Texas Supreme Court - Writ of Mandamus
IN THE TEXAS SUPREME COURT
In re §
Edward Wernecke §
and § CAUSE NO. ____________________
Michele Wernecke, §
PETITION FOR WRIT OF MANDAMUS
AND BRIEF IN SUPPORT
James A. Pikl
JAMES A. PIKL, P.C.
P.O. Box 2939
McKinney, Texas 75070
Attorney for Relators
IDENTITY OF PARTIES AND COUNSEL
Edward Wernecke Relator
Michele Wernecke Relator
James A. Pikl Attorney for Relators (Supreme Court)
JAMES A. PIKL, P.C.
P.O. Box 2939
McKinney, Texas 75070
Luis Corona Attorney for Edward and Michele Wernecke (trial court)
Law Office of Luis J. Corona
P.O. Box 3888
Corpus Christi, Texas 88463
Hon. Carl E. Lewis, Judge, County Court at Law No. 5 Respondent
(Relators are not aware of counsel for Judge Lewis)
Katie Wernecke, a minor child Real Party in Interest
Linda J. Rhodes-Schauer Attorney Ad Litem for Katie Wernecke
615 N. Upper Broadway, Suite 2000
Corpus Christi, Texas 78477
Texas Department of Family and Protective Services Real Party in Interest
Duke Hooten Attorney for Texas Department of Family
701 West 51st Street and Protective Services
Austin, Texas 78751
Annette Sultemeier Co-Guardian Ad Litem for Katie Wernecke
413 N. Tancahua Street
Corpus Christi, Texas 78401
Lauren C. Ranly Co-Guardian Ad Litem for Katie Wernecke
P.O. Box 900
Corpus Christi, Texas 78403
TABLE OF CONTENTS
Identity of Parties and Counsel ii
Index of Authorities v
Statement of the Case vii
Statement of Jurisdiction viii
Issues Presented ix
Statement of Facts 1
1. Mandamus is available in this situation to correct abuses of discretion
by the trial court, and because the trial court’s orders infringe fundamental
Constitutional rights of Relators 8
2. Respondent abused his discretion and commit errors of law by
entering his orders dated July 8, 2005 and September 20, 2005 without
holding evidentiary hearings in which he could have found, by clear and
convincing evidence, that Edward and Michele Wernecke were unfit
parents (July 8), or that their possible future communications with Katie
Wernecke were likely to endanger Katie’s health or safety (September 20) 12
1. The “liberty” interests protected by the Due Process clause of the
14th Amendment include parents’ rights to choose the medical care
being provided to their children, and include the rights to refuse unwanted
medical treatment and to get second opinions 13
2. The order dated September 20, 2005 violates the U.S. Constitution
because it deprives the Relators, or some of them, of their fundamental
constitutional rights of freedom of speech (Amendment 1), freedom of
association (Amendment 1), freedom to parent their children (Amendments
5, 14 and penumbra), to be free from illicit government coercion and force
(substantive due process, Amendments 5 and 14), and because the hearing at which the order was entered did not comport with binding rules of procedural due process (Amendments 5 and 14) 20
3. By ordering Michele Wernecke to only speak to Katie using language
approved by the court, the court abused its discretion by mandating
certain speech, which violates Michele’s Constitutional rights 28
Conclusion and Prayer 29
INDEX OF AUTHORITIES
Cruzan v. Director, Mo. Dept. Of Health,
487 U.S. 261, 110 S.Ct. 2841, 111 L.Ed. 2d 224 (1990) 13
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) 8
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed. 2d 603 (1990) 23
In re G.M., 596 S.W.2d 846 (Tex. 1980) 11, 19, 21
Matter of Hofbauer, 47 N.Y.2d 648, 419 N.Y.S.2d 936, 393 N.E.2d 1009 (1979) 13
Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) 18
In re J.R., ___ S.W.3d ___, 2005 WL 1771721
(Tex. App. – Houston [14th Dist.] 2005, no pet. history) 18
Kilroy v. Kilroy, 137 S.W.3d 780 (Tex. App. – Houston [1st Dist.] 2004, no pet.) 8, 9
Low v. King, 867 S.W.2d 141 (Tex. App. – Beaumont 1993, no writ) 9
In re McCoy, 52 S.W.3d 297 (Tex. App. – Corpus Christi 2001, orig. proc.) vii, 8
In the Matter of Noah Maxin, Case No. JU-124918 (Court of Common Pleas,
Stark County, Ohio, 2002) 14, 16, 19
Neiswander v. Bailey, 645 S.W.2d 835 (Tex. App. – Dallas 1982, no writ) 23
In re Ostrofsky, 112 S.W.3d 925 (Tex. App. – Houston [14ht Dist.] 2003, no pet.) 8
Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) 18
Perry v. Levegood, ___ F.Supp.2d ___, 2005 WL 2296716 (E.D. Pa. 9/21/05) 15
San Antonio School District v. Rodriguez,
411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed. 2d 16 (1973) 10
In re S.A.P., ___ S.W.3d ___, 2005 WL 1479007
(Tex. App. – Waco 2005, no pet. history) 24
In re Santos, 2005 WL 2082989 (Tex. App. – Corpus Christi, no pet.)
(not designated for publication) 8
In re S.P., 168 S.W.3d 197, ___ S.W.3d ___, 2005 WL 1249304
(Tex. App. – Dallas 2005, no pet. history) 12
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49 (2000) 22, 23
In re Vernor, 94 S.W.3d 201 (Tex. App. – Austin 2002, orig. proc.) 10
State in Interest of E.G., 657 So.2d 1094 (La. App. 1995) 13
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 8
Walsh v. Ferguson, 712 S.W.2d 885 (Tex. App. – Austin 1986, no writ) 10
West Virginia State Board of Education v. Barnette,
319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 2d 1628 (1943) 29
In re W.J.H., 111 S.W.3d 707 (Tex. App. – Fort Worth 2003, no pet.) 13
U.S. Constitution, Amendment 1 21, 26
U.S Constitution, Amendment 5 21
U.S. Constitution, Amendment 14 10
Texas Constitution, art. 1, section 8 9, 25
Texas Constitution, art. 5, sec. 3(a) ix
Texas Family Code §161.001 12, 21, 22, 24
Texas Government Code §22.001 ix
Texas Probate Code §875(a) 15
STATEMENT OF THE CASE
(1) Concise Description of the Nature of the Underlying Proceeding.
This case arises out of a proceeding filed by the Texas Department of Family and Protective Services (“DFPS”) in County Court at Law No. 5, Nueces County, Texas in June 2005. DFPS originally filed the case alleging that Edward and Michele Wernecke were not acting as good parents to their four children.
DFPS sought and obtained a court order dated July 8, 2005 which allowed it to remove Katie from her parents and place her in foster care. Apparently, either on his own motion or at the insistence of counsel for the DFPS, trial court judge Carl E. Lewis, Respondent, also entered an order (in the form or an injunction) dated September 20, 2005, in which he terminated in total Edward Wernecke’s ability to communicate with his daughter, and severely limited Michele Wernecke’s ability to do so. The orders of July 8, 2005 and September 20, 2005 are the subject of this Petition.
Hon. Carl E. Lewis
Judge, County Court at Law No. 5
Nueces County, Corpus Christi, Texas
(3) Concise Description of the Respondent’s Action From Which the Relator Seeks Relief.
Relator seeks a writ of mandamus requiring the trial court to vacate the temporary orders issued by Respondent dated July 8, 2005 and September 20, 2005. These orders impair and destroy the fundamental constitutional rights of the Relators to engage in free speech, free association, family relations, and to be free from illegitimate, governmental coercion and force (substantive due process, equal protection, and liberty). The orders also violate fundamental statutory and constitutional rights of procedural due process in that they were issued without a proper hearing, they are based on the wrong burden or proof, and they are not supported by legally-sufficient evidence.
(4) If Writ of Habeas Corpus is Sought, a Statement Describing How and Where the Relator is Being Deprived of Liberty.
(5) If the Petition is Being Filed in the Supreme Court.
A. Date petition was filed in Court of Appeals: September 23, 2005
B. Court and Justices: 13th Court of Appeals;
Chief Justice Valdez and Justices Castillo and Garza
C. Author of any Opinion: The sole “Memorandum Opinion” was issued per curiam.
D. Citation to the court’s opinion: No citation available.
E. Disposition by court of appeals: Writ denied.
STATEMENT OF JURISDICTION
This Court has jurisdiction over this original proceeding in accordance with Texas Government Code §22.001, and Texas Constitution, art. 5, sec. 3(a). See In re McCoy, 52 S.W.3d 297, 301 (Tex. App. – Corpus Christi 2001, orig. proc.).
3. Is mandamus available in this situation to correct abuses of discretion
by the trial court and because the trial court’s orders infringe fundamental
4. Did Respondent abuse his discretion and commit errors of law by entering his orders dated July 8, 2005 and September 20, 2005 without holding evidentiary hearings in which he could have found, by clear and convincing evidence, that Edward and Michele Wernecke were unfit parents (July 8), or that their possible future communications with Katie Wernecke were likely to endanger Katie’s health or safety (September 20)?
1. Do the “liberty” interests protected by the Due Process clause of the
14th Amendment include parents’ rights to choose the medical care
being provided to their children, and include the rights to refuse unwanted
medical treatment and to get second opinions?
2. Does the order dated September 20, 2005 violates the U.S. Constitution
because it deprives the Relators, or some of them, of their fundamental
constitutional rights of freedom of speech (Amendment 1), freedom of
association (Amendment 1), freedom to parent their children (Amendments
5, 14 and penumbra), to be free from illicit government coercion and force
(substantive due process, Amendments 5 and 14), and because the hearing at
which the order was entered did not comport with binding rules of
procedural due process (Amendments 5 and 14)?
3. By ordering Michele Wernecke to only speak to Katie using language
approved by the court, did the court abuse its discretion by mandating certain
speech and thus violate Michele’s Constitutional rights?
STATEMENT OF FACTS
This statement of facts is supported by the Affidavits of Edward David Wernecke and Michele Wernecke, found in the Appendix at Tabs 5(1) and 5(2). More-detailed facts are contained in those affidavits; the following is a brief summary of the facts germane to the mandamus.
In late 2004, Katie Wernecke, then a 12-year-old girl, became sick. On January 7, 2005, Katie was admitted to Driscoll hospital in Corpus Christi, Texas to determine what was wrong with her. A biopsy was performed, and by January 13, 2005, the doctors diagnosed Katie as having Hodgkin’s Disease.
Beginning on January 15, 2005, at the instance of her parents, Edward and Michele Wernecke, Katie began multiple rounds of chemotherapy for treatment of the cancer. Numerous CT and PET scans were also performed on Katie over the course of the next several months.
On May 12, 2005, Doctor Alter, Katie’s main doctor, talked to Katie without either of the Werneckes being present. He told Katie that she needed radiation treatments or she might die. On May 24, 2005, CPS called and asked the Werneckes what they were going to do about the radiation therapy. The Werneckes told CPS that they wanted to do another PET scan to see if the cancer was still shrinking, and would then determine if the radiation therapy would be authorized.
On May 27, 2005, CPS worker Kim Garcia called the Werneckes. In regard to the Wernecke’s desire for another PET scan and their consequent delay in ordering radiation therapy for Katie, Ms. Garcia refused to approve a new scan, and said: “We’re calling it in as medical neglect. You have ten days to make the radiation appointment.” Michele Wernecke complained about being forced into consenting to this treatment without further testing or an objective second opinion, and said she wanted to talk to a lawyer.
On June 1, 2005, Michele tried to call numerous oncologists to arrange to get a second opinion. She asked Dr. Alter for a referral, but he never gave her one.
On June 1, 2005, the police came to the Wernecke home to pick up Katie. However, on that day, Katie was in Kingsville visiting her grandmother. Not wanting to leave empty-handed, CPS instead absconded with the three Wernecke boys, claiming that their house was in a dangerous condition. To come to this conclusion, CPS workers mistook a watermelon seed for rat feces, and thought that needle-less syringes on the kitchen counter posed some sort of threat to the boys, even though the Werneckes live on a ranch, the boys are around farm and ranch equipment all the time, and the syringes were not even armed or loaded.
On June 4, 2005, without a warrant, law enforcement entered through several ranches and captured Michele and Katie. The police arrested Michele for child endangerment.
At the first hearing in court on June 8, 2005, Judge Lewis told CPS to “give the boys back” to the Werneckes. CPS performed a “face-saving inspection” of the Wernecke home on June 9, 2005, and the boys were returned to them on June 10, 2005. However, Katie was placed in a foster home under the direction of CPS. At this time, the Werneckes lost their right to make medical decisions for Katie and their three sons.
Another hearing took place on June 10, 2005. In this hearing, the doctors produced the results of the PET scan which supposedly showed Katie’s cancer was still alive but was shrinking.
The Werneckes were then back in court on June 15 and 16, 2005. The purpose of this hearing was to decide what to do with Katie. Both Michele and Edward testified. The doctors also testified and said that Katie needed regular chemo and radiation treatment to ensure the cancer was eradicated. The Werneckes both said they would allow and encourage Katie to undergo cancer treatments, including regular chemo and radiation. High-dose chemotherapy was never mentioned at these hearings, and the Werneckes refused to consent to radiation without further study of the alternative treatments that might be available for Katie.
The order dated July 8, 2005 that was issued following the hearings on June 15 and 16, 2005, contains no factual findings regarding safety or health reasons for removing the Werneckes boys from their parents, and contains only conclusory and vague findings that “Edward Wernecke was in great conflict with Katie’s doctors as to her treatment and acted unreasonably in the care and treatment of his daughter Katie Wernecke.” This order stripped the Werneckes of all their parental rights as to medical decisions for Katie and the Werneckes boys until further order of the court. See 7/8/05 Order, Appendix Tab 5, page 6.
On June 20, 2005, more CT and PET scans were done on Katie. On June 22, 2005, a bone marrow scan was done. Both of these tests showed negative as to active cancer. On June 23, 2005, apparently not satisfied with the CT and PET scans, the doctors performed six separate biopsies on Katie. All of these biopsies also showed negative for active cancer.
Katie went back to her foster home on June 24, 2005. On June 29, 2005, Stella Klein with CPS called and said they were going to do a more intense biopsy through Katie’s throat or through her ribs. Michele refused to allow this surgery since all 6 biopsies had come back negative and the PET and CT scans had showed negative for active cancer. CPS then reported to the court that Michele was being “uncooperative.”
June 30, 2005, CPS said the doctors had to go into Katie’s side and deflate her lung in order to do more biopsies. This surgery was done against the Wernecke’s wishes. During this surgery, the doctors removed almost 90% of Katie’s thymus gland. A biopsy on the thymus showed negative for cancer.
On July 8, 2005, the Werneckes first heard about a high-dose chemotherapy and radiation proposal being made for Katie. This occurred at a meeting with Katie, Dr. Nunez (a radiologist), child activists, Dr. Wells, CPS personnel (Stella Klein), and Katie’s foster mom. Contrary to the biopsies and scans, the doctors said in this meeting that Katie’s cancer was positive and they showed some slides. “More aggressive” is how they termed the cancer they said was in Katie’s body. The Werneckes asked a bunch of questions. The doctors explained to the Wernenckes and Katie what they were going to do. The doctors were asked what they would do if the PET scan then came back negative. They said in that instance, they would do only two rounds of chemo, regular dose, but if the PET scan came back positive, they would do four rounds of regular chemo, then high-dose chemo-therapy, and then radiation. They also explained some of the negative side-effects such high-does chemo and radiation would have on Katie’s body, such as possible heart and liver failure, kidney failure, sterilization, higher susceptibility later to cancer.
On July 8, 2005, the order was issued by the trial court following the June 15 and 16, 2005 hearing. However, Katie has been in CPS custody since early June 2005.
On August 23, 2005, Katie’s doctors did another CT scan, followed by another PET scan on August 25, 2005. On August 30, 2005, the Werneckes consulted with Katie’s doctors on the next steps in Katie’s treatments. This meeting was attended by Katie, Dr. Wells, Dr. Nunez, a social worker, and others. The doctors explained high dose chemotherapy in detail, and said it would be needed even though all tests, scans, and biopsies had come back negative. They explained many of the potential side effects of high-dose chemotherapy. Katie was there, hearing everything. Even though Katie’s cancer was dead and shrinking, the doctors still wanted to do this high-risk treatment, remarking when asked the reason: “just in case one cancer cell is left alive.” At the meeting, Katie said: “If they are going to kill the last cell with high dose chemo, why am I doing radiation that is supposed to do the same thing?” No answer was provided to this very insightful question.
On September 6, 2005, everyone was back in court. Doctors testified that Katie would die without the high-dose treatment. The judge said “how long before she dies,” apparently trying to figure out what to do. When the doctors agreed that Katie’s cooperation was essential to her treatment, the judge said: “Sounds to me like you [CPS] don’t have a case, give the child back [to her parents].” CPS then objected, asking the judge not to do that. Daniel Horne, the Werneckes’ other trial counsel, suggested that he would try to get second opinions by Friday, September 9, 2005. CPS also asked the judge to cut off all communications between Katie and her parents, obviously planning to institute a program of brainwashing Katie, and they didn’t want the Werneckes tampering with their plans. The judge refused to cut off contact.
On September 9, 2005, the court had another hearing. There had not been enough time to get the promised second opinion, so no opinion was provided to the court at that time. The judge said to the Werneckes: “You have nothing [no second opinions], you have run out of time.” The court went into recess while the judge again spoke to Katie on the telephone, ex parte and off the record. During the break in the case, Linda Schauer, attorney ad litem for Katie, told the Werneckes: “The court is going cut off all your parental rights unless you cooperate.” The judge came back in from the recess and said he was going to go talk to Katie in person the next week.
Katie called her parents on Sept 16, 2005 and said the judge was there, “What do I do?” They told her: “Calm down, just tell the judge what you want.” On September 16, 2005, an order was signed saying there would be a hearing on September 19, 2005.
There was a hearing on September 19, 2005. That hearing was not completed but was postponed due to Judge Lewis getting sick. The parties were told they would be contacted when the hearing would resume. At this hearing, the Werneckes did not get to testify, and no other testimony was taken or evidence submitted. On September 20, 2005, the parties learned that Judge Lewis had experienced a heart attack or other problem on September 19, and had to have open-heart surgery that night. Apparently just out of surgery, on September 20, 2005, Judge Lewis signed an order terminating virtually all of the Werneckes parental rights, including their right to communicate with or visit Katie, with limited exceptions for Michele being able to communicate with Katie only in person, with CPS personnel permission, and while they were present. The purported reason for terminating their communication with Katie was to prevent the Werneckes from influencing her not to undergo the treatment. However, there is no evidence in the record supporting a finding that either of the Werneckes had ever attempted to influence Katie to refuse treatment.
The Werneckes sought mandamus relief from the July 8 and September 20 orders in the Court of Appeals, but were denied. This Petition followed.
1. Mandamus is available in this situation to correct abuses of discretion by the trial court, and because the trial court’s orders infringe fundamental Constitutional rights.
Mandamus is used to correct a trial court’s abuse of discretion. “Interference through the issuance of a writ of mandamus is justified ‘when parties stand to lose their substantial rights.’” Id., citing Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992). Mandamus relief is available if the trial court abuses its discretion and there is no adequate remedy by appeal. Id. A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “Mandamus relief is available if the trial court abuses, either in resolving factual issues or in determining legal principles.” In re Ostrofsky, 112 S.W.3d 925, 928 (Tex. App. – Houston [14ht Dist.] 2003, no pet.). If the argument is that the trial court erred in “resolving factual disputes,” then it must be the case that there are disputed factual issues in the case. Because the DFPS disputes many of the facts set forth herein, mandamus is proper under the circumstances of this case, both specifically and generally.
It is settled law in Texas that temporary orders issued in a family law case are not immediately appealable. They are, however, reviewable by mandamus. See In re McCoy, 52 S.W.3d 297, 301 (Tex. App. – Corpus Christi 2001, orig. proc.); In re Santos, 2005 WL 2082989 (Tex. App. – Corpus Christi, no pet.)(not designated for publication)(“Mandamus is the appropriate vehicle to challenge the trial court’s temporary orders in pending family law litigation, as temporary orders under the Texas Family Code are not subject to interlocutory appeal”).
Mandamus relief is also generally available in circumstances of manifest and urgent necessity, such as we have here. Kilroy v. Kilroy, 137 S.W.3d 780, 784 (Tex. App. – Houston [1st Dist.] 2004, no pet.). Mandamus properly lies to correct invalid prior restraints on constitutional rights to freedom of speech. Low v. King, 867 S.W.2d 141, 142 (Tex. App. 00 Beaumont 1993, no writ)(issuing mandamus to require trial court to rescind orders that infringed constitutional free-speech rights granted by Texas Constitution, art. 1, sec. 8).
If the order of September 20 is not set aside, the fundamental constitutional rights of the Werneckes to freedom or speech, of association, and to parent their children, will be irretrievably lost. If the order of July 8 is not set aside, the Werneckes fundamental constitutional rights to parent their children and make critical medical decisions for Katie will be irretrievably lost. These rights cannot be infringed by state action unless the orders infringing them pass strict-scrutiny analysis, which the subject orders cannot do.
Ordinary mandamus is available here. In a typical mandamus proceeding, the issue for the appellate court is whether the trial court orders were made without reference to any guiding rules or principles, or whether they are arbitrary or unreasonable. Naturally, this involves examination of the alleged “guiding rules or principles” under which the trial court supposedly issued its orders, followed by examination of the orders themselves to determine if they are either arbitrary or unreasonable. Here, there are no stated “guiding rules or principles” that could possibly have been employed by the trial court in imposing a full-blown prior restraint on the free speech rights of the Relators following the September 19, 2005 hearing (the full transcript of which is attached hereto, Appendix Tab 5). No facts are stated. No statute is cited. No case law is quoted. Mandamus lies to correct this error.
Constitutional issues allow mandamus here. Mandamus will also lie to correct a trial court’s deprivation of fundamental constitutional rights, such as is happening here. In re Vernor, 94 S.W.3d 201, 209-10 (Tex. App. – Austin 2002, orig. proc.). In constitutional cases, particularly involving prior restraints like the September 20 order, and involving the deprivation of parental rights like the July 8 order, the state’s action comes to this Court under a heavy presumption that it is unconstitutional, and the burden is fully on the state to show that the orders (1) advance or further a (2) compelling state interest, and that the orders were (3) the least-restrictive means for achieving that purpose. U.S. Constitution Amend. 14; San Antonio School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed. 2d 16 (1973). There are thus three required pieces of the analysis: an interest, a means, and a proximate connection (“advance or further” or “achieve”) between the means and the interest.
Relators concede for purposes of this Petition that the protection of children who are abused or neglected is a compelling state interest or goal. But even if Katie Wernecke were “abused or neglected” (which she is not), that is only one-third of the required analysis under the Constitution. The state must also prove that the restraint was the least-restrictive means possible for achieving that goal, and it must prove that the means employed (in this case, a court order) is actually effective to further that goal.
The second and third phases of this burden were never met in this case. The September 20 order has not been shown to be the least-restrictive means available, nor has it been shown that the order is designed to fulfill or effect the state’s interest in preventing any abuse of Katie Wernecke. Surely, the trial court merely claiming that its order does this is not sufficient under the strict-scrutiny analysis this Court must employ here; if that sufficed, strict scrutiny would be a thin barrier indeed. Since these prongs of the test have not been fulfilled, the presumption of unconstitutionality remains, and the September 20 order must be stricken.
Here, for every hour that passes, Edward Wernecke and Michele Wernecke (and their daughter Katie Wernecke) are losing—irreparably and irretrievably—their Constitutional rights to communicate with each other, to exercise their rights of freedom of speech and freedom of association, and to exercise their liberty interests to engage in normal familial relations, including the rights to parent and the right to make intimate, personal medical decisions without undue government interference. These rights are among the most important and pre-eminent in our legal system. It is beyond dispute that the loss of these rights cannot wait until the end of trial or for an ordinary appeal, especially in the situation the Werneckes find themselves in.
Mandamus was made precisely for situations just like this one.
2. Respondent abused his discretion and commit errors of law by entering his orders dated July 8, 2005 and September 20, 2005 without holding evidentiary hearings in which he could have found, by clear and convincing evidence, that Edward and Michele Wernecke were unfit parents (July 8), or that their possible future communications with Katie Wernecke were likely to endanger Katie’s health or safety (September 20).
Basic due process requires that a court hold an evidentiary hearing before deciding disputed matters pending in its court. In re S.P., 168 S.W.3d 197, ___ S.W.3d ___, 2005 WL 1249304 (Tex. App. – Dallas 2005, no pet. history). Under the Texas Family Code, before a person’s parental rights can be terminated—in whole or in part—the court is required to hold an evidentiary hearing, and the proponent must prove, by clear and convincing evidence, that specific grounds exist to adversely affect those rights. See Texas Family Code §161.001; In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)(“Hereafter, the ‘clear and convincing evidence’ standard of proof will be required in all proceedings for involuntary termination of the parent-child relationship”).
In this case, it is undisputed that there was no evidentiary hearing whatsoever at which evidence was taken showing facts sufficient to support termination of the Werneckes’ parental rights as was accomplished with the September 20 order—under any burden of proof. In addition, there was insufficient evidence presented to the trial court to support the order entered July 8.
Texas courts have opined on the type and amount of proof that suffices to terminate parental rights. In In re W.J.H., 111 S.W.3d 707 (Tex. App. – Fort Worth 2003, no pet.), the court found evidence sufficient to terminate a mother’s parental rights when she knowingly placed her children in conditions that endangered their lives and failed to provide any medical care for them whatsoever. However, in that case, the mother was completely neglecting the children; there was not merely a disagreement with the state about what form of medical care was best for the children. In virtually every case in the country in which parental rights have been terminated for failure to provide adequate medical care, the evidence was that NO care was being provided, not that alternative care was being provided that the state simply disagreed with. See, e.g., State in Interest of E.G., 657 So.2d 1094 (La. App. 1995).
There are no cases in Texas which support what the trial court did in this case. As such, the orders of July 8 and September 20 lack substantive guidelines or principles informing their existence, their entry constitutes an abuse of discretion, and they must be vacated.
3.The “liberty” interests protected by the Due Process clause of the
14th Amendment include parents’ rights to choose the medical care
being provided to their children, and include the rights to refuse unwanted medical treatment and to get second opinions.
In Cruzan v. Director, Mo. Dept. Of Health, the U.S. Supreme Court held that a parent’s constitutional rights to determine medical care for their children includes the right to refuse medical treatment. There would never be an issue on this point to be decided—in this case or any other—unless there existed a state-sponsored, contrary desire that the medical treatment “should be” dispensed. When these types of conflicts exist between what the state says is best and what a fit parent says is best, the question becomes “whose wishes prevail, the state’s or the parent’s?”
In a case directly on point to our situation, the New York Court of Appeals held that parents had the right to decide which medical treatment was right for their children, even where the parents’ decision was contrary to their child’s treating physician’s “mainstream” medical opinion. In Matter of Hofbauer, the parents rejected recommendations that their 8-year-old son undergo “traditional” high-dose chemotherapy and radiation treatment (similar treatment now being recommended for Katie), but instead chose to have their child undergo nutritional and metabolic therapy for Hodgkin’s Disease. The trial court found the child was “neglected” and removed him from his parents’ care, finding them “unfit” to care for him. The intermediate appellate court affirmed. But New York’s highest court reversed, finding that the parents could not be found to be “unfit” since they were pursuing or attempting to pursue some course of treatment, albeit treatment different from that which was recommended by one particular doctor. The Hofbauer case provides compelling and substantial support for the Werneckes’ position in this case.
In another case directly on point to the present dispute, a proper analysis of a parent’s right to choose alternative treatment for their minor children was done by the Court of Common Pleas in Ohio. In Matter of Noah Maxin, Case No. JU-124918 (Court of Common Pleas, Stark County, Ohio, 2002), the court denied the state’s request to declare Noah a “neglected” child just because his parents were electing to pursue alternative cancer treatments rather than subject Noah to the dangers of conventional chemotherapy. This opinion is well worth reading (a copy of the opinion is attached in the Appendix to this brief; Tab 5(5)). It shows a thoughtful and constitutionally-sound analysis of a situation identical to this one, and stands in stark contrast to the superficial analysis reflected in the orders of July 8 and September 20.
The Werneckes have recently obtained a letter from the Center for the Improvement of Human Functioning in Wichita, Kansas. The letter is from Dr. Ronald E. Hunningbake, M.D. It suggests that Katie is a candidate for the ascorbic acid and nutritional therapy provided by the Center. The letter is from a licensed physician. It includes a copy of the study from the PNAS website cited at footnote 35. (Copy attached at Appendix, Tab 5(4)).
These materials were not available to the Werneckes in June 2005, and so they were not presented to the trial court. At the very least, the Werneckes are entitled to pursue this alternative form of treatment for Katie, which the subject trial-court orders are denying them the opportunity to do. By granting this Petition, the Court restore the Wernecke’s constitutional rights and make this possible.
Here, the trial court has apparently decided that the Werneckes are, at least in part, “unfit” based solely on their decision not to adopt or allow the medical treatment being proposed by the state, or because they wanted to get second opinions or pursue alternative treatments for Katie. See order dated July 8. But if mere disagreement with the state’s proposal renders a parent “unfit” to make such decisions, then the right to make such decisions is altogether illusory.
“If you (parents) agree with us (the state), then you are free to make the decision on your child’s medical care. But if you disagree with us, then you are unfit and we will take your children away from you and follow our own decision.”
This is absurd reasoning, but it is the state’s argument in this case. At least, that appears to be the only argument they presented to the trial court before obtaining the July 8 order, since the only “unfitness” specified in that order concerns a “conflict” between Edward Wernecke and Katie’s doctors over treatment decisions. As such, the July 8 order is constitutionally infirm, and will not in any way support the September 20 order.
The logical reach of this case. This case has implications far beyond who makes medical decisions for minors. If any person, including an adult, is declared “incompetent” to make his or her own medical decisions, then a guardian can be appointed for the purpose of making those decision. Imagine the situation where an adult disagrees with a prescribed course of treatment suggested by a doctor. If that disagreement is in and of itself sufficient evidence to render that adult “incompetent” to make his own medical decisions such that a guardian must be appointed to make those decisions for him, then we have finally arrived at the place where the “all-powerful, all-knowing” state government is totally in charge of all medical decisions for all citizens—minors and adults.
Before the Court disregards this logical conclusion, the Court must be able to logically distinguish the case of a disagreeable adult (presumed to be legally entitled to make his or her own medical decisions) from a disagreeable parent (presumed to be legally entitled to make medical decisions for his or her children). Here, the parents and guardians of Katie Wernecke, the people with the ostensible legal right to make medical decisions for Katie, have had a disagreement with the state on a prescribed course of medical treatment. On that basis—and that basis alone—the Werneckes have been stripped of their right to make those medical decisions.
Another logical syllogism is germane to this point: the right to make medical decisions must include the right to refuse medical care, which care must include treatment which is being recommended by a doctor. Cruzan, Maxin, Hofbauer, all supra. The right to refuse treatment, or to choose between alternatives, must also includes the right to gather and analyze sufficient information to intelligently exercise that right. That is, in order to be intelligently informed, one needs to have access to all reasonably-available medical opinions germane to the treatment or condition.
Here, the Werneckes are being deprived of access to Katie (by both orders under review), access which is required to be able to get second opinions about treatment options. By depriving the Werneckes of the ability to get Katie evaluated by other doctors (other than clones of the present doctors), the state is essentially saying “it’s our way or no way.” The state is also cutting off the Werneckes’ ability to intelligently decide, as a family, whether the state-recommended treatment is or is not the best solution for their daughter’s condition.
In our case, not only had the Werneckes provided proper care to Katie for almost five months, but their decision to seek second opinions relating to “follow up” care made while Katie appears to be in remission, cannot be found to be “no care” or “medical neglect” under any principled definition of those terms. Rather, what we have here is a mere disagreement between the state and the Werneckes—not relating to care—but relating to whether there is time to get second opinions and, if discovered, whether those alternative courses of treatment might be profitably followed.
There has been no “neglect” of Katie’s health care by the Werneckes. Indeed, the record in the case affirmatively shows that the Werneckes engaged qualified medical personnel for over five months in treating Katie’s cancer with chemotherapy treatments. The issue now before the Court only arose when the Werneckes—including Katie—wanted to get second opinions as to her “follow up” care and possible alternative treatments once medical scans and biopsies showed the tumor had been killed and was shrinking in size.
The doctors at M.D. Anderson Cancer Center are advocating one regimen of follow up care that they admit is extreme and hazardous. The likely side effects of this purported “cure” include the virtual certainty that Katie will be rendered sterile, great enhancement of her chances of contracting infections, possible irreparable damage to her liver, kidneys, and other vital organs, increase in the possibility of her contracting other forms of cancer, including breast cancer and leukemia, and the statistically-significant possibility that Katie might die from the treatment itself. The state’s recommended “cure” may indeed be worse than the disease in this case.
On the other hand, Katie’s cancer appears to be in remission. Numerous biopsies and scans have revealed that her tumor is dead and shrinking. She appears healthy and on the mend. There is no exigent circumstance under which she must endure the dangerous, life-altering medical regimen recommended by DFPS doctors at this time. Instead, there is time for her to pursue—or at least to investigate—alternative forms of follow-up treatment that do not carry the same predictable and certain side effects that the high-dose chemotherapy and radiation treatments the DFPS doctors insist upon inflicting on her. However, the trial court’s orders are standing in the way of Katie’s examination by other doctors.
The Werneckes want to pursue, or at least consider, using high-dosage, intravenous ascorbic acid and nutritional therapy treatment for Katie at the Center for the Improvement of Human Functioning in Wichita, Kansas. This alternative course of treatment is available to and has been used by persons in Katie’s circumstance, and the procedure is currently undergoing several clinical tests across the country. Therefore, just as in the Hofbauer and Maxin cases, the Werneckes cannot be found to be “neglecting” Katie just because they want to pursue alternative treatment protocols.
Any finding that the Werneckes were hampering or interfering in medical treatment “necessary to save Katie’s life” is completely unsupported by the record. Since this vital part of the state’s proof is missing, the trial court abused its discretion and committed an error of law in terminating in part the Wernecke’s parental rights by the July 8 order.
The orders of July 8 and September 20 are both based on legally-deficient, erroneous, contradictory, and unsupported “findings” that the Werneckes were “neglecting” Katie’s medical care. Since there is no support (insufficient evidence) in the record for those orders, they must be vacated.
4. The order dated September 20, 2005 violates the U.S. Constitution because it deprives the Relators, or some of them, of their fundamental constitutional rights of freedom of speech (Amendment 1), freedom of association (Amendment 1), freedom to parent their children (Amendments 5, 14 and penumbra), to be free from illicit government coercion and force (substantive due process, Amendments 5 and 14), and because the hearing at which the order was entered did not comport with binding rules of procedural due process (Amendments 5 and 14).
“The natural right that exists between parents and children is one of constitutional dimensions.” In re J.R., ___ S.W.3d ___, 2005 WL 1771721 (Tex. App. – Houston [14th Dist.] 2005, no pet. history)(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). Included under this rubric is the nearly-inviolate constitutional right of parents to make medical decisions for their children. This proposition is so well-established in American constitutional law as to be beyond all rational dispute. Parham v. J.R., 442 U.S. 584, 600, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).
This right springs from the 1st Amendment freedom of association and the rights to privacy, liberty, and procedural and substantive due process. This right can be infringed by state action only in the narrowest of circumstances, and only following strict-scrutiny analysis.
Because the termination of parental rights is so serious, termination proceedings should be strictly construed in favor of the parents, and termination is only possible from proof by clear and convincing evidence that conduct prohibited by Texas Family Code §161.001 has occurred, and termination is in the “best interests of the child.” Id; In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). The heightened burden under the Family Code (i.e., clear and convincing evidence; Tex. Fam. Code §161.001) changes the appellate review process:
In conducting such a legal-sufficiency review, a court must look at all the evidence in the light most favorable to the termination findings to determine whether a reasonable trier of fact could have formed a firm belief or conviction that these finding are true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal-sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so. Furthermore, a reviewing court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a reviewing court must disregard all evidence that does not support the findings in question. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. If, after conducting its legal-sufficiency review of the record evidence, a court determines that a reasonable factfinder could not form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. In re J.R., supra (emphasis added).
What the trial court has done is severed the lines of communication and restricted the Wernecke’s rights to freedom of speech and association through which such second opinions might be found and considered. The trial court has set itself up as the final authority on what medical treatment is “right” for Katie, and has made it virtually impossible to challenge that decision—even though there appears to be sufficient time available to pursue other treatment plans or possibilities.
In Troxel v. Granville, the U.S. Supreme Court discussed and affirmed a dozen cases discussing the history and foundational importance of this right:
The liberty interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own." Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control." We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Id., at 535, 45 S.Ct. 571. We returned to the subject in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Id., at 166, 64 S.Ct. 438.
The trial court has not fulfilled even one of the procedural requirements necessary before fundamental constitutional rights such as the right to parent may be infringed. As such, the orders of July 8 and September 20 must be vacated.
Lack of Procedural Due Process. The hearing from which the September 20 order issued was not instigated by a state motion asking that the Wernecke’s parental rights be terminated. The state thus shouldered no burden of proving the criteria under Texas Family Code §161.001. Instead, it appears that Judge Lewis undertook to deprive the Werneckes of their valuable and irreplaceable constitutional rights sua sponte.
With no proponent carrying the burden of proof to support termination of the Wernecke’s parental rights, no proof was submitted and no “burden” was enforced. This means that the Werneckes were essentially faced with a raw exercise of judicial power against which they were powerless to fight. This is the very definition of “violation of due process.” The judge essentially became the Wernecke’s adversary, considered who-knows-what evidence (there is no record of what evidence he supposedly considered, if any), and “found for himself” on the merits which resulted in issuance of the subject order on 9/20/05. There was no real “hearing” in any ordinary sense of that term, no evidence received, and no burden fulfilled.
Since the Werneckes have been deprived of fundamental due process, and because the state has not met its burden of proof under Texas law, the order of September 20 must be vacated.
As for the hearing on June 15 and 16, 2005, not much more can be said. While the Werneckes were afforded the opportunity to testify at that hearing, the state was not required to prove their unfitness as parents by clear and convincing evidence—or at least there is no proof that this standard was employed. In the July 8 order, the trial court never says it employed a clear and convincing evidence standard, nor does it employ the words describing use of such a standard: “whether the evidence is such that a reasonable factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re S.A.P., ___ S.W.3d ___, 2005 WL 1479007 (Tex. App. – Waco 2005, no pet. history). No findings of the court contained in the July 8 order show that the Court employed a clear-and-convincing-evidence burden. Therefore, since this critical, statutory burden is not proved by the record, it must be assumed that the court employed only a preponderance standard in derogation of controlling Texas law.
Freedom of Speech and Family Rights. Freedom of speech is guarantied by the Texas and federal constitutions to every citizen. See U.S. Constitution, Amendment 1; Texas Constitution, article 1, section 8.
By ordering Edward and Michele Wernecke not to speak to their daughter, or by depriving them of the ability to freely speak to her, the trial court has issued an order which constitutes a prior restraint of the Wernecke’s speech. Not only is this particular restraint not content-neutral, but any prior restraint is automatically suspect under the constitution. In FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596, 618 (1990)(emphasis added), the Supreme Court said:
While prior restraints are not unconstitutional per se . . . any system of prior restraint . . . comes to this Court bearing a heavy presumption against its constitutional validity. . . . [A]n ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an [government] official – as by requiring [permission] which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.
The September 20 order constitutes just such a system of prior restraint. It purports to restrain the future speech of the Werneckes, subject to the whims of the trial judge. As such, it must pass constitutional muster in order to be upheld. And it cannot do so.
The burden is on the state to show that the order is constitutional. The state must show two things: (a) that the restraint promotes a compelling state interest, and (b) that the restraint is the least-restrictive means of fulfilling that interest. This is the so-called “strict scrutiny” analysis.
It is conceded for purposes of this Brief that protecting the health and safety of Texas children from neglectful parents is a compelling state interest. However, the restraint imposed on the Werneckes by the order of September 20 can in no manner be deemed or found to be the “least restrictive means for fulfilling that interest.”
First, there is no evidence in this record—none—that the Werneckes had previously attempted to influence Katie not to undergo the cancer treatments presently being recommended by DFPS. Then, there is no evidence, circumstantial or direct, that if allowed to speak to Katie either of the Werneckes are likely to engage in any such influence on Katie in the future. The “evidence” the trial court must necessarily have considered before rendering an order of the magnitude of the September 20 order is wholly absent from the record.
Second, even if we were to assume, arguendo, that Edward Wernecke were inclined to verbally attempt to influence Katie not to undergo life-threatening cancer treatments, the restraint imposed on Edward Wernecke by the September 20, 2005 order is not narrowly tailored to fulfill that goal. Instead, it is a complete and total injunction preventing any and all communications whatsoever between Katie and her father, not merely any such “influencing.” A “narrowly tailored” injunction may at times be difficult to precisely describe, but it is certainly somewhat shy of the complete gag order invoked by the September 20 order.
Last but not least, there is no evidence in this record that preventing communication between the Werneckes and Katie will or is likely to serve as a means (least-restrictive or otherwise) to fulfill the court’s ultimate goal: preserving Katie’s health. Indeed, just the opposite is probably true if the Court accepts the possibility that stress is a debilitating condition, and that being far from home and unable to speak to your parents may cause stress to a 13-year-old girl facing life-threatening cancer treatments. From all appearances, Katie is making up her own mind on this issue, influenced by no one including the judge , the doctors, or her parents. However, the only possible reasoning Judge Lewis employed here must be that if he cut Katie off from communicating with those she loved and trusted the most, that would psychologically torture her and beat her down, and if he then told her she could once again speak with them “if only” she would just agree to the treatment, that would somehow influence her—along with the overanxious, professional, and efficient assistance of the experts employed by DFPS—into changing her mind.
This conclusion, while difficult to swallow and arrived at very reluctantly, is the only conclusion supported by the totality of the circumstances, including other language in the order in which the judge tells Michele Wernecke that he expects her to coerce Katie into agreeing to the treatment, and if she fails to do so—in writing—she like Edward will also suffer complete loss of her ability to speak with Katie. See 9/19/05 Transcript and September 20 order, Appendix Tab 1. State personnel have also been threatening Katie with deprivation of contact with Michele and Katie’s friends unless Katie began to cooperate with state-mandated instructions. See Affidavit of Michele Wernecke, Appendix Tab 5(2), ¶¶ 14-18. No other conclusion fits all the facts. There is no nice way to say this: if this was in fact Judge Lewis’s plan—to psychologically beat Katie into submission—it utterly shocks the conscience and constitutes an abuse of discretion rarely if ever before seen in U.S. jurisprudence.
5. By ordering Michele Wernecke to only speak to Katie using language
approved by the court, the court has abused its discretion by mandating certain speech, which violates Michele’s Constitutional rights.
According to the September 20 order under review, Michele Wernecke is being forced to make specific, content-based communications with Katie on the threat of losing her ability to communicate with her daughter at all. Specifically, the September 20 order requires Michele, when she speaks to Katie, to “encourage” her to have the dangerous medical treatment the court apparently believes is necessary. The order leaves no room for Michele to speak her true feelings to Katie, and in fact, threatens Michele and Katie with complete loss of all communications between them unless Michele abides by the order.
The state may not lawfully mandate that a person engage in particular speech or speak any particular words. The U.S. Supreme Court has repeatedly held that “freedom of speech” is not only the freedom to speak, but includes the freedom not to speak—to be free from governmental coercion to speak particular words or ideas. In West Virginia State Board of Education v. Barnette, the high Court held that a student’s first amendment rights to freedom of speech are violated if the student is required, by government fiat, to recite the Pledge of Allegiance, salute the flag, or in some other way express a particular belief (citing numerous cases).
Here, Michele Wernecke is being forced—by court order—to “encourage” Katie Wernecke to submit to medical treatment which Michele does not agree with and which Katie herself has repeatedly rejected. Michele is being threatened with losing her ability to communicate with her young daughter if she does not go along with the state-imposed script, and she is even required to go along with that script in writing. See the September 20 order.
This restraint on Michele’s free speech rights under the U.S. Constitution must pass strict scrutiny analysis. However, the state in this case cannot show that the order is sufficiently narrowly-tailored to advance any compelling state interest. Not only is there no “compelling state interest” being advanced by the restriction, but even if one were to stretch to find the order is meant to somehow protect Katie Wernecke’s health, the order is not the least-restrictive means of advancing that interest. The September 20 order thus cannot withstand the strict scrutiny which the law applies to such restraints, and it must be stricken.
CONCLUSION AND PRAYER
In this case, we have an emergency situation where a little girl is poised on the brink of having her will destroyed for purposes of getting her to “agree” to have life-threatening, irreversible, and non-essential cancer treatment. The only facts on which the trial court made this decision are illusory: that Katie’s parents are somehow endangering her health by influencing her not to have the treatment. In order to force Katie into “agreeing” to have this care, the court has used the infringement of both Katie’s and her parents’ constitutional rights as a bludgeon for coercing them into accepting the treatment. Such action is not only an abuse of discretion, but shocks the conscience of every thinking person, regardless of the “good intentions” behind the action. The end does not justify these means.
Our precious civil rights were not created or designed to be used by the state as levers to pressure us into doing what the state wants us to do. And our civil rights cannot lawfully be held ransom to secure our “agreement” to go along with what the state wants us to do. Yet, that is the net effect of the orders under review in this case.
If our rights are that fragile, if they are subject to manipulation in that manner, and if a trial court can so readily invalidate and disregard them on the record we see before us in this case, then our country is in deep, deep trouble.
Relators seek the following relief:
A. A writ of mandamus compelling the judge of the County Court at Law to immediately vacate the trial court’s order dated July 8, 2005.
B. A writ of mandamus compelling the judge of the County Court at Law to immediately vacate the trial court’s order dated September 20, 2005.
C. Remand for further proceedings.
D. Such other and further relief as is just.
JAMES A. PIKL, P.C.
James A. Pikl
State Bar No. 16008850
P. O. Box 2939
McKinney, Texas 75070
Fax (214) 544-7001
ATTORNEY FOR RELATORS EDWARD AND MICHELE WERNECKE
CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of October 2005, a true and correct copy of the above and foregoing PETITION FOR WRIT OF MANDAMUS was served on the following by hand delivery, telefax, and/or certified mail, return receipt requested:
Linda J. Rhodes-Schauer
615 N. Upper Broadway, Suite 2200
Corpus Christi, Texas 78477
701 West 51st Street
Austin, Texas 78751
James A. Pikl
1. Certified or sworn copies of any orders complained of, or any other document showing the matter complained of.
2. Any orders or opinions of the court of appeals, if the petition is filed in the Supreme Court.
3. Unless voluminous or impracticable, the text of any rule, regulation, ordinance, statute, constitutional provision, or other law (excluding case law) on which the argument is based.
4. If a writ of habeas corpus is sought, proof that the relator is being restrained.
N/A (no tab in Appendix).
5. Optional contents:
(1) Affidavit of Edward David Wernecke
(2) Affidavit of Michele Wernecke
(3) Transcript of Hearing, In re Wernecke, September 19, 2005, County Court at Law No. 5, Nueces County, Texas
(4) Letter dated 9/27/05 from Dr. Hunningbake, M.D., to Edward D. Wernecke (includes report from the PNAS—Proceedings of the National Academy of Sciences)
(5) Opinion: In the Matter of Noah Maxin, Case No. JU-124918, Court of Common Pleas, Stark County, Ohio (2002)
U.S. Constitution, Amendment 1
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Constitution, Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
U.S. Constitution, Amendment 14
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Texas Constitution, art. 1, sec. 8
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
Texas Constitution, art. 5, sec. 3(a)
(a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law. The Supreme Court and the Justices thereof shall have power to issue writs of habeas corpus, as may be prescribed by law, and under such regulations as may be prescribed by law, the said courts and the Justices thereof may issue the writs of mandamus, procedendo, certiorari and such other writs, as may be necessary to enforce its jurisdiction. The Legislature may confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the State.
"(b) The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.
Texas Government Code §22.001
(a) The supreme court has appellate jurisdiction, except in criminal law matters, coextensive with the limits of the state and extending to all questions of law arising in the following cases when they have been brought to the courts of appeals from appealable judgment of the trial courts:
(1) a case in which the justices of a court of appeals disagree on a question of law material to the decision;
(2) a case in which one of the courts of appeals holds differently from a prior decision of another court of appeals or of the supreme court on a question of law material to a decision of the case;
(3) a case involving the construction or validity of a statute necessary to a determination of the case;
(4) a case involving state revenue;
(5) a case in which the railroad commission is a party; and
(6) any other case in which it appears that an error of law has been committed by the court of appeals, and that error is of such importance to the jurisprudence of the state that, in the opinion of the supreme court, it requires correction, but excluding those cases in which the jurisdiction of the court of appeals is made final by statute.
(b) A case over which the court has jurisdiction under Subsection (a) may be carried to the supreme court either by writ of error or by certificate from the court of appeals, but the court of appeals may certify a question of law arising in any of those cases at any time it chooses, either before or after the decision of the case in that court.
(c) An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state. It is the duty of the supreme court to prescribe the necessary rules of procedure to be followed in perfecting the appeal.
(d) The supreme court has the power, on affidavit or otherwise, as the court may determine, to ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction.
(e) For purposes of Subsection (a)(2), one court holds differently from another when there is inconsistency in their respective decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.
Texas Family Code §161.001
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;
(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;
(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
(F) failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition;
(G) abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot be ascertained by the exercise of reasonable diligence;
(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;
(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261;
(J) been the major cause of:
(i) the failure of the child to be enrolled in school as required by the Education Code; or
(ii) the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;
(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
(i) Section 19.02 (murder);
(ii) Section 19.03 (capital murder);
(iii) Section 19.04 (manslaughter)
(iv) Section 21.11 (indecency with a child);
(v) Section 22.01 (assault);
(vi) Section 22.011 (sexual assault);
(vii) Section 22.02 (aggravated assault);
(viii) Section 22.021 (aggravated sexual assault);
(ix) Section 22.04 (injury to a child, elderly individual, or disabled individual);
(x) Section 22.041 (abandoning or endangering child);
(xi) Section 25.02 (prohibited sexual conduct);
(xii) Section 43.25 (sexual performance by a child); and
(xiii) Section 43.26 (possession or promotion of child pornography);
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
(i) the department or authorized agency has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child;
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
(Q) knowingly engaged in criminal conduct that has resulted in the parent's:
(i) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;
(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by Section 261.001;
(S) voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child; or
(T) been convicted of the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code; and
(2) that termination is in the best interest of the child.
Texas Probate Code §875(a)
If a court is presented with substantial evidence that a person may be a minor or other incapacitated person, and the court has probable cause to believe that the person or person's estate, or both, requires the immediate appointment of a guardian, the court shall appoint a temporary guardian with limited powers as the circumstances of the case require.