Case Information
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FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/25/2015 9:05:44 PM CHRISTOPHER A. PRINE Clerk FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 5/26/2015 8:00:00 AM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-00430-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 5/25/2015 9:05:44 PM CHRISTOPHER PRINE CLERK NO.01-15-00430-CV IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS ______________________________________ IN RE OLUBUNMI OGUNDOKUN AND AHMED GIWA, RELATORS RESPONSE MOTION TO STRIKE DEFECTIVE AFFIDAVIT AND DENY
EMERGENCY MOTION TO CLARIFY AND/OR RECONSIDER STAY OF
VISITATION, OR IN THE ALTERNATIVE, REQUEST TO ABATE
___________________________________ On Petition For A Writ Of Mandamus From Cause No. 2015-02330J
From the 314 th Juvenile District Court of Harris County, Texas
(The Honorable John Phillips) _______________________________________________________
ATTORNEYS FOR RELATORS PARCHMAN LAW GROUP PLLC Jon Parchman, State Bar No. 24085517 K.C. Ghanean State Bar No. 24090123 21 Waterway Ave., Suite 300 The Woodlands, Texas 77380 Telephone: (713) 518-1902 Facsimile: 1-(832) 442-5665 Jparch01@gmail.com kcghanean@gmail.com Counsel for Relators Olubunmi Ogundokun and Ahmed Giwa *2 TO THE HONORABLE COURT OF APPEALS:
This response motion is brought pursuant to Tex. R. App. P. 10.1(b) by the
Relators, Olubunmi Ogundokun and Ahmed Giwa, to request that this Court strike
the defective affidavit attached to and dismiss the real party in interest, Department
of Family & Protective Services, [hereinafter “Department”] Emergency Motion to
Clarify and/or reconsider Stay of Visitation, or in the Alternative, Request to abate
to Trial Court filed on May 22 nd , 2015, and in support shows the following:
I. BACKGROUND Relators are the parents of a young child taken by the Department into their
custody on April 15, 2015, based on allegation of medical neglect. On April 28,
2015, the Trial Court held an adversary hearing, after which the Department was
named temporary managing conservators of the child.
On May 7, 2015, Relator’s filed a Petition for Writ of Mandamus in order to
vacate the April 28, 2015 trial court order which granted the Department temporary
conservatorship. The writ was based on the Department’s failure to present
sufficient evidence to demonstrate a substantial risk of continuing danger to the
child if he was returned home, as is required under Tex. Fam. Code §262.201(b),
as well as failure to demonstrate a danger to the physical health or safety of the
child and failure to show reasonable efforts were made to return the child home.
Along with the Writ, Relator’s also filed an Emergency Motion for Stay
Pending Review of Writ of Mandamus on May 7. 2015, as the limited access
granted to the Relators was resulting on harm to the child. On May 8, 2015, this
Court granted the Emergency Stay with the portion of the April 28, 2015
temporary orders that limited the Relator’s visitation with and access to the child.
On May 22, 2015, the Department filed its own Emergency Motion to
Clarify and/or Reconsider the Stay of Visitation, or in the Alternative, Request to
Abate to Trial Court.
II. Argument
In the Department’s Emergency Motion, the Department referred to the UT
Physician Affidavit in several instances. In order to present the affidavit, the
Department cited to Tex. R. App. P. 10.2, which allows for the inclusion of an
affidavit when it contains information that is not in the record but relative for the
purposes of the motion. However, Tex. R. App. P. 10.2 does not allow the
inclusion of a defective affidavit as the UT Physician Affidavit is.
The “affidavit” that the Department is relying on to demonstrate some of the
“significant additional information” is not really an affidavit per se, but rather a
notarized letter sent to the Department at their request as a status update. Although
the “affidavit” has been notarized, it is wholly lacking in many of the key
requirements necessary for an affidavit to be considered.
An affidavit is a "statement in writing of a fact or facts signed by the party
making it, sworn to before an officer authorized to administer oaths, and officially
certified to by the officer under his seal of office." Tex. Gov't. Code. Ann.
§312.011(1) (Vernon 2005). The Supreme Court of Texas has determined that for
an affidavit to have any probative value, “an affiant must swear that the facts
presented in the affidavit reflect his personal knowledge.” In re DuPont de
Nemours & Co. , 136 S.W.3d 218, 224 (Tex. 2004). This “affidavit” contains no
such language that indicates that the information presented was based on either of
the two doctors who signed it personal knowledge.
In fact there is no indication that the doctors who signed it swore to anything
at all. After relaying the information, the “affidavit” ends with the word
“Sincerely” followed by the signature of the two doctors alongside the signature
and stamp of a notary. There is no jurat which is a "certificate by a competent
officer that the writing was sworn to by the person who signed it." Huckin v.
Connor , 928 S.W.2d 180, 183 (Tex. App.—Houston [14th Dist.] 1996) The
“affidavit” is merely a letter with no probative value and its inclusion with the
Department’s motion was improper.
The Emergency Motion filed by the Department is depending on facts that
are “not in the record, “not within the court’s knowledge in its official capacity”
and “not within the personal knowledge of the attorney signing the motion”, it is
required to be verified under Tex. R. App. P. 10.2. Furthermore, the UT
Physician’s “affidavit” is not an affidavit at all. The result is that certain key facts
the Department are relying on in their motion are not verified as required.
Therefore, the motion is improper and must be dismissed.
VII. PRAYER Plaintiffs pray that the Court grant them the following relief:
a. Strike the defective affidavit filed with the Department’s Emergency
Motion.
b. Dismiss the Department’s Emergency Motion.
c. Award all other relief as the Court deems just and proper. Jon Parchman
Respectfully submitted, PARCHMAN LAW GROUP P.L.L.C.
By: ______________________________ Jon Parchman State Bar No. 24085517 K.C. Ghanean State Bar No. 24090123 21 Waterway Ave., Suite 300 The Woodlands, Texas 77380 Telephone: (713) 518-1902 Facsimile: (832) 442-5665 Jparch01@gmail.com kcghanean@gmail.com ATTORNEY FOR RELATORS *6 Jon Parchman
CERTIFICATION OF FACTS AND RECORDS This certifies that the undersigned has reviewed this Motion and concluded that every factual
statement in it is supported by competent evidence included in the appendix or record.
_______________
Jon Parchman
Jon Parchman
CERTIFICATION OF CONFERENCE Pursuant to the requirements of Tex. R. App. P. 10.1(5), the undersigned attorney contacted
counsel for the Real Party in Interest the Department of Family Protective Sercices via email
regarding the errors with the “UT Affidavit” and their motion, but did not yet receive a response.
_______________
Jon Parchman
CERTIFICATE OF SERVICE I certify that a true and correct copy of the above was served on the following parties
and/or attorneys of record via facsimile and or electronic mail in accordance with the Texas
Rules of Civil Procedure on 5/26/15:
The Honorable John Phillips
134 th Juvenile District Court – Harris
County 1200 Congress, 5th Floor Counsel for Real Party in Interest Houston, Texas 77002 A.G. William B. Connolly Counsel for Real Party in Interest Attorney Ad Litem
DFPS Vince Ryan Connolly & Shireman, L.L.P. Jon Parchman Harris County Attorney 2930 Revere St., Suite 300 1019 Congress, 15 th Floor Houston, TX 77098 Houston, Texas 77002 Tel: (281) 506-0086 Tel: (713) 274-5220 Fax: (713) 520-6644 Fax: (713) 437-4700
_____________ Jon Parchman Attorney for Relators