adversary hearing in Texas

2023“A full adversary hearing thereby requires that the court enter temporary orders governing any children taken into custody, pending a full adjudication of parental rights at the termination hearing.” Id.

2020Id.; see In re Allen, 359 S.W.3d 284, 289 (Tex. App.—Texarkana 2012, orig. proceeding) (op. on reh’g); In re E.D.L., 105 S.W.3d 679, 686 (Tex. App.—Fort Worth 2003, pet. denied). 23 Section 262.202 provides, “If at the conclusion of the full adversary hearing the court renders a temporary order, the governmental entity shall request identification of a court of continuing, exclusive jurisdiction as provided by Chapter 155.” 14 Id. § 262.202.

2023See J.M.C., 109 S.W.3d at 595 ; see also L.I.C.S., 2022 WL 789341 , at *2 (stating that, if a full adversary hearing does not occur, then “the proper remedy is for a parent to compel the trial court by mandamus to conduct an adversarial hearing promptly and 17 issue additional temporary orders”).

2004We pointed out that expiration of a temporary restraining order under Rule 680 does not deprive the trial court of jurisdiction over the subject matter of a civil suit, and nothing in that rule or in section 262.201 deprives the trial court of jurisdiction over a termination proceeding simply because a temporary possession order expired without a full adversary hearing. 109 S.W.3d at 595 .

2024The provision additionally mandates the child’s return to the parent “unless” the evidence adduced at a full adversary hearing suffices to “satisfy a person of ordinary prudence and caution” that, among other things, “the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal.” Id. § 262.201(g)(2); see In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re M.N.M., 524

2023See In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re Justin M., 549 S.W.3d 330, 334 (Tex. App.—Texarkana 2018, orig. proceeding); In re M.N.M., 524 S.W.3d 396, 399 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); see also In re J.D.S., 494 S.W.3d 387 , 389–90 (Tex. App.—Waco 2015, no pet.) (explaining that the trial court’s decision to allow the Department to maintain custody of a child following a full adversary hearing is reviewable by mandamus and that any temporary order making findings to support removal will be s

2020Id.; see In re Allen, 359 S.W.3d 284, 289 (Tex. App.—Texarkana 2012, orig. proceeding) (op. on reh’g); In re E.D.L., 105 S.W.3d 679, 686 (Tex. App.—Fort Worth 2003, pet. denied). 23 Section 262.202 provides, “If at the conclusion of the full adversary hearing the court renders a temporary order, the governmental entity shall request identification of a court of continuing, exclusive jurisdiction as provided by Chapter 155.” 14 Id. § 262.202.

2013See Tex. Dep’t of Family & Protective Servs. , 255 S.W.3d at 614 ; In re Allen , 359 S.W.3d 284, 288 (Tex. App.—Texarkana 2012, orig. proceeding) (op. on reh’g); see also In re E.D.L. , 105 S.W.3d 679, 688 (Tex. App.—Fort Worth 2003, pet. denied) (explaining that the purpose of the adversary hearing is “to afford parents the opportunity to challenge [the Department’s] right to retain any children whom [the Department] has taken into custody under an ex parte order from the court”).

2024A full adversary hearing is a critical phase in termination proceedings: “the adversary hearing affords the parents the opportunity to present evidence on their own behalf, hear and challenge the Department’s evidence, and challenge the Department’s right to retain the children it previously took into custody under an ex parte order.” In re Justin M., 549 S.W.3d 330, 333 (Tex. App.—Texarkana 2018, orig. proceeding).

2023See In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re Justin M., 549 S.W.3d 330, 334 (Tex. App.—Texarkana 2018, orig. proceeding); In re M.N.M., 524 S.W.3d 396, 399 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); see also In re J.D.S., 494 S.W.3d 387 , 389–90 (Tex. App.—Waco 2015, no pet.) (explaining that the trial court’s decision to allow the Department to maintain custody of a child following a full adversary hearing is reviewable by mandamus and that any temporary order making findings to support removal will be s

2009The parents cite In re Cochran, 151 S.W.3d 275, 279-81 (Tex.App.–Texarkana 2004, orig. proceeding), in which the court held that evidence heard at an adversary hearing was insufficient for the trial court to deny parents’ possession of a newborn, despite prior terminations of its mother's nine other children and its father's three other children, because those parents' most recent endangering conduct occurred fourteen months before the newborn's birth and there was no evidence the current conditions were a danger to the newborn's health or safety.

2009The parents cite In re Cochran, 151 S.W.3d 275, 279-81 (Tex.App.–Texarkana 2004, orig. proceeding), in which the court held that evidence heard at an adversary hearing was insufficient for the trial court to deny parents’ possession of a newborn, despite prior terminations of its mother's nine other children and its father's three other children, because those parents' most recent endangering conduct occurred fourteen months before the newborn's birth and there was no evidence the current conditions were a danger to the newborn's health or safety.

2008See State v. $435,000.00, 842 S.W.2d 642, 644 (Tex.1992) (interpreting former forfeiture statute, which then required that "a time for hearing on forfeiture shall be set within 30 days” of the claimant’s answer to recover property, not to be jurisdictional); Charlton v. State, No. 05-05-01043-CR, - S.W.3d - , -, 2008 WL 726190, at *4 (Tex.App.-Dallas Mar.19, 2008, no pet. h.) (interpreting Texas Family Code section 233.024, which requires that court sign agreed CSRO not later than third day after filing with court, not to be *808 jurisdictional); In re E.D.L., 105 S.W.3d 679, 688 (Tex.App.-For

2003See $435,000, 842 S.W.2d at 644 ; Fountain, 45 S.W.3d at 739 ; Honts, 975 S.W.2d at 820 ; Brown, 875 S.W.2d at 760 .

2024The provision additionally mandates the child’s return to the parent “unless” the evidence adduced at a full adversary hearing suffices to “satisfy a person of ordinary prudence and caution” that, among other things, “the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal.” Id. § 262.201(g)(2); see In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re M.N.M., 524

2024See In re J.D.S., 494 S.W.3d at 389 ; see also In re M.N.M., 524 S.W.3d at 398–402 (granting mandamus relief as to trial court’s decision to allow the Department to maintain custody of child following an adversary hearing). 43 However, M.M. did not challenge the complained-of orders by mandamus, and the trial court issued its final order of termination.

2018Thus, the trial court’s refusal to hold the full adversary hearing in those cases is an abuse of discretion even if we presume, without deciding, that Repealed Section 262.205 applies rather than Subsection 262.201(b). 13 resolution,” and we have acknowledged that appeal is “frequently inadequate to protect the rights of parents and children.” In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006).

2013Servs., 210 S.W.3d 609, 612 (Tex. 2006) (holding that the time period for conducting statutory hearings began when the Department obtained custody by ex parte order before the adversary hearing required to be held within fourteen days).

2024See In re J.D.S., 494 S.W.3d at 389 ; see also In re M.N.M., 524 S.W.3d at 398–402 (granting mandamus relief as to trial court’s decision to allow the Department to maintain custody of child following an adversary hearing). 43 However, M.M. did not challenge the complained-of orders by mandamus, and the trial court issued its final order of termination.

2023See In re Tex. Dep’t of Fam. & Protective Servs., 255 S.W.3d 613, 615 (Tex. 2008) (orig. proceeding) (per curiam); In re Justin M., 549 S.W.3d 330, 334 (Tex. App.—Texarkana 2018, orig. proceeding); In re M.N.M., 524 S.W.3d 396, 399 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); see also In re J.D.S., 494 S.W.3d 387 , 389–90 (Tex. App.—Waco 2015, no pet.) (explaining that the trial court’s decision to allow the Department to maintain custody of a child following a full adversary hearing is reviewable by mandamus and that any temporary order making findings to support removal will be s

2010See id.

2010See id.

2005The Texas Family Code does not favor us with a definition of “indigency.” However, in a similar situation, a party may appeal as an indigent by filing an affidavit of indigency pursuant to Rule 20.1 of the Texas Rules of Appellate Procedure, and if this is contested, must prove his indigency, the test being whether by a preponderance of the evidence she demonstrates that she would “be unable to pay costs if [s]he really wanted to and made a good faith effort to do so.” White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, no pet.) (emphasis supplied); see also Tex.R.App.

2005The Texas Family Code does not favor us with a definition of “indigency.” However, in a similar situation, a party may appeal as an indigent by filing an affidavit of indigency pursuant to Rule 20.1 of the Texas Rules of Appellate Procedure, and if this is contested, must prove his indigency, the test being whether by a preponderance of the evidence she demonstrates that she would “be unable to pay costs if [s]he really wanted to and made a good faith effort to do so.” White v. Bayless , 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, no pet.) (emphasis supplied); see also Tex. R.

2017See In re J.D.S., 494 S.W.3d 387, 389 (Tex. App.—Waco 2015, no pet.) (holding that the trial court’s decision to allow Department to maintain custody of child following an adversary hearing is reviewable, if at all, through petition for writ of mandamus); see also In re No. 14-17-00328-CV, 524 S.W.3d 396, 399-406 , 2017 WL 2819349, at *3-9 (Tex. App.—Houston [14th Dist.] June 29, 2017, orig. proceeding) (granting mandamus relief as to trial court’s decision to allow Department to maintain custody of child following an adversary hearing); In re Pate, 407 S.W.3d 416, 418-20 (Tex. App.—Houston [1

2016Notably, “[t]o limit 9 the profound detrimental consequences that can result from unjustified emergency removal, the Legislature [has] mandated that a full adversary hearing be held shortly after an emergency removal, so children who are not endangered can be returned to their loved ones as promptly as possible.” Id. (emphasis added); see also In re E.D.L., 105 S.W.3d 679, 688 (Tex. App.—Fort Worth 2003, pet. denied) (“[T]he purpose of section 262[.201] is to afford parents the opportunity to challenge [DFPS]’s right to retain any children whom [it] has taken into custody under an ex parte ord

1972The adversary requirement is added due to the feeling that: “The seizure of film after no more than an ex parte determination of probable cause is essentially a prior restraint of expression — especially inimicable to the First Amendment — and clearly lacks the sensitivity required by the Constitution.” Fontaine v. Dial, 303 F.Supp. 436 at 439 (W.D.Tex.1969).

1972Among the cases holding that a prior adversary hearing is necessary are: United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970); Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir.1970); Astro Cinema Corp. Inc. v. Mackell, 422 F.2d 293 (2d Cir.1970); Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3rd Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969); cert. denied, 397 U.S. 920 , 90 S.Ct. 929 , 25 L.Ed.2d 101 (1970); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Newman v. Conover, 313 F.Supp. 623 (N.D.Tex.1970); Gab

2022See id. at 548 . 42 This factor also weighs heavily in providing Father notice and an opportunity to participate at critical stages of the proceeding. b.

2022In re M.S., 115 S.W.3d at 548 ; In re A.J., 559 S.W.3d at 720–21. 43 The record shows that the Department was appointed as temporary managing conservator of Sally on October 2, 2020, during a full adversary hearing.

2015See Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964) (“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary . . . in an action in tort.”); Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex. App.—San Antonio 2004, pet. dism’d) (attorney’s fees are generally not recoverable for breach of fiduciary duty claims).

2015See Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964) (“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary ... in an action in tort.”); Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex.App.-San Antonio 2004, pet. dism’d) (attorney’s fees are generally not recoverable for breach of fiduciary duty claims).

2015See Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964) (“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary . . . in an action in tort.”); Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex. App.—San Antonio 2004, pet. dism’d) (attorney’s fees are generally not recoverable for breach of fiduciary duty claims).

2015See Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964) (“The general rule of law in this state is that, unless provided for by statute or by contract between the parties, attorney’s fees incurred by a party to litigation are not recoverable against his adversary ... in an action in tort.”); Potter v. GMP, L.L.C., 141 S.W.3d 698, 705 (Tex.App.-San Antonio 2004, pet. dism’d) (attorney’s fees are generally not recoverable for breach of fiduciary duty claims).

2008See State v. $435,000.00, 842 S.W.2d 642, 644 (Tex.1992) (interpreting former forfeiture statute, which then required that "a time for hearing on forfeiture shall be set within 30 days” of the claimant’s answer to recover property, not to be jurisdictional); Charlton v. State, No. 05-05-01043-CR, - S.W.3d - , -, 2008 WL 726190, at *4 (Tex.App.-Dallas Mar.19, 2008, no pet. h.) (interpreting Texas Family Code section 233.024, which requires that court sign agreed CSRO not later than third day after filing with court, not to be *808 jurisdictional); In re E.D.L., 105 S.W.3d 679, 688 (Tex.App.-For

2003See $435,000, 842 S.W.2d at 644 ; Fountain, 45 S.W.3d at 739 ; Honts, 975 S.W.2d at 820 ; Brown, 875 S.W.2d at 760 .

2008See State v. $435,000.00, 842 S.W.2d 642, 644 (Tex.1992) (interpreting former forfeiture statute, which then required that "a time for hearing on forfeiture shall be set within 30 days” of the claimant’s answer to recover property, not to be jurisdictional); Charlton v. State, No. 05-05-01043-CR, - S.W.3d - , -, 2008 WL 726190, at *4 (Tex.App.-Dallas Mar.19, 2008, no pet. h.) (interpreting Texas Family Code section 233.024, which requires that court sign agreed CSRO not later than third day after filing with court, not to be *808 jurisdictional); In re E.D.L., 105 S.W.3d 679, 688 (Tex.App.-For

2003See $435,000, 842 S.W.2d at 644 ; Fountain, 45 S.W.3d at 739 ; Honts, 975 S.W.2d at 820 ; Brown, 875 S.W.2d at 760 .

2023The first is that we linked the phrase abuse or neglect in (O) with “[t]he standard used repeatedly throughout chapter 262”, which is “danger to the physical health or safety of the child.” 28 The petition and affidavit that DFPS file before removal must “stat[e] facts sufficient to satisfy a person of ordinary prudence and caution that[] . . . there is an immediate danger to the physical health or safety of the child”. 29 The trial court must make the same finding in an emergency order authorizing removal. 30 After the full adversary hearing held a few weeks later, “the court shall order the

2023The first is that we linked the phrase abuse or neglect in (O) with “[t]he standard used repeatedly throughout chapter 262”, which is “danger to the physical health or safety of the child.” 28 The petition and affidavit that DFPS file before removal must “stat[e] facts sufficient to satisfy a person of ordinary prudence and caution that[] . . . there is an immediate danger to the physical health or safety of the child”. 29 The trial court must make the same finding in an emergency order authorizing removal. 30 After the full adversary hearing held a few weeks later, “the court shall order the

2015In Vitek v. Jones, 445 U.S. 480 (1980), the Supreme Court held that the involuntary transfer of a state prisoner to a state mental hospital without notice and an adversary hearing violated the due process clause of the Fourteenth Amendment.

2015Despite his mischaracterization to the contrary, the Commissioner has never, and does not 13 The only case he cites to, Vitek, is inapplicable because the issue in Vitek was “whether the Due Process Clause of the Fourteenth Amendment entitles a prisoner convicted and incarcerated . . . to certain procedural protections, including notice, an adversary hearing, and provision of counsel, before he is transferred involuntarily to a state mental hospital for treatment of a mental disease or defect.” Vitek v. Jones, 445 U.S. 480, 483 (1980).

2012Co., 370 U.S. 626, 632 , 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962) (explaining that not “every order entered without notice and a preliminary adversary hearing offends due process.

2012Co., 370 U.S. 626, 632 , 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962) (explaining that not “every order entered without notice and a preliminary adversary hearing offends due process.

1972For cases holding that a hearing prior to seizure is not required or is not necessary in all cases, see: Overstock Book Company, Inc. v. Barry, 436 F.2d 1289 (2d Cir. 1970); United States v. Wild, 422 F.2d 34 (2d Cir. 1970); People v. Heller, 29 N.Y.2d 319 , 327 N.Y.S.2d 628 , 277 N.E.2d 651 (1971), cert. granted, 406 U.S. 916 , 92 S.Ct. 1765 , 32 L.Ed.2d 115 (1972); State v. Osborne, 117 N.J.Super. 409 , 285 A.2d 43 (1971); State ex rel.

1972For decisions holding that an adversary hearing on obscenity is not required see United States v. Fragus, 428 F.2d 1211, 1212 (5th Cir. 1970) ; United States v. Wild, 422 F.2d 34, 37-38 (2nd Cir. 1969) ; Adler v. Pomerleau, 313 F.Supp. 277, 286 (D.Md.1970) (3 judge court) ; Rage Books, Inc. v. Leary, 301 F.Supp. 546 (S.D.N.Y.1969) ; Amato v. Ruth, 332 F.Supp. 326, 330-331 (W.D.

2013In re T.T.F., 331 S.W.3d 461, 479-80 (Tex. App.—Fort Worth 2010, no pet.).

2011We also held that both the Department and the parent had ―the right to compel the trial court by mandamus to conduct the adversary hearing promptly.‖ Id. at 688 . 331 S.W.3d at 479 .