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.)
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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.