Last month, the Texarkana Court of Appeals quietly released an opinion that should have some big shockwaves through LGBT family law in Texas. In the case of In re T.E.R., the Texarakana Court affirmed the decision of the trial court to grant a second parent adoption over the objection of the adoptive parent and after the parties’ divorce. Interest of T.E.R., No. 06-19-00073-CV, 2020 WL 1808869 (Tex. App. Apr. 9, 2020).

The parties were married in 2009 and decided to adopt a child. M1 adopted the child in 2014. In 2017 M2 sought divorce. The trial court granted divorce, found M1 (only) to be the parent of the child and appointed the parties JMC with M1 primary.

In  2018, M2 petitioned for adoption of the child. M1 challenged M2’s standing, which the trial court denied. Then at final bench trial, the judge granted the adoption by M2 over M1’s objection.

M1 sought appeal.

The trial court found that Mandy had standing pursuant to Section 102.005(5) of the Texas Family Code, which provides:

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by … (5) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

The court of appeals pointed out that this standard is a mixed question of law and fact, requiring deference to the trial court’s factual determination but de novo review of the trial court’s legal conclusion.

The opinion reviews the facts involving each mother’s involvement with the child, concluding that M2 had substantial involvement with the child. Interestingly, they looked at facts well behind the prior divorce decree between the parties.

Then, the Court turned to examine whether the trial court’s finding that the adoption was in the best interest of the child was sufficient. In determining a question of adoption, best interest of the child is the primary consideration. The Court found that the evidence was sufficient to support the trial court’s determination that the best interest of the child supported granting the adoption.

A couple of points of commentary:

• It does not appear that M1 made any argument that there was or should be a fit parent presumption applied to the standard for adoption.
• M1 could have asked for a jury trial on the adoption question and did not.
• The court of appeals talks at length about the standard of review in the standing issue, applying a hybrid abuse of discretion analysis to the factual decisions and a de novo analysis to the legal conclusions. Then, the opinion applies an abuse of discretion analysis to the ultimate merits decision (abuse of discretion).
• The detail pertaining to the involvement of the parties must have required a lot of discovery and subpoenas.
• M2 did not argue that she is a presumed parent under 160.106 and 160.204 at the time of the divorce. (See Treto and Pavan decisions also.)