IN RE M. N.M. AND R. K., Relators
PROCEEDING WRIT OF MANDAMUS 313th District Court Harris
County, Texas Trial Court Cause No. 2017-01701J.
consists of Justices Boyce, Jamison, and Brown.
William J. Boyce Justice.
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).
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.
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
and Procedural Background
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.
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.
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.
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. §
• 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).
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.
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
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).
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.
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).
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.
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;
(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.
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.
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.