in Re O.O. and A.G.

Court of Appeals of Texas·Decided May 26, 2015·No. 01-15-00430-CV·Published

Opinion

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 FILED IN -

1st COURT OF--APPEALS ----

______________________________________ HOUSTON, - -

--- PTEXAS

- - ---- CA ------

5/25/2015

- I9:05:44

- D -- PM

IN RE OLUBUNMI OGUNDOKUN AND AHMED ---- VO ------

GIWA, CHRISTOPHER -- A. PRINE - ----

--Clerk

RELATORS -

RESPONSE MOTION TO STRIKE DEFECTIVE AFFIDAVIT AND DENY FILED IN

1st COURT OF APPEALS

EMERGENCY MOTION TO CLARIFY AND/OR RECONSIDER STAYTEXAS HOUSTON, OF

5/26/2015 8:00:00 AM

VISITATION, OR IN THE ALTERNATIVE, REQUEST TO ABATE CHRISTOPHER A. PRINE

Clerk

On Petition For A Writ Of Mandamus From Cause No. 2015-02330J From the 314th 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

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 22nd, 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.

Respectfully submitted,

PARCHMAN LAW GROUP P.L.L.C. By:

Jon Parchman

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

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

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 134th Juvenile District Court – Harris County 1200 Congress, 5th Floor Counsel for Real Party in Interest Houston, Texas 77002 A.G.

Counsel for Real Party in Interest William B. Connolly DFPS Attorney Ad Litem Vince Ryan Connolly & Shireman, L.L.P. Harris County Attorney 2930 Revere St., Suite 300 1019 Congress, 15th Floor Houston, TX 77098 Houston, Texas 77002 Tel: (281) 506-0086

Tel: (713) 274-5220 Fax: (713) 437-4700 Fax: (713) 520-6644

Jon Parchman

Jon Parchman Attorney for Relators

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