DENIED and Opinion Filed April 12, 2019




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-19-00258-CV

                                  IN RE R.P.D. JR., Relator

                 Original Proceeding from the 256th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DF-18-23826

                             MEMORANDUM OPINION
                         Before Justices Bridges, Osborne, and Carlyle
                                  Opinion by Justice Bridges
       The underlying proceeding is a divorce and suit affecting the parent-child relationship.

There is one child of the marriage. That child will turn one in June 2019. The underlying

proceeding commenced in November 2018 after a physical altercation where Mother stabbed

Father in the neck. Mother claims she stabbed Father following a violent altercation in which

Father drew a gun on her and threatened to kill her. The child was present in the home during the

altercation. Shortly thereafter, Mother sued for divorce, and Father filed a counter petition.

Mother and Father accuse each other of family violence in their pleadings. Multiple hearings

occurred in December 2018 and January 2019 before associate judges and District Court Judge

David Lopez regarding the placement of the child and temporary orders for the child’s care. Those

hearings culminated in the February 7, 2019 order at issue here.

       In this original proceeding, Father complains of a February 7, 2019 order appointing the

Texas Department of Family and Protective Services (TDFPS) temporary managing conservator,
gives Mother supervised visitation on a weekly basis as arranged by Mother and TDFPS or the

child’s caregivers, and provides Father with supervised visits with the child at the TDFPS each

week at hours agreed to and arranged between Father and TDFPS. Father seeks a writ of

mandamus ordering the trial court to vacate the temporary orders that appointed TDFPS managing

conservator of the child and to enter orders appointing Father sole managing conservator. Father

presents two issues. First, he argues the trial court clearly abused its discretion by appointing

TDFPS as temporary managing conservator because the evidence failed to meet the requirements

of section 262.201(g) of the family code. Second, Father asserts the trial court clearly abused its

discretion by failing to appoint Father temporary sole managing conservator where the evidence

showed Mother committed family violence with the child present.

                                        Mandamus Standard

        A trial court’s decision to allow TDFPS to maintain custody of a child following an

adversary hearing is reviewable through a petition for a writ of mandamus. In re Tex. Dep’t of

Family & Protective Servs., 255 S.W.3d 613, 614 (Tex. 2008); see also In re J.D.S., 494 S.W.3d

387, 389 (Tex. App.—Waco 2015, orig. proceeding); In re Allen, 359 S.W.3d 284, 288 (Tex.

App.—Texarkana 2012, orig. proceeding). A relator seeking mandamus relief from a temporary

order in a suit affecting the parent-child relationship is entitled to such relief if he establishes that

the trial court abused its discretion in signing the temporary orders. In re Justin M., 549 S.W.3d

330, 334 (Tex. App.—Texarkana 2018, orig. proceeding). An abuse of discretion occurs when the

trial court’s decision is so arbitrary and capricious that it amounts to clear error. Walker v. Packer,

827 S.W.2d 832, 839 (Tex. 1992). Because a trial court has no discretion in determining the law

or in applying the law to the facts of the case, the failure to analyze or apply the law correctly

constitutes an abuse of discretion. In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609,




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612 (Tex. 2006) (orig. proceeding); In re Thompson, 330 S.W.3d 411, 417 (Tex. App.—Austin

2010, orig. proceeding).

                                         Applicable Law

       Chapter 262 of the family code sets forth the procedures and substantive requirements by

which the TDFPS may take possession of a child when necessary to protect that child’s health and

safety. A full adversary hearing must be “held not later than the 14th day after the date the child

was taken into possession” by the TDFPS. TEX. FAM. CODE ANN. § 262.201(a). Section

262.201(g) provides what evidence the TDFPS must present to maintain possession of the child

after the required adversary hearing:

       (g) In a suit filed under Section 262.101 or 262.105, 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, including
               a danger that the child would be a victim of trafficking under Section
               20A.02 or 20A.03, Penal Code, 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 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 a continuing danger if the child is returned
               home.

TEX. FAM. CODE ANN. § 262.201(g). Here, Father avers that no evidence supported findings that

Father posed a danger to the physical health or safety of the child caused by his act or failure to

act; there was an urgent need to protect the child from father requiring immediate removal of the

child; or reasonable efforts had been made to return the child to father’s home or that there was

any substantial risk of harm to the child if the child were returned to Father’s home.

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                                            Discussion

       The record includes sufficient evidence to support the trial court’s decision to appoint

TDFPS temporary managing conservator following the adversary hearing. The November 2018

altercation occurred while the child was present in the house. Mother and Father both allege that

the other has engaged in family violence. Mother also alleges that Father does not know how to

properly care for the child, travels too much for work to be the managing conservator, and has

physically and sexually abused Mother in the past. Father presented evidence that Mother, who

holds dual citizenship in the U.S. and Russia, may be a flight risk with plans to leave the country

with the child. This record includes sufficient evidence from which the associate judge and Judge

Lopez could reasonably conclude that (1) there was a danger to the physical health or safety of the

child caused by Mother’s and Father’s violent behavior while the child was in the home such that

staying in the home is contrary to the child’s welfare, (2) the violent nature of the November 2018

incident and the allegations that Mother planned to abscond with the child to Russia presented an

urgent need for protection that required the immediate removal of the child, and (3) there remains

a substantial risk of a continuing danger if the child is returned home.

       The record also supports a finding that TDFPS made reasonable efforts to enable the child

to return home under section 262.201(g)(3). Father maintains there is no evidence of any such

efforts. However, the record includes evidence that TDFPS implemented a service plan for the

parents, set up and permitted supervised visitation for both parents, and conducted a home study

of the maternal grandparents, and the trial court ordered counseling for both parents. That evidence

is sufficient to show reasonable efforts to enable the child to return home because implementation

of a family service plan by TDFPS is considered a reasonable effort to return a child to the parent.

See e.g., In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (noting that there

was evidence of service plans and TDFPS agreeing to home studies of family members as possible


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placements); see also In the Interest of M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth

2009, no pet.) (the State’s preparation and administration of a service plan for the parent constitutes

evidence that the State made reasonable efforts to return the child to the parent, and noting State

made special arrangements for father to have parenting classes in nearby town); In re S.S., No. 11-

05-00083-CV, 2006 WL 1285125, at *2–3 (Tex. App.—Eastland May 11, 2006, no pet.) (mem.

op.) (evidence that TDFPS prepared service plans for the parent, arranged and paid for a

psychological evaluation and a drug assessment, provided the parent with counseling and parenting

classes, and scheduled regular visitation for the parent was legally and factually sufficient to show

reasonable effort to reunite parent with child).

        Based on the record before us, we conclude relator has not shown he is entitled to the relief

requested because he has not established an abuse of discretion. Accordingly, we deny relator’s

petition for writ of mandamus. See TEX. R. APP. P. 52.8(a) (the court must deny the petition if the

court determines relator is not entitled to the relief sought).




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE


190258F.P05




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