Ken Paxton and his familyTexas Attorney General Paxton Recognizes Parental Rights are Protected by Strict Scrutiny

How do you know that our constitutional parental rights teachings have had an impact, take a look at what the Attorney General Ken Paxton wrote in response to Rep. James White on February 22, 2019. On November 27, 2018, Rep. White made a request for an opinion to the AG’s office, RQ-0258-KP. In Paxton’s response, he says that “all courts” are supposed to be applying strict scrutiny for parental rights when “a state statute infringes upon a fundamental liberty right protected under the Due Process Clause of the Fourteenth Amendment. See, e.g., Reno, 507 U.S. at 302 (explaining that the Due Process Clause “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest”).” Sound familiar? It should, we published this in our book “NOT in The Child’s Best Interest” way back in May of 2013. The AG admits that parental rights are fundamental and that they require certain protections. Paxton also says that “the State may not “infringe on the fundamental rights of parents to make child rearing decisions simply because a state judge believes a ‘better decision’ could be made.” In re Derzapf, 219 S.W.3d 327,333 (Tex. 2007) (quoting Troxel, 530 U.S. at 72-73).”

I remember years ago when attorneys were telling us that family courts didn’t use strict scrutiny, they acted confused, and acted like they didn’t know what strict scrutiny was. Attorneys were saying that family courts didn’t apply these things, and that they only applied best interest. My how quickly things will change when enough parents learn their rights. I don’t know of anyone else that was pushing strict scrutiny, narrowly tailored, and compelling state interest, like Ron B Palmer.

Also interesting is that just last year the Attorney General argued that Troxel was a grandparents case and did not apply in a two-parent SAPCR suit. I guess Paxton changed his mind. Now he says that The U.S. Supreme Court’s 2000 opinion Troxel v. Granville contains the most recent expansive discussion of fundamental parental rights. 530 U.S. at 63. The way Paxton uses Troxel here is exactly how we use it in our book published in 2013, “NOT in the Child’s Best Interest.”

Does this mean you don’t need to learn your rights anymore and that the courts are going to respect your parental rights and give you equal time with your child? Hardly. Attorney General opinions do not change the law and are not fact specific. But they can be persuasive. “An attorney general opinion is a written interpretation of existing law. Attorney general opinions cannot create new provisions in the law or correct unintended, undesirable effects of the law. Attorney general opinions do not necessarily reflect the attorney general’s personal views, nor does the attorney general in any way “rule” on what the law should say. Furthermore, attorney general opinions cannot resolve factual disputes.” (From AG website General information on AG opinions. You can read who can request an opinion on the AG page.)

There is a lot that the AG leaves out of his letter but you can find it in our books and online courses in our membership site.

What did Rep. White ask the AG?

Rep. White asked the AG:

What “elements, factors, or standards” courts consider or apply “when balancing the rights of the state against the fundamental rights of parents to raise their child free from government intrusion.”

What does the Attorney General Paxton Say about Parental Rights?

On February 22, 2019, the Attorney General responded with the following in a letter called Opinion No. KP-0241.

The text of that letter is as follows:

Re: Standards courts apply when balancing the
rights of the State against the fundamental rights
of parents to raise their children free from
government intrusion (RQ-0258-KP)

Dear Representative White:

You seek an opinion regarding the “elements, factors, or standards” courts consider or
apply “when balancing the rights of the state against the fundamental rights of parents to raise their
child free from government intrusion.”1 To address the standards courts apply in balancing those
rights, it is first necessary to understand the basis for fundamental parental rights and the scope of
those rights.

I. The Due Process Clause of the Fourteenth Amendment protects fundamental
parental rights.

Courts have long held that “the natural right existing between parents and their children is
of constitutional dimensions.” In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio
2003, no pet.); Wiley v. Sprat/an, 543 S.W.2d 349, 352 (Tex. 1976). As the U.S. Supreme Court
recognized almost a century ag_o, “[t]he child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize and pr~pare him
for additional obligations.” Pierce v. Soc ‘.Y o_fSisters, 268 U.S. 510, 535 ,(1925). Consistent with
this recognition, the Court has held that the interest parents possess with regard to their children is
a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
Troxel v. Granville, 530 U.S. 57, 65 (200’0).

The Due Process Clause provides that no State shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV,§ 1. In addition to guaranteeing
fair process, the Court has held that this Clause includes a substantive component that forbids the
government from infringing upon “certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest.” Reno v. Flores, 507 U.S. 292, 301-02 (1993). The Court has long held that among the
fundamental rights protected by the Due Process Clause are certain fundamental parental rights.

Troxel, 530 U.S. at 65; Pierce, 268 U.S. at 534-35; Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(“liberty” includes the right of the individual to “establish a home and bring up children”). Over
time, the Court has identified several contexts in which these fundamental parental rights apply.

a. Due Process protects the right of parents to make decisions regarding the
care, custody, and control of their children.

The Due Process Clause “protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 66. In Troxel, the
Court held unconstitutional a state statute authorizing a court to grant visitation rights to any
person, even over the objection of a fit parent. Id. at 72-73. Noting that the statute placed the
best-interest-of-the-child determination solely in the hands of the judge, the Court concluded Jhat ··
it unconstitutionally infringed on the right of parents to make decisions about the care, custody,
and control of their children. Id.; see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It
is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder.”).

b. Due Process protects the right of parents to direct the upbringing and
education of their children.

In conjunction with the right to make decisions about the care, custody, and control of their
children, the Due Process Clause guarantees the right o,f “parents and guardians to
The Honorable James White – Page 3 (KP-0241)
that parents can and must make judgments about children’s need for medical care and treatment.
Id. at 603.

d. Due Process, coupled with the First Amendment, protects the right of
parents to guide the religious training and education of their children.

In conjunction with the First Amendment, the Due Process Clause protects the right of
parents “to guide the religious future and education of their children.” Wisconsin v. Yoder, 406
U.S. 205, 232 (1972). Wisconsin v. Yoder addressed a challenge to a compulsory education law,
which required school attendance until age 16, by Amish parents who objected to formal education
beyond the eighth grade. Id. at 207-11. Recognizing that the parents’ objections were firmly
grounded in their religious beliefs, and that compulsory high school education could significantly
alter the religious future of their children, the Court held that the First and Fourteenth Amendments
“prevent the State from compelling respondents to cause their children to att_end formal high school
to age 16.” Id at 234. In doing so, the Court emphasized that the “primary role of the parents in
the upbringing of their children is now established beyond debate as an enduring American
tradition.” Id. at 232.

II. As a general matter, Courts apply strict scrutiny to review state statutes that
infringe upon fundamental parental rights.

You ask generally about the standards courts will apply in adjudicating cases in which
parental rights are at issue, but you do not target a specific context in which those rights are
impacted. See Request Letter at 1. What elements, factors, or standards a court will use in
balancing state interests against the fundamental rights of parents will depend on the context in
which the balancing of interests arises.2 However, we can provide guidance on the general
standard courts use to balance these interests and then discuss certain contexts where courts may
apply additional standards.

The U.S. Supreme Court’s 2000 opinion Troxel v. Granville contains the most recent
expansive discussion of fundamental parental rights. 530 U.S. at 63. In Troxel, the Court held
unconstitutional a Washington statute that allowed any person to petition for visitation rights at
any time if it was in the best interests of the children. Id. Overturning the decision to grant a
grandparent access to a child over the objection of the parent, the Court emphasized that if a parent
“adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State
to inject itself into the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69. But the
plurality opinion in Troxel did not articulate a standard of review for addressing fundamental
parental rights. See id. at 80 (Thomas, J., concurring) (noting that the plurality and other
concurring opinions do not state the appropriate standard of review and suggesting strict scrutiny should apply);

In the Interest of HS., 550 S.W.3d at 175 (Blacklock, J., dissenting) (“[The U.S.]
Supreme Court … has not articulated a standard of review by which to judge the constitutionality
of infringements upon parents’ rights.”).

Nevertheless, both federal and state courts generally apply strict scrutiny if a state statute
infringes upon a fundamental liberty right protected under the Due Process Clause of the
Fourteenth Amendment. See, e.g., Reno, 507 U.S. at 302 (explaining that the Due Process Clause
“forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest”); Holley v. Adams, 544 S.W.2d 367,370 (Tex. 1976) (recognizing that because the case
involved the right of the parent to surround the child with proper influences, the case was “strictly
scrutinized”). “Strict scrutiny” requires the “Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, 135
S. Ct. 2218, 2231 (2015); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(recognizing that the Due Process Clause forbids the government from infringing upon a
fundamental liberty interest “unless the infringement is narrowly tailored to serve a compelling
state interest”).

Consistent with this applicable standard of review, Texas courts and this office recognize
that “state statutes that infringe upon a parent’s right to control the care and custody of his or her
children are subject to strict scrutiny.” Tex. Att’y Gen. Op. No. GA-0260 (2004) at 5; see also
In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio 2003, no pet.). In re Pensom
addressed,the constitutionality of Texas’s grandparent visitation statute in light of Troxel. 126
S.W.3d at 253-54. Recognizing that the statute implicated the fundamental liberty interest of
parents in the care, custody, and control of their children, the court underscored the appropriate
standard of review: “Because a fundamental right is implicated here, we apply strict scrutiny and
will uphold the statute if it is narrowly tailored to serve a compelling government interest.” Id. at
254.

III. Certain contexts regarding child custody determinations may warrant the
application of additional standards.

While strict scrutiny will apply in any instance when a state statute infringes upon a
fundamental parental right, in the context of making custody adjustments or determinations, courts
have adopted additional standards that they utilize when applicable.

a. When a court resolves disputes concerning conservatorship and possession
of a child, the court bases those decisions on the best interest of the child.

While parents are presumed to act in the best interest of their children, in situations
involving divorce parents may have differing opinions regarding what is best for the children. In
addressing child custody disputes between parents or in instances of abuse and neglect of a child,
the Legislature has established the standard by which courts must resolve those disputes: “The best
interest of the child shall always be the primary consideration of the court in determining the issues
of conservatorship and possession of and access to the child.” TEX. FAM. CODE§ 153.002. The
The Honorable James White – Page 5 (KP-0241)
Texas Supreme Court provided a non-exhaustive list of factors to consider in ascertaining the best
interest of the child, including:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest
of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parentchild relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 372 (footnotes omitted); see also Reno, 507 U.S. at 303-04 (‘”The best
interests of the child’ … is a proper and feasible-criterion for making the decision as to which of
two parents will be accorded custody.”).

b. Before permanently severing parental rights, the State must provide clear
and convincing evidence thatthe termination is warranted.

Both federal and Texas courts have held that the Due Process Clause requires a heightened
evidentiary standard before permanently terminating parental rights. “Before a State may sever
completely and irrevocably the rights of parents in their natural child, due process requires that the
State support its allegations [that support termination] by at least clear and convincing evidence.”
Santosky v. Kramer, 455 U.S. 745, 747-48 (1982); see also In Interest ofG.M, 596 S.W.2d 846,
84 7 (Tex. 1980) (requiring clear and convincing evidence standard of proof “in all proceedings for
involuntary termination of the parent-child relationship”). The Legislature defines “clear and
convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX.
FAM. CODE § 101.007. Consistent with the U.S. Supreme Court case law, the Legislature
incorporated the clear and convincing evidence standard into the Family Code procedures
addressing termination of the parent-child relationship. See, e.g., id. §§ 161.00l(b), .003(a)(2),
.206( a)-( a-1 ).

c. Courts presume that fit parents act in the best interests of their children.

In evaluating parent-child relationships before making decisions about access to the child,
courts presume “that fit parents act in the best interests of their children” and refrain from imposing
their own judgments in lieu of a fit parent’s decision regarding what is in the best interest of the
child. Troxel, 530 U.S. at 68. “The law’s concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for judgment required for making
life’s difficult decisions.” Parham, 442 U.S. at 602. “More important, historically it has
recognized that natural bonds of affection lead parents to act in the best interests of their children.”
Id. Due to this presumption, the State may not “infringe on the fundamental rights of parents to
make child rearing decisions simply because a state judge believes a ‘better decision’ could be
made.” In re Derzapf, 219 S.W.3d 327,333 (Tex. 2007) (quoting Troxel, 530 U.S. at 72-73). So
long as a parent is fit, “there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69; see also In re Scheller,
325 S.W.3d 640,642 (Tex. 2010).

Parental rights issues arise in many different contexts, and diverse scenarios regularly occur
that require courts to evaluate those rights and balance them against the interests of the State in
new settings. While we do not attempt to anticipate every context a court will consider, or provide
an exhaustive list of the elements, factors, or standards that courts will apply in all settings, the
standards and presumptions discussed herein reveal how courts give fundamental parental rights
expansive protection under the Due Process Clause ..

SUMMARY

The Due Process Clause of the Fourteenth Amendment
protects certain fundamental parental rights, including the right of
parents to make decisions concerning the care, custody, and control
of their children, to direct the upbringing and education of their
children, the right to make medical decisions on behalf of their
children, and, in conjunction with the First Amendment, to guide the
religious future and education of their children.

Courts review governmental infringements on fundamental
rights protected by the Due Process Clause under strict scrutiny,
requiring that the statute serve a compelling state interest and be
narrowly tailored to achieve that interest.

In addressing child custody disputes between parents or in
instances of abuse and neglect, .. of a child, the Legislature has
established the standard by which courts must resolve those
disputes. Pursuant to section 153.002 of the Family Code, the best
interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of
and access to the child.

A court may not permanently and irrevocably terminate
parental rights absent clear and convincing evidence of the
allegations supporting the termination.

In evaluating parent-child relationships before making
decisions about access to the child, courts presume that fit parents
act in the best interests of their children and refrain from imposing
their own judgments in lieu of a fit parent’s decision regarding what
is in the best interest of the child.

Very truly yours,
KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

 

Footnotes:

1. Letter from Honorable James White, Chair, House Comm. on Corrections, to Honorable Ken Paxton, Tex. Att’y Gen. at 1 (Nov. 27, 2018) (“Request Letter”), https://www2.texasattorneygeneral.gov/opinion/requests-foropinions-rqs.

2. As your question recognizes, the fundamental rights of parents regarding their children are not absolute.
Request Letter at 1. “Parental rights are fundamental, but neither the Texas Family Code nor the Constitution treats
them as plenary and unchecked.” In the Interest of H.S., 550 S.W.3d 151, 163 (Tex. 2018). “[A] state is not without
constitutional control over parental discretion in dealing with children when their physical or mental health is
jeopardized.” Parham, 442 U.S. at 603. However, while not absolute, parental rights are still fundamental and
accorded significant protections, as the standards discussed infra reveal.