Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 30, 2018
Original Mandamus Proceeding
Morriss, C.J., Moseley and Burgess, JJ.
C. MOSELEY, JUSTICE
Department of Family and Protective Services (the Department)
removed four children, TMo, BMo, EMo, and BMy, from the home
of Justin and Ashley. Ashley is the mother of all four children,
and Justin is the presumed father of BMy. The County Court at
Law of Lamar County appointed the Department as the temporary
managing conservator of the four children. Justin has
petitioned this Court for a writ of mandamus, seeking to have
our Court vacate the trial court's temporary orders and
compel the trial court to immediately return the children to
his custody on the basis that the trial court abused its
discretion: (1) by failing to hold an initial hearing; (2) by
failing to hold a timely adversary hearing; and (3) by naming
the Department as temporary managing conservator of
We will deny relief.
entitled to mandamus relief, the relator must show (1) that
he has no adequate remedy at law and (2) that the action he
seeks to compel is ministerial, not one involving a
discretionary or judicial decision. State ex rel. Young
v. Sixth Judicial Dist. Court of Appeals at Texarkana,
236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig.
proceeding). The relator is obligated to provide this Court
with a record sufficient to establish his right to mandamus
relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.
1992) (orig. proceeding); In re Pilgrim's Pride
Corp., 187 S.W.3d 197, 198-99 (Tex. App.-Texarkana 2006,
orig. proceeding); see Tex. R. App. P. 52.3. Before
mandamus may issue, the relator must show that the trial
court had a legal duty to perform a ministerial act, was
asked to do so, and failed or refused to act. In re
Villarreal, 96 S.W.3d 708, 710 (Tex. App.-Amarillo 2003,
Initial Hearing and Adversary Hearing
first two arguments, Justin contends that the trial court
abused its discretion because it failed to hold an initial
hearing and a timely adversary hearing.
262 of the Texas Family Code sets forth the procedures and
substantive requirements by which the Department may take
possession of a child when necessary to protect that
child's health and safety. Under that chapter, the
Department is granted authority in urgent circumstances to
remove a child from his or her home without prior notice.
See Tex. Fam. Code Ann. §§ 262.101,
262.104 (West Supp. 2017). This emergency authority is
subject to judicial oversight. See Tex. Fam. Code
Ann. §§ 262.102, 262.106-.107 (West Supp. 2017).
the Department takes possession of a child without a court
order, the Department is required to: "(1) file a suit
affecting the parent-child relationship; (2) request the
court to appoint an attorney ad litem for the child; and (3)
request an initial hearing to be held by no later than the
first business day after the date the child is taken into
possession." Tex. Fam. Code Ann. § 262.105(a) (West
Supp. 2017). The trial court must then "hold an initial
hearing on or before the first business day after the date
the child is taken into possession" or "no later
than the first business day after the court becomes
available, provided that the hearing is held no later than
the third business day after the child is taken into
possession." Tex. Fam. Code Ann. § 262.106(a).
"If the initial hearing is not held within the time
required, the child shall be returned to the parent, . . .
guardian, caretaker, or custodian who is presently entitled
to possession of the child." Tex. Fam. Code Ann. §
262.106(c). The initial hearing is held so the trial court
can review the propriety of the removal and issue a temporary
order. See Tex. Fam. Code Ann. §§
adversary hearing must be "held not later than the 14th
day after the date the child was taken into possession"
by the Department. Tex. Fam. Code Ann. § 262.201(a). The
full adversary hearing serves the same purpose as the initial
hearing, because in order to retain temporary possession and
custody of the children, the Department must prove that
"there is a continuing danger to the physical health or
safety of the child[ren]" and that remaining in the home
is contrary to the welfare of the children. Tex. Fam. Code
Ann. § 262.201(h) (West Supp. 2017). However, the
adversary hearing affords the parents the opportunity to
present evidence on their own behalf, hear and challenge the
Department's evidence, and challenge the Department's
right to retain the children it previously took into custody
under an ex parte order. In re E.D.L., 105 S.W.3d
679, 688 (Tex. App.-Forth Worth 2003, pet. denied).
scheduling requirements of Sections 262.106 and 262.201 are
procedural, not jurisdictional. See In re E.D.L.,
105 S.W.3d 679, 684 (Tex. App.-Fort Worth 2003, pet. denied).
If the hearing is not held within the time frame required by
statute, the remedy is to compel the trial court by mandamus
to promptly conduct the hearing. See In re J.M.C.,
109 S.W.3d 591, 595 (Tex. App.-Fort Worth 2003, no pet.) (per
the Department took possession of the children January 29,
2018. The trial court's initial temporary order of
protection states that the petition was presented to the
court on the same day,  the "Department appeared through
TIFFNAY MASSEY, caseworker, and by attorney MALCOLM U.
MCCLINCHIE, III, " and after having "examined and
reviewed" the Department's affidavit, the order was
executed and filed on January 31. The order set a full
adversary hearing for February 7, 2018, but pursuant to an ex
parte motion filed by the Department on February 1, the
temporary order was extended and the adversary hearing was
changed to February 21, 2018. On February 5, 2018, Justin was
given notice of the order and the setting of the adversary
hearing. On February 21, 2018, the day of the adversary
hearing, Justin moved to dismiss the Department's
petition and return the children due to the lack of an
initial hearing and the lack of a timely adversary hearing.
After the trial court denied his motion, the hearing
proceeded with all parties present and represented by
counsel, evidence and testimony were heard, and the trial
court ruled against Justin and the children's mother,
awarding temporary managing conservatorship of the children
to the Department. Justin filed this petition for writ of
mandamus on March 14, 2018.
having had weeks of notice regarding the possible issues
rising at the initial hearing and the date set for the
adversary hearing, Justin failed to seek mandamus relief
until March 14, 2018, three weeks after he lost at the
adversary hearing and six weeks after the children's
removal. The sole mandamus relief we can grant under these
circumstances is to order the trial court to promptly hold
the required hearing. However, by the time Justin sought
mandamus relief, the adversary hearing had already occurred.
See J.M.C., 109 S.W.3d at 595. Because the purposes
of the initial hearing were satisfied by the full adversary
hearing and Justin failed to ...