Family Law Set 2

Front 1

CHAPTER 3: PARENTAGE

Back 1

.
pg. 151

Front 2

A. Constitutional Backdrop
i. For the most part, TX parentage is the same as

Back 2

the federal laws and most of the amendments haven’t messed with too much. The code is well organized. Uniform Parentage Act – fairly recent. The TX legislature is even proactive – dealt with surrogacy, invitro-fertilization

Front 3

ii. Gomez v. Perez
1. Facts: Tx denies illegitimate children the right to seek child support from biological dad.
2. Issue: Is it constitutional to deny illegitimate child the benefits gotten by legitimate children?

Back 3

a. No, violates Equal protection clause of the 14th Amendment
3. Discussion:
a. Supremes already had struck down other discriminatory statues
b. Possible rational basis review but the ct was so incensed by it that even under rational review there is no rational basis for denying.
i. West code changed key words, can trace the changes in social attitudes toward illegitimate children. Started with bastardry to illegitimate children to children born outside of wedlock

Front 4

iii. In re Shockley
1. Facts: Unimportant (at this point)
2. Discussion: a lecture by McClure – she is the gold standard for TX cts., she focused in family law and continues to
a. Marital Presumption: child born in marriage presumed Hs child as well as Ws
b. Initially, effectively irrebuttable unless H not in England or within the four seas surrounding England or H proved sterile or impotent
i. Mostly existed so you couldn’t disinherit
c. Mansfield Exception –

Back 4

c. Mansfield Exception – only exception to marital presumption – not near wife during any portion of the pregnancy or sterile
d. Even after Davis, not challengeable by spouse (until 1983, for H, and 1987 for W)
e. Excluded children could challenge since 1973, Gomez

Front 5

B. Establishing Parentage
i. Just about the only thing that matters in proving biological connection to test is

Back 5

test is DNA testing. There are some indication that the legislature is going back on DNA a bit bc they don’t want that to be the only things considered.

1. Estoppel
2. Statute of Limitation

Front 6

iii. In Interest of JWT
1. Facts: Larry conceived JWT (99.41% likely) while living with Judy T. during divorce proceedings. Couple reconciles.
2. Issue: can the biological father be denied all opportunity to establish paternity and claim parental rights?
3. Held—
Texas test

Back 6

3. Held—NO!
4. Prior law: Only H and W could contest paternity if married; biological father could not contest if a “presumed father” existed.
5. Larry is the divorce lawyer.
6. Federal Law: Splintered and uncertain
a. Michael H and Clark v. Jeter (paternity registries)
b. Texas Test—bio father cannot arbitrarily be denied the right to prove paternity, providing he makes “early and unqualified acceptance of parental responsibilities.”

Front 7

7. What is it that gives the biological father rights to parental rights in TX even if there is a marriage in tact?

Back 7

Legal std.= do you have standing to sue
a. He needs to act like a father and do whatever is necessary to show that he has accepted the parental duties. Have to show that you tried to be the father whenever you could.
i. BUZZ PHRASE: “does the alleged biological father show early and unqualified acceptance of parental duties.”
8. Texas Test: Biological father cannot arbitrarily be denied right to prove paternity, proving he is “ early and unqualified acceptance of parental responsibilities”

Front 8

iv. Establishing Parentage Overview Slide (See slide)
1. 5 to 7 different ways to become a parent

Back 8

2. Women only – a. Birth- 160.201
3. Men only:
a. Assisted reproduction- 160.601
b. Acknowledged- 160. 301
4. Both – all require a lawsuit
a. Adjudicated – suit saying you are the parent- 160.601
i. Standing? 160.602
1. Have to have standing
ii. Statute of limitations
1. Then make sure you’re not barred by SOL
iii. Lawsuit
1. Then you become an adjudicated parent
b. Gestational Agreements – surrogates- 160.751
i. In Texas gestational agreement, it is done as a lawsuit
c. Adoption- Ch. 161
i. In Texas, this is also a judicial proceeding

Front 9

c. Presumed- 160.204
i. Most of the time this is what is at issue in suits
can u have only one presumed father?
do presumed fathers have standing?

Back 9

ii. No such thing as only one presumed father
iii. All presumed fathers have standing so anyone who is interested can have DNA done to determine

Front 10

5. Limitations to Establishing Parentage: meant to be funnels

Back 10

a. Standing
b. Statute of Limitations

Front 11

v. Presumed Father: who is a presumed father? – FC 160.204 SEE STATUTE

Back 11

1. Married when child born, or
a. Seems married
b. Or, if married 300 days or less before child born
i. Ex. divorce but impregnated night of divorce finalization-- have 300 days from that date

2. Married (or seems married) after child born + voluntarily
a. Asserts that he is dad in Bureau of Vital Statistics (BVS) record
b. Named on birth certificate
c. Promises support in record
d. Note: the father with all rights until someone else says otherwise

3. Resides with child + claims as own + 2 yrs

Front 12

vi. What does Acknowledged Parentage mean: 160.301+

Purposes
Effect
Requirements

Back 12

1. Purposes:
a. Short cut/settlement in support proceeding
b. Part of termination/adoption proceeding

2. Effect: same as adjudication

3. Requirements:
a. Signed with an oath by mother and alleged father
b. No presumed dad (or presumed dad is named, if so)
i. Void if a presumed dad unless denial by same on file
c. No genetic testing, or person acknowledging they’re the father is consistent with results
d. Filed with Bureau of Vital Statistics

Front 13

vii. Standing
1. Usually interpreted liberally to give lots of people (everyone with a legitimate interest) the right to sue
2. 102.003-- General Standing for filing SAPCR (Suit Affecting Parent Child Relationship)

Back 13

a. Parent—see Ch. 160
b. Child—through representative
c. Custodian—court or relinquish/adopt writing
d. Guardian
e. Gov’t Entity
f. Agency—Authorized or licensed
g. Alleged Dad—result of JWT
h. Actual Care—6 months; bring suit within 3 mos; inc. foster parents (12 mos)
i. Relative—within 3rd degree if parents are dead
j. Adopting - i. In the process of adoption ii. Is so designated in writing

Front 14

3. 160.602 Parentage Standing
viii. Paternity Registry: FC 160.401+

Back 14

1. Child
2. Mother – but not other “parent”
3. Man whose paternity is to be adjudicated
4.5. Agency <- Gov’t Entity – esp. child support or adoption
7. Relative – in 2d (not 3d) degree, if mom dead
8. Alleged Dad – Per JWT

Front 15

Paternity Registry – FC 160.401+
1. Background
a. Original purpose
Then,

2. Basics

Back 15

1. Background
a. Original purpose was to protect the biodads, when they had no formal rights (& better than publication)
b. Then Lehr v. Robertson (US 1983) says NY biodad who filed suit still loses rights if not registered
c. Some states (including Texas—JWT) split
2. Basics
a. Registration as possible father = right to notice
b. Confidential,; criminal penalties 160.412

Front 16

Paternity Registry

timing
notice
not req to register if:

Back 16

3. Before or within 30 days after birth—160.402(a)
4. Get notice in termination and adoption proceedings—160.403
a. If address no good, due diligence required and ad litem appointed –161.002
5. Not required to register if:
a. Parent/child relationship is already established
b. Alleged dad is already litigating before terminated (anti-Lehr)
6. For kids over 1, still must certify biodad’s identity and/or location unknowon—161.002

Front 17

Establishing parentage: procedure
1. Rebutting the paternity presumption:

Back 17

a. Usual—court judgment
b. Occasional—paternity denial in conjunction with paternity acknowledgement—FC 160.303
i. Can’t have previous acknowledgement or adjudication
c. Exception—presumption can be unrebuttable if “paternity by estoppel”

Front 18

Establishing parentage: procedure

Standing
Nec parties:
Can it be joined w/ other proceedings?

Back 18

Standing—child, mother, man at issue, intended parent (or representative for all), state (usually support or adoption), agency [160.604]
Necessary parties: mother, man at issue [160.604]
Can join w/ other proceedings, like adoption, termination, Conservatorship, support, divorce [160.610]

Front 19

x. Genetic Testing Rule:

Back 19

1. Presumed, acknowledged or adjudicated dad disproved only by testing that eliminates or IDs another – 160.631
2. 99% valid testing usually wins – 160.505; 160.631(c)
3. Binds ct., no jury [.631-.632]
a. Can use relatives and test the dead [160.508-509]
4. “Rebuttable,” but only by another test of equal validity excluding paternity or IDing another – 160.505(b)
a. This is not likely. Only way to get that is to get more tests that conflict
b. Conflict = more tests – 160.505(c)
c. Identical brother = traditional methods 160.510

Front 20

C. The Effect of Adjudication
i. Dreyer v. Greene
1. Facts: W gets default divorce from H; decree says twins “of the marriage.” No ad litem. W later sues Green as father.
a. Wife doesn’t sue G until after H doesn’t pay child support
b. Perfect example of why a child needs separate representation bc her interests differed from that of the child
c. Child support in TX seen as a substitution for the lack of alimony
2. Issue: Suit barred by prior judgment?
3. Does form of language adjudicate?
4. Do W and twins’ interests differ?
5. What about constitutional issues?

Back 20

2. Issue: Suit barred by prior judgment?
a. Yes.
3. Does form of language adjudicate? Yes, “of the marriage”
4. Do W and twins’ interests differ?
Yes - child support is for the support of the CHILDREN
b. However, there is some overlap between how money would be used to support children because some of it would go to the mom—so there’s a conflict of interest and she should be barred from representing the children.
5. What about constitutional issues? None because they didn’t raise any constitutional issues
6. Why so little discussion of Dreyer? Typical, cts. have dealt with Dryer and Sherry by ignoring it because if in either case the constitutional issue had been raised the out come would have been different

Front 21

ii. Adjudication of Paternity – Overview
1. Who is bound – FC 160.3307(a)

2. What is an adjudication – FC 160.307(c)

3. When is adjudicating not binding?

Back 21

ii. Adjudication of Paternity – Overview
1. Who is bound – FC 160.3307(a)
a. All signers of acknowledgment or denial
b. All parties to court adjudication
2. What is an adjudication – FC 160.307(c)
a. Judgment IDs says child is “of the marriage” etc
b. H ordered to pay child support, unless paternity denial is included
3. When is adjudicating not binding?
a. For party, personal jurisdiction problem – 159.201
b. For child, never binding unless acknowledgment + genetic, judgment + genetic, party or ad litem

Front 22

iii. Limitation of Actions: Parentage

Back 22

-Acknowledged or Adjudicated? 4 years [160.609b]
But rescind acknowledgment? 60 day, filing [160.609a.307]
Fraud, duress, mistake? Filing [160.609(a).308]
But party to judgment? Appeal, etc. [160.637e]
-Presumed dad? 4th bday [160.607a]
But no living together or sex? None [160.607b]
But misrep to presumed dad? None [160.607b]
-No 160.201(b) dad? None [160.606]
But after child turns 18? Child sole Plaintiff [160.602b]

Front 23

iv. Tx Dept of Prot. & Reg. Servs.v. Sherry
1. Facts: Threesome. Bio-dad stays out until mom and adjudicated dad die. Sherry agreed with Cannon to allow him to declare himself the father of the child. When other 2 die, Sherry comes out to try and take the child. Sherry claims he wasn’t a party, didn’t have notice, etc.
2. Held:
3. Issue: Charles Sherry’s claim of no notice?
a. Ct decides

Back 23

2. Held: Barred by judgment.
3. Issue: Charles Sherry’s claim of no notice?
a. Ct decides that he is not an alleged father – only by State or mother – so didn’t have to get notice that the other Charlie was claiming to be a father

Front 24

iv. Tx Dept of Prot. & Reg. Servs.v. Sherry
1. Facts: Threesome. Bio-dad stays out until mom and adjudicated dad die. Sherry agreed with Cannon to allow him to declare himself the father of the child. When other 2 die, Sherry comes out to try and take the child. Sherry claims he wasn’t a party, didn’t have notice, etc.

4. Charlie’s constitutional complaints?
5. Critique of Sherry reasoning:

Back 24

4. Charlie’s constitutional complaints? Weren’t raised but would have won based on the requirements on notice and right to be heard.
5. Critique of Sherry reasoning:
a. Violates basic res judicata law – if the family code wasn’t involved wouldn’t get this outcome under common law bc not legal privy
b. Ignores child’s rights – family law proceedings are different bc biased in favor of the child
c. Ignores public policy – policy generally prefers that someone other than the state of TX pay for the kid

Front 25

iv. Tx Dept of Prot. & Reg. Servs.v. Sherry
1. Facts: Threesome. Bio-dad stays out until mom and adjudicated dad die. Sherry agreed with Cannon to allow him to declare himself the father of the child. When other 2 die, Sherry comes out to try and take the child. Sherry claims he wasn’t a party, didn’t have notice, etc.

Current law?

Back 25

6. Current law?
a. Barred by the prior proceeding? Depends on whether there is a presumed father…if there is none, then there’s no SOL period at all. But not now b/c the presumed father is dead. If you have no parent, then can someone be presumed an adjudicated father?
i. Death is a pretty effective termination proceeding on its own--Pauly
ii. Can you be a presumed father once dead? Some wiggle room – standing to bring paternity suit is broad and limited by SOL and res judicata once there is adjudication.
b. Is there a presumed adjudicated dad?

Front 26

v. BML v. Cooper
1. Facts: Blood test at AF base in Turkey; Cooper excluded. Mother gets letter from the Dr. who took the blood saw the same guy with a different name tag on a few days later.
2. Issue: Child precluded from later suit?
3. Held:

Back 26

3. Held: No, BP on Cooper to establish child’s interests fully protected
4. Result under current law? Still correct

5. Bill of review requirements? BAR on TX procedure
a. Elements for bill of review?
i. Prevented from asserting meritorious defense
ii. Because of fraud, accident, wrongful act or official mistake
1. Only extrinsic fraud counts – but so many definitions
2. Fraud must prevent the case from being properly adjudicated (so must be pre-lawsuit fraud).
iii. Unmixed with own negligence
b. 4 year SOL

Front 27

v. Ince v. Ince p. 169
1. Facts: 13 yrs post-divorce, ex-H claims not father. Brings bill of review, claiming ex-Ws fraud. DNA testing under false pretenses.
2. Issue: Bill of Review not permitted bc no extrinsic fraud.
3. Is a bill of review still available post-2001 UPA?

Back 27

Yes, per 160.637(e)
a. A party to an adjudication of paternity may challenge the adjudication only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review.

Front 28

vi. In re Shockley
1. Fact: One woman, 2 Bfs. Woman lies. Gets DNA tests only when ex-bf might get custody.
2. Held: Girl equitably estopped
3. What are the elements of equitable estoppel?

Back 28

a. False misrepresentation or concealment of material facts
b. Made with actual or constructive knowledge of the facts
c. To someone without knowledge or means of knowledge
d. With intention it be acted upon
e. Actual, prejudicial reliance

Front 29

4. Statutory Estoppel: Parentage – 160.608

Back 29

a. No DNA testing (and presumed = adjudged) if:
i. Bad conduct or mother or presumed father estops, and
ii. Inequitable to disprove father-child relationship with presumed father
b. Includes paternity acknowledgment or denial
c. Ct must consider child’s best interests
d. Child must have representation
e. Requires “clear and convincing” evidence

Front 30

vi. In re Shockley
1. Fact: One woman, 2 Bfs. Woman lies. Gets DNA tests only when ex-bf might get custody.
2. Held: Girl equitably estopped

5. Could Kevin use estoppel statute to block Damin from establishing his paternity?

6. Could Kevin use equitable estoppel to block Damin from establishing his paternity?

Back 30

5. Could Kevin use estoppel statute to block Damin from establishing his paternity?
a. No, not presumed father
6. Could Kevin use equitable estoppel to block Damin from establishing his paternity?
a. Yes, assuming elements met
b. But, stat. construction (expressio)
c. And constitutional problems

Front 31

vii. Hausman v. Hausman
1. Facts: TC holds J not the father bc of Hs gene test, but that W estopped from contesting parentage.
2. Issue: Does estoppel statute replace equitable estoppel? i.e. does estoppel only work to deny genetic testing?

Back 31

a. No; no indication statute so intended

Front 32

D. Assisted Reproduction (review for test and Bar bc major league law issue)
i. 160.701+

Back 32

1. Only applies when mother gives birth
a. Other statutes for surrogacy/gestational agreement
2. Donor not parent unless husband
a. Or written agreement with consent
3. If married, both must consent
4. Consent within 4yrs + no husband consent
a. Unless 160.705 (b) limitations period trumps
5. Effect of marital dissolution? split
6. Everything in writing

Front 33

ii. In re Sullivan
1. Facts: Sperm donor with co-parenting agreement. After dispute, donor Russell sues to establish parentage.
2. Issue: Is Sullivan a “man whose paternity is to be established” for standing purposes?

Back 33

a. Can argue either way – agreement trumps or standing is liberally applied
3. Held: Yes, determine donor question later.

Front 34

ii. In re Sullivan
1. Facts: Sperm donor with co-parenting agreement. After dispute, donor Russell sues to establish parentage.

iii. Post-Sullivan Development
1. In re HCS (San Antonio 2006) creates conflict
2. 2007 Legislature passes 160.7031

Back 34

a. (a) if an unmarried man, with the intent to be the father of a resulting child, provides sperm to a licensed physician and contests to the use of that sperm for assisted reproduction by an unmarried woman, he is the father of a resulting child
b. (b) consent…must be in a record signed by the man and the unmarried woman and kept by a licensed physician.
c. Change to “donor” definition – 160.102(6)(c)

Front 35

iv. Roman v. Roman
1. Facts: Pre-embryos in divorce; ex-H insisting on destruction per contract
2. Issue: Does k govern disposition?

Back 35

Yes, embryos are marital property so can be governed by k.
3. Comments:
a. Why CP? Cuz agreement seems to say so
b. FC 160.706 covers post divorce parents
i. Not going to assume responsibility not going to be responsible parent no matter what the DNA test shows.
c. Roman holding contra criminal law? Killing unborn child is murder v. killing marital property not
4. Termination is what the bar tends to focus on when they do ask questions

Front 36

v. Gestational Agreements: Mechanics

Back 36

1. Court-supervised lawsuit/contract
2. File suit 160.755
3. 1st ct hearing to validate agreement 160.756
a. Prior determination of parentage in writing 160.756(c)
b. Completely discretionary – judge not required to decide 160.705(d)
4. 2nd hearing to finalize 160.760
a. File notice of birth, within 300 days
b. If claim that kid comes from another source, gene testing 160.760(c)

Front 37

vi. Gestational Agreements: Requirements
(if you do it this way it’s a safe harbor of sorts but if don’t stick to the rules don’t get the benefit of the pre-termination rights)

1. Intended Parents

Back 37

1. Intended Parents
a. Married – although in there won’t likely be carried out in a constitutional way – too much protection in the right to bear children
b. Both consent
c. Mom can’t bear children without unreasonable risk
i. Includes mental
d. Home study as if adopting
i. State comes in to make sure that you are fit
ii. Unless waived
1. Judge does it

Front 38

vi. Gestational Agreements: Requirements
(if you do it this way it’s a safe harbor of sorts but if don’t stick to the rules don’t get the benefit of the pre-termination rights)

2. Gestational Mother

Back 38

a. Cannot use own egg
b. 1 successful pregnancy
c. Spouse’s consent (just to make sure there aren’t any problems)
i. If married, later doesn’t count
ii. Spouse party to proceeding
iii. Constitutionality of married v. unmarried differences? Probably ok

Front 39

vi. Gestational Agreements: Requirements
(if you do it this way it’s a safe harbor of sorts but if don’t stick to the rules don’t get the benefit of the pre-termination rights)

3. General Requirements

Back 39

a. Informed consent
b. 14 day cooling off period
c. Can’t contract around health
i. Where gestational mother is forbidden to take measures to protect her own health – ex. medically necessary abortion
d. Allocate costs
e. No sex
4. Question: If it falls outside of this does it favor or disfavor the agreements? Probably doesn’t exclude agreements but

Front 40

IV. Chapter Review: Sample Texas Bar Exam Questions p. 193

D. Exam Question in class: Jerry, who is a successful lawyer

Back 40

.

Front 41

V. CHAPTER 4: Termination of Parental Rights

Back 41

.

Front 42

A. Involuntary Termination Overview

Back 42

i. Statutory Ground + Best Interest of Child (people forget this part!)
1. Be familiar with 001 section. Look at the particulars
ii. Each proved by clear and convincing evidence
iii. Statutory ground and clear and convincing evidence < ---US CONSTITION
1. Not sure about best interest yet

Front 43

B. Statutory Grounds for Termination

i. Abandonment – formalizing something that has already taken place (parent decided can’t take care) and leaves adoption open as a possibility

Back 43

i. Abandonment – formalizing something that has already taken place (parent decided can’t take care) and leaves adoption open as a possibility
1. (A) Leave intending not to return
2. (B) Leave without providing for support, not seen for 3 months
3. (C) Leave without providing support, not seen for 6 month
4. (G) Abandon without ID
5. (H) Abandon while pregnant
6. (K) Written relinquishment
7. (N) Const. abandonment
8. (S) With EMS provider (safe drop)

Front 44

B. Statutory Grounds for Termination

ii. Endangerment

Back 44

ii. Endangerment
1. (D) Knowingly place in dangerous environment
2. (E) Knowing place with bad people
a. D and E usually plead together
3. (L) Convicted (or close) of crime against kids
4. (M) Prior (D) or (E) termination
5. (P) Drug use + other behavior
6. (R) Give birth to a baby addicted to narcotics
7. (T) Spouse murdered
a. Unless spouse needs killing bc it’s in the best interest of the child

Front 45

B. Statutory Grounds for Termination

iii. Nonsupport

Back 45

iii. Nonsupport
1. (F) Nonsupport in accordance with ability for 1 yr. ending within 6 months of suit
2. (Q) Knowingly engage in crim. Conduct resulting in prison + inability to support for 2 yr period
a. Before terminating rights bc they weren’t showing up bc in prison. Statute was a straightforward way to go at. Meant for the children to be put up for adoption earlier in cases where parent will be
b. This is probably infirm constitutional footing
i. Prospective statute – future looking
ii. Not required to provide support directly but can indirectly – people with money don’t get their parental rights terminated and those without do. No matter how bad the parent is if they are rich won’t have parental rights terminated

Front 46

B. Statutory Grounds for Termination

iv. Not following Orders

Back 46

iv. Not following Orders
1. Set out requirements for the parents to meet in writing
a. If don’t follow the plan it becomes a reason to terminate rights. Sometimes use this even when they have other grounds to terminate bc it’s easier and it is an independent order
b. Slide: (i) contumnaciously (punishable by contempt) refuse to follow state orders
c. (j) Violate truancy laws
d. (o) Don’t follow ct ordered program to regain custody

Front 47

B. Statutory Grounds for Termination

v. Miscellaneous

Back 47

v. Miscellaneous
1. .003 long-term mental illness
2. .006 live birth after attempted abortion
3. ,007 birth as result of criminal act

Front 48

vi. Holley v. Adams
1. Facts: divorced mother parental rights terminated for failure to support and conduct emotionally endangering the child
2. Issue: Sustainable on appeal?

Back 48

No, best interest not shown

Front 49

3. Case: Ct took a stab at factors of what is in the best interest of the child but can never be full list bc depends on the child
a. Holley Factors pg. 198

4. Parent would defend by saying that even tho I did X thing, it still is in best interest of child to keep them with me

Back 49

a. Holley Factors pg. 198
i. Child’s desires
ii. Child’s physical/emotional needs, now & future
iii. Physical/emotional danger, now & future
iv. Parenting abilities of prospective
v. Programs available to assist
vi. Plans for the child
vii. Stability of home or proposed
viii. Acts or omissions of parent
ix. Any excuse for the acts or omissions
x. Non-exclusive list, per Holley

Front 50

B. Statutory Grounds for Termination

vii. Burden of Proof/Standard of Review – On Exam
Trial Level
Appeal

Back 50

1. Trial level
a. Burden: Clear & convincing evidence
b. Def: The measure or degree of proof that will produce in the mind of the trier of fact a firm conviction or belief as to the truth of the allegations sought to be established. FC 101.007

2. Appeal
a. Stnd/No evid: Reviewing ct looks at all the evid in the light most favorable to the finding to determine whether a reasonable finder of fact could have formed such a firm conviction or belief

Front 51

viii. Holick v. Smith
1. Facts: Mom leaves kids with Smiths, goes to Dallas to waitress and live with boyfriend. Smith wants to adopt
2. Issue: Can rights be terminated on (c) – not providing support for 6 months, when she relied on Smiths to support? Or would that just be providing support as in (b)?

Back 51

a. There isn’t a difference between direct and indirect support
b. Bc breaking up the parent child relationship and quasi-criminal in nature – construe criminal statutes narrowly so people know when they are breaking the law. If too close, lean toward not terminating.

Front 52

ix. Castaneda v. Tex. Dept. of Prot. And Reg. Serv.
1. Facts: Child (Jude) beat up. Dad (Jesse) probably did it. Mom (Jessie) doesn’t want to leave dad. Argues 160.001 (1)(D)&(E).
2. Held:

Back 52

2. Held: termination of both affirmed
a. Similarities between (D) and (E)?
i. Both require proof of endangerment

Front 53

ix. Castaneda v. Tex. Dept. of Prot. And Reg. Serv.
1. Facts: Child (Jude) beat up. Dad (Jesse) probably did it. Mom (Jessie) doesn’t want to leave dad. Argues 160.001 (1)(D)&(E).
2. Held: termination of both affirmed

b. Distinction between (D) and (E) endangerment?

Back 53

b. Distinction between (D) and (E) endangerment?
i. Source: (D) = environment; (E) =parent conduct
ii. For (D) you don’t have to prove who is doing the beating. Lower std, “knowingly” placed or kept in bad surroundings
iii. For (E) – “engage in bad conduct, or “knowingly place with bad people”; conduct does not have to be directed toward child
1. Means don’t have to knowingly endanger – ignorance resulting in danger meets requirements
2. No actual harm has to come to child just endangered

Front 54

ix. Castaneda v. Tex. Dept. of Prot. And Reg. Serv.
1. Facts: Child (Jude) beat up. Dad (Jesse) probably did it. Mom (Jessie) doesn’t want to leave dad. Argues 160.001 (1)(D)&(E).
2. Held: termination of both affirmed

c. Judicial definition of “endangerment”? p.206

Back 54

i. “To expose to loss or injury, or to jeopardize a child’s emotional or physical health”
iii. “More than a threat of metaphysical injury”
iv. But “not necessary that the conduct be direct at the child, or that the child actually suffer injury.”

Front 55

x. Interest of B.R.
1. Facts: Dad killed the mom. Drug addict, suicidal, physically abusive, took kid without permission, etc.
2. Defensive position: didn’t endanger the kid bc too young to know anything
3. Was this really “strict construction” of the statute?

4. Must prove conduct has an effect on child?

5. Other possible grounds for termination?

Back 55

3. Was this really “strict construction” of the statute?
a. Not really didn’t go

4. Must prove conduct has an effect on child?
a. Emotional abuse provable without physical evidence

5. Other possible grounds for termination? Delayed effect

Front 56

xi. Ybarra v. Tex. Dept. of Human Services
1. Facts: poor mom whose 5 kids taken away
2. Held?

Back 56

2. Termination cases tend to be long to make a simple point bc the right being taken away are extreme and quasi-criminal
3. Issue: Affirm? No
a. Oldest child having to care for all the children but does not want to be taken from mother. Plus the mom has been meeting all requirements and there are other things that could be done to help her.

Front 57

xii. Interest of A.D.E.
1. Facts: Dad didn’t support child and he admitted that there was some money he could have been provided. Did odd jobs and employed at same places off and on.
2. Holding:

Back 57

2. Holding: (F) termination sustained.
a. Proof of 12 consecutive months of nonsupport, ending w/in 6 months of filing?
b. Seems unfair and a product of effective cross-examination. Dad being manipulated by asking

Front 58

xiii. Ybarra v. A.D.E.

Back 58

1. Ybarra – “When reviewing the decision of the ct below in a case requiring proof by clear and convincing evidence, we review the entire record to determine whether the fact finder could reasonably conclude that the fact was highly probable.”
2. A.D.E – same ct in short period of time changed it’s mind on the appropriate level of scrutiny required – sufficiency standard

Front 59

C. Termination Procedure
i. “Clearing and Convincing” Appellate Review

Back 59

i. “Clearing and Convincing” Appellate Review
1. Preponderance of the Evidence – civil std.
a. Just over 50%
2. Clear and Convincing – serious constitutional right implicated
a. Rare std.
b. Paulsen – 70ish%
3. Beyond a reasonable doubt – criminal std.
a. About 90% - American Jury Project

Front 60

C. Termination Procedure

ii. Clear and Convincing Review
TC
App Ct

Back 60

1. T.Ct.: “ Measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established."
2. App. Ct.:
a. “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations”
b. Shouldn’t there be a heightened level of review if you have a heightened level at trial? No there is no right as appeal
c. Legal sufficiency - facts are established so strongly that we will fudge fact and let app judge go around the jury; is there more than a scintilla of evidence – very well convinced there is no need to review the facts again
i. Reverse and render
1. Affirm or remand
d. Factual sufficiency – there is some evidence that supports the jury’s finding however something is off
i. Reverse and remand
e. SEE Interest of J.R. pg. 5 of Supplement

Front 61

v. In re J.P.B.
1. Facts: Parental rights terminated. Child had several broken bones indicating abuse and terminated both father and mother’s rights. They appeal. Affirmed
2. Issue: legally sufficient evidence?

Back 61

yes
a. Father has the best argument – worried about the kid being sick and took the kid to dr. and dr. told him not to worry muscle inflammation and not abuse – ct argues he should have known that underlying cause was abuse

vi. Note after J.P.B – don’t try these cases alone bc lots of rules etc.
1. Time requirements, etc.
2. Indigent – right to counsel
a. All the extra safeguards don’t exist in private suit

Front 62

vii. Interest of T.C. and G.C.
1. Facts: Irrelevant; TC determines appeal frivolous – don’t get free record
2. Facts: Irrelevant, TC determines appeal frivolous.
3. Issue: Is statute limiting free record in pre-determined frivolous appeals infirm cuz (a) discriminatory to indigents and (b) unevenly applied (state, but not private parties)?
4. Held:

Back 62

4. Held: No; can get full record for frivolousness determination.
5. Complaint of non-unanimous jury frivolous.

Front 63

viii. Unanimous Verdict: Constitutional?
1. Arguments Con

Back 63

a. US Constitutional requires unanimity in criminal cases
b. Social science evidence suggests major differences in deliberation in bodies with unanimity requirements
c. CPRC 41.003; Exemplary Das (2005)
i. Claimant must prove elements by “clear and convincing evidence”
ii. “Exemplary das may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary das.”
d. To get punitive damages
i. Clear and Convincing DAS
ii. Only if unanimous in regard to finding liability for and the amount of punitive DAS
1. Not frivolous

Front 64

viii. Unanimous Verdict: Constitutional?
2. Arguments Pro

Back 64

a. EB Specifically rejects the “six jurors this/six jurors that” argument
b. Texas Patter Jury Changes: Family says: “Unless and until the ct retracts its emphatic mandate to submit jury questions broadly, the Committee strongly urges bench and bar to wholeheartedly accept the fact that broad-form submission is hear to stay.”

Front 65

viii. Unanimous Verdict: Constitutional?
3. Broad
b. Pro: Fed’l Con. Law

Back 65

i. TPJC says: “Even if the subject is a criminal prosecution,…the jury is directed to answer broad-form questions,” citing Schad v. Arizona (US 1991) for proposition that “six jurors this/six jurors that” argument rejected in capital murder case.”

Front 66

viii. Unanimous Verdict: Constitutional?
3. Broad
c. Con: Fed’l Con. Law

Back 66

i. Schad (1991) Scalia (concurring): “As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. ….When a woman’s charred body has been found in a burned house, and there is ample evidence that the D set out to kill her, it would be absurd to set him free cuz six juror believe he strangled her (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set fire to kill her. While that seems perfectly obvious, it is also true as the plurality points out, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or a failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.”

Front 67

viii. Unanimous Verdict: Constitutional?
3. Broad
d. Con: State Law

Back 67

i. Fancis (Tex. Crim. App. 2000) Charge permitted conviction for touching “the breast or genitals.”
ii. TCA holds: “The breast-touching and the genital-touching were two different offenses, and therefore, should not have been charged in the disjunctive. …[I]t is possible that six members of the jury convicted appellant on the breast-touching offenses…and six members convicted…on the genital touching offense… Appellant was entitled to a unanimous jury verdict.”

Front 68

viii. Unanimous Verdict: Constitutional?
3. Broad
d. Con: State Law

Back 68

i. Ngo (Tex. Crim. App. 2005) Charge permitted jury to convict for theft, receipt or use of victim’s credit card.
ii. TCA holds: “When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it can’t return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.”

Front 69

ix. In re L.C.
1. Facts: Not relevant, except that jury instructed on three grounds, with no instruction clearly stating 10 of 12 had to agree on any one.
2. Issue: Is broad-form submission in termination cases constitutional?
3. Held:

Back 69

3. Held: Yes, following Texas SC precedent.
4. Instead of asking about every element ask about the whole

Front 70

D. Voluntary Termination

Back 70

i. Affidavit where someone agrees to termination of their rights
ii. Interest of L.M.I.
1. Majority of ct. –
Presume in favor of the affidavit and prove by preponderance of the evidence that they didn’t voluntarily terminate their rights

Front 71

iii. Granular and broad form jury questions?
1. Broad form submissions –

Back 71

1. Broad form submissions – favors the state, a lot closer to broad form in criminal process (6 choked her v. 6 burned her – all think he murdered)
a. General personal injury – juries tend to favor Ps
b. There’s only one question – so yes or no
c. Clear and Convincing evidence is constitutional requirement then a form of instruction that lets a minority of jurors determine – objecting to broad form submission – 10-2 probably not acceptable to parental rights termination.

Front 72

iii. Granular and broad form jury questions?
2. Granular –

Back 72

2. Granular – confuses the jury into giving real answers to specific questions, favors Ds, gives a lot of questions in order to come to a final conclusion and can sometimes confuse the jury > leading to an opposite verdict.
a. Can’t say that it is good bc it makes it easier to double check when the jury is following the law