in Re Kimberly Marks

Opinion

ACCEPTED 01-15-00087-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/19/2015 4:25:56 PM CHRISTOPHER PRINE CLERK

No. 01-15-00087-CV __________________________________ FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS FOR THE HOUSTON, TEXAS 3/19/2015 4:25:56 PM FIRST SUPREME JUDICIAL DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk AT HOUSTON, TEXAS __________________________________

IN RE: KIMBERLY MARKS, Relator __________________________________

Original Proceeding brought from the 310th Judicial District of Harris County, Texas, No. 2013-73339 __________________________________

RESPONSE TO RELATOR’S OBJECTION TO EXHIBIT MR-2 AND RESPONSE TO JURISDICTION _________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

The Real Party in Interest, Department of Family & Protective Services

[“Department”], respectfully responds to relator’s objection to Exhibit MR-2 and

response to jurisdiction as follows:

1. Relevant Background Facts

This present case involves a mandamus petition filed by Kimberly Marks

from an order requiring her to participate in services pursuant to Tex. Fam. Code

Ann. §264.203 (West 2008). The Respondent named in the Petition for Mandamus

is the Honorable Lisa Millard, Judge of the 310th Judicial District Court of Harris County, Texas, the court where the subject case is docketed under Cause No. 2013-

73339, and styled, “In the Interest of [ARM, KRM and CM].”

On January 9, 2015, the Department filed a petition styled, “Original Motion

to Modify and Petition for Order to Participate in Services.” MR-1.1 The second

sentence of this petition expressly states there is an “affidavit attached hereto and

incorporated herein in its entirety.” Id. (emphasis added). Moreover, the affidavit

is referenced as the basis for the Department’s request under Section 264.203 of

the Family Code for an order that the parents participate in services. MR-1 p. 2.

When the Department filed its petition, the District Clerk stamped both the petition

and the affidavit with the District Clerk’s stamp noting both documents were filed

“1/9/2015” and received in “Envelope No. 371496”. See MR-1 and MR-2.

Thereafter citation was issued and on January 20, 2015 Kimberly Marks was

formally served with the Department’s petition and given notice that a hearing

would be held on January 27, 2015. MR-3 & MR-4. Prior to the hearing, Ms.

Marks filed a response on behalf of herself and her children contesting the petition.

MR-5; Marks(MR)-4.2 The responses did not complain that Ms. Marks did not

receive the affidavit attached to the petition and expressly mentioned in the first

paragraph of the petition. See MR-1. Moreover, no claim was made regarding that 1 “MR” in this brief refers to the First Supplemental Mandamus Record of the Real Party in Interest. The number following correlates with the number attachment assigned in that supplemental record. 2 “Mark(MR)” in this brief refers to the Mandamus Record filed by Relator’s attorney Steven Poocks on 2/9/15.

2 when the hearing was held and Ms. Marks appeared with her attorney Tom

Sanders. MR-11.

In this connection, at the hearing, the judge took notice, consistent with the

affidavit filed with the Department’s motion, that there was previous CPS history

from 2007. MR-11 (RR3 p. 9). Ms. Marks did not contest such notice, but rather

acknowledged he did not know that. MR-11 p. 9. The judge added: “And that

there was reason to believe there was physical abuse.” MR-11 p. 9. Ms. Marks’

attorney stated: “I can’t agree or disagree.” MR-11 p. 9.

Ms. Marks’ attorney stated his big argument was “I think there’s a huge

jurisdiction and a standing issue.” MR-11 p. 5 & p. 8. He suggested this would be

established “if the evidence was developed” and referred to what he believed the

evidence would show. MR-11 p. 6 (“And if we develop the evidence… “I think the

evidence would show”).

The Department responded by discussing the underlying facts, and, no

objection was made when the Department’s attorney proceeded to provide relevant

facts through attorney testimony, therefore, it was permitted.4 In this connection,

3 “RR” is abbreviation for the Reporter’s Record included as Attachment 11 to the Department’s Mandamus Record. 4 As illustrated by the Supreme Court, failure to object to attorney statements concerning facts may result in such statements being accepted as evidence in the case. See Mathis v. Lockwood, 166 S.W3d 743 (Tex. 2006) (At a post-judgment hearing challenging a default judgment, counsel testified that notice was sent to the defendant, but the defendant denied receiving it. While statements by neither were under oath, the oath requirement was waived when neither raised any objection in circumstances that clearly indicated each was tendering evidence on the record

3 the attorney stated that the Department received its referral in August of 2014.

MR-10 (RR p. 12). At some point the children were placed with the maternal

grandparents and she signed a document but she did not sign the service plan after

it was requested. MR-10 (RR p. 12). Also, the mother stopped complying with the

Department around Christmas of 2014. MR-10 (RR p. 12).

The court asked if there had been in problems in between that time, and the

Department’s attorney responded that there was a positive drug test in September

2014 and after that the children were placed with the maternal grandparents’ until

removed by the mother. MR-10 (RR p. 13). It was added, though the mother

claimed she would continue drug testing, she declined. MR-10 (RR p. 13).

Importantly, for purposes of the issue in this response, during the

Department’s presentation of the facts, the Department’s specifically referred to

the “affidavit” when discussing the initial referral in August of 2014. MR-11 (RR

p. 12) (“I’m referring to the affidavit.”). In addition, the judge obviously made the

parties aware she was considering the affidavit at this hearing, because the judge

stated she saw “Latuda” (a drug not previously discussed but referenced on page 6

of the Affidavit). MR-11 (RR p. 14) & MR-2 p. 6. No one objected at that point.

Also, Ms. Marks’ attorney likely understood the facts in the affidavit were being

based on personal knowledge on the sole contested issue); Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (holding attorney's unsworn statements tendered as evidence were sufficient absent objection); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).

4 considered, because after the court referred to that and asked if she was taking

anything else, Ms. Marks’s attorney responded: “What I have, Judge, is she’s

prescribed Prozac, Latuda, and Adderall.” MR-10 (RR p. 14).

Ms. Mark’s attorney then asserted she had been cleared on drug tests before

and represented: “she has taken voluntarily and she’s told me she would still

take voluntarily.” MR-10 (RR p. 14) (emphasis added). The Department’s

attorney responded: “he’s saying that she’s voluntarily willing to take a drug

test. That’s what we’re asking for, her to take a drug test and show that it’s

negative.” MR-10 (RR p. 1). The Department added that the Department would

be happy to look at any prescriptions she offered but added that the Department

had different facts about prescriptions each time CPS spoke with her and had been

trying for months to get this information without cooperation. MR-10 (RR p. 16).

At the conclusion of the hearing, the court advised that she was going to

order the mother to take a drug test and that it would be sealed so that only the

attorneys could view it. MR-10 (RR p. 18). The court advised if the drug test is

positive to let the court know, and the court presumed the matter would be

dismissed if not. RR p. 19.

That same day, Ms. Marks filed a pro se Petition for Mandamus asking this

court for emergency relief suspending the court’s order and to declare that the

court’s order was contrary to statutory and constitutional rights and void. Petition

5 for Mandamus of Ms. Marks filed January 27, 2015. On that same date, however,

she submitted a supplement to her mandamus admitting she submitted to the drug

test but claimed “the drug testing is still ongoing.” Supplement to Petition for

Mandamus (Filed January 27, 2015). Neither the Petition nor the Supplemental

Petition of Mandamus provided this court with the Affidavit attached to the

Department’s petition, and neither acknowledged the facts presented at the subject

hearing as well as the obvious reference to facts from the affidavit during the

hearing.

On January 29 2015, this court requested a response to Ms. Marks’ pro se

petition within 30 days. Prior to the responsive date, Ms. Mark’s second attorney,

Steven Poock, filed a document entitled “Second Supplemental Petition for Writ of

Mandamus.” Essentially, it requested that this court order the judge to vacate the

orders in the case, dismiss the Department’s petition, declare the procedures

violated law and direct the judge to follow the law.

In the meantime, the Department filed notice of non-suit, and on February

17, 2015, the court dismissed the Department’s petition. On March 2, 2015, the

Department filed a Mandamus Record that included the non-suit order as well as

the material documents and record that were omitted from the record presented by

Relator with the Petition for Mandamus. See MR 8-9; MR 2 & 11.

6 On March 5, 2015, this court entered an order expressing that it read the

Department’s mandamus record and concluded it appeared there no longer was a

controversy over which mandamus could apply. The court, therefore, asked for a

response within 14 days.

On March 11, 2015, Ms. Marks, through her attorney, responded to this

court’s order and claimed that this court retained jurisdiction, because Ms. Marks

filed a counterclaim for affirmative relief under Chapter 105 of the Civil Practice

& Remedies Code against the Department, and claimed mandamus relief would be

necessary if the Department ever sought an order for drug testing again. Ms.

Marks also filed an objection to the affidavit filed with the Department’s petition

and affirmatively stated “this exhibit was not served on Kimberly Marks, was never

served, presented or made available to Counsel, was never offered as evidence, and

was never admitted as evidence.” Relator’s Objection to Exhibit MR-2 p. 1. It

was further claimed that “Counsel for Kimberly Marks was completely unaware of

the affidavit until it was filed with the appellate court.” Id.

2. Kimberly Marks lacks a meritorious basis to object to the affidavit filed with the trial court in this mandamus proceeding when she never objected that she was not served the affidavit before or during the hearing to which this mandamus relates, and the affidavit was clearly referenced at the subject hearing, and well as in the petition she answered. For the first time, long after the hearing that resulted in the order Relator

complains about, Relator files an “objection” to the Affidavit that was filed in the

7 trial court and expressly incorporated as part of Department’s petition by language

in the first paragraph of the Department’s petition. MR-2 p. 1. Relator does not

cite any authority for bringing an “objection” for the first time on appeal, and the

undersigned knows of no legal basis to do so. In addition, Tex. R. App. P. 33.1

clearly requires complaints be first presented to the trial court first before they are

urged to the appellate court. Therefore, the undersigned attorney knows of no

meritorious basis for this court to review or grant Relator’s claim.

Moreover, it seems somewhat disingenuous considering Relator filed her

mandamus petition to challenge the trial court’s ruling from a hearing in which the

affidavit was clearly referenced during the hearing, and Relator never included that

hearing or the affidavit in her Mandamus Record. See MR-11. The Department

had to request it and include it. Consequently, her objection kind of emphasizes

that Relator acted in bad faith, as described in Tex. R. App. P. 52.11(d), “because

of the omission of obviously and important and material evidence or documents.”

Not only was the subject hearing that was the basis of the order she complained

about in this proceeding omitted from Relator’s Mandamus Record but so was the

Affidavit which was referenced at the hearing and in the petition which Ms. Marks

answered. This court should, therefore, reject this complaint as frivolous and

dismiss and/or deny it.

8 3. Relator’s claim for mandamus relief is moot.

The Department disagrees with Relator’s position that there is still a live

controversy entitled to mandamus relief. In this mandamus proceeding, besides

failing to provide this court with the relevant evidentiary facts admitted in

connection with the order Relator complained about to this court, Relator did not

provide this court with a copy of the order that non-suited the Department’s suit.

That is significant, because the non-suit mooted Relator’s claims for mandamus

relief and established there is no live controversy subject to review by this court.

A case becomes moot when no judiciable controversy continues to exist

between the parties. Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex.

2012). In this case, when the original pro se Petition for Mandamus was filed,

Relator claimed she there was a live controversy from which she needed

declarations about the invalidity of the trial court’s order and claimed that “Drug

testing is still ongoing,” Petition for Mandamus Supplement to Petition for Writ of

Mandamus (filed 1/27/15). However, since that time, she admitted she submitted

to a drug test and the record establishes the Department non-suited and no longer

maintains a suit seeking any orders against Ms. Marks. Consequently, there is no

live judiciable controversy from which this court can issue an order. As explained

by this court in Johnson v. Texas Serenity Academy, Inc., No. 01-14-00438-Cv,

2015 WL 1135947 (Tex. App.―Houston [1st Dist.] 2015, no pet. h.), once a final

9 order is rendered in a case, temporary orders become inoperative and “the issue of

its validity is moot.” Id. *4.

Also, the request for declaratory directives to the trial court as described in

the supplemental petitions filed in this mandamus would clearly amount to

impermissible advisory opinions. See Nat’l Collegiate Athletic Ass’n v. Jones,1

S.W.3d 83, 86 (Tex. 1999). Relator’s response to this court claims this court has

authority to consider her claims for advisory opinions based on the exception

announced in Williams v. Lara, 52 S.W. 3d 171, 184 (Tex. 2000) of “capable of

repetition, yet evading review.” However, as explained in that case, that exception

only applies if “a reasonable expectation exists that the same complaining party

will be subjected to the same action again.” Id. Because the Department no longer

maintains a suit to seek orders for services by Relator, any suggestion that it will

be sought in the future is merely speculative. Consequently, there is no proof of

the capable-of-repetition standard provided under the mootness doctrine.

In addition, Relator acknowledges in her most recent supplementation to this

court that she maintains an action for damages against the Department under

Chapter 105 of the Family Code. That chapter permits damages against the State

under a procedure in which the party proves the agency sought an action that was

frivolous, unreasonable or without foundation. See Tex. Civ. Prac. & Rem. Code

§105.003 (West 1998). Those findings are essentially the same relief that Relator

10 wants in the form of declarations from this court. Consequently, this circumstance

does not warrant extraordinary mandamus relief. Mandamus relief is only

available when a relator cannot obtain adequate remedy on appeal. In re Ford

Motor Co., 442 S.W.3d 265, 269 (Tex. 2014). Relator has adequate remedies at

trial, which may be challenged through the regular appeal process. Extraordinary

relief is not warranted and Relator provides no basis from which to conclude that

extraordinary relief is required in this circumstance. This court should, therefore,

dismiss and/or deny the mandamus proceeding.

PRAYER

For these reasons, the Department asks that this court deny the request for

objections to the affidavit filed in the trial court and included in the mandamus

record and further requests that this court deny and/or dismiss the mandamus

petition and for such other and further relief to which the Department may be

entitled in law or in equity.

Respectfully submitted,

VINCE RYAN County Attorney (#99999939)

By: /s/ Sandra D. Hachem Sandra D. Hachem State Bar #08667060 Assistant County Attorney SBN 08667060 1019 Congress, 17th Floor Houston, Texas 77002

11 Phone: (713) 274-5293 Fax: (713) 437-4700 ATTORNEY FOR REAL PARTY IN INTEREST DEPARTMENT OF FAMILY & PROTECTIVE SERVICES,

CERTIFICATION OF FACT STATEMENTS

The Department of Family & Protective Services’ Attorney of Record, Sandra Hachem, certifies that she has reviewed the foregoing response concluded that every factual statement therein is supported by competent evidence included in the Mandamus Records filed in this proceeding.

/s/ Sandra Hachem SANDRA HACHEM

CERTIFICATE OF SERVICE

This is to certify that on this 19th day of March, 2014, a true and correct copy of the foregoing motion was served on the below listed parties as follows:

To Relator, Kimberly Marks by and through her lead counsel, Steven Poock, by email at: spoock@juno.com

Also on this same date, a true and correct copy of the foregoing notice was served on the below listed parties by first class mail, properly addressed with proper postage, as follows:

Respondent, Honorable Lisa Millard Harris County Courthouse 310th Family Court 201 Caroline, 15th Floor Houston, Texas 77002

12 Interested Party Damon Wayne Marks 1008 Railroad, Thornton, Texas 76687

/s/ Sandra Hachem Sandra Hachem Assistant County Attorney