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, 
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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.
3

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. 
4

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 crossexamined 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. 
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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 
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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 postremoval 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.