in Re Kimberly Marks

ACCEPTED 01-15-00087-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/11/2015 11:31:03 AM CHRISTOPHER PRINE CLERK

No. 01-15-00087-CV

______________ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS IN THE 3/11/2015 11:31:03 AM COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE Clerk FIRST DISTRICT OF TEXAS at Houston ______________

IN RE KIMBERLY MARKS Relator _________________

th Original Proceeding from the 310 Judicial District Court Harris County, Texas Cause No. 2013-73339

RELATOR’S OBJECTION TO EXHIBIT MR-2

Steven D. Poock State Bar Number 00794473 P.O. Box 984 Sugar Land, Texas 77487 Tel. (281) 277-7678 Fax (281) 277-7679 spoock@juno.com

Attorney for Relator, KIMBERLY MARKS

No. 01-15-00087-CV

KIMBERLY MARKS § IN THE FIRST Relator § § COURT OF APPEALS v. § § HOUSTON, TEXAS THE DEPARTMENT OF FAMILY & § PROTECTIVE SERVICES § Real Party in Interest §

RELATOR’S OBJECTION TO EXHIBIT MR-2 TO THE HONORABLE JUSTICE OF SAID COURT:

Relator Kimberly Marks Objects to the Department’s Exhibit MR-2, and in support of said motion shows:

1. Kimberly Marks objects to Exhibit MR-2 attached to First Supplemental Mandamus Record of Real Party in Interest1.

2. Exhibit MR-2 was not served on Kimberly Marks, was never served,

presented or made available to Counsel, was never offered as evidence, and was never admitted as evidence. Moreover, an affidavit cannot be cross-examined, and counsel had no opportunity to develop any counter-evidence as the affidavit does not appear on the court’s website, it was not available to counsel, and it was not offered at the hearing. Counsel for Kimberly Marks was completely unaware of the affidavit until it was filed with the appellate court.

1 The First Supplemental Mandamus Record of Real Party in Interest was the initial Record filed by the Department.

3. Assuming the Department received an anonymous complaint, the proper response, as detailed in Marks’ brief, is to afford Kimberly Marks her constitutionally protected rights by first conducting an investigation (Chapter 261), then filing a SAPCR (Chapter 262), obtaining a judicial finding of abuse or neglect, and then, upon a finding of abuse or neglect, it would be appropriate for the Department to move the court for Kimberly Marks to engage in child welfare services (Chapter 264). In the present case, Kimberly Marks was dispossessed of her right to request a jury, was not afforded a full adversarial hearing with 45 days notice, and the Department never obtained a finding of abuse or neglect. Instead, with seven days notice, virtually no evidence, and nearly no process, Relator lost her freedom and many of her constitutional rights, and was subjected to invasive testing and being held in the courtroom against her will.

4. The right to forty-five days notice of trial is a constitutionally protected right:

Rule 245 of the rules of civil procedure provides that a court may on its own motion set a contested case for first setting for trial, with reasonable notice to the parties of not less than forty-five days. See Tex.R.Civ.P. 245. This notice is mandatory and involves the constitutionally protected right of due process. See Transoceanic Shipping Co.. Inc. v. Gen'l Universal Sys., Inc., 961 S.W.2d 418, 420 n. 2 (Tex.App.-Houston [1st Dist.] 1997, no writ). Burress v. Richardson, 97 S.W.3d 806 (Tex.App.- Dallas 2003, no pet.)

PRAYER

For the reasons listed above, Relator respectfully requests this Court to SUSTAIN Relator’s objection to the Department’s Exhibit MR-2.

Respectfully Submitted,

/s/ Steven Poock ___________________ Steven Poock P.O. Box 984 Sugar Land, Texas 77487 State Bar No. 00794473 spoock@juno.com (281) 242-9700 Telephone (281) 242-8340 Facsimile

/s/ Tom Sanders ___________________ Tom Sanders P.O. Box 1860 Sugar Land, Texas 77487 State Bar No. 17609900 Tcsanders76@yahoo.com (281) 242-9700 Telephone (281) 242-8340 Facsimile

ATTORNEYS FOR RELATOR KIMBERLY MARKS

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been served on the parties listed below on this the 11th day of March, 2015.

/s/ Steven Poock _______________________ Steven Poock

Respondent: The Honorable Judge Lisa Millard Presiding Judge of the 310th Judicial District Court 201 Caroline, 13th Floor Houston, TX 77002

Real Party in Interest: Damon Wayne Marks 1008 Railroad Thornton, TX 76687

Real Party in Interest: Department of Family and Protective Services Counsel Sandra Hachem Sr. Assistant County Attorney State Bar No. 08667060 1019 Congress, 17th Floor Houston, Texas 77002 Sandra.Hachem@cao.hctx.net (713) 274.5293 (telephone) (713) 437.4700 (facsimile)