Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Relator, filed this original proceeding to challenge
Respondent's temporary order in a suit affecting the
parent-child relationship. We conditionally grant the writ.
2017, R.M. filed an original petition in suit affecting the
parent-child relationship. A.S. and R.M. are the parents of
K.M. In his supporting affidavit, R.M. alleged that A.S.
admitted being addicted to prescription pain medications,
including oxycodone and hydrocodone. R.M. stated that A.S.
consumes at least six pills of each medication daily and
obtains the pills from both a doctor and street dealers who
deliver pills to A.S. once or twice weekly. According to
R.M., some pills include extended release morphine. He stated
that A.S.'s two other children know the dealer's name
and he has evidence of A.S. trading and selling pills. R.M.
averred as follows:
When she is on these medications, she is very hyperactive as
if she is on speed, and when she runs out, she becomes
extremely angry, irrational, and verbally abusive towards the
children, and neglects the children's basic needs and
care. There have been numerous times when the children have
called me when [A.S.] has been passed out due to the effects
of the pills.
I am afraid for the immediate safety and welfare of my
daughter [K.M.] due to [A.S.'s] serious and illegal drug
use and continued neglect of my daughter. I am asking the
Court to enter an immediate temporary restraining order until
a hearing can be held for the Court to enter appropriate
orders to protect my daughter.
entered a general denial and filed a counter-petition. On May
2, Respondent signed a temporary restraining order that
immediately restrained A.S. from having possession or access
to K.M. unless under the direct supervision of R.M. or his
15, Respondent signed a temporary order appointing A.S. and
R.M. as temporary joint managing conservators, but gave R.M.
the exclusive right to designate K.M.'s residence within
Wood County. Respondent found that "credible evidence
has been presented to convince the Court that [A.S.] has a
prescription drug problem" and ordered that her
possession of K.M. at all times be under the direct
line-of-sight supervision of Linda or Nelson Puckett.
Respondent ordered the parties to attend mediation. On August
28, the parties signed a mediated settlement agreement that
gave R.M. the right to designate K.M.'s residence and
included a standard possession order with the exception of
certain visitation during the summer. The record indicates
that Respondent approved the settlement on August 31.
September 8, R.M. filed a petition to modify on grounds that
circumstances had materially and substantially changed since
signing of the mediated settlement agreement. He sought
appointment as K.M.'s sole managing conservator and
denial of A.S.'s access to K.M. In his supporting
affidavit, R.M. stated that a lab test of K.M.'s hair
revealed exposure to marijuana. Respondent signed a temporary
restraining order prohibiting A.S. from having any possession
of or access to K.M. On September 12, Respondent extended the
A.S. filed an answer and counter-petition. On September 27,
she filed a supplement to her counter-petition and an
affidavit, in which she stated that K.M. never acted drugged
while in her possession or at her household, and that because
R.M. scheduled and submitted K.M. for drug testing, "the
most likely scenario is that [R.M.] drugged my child with
marijuana in order to get the upper hand in our custody
case." According to A.S., the Texas Department of Family
and Protective Services (the Department) tested A.S. and
her entire household, including her two sons from a prior
relationship, and all tested negative for marijuana. She also
alleged that R.M. told her "on a number of occasions
that he has had sex with little girls and likes to have sex
with little girls." Thus, she believed that he fed drugs
to K.M. "in an effort to get her 100% for himself
because of his sick sexual fetish." She stated that K.M.
must be protected from R.M. Subsequently, R.M. filed a plea
to the jurisdiction and motion to strike on grounds that
A.S.'s pleadings were false and barred by res judicata.
September 28, Respondent held a hearing on temporary orders.
At the hearing, A.S.'s counsel informed Respondent that
the Department conducted drug testing and discovered no
evidence of marijuana use in A.S.'s home. R.M.'s
counsel suggested that any further conduct between A.S. and
K.M. be conducted in a therapeutic setting with a counselor.
Respondent addressed A.S.'s allegations against R.M.,
noting that the allegations "don't get any
worse" and had not been previously raised. Respondent
stated that the allegations are contained in public
documents, which K.M. may later review and "she's
going to be able to come back and see the fact that you
[A.S.] lied to the Court." Respondent suggested that
A.S. reconsider her affidavit or have "really, really
good proof that the allegations you're making are
absolutely 100 percent true." Respondent stated the
following regarding A.S.'s allegations against R.M.:
If that kind of thing existed, why in the world didn't
she [A.S.] (indicating) bring that up to me ...