Houston Bar Association - Family Law Section

Gray's Interesting Cases - August 2003

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  1. In the Interest of M.S., et al, 46 Tex. Sup. Ct. J. 37B. CPS got involved with S and her five kids and filed a SAPCR action whereby CPS became the temp. M/C of the kids. During this proceeding the parties went to mediation which resulted in a Rule 11 agreement which was filed with the T/C. The mediator's report was attached to the Rule 11 agreement. The T/C then signed a temporary order and a "permanency" order. The mediator's report, the Rule 11 and the two ct. orders apparently set forth various actions that S was to accomplish to regain custody of her kids. Later CPS filed a termination suit which was tried to a jury. During that trial, CPS offered the Rule 11 (with report attached) and the two ct. orders to prove that S was supposed to undertake certain actions for her children's benefit but she failed to complete those actions. S's objections to these documents were overruled. When the jury terminated S's parental rights, she appealed primarily arguing reversal on the basis of In the Interest of T.T. (39/355) which, under similar facts, held that it was reversible error to admit the Rule 11, the mediation report and the ct orders. S also complained that her atty was ineffective thus she was unconstitutionally denied her right to counsel.

    The Supremes affirmed and said:
    1. The admission of the two ct. orders is was o.k. to show that S had not complied with ct's orders entered for the benefit of the kids; however, that portion of the orders where the T/C made certain fact findings should have been redacted.

    2. Failure to redact was harmless error under the facts of this case.

    3. The admission of the Rule 11 agreement with the mediator's report attached was not hearsay as the Rule 11 agreement was offered only to show there had been an agreement regarding the kids and the terms thereof.

    4. Admission of the Rule 11 agreement with the mediation report attached did not violate the confidentiality provisions of the ADR statute (§154.073 TCPRC) as the ADR statute speaks of "communications" made during mediations, not the ultimate written MSA which is an agreement, not a "communication."

    5. Indigent persons in a termination proceeding are constitutionally entitled to the appointment of effective legal counsel; however, to prove ineffective counsel S must show that her counsel was ineffective per the guidelines of Strickland (466 U.S. 668). As this point was not addressed by the CA, the case is reversed for additional review on this point.


    Comment- CPS is cutting off its nose to spite its face- the mediated settlement and Rule 11 being admissible. In the future who in their right mind is going to mediate with them when they know the mediated settlement can be used against them to achieve the subsequent decision by CPS to terminate their parental rights. The only way to mediate with CPS is to provide in the MSA that it, and any follow up Rule 11, will never be admissible in any subsequent termination proceeding.

  2. In Re Hood, No. 01-03-00155-CV, not yet published (CA, Houston-1st). After divorce H filed a motion to modify custody so he would be the sole M/C of the parties' child. W served H with discovery which he never answered so W filed for sanctions. W set up a mediation which H asked to reset as H's atty was in trial; however, W didn't reset the mediation. When H failed to appear at mediation, W filed for additional sanctions. At the sanctions hearing neither H or his atty appeared so the T/C assessed fines and attorney fees as sanctions which had to be paid by Nov. 13th and H had to file answers to W's discovery by Nov. 10th or his pleadings would be struck. H did nothing except to file a motion to set aside the sanctions order. As soon as the T/C found out that H had not complied with the sanction order, H's pleadings were struck.

    H filed mandamus to set aside the striking of his pleadings which the CA granted saying that the death penalty in SAPCR actions should never be imposed as it isn't in the child's best interest. "Although we are reluctant to hold that it can never be in the best interest of the child to determine a child-custody proceeding without reaching the merits, we believe that only a most unusual set of facts would support such an actionB one in which the offending party was seeking the modification solely for harassment or some similar, improper motive."

  3. Deltwa v. Deltwa, No. 05-02-00802-CV, not yet published (CA, Dallas). H & W divorced with 3 kids. Apparently H never filed an inventory of the parties' property nor did he produce evidence of the value of the property. The T/C divided the parties' property; ordered H to pay c/s until the youngest child reaches 18, etc., and ordered H to pay W alimony for 4 years. H tardily filed a request for findings which the T/C refused to file. H appealed the T/C's failure to make value findings on the property; failure to reduce c/s as each child reaches 18 and entering an alimony order in excess of 3 years.

    CA affirmed after reforming the judgment to reduce the alimony order to 3 years. Besides not timely requesting value findings per §6.771, H can't complain about failure to make value findings unless he provided such values to the T/C. As to the non-reduction of c/s as each kid turns 18, H failed to supply the CA with any authority showing this to be an abuse of discretion AND THE CA COULDN'T FIND ANY AUTHORITY EITHER.

    Comment- The trial judge in this case was a visiting former appellate court judge who obviously never heard of the Tex. F/C. What's really terrible is that the Dallas CA has apparently heard of the F/C but none of the judges on this panel, or their respective briefing clerks, have ever read it. Try this for authority to reduce c/s as each kid reaches 18.

    "A child support order for more than one child shall provide that, on the termination of support for a child, the level of support for the remaining child or children is in accordance with the child support guidelines." §154.127, Tex. Fam. Code

    Note that this statute has the mandatory "shall" wording so I suspect that failure to do this is an abuse of discretion. Of course §154.127 has only been around since 1995 so you can't fault Dallas for only being 8 years behind the times.