Petition for Writ of Mandamus Denied and Memorandum Opinion filed
February 11, 2014.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-13-00994-CV



                         IN RE JODIE HURT, Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              313th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2011-07389J

                         MEMORANDUM OPINION

      On November 12, 2013, relator Jodie Hurt filed a petition for writ of
mandamus in this Court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P.
52. In the petition, relator asks this Court to compel the Honorable Glenn Devlin,
presiding judge of the 313th District Court of Harris County, to vacate an order
granting the Texas Department of Family and Protective Services temporary
managing conservatorship of relator’s child. Relator has not satisfied her burden to
provide this Court with a record sufficient to demonstrate that the trial court abused
its discretion. Therefore, we deny the petition for writ of mandamus.

                                       BACKGROUND

Relevant Statutes

       Chapter 262 of the Texas Family Code sets forth the procedures and
substantive requirements by which the Texas Department of Family and Protective
Services (hereinafter, “DFPS”) may take possession of a child when necessary to
protect that child’s health and safety.1 Under this chapter, DFPS is granted
authority in urgent circumstances to remove a child from his or her home without
prior notice. See Tex. Fam. Code §§ 262.101, 262.104. This emergency authority is
subject to judicial oversight, either in the form of a temporary restraining order or
attachment before DFPS removes the child, or an initial hearing held shortly after
DFPS removes the child. See Tex. Fam. Code §§ 262.102, 262.106–262.107.
Regardless of the specific approach, any authorization for DFPS to have
possession of a child under its emergency authorities lasts only until a court is able
to conduct a full adversary hearing, which must be held within fourteen days of
DFPS taking possession of the child. See Tex. Fam. Code § 262.201(a).

       At the conclusion of the fourteen-day adversary hearing:

       [T]he court shall order the return of the child to the parent, managing
       conservator, possessory conservator, guardian, caretaker, or custodian


       1
         DFPS is not the only governmental entity authorized to take actions under Chapter 262,
but since DFPS is the entity involved in this mandamus petition, DFPS will be referenced
exclusively.

                                              2
       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
       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 § 262.201(b). If the court finds there is a continuing danger to the
child, the court is required to issue an “appropriate” temporary order under Chapter
105 of the Texas Family Code. Tex. Fam. Code § 262.201(c).2 Such temporary
orders are not subject to interlocutory appeal. Tex. Fam. Code § 105.001(e).

The Underlying Litigation

       Relator Jodie Hurt is the mother of a two-year old child, M.S.J. Alfredo
Jeffry is the father of M.S.J. Shortly after M.S.J. was born, real party in interest
DFPS received a referral of negligent supervision of M.S.J. Based on its
investigation of the family situation, DFPS filed a suit affecting the parent-child
relationship in November 2011. The 313th District Court issued a final decree in


       2
        “In a suit, the court may make a temporary order, including the modification of a prior
temporary order, for the safety and welfare of the child, including an order[ ] for the temporary
conservatorship of the child . . . .” Tex. Fam. Code § 105.001(a)(1).

                                               3
that suit in December 2012, in which it appointed Jeffry sole managing conservator
of M.S.J. The court appointed Hurt as possessory conservator of M.S.J., with more
limited rights.3 Notably, Hurt was authorized to have possession of M.S.J. “at
times mutually agreed to in advance by the parties” and “[a]ll visitation between
[M.S.J.] and [Hurt] shall be supervised by the conservators or other competent
adult as designated by the conservators.” Hurt did not appeal this decree.

       In July 2013, DFPS received another referral alleging the physical neglect of
M.S.J. The referral asserted that Jeffry had been leaving M.S.J. with Hurt
unsupervised, contrary to the final decree, that Jeffry was homeless and he asked
the child’s former foster parents to temporarily care for M.S.J., and that the child
had a serious diaper rash that the parents were not treating properly. Following its
investigation, DFPS filed a motion on August 2, 2013 to modify the 2012 final
decree, in which it sought emergency possession of M.S.J. pursuant to Chapter 262
of the Texas Family Code. The trial court issued temporary orders that day
appointing DFPS as managing conservator of M.S.J. and setting the required
adversary hearing for August 15, 2013.

       The adversary hearing commenced as scheduled. Hurt appeared for the
hearing, but without counsel. Hurt does not provide a transcript of this hearing, but
the record she provides does indicate that there were witnesses who testified. The
trial court continued the adversary hearing until August 22, 2013. At the
continuation hearing, Hurt again appeared and this time was represented by
counsel. A transcript of the continuation hearing is included in the record supplied
       3
          The general distinctions between a managing conservator and a possessory conservator
are outlined in Chapter 153 of the Texas Family Code.

                                              4
by Hurt. DFPS sought at the hearing to remain temporary managing conservator of
M.S.J., while Hurt asserted that M.S.J. was required under Section 262.201(b) of
the Texas Family Code to be returned to Hurt’s possession.

      The only individuals who testified at the August 22 hearing were the DFPS
caseworker and Hurt. Hurt’s attorney asked the caseworker about efforts to return
M.S.J. to Hurt after DFPS took initial possession:

      Q.     [A]fter you filed your petition . . . . [w]hat efforts did you make
             to return the child to mom?

      A.     We did not attempt to return the child to mom.

      Q.     So, you didn’t make any efforts at all?
      A.     No.
The caseworker clarified on cross examination that DFPS did not attempt to return
M.S.J. to Hurt because it was that agency’s understanding of the 2012 final decree
that Hurt was not to be with the child unsupervised. During her examination, Hurt
testified about her current living arrangements with her father, her mental health,
her relationship with Jeffry, and the issue of M.S.J.’s diaper rash.

      Following testimony, the trial court heard arguments from DFPS, Hurt, and
M.S.J.’s attorney ad litem. DFPS argued that it was not obligated to return the
child to Hurt, even though she is a possessory conservator, because she was not
“entitled to possession” of M.S.J. since, per the 2012 decree, any possession by
Hurt of M.S.J. was to be supervised. Hurt argued that the decree’s language
restricting Hurt’s access is ambiguous, and that following this Court’s decision in
In re Pate, 407 S.W.3d 416 (Tex. App.—Houston [14th Dist.] 2013, orig.
proceeding), the absence of allegations that Hurt had placed the child in danger
                                           5
required return of M.S.J. to Hurt. The attorney ad litem briefly alluded to the fact
that Hurt was only a possessory conservator for reasons, and that her relationship
with her father was not stable.

       At the conclusion of the hearing, the trial court rendered its decision
retaining DFPS as temporary managing conservator of M.S.J. The trial court
appears to have entered a written order memorializing its decision, but Hurt does
not include that order in the record. Hurt then filed this petition for writ of
mandamus.

                                THE MANDAMUS STANDARD

       To be entitled to mandamus relief, a relator generally must show that the
trial court violated a duty imposed by law or clearly abused its discretion, and the
relator has no adequate remedy by appeal.4 In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d
833, 839–40 (Tex. 1992) (orig. proceeding). An appellate court may not deal with
disputed questions of fact in the context of a mandamus proceeding. In re Angelini,

       4
          In its response to relator’s petition, DFPS suggests that this Court lacks jurisdiction
because relator’s petition is not meritorious. This suggestion is misplaced. There is a distinction
between whether this Court has jurisdiction to issue a writ of mandamus given the circumstances
of a particular case, and whether the writ should issue under applicable law. Hurt’s petition
requests that this Court compel the presiding judge of the 313th District Court to vacate his order
granting DFPS managing conservatorship of M.S.J. Section 22.221(b) of the Texas Government
Code grants this Court authority to issue a writ of mandamus against a district court judge within
the court of appeals district. The 313th District Court is within this Court’s district. See Tex.
Gov’t Code §§ 22.201(o), 24.621. Therefore, this Court has jurisdiction over this proceeding. See
In re Gauci, No. 14-12-00707-CV, 2012 WL 3629064, *2 (Tex. App.—Houston [14th Dist.]
Aug. 23, 2012, orig. proceeding) (mem. op. per curiam) (denying motion to dismiss for want of
jurisdiction, but noting that the party’s “arguments that mandamus is inappropriate in this case
are well-taken”).

                                                6
186 S.W.3d 558, 560 (Tex. 2006) (orig. proceeding). Therefore, on mandamus
review of factual issues, a trial court will be held to have abused its discretion only
if the relator establishes that the trial court could have reached but one decision
given the facts existing and the law applicable to the case, and it was not the
decision the trial court made. In re Hoar Constr., L.L.C., 256 S.W.3d 790, 793
(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); In re Weeks Marine,
Inc., 242 S.W.3d 849, 853 (Tex. App.—Houston [14th Dist.] 2007, orig.
proceeding). As the party seeking relief, the burden to demonstrate entitlement to
mandamus is on the relator. See Walker, 827 S.W.2d at 837.

                                      ANALYSIS

      Hurt argues that the facts presented during the adversary hearing were
insufficient to support the findings required under Section 262.201(b) of the Texas
Family Code for a court to not return a child to an individual entitled to possession
of that child. We are unable to conclude that the trial court abused its discretion in
this case, because Hurt has not provided this Court with a full record of the facts
that were before the trial court. Critically, Hurt does not include a transcript of the
first day of the adversary hearing held on August 15, 2013, during which it appears
(based on comments made at the continuation hearing on August 22) witnesses
testified—including the DFPS caseworker and the child’s previous foster mother.
Hurt also does not include a copy of the written order from the trial court following
the adversary hearing, which may include explicit factual findings of the court.
Without this missing information, this Court does not have a sufficient basis on
which to determine that the trial court could have reached but one decision based
on the facts elicited during the hearing.

                                            7
      It is the relator’s burden to provide this Court with a sufficient record to
establish the right to mandamus relief. See Tex. R. App. P. 52.3(k)(1), 52.7(a);
Walker 827 S.W.2d at 837. “Those seeking the extraordinary remedy of mandamus
must follow the applicable procedural rules. Chief among these is the critical
obligation to provide the reviewing court with a complete and adequate record.” In
re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig.
proceeding). “This court cannot make a sound decision based on an incomplete
picture. But that is precisely what relator is asking us to do by her failure to
provide a sufficient mandamus record.” Id. Here, for example, Hurt is asking this
Court to determine, inter alia, that the trial court could not have concluded that
there was a danger to the physical health or safety of M.S.J. caused by Hurt, or that
allowing M.S.J. to reside with Hurt would be contrary to the welfare of the child.
But the portion of the record provided by Hurt alludes to prior testimony and
statements (not included in the record) suggesting concerns about Hurt’s ability to
properly care for M.S.J. The omitted portions of the record, therefore, seem to be
directly relevant to the question of whether the trial court abused its discretion.
Thus, the record here is neither complete nor adequate.

      To be entitled to mandamus relief, Hurt has the obligation to provide this
Court with a record sufficient to demonstrate that the trial court could have made
but one decision based on the evidence presented. Hurt, however, did not provide
this Court with all the information presented to the trial court, such that we could
conclude that the trial court could have made but one decision. Thus, Hurt has not
satisfied her burden to demonstrate that the trial court abused its discretion in
retaining DFPS as temporary managing conservator of M.S.J. See Le, 335 S.W.3d

                                          8
at 814 (“[I]n the final analysis, this court cannot and will not find an abuse of
discretion on an incomplete record.”).5

                                        CONCLUSION

       For the foregoing reasons, we deny relator’s petition for writ of mandamus.


                                        PER CURIAM

Panel Consists of Justices McCally, Busby, and Wise.




       5
          Hurt’s request for mandamus relief is premised on the trial court abusing its discretion
in applying Section 262.201(b) of the Texas Family Code, which mandates that, unless the listed
standards are satisfied, a court must order the “return of the child to the . . . possessory
conservator . . . entitled to possession” (emphasis added). DFPS argues in its response that
because Hurt already had her right of access to M.S.J. restricted by the 2012 final decree such
that Hurt could not have unsupervised possession of her child, Hurt was not “entitled to
possession” of M.S.J. and that the trial court putting M.S.J. in Hurt’s care would not be a
“return” of the child. Because we conclude that Hurt has not fulfilled her burden to demonstrate
that the trial court abused its discretion in ruling that the standards in Section 262.201(b) were
satisfied, we need not reach the questions of whether Hurt was “entitled to possession” or
whether placement of M.S.J. would constitute a “return” of M.S.J.

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