather. Father
also gave his authorization for Heather to receive medical care in case of emergency. On more
than one occasion, a healthcare provider contacted Father for permission to provide medical care
to Heather.
Grandmother kept Mother fully informed of Heather’s activities. Grandmother consulted
with and sought input from Mother and Father on decisions that needed to be made for Heather.
Mother and Father both provided Grandmother with input regarding caring for Heather.
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Mother left Sober Living in the evenings to visit Heather at Grandparents’ house, where
Mother would have dinner with Heather, bathe her, spend time with her, and put her to bed. Mother
kept in constant contact with Heather while at Sober Living and would sometimes pick Heather
up from daycare. Father often spent time with Heather too. Father kept her virtually every other
weekend and would often see her more frequently. Both Mother and Father wanted Heather to
spend even more time with Father. Even though Father and Mother never married, they had always
done things together with Heather. Father is a fit father and has always been involved in Heather’s
life.
II. Text of Section 102.003(a)(9)
Section 102.003 of the Family Code provides:
General Standing to File Suit. (a) An original suit may be filed at any time by: . . .
(9) a person, other than a foster parent, who has had actual care, control, and
possession of the child for at least six months ending not more than 90 days
preceding the date of the filing of the petition; . . . . (b) In computing the time
necessary for standing under Subsection[] (a)(9) . . . the court may not require that
the time be continuous and uninterrupted but shall consider the child’s principal
residence during the relevant time preceding the date of commencement of the suit.
The outcome of this case depends on the meaning of these words. As always, we must
“presume the legislature chose a statute’s language with care.” Hallmark Mktg. Co. v. Hegar, 488
S.W.3d 795, 798 (Tex. 2016). This presumption of careful choice includes a presumption that
“each word [was] chosen for a purpose.” TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011). Every word and phrase should be given meaning, and we must not “omit
or gloss over verbiage in an attempt to reclaim clarity.” Centerpoint Builders GP, LLC v. Trussway
Ltd., 496 S.W.3d 33, 36 (Tex. 2016); see also BankDirect Capital Fin., LLC v. Plasma Fab, LLC,
519 S.W.3d 76, 86 (Tex. 2017) (“Separation of powers demands that judge-interpreters be
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sticklers.”). If possible, no words should be rendered meaningless or treated as surplusage.
Kallinen v. City of Houston, 462 S.W.3d 25, 28 (Tex. 2015).
The dispute is over the statutory phrase “actual care, control, and possession.” “Words and
phrases that are not defined by statute and that have not acquired a special or technical meaning
are typically given their plain or common meaning.” In re Lipsky, 460 S.W.3d 579, 590 (Tex.
2015). Here, the statute does not define its terms, and they have not acquired a special or technical
meaning. “Actual” means “[e]xisting in fact; real,” as opposed to “constructive.” Actual, BLACK’S
LAW DICTIONARY (10th ed. 2014) [hereinafter BLACK’S]. Here, the term modifies each of “care,
control, and possession.” “Thus, a person asserting standing under section 102.003(a)(9) must
show actual care, actual control, and actual possession.” Jasek v. Tex. Dep’t of Family &
Protective Servs., 348 S.W.3d 523, 532 (Tex. App.—Austin 2011, no pet.).
“Care” means the “provision of physical or psychological comfort to another,” Care,
BLACK’S, and “concern; regard . . . watchfulness . . . oversight, or management, implying
responsibility for safety,” Care, WEBSTER’S NEW INT’L DICTIONARY (2d ed. 1960) [hereinafter
WEBSTER’S]. “Control” means “[t]he direct or indirect power to govern the management and
policies of a person or entity . . . the power or authority to manage, direct, or oversee.” Control,
BLACK’S. It means “[t]he act or fact of controlling; power or authority to control; directing or
restraining domination; as under parental control.” Control, WEBSTER’S. It is “the act or power
of . . . command.” Control, THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (2d
ed. 1987) [hereinafter RANDOM HOUSE]. “Possession” means “the exercise of dominion over . . .
something,” Possession, BLACK’S, and “actual holding,” Possession, RANDOM HOUSE.
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This case comes down to what “actual control” means and whether Grandparents had it.
Mother and Father do not dispute that Grandparents had “actual possession” of Heather. As for
“actual care,” Grandparents’ primary daily responsibility for the supervision, discipline, and safety
of Heather supports the conclusion that they had actual care over her, though the trial court
disagreed. Since actual possession, actual care, and actual control are all required for standing, we
need not decide whether Grandparents had actual care of Heather if they did not have actual
control.
Because every word in the statute must have meaning and no words should be treated as
surplusage, the court of appeals correctly observed that “‘control’ in section 102.003(a)(9) means
‘something more than the control implicit in having care and possession of the child.’” In re H.S.,
No. 02-15-00303-CV, 2016 WL 4040497, at *4 (Tex. App.—Fort Worth July 28, 2016, pet.
granted) (mem. op.) (quoting In re K.K.C., 292 S.W.3d 788, 792 (Tex. App.—Beaumont 2009, no
pet.)). The Court’s reasoning, however, fails to give meaningful effect to the statute’s “actual
control” requirement beyond the elements of control already included in “actual possession” and
“actual care.” “Control” cannot mean providing daily supervision, clothing, food, transportation,
and the like. If it did, then “control” would be the same thing as “care,” rendering one statutory
term or the other superfluous. And if “control” were merely the physical holding of the child, then
“control” would be the same thing as “possession,” again rendering one term or the other
superfluous. Instead, “control” must mean something distinct from “care” and “possession.”
In the context of child-rearing, “control” of a child entails the power and authority to make
important decisions about the child’s life. As the definitions cited above indicate, to have “control”
of a child is to “govern,” “oversee,” and “direct” the child. This means more than day-to-day or
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hour-to-hour supervision and discipline—and certainly more than deciding “when [a child] gets
up and goes to bed, how much television she watches, [and] whether she gets dessert.” Ante at __
[12]. It means responsibility for the important choices that must be made for the child—choices
about where she will live, her medical care, her education, and her future. Such control is by its
nature, and by law, the exclusive right and duty of parents in the first instance.1 When important
decisions must be made for a child, someone bears ultimate responsibility for them no matter how
many other caregivers may be involved in the child’s life or consulted on the decision. Unless the
child’s parents refuse or shirk this responsibility, it is theirs both in law and in fact.
Parents often delegate matters of day-to-day care and possession to others, such as schools
or family members. Doing so does not reduce the parents’ control over their child or share “parent-
like” control with others. To the contrary, determining where a child will be and who will care for
her is a quintessential exercise of parents’ exclusive control over their children. Deciding to share
possession and care of a child with others is an exercise of the parents’ control over the child, not
a sharing of parental control or a relinquishment of it. Even if physically absent, a parent does not
hand over control of her child merely by handing over physical possession and care. Again, if that
were the case, “control” would have no role to play in section 102.003(a)(9).
Citing Coons-Andersen v. Andersen, 104 S.W.3d 630, 636 (Tex. App.—Dallas 2003, no
pet.), the Court agrees with the notion that section 102.003(a)(9) is in harmony with the common
law concept of in loco parentis. Ante at __ [10]. But under the classical understanding of in loco
parentis, the parent retains ultimate control of the child while consciously delegating possession
1
See, e.g., TEX. FAM. CODE § 151.001 (“Rights and Duties of Parent. (a) A parent of a child has the following
rights and duties: (1) the right to have physical possession, to direct the moral and religious training, and to designate
the residence of the child; (2) the duty of care, control, protection, and reasonable discipline of the child; . . . .”).
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and care of a child to another, such as a family member or boarding school. Such intentional
delegation of a portion of parental authority is a reflection, not a reduction, of parents’ exclusive
control over their children. 1 WILLIAM BLACKSTONE, COMMENTARIES *453–54 (“[The father]
may also delegate part of his parental authority” to someone “who is then in loco parentis, and has
such a portion of the power of the parent committed to his charge.”).
The Court suggests that the parents’ ultimate legal responsibility for the child is irrelevant
to the inquiry because the statute requires “actual control,” not “legal control” or “constructive
control.” Ante at __ [10]. This distinction between “legal control” and “actual control” matters,
but the Court takes it too far. That Mother and Father retained their legal rights as Heather’s
parents does not by itself foreclose Grandparents’ claim to “actual control” of Heather. But the
Court mistakenly treats legal control and actual control like opposites, when in fact they go hand
in hand nearly all the time. See Marino v. Lenoir, 526 S.W.3d 403, 409 (Tex. 2017) (“[Legal] is
not ordinarily used as the opposite of, or in contrast to, actual.”). Parents’ exclusive, ultimate legal
control over their children is no mere lawyerly construct. It is an actual fact of life that almost
always dictates who actually controls the child. Sometimes, usually in very difficult
circumstances, legal and actual control are severed. When a parent leaves the picture,
relinquishing the role of ultimate decision-maker for the child, the parent does not automatically
lose legal control of the child. But the parent does forfeit actual, factual control to whoever steps
into the parent’s shoes as the functional equivalent of the child’s parent. The person who steps
into the absent parent’s shoes does not have all the legal rights of a parent without court action,
but he has “actual control” of the child for purposes of section 102.003(a)(9) because he is
functionally the child’s ultimate decision-maker. The court of appeals correctly discerned that the
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“actual control” required by section 102.003(a)(9) remains fused with the parents’ legal control of
the child unless the parents relinquish their ultimate decision-making responsibility for the child
to someone else. In re H.S., 2016 WL 4040497, at *5.2
Adopting this understanding of “control” as distinct from “care” and “possession” does not
add extra words or requirements to the statute. See Lee v. City of Houston, 807 S.W.2d 290, 294–
95 (Tex. 1991) (“A court may not judicially amend a statute and add words that are not implicitly
contained in the language of the statute.”). “Control” must mean something more than “care” or
“possession.” Understanding “actual control” as the factual responsibility to make the kind of
decisions normally associated with legal control of the child gives “actual control” independent
meaning based on its commonly understood definition, as we should do. This does not add a
requirement to the statute. It gives life to the “actual control” requirement already contained in
the statutory text. Actual control and legal control usually exist coextensively in the parents. When
the parents relinquish their responsibilities, actual and legal control diverge, and someone else
takes up actual control of the child even though the absent parents retain their legal status. Section
102.003(a)(9) grants that person standing, so long as the statute’s other requirements are satisfied.
To illustrate the role “control” plays in section 102.003(a)(9), consider two scenarios in
which a single Father has a Son. In the first, Father goes to work on an offshore oil rig for seven
months, intending to return and resume his daily life with Son. He leaves Son with a close friend.
2
See also In re M.J.G., 248 S.W.3d 753, 759 (Tex. App.—Fort Worth 2008, no pet.) (denying standing for
grandparents because parents had not “abdicated their parental duties and responsibilities to the grandparents”); In re
K.K.C., 292 S.W.3d 788, 793 (Tex. App.—Beaumont 2009, no pet.) (denying standing for non-parent because parent
“did not relinquish to [non-parent] or abdicate her parental rights, duties, and responsibilities”); In re Kelso, 266
S.W.3d 586, 590 (Tex. App.—Fort Worth 2008, no pet.) (denying standing for non-parents because “the evidence
does not show that [mother] voluntarily relinquished permanent care, control, and possession of [child] to the [non-
parents] for the six months preceding their filing of the suit”).
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Father and Son talk on the phone most nights, and the caretaker regularly consults with Father
regarding Son’s schoolwork, discipline, and extracurricular activities. Father also signs off on
most medical treatment for Son. After six months, Father’s friend asserts standing under section
102.003(a)(9) to sue for permanent possession of Son. But the friend lacks standing, because even
though he had care and possession of Son, he did not have control; Father retained control. In the
second scenario, Father again goes to work on an offshore oil rig for seven months and leaves Son
with a close friend. This time, however, Father absconds from the rig and disappears with a
girlfriend. No one hears from Father for over six months. The caretaking friend asserts standing
under section 102.003(a)(9) to sue for custody of Son. In this scenario, there is little doubt the
friend has statutory standing. Father functionally relinquished his control of Son to the friend and
abdicated his parental control. Here the friend, not the Father, has actual control of Son.
The Court disagrees with this interpretation of actual control, but it recognizes that it should
give effect to the statutory requirement of “control” beyond what is already entailed in “care” and
“possession.” To this end, the Court offers a definition of control: “exercising guidance,
governance, and direction similar to that typically exercised on a day-to-day basis by parents with
their children.” Ante at __ [14].3 The Court’s emphasis on “day-to-day” matters blurs the statutory
3
The Court’s definition comes from the Austin Court of Appeals’ decision in Jasek v. Tex. Dep’t of Family
& Protective Servs., 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.). In that case, the child’s biological parents’
rights had been terminated, and the State had legal custody of the child. The child then lived exclusively with a non-
parent married couple for nearly two years. When the couple sued alleging standing on the basis of their “actual care,
control, and possession” of the child, the State argued that its ultimate legal control over the child foreclosed the
couple’s standing. The court disagreed, holding that “legal control” was not a requirement of “actual control.”
The Court relies heavily on several statements from Jasek about the distinction between legal control and
actual control. Some courts of appeals have likewise relied on Jasek’s reasoning to support an expansive view of
section 102.003(a)(9). But in Jasek the child’s parents had left the picture completely. The dispute was between the
child’s functional (though not legal) parents and the child’s legal “parent,” an incorporeal government entity. In such
a case, it makes perfect sense to conclude that the government’s legal control of the child says little about who actually
controlled the child. But the court in Jasek neither asked nor answered whether non-parents can achieve simultaneous
“actual control” of a child along with natural parents who continue to actively control the child’s life. Instead, the
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distinction between daily care and ultimate control. But the Court fails to apply even its own
flawed definition of “control.” What is the nature of the guidance, governance, and direction
typically exercised by parents with their children? The Court does not say. As explained above,
one defining characteristic of the guidance, governance, and direction typically exercised by
parents with their children is its exclusivity. The parent-child relationship is unique, both factually
and legally. There may be abundant important opportunities for non-parents to direct and guide
the child, but that does not make them the functional equivalent of the child’s parents. As long as
the parents remain actively involved in the child’s life, there is little room for anyone else to
exercise the control “typically exercised by parents” because the parents themselves already
occupy that unique and special role.
The Court seems to acknowledge that its understanding of “actual control” has nothing to
do with the ultimate decision-making authority “typically exercised by parents with their
children.” Instead, the Court limits its definition of “control” to the “day-to-day” matters of
parenting. 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.” Ante at __ [12]. The Court
apparently has the same trouble, which may be why it ultimately condenses the statute’s three
distinct requirements into a single “parent-like role” requirement. Ante at __ [20]. The correct
approach is to give all three textual requirements—care, control, and possession—independent
court decided that a non-parent couple acting as the only functional parent figures for the child had “actual control”
of the child even though a government entity was legally the child’s “parent.” Jasek was probably correctly decided.
But we should not rely on dicta from Jasek about the ability of non-parents to achieve “actual control” of a child when
Jasek did not involve a conflict between parents and non-parents as we normally understand those concepts.
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meaning by recognizing that the true extent of parents’ control over their children extends well
beyond the day-to-day matters of childcare to which the Court constricts its analysis.
Turning to the facts of this case, the Court points to nothing about Heather’s relationship
with her Grandparents that amounts to the guidance, governance, and direction typically exercised
by parents with their children. Rather than identify particular facts that establish each of the three
required elements for standing—care, control, and possession—the Court settles for an amalgam
of the three by asking whether Grandparents “played a parent-like role in Heather’s life.” Ante at
__ [15]. The Court notes several facts about the relationship that supposedly demonstrate
Grandparents’ “parent-like role”:
(1) Heather’s principal residence was Grandparents’ home;
(2) Grandparents were her primary caregivers;
(3) Grandparents paid for her food, clothes, and daycare, and managed her day-to-day
activities;
(4) Grandparents took her to urgent care when necessary and took her to the doctor for
checkups, though Mother made the check-up appointments; and
(5) Grandparents kept Mother and Father “reasonably informed” about Heather’s activities
and medical needs and involved them in decisions about her.
Id. The Court concludes from these facts that Grandparents “played a parent-like role in Heather’s
life.” Id. That conclusion fails to appreciate the unique and exclusive nature of the parent-child
relationship. But leaving that aside, the statute does not require “a parent-like role.” It requires
“actual care, possession, and control.” Of the five facts identified by the Court, the first concerns
possession, and the next two concern care. The fifth actually undercuts the Court’s view that
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Grandparents’ exercised control over Heather similar to that typically exercised by parents with
their children. Parents typically need not keep anyone else reasonably informed about their
children’s activities or involve others in decisions about them. Seeking the approval of another
adult for a child’s medical care and regularly reporting to that person about the child’s activities—
as Grandparents did here—are not signs of parent-like control. They are signs of its absence. They
are signs that control actually lies with the one receiving the reports about the child, not the one
making them.
The fourth fact listed above is the only one that potentially demonstrates Grandparents’
“control.” But the trial court’s several fact-findings concerning Heather’s medical care establish
that Grandparents did not control this important element of Heather’s life with anything resembling
the control “typically exercised by parents.” The trial court found that “[Mother] gave
[Grandmother] permission to take [Heather] to the doctor,” that “[Mother] continued to make
certain decisions for [Heather], including certain medical and wellness care,” that “[Mother] gave
[Grandmother] authorization to obtain certain medical treatment for [Heather]” but that this
“authorization was only for specific doctor office visits” or emergencies, and that “[Grandparents]
did not get any type of surgery for [Heather] without [Mother] or [Father]’s consent.” These fact-
findings do not support the conclusion that Grandparents’ involvement in Heather’s medical care
resembled the typical role of parents. Quite to the contrary, Grandparents had to regularly seek
and obtain the permission of other adults before obtaining medical care for Heather. Nothing about
that arrangement resembles the exclusive control over such decisions typically exercised by
parents.
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Nor do any of the trial court’s other fact-findings support the conclusion that Grandparents’
control over Heather was similar to that typically exercised by parents with their children.
Throughout Heather’s stay at her Grandparents’ house, Father and Mother continued to exercise
their ultimate power and authority as parents to govern their child. Heather’s stay with her
Grandparents resulted from an agreement that Father, Mother, and Grandparents reached during a
family meeting. Everyone contemplated that the arrangement would be temporary. Mother
intended for Heather to return to her upon the completion of her rehabilitation. Mother made many
decisions for Heather, including many regarding medical care. Mother and Father both gave their
consent for Heather to receive emergency medical care. Healthcare providers continued contacting
Father for authorization to render aid to Heather. Grandparents regularly sought input from both
Mother and Father regarding decisions that needed to be made for Heather. Heather stayed at
Father’s house every other weekend, and he saw her more often than that. And in the evenings
Mother would go to Grandparents’ house and have dinner with Heather, bathe her, spend time with
her, and put her to bed.
There is no question that Mother and Father delegated a great deal of their parental
responsibilities to Heather’s Grandparents. But even applying the Court’s definition of “control,”
these facts cannot support the conclusion that Grandparents exercised the guidance, governance,
and direction typically exercised by parents with their children. Instead, the findings of fact
support the view that Mother and Father’s intentional, thoughtful, temporary delegation of some
of their rights to physical possession and care of Heather demonstrated the parents’ control over
Heather—not control by others.
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I would affirm the court of appeals’ decision that “standing under section 102.003(a)(9)
cannot be gained by a nonparent exercising care, control, and possession over a child in the absence
of evidence that the child’s parent . . . has abdicated his or her own . . . control . . . over the child
to the nonparent.” In re H.S., 2016 WL 4040497, at *5. Here, there was no such evidence.
Grandparents therefore lacked standing, and the trial court correctly dismissed the case.
III. The Constitutional Implications
We should affirm the court of appeals’ decision based solely on the text of section
102.003(a)(9). But there is yet another reason to favor an interpretation of the statute under which
parents who have not relinquished their responsibilities cannot be subjected to courtroom custody
fights by non-parents claiming “parent-like” status. Such an interpretation avoids the difficult
constitutional questions raised by expanding the ability of non-parents to demand that a judge,
rather than a child’s fit parents, make decisions about the child’s upbringing. See HEB Ministries,
Inc. v. Texas Higher Educ. Coordinating Bd., 235 S.W.3d 627, 658 (Tex. 2007) (“[W]e must
construe statutes to avoid constitutional problems when we can . . . .”); United States v. Albertini,
472 U.S. 675, 680 (1985) (“Statutes should be construed to avoid constitutional questions . . . .”).
The U.S. Supreme Court has on many occasions held that the U.S. Constitution “protects
the fundamental right of parents to make decisions concerning the care, custody, and control of
their children.” Troxel, 530 U.S. at 66; see also Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (“In a long line of cases, we have held that, in addition to the specific freedoms protected
by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right[]
. . . to direct the education and upbringing of one’s children . . . .”) (citations omitted); Santosky v.
Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents
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in the care, custody, and management of their child”); Parham v. J.R., 442 U.S. 584, 602 (1979)
(“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit
with broad parental authority over minor children. Our cases have consistently followed that
course . . . .”); Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have recognized on numerous
occasions that the relationship between parent and child is constitutionally protected.”); Wisconsin
v. Yoder, 406 U.S. 205, 232 (1972) (“The history and culture of Western civilization reflect a
strong tradition of parental concern for the nurture and upbringing of their children. This primary
role of the parents in the upbringing of their children is now established beyond debate as an
enduring American tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“It is plain that the
interest of a parent in the companionship, care, custody, and management of his or her children
‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which
derive merely from shifting economic arrangements.’”) (quoting Kovacs v. Cooper, 336 U.S. 77,
95 (1949) (Frankfurter, J., concurring)).
We generally follow the decisions of the U.S. Supreme Court on matters of federal
constitutional law. See In re Morgan Stanley & Co., 293 S.W.3d 182, 189 (Tex. 2009). We
previously applied Troxel on ten occasions, including to reverse an order granting visitation rights
to grandparents over the objection of the child’s mother. In re Mays-Hooper, 189 S.W.3d 777
(Tex. 2006). The existence of parents’ “fundamental liberty interest” in the care, custody, and
control of their children is well-established in the Supreme Court’s decisions. But the Supreme
Court has not described the contours of the right with clarity. In Troxel, a case that deeply divided
the Supreme Court, the plurality opinion recognized this lack of clarity but declined to ameliorate
it: “[T]he constitutionality of any standard for awarding visitation turns on the specific manner in
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which the standard is applied and . . . the constitutional protections in this area are best ‘elaborated
with care.’” Troxel, 530 U.S. at 73 (quoting id. at 101 (Kennedy, J., dissenting)).
While the Supreme Court has broadly recognized the constitutional interest of parents in
the care, custody, and control of their children, the Court has not articulated a standard of review
by which to judge the constitutionality of infringements upon parents’ rights. Given the lack of
precision in the Court’s decisions, it is difficult to state a precedent-based rule distinguishing
impermissible government interference with parental prerogatives from permissible government
action to protect child welfare. Troxel was a grandparent-access case, like the case before us. The
Supreme Court held that “special weight” must be afforded to a fit parent’s decision whether “an
intergenerational relationship would be beneficial” to the child. Id. at 70. But how much “special
weight”? Under what circumstances can the parents’ wishes be second-guessed by the
government? Existing precedent does not provide clear answers.
One potential answer was proffered by Justice Thomas in his concurrence in Troxel: “I
would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington
lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-
guessing a fit parent’s decision regarding visitation with third parties.” Id. at 80. Another potential
answer is that proffered by the court of appeals, which interpreted Troxel to flatly prohibit non-
parent standing “while a fit parent is appropriately exercising his or her own parental rights.” In
re H.S., 2016 WL 4040497, at *5.
Yet another approach is that taken by the Court today. The Court’s discussion of the
constitutional issues assumes that the Troxel plurality opinion defines the outer limits of the
Constitution’s protections for parents in custody cases. The Court brushes aside the constitutional
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concerns raised by Mother, Father, and the court of appeals because the Washington statute that
Troxel invalidated allowed more expansive non-parent standing than Texas’s statute. That is true.
I agree with the Court that the reasoning of the plurality opinion in Troxel does not compel the
conclusion that section 102.003(a)(9) as the Court interprets it is unconstitutional. The court of
appeals’ view that any judicial interference with the decisions of fit parents violates Troxel
probably stretches Troxel beyond the plurality’s reasoning. But saying a statute does not run afoul
of Troxel is not the same thing as saying the statute is constitutional. As a matter of first
impression, the rule announced by the court of appeals—that fit parents cannot be haled into court
by non-parents to defend their decisions about the upbringing of their children—is certainly one
plausible consequence of the Supreme Court’s recognition of a “fundamental right of parents to
make decisions concerning the care, custody, and control of their children.” Troxel does not tell
us exactly where the line is between constitutional and unconstitutional government interference
with the rights of fit parents. In this case and thousands of others like it in our family courts,
parents’ fundamental rights are at stake. We should not assume, as the Court does, that placing
additional burdens on those rights has no constitutional significance just because the Troxel
plurality opinion does not prohibit it.
The Court downplays the significance of this case because the issue before us is who has
standing to bring a suit affecting the parent-child relationship, not the merits of whether the suit
should succeed. But when the constitutional concern is preservation of the parents’ right to be the
ultimate decision-makers for their child, the distinction between standing and the merits
evaporates. Once a custody or visitation case gets through the courthouse doors, a judge or group
of judges—not the parents—will ultimately decide whether to uphold or reverse the parents’
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decisions about their child’s future. “Our system must confront more often the reality that
litigation can itself be so disruptive that constitutional protection may be required.” Troxel, 530
U.S. at 101 (Kennedy, J., dissenting). As a majority of the Supreme Court recognized in Troxel,
“the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-
child relationship that the constitutional right of a custodial parent to make certain basic
determinations for the child’s welfare becomes implicated.’” Troxel, 530 U.S. at 75 (quoting id.
at 101 (Kennedy, J., dissenting)). No matter the presumptions or legal standards applied at the
merits stage, giving a judge the power to review a parent’s decisions about the extent to which
non-parents should be involved in a child’s life undermines the parents’ role as the ultimate
decision-makers for their child. This is unquestionably necessary in some cases for the protection
of children whose parents would harm them. But for fit parents, true control of their children is
an illusion if the courts really get to make the final call.
The Court correctly points out that the Family Code puts a thumb on the scale for parents
at the merits stage by establishing a presumption that appointing the parents as managing
conservators is in the child’s best interest unless the appointment “would significantly impair the
child’s physical health or emotional development.” TEX. FAM. CODE § 153.131(a). Although this
presumption affords important protection to parents, it does not change the fact that once standing
is established, the final decision about the child’s future will be made by a judge or jury, not the
child’s parents. Under the U.S. Supreme Court’s decisions, such government usurpation of
parental authority raises serious constitutional questions. We could have and should have avoided
those questions by faithfully enforcing the “actual control” requirement of the text of section
102.003(a)(9).
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***
The U.S. Supreme Court’s decision to recognize the constitutional rights of parents through
the questionable mechanism of substantive due process attracts its share of second-guesses. See,
e.g., Troxel, 530 U.S. at 80 (Thomas, J., concurring) (suggesting that the Privileges and Immunities
Clause may be the more appropriate place to look); Daniel E. White, People v. Bennett: Analytic
Approaches to Recognizing A Fundamental Parental Right Under the Ninth Amendment, 1996
B.Y.U. L. REV. 183, 206–59 (1996) (suggesting the Ninth Amendment’s acknowledgment of
unenumerated “rights . . . retained by the people” protects parental rights); In re J.P., 648 P.2d
1364, 1373 (Utah 1982) (noting that “[t]he rights inherent in family relationships—husband-wife,
parent-child, and sibling—are the most obvious examples of rights retained by the people” under
the Ninth Amendment). Yet even the late Justice Scalia, perhaps the Court’s most consistent and
vociferous critic of the judicial enforcement of rights not specifically enumerated in the
Constitution, concluded that “a right of parents to direct the upbringing of their children is among
the ‘unalienable Rights’ with which the Declaration of Independence proclaims ‘all men . . . are
endowed by their Creator.’” Troxel, 530 U.S. at 91 (Scalia, J., dissenting). Justice Scalia also
viewed parents’ rights as “among the ‘othe[r] [rights] retained by the people’ which the Ninth
Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or
disparage.’” Id. (reasoning that “the Constitution’s refusal to ‘deny or disparage’ other rights is
far removed from affirming any one of them, and even further removed from authorizing judges
to identify what they might be, and to enforce the judges’ list against laws duly enacted by the
people”).
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I do not suggest that we should ever twist the words of a statute to accommodate
constitutional concerns. Far from it. The best reading of the text of section 102.003(a)(9) requires
a child’s parents to relinquish or shirk their “actual control” of the child before a non-parent may
assert the “actual control” required for standing. The Court need not proceed any further to resolve
this case. But even if the interpretation of section 102.003(a)(9) adopted by the Court today were
equally persuasive—that is, even if the statute’s text supported two equally plausible readings—
we should prefer the interpretation that avoids constitutional questions like those at stake here. We
should likewise prefer the interpretation, as between two equally plausible interpretations, that
better accommodates the unalienable rights proclaimed by the Declaration of Independence and
retained by the people under the Ninth Amendment. In this case, the interpretation that avoids
burdening parents’ rights is also the textually superior interpretation, which makes the correct
outcome doubly clear. Because the Court concludes otherwise, I respectfully dissent.
__________________________________
James D. Blacklock
Justice
OPINION DELIVERED: June 15, 2018
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