                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00076-CV




               IN RE: JOSHUA HUGHES




             Original Mandamus Proceeding




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Moseley
                                        OPINION
       In August 2014, the Department of Family and Protective Services filed in Bowie

County, Texas, its petition for protection of a child, for conservatorship, and for termination in a

suit affecting the parent-child relationship. On the same day, the trial court entered an order for

protection of the child naming the Department as the child’s temporary managing conservator

and issued a notice of hearing. At the adversary hearing, Joshua Hughes, the father of the child

at issue, moved to dismiss the petition because it lacked an affidavit as required by the Texas

Family Code. See TEX. FAM. CODE ANN. § 262.101 (West 2014). The trial court stated that it

had reviewed affidavits of the child’s parents in another case and believed there were issues of

drug abuse involved. During the hearing, the court admitted no exhibits and heard no testimony.

Because there was no evidence in support of the Department’s petition, Hughes moved for a

directed verdict.   The trial court denied Hughes’ motions and issued a “Temporary Order

Following Adversary Hearing” mandating that the child would remain in the care of the

Department.    In his petition for writ of mandamus, Hughes asks this Court to vacate the

temporary order and order the child returned to Hughes.

       We may grant a petition for writ of mandamus when the relator shows there is no

adequate remedy at law to redress the alleged harm and that the act to be compelled is purely

ministerial.   Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006) (orig.

proceeding) (per curiam). The relator must establish that the facts and the law permit the trial

court to make only one decision. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding).
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       Temporary orders in a suit affecting the parent-child relationship are not subject to an

interlocutory appeal under the Texas Family Code. TEX. FAM. CODE ANN. § 6.507 (West 2006).

Accordingly, Hughes lacks a clear and adequate remedy at law and has thus satisfied the first

requirement for mandamus relief. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)

(orig. proceeding) (per curiam) (mandamus appropriate remedy “since trial court’s issuance of

temporary orders not subject to interlocutory appeal”).

       Next, we must determine whether the record establishes a clear abuse of discretion by the

trial court. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994) (orig. proceeding) (per curiam);

Dancy, 815 S.W.2d at 549; In re Allen, 359 S.W.3d 284, 288 (Tex. App.—Texarkana 2012, orig.

proceeding). Hughes argues that the trial court abused its discretion in issuing the temporary

order which allowed the Department to keep custody and control of his child and refused to

return the child to his possession because the Department failed to produce any evidence (1) of

danger to the child, (2) of an urgent need for protection requiring the immediate removal of the

child, (3) of reasonable efforts to enable the child to return to Hughes’ home, and (4) of a

substantial risk of continuing danger to the child if returned to Hughes’ home.

       Section 262.201(b) of the Texas Family Code states,

              (b)    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 which was caused by an act or failure to act of the person entitled to


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                  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 continuing danger if the child
                  is returned home.

TEX. FAM. CODE ANN. § 262.201 (West 2014). “Unless evidence demonstrates the existence of

each of the requirements of section 262.201(b), the trial court is required to return the child to the

custody of his parents pending litigation.” In re Pate, 407 S.W.3d 416, 419 (Tex. App.—

Houston [14th Dist.] 2013, orig. proceeding).

         In this case, the temporary order states that its findings are based on “the sworn affidavit

accompanying the petition and based upon the facts contained therein and the evidence presented

to [the] [c]ourt at the hearing.” However, it is undisputed that the petition did not have an

accompanying affidavit, and the Department produced no evidence or testimony of any kind at

the hearing. Yet, somehow, the trial court granted the temporary order anyway. 1

         Here, Hughes has shown that the trial court could have come to only one reasonable

conclusion—that the Department failed to satisfy the requirements of Section 262.201(b) and

that possession of the child should have been returned to his father as required under Section

262.201. Accordingly, we conditionally grant Hughes’ petition for writ of mandamus and direct


1
 To its credit, and in keeping with the highest ethical standards, the Department concedes that it produced no
evidence in support of its petition, that the trial court’s order should be vacated, and that the child should be returned
to Hughes.
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the trial court to vacate its “Temporary Order Following Adversary Hearing” signed on

September 3, 2014, and order the return of the present possession of the child to Hughes. The

writ will issue only if the trial court fails to comply with this opinion.




                                                Bailey C. Moseley
                                                Justice

Date Submitted:         October 2, 2014
Date Decided:           October 3, 2014




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