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In re R.M.

Court of Appeals of Texas, Second District, Fort Worth

November 16, 2017

IN RE R.M. RELATOR

         ORIGINAL PROCEEDING TRIAL COURT NOS. D2010203, D2017021

          PANEL: WALKER, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR, JUSTICE.

         Relator R.M. (Mother) seeks mandamus relief directing Respondent, the Honorable Ralph H. Walton, to vacate multiple orders signed in two cases-No. D2010203 and No. D2017021-from the 355th District Court of Hood County. In five issues, she contends that Respondent abused his discretion by signing the orders because (1) the real parties in interest, D.D.M. and D.B.M., lack standing to pursue relief in those cases; and (2) the trial court should have disqualified Richard Hattox, who represents D.D.M. and D.B.M., because he previously represented Mother and has a conflict of interest. We hold that in No. D2010203, D.D.M. and D.B.M. do not have standing; that in No. D2017021, D.D.M. does not have standing but D.B.M. does have standing; and that the trial court did not abuse its discretion by refusing to disqualify Hattox. We thus grant Mother's petition for writ of mandamus in part and deny the petition in part.

         Background Facts

         Mother has three children: B.A. (Braxton), E.A. (Emily), and D.B. (Daisy).[2]D.B.M. (Grandmother) is Daisy's paternal grandmother; she does not have a consanguineous relationship with Braxton or Emily. D.D.M. (Grandfather) does not have a consanguineous relationship with any of the children.[3]

         In 2010, the Department of Family and Protective Services filed a lawsuit- No. D2010203-concerning Mother's relationship with Braxton and Emily. Hattox represented Mother in that case (the "2010 Case"). In February 2012, the Department nonsuited its petition, and at the end of February 2012 the trial court signed a dismissal order.

         Five years later, in February 2017, Mother signed a "Family Team Plan" that recited the Department's concerns of Mother's "ongoing drug use" and stated that she had tested positive for opiates, that she had agreed to the grandparents' taking "custody of the children until [she could] receive needed services to address . . . drug use and become stable, " and that she had agreed with the grandparents' hiring of "attorney Richard Hattox to complete the custody orders." That same month, Mother went to Hattox's office, where she signed a waiver in which she consented to Hattox's representing the grandparents:

It is the desire of [Mother and Daisy's father] that the children be placed with [Grandmother] and that [Grandmother] has the right to discuss with and retain Richard L. Hattox to represent her and the children without conflict to the fact that he has represented [Mother] in a case regarding her children. [Emphasis added.]

         In March 2017, the grandparents-represented by Hattox-filed two petitions. In the 2010 Case, the grandparents filed a "Petition to Modify Parent-Child Relationship" concerning Braxton and Emily. The grandparents also filed an original petition in No. D2017021 (the "New Case") concerning Daisy.

         In both cases, the grandparents requested managing conservatorship of the children and pleaded that they had standing because the children had been placed with them by an agreement between the Department and Mother and that the children's circumstances with Mother significantly impaired their physical health or emotional development.

         Mother hired a new attorney and in each case moved to strike the grandparents' petition for lack of standing and also moved to disqualify Hattox as the grandparents' counsel. With respect to the latter, Mother argued that Hattox's representation of the grandparents against her was a "violation of the conflict rules and [an] unwaivable conflict." Concerning the motions to strike, she argued that no family-code provision gave the grandparents statutory standing and asserted that the grandparents had "made up their own standing requirement as claiming that the children were place[d] with them by the [Department]."

         The trial court conducted an evidentiary hearing on all motions. At the hearing, the parties disagreed about what had happened during Mother's meeting with Hattox at his office, including the purpose and extent of Mother's conflicts waiver.

         Mother's testimony

         Mother testified that in signing the waiver, she had believed that she was merely consenting to the grandparents taking temporary guardianship of the children to avoid a foster-care placement and was consenting simply to Hattox's discussing the children with the grandparents. She believed that Hattox and the grandparents were "all on one team" with her. Mother referred to Hattox as her "trusted lawyer" and testified that Hattox had never explained his conflict of interest to her. Although she admitted having signed a document waiving Hattox's conflict of interest, she testified that Hattox had "deceived" her and had never asked her to waive confidentiality requirements. Mother further explained that she had never understood that the grandparents would be suing her to change her legal rights to the children. Mother characterized her arrangement with the grandparents as a "friendly agreement that turned disastrous and nightmarish."

         Mary Hattox's testimony

         Hattox's wife, Mary-who works in her husband's law office-testified that she had met with Mother in the office in February 2017 and that Mother had sought Hattox's help because she did not want the children placed in foster care. According to Mary, Mother wanted Hattox to "prepare the documents that would allow [the grandparents] to take the children out of state, " and when Hattox explained his conflict of interest, she "begged" him to represent the grandparents and signed a document allowing him to do so. Mary testified that she had explained Hattox's conflict to Mother "over and over" and that Hattox had agreed to represent the grandparents only at Mother's insistence.

         Grandmother's testimony

         Grandmother testified that Mother had asked her to become involved in the children's lives, to legally seek the children's placement with her (Grandmother), and to hire Hattox to do so. She explained that Mother had understood that Hattox would be representing the grandparents in a legal action.

         Richard ...


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