Jerry and Janis Lynch v. Dallas County Child Protective Services Unit of the Texas Department of Protective and Regulatory Services ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Jerry and Janis Lynch

Appellants

Vs.                   No.  11-00-00348-CV B Appeal from Dallas County

Dallas County Child Protective Services Unit of the

Texas Department of Protective and Regulatory Services

Appellee

Jerry and Janis Lynch appeal from the trial court=s order denying their AMotion of Frivolous Claim.@  The Lynches bring four issues on appeal challenging the trial court=s order and seeking an award of costs and attorney=s fees. We affirm.

On December 28, 1999, Dallas County Child Protective Services (DCCPS) received a report that the Lynches= two children were being neglected by their parents.  The report also alleged that Jerry had sexually abused both his sister and his niece. An investigation into Texas Department of Protective and Regulatory Services (TDPRS) records revealed that there were two previous referrals concerning neglect of the Lynches= son.   Kallie Capps, a DCCPS caseworker, went to the Lynch home on January 12, 2000.  Capps reported that the house was neatly organized but that the carpet and furniture were badly soiled, that there was an overwhelming smell of urine, and that Janis appeared unkempt.  Capps spoke with Janis and explained the allegations to her.  Janis told Capps that there had been sexual abuse in Jerry=s family but that no one had accused Jerry of sexual abuse.

Capps contacted Jerry=s sister and Jerry=s niece separately, and they both related to Capps that they had been sexually abused by Jerry.  DCCPS determined that Jerry should leave the home while the investigation was being conducted.  On February 9, 2000, Capps went to the Lynch home. This time she spoke with Jerry, who denied ever sexually abusing anyone. Capps discussed the Asafety plan@ with the Lynches which required Jerry to leave the home while the investigation was being conducted and which provided that Jerry would not have unsupervised contact with the children.  The Lynches initially refused to sign the safety plan. Capps was authorized to remove the children if the Lynches did not agree to the safety plan, and she then called the police for assistance.   After the police arrived, the Lynches agreed to the safety plan.

On February 10, 2000, Capps learned of allegations that Jerry had sexually abused three other children.  Capps was contacted by the Lynches= attorney on that same day, and he informed her that he believed the safety plan was invalid and that Jerry was returning to the home.  DCCPS determined that a stronger safety plan was needed which would require Jerry to leave the home and have no contact with the children.  Capps went to the Lynches= home, but they would not allow her in the home until their attorney arrived. Capps, Jerry, and the Lynches= attorney met at the police station, and the Lynches eventually signed the second safety plan.

On March 27, 2000, DCCPS filed a petition seeking temporary managing conservatorship of the 2 Lynch children.  The trial court held a hearing on the motion on July 13, 2000, and again on July 24, 2000.  On July 24, 2000, the trial court ruled that Jerry could return to the home; and on July 27, 2000, the trial court entered a temporary order appointing Jerry and Janis as joint temporary managing conservators of the children and TDPRS as temporary possessory conservator of the children.  On August 9, 2000, the trial court entered another order denying DCCPS=s petition for appointment of temporary managing conservator of the children.^[1]  On August 22, 2000, the Lynches filed a motion for frivolous claims, and that motion was denied on September 6, 2000.

In their first three issues on appeal, the Lynches argue that the trial court erred in denying their motion for frivolous claims. They argue that the evidence is legally and factually sufficient to support their motion and that they committed no error of law in preparing and presenting their motion.  TEX. CIV. PRAC. & REM. CODE ANN. ' 105.002 (Vernon 1997) provides that:

A party to a civil suit in a court of this state brought by or against a state agency in which the agency asserts a cause of action against the party, either originally or as a counterclaim or cross claim, is entitled to recover, in addition to all other costs allowed by law or rule, fees, expenses, and reasonable attorney's fees incurred by the party in defending the agency's action if:

(1) the court finds that the action is frivolous, unreasonable, or without foundation;  and

(2) the action is dismissed or judgment is awarded to the party.

In determining whether the trial court should have awarded attorney's fees pursuant to Section 105.002, we look at the agency=s cause of action, and not whether particular incidents of the agency's conduct were frivolous, unreasonable, or without foundation.  See Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626 (Tex.1992).

The record reveals that DCCPS received a report that the Lynch children were being neglected.  Upon investigation of that report, DCCPS learned that there had been previous allegations that Jerry had sexually abused other children.  DCCPS contacted Jerry=s niece and Jerry=s sister who both confirmed that they had been sexually abused by Jerry.  DCCPS believed that there was a risk of the Lynch children being sexually abused by Jerry and sought to have Jerry removed from the home and to have DCCPS appointed as temporary managing conservator of the children while the family received services from TDPRS.  The Lynches received a letter from Capps dated March 30, 2000, which they contend showed that the cause of action was frivolous and should not have proceeded to the hearing on the DCCPS motion. However, the letter states that A[t]he allegations in this case were neither validated or negated and [DCCPS] will be providing further services to your family.@  The record does not support the Lynches claim that the cause of action was frivolous, unreasonable, and without foundation.  The Lynches= first, second, and third issues on appeal are overruled.  Because we find that the trial court did not err in overruling the Lynches= motion for frivolous claims, we need not reach the remaining issue on appeal concerning costs and attorney=s fees.  TEX.R.APP.P. 47.1.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

January 31, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]On September 6, 2000, the trial court entered a nunc pro tunc order amending the August 9 order.