In re Tex. Dep't of Family & Protective Servs.

• Decision Date: 11 October 2013
• Docket Number: No. 01–13–00623–CV.,01–13–00623–CV.
• Citation: 415 S.W.3d 522
• Parties: In re TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Relator.
• Court: Texas Court of Appeals

415 S.W.3d 522

In re TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Relator.

No. 01–13–00623–CV.

Court of Appeals of Texas, Houston (1st Dist.).

Oct. 11, 2013.

Greg Abbott, Attorney General of Texas, Scot M. Graydon, Assistant Attorney General of Texas, Austin, TX, for Relator.

William B. Connolly, Connolly & Shireman, LLP, Houston, TX, for Real Party In Interest.

Panel consists of Justices BLAND and HUDDLE and Judge KERRIGAN. ^*

OPINION

JANE BLAND, Justice.

In this mandamus proceeding, the Texas Department of Family and Protective Services (the Department) seeks relief from a sanctions order entered against it. The trial court issued the order in the underlying conservatorship proceeding involving D.D.E., a child and the real party in interest.¹ The Department's conduct at issue, however, relates to trial court proceedings in another matter—a juvenile-justice case brought against D.D.E., in which the state alleged that D.D.E. had engaged in delinquent conduct.² The conduct arose before the Department filed this suit.

We hold that the trial court's sanctions order is void, because the trial court lacked personal jurisdiction over the Department in the juvenile-justice case, and the trial court's plenary power had expired in that case before the court issued its sanctions order in the conservatorship case. Accordingly, we conditionally grant mandamus relief and deny the child's motion to dismiss the Department's petition.

Background

The juvenile court proceedings

The State, through the Harris County District Attorney, brought suit in juvenile-justice court against D.D.E., alleging that he had engaged in deadly conduct. His mother, who has an extensive DFPS case history, was the complainant.

The child appeared for his first hearing accompanied by his mother and five siblings. William Connolly, the child's defense attorney, noticed that the juvenile's mother appeared to be impaired to the point that she could not speak intelligibly. Connolly ascertained that the mother had driven the child and his five sisters to court that day and planned to drive the children home after the hearing. Alarmed, Connolly brought these circumstances to the trial court's attention. He also sought the assistance of the Department's court liaison, Debra Reyna. As a liaison, Reyna works at the courthouse, helping to facilitate communications with Department employees in the field and keeping the Department staff informed about court matters, as well as assisting with matters in which the Department appears before the courts.

Connolly asked Reyna to intervene on an emergency basis and take custody of his client before his mother drove them home in an impaired state. Reyna spoke with Connolly about the situation and went into the courtroom, where she saw the mother and her children. Reyna, who did not have the authority to effect the removal herself, contacted the Department and learned that it had an open investigative file relating to the family. Reyna next contacted Terri Halsey, the supervisor assigned to the family's case. After speaking with Halsey, Reyna informed Connolly and the court that the Department's files revealed that the mother had psychiatric and drug issues as well as an extensive history with the Department. Reyna also reported that Halsey stated she would not pick up a child without a court order. The Department did not take any action on the case that day, and the children left the courthouse in their mother's custody.

That evening, Connolly texted Reyna and Halsey to inform them that he planned to return to the juvenile justice court the next day to request an order to remove the child from his mother's custody. The next day, July 26, 2012, Reyna was in the courtroom when Connolly presented the trial court with a proposed order for emergency removal in Cause No. 2012–03968–J, which the court signed. The order declared:

It is ORDERED that [the Department] take immediate custody of the child... and file additional pleadings and paperwork to facilitate its authority to request appointment of [the Department] as Temporary Managing Conservator of the child as in ordinary cases involving [the Department].

The trial court also signed an order authorizing Connolly to hire Lisa McCartney, an expert in child abuse and neglect, as an independent expert to assist him in his defense of the minor child in the juvenile proceedings. The trial court ordered that any agency that received a request for information from McCartney related to investigations of abuse or neglect, family violence, mental health history, family history, parental history, step-parent history, or the child's history must produce such information, within four hours of the request, without delay for redaction.

Reyna received a copy of the emergency removal order and immediately informed Halsey and the assigned caseworker, Sheryl Ross, of the order. The Department, however, did not take custody of D.D.E. that evening.

Instead, the next day, July 27, the Department filed petitions in suits affecting the parent child relationship (SAPCR), requesting that D.D.E. and his siblings be removed from their mother's custody and that the court order placement of the children into state conservatorship. The Department effected the removal of the children from the mother on the same date. The petition to take temporary conservatorship of D.D.E. landed in the same trial court as his pending juvenile justice case, while the case involving his siblings was assigned to another court.

The Department's Regional Director, Scott Dixon, learned of the second order regarding the production of records on August 1, 2012, when the Department received a records request. Dixon directed Department employees to comply with the order. The Department provided McCartney with the records, in installments, on August 1, 6, 14, 22, and 25. Connolly and McCartney used the information in those records to defend D.D.E. in the juvenile justice case. On September 24, citing insufficient evidence and “the CPS records,” the State nonsuited its juvenile justice case against D.D.E.

The SAPCR court proceedings

A month before the State nonsuited its juvenile justice case, Connolly moved for sanctions against the Department in the pending SAPCR suit related to D.D.E. He requested that the trial court issue a show cause order, requiring the Department to show cause why it should not be held in contempt of court for violating the trial court's two orders entered in the juvenile justice case by (1) not taking immediate possession of D.D.E. on July 26 and (2) delaying the production of some Department records. The Department responded that it was not a party to the juvenile justice proceeding, and the trial court had no jurisdiction to enforce the orders that it had issued by sanctions or contempt proceedings against the Department.

Eight months after the conclusion of the juvenile justice case, the trial court held a three-day evidentiary sanctions hearing in the SAPCR suit, in which a number of Department witnesses were subpoenaed and testified. At the conclusion of the hearing, the trial court ruled against the Department in an order signed on May 21, 2013, in which it found:

• The trial court and the Department were aware of an immediate danger to the physical health and/or safety of the child and his siblings on July 25, 2012.

• To ensure the child's safety, the trial court issued an emergency order directing the Department to take immediate possession of the child.

• The Department did not take immediate possession of the child.

• The Department's failure to comply with the court's orders relating to the court's management and administration of its cases interfered with the court's exercise of its jurisdiction, the administration of justice, and the preservation of the independence and integrity of the court.

• The Department knowingly and willfully ignored a court order to take the child [into custody] for approximately 48 hours.

The order also contains the following conclusions of law:

• Section 262.104 of the Family Code allows an authorized representative of the Department, a law enforcement officer, or a juvenile probation officer, to take possession of a child without a court order if they have “personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child.”

• Under its inherent powers, a court has “all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue the writs and orders necessary or proper in aid of its jurisdiction.” Tex. Gov't Code § 21.001.

The trial court ordered the Department be fined $20,000 for “the two days” that the Department “willfully and wantonly disregarded” its order to take possession of the child. It further ordered the Department to reimburse Connolly for his time incurred in prosecuting the motion for sanctions and contempt, in the amount of $11,108.33, as well as attorney's fees on appeal of $30,000, and McCartney's expert's fees, in the amount of $3,171.98.

In addition, the trial court ordered the Department to “present the Court with a copy of the written procedures it has established to ensure that, in an emergency situation such as the one that occurred in this case, the Department will take immediate possession of a child,” and to provide a list with the names and phone numbers of Department employees who are authorized to take immediate possession of a child.

The Department asked the trial court to reconsider its order; the trial court refused.

Discussion

“Mandamus is proper if a trial court issues an order beyond its jurisdiction.” In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (orig. proceeding) (per curiam); In re Dickason, 987 S.W.2d 570, 571 (Tex.1998) (orig. proceeding). A void order is one that is beyond the power of the court to enter; error...