In Re A.S. v. the State of Texas

Opinion

NUMBER 13-23-00215-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE A.S.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Silva and Peña Memorandum Opinion by Justice Silva1

On May 19, 2023, relator A.S. filed a petition for writ of mandamus in this case. 2

A.S., who is mother to minor child, A.J.S.D., contends that the trial court abused its

discretion by issuing an ex parte temporary restraining order preventing A.S. from

1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.1 (requiring the appellate courts to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition”); id. R. 47.4 (distinguishing opinions and memorandum opinions).

We use pseudonyms to refer to relator, the children, and other family members. See TEX. FAM. 2

CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8. obtaining custody of A.J.S.D. See TEX. FAM. CODE ANN. § 262.201(g). As discussed

herein, we dismiss this petition for writ of mandamus as moot.

The essential facts of this case can be found in a memorandum opinion previously

issued by this Court. See In re A.S., No. 13-23-00156-CV, 2023 WL 3293299 (Tex. App.—

Corpus Christi–Edinburg May 5, 2023, orig. proceeding) (mem. op.). In that case, we

concluded that the trial court abused its discretion by refusing to return A.J.S.D. to A.S.

after an adversary hearing because the trial court failed to make the findings required by

the family code. Id. at *1–5; see TEX. FAM. CODE ANN. § 262.201(g); In re Hughes, 446

S.W.3d 859, 861 (Tex. App.—Texarkana 2014, orig. proceeding); In re Pate, 407 S.W.3d

416, 419 (Tex. App.—Houston [14th Dist.] 2013, orig. proceeding). Thus, on May 5, 2023,

we conditionally granted A.S.’s petition for writ of mandamus and directed the respondent,

the Honorable Jack Marr, to vacate the April 10, 2023 “Temporary Order Following

Adversary Hearing.” In re A.S., 2023 WL 3293299, at *5.

However, on May 5, 2023, the attorney ad litem for A.J.S.D. sought and obtained

an ex parte temporary restraining order from a different judge, the Honorable Kemper S.

Williams. This order prevented A.S. and the Texas Department of Family and Protective

Services (Department) from removing A.J.S.D. from his current placement, interfering

with that placement, or taking any action to change it. Subsequently, on May 11, 2023,

Judge Marr, acting pursuant to this Court’s directive, vacated the April 10, 2023

“Temporary Order Following Adversary Hearing.” However, A.J.S.D. was not returned to

A.S.’s custody because of the ex parte temporary restraining order signed by Judge

Williams. On May 18, 2023, Judge Williams extended the ex parte temporary restraining

order and set a hearing in the case to be held on May 25, 2023.

2 The Department has now furnished this Court with a May 25, 2023 “Temporary

Injunction” signed by Judge Williams. This temporary injunction prohibits A.S. and the

Department from: (1) removing A.J.S.D. from his current placement, or any hospital,

hospice, or medical facility in which he has been admitted; (2) taking any action to

interfere with the placement of A.J.S.D.; or (3) taking any action to change the placement

of A.J.S.D. without the approval of the court. The Department has also furnished this

Court with a Rule 11 Agreement entered by the Department and A.S., which, inter alia,

provides A.S. with therapy and counseling, virtual visits with A.J.S.D., and a telephone

with pre-paid texting and calling which A.S. can use to communicate any concerns

regarding A.J.S.D.’s care. See TEX. R. CIV. P. 11. Under the agreement, the Department

will withdraw its “Motion to Suspend [V]isitation,” and will provide transportation to A.S.

for proposed in-person visits with A.J.S.D.

Based upon the foregoing, we conclude that this original proceeding is moot. The

temporary restraining order is no longer in effect and the parties appear to have reached

agreements regarding some of the salient matters at issue. In so ruling, we note that

“[t]rial courts have considerable discretion in making temporary orders for a child’s safety

and welfare in suits affecting the parent-child relationship.” In re Scheller, 325 S.W.3d

640, 642 (Tex. 2010) (orig. proceeding) (per curiam) (citing TEX. FAM. CODE ANN.

§ 105.001). However, a trial court cannot “infringe on the fundamental right of parents to

make child rearing decisions simply because [it] believes a better decision could be

made.” Troxel v. Granville, 530 U.S. 57, 72–73 (2000) (plurality op.) (internal quotations

omitted). We understand that the circumstances of this case are devastating, and we trust

that going forward, all parties will work together within the statutory framework established

3 by the Legislature to ensure that A.J.S.D. and A.S. are afforded the rights and protections

to which they are entitled under the law.

The Court, having examined and fully considered the petition for writ of mandamus,

the responses filed by the Department, W.D., and M.J., and subsequent events, is of the

opinion that this original proceeding is moot. Accordingly, we dismiss the petition for writ

of mandamus as moot. Our disposition does not extend to the merits and is without

prejudice to further review, if any. We likewise dismiss as moot: (1) the “Motion for

Emergency Stay, Immediate Return of Child, and Expedited Consideration,” filed by

relator, and (2) the “Amended Motion to Dismiss Petition for Writ of Mandamus,” filed by

the attorney ad litem.

CLARISSA SILVA Justice

Delivered and filed on the 26th day of May, 2023.