In Re Texas Department of Family and Protective Services v. the State of Texas

Court of Appeals Tenth Appellate District of Texas 10-25-00135-CV In re Texas Department of Family and Protective Services Original Proceeding JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Relator, the Texas Department of Family and Protective Services, seeks mandamus relief against the Honorable David Hilburn, Judge of the 361st District Court of Brazos County, Texas. The Department complains of Respondent’s April 11, 2025 order directing it to pay caregiver assistance payments totaling $12,942.36. We conditionally grant the writ. BACKGROUND An associate judge signed the “Order of Termination and Final Order” in the underlying suit affecting the parent-child relationship on September 22, 2023. The order terminated the mother’s rights to the children, S.M. and K.M., appointed the children’s father, who is incarcerated, as possessory conservator, appointed the Department as permanent managing conservator, and placed the children with fictive kin caregiver,1 Wendy Dobbs. Without a de novo hearing, Respondent, the presiding judge of the 361st District Court adopted the associate judge’s 2023 orders. Thereafter, the Department provided Dobbs with kinship payments to provide monetary assistance to the caregiver for a total of fifteen months, ending in October 2024.2 On January 17, 2025, the father’s attorney filed a motion for continued payment of kinship benefits, explaining that he understood that current benefits would terminate at the end of that month. On February 5, a hearing was held on the motion before the associate judge. Father’s counsel explained that it was his understanding that the Department cannot continue to pay the benefits without a court order. The attorney ad litem for the children opined that continued payment is in the best interest of the children. The court asked counsel for the Department if there is some legal prohibition to continued payment, other than an order. Counsel for the Department responded with, “my understanding is it’s a policy issue.” The court asked if there is a statute 1 Fictive kin or kinship care refers to the care of a child by relatives or close family friends. See Tex. Dep’t of Family and Protective Servs. Child Protective Servs. Handbook, § 6600 (Dec. 2023). 2 There is no documentation in the record showing how or when these payments originated. However, according to the Department’s brief in support of its request for a de novo hearing, the payments began in July 2023. In re Tex. Dep’t of Family and Protective Servs. Page 2 or rule prohibiting it from ordering kinship funds to be continued. Counsel responded with, “Not that I’m aware. It’s just policy.” Child protective services kinship worker Sheree Mathis testified that the caregiver “received [kinship payments] for a whole year, then extension for additional six months.” She believes it is the Department’s policy that they cannot continue to pay the funds without a court order, but she was “not quite sure on how that works.” She was not aware of any legal reason the funds would not be paid if an order is issued. Mathis stated that payment is in the best interest of the children and would be beneficial to them. She explained that originally, the provider received $12.67 per child, per day but as of January 2025 the payments have increased to $23.45 per child, per day. Wendy Dobbs, the caretaker, testified that she stopped receiving kinship funds in October 2024. While she has been able to make it work, not receiving the kinship funds has made it more difficult to care for the girls. By an order signed on February 6, 2025, the associate judge granted the motion for continued payment of kinship benefits, ordering the Department to pay monthly installments from February through August 2025, at a daily rate of $23.45 per day, per child, and further ordering the Department to pay a total of $2,999.64 as retroactive payments for November and December 2024, and In re Tex. Dep’t of Family and Protective Servs. Page 3 January 2025. On February 10, 2025, the associate judge, sua sponte, filed findings of fact and conclusions of law. The court found no evidence “to demonstrate or even suggest that ordering retroactive and/or current kinship funds was prohibited by federal or state statute or rule” and that “clear, convincing, uncontroverted credible evidence was presented” that ordering payment of kinship funds, both retroactive and current, is in the best interest of each child. The court’s conclusions of law mirrored the findings of fact. The Department promptly requested a de novo hearing before Respondent. Challenging the associate judge’s