Opinion
04-24-00219-CV
05-06-2024
IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
This proceeding arises out of Cause No. 2020-PA-01945, styled In the Interest of J.D., a Child, in the 150th Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice, Lori I. Valenzuela, Justice
ORDER
PER CURIAM
Relator, the Texas Department of Family and Protective Services ("the Department"), is the permanent managing conservator of J.D., the seventeen-year-old child who is the subject of the underlying matter pending in the trial court. The Department has been J.D.'s permanent managing conservator since June 29, 2021, when the trial court terminated the parental rights of J.D.'s parents.
This court reminds Respondent of her duty to redact all sensitive data, including the minor's name, in documents filed with this court.
On April 11, 2024, this court issued a stay of all proceedings in the underlying matter to prevent Respondent, Judge Mary Lou Alvarez, from continuing the use of her judicial office beyond the legitimate exercise of her authority. However, recognizing that urgent situations might arise, the stay provides that "Respondent, Relator, or any other interested party may request from this court a temporary lift of this stay" and that "[t]he best interest of the child will be considered in any such request to this court."
On April 29, 2024, the trial judge filed a second motion to temporarily lift the stay imposed by this court requesting permission to conduct additional permanency hearings. Although we grant a limited, temporary lift of the stay, we are deeply concerned with the trial judge's conduct in the underlying matter. However, in reviewing the motion, the response, the reply filed on behalf of the child by the attorney ad litem and guardian ad litem, and the record, the well-being of the child is our paramount consideration.
Therefore, we take this opportunity to remind the trial court that it is a servant of the law and not an advocate for any party. As recently stated in In re Tex. Dep't of Fam. and Protective Servs., No. 04-23-00865-CV, 2024 WL 1289597, at *7 (Tex. App.-San Antonio Mar. 27, 2024, orig. proceeding) (Alvarez, J., concurring) (citations, internal quotation marks, and alterations omitted):
[We] understand Judge Mary Lou Alvarez is responsible for reviewing permanency progress reports to ensure the needs of children under the Department's care are being adequately addressed. But she does not seem to understand or accept that courts are the agency by which the law is made effective-merely the servants of the law, charged with the duty, not to make a law to their liking but to ascertain and enforce the law as created by the legislative power of the state.
[T]he duties of and limitations on the powers of the judiciary are as important to be observed by courts as it is that the people should bow to the majesty of the law. Both must concur to secure a harmonious and satisfactory enforcement and observance of the law.
Our legal system only works when the parties can be confident that they are appearing before a neutral, detached, and fair judiciary. We understand that the trial court is charged with ruling in the child's best interest; however, the trial court should reach its determination based on the credible evidence presented after all parties have had an opportunity to participate and present their own evidence. See Tex. Fam. Code Ann. § 263.501(c) ("Notice of each permanency hearing shall be given as provided by [s]ection 263.0021 to each person entitled to notice of the hearing."); see also id. § 263.0021(b) (providing the parties are "entitled to at least 10 days' notice of a hearing under this chapter and are entitled to present evidence and be heard at the hearing"). The trial court should not confuse its duty to rule in the child's best interest with a predisposition to advocate as the child's representative. In other words, the trial court should not confuse the applicable law as a mandate to advocate for the child. The trial court hears arguments from the attorneys representing their clients, it is not the child's attorney. By the trial judge's own admission, she has "appointed [the child] a team of excellent attorneys." Nevertheless, the trial judge has repeatedly removed herself from the position of a neutral arbiter of the issues before her in the underlying matter and has taken an adversarial stance against the Department. When a trial judge repeatedly abuses her judicial power to actively stand in opposition to a party appearing before her, she degrades the integrity of the judiciary. "It is incumbent on a trial judge to maintain the honor and dignity of the judiciary; uphold the administration of justice for the benefit of the citizens of Texas; and preserve the public's confidence in the judicial system." Jacobs v. State, 594 S.W.3d 377, 382 (Tex. App.-San Antonio 2019, no pet.) (citing In re Slaughter, 480 S.W.3d 842, 845 (Tex. Spec. Ct. Rev. 2015)).
The trial court previously filed a motion requesting that "this Court partially lift its stay of the underlying proceedings for the limited purpose of allowing the chambers conference . . . to proceed as scheduled." The trial judge asserted that the scheduled chambers conference was necessary to provide it with an opportunity to evaluate J.D.'s well-being in response to his contacting the court in a crisis state. Based on the trial judge's assertions, this court granted the motion and allowed the trial court to hold the chambers conference. We expressly stated the Department "may attend the chambers conference but is not required to do so."
The trial judge, however, violated these limited parameters for the stay. First, our order permitted the Department to participate in the scheduled chambers conference; however, the trial judge excluded the Department from attending the chambers conference though she allowed J.D.'s attorney ad litem and guardian ad litem to participate. Second, despite recognizing that the lift only permitted the chambers conference, the trial judge held an additional hearing in which she overruled multiple objections by the Department, made findings of fact, and ordered the Department to prepare an order of the findings.
When the Department objected to findings based on a "hearing" the Department was excluded from, the trial court overruled the objection, asserting that such findings stemmed from a "chambers conference," as authorized under the Texas Family Code. Section 153.009 of the Texas Family Code authorizes a court to interview a child in chambers and, under subsection (e), a court may exclude parties and counsel from the interview. Tex. Fam. Code. Ann. § 153.009(e). But an interview pursuant to section 153.009 of the Texas Family Code is only authorized when there is a pending suit affecting the parent-child relationship. See Tex. Fam. Code Ann. §153.009 (a)-(b). This court has previously held that, because permanency hearings pursuant to sections 263.501(b) and 263.5031 only occur after a final order has been rendered in the underlying termination proceeding, there is no longer a "pending" suit. See In re Langford, No. 04-20-00263-CV, 2020 WL 4607017, at *4-5 (Tex. App.-San Antonio Aug. 12, 2020, orig. proceeding) (mem. op.). Texas Family Code chapter 263 defines the parameters of permanency hearings, and it contains no provision for interviewing a child in chambers or excluding the Department from any aspect of the permanency hearing.
Now, the trial judge has filed another motion for a lift of the stay wherein she generally asserts the stay should be lifted "for the purpose of allowing [the trial court] to conduct the progress review hearings mandated by the Texas Legislature in the Texas Family Code," and that findings made as a result of the chambers conference show the urgency for ongoing reviews. More specifically, the trial judge claims that, in light of the information J.D. provided during the chambers conference, "more information is needed as to what exactly happened, what the Department personnel knew of the various incidents described by J.D., and what the Department's plans are to address the issues. [The trial court] is charged with [the] responsibility for obtaining and reviewing that information."
As we have previously explained, at a permanency hearing "a trial court may assess the safety and well-being of the child and whether the child's needs are being adequately addressed." In re Tex. Dep't of Fam. & Protective Servs., 660 S.W.3d at 257. "But that charge presupposes the trial court will faithfully follow the applicable laws." In re Tex. Dep't of Fam. & Protective Servs., 679 S.W.3d at 276 (citing TEX. CONST. art. XVI, § 1 (oath of office)). That "presupposition" has been demonstrably refuted by the trial judge's repeated failure to act within the well-established limits of her authority. "Specifically, she continues to order the Department to take actions that she does not have the authority to compel.” In re Tex. Dep't of Fam. & Protective Servs., 2024 WL 1289597, at *7 (Alvarez, J., concurring).
To date, in seventeen mandamus decisions, we have held that portions of the trial judge's orders exceeded her authority and were void. See generally In re Tex. Dep't of Fam. & Protective Servs., No. 04-23-00865-CV, 2024 WL 1289597 (Tex. App.-San Antonio Mar. 27, 2024, orig. proceeding); In re Tex. Dep't of Fam. & Protective Servs., No. 04-23-00382-CV, 2023 WL 5418313 (Tex. App.-San Antonio Aug. 23, 2023, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00341-CV, 2022 WL 6815172 (Tex. App.-San Antonio Oct. 12, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., 660 S.W.3d 248 (Tex. App.-San Antonio 2022, orig. proceeding); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00166-CV, 2022 WL 3372425 (Tex. App.-San Antonio Aug. 17, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00094-CV, 2022 WL 3219924 (Tex. App.-San Antonio Aug. 10, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00087-CV, 2022 WL 3219596 (Tex. App.-San Antonio Aug. 10, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., 660 S.W.3d 175 (Tex. App.-San Antonio 2022, orig. proceeding); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00163-CV, 2022 WL 2821251 (Tex. App.-San Antonio July 20, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00085-CV, 2022 WL 2820937 (Tex. App.-San Antonio July 20, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00196-CV, 2022 WL 2442169 (Tex. App.-San Antonio July 6, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00091-CV, 2022 WL 2230720 (Tex. App.-San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00092-CV, 2022 WL 2230719 (Tex. App.-San Antonio June 22, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00096-CV, 2022 WL 2135572 (Tex. App.-San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00165-CV, 2022 WL 2135534 (Tex. App.-San Antonio June 15, 2022, orig. proceeding) (mem. op.); In re Tex. Dep't of Fam. & Protective Servs., 660 S.W.3d 161 (Tex. App.-San Antonio 2022, orig. proceeding); In re Tex. Dep't of Fam. & Protective Servs., No. 04-22-00226-CV, 2022 WL 1751013 (Tex. App.-San Antonio June 1, 2022, orig. proceeding) (mem. op.).
Nevertheless, under these circumstances, the trial court should be permitted to conduct a permanency hearing to assure the child's well-being. We therefore GRANT IN PART the motion to temporarily lift the stay for the limited purpose of conducting one permanency hearing in accordance with subsections 263.501(b) and 263.5031 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 263.501(b), 263.5031
It is ORDERED that:
1) The trial court shall not conduct the hearing without providing at least 10 days' notice of the hearing to all parties entitled to such notice under subsection 263.0021(b) of the Texas Family Code;
2) The hearing shall conclude within seven days of the date and time provided in the notice given pursuant to subsection 263.0021(b) of the Texas Family Code, unless otherwise ordered by this court;
3) The trial court shall not prevent any party, who is entitled to notice under subsection 263.0021(b) of the Texas Family Code from presenting evidence and being heard at the hearing; and
4) The trial court shall not prevent any party listed in subsection 263.0021(b) of the Texas Family Code, including the Department, from attending or participating in any portion of the hearing.
This order shall not be construed as permitting the trial court to conduct any other proceedings in the underlying matter, including an in-chambers interview of the child. The trial court must file another motion to lift the stay to hold any future permanency hearings.
All other relief not expressly granted herein is DENIED.
We reiterate that any act in defiance of this order or the stay may subject the Respondent to contempt proceedings.
It is so ORDERED.