Summary
concluding that failure to move for dismissal under § 263.401 forfeited right to object to trial court's failure to dismiss
Summary of this case from In re T.W.Opinion
No. 05-16-01048-CV
02-07-2017
IN THE INTEREST OF K.M., L.M., AND P.M., CHILDREN
On Appeal from the 304th Judicial District Court Dallas County, Texas
Trial Court Cause No. 14-1260-W
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
This is an appeal from a judgment terminating Mother's parental rights to her three children, K.M., L.M., and P.M. In two issues, Mother asserts the trial court erred in failing to dismiss her suit pursuant to section 263.401 of the family code and that she received ineffective assistance of counsel. For the reasons that follow, we conclude that Mother's issues lack merit. Accordingly, we affirm the trial court's judgment.
BACKGROUND
Because Mother does not complain about the legal or factual sufficiency of the evidence to support the trial court's termination decree, we do not present a detailed recitation of the trial evidence.
In November 2014, the Department of Family and Protective Services filed a petition to terminate Mother's rights to her three children alleging, among other things, she was abusing drugs while caring for her children and that the children, ages ten, three, and four, were found unattended in a hotel room in August 2014. On March 19, 2015, the trial court signed a temporary order appointing the Department temporary managing conservator of the children. The trial court also signed a scheduling order setting the case for a jury trial on February 8, 2016 and fixing the dismissal date pursuant to family code section 263.401 for March 21, 2016. On February 2, 2016, the parties filed a joint motion for continuance. The trial was then reset to February 29, 2016. Four days before the new trial date, the Department moved to continue the trial because the father of one of the children was not properly served. The Department also moved to extend the dismissal date. The trial court's docket sheet contains an entry on February 29, indicating Mother moved for a continuance and the Department agreed to the motion; Mother disputes this, asserting she did not file such a motion and no motion appears in our record. Nevertheless, the trial court's docket sheet, under "Settings", indicates a jury trial was set for March 21, 2016, the dismissal date. On that date, the State, mother, and the father of two of the children appeared. The trial court notes indicate that service had not been obtained on the other father and the guardian ad litem was out for surgery. The trial court then "recessed the trial." Ultimately, the trial proceeded on June 27 and 28, 2016. After hearing the evidence and arguments of counsel, the jury terminated Mother's parental rights to all three children. This appeal ensued.
Although the motion appears in the record, there is no written order in the record on the motion.
ANALYSIS
In her first issue, Mother complains about the trial court's failure to dismiss the case pursuant to section 263.401 of the family code. Specifically, she argues the mandatory language of the statute required the trial court to dismiss the case because the trial did not and could not have commenced before the statutory dismissal date and the trial court did not make the requisite findings to retain the case on the docket pursuant to family code section 263.401(b).
Section 263.401 of the family code provides that a Department's lawsuit requesting termination of parental rights must be dismissed on the first Monday after the first anniversary of the date the court rendered the first temporary order naming the Department as temporary managing conservator unless the court has commenced a trial on the merits or granted a one-time extension under subsection (b). TEX. FAM. CODE ANN. § 263.401 (West Supp. 2016). But because section 263.401 is not jurisdictional, the trial court could retain the suit on its docket if Mother waived her right to dismissal by failing to make a timely motion to dismiss or a motion requesting the court to render a final order before the deadline for dismissal. See TEX. FAM. CODE ANN. § 263.402(b) (West 2014); In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 644 (Tex. 2009) (orig. proceeding). The two motions are alternatives for obtaining a dismissal. Id. A party who fails to make such a motion waives the right to object to the trial court's failure to dismiss the suit. § 263.402(b); In re J.A., 109 S.W.3d 869, 872 (Tex. App.—Dallas 2003, pet. denied). Because Mother failed to move for dismissal before the dismissal deadline, her complaint that the trial court erred in failing to dismiss the lawsuit pursuant to section 263.401 is waived. We resolve Mother's first issue against her.
In her second issue, Mother argues her appointed trial counsel was ineffective because the attorney failed to file a timely motion to dismiss pursuant to section 263.401. She specifically asserts that counsel's failure to move for a dismissal on March 21, 2016 "resulted in a jury terminating her parental rights three months later."
To succeed on her ineffective assistance claim, Mother must demonstrate not only that her counsel's performance was deficient, but also show that the claimed deficiency prejudiced her case. See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003). Because Mother's ineffective assistance claim is based on the absence of a motion to dismiss, she must demonstrate that had the motion been filed, the result of the proceeding would have been different but for counsel's unprofessional errors. Id. at 550.
Here, it is undisputed that pursuant to section 263.401, the one-year dismissal date was March 21, 2016. However, section 263.401(b) authorizes the trial court to extend the dismissal date for a period not exceed 180 days or, September 19, 2016, upon making certain statutory findings. § 263.401(b). The record reflects that the Department filed a motion for continuance and a motion to extend the dismissal date on February 25, 2016. Notwithstanding Mother's assertion that she would have been entitled to a mandatory dismissal had counsel filed a dismissal motion on March 21, 2016 or before the trial commenced on June 27, 2016, we note that June 27, 2016 falls within the 180-day period for which the trial court could have granted an extension. The Department's previously filed motion to extend combined with the trial court's recess of the trial date to June 27 suggests that the trial court impliedly granted the Department's extension motion. We note section 263.401(b) does not require the extension order be in writing. See In re B.T., 154 S.W.3d 200, 206 (Tex. App.—Fort Worth 2004, no pet.); see also In re D.D.M., 116 S.W.3d 224, 230 (Tex. App.—Tyler 2003, no pet.) (extension of dismissal deadline announced in open court properly rendered according to the statute). Because Mother has not shown that an extension of the dismissal deadline was not rendered by the trial court, she has failed to show she was prejudiced by her counsel's failure to file a motion to dismiss. We resolve Mother's second issue against her.
Because the 180th day fell on Saturday, September 17, 2016, rule 4 of the Texas Rules of Civil Procedure extended the period to Monday, September 19, 2016. See TEX. R. CIV. P. 4.
We affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE 161048F.P05
JUDGMENT
On Appeal from the 304th Judicial District Court, Dallas County, Texas
Trial Court Cause No. 14-1260-W
Opinion delivered by Justice Evans, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 7th day of February, 2017.