Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed November 14, 2019.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-19-00713-CV



                             IN RE K.L.M., Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              257th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2019-44698

                         MEMORANDUM OPINION

      On September 18, 2019, relator K.L.M. filed a petition for writ of mandamus
in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In
the petition, relator asks this court to compel the Honorable Deborah Patterson,
presiding judge of the 257th District Court of Harris County, to vacate her July 30,
2019 order for protection of a child in an emergency and August 27, 2019 temporary
order following an adversary hearing in the underlying suit affecting the parent-child
relationship.1 We conditionally grant the petition.

                                     I. BACKGROUND

       On May 21, 2019, the Texas Department of Family and Protective Services
(the “Department”) received a referral related to the abuse or neglect of the child by
Mother and Father and conducted an investigation. On July 1, 2019, the Department
filed a petition for an order to participate in service or an original petition for
conservatorship in a suit affecting the parent-child relationship. The Department
alleged, in part, that, (1) the Department had received and had probable cause to
investigate a report of child abuse or neglect of the child; (2) an investigation had
been completed, which confirmed that the child was suffering from the effects of
abuse or neglect, or which indicated a reasonable likelihood that the child may be
abused or neglected in the immediate foreseeable future; and (3) reasonable efforts
had been made to prevent or eliminate the need to remove the child from the home,
and allowing the child to remain in the home would be contrary to the child’s
welfare. The Department sought an order for Mother to participate in services
provided by the Department. The petition was supported by the affidavit of a
Department case worker.




       1
        We requested a response to the petition from real party in interest Texas Department of
Family and Protective Services. However, no response was filed.
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         On July 23, 2019, the trial court ordered Mother to undergo drug testing.
BraShanna Clark, a Department case worker, advised Mother that the July 23, 2019
hair follicle test was positive for opiates and heroin.

         On July 30, 2019, the Department filed an amended petition, which also
sought termination of Mother’s and Father’s parental rights. Also, on July 30, 2019,
the trial court signed an order for protection of a child in an emergency and notice
of hearing. The order states that the Department appeared, through Clark and its
attorney, and the child’s attorney ad litem appeared. The order further stated that
Mother had notice of the hearing but did not appear.

         The trial court made the following findings in the July 30, 2019 order: (1)
there was an immediate danger to the physical health of the child or the child has
been a victim of neglect, or human trafficking; (2) continuation in the home would
be contrary to the child’s welfare; (3) there was no time, consistent with the physical
health or safety of the child, for a full adversary hearing; and (4) reasonable efforts
consistent with the circumstances and providing for the safety of the child, were
made to prevent or eliminate the need for removal of the child. The trial court
appointed the Department emergency temporary sole managing conservator of the
child.

         After obtaining the order, the Department removed the child from her home
with Mother on July 30, 2019. The “Notice of Removal of Children” stated that the
child should be removed from her home because Mother used opiates and heroin and
the child had access to Mother’s drugs.


                                           3
      The trial court held an adversary hearing on August 27, 2019. Mother was
present and represented by counsel. After the adversary hearing, the trial court
signed a temporary order and found there was sufficient evidence to satisfy a person
of ordinary prudence and caution that (1) there was a continuing 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 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 makes efforts to eliminate or prevent the child’s removal
impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate
the need for the child’s removal and enable the child to return home, there is a
substantial risk of a continuing danger if the child is returned home. The trial court
appointed the Department temporary managing conservator of the child.

      Mother seeks mandamus relief from the trial court’s July 30, 2019 and August
27, 2019 orders. In her first issue, Mother contends that insufficient grounds exist
for an ex parte emergency order removing the child from Mother’s home. In her
second issue, Mother further asserts that the trial court erred in refusing to return the
child to her at the conclusion of the adversary hearing on August 27, 2019.

                              II. STANDARD OF REVIEW

      Ordinarily, to be entitled to a writ of mandamus, relators must show that the
trial court clearly abused its discretion, and that they lack an adequate remedy by
appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (original proceeding) (per
curiam). A trial court clearly abuses its discretion if it reaches a decision so arbitrary
and unreasonable as to amount to a clear and prejudicial error of law or if it clearly
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fails to analyze the law correctly or apply the law correctly to the facts. In re H.E.B.
Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) (orig. proceeding) (per
curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding) (per curiam). When the challenged ruling is based on factual issues or
matters committed to the trial court’s discretion, the relator must show that the trial
court could have reached only one decision. Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding).

      Temporary orders in a suit affecting the parent-child relationship, such as the
orders Mother challenges here, are not subject to appeal under the Family Code and
may be reviewed in a mandamus proceeding. See Tex. Fam. Code Ann. § 6.507;
Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (per curiam).

                                    III. ANALYSIS

A.    Order Authorizing the Removal of the Child

      In her first issue, Mother contends that insufficient grounds existed warranting
the ex parte removal of the child. Section 262.102, entitled “Emergency Order
Authorizing Possession of Child,” requires the following findings:

      (a) Before a court may, without prior notice and a hearing, issue a
      temporary order for the conservatorship of a child under section
      105.001(a)(1) or a temporary restraining order or attachment of a child
      authorizing a governmental entity to take possession of a child in a suit
      brought by a governmental entity, the court must find that:

      (1) there is an immediate danger to the physical health or safety of the
      child or the child has been a victim of neglect or sexual abuse;

      (2) continuation in the home would be contrary to the child’s welfare;
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      (3) there is no time, consistent with the physical health or safety of the
      child and the nature of the emergency, for a full adversary hearing under
      Subchapter C; and
      (4) reasonable efforts, consistent with the circumstances and providing
      for the safety of the child, were made to prevent or eliminate the need
      for removal of the child.

Tex. Fam. Code Ann. § 262.102(a).

      The full adversary hearing serves the same purpose as the initial hearing,
because in order to retain temporary possession and custody of the child, the
Department must prove that there is a continuing danger to the physical health or
safety of the child and that remaining in the home is contrary to the welfare of the
children. In re Justin M., 549 S.W.3d 330, 332–33 (Tex. App.—Texarkana 2018,
orig. proceeding). The adversary hearing affords the parents the opportunity to
present evidence on their own behalf, hear and challenge the Department’s evidence,
and challenge the Department’s right to retain the children it previously took into
custody under an ex parte order. Id. at 333.

      Mother contends that she did not receive notice of the initial hearing and there
is no evidence to support any of the trial court’s findings made pursuant to section
262.102(a). The trial court held an adversary hearing four weeks after it signed the
July 30, 2019 order. Mother was present at the full adversary hearing and was
represented by counsel, who presented evidence on Mother’s behalf and cross-
examined the Department’s witnesses. Therefore, the full adversary hearing served
the same purpose as the initial hearing with the addition of Mother’s full
participation with representation. See id. at 332–33.

                                          6
       Even though four weeks passed between the initial hearing and the adversary
hearing, Mother failed to seek relief from the trial court’s July 30, 2019 order
permitting removal of the child. Therefore, Mother’s challenges to the July 30, 2019
order are moot. See id. at 334 n.5 (holding that, because the purposes of the initial
hearing were satisfied by the full adversary hearing and relator failed to seek relief
in the interim, the relator’s challenges to the trial court’s orders prior to the adversary
hearing were moot). Mother’s first issue is overruled.

B.     Order after Full Adversary Hearing

       In her second issue, Mother asserts that the trial court erred by refusing to
return the child at the conclusion of the full adversary hearing. After a full adversary
hearing, the trial court must order the child returned to the parent 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).

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      Removing a child from her home and parents on an emergency basis before
fully litigating the issue of whether the parents should continue to have custody of
the child is an extreme measure that may be taken only when the circumstances
indicate a danger to the physical health and welfare of the child and the need for her
protection is so urgent that immediate removal from the home is necessary. In re
Pate, 407 S.W.3d 416, 419 (Tex. App.—Houston [14th Dist.] 2013, orig.
proceeding). Unless the evidence demonstrates the existence of each requirement
set forth in section 262.201(g), the trial court is required to return the child to the
parents’ custody pending litigation. Tex. Fam. Code Ann. § 262.201(g); Pate, 407
S.W.3d at 419.

      With regard to subjection (g)(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—Mother argues that the Department failed to use any
reasonable efforts to prevent the child’s removal. Mother claims that continuation
in the home was a viable option because Mother’s grandmother was willing to stay
at the child’s home to keep the child there.

      At the adversary hearing, Mother’s grandmother testified that she was present
when Clark removed the child from Mother’s home. Mother’s grandmother offered
to stay in Mother’s home to supervise the child. The Department refused Mother’s
grandmother’s offer.

      Clark similarly testified that Mother’s grandmother offered to stay in the home
and supervise the child. Clark’s supervisor, who was not present when Clark
                                          8
removed the child from Mother’s home, refused Mother’s grandmother’s offer to
stay in the home with the child. Clark observed that Mother’s home was a nice
home: it was clean, there a bedroom for the child, and food in the refrigerator.

      Clark testified that the child was removed from Mother’s home because
Mother tested positive for heroine. Mother acknowledges that the Department is not
expected to ignore a positive drug test. See In re M.N.M., 524 S.W.3d 396, 405 (Tex.
App.—Houston [14th Dist.] 2017, orig. proceeding) (“The Department could not
ignore a pre-removal hair follicle test that came back positive or the results of post-
removal drug tests[.]”). On the other hand, “the Texas Family Code provides a range
of mechanisms to address controlled substance abuse by parents.” Id.

      In M.N.M., the mother’s hair follicle test was positive for amphetamine and
methamphetamine and was not specific as to time and potentially encompassed a
period of months earlier and the pre-removal urinalysis was negative. Id. at 400,
405. In her visits with the mother, father, and the child before removal, the
caseworker observed an injury-free two-year-old who was appropriately dressed,
groomed, fed, housed, and behaved; appropriate interactions between the child and
the father; a clean and hazard-free house; and a kitchen stocked with food. Id. at
405. This court held that the record did not support removal or that an 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 or the subsequent refusal to return
the child. Id. at 406.


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       In light of testimony that (1) Mother’s grandmother offered to stay in the
child’s home and supervise the child, and (2) the home was clean, the child had her
own bedroom, and the was food in the home, and (3) that the Department presented
no evidence that it made reasonable efforts to protect the child short of removal from
the home, we conclude that there is no evidence to support the trial court’s finding
that there was an urgent need for protection that required the immediate removal of
the child or that reasonable efforts were made to eliminate or prevent the child’s
removal from Mother’s home. We sustain Mother’s second issue.2

       The Department has not satisfied all the requirements of section 262.201(g)
to remove from the child from her home and to refuse to return the child after a full
adversary hearing. Therefore, the child must be returned to her home with Mother.
See Pate, 407 S.W.3d at 419.

       Accordingly, we conditionally grant relator’s petition for writ of mandamus
and direct the trial court to vacate the temporary order following adversary hearing
signed August 27, 2019, and order the return of the present possession of the child
to relator. The writ will issue only if the trial court fails to comply.


                                        PER CURIAM

Panel consists of Justices Jewell, Bourliot, and Zimmerer.




       2
        Although Mother also challenges the trial court’s other findings under section 262.201(g),
we need not address those arguments.
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