In re Tex. Dep’t of Family and Protective Servs., No. 08-0391 (orig. proceeding) (per curiam) -and-

In re Tex. Dep’t of Family and Protective Servs., No. 08-0403 (orig. proceeding) (per curiam)

Decided: May 29, 2008

Today, the Court denied the Department’s request for mandamus relief, issuing a per curiam decision. In addition, Justice O’Neill wrote an opinion concurring in part and dissenting in part, which was joined by Justices Johnson and Willett.

The Court did not walk through the nuances of the factual disputes, instead summarizing that “having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.”

What the Court did do was emphasize that the district court still has other tools at its disposal to deal on a case-by-case basis with the sorts of concerns raised by the Department:

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders “for the safety and welfare of the child”, including an order “restraining a party from removing the child beyond a geographical area identified by the court”. The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief.

Justice O’Neill’s opinion would have instead split its result. As to the male children and “pre-pubescent” female children, the Justice O’Neill would have agreed with the Court that the evidence was lacking. But as to the “pubescent” female children, Justice O’Neill would have found that the evidence — coupled with the lack of cooperation during initial investigations by CPS — made CPS’s decision about how to proceed a reasonable one under the statute.