Use of removal affidavits

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, 248 (Tex. 2013). The Fourteenth Court of Appeals interpreted this to mean that the Texas Supreme Court has approved the consideration of the removal affidavit to evaluate sufficiency of the O ground for termination. In re A.J.E.M.-B., No. 14-14-00424-CV, 2014 Tex. App. LEXIS 12129, at *19 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.). The Austin Court of Appeals agrees with this reasoning. F.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-19-00625-CV, 2020 Tex. App. LEXIS 119, at *18-*20 (Tex. App.—Austin Jan. 9, 2020, no pet.) (mem. op.).

Of course, no one's elected me to anything. I feel, however, that A.S. is potentially taking this position further than I would have thought, and allowed the removal affidavit to be used for all purposes. We'll see going forward if that proves to be the case.

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