Texas Child Welfare Law

1. If: (1) the trial court grants a mistrial and extends the dismissal deadline under section 263.403(b-1); (2) the parent's rights are terminated at the subsequent trial; (3) the parent appeals; and (4) the court of appeals holds that the evidence was factually insufficient to support the termination findings and remands the case back to the trial court for a new trial, Is the parent entitled to a dismissal because the dismissal deadline cannot be extended a second time under section 263.401(b-1)? 2. If the trial court rendered a monitored return under section 263.403 and the monitored return failed, can the trial extend the dismissal deadline under section 263.401(b-1) if it grants a new trial? My gut feeling under both circumstances is that the case would be automatically dismissed. Fight me.

Dismissal deadlines are boring. At least, until yours is passed and the case is dismissed. In re G.P. , No. 03-22-00796-CV (Tex. App.—Austin Feb. 10, 2023, orig. proceeding), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=f75969f5-5d68-49b5-bca3-14d7d8462e81&coa=coa03&DT=Opinion&MediaID=cde21e46-f359-45ae-a43f-1c1a435c0ff1 . Here's the timeline: Feb. 2020 – trial court signs ex parte order appointing the Department as the temporary managing conservator of the Children. Before original deadline – trial court extends the dismissal deadline based on extraordinary circumstances. Dismissal deadline extended several times under the emergency COVID orders. May 9, 2022 – jury trial timely commenced. June 1, 2022 – trial court declared a mistrial after the jury announced they were deadlocked, and granted a motion for new trial. This empowered the trial court to extend the dismissal deadline to November 28, 2022. The parties (excludi...

Not a child welfare case but an interesting discussion on a nontraditional permanent injunction in a SAPCR. Also, worth noting that the parent was enjoined from activities occurring outside the children’s presence. Trial court did not abuse its discretion in issuing an order which enjoined Father from renting out Children’s rooms when they are not staying with him. Gardner v. McKenney , No. 03-21-00130-CV (Tex. App.—Austin Feb. 15, 2023, no pet. h.) (mem. op.), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=67febc2e-c651-4866-938f-4514c367d5a1&coa=coa03&DT=Opinion&MediaID=9583967e-276f-455b-9fb6-ec83246d93ab . Parents originally had been appointed joint managing conservators, with Mother having the right to designate residence. Mother filed a motion to modify, which included a request that the trial court enjoin Father from renting out the children’s bedrooms as short-term rentals. Father’s trips with the Children did not ...

In the A.S. case, which I posted about earlier today, at four different points in the opinion the Austin Court of Appeals noted that the removal affidavit was not admitted into evidence. There have been instances in which a court of appeals has indicated that a removal affidavit is not admissible. See In re M.W. , No. 13-19-00593-CV, 2020 Tex. App. LEXIS 3159, at *2 n.3 (Tex. App.—Corpus Christi Apr. 16, 2020, no pet.) (mem. op.) (describing the removal affidavit as “hearsay admitted over an appropriate objection”); In re T.T. , 39 S.W.3d 355, 361 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“unless an issue arises upon retrial over whether TDPRS properly took temporary custody of the children, the emergency removal affidavit should not be admitted then against [mother]”). The Texas Supreme Court has stated, “This affidavit, even if not evidence for all purposes, shows what the trial court relied on in determining whether removal was justified.” In re E.C.R. , 402 S.W.3d 239,...

In my experience, some lawyers representing the Department or the children ask themselves, “Has the parent proved that they have addressed the concerns that brought the children into care?” Fair enough, but it is insufficient. At trial, the burden is on the Department to prove that going forward the parents are an unacceptable risk of abuse or neglect to the children. This is a different issue and should be presented to the court as such. It is important to note in A.S. that the Department became involved because Mother took one of her Children to the hospital because she was concerned he had been sexually abused. In other words, Mother was protective. We’re told that the Department developed concerns about Mother’s instability, the parents’ drug use, and domestic violence. However, the caseworker (whom I respect) “did not elaborate on the reasons for these concerns.” That’s a problem. No drug test results were admitted into evidence. The court of appeals claimed that thi...

A.S. v. Tex. Dep’t of Family & Protective Servs. , No. 03-22-00626-CV (Tex. App.—Austin Feb. 29, 2023, no pet. h.) (mem. op.), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9589a358-0ae5-4d52-b6de-cc2a946e39a1&coa=coa03&DT=Opinion&MediaID=a0fed9cb-132a-49c0-a2a8-70ec6ee2ae3f . Hopefully this post will be longer than posts I will write in the future about developing case law. The parents appealed a district court’s order appointing the Maternal Grandmother as the managing conservator of the Children. The investigation began after Mother took one of the Children to the hospital with concerns that he might have been sexually abused by an uncle. The Department then had concerns about Mother’s “instability,” Father’s drug use, and domestic violence between Mother and Father. The case appears to have been initially filed as a court-ordered services case, with the children living with Maternal Grandmother. After nine months of involvement,...