Opinion
08-21-00066-CV
10-14-2021
IN RE: H.M., Relator.
AN ORIGINAL PROCEEDING IN MANDAMUS
Before Rodriguez, C.J., Palafox, and Alley, JJ.
MEMORANDUM OPINION
GINA M. PALAFOX, JUSTICE
Relator H.M. (Mother) has filed a writ of mandamus challenging trial court orders made by the Honorable Richard Ainsa, Associate Judge of the 65th District Court, granting intervenor foster parent J.M. (Foster Parent) (1) standing to intervene and (2) temporary sole managing conservatorship of child A.S. (Child) in ongoing custody proceedings.
The petition for a writ of mandamus is denied.
BACKGROUND
This case began as a parental rights termination suit, with the Texas Department of Family and Protective Services (the Department) filing the original petition in this matter on August 14, 2017, seeking conservatorship of Child and termination of both Mother and Father's parental rights. Child, who was a few weeks younger than two years old, was placed with Foster Parent.
On August 14, 2018, the Department filed a motion to have Child placed with Father. On September 6, 2018, Mother filed a motion to have Child placed with her instead. The trial court scheduled a September 7, 2018, hearing which was rescheduled to October 17, 2018.
On October 16, 2018, Foster Parent filed a petition in intervention under sections 102.004(b) and 102.005(5), alleging that Child had been placed with her for seven months, that she and Child had bonded, that Mother continued to have a relationship with a boyfriend who physically abused Child, and that Father did not have a relationship with Child. Foster Parent requested conservatorship, temporary orders, and private termination of Mother's parental rights. Mother and Father filed motions to strike Foster Parent's pleadings, which were not ruled upon. On December 12, 2018, the Department filed a motion to return Child to Mother and create a monitored custody transition plan. Our mandamus record, however, does not indicate whether that motion was ever ruled on by the trial court, nor does it clearly indicate whether Child was returned to Mother for a period of time pending such ruling.
Instead, our record shows the trial court granted Foster Parent's request to intervene by order dated January 24, 2019. This is the first order being attacked in this mandamus petition. Later the same day after the trial court granted the intervention request, the Department dismissed its termination action against Mother, leaving this matter as a solely private dispute between Mother, Father, and Foster Parent. The next day, January 25, 2019, Foster Parent filed for a temporary restraining order, temporary injunction, and permanent injunction allowing her to retain Child. The trial court granted the TRO.
The trial court later entered temporary orders naming Foster Parent as temporary sole managing conservator on March 6, 2019. This conservatorship order is the second order being attacked in this mandamus proceeding.
Trial was scheduled for May 12, 2020, but that setting was cancelled due to the COVID-19 pandemic and has apparently not been reset. This mandamus action followed.
DISCUSSION
Parental rights conservatorship orders may be challenged by mandamus. In re B.B., No. 08-20-00247-CV, 2021 WL 508357, at *2 (Tex. App.-El Paso Feb. 11, 2021, orig. proceeding). Because conservatorship determinations are intensely fact driven, the trial court is in the best position to observe the demeanor and personalities of the witnesses and can "feel" the forces, powers, and influences that cannot be discerned by merely reading the record. In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). A trial court's determination of what is in the child's best interest, specifically the establishment of terms and conditions of conservatorship, is a discretionary function. Id. The trial court's judgment will be reversed only when it appears from the record as a whole that the court has abused its discretion. Id. A trial court abuses its discretion when it acts "without reference to any guiding rules or principles; or in other words, when it acts arbitrarily or unreasonably." Id.
To be entitled to mandamus relief, a relator generally must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 135-36. Based on the record before us, we conclude that Relator has failed to establish she is entitled to mandamus relief.
Standing to Intervene
With respect to the order granting Foster Parent standing to intervene, Mother argues that foster parents set out in Tex. Fam. Code Ann. § 102.004(b-1). Mother is correct that Foster Parent cannot meet this standard. However, as Foster Parent correctly points out, the foster parent time restriction Mother relies on does not apply to this suit for procedural reasons.
H.B. 1410, the bill that created section 102.004(b-1), states: "The changes in law made by this Act apply only to an original suit affecting the parent-child relationship filed on or after the effective date of this Act. An original suit affecting the parent-child relationship filed before the effective date of this Act is subject to the law in effect at the time the suit was filed, and the former law is continued in effect for that purpose." Act of Sept. 1, 2017, 85th Leg., R.S., ch. 341, § 2, 2017 Tex. Sess. Law Serv. Ch. 341 (H.B. 1410). Thus, section 102.004(b-1) only applies to lawsuits filed after H.B. 1410's effective date of September 1, 2017.
Here, the original petition in this case was filed by the Department on August 14, 2017, a few weeks prior to the September 1, 2017, effective date. Because the original SAPCR suit was filed prior to the effective date of section 102.004(b-1), and because the law in effect at the time the original petition was filed controls and did not require a foster parent intervenor to meet the 12-month requirement set out in section 102.004(b-1), the trial court was not required to apply the 12-month restriction applicable to foster parents in this case and was free to apply the general umbrella standing statute located at Tex. Fam. Code Ann. § 102.004(b), which gives a trial court the ability to grant leave to intervene to "a grandparent or other person . . . deemed by the court to have had substantial past contact with the child . . . if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development." Id.; see also Spurck v. Tex. Dep't of Family & Protective Servs., 396 S.W.3d 205, 217-19 (Tex. App.-Austin 2013, no pet.) (applying this standard in case involving foster parents who intervened in Department-initiated custody case).
Under that general umbrella standing statute in effect at the time, the trial court's decision was proper to the extent it found Foster Parent had past substantial contact with Child, as Child had been in Foster Parent's custody for seven months and thus met the substantial contact standard necessary for intervention. Cf. In re M.T., 21 S.W.3d 925, 927 (Tex. App.-Beaumont 2000, no pet.) (foster parent had section 102.004 standing to intervene under previous version of Texas Family Code because the fact that children resided with foster parent for over 14 months supported trial court's past substantial contact finding).
Unfitness and Best Interest Findings
As for the order grant of temporary custody to Foster Parent-which rests on the trial court's findings that Mother is unfit to serve as managing conservator (i.e., that it would significantly impair Child's physical health or emotional development) and that Foster Parent's conservatorship is in Child's best interest-Mother is correct that where a nonparent seeks custody of a child already subject to an existing custody order, a parent previously named as managing conservator is entitled to a fitness presumption that the parent acts in his or her child's best interest, and a child may not be placed with another relative if the fit parent objects to the placement. In re C.J.C., 603 S.W.3d 804, 819 (Tex. 2020) (orig. proceeding).
However, as we have previously recognized, that presumption applies when a parent in a custody modification proceeding has actually previously been named as managing conservator, and it is not clear from the record that Mother had been previously named managing conservator by the trial court. See In re B.B., 2021 WL 508357, at *2. As such, she has not shown she is entitled to benefit from the presumption. Id.
In any event, to the extent it applies, the fit parent presumption is not absolute, and the presumption may be rebutted so long as the trial court has made a predicate finding of unfitness. See id. Here, the trial court made the necessary unfitness finding, and Mother has failed to show the trial court's finding of unfitness was incorrect based on the record presented for two reasons.
First, Foster Parent, in her response as real party in interest, argues that because Relator Mother did not attach several reporter's records from key hearings in these proceedings, this Court may summarily deny mandamus relief. Foster Parent is correct. The burden is on the relator to provide the Court with a record establishing entitlement to relief, and the omission of a relevant reporter's record from the mandamus record provides a basis for denying mandamus relief. See In re Castro Enterprises, Inc., 349 S.W.3d 9, 9-10 (Tex. App.-El Paso 2009, orig. proceeding). Foster Parent details the entire case history and identifies several hearings from the docket sheet which do not appear in the record before us. Mother did not move to supplement the record or otherwise explain why evidence adduced at those hearings is not relevant to the question presented. As such, under In re Castro Enterprises, Inc., we may deny mandamus on that basis. Id.
Second, an independent review of the evidence we do have before us confirms that the trial court's findings of unfitness and that Foster Parent custody was in the best interest of the child were supported by the evidence. At the intervenor standing hearing, multiple witnesses described Foster Parent as a very caring and loving foster mother, with Child exhibiting significant positive behavioral changes and improvements while in Foster Parent's care.
The evidence also showed a pattern of instability from Mother that would justify the trial court's decision to name Foster Parent as managing conservator while granting Mother visitation only. At the intervention hearing, Mother testified that Child was removed from her home after Boyfriend and Boyfriend's Mother, with whom she was living, got into a fight. She testified that applied for SSI disability for depression, anxiety, and bipolar disorder. Mother further testified that she and Boyfriend had a baby, who was not removed by the Department. Mother denied Boyfriend abused Child but acknowledged that the Department originally intervened based on complaints that Mother was not protecting Child from abuse from Boyfriend, who was alleged to have physically struck child (leaving bruises on Child's face) and called Child (a toddler at the time) a "pussy" and "a little bitch." Mother admitted that at the time the Department became involved, the family had a Pitbull puppy that was "kind of aggressive" which would cause Child to "jump a lot" and "bump into things and hit his head" thereby causing Child injury, but she acknowledged that doctors did not agree that Child's injuries were consistent with injuries from the puppy.
Mother relies entirely on the parental presumption in her mandamus petition, but that presumption is not absolute. Given the state of the record here and the trial court's unfitness finding rebutting the parental presumption and given that Mother does not point to any mandamus record evidence tending to undermine the trial court's unfitness and best interest findings, the trial court's findings are in essence undisputed. Mother has not carried her burden establishing she is entitled to mandamus relief.
In the alternative, Foster Parent asks the Court to deny mandamus based on the defense of laches, reasoning that the approximately 26-month delay between the written order signed March 6, 2019, and the date of the mandamus application on April 29, 2021, justifies denial of the petition.Notably, trial on the final custody issue was set for May 2020, but has apparently been delayed due to the COVID-19 pandemic, so the delay past that date may be at least partially justified. That said, Mother never offers this explanation, or another explanation, in her pleadings as a reason for her delay in seeking mandamus to challenge the order during the year long period between the original trial date and the mandamus application here. Further, there is no explanation in the record for the 14-month delay preceding the original trial date, before the COVID-19 pandemic began.We hold alternatively that laches is an appropriate ground to deny mandamus here, as Child had been in Foster Parent's custody for more than 26 months before mandamus was filed and Mother did not explain the basis for the delay. See In re Marquez, No. 08-20-00246-CV, 2021 WL 3260631, at *2-*3 (Tex. App.-El Paso July 30, 2021, orig. proceeding) (finding laches barred a challenge to a contempt order for child support where relator waited 23 months to file mandamus action and provided no explanation for the delay or why the delay was reasonable).
CONCLUSION
Based on the evidence presented in the mandamus record, Mother cannot show that the trial court abused its discretion by issuing the intervention order and the conservatorship order. Accordingly, we deny the petition for writ of mandamus.