In re Interest of H.L.S.

643 S.W.3d 453

In the INTEREST OF H.L.S. and W.A.S., Children

NUMBER 13-20-00533-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed March 10, 2022

William L. Sciba III, Cole, Cole, Easley & Sciba, P.C, Victoria, for Appellee.

John F. Carroll, Attorney at Law, San Antonio, Rebecca Galvan, Law Office of Rebecca L Galvan PC, San Antonio, for Appellant.

Before Justices Hinojosa, Tijerina, and Silva

Opinion by Justice Silva

Appellant Rachel appeals the trial court's denial of her motion to unseal the records in appellee Paige's adoption of Harriet and William, children.¹ By three issues, which we construe as two, Rachel argues (1) the trial court abused its discretion by denying her motion to unseal the records because good cause exists; and (2) the trial court erred when it denied the admission of Rachel's non-parent caregiver authorization agreement of the subject children as evidence. We affirm.

I. BACKGROUND

Rachel is the biological maternal grandmother of Harriet and William. Paige was the children's maternal step-great grandmother and Rachel's stepmother. Paige adopted Harriet and William on November 20, 2017. In the adoption decree, the trial court ordered that "[a]ll papers and records in this case, including the minutes of the [trial court], [be] ... sealed."

In November 2019, Rachel, as trustee, brought a suit against Paige and two related businesses.² According to Rachel's petition, in 2013, Paige and her late husband established three trusts, one for each of the children, and one for their biological mother, Diane. One percent ownership of one of the businesses, a limited partnership, was placed into the corpus of each trust. The primary income for the limited partnership was from the mineral interests of several properties owned by the limited partnership. Rachel was appointed the sole trustee of each trust. Rachel asserted the causes of action of common law fraud, fraud by nondisclosure, statutory fraud, and breach of fiduciary duty for falsely reporting income from the mineral interests and failing to disclose certain material facts. Rachel also requested the trial court appoint an auditor to assess the accounts between the parties and the ownership interest in the limited partnership.

In response, Paige filed an original petition in intervention as next friend for Harriet and William, seeking removal of Rachel as the trustee for the trusts for William and Harriet. Paige included various factual assertions in the petition, including allegations that the children were removed from Diane's and Rachel's care by the Texas Department of Family and Protective Services (Department) and that distributions could not be made to the trusts because Rachel "was either incarcerated or nowhere to be found."

On September 28, 2020, Rachel filed a motion in the adoption suit to unseal the adoption records. Rachel argued that she was "a person interested in the subject matter of the adoption" because she is the biological maternal grandmother and trustee for the children and "had the rights and authority of a managing conservator of the children" pursuant to a non-parent caregiver authorization agreement. See TEX. FAM. CODE ANN. §§ 34.0015 –.009 (permitting a parent to enter into an agreement with a non-parent to authorize the non-parent to perform certain acts for and on behalf of the child). Rachel further identified what she construed as errors or omissions in the adoption process and decree and noted that she was not provided notice, by way of service or otherwise, of the adoption.

At a hearing on the motion to unseal the records, Rachel testified that in 2014, Diane executed an "authorization for power of attorney" over the children. Rachel moved to admit a copy of the authorization agreement into evidence, and Paige objected to the document's relevance. Paige argued that the authorization agreement was not relevant because it was terminated as a matter of law upon the entry of an order that relates to the custody or visitation of the children. Rachel responded that the authorization agreement "establishe[d] certain rights and authority of [Rachel] with respect to the children." The trial court sustained Paige's objection.

Rachel testified that she was not aware that Paige was seeking adoption of the children, was not considered as a person to adopt the children, and did not receive formal notice of the adoption proceedings.³ Rachel further testified that the only contact she had with the Department, regarding the children, was seeing the Department the day it removed the children. The trial court admitted into evidence Paige's disclosures from the trust suit which listed two Department employees as persons having knowledge of material facts. Rachel also offered Paige's responses to Rachel's request for production wherein Paige objected to the requests for adoption records. In some responses, Paige stated that she would produce the documents in her possession "[s]ubject to an agreed protective order being entered into by the parties[.]" The supplemental response to the requests for production state: "See information produced hereto pursuant to the Agreed Protective Order." Neither the contents of the agreed protective order nor the items produced were introduced into the record by either party.

On cross examination, Rachel testified that she did not seek to have the children placed with her after they were removed from Diane "[b]ecause [she] was told that [she] could not have any contact with them." Rachel acknowledged that she was "trying to undo the adoption[.]"

In her closing argument, Rachel argued that Paige's objections to Rachel's production requests for adoption records "[was] tantamount ... to an offensive use of the privilege type of situation" where a person makes certain allegations then seeks to withhold the information based on some privilege. Rachel further argued that the family code required the Department to notify any relative of the children within the third degree of consanguinity about the children's removal from their parent. Rachel stated that "she would like to review the [adoption] records and have an opportunity to challenge what occurred."

In her closing argument, Paige recalled Rachel's testimony that the purpose for seeking to unseal the adoption records was to undo the adoption. Paige argued that the Texas Family Code prohibits a direct or collateral attack on the validity of an adoption after six months, and thus Rachel lacked "good cause" to unseal the records. Paige further argued that being a trustee does not present "good cause." Rachel responded that "the right to challenge [an adoption] is not ... dead [at] six months." As an example, Rachel asked: "What about the case of a void order, where there's no notice and there's a constitutional due process issue?" Rachel did not otherwise mention constitutional due process rights or violations.

The trial court denied Rachel's motion by written order on November 9, 2020. This appeal followed.

II. UNSEALING ADOPTION RECORDS

A. Standard of Review

Whether a trial court erred in its determination of whether good cause exists is generally reviewed under an abuse of discretion. Aluminum Co. of Am. v. Bullock , 870 S.W.2d 2, 3 (Tex. 1994) (examining "good cause" analysis for allowing undisclosed expert witness to testify under an abuse of discretion); In re Bordelon , 578 S.W.3d 197, 200 (Tex. App.—Tyler 2019, orig. proceeding) (applying an abuse of discretion standard to the trial court's determination of plaintiff's "good cause" for failing to prosecute a case with diligence); In re Sanchez , 571 S.W.3d 833, 836–37 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding) (applying an abuse of discretion standard to the trial court's determination of "good cause" to compel physical examination of plaintiff under Texas Rule of Civil Procedure 204.1 ); Munoz v. Mo. Pac. R.R. Co. , 823 S.W.2d 766, 768 (Tex. App.—Corpus Christi–Edinburg 1992, no writ) (reviewing the trial court's determination of "good cause" to allow undisclosed witness testimony under an abuse of discretion standard) (citing Yeldell v. Holiday Hills Ret. & Nursing Ctr., Inc. , 701 S.W.2d 243, 246–47 (Tex. 1985) ). Accordingly, we apply an abuse of discretion standard to the trial court's determination of whether good cause exists to unseal adoption records.

"A trial court abuses its discretion when a ‘decision is arbitrary, unreasonable, and without reference to guiding principles.’ " In re A.L.M.-F. , 593 S.W.3d 271, 282 (Tex. 2019) (quoting Mercedes-Benz Credit Corp. v. Rhyne , 925 S.W.2d 664, 666 (Tex. 1996) ). "When reviewing matters reserved for the trial court's discretion, a court of appeals may not substitute its own judgment for that of the trial court." Garrod Invs., Inc. v. Schlegel , 139 S.W.3d 759, 767 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (citing Flores v. Fourth Ct. of Appeals , 777 S.W.2d 38, 41 (Tex. 1989) ).

B. Applicable Law

1. Adoption

In order to fully analyze Rachel's arguments, we must also summarily review the statutes governing adoptions in Texas. A child whose relationship to each living parent has been terminated may be adopted. TEX. FAM. CODE. ANN. § 162.001(b)(1). Subject to the standing requirements set out in Chapter 102, any adult may petition to adopt a child who is eligible for adoption. Id. § 162.001(a) ; see id. § 102.003–.006 (standing provisions to bring suit affecting the parent-child relationship, including adoption). Several requirements to complete an adoption must occur before the trial court may grant the adoption. Id. § 162.002–.011.

Among the requirements is: (1) the preparation and filing of an adoption evaluation, id. § 162.003; (2) the preparation and filing of a health, social, educational, and genetic history (HSEGH) report, id. § 162.005; (3) the filing of the criminal histories of each person seeking adoption, id. § 162.0085; (4) the child must have resided with the petitioners for at least six months,...