The answer to this question may depend upon the circumstances. As reflected in one recent Dallas Court of Appeals opinion, minutes mattered in order for the lawyer to ensure compliance with her obligation not to engage in conduct that might disrupt pending appellate proceedings. This opinion could serve as a good law school exam question.
Under the facts of the case, the Dallas County Child Protective Services Unit (CPS) filed suit to terminate parental rights of a child. The child’s foster parents had had possession of the child for 16 months and expressed an interest in adopting the child. However, CPS sought to place the child with a maternal aunt and uncle in Florida.
In some unusual circumstances, just prior to trial, the biological mother asked the trial court to strike the intervention of the foster parents, which the court did. Minutes later a trial was held outside of the foster parents’ presence, which lasted all of 9 minutes. At the conclusion of the trial, the court appointed the Florida aunt and uncle joint managing conservators.
Immediately following the trial, the parties made arrangements for CPS to take the child from the foster parents. The foster parents advised the CPS attorney’s supervisor that they were filing a petition for writ of mandamus and were seeking an emergency stay order. Before the filing, CPS removed the child from the foster parents’ home. The foster parents then filed their petition for writ of mandamus and motion for emergency stay and all counsel were notified of the filings. Thirty minutes after CPS’s counsel was notified of the filings, CPS released the child to the Florida aunt and uncle, who immediately left with the child to return to Florida. Fifty-five minutes later, the Dallas Court of Appeals issued an order staying all orders of the trial court.
Although the court of appeals concluded that mandamus relief was not appropriate because the foster parents had an adequate remedy by appeal, the court nonetheless wrote to express its concern over the fact that neither the CPS case worker’s supervisor nor CPS’s attorney attempted to contact the Florida aunt and uncle after learning of the stay order. The appellate court acknowledged that the child had been handed over to the Florida aunt and uncle before the stay order had issued, but the court questioned the decision to remove the child with such haste within 4 hours of the trial court’s rulings and in the face of the emergency filings.
After noting that the speed of the transfer violated CPS’s own internal guidelines and showed a lack concern for the child’s best interest, the court observed that the failure of the State to notify CPS of the appellate filings potentially violated ethical obligations to keep a client reasonably informed and not to engage in conduct intended to disrupt court proceedings. The court of appeals concluded by cautioning the State to treat future emergency proceedings as serious matters deserving of review and respect, and warning that the failure to do so may warrant referral to the grievance process.
In re Schklair, No. 05-17-00610-CV (Tex. App.–Dallas June 23, 2017, orig. proceeding)