Opinion
No. 14-05-01216-CV.
Affirmed and Memorandum Opinion filed January 4, 2007.
On Appeal from 314th District Court Harris County, Texas, Trial Court Cause No. 02-07575J.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
MEMORANDUM OPINION
C.M. appeals the trial court's Order Modifying Order of Termination Pursuant to Judgment of Appellate Court (the "order") on the ground that it fails to comply with this Court's mandate (the "mandate") from the previous appeal in this case because the trial court did not hold further proceedings before entering it. We affirm.
To protect the privacy of the parties in this case, we identify them only by initials. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2002).
In 2002, the Department of Family and Protective Services ("DFPS") removed C.M.'s two children, J.R. and B.R., from her, and sought, as relevant to this appeal, to terminate C.M.'s parental rights and to be appointed sole managing conservator of the two children. In 2004, following trial, the trial court entered an order terminating C.M.'s parental rights and naming DFPS sole managing conservator for both children. In 2005, this Court issued an opinion: (1) reversing the termination of C.M.'s parental rights; (2) neither affirming nor reversing the judgment appointing DFPS conservator (because C.M. did not challenge it on appeal); and (3) remanding the case to the trial court for further proceedings consistent with the opinion. See In re J.R., 171 S.W.3d 558, 579 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Our prior opinion states, in part:
[W]e reverse the trial court's judgment to the extent it terminates [C.M.]'s parental rights as to [J.R.] and [B.R.], and we render judgment in part that the [DFPS] take nothing as to termination of [C.M.]'s parental rights. [C.M.] has not challenged on appeal the trial court's appointment of the [DFPS] as sole managing conservator of [J.R.] and [B.R.], and we do not reverse the trial court's judgment in this regard. We remand the case to the trial court for further proceedings consistent with this opinion.
In re J.R., 171 S.W.3d at 579.
On remand, C.M. filed two motions with the trial court seeking to dismiss the case or to modify the trial court's previous orders to grant her access to the children, both of which motions were denied after hearings. The trial court then entered the order (before our mandate issued), which provides in pertinent part:
IT IS ORDERED that this Court VACATES Section 9 of the "Order of Termination" signed by this court on April 6, 2004, attached herein as Exhibit A, [hereinafter "Order of Termination"] which provides as follows:
9. Termination of Respondent Mother [C.M.]'s PARENTAL RIGHTS
* * *
9.3 IT IS THEREFORE ORDERED that the parent-child relationship between [C.M.] and the children [J.R.] AND [B.R.], the subject of this suit is finally and forever terminated.
IT IS FURTHER ORDERED, that this court modifies its prior "Order of Termination," to deny the request of Department of Family Protective Services to terminate her parental rights, and in this regard, it is ORDERED that this court's "Order of Termination" be modified with the following Section 9, in place of the vacated section, to read as follows:
9. Termination of the parental rights of [C.M.] is hereby DENIED.
IT IS FURTHER ORDERED that no other provisions in the "Order of Termination" are modified by this Order, and, in this regard, the request of [C.M.] to dismiss or modify this court's prior "Order of Termination" on the basis of the Appellate Court's judgment to name her as a joint or sole managing conservator of the children, [J.R.] and [B.R.] is DENIED.
The order thus removed from the previous judgment the portion reversed by this Court, affirmatively denied that relief, and left the remainder of that judgment intact.
C.M.'s sole issue on appeal asserts that the trial court erred in entering the order without holding further proceedings to determine her status as a conservator and her rights, powers and duties, and possession of and access to her children, which she contends was required by the mandate, which provides:
We have inspected the record and find the trial court erred in terminating the parent-child relationship between appellant [C.M.] and her children J.R. and B.R. We therefore order that the portions of the judgment that terminate the parent-child relationship between appellant [C.M.] and her children J.R. and B.R. are REVERSED and RENDER judgment in part that the TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES take nothing as to its request that the parent-child relationship between appellant [C.M.] and her children J.R. and B.R. be terminated. We order that the remainder of the trial court's judgment, except those portions that deal with [the children's father], be severed and REMANDED for further proceedings in accordance with this court's opinion.
C.M. contends that further proceedings were required by our mandate because, otherwise, this Court could have simply rendered the new judgment the trial court ordered, making a remand unnecessary. C.M.'s further argues that, although the issue of managing conservatorship is settled, the issue of her status as a possessory conservator is not, and the trial court's order is not consistent with the statutory requirements regarding parental rights of conservatorship and access.
If a parent is not appointed as a sole or joint managing conservator, he or she must be named a possessory conservator unless the trial court makes a specific finding that such an appointment would not be in the best interest of the child or that parental possession would endanger the child's physical or emotional welfare. TEX. FAM. CODE ANN. § 153.191 (Vernon 2002). In this case, because C.M.'s previous appeal did not overturn the trial court's finding that it would be in the child's best interest that DFPS be appointed managing conservator, this provision would have no application unless and until C.M. obtains a contrary finding.
However, C.M.'s previous appeal did not request any relief beyond reversal of the termination of her parental rights, which she was granted. She did not obtain a reversal of the trial court's conservatorship ruling or its conclusion of law that it would be in the children's best interest that DFPS be appointed sole managing conservator.
Moreover, C.M.'s motions in the trial court on remand did not seek her appointment as a possessory conservator, but only as a sole or joint managing conservator, which relief was in no way suggested by our opinion or mandate. In addition, our record contains no request by C.M. to be appointed a possessory conservator in the proceedings on remand until her motion for new trial.
Because a determination whether C.M. should be appointed possessory conservator (and any corresponding rights and obligations) was not addressed in our prior opinion, it would have required a new evidentiary hearing and ruling. Nothing in our prior opinion or mandate: (1) restrained the trial court from correcting its prior judgment to conform with our decision before holding any further proceedings; or (2) required the trial court to take any other particular further action, or hold any particular further proceedings unless and until initiated by the parties. Because C.M.'s request to be appointed possessory conservator was not raised until after the order was entered, and thus did not demonstrate error as to any matters that were reflected in the order, C.M.'s issue does not establish that the trial court's decision not to address or grant that request before entering the order was improper. Accordingly, it is overruled, and the judgment of the trial court is affirmed.
However, although not a subject of either this appeal or the previous one, the Family Code requires periodic placement review hearings to be conducted as long as the department remains the child's managing conservator. See TEX. FAM. CODE ANN. §§ 263.501(a), 263.503 (Vernon 2002).