480 S.W.3d 542
Tex.2013Background
- This is a SAPCR proceeding where a trial court order transferred possession of two foster children to the father, prompting a mandamus challenge by the foster parents.
- DFPS had placed the children with Melissa Blevins in February 2010 and attempted reunification with biological parents, which failed; mother relinquished rights and father was deported in December 2010.
- On August 8, 2011 the court issued a Final Order appointing the Department as Permanent Managing Conservator and Father as Possessory Conservator, with Father’s access limited to supervised visitation.
- An October 12, 2011 placement review placed the children with paternal grandparents, without changing the conservatorship provisions.
- Blevins intervened on December 20, 2011 seeking sole managing conservatorship and to keep the children in Tarrant and Somervell counties; DFPS petitioned for modification on March 7, 2012, with Father and his mother residing in Mexico.
- A TRO was issued March 29, 2012; at an April 4, 2012 hearing the court’s April 16, 2012 order denied the TRO and purportedly placed the children with Father, but there was no prior order placing them with Father; the presiding judge then recused, and a replacement judge took over.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus should be abated when the original judge has recused. | Blevins contends abatement is required to permit the successor judge to act. | The appropriate approach varies; some courts proceed on merits, others abate. | Abatement appropriate to permit reconsideration by the successor judge. |
| Whether the April 16, 2012 order placing children with Father should be revisited by the new judge. | The order is subject to review and potential vacatur. | The new judge should review the underlying evidence and circumstances. | Proceed with reconsideration; not limited to prior evidence. |
| What governs the permissibility of mandamus when the original order is under reconsideration by a successor judge. | Mandamus should compel review of the challenged order. | Discretion governs whether mandamus is appropriate at this stage. | Discretionary mandamus; abate and allow reconsideration. |
Key Cases Cited
- In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (mandamus abatement when judge ceases to hold office)
- In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227 (Tex. 2008) (mandamus against successor judge; discretion in remedy)
- In re Guerra, 235 S.W.3d 392 (Tex.App.-Corpus Christi 2007) (abatement approach when judge recuses; successor considered)
- In re Gonzales, 391 S.W.3d 251 (Tex.App.-Austin 2012) (abate to allow successor judge to rule on underlying matter)