In Re: Tony L. Shipman--Appeal from 315th District Court of Harris County

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 4, 2007

Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed September 4, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00662-CV

____________

IN RE TONY L. SHIPMAN, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

In this original proceeding, relator Tony L. Shipman seeks a writ of mandamus compelling the respondent, Michael H. Schneider, presiding judge of the 315th District Court of Harris County, (1) to rescind his August 8, 2007 order for removal of the child (Charles Matthew Sikorski) from the relator=s home, and (2) to dismiss the underlying lawsuit pursuant to certain provisions of the Texas Family Code. We conditionally grant the writ.

Underlying Facts and Procedural History

In early August of 2005, the Texas Department of Family and Protective Services (ADFPS@) filed the underlying action against the child=s mother, seeking to terminate her parental rights under Chapter 262 of the Texas Family Code. See Tex. Family Code Ann. ' 262.001 et seq. (Vernon 2002 & Supp. 2006). On August 8, the trial court entered a temporary order naming DFPS the sole managing conservator of the child. Pursuant to Section 263.401(a) of the Family Code, the action was subject to dismissal on August 14, 2006 unless a final order had been entered or an extension granted under Section 263.401(b). Id. ' 263.401 (Vernon Supp. 2006).

Shipman appeared in the proceeding in December of 2005, requesting adjudication of his parentage. On April 6, 2006, Shipman was adjudicated to be the father of the child and granted limited rights of possession.

On August 7, 2006, the trial court entered an order extending the dismissal date for the action by an additional 180 days. Containing findings that there was good cause for the extension, and that the extension was in the best interest of the child, and for his safety and welfare, the order satisfied the requirements of Section 263.401(b). Id. Pursuant to the order, the new dismissal date for the action was January 26, 2007.

As the new dismissal date approached, Shipman, the child=s mother, DFPS, and an attorney ad litem that had been appointed to represent the child were discussing placement of the child with Shipman, who lives in Latah County, Idaho. Ultimately, on January 31, 2007, the trial court entered a temporary order, pursuant to Family Code Section 263.403(a), placing the child with Shipman and ordering DFPS to monitor the placement. Id. ' 263.403(a) (Vernon 2002). As allowed by Section 263.403(b), the temporary order extended the dismissal date for the suit to August 8, 2007. Id. at (b).[1]

On July 11, 2007, the attorney ad litem for the child filed a motion for removal of the child from Shipman=s possession. On August 8, at a hearing on the motion, the attorney ad litem presented a letter from a prosecuting attorney for Latah County, Idaho. In the letter, written to the attorney ad litem and dated August 3, the prosecutor stated:

I am writing . . . regarding a pending Latah County Sheriff=s investigation involving allegations of unlawful use of a firearm by Tony Shipman. This investigation is still in progress. I have, however, spoken with the Detective Sergeant who has reviewed the case file as it exists to date. [He] advises that based on the information to date, the Sheriff=s Office plans to refer the matter to my office with a recommendation for charges of at least unlawful exhibition of a deadly weapon. This, of course, is subject to change depending on whatever additional information may be obtained. In that regard, I understand that the Sheriff=s Office investigator still hopes to interview some collateral witnesses, and that Mr. Shipman and his Idaho attorney are planning on meeting with the investigator as well.

Shipman objected to the introduction of the letter into evidence, on the basis that it constitutes hearsay and hearsay within hearsay. Tex. R. Evid. 802, 805. The trial court did not rule on the objection.

After the hearing, but on the same date, August 8, 2007, the trial court entered an order, under Family Code Section 263.403(c), for removal of the child from Shipman=s home and into the possession of DFPS (Athe August 8 order@). Tex. Family Code Ann. '263.403(c) (Vernon 2002). Included in the August 8 order were these findings:

$ [B]ased upon the credibility of the witnesses heard, probable cause exists to believe that, at this time, the present placement of the child [] in the home of Tony Shipman is not meeting the physical and emotional needs of the child and that it is in the best interests of the child for him to be returned forthwith to the State of Texas and back into the continued conservatorship and the care, custody, and control of [DFPS].

$ [P]robable cause exists to believe that Tony Shipman has failed to follow specific orders of this Court. Furthermore, based upon the information provided to the Court that criminal charges are likely to be brought against Tony Shipman in Idaho, the Court finds that probable cause exists that certain acts of Tony Shipman have endangered the physical health and emotional well-being of the child while the child was in the home of Tony Shipman.

The August 8 order extended the dismissal date for the action to February 1, 2008, pursuant to Section 263.403(d). Id. at (d).

Issue Presented

Shipman contends the trial court abused its discretion by (1) entering the August 8 order because there was no evidence to support removal of the child from his possession under Family Code Section 263.403(c); and (2) failing to dismiss the underlying proceeding on August 8, 2007. He further alleges that mandamus review is required because an appeal upon entry of final judgment would be an inadequate remedy for the trial court=s abuse of discretion.

Standard of Review

Mandamus relief is available upon two showings. First, the party seeking mandamus relief must show that the trial court abused its discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135B36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839B40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). The party requesting mandamus relief must establish that the trial court could have reached but one decision, given the facts existing and law applicable to the case. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding).

Second, and even where the party requesting relief has demonstrated that the trial court committed a clear abuse of discretion, the extraordinary remedy of mandamus is not available if the aggrieved party may obtain relief via standard appellate channels. Walker, 827 S.W.2d at 840B44. That a party may incur additional expense or suffer delay in asserting or achieving a remedy by appeal does not necessarily render that remedy inadequate. Id. at 842.

Analysis

 A. Did the trial court abuse its discretion by entering the August 8 order removing the child from his father=s possession and extending the dismissal date for the suit?

At the time of the August 8 order, the child was living with Shipman in Shipman=s Idaho home pursuant to an earlier order entered in accordance with Family Code Section 263.401(a). Id. '263.401(a) (Vernon 2002). The stated basis for the August 8 order removing the child from Shipman=s home is Section 263.403(c), which provides:

If a child placed with a parent under this section must be moved from that home by the department before the dismissal of the suit or the rendering of a final order, the court shall, at the time of the move, schedule a new date for dismissal of the suit. The new dismissal date may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved under this subsection, whichever date is later.

Id. '263.403(c). The trial court was correct that entry of an order under this section would justify extension of the dismissal date, and the dismissal date stated in the August 8 order comports with the provisions for extension. However, entry of the August 8 order was improper and cannot serve as justification for extension of the dismissal date.

Shipman complains in his petition for writ of mandamus that the trial court relied, in entering the order of removal, on the contents of the letter from the Idaho prosecuting attorney, to which letter he had lodged a hearsay objection. Because the trial court had not ruled on the objection, and thus had not affirmatively admitted the letter into evidence, Shipman contends that there is no evidence to support the August 8 order.

Whether the letter was properly or improperly considered, which we do not decide, the evidence does not support entry of an order under Section 263.403(c) removing the child from Shipman=s possession. The letter states that charges may be brought against Shipman for unlawful exhibition of a firearm, but it is equally apparent from the contents of the letter that charges may not be brought. This hardly constitutes evidence that the child Amust be moved from [Shipman=s] home,@ which is the prerequisite to entry of any order removing the child from Shipman=s existing and lawful possession under Section 263.401(a).[2] There is no other evidence in the record. Accordingly, we agree with Shipman that the trial court abused its discretion by entering the order for removal of the child from his possession.

An order under Section 263.403(c) for removal of the child from Shipman=s possession, which had been established under Section 263.403(a), is the sole basis on which the dismissal date of this proceeding could have been extended. Because the August 8 order of removal is not valid under Section 263.403(c), it cannot properly serve as the basis for an extension of the lawsuit=s dismissal date. Under the last governing dismissal date, the suit was subject to dismissal on August 8, 2007. There being no valid basis for extension of that deadline, we agree with Shipman that the trial court abused its discretion by failing to dismiss the action under Section 263.403(b) on August 8, 2007.

 B. Does Shipman have an adequate appellate remedy for the trial court=s abuse of discretion in ordering removal of the child and failing to dismiss the underlying suit?

The Texas Supreme Court has acknowledged that appeal Ais frequently inadequate to protect the rights of parents and children . . . .@ Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1983) (orig. proceeding) (quoted in In re Tex. Dep=t of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) [AIn re TDFPS@]). In In re TDFPS, the Supreme Court agreed that the trial court had abused its discretion by failing to dismiss, on the statutorily prescribed date, the underlying suit affecting a parent-child relationship, but disagreed with the court of appeals= issuance of mandamus relief. The trial court had entered a final judgment 20 days after the original dismissal date and only 2 days after the petition for writ of mandamus had been filed. Because an accelerated appeal from that appeal could have been prosecuted in virtually the same time as the mandamus petition, the Court reasoned that the appellate remedy was adequate. The Supreme Court granted a writ of mandamus compelling the court of appeals to vacate its writ of mandamus directing the trial court to dismiss the case.

The procedural circumstances of this case differ markedly from those existing in In re TDFPS. Here, the court refused to dismiss the case on the pending deadline and entered a temporary order onto which it piggy-backed an extension of the deadline.[3] Shipman does not have a final judgment from which to appeal, and indeed the ultimate final judgment may be in his favor and not give him the right to appeal. So, while this proceeding should, by statute, have been dismissed and the child left in his care, Shipman now suffers (1) indefinite continuation of a proceeding that could gravely affect his parental rights, and (2) pendency of an order, unsupported by evidence, that he relinquish possession of his child. As even the In re TDFPS majority stated,

We do not hold that a party complaining of a trial court=s failure to dismiss a [suit affecting the parent-child relationship] within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of the children or a trial court=s unreasonable delay in entering a final decree might alter this conclusion, but this record raises neither concern.

In re TDFPS, 210 S.W.3d at 614 (emphasis added); see also id. at 615 (O=Neill, J., dissenting) (AI seriously doubt that the Court would question the propriety of mandamus relief if, for example, the trial court had denied [the] motion to dismiss and issued a six-month continuance.@).

Under both the majority and dissenting views in In re TDFPS, an appellate remedy is not adequate to address a court=s wrongful failure to dismiss a suit affecting the parent-child relationship when there is Aimpending transfer of physical possession@and anything other than entry of a judgment from which arises an immediate right of appeal. Accordingly, we find that Shipman does not have an adequate remedy by appeal for the trial court=s abuse of discretion in failing to dismiss the underlying suit.

Conclusion

Shipman is entitled to relief by writ of mandamus from the August 8 order, having shown (1) that the trial court committed a clear abuse of discretion in ordering removal of the child from Shipman=s home and extending the dismissal deadline, and (2) that he has no adequate remedy by appeal. Therefore, pursuant to Texas Rule of Appellate Procedure 52.8(c) and without hearing oral argument, we direct the trial court to vacate its August 8 order removing the child from Shipman=s possession into the possession of DFPS and extending the dismissal deadline for the suit. We also direct the trial court to dismiss the underlying lawsuit pursuant to the dismissal provisions of the Texas Family Code discussed in this opinion. The writ will issue only if the trial court does not comply.

PER CURIAM

Petition Conditionally Granted and Memorandum Opinion filed September 4, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1]Normally, only one extension is possible for an action brought by a governmental entity. See Tex. Family Code Ann. '263.401. Section 263.403 provides exception to this rule, when a child is returned to the possession of a parent with monitoring by DFPS.

[2]Indeed, more than one party at the hearing suggested that the removal order could be entered (and the dismissal date thus extended) but that the actual removal of the child from Shipman=s possession could be delayed until charges, if any, were actually brought against him. Clearly, on August 8, it can not be said, and in fact was not said, that the child Amust be moved from [Shipman=s] home.@

[3]We do not suggest that the trial court acted other than with the best interests of the child in mind. However, it appears that the court was more interested in extending the dismissal deadline, in order to retain jurisdiction in case something occurred to warrant removing the child from Shipman=s possession, than in assessing whether such removal was actually contemporaneously warranted.