In re Tex. Dep't of Family & Protective Servs.

IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Relator

NO. 01-18-00717-CV

NO. 01-18-00718-CV

NO. 01-18-00719-CV

Court of Appeals For The First District of Texas

October 2, 2018

Original Proceedings on Petition for Writ of Mandamus

MEMORANDUM OPINION

The Department of Family and Protective Services ("the Department") has filed three petitions for writ of mandamus, requesting that the trial court be directed to hold a full adversary hearing, as required by Subsection 262.201(b) of the Family Code, in three related trial court cases.¹ See TEX. FAM. CODE ANN. § 262.201(b) (West Supp. 2017). We conditionally grant relief in each mandamus proceeding.

Background

The three trial court cases underlying the requests for mandamus relief are suits affecting the parent child relationship ("SAPCR"). Each case involves one child. The three children have the same mother, but each has a different father.

On May 30, 2018, in each case, the Department filed a pleading,² requesting the trial court (1) to "set [the] case for temporary hearing and order the parties to appear for a hearing to determine whether the child should be removed from the home" and (2) to sign temporary orders "at the full adversary hearing," appointing the Department as the child's temporary sole managing conservator. The Department stated that "[r]easonable efforts have been made to prevent or eliminate the need to remove the child from the child's home, and allowing the child to remain in the home would be contrary to the child's welfare."

The Department asserted that "temporary orders are necessary because the child's present living environment may endanger the child's physical health or significantly impair the child's emotional development" and the "temporary orders are in the best interest of the child." In support of its request for temporary conservatorship, the Department offered the affidavit of its representative, who testified, in part, as follows:

The mother [D.S. has] made admissions of knowingly taking Xanax and Vicodin without a valid prescription while she was approximately 8 months pregnant with her youngest child, [J.T.C.]. The mother was working Family Based Safety Services [FBS]since July 2016 and has continuously relapsed on multiple illegal substances and has tested positive on multiple drug tests for cocaine, methamphetamines, and benzodiazepines. The mother has been in and out of drug rehabilitation facilities during the course of her FBSS case, but still continues to relapse. All three fathers have extensive criminal history involving either family violence or drug possession. None of the fathers or any of their relatives are ready and willing to be considered as a temporary placement for the children. It is the opinion of the Department that there is a continuing danger to the physical health and safety of the children to be returned to the parent; continuation of the children in the home would be contrary to the children's welfare; and reasonable efforts, consistent with the circumstances and providing for the safety of the children, were made to prevent or eliminate the need for removal of the children. Therefore, [the Department] is seeking to be appointed Temporary Managing Conservatorship of [the three children].

In each case, the Department pleaded that, if reunification between the child and the parents could not be achieved, a relative or "other suitable person" be appointed as the child's sole managing conservator. If the child could not be permanently placed with a relative or other suitable person, the Departmentrequested that it be named as the child's permanent sole managing conservator. Finally, if family reunification could not be achieved, the Department requested that the parent-child relationship between each child and the parents be terminated.

On May 31, 2018, the trial court signed orders appointing each parent counsel and appointing the children an attorney ad litem. The trial court also set the full adversary hearing for the three cases for June 14, 2018, "which is a date not later than 30 days from the date of the filing of the petition pursuant to Texas Family Code, §262.201(b)." The mandamus record shows that the trial court signed an order resetting the June 14 adversary hearing for the three children to July 12, 2018.

The mandamus record also contains the transcript from the July 12 hearing. Appearing at the hearing were the attorney representing the Department, the attorneys appointed to represent each parent, and the children's attorney ad litem. The attorney representing the mother objected to the hearing, and an attorney representing one of the fathers joined the objection.

The mother's attorney asserted, "[P]ursuant to the Texas Family Code under [section] 262.201[b], a full adversary hearing and suit filed under that section requesting possession of a child shall be held not later than the 30th day after the date was suit was filed. Suit was filed May 31st [sic], and here we are in July." She also averred, "The burden [is] on the Department to have [the adversary hearing] done and actually held [within 30 days of filing suit], not just that we set it in acertain period of time but [the hearing] actually has to be held." The trial court remarked, "That sounds jurisdictional." The attorney ad litem indicated on the record that the hearing had been reset from June 14 because she had been out of the county on that date.³ The trial court and the attorneys then discussed whether holding the adversary hearing within 30 days of suit being filed was jurisdictional, that is, whether the failure to hold the hearing within the 30-day period divested the trial court of its subject-matter jurisdiction.

The Department responded that Subsection 262.201(b) did not affect the trial court's jurisdiction to decide possession or to continue to final disposition of the cases. The Department pointed out that Subsection 262.201(b) does not contain language regarding jurisdiction or dismissal. However, the trial court stated that,because Subsection 262.201(b) provides that the adversary hearing "shall" be held within 30 days, and the hearing had not occurred within 30 days, it had "no authority to say who can have the children any longer." The trial court told the Department, "It would sound to me like you should nonsuit and redo it." The Department responded that it did not want to nonsuit its claims because "it might be a bad precedent." The trial court replied, "Then you can file your mandamus because I'm dismissing it. . . . It's with prejudice now because you pushed me that way. . . . I gave you an opportunity to nonsuit. You refused. It's dismissed." Although it orally ruled the cases should be dismissed, the trial court did not sign an order of dismissal.

The Department filed its petitions for writ of mandamus, corresponding to each of three SAPCRs in the trial court.⁴ The Department requests this Court to direct the trial court to hold a full adversary hearing.

In support of its requested mandamus relief, the Department asserts the same two issues in each petition. The Department first contends that the trial court abused its discretion when it refused to hold the adversary hearing based on the trial court's interpretation of Subsection 262.201(b) that the 30-day hearing requirement is jurisdictional. The Department also contends that it has no adequate remedy by appeal.

Standard of Review

Mandamus is an extraordinary remedy, available only when the relator can show both that (1) the trial court clearly abused its discretion, and (2) there is no adequate remedy by way of appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court has no discretion in determining what the law is or properly applying the law. Id. If it fails to properly interpret the law or applies the law incorrectly, the trial court abuses its discretion. Id. at 642-43. This mandamus turns on whether the trial court properly interpreted Family Code Section 262.201(b). We review a trial court's interpretation of the law de novo. In re Tex. Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009).

In determining whether an appeal is an adequate remedy, we balance the benefits and detriments of mandamus review. In re McAllen Med. Ctr., 275 S.W.3d 458, 464 (Tex. 2008). This balance is heavily circumstantial. Id.

Analysis

A. Abuse of Discretion

In its first issue, the Department asserts that the trial court's "holding that it lacked subject matter jurisdiction over this case as a consequence of Tex. Fam. Code § 262.201(b), that it will not hear [the Department's] adversary hearing, and that itmust dismiss this case with prejudice are legal errors and are, therefore, clear abuses of its discretion."

Family Code Subsection 262.201(b) states, "A full adversary hearing in a suit filed under Section 262.113 requesting possession of a child shall be held not later than the 30th day after the date the suit is filed." FAM. § 262.201(b). Family Code Section 262.113 provides that the Department may file a SAPCR without taking emergency possession of the child. TEX. FAM. CODE ANN. § 262.113 (West Supp. 2017). Here, the Department sought temporary managing conservatorship of the children without first taking emergency possession of them. See id. At the July 12 hearing, all parties appeared to agree that Subsection 262.201(b) and its requirement that a hearing "shall" be held within 30 days of filing applies to the three underlying cases.

When used in statutes, both "shall" and "must" are generally recognized as creating mandatory obligations. Tex. Dept. of Pub. Safety v. Shaikh, 445 S.W.3d 183, 187 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)). But mandatory statutory duties are not necessarily jurisdictional. Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d...