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In re K.L.M.

Court of Appeals of Texas, Fourteenth District

November 14, 2019

IN RE K.L.M., Relator

          ORIGINAL PROCEEDING WRIT OF MANDAMUS 257th District Court Harris County, Texas Trial Court Cause No. 2019-44698

          Panel consists of Justices Jewell, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          PER CURIAM

         On September 18, 2019, relator K.L.M. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Deborah Patterson, presiding judge of the 257th District Court of Harris County, to vacate her July 30, 2019 order for protection of a child in an emergency and August 27, 2019 temporary order following an adversary hearing in the underlying suit affecting the parent-child relationship.[1] We conditionally grant the petition.

         I. Background

         On May 21, 2019, the Texas Department of Family and Protective Services (the "Department") received a referral related to the abuse or neglect of the child by Mother and Father and conducted an investigation. On July 1, 2019, the Department filed a petition for an order to participate in service or an original petition for conservatorship in a suit affecting the parent-child relationship. The Department alleged, in part, that, (1) the Department had received and had probable cause to investigate a report of child abuse or neglect of the child; (2) an investigation had been completed, which confirmed that the child was suffering from the effects of abuse or neglect, or which indicated a reasonable likelihood that the child may be abused or neglected in the immediate foreseeable future; and (3) reasonable efforts had been made to prevent or eliminate the need to remove the child from the home, and allowing the child to remain in the home would be contrary to the child's welfare. The Department sought an order for Mother to participate in services provided by the Department. The petition was supported by the affidavit of a Department case worker.

         On July 23, 2019, the trial court ordered Mother to undergo drug testing. BraShanna Clark, a Department case worker, advised Mother that the July 23, 2019 hair follicle test was positive for opiates and heroin.

         On July 30, 2019, the Department filed an amended petition, which also sought termination of Mother's and Father's parental rights. Also, on July 30, 2019, the trial court signed an order for protection of a child in an emergency and notice of hearing. The order states that the Department appeared, through Clark and its attorney, and the child's attorney ad litem appeared. The order further stated that Mother had notice of the hearing but did not appear.

         The trial court made the following findings in the July 30, 2019 order: (1) there was an immediate danger to the physical health of the child or the child has been a victim of neglect, or human trafficking; (2) continuation in the home would be contrary to the child's welfare; (3) there was no time, consistent with the physical health or safety of the child, for a full adversary hearing; and (4) reasonable efforts consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child. The trial court appointed the Department emergency temporary sole managing conservator of the child.

         After obtaining the order, the Department removed the child from her home with Mother on July 30, 2019. The "Notice of Removal of Children" stated that the child should be removed from her home because Mother used opiates and heroin and the child had access to Mother's drugs.

         The trial court held an adversary hearing on August 27, 2019. Mother was present and represented by counsel. After the adversary hearing, the trial court signed a temporary order and found there was sufficient evidence to satisfy a person of ordinary prudence and caution that (1) there was a continuing danger to the physical health or safety of the child, 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 makes efforts to eliminate or prevent the child's removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the child's removal and enable the child to return home, there is a substantial risk of a continuing danger if the child is returned home. The trial court appointed the Department temporary managing conservator of the child.

         Mother seeks mandamus relief from the trial court's July 30, 2019 and August 27, 2019 orders. In her first issue, Mother contends that insufficient grounds exist for an ex parte emergency order removing the child from Mother's home. In her second issue, Mother further asserts that the trial court erred in refusing to return the child to her at the conclusion of the adversary hearing on August 27, 2019.

         II. Standard of Review

         Ordinarily, to be entitled to a writ of mandamus, relators must show that the trial court clearly abused its discretion, and that they lack an adequate remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302-03 (Tex. 2016) (orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). When the challenged ruling is based on factual issues or ...


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