In Interest of S.M.

Full title: IN THE INTEREST OF S.M., I.T., and J.D.T., Children

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jun 10, 2009

No. 04-08-00340-CV (Tex. App. Jun. 10, 2009)

Opinion

No. 04-08-00340-CV

Delivered and Filed: June 10, 2009.

Appealed from the 79^th Judicial District Court, Jim Wells County, Texas, Trial Court No. 06-10-45136, Honorable Ricardo H. Garcia, Judge Presiding.

Affirmed in Part; Reversed and Remanded in Part.

Sitting: ALMA L. LOPEZ, Retired Chief Justice¹, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.

1 Chief Justice Lépez (Retired), not participating.

MEMORANDUM OPINION

PER CURIAM.

L.S.M. appeals the trial court's final order appointing the Texas Department of Family and Protective Services as managing conservator of L.S.M.'s three children without terminating L.S.M.'s parental rights. In a prior opinion, we addressed the trial court's order finding that L.S.M. is not indigent and that her appeal from the trial court's order would be frivolous. See In re S.M., No. 04-08-00340-CV, 2008 WL 5423138 (Tex.App. Dec. 31, 2009, order). We reversed the portion of the trial court's order finding that an appeal of the issue relating to the trial court's failure to appoint L.S.M. as possessory conservator would be frivolous, and we affirmed the remainder of the trial court's order. Id. We ordered L.S.M. to file a brief on the merits of the issue relating to the trial court's failure to appoint L.S.M. as possessory conservator. See id. After L.S.M. filed her brief addressing the merits of that issue, we granted the parties agreed motion to abate the appeal to enable the parties to mediate and ordered the parties to file a written status report no later than May 26, 2009. On May 18, 2009, the Department filed written notice that the mediation was not successful. Accordingly, we reinstate the appeal on this court's docket.

Based on its review of the record and authority in this cause, the Department concedes "that it was clearly the intention of the trial judge to appoint [L.S.M.] as permanent possessory conservator of the subject children." Accordingly, the Department requests that this court reverse the portion of the trial court's order "denying or omitting the appointment of [L.S.M.] as permanent possessory conservator of the children and remand this case for further proceedings to determine [L.S.M.'s] possessory rights."

In light of our discussion of this issue in our prior opinion, see In re S.M., 2008 WL 5423138, at *2, and in view of the Department's concession, we reverse the portion of the trial court's order omitting the appointment of L.S.M. as permanent possessory conservator. See also Tex. Fam. Code Ann. § 153.191 (Vernon 2008). The remainder of the trial court's order is affirmed. The cause is remanded for further proceedings. Costs of the appeal are taxed against the Department.