Court of Appeals of Texas, Seventh District, Amarillo
ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
QUINN, C.J., and PIRTLE and PARKER, JJ.
petitioned us for a writ of mandamus directing the Honorable
Mark Hocker, County Court at Law #1, Lubbock County, (trial
court) to vacate his order denying E.S.'s petition for
writ of habeas corpus. Through the latter, E.S. sought to
obtain possession of his two children after their mother
died. At the time he petitioned for habeas relief, the
children were in the possession of their maternal
grandmother. The trial court denied habeas relief after
finding that 1) E.S. consented or acquiesced to the
relinquishment of actual possession and control of the
children for at least six months before petitioning for
habeas relief and 2) there existed a serious and immediate
question regarding the welfare of the children if relief were
granted. We deny the petition for several reasons.
mandamus issues to assist the diligent and not those who
slumber on their rights. In re Laibe Corp., 307
S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam).
Whether a relator so slumbered depends upon whether the delay
was unreasonable and the opponent, in good faith, encountered
a detrimental change in position due to the delay.
Id. Satisfaction of these elements depends on the
circumstances involved in the particular case. In re
Oceanografia, S.A., 494 S.W.3d 728, 730 (Tex. 2016)
(orig. proceeding) (per curiam).
the order denying E.S.'s petition to gain possession of
the children was denied by written order signed on May 28,
2019, and orally (in open court) on May 20, 2019. Not until
September 19, 2019, did E.S. seek mandamus relief from us.
This delay of approximately four months was explained in
part. Apparently, E.S. did not retain counsel to pursue such
relief until August 22, 2019. Between August 22nd and
September 19th, counsel allegedly experienced difficulty in
obtaining the documents necessary to support mandamus.
Assuming the latter to be true, no reason was given
explaining the delay between either May 20th or 28th and
August 22nd, however.
during the interim from May 28th to September 19th, the trial
court executed temporary orders appointing the children's
grandmother temporary managing conservator. These orders were
signed in July of 2019. In executing the orders, it imposed
duties of care and control over the children upon
grandmother. Those duties included, among other things, the
duty to shelter, feed, clothe, and educate the children. So
too did grandmother become legally obligated to provide them
medical and dental care. The obligations incurred are quite
significant and may have been avoided had E.S. petitioned for
mandamus relief sooner.
Supreme Court has long said that "'[j]ustice demands
a speedy resolution'" of child custody issues.
In re Tex. Dep't. Fam. & Protective Servs.,
210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (quoting
Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987)).
The approximate and unexplained three-month delay in
obtaining legal counsel to petition for mandamus relief and
the additional one-month lapse before filing that petition
ignores the foregoing admonishment. That and
grandmother's assuming the legal duties and obligations
attendant to caring for the children leads us to conclude
that E.S. failed to act diligently and, thereby, forfeited
his right to attack the May 28th order via a petition for
the findings underlying the trial court's refusal to
grant E.S. possession of the children were derived from
evidence presented at a hearing. During that hearing, E.S.
tried to explain why he had not seen the children in about
two years. He blamed it on their mother removing them from
Colorado and returning them to Texas. So too did he describe
his purported efforts to communicate with or contact them.
Yet, the trial court also heard testimony about 1) his
failure or refusal to provide for their financial support
after they moved to Lubbock, 2) his failure to pursue legal
avenues in either Colorado or Texas to obtain possession of
the children or otherwise garner periods of visitation, 3)
his having never seen the younger of the two children, 4) his
nominal efforts to contact the children while travelling
through or near Lubbock, 5) the absence of attempt to contact
the children for at least six months before seeking habeas
relief, 6) the children knowing little to nothing about E.S.
or his family, 7) the very young age of the children, 8) the
ties between the children and their current environment and
caregivers, and 9) the lack of familiarity between the
children, E.S., and E.S.'s family.
foregoing evidence is mentioned only to illustrate the
presence of fact issues necessitating resolution before the
trial court could arrive at the findings which justified its
decision. They encompass such questions as whether E.S.
actually acquiesced to the relinquishment of possession by
forgoing legal effort to obtain them, by failing to
financially support them, and by making only sporadic effort
to communicate or contact them. His words may have said one
thing, but his actions another. That was a matter the trial
court had to decide. Another question was whether the
emotional and physical welfare of the children would be
jeopardized by removing them from an environment with which
they were familiar and in which they are cared for and
placing them with an unfamiliar parent who neglected his
prohibited from dealing with disputed areas of fact in an
original mandamus proceeding. In re Angelini, 186
S.W.3d 558, 560 (Tex. 2006) (orig. proceeding). That is,
disputed material facts prevent us from granting mandamus
relief. In re Seas, No. 13-17-00685-CV, 2018
Tex.App. LEXIS 1035, at *8 (Tex. App.-Corpus Christi Feb. 6,
2018, orig. proceeding) (mem. op.) (stating that
"disputed facts prevent the Court from resolving issues
in a ...