                                                                                             ACCEPTED
                                                                                         01-15-00430-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                    5/25/2015 9:05:44 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                  CLERK

                            NO.01-15-00430-CV
     IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS
                                                            FILED IN -
                                                  1st COURT OF--APPEALS      ----
              ______________________________________ HOUSTON,            - -
                                                                      --- PTEXAS
                                                              - - ---- CA ------
                                                  5/25/2015
                                                          - I9:05:44
                                                            -       D        -- PM
      IN RE   OLUBUNMI OGUNDOKUN AND AHMED            ---- VO ------
                                                     GIWA,
                                                  CHRISTOPHER        --       A. PRINE
                                                           -    ----
                                                             --Clerk
                                        RELATORS         -




RESPONSE MOTION TO STRIKE DEFECTIVE AFFIDAVIT AND  DENY
                                               FILED IN
                                                               1st COURT OF APPEALS
EMERGENCY MOTION TO CLARIFY AND/OR RECONSIDER STAYTEXAS
                                           HOUSTON, OF
                                                               5/26/2015 8:00:00 AM
  VISITATION, OR IN THE ALTERNATIVE, REQUEST TO ABATE
                                                               CHRISTOPHER A. PRINE
                                                                       Clerk
               ___________________________________
  On Petition For A Writ Of Mandamus From Cause No. 2015-02330J
    From the 314th Juvenile District Court of Harris County, Texas
                    (The Honorable John Phillips)
   _______________________________________________________
                                           ATTORNEYS FOR RELATORS
                                           PARCHMAN LAW GROUP PLLC
                                           Jon Parchman,
                                           State Bar No. 24085517
                                           K.C. Ghanean
                                           State Bar No. 24090123
                                           21 Waterway Ave., Suite 300
                                           The Woodlands, Texas 77380
                                           Telephone: (713) 518-1902
                                           Facsimile: 1-(832) 442-5665
                                           Jparch01@gmail.com
                                           kcghanean@gmail.com
                                           Counsel for Relators Olubunmi
                                           Ogundokun and Ahmed Giwa




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TO THE HONORABLE COURT OF APPEALS:
      This response motion is brought pursuant to Tex. R. App. P. 10.1(b) by the

Relators, Olubunmi Ogundokun and Ahmed Giwa, to request that this Court strike

the defective affidavit attached to and dismiss the real party in interest, Department

of Family & Protective Services, [hereinafter “Department”] Emergency Motion to

Clarify and/or reconsider Stay of Visitation, or in the Alternative, Request to abate

to Trial Court filed on May 22nd, 2015, and in support shows the following:

                               I. BACKGROUND

      Relators are the parents of a young child taken by the Department into their

custody on April 15, 2015, based on allegation of medical neglect. On April 28,

2015, the Trial Court held an adversary hearing, after which the Department was

named temporary managing conservators of the child.

      On May 7, 2015, Relator’s filed a Petition for Writ of Mandamus in order to

vacate the April 28, 2015 trial court order which granted the Department temporary

conservatorship. The writ was based on the Department’s failure to present

sufficient evidence to demonstrate a substantial risk of continuing danger to the

child if he was returned home, as is required under Tex. Fam. Code §262.201(b),

as well as failure to demonstrate a danger to the physical health or safety of the

child and failure to show reasonable efforts were made to return the child home.




                                          2
      Along with the Writ, Relator’s also filed an Emergency Motion for Stay

Pending Review of Writ of Mandamus on May 7. 2015, as the limited access

granted to the Relators was resulting on harm to the child. On May 8, 2015, this

Court granted the Emergency Stay with the portion of the April 28, 2015

temporary orders that limited the Relator’s visitation with and access to the child.

      On May 22, 2015, the Department filed its own Emergency Motion to

Clarify and/or Reconsider the Stay of Visitation, or in the Alternative, Request to

Abate to Trial Court.

                                   II. Argument

      In the Department’s Emergency Motion, the Department referred to the UT

Physician Affidavit in several instances. In order to present the affidavit, the

Department cited to Tex. R. App. P. 10.2, which allows for the inclusion of an

affidavit when it contains information that is not in the record but relative for the

purposes of the motion.     However, Tex. R. App. P. 10.2 does not allow the

inclusion of a defective affidavit as the UT Physician Affidavit is.

      The “affidavit” that the Department is relying on to demonstrate some of the

“significant additional information” is not really an affidavit per se, but rather a

notarized letter sent to the Department at their request as a status update. Although

the “affidavit” has been notarized, it is wholly lacking in many of the key

requirements necessary for an affidavit to be considered.


                                          3
          An affidavit is a "statement in writing of a fact or facts signed by the party

making it, sworn to before an officer authorized to administer oaths, and officially

certified to by the officer under his seal of office."        Tex. Gov't. Code. Ann.

§312.011(1) (Vernon 2005). The Supreme Court of Texas has determined that for

an affidavit to have any probative value, “an affiant must swear that the facts

presented in the affidavit reflect his personal knowledge.” In re DuPont de

Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004). This “affidavit” contains no

such language that indicates that the information presented was based on either of

the two doctors who signed it personal knowledge.

      In fact there is no indication that the doctors who signed it swore to anything

at all.    After relaying the information, the “affidavit” ends with the word

“Sincerely” followed by the signature of the two doctors alongside the signature

and stamp of a notary. There is no jurat which is a "certificate by a competent

officer that the writing was sworn to by the person who signed it." Huckin v.

Connor, 928 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1996) The

“affidavit” is merely a letter with no probative value and its inclusion with the

Department’s motion was improper.

      The Emergency Motion filed by the Department is depending on facts that

are “not in the record, “not within the court’s knowledge in its official capacity”

and “not within the personal knowledge of the attorney signing the motion”, it is


                                            4
required to be verified under Tex. R. App. P. 10.2.               Furthermore, the UT

Physician’s “affidavit” is not an affidavit at all. The result is that certain key facts

the Department are relying on in their motion are not verified as required.

Therefore, the motion is improper and must be dismissed.

                                   VII. PRAYER

Plaintiffs pray that the Court grant them the following relief:

  a. Strike the defective affidavit filed with the Department’s Emergency

      Motion.

  b. Dismiss the Department’s Emergency Motion.

  c. Award all other relief as the Court deems just and proper.

                                                      Respectfully submitted,

                                                      PARCHMAN LAW GROUP
                                                      P.L.L.C.
                                                      By:
                                                            Jon Parchman
                                                      ______________________________
                                                      Jon Parchman
                                                      State Bar No. 24085517
                                                      K.C. Ghanean
                                                      State Bar No. 24090123
                                                      21 Waterway Ave., Suite 300
                                                      The Woodlands, Texas 77380
                                                      Telephone: (713) 518-1902
                                                      Facsimile: (832) 442-5665
                                                      Jparch01@gmail.com
                                                      kcghanean@gmail.com
                                                      ATTORNEY FOR RELATORS




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                  CERTIFICATION OF FACTS AND RECORDS

This certifies that the undersigned has reviewed this Motion and concluded that every factual
statement in it is supported by competent evidence included in the appendix or record.

Jon Parchman
_______________
Jon Parchman



                      CERTIFICATION OF CONFERENCE

Pursuant to the requirements of Tex. R. App. P. 10.1(5), the undersigned attorney contacted
counsel for the Real Party in Interest the Department of Family Protective Sercices via email
regarding the errors with the “UT Affidavit” and their motion, but did not yet receive a response.

Jon Parchman
_______________
Jon Parchman


                            CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the above was served on the following parties
and/or attorneys of record via facsimile and or electronic mail in accordance with the Texas
Rules of Civil Procedure on 5/26/15:

       The Honorable John Phillips
       134th Juvenile District Court – Harris
       County
       1200 Congress, 5th Floor
                                                            Counsel for Real Party in Interest
       Houston, Texas 77002
                                                            A.G.
       Counsel for Real Party in Interest                   William B. Connolly
       DFPS                                                 Attorney Ad Litem
       Vince Ryan                                           Connolly & Shireman, L.L.P.
       Harris County Attorney                               2930 Revere St., Suite 300
       1019 Congress, 15th Floor                            Houston, TX 77098
       Houston, Texas 77002
                                                            Tel: (281) 506-0086
       Tel: (713) 274-5220
       Fax: (713) 437-4700                                  Fax: (713) 520-6644


                                             Jon Parchman
                                             _____________
                                                Jon Parchman
                                                Attorney for Relators

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