Opinion
NUMBER 13-15-00242-CV
01-22-2016
IN THE INTEREST OF J.S., J.S., AND BABY BOY P., CHILDREN
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
ORDER
Before Chief Justice Valdez and Justices Rodriguez and Benavides
OrderPer Curiam
This is an appeal from the June 19, 2015 final order in a suit affecting the parent-child relationship between appellant J.P. and her children, J.S., J.S., and Baby Boy P.
We will refer to appellant as J.P. and her children as J.S., J.S., and Baby Boy P. See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2015 R.S.) ("On the motion of the parties or on the court's own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only."); see also TEX. R. APP. P. 9.8(b) (providing that in a parental-rights termination case, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member"). M.S. is the father of J.S. and J.S., and L.C. is the father of Baby Boy P. Neither father is a party in this appeal.
In its June 19 order and relevant to this appeal, the trial court found "that appointment of a parent or both parents as managing conservator would not be in the best interest of the [children] because the appointment would significantly impair the child[ren]'s physical health or emotional development." It then ordered that "[b]ased on no objections by respondents[, which included J.P.], [p]ermanent [m]anaging [c]onservatorship of all children to current fictive kin placement, [N.R]. All visitation at her discretion. . . ." Because the trial court's order was unclear as to whether the trial court intended to appoint J.P. possessory conservator of the children and whether it intended the referenced restriction—visitation at N.R.'s discretion—to apply to such possession, on December 15, 2015, we abated the appeal and asked the trial court to clarify its final order in that regard.
We note that the parties refer to N.R. as "grandma" and as "fictive kin." --------
On January 19, 2016, the trial court supplemented the appellate record with a transcript of its hearing on this matter. It also filed a supplemental clerk's record that contained the trial court's order clarifying its final order regarding the issue of possessory conservator. The clarification order follows in relevant part:
1. Orders
1.1 The [c]ourt ORDERED that based on the pleadings, arguments of counsel, and evidence then existing before the [c]ourt on June 19, 2015, it is not in the subject children's best interest for the [r]espondent [p]arents to be awarded possessory conservatorship and in accordance the [c]ourt makes the forgoing findings:
1.1.1. THE COURT FINDS in consideration of [c]hapter 153 of the Texas Family Code that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child;
1.1.2. THE COURT FINDS that the presumption that a parent who is not appointed as a sole or joint managing conservator should be appointed possessory conservator, does not apply in this matter due to the prevailing facts and circumstances before the [c]ourt;
(Emphasis in original.)1.1.3. THE COURT FINDS that the appointment of [J.P.] . . . is not in the best interest of the subject children and that parental possession or access would endanger the physical or emotional welfare of the children; and
1.1.4. THE COURT FINDS the terms of this order denying possession and/or access to the subject children by the [r]espondent [p]arents do not exceed those limitations and/or restrictions that are required to protect the best interest of the children.
Having received the supplemental reporter's record and supplemental clerk's record, we reinstate this appeal. Moreover, in light of the trial court's clarification order, J.P. is ordered to notify this Court within 10 days of the date of this order if she desires to continue her appeal. If J.P. does not wish to continue the appeal, she should file a motion to dismiss within 10 days of the date of this order.
Should J.P. notify us that she wishes to pursue her appeal, the Court believes that rebriefing will be necessary. A new briefing schedule will be set upon such notification.
PER CURIAM Delivered and filed the 22nd day of January, 2016.