In re Arp

IN RE: VANESSA ARP, RELATOR

NO. 12-20-00251-CV

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

January 13, 2021

ORIGINAL PROCEEDING

MEMORANDUM OPINION

Vanessa Arp, acting pro se, filed this original proceeding to challenge Respondent's temporary orders and denial of her motions to dismiss and for placement change.¹ We deny the writ.

BACKGROUND

On January 22, 2020, the Texas Department of Family and Protective Services (the Department) filed an original petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship regarding H.A. and W.A.² Vanessa and Carl Arp are the children's parents. Kelsey Drennan, a Department representative, stated in her supporting affidavit that on September 1, 2019, the Department received an intake for concern of neglectful supervision based on an allegation that Carl engaged in domestic violence with Vanessa in front of H.A. H.A. told Drennan that Carl pushed Vanessa's arm through a window and her arm bled like a shark bite.

Vanessa told Drennan that Carl had been out of the home since April but showed up unannounced on the day in question. Vanessa told him to leave and he pushed her arm through the window. She mentioned other instances when she awoke to him in her bedroom, when he stole her car keys and later slapped her, and when he drove through the garage door afterbecoming angry. On another occasion, Carl broke into the house, drug Vanessa to the car, and began driving. Vanessa escaped through an unlocked car door. Vanessa told Drennan that Carl has four pending charges for assaulting her and she believed that Carl uses drugs. She did not allow him to see the children when he was using drugs. Vanessa also claimed that Carl has been emotionally abusive, she is better off without him, and she cannot risk placing the children in jeopardy. Vanessa denied taking any medications at the time; she was previously prescribed Adderall for ADHD but stopped taking the medication. Drennan helped Vanessa schedule an appointment with the Women's Center of East Texas to seek a protective order.

On October 12, the Department received another intake stating that Vanessa used methamphetamine in the home and in the children's presence. The intake alleged that Carl found Vanessa passed out next to a pipe, and that Vanessa threatened to crash the car with the children inside and has threatened to leave the children outside alone. When Drennan went to the home to look for the family, she observed a vehicle outside the home but no one answered when she knocked on the door. On October 15, Drennan spoke to Detective Brandon Heath with the Longview Police Department who stated that they have many cases on the Arps but Vanessa would not respond to their attempts to follow up.

When Drennan spoke to Vanessa, Vanessa cried and said that the vehicle Drennan saw outside the home on October 12 belonged to Carl, who was not supposed to be there. Vanessa claimed to be afraid of him. She described receiving several calls from an unknown number and when she finally answered, the person identified as a detective and wanted to know her whereabouts. Vanessa also believed that Carl broke into her house and stole her dentures, and hacked into her social media and telephone because she had not received Drennan's calls from the weekend. Because Carl called her to ask about the new intake, she believed he was monitoring her electronic activity. Although Vanessa agreed to take a drug test, she never responded to Drennan's subsequent calls and texts. When Drennan spoke to Carl, he denied assaulting Vanessa. He believed his ex-wife made the new intake because she and Vanessa were "bickering." He had no concerns about drug use by Vanessa and he denied using drugs.

On November 15, Drennan learned that Vanessa's home caught fire, the fire may have been intentionally set, and Vanessa had been home with the children. Vanessa did not answer when Drennan attempted to call. On November 19, Vanessa's attorney told Drennan that he filed a divorce proceeding, with a restraining order and a protective order. Drennan asked thatVanessa be drug tested in order to close the case if the domestic violence issue would be handled through the divorce proceedings.

On December 3, Drennan spoke to Detective Heath who stated that he received several more reports since the last time they spoke. He advised that Vanessa went to Carl's job, threw rocks at Carl's vehicle, and was held until officers arrived. On December 9, Drennan received police reports from the Longview Police Department. One report stated that Vanessa, her children, and her father went by the home to retrieve mail and a prescription when she noticed that someone was inside the home. She went inside and found Carl, who immediately assaulted her. Carl, however, reported that Vanessa entered the home and hit him with a light. When officers went to check the mailbox, they found a pipe commonly used to smoke methamphetamine, 1.1 grams of methamphetamine, and four loose white oval pills. Neither Carl nor Vanessa claimed the drugs.

Drennan also went to the hotel where the Arps stayed after the fire. The staff told Drennan that Vanessa checked into the hotel with her children and a man, who the staff identified as Carl from a photograph. The staff stated that they called the police almost daily because of disturbances between Carl and Vanessa. In one instance, Carl blocked the driveway with his vehicle and the couple was arguing.

Drennan stated that Vanessa continues contact with Carl while telling authorities that she is afraid. She expressed a major concern for drug use as methamphetamine was found in the location that Vanessa said she would be retrieving items. Drennan stated, "The children are highly vulnerable ages and cannot self-protect in the event another incident of domestic violence occurs while they are present."

On January 22, Respondent signed an order for protection of the child. On February 18, Respondent held a full adversary hearing at which Vanessa did not appear, and Respondent found her to be in default for purposes of the hearing.³ On March 3, Respondent signed a temporary order, in which he found sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the children's physical health or safety which wascaused by an act or failure to act of the person entitled to possession; (2) it is contrary to the children's welfare to remain in the Arp home; (3) the urgent need for protection required the children's immediate removal and reasonable efforts consistent with the circumstances and providing for the children's safety were made to eliminate or prevent removal; and (4) reasonable efforts have been made to enable the children to return home but there is a substantial risk of a continuing danger if they are returned to the Arp home. Respondent further found that it is in the children's best interest to limit Vanessa's rights and duties and it is not in the children's best interest that either parent be appointed managing conservator because such appointment would significantly impair the children's physical health or emotional development. The children had been placed with a relative or other designated caregiver and Respondent concluded that the placement is appropriate and in the children's best interest. Respondent ordered that Vanessa have no possession or access to the children until further order of the court.

Vanessa subsequently filed a motion to dismiss for fraud on the court and motions for placement change. After hearings on each motion, Respondent denied the motions. This proceeding followed.⁴

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.—Tyler 2014, orig. proceeding.). "Mandamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding).

TEMPORARY ORDER

Vanessa contends that Respondent abused his discretion by entering the March 3 temporary order and failing to return the children to her after the February 18 adversary hearing.

Delay in Filing Mandamus

We begin by addressing the Department's contention that Vanessa waived any right to relief by waiting approximately eight months after the March order to file her mandamus petition.

Mandamus is an extraordinary remedy, not an absolute right. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993). "[I]ts issuance is largely controlled by equitable principles." Id. "One such principle is that 'equity aids the diligent and not those who slumber on their rights.'" Id. (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941)). "Thus, delaying the filing of a petition for mandamus relief may waive the right to mandamus unless the relator can justify the delay." In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding). To invoke this equitable doctrine of laches, the movant "ordinarily must show an unreasonable delay by the opposing party in asserting [its] rights, and also the moving party's good faith and detrimental change in position because of the delay." In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding) (per curiam).

Here, Vanessa did not file her petition for writ of mandamus with this Court until November 4, 2020, just over eight months from Respondent's March 3 order.⁵ In response to the Department's argument asserting delay, Vanessa points to the "man...