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In re R.P.D.

Court of Appeals of Texas, Fifth District, Dallas

April 12, 2019

IN RE R.P.D. JR., Relator

          Original Proceeding from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-23826

          Before Justices Bridges, Osborne, and Carlyle

          MEMORANDUM OPINION

          DAVID L. BRIDGES, JUSTICE

         The underlying proceeding is a divorce and suit affecting the parent-child relationship. There is one child of the marriage. That child will turn one in June 2019. The underlying proceeding commenced in November 2018 after a physical altercation where Mother stabbed Father in the neck. Mother claims she stabbed Father following a violent altercation in which Father drew a gun on her and threatened to kill her. The child was present in the home during the altercation. Shortly thereafter, Mother sued for divorce, and Father filed a counter petition. Mother and Father accuse each other of family violence in their pleadings. Multiple hearings occurred in December 2018 and January 2019 before associate judges and District Court Judge David Lopez regarding the placement of the child and temporary orders for the child's care. Those hearings culminated in the February 7, 2019 order at issue here.

         In this original proceeding, Father complains of a February 7, 2019 order appointing the Texas Department of Family and Protective Services (TDFPS) temporary managing conservator, gives Mother supervised visitation on a weekly basis as arranged by Mother and TDFPS or the child's caregivers, and provides Father with supervised visits with the child at the TDFPS each week at hours agreed to and arranged between Father and TDFPS. Father seeks a writ of mandamus ordering the trial court to vacate the temporary orders that appointed TDFPS managing conservator of the child and to enter orders appointing Father sole managing conservator. Father presents two issues. First, he argues the trial court clearly abused its discretion by appointing TDFPS as temporary managing conservator because the evidence failed to meet the requirements of section 262.201(g) of the family code. Second, Father asserts the trial court clearly abused its discretion by failing to appoint Father temporary sole managing conservator where the evidence showed Mother committed family violence with the child present.

         Mandamus Standard

         A trial court's decision to allow TDFPS to maintain custody of a child following an adversary hearing is reviewable through a petition for a writ of mandamus. In re Tex. Dep't of Family & Protective Servs., 255 S.W.3d 613, 614 (Tex. 2008); see also In re J.D.S., 494 S.W.3d 387, 389 (Tex. App.-Waco 2015, orig. proceeding); In re Allen, 359 S.W.3d 284, 288 (Tex. App.-Texarkana 2012, orig. proceeding). A relator seeking mandamus relief from a temporary order in a suit affecting the parent-child relationship is entitled to such relief if he establishes that the trial court abused its discretion in signing the temporary orders. In re Justin M., 549 S.W.3d 330, 334 (Tex. App.-Texarkana 2018, orig. proceeding). An abuse of discretion occurs when the trial court's decision is so arbitrary and capricious that it amounts to clear error. Walker v. Packer, 827 S.W.2d 832, 839 (Tex. 1992). Because a trial court has no discretion in determining the law or in applying the law to the facts of the case, the failure to analyze or apply the law correctly constitutes an abuse of discretion. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006) (orig. proceeding); In re Thompson, 330 S.W.3d 411, 417 (Tex. App.-Austin 2010, orig. proceeding).

         Applicable Law

         Chapter 262 of the family code sets forth the procedures and substantive requirements by which the TDFPS may take possession of a child when necessary to protect that child's health and safety. A full adversary hearing must be "held not later than the 14th day after the date the child was taken into possession" by the TDFPS. Tex. Fam. Code Ann. § 262.201(a). Section 262.201(g) provides what evidence the TDFPS must present to maintain possession of the child after the required adversary hearing:

(g) In a suit filed under Section 262.101 or 262.105, at the conclusion of the full adversary hearing, the court shall order the return of the child to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian entitled to possession unless the court finds sufficient evidence to satisfy a person of ordinary prudence and caution that:
(1)there was a danger to the physical health or safety of the child, including a danger that the child would be a victim of trafficking under Section 20A.02 or 20A.03, Penal Code, which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
(3)reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.

Tex. Fam. Code Ann. ยง 262.201(g). Here, Father avers that no evidence supported findings that Father posed a danger to the physical health or safety of the child caused by his act or failure to act; there was an urgent need to protect the child from father requiring immediate removal of the child; or reasonable efforts had been made to return the child to father's home or that there ...


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