in the Interest of C.R., A.R., and I.R., Children ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00009-CV
IN THE INTEREST OF C.R., A.R., AND I.R., CHILDREN
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 6985-L1, Honorable Jack M. Graham, Presiding
April 16, 2019
CONCURRING OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
I concur in the opinion and judgment of the majority and write to explain why I
believe the “fluid” order referenced by the majority should be condemned for reasons
unrelated to the effects of an adhesion contract. First, statute imposes upon the trial court
a duty to conduct status hearings to review both the child’s status and the service plan
developed for the child. TEX. FAM. CODE ANN. § 263.201(a) (West 2014). During that
hearing the trial court must “review the service plan that the department filed . . . for
reasonableness, accuracy, and compliance with requirements of court orders.” Id.
§ 263.202(b) (West Supp. 2018). This connotes a legislative intent to have the trial court
remain involved with the obligations imposed on a parent by a service plan; a court does
not abide by that intent by simply issuing an order directing a parent to comply with
whatever hurdle the Department may opt to impose. Requiring the specific provisions
violated by a parent to be expressed within a court order assures that the trial court
remains involved and comports with legislative intent. It would seem to border on an
impermissible relinquishment of duty to simply tell a parent to abide by whatever terms
the Department may impose now or in the future and then terminate parental rights due
to noncompliance with those judicially unapproved terms.
Second, a sister court has held that “[t]o terminate parental rights under subsection
(O) after the failure to give the parents such express notice of ‘any other term or condition
that [the Department] determines to be necessary’ to the success of the service plan and
the failure to embody that term or condition in the court order is violative of the due
process required by our standard of review.” In re G.C., No. 02-17-00259-CV, 2018 Tex.
App. LEXIS 750, at *50–52 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.)
(emphasis added). I read this as illustrating that the omission of the provisions a parent
must follow from a court order strikes at the constitutionally mandated due process that a
parent must receive.
In short, a “fluid” order may liken to an adhesion contract in that one party to the
arrangement has no choice. Yet, it also transgresses legislative intent and due process.
Including within a court order the specific hurdles a parent must clear assures both due
process and independent review by a judge of their reasonableness.
Brian Quinn
Chief Justice
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