in Re Alfred Kuhlmann, Jr. ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00546-CV

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In re Alfred Kuhlmann, Jr., Appellant

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ORIGINAL PROCEEDING FROM COMAL COUNTY

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PER CURIAM

In this original proceeding, Alfred Kuhlmann, Jr., relator and natural father of two minor children, seeks a writ of mandamus directing Judge Charles Ramsay, District Judge of the 22nd Judicial District Court, Comal County, Texas, to set aside his prior order and to grant a writ of habeas corpus ordering Teresa Ann Morris to surrender the minor children to relator. We conditionally grant the writ.

On August 20, 1997, District Judge Bill Bender of Comal County signed an Order on Motion to Modify in Suit Affecting the Parent-Child Relationship appointing relator, the children's father, sole managing conservator of his two minor children. The children's mother, Morris, was appointed possessory conservator pursuant to the terms of a standard possession order.

In June 1998, Morris took the children to her home in Florida for summer vacation. Morris did not return the children to relator in accordance with the possession order. Instead, she filed a report with the Florida protective services alleging relator abused the children. Florida protective services sent the report to child protective services in Comal County requesting that they interview relator regarding the allegations. Florida protective services later withdrew its request for an interview and discontinued its investigation in Comal County.

On August 13, 1998, a Florida court entered a temporary ex parte protective order to maintain the current status of the children in Florida for thirty days until a petition for modification could be filed in Texas. On the same date, relator filed an application for writ of habeas corpus in Comal County. Morris was served in Florida and a hearing was set for August 31, 1998.

On the day of the hearing, Morris filed an application for protective order and a motion to modify and request for extraordinary relief. At the hearing, relator established his right to possession of the children by virtue of the August 20, 1997 court order. See Tex. Fam. Code Ann. § 157.372(a) (West 1996) (Family Code). Relator also presented testimony from a child protective services supervisor regarding several investigations of abuse and neglect alleged against relator and the children's stepmother and sexual abuse alleged against the children's stepbrother, all conducted prior to the August 20, 1997 order. The supervisor testified that child protective services also investigated claims of emotional and verbal abuse alleged against Morris. She further testified that at the conclusion of the investigations all allegations were ruled out except those against Morris for emotional and verbal abuse of one of the children. On cross-examination, the supervisor stated that with regard to the allegations against the children's stepbrother, relator and their stepmother had agreed to implement a safety plan to ensure that the children were not left alone with the stepbrother.

Morris's former attorney testified that he noticed bruises on the children soon after Morris picked them up from relator's home in June 1998, but that he did not report it to child protective services in Texas. Morris also testified, stating that when she received the children in June, they appeared malnourished and made outcries of physical and sexual abuse against relator, their stepmother, and their stepbrother.

At the conclusion of the hearing, the trial court denied relator's application for writ of habeas corpus and granted Morris's application for a protective order. The trial court did not make findings on either ruling. The trial court subsequently signed a written order denying relator's application for writ of habeas corpus. ⁽¹⁾ However, the trial court did not sign the protective order.

Section 157.372 of the Family Code governs in habeas corpus proceedings involving possession of a child, providing in pertinent part:

if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.

Family Code § 157.372(a). "Once a relator has proven that he is entitled to possession of the child by virtue of a prior valid court order, the issuance of the writ of habeas corpus should be automatic, immediate and ministerial." Rocha v. Schuble, 809 S.W.2d 681, 682 (Tex. App.--Houston [14th Dist.] 1991, orig. proceeding) (citing Greene v. Schuble, 654 S.W.2d 436, 438 (Tex. 1983); Grimes v. Flores, 717 S.W.2d 949, 951 (Tex. App.--San Antonio 1986, orig. proceeding)). The only exception is when it is shown and the trial court finds that the child is in imminent danger of physical or emotional harm and that immediate action is necessary to protect the child. McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex. 1977); Rocha, 809 S.W.2d at 683. In the absence of such a showing and finding by the trial court, however, the trial court's denial of the writ is clearly an abuse of discretion. Rocha, 809 S.W.2d at 683 (citing Grimes, 717 S.W.2d at 952).

The record makes clear that relator has a valid court order entitling him to possession of the two children. The evidence before the trial court was undisputed that relator was appointed sole managing conservator of the children pursuant to the August 20, 1997 order, and that no other court order exists governing conservatorship of the children. The temporary ex parte order from Florida does not constitute an order under section 157.372. Armstrong v. Reiter, 628 S.W.2d 439, 440 (Tex. 1982); Petru v. Bass, 788 S.W.2d 945, 947 (Tex. App.--Houston [14th Dist.] 1990, orig. proceeding). Thus, the trial court did not have the authority to deny relator's application for writ of habeas corpus unless there was a showing and a subsequent finding of imminent danger to the children.

Morris urges, however, that the trial court properly denied the writ of habeas corpus and granted a protective order because there was evidence that the children would be in imminent danger of physical harm if they were returned to relator. The admissible evidence includes the testimony of Morris and her former attorney regarding bruises they found on the children's bodies when they picked them up in June 1998. However, neither Morris nor her former attorney recorded or reported their discovery to child protective services in Comal County before Morris returned to Florida with the children. ⁽²⁾

Morris also testified that the children made allegations that relator acted inappropriately with the male child behind the barn, that the stepbrother chased the children with a BB gun or real gun, and that the stepbrother watched and/or touched the female child in the bathroom. These allegations are similar to those raised by Morris and fully investigated by child protective services prior to the modification hearing that resulted in the appointment of relator as sole managing conservator pursuant to the August 20, 1997 order.

The new allegations were reported to Florida protective services, but the record indicates that the Florida investigation has either been put on hold or closed. In addition, Morris's testimony indicated that the alleged abuse preceded the alleged statement by some time. Although Morris testified that the statements were spontaneous, she admitted that she had elicited her children's statements through questioning in the past. Therefore, we conclude Morris's testimony concerning her children's statements and behavior do not support a finding of imminent danger to the children if they are returned to relator. ⁽³⁾ See Rosendorf v. Blackmon, 800 S.W.2d 377, 380 (Tex. App.--Corpus Christi 1990, orig. proceeding).

Finally, the trial court did not make a finding that the children would be in imminent danger of physical harm if they were returned to relator. In Rocha v. Schuble, the court of appeals held that a trial court was without authority to deny a writ of habeas corpus "[u]nless it was shown, and the trial court found, that the child was in imminent danger of physical or emotional harm and that immediate action was necessary to protect the child." 809 S.W.2d at 683 (emphasis added). The court concluded that there was no such showing to support the trial court's finding. See id. In this case, the trial court made no such finding. See In re Johnston, 957 S.W.2d 945, 947 (Tex. App.--Beaumont 1997, orig. proceeding.). Accordingly, we conclude the trial court abused its discretion in denying relator's application for writ of habeas corpus and in granting Morris's protective order.

We assume respondent will vacate his prior orders and grant relator's application for writ of habeas corpus. We will issue a writ of mandamus only if the respondent declines to do so.

Before Justices Powers, Aboussie and Kidd

Writ of Mandamus Conditionally Granted

Filed: November 13, 1998

Do Not Publish

1. The date reflected on the order denying writ of habeas corpus indicates that it was signed by the trial court on August 31, 1998. In his brief in support of his petition for writ of mandamus, however, relator asserts the trial court did not actually sign the order denying his application for writ of habeas corpus until September 22, 1998, and that his request for a correction of the signature date was denied by the trial court.

2. An attorney's failure to report suspected abuse or neglect of a child constitutes a violation of the Texas reporting statute. See Tex. Fam. Code Ann. § 261.101 (West Supp. 1998).

3. The trial court also interviewed the children in chambers without the presence of a court reporter. Because the interview is not in the record, we cannot presume that the interview raised facts which allowed the court discretion to deny relator's application for writ of habeas corpus. See Forbes v. Wettman, 598 S.W.2d 231, 232 (Tex. 1980).

st 20, 1997 order, and that no other court order exists governing conservatorship of the children. The temporary ex parte order from Florida does not constitute an order under section 157.372. Armstrong v. Reiter, 628 S.W.2d 439, 440 (Tex. 1982); Petru v. Bass, 788 S.W.2d 945, 947 (Tex. App.--Houston [14th Dist.] 1990, orig. proceeding). Thus, the trial court did not have the authority to deny relator's application for writ of habeas corpus unless there was a showing and a subsequent finding of imminent danger to the children.

Morris urges, however, that the trial court properly denied the writ of habeas corpus and granted a protective order because there was evidence that the children would be in imminent danger of physical harm if they were returned to relator. The admissible evidence includes the testimony of Morris and her former attorney regarding bruises they found on the children's bodies when they picked them up in June 1998. However, neither Morris nor her former attorney recorded or reported their discovery to child protective services in Comal County before Morris returned to Florida with the children. ⁽²⁾

Morris also testified that the children made allegations that relator acted inappropriately with the male child behind the barn, that the stepbrother chased the children with a BB gun or real gun, and that the stepbrother watched and/or touched the female child in the bathroom. These allegations are similar to those raised by Morris and fully investigated by child protective services prior to the modification hearing that resulted in the appointment of relator as sole managing conservator pursuant to the August 20, 1997 order.

The new allegations were reported to Florida protective services, but the record indicates that the Florida investigation has either been put on hold or closed. In addition, Morris's testimony indicated that the alleged abuse preceded the alleged statement by some time. Although Morris testified that the statements were spontaneous, she admitted that she had elicited her children's statements through questioning in the past. Therefore, we conclude Morris's testimony concerning her children's statements and behavior do not support a finding of imminent danger to the children if they are returned to relator. ⁽³⁾ See Rosendorf v. Blackmon, 800 S.W.2d 377, 380 (Tex. App.--Corpus Christi 1990, orig. proceeding).

Finally, the trial court did not make a finding that the children would be in imminent danger of physical harm if they were returned to relator. In Rocha v. Schuble, the court of appeals held that a trial court was without authority to deny a writ of habeas corpus "[u]nless it was shown, and the trial court found, that the child was in imminent danger of physical or emotional harm and that immediate action was necessary to protect the child." 809 S.W.2d at 683 (emphasis added). The court concluded that there was no such showing to support the trial court's finding. See id. In this case, the trial court made no such finding. See In re Johnston, 957