In Re Texas Department of Family and Protective Services v. the State of Texas

Opinion

Court of Appeals Tenth Appellate District of Texas

10-25-00135-CV

In re Texas Department of Family and Protective Services

Original Proceeding

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

Relator, the Texas Department of Family and Protective Services, seeks

mandamus relief against the Honorable David Hilburn, Judge of the 361st

District Court of Brazos County, Texas. The Department complains of

Respondent’s April 11, 2025 order directing it to pay caregiver assistance

payments totaling $12,942.36. We conditionally grant the writ.

BACKGROUND

An associate judge signed the “Order of Termination and Final Order” in

the underlying suit affecting the parent-child relationship on September 22,

2023. The order terminated the mother’s rights to the children, S.M. and K.M.,

appointed the children’s father, who is incarcerated, as possessory conservator,

appointed the Department as permanent managing conservator, and placed the children with fictive kin caregiver,1 Wendy Dobbs. Without a de novo

hearing, Respondent, the presiding judge of the 361st District Court adopted

the associate judge’s 2023 orders. Thereafter, the Department provided Dobbs

with kinship payments to provide monetary assistance to the caregiver for a

total of fifteen months, ending in October 2024.2

On January 17, 2025, the father’s attorney filed a motion for continued

payment of kinship benefits, explaining that he understood that current

benefits would terminate at the end of that month. On February 5, a hearing

was held on the motion before the associate judge. Father’s counsel explained

that it was his understanding that the Department cannot continue to pay the

benefits without a court order. The attorney ad litem for the children opined

that continued payment is in the best interest of the children. The court asked

counsel for the Department if there is some legal prohibition to continued

payment, other than an order. Counsel for the Department responded with,

“my understanding is it’s a policy issue.” The court asked if there is a statute

1 Fictive kin or kinship care refers to the care of a child by relatives or close family friends. See Tex. Dep’t of Family and Protective Servs. Child Protective Servs. Handbook, § 6600 (Dec. 2023). 2 There is no documentation in the record showing how or when these payments originated. However, according to the Department’s brief in support of its request for a de novo hearing, the payments began in July 2023.

In re Tex. Dep’t of Family and Protective Servs. Page 2 or rule prohibiting it from ordering kinship funds to be continued. Counsel

responded with, “Not that I’m aware. It’s just policy.”

Child protective services kinship worker Sheree Mathis testified that the

caregiver “received [kinship payments] for a whole year, then extension for

additional six months.” She believes it is the Department’s policy that they

cannot continue to pay the funds without a court order, but she was “not quite

sure on how that works.” She was not aware of any legal reason the funds

would not be paid if an order is issued. Mathis stated that payment is in the

best interest of the children and would be beneficial to them. She explained

that originally, the provider received $12.67 per child, per day but as of

January 2025 the payments have increased to $23.45 per child, per day.

Wendy Dobbs, the caretaker, testified that she stopped receiving kinship

funds in October 2024. While she has been able to make it work, not receiving

the kinship funds has made it more difficult to care for the girls.

By an order signed on February 6, 2025, the associate judge granted the

motion for continued payment of kinship benefits, ordering the Department to

pay monthly installments from February through August 2025, at a daily rate

of $23.45 per day, per child, and further ordering the Department to pay a total

of $2,999.64 as retroactive payments for November and December 2024, and

In re Tex. Dep’t of Family and Protective Servs. Page 3 January 2025. On February 10, 2025, the associate judge, sua sponte, filed

findings of fact and conclusions of law. The court found no evidence “to

demonstrate or even suggest that ordering retroactive and/or current kinship

funds was prohibited by federal or state statute or rule” and that “clear,

convincing, uncontroverted credible evidence was presented” that ordering

payment of kinship funds, both retroactive and current, is in the best interest

of each child. The court’s conclusions of law mirrored the findings of fact.

The Department promptly requested a de novo hearing before

Respondent. Challenging the associate judge’s order, the Department asserted

it has statutory authority to determine eligibility criteria and which services

to provide. Further, the Department argued that the order violates Texas law

by ordering continued kinship payments even though the placement no longer

qualified for them.

A de novo hearing was held on March 4, 2025. Respondent listened to

arguments of the parties’ counsel and, without hearing testimony or receiving

additional evidence, denied the Department’s request to vacate the February

6 order. By written order signed April 11, 2025, Respondent adopted the

February 6 order and the February 10 findings of fact and conclusions of law.

In re Tex. Dep’t of Family and Protective Servs. Page 4 The Department filed a motion for temporary emergency relief in this

Court asking for a stay of further orders regarding funding to the children’s

placement and any contempt proceedings, sanctions, or any enforcement action

stemming from the April 11, 2025 order. The Department simultaneously filed

a petition for writ of mandamus asking this Court to vacate Respondent’s order

of April 11, 2025. At our request, the real parties in interest filed a response

to the petition for writ of mandamus.

CAREGIVER ASSISTANCE

In its petition, the Department asserts the trial court’s order violates

Texas Family Code provisions controlling the Relative and Other Designated

Caregiver (RODC) program. The statute gives the Department the authority

to award up to twelve months of cash assistance to qualifying caregivers and

the discretion to award up to six months of additional payments. The

Department argues that the order requires the Department to pay funds not

authorized by law.

The real parties in interest, the children and their father, filed a response

to the petition asserting that the trial court has continuing jurisdiction over

the children, and must review the conservatorship and the substitute care

provided to the children. They contend that the trial court had the

In re Tex. Dep’t of Family and Protective Servs. Page 5 responsibility to determine if good cause existed for paying the caregiver for an

additional three months, considering the best interests of the children. They

note there were no facts provided as to good cause or the lack of good cause for

not paying the remaining three months of kinship payments. They request

this Court deny the portion of the Department’s petition for writ of mandamus

concerning the trial court’s order to pay the three retroactive payments. The

response is silent as to the portion of the trial court order to pay from February

through August 2025.

Standard of Review

We grant the extraordinary relief of mandamus only when the trial court

has clearly abused its discretion, and the relator lacks an adequate appellate

remedy. In re H.E.B. Grocery Co. L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig.

proceeding) (per curiam). A trial court abuses its discretion if it reaches a

decision so arbitrary and unreasonable that it is a clear and prejudicial error

of law or if it fails to correctly analyze or apply the law to the facts. Id. at 302-

03; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

We defer to a trial court’s factual determinations that have evidentiary

support, but we review the trial court’s legal determinations de novo. In re

Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).

In re Tex. Dep’t of Family and Protective Servs. Page 6 In reviewing findings of fact in a mandamus proceeding, we cannot

substitute our judgment for that of the trial court. In re Dillard Dep’t Stores,

Inc., 198 S.W.3d 778, 780 (Tex. 2006) (orig. proceeding) (per curiam). Instead,

the relator must establish that the trial court could reasonably have reached

only one decision, and that its finding to the contrary is arbitrary and

unreasonable. Id. Factual determinations by the trial court may not be

disturbed by mandamus review if those determinations are supported by

sufficient evidence. In re La. Tex. Healthcare Mgmt., L.L.C., 349 S.W.3d 688,

690 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding).

Relative or Other Designated Caregiver Program

In cases where the Department has been appointed managing

conservator, it is authorized to place the children with a relative or other

designated caregiver. See TEX. FAM. CODE ANN. §§ 264.751-.762. The

Department shall, subject to the availability of funds, enter into a caregiver

assistance agreement with each relative or other designated caregiver to

provide monetary assistance and additional support services to the caregiver,

based on a family’s need. Id. § 264.755(a). Monetary assistance is available to

a caregiver who has a family income that is less than or equal to 300 percent

of the federal poverty level. Id. § 264.755(b). Monetary assistance under this

In re Tex. Dep’t of Family and Protective Servs. Page 7 section may not exceed fifty percent of the Department’s daily basic foster care

rate for the child. Id. The Department may not provide monetary assistance

to an eligible caregiver under subsection (b) after the first anniversary of the

date the caregiver receives the first monetary assistance payment. Id.

§ 264.755(b-1). The Department, at its discretion and for good cause, may

extend the monetary assistance payments for an additional six months. Id.

Analysis

Based on counsel’s statements, the associate judge found “no evidence”

that the father’s request for additional caregiver assistance was prohibited by

statute, and concluded no statute would prohibit the court from granting the

motion for retroactive and current kinship funds. At the de novo hearing, the

Department cited the applicable statute and explained the RODC program to

Respondent. Nonetheless, Respondent adopted the associate judge’s findings

and conclusions. While the Department may have been remiss in not drawing

the associate judge’s attention to the applicable statute, it was not required to

produce evidence of the statute. Moreover, trial judges are presumed to know

the law and to apply it in making their decisions. See Walton v. Arizona, 497

U.S. 639, 653 (1990), overruled, in part, on other grounds by Ring v. Arizona,

536 U.S. 584 (2002).

In re Tex. Dep’t of Family and Protective Servs. Page 8 The Department is required by statute to implement the RODC program.

See TEX. FAM. CODE ANN. § 264.752(a). The statute provides that, subject to

the availability of funds, and based on a family’s need, the Department shall

enter into a caregiver assistance agreement with a designated caregiver to

provide monetary assistance. Id. § 264.755(a). The Department shall provide

monetary assistance to a caregiver whose family income is within the limits

described in the statute. Id. § 264.755(b). The statute limits assistance to an

eligible caregiver to twelve months. Id. § 264.755(b-1). Thereafter, the

Department “at its discretion and for good cause” may pay the caregiver up to

six more months. Id.

The record contains no evidence as to the current availability of funds to

provide further assistance to Dobbs, a statutory prerequisite. See id.

§ 264.755(a).

Although Dobbs qualified for RODC assistance in the summer of 2023,

the record contains no evidence of Dobbs’s income or financial circumstances

at any time during this process. When testifying, Dobbs agreed with counsel

for the father that, although not having the funds makes it more difficult, she

has been able to make it work without kinship funds. Thus, the record does

not show that Dobbs continued to fall within the statutory income limits to

In re Tex. Dep’t of Family and Protective Servs. Page 9 qualify for kinship payments from October 2024 until the time of the hearing,

as required by the statute. See id. § 264.755(b).

Furthermore, after receiving the initial twelve-monthly payments, the

Department determined that good cause existed to continue the payments for

an additional three months. In its discretion, the Department declined to

provide assistance for the remaining three months authorized by statute. The

record contains no explanation for these determinations.

It is the overall scheme of the family code and an overriding policy that

the best interest of the child is always paramount. See id. § 264.754(b)

(placement with caregiver); id. § 153.002) (conservatorship, possession or

access); id. § 154.122(b) (child support); id. § 156.402(b) (modification of child

support order); id. § 153.007(b) (agreed parenting plan). Here, a child

protective services kinship worker testified that ordering additional funds to

be paid is in the children’s best interest, is beneficial to the children, and will

help meet their needs. Similarly, Dobbs testified that having funds for the

previous three months would be in the best interest of the children. However,

conclusory statements are not evidence. See In re M.B.G., No. 05-23-00505-

CV, 2024 Tex. App. LEXIS 3072, at *14 (Tex. App.—Dallas May 2, 2024, no

pet.) (mem. op.); In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th

In re Tex. Dep’t of Family and Protective Servs. Page 10 Dist.] 2020, no pet.) (en banc). Also, the attorney ad litem for the children

advised the court that he believes continued payment of the kinship funds is

in the best interest of the children. Likewise, arguments of counsel are not

evidence. Abila v. Miller, 683 S.W.3d 842, 848 (Tex. App.—Austin 2023, no

pet.). Therefore, there is no evidence to support the finding and conclusion

that ordering payment of retroactive and current kinship funds is in the best

interest of the children. Therefore, the evidence allows for only one decision

and the finding to the contrary is arbitrary and unreasonable. In re Dillard

Dep’t Stores, Inc., 198 S.W.3d at 780.

Furthermore, even if the record supported a determination that the

funds were available, Dobbs still qualified, and additional payments were in

the children’s best interest, the trial court award of ten months of payments,

plus the fifteen months of payments previously provided by the Department,

exceeds the eighteen months of payments potentially available under Section

264.755(b-1). See TEX. FAM. CODE ANN. § 264.755(b-1).

Respondent’s adoption of the associate judge’s February 6, 2025 order is

an abuse of discretion. See In re H.E.B. Grocery Co. L.P., 492 S.W.3d at 302-

03. Accordingly, we sustain Relator’s sole issue presented in this mandamus

petition.

In re Tex. Dep’t of Family and Protective Servs. Page 11 CONCLUSION

Based on the foregoing, we conditionally grant mandamus relief. See In

re Acceptance Ins. Co., 33 S.W.3d at 448. We direct Respondent to vacate his

April 11, 2025 order adopting the associate judge’s February 6, 2025 order and

the findings of fact and conclusions of law signed on February 10, 2025. The

writ will issue only if Respondent fails to act as directed herein within twenty-

one days of this opinion.

We deny Relator’s motion for temporary emergency relief.

STEVE SMITH Justice

OPINION DELIVERED and FILED: June 26, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Writ conditionally granted Motion for emergency relief denied OT06

In re Tex. Dep’t of Family and Protective Servs. Page 12