In the Interest of I.T. and E.T., Children v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00123-CV

In the Interest of I.T. and E.T., Children

On appeal from the
472nd District Court of Brazos County, Texas
Judge George J. Wise, presiding
Trial Court Cause No. 23-003312-CV-472

JUSTICE SMITH delivered the opinion of the Court.

MEMORANDUM OPINION

In its sole issue on appeal, the Department of Family and Protective

Services contends that the trial court abused its discretion by ordering the

Department to pay attorney’s fees and mediation fees for failing to mediate in

good faith. We reverse.

Background

The Department removed I.T. and E.T. after one of the children was

hospitalized for possible non-accidental injuries. The paternal grandmother

was suggested as a potential placement for the children. The record reflects

that the Department was awaiting a report from its medical expert narrowing

down the timeframe in which the child sustained the injuries before potentially
“ruling out” the grandmother as the perpetrator and considering her as a

placement.

In October of 2024, with the one-year dismissal deadline approaching,

the parties (excluding the Department) filed joint motions to extend the

dismissal date and to attend mediation. The associate judge took up the

motions on October 18th. Counsel for the Department informed the associate

judge that “while the Department is not taking termination off the table” it

was “open to considering something short of termination” and would “continue

to review the grandmother and any additional relatives that are provided.”

The associate judge signed the Order for Mediation and extended the dismissal

deadline.

Mediation occurred on January 16th, at which time the record reflects

that the Department still had not received a written report from its medical

expert to potentially rule out the grandmother.

A few days after mediation, each parent filed a Motion for Sanctions

against the Department, claiming that the Department made “groundless” and

“bad faith” statements when it agreed to attend mediation because it “had no

intention to propose a resolution other than termination of the parents’ rights.”

On February 3rd, the Department received the medical expert’s written

report.

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On February 12th, the associate judge heard evidence on the motions for

sanctions as well as a motion to place the children with the grandmother. The

Department explained that based on the medical expert’s findings, it no longer

opposed placing the children with the grandmother. Regarding the motions

for sanctions, Father’s attorney summarized the parents’ position that the

Department should be sanctioned because “there was no attempt at mediation

to come in to negotiate at all,” and that “there was no realistic movement for

our clients […] to enter into an agreement that involved termination, and that

was the only request.”

After the associate judge pointed out that the Department agreed to

attend the mediation, the following exchange occurred:

The Court: By definition, if not objecting to mediation, in its
entirety, means that you will go in good faith, correct?

[The Department]: Your Honor, it was agreed as to four of the sides
of the people. Yes, we agreed to go to mediation, but could not --

The Court: If you go to mediation, is that not, by definition, the
intent to negotiate in good faith?

[The Department]: Yes, Your Honor.

The Court: Okay.

[The Department]: I believe the Department did.

The Court: How many offers, other than -- as [Father’s counsel]
put it, “your best day in court” with termination, how many offers,
other than accepting termination, were -- were forwarded by the

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Department? I don’t want to know what they are. I want to know
how many other offers were made.

[The Department]: The Department had also offered a different
resolution, if they -- if the parents were to provide someone who
could be approved, ruled out as a perpetrator of abuse to the
children.

The Court: So nothing other than they’re going to get terminated?

[The Department]: No. It would not -- it would have been short of
termination if somebody could’ve been offered at the time that we
knew could have been ruled out.

The Court: At that time.

[The Department]: At that time --

The Court: Okay.

[The Department]: -- we did not know that [the grandmother] could
be ruled out, Judge. It was after that mediation that [Father’s
counsel] requested the written report from the medical experts.

The Court: It’s y’all’s medical expert, correct?

[The Department]: Yes.

The Court: And y’all could have run that trap without [Father’s
counsel] asking for it; true?

[The Department]: Your Honor, and I did. It -- it was --

The Court: Hang on. Hang on. Y’all could have run that trap and
had that information available to you before mediation because
you knew when mediation was going to happen, correct?

[The Department]: We did.

The Court: Okay. All right.

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[The Department]: There were two --

The Court: All right. All right.

[The Department]: And at that discussion, and we announced that
in court at the different settings back in November, as well as in
December, that, at that time, with the medical experts discussions
were was [sic] that --

The Court: I --

[The Department]: Ms. --

The Court: I -- I can’t get into the discussions or [sic] the
negotiations are. How many things, other than termination, did
the Department forward at mediation? A number. Not what they
were. A number.

[The Department]: Two.

The Court: Okay.

[The Department]: And, Your Honor, the Department did attempt
to negotiate, and we could not --

The Court: Hang on. I don’t want to -- I don’t -- I don’t want to -- I
cannot let you talk about what was -- what was -- I got [Father’s
Counsel] saying only termination. You’re saying there were two
other offers. I do not have in my file a Mediator’s Statement from
[the mediator].

[Father’s Counsel]: Correct, Judge.

The Court: So I need a Mediator’s Statement from [the mediator]
as to her position because she’s going to be the one that’s in the
best position, as an objective third-party mediator, to determine
whether or not mediation was in good faith or was not in good faith.
So I am going to recess this hearing to get that information from
[the mediator]. It needs to be filed today. It needs to be filed before

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we come back, which will be -- actually, we’re going to take a real
quick recess. It’s 11:00. We’re going to recess for 15 minutes, come
back in 15 minutes, and you’re going to let me know what time [the
mediator] can get that filed.

[The Department]: Your Honor, may I please just make one more
statement?

The Court: Sure.

[The Department]: Your Honor, on October 18th, when the Court
entertained, everybody but the Department’s, Motion for
Mediation, the Court report -- told the parties to consider all
options, even it can’t resolve the case. If it can resolve limit issues.
If it can -- just anything about it. The Department came, not only
to resolve the entirety of the case, but also could we resolve
anything to simplify trial, narrow the issues. The Department
came to mediation in good faith.

The Court: [The mediator] is the one that’s going to make that
determination. I need to know when she can get that filed.

The associate judge briefly recessed the hearing. Upon return, a copy of the

filed Mediator’s Statement was offered by Father’s counsel into evidence. All

parties affirmatively voiced “no objection” to the exhibit. The Mediator’s

Statement says:

I was asked to mediate [the underlying case] and arranged for
mediation to take place at my office on January 16, 2025. All
parties appeared for mediation. All parties appeared with counsel
at the opening of mediation and I asked for announcement of
positions. I believe the parents and CASA appeared and were
willing to mediate in good faith. I do not believe the Department
mediated in good faith.

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The associate judge then questioned the parties regarding the duration

of mediation. The Department claimed that mediation lasted an hour and a

half, while Father’s attorney and the attorney ad litem believed less time was

spent “actually actively engaged in” mediation.

The Department reminded the trial court that it could not require the

parties to reach an agreement at mediation and re-urged that the Department

approached mediation in good faith by acting on evidence available at the time.

The associate judge stated:

The fact that an impasse was called at an hour and a half, or less,
at a maximum of an hour and a half, is material to my finding
based on [the mediator’s] letter. That the -- that the Department
is believed, by [the mediator], not to have mediated in good faith.

The associate judge took the motions for sanctions under advisement.

On February 20th, the associate judge verbally pronounced her ruling on

the motions for sanctions. She ordered the Department to pay $150 to Brazos

County for Father’s court-appointed attorney’s time spent at the mediation,

$200 to Mother as reimbursement for her mediation fee, and $600 to Mother’s

retained attorney for his time spent at the mediation.

A written “Order for Costs of Court” addressed Father’s court-appointed

attorney’s fees. This order assessed the $150 in attorney’s fees as court costs

against the Department, finding as “good cause” that the Department never

objected to the mediation referral yet did not “participate in good faith” at the

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mediation. The associate judge signed the Order for Costs of Court on

February 27th. A written “Order for Sanctions” addressed Mother’s $600

attorney’s fees and $200 mediation fee, assessing both as “sanctions” against

the Department for failure to “attend mediation in good faith.” The record does

not indicate that the associate judge signed the proposed Order for Sanctions.

The Department timely filed a request for de novo hearing, and the

associate judge sua sponte filed written findings of fact and conclusion of law.

The de novo hearing consisted of arguments of counsel, with no new

evidence offered for the referring court’s consideration. The referring court

explained that the transcript from the hearing on October 18th was going to be

instrumental to his determination. He stated, “[T]he fact of the matter is if

you’re going to go to mediation, you have to be able to enter into a mediation

in good faith. If you can’t, that’s fine; but don’t go to mediation.” The referring

court deferred his ruling until he could review the relevant reporter’s record.

On April 1st, the referring court signed an “Amended Order on

Department’s Request for De Novo Hearing,” which denied the Department’s

request for relief and “affirmed the trial court’s findings.” On April 11th, the

referring court signed the proposed Order for Sanctions, which expressly

grants Mother’s Motion for Sanctions, includes a finding that “good cause

exists to support an order for sanctions” against the Department for failure to

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attend mediation in good faith, and assesses the $600 attorney’s fees for

Mother’s attorney’s time spent at the mediation and the $200 mediation fee

paid by Mother. This appeal followed.

Discussion

On appeal, both parties analyze the Order for Sanctions and the Order

for Costs of Court under the law applicable to inherent-authority sanctions;

however, they also evaluate the Order for Costs of Court under Rule 141 of the

Texas Rules of Civil Procedure as an assessment of court costs for “good cause.”

See Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704 (Tex. 2020); TEX. R.

CIV. P. 141.

The Department argues that the orders improperly penalize the

Department for not mediating in good faith and contends that the evidence is

insufficient to support a finding of “bad faith” for inherent-authority sanctions

or “good cause” for the assessment of court costs. Father argues that the policy

underlying alternative dispute resolution procedures “assumes good faith

participation in the process,” and that “[a]llowing a party to appear

unprepared, rigid in position, and resistant to the spirit of ADR – yet immune

from even limited cost consequences– would undermine the purpose of court-

ordered mediation.” We agree with the Department.

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STANDARD OF REVIEW

We review a trial court’s assessment of sanctions for an abuse of

discretion. Brewer, 601 S.W.3d at 717. A trial court abuses its discretion when

it acts without reference to any guiding rules or principles, or if it bases its

order on an incorrect view of the law or a clearly erroneous assessment of the

evidence. Id.; Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 276 (Tex.

App.—Houston [14th Dist.] 2000, pet. denied). While we view conflicting

evidence favorably to the court's decision, we are not bound by the court's

findings of fact or conclusions of law. Brewer, 601 S.W.3d at 717. We

independently review the entire record to determine whether the trial court

abused its discretion. Id.

We also review a trial court’s assessment of court costs for “good cause”

for an abuse of discretion. See TEX. R. CIV. P. 141; Furr’s Supermarkets, Inc. v.

Bethune, 53 S.W.3d 375, 376 (Tex. 2001).

RELEVANT LAW

Courts have a statutory duty to encourage the peaceable resolution of

disputes, particularly those affecting the parent-child relationship. TEX. CIV.

PRAC. & REM. CODE ANN. §§ 154.002, 154.003. As such, the ADR Act

authorizes courts to refer a pending dispute to an alternative dispute

resolution procedure, such as mediation. Id. at § 154.021. Any party may,

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within ten days after receiving notice that the court has referred the dispute

to mediation, object in writing to the referral. Id. at § 154.022(b). The court

may not refer the dispute if it finds that there is a reasonable basis for the

objection. Id. at § 154.022(c).

Trial courts have the authority to penalize a party for failure to attend

court-ordered mediation. See Decker v. Lindsay, 824 S.W.2d 247, 250 (Tex.

App.—Houston [1st Dist.] 1992, orig. proceeding). However, a trial court

cannot compel parties to negotiate in good faith at the mediation. In re

Acceptance Ins. Co., 33 S.W.3d 443, 451-52 (Tex. App.—Fort Worth 2000, orig.

proceeding); Avary v. Bank of America, 72 S.W.3d 779, 797 (Tex. App.—Dallas

2002, pet. denied). In other words, a court “can compel [the parties] to sit down

with each other,” but it “cannot force the disputants to peaceably resolve their

differences.” Decker, 824 S.W.2d at 250. The mediator, as an impartial third-

party facilitator, is also not allowed to “compel the parties to mediate

(negotiate) or coerce the parties to enter into a settlement agreement.” Id. at

250-51; TEX. CIV. PRAC. & REM. CODE ANN. § 154.053(a). Therefore:

[T]he policy of section 154.002 is consistent with a scheme where
a court refers a dispute to an ADR procedure, requiring the parties
to come together in court-ordered ADR procedures, but no one can
compel the parties to negotiate or settle a dispute unless they
voluntarily and mutually agree to do so. Any inconsistencies in
chapter 154 can be resolved to give effect to a dominant legislative
intent to compel referral, but not resolution.

In the Interest of I.T. and E.T., Children Page 11
Decker, 824 S.W.2d at 251.

With limited exceptions, any communication made by a participant

during the mediation that relates to the subject matter of the dispute is

confidential, is not subject to disclosure, and may not be used as evidence

against the participant in any judicial proceeding. TEX. CIV. PRAC. & REM.

CODE ANN. § 154.073. Even the manner in which the participants negotiate in

mediation should not be disclosed to the trial court. Tex. Parks & Wildlife

Dep’t. v. Davis, 988 S.W.2d 370, 375 (Tex. App.—Austin 1999, no pet.).

Further, neither the participants nor the third party facilitating the mediation

may be required to testify in any proceedings relating to or arising out of the

matter in dispute. TEX. CIV. PRAC. & REM. CODE ANN. § 154.073(b).

ANALYSIS

As a preliminary matter, we must address the Department’s argument

that the associate judge abused its discretion by soliciting the Mediator’s

Statement for use as evidence against the Department at the sanctions

hearing. Despite the ADR Act’s extensive confidentiality provisions, parties

may agree to disclose otherwise confidential information regarding matters

that occurred during the settlement process. Id. at § 154.053(c). Rather than

objecting to the parents’ accusations and the associate judge’s questioning

about what occurred during mediation, the Department answered questions

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and attempted to offer its own evidence. Further, though we question the

propriety of the associate judge’s decision to solicit the Mediator’s Statement1,

the Department affirmatively voiced “no objection” to its admission into

evidence. The Department has therefore failed to preserve its complaint about

the Mediator’s Statement for review. See TEX. R. APP. P. 33.1.

Sanctions

Trial courts possess inherent authority to sanction parties for an abuse

of the judicial process that may not be covered by any specific rule or statute.2

Brewer, 601 S.W.3d at 718. However, that authority is not limitless. Here, the

Order for Costs of Court penalizes the Department for failure to “participate

in good faith at mediation.” The Order for Sanctions penalizes the

Department’s failure to “attend mediation in good faith.” Father claims that

these sanctions are predicated on the Department’s failure to “engage

meaningfully in the court-ordered process.” Despite their creative phrasing,

these are improper sanctions for failure to negotiate in good faith.

1 See In re Acceptance Ins. Co., 33 S.W.3d at 451 (stating that the trial court had no authority to

investigate whether the relator mediated in good faith). The associate judge’s inquiry into the manner
in which the Department negotiated and how many offers the Department made during mediation
also violated the associate judge’s own Order for Mediation. The Order for Mediation expressly stated
that “the Court will be advised by the mediator, the parties, and counsel only that the case did or did
not settle” and that the mediator “shall not be a witness.”

2 Both parties agree, and the record supports, that these sanctions were not imposed pursuant to any

rule or statute authorizing sanctions in this instance; rather, the court imposed these sanctions
pursuant to its inherent authority.

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The very basis of the parents’ request for sanctions was that the

Department did not “attempt at mediation to come in to negotiate” and offered

“no realistic movement” from termination. At the sanctions hearing, the

associate judge emphasized that the Department implied an “intent to

negotiate in good faith” by agreeing to attend mediation and then questioned

the quality of the Department’s substantive negotiation efforts at mediation by

scrutinizing the number of offers advanced by the Department and how long it

tried to negotiate.

While the ADR Act requires trial courts to encourage alternative dispute

resolution, it does not invite post-procedure policing of parties’ negotiation

efforts or evaluation of the caliber of their participation and engagement in the

process. Such a notion does not comport with the voluntary nature of ADR

procedures or the ADR Act’s confidentiality protections.

Further, “invocation of the court’s inherent power to sanction

necessitates a finding of bad faith.” Id. The Texas Supreme Court explained:

Bad faith is not just intentional conduct but intent to engage in
conduct for an impermissible reason, willful noncompliance, or
willful ignorance of the facts. “Bad faith” includes “conscious doing
of a wrong for a dishonest, discriminatory, or malicious purpose.”
Errors in judgment, lack of diligence, unreasonableness,
negligence, or even gross negligence—without more—do not
equate to bad faith. Improper motive, not perfection, is the
touchstone. Bad faith can be established with direct or
circumstantial evidence, but absent direct evidence, the record
must reasonably give rise to an inference of intent or willfulness.

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Id. at 718-19. When the record contains no evidence that the sanctioned party

acted in bad faith, the sanctions order is an abuse of discretion. See Guerra v.

L&F Distribs., LLC, 521 S.W.3d 878, 890 (Tex. App.—San Antonio 2017, no

pet.).

Here, while the associate judge and the referring court found a lack of

“good faith,” neither judge found that the Department acted in “bad faith.”

Father argues that the record supports a finding of bad faith because the

Department appeared “unprepared, took rigid positions, and failed to engage

meaningfully in the process” of mediation. These actions, he argues,

demonstrate bad faith as willful noncompliance with “the Court’s order to

participate in mediation in good faith.”

However, maintaining a rigid position at mediation does not

demonstrate willful noncompliance with the court’s Order for Mediation

because the order did not – and could not – require good faith negotiation. See

In re Acceptance Ins. Co., 33 S.W.3d at 451-52.3 Further, the associate judge

expressed frustration at the Department’s lack of diligence in obtaining its

medical expert report prior to mediation. Brewer, 601 S.W.3d at 718. However,

“[t]he issue of preparedness relates to whether a party mediated in good faith,”

3 The Order for Mediation designated how the mediation fees would be paid and required the parties

to be present during the entire mediation process, supply any information requested by the mediator,
and follow any mediation rules imposed by the mediator.

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which we have already explained is an inappropriate basis for sanctions. In re

Acceptance Ins. Co., 33 S.W.3d at 452. Finally, while the law provides that a

party may file a written objection to a court’s mediation referral, there is

nothing in the record indicating that the Department was aware within the

ten-day objection period that it would not have its expert’s report in time for

mediation or that mediation would otherwise be a fruitless or objectionable

exercise. See Decker, 824 S.W.2d at 249 (noting that “[m]ediation may be

beneficial even if relators believe it will not resolve the lawsuit”). Regardless,

the record does not reflect any improper motive behind the Department’s

failure to object to mediation.

We find no direct or circumstantial evidence in the record demonstrating

that the Department was motivated by a “dishonest, discriminatory, or

malicious purpose,” willfully failed to comply with the trial court’s permissible

directives, or otherwise exhibited the requisite bad faith to support the

sanctions orders. Brewer, 601 S.W.3d at 718.

Court Costs for “Good Cause”

The Texas Supreme Court has described "good cause" as an elusive

concept that varies from case to case, but it generally involves conduct that

unnecessarily prolonged proceedings, unreasonably increased costs, or

otherwise warrants penalization. Furr’s, 53 S.W.3d at 376-77. The “good

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cause” stated in the written Order for Costs of Court is that the Department

did not object to the mediation referral and did not participate in good faith at

mediation.

Father relies on Texas Department of Transportation v. Pirtle for the

proposition that it is not an abuse of discretion for a trial court to assess

attorney’s fees and mediator’s fees against a party as costs of court when that

party does not file a written objection to a court’s mediation referral but

nevertheless refuses to mediate in good faith. Tex. Dep’t. Trans. v. Pirtle, 977

S.W.2d 657, 658 (Tex. App.—Fort Worth 1998, pet. denied).

The facts of Pirtle are distinguishable. In Pirtle, the Department of

Transportation “pretty much told [the court] from the beginning they weren't

going to mediate” based on a company policy prohibiting settlement of disputed

liability cases. Id. at 658. The Department of Transportation did not object to

the referral but refused to participate in the mediation. Id. Here, as noted

above, there is nothing in the record indicating that the Department was

similarly aware that mediation would be unfruitful or objectionable. The

record reflects that the Department appeared at mediation, made at least one

offer, and remained at mediation until the mediator called an impasse.

Applying Pirtle’s reasoning to the facts of this case would produce an absurd

result. If a trial court abuses its discretion by ordering a party to negotiate in

In the Interest of I.T. and E.T., Children Page 17
good faith or sanctioning a party for failing to do so, it follows that the trial

court cannot use a party’s failure to negotiate in good faith as “good cause” to

assess costs against them. To hold otherwise would permit courts to

circumvent the prohibition against sanctioning parties for not negotiating in

good faith by simply calling the fee assessment a court cost “for good cause”

instead of a sanction.

Accordingly, we find that the Order for Sanctions and the Order for Costs

of Court were an abuse of discretion and must be reversed.

Conclusion

We sustain the Department’s sole issue on appeal and reverse the Order

for Sanctions and Order for Costs of Court.

STEVE SMITH
Justice

OPINION DELIVERED and FILED: October 2, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Reversed
CV06

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