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holding that the child's grandparents had standing under section 102.003 but expressing "no opinion" on whether they were entitled to conservatorship or visitation rights
Summary of this case from In re C.J.C.Opinion
No. 16–0715
06-15-2018
IN the INTEREST OF H.S., a Minor Child
Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, Charla F. Moore, Moore Family Law Firm, Arlington, TX, Katherine Marie Allen, Allen & Weaver, P.C., Euless, TX, for Petitioners C.M. and S.M. Kirk L. Pittard, Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston, TX, Dava Greenberg–Spindler, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX, Kaye Lynne Boll, Law Office of Kaye Lynne Bol, North Richland Hills, TX, Sarraine S. Krause, Law Office Of Sarraine S. Krause, Forth Worth, TX, for Respondents A.G. and B.A.S. Deterrean S. Gamble, John B. Worley, Rande K. Herrell, Office of the Attorney General, Austin, TX, Jonathan Fox, Office of the Attorney General, Arlington, TX, for Office of the Attorney General.
Thomas M. Michel, Griffith, Jay & Michel, LLP, Fort Worth, TX, Charla F. Moore, Moore Family Law Firm, Arlington, TX, Katherine Marie Allen, Allen & Weaver, P.C., Euless, TX, for Petitioners C.M. and S.M.
Kirk L. Pittard, Peter M. Kelly, Kelly Durham & Pittard, LLP, Houston, TX, Dava Greenberg–Spindler, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX, Kaye Lynne Boll, Law Office of Kaye Lynne Bol, North Richland Hills, TX, Sarraine S. Krause, Law Office Of Sarraine S. Krause, Forth Worth, TX, for Respondents A.G. and B.A.S.
Deterrean S. Gamble, John B. Worley, Rande K. Herrell, Office of the Attorney General, Austin, TX, Jonathan Fox, Office of the Attorney General, Arlington, TX, for Office of the Attorney General.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Boyd, and Justice Devine joined.
Heather lived in her maternal grandparents' home for the first 23 months of her life. During the last eight of those months, her grandparents were her primary caretakers and providers. The issue here is whether the grandparents, having continuously engaged in that parent-like role on a day-to-day basis, had standing to pursue a suit affecting the parent-child relationship (SAPCR) under the Texas statute conferring such standing on nonparents who have had "actual care, control, and possession of the child for at least six months." TEX. FAM. CODE § 102.003(a)(9). Both the trial court and the court of appeals concluded the grandparents lacked standing. We disagree. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.
Like the court of appeals, we use the pseudonym "Heather" to refer to the child at issue.
I. BACKGROUND
Immediately upon Heather's birth in January 2013, she and her mother moved into her maternal grandparents' home. Heather's parents were not married and did not live together. On August 29, 2013, the trial court entered an order in a pending SAPCR appointing Heather's parents joint managing conservators, with Mother having the exclusive right to designate Heather's primary residence. Broadly speaking, the order granted Father possession of Heather on alternate weekends and various holidays.
From the time of her birth until December 19, 2014, Heather primarily lived in the home of her maternal grandmother and step-grandfather (Grandparents). Mother, who struggled with alcohol addiction, also resided at Grandparents' home from August 29, 2013 until March 30, 2014. On March 30, 2014, Mother moved to a sober-living facility called Oxford House to address her addiction issues. Mother, Father, and Grandparents agreed that Heather would continue to live with Grandparents while Mother was in recovery.
The record is unclear as to Mother's living situation before August 29.
Mother testified that she did not have a specific time frame in mind for her stay at Oxford, though she initially anticipated being there no more than three months. She also testified that, while living at Oxford, she would go to Grandparents' house in the evenings and would "have dinner with [Heather], bathe her, put her to bed, spend time with her." The record is not clear about the frequency of these visits, although the trial court found that Mother saw Heather "on a regular basis." Mother also sometimes picked Heather up from daycare when she was able to get a car. Father's exercise of his possession rights when Mother moved to Oxford was "sporadic" for the first few months or so, after which Heather stayed with him approximately every other weekend, sometimes commencing on Thursday.
After Mother moved to Oxford, Grandparents directed Heather's day-to-day activities and took care of her daily needs; provided her with a home, food, clothing, and shelter; and paid for her daycare. They necessarily decided when Heather would start her day, what she would eat for meals, what clothing she would wear, what activities she would participate in, whether she would be restricted from watching television or encouraged to play outside. In short, they managed and controlled her everyday activities. They also ensured that her nutritional, physical, emotional, and psychological needs were addressed, while providing her with a nurturing home. When she awoke in the middle of the night, they were there to comfort her, and when she scraped her knee, she could depend on them to stop the bleeding. Indeed, Father agreed, and the trial court found, that Grandparents were Heather's "primary caregivers" from March to October 2014.
Grandparents also took Heather to the doctor or to urgent care when necessary, although Mother and Father were also involved in medical decisions. The trial court found that both Mother and Grandmother made doctor's appointments for Heather, and Grandmother testified that Mother attended some, but not all, of those appointments. Mother provided authorization for Grandparents to take Heather to a specific doctor's office and to obtain emergency treatment. Father also testified that he authorized Grandparents to obtain necessary emergency treatment for Heather but that, on a few occasions, a medical provider obtained his consent over the phone to treat Heather. The parties generally agree, and the trial court found, that Grandparents kept Mother and Father informed about Heather's daily activities and medical needs and "sought input" from them on decisions that needed to be made about her.
Mother and Father both testified that they intended the arrangement with Grandparents to be temporary while Mother was in recovery. Mother also testified, and the trial court found, that she did not intend to relinquish her care and control of Heather to Grandparents. However, by early October 2014, Mother remained at Oxford, while Heather still lived with Grandparents. On October 6, Grandparents filed a petition to modify the SAPCR order requesting that they be appointed Heather's managing conservators with the right to designate her primary residence. They alleged that they had had actual care, control, and possession of Heather for six months and thus had standing to sue as nonparents under Family Code section 102.003(a)(9). Father filed a counterpetition to modify the possession order and filed a plea to the jurisdiction seeking dismissal of Grandparents' petition for lack of standing.
The live pleading does not use the term "sole managing conservator" or "joint managing conservator," but appears to be requesting some form of managing conservatorship. Specifically, Grandparents' second amended petition states:
Petitioners requests [sic] that they be appointed as the persons who have the right to designate the primary residence of the child, the right, after consultation with the parents to make invasive medical decisions, the right to receive child support and the right, after consultation with the parents, to make educational decisions.
Petitioner request [sic] that Respondent Father be continued [sic] to have standard visitation with the child per the previous order or pursuant to a schedule deemed appropriate by the Court. Petitioners request that Respondent Mother's access be continually supervised upon the times and locations determined by the Court.
In January 2015, the associate judge entered temporary orders appointing Father "primary" managing conservator and granting Mother supervised visitation. The trial court held a hearing on Father's plea to the jurisdiction and granted the plea, dismissing Grandparents' petition. The trial court also entered an agreed order (as between Mother and Father) appointing Heather's parents joint managing conservators, granting Father the right to designate Heather's primary residence within Tarrant County, granting Mother possession of Heather "at times mutually agreed to in advance by the parties," and requiring Mother to pay child support. In its findings of fact and conclusions of law, the court determined that Grandparents did not establish that they had "actual care" or "actual control" over Heather for the six-month period preceding their petition filing.
Mother testified that she was sober for six months but relapsed in February 2015.
Grandparents appealed. The court of appeals affirmed, holding 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 is unfit or has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period." 552 S.W.3d 282, 289, 2016 WL 4040497 (Tex. App.—Fort Worth 2016) (mem. op.). We granted Grandparents' petition for review.
II. STANDING FRAMEWORK AND STANDARD OF REVIEW
The only issue presented is whether Grandparents had standing under the Family Code to file a SAPCR seeking conservatorship of Heather. With that in mind, we note the significance of the stage of the case before us. Generally, standing involves a threshold determination of whether a plaintiff has a sufficient "justiciable interest" in the suit's outcome to be entitled to a judicial determination. Austin Nursing Ctr. v. Lovato , 171 S.W.3d 845, 848–49 (Tex. 2005). "Without standing, a court lacks subject matter jurisdiction" over the case, and the merits of the plaintiff's claims thus cannot be litigated or decided. Id. at 849 ; see also Brown v. Todd , 53 S.W.3d 297, 305 (Tex. 2001) ("The standing doctrine identifies those suits appropriate for judicial resolution."). Here, the merits of Grandparents' claims—that is, whether they should be appointed Heather's managing conservators with the right to designate her primary residence—have not yet been considered by any court and are not before us. See In re Smith , 260 S.W.3d 568, 573 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (explaining, in a suit involving grandparent access, that "whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit"). Thus, this case is not about whether Grandparents will prevail in their suit; it is about whether they may bring it in the first place. And without standing, Grandparents are precluded not only from seeking custody of Heather but also from seeking any type of visitation with her at all.
Standing, like other issues implicating a court's subject matter jurisdiction, is a question of law that we review de novo. Tex. Dep't of Transp. v. City of Sunset Valley , 146 S.W.3d 637, 646 (Tex. 2004) ; Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998). In evaluating standing, we construe the pleadings in the plaintiff's favor, but we also consider relevant evidence offered by the parties. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000) ; Tex. Ass'n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). When the trial court issues findings of fact, as it did here, we defer to those unchallenged findings that are supported by some evidence. Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC , 437 S.W.3d 518, 523 (Tex. 2014).
Because standing to bring a SAPCR is governed by statute, we apply statutory-interpretation principles in determining whether a plaintiff falls within the category of persons upon whom such standing has been conferred. See Tex. Dep't of Protective & Regulatory Servs. v. Sherry , 46 S.W.3d 857, 861 (Tex. 2001). When interpreting statutes, we presume the Legislature's intent is reflected in the words of the statute and give those words their fair meaning. In re C.J.N.–S. , 540 S.W.3d 589, 591 (Tex. 2018). We analyze statutes "as a cohesive, contextual whole, accepting that lawmaker-authors chose their words carefully, both in what they included and in what they excluded." Sommers v. Sandcastle Homes, Inc. , 521 S.W.3d 749, 754 (Tex. 2017) ; see also R.R. Comm'n of Tex. v. Tex. Citizens for a Safe Future & Clean Water , 336 S.W.3d 619, 628 (Tex. 2011) ("When the Legislature uses a word or phrase in one portion of a statute but excludes it from another, the term should not be implied where it has been excluded.").
III. ANALYSIS
Section 102.003, entitled "General Standing to File Suit," enumerates fourteen categories of persons who have standing to file a SAPCR. TEX. FAM. CODE § 102.003(a) ; see also id. § 156.002(b) ("A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction."). Grandparents rely on subsection (a)(9), which confers such standing on "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." "In computing the time necessary for standing" under this subsection, courts "shall consider the child's principal residence during the relevant time." Id. § 102.003(b). We read this language to exclude nonparents who do not share a principal residence with a child for the statutory time period from establishing standing under section 102.003(a)(9), regardless of how extensively they participate in caring for her. In this case, the parties do not dispute that Grandparents meet the statute's "actual possession" requirement. Rather, the dispute focuses primarily on what is required to have "actual care [and] control" of a child for the requisite time period.
Subsection (a)(12) confers standing on "a person who is the foster parent of a child placed by the Department of Family and Protective Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition." Tex. Fam. Code § 102.003(a)(12).
Two other Family Code provisions that allow grandparents to seek conservatorship or possession of a child under narrow circumstances are not before us. Section 102.004, which expressly confers standing "[i]n addition to the general standing to file suit provided by Section 102.003," allows grandparents and certain other close relatives to file an original suit requesting managing conservatorship upon "satisfactory proof" that "the child's present circumstances would significantly impair the child's physical health or emotional development." And section 153.433(a) allows a court to "order reasonable possession of or access to a grandchild by a grandparent" if several conditions are met. Grandparents allege only "general" nonparent standing under section 102.003(a)(9). The fact that they are Heather's grandparents is largely immaterial.
This includes, for example, babysitters, daycare providers, friends, and relatives who assist with childcare responsibilities but do not share a principal residence with the child.
The courts of appeals have diverged on the proper interpretation of this language, creating "two lines of authority ... differing principally on what constitutes ‘control’ over the child." In re Lankford , 501 S.W.3d 681, 685 (Tex. App.—Tyler 2016, orig. proceeding). Some courts have held that, because the modifier "actual" distinguishes "between something that exists in fact rather than as a function of legal implication," the Legislature's word choice manifests "its intent to confer standing on a person who had developed and maintained a relationship, of at least six months duration, with the child by virtue of that person's actual care, control, and possession of the child, as distinguished from a bare legal right of care, control, and possession." Jasek v. Tex. Dep't of Family & Protective Servs. , 348 S.W.3d 523, 535 (Tex. App.—Austin 2011, no pet.) ; accord In re Lankford , 501 S.W.3d at 690. Applying this reasoning, the Jasek court held that "actual control" is "the actual power or authority to guide or manage or the actual directing or restricting of the child," "without regard to whether [the nonparent] had the legal or constructive power or authority" to do so. 348 S.W.3d at 533, 537 ; see also In re S.A.H. , 420 S.W.3d 911, 924 n.23 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (agreeing with the Jasek court's definition of control).
Other courts have concluded that, considering the control requirement "in the context of the rights, duties, and responsibilities of a parent," the statute requires a "legal right of control over the child" that "includes the authority to make decisions of legal significance for the child." In re K.K.C. , 292 S.W.3d 788, 793 (Tex. App.—Beaumont 2009, orig. proceeding). The court in In re K.K.C. held that a nonparent did not have standing under section 102.003(a)(9) when the child's parent also "adequately cared for the child, and did not relinquish to [the nonparent] or abdicate her parental rights, duties, and responsibilities." Id. The court of appeals in this case, emphasizing parents' fundamental liberty interest in directing their children's upbringing, agreed with the latter line of authority and concluded 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 is unfit or has abdicated his or her own care, control, and possession." 552 S.W.3d at 289.
As discussed below, we agree with the Jasek court's analysis of the statute's plain language. By contrast, the court of appeals in this case engrafted requirements into the statute that simply aren't there.
A. Plain Language
The Legislature did not define the phrase "actual care, control, and possession" or its constituent parts in either the standing statute or elsewhere in the Family Code. We therefore look to the terms' ordinary meaning within the statutory context. State v. $1,760.00 in U.S. Currency , 406 S.W.3d 177, 180–81 (Tex. 2013) (explaining that "[u]ndefined terms in a statute are typically given their ordinary meaning" and that, "when an undefined term has multiple common meanings, the definition most consistent within the context of the statute's scheme applies").
"Actual" means "[e]xisting in fact; real." BLACK'S LAW DICTIONARY (10th ed. 2014). The adjective precedes the uninterrupted series of nouns "care, control, and possession" and thus modifies all three. See Iliff v. Iliff , 339 S.W.3d 74, 80 (Tex. 2011). In the family-law context, "care" means the "provision of physical or psychological comfort to another." BLACK'S LAW DICTIONARY (10th ed. 2014). And "control" is commonly defined as "the power or authority to manage, direct, or oversee." BLACK'S LAW DICTIONARY (10th ed. 2014); see also WEBSTER'S THIRD NEW INT'L DICTIONARY (2002) (defining "control" as "power or authority to guide or manage[;] directing or restraining domination").
As noted, Grandparents' actual possession of Heather for over six months is undisputed. We therefore need not focus on that prong.
The Jasek court concluded that these words "reflect the Legislature's intent to create standing for those who have, over time, developed and maintained a relationship with a child entailing the actual exercise of guidance, governance and direction similar to that typically exercised by parents with their children." 348 S.W.3d at 533 ; see also Coons–Andersen v. Andersen , 104 S.W.3d 630, 636 (Tex. App.—Dallas 2003, no pet.) (noting that " section 102.003(a)(9) is in complete harmony with the common law doctrine of in loco parentis: a person who assumes the duties of a parent ... has the right to be a party in a lawsuit involving the child's custody"). We agree. The Legislature did not use the phrase "legal custody," "legal control," "constructive control," or any other language indicating that it intended formal legal authority over the child to be a condition for standing under subsection (a)(9). Had the Legislature intended to require such authority, it would have said so. See, e.g. , Uniform Child Custody Jurisdiction and Enforcement Act, TEX. FAM. CODE § 152.102(11), (14) (differentiating between "legal custody"—defined as "the managing conservatorship of a child"—and "physical custody"—defined as "the physical care and supervision of a child"); TEX. EDUC. CODE § 38.053 ("The student's parent or guardian or another person having legal control of the student may give consent for a student to receive ongoing services.").
Nor did the Legislature require the nonparent's care and control of the child to be exclusive. Smith v. Hawkins , No. 01-09-00060-CV, 2010 WL 3718546, at *3 (Tex. App.—Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem. op.); see also In re M.P.B. , 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.) (concluding the child's grandmother had standing under section 102.003(a)(9) even though her "actual care, control, and possession of [the child] was not exclusive"). By conditioning nonparent standing on a finding that the parents have wholly "abdicated" their parental rights to the nonparent, the court of appeals and the dissent would effectively add an exclusivity requirement that is not reflected in the statute's plain language. See Iliff , 339 S.W.3d at 80–81 ("We have no right to engraft upon the statute any conditions or provisions not placed there by the legislature." (citation omitted) ). Again, had the Legislature intended to require total "abdication" by the parent, it would have done so expressly.
Mother and Father argue that requiring parental intent to abdicate or relinquish their parental rights is not tantamount to an exclusivity requirement. We disagree. By requiring abdication, the court of appeals impliedly concluded that parents and nonparents cannot both play parental or parent-like roles in a child's life at the same time.
The dissent opines that "actual control" cannot mean "providing daily supervision, clothing, food, transportation, and the like" because that "would be the same thing as ‘care,’ rendering one statutory term or the other superfluous." Post at 169. In the dissent's view, " ‘control’ of a child entails the power and authority to make important decisions about the child's life," and "[a]s 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 parents themselves already occupy that unique and special role." Id. at 172. We cannot agree with either conclusion.
Unless otherwise noted, references to the dissent are to Justice Blacklock's writing.
First, the fact that "actual care" and "actual control" are often exercised together does not make either term superfluous. When a nonparent takes daily responsibility for ensuring that a child is fed, clothed, and emotionally nurtured, that nonparent is taking "actual care" of the child. When a nonparent consistently makes the kinds of day-to-day decisions associated with raising a child—when she gets up and goes to bed, how much television she watches, whether she gets dessert, when she needs to go to the doctor—that nonparent is exercising "actual control" over the child. The dissent's narrow reading of "control" to encompass only the "important" decisions to be made about a child's life is supported by neither the statute nor the term's ordinary meaning. And it raises the question of which decisions are "important" enough to fall into this category.
The dissent's conflation of legal and actual control is also curious. Of course, parents whose rights have not been terminated and who have not otherwise formally granted to a nonparent the right to make decisions about the child necessarily have the legal authority to override the nonparent's decisions or to withdraw any express or implied permission given to the nonparent. However, this merely highlights the difference between having legal control and exercising actual control. The two do not, as the dissent asserts, necessarily go hand in hand.
Further, the court of appeals and the dissent essentially focus their analysis on the parents' conduct in evaluating nonparent standing, but the statute by its plain terms focuses on the nonparent's role in the child's life. This makes sense because the relationship that develops over time between a child and a person who serves in a parent-like role—i.e., someone who has actual care, control, and possession of the child—is what justifies allowing that person to seek to preserve involvement in the child's life. We decline to hold that a parent must wholly cease exercising his or her own parental rights and responsibilities in order for a nonparent to exercise those same kinds of responsibilities and obtain standing under section 102.003(a)(9). Requiring this type of abdication would essentially amount to an imposition that parents relinquish their parental rights entirely in order for a nonparent to attain standing to seek a continued relationship with the child. Nothing in section 102.003(a)(9) supports imposing such a requirement.
The dissent proposes two hypotheticals involving a father who leaves his son with a close friend during a seven-month assignment on an offshore oilrig. In the first, Father and Son talk on the phone most nights and the caretaker regularly consults with Father regarding Son's schoolwork, discipline, and extracurricular activities. In the second, Father absconds with his girlfriend. In the dissent's view, the Son's caretaker has nonparent standing in the second hypothetical but not the first. By focusing on Father's conduct, both hypotheticals ignore the relationship that has necessarily developed between Son and the caretaker while he serves in that role and as manager of Son's daily activities. Suppose facts identical to the first hypothetical, except that Father is continually assigned to offshore oilrigs over the course of seven years rather than seven months. Or suppose Father checks in with Son and caretaker once a month and is available for any necessary emergency decisions that need to be made, but otherwise leaves the day-to-day decisions to the caretaker. The dissent's all-or-nothing approach means anything short of "absconding" on the parent's part leaves the caretaker with no ability to seek to preserve any involvement in the child's life in the event Father subsequently decides to restrict it.
Finally, Mother and Father argue that a nonparent's exercise of actual care and control of a child is conditioned on the nonparent's "permanent power over a child," such that the provision of physical and psychological comfort is "more than transient in nature." They argue that a nonparent cannot satisfy section 102.003(a)(9) when, as in this case, the living arrangement was intended to be temporary. But, just as requiring legal or exclusive control over the child would improperly add language to the statute, so too would requiring intent to make the nonparent's exercise of care, control, and possession permanent. The parents do not dispute that they consented to the arrangement, and however long they anticipated it lasting, the fact remains that it had continued for over six months when Grandparents filed suit. See Jasek , 348 S.W.3d at 536 ("Presumably, a person would only be able to meet [the section 102.003(a)(9) ] requirements, absent violating some other law, with some type of parental or conservator consent, actual or constructive, such as where a parent leaves a child in the care of other people for more than six months."). The statute requires six months of actual care, control, and possession, not six months of care, control, and possession with the understanding that it is intended to be a permanent arrangement .
Mother and Father testified that, on a few occasions during the pertinent time period, they told Grandmother they wanted Heather to live with Father, but that Grandmother "disagreed" or said "we'll talk about it." There is no indication in the record or the trial court's findings that Father ever refused (or attempted to refuse) to return Heather to Grandparents at the end of his periods of weekend possession, or that the parents attempted to obtain a court order.
In sum, a nonparent has "actual care, control, and possession of the child" under section 102.003(a)(9) if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child's daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.
This is consistent with Jasek 's description of the "common threads running through the cases in which the court found actual care, control, and possession," including:
that the person asserting standing (1) lived in the same home as the child or lived in a home where the child stayed overnight on a regular and frequent basis, (2) made financial contributions benefitting the child, (3) was involved with the child's education, and (4) was involved in matters involving the child's general upbringing, like health care, feeding, and clothing.
348 S.W.3d at 534.
B. Application
Applying the standards enumerated above, we hold that Grandparents exercised "actual care, control, and possession" of Heather for the six-month statutory time period. A litany of facts underlie this holding.
First, as noted, it is undisputed that Heather's principal residence, from the time she was born until she was almost two, was Grandparents' home. During the six months preceding Grandparents' filing their petition, Heather spent approximately every other weekend (sometimes commencing on Thursday) at Father's, but otherwise resided with Grandparents. Grandparents were her primary caregivers, providing for her everyday physical and emotional needs. They paid for her food, clothes, and daycare. They managed and directed her day-to-day activities. They took her to urgent care when necessary for emergency treatment, made some of her doctor's appointments, and took her to the doctor for checkups even when Mother made the appointments. For a child Heather's age, it is difficult to imagine what more "care" and "control" they could have exercised. In short, Grandparents played a parent-like role in Heather's life on a daily basis for over six months before Grandparents filed their petition, from at least March 30 to October 6, 2014.
The trial court found that Father also saw Heather more often than that, although the nature and frequency of that contact is not clear from the record.
In the dissent's view, the fact that Grandparents kept Mother and Father "reasonably informed" about Heather's daily activities and medical needs and sought their input on decisions about her undercuts Grandparents' assertion of control. At best, it reflects shared decision-making on some issues, and as explained above, a nonparent's control over a child need not be exclusive.
That Heather's parents remained involved in her life and continued to make some medical decisions on her behalf does not alter or negate that conclusion. Nor does the evidence that the arrangement, while indefinite, was intended to be temporary. Mother and Father agreed to an extended arrangement in which Grandparents took primary responsibility for Heather's daily needs. Certainly Mother and Father could have revoked this arrangement at any time, but they chose not to.
In sum, we hold that Grandparents have shown that, for the statutory time period, they (1) shared a principal residence with Heather, (2) provided for Heather's daily physical and psychological needs, and (3) exercised guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. Accordingly, Grandparents "had actual care, control, and possession" of Heather "for at least six months ending not more than 90 days preceding the date of the filing of the petition" and therefore had standing to file their petition.
Having determined that Grandparents had standing under the statute's plain language, we turn to the constitutional implications of nonparent standing.
C. Troxel
In confining nonparent standing under section 102.003(a)(9) to those instances in which the child's parent "is unfit or has abdicated his or her own care, control, and possession," the court of appeals relied in part on Troxel v. Granville , in which the United States Supreme Court invalidated a Washington visitation statute because it unconstitutionally interfered with "the fundamental right of parents to make child rearing decisions." 530 U.S. 57, 72–73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). For several reasons, Troxel does not require or justify adding language to section 102.003(a)(9) that the Legislature chose not to include.
The visitation statute at issue in Troxel permitted "[a]ny person" to petition for visitation rights "at any time" and allowed the court to "order visitation rights for any person when visitation may serve the best interest of the child." Id. at 61, 120 S.Ct. 2054. Relying on this statute, the children's paternal grandparents petitioned the court for visitation rights after the children's father died. Id. at 60, 120 S.Ct. 2054. Although the mother wished to limit visitation to one non-overnight visit per month, the trial court ordered significantly more, finding it to be in the children's best interest. Id. at 61, 120 S.Ct. 2054. The Washington Supreme Court concluded the statute was unconstitutional, and the United States Supreme Court affirmed. Id. at 63, 120 S.Ct. 2054.
The plurality in Troxel emphasized that the statute at issue was "breathtakingly broad," permitting "any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children" to court review. Id. at 67, 120 S.Ct. 2054. The plurality further faulted the statute for according no weight to a parent's decision that visitation would not be in the children's best interest. Id. The statute thus allowed a judge to "disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests." Id. Having rested its decision on "the sweeping breadth" of the statute at issue, the plurality nevertheless also noted that "the constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied and that the constitutional protections in this area are best ‘elaborated with care.’ " Id. at 73, 120 S.Ct. 2054 ; see also id. at 100–01, 120 S.Ct. 2054 (Kennedy, J., dissenting) (noting that "a fit parent's right vis-à-vis a complete stranger is one thing; her right vis-à-vis another parent or a de facto parent may be another").
In stark contrast to the Washington statute at issue in Troxel , section 102.003(a)(9) does not allow "any" nonparent to file a SAPCR; it allows only nonparents who have exercised "actual care, control, and possession" of a child for at least six months to do so. The nonparent standing threshold in Texas is thus much higher and narrower than the one rejected in Troxel . See In re Fountain , No. 01-11-00198-CV, 2011 WL 1755550, at *2 (Tex. App.—Houston [1st Dist.] May 2, 2011, orig. proceeding) (mem. op.) (noting that "the Legislature has provided a restricted and considerably more tailored standard for standing than ‘any person’ "). Nor does section 102.003 govern the merits of a SAPCR; again, the statute addresses only who may file a suit affecting the parent–child relationship, not what a petitioner must show to obtain the relief she seeks. The merits of a SAPCR petition are governed by other statutes that contain additional safeguards. See, e.g. , TEX. FAM. CODE § 153.131 (the appointment of the parent or parents as managing conservators is in the child's best interest unless the court finds that the appointment "would significantly impair the child's physical health or emotional development").
Troxel thus involved a materially different statute and petitioners who had not lived with, cared for, and managed the children at issue on a day-to-day basis over an extended period of time. See 530 U.S. at 100–01, 120 S.Ct. 2054 (Kennedy, J., dissenting). The dissent fails to appreciate these important distinctions, mischaracterizing this case as a Troxel -type "grandparent-access case." Post at 175. However, this case involves nonparents who have exercised "actual care, control and possession" with the parents' agreement, while Troxel involved grandparents who had never lived with the child or played a parent-like role in the child's life.
Courts in other jurisdictions have also "declined to treat Troxel as a bar to recognizing de facto parenthood or other designations used to describe third parties who have assumed a parental role." Conover v. Conover , 450 Md. 51, 146 A.3d 433, 445–46 (2016) (collecting cases). These courts recognize the distinction between ordinary third parties and those "who have played an unusual and significant parent-like role in a child's life." C.E.W. v. D.E.W. , 845 A.2d 1146, 1149 (Me. 2004) ; see also Conover , 146 A.3d at 453 (reasoning that treating de facto parents as distinct from other third parties is not only consistent with Troxel , but also considers "the benefits a child gains when there is consistency in the child's close, nurturing relationships"); M.J.S. v. B.B. , 172 A.3d 651, 656 (Pa. Super. Ct. 2017) (holding that grandmother, who shared with her daughter the responsibility of raising her grandchild and who satisfied the child's "daily physical, emotional, and financial needs for his entire life," was much more than a "glorified baby-sitter" and could sue for custody as a person who stood in loco parentis to the child). In Texas, section 102.003(a)(9) recognizes that distinction and, properly construed, limits nonparent standing to persons "who have played an unusual and significant parent-like role in a child's life." C.E.W. , 845 A.2d at 1149. So construed, it does not unconstitutionally interfere with parents' fundamental liberty interest in raising their children.
The concept of de facto parenthood has been widely adopted in various iterations. See, e.g. , T.B. v. L.R.M. , 567 Pa. 222, 786 A.2d 913, 918–19 (2001) (recognizing the status of in loco parentis); V.C. v. M.J.B. , 163 N.J. 200, 748 A.2d 539, 549–50 (2000) (recognizing the status of "psychological parent"); In re Custody of H.S.H.–K. , 193 Wis.2d 649, 533 N.W.2d 419, 435 (1995) (permitting a person in a "parent-like" relationship with the child to petition for visitation). In some states, the doctrine is recognized as a matter of common law, see, e.g. , In re Custody of H.S.H.–K. , 533 N.W.2d at 435–36 (adopting four-part test for de facto parenthood), while in others it is governed by statute, see, e.g. , Smith v. Guest , 16 A.3d 920, 931–32 (Del. 2011) (upholding the constitutionality of Delaware's statute conferring standing on de facto parents).
The dissent accuses us of "brush[ing] aside the constitutional concerns raised by Mother, Father, and the court of appeals." Post at 176. We do no such thing. We merely decline to expand the parameters of the rights at issue beyond those recognized by the Supreme Court, consistent with the numerous courts in this and other jurisdictions that have reviewed nonparent standing issues in light of Troxel . The dissent stops short of opining that the nonparent standing statute as we have construed it is unconstitutional, instead implying that the dissent's interpretation is essentially more constitutional. We decline to wade into such murky waters in the face of an unambiguous statute that does not unconstitutionally interfere with a parent's rights.
This is consistent with the draft Uniform Nonparent Custody and Visitation Act, scheduled for a final vote by the Uniform Law Commission in July 2018 and expressly drafted with Troxel in mind. See Uniform Nonparent Custody and Visitation Act Prefatory Note ( Unif. Law Comm'n , Annual Meeting Draft 2018). Under the draft Uniform Act, a court may award custody or visitation to a nonparent who is a "consistent caretaker" of the child if the award would be in the child's best interest. Id. § 4(a). A nonparent is a "consistent caretaker" if he proves that he,
without expectation of compensation: (1) lived with the child for not less than 12 months, unless the court finds good cause to accept a shorter period; (2) regularly exercised care of the child; (3) made day-to-day decisions regarding the child solely or in cooperation with a custodian of the child; and (4) established a bonded and dependent relationship with the child with the express or implied consent of a parent of the child, or without the consent of a parent if no parent has been able or willing to perform parenting functions.
Id. § 4(b).
IV. Conclusion
Parental rights are fundamental, but neither the Texas Family Code nor the Constitution treats them as plenary and unchecked. The Family Code recognizes that a narrow class of nonparents, who have served in a parent-like role to a child over an extended period of time, may come to court and seek to preserve that relationship, over a parent's objections. We hold that Grandparents fall into that class, although we express no opinion on whether Grandparents are entitled to conservatorship or visitation rights with respect to Heather. We therefore reverse the court of appeals' judgment and remand the case to the trial court to determine the merits of Grandparents' petition.
Justice Guzman filed a dissenting opinion.
Justice Blacklock filed a dissenting opinion, in which Justice Johnson, Justice Guzman, and Justice Brown joined.
Justice Guzman, dissenting.
One of life's greatest blessings is the love of family. Perhaps more than anyone, children benefit from secure and loving relationships with their parents and extended family. Heather is fortunate to have parents and grandparents who actively support, guide, and cherish her. Everyone wants the best for Heather, though they may disagree about what that entails or how to achieve it. One thing is certain, however: the instability, ill-will, and financial burdens of litigation are detrimental to the child's well-being and harmful to familial relationships. Litigation may be necessary when parents have abdicated their responsibilities and allowed someone else to fulfill the committed parental role, but this is not one of those cases.
See, e.g. , Centers for Disease Control and Prevention's National Center for Injury Prevention and Control, Essentials for Childhood: Steps to Create Safe, Stable, Nurturing Relationships & Environments , (Aug. 2014) ("Safety, stability, and nurturing are three critical qualities of relationships that make a difference for children as they grow and develop."), https://www.cdc.gov/violenceprevention/pdf/essentials_for_childhood_framework.pdf; John Oates, editor, Early Childhood in Focus 1, Attachment Relationships: Quality of Care for Young Children (The Open Univ. 2007) (exploring attachment relationships, which offer children physical and emotional security and consistent care and attention), http://oro.open.ac.uk/10292/1/ECiF1as_BvLFweb.pdf.
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; ....").
See Katherine K. Baker, Quacking Like a Duck? Functional Parenthood Doctrine & Same–Sex Parents , 92 Chi. Kent L. Rev. 135, 167 (2017) ("[L]itigation, particularly litigation over children, imposes tremendous emotional and financial costs for no good reason."); Gregory Firestone & Janet Weinstein, In the Best Interests of Children , 42 Fam. Ct. Rev. 203, 203–07 (2004) (outlining the adversarial system's harmful effects on children).
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").
Cf. Holley v. Adams , 544 S.W.2d 367, 370 (Tex. 1976) (parent-child relationship is of constitutional dimension and encompasses the right of parents to surround their children with proper influences).
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 nonparent 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 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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Heather's grandparents temporarily assisted their daughter in the care of her child, which is a natural and loving thing to do, especially in times of adversity. But it does not rise to the level of "actual control" in this case because Heather's parents continued to exercise their parental rights, continued to fulfill their parental obligations, and did not perpetuate the grandparents as substitute or functional parents. The record shows that Heather was in day care while both her grandparents and parents worked; after work, Heather's mother cared for her—spending time with her and feeding, bathing, and putting her to bed; Heather's father fulfilled his parental obligations and exercised the rights he was afforded under the possession order; both parents continued to make significant decisions about Heather's healthcare; both parents consulted with and directed the grandparents regarding Heather's care; and both parents remained the primary and ultimate decision-makers about what would be best for their child. Neither the record nor the trial court's fact findings support the conclusion that the grandparents exercised actual control over Heather, but rather were at all times acting under and subject to her parents' control. Accordingly, I agree with Justice Blacklock that the grandparents do not have standing under Section 102.003(a)(9) of the Family Code and therefore join his dissent.
See Tex. Fam. Code § 151.001(a), (d)(1).
Post at 167 (Blacklock, J., dissenting) ("No one can fully stand in a parent's shoes unless the parent first steps out of those shoes and walks away.").
In my view, any reading of Section 102.003(a)(9) that treats a non-parent's supportive participation in parental decision-making commensurate with actual control over the child is neither reasonable nor consistent with the plain meaning of the term. The right of parents to parent their children—even imperfectly—"is perhaps the oldest of the fundamental liberty interests." When parents are fit to act as parents and are engaged as parents should be, the state has no business intruding on the parent-child relationship. Any construction of Section 102.003(a)(9) that affords standing in such circumstances is unreasonable. I write separately, however, to clarify a procedural point regarding the scope of review and the force of the trial court's findings on appeal. The grandparents suggest it was improper for the trial court to make fact findings on the standing issue, asserting that under Texas Department of Parks & Wildlife v. Miranda , the trial court must view evidence challenging jurisdictional facts in the light most favorable to standing and defer ruling on the jurisdictional matter pending the factfinder's disposition of material disputed facts. And because the existence of jurisdiction is a question of law reviewed de novo, the grandparents assert we must likewise take as true all evidence favorable to them and indulge every reasonable inference in their favor. But the grandparents acknowledge that, when the trial court makes findings of fact and conclusions of law, as in this case, appellate courts review the trial court's legal conclusions de novo and fact findings for evidentiary support.
See Black's Law Dictionary (10th ed. 2014) (defining "control" as "[t]he power or authority to manage, direct, or oversee"); Webster's Third New Int'l Dictionary 496 (2002) (defining "control" as "power or authority to guide or manage: directing or restraining domination").
Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality).
See City of Richardson v. Oncor Elec. Delivery Co. LLC , 539 S.W.3d 252, 261 (Tex. 2018) (statutory language is afforded its plain, ordinary, and reasonable meaning).
133 S.W.3d 217, 226 (Tex. 2004).
The contention that we must view the evidence here in the light most favorable to standing rather than in the light most favorable to the trial court's fact findings reflects a misunderstanding of Miranda , which involved a jurisdictional issue intertwined with the merits of the case. When jurisdictional issues do not implicate the merits, the trial court's fact findings are afforded weight if supported by sufficient evidence, and that is true whether the fact findings are express or implied.
Cf. BMC Software Belg., N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002).
Cf. id. ("When a trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all facts necessary to support the judgment and supported by the evidence are implied.").
Miranda is a personal-injury case in which the plaintiff suffered injuries after a tree limb fell on her head while she was engaged in recreational activities at a state park. The defendant asserted sovereign immunity, which the plaintiff could overcome only by establishing gross negligence. Though the plaintiff's pleadings alleged gross negligence, the defendant challenged the existence of that fact with evidence. We held that the trial court was required to consider the parties' jurisdictional evidence, but in doing so, we distinguished jurisdictional challenges that implicate the merits, holding that if the evidence raises a fact issue in such cases, the resolution of the matter is for the factfinder, not the court. Such circumstances invoke a summary-judgment type inquiry, which precludes the trial court from making fact findings.
Id. at 221.
Id.
Id. at 223, 226–27 (citing with approval federal court decisions holding that, if a jurisdictional question is inextricably entwined with the case's merits, resolution is for the factfinder).
Id. at 225–26.
See, e.g. , IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp. , 938 S.W.2d 440, 441 (Tex. 1997) (findings of fact and legal conclusions are neither necessary nor proper in a summary-judgment proceeding).
The same is not true, however, when the jurisdictional inquiry is neither intertwined with nor implicates the merits. Because standing is a prerequisite to subject-matter jurisdiction, the trial court must consider disputed evidence necessary to determine standing and may make findings of fact when the standing question does not involve the merits of the dispute, as in this case. We afford those findings, whether express or implied, deference if supported by sufficient evidence. Conclusions of law and application of law to the facts are, however, reviewed de novo.
Sneed v. Webre , 465 S.W.3d 169, 179 (Tex. 2015) (standing is "a constitutional prerequisite to maintaining suit").
Perry v. Del Rio , 66 S.W.3d 239, 257 (Tex. 2001).
The Court gives deference to the trial court's fact findings in this case because they are unchallenged and the dissent does so because they are supported by legally sufficient evidence. The court of appeals opined that the material facts were undisputed. Whether we give deference to the trial court's findings or apply the statutory standing framework to the undisputed facts as a matter of law, the result here turns on the proper construction of the statute. Because I agree with the dissent's construction, and disagree with the Court's, I respectfully dissent.
Ante at 155 ("When the trial court issues findings of fact, as it did here, we defer to those unchallenged findings that are supported by some evidence.").
Post at 167 (Blacklock, J., dissenting) ("We should review these findings of fact under a deferential legal sufficiency standard.").
No. 02-15-00303-CV, 552 S.W.3d 282, 285, 2016 WL 4040497, at *1 (Tex. App.—Fort Worth July 28, 2016) (mem. op.) ("The facts are straightforward and undisputed.").
See Marsh USA Inc. v. Cook , 354 S.W.3d 764, 768 (Tex. 2011) (application of the law to undisputed facts is reviewed de novo).
James D. Blacklock Justice, 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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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 162. 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" 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, 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.
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 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 .
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, 552 S.W.3d 282, 288, 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 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 158. 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 157. But under the classical understanding of in loco parentis , the parent retains ultimate control of the child while consciously delegating possession 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 157. 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 "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. , 552 S.W.3d at 289–91, 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. 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 160.3 The Court's emphasis on "day-to-day" matters blurs the statutory 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 158. 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 163. The correct approach is to give all three textual requirements—care, control, and possession—independent 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 160. 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 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.
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.
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. , 552 S.W.3d at 289, 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, 105 S.Ct. 2897, 86 L.Ed.2d 536 (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, 120 S.Ct. 2054 ; see also Washington v. Glucksberg , 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Parham v. J.R. , 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (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, 98 S.Ct. 549, 54 L.Ed.2d 511 (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, 92 S.Ct. 1526, 32 L.Ed.2d 15 (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, 92 S.Ct. 1208, 31 L.Ed.2d 551 (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, 69 S.Ct. 448, 93 L.Ed. 513 (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 which the standard is applied and ... the constitutional protections in this area are best ‘elaborated with care.’ " Troxel , 530 U.S. at 73, 120 S.Ct. 2054 (quoting id. at 101, 120 S.Ct. 2054 (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, 120 S.Ct. 2054. 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, 120 S.Ct. 2054. Another potential answer is that proffered by the court of appeals, which interpreted Troxel to flatly prohibit nonparent standing "while a fit parent is appropriately exercising his or her own parental rights." In re H.S. , 552 S.W.3d at 290, 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 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' 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, 120 S.Ct. 2054 (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, 120 S.Ct. 2054 (quoting id. at 101, 120 S.Ct. 2054 (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).
* * *
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, 120 S.Ct. 2054 (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, 120 S.Ct. 2054 (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").
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.