Opinion
NO. 03-18-00271-CV
04-23-2018
In re Sage Barrera
ORIGINAL PROCEEDING FROM HAYS COUNTY
MEMORANDUM OPINION
Relator has filed a pro se petition for writ of mandamus complaining of a temporary restraining order entered in the underlying suit, which is a suit to terminate Barrera's parent-child relationship with her daughter. Barrera asserts that the temporary restraining order is void and should be vacated because it does not comply with Texas Rules of Civil Procedure 680 and 683 and with Family Code Section 105.001, which requires a verified pleading or an affidavit before excluding a parent from access to a child. We hold that the trial court abused its discretion in excluding Barrera from possession of her child, and we therefore conditionally grant Barrera's petition for writ of mandamus. See Tex. R. App. P. 52.8(c).
We requested that the real parties in interest file a response to the petition for writ of mandamus on an expedited basis because a temporary-injunction hearing is scheduled for April 24, 2018. In response, they filed a letter stating that they have not received service of a copy of the petition. The petition states that a copy was sent to the attorney's office of the real parties in interest, as well as to the child's father and the trial court. After receiving the Court's request for an expedited response, real parties in interest never requested a copy of the petition for writ of mandamus from the Court.
The temporary restraining order arises out of a petition to terminate the parent-child relationship filed by the real parties in interest, Jackie Rodriguez-Cuevas and Florencio Jesus Cuevas, on April 10, 2018, and it restrains Barrera from having possession of or access to her child. The child is Barrera's biological child who was born on March 29, 2018. Barrera asserts in the mandamus petition that she considered giving her daughter up for adoption to the Cuevases, but that she later decided against it. She asserts that she informed the Cuevases that she changed her mind, but they have retained possession of her daughter. Barrera states that after she and her daughter were released from the hospital on April 2, she allowed the Cuevases to take her daughter to their home. She further states that she asked the Cuevases to return her daughter on the evening of April 5. She alleges that she never signed an affidavit of relinquishment of parental rights in front of a notary, but she claims that the Cuevases showed a fraudulent one to the police when Barrera attempted to get assistance from the police on April 8 in retrieving her daughter.
On April 9, although she disputes whether an enforceable affidavit of relinquishment exists, Barrera signed an affidavit revoking relinquishment of her parental rights before a notary and two witnesses. That affidavit was filed with the trial court on April 11, and it is included in the mandamus record. In addition, in an affidavit that the Cuevases filed with the trial court on April 10, they acknowledge that Barrera delivered the affidavit revoking relinquishment to them on April 9. The Cuevases filed their petition seeking termination of Barrera's parental rights on April 10. Although they attached to their petition a statement to confer standing on the Cuevases and an authorization agreement for nonparent adult caregivers that were signed by Barrera and notarized on April 4, they did not attach an affidavit from Barrera relinquishing her parental rights. Barrera filed signed and notarized revocations of the statement to confer standing and authorization agreement for nonparent adult caregivers with the trial court on April 11.
Mandamus relief is available only if a trial court clearly abuses its discretion and the relator shows she has no adequate remedy by appeal. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re Mata, 212 S.W.3d 597, 603 (Tex. App.—Austin 2006, orig. proceeding). A mandamus proceeding may be used to challenge a temporary order that deprives a parent of the physical possession of her child. See In re Mata, 212 S.W.3d at 604. The Court has reviewed the mandamus record, including the Cuevases' petition seeking termination of Barrera's parental rights, and we conclude that the petition does not comply with Family Code Section 105.001. While Section 105.001(b) generally allows the trial court to grant temporary restraining orders and temporary injunctions "without the necessity of an affidavit or verified pleading stating specific facts showing that immediate and irreparable injury, loss, or damage will result before notice can be served and a hearing can be held," Section 105.001(c) is the exception to that rule. Family Code Section 105.001(c) provides as follows:
(c) Except on a verified pleading or an affidavit in accordance with the Texas Rules of Civil Procedure, an order may not be rendered:
Tex. Fam. Code § 105.001(c) (emphases added).(1) attaching the body of the child;
(2) taking the child into the possession of the court or of a person designated by the court; or
(3) excluding a parent from possession of or access to a child.
The mandamus record reflects that the Cuevases did not file a verified pleading or an affidavit with the trial court before the trial court issued its order. Their affidavit was not filed until 4:00 p.m. on April 10, but the temporary restraining order had been signed at 1:20 p.m. after they filed their petition at 11:13 that morning. Moreover, the Cuevases' affidavit acknowledges that Barrera had revoked any relinquishment of her rights and is devoid of facts supporting their allegations that Barrera endangered the child. See In re Mata, 212 S.W.3d at 605 ("Although a trial court need not make the same findings on temporary orders as it must in making a final order of termination, . . . neither should the court ignore the probable arrangements that will be imposed on final hearing in considering temporary orders. There remains a strong presumption that the parent should be named temporary managing conservator." (citations omitted)). A mother's rights to "the companionship, care, custody, and management" of her child are constitutional interests "far more precious than any property right," Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Lassiter v. Department of Soc. Servs., 452 U.S. 18, 27, (1981)), and the trial court must strictly comply with the Family Code when restricting a parent's access to her child, see In re Mata, 212 S.W.3d at 605.
We hold that the trial court abused its discretion in excluding Barrera from possession of her child, and we therefore conditionally grant Barrera's petition for writ of mandamus and vacate the trial court's temporary restraining order. The case is remanded for further consideration and the writ will issue only if the trial court fails to take appropriate action in accordance with this opinion.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Puryear and Goodwin Filed: April 23, 2018