Texas Department of Family and Protective Services v. Brilliant Starts Learning Academy, L.L.C. ( 2015 )

ACCEPTED
03-15-00363-CV
7645986
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/2/2015 4:03:57 PM
JEFFREY D. KYLE
CLERK
No. 03-115-00363-CV
In the Third Court of Appeals FILED IN
3rd COURT OF APPEALS
Austin, Texas AUSTIN, TEXAS
11/2/2015 4:03:57 PM
JEFFREY D. KYLE
Clerk
TEXAS DEPARTMENT OF FAMILY & PROTECTIVE SERVICES,
Appellant,
v.
BRILLIANT STARTS LEARNING ACADEMY, L.L.C.
Appellee
APPEAL FROM CAUSE NO. C2015-0676B
TH
207 DISTRICT COURT OF COMAL COUNTY, TEXAS
HON. DIP WALDRUP, PRESIDING
_____________________________
APPELLEE’S BRIEF AND APPENDIX
Gregory B. Cagle
State Bar No. 00790414
1602B State Street
Houston, Texas 77007
Telephone: 713-489-4789
Facsimile: 713-489-4792
gcagle@tmpalawyer.com
Attorney for Appellee
TABLE OF CONTENTS
Index of Authorities………………………………………………………………... 3
I. Statement of the Facts ………………………………………………. 4
II. Issue Presented ………………………………………………………. 5
III. Summary of the Argument…………………………………………… 5
IV. Conclusion and Prayer……………………………………………….. 6
V. Certificate of Compliance……………………………………………. 8
VI. Certificate of Service………………………………………………… 8
2
INDEX OF AUTHORITIES
Cases
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) ……………… 5
Statutes
Tex. Hum. Res. Code §42.072(e) (West 2013) …………………………….. 5
3
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee, Brilliant Starts Learning Academy, L.L.C., respectfully requests that
this Court deny the relief requested by the Appellant, DFPS.
I. Statement of the Facts
An employee of Brilliant Starts Learning Academy, LLC (“Brilliant Starts”)
mistreated several children in the weeks prior to December 17, 2014.
(Defendant’s Exhibit 1) On December 17, 2014, the director of Brilliant Starts,
Kallie Norman, learned of the mistreatment by the employee. (RR Vol. 3 at 62)
The employee was separated from employment on the same day and a report was
made to DFPS. (RR Vol.3 at 72, 74) The incident was investigated by Appellant
DFPS. The primary investigator for Appellant, Sam Brito, testified that there
was no evidence that the owners of Brilliant Starts, the Normans, were aware that
the employee was committing the acts prior to December 17, 2014. (RR Vol. 2
at 65) The investigation was closed with a determination that the Normans had
“no role”, meaning that they had done nothing wrong. (RR Vol. 2, 80, 81)
Despite their own findings, DFPS waited several weeks and issued an emergency
closure order. (RR Vol.1 at 91)
District Judge Dib Waldrip granted an ex parte Temporary Restraining Order
allowing Brilliant Starts to continue to operate. See Order Dated May 4, 2015.
4
DFPS moved to dissolve the order, which was denied after a full evidentiary
hearing. (RR Vol. 1 at 165, RR Vol. 2) Despite no new evidence and the TRO,
DFPS issued a revocation, effectively closing Brilliant Starts again. Judge
Waldrip issued a second ex parte Temporary Restraining Order allowing Brilliant
Starts to remain open. See Order dated May 13, 2015. After another lengthy
evidentiary hearing, Judge Waldrip specifically found that “…the Plaintiff does
not pose a health or safety risk to children” and granted the Injunction mad ethe
basis of this appeal. See Order Granting Injunction dated May 19, 2015.
I. Issue Presented
Did the trial court clearly abuse its discretion in issuing the Temporary
Injunction? No.
II. Summary of the Argument
Appellate review of a temporary injunction is limited to deciding whether the
trial court clearly abused its discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198,
204 (Tex.2002) The applicable law, Tex. Hum. Res. Code §42.072(e) specifically
provides for the relief sought and granted in this case. “The court may grant
injunctive relief against the department’s action only if the court finds that the child-
care operation does not pose a health or safety risk to children.” Tex. Hum. Res.
Code §42.07(e) (West 2013). Judge Waldrip made that specific finding in the Order
5
Granting Injunction, which was well supported by the record, including the
testimony of the lead investigator for DFPS.1 See Order Granting Injunction dated
May 19, 2015. The Appellant argues, without authority, that the additional
conditions imposed in the Order somehow make the issuance of the injunction an
abuse of discretion. The statute does not limit the relief, it merely requires that the
trial court make the determination as to the risk. That finding was made. The
additional conditions imposed upon the Appellee dot not effect this finding, nor do
they undermine the explicit finding of the Court as advanced by the Appellant.
Presumably, the Appellant, the very agency charged with oversight, would have the
trial court remove the language from the order that acts to insure that there is no
future potential for risk? While there may be some argument to be advanced by the
Appellee, the Appellant is certainly without standing to complain and should be
quite satisfied given the record in this case.
III. Conclusion and Prayer
The trial court’s order granting injunction in the case makes the statutory fining
required by the Tex. Hum. Res. Code and is well supported by the record. The
“abuse of discretion” would be the issuance of the injunction, not the conditions
1 This was effectively the third (3rd) time Judge Waldrip had reviewed the facts of this case and
issued an order stopping the Appellant from closing Brilliant Starts.
6
imposed by additional language in the order. Simply put, the required finding was
made and the Appellant’s argument is baseless and without merit.
WHEREFORE, PREMISES CONSIDERED, Brilliant Starts Learning
Academy, L.L.C. respectfully prays that this Court affirm the decision of the trial
court. Brilliant Starts further requests any additional relief, at law or equity, to
which it may be justly entitled.
Respectfully submitted,
/s/ Gregory Cagle
Gregory B. Cagle
State Bar No. 00790414
1602B State Street
Houston, Texas 77007
Telephone: 713-489-4789
Facsimile: 713-489-4792
gcagle@tmpalawyer.com
Attorney for Appellee
7
IV. CERTIFICATE OF COMPLIANCE
This brief was prepared with Microsoft Word in a conventional 14-point
typeface, with footnotes in 12-point typeface and contains 634 words, as determined
by the word-count function, excluding the sections listed in TRAP 9.4(i)(1).
V. CERTIFICATE OF SERVICE
I certify that on the 2nd day of November, 2015, a true copy of this Notice of
Appeal was served in accordance with rule 9.5 of the Texas Rules of Appellate
Procedure on each party or that party's lead counsel as follows:
TEXAS DEPARTMENT OF FAMILY & PROTECTIVE SERVICES
Pat Tulinski
Assistant Attorney General
Texas Attorney General Office
P.O. Box 12548, Capital Station
Austin, Texas 78711-2548
Telephone: 512-475-4170
Facsimile: 512-320-0167
Pat.tulinski@texasattorneygeneral.gov
__/s/_Gregory B. Cagle___
Gregory B. Cagle
8