Monthly Archives: August 2020

Scheming to Hide the Kids

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.
SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.
SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.

The Government’s Right to Flood You Out

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I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured.

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005). Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights. We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.” Slip Op. at 6-7.

Wait, what? There’s a case directly on point? Why didn’t you lead with that? I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important. It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America. In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary. We decide them by looking to our collective experience in resolving disputes.

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981. It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.” They do it all the time in criminal cases. It’s interesting that they didn’t do it here.

I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.

Jeremy M. Masten

Attorney and Counselor at Law