in Re: M. F. G., Individually and as Next Friend for I.J.G., a Minor
12-21-00110-CV
| Tex. App. | Sep 1, 2021Background
- Relator M.F.G., mother and next friend of minor I.J.G., filed a notice of appeal from a final SAPCR order (appeal pending as No. 12-21-00068-CV).
- On July 1, 2021 the trial judge (Respondent) held a hearing on DFPS’s motions for orders pending appeal, including a motion to suspend Relator’s visitation.
- At the July 1 hearing Relator orally agreed to waive her upcoming visitation pending a reset of the hearing; the judge rescheduled the hearing to July 21 and told her she could present evidence then.
- Relator filed an original mandamus petition (July 14) challenging the July 1 proceedings and multiple prior orders, alleging lack of notice, denial of evidence, improper restraint of visitation, lack of jurisdiction, and other constitutional and statutory violations.
- The Court of Appeals found (1) Relator cannot complain about restraints she agreed to; (2) the record did not support several of her assertions; (3) the Family Code authorizes trial-court orders to protect a child during appeal; and (4) Relator failed to provide the appellate record required by Tex. R. App. P. 52.7 for many of her claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by restraining visitation/keeping child from Relator | Relator says she was improperly restrained and denied return of child | Trial court and DFPS say Relator agreed to waive visitation pending reset | Court: Relator agreed at hearing; cannot complain about action she consented to |
| Whether trial court entertained a same-day motion to terminate parental rights | Relator contends a termination motion was entertained at the July 1 hearing | Court/DFPS say the hearing addressed orders pending appeal, not termination | Court: Record does not support Relator’s termination-motion claim |
| Whether the trial court had authority to issue protective orders while appeal pending | Relator says court lacked jurisdiction/authority to act | DFPS points to Family Code §109.001 authority to protect child during appeal | Court: §109.001 permits necessary/equitable protective orders during appeal |
| Whether Relator received adequate notice and opportunity to defend at July 1 hearing | Relator says notice was untimely and she was unprepared | Court offered a continuance/reset to July 21; Relator accepted and did not object | Court: Hearing was reset; Relator did not preserve a complaint about the new date |
| Whether mandamus should issue concerning earlier orders (Sept 2019–July 2021) | Relator challenges many prior orders and evidentiary sufficiency | DFPS and court note absence of a properly authenticated record on those rulings | Court: Relator failed to file the record required by Tex. R. App. P. 52.7; cannot obtain mandamus on those complaints |
Key Cases Cited
- In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 (Tex. 2007) (mandamus is an extraordinary remedy; prerequisites explained)
- In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379 (Tex. 2005) (mandamus issues—requirement of clear abuse of discretion and lack of adequate appellate remedy)
- In re Fitzgerald, 429 S.W.3d 886 (Tex. App.—Tyler 2014) (relator bears burden to establish mandamus prerequisites)
- In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609 (Tex. 2006) (mandamus will not issue when another adequate remedy exists)
- In re Guardianship of Jordan, 348 S.W.3d 401 (Tex. App.—Beaumont 2011) (a party cannot complain about a trial-court action to which the party agreed)
- Interest of A.E., 580 S.W.3d 211 (Tex. App.—Tyler 2019) (court should not assume role of advocacy by independently combing the record for error)