In Re Allen
359 S.W.3d 284
| Tex. App. | 2012Background
- Department removed Allen's child on Nov. 21, 2011 and filed protection/conservatorship petitions the next day.
- Temporary order following adversary hearing (Dec. 5, 2011) granted the Department temporary managing conservatorship.
- Allen challenged the order via a mandamus petition; initial denial due to lack of clerk’s/reporter’s records.
- On rehearing, Allen supplied records and the court reviewed merits, finding abuse of discretion.
- Statutory framework centers on Texas Family Code §262.201(b): (1) danger to health/safety, (2) urgent need for protection and removal, (3) reasonable efforts to return home; evidence on (2) and (3) was lacking; prior termination in 2010 cited as potentially aggravating circumstances but not fitting §161.001(D)-(E).
- Record showed concerns about parenting ability, housing instability, and Allen's bipolar disorder not being medicated; Department sought non‑reunification goals but evidence failed to prove statutory grounds for removal or ongoing danger.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the temporary order satisfied §262.201(b) requirements | Allen argued the Department failed §262.201(b)(1)-(3) | Department contended findings supported removal | Abuse of discretion; no adequate proof for §262.201(b)(1)-(3); return ordered. |
| Whether there were aggravating circumstances to waive §262.201(b)(3) efforts | Prior 2010 termination indicated aggravated circumstances | Termination did not meet D/E criteria; no waiver | No waiver; record failed on (3) and related elements. |
| Whether there was sufficient evidence of danger to the child’s health or safety | Womack’s concerns showed risk | Minimal direct evidence of danger | Insufficient evidence under §262.201(b)(1). |
| Whether the Department adequately demonstrated urgent need for protection and removal | Removal necessary and properly supported | No demonstrable evidence of necessity to remove | Lacked proof of urgent need under §262.201(b)(2). |
| Whether Allen’s previous lack of medication and anger management justified continued custody by Department | Current risk due to bipolar illness and parenting | Concern supported, but not statutory grounds shown | Record failed to prove statutory grounds; mandamus granted. |
Key Cases Cited
- Cantu v. Longoria, 878 S.W.2d 131 (Tex.1994) (mandamus relief available for trial court abuse of discretion; absence of clear remedy at law)
- In re Fulgium, 150 S.W.3d 252 (Tex.App.-Texarkana 2004) (orig. proceeding; review standard for mandamus concerning trial court discretion)
- Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (cannot substitute own judgment on factual issues; limits of mandamus review)
- Dancy v. Daggett, 815 S.W.2d 548 (Tex.1991) (mandamus appropriate where there is no adequate remedy at law)