Opinion
04-22-00166-CV
08-17-2022
IN RE THE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
This proceeding arises out of Cause No. 2020- PA-01204, styled In the Interest of E.R.G., pending in the 37th Judicial District Court, Bexar County, Texas, the Honorable Mary Lou Alvarez presiding.
Sitting: Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
E.R.G. is the sixteen-year-old child at the center of this case who has been in the managing conservatorship of relator, the Department of Family and Protective Services (the "Department"), since May 12, 2021. The Department challenges three orders by the trial court regarding child-specific contracts for E.R.G.'s placement. We conditionally grant the petition for writ of mandamus in part and deny it in part.
MANDAMUS STANDARD OF REVIEW
To be entitled to mandamus relief, the Department must show the trial court committed a clear abuse of discretion and the Department has no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). A trial court abuses its discretion if "'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law'" or if it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding) (citation omitted). A "mandamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding). However, if the complained-of order is void, the Department does not have to show a lack of an adequate appellate remedy for mandamus relief to be appropriate. See In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam). "A judgment is void only when it is apparent that the court rendering judgment 'had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.'" Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987) (citation omitted).
BACKGROUND
The trial court terminated the rights of E.R.G.'s parents, and the Department was named his permanent managing conservator. On March 15, 2022, the trial court conducted a hearing regarding E.R.G.'s placement and ordered in part as follows:
2.1. IT IS ORDERED that a child specific contract shall be entered on or before March 25, 2022 that calls for payment up to the amount of $800 per day for placement of [E.R.G.].
2.2 IT IS ORDERED that Jaime Masters, the Commissioner of [the Department], shall appear before this Court on March 28, 2022 at 2:30 p.m. for the purpose of providing testimony as to the decision for the hold placed on child specific contracts.
The order was signed March 18, 2022.
The Department filed its petition and emergency stay motion in this court on March 21, 2022, challenging the March 15th order. This court granted the stay motion as to paragraph 2.1 and denied it as to paragraph 2.2. The trial court responded to the petition on April 1, 2022.
On April 5, 2022, the trial court conducted a hearing regarding E.R.G.'s placement and ordered in part as follows:
2.1. IT IS ORDERED that the Department shall submit a report of all efforts made to enter a child specific contract as ordered on March 15, 2022. The report shall be limited to efforts made from March 16, 2022 to March 22, 2022. Said report shall be e-filed by the end of business on April 6, 2022.
The order was signed on April 6, 2022.
On April 6, 2022, the Department filed a motion for review of further orders as well as a second emergency stay motion, challenging the April 5th order. This court granted both motions.
On April 25, 2022, the trial court conducted a hearing regarding E.R.G.'s placement and ordered in part as follows:
2.1. IT IS ORDERED that the Department shall hold staffings with the following placements for the purpose of determining if the amount of the contract would make the child more acceptable to the placement:
-Guiding Light; Safe Haven; Everyday Life; and Pathway Youth Ranch. On April 27, 2022, the Department filed a second motion for review of further orders as well as a third emergency stay motion, challenging the April 25th order. This court denied the third emergency stay motion and ordered the trial court to show cause why the paragraph at issue was not void. The trial court filed a response on May 18, 2022. On June 3, 2022, after considering the second motion for review of further orders and the response, this court granted the motion to review the April 25, 2022 order and otherwise held all other requested relief in abeyance.
The order was signed on April 29, 2022.
DISCUSSION
In its petition, the Department argues the trial court abused its discretion in ordering the Department to pay a specified amount for E.R.G.'s foster care because, inter alia, the trial court violated the Separation of Powers Clause of the Texas Constitution. We agree.
In In re the Texas Department of Family & Protective Services, we considered whether the trial court had the authority to order the Department to enter a child-specific contract for foster care at a specific daily rate. No. 04-22-00040-CV, 2022 WL 1751377, at *7-8 (Tex. App.-San Antonio Jun. 1, 2022) (orig. proceeding). In that case, we held the trial court's order violated the Separation of Powers Clause of the Texas Constitution, id. at *8, by clearly failing to correctly analyze or apply the law, constituting an abuse of discretion, see In re Ford Motor Co., 165 S.W.3d at 317; Walker, 827 S.W.2d at 839-40.
The same principle applies here. Paragraph 2.1 in the March 15, 2022 trial court order required the Department to enter a child-specific contract for E.R.G.'s care at a specific rate. Because it required the Department to enter a child-specific contract for E.R.G.'s care at a specific rate, it violates the Separation of Powers Clause, incorrectly analyzes or misapplies the law, and is void. Having concluded paragraph 2.1 in the March 15, 2022 order is void because it required the Department to enter a child-specific contract at a specific rate, it necessarily follows that paragraph 2.1 in the April 5, 2022 order requiring the Department to "submit a report of all efforts made" in furtherance of the March 15, 2022 order is also void. See In re Tex. Dep't of Family & Protective Servs., 2022 WL 1751377, at *8; see also Tex. Dep't of Family & Protective Servs., No. 04-22-00085-CV, 2022 WL 2820937, at *1 (Tex. App.-San Antonio July 20, 2022) (orig. proceeding) (concluding certain provisions in trial court order void, including (1) requiring copy of child-specific contract provided to counsel, (2) requiring contract provided to three child-placing agencies, and (3) requiring Department to report to court on what services might be incorporated into further such orders); In re Tex. Dep't of Family & Protective Servs., No. 04-22-00091-CV, 2022 WL 2230720, at *2 (Tex. App.-San Antonio June 22, 2022) (orig. proceeding) (concluding provision of trial court order requiring Department to "provide the child's attorney ad litem and the mother's attorney ad litem evidence of compliance with [paragraph ordering child-specific-contract]" void).
With respect to paragraph 2.2 in the trial court's March 15, 2022 order, we have considered the petition, the response, and the record and conclude the Department is not entitled to the relief sought. See Tex. R. App. P. 52.8(a).
With respect to paragraph 2.1 of the trial court's April 25, 2022 order, the trial court argues the order "simply ordered the Department to conduct internal meetings to discuss the four facilities . . . and determine whether the daily rate agreed to in the Department's child-specific contract for E.R.G. entered into with a Missouri facility would similarly entice a local facility." The trial court's order "does not mandate (or even address) creating any contracts or paying any funds."
During the April 25, 2022 hearing, the following exchange took place:
THE COURT:... What is the daily rate in the child specific contract, was it Landline or --
MR. SHEFFIELD [counsel for the child]: Lakeland. I believe it's $500, Your Honor. I think that's what I saw in the contract.....
THE COURT: I guess, Ms. Manriquez [counsel for the Department], do you know if . . . Guiding Light, Safe Haven Youth Ranch, Everyday Life and Pathways 3H Youth Ranch, if they were offered a daily rate of $500 a day, would they come to the table wanting to negotiate a child specific contract?
MS. MANRIQUEZ: Your Honor, I didn't walk away with the feeling that it had anything to do with money. The first obstacle was just slots being available . . . . [And] because of the heightened security evaluations that are in place, many facilities are being very gun-shy with taking a child . . . .
MR. SHEFFIELD: I would agree with that, Your Honor. . . .
THE COURT: Right, in the free market, in the business world, the risk is bought with money, right. So, perhaps, the $650 a day would make the risk more palatable, and the risk decreases with days in placement, right. . . . And I'm not sure if that's been part of the negotiation or not -- and I don't need to be part of the negotiation but I - the report from the Department that there are still four RTCs that haven't yet been staffed. And perhaps the invitation to the staffing is the daily rate that is already on the table by the Department itself as opposed to the standard rate, right. Maybe if they knew they were coming to staff with a higher floor, they'd come ready to talk. . . .
This exchange during the April 25, 2022 hearing shows paragraph 2.1 of the trial court's April 25, 2022 order required the Department to negotiate with local residential treatment centers on terms established by the trial court: "for the purpose of determining" if offering the centers a higher amount on a child-specific contract would result in the Department and one of the centers reaching agreement.
As this court explained, "the Legislature vested sole authority in the Department to negotiate and execute child-specific contracts." See Tex. Dep't of Family & Protective Servs., 2022 WL 1751377, at *8 ("As part of its legislatively conferred authority, the Department has the power to negotiate and execute contracts necessary 'to perform any of the [D]epartment's powers or duties.'" (alteration in original) (quoting Tex. Hum. Res. Code § 40.058(a))). If the Legislature vested the Department with sole authority to negotiate and execute child-specific contracts, see id., then the trial court's order requiring the Department to negotiate with local centers "for the purpose of determining" if a higher contract amount would result in an agreement is void. Accordingly, paragraph 2.1 of the April 25, 2022 order violates the Separation of Powers Clause and is void. See id.
CONCLUSION
The trial court lacked the authority-constitutional, statutory, inherent, or otherwise-to order the Department (1) on March 15, 2022 "that a child specific contract shall be entered on or before March 25, 2022 that calls for payment up to the amount of $800 per day for placement of [E.R.G.]"; (2) on April 5, 2022 to "submit a report of all efforts made to enter a child specific contract as ordered on March 15, 2022. The report shall be limited to efforts made from March 16, 2022 to March 22, 2022. Said report shall be e-filed by the end of business on April 6, 2022."; and (3) on April 25, 2022 to "hold staffings with the following placements for the purpose of determining if the amount of the contract would make the child more acceptable to the placement: -Guiding Light; Safe Haven; Everyday Life; and Pathway Youth Ranch." Therefore, we hold paragraph 2.1 in each of those orders is void. Accordingly, the Department does not need to show the lack of an adequate appellate remedy to be granted mandamus relief. See Tex. Dep't of Family & Protective Servs., 2022 WL 1751377, at *9.
We conditionally grant the Department's petition for writ of mandamus as to paragraph 2.1 in each of the March 15, 2022, April 5, 2022, and April 25, 2022 orders and deny the petition as to all other paragraphs. See Tex. R. App. P. 52.8. We direct the trial court to, no later than fifteen days from the date of this opinion, vacate paragraph 2.1 in each of the March 15, 2022, April 5, 2022, and April 25, 2022 orders. We are confident the trial court will promptly comply; our writ will issue only if it does not.