Use of Mandamus to Review Trial Court's Refusal to Dismiss Child Protective Actions

Texas statutes provide that, a trial court must dismiss a child protective action filed by the state if the court does not render a final order within one year of the appointment of the state Department as temporary managing conservator of a child (with a maximum extension of 180 days).  Two years ago, in a case in which the the dismissal deadline had passed during a trial, the parents filed for and obtained a writ of mandamus with the court of appeals.  The Texas Supreme Court stayed that writ (with the child presumably staying in foster care).  In a decision this week, the Texas Supreme Court held that accellerated appeal was an adequate remedy to address the trial court's refusal to dismiss the action and it was error for the court of appeals to grant a writ of mandamus.  The court qualified its holding and commented on the statute:

We do not hold that a party complaining of a trial court's failure to dismiss a SAPCR within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of the children or a trial court's unreasonable delay in entering a final decree might alter this conclusion, but this record raises neither concern. .... We recognize that in particular cases the statute could work injustice or encourage gamesmanship to push litigation beyond the deadline. We presume the Legislature recognized this also. But the Legislature also recognized that a statutory deadline would expedite the trial of these cases to help provide a modicum of certainty for children whose family situations are subject to the outcomes in these proceedings. It is not the Court's task to choose between competing policies addressed by legislative drafting.

One judge dissented, noting that mandamus has been used in numerous other contexts in which appeal is also available.  The dissenting judge questioned whether the parents would even be able to appeal the trial court's termination of their rights at this point. Under these circumstances, the dissent concluded, "The error was clear, and the solution straightforward — an order directing the trial court to dismiss the case. While the overall effect on the legal system of the trial court’s failure to dismiss may not be widespread, the consequence to the family in this case is
deep and potentially irremediable."

In re Tex. Dep't of Family & Protective Servs., 2006 Tex. LEXIS 1265 (December 15, 2006)
Opinion on the web
Dissenting Opinion (last visited December 20, 2006 bgf)