Full Opinion (html_with_citations)

Opinion issued December 15, 2022




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-21-00101-CV
                            ———————————
                  CHRISTINE LENORE STARY, Appellant
                                        V.
                     BRADY NEAL ETHRIDGE, Appellee



                    On Appeal from the 280th District Court
                             Harris County, Texas
                       Trial Court Case No. 2020-16834



                            DISSENTING OPINION

      The trial court below entered a lifetime family-violence protective order

prohibiting appellant Christine Lenore Stary from seeing or communicating with her

three minor children indefinitely. The indefinite duration of this order prohibiting
contact between a parent and her children effectively terminated Stary’s parental

rights and deprived her of the fundamental liberty interests in the care, custody, and

control of her children. United States Supreme Court precedent holds that before

such a deprivation may occur, due process requires the trial court to apply a

heightened standard of proof: clear and convincing evidence. The trial court’s

implementation of a lifetime protective order against a parent based on facts found

by a mere preponderance of the evidence violated Stary’s right to due process.

Because the majority affirms on this issue, I respectfully dissent.

      Due process “provides heightened protection against government interference

with certain fundamental rights and liberty interests.” In re N.G.,
577 S.W.3d 230, 235
 (Tex. 2019) (per curiam) (quoting Troxel v. Granville,
530 U.S. 57, 65
 (2000));

see U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 19. A parent’s interest in the

care, custody, and control of her children “is perhaps the oldest of the fundamental

liberty interests” recognized by the United States Supreme Court. Troxel,
530 U.S. at 65
; see Stanley v. Illinois,
405 U.S. 645, 651
 (1972) (emphasizing “the importance

of the family” and recognizing that rights to conceive and to raise one’s children are

“essential,” “basic civil rights of man,” and “(r)ights far more precious . . . than

property rights”) (citations omitted).

      It is well settled that, in a proceeding to terminate parental rights, due process

requires courts to apply the heightened proof standard of clear and convincing

                                          2
evidence. Santosky v. Kramer,
455 U.S. 745
, 747–48 (1982) (holding that clear and

convincing evidence is required to “sever completely and irrevocably the rights of

parents in their natural child”); In re N.G.,
577 S.W.3d at 235
; see also TEX. FAM.

CODE § 161.001(b) (requiring proof by clear and convincing evidence to terminate

parent-child relationship). Clear and convincing evidence is “the measure or degree

of proof that 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.” TEX. FAM. CODE

§ 101.007; In re C.H.,
89 S.W.3d 17, 25
 (Tex. 2002).

      A standard of proof serves to “instruct the factfinder concerning the degree of

confidence our society thinks he should have in the correctness of factual

conclusions for a particular type of adjudication.” Santosky, 455 U.S. at 754–55

(quoting Addington v. Texas,
441 U.S. 418, 423
 (1979)). The preponderance of the

evidence standard, which the trial court applied here, “indicates both society’s

‘minimal concern with the outcome,’ and a conclusion that the litigants should ‘share

the risk of error in roughly equal fashion.’”
Id.
 at 755 (quoting Addington,
441 U.S. at 423
).

      The heightened standard of clear and convincing evidence, by contrast, is

generally applied “when the individual interests at stake in a state proceeding are

both ‘particularly important’ and ‘more substantial than mere loss of money.’”
Id.
 at

756 (quoting Addington,
441 U.S. at 424
). This heightened standard of proof

                                          3
provides a level of certainty “necessary to preserve fundamental fairness” in

proceedings that threaten “a significant deprivation of liberty” or “stigma,” such as

loss of parental rights.
Id.
 (quoting Addington,
441 U.S. at 425, 426
). “In parental

rights termination proceedings, the private interest affected is commanding; the risk

of error from using a preponderance standard is substantial; and the countervailing

governmental interest favoring that standard is comparatively slight.” Id. at 758

(balancing due process factors). Thus, due process requires clear and convincing

evidence before a parent may be deprived of her fundamental liberty interest in the

care, custody, and control of her children.

      The Family Code authorizes a court to enter a protective order if it finds that

family violence has occurred and is likely to occur in the future. TEX. FAM. CODE

§§ 81.001, 85.001(b). Generally, a family-violence protective order is effective for

up to two years. Id. § 85.025(a). However, a court may enter a protective order for a

period exceeding two years if the court finds, among other things, that the person

who is the subject of the protective order “committed an act constituting a felony

offense involving family violence against the applicant or a member of the

applicant’s family or household, regardless of whether the person has been charged

with or convicted of the offense.” Id. § 85.025(a-1)(1). Protective orders are civil in

nature, and therefore the preponderance of the evidence standard of proof typically




                                          4
applies. See Roper v. Jolliffe,
493 S.W.3d 624, 638
 (Tex. App.—Dallas 2015, pet.

denied).

      The protective order in this case included a finding that Stary’s conduct

“against at least one of the minor children for whom the suit was filed would be a

felony if charged[.]” See TEX. FAM. CODE § 85.025(a-1)(1). Based on this finding,

the order stated that it was effective for a “permanent duration” subject to either

appellee Brady Ethridge or the children filing a motion to vacate or modify the order.

Cf. id. § 85.025(b) (authorizing person who is subject of protective order to file

motion requesting that court review and determine whether continuing need exists

for protective order). Among other things, the protective order prohibited Stary from

directly communicating with her children; going near their residence, schools, or any

place they are known to be; and “engaging in conduct directed specifically toward”

the children. See id. § 85.022(b) (providing list of actions in which court may

prohibit subject of protective order from engaging); Rodriguez v. Doe,
614 S.W.3d 380
, 385–86 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (concluding that

section 85.022(b) is not exhaustive list). Stary argues that the order “essentially

terminated [her] parental rights” without affording her due process. I agree.

      Although the protective order does not expressly state expressly that it

terminated Stary’s parental rights, the order indefinitely prohibits her from seeing or

communicating with her children or, even more broadly, “engaging in conduct

                                          5
directed specifically toward” the children. See In re D.T.,
625 S.W.3d 62
, 69 (Tex.

2021) (recognizing “fundamental nature of the parental right to make child-rearing

decisions”). The indefinite duration of the order prohibits all meaningful contact

between Stary and her children—forever. Indeed, the trial court’s order is even more

extreme than a termination of parental rights, as termination orders do not bar a

parent from contacting or directing activity toward the child once the child reaches

the age of majority.

      The breadth of the order deprived Stary of her fundamental liberty interest in

the care, custody, and control of her children even though the deprivation was

accomplished in a protective order proceeding rather than a parental termination

proceeding. See Troxel, 530 U.S. at 62–66; Stanley,
405 U.S. at 651
; In re N.G.,
577 S.W.3d at 235
. At stake in the proceeding was Stary’s interests in seeing,

communicating with, and having a relationship with her children. These interests are

particularly important and more substantial than the mere loss of money; Stary faced

“a significant deprivation of liberty.” See Santosky,
455 U.S. at 756
; Addington,
441 U.S. at 424, 425
. Fundamental fairness required the trial court to apply the

heightened standard of proof by clear and convincing evidence before it could

deprive Stary of her fundamental liberty interest. See Santosky,
455 U.S. at 756
; In

re N.G.,
577 S.W.3d at 235
; In re G.M.,
596 S.W.2d 846
, 846–47 (Tex. 1980)




                                         6
(“[A]ctions which break the ties between a parent and a child are unjustifiable

without the most solid and substantial reasons.”).

      To be sure, there are some differences between a parental termination

proceeding and a family-violence protective order proceeding. For example, a

parental termination proceeding “is complete, final, and irrevocable” and “divests

forever the parent and child of all legal rights, privileges, duties, and powers between

each other except for the child’s right to inherit.” In re G.M.,
596 S.W.2d at 846
; see

TEX. FAM. CODE § 161.206(b). Under limited circumstances, however, a former

parent whose parental rights have been terminated may file a petition to reinstate

those rights. TEX. FAM. CODE § 161.302(a)(4), (b) (stating that former parent whose

rights were involuntarily terminated may file petition to reinstate rights only if

termination of parental rights resulted from suit filed by state, at least two years have

passed since rights were terminated and appeal is not pending, child has not been

adopted and is not subject of adoption placement agreement, and petitioner has

provided statutory notice). Similarly, the subject of a protective order can file a

motion “requesting that the court review the protective order and determine whether

there is a continuing need for the order.” Id. § 85.025(b). If the protective order is

effective for more than two years, the parent is limited to two motions for review,

and if both motions are denied, the protective order remains in effect until its stated

expiration date—potentially forever, as in this case. Id. § 85.025(b-1), (b-2).

                                           7
      These minor distinctions do not merit a different standard of proof in a case

like this, where the protective order indefinitely prohibits any meaningful contact

between Stary and her children. Although Stary may request that the issuing court

review whether a continuing need exists for the protective order, a person whose

parental rights have been terminated may also seek reinstatement of those rights in

some circumstances. See id. §§ 85.025(b), 161.302(a)(4), (b). There is no guarantee

that the protective order will be vacated or that the trial court will apply a clear and

convincing evidence standard of proof to the determination of whether a continuing

need exists for the order. In short, there is no significant difference between the

permanency and irrevocability of the lifetime protective order entered in this case

and a parental termination order. Stary was denied the constitutional safeguard of a

heightened standard of proof. A protective order should not be used to end run

parental termination proceedings and skirt the due process guarantees afforded to

those proceedings.

      The majority has not identified any case in which an appellate court has

upheld a lifetime protective order against a custodial parent based on facts found by

a mere preponderance of the evidence. Two of our sister courts of appeals have

rejected parents’ contentions that due process requires a heightened burden of proof

in family-violence protective order proceedings, but neither of those opinions

expressly addressed a permanent or lifetime protective order against a parent. See

                                           8
Jovel v. Blanco, No. 14-20-00638-CV,
2022 WL 220251
, at *5 (Tex. App.—

Houston [14th Dist.] Jan. 25, 2022, no pet.) (mem. op.) (rejecting, in dicta, parent’s

claim that protective order effective for ten years should be subject to heightened

burden of proof); Turner v. Roberson, No. 05-11-01272-CV,
2013 WL 2152636
, at

*3–4 (Tex. App.—Dallas May 17, 2013, no pet.) (mem. op.) (concluding that

protective order did not terminate parent’s parental rights, but not stating length of

protective order).

      Outside of the parent-child context, courts have concluded that protective

orders need not be supported by clear and convincing evidence. See Roper,
493 S.W.3d at 638
 (rejecting estranged boyfriend’s contention that due process requires

clear and convincing evidence to support protective order); Caballero v. Caballero,

No. 14-16-00513-CV,
2017 WL 6374724
, at *5 (Tex. App.—Houston [14th Dist.]

Dec. 14, 2017, no pet.) (mem. op.) (rejecting ex-husband’s argument that due

process required heightened standard of proof in protective order proceeding for

protection of ex-wife, with whom ex-husband had no children, because protective

order “does not directly infringe on appellant’s parental rights”). These cases do not,

however, address a lifetime protective order indefinitely prohibiting contact between

parent and child.

      In this case, Stary’s interests at stake were particularly important considering

she faced a significant deprivation of her liberty—the indefinite loss of any

                                          9
meaningful contact or relationship with her children—a deprivation which

ultimately occurred. See Santosky,
455 U.S. at 756
. In cases involving fundamental

rights such as this one, the minimum function of a standard of proof is to reflect the

value society places on the right. See
id.
 Fundamental fairness required the level of

certainty inherent in the intermediate standard of clear and convincing evidence.
Id.

at 755–56. A limited opportunity to later seek review of a continuing need for a

lifetime protective order does not make a fundamentally unfair proceeding comport

with due process.

      To be clear, this dissent does not condone a heightened standard of clear and

convincing evidence in all family-violence protective order proceedings seeking to

prohibit all contact or communication between a parent and child for more than two

years. I would simply hold that due process does not permit a trial court to effectively

terminate a parent’s rights by issuing a permanent protective order barring all contact

with the child based on facts found by a preponderance of the evidence. The majority

errs by affirming. I respectfully dissent.




                                                  April L. Farris
                                                  Justice

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

Justice Farris, dissenting.
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