In re Kim Verbois and Steve Riggins--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-99-363-CV

IN RE KIM VERBOIS AND STEVE RIGGINS

Original Proceeding

DISSENTING OPINION

By the addition of a single sentence to his First Supplemental Temporary Orders Respondent could have avoided a series of very real and present conflicts. The majority holds that Respondent s failure to correct his order to account for those conflicts is not an abuse of discretion nor is it an error that can be remedied by mandamus. I dissent because I believe that Respondent should have modified his order to avoid those conflicts and that he can be directed to do so by mandamus.

Kim Verbois and Steve Riggins apparently face a real possibility of criminal charges arising out of the death of one of their twin daughters. Respondent himself asked, on the record, if each was a target of a criminal investigation and, after being told that they were by the attorney representing the Texas Department of Protective and Regulatory Services (DPRS), advised them of their Miranda rights prior to allowing the DPRS attorney to question them. Based on the evidence presented during the course of the mandatory fourteenth-day hearing, Respondent found that the cause of death of their daughter was blunt force injuries and that the manner of death . . . was homicide.

At the same time, Verbois and Riggins face the real possibility of losing custody of their other daughter. The child is currently under temporary managing conservatorship by DPRS. As part of the requirements to regain their child, Verbois and Riggins must comply with every reasonable and lawful order the trial court issues. Tex. Fam. Code Ann. 161.001(1)(O) (Vernon Supp. 2000). The order at issue requires that they submit to a psychological evaluation with a psychologist and submit to counseling if recommended by the psychologist in the psychological evaluation. Failure to comply with such an order can be used as evidence to support the termination of their parental rights to the child, a fact recognized by Respondent when he warned Verbois and Riggins that if you fail to follow any court order in this family law case . . . that non-compliance with the order . . . can be used against you at any final hearing in this case before the judge or the jury involving the termination of your parental rights. See id. The DPRS has explicitly indicated that it would use their refusal to fully comply with the order against them as suggested by Respondent s warning, observing that [t]he [position] of the agency [is that] when a parent does not work on the service plan that is something that can be used at trial.

Respondent s order puts Verbois and Riggins in an untenable situation. On the one hand, they can fully comply with the order, thereby giving up the protection afforded them by the constitutional right to remain silent in the face of state-sponsored questioning if the answers to those questions may have a tendency to incriminate them. On the other hand, they could assert their state and federal constitutional rights, but run the risk of having that assertion used against them, not as an invocation of a constitutional right but as a failure to obey a court order, in a proceeding which may deprive them of their constitutionally protected relationship with their child.

There is yet another underlying conflict in this proceeding. The Ellis County Attorney is statutorily charged with the responsibility of representing the State in criminal cases and DPRS in proceedings arising under the Family Code. Tex. Code Crim. Proc. Ann. art. 2.02 (Vernon Supp. 2000); Tex. Fam. Code Ann. 264.009. As the attorney for the DPRS, the County Attorney must zealously pursue [the Department s] interest within the bounds of the law. Tex. Disciplinary R. Prof l Conduct Preamble 3, reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 1998). In this role, the child s health and safety is the paramount concern. Tex. Fam. Code Ann. 262.001(b). As the prosecuting attorney, though, the County Attorney s primary duty [is] not to convict, but to see that justice is done. Tex. Code Crim. Proc. Ann. art. 2.01. On the one hand, the County Attorney is required to take advantage of the predicament that Verbois and Riggins face; on the other hand, the County Attorney is obligated to abide by the requirements of fair play inherent in seeking justice, including the obligation to respect Verbois s and Riggins assertion of the constitutional right to remain silent.

There is an option available, however, that would have resolved the conflicts faced by the parties, but it is an option that requires action by Respondent. Respondent could have specified that his order would not have the effect of trumping Verbois s and Riggins constitutional right to remain silent. With the addition of a sentence in the order to the effect that Verbois and Riggins retain the right to refuse to answer the psychologist s questions based on their right to remain silent, Respondent would have eliminated any argument that the parents have refused to comply with an order of the court by the assertion of their right to remain silent. Verbois and Riggins could attend the evaluation sessions, asserting their right to remain silent only if and as necessary and still be in full compliance with Respondent s order. The County Attorney could continue to vigorously represent DPRS, but would not have to balance his obligation to the Department as a civil client against his prosecutional duty to seek justice not convictions, in determining whether Verbois and Riggins refused to comply with a court order in the course of this proceeding. I believe that Respondent s failure to modify his order in such a way constitutes a clear abuse of his discretion.

A writ of mandamus will issue to correct a clear abuse of discretion by a trial court when the relator establishes compelling circumstances. Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996). A court order that raises important issues related to constitutional protections which an appeal cannot adequately address is such a compelling circumstance. Id. I would find that the order at issue presents the compelling circumstance necessary to support a writ of mandamus.

I would hold that Respondent clearly abused his discretion when he failed to modify his order and that his error can be corrected through a writ of mandamus. Because the majority does not, I respectfully dissent.

BILL VANCE

Justice

Dissenting opinion delivered and filed February 23, 2000

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