in Re Kimberly Marks

ACCEPTED
01-15-00087-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/19/2015 4:25:56 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00087-CV
__________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS
3/19/2015 4:25:56 PM
FIRST SUPREME JUDICIAL DISTRICT OF TEXAS
CHRISTOPHER A. PRINE
Clerk
AT HOUSTON, TEXAS
__________________________________
IN RE: KIMBERLY MARKS, Relator
__________________________________
Original Proceeding brought from the 310th Judicial District of Harris County,
Texas, No. 2013-73339
__________________________________
RESPONSE TO RELATOR’S OBJECTION TO EXHIBIT MR-2
AND RESPONSE TO JURISDICTION
_________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
The Real Party in Interest, Department of Family & Protective Services
[“Department”], respectfully responds to relator’s objection to Exhibit MR-2 and
response to jurisdiction as follows:
1. Relevant Background Facts
This present case involves a mandamus petition filed by Kimberly Marks
from an order requiring her to participate in services pursuant to Tex. Fam. Code
Ann. §264.203 (West 2008). The Respondent named in the Petition for Mandamus
is the Honorable Lisa Millard, Judge of the 310th Judicial District Court of Harris
County, Texas, the court where the subject case is docketed under Cause No. 2013-
73339, and styled, “In the Interest of [ARM, KRM and CM].”
On January 9, 2015, the Department filed a petition styled, “Original Motion
to Modify and Petition for Order to Participate in Services.” MR-1.1 The second
sentence of this petition expressly states there is an “affidavit attached hereto and
incorporated herein in its entirety.” Id. (emphasis added). Moreover, the affidavit
is referenced as the basis for the Department’s request under Section 264.203 of
the Family Code for an order that the parents participate in services. MR-1 p. 2.
When the Department filed its petition, the District Clerk stamped both the petition
and the affidavit with the District Clerk’s stamp noting both documents were filed
“1/9/2015” and received in “Envelope No. 371496”. See MR-1 and MR-2.
Thereafter citation was issued and on January 20, 2015 Kimberly Marks was
formally served with the Department’s petition and given notice that a hearing
would be held on January 27, 2015. MR-3 & MR-4. Prior to the hearing, Ms.
Marks filed a response on behalf of herself and her children contesting the petition.
MR-5; Marks(MR)-4.2 The responses did not complain that Ms. Marks did not
receive the affidavit attached to the petition and expressly mentioned in the first
paragraph of the petition. See MR-1. Moreover, no claim was made regarding that
1
“MR” in this brief refers to the First Supplemental Mandamus Record of the Real Party in
Interest. The number following correlates with the number attachment assigned in that
supplemental record.
2
“Mark(MR)” in this brief refers to the Mandamus Record filed by Relator’s attorney Steven
Poocks on 2/9/15.
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when the hearing was held and Ms. Marks appeared with her attorney Tom
Sanders. MR-11.
In this connection, at the hearing, the judge took notice, consistent with the
affidavit filed with the Department’s motion, that there was previous CPS history
from 2007. MR-11 (RR3 p. 9). Ms. Marks did not contest such notice, but rather
acknowledged he did not know that. MR-11 p. 9. The judge added: “And that
there was reason to believe there was physical abuse.” MR-11 p. 9. Ms. Marks’
attorney stated: “I can’t agree or disagree.” MR-11 p. 9.
Ms. Marks’ attorney stated his big argument was “I think there’s a huge
jurisdiction and a standing issue.” MR-11 p. 5 & p. 8. He suggested this would be
established “if the evidence was developed” and referred to what he believed the
evidence would show. MR-11 p. 6 (“And if we develop the evidence… “I think the
evidence would show”).
The Department responded by discussing the underlying facts, and, no
objection was made when the Department’s attorney proceeded to provide relevant
facts through attorney testimony, therefore, it was permitted.4 In this connection,
3
“RR” is abbreviation for the Reporter’s Record included as Attachment 11 to the Department’s
Mandamus Record.
4
As illustrated by the Supreme Court, failure to object to attorney statements concerning facts
may result in such statements being accepted as evidence in the case. See Mathis v. Lockwood,
166 S.W3d 743 (Tex. 2006) (At a post-judgment hearing challenging a default judgment, counsel
testified that notice was sent to the defendant, but the defendant denied receiving it. While
statements by neither were under oath, the oath requirement was waived when neither raised any
objection in circumstances that clearly indicated each was tendering evidence on the record
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the attorney stated that the Department received its referral in August of 2014.
MR-10 (RR p. 12). At some point the children were placed with the maternal
grandparents and she signed a document but she did not sign the service plan after
it was requested. MR-10 (RR p. 12). Also, the mother stopped complying with the
Department around Christmas of 2014. MR-10 (RR p. 12).
The court asked if there had been in problems in between that time, and the
Department’s attorney responded that there was a positive drug test in September
2014 and after that the children were placed with the maternal grandparents’ until
removed by the mother. MR-10 (RR p. 13). It was added, though the mother
claimed she would continue drug testing, she declined. MR-10 (RR p. 13).
Importantly, for purposes of the issue in this response, during the
Department’s presentation of the facts, the Department’s specifically referred to
the “affidavit” when discussing the initial referral in August of 2014. MR-11 (RR
p. 12) (“I’m referring to the affidavit.”). In addition, the judge obviously made the
parties aware she was considering the affidavit at this hearing, because the judge
stated she saw “Latuda” (a drug not previously discussed but referenced on page 6
of the Affidavit). MR-11 (RR p. 14) & MR-2 p. 6. No one objected at that point.
Also, Ms. Marks’ attorney likely understood the facts in the affidavit were being
based on personal knowledge on the sole contested issue); Banda v. Garcia, 955 S.W.2d 270,
272 (Tex. 1997) (holding attorney's unsworn statements tendered as evidence were sufficient
absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
4
considered, because after the court referred to that and asked if she was taking
anything else, Ms. Marks’s attorney responded: “What I have, Judge, is she’s
prescribed Prozac, Latuda, and Adderall.” MR-10 (RR p. 14).
Ms. Mark’s attorney then asserted she had been cleared on drug tests before
and represented: “she has taken voluntarily and she’s told me she would still
take voluntarily.” MR-10 (RR p. 14) (emphasis added). The Department’s
attorney responded: “he’s saying that she’s voluntarily willing to take a drug
test. That’s what we’re asking for, her to take a drug test and show that it’s
negative.” MR-10 (RR p. 1). The Department added that the Department would
be happy to look at any prescriptions she offered but added that the Department
had different facts about prescriptions each time CPS spoke with her and had been
trying for months to get this information without cooperation. MR-10 (RR p. 16).
At the conclusion of the hearing, the court advised that she was going to
order the mother to take a drug test and that it would be sealed so that only the
attorneys could view it. MR-10 (RR p. 18). The court advised if the drug test is
positive to let the court know, and the court presumed the matter would be
dismissed if not. RR p. 19.
That same day, Ms. Marks filed a pro se Petition for Mandamus asking this
court for emergency relief suspending the court’s order and to declare that the
court’s order was contrary to statutory and constitutional rights and void. Petition
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for Mandamus of Ms. Marks filed January 27, 2015. On that same date, however,
she submitted a supplement to her mandamus admitting she submitted to the drug
test but claimed “the drug testing is still ongoing.” Supplement to Petition for
Mandamus (Filed January 27, 2015). Neither the Petition nor the Supplemental
Petition of Mandamus provided this court with the Affidavit attached to the
Department’s petition, and neither acknowledged the facts presented at the subject
hearing as well as the obvious reference to facts from the affidavit during the
hearing.
On January 29 2015, this court requested a response to Ms. Marks’ pro se
petition within 30 days. Prior to the responsive date, Ms. Mark’s second attorney,
Steven Poock, filed a document entitled “Second Supplemental Petition for Writ of
Mandamus.” Essentially, it requested that this court order the judge to vacate the
orders in the case, dismiss the Department’s petition, declare the procedures
violated law and direct the judge to follow the law.
In the meantime, the Department filed notice of non-suit, and on February
17, 2015, the court dismissed the Department’s petition. On March 2, 2015, the
Department filed a Mandamus Record that included the non-suit order as well as
the material documents and record that were omitted from the record presented by
Relator with the Petition for Mandamus. See MR 8-9; MR 2 & 11.
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On March 5, 2015, this court entered an order expressing that it read the
Department’s mandamus record and concluded it appeared there no longer was a
controversy over which mandamus could apply. The court, therefore, asked for a
response within 14 days.
On March 11, 2015, Ms. Marks, through her attorney, responded to this
court’s order and claimed that this court retained jurisdiction, because Ms. Marks
filed a counterclaim for affirmative relief under Chapter 105 of the Civil Practice
& Remedies Code against the Department, and claimed mandamus relief would be
necessary if the Department ever sought an order for drug testing again. Ms.
Marks also filed an objection to the affidavit filed with the Department’s petition
and affirmatively stated “this exhibit was not served on Kimberly Marks, was never
served, presented or made available to Counsel, was never offered as evidence, and
was never admitted as evidence.” Relator’s Objection to Exhibit MR-2 p. 1. It
was further claimed that “Counsel for Kimberly Marks was completely unaware of
the affidavit until it was filed with the appellate court.” Id.
2. Kimberly Marks lacks a meritorious basis to object to the affidavit
filed with the trial court in this mandamus proceeding when she
never objected that she was not served the affidavit before or during
the hearing to which this mandamus relates, and the affidavit was
clearly referenced at the subject hearing, and well as in the petition
she answered.
For the first time, long after the hearing that resulted in the order Relator
complains about, Relator files an “objection” to the Affidavit that was filed in the
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trial court and expressly incorporated as part of Department’s petition by language
in the first paragraph of the Department’s petition. MR-2 p. 1. Relator does not
cite any authority for bringing an “objection” for the first time on appeal, and the
undersigned knows of no legal basis to do so. In addition, Tex. R. App. P. 33.1
clearly requires complaints be first presented to the trial court first before they are
urged to the appellate court. Therefore, the undersigned attorney knows of no
meritorious basis for this court to review or grant Relator’s claim.
Moreover, it seems somewhat disingenuous considering Relator filed her
mandamus petition to challenge the trial court’s ruling from a hearing in which the
affidavit was clearly referenced during the hearing, and Relator never included that
hearing or the affidavit in her Mandamus Record. See MR-11. The Department
had to request it and include it. Consequently, her objection kind of emphasizes
that Relator acted in bad faith, as described in Tex. R. App. P. 52.11(d), “because
of the omission of obviously and important and material evidence or documents.”
Not only was the subject hearing that was the basis of the order she complained
about in this proceeding omitted from Relator’s Mandamus Record but so was the
Affidavit which was referenced at the hearing and in the petition which Ms. Marks
answered. This court should, therefore, reject this complaint as frivolous and
dismiss and/or deny it.
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3. Relator’s claim for mandamus relief is moot.
The Department disagrees with Relator’s position that there is still a live
controversy entitled to mandamus relief. In this mandamus proceeding, besides
failing to provide this court with the relevant evidentiary facts admitted in
connection with the order Relator complained about to this court, Relator did not
provide this court with a copy of the order that non-suited the Department’s suit.
That is significant, because the non-suit mooted Relator’s claims for mandamus
relief and established there is no live controversy subject to review by this court.
A case becomes moot when no judiciable controversy continues to exist
between the parties. Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex.
2012). In this case, when the original pro se Petition for Mandamus was filed,
Relator claimed she there was a live controversy from which she needed
declarations about the invalidity of the trial court’s order and claimed that “Drug
testing is still ongoing,” Petition for Mandamus Supplement to Petition for Writ of
Mandamus (filed 1/27/15). However, since that time, she admitted she submitted
to a drug test and the record establishes the Department non-suited and no longer
maintains a suit seeking any orders against Ms. Marks. Consequently, there is no
live judiciable controversy from which this court can issue an order. As explained
by this court in Johnson v. Texas Serenity Academy, Inc., No. 01-14-00438-Cv,
2015 WL 1135947 (Tex. App.―Houston [1st Dist.] 2015, no pet. h.), once a final
9
order is rendered in a case, temporary orders become inoperative and “the issue of
its validity is moot.” Id. *4.
Also, the request for declaratory directives to the trial court as described in
the supplemental petitions filed in this mandamus would clearly amount to
impermissible advisory opinions. See Nat’l Collegiate Athletic Ass’n v. Jones,1
S.W.3d 83, 86 (Tex. 1999). Relator’s response to this court claims this court has
authority to consider her claims for advisory opinions based on the exception
announced in Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2000) of “capable of
repetition, yet evading review.” However, as explained in that case, that exception
only applies if “a reasonable expectation exists that the same complaining party
will be subjected to the same action again.” Id. Because the Department no longer
maintains a suit to seek orders for services by Relator, any suggestion that it will
be sought in the future is merely speculative. Consequently, there is no proof of
the capable-of-repetition standard provided under the mootness doctrine.
In addition, Relator acknowledges in her most recent supplementation to this
court that she maintains an action for damages against the Department under
Chapter 105 of the Family Code. That chapter permits damages against the State
under a procedure in which the party proves the agency sought an action that was
frivolous, unreasonable or without foundation. See Tex. Civ. Prac. & Rem. Code
§105.003 (West 1998). Those findings are essentially the same relief that Relator
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wants in the form of declarations from this court. Consequently, this circumstance
does not warrant extraordinary mandamus relief. Mandamus relief is only
available when a relator cannot obtain adequate remedy on appeal. In re Ford
Motor Co., 442 S.W.3d 265, 269 (Tex. 2014). Relator has adequate remedies at
trial, which may be challenged through the regular appeal process. Extraordinary
relief is not warranted and Relator provides no basis from which to conclude that
extraordinary relief is required in this circumstance. This court should, therefore,
dismiss and/or deny the mandamus proceeding.
PRAYER
For these reasons, the Department asks that this court deny the request for
objections to the affidavit filed in the trial court and included in the mandamus
record and further requests that this court deny and/or dismiss the mandamus
petition and for such other and further relief to which the Department may be
entitled in law or in equity.
Respectfully submitted,
VINCE RYAN
County Attorney (#99999939)
By: /s/ Sandra D. Hachem
Sandra D. Hachem
State Bar #08667060
Assistant County Attorney
SBN 08667060
1019 Congress, 17th Floor
Houston, Texas 77002
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Phone: (713) 274-5293
Fax: (713) 437-4700
ATTORNEY FOR REAL PARTY
IN INTEREST
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES,
CERTIFICATION OF FACT STATEMENTS
The Department of Family & Protective Services’ Attorney of Record,
Sandra Hachem, certifies that she has reviewed the foregoing response concluded
that every factual statement therein is supported by competent evidence included in
the Mandamus Records filed in this proceeding.
/s/ Sandra Hachem
SANDRA HACHEM
CERTIFICATE OF SERVICE
This is to certify that on this 19th day of March, 2014, a true and correct
copy of the foregoing motion was served on the below listed parties as follows:
To Relator, Kimberly Marks by and through her lead counsel, Steven Poock,
by email at: spoock@juno.com
Also on this same date, a true and correct copy of the foregoing notice was served
on the below listed parties by first class mail, properly addressed with proper
postage, as follows:
Respondent,
Honorable Lisa Millard
Harris County Courthouse
310th Family Court
201 Caroline, 15th Floor
Houston, Texas 77002
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Interested Party
Damon Wayne Marks
1008 Railroad,
Thornton, Texas 76687
/s/ Sandra Hachem
Sandra Hachem
Assistant County Attorney
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