In Re A.S. v. the State of Texas

NUMBER 13-23-00156-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE A.S.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Longoria1
By one issue, relator A.S., 2 who is the mother to minor child A.J.S.D., contends
that the trial court 3 abused its discretion by failing to return A.J.S.D. to her at the
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R.
47.1 (requiring the appellate courts to “hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition”); id. R. 47.4 (distinguishing opinions and
memorandum opinions).
2 We use pseudonyms to refer to relator, the children, and other family members. See TEX. FAM.
CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
3 This original proceeding arises from trial court cause number 23-03-89497-A in the 24th District
Court of Victoria County, Texas, and the respondent is the Honorable Jack W. Marr. See TEX. R. APP. P.
52.2.
conclusion of a full adversary hearing under the family code. See TEX. FAM. CODE ANN.
§ 262.201(g). We conditionally grant relief as stated herein.
I. BACKGROUND
This case concerns the involuntary termination of parental rights under Chapter
161 of the Texas Family Code. See id. §§ 161.001–.304. A.S. is the mother of two minor
children: E.D. and A.J.S.D. A.J.S.D., who was born in December 2022, was admitted to
the hospital one month later in January 2023 with severe head trauma. According to A.S.,
A.J.S.D.’s “brain functioning had been so severely impaired that the child would likely
succumb to [their] injuries and die.” The child’s injuries required specialized feeding and
medical equipment. Upon the child’s discharge from the hospital, the Texas Department
of Family and Protective Services (Department) implemented a safety plan prohibiting
A.J.S.D.’s father, W.D., from being in the presence of A.S. or either of the minor children.
According to the Department, “it is uncontested that W.D. caused the injuries [A.J.S.D.]
sustained that day, and A.S. was not present during the incident.” In February 2023, the
Department implemented a second safety plan after it became concerned that A.S. had
allowed W.D. to see the children in violation of the safety plan. This new safety plan
required A.S.’s mother to supervise all contact between A.S. and the children.
On March 3, 2023, the Department filed its “Original Petition For Protection of a
Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship.” That same day, the trial court signed an “Order for Protection of a Child in
an Emergency Hearing and Notice of Hearing.” In this order, the trial court found that “all
reasonable efforts . . . have been made by the [Department] to prevent or eliminate the
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need for removal of the children . . . from the home and to make it possible for the children
to return home but continuation in the home of the [p]arents would be contrary to the
children’s welfare.” This order named the Department as temporary sole managing
conservator of the children and, among other things, appointed an attorney ad litem and
a guardian ad litem for the children, appointed temporary attorney ad litems for A.S. and
W.D., and set the matter for a full adversary hearing.
On March 17, 2023, the Department filed its “First Amended Petition for Protection
of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship.” On March 20, 2023, and March 21, 2023, the trial court held a full
adversarial hearing with testimony from multiple witnesses. On April 10, 2023, the trial
court signed the “Temporary Order Following Adversary Hearing,” which is at issue in this
original proceeding. This order returns minor child E.D. to A.S., but does not similarly
return minor child A.J.S.D. to A.S. The order, which includes multiple handwritten
notations and interlineations, includes the following findings:
Having examined and reviewed the Department’s pleadings and the sworn
affidavit accompanying the petition and based upon the facts contained
therein and the evidence presented to this Court at the hearing conducted
on this date, the Court finds there is sufficient evidence to satisfy a person
of ordinary prudence and caution that: (1) there was a danger to the physical
health or safety of the child, [A.J.S.D.]. The Court further finds it is contrary
to the welfare of the child [A.J.S.D.] to remain in the home of [A.S.] or of
[W.D.], and[] (2) the urgent need for protection required the immediate
removal of [A.J.S.D.] and no reasonable efforts consistent with the
circumstances and providing for the safety of [A.J.S.D.] were available . . . ,
and (3) reasonable efforts are available to enable [A.J.S.D.] to return home
[sic] of [A.S. or W.D.] but there is a substantial risk of a continuing danger if
[A.J.S.D.] are [sic] returned home [sic] of [A.S. or W.D.] at this time.
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This original proceeding ensued. As stated previously, A.S. asserts that the trial
Court abused its discretion in failing to return A.J.S.D. to her at the conclusion of the
adversary hearing as required by Texas Family Code § 262.201(g). In summary, A.S.
argues that the trial court must order the return of the child unless clear and convincing
evidence supports each subsection of § 262.201(g); the Department was “demonstrably
biased against A.S. in seeking emergency removal of A.J.S.D. and failed to produce clear
and convincing evidence of any failure by A.S. to care for or protect either of her children”;
the Department did not prove the existence of any danger to A.J.S.D.’s physical health or
safety caused by A.S. or that it was contrary to A.J.S.D.’s welfare to remain in A.S.’s
home; that the evidence was insufficient to find any urgent need for the protection of
A.J.S.D. which required the immediate removal of the child; and the evidence was
insufficient to support any finding that reasonable efforts were made to eliminate or
prevent the child’s removal.
This Court requested that the Department, or any others whose interest might be
directly affected by the relief sought, including but not limited to W.D., attorney ad litem
Julie Hale, and guardian ad litem Marla Darilek, to file a response to the petition for writ
of mandamus. See TEX. R. APP. P. 52.4, 52.8. The Department has filed a response to
the petition for writ of mandamus asserting that, “[a]lthough the evidence was
overwhelmingly in support of the required findings under § 262.201, the trial court’s order
failed to make those required findings.” Thus, while “the Department disagrees that the
evidence was insufficient,” it “concedes the order must be vacated due to the lack of
required statutory findings.”
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II. MANDAMUS
Mandamus is an extraordinary and discretionary remedy. See In re Allstate Indem.
Co., 622 S.W.3d 870, 883 (Tex. 2021) (orig. proceeding); In re Garza, 544 S.W.3d 836,
840 (Tex. 2018) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). The relator must show that (1) the trial
court abused its discretion, and (2) the relator lacks an adequate remedy on appeal. In re
USAA Gen. Indem. Co., 624 S.W.3d 782, 787 (Tex. 2021) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d at 135–36; Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two
requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig.
proceeding) (per curiam); Walker, 827 S.W.2d at 840. A trial court’s ruling allowing the
Department to maintain custody of a child following an adversarial hearing is not subject
to appeal and may be reviewed by mandamus. See In re Tex. Dep’t of Fam. & Protective
Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re Justin M.,
549 S.W.3d 330, 334 (Tex. App.—Texarkana 2018, orig. proceeding); In re M.N.M., 524
S.W.3d 396, 399 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); see also In re
J.D.S., 494 S.W.3d 387, 389–90 (Tex. App.—Waco 2015, no pet.) (explaining that the
trial court’s decision to allow the Department to maintain custody of a child following a full
adversary hearing is reviewable by mandamus and that any temporary order making
findings to support removal will be superseded by the entry of a final order of termination).
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III. LAW AND ANALYSIS
Chapter 262 of the family code sets forth the procedures and substantive
requirements by which the Department may take possession of a child when necessary
to protect that child’s health and safety. See generally TEX. FAM. CODE ANN. §§ 262.001–
.417. The Department is granted authority in urgent circumstances to remove a child from
his or her home without prior notice. See id. § 262.101. Absent an extension of time, “a
full adversary hearing shall be held not later than the 14th day after the date the child was
taken into possession” by the Department. Id. § 262.201(a). “[T]he adversary hearing
affords the parents the opportunity to present evidence on their own behalf, hear and
challenge the Department’s evidence, and challenge the Department’s right to retain the
children it previously took into custody under an ex parte order.” In re Justin M., 549
S.W.3d at 333. The code delineates the trial court’s responsibilities following the full
adversary hearing:
In a suit filed under [§] 262.101 or 262.105, at the conclusion of the full
adversary hearing, the court shall order the return of the child to the parent,
managing conservator, possessory conservator, guardian, caretaker, or
custodian entitled to possession from whom the child is removed unless the
court finds sufficient evidence to satisfy a person of ordinary prudence and
caution that:
(1) there was a danger to the physical health or safety of the child,
including a danger that the child would be a victim of trafficking under
[§] 20A.02 or 20A.03, Penal Code, which was caused by an act or
failure to act of the person entitled to possession and for the child to
remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the
child and reasonable efforts, consistent with the circumstances and
providing for the safety of the child, were made to eliminate or
prevent the child’s removal; and
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(3) reasonable efforts have been made to enable the child to return
home, but there is a substantial risk of a continuing danger if the child
is returned home.
TEX. FAM. CODE ANN. § 262.201(g). The removal of a child on an emergency basis before
fully litigating custody matters “is an extreme measure that may be taken only when the
circumstances indicate a danger to the physical health and welfare of the child and the
need for his [or her] protection is so urgent that immediate removal from the home is
necessary.” In re Pate, 407 S.W.3d 416, 419 (Tex. App.—Houston [14th Dist.] 2013, orig.
proceeding). Unless the evidence reflects the existence of each requirement set forth in
this section, the court must return the child to the custody of its parents pending further
litigation. See In re M.N.M., 524 S.W.3d at 399; In re Hughes, 446 S.W.3d 859, 861 (Tex.
App.—Texarkana 2014, orig. proceeding); In re Pate, 407 S.W.3d at 419.
We examine the trial court’s order in conjunction with the statutory requirements.
The trial court applied the correct statutory standard of review insofar as it examined
whether there was sufficient evidence to satisfy a person of ordinary prudence and
caution of the statutory requirements. See TEX. FAM. CODE ANN. § 262.201(g). Subsection
(1) required the trial court to find that “there was a danger to the physical health or safety
of the child . . . which was caused by an act or failure to act of the person entitled to
possession and for the child to remain in the home is contrary to the welfare of the child.”
Id. § 262.201(g)(1). The court’s order provided that “there was a danger to the physical
health or safety of the child,” and that “it is contrary to the welfare of the child . . . to remain
in the home of [A.S. or W.D.],” but the trial court struck through printed language stating
that the danger “was caused by an act or failure to act of the person entitled to
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possession.” Thus, the trial court’s finding does not comply with the express statutory
language requiring it to conclude that the danger was caused by the person entitled to
possession. See id.
Subsection (2) required the trial court to find that “the urgent need for protection
required the immediate removal of the child and reasonable efforts, consistent with the
circumstances and providing for the safety of the child, were made to eliminate or prevent
the child’s removal.” Id. § 262.201(g)(2). The trial court’s order provided that “the urgent
need for protection required the immediate removal of [A.J.S.D.], and no reasonable
efforts consistent with the circumstances and providing for the safety of [A.J.S.D.] were
available.” The statute required the trial court to conclude that reasonable efforts were
made to eliminate or prevent the child’s removal; however, the trial court instead
concluded that there were no reasonable methods to accomplish this goal. See id.
Subsection (3) required the trial court to find that “reasonable efforts have been
made to enable the child to return home, but there is a substantial risk of a continuing
danger if the child is returned home.” Id. § 262.201(g)(3). The trial court’s order instead
provides that “no reasonable efforts are available to enable [A.J.S.D.] to return [to the]
home of [A.S.] or [W.D.], but there is a substantial risk of a continuing danger if [A.J.S.D.
is] returned home to [A.S. or W.D.] at this time.” The statute required the Department to
make reasonable efforts, but the trial court seemingly concluded that this effort was not
necessary. See id.
Based on the foregoing, the trial court failed to make the findings required by
§ 262.201(g). According to the provisions of the order, the trial court affirmatively did not
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find that there was a danger to the physical health or safety of A.J.S.D. which was caused
by an act or failure to act of A.S., or that reasonable efforts were made to eliminate or
prevent A.J.S.D.’s removal, or that reasonable efforts were made to enable A.J.S.D. to
return home. See id. Thus, in the absence of the required findings, the trial court abused
its discretion in failing to order the return of A.J.S.D. to A.S. See In re M.N.M., 524 S.W.3d
at 399; In re Hughes, 446 S.W.3d at 861; In re Pate, 407 S.W.3d at 419.
We turn our attention to the appropriate remedy for this abuse of discretion. A.S.
asserts that we should direct the trial court to order A.J.S.D. to be returned to her. The
Department asserts that, instead, we should set aside the trial court’s temporary order
and remand the matter for a new hearing. In support of that proposition, the Department
cites In re E.D.L., 105 S.W.3d 679 (Tex. App.—Fort Worth 2003, no pet.). In E.D.L., the
appellant contended that the fourteen-day deadline for holding a full adversary hearing
was jurisdictional and the trial court’s failure to dismiss the case for failing to meet that
deadline constituted error. See id. at 685. The Fort Worth Court of Appeals rejected
appellant’s contention that this deadline was jurisdictional and held that, “[i]n the event a
full adversary hearing is not held within fourteen days, [§] 262.201 provides both the
parents and [the Department] the right to compel the trial court by mandamus to conduct
the adversary hearing promptly.” Id. at 688. The Department also cites In re A.V., No. 03-
15-00030-CV, 2015 WL 869013 (Tex. App.—Austin, Feb. 27, 2015, orig. proceeding)
(mem. op.), in support of its request that we direct the trial court to hold a second
adversary proceeding. In A.V., the relators filed a petition for writ of mandamus seeking
(1) to vacate the trial court’s temporary orders granting the Department temporary
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conservatorship of relators’ child, and (2) to compel the trial court to conduct a full
adversary hearing in accordance with Chapter 262 of the Texas Family Code. Id. at *1.
In that case, the trial court utterly failed to hold the full adversary hearing mandated by
the family code; thus, the Austin Court of Appeals conditionally granted mandamus relief
and directed the trial court to vacate its temporary orders allowing the Department to
retain possession of the child. Id. at *3.
We conclude that these cases, which concern the failure to hold an adversary
hearing, are inapposite to the situation presented here, where a full adversary hearing
was held. Based on our review of the applicable law, the appropriate remedy is to direct
the trial court to vacate its temporary order following the adversary hearing. See In re
M.N.M., 524 S.W.3d at 406; In re Hughes, 446 S.W.3d at 861; In re Pate, 407 S.W.3d at
420; In re Allen, 359 S.W.3d 284, 291 (Tex. App.—Texarkana 2012, orig. proceeding)
(op. on reh’g). We thus decline to direct the trial court to hold an additional adversarial
hearing. In so ruling, however, we note that our supreme court has addressed the trial
court’s “broad authority to protect children” when children are ordered returned to their
parents under § 262.201:
The court may make and modify temporary orders “for the safety and
welfare of the child,” including an order “restraining a party from removing
the child beyond a geographical area identified by the court.” The court may
also order the removal of an alleged perpetrator from the child’s home and
may issue orders to assist the Department in its investigation. The Code
prohibits interference with an investigation, and a person who relocates a
residence or conceals a child with the intent to interfere with an investigation
commits an offense.
While the district court must vacate the current temporary custody
orders as directed by the court of appeals, it need not do so without granting
other appropriate relief to protect the children . . . .
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In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d at 615 (footnotes omitted)
(emphasis added).
IV. CONCLUSION
Having examined and fully considered the petition for writ of mandamus, the
response filed by the Department conceding error, and the applicable law, the Court is of
the opinion that A.S. has met her burden to obtain relief. Accordingly, we conditionally
grant the petition for writ of mandamus and direct the trial court to vacate its April 10, 2023
“Temporary Order Following Adversary Hearing.” Our writ will issue only if the trial court
fails to promptly comply. Given our ruling herein, we dismiss as moot A.S.’s “Motion for
Emergency Stay and Return of Child.”
NORA L. LONGORIA
Justice
Delivered and filed on the
5th day of May, 2023.
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