In re R.G.S.

1

IN THE INTERST OF R.G.S.

No. 09-23-00308-CV

Court of Appeals of Texas, Ninth District, Beaumont

December 5, 2024

Submitted on August 14, 2024

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 21-10-14495-CV

Before Golemon, C.J., Johnson and Chambers, JJ.

MEMORANDUM OPINION

KENT CHAMBERS, JUSTICE

Jennifer Detillier ("Jennifer") appeals the trial court's order denying her Petition for Adoption of R.G S.^{[1] [2]} First, Jennifer argues that the trial court erred as a matter of law in failing to waive the requirement that R.G.S.'s managing conservator consent to the adoption, and that R.G.S.'s managing conservator is estopped from denying Jennifer's parentage. Second, Jennifer argues she has standing to bring suit to adopt R. G. S. Third, she argues the res judicata does not bar the adoption despite a previous divorce decree between the parties. Finally, Jennifer argues she was not required to prove Appellee is an unfit parent in order to prevail in her adoption claim. For the reasons below, we affirm.

Background

Amber Smith ("Amber") and Jennifer married in July 2015. In 2016, Amber and Jennifer signed an agreement with Pacific Reproductive Services pursuant to which Amber underwent a reproductive procedure using a Pacific donor's sperm, and in 2017, Amber gave birth to R. G. S.^[3] In October 2020, Amber filed for divorce, identifying R.G.S. as a child born of the marriage.^[4] On April 26, 2021, the parties appeared before the trial court to finalize their divorce/SAP CR in accordance with a Mediated Settlement Agreement ("MSA"), one of the terms of which was that Jennifer was to be adjudicated as a parent of R.G.S. Ten days prior to the hearing, the trial court had asked the attorneys to provide briefing on the issue of whether the court had the ability "to adjudicate a second mom." Prior to the hearing, Jennifer filed a First Amended Original Counter petition wherein she asked the court to adjudicate parentage based on Texas Family Code section 160.106 and a case from our sister court, Treto v. Treto, 622 S.W.3d 397 (Tex. App.-Corpus Christi 2020, no pet.) (construing Pavan v. Smith, 582 U.S. 563 (2017) to provide "the ancillary benefits of a same-sex marriage, including the determination of maternity for the non-gestational spouse of a child born to the marriage"); see also Tex. Fam. Code Ann. § 160.106.

At the April 26, 2021 hearing, after questioning the attorneys about whether there was legal authority indicating the trial court could adjudicate Jennifer as a parent, the trial court put the case "on hold" and instructed the attorneys to "talk and decide what you are asking me to do today." When the court went back on the record, it noted that it had been presented a proposed Agreed Final Decree of Divorce which had been filed at 10:37 that morning, and which had been signed by both attorneys and both parties. Jennifer and Amber both testified at the hearing. Jennifer provided testimony regarding her actual care, control, and possession of R.G.S. during her marriage to Amber, and requested that she be named a non-parent conservator if the trial court decided not to adjudicate her as a parent of R.G.S.

At the conclusion of the hearing, the trial court announced its rulings, including, "I do find [Jennifer] to have standing pursuant 102.003, Subsection 9.1 am confirming [Amber] as the mother of the child. I am not adjudicating [Jennifer] as a parent of the child." The trial court also announced it was approving the remainder of the parties' agreements pursuant to the MSA and that it was signing the proposed divorce decree that had been filed that morning. Jennifer did not object. Consistent with the trial court's pronouncement, the Agreed Final Decree of Divorce includes the following language which is relevant to the issues in this appeal:

Child of the Marriage

The Court finds that [Amber] is the parent of the following child:

Name: [R.G.S.]

....

The Court finds no other children of the marriage are expected.

Standing

The Court finds that JENNIFER [] has standing to bring a Suit Affecting the Parent-Child Relationship regarding the child pursuant to Section 102.003(9) of the Texas Family Code.

[•••]

Relief Not Granted

IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes necessary to enforce this judgment issue. This judgment finally disposes of all claims and all parties and is appealable.

On the last page of the decree, Jennifer's and Amber's signatures appear under the following language: "APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE." Jennifer did not file a motion for new trial, nor an appeal.

Nearly six months later, in October 2021, Jennifer instituted this action by filing an Original Petition for Adoption of a Child; or in the Alternative, Original Petition to Adjudicate Parentage.^[5] The trial court severed the claim for parentage from the action for adoption and signed an order for a child custody evaluation to be conducted in the adoption case.

In September 2023, the trial court held an evidentiary hearing on Jennifer's Petition for Adoption. At the hearing, Jennifer, Amber, and the court appointed child custody evaluator testified. Dr. Kit Harrison testified that he was assigned as the child custody evaluator and was to perform an adoption study. Dr. Harrison testified that he interviewed Jennifer, Amber, R.G.S., and Jennifer's and Amber's significant others. He also conducted home studies of both parties, psychological testing and interviewed "collateral sources[,]" such as R.G.S.'s therapist. A copy of his evaluation was admitted into evidence. According to Harrison, Jennifer wants "validation" that she is R. G. S.'s primary parent. Harrison testified that R.G.S. views Jennifer "a primary parent [,]" that they have a "very normal relationship [,]" Jennifer is a very active participant in R.G.S.'s life, and that she is meeting the emotional, social, and physical needs of R.G. S. He noted that he had concerns in his report that Amber may be attempting to minimize or cancel Jennifer's relationship with R.GS., but that it has not occurred yet. He called both Jennifer and Amber "terrific[,]" and noted that R.G.S. is doing well with both parties. He testified that R.G.S. is very bonded to each caregiver, has no psychological issues, and that R.G.S. views Jennifer as her parent. He testified that making important decisions is difficult for Amber and Jennifer. He believes that Jennifer needs "guaranteed access, possession, and decision-making roles [.]" He noted that this is the current arrangement between the parties, and if the current orders would stay in place, R.G.S.'s needs would be met, and it would be in her best interest. According to Harrison, if Amber attempted to alienate Jennifer from R.G.S. or "cancel" her parenting role, it would be "both physically and emotionally" harmful to R.G.S. Harrison believes it would be in the best interest of R.G.S. for Jennifer to have "[guaranteed access, possession and decision making roles [.]" He also agreed that if the current child conservator orders were to remain in place, R.G.S.'s best interest and needs are being taken care of.

Jennifer testified that she and Amber intended both parties to be the child's parent. Jennifer and Amber lived together as a family unit after R.G. S. was born until they separated in 2020. She said before the separation, there was no questions that they were a family and R. G. S. was her child. Jennifer described her background and her concerns if she was not able to adopt R.G.S. She stated that she does not understand why Amber is challenging the adoption, and that she is concerned, if she does not adopt R.G.S. Jennifer discussed her bond and attachment with R.G.S. and that she has no reason why Amber would justify not allowing her to adopt R.G.S. She stated that Amber has told her "I don't respect the fact that she doesn't want me to have that relationship to [R.G.S.] and I don't know what that means."R.G.S. has told her she is not allowed to call her "mom[.]" Jennifer testified there have been times she has involved the police because "[Amber's] not following the divorce decree." According to Jennifer, Amber has not followed the divorce decree by "not letting me talk to [R. G. S. ], not letting me attend [R. G. S. 's] activities, things like that, not discussing before making decisions." Jennifer described conflicts between her and Amber about passports, education, and extra curriculars and acknowledged they have difficulty making shared major decisions about R.G.S. She also testified that Amber has "consistently refused to allow her to adopt R.G.S going back to when they were together as a couple. She believes the adoption is in R.G.S.'s best interest.

Amber testified she has not consented to Jennifer adopting R.G S and that she does not believe the adoption is in her child's best interest. She denied trying to reduce Jennifer's relationship with R.G.S. She described her relationship with Jennifer as difficult and negative, explaining it is hard to make decisions, and that there "is always drama, [and] back and forth texts." Amber testified that she does not consent to Jennifer adopting R.G.S. and that she does not believe it is in her child's best interest. She testified they struggle to make decisions about education, visitation, and passports. Amber agreed that she signed a gestational agreement in which she agreed that both she and Jennifer would be legal parents to R.G.S. She also agreed for Jennifer to be listed on R.G. S. 's birth certificate and at the time of her birth, she intended for her and Jennifer to be...