In re Lau

• Decision Date: 24 October 2002
• Docket Number: No. 01-02-00889-CV.,01-02-00889-CV.
• Citation: 89 S.W.3d 757
• Parties: In re Stephen M. LAU, Relator.
• Court: Texas Court of Appeals

89 S.W.3d 757

In re Stephen M. LAU, Relator.

No. 01-02-00889-CV.

Court of Appeals of Texas, Houston First District.

October 24, 2002.

Sallee S. Smyth, Short & Jenkins, L.L.P., Houston, for Relator.

William R. Zweifel, Zweifel & Associates, Houston, for Real Party In Interest.

Panel consists of Justices NUCHIA, JENNINGS, and RADACK.

OPINION

SAM NUCHIA, Justice.

Relator, Stephen M. Lau, seeks a writ of mandamus complaining of an August 9, 2002 order entered by respondent,¹ denying relator's petition for writ of habeas corpus for possession of his 16-year-old daughter pursuant to the terms of a 1991 divorce decree. We requested a response to the petition, but none has been received. See TEX.R.APP. P. 52.4, 52.8(b). Without hearing oral argument, we conditionally grant relator's petition. See TEX.R.APP. P. 52.8(c).

Under the terms of the 1991 decree, relator was appointed sole managing conservator of the child. The child's mother, real party in interest Martha G. Huffman, was appointed possessory conservator. Huffman refused to return the child to relator following Huffman's summer period of possession, which ended July 31, 2002 at 6 p.m. Relator filed a petition for writ of habeas corpus seeking the return of his daughter. A hearing was held, at the end of which the trial court denied relator's petition and signed a written order, which stated:

Upon testimony and evidence presented, the Court finds upon a preponderance of the evidence and credible testimony that the Petition for Writ of Habeas Corpus is denied.

The child ... may live with her mother ... until further order of the Court.

Mandamus may issue to correct the erroneous denial of a writ of habeas corpus seeking possession of a minor pursuant to a valid court order. See Schoenfeld v. Onion, 647 S.W.2d 954, 956 (Tex. 1983) (orig.proceeding) (per curiam). Habeas proceedings may not be used to litigate modification of custody orders. Id. at 955. Instead, habeas corpus proceedings to regain custody pursuant to a prior court order are governed by section 157.372(a) of the Texas Family Code, which states:

Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.

TEX. FAM.CODE ANN. § 157.372(a) (Vernon 2002). The Texas Supreme Court has construed this statute to require that,

absent dire emergency ..., the grant of the writ of habeas corpus should be automatic, immediate, and ministerial, based upon proof of the bare legal right to possession.

Schoenfeld, 647 S.W.2d at 955.

Once the prior order governing the right of possession is established, the only exception relevant here is whether it is shown there is "a serious and immediate question concerning the welfare of the child." See Rocha v. Schuble, 809 S.W.2d 681, 682-83 (Tex.App.-Houston [14th Dist.] 1991, orig. proceeding). This exception is authorized by section 157.374 of the Family Code, which provides:

Notwithstanding any other provision of this subchapter, the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child.

TEX. FAM.CODE ANN. § 157.374 (Vernon 2002).

The Texas Supreme Court has defined "serious immediate question" to mean imminent danger of physical or emotional harm that requires immediate action to protect the child. Forbes v. Wettman, 598 S.W.2d 231, 232 (Tex.1980) (orig.proceeding). A trial court abuses its discretion in denying a petition for writ of habeas corpus by the party with the legal right to possession unless it finds upon sufficient evidence that the child was in imminent danger of physical or emotional harm. Id. at 232; Rocha, 809 S.W.2d at 683.

Further, the Texas Supreme Court requires the trial court to issue a written temporary order containing a finding that there is a serious and immediate question concerning the welfare of the child when denying a petition for writ of habeas corpus; an oral finding is not sufficient. See M.R.J. v. Vick, 753 S.W.2d 526, 528 (Tex. App.-Fort Worth 1988, orig. proceeding) (citing Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex.1983) and McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977)).

Here, the trial court orally announced a finding that there was a serious immediate question concerning the welfare of the child. However, there is no such finding in the trial court's written order. Therefore, the trial court abused its discretion in this procedural context, and relator is entitled to mandamus relief. See M.R.J., 753 S.W.2d at 529.

Moreover, we note the trial court should enter an appropriate temporary order. See TEX. FAM.CODE ANN. § 157.374 (Vernon 2002). A temporary order should not be a final adjudication of custody. See Young v. Martinez, 685 S.W.2d 361, 363 (Tex.App.-San Antonio 1984, orig. proceeding). The order herein completely transferred custody to Huffman without setting any further hearing. Relator's writ action was fully terminated, and a final adjudication of custody to Huffman was effectuated. See Id. at 363. Further, the order in this case does not provide for any visitation by relator, not even supervised visitation and is, therefore, an improper denial of relator's right to visitation with his child. See In re Lemons, 47 S.W.3d 202, 206 (Tex.App.-Beaumont 2001, orig. proceeding) (holding the trial court abused its discretion in entering a temporary order that effectively denied visitation to the father because it was unenforceable).

The trial court abused its discretion in failing to enter an appropriate temporary order defining, at a minimum, relator's temporary rights to possession and setting a further hearing.

Relator also argues there is insufficient evidence of a serious immediate question concerning the welfare of the child to support the trial court's denial of relator's petition for writ of habeas corpus. Huffman testified at the hearing that relator had, on one occasion more than 30 days before the hearing, become angry and forcefully grabbed her by the shoulders and shoved her out the door of his house in the presence of the child's brother and sister. Huffman further testified that the child's sister had become upset at witnessing the incident and that relator had then grabbed the sister by the arm and shoved her into his vehicle. Huffman also testified that relator then drove over and tried to retrieve the child from a friend's house. However, Huffman gave no testimony regarding any imminent danger of physical or emotional harm to the child that required immediate action to protect the child.

Although we conclude there is insufficient evidence of a serious immediate question in the record of the hearing, we note that the trial court interviewed the child and her older sister in camera. No record was requested or made of these in camera interviews. Relator argues that, in spite of the lack of a record of the interviews, we should not presume facts existed that allowed the trial court discretion to find a serious immediate question, citing Forbes.

Forbes is similar to the present case. There, the father had also been appointed sole managing conservator, and the mother refused to return twin eight-year-old boys to the father at the end of her summer period of possession. When the father filed a petition for writ of habeas corpus, the trial court denied the petition, and the father filed a petition for writ of mandamus. As here,...