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In re Justin M.

Court of Appeals of Texas, Sixth District, Texarkana

May 1, 2018

IN RE: JUSTIN M.

          Date Submitted: April 30, 2018

          Original Mandamus Proceeding

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          BAILEY C. MOSELEY, JUSTICE

         The Department of Family and Protective Services (the Department) removed four children, TMo, BMo, EMo, and BMy, from the home of Justin and Ashley.[1] 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 BMy.[2] We will deny relief.

         To be 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, orig. proceeding).

         I. Initial Hearing and Adversary Hearing

         In his 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.

         Chapter 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).

         After 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. §§ 262.106(a), 262.107.

         A full 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).

         The 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 curiam).

         Here, 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, [3] 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.[4] Justin filed this petition for writ of mandamus on March 14, 2018.

         Despite 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 ...


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