In Re A.S. and B.J. v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
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No. 11-24-00168-CV
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IN RE A.S. AND B.J.

Original Mandamus Proceeding

MEMORANDUM OPINION
This mandamus proceeding arises from an underlying government-initiated
suit affecting the parent-child relationship filed against Relators, A.S. and B.J. The
Texas Department of Family and Protective Services (the Department) filed this suit
and sought temporary managing conservatorship of Relators’ three minor children
after their one-year-old child was accidentally shot and killed by her sibling when
the sibling discharged one of the eleven loaded, unsecured guns in Relators’ home.
Respondent, the Honorable Jennifer Habert, the presiding judge of the 50th District
Court of Knox County, found that sufficient evidence of aggravated circumstances
was presented, which permitted ordering an accelerated trial schedule; Judge Habert
also determined that it was appropriate to waive certain requirements of the
Department to facilitate reunification. See TEX. FAM. CODE ANN. § 262.2015 (West
Supp. 2023).
Relators filed a joint petition for writ of mandamus alleging that Judge Habert
abused her discretion by: (1) denying Relators’ request to appoint a separate
guardian ad litem and attorney ad litem for the children because a conflict exists for
Sarah Ladd, who was appointed to and currently serves both roles, to act in this dual
capacity; (2) “refusing to honor its implied promise” to “consider” removing
Relators’ case from the accelerated trial schedule; (3) refusing to allow Relators,
who are “indigent mixed race” parents, “the opportunity to work services towards
reunification;” and (4) failing to strike the attorney ad litem’s (Ladd’s) cross-
petition. Because we conclude that there is no clear abuse of discretion for which
Relators lack an adequate remedy on appeal, we deny the petition for writ of
mandamus.
Mandamus is an “extraordinary” remedy that is “available only in limited
circumstances.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
proceeding). A writ of mandamus will issue only if the trial court clearly abused its
discretion, and the relator has no adequate remedy on appeal. In re Prudential Ins.
Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). With respect
to the first requirement, 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. In re
Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)
(per curiam) (quoting Walker, 827 S.W.2d at 839). In addition, because a trial court
has no discretion in determining what the law is or in applying it to the facts, a trial
court abuses its discretion if it fails to correctly analyze or apply the law. See

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Prudential, 148 S.W.3d at 135; see also In re J.B. Hunt Transp., Inc., 492 S.W.3d
287, 294 (Tex. 2016) (orig. proceeding).
Relators first assert that Judge Habert abused her discretion when she
appointed Ladd to serve in the dual capacity as guardian ad litem and attorney ad
litem for the children. Relators’ argument is unfounded. The Family Code clearly
permits a trial court to appoint an attorney ad litem to also act as the subject-child’s
guardian ad litem. See FAM. § 107.0125 (West 2019). While both the attorney and
guardian ad litem must consider the child’s expressed objectives, neither are bound
by the child’s wishes, and must instead advance the child’s best interest. See id.
§ 107.002 (West Supp. 2023), § .008. Based on our review of the record, we
conclude that Judge Habert did not clearly abuse her discretion when she appointed
Ladd to act as both the guardian ad litem and attorney ad litem for the children in
this instance.
Relators next contend that Judge Habert failed to fulfill her “implied promise”
to remove this case from the accelerated trial schedule, and that Judge Habert “is
treating this poor mixed race family disproportionately harshly.” The record does
not support Relators’ contentions. As such, we conclude that Judge Habert did not
clearly abuse her discretion when she decided to continue with the accelerated trial
schedule that she previously ordered. We further deny Relators’ request “to grant
mandamus and order Respondent . . . to discontinue her biased rulings,” as there is
no evidence in the record of any disproportionate or disparate treatment by Judge
Habert in any respect, much less directed at Relators.
Finally, Relators request that we order Judge Habert to strike Ladd’s cross-
petition, arguing that Ladd lacks standing to file it. The Family Code permits the
child or children, “through a representative authorized by the court,” to file suit. See
FAM. § 102.003(a)(2). Here, Ladd filed the cross-petition on the children’s behalf.

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Furthermore, an attorney ad litem is required to “participate in the conduct of the
litigation to the same extent as an attorney for a party.” See FAM. § 107.003(a)(1)(F).
Therefore, we conclude that Judge Habert did not clearly abuse her discretion when
she denied Relators’ motion to strike Ladd’s cross-petition.
Accordingly, because the record is devoid of any clear abuse of discretion by
Judge Habert, we deny Relators’ petition for writ of mandamus.

W. STACY TROTTER
JUSTICE

July 25, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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