Black v. Dallas County Child Welfare Unit

OPINION

MAUZY, Justice.

We consider whether the recovery of attorney’s fees against a state agency under Texas Civil Practice and Remedies Code chapter 105 requires a finding that the cause of action was frivolous, unreasonable or without foundation; and if so, whether such a finding was made in this case. The trial court, sitting without a jury, determined that the Texas Department of Human Services acted frivolously, unreasonably and without foundation. The court, therefore, submitted the question of reasonable attorney’s fees to the jury in a subsequent trial. The court of appeals reversed and rendered judgment for the Department on the basis that section 105.002 permits the recovery of attorney’s fees only when the Department files a cause of action that is frivolous, unreasonable, or without foundation and not when the Department simply acts frivolously. 812 S.W.2d 620, 623-24. We hold that the trial court made the necessary findings and properly awarded attorney’s fees under section 105.002 of the Texas Civil Practices and Remedies Code.

This case involves a delicate balancing test between two competing interests: the need to protect children from abuse and the need to protect families from governmental overreaching and unnecessary interference. In order to achieve a proper balance, the legislature has enacted laws authorizing the state to pursue legal action to remove children from abusive homes, see Tex.Fam. Code §§ 17.01-.08, while permitting a private citizen to recover attorney’s fees for an agency’s prosecution of a legal cause of action that is frivolous, unreasonable or without foundation. Tex.Civ.Prac. & Rem. Code §§ 105.001-.004. That statute was not to intended to deter or chill the enforcement of child protective laws. The legislature as well as this court recognizes that the Texas Department of Human Services (“the Department”) and its employees have the admirable and necessary job of protecting children from abuse. In most cases, they do an outstanding job working with limited resources. In this ease, however, the record reflected that the Department went too far in its prosecution efforts. Unfortunately, in its attempt to protect the children, the Department victimized Ms. Black, the children, and the entire family unit.

A.B. is a four year-old girl with cerebral palsy who attends a school for handicapped children. In 1988, while cleaning A.B., her teachers noticed signs of possible child abuse. The teachers contacted the Dallas County Welfare Unit of the Department, which sent a caseworker. At the time of this investigation, the caseworker was on probationary status because she had been on the job for only three months, and had not completed the basic job skill training.

After interviewing A.B., the caseworker took her to a pediatrician who was experienced in such cases. The pediatrician testified that he examined A.B. but found only a small abrasion inside of her labia which could have had many causes, including the doctor’s own examination or a routine cleaning after A.B. wet her pants. The caseworker then took the child to the Department and contacted her mother, Ms. Teresa Black, and asked her to come into the office and to bring A.B.’s younger brother, B.B. The caseworker interviewed B.B. and interpreted his statements as suggesting the possibility of sexual abuse. The Department then took possession of the children pursuant to section 17.03(a) of the Texas Family Code.¹

The next day, May 6, 1988, the Department filed a petition for emergency care and temporary managing conservatorship. The Department presented Judge Stayman, a district judge, with an ex parte order requesting temporary possession.² Judge Stayman denied the ex parte order because the evidence was insufficient insofar as it did not “lead her to believe that the child[ren] [were] in immediate danger.”

Instead of returning the children, however, the Department obtained a hearing before a family court master on May 9, at which Ms. Black appeared pro se. The master recommended that the emergency orders be continued.³ However, the master was never informed by the Department that Judge Stayman had denied the same order only one working day earlier. Based on the master’s recommendation, the district court on May 9 gave temporary custody of the children to the Department.

An evidentiary hearing was not held until May 18. After presentation by the Department, the master found no evidence of abuse, and directed a verdict in favor of Ms. Black. Although the Department was told twice that its evidence was insufficient and was directed to immediately return the children to Ms. Black, the Department continued to hold the children and attempted to stay the order releasing the children to Ms. Black. The Department’s failure to return the children violated section 54.015 of the Texas Government Code, which requires that a master’s order remain in full effect until a state district court judge sets it aside.

On May 19, 1988, the Department, still retaining possession of the children, filed an appeal with the district court requesting a trial de novo and a stay of the master’s order. The district judge refused and Ms. Black finally regained possession of her children thirteen days after Judge Stayman denied the ex parte order.⁴

On June 6, 1988, Ms. Black filed a counterclaim alleging that “the actions taken and the filing of the lawsuit” by the Department were frivolous, unreasonable, and/or without foundation. She further demanded expenses pursuant to chapter 105 of the Texas Civil Practice and Remedies Code.⁵ In a nonjury trial, the trial court found that the Department did not act frivolously when it took possession of the children on May 5 and filed the lawsuit on May 6. However, the trial court found that from Judge Stayman’s refusal of the ex parte order on May 6 until the children were returned on May 19, the Department acted “frivolously, unreasonably and without foundation.”

In rendering judgment for Ms. Black, the trial court made numerous findings of fact, including the following: the children were held illegally and without authority after Judge Stayman refused to sign the ex parte order on May 6, 1988; the Department never informed Master Marilea Lewis that Judge Stayman denied the ex parte order; the Department was no more prepared to put on evidence on May 9, 1988 than it was on May 6, 1988; Black’s attorney was misled by the order indicating that an emergency existed; there has never been a finding that an emergency existed which necessitated the removal of the children from the home; after being told twice that the evidence was insufficient, the Department continued to hold onto the children in violation of the Master’s order; and the Department ignored the district attorney’s assessment that the case was too weak to win and persisted with efforts to remove the children from the home anyway.⁶

Based on its findings of fact, the trial court made the following conclusion of law: “In this particular instance, the state, by and through the Texas Department of Human Services has acted without authority, frivolously, and without foundation. Because of the aforesaid actions of the Texas Department of Human Services, Teresa Black is entitled to attorney’s fees, costs, and expenses as provided for in said statute.” After the trial court determined that Ms. Black was entitled to attorney’s fees, it set the case for a jury trial to decide the amount of attorney’s fees. The jury awarded Ms. Black expenses and attorney’s fees in the amount of $53,426.15. It is undisputed that this award represents only Ms. Black’s reasonable attorney’s fees and expense incurred defending the Department’s cause of action and prosecuting her claim from the time Judge Stayman denied the ex parte order on May 6, 1988 until the jury assessed the reasonable attorney’s fees on March 28,1990. No attorney’s fees were awarded in the event of an appeal to the court of appeals or this court.

The court of appeals reversed and rendered judgment that Ms. Black take nothing based upon the trial court’s conclusion of law that the Department had “[ajcted without authority, frivolously, unreasonably and without foundation.” The court of appeals concluded that chapter 105 permitted attorney’s fees only when the agency files a cause of action that is frivolous, unreasonable, or without foundation, and not when the agency simply acts frivolously. 812 S.W.2d 620, 623-24.

The court of appeals is correct that an award of attorney’s fees under the statute requires more than a finding that particular incidents of an agency’s conduct are frivolous, unreasonable, or without foundation.⁷ However, this is the first reported decision which has construed Chapter 105 of the Civil Practices and Remedies Code. As a result, the trial court had no guidance as to the proper language to use in its conclusion of law to support an award of attorney’s fees.⁸

Although the trial court worded its conclusion of law imperfectly, it appears from the record, including the judgment, evidence, and the findings of fact, that the trial court intended to conclude that the Department’s cause of action became frivolous, unreasonable, or without foundation from May 6, 1988 when Judge Stayman found insufficient evidence of abuse and denied the ex parte order requesting temporary custody.⁹ Without such a finding, the trial court would not have entered judgment for Black; set the case for a jury trial to award reasonable attorney’s fees and expenses; and rendered judgment on the jury’s verdict for $53,426.15. The Department’s motion for new trial claimed that section 105 of the Texas Civil Practices and Remedies Code only authorizes recovery of attorney’s fees if the state’s cause of action was frivolous, not merely for frivolous actions by a state agency. With this issue explicitly called to the attention of the trial court, it nevertheless overruled the motion. This is further evidence that the trial court intended to find that the Department’s cause of action, not merely its conduct, was frivolous. Accordingly, the trial court allowed Black to recover her attorney’s fees and expenses pursuant to section 105 of the Texas Civil Practices and Remedies Code.

Appellate courts must give effect to the intended findings of the trial court if supported by the evidence, the record, and judgment.¹⁰ This is based upon well-settled Texas law that in a nonjury trial every reasonable inference and intendment supported by the record will be drawn in favor of the trial court’s judgment. See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979); Amos v. Sen-gleman, 183 S.W.2d 1008, 1010 (Tex.Civ. App. — Galveston 1944, writ ref’d w.o.m.).

The court of appeals failed to apply the necessary presumptions and to draw reasonable inferences in favor of the judgment. For this reason, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

HECHT, J., joined by PHILLIPS, C.J., and GONZALEZ and CORNYN, JJ., dissents.

1 . The Texas Family Code authorizes the Department to take emergency possession of a child when:

Upon information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and action to believe that the child has been the victim of sexual abuse and there is no time to obtain a temporary restraining order or attachment under section 17.02 of this code. Tex.Fam.Code § 17.03(a)(6).

2 . Although the legislature provided for the creation of family courts, it never mandated that a court reporter create a record of the proceedings. Therefore, we are forced to decide this case without the aid of any statement of facts from the child custody hearings.

3 . In order to continue the emergency orders, Master Lewis presumed that the district judge had made a finding that the children were in immediate danger and emergency orders were necessary. Since no emergency orders existed and no additional evidence was presented, the Department continued to retain the children without any legal authority.

4 . Commentators have cautioned that unnecessarily removing a child from his or her parents results in enormous harm because of the difficulty of reuniting the family and the psychological trauma to the child. See Note, A Pre-Removal Hearing In Custody Decisions: Protecting the Foster Child, 4 Cooley L.Rev. 375, 379 (1987). Unfortunately, the Black family was forced to endure this harm needlessly.

5 . Chapter 105 of the Texas Civil Practices and Remedies Code is a statutory remedy allowing citizens to recover their attorneys fees for frivolous lawsuits brought by the government or one of its agencies. The purpose of chapter 105 is to afford an aggrieved citizen some remedy from a governmental agency for the misuse of governmental power. Because chapter 105 involves distinct policy considerations, our interpretation of this statute is not applicable to cases involving sanctions under either rule 13 of the Texas Rules of Civil Procedure or section 17.50(c) of the Texas Business and Commerce Code.

6 . The dissent argues that the Department did not keep the children any longer than it was allowed to by law or statute and returned them as soon as the court ordered it to do so. At 631. This argument ignores the record. The trial court found that the Department deprived Ms. Black of her children for thirteen days illegally and without foundation and that it retained the children in violation of the master's order. Unfortunately, the Department would not release the children until sometime after the court ordered it to do so.

7 . While the statute provides that attorney’s fees may be recovered if "the court finds that the action is frivolous, unreasonable, or without foundation,” it earlier provides that attorney’s fees may be sought when “the agency asserts a cause of action_” Tex.Civ.Prac. & Rem.Code § 105.002 (emphasis added). As the court of appeals notes, chapter 105 was not intended to substantively change the law codified in the prior act. 812 S.W.2d at 624. The original statute explicitly stated that attorney’s fees could be had only when "the agency's suit was frivolous, unreasonable, or without foundation.” Act of June 16, 1981, 67th Leg., R.S., ch. 727 § 2, 1981 Tex.Gen.Laws 2675 (emphasis added). A later amendment also specifically used the language "cause of action.” Act of June 1983, 68th Leg., R.S., ch. 620, §§ 2 & 4, 1983 Tex.Gen. Laws 3884, 3885-86.

8 . Tracking the language of the statute would have resulted in the following conclusion of law: The court concludes that the Department’s cause of action was frivolous, unreasonable, or without foundation; accordingly, Black is entitled to recover all other costs allowed by law or rule, fees, expenses, and reasonable attorney's fees incurred by Black in defending the agency¹ s action.

9 . The court specifically found that the Department did not act frivolously when it removed the children from the home on May 5, 1988; however, it did find that the Department acted frivolously when it continued to prosecute the case and retained the children after Judge Stay-man denied the ex parte order.

10 .Contrary to the dissent's argument, it is well-settled Texas law that appellate courts must give effect to the intended findings of the trial court and affirm the judgment if it can be upheld on any legal theory that finds support in the evidence. See In re W.E.R., 669 S.W.2d 716, 717 (Tex.1984) (per curiam) (citation omitted). If no findings of fact or conclusions of law are filed, the reviewing court must imply all necessary fact findings in support of the trial court’s judgment. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 276 (Tex.1979). In addition, an omitted finding, supported by the evidence, may be supplied by a presumption that it supports the judgment. See Chevron U.S.A., Inc. v. Vortt Exploration Co., 787 S.W.2d 414, 417 (Tex.App. — Fort Worth 1988), rev'd on other grounds, 787 S.W.2d 942 (Tex.1990); Tex. R.Civ.P. 299. Furthermore, a judgment, supported by sufficient evidence and findings of fact, will be upheld even though there are errors in the conclusions of law. See Wirtk, Ltd. v. Panhandle Pipe & Steel, Inc., 580 S.W.2d 58, 62 (Tex.Civ.App. — Tyler 1979, no writ).

1 . “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."