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In re K.M.

Court of Appeals of Texas, Twelfth District, Tyler

February 21, 2018

IN RE: K.M., A CHILD

         ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE.

         A.S., Relator, filed this original proceeding to challenge Respondent's temporary order in a suit affecting the parent-child relationship.[1] We conditionally grant the writ.

         BACKGROUND

         In May 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.

         A.S. 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 designated agent.

         On June 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.

         On 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 restraining order.

         Thereafter, 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)[2] 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.

         On 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 ...

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