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In re M. N.M.

Court of Appeals of Texas, Fourteenth District

June 29, 2017

IN RE M. N.M. AND R. K., Relators

         ORIGINAL PROCEEDING WRIT OF MANDAMUS 313th District Court Harris County, Texas Trial Court Cause No. 2017-01701J.

          Panel consists of Justices Boyce, Jamison, and Brown.

          OPINION

          William J. Boyce Justice.

         The Department of Family and Protective Services removed a two-year-old child from the possession of parents M.N.M. ("Mother") and R.K. ("Father") without a court order. See generally Tex. Fam. Code Ann. § 262.104 (Vernon 2014 & Supp. 2016). After removal, the trial court signed a Temporary Order Following Adversary Hearing; among other things, the trial court determined in this order that sufficient evidence supported findings precluding return of the removed child to her parents. See id. § 262.201(b) (Vernon Supp. 2016).

         Mother and Father filed a petition for writ of mandamus challenging the Temporary Order Following Adversary Hearing. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004); see also Tex. R. App. P. 52. They ask for a writ directing the trial court to (1) vacate the order, which appointed the Department to be temporary managing conservator of relators' child, and (2) return the child to relators.

         We conditionally grant the petition for writ of mandamus because the hearing record lacks sufficient evidence to satisfy a person of ordinary prudence and caution that an urgent need for protection requiring the child's immediate removal existed at the time of removal. See Tex. Fam. Code § 262.201(b)(2).

         Factual and Procedural Background

         Mother was the child's primary caretaker. On March 1, 2017, the Department received a referral alleging that (1) Mother negligently supervised the child by leaving her unattended in a car for approximately 40 minutes while Mother received medical treatment at a hospital; and (2) Mother appeared to be unstable and under the influence of an unknown substance while at the hospital. According to testimony, the allegation concerning the child being left alone in a car was erroneous. The second allegation was not corroborated.

         On March 9, 2017, the Department's caseworker met with Mother at her home and asked her to take a drug test. Mother voluntarily submitted to a drug test the next day. The Department received hair follicle test results on or about March 20, 2017; these results indicated Mother had tested positive for the presence of amphetamines and methamphetamines. The Department took possession of the child without a court order on Friday, March 24, 2017, and filed a petition seeking temporary managing conservatorship of the child on Monday, March 27, 2017. The trial court signed an Order for Protection of a Child in an Emergency and Notice of Hearing on March 27.

         Under Family Code section 262.201, a full adversary hearing must be held not later than 14 days after removal unless the trial court grants an extension. The trial court signed an order on April 6, 2017, in which it set the adversary hearing for April 20, 2017.

         Following a full adversary hearing, section 262.201 mandates return of a child who has been removed without a court order unless the trial court makes certain findings based upon evidence sufficient to satisfy a person of ordinary prudence and caution. Here, the trial court signed a temporary order on April 20 after the adversary hearing in which it appointed the Department as the child's temporary managing conservator. The April 20 temporary order includes findings invoking certain language from the statutory criteria for refusing to return a removed child to the parent:

• There was a danger to the child's physical health or safety caused by an act or failure to act of the person entitled to possession, and allowing the child to remain in the home is contrary to the child's welfare. See Tex. Fam. Code Ann. § 262.201(b)(1).
• An urgent need for protection required the child's immediate removal and makes efforts to eliminate or prevent the child's removal impossible or unreasonable. Cf. id. § 262.201(b)(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 . . .").
• Notwithstanding reasonable efforts to eliminate the need for the child's removal and enable the child to return home, there is a substantial risk of a continuing danger if the child is returned home. See id. § 262.201(b)(3).
• There is a continuing danger to the child's physical health or safety, and allowing the child to remain in the home is contrary to the child's welfare. Id. § 262.201(c).
• The Department made reasonable efforts consistent with the child's health and safety to prevent or eliminate the need for the child's removal and make it possible for the child to return home, but continuation in the home would be contrary to the child's welfare. Id. §§ 262.201(b)(2), (3).
• Placing the child with the child's noncustodial parent or with a relative is inappropriate and is not in the child's best interest. Id. § 262.201(e).
• Appointing the parents as managing conservators is not in the child's best interest because the appointment would significantly impair the child's physical health and emotional development. Id. at § 153.131(a)-(b) (Vernon 2014).

         An April 6, 2017 urinalysis test of Mother showed a positive result for methamphetamines, which indicated that Mother had used the drug within three days of the test. A post-removal drug test of Father showed a positive result for cocaine at a level that indicated more than a one-time use. On April 27, 2017, Mother and Father filed their petition for writ of mandamus with this court challenging the April 20 temporary order. The Department filed a response to the petition for writ of mandamus at this court's request.

         The trial court held status hearings on May 17 and May 30, 2017. The trial court signed an order on May 17 in which it (1) placed the child with a relative of Mother, and (2) required this relative to supervise visitation between the child and her parents. The trial court signed an additional Status Hearing Order on May 30, 2017; among other things, this May 30 order directs the parents to "complete all services on the Family Plan of Service" and orders continued supervision of the parents' visits with the child. The May 30 order finds that "the goal of the service plans is to return the child to the parents, and the plans adequately ensure that reasonable efforts are being made to enable the parents to provide a safe environment for the child."

         Mandamus Standard

         To obtain mandamus relief, a relator generally must show both that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The April 20 temporary order is an order in a suit affecting the parent-child relationship that is not subject to an interlocutory appeal under the Texas Family Code. Tex. Fam. Code Ann. § 6.507 (Vernon 2006). Accordingly, relators have no adequate remedy by appeal and satisfy the second requirement for mandamus relief. See In re Tex. Dep't of Family & Protective Servs., 255 S.W.3d 613, 614 (Tex. 2008) (orig. proceeding); In re Pate, 407 S.W.3d 416, 418 (Tex. App.-Houston [14th Dist.] 2013, orig. proceeding).

         Analysis

         Family Code section 262.104 provides that if there is no time to obtain a temporary restraining order or attachment before taking possession of a child, consistent with the child's health and safety, then the Department may take possession of a child without a court order - but only on facts that would lead a person of ordinary prudence and caution to believe there is an immediate danger to the physical health or safety of the child. Tex. Fam. Code Ann. § 262.104.

         This step is an "extreme measure" to be taken only when the statutorily required circumstances authorizing immediate removal are present. In re Pate, 407 S.W.3d at 419; see also Tex. Fam. Code Ann. § 262.201(b).

         After an emergency removal under section 262.104, a court must hold an initial hearing on or before the first working day after the date the child is taken into possession. A full adversary hearing must be held within 14 days of the child's removal unless the deadline is extended. Tex. Fam. Code Ann. § 262.106 (Vernon Supp. 2016); see also id. § 262.201(a).

         The adversary hearing is governed by section 262.201(b), which requires the court to return the child unless certain circumstances are present.

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 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 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
(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.

         If sufficient evidence does not demonstrate the existence of each requirement, then the court must return the child to the custody of her parents pending litigation. Pate, 407 S.W.3d at 419.

         Relators argue, among other things, that the evidence is insufficient to support findings necessary to preclude the child's return to them because there is no evidence of danger to the child at the time the Department took possession. To analyze this contention, we examine the circumstances leading to removal on March 24 in more detail.

         I. Circumstances ...


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