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In Re T.P.S., A Minor Child, and In Re K.M.S., A Minor Child v. Catherine D.W

June 20, 2011

IN RE T.P.S., A MINOR CHILD, AND IN RE K.M.S., A MINOR CHILD DEANNA C.S., PETITIONER-APPELLEE,
v.
CATHERINE D.W.,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Williamson County. Nos. 06-P-41 & 09-P-39 Honorable Brian D. Lewis, Judge, presiding.

The opinion of the court was delivered by: Presiding Justice Chapman

Rule 23 order filed May 11, 2011;

Motion to publish granted June 20, 2011.

PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

Justices Spomer and Wexstten concurred in the judgment and opinion.

OPINION

The parties were involved in a long-term same-sex relationship, during which the petitioner, Deanna C.S. (Dee), gave birth to two children. The respondent, Catherine D.W. (Cathy), became the coguardian of each child pursuant to a guardianship set up for each child shortly after the birth of each. After the parties ended their relationship, Dee sought to terminate the guardianships. The trial court found that Cathy lacked standing to oppose Dee's petitions to terminate because she was not the children's biological or adoptive parent. She now appeals, arguing that (1) Dee waived any objection she might have to Cathy's standing and (2) the court's ruling was in error. We reverse and remand for further proceedings.

Dee is the biological mother of both of the children involved in this dispute. Both children were conceived by artificial insemination. T.P.S., the older child, was born on January 16, 2006. Shortly thereafter, the parties jointly filed a petition to establish a guardianship for T.P.S. They asked that they be appointed as coguardians of T.P.S. The petition alleged, among other things, that the two women already shared in T.P.S.'s daily care and that they both provided for his financial needs. A court-appointed guardian ad litem recommended that the court grant the petition. She stated in her report that Cathy and Dee had been in a "lengthy relationship" and had lived together for five years and that both cared for and loved T.P.S. The court granted the petition and named Cathy and Dee as T.P.S.'s coguardians on September 13, 2006.

K.M.S. was born on October 21, 2008. On March 27, 2009, Dee and Cathy filed a joint petition to establish a guardianship for her, again requesting that Cathy be appointed as a coguardian. Again, a court-appointed guardian ad litem recommended granting the petition. In her report, she stated that the two women shared a home and shared in the care of K.M.S. She further noted that Cathy was the primary caregiver for the children during the week. She went on to state that the "parties want to ensure that [Cathy] will be able to access medical care for [K.M.S.]" and that "Cathy would have legal rights to continue caring for [K.M.S.] if something were to happen to Dee." The court granted the petition and appointed Cathy and Dee as coguardians on June 23, 2009.

In September 2009, the parties ended their relationship. On July 21, 2010, Dee filed petitions to terminate both guardianships. She alleged that (1) she is the biological mother of each child, (2) the two parties no longer reside at the same address, and (3) she no longer believes that it is in the best interests of the children for Cathy to serve as a coguardian. On August 9, Cathy filed responses to Dee's petitions, in which she alleged that she had lived with and cared for the children for their entire lives and denied that terminating the guardianships would be in their best interests.

On August 31, 2010, the court held a hearing on the petition. Dee argued that under the superior-rights doctrine, she, as the children's biological parent, had superior rights "over any third parties" to make decisions regarding custody and visitation. She further argued that "the issue should end there and that the court should terminate the guardianship simply because [Cathy] has no other third party standing."

Cathy argued that the superior-rights doctrine is a presumption but is not absolute. She noted that once a guardianship has been established, a biological parent seeking to terminate the guardianship must show that a substantial change in circumstances has occurred and the court must consider whether terminating the guardianship is in the children's best interests.

Cathy then began to outline the evidence she would present relating to the children's best interests. At this point, the court asked, "Where is the standing under the statute?" In response, Cathy contended that she had standing by virtue of having been appointed as the children's coguardian. ...


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