Three years after the Texas Supreme Court cost a father his parental rights with his gender-confused son by wrongly assuming California courts would follow Texas court orders, the justices are seeking help on how to interpret Texas law on termination of parental rights regardless of whether the Golden State honors the Lone Star State.

The high court asked parties in a different termination dispute to explain the "relationship" between the state's new constitutional amendment on parental rights, approved by voters in November, and the "existing statutory framework for termination of parental rights" in the Texas family code, including the latter's "clear-and-convincing standard."

That evidence standard falls between the more-likely-than-not "preponderance," which the Obama administration forced colleges to use in sexual misconduct cases, and "beyond a reasonable doubt," which is used in criminal cases. The Supreme Court defines clear and convincing as "highly probable" that factual contentions are true.

Married couple Robby Lerille and Cama Niccum, who separately petitioned the Texas high court to review an appeals court ruling upholding a jury's termination of each's parental rights for various children in 2023 based on alleged physical abuse, and a handful of outside Texas interest groups filed briefs on the question last week. 

Texas Scorecard told a version of the parents' story several months before trial, alleging the Texas Department of Family and Protective Services (DFPS) exaggerated the couple's practice of "physically correcting" such as spanking their oldest child, whom Niccum had with an "unknown" father before marrying Lerille.

The Texas Public Policy Foundation, which filed a friend-of-the-court brief, said this is the Texas Supreme Court's first chance to interpret the new constitutional amendment.

It reads: "To enshrine truths that are deeply rooted in this nation's history and traditions, the people of Texas hereby affirm that a parent has the responsibility to nurture and protect the parent's child and the corresponding fundamental right to exercise care, custody, and control of the parent's child, including the right to make decisions concerning the child's upbringing."

Ballotpedia counted official support for the amendment from Christian, homeschooling, pro-life and "vaccine choice" groups. 

When the Texas House approved the amendment last spring, the Texas Home School Coalition told Texas Scorecard that without it, parental rights would remain "found only in case law, which is controlled by judges." The publication noted Colorado lawmakers had recently considered letting judges penalize a parent in custody disputes for misgendering a child.

The Diaz & Wright law firm, which says it "advocate[s] for children against neglectful parents" and often must fight Texas "to ensure it fulfills its legal obligations," opposed the amendment as "largely redundant and performative" in light of the statutory Parents Bill of Rights and the Supreme Court's Troxel parental rights precedent.

Texas brought the intersection of child custody and gender identity into the national spotlight in 2022 when its high court refused to return Jeff Younger's gender-confused son from his ex-wife's custody in California, the first sanctuary state for so-called gender-affirming care.

Two judges claimed the ex was still bound by a Texas court order banning her from unilaterally medically transitioning the boy to resemble a girl. But nearly two years later a Los Angeles judge allegedly authorized the ex to start the 12-year-old on potentially irreversible treatments and cut off Younger's parental rights except with supervision, which he refused.

The Golden State subsequently made plain the consequences of parents refusing to medically transition children, with a recent lawsuit alleging it took a gender-confused girl from her immigrant parents and put them on a child abuse registry, according to Reduxx.

'Disagreement about parenting norms' not enough for 'death penalty' analogue

"Because the consequences are irreversible, a preponderance of the evidence is constitutionally insufficient" for the state to terminate a parent-child relationship, says Lerille's supplemental brief to the Texas Supreme Court, which has called parental termination the "death penalty" of civil cases.

"Clear and convincing evidence is required because it reduces the risk that termination will rest on speculation, prediction, or disagreement with parenting choices," but appellate courts must also determine that "a rational factfinder could have formed a firm belief or conviction," not just find "some evidence" of harm, to permanently sever the relationship, the brief says.

The amendment, now known as Article 37, did not create new rights or "remedy a history of judicial underprotection" but rather "constitutionalized principles that were already embedded in Texas termination jurisprudence" and "assumed in practice," requiring "heightened procedural and substantive safeguards," according to Lerille.

Article 37 "cannot be given operative meaning through open-ended balancing tests that depend on hindsight, subjective moral judgment, or juror disagreement about parenting norms," which is "precisely what occurred here," Lerille also says.

He was severed from his three children with Niccum, but not from her daughter with a different father, despite the fact that DFPS "never alleged – much less proved – that R.L. abused or neglected any of his three biological children."

DFPS simply made a "retrospective judgment that R.L.’s failure to intervene in, report, or leave a household after a single non-injurious disciplinary incident involving a child who was not his own was constitutionally insufficient parenting," the brief says.

(The only place he is identified by name is in Niccum's brief, which spells his surname "Lirille." Texas Scorecard and DFPS both spell it "Lerille," though the latter also calls him "Robbie" and Niccum both "Cama" and "Kama." Each parent has a different lawyer.)

Some of the amendment's language appears to come straight from the Troxel precedent that struck down a "grandparent access statute," whose overbreadth left SCOTUS off the hook from having to decide whether "harm is required before a state’s infringement of the parent’s fundamental right is justified," says the brief for Niccum, who was severed from her oldest child.

It emphasizes that children also have a "liberty interest" against being ripped away from their parents: "One would be hard pressed to explain how this in itself is not a traumatic and life changing event for the children."

Agreeing with Justice Clarence Thomas's Troxel concurrence "that strict scrutiny should be the standard of review" for analyzing state interference with parents' fundamental rights, Niccum said the state termination statute cannot meet that standard, since it includes several bases that don't require harm to a child, such as a parent's two-year prison sentence.

The statute even allows for termination if a child is "exposed to the possibility of harm," as when a parent is found with drugs but there's "no evidence that this event had any impact on the children," Niccum's brief said, noting this happened with Lerille when he was "about a thousand miles away" from the children.

Texas Attorney General Ken Paxton's post-submission brief says the amendment didn't change anything for Lerille and Niccum, who "claim no constitutional infirmity regarding any statute governing the proceedings … did not object to the jury charge" and "raise no issue regarding a constitutional violation in their petitions."

Voters responded like settlers against Mexico in 1835

The new amendment "requires, at minimum, that the state prove its case for termination of parental rights by clear-and-convincing evidence," the Texas Public Policy Foundation's friend-of-the-court brief says.

States are free to exceed SCOTUS on the termination standard, as New Hampshire has done by requiring evidence beyond a reasonable doubt, and Congress has applied the highest standard as well in the Indian Child Welfare Act, TPPF said.

It noted the Texas Supreme Court's 2020 decision that rebuked a trial court for making a late woman's boyfriend a "possessory conservator" of her young daughter along with the girl's biological father, ruling that custody modification orders must still presume "a fit parent …acts in the best interest of his or her child."

The Family Freedom Project told the court that "state overreach" is an "arguably equal" threat to children and families as abuse and neglect, because the government "never lets go voluntarily" when acquiring power.

This case "sits on top of an ever-growing pile of broken families who were unable to effectively counter a heavy-handed government or to reach this court," the brief says, alleging that DFPS treats "parental rights as an abstract idea with little practical limit on state power" judging by its attorney's claim in oral argument that the amendment has little bearing on the case.

"It is the first time in the history of our nation that any People have so clearly and holistically enumerated the God-given rights of parents in the highest law of their land," the brief says regarding the amendment. "But this boundary means nothing if it is not enforced."

The Texas Association of Family Defense Attorneys compared the amendment's approval to the response of settlers in 1835, before Texas joined the United States, to a Mexican government demand to return a loaned cannon: raising a "Come and Take It" flag.

"They did not negotiate, weigh outcomes, or ask whether government policy might be better—they simply insisted that the cannon, already in their possession, could not be taken without justification," and voters last year did the same by determining that "statutes no longer define the outer limits of parental rights," the brief said.

That's why courts "may not treat compliance with a pre-existing statutory scheme as sufficient to justify the permanent extinguishment of a constitutional relationship," TAFDA said.