January-February 2012

A not-so-standard termination trial

Back in May, we wouldn’t have guessed that a standard termination trial to the CPS magistrate would teach us the wisdom of basketball great Michael Jordan’s advice: “Obstacles don’t have to stop you. If you run into a wall, don’t turn around and give up. Figure out how to climb it, go through it, or work around it.”
    Our goal was simple: to secure termination of 3-year-old Zachary’s parents’ rights for endangerment so the little boy could be adopted by his foster mother into a stable, loving family. We had no clue then of all the obstacles that would stand in our way.

The background
Zachary’s parents, LuAnn and Mario (not their real names), met at a local homeless shelter and had slept together the first day they met. Both suffered from serious mental illnesses and were chronic marijuana abusers. Zachary was born in October 2008. In August 2009, CPS removed Zachary because of severe domestic violence in the home and because both parents were not taking their psychiatric meds and were smoking pot, which exacerbated their mental illnesses.
    In September 2010, the child protection court magistrate ordered a monitored return, but two months later, the monitored return was disrupted because both parents endangered Zachary when they took the toddler on a 2 a.m. joyride through the city on a cold November morning.
    LuAnn, the mother, was driving, even though she was impaired from her medication. During their joy ride, they had a flat tire. When police arrived for a welfare check, Mario, the father, fled the scene because he was in possession of marijuana. LuAnn was then arrested for DWI, which left Zachary without anyone to care for him. Following this incident, LuAnn was given two months to get back on her meds and go to counseling, but she did neither. So the plan changed from reunification to termination.

Termination bench trial
At the May termination bench trial before the magistrate, both parents admitted to their endangering conduct around Zachary. They both conceded that they had been told that marijuana use worsened their mental illnesses but that they continued to smoke pot anyway. They also admitted that Mario had repeatedly physically abused LuAnn with Zachary present.
    Both the attorney ad litem for Zachary and the child advocate advised termination. All parties rested and closed on May 11. The CPS magistrate took the case under advisement. (Because every child deserves a permanent, stable family, the Family Code mandates strict timelines that every CPS case must follow. All CPS cases must have a final order within 12 months from the date CPS was named temporary managing conservator or within 18 months if an extension is granted. The Family Code allows no temporary orders after the drop-dead date.  If the drop-dead date is missed, CPS is automatically dismissed from the case and the child is sent home to the parent who had legal custody before the removal.)  
    Our drop-dead date was May 15, but the Texas Family Code permits a final order in a case to be entered after the drop-dead date so long as the final trial on the merits started before the drop-dead date.
    Nine days after we closed, the magistrate announced that she would not make a decision. The magistrate stated on the record, “I have a real problem ruling out straight in this case” and said that she “would reserve a ruling of any kind on the final hearing.” She proceeded to order another monitored return, then she proposed to rule on the bench trial at the end of a six-month period. The magistrate also announced that at the end of the six-month period, she would permit the parties to re-open to allow evidence “for matters that transpire after the last date evidence was admitted in the trial so far.” The magistrate entered her written monitored return order on June 10, almost a month after the expiration of the drop-dead date set by the Family Code.  This six-month wait on the magistrate’s decision was very unusual:  A typical jury in a termination trial will deliberate and reach a verdict in a matter of hours. And not only was the delay extraordinary, but the temporary order was also untimely because the magistrate missed the all-important drop-dead date by a month.      

The first appeal
We immediately obtained a stay from the referring court to prevent Zachary from being sent back to that chaotic environment. Procedurally, we were unsure of our next step. While the Family Code provides a de novo appeal of an order by the magistrate to the referring court, the magistrate had refused to rule. We saw three viable options: 1) ask for a de novo appeal before the referring court, treating the magistrate’s non-ruling as a ruling; 2) ask the referring court to order the magistrate to rule; or 3) seek a mandamus from the court of appeals.
    To be safe, we decided on a hybrid approach: We would ask the referring court to treat the magistrate’s non-ruling as an appealable ruling and ask for a de novo decision; alternatively, we would ask the referring court to order the magistrate to rule. We also discovered that both district and county courts-at-law possess mandamus power to enforce their jurisdiction—so a referring court wields mandamus authority over a magistrate.
    We were convinced that once all parties rested and closed, the magistrate had a non-discretionary duty to rule on the termination petition. The magistrate had also placed us in a dangerous procedural position: The monitored return order after the dismissal date was void and did not extend the timeframe. If the order was not overturned, then six months later, attorneys for Zachary’s parents could argue for the case to be dismissed because our time had expired.
    After a hotly contested hearing, the referring court adopted the magistrate’s decision on July 7 and ordered Zachary returned home by 5:00 p.m. on July 8. This was our second major setback.

Mandamus to the court of appeals
To prevent Zachary from being sent back to his parents, we sought a mandamus from the court of appeals. We received the referring court’s ruling late in the afternoon on July 7. So four of us (we three recruited Jonathan Ellzey, another prosecutor, to help) divided the task of putting together the mandamus petition. As we pulled an almost all-nighter, we had flashbacks of cramming for law school finals. When we filed our petition for mandamus on the morning of July 8, the referring judge graciously stayed his order.
    Our petition for mandamus had two points. First, we argued that the magistrate abused her discretion by failing to issue a final ruling after all parties rested and closed. The Texas Supreme Court, in Texas State Bd. of Examiners v. Carp, explained that once a case has been “fully developed in the trial court and is ripe for judgment,” then “a judgment should be rendered and such action may be compelled by mandamus.”1 While appellate courts will not tell inferior courts how to rule, they will order them to issue a decision.
    Second, we argued that the monitored return order issued after the dismissal date was a void order. While §263.401 of the Texas Family Code permits the court to enter a final order after the dismissal date when the final trial on the merits began before the dismissal date, we argued that a monitored return was a temporary order that was not authorized under §263.401.
    On August 11, the court of appeals granted our petition for mandamus on our second point, holding the magistrate lacked the power to order a monitored return after the dismissal date.2
    The court of appeals declined our first point because the magistrate was operating under the misimpression that “the case was ongoing and not yet ripe for judgment because she had ordered a monitored return.” The court of appeals declined to order the entry of a ruling when the court had not yet refused to rule. Interestingly, in concluding its opinion, the court of appeals echoed the language from the Texas Supreme Court case, that by setting aside the illegal monitored return order, it left “the case ripe for a final judgment.” We suspected that the court of appeals was saying it now expected a final ruling from the magistrate.
    We also learned that the court of appeals lacks direct mandamus authority over a magistrate, but it possesses mandamus jurisdiction over the referring county court. To invoke appellate court mandamus jurisdiction, CPS must first appeal to the referring court and obtain an order from the referring court.
    Once the mandamus issued, the referring judge immediately vacated the monitored return order and directed the magistrate to rule.
Third time’s not the charm
Just as we were coming off the high of a rare mandamus victory, we received word that the magistrate was sending Zachary home with his mother. While we believed adoption was in the child’s best interest, we had been prepared for the magistrate to order permanent managing conservatorship. We were not willing to accept Zachary being returned to his mentally ill mother who had endangered him in the past, so we filed for a de novo appeal and requested a jury trial. We decided it was time to see what six average citizens thought about the evidence.

Calling in the closer
In baseball, managers call in closers to protect the lead late in the game. We decided it was time to call in a closer of our own: Versel Rush. Versel works as a “traveling terminator” for CPS, primarily handling termination trials in small counties. Her record in termination trials is unmatched.
    When Mario, Zachary’s father, took the stand, he was visibly disturbed. His wild eyes gyrated out of sync with the rest of his body. Mario had trouble recalling any of the events in question, stating “I don’t know” repeatedly. He testified that he had been a paranoid schizophrenic since age 9. He admitted to repeatedly using marijuana, even though doctors advised him that it worsened his mental illness.
    Mario acknowledged assaulting his wife, LuAnn, many times with Zachary present, repeatedly strangling, scratching, punching, screaming at, and throwing things at her. At one point while Versel was grilling him about his abuse toward LuAnn, Mario turned to the judge and said, “Do I have to answer that? It’s incriminating!”
    Mario proudly declared he was a member of a criminal street gang and bragged he was wearing gang colors. He also admitted he was a hustler and a dealer. Finally, he conceded that he had endangered Zachary with his drug use and his violence toward LuAnn with his son present.
    Mario also testified that his apartment was infested with rats. To catch them, he would spill some Coca-Cola on the floor. When the rats would come to drink the Coke, he would stab them with a fork. Following his testimony, he was taken by a deputy to a mental health respite unit.

LuAnn’s testimony
Compared to her husband’s erratic demeanor, LuAnn displayed a flat affect. She took a long time to answer basic questions, beginning her answers with, “I’m gonna say …” This sounded more like an indecisive person ordering food at a restaurant than someone testifying truthfully from memory. Versel forced LuAnn to admit she had lied twice to the jury.
    LuAnn testified that even though she was schizophrenic, she continued to smoke pot. She admitted to both repeated pot use and to sporadic use of psychiatric meds since Zachary’s birth, which endangered her child.   
    At the bench trial, both parents had admitted to two joint episodes where their violence and pot use had endangered Zachary. At the jury trial, Versel again confronted them with these incidents.
    LuAnn also testified that she was going to Alcoholics and Narcotics Anonymous, but she couldn’t describe anything about the programs, she didn’t have a sponsor, and she had stayed on Step 1 for 18 months. Both parents also admitted that CPS had repeatedly tried to help them with all their issues to provide a stable environment for Zachary.
     Some of the strangest testimony at trial related to LuAnn’s sexual relationship with a man known as Cali. LuAnn testified that Cali was a stranger she had met on a city bus in September 2011, about a month before the termination trial. She testified that she did not know his name, but that they had sex the first day they met. She also testified that he then stole her car.

The DV counselor
Once the department rested, LuAnn’s attorney called a domestic violence counselor who had worked with LuAnn. On direct, the counselor testified that LuAnn was doing well in counseling and making real progress. On cross, she acknowledged that counseling was based on self-reporting, which LuAnn had repeatedly failed to do. “You can’t even tell this jury that LuAnn has been truthful to you in counseling?” Versel asked. Hanging her head, the counselor said, “No, she has not been truthful to me.”

The closer closes
In closing, Versel noted that 3-year-old Zachary had spent every birthday in foster care. While the jury could not make the parents take their meds, stop smoking pot, or stop having violent outbursts in front of their son, Versel argued that they could decide what bed Zachary wakes up in each morning. Going through a list of all the ways CPS had attempted to help the parents, Versel pointedly asked the jury, “What more could we do?”
     “Children don’t have time for their parents to grow up,” she declared. After three years, Zachary didn’t have any more time to wait for his parents to get their act together “someday” or “maybe.” But Zachary had a foster mother who loved him and who wanted to adopt him.
    Finally, Versel noted Einstein’s definition of insanity as doing the same thing over and over and expecting different results. “When they ask you to send Zachary home into that chaotic environment, they are literally asking you to be insane,” she concluded.
    After just 13 minutes of deliberations, the jury returned a unanimous verdict, finding that both parents had endangered Zachary and that their rights should be terminated. Significantly, the jury’s termination verdict was based on essentially the same facts that we proved at the bench trial in May.
    While we ran into plenty of walls in this case, we found out Michael Jordan was right: “If you run into a wall, don’t turn around and give up. Figure out how to climb it, go through it, or work around it.” Knowing that Zachary wakes up each morning in a safe bed in a stable house with a loving foster mom makes all of our legal wall-climbing and all those procedural work-arounds worth it.


1 388 S.W.2d 409 (Tex. 1965).
2 In Re Texas Dept. of Fam. & Protective Serv., 348 S.W.3d 492 (Tex.App.—Fort Worth 2011, no pet.).