Opinion issued December 15, 2022

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-21-00101-CV

———————————

CHRISTINE LENORE STARY, Appellant

V.

BRADY NEAL ETHRIDGE, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Case No. 2020-16834

DISSENTING OPINION

The trial court below entered a lifetime family-violence protective order 

prohibiting appellant Christine Lenore Stary from seeing or communicating with her 

three minor children indefinitely. The indefinite duration of this order prohibiting 
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contact between a parent and her children effectively terminated Stary’s parental 

rights and deprived her of the fundamental liberty interests in the care, custody, and 

control of her children. United States Supreme Court precedent holds that before 

such a deprivation may occur, due process requires the trial court to apply a

heightened standard of proof: clear and convincing evidence. The trial court’s 

implementation of a lifetime protective order against a parent based on facts found 

by a mere preponderance of the evidence violated Stary’s right to due process. 

Because the majority affirms on this issue, I respectfully dissent.

Due process “provides heightened protection against government interference 

with certain fundamental rights and liberty interests.” In re N.G., 577 S.W.3d 230, 

235 (Tex. 2019) (per curiam) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)); 

see U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 19. A parent’s interest in the 

care, custody, and control of her children “is perhaps the oldest of the fundamental 

liberty interests” recognized by the United States Supreme Court. Troxel, 530 U.S. 

at 65; see Stanley v. Illinois, 405 U.S. 645, 651 (1972) (emphasizing “the importance 

of the family” and recognizing that rights to conceive and to raise one’s children are 

“essential,” “basic civil rights of man,” and “(r)ights far more precious . . . than 

property rights”) (citations omitted).

It is well settled that, in a proceeding to terminate parental rights, due process 

requires courts to apply the heightened proof standard of clear and convincing 
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evidence. Santosky v. Kramer, 455 U.S. 745, 747–48 (1982) (holding that clear and 

convincing evidence is required to “sever completely and irrevocably the rights of 

parents in their natural child”); In re N.G., 577 S.W.3d at 235; see also TEX. FAM.

CODE § 161.001(b) (requiring proof by clear and convincing evidence to terminate 

parent-child relationship). Clear and convincing evidence is “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; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

A standard of proof serves to “instruct the factfinder concerning the degree of 

confidence our society thinks he should have in the correctness of factual 

conclusions for a particular type of adjudication.” Santosky, 455 U.S. at 754–55 

(quoting Addington v. Texas, 441 U.S. 418, 423 (1979)). The preponderance of the 

evidence standard, which the trial court applied here, “indicates both society’s 

‘minimal concern with the outcome,’ and a conclusion that the litigants should ‘share 

the risk of error in roughly equal fashion.’” Id. at 755 (quoting Addington, 441 U.S. 

at 423).

The heightened standard of clear and convincing evidence, by contrast, is 

generally applied “when the individual interests at stake in a state proceeding are 

both ‘particularly important’ and ‘more substantial than mere loss of money.’” Id. at 

756 (quoting Addington, 441 U.S. at 424). This heightened standard of proof 
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provides a level of certainty “necessary to preserve fundamental fairness” in 

proceedings that threaten “a significant deprivation of liberty” or “stigma,” such as 

loss of parental rights. Id. (quoting Addington, 441 U.S. at 425, 426). “In parental 

rights termination proceedings, the private interest affected is commanding; the risk 

of error from using a preponderance standard is substantial; and the countervailing 

governmental interest favoring that standard is comparatively slight.” Id. at 758

(balancing due process factors). Thus, due process requires clear and convincing 

evidence before a parent may be deprived of her fundamental liberty interest in the 

care, custody, and control of her children.

The Family Code authorizes a court to enter a protective order if it finds that 

family violence has occurred and is likely to occur in the future. TEX. FAM. CODE 

§§ 81.001, 85.001(b). Generally, a family-violence protective order is effective for 

up to two years. Id. § 85.025(a). However, a court may enter a protective order for a 

period exceeding two years if the court finds, among other things, that the person 

who is the subject of the protective order “committed an act constituting a felony 

offense involving family violence against the applicant or a member of the 

applicant’s family or household, regardless of whether the person has been charged 

with or convicted of the offense.” Id. § 85.025(a-1)(1). Protective orders are civil in 

nature, and therefore the preponderance of the evidence standard of proof typically 
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applies. See Roper v. Jolliffe, 493 S.W.3d 624, 638 (Tex. App.—Dallas 2015, pet. 

denied).

The protective order in this case included a finding that Stary’s conduct 

“against at least one of the minor children for whom the suit was filed would be a 

felony if charged[.]” See TEX. FAM. CODE § 85.025(a-1)(1). Based on this finding, 

the order stated that it was effective for a “permanent duration” subject to either 

appellee Brady Ethridge or the children filing a motion to vacate or modify the order. 

Cf. id. § 85.025(b) (authorizing person who is subject of protective order to file 

motion requesting that court review and determine whether continuing need exists 

for protective order). Among other things, the protective order prohibited Stary from 

directly communicating with her children; going near their residence, schools, or any 

place they are known to be; and “engaging in conduct directed specifically toward” 

the children. See id. § 85.022(b) (providing list of actions in which court may 

prohibit subject of protective order from engaging); Rodriguez v. Doe, 614 S.W.3d 

380, 385–86 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (concluding that 

section 85.022(b) is not exhaustive list). Stary argues that the order “essentially 

terminated [her] parental rights” without affording her due process. I agree.

Although the protective order does not expressly state expressly that it 

terminated Stary’s parental rights, the order indefinitely prohibits her from seeing or 

communicating with her children or, even more broadly, “engaging in conduct 
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directed specifically toward” the children. See In re D.T., 625 S.W.3d 62, 69 (Tex. 

2021) (recognizing “fundamental nature of the parental right to make child-rearing 

decisions”). The indefinite duration of the order prohibits all meaningful contact 

between Stary and her children—forever. Indeed, the trial court’s order is even more 

extreme than a termination of parental rights, as termination orders do not bar a 

parent from contacting or directing activity toward the child once the child reaches 

the age of majority.

The breadth of the order deprived Stary of her fundamental liberty interest in 

the care, custody, and control of her children even though the deprivation was 

accomplished in a protective order proceeding rather than a parental termination 

proceeding. See Troxel, 530 U.S. at 62–66; Stanley, 405 U.S. at 651; In re N.G., 577 

S.W.3d at 235. At stake in the proceeding was Stary’s interests in seeing, 

communicating with, and having a relationship with her children. These interests are 

particularly important and more substantial than the mere loss of money; Stary faced 

“a significant deprivation of liberty.” See Santosky, 455 U.S. at 756; Addington, 441 

U.S. at 424, 425. Fundamental fairness required the trial court to apply the 

heightened standard of proof by clear and convincing evidence before it could 

deprive Stary of her fundamental liberty interest. See Santosky, 455 U.S. at 756; In 

re N.G., 577 S.W.3d at 235; In re G.M., 596 S.W.2d 846, 846–47 (Tex. 1980)
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(“[A]ctions which break the ties between a parent and a child are unjustifiable 

without the most solid and substantial reasons.”).

To be sure, there are some differences between a parental termination 

proceeding and a family-violence protective order proceeding. For example, a 

parental termination proceeding “is complete, final, and irrevocable” and “divests 

forever the parent and child of all legal rights, privileges, duties, and powers between 

each other except for the child’s right to inherit.” In re G.M., 596 S.W.2d at 846; see 

TEX. FAM. CODE § 161.206(b). Under limited circumstances, however, a former 

parent whose parental rights have been terminated may file a petition to reinstate 

those rights. TEX. FAM. CODE § 161.302(a)(4), (b) (stating that former parent whose 

rights were involuntarily terminated may file petition to reinstate rights only if 

termination of parental rights resulted from suit filed by state, at least two years have 

passed since rights were terminated and appeal is not pending, child has not been 

adopted and is not subject of adoption placement agreement, and petitioner has 

provided statutory notice). Similarly, the subject of a protective order can file a 

motion “requesting that the court review the protective order and determine whether 

there is a continuing need for the order.” Id. § 85.025(b). If the protective order is 

effective for more than two years, the parent is limited to two motions for review, 

and if both motions are denied, the protective order remains in effect until its stated 

expiration date—potentially forever, as in this case. Id. § 85.025(b-1), (b-2).
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These minor distinctions do not merit a different standard of proof in a case 

like this, where the protective order indefinitely prohibits any meaningful contact 

between Stary and her children. Although Stary may request that the issuing court 

review whether a continuing need exists for the protective order, a person whose 

parental rights have been terminated may also seek reinstatement of those rights in 

some circumstances. See id. §§ 85.025(b), 161.302(a)(4), (b). There is no guarantee 

that the protective order will be vacated or that the trial court will apply a clear and 

convincing evidence standard of proof to the determination of whether a continuing 

need exists for the order. In short, there is no significant difference between the 

permanency and irrevocability of the lifetime protective order entered in this case

and a parental termination order. Stary was denied the constitutional safeguard of a 

heightened standard of proof. A protective order should not be used to end run 

parental termination proceedings and skirt the due process guarantees afforded to 

those proceedings.

The majority has not identified any case in which an appellate court has 

upheld a lifetime protective order against a custodial parent based on facts found by 

a mere preponderance of the evidence. Two of our sister courts of appeals have 

rejected parents’ contentions that due process requires a heightened burden of proof 

in family-violence protective order proceedings, but neither of those opinions 

expressly addressed a permanent or lifetime protective order against a parent. See 
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Jovel v. Blanco, No. 14-20-00638-CV, 2022 WL 220251, at *5 (Tex. App.—

Houston [14th Dist.] Jan. 25, 2022, no pet.) (mem. op.) (rejecting, in dicta, parent’s 

claim that protective order effective for ten years should be subject to heightened 

burden of proof); Turner v. Roberson, No. 05-11-01272-CV, 2013 WL 2152636, at 

*3–4 (Tex. App.—Dallas May 17, 2013, no pet.) (mem. op.) (concluding that 

protective order did not terminate parent’s parental rights, but not stating length of 

protective order).

Outside of the parent-child context, courts have concluded that protective 

orders need not be supported by clear and convincing evidence. See Roper, 493 

S.W.3d at 638 (rejecting estranged boyfriend’s contention that due process requires 

clear and convincing evidence to support protective order); Caballero v. Caballero, 

No. 14-16-00513-CV, 2017 WL 6374724, at *5 (Tex. App.—Houston [14th Dist.] 

Dec. 14, 2017, no pet.) (mem. op.) (rejecting ex-husband’s argument that due 

process required heightened standard of proof in protective order proceeding for 

protection of ex-wife, with whom ex-husband had no children, because protective 

order “does not directly infringe on appellant’s parental rights”). These cases do not, 

however, address a lifetime protective order indefinitely prohibiting contact between 

parent and child.

In this case, Stary’s interests at stake were particularly important considering 

she faced a significant deprivation of her liberty—the indefinite loss of any 
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meaningful contact or relationship with her children—a deprivation which 

ultimately occurred. See Santosky, 455 U.S. at 756. In cases involving fundamental

rights such as this one, the minimum function of a standard of proof is to reflect the

value society places on the right. See id. Fundamental fairness required the level of 

certainty inherent in the intermediate standard of clear and convincing evidence. Id. 

at 755–56. A limited opportunity to later seek review of a continuing need for a 

lifetime protective order does not make a fundamentally unfair proceeding comport 

with due process.

To be clear, this dissent does not condone a heightened standard of clear and 

convincing evidence in all family-violence protective order proceedings seeking to 

prohibit all contact or communication between a parent and child for more than two 

years. I would simply hold that due process does not permit a trial court to effectively 

terminate a parent’s rights by issuing a permanent protective order barring all contact 

with the child based on facts found by a preponderance of the evidence. The majority 

errs by affirming. I respectfully dissent.

April L. Farris

Justice

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

Justice Farris, dissenting.