Opinion
No. 10-20-00336-CV
04-14-2021
In the INTEREST OF A.W. a/k/a A.R.W., a Child
Lori J. Kaspar, Attorney at Law, Granbury, for Appellant/Relator. Natalie Cobb Koehler, County Attorney for Bosque County, Meridian, Rebecca L. Safavi, Office of General Counsel, Dept. of Fam. & Prot. Services, Austin, for Appellee/Respondent. Matthew G. Wright, Diaz & Wright PLLC, Rosebud, for Real Party in Interest. Barrett Thomas, Blanchard & Thomas LLP, Woodway, for Intervenor.
Lori J. Kaspar, Attorney at Law, Granbury, for Appellant/Relator.
Natalie Cobb Koehler, County Attorney for Bosque County, Meridian, Rebecca L. Safavi, Office of General Counsel, Dept. of Fam. & Prot. Services, Austin, for Appellee/Respondent.
Matthew G. Wright, Diaz & Wright PLLC, Rosebud, for Real Party in Interest.
Barrett Thomas, Blanchard & Thomas LLP, Woodway, for Intervenor.
Before Chief Justice Gray, Justice Neill, and Justice Johnson
MATT JOHNSON, Justice
In one issue, Appellant (Mother) appeals the termination of her parental rights to A.W., a/k/a A.R.W. Mother asserts that the trial court's order of termination is void because the trial on the merits occurred after the trial court lost jurisdiction when it failed to make the mandatory findings in its order granting an extension of the trial and dismissal dates. Appellee the Department of Family and Protective Services (the Department) concedes that the trial court erred.
The Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on November 26, 2019. The Department was named A.W.'s temporary managing conservator the same day. The dismissal deadline was November 25, 2020, and the final hearing was scheduled for November 17, 2020. A.W.'s grandmother (Grandmother) filed a Petition in Intervention in Suit Affecting the Parent-Child Relationship on July 8, 2020, requesting that she be named sole managing conservator. The parties entered into an Agreed Order on July 22, 2020 to sever the matter regarding an older child. The older child and his father, who was not the father of A.W., died in an automobile accident while this case was pending.
Mother asserts that the proper dismissal date was December 14, 2020. The trial court continued the trial until December 15, 2020, a date that is beyond the final hearing date as calculated by either Mother or the Department.
On November 23, 2020, the Department filed a Motion to Extend Time for Hearing Pursuant to Family Code § 84.002. The Department based its motion on the COVID pandemic as an extraordinary circumstance and requested the court to extend the dismissal deadline to December 30, 2020. On the same day, without an evidentiary hearing or without a response from 521 any other party, the court entered an order that granted the Department's motion. The order, in its entirety,
On November 23, 2020, the Court considered the Respondent's Motion for Extension, and after reviewing the evidence and hearing the arguments, the Court finds that the Motion should be GRANTED. The case shall be extended until December 30, 2020.
IT IS THEREFORE ORDERED, the Court determines that this suit shall be extended with a Dismissal date of December 30, 2020 in the County Court at Law in Bosque County, Texas. Final Hearing set December 15, 2020 @ 9:00 (via Zoom).
After the final hearing, the court signed the final order of termination terminating the parental rights of Mother and A.W.'s father. The order additionally appointed the Department as A.W.'s permanent managing conservator and appointed Grandmother as A.W.'s possessory managing conservator.
Because this termination suit was filed after September 1, 2017, the current version of § 263.401 of the Texas Family Code applies to this case. TEX. FAM. CODE ANN. § 263.401 ; see also In re A.M. , No. 07-19-00391-CV, 2020 WL 1174579, at *1 (Tex. App.—Amarillo Mar. 11, 2020, no pet.) (mem. op.). In a termination case brought by the Department, if the trial court fails to commence the trial before the statutory deadline, "the court's jurisdiction over the suit ... is terminated and the suit is automatically dismissed without a court order." TEX. FAM. CODE ANN. § 263.401(a) ; see also In re K.S. , No. 13-19-00416-CV, 2021 WL 317656, at *3 n.4 (Tex. App.—Corpus Christi Jan. 28, 2021, no pet.) (mem. op.). The 2017 amendments clarify that the court's failure to commence trial on the merits before the dismissal date, or to grant a continuance in compliance with § 263.401(b) or (b-1), is jurisdictional, meaning that any action taken by the trial court after the deadline date is void. See § 263.401(a) ("Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1) ... the court's jurisdiction over the suit affecting the parent-child relationship filed by the department ... is automatically dismissed without a court order."). "Jurisdiction may be raised for the first time on appeal by the parties or by the appellate court. See Texas Ass'n of Bus. v. Texas Air Control Bd. , 852 S.W.2d 440, 445 (Tex. 1993) ; Aguilar v. Weber , 72 S.W.3d 729, 731 (Tex. App.—Waco 2002, no pet.)." Astin Redevelopment Grp., LLC v. Citgo Petroleum Corp. , No. 10-14-00023-CV, 2014 WL 7232573, at *1 (Tex. App.—Waco Dec. 18, 2014, pet. dism'd) (mem. op.). See also American K-9 Detection Services, LLC v. Freeman , 556 S.W.3d 246, 260 (Tex. 2018) ("Subject matter jurisdiction is an issue that may be raised for the first time on appeal[.]"); In re J.M.G. , 553 S.W.3d 137, 141 (Tex. App.—El Paso 2018, orig. proceeding) ("Subject-matter jurisdiction is never presumed and cannot be waived.... Consequently, it can be raised for the first time on appeal.").
In order to continue the trial past the mandatory dismissal date, the trial court must find "that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child." TEX. FAM. CODE ANN. § 263.401(b). "The court cannot just enter an extension order ... the court must make specific findings to support the extension order." In re Dep't of Family & Protective Servs. , 273 S.W.3d 637, 643 (Tex. 2009) (orig. proceeding) ; see also A.M. , 2020 WL 1174579, at *3 ; In re A.F. , No. 02-19-00117-CV, 2019 WL 4635150, at *9-10 (Tex. App.—Fort Worth Sept. 24, 2019, no pet.). In re Dep't of Family & Protective Servs. deals with a pre-2017 version of § 263.401 ; however, the 2017 amendments did not change the requirements of § 263.401(b) or (b-1) other than to add the word "automatically" before the word "dismissed" in (b)(1) and (b-1)(1).
The trial court's order granting an extension does not include the findings required by § 263.401(b). In fact, the order contains nothing to indicate the basis for extending the final hearing and dismissal dates. Oral findings may be sufficient; however, no evidentiary hearing was held on the Department's motion, and the record does not reflect any oral findings by the trial court. Even assuming an implied finding of "extraordinary circumstances" could be based upon the contents of the Department's motion, there was nothing in that motion or in the record to reflect that an extension was in the best interests of A.W.
The requirements of § 263.401(b) are still applicable even if the deadlines are extended as a result of the COVID pandemic, which is the Department's only basis for requesting an extension. The Twenty-Ninth Emergency Order entered by the Supreme Court in response to the COVID pandemic states that if a case has not yet entered an extension order pursuant to § 263.401, then an extension order entered under COVID provisions must still adhere to the requirements of § 263.401. See Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster , Misc. Docket No. 20-9135.b., ––– S.W.3d ––––, 2020 WL 8881660 (Tex. Nov. 11, 2020). While the Department's motion makes reference to COVID, the trial court's order does not. Because the court's order does not meet the requirements of § 263.401(b), the court's jurisdiction ended on December 14, 2020. The order of termination entered on December 15, 2020 is, therefore, void. See A.F. , 2019 WL 4635150, at *10 (order entered after trial court loses jurisdiction is void).
See https://www.txcourts.gov/media/1450050/209135.pdf.
Although the deadlines outlined in the Family Code are jurisdictional in cases brought by the Department, the same is not true for cases initiated by private parties or for individuals who have intervened in a suit brought by the Department and seek affirmative relief. See In re D.D.M. , 116 S.W.3d 224, 231-32 (Tex. App.—Tyler 2003, no pet.) ; see also In re Fletcher , No. 11-17-00045-CV, 2017 WL 962682, at *2 (Tex. App.—Eastland Mar. 9, 2017, orig. proceeding) (mem. op.). Therefore, the dismissal of the Department's suit does not affect Grandmother's affirmative claims for relief and does nothing to affect Grandmother's possession of A.W. Id.
In light of the foregoing, Mother's sole issue is sustained. We affirm the portion of the trial court's judgment appointing Grandmother possessory conservator of A.W., and we reverse that portion of the trial court's judgment that terminated Mother's parental rights and remand that portion of the cause for further proceedings consistent with this opinion. See TEX. R. APP. P. 43.2(d).
(Chief Justice Gray dissenting with opinion)
DISSENTING OPINION
TOM GRAY, Chief Justice
After significant judicial procedures, this child had the assurance of a different future. This child now must start over because magic words were not included in an extension order. I view the law, and therefore the result somewhat differently. I respectfully but vigorously dissent.
I have no quarrel with the Court's recitation of the procedural facts. The bottom line is that if the trial court's extension order is valid, the trial court had jurisdiction to conduct the trial that resulted in the termination of the parental rights of both parents. If the extension order was invalid, the mother argues that the proceeding was automatically dismissed the day before the trial and that the trial was a nullity. If the mother is correct, the termination of the father's parental rights as a result of the same trial is also a nullity even though he did not file a notice of appeal.
The argument of the mother is that the extension order was defective on its face. Specifically, the mother argues that the order was defective because it does not contain the findings regarding extraordinary circumstances and the best interest of the child which she argues the trial court is required to expressly set forth in the extension order. The mother does not complain that the trial court did not timely render an extension order, rather, she argues that it does not contain everything that it should, that it does not contain the magic words to make it effective.
The Family Code describes what has to be in an order that grants an extension of the one-year deadline to complete a case in which the State seeks to terminate the parental rights to a child. Specifically, Section 263.401 of the Family Code provides in relevant part:
If the court makes those findings, the court may retain the suit on the court's docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court's docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).
TEX. FAM. CODE ANN. § 263.401.
However, the mother is not contending that the order is defective for not containing these elements. Rather, the mother is complaining that the order does not contain the court's findings necessary to make the order, and that is the defect in the order that the Court holds requires the automatic dismissal pursuant to the statute. But, while the statute specifies the findings required to be made by the trial court to render the extension order, nowhere does the statute require that the findings have to be made within the order. I have found nothing to require that the findings, or for that matter the trial court's extension order, be made in writing, much less that the finding must be made within the four corners of a written order granting the extension as argued by the mother, conceded by the department, and as now held by this Court.
Family Code Section 263.401(b) does specify that to render an order which extends the dismissal date, the trial court must make certain findings. Specifically, the statute provides:
[T]he court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship
of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.
TEX. FAM. CODE ANN. § 263.401(b).
It is thus undisputed that to render a valid extension order, the trial court must make the following two findings: (1) That extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department; and (2) that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.
The record before this court does not appear to contain a written expression of either of these findings. The statute, however, does not specify how these findings must be documented, if at all. While some courts have suggested that the findings are required to be in the order and in writing, those opinions do not turn on such a determination. Moreover, this Court has held that an oral finding is adequate and relied upon a case that held that the statute does not require a written extension order and that an oral rendition is sufficient. See In the Interest of C.L.B. , No. 10-13-00203-CV, 2014 Tex. App. LEXIS 1924 at *25, 2014 WL 702798 at *8 (Tex. App.—Waco Feb. 20, 2014, no pet.) (mem. op.), see also In the Interest of J.G.K. , No. 02-10-00188-CV, 2011 Tex. App. LEXIS 4836 at *105, 2011 WL 2518800 at *35 (Tex. App.—Fort Worth June 23, 2011, no pet.) (mem. op.). The Twelfth Court of Appeals in Tyler has expressly held that the extension order need not be in writing, but ultimately that discussion was not necessary to support its disposition of that appeal. In the Interest of D.D.M. , 116 S.W.3d 224 (Tex. App.—Tyler 2003, no pet.). Additionally, in this proceeding, although the mother knew of the alleged defect in the extension order for 21 days after the order was signed extending the dismissal date and before the end of the original one-year period which ended the day before the trial was conducted, she never objected to the trial court about the absence of what she contends is a defect in the extension order on appeal.
As further support for the fact that we should not hold that the required findings have to be in a written order, we note that the legislature knows how to make such a requirement and did not do so here. For example, in Family Code section 154.130(b), the legislature has spelled out with precision the findings that are required to be included in a child support judgment that deviates from the percentage guidelines under Section 154.125 or 154.129 of the Family Code. See TEX. FAM. CODE ANN. § 154.130(b).
Similarly, in juvenile proceedings which are civil in nature, until very recently it was required to include specific fact findings in an order to transfer the proceeding to adult court or the order was void. See Moon v. State , 451 S.W.3d 28 (Tex. Crim. App. 2014), overruled by Ex parte Thomas , 623 S.W.3d 370, 2021 Tex. Crim. App. LEXIS 274 (Tex. Crim. App. Mar. 31, 2021). However, in Ex Parte Thomas , the Court of Criminal Appeals recognized that the statute that requires the trial court to make specific fact findings does not require those findings to be set out in the written order in order for the transfer order to be valid. See Ex Parte Thomas , 623 S.W.3d 370, 379-80, 2021 Tex. Crim. App. LEXIS 274 at *14.
One other observation may be important to note here. There is the presumption of validity of a trial court's actions that protects the trial court's judgments from subsequent attacks such as this. As an appellate court, we are to presume the validity of an order and that the trial court made any required findings unless and until the appellant shows that the trial court did not, or could not, make the findings required or that the trial court made findings contrary to the required findings. See Sixth RMA Partners, L.P. v. Sibley , 111 S.W.3d 46, 53 (Tex. 2003) ("When neither party requests findings of fact and conclusions of law, it is implied that the trial court made all fact findings necessary to support its judgment."); see also BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002) ; Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990). In essence the findings required are implied until negated by the appellant. This appellant's attack is limited to the argument that the findings are not included in the written extension order. The mother does not complain about the nature of the hearing held or the evidence to support the implied findings.
The mother's entire argument is that the findings have to be included within a written extension order. I do not believe that is a requirement of the statute. Therefore, I would overrule the mother's issue and, because that is the only challenge to the termination order, I would affirm the trial court's judgment. Alternatively, I would hold that the mother's complaint was not preserved due to the failure to timely object to the extension order that was timely rendered, at a time and in a manner that the trial court could have easily cured the argued error by expressly making the findings and including those finding within the order as mother contends on appeal is necessary. Finally, to the extent that the mother raises any other error, I would hold that it is inadequately briefed. See TEX. R. APP. P. 38.1(i).
The mother also posits that the motion for an extension of the dismissal date was inadequate. Such a complaint on appeal clearly comes too late as such a complaint must be made by special exception to the pleadings and obtain a ruling thereon or the complaint is waived. See Tex. R. Civ. P. 90.
Finally, I cannot leave this case without commenting on the Court's holding that the intervenor's pleadings can support the trial and allow for a modification of the judgment that does not terminate the parents' parental rights, but nevertheless appoints the department as permanent managing conservator and the grandmother possessory conservator. First, because the department did not file a notice of appeal, by following the reasoning of a very recent holding of this court, the judgment cannot be modified to grant the department any relief by such a modification of the judgment. See Benner v. Armstrong , No. 10-19-00279-CV, 622 S.W.3d 562, 566-68, 2021 Tex. App. LEXIS 2024 at *10 (Tex. App.—Waco Mar. 17, 2021, no pet. h.). Neither did the intervenor file a notice of appeal to complain of the trial court's failure to grant their only requested relief, which was to be named the managing conservator of the child. Second, how strange is it that the trial was conducted with the department engaged as the party with the burden of proof in the proceeding, presenting and cross-examining witnesses, and making arguments when, based on the Court's holding, they were no longer even a party to the proceeding and did not even have the right to be heard. Thus, although I would not reach this issue if the judgment were affirmed as discussed above, I disagree with the Court's holding that modifies the trial court's judgment by affirming only the appointment of the department as the managing conservator and the intervenor as the possessory conservator.
The petition in intervention did not seek termination of the parents' parental rights but only prayed for the appointment of the intervenor as the managing conservator of the child.
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Conclusion
This is an important case for a number of reasons, but probably none is more important than the whipsawn emotional impact that is the life of this child. But the larger legal importance is the existential threat to having every termination order rendered during an extension period reexamined and held to be void if the extension order did not contain the findings as this court holds today is required even though the statute does not expressly require them. The sanctity of judgments requires more. I respectfully cannot join the Court's opinion and dissent to its judgment for the reasons expressed herein.