Fundamental Right of Parents

family-2432966_1280.jpg

Parents have the fundamental right to make decisions regarding the care, custody, and control of their children. The United States Supreme Court recognized a parent’s liberty interest, perhaps one of the oldest, in its decision in Troxel v. Granville [530 U.S. 57 (2000)], a case which struck down a Washington statute granting visitation rights to any person when such visitation was in the best interest of the child. The Court held that the statute unconstitutionally interfered with the parents’ rights to raise their children. In Troxel, the Court applied the presumption that a fit parent necessarily will act in the best interest of the child, and in such case, there would be no need for the state to interfere.

This presumption is at the forefront of a recent case decided by the Texas Supreme Court, In Re C.J.C., a matter involving the modification of a child custody order. The father filed a motion to dismiss the modification proceeding that was filed prior to the death of the child’s mother. The child’s grandparents petitioned to intervene, requesting that they be named joint managing conservators. The mother’s partner with whom she had been living at the time of her death also intervened, seeking the same relief as the grandparents as well as court-ordered visitation. The trial court issued temporary orders naming the mother’s partner a possessory conservator. The father filed a petition for a writ of mandamus, which the appellate court denied. The Texas Supreme Court took up the petition.

The primary issue before the Court was whether the fit parent presumption applied in a child custody modification case. The Court held that “[w]hen a nonparent requests conservatorship or possession of a child, the child’s best interest is embedded with the presumption that it is the fit parent - not the court - who makes the determination whether to allow that request.” Although neither the nonparent standing statute nor the general modification statute includes the fit parent presumption, the Court reasoned that because the modification statute takes into account that the child’s best interest was determined in the original custody proceeding, that determination necessarily includes the fit-parent presumption. Thus, the father was entitled to a presumption that he determined the child’s “best interest based on his fundamental right as a fit parent.”

Remembering Our Friend, Ben Pride

Late last week, we were devastated by news of the sudden and unexpected death of Ben Pride, our friend and fellow law librarian. Ben worked at the Harris County Law Library for over 19 years. He was known for his quiet, easy-going, and gentle demeanor and for his dedication to serving the patrons of the Harris County Law Library.

Ben’s death was the result of an apparent homicide as reported in the Houston Chronicle on June 26, 2020. Anyone with information is urged to call HPD’s homicide division at 713-308-3600 or Houston Crime Stoppers at 713-222-TIPS (8477). Please help us find justice for Ben.

Ben’s Work

During his 19 years at the Harris County Law Library, Ben helped thousands of people access the justice system. Whether an attorney or a self-represented litigant, each and every patron who Ben helped found a friendly smile, a listening ear, and a public servant ready to provide support and encouragement. He worked as part of the team that produced the Law Library’s Pro Se Litigant Handbook, which helps economically-disadvantaged Houstonians access legal aid services. His care and encouragement extended to his coworkers as well and it was common for Ben to offer to walk with a coworker after a late shift or to extend a caring word to a coworker going through a difficult time. Whenever someone needed help, Ben lent a hand.

Ben’s Intellectual Curiosity

Anyone who knew Ben knew he was a voracious reader. It was not uncommon to find Ben pouring through digital archives and examining an article on the influences of ancient history on modern law. His intellectual curiosity led him to discover important historical artifacts in the Law Library’s collection. For example, it was Ben who found a signed copy of Panorama of the World’s Legal Systems by the preeminent legal scholar John Henry Wigmore in the Law Library’s historical collection. Ben also found legal volumes from the personal collection of Justice Learned Hand, which in subsequent years were resold and found their way to the Harris County Law Library. Last year, Ben added a beautiful collection of historical maps of the border between the United States and Mexico to a library exhibit on the law of Coahuila and Texas. Without Ben’s persistent exploration of new intellectual landscapes, these and many other historical treasures would have gone unnoticed. Ben uncovered them and opened them to all.

Ben’s Creativity

In recent years, Ben’s work took on a creative tone. To mark the passing seasons, the Law Library began constructing book art in 2017. From the beginning, Ben took a leading role and oversaw implementation of the project. He relished in gathering books that might languish on a back shelf and creating a focal point to engage the Law Library’s patrons. As each season passed, Ben found ways to improve his constructions and made plans for future holidays.

Words of Remembrance

Ben felt deep sympathy for those in need -- whatever their need might be -- and felt driven to help. He was always ready to help.

- Heather

When I worked the late shift, I usually parked on the top floor of the garage. Ben would walk me to my car each night. It was very sweet.

- Lori-Ann

Ben's kindness illuminated in his smile. You could see the care and attention he gave everyone, the staff members who loved him and the strangers he tried to help in the best possible way. I have not and will not meet anyone as sweet, thoughtful and genuine as Ben. He will be missed and remembered always.

- Alex

Ben was a friend to everyone. He was a true public servant and a scholar. Everyone who knew him will miss him.

- Joe

Marching for Liberation and Pride

Photo Credit: allysonmiller1969 on Pixabay at https://pixabay.com/users/allysonmiller1969-224234/

Photo Credit: allysonmiller1969 on Pixabay at https://pixabay.com/users/allysonmiller1969-224234/

Updated on June 7, 2023

In her 1937 novel, Their Eyes Were Watching God, Zora Neal Hurston famously wrote, “Some years ask questions, and some years answer.” This year seems to be asking more questions than ever, and communities are seeking answers. In 1969, people in the gay community were looking for answers, too. The Stonewall Uprising took place that year on June 28 in a seedy but beloved bar called The Stonewall Inn. Often described as a riot, this pivotal event sparked a revolution.

Just one year later, The Christopher Street Gay Liberation March, which is now recognized as the first Pride parade, took place in Greenwich Village. The march united the community (although the early gay liberation efforts were far from inclusive) and ignited the modern gay rights movement. Activist Martin Boyce put it this way: "What began as a question mark downtown ended in an exclamation point." Sunday is the 50-year anniversary of that first Pride event, and the LGBTQ+ community is continuing to work for progress in achieving equal rights.

To capture the enthusiasm and renegade spirit of the original Christopher Street Gay Liberation March, and to oppose the so-called rainbow capitalism and corporate pinkwashing that has come to dominate modern Pride parades, a more rebellious, politically minded activist group called the Reclaim Pride Coalition is hosts a Queer Liberation March on a Sunday in New York. The march, which is distinguishing itself as a protest with an agenda and a Statement of Purpose, will be streamed online. Many other virtual Pride events are taking place all over the Web. Don’t miss your chance to observe the occasion.

This is certainly a year that asks questions, but people are demanding answers, too. All people who live at the margins are fighting to be acknowledged. They want accountability and action, the same outcomes that gay rights pioneers like Marsha P. Johnson and Sylvia Rivera fought for at that first Pride march on June 28, 1970. In recognition of their efforts, and in celebration of the legal advances that LGBTQ+ individuals have achieved in the fight for equal rights, we are providing a curated list of further reading on the topics of gay liberation, the Stonewall Uprising, and the modern LGBTQ+ movement in the courts and in the culture.

Then and Now

An Amazing 1969 Account of the Stonewall Uprising – The Atlantic

What Does Pride Mean Now? – New York Times

Stonewall Then and Now – The Harvard Gazette

Stonewall National Monument – National Parks Service

Timelines

The Court Cases That Changed L.G.B.T.Q. Rights – New York Times

Milestones in the American Gay Rights Movement – American Experience PBS

LGBTQ Rights Milestones Fast Facts – CNN

Intersections

Global Pride To Focus On Black Lives Matter At First Worldwide LGBT Event -- Forbes

LGBTQ communities are elevating black voices during Pride Month in solidarity – CNN

Video

Stonewall Forever: A Documentary about the Past, Present and Future of Pride

Who Threw the First Brick? Let’s Argue About It – New York Times

Stonewall Uprising – American Experience PBS

Gay and Proud – Library of Congress

Does Privacy Still Exist Amid Coronavirus?

confidential-264516_1280.png

Amid the news of cities and states reopening, there also have been reports of closures. Some restaurants that had welcomed in-person dining have closed because an employee had tested positive for COVID-19. Bars and pubs, the ultimate watering holes for socializing and catching up with friends, have similarly shut their doors to the public once again. Despite the rising number of positive cases, none of these businesses is required to report any instances of employees who test positive for the disease. For instance, here in Texas, Governor Greg Abbott and the Strike Force to Open Texas have established a list of guidelines and minimum health protocols to which small businesses, such as restaurants, must adhere if they choose to reopen. No public reporting requirements are included in these checklists. Nevertheless, many restaurants throughout Texas and the rest of the country have opted to do so in an effort at transparency and general good business practice, seeking to assure the public that they value their loyalty and business but not at the sake of the health of their employees or their customers.

While restaurants and similarly situated businesses are not required to report COVID cases to the public, employers are still obligated to inform affected employees of their possible exposure to the virus. However, the employer must keep the identity of the infected employee confidential, as called for by the Americans With Disabilities Act (ADA). Although many people associate the ADA with prohibiting discrimination against individuals with disabilities in the workplace, the ADA also has privacy provisions that require employers covered by the ADA to keep all information about an employee’s illness confidential. In the case of COVID-19, employers are permitted to screen employees entering the workplace and may inquire about any symptoms identified by the CDC or public health officials associated with the disease. Such questions are deemed appropriate because of the severe health threat that the disease poses. Any information ascertained from the screening, though, must be kept confidential and stored in a file that is separate from the employee’s personnel file. Despite this confidentiality, employers are able to disclose the name of an infected employee to a public health agency.

Another law that protects individuals from public disclosure of health-related information is the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Under HIPAA, certain covered entities, typically healthcare providers and health plan insurers, cannot disclose protected health information without authorization from the individual. Nevertheless, there are situations when such information can be disclosed without prior consent for national priority purposes, including public health activities. According to a bulletin issued in March, the Secretary of the Department of Health and Human Services issued a limited waiver of certain sanctions and penalties associated with noncompliance with HIPAA’s Privacy Rule. However, even with the waiver, covered entities, such as hospitals, are able to share patient information with a public health authority and persons at risk. Disclosure of such information to the media or persons not associated with the patient’s care requires written authorization. One of the more recent high-profile cases alleging a potential HIPAA violation involved the disclosure of a positive COVID-19 test result for Dallas Cowboys star running back Ezekiel Elliott. Elliott took to Twitter, questioning whether such disclosure was a violation of HIPAA’s Privacy Rule. Maybe, maybe not. Remember that only healthcare professionals and other specified covered entities are held to the rules set out in HIPAA. In Elliot’s case, the media’s disclosure of the test results was not itself a violation of HIPAA, but the initial disclosure very well might have been.

Yes, even amid a global pandemic, privacy laws are still in place to protect individuals from the public disclosure of any health-related information. These laws present a challenge for businesses because employers are required to balance the protection of an infected employee’s privacy rights with the health and welfare of the possibly affected employees. Employers who still have questions can consult the CDC’s website, where it is has prepared some guidance for businesses and employers.