Opinion
No. 04-20-00263-CV
08-12-2020
IN RE Wendy LANGFORD and William G. Keiler
MEMORANDUM OPINION
Original Mandamus Proceeding Opinion by: Liza A. Rodriguez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Liza A. Rodriguez, Justice PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND DENIED IN PART
This proceeding arises out of Cause No. 2018-PA-01006, styled In the Interest of J.M.O., a Child, pending in the 57th Judicial District Court, Bexar County, Texas. Associate Judge Richard Garcia and District Court Judge Michael Mery signed the orders at issue in this original proceeding.
Relators, Wendy Langford and William Keiler, filed a joint petition for writ of mandamus complaining of two trial court orders, arguing the trial courts that signed the orders lacked jurisdiction. The real parties in interest, Elizabeth and Eduardo Rodriguez, filed a response. For the reasons stated below, we conditionally grant in part and deny in part the petition.
BACKGROUND
The child who is the subject of the underlying dispute, J.O., was born on May 7, 2018. Three days later, the Texas Department of Family and Protective Services (the "Department") filed a petition for protection of the child, conservatorship, and termination of the biological parents' parental rights. The Department removed three-day-old J.O. from his biological mother and placed the child with foster parents, the Rodriguezes. During the reunification process, the Department located Langford who is the adoptive mother of J.O.'s half-brother. Keiler is J.O.'s attorney and guardian ad litem.
In October 2018, the Department requested authorization to place J.O. with Langford. On November 1, 2018, Judge Garcia signed an order finding "it is in [the] child's best interest to remain in current . . . placement with" the Rodriguezes and ordering the Department "not to remove [the] child from [the] Rodriguez home." On November 29, 2018, the Rodriguezes filed their first petition to intervene. The order of placement was affirmed after a de novo hearing in district court. On December 26, 2018, the Department filed a motion to strike the Rodriguezes' petition to intervene. After a January 3, 2019 hearing, the Rodriguezes' petition to intervene was struck on the ground that they lacked standing because J.O. had not been in their home for twelve months. On January 28, 2019, Langford filed her petition to intervene. Two days later, the Rodriguezes filed their original petition for adoption.
The de novo placement and hearing on intervention was handled by District Court Judge Peter Sakai.
Following a March 1, 2019 trial on the merits, Judge Garcia terminated parental rights, named the Department as permanent managing conservator, and ordered that Langford "take nothing and is hereby dismissed from this suit." A "Memorandum of Associate Judge's Order" was signed on March 4, 2019. The "Order of Termination" was signed on May 16, 2019. Both the orders included three provisions regarding placement with and adoption by the Rodriguezes. Langford and Keiler appealed the decision challenging the three provisions. On June 10, 2019, the Rodriguezes filed a second petition to intervene, which was not reached because of the pending appeal.
The Order of Termination states: "This order was rendered on 3/4/19 and then incorporated into this type-written order and signed MINISTERIALLY on [May 16, 2019]."
The record does not indicate the second petition was ever set for a hearing, nor does the record contain any indication that the trial ruled on the second petition.
On December 11, 2019, a panel of this court affirmed in part and reversed in part the trial court's final order, and remanded for "further proceedings consistent with [the] opinion." See Interest of J.O., 04-19-00381-CV, 2019 WL 6719029 (Tex. App.—San Antonio Dec. 11, 2019, no pet.). The next day, the Rodriguezes filed a third petition to intervene. Langford later filed her second petition to intervene. Competing motions to strike were filed by Langford, Keiler, and the Rodriguezes. On January 31, 2020, Judge Garcia signed an "Order of Termination After Remand," but did not rule on any pending motions.
The "Order of Termination After Remand" stated, "This order was rendered on March 1, 2019, a mandate after appealed [sic] was issued on January 27, 2020, the 4th Court of Appeals' opinion is incorporated into this type-written order and signed MINISTERIALLY on [January 31, 2020]." The date in this order differs from the date in the Order of Termination, which stated the order "was rendered on 3/4/19." The date the "Memorandum of Associate Judge's Order" is dated March 4, 2019.
On January 31, 2020, Langford filed another petition to intervene and the Rodriguezes filed a motion to strike. On February 12, 2020, Judge Mery conducted a hearing on the intervention at the end of which he asked for additional briefing. During an April 2, 2020 hearing, Judge Mery ruled from the bench, striking Langford's intervention in its entirety, granting in part the Rodriguezes' petition to intervene "solely for the purpose of placement," denying in part the Rodriguezes' petition to intervene for conservatorship, ordering the child to remain with the Rodriguezes, and recommending the parties (including Langford) mediate. Judge Mery postponed ruling on Keiler's motion to place because it involved an evidentiary hearing. On April 23, 2020, Judge Garcia conducted a hearing, after which he signed an order referring "all parties" to mediation to take place on May 28, 2020. Thereafter, Langford and Keiler (collectively, "Langford") filed a joint petition for writ of mandamus, this court stayed the mediation, and the Rodriguezes filed their response.
Langford informed this court that no reporter's record was taken from the April 23 hearing.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show "that the trial court could reasonably have reached only one decision." Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).
"Due to the unique and compelling circumstances presented in a SAPCR action, . . . mandamus relief is . . . an appropriate remedy for an order denying a motion to dismiss for lack of standing in a SAPCR action." In re Martin, 523 S.W.3d 165, 169 (Tex. App.—Dallas 2017, orig. proceeding); see In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding) ("Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate means to challenge them.").
STANDING
In the petition, Langford asks this court to vacate (1) Judge Mery's April 2 order that, among other things, struck Langford's intervention and granted the Rodriguezes' petition to intervene and (2) Judge Garcia's April 23 order referring the parties to mediation on the grounds that both orders are void because the trial courts lacked jurisdiction. Langford's arguments rely, in part, on this court's remand of the termination order.
A. This Court's Remand
In 2019, the trial court terminated the parental rights of both parents, designated the Department as the child's sole managing conservator, and ordered the following:
11.1. [The] Child remains in [the] current foster-to-adopt home, and CPS is to proceed to permanency at [the] Rodriguez[es's] home.J.O., 2019 WL 6719029, at *3. As noted in this court's opinion, Langford challenged these adoption and custody provisions on the grounds that no such relief was requested by any party or tried by consent. Id. On appeal, this court agreed.
11.2. [The] Court finds the best interest of the child is to remain in [the] Rodriguez[es'] foster-to-adopt home.
. . .
11.4. Twenty days after judgement [sic] signed, CPS to process adoption in 40-90 days, unless appeal is filed.
Regarding permanency and the child's adoption, the J.O. court concluded the issues were neither pled nor tried by consent:
The Department's petition raised only the issues of termination and conservatorship. While the Rodriguezes attempted to intervene and raise the issue of adoption, the trial court struck their petition in intervention. Langford intervened, but did not raise the issue of J.O.'s adoption by either her or the Rodriguezes.Id. at *5.
. . .
Because their intervention failed, the Rodriguezes were not parties at trial and did not present affirmative evidence relevant to the issue of adoption. Among other matters, the Rodriguezes did not present evidence to prove that the Department consented to their adoption or that there existed an exception to the requirement for consent.
. . .
Consequently, the record does not support the trial court's judgment ordering the Department to proceed to permanency at the Rodriguezes' home and to process adoption.
As to the trial court's custody determination that it was in the child's best interest to remain in the Rodriguezes' foster-to-adopt home, this court again concluded the order was not supported by the pleadings or tried by consent:
[N]o pleadings were filed or evidence adduced at trial that would give the Department, Langford, or the attorney and guardian ad litem fair notice of the custody restriction the trial court imposed. [T]he Rodriguezes did not have any
pleadings on file and did not adduce any evidence at trial to support J.O.'s placement in their home.Id. at *6.
The J.O. court concluded:
. . . the trial court's judgment is not supported by the pleadings or tried by consent. We reverse the trial court's judgment insofar as it orders J.O. to remain in her placement with the Rodriguezes and insofar as it orders the Department to proceed to permanency at the Rodriguezes' home and process adoption. We remand the case for further proceedings consistent with this opinion.Id.
"[W]hen an appellate court remands a case to the trial court for entry of judgment consistent with the appellate court's opinion, and the trial court is not required to admit new or additional evidence to enter that judgment, as is the case here, the date the trial court entered the original judgment is the 'date the judgment is rendered,' . . .." Phillips v. Bramlett, 407 S.W.3d 229, 239 (Tex. 2013). Here, although the "Order of Termination After Remand," was ministerially signed on January 31, 2020, the date of that judgment is the date the original 2019 termination judgment was "rendered." See id. Having concluded the termination order was rendered in 2019, we next address whether the Rodriguezes could intervene in the termination case.
B. Petition to Intervene
Langford raises several arguments related to whether the Rodriguezes may intervene. One of the arguments is that the underlying case commenced on May 10, 2018, when the Department filed its petition, and the termination case ceased on March 4, 2019 upon entry of the termination order. Therefore, Langford asserts that because there was no pending termination suit after March 4, 2019, the Rodriguezes could not intervene on December 12, 2019. We agree and conclude this argument is dispositive.
The Rodriguezes' prayer for relief in their petition to intervene stated: "It is in the best interest of the child that Intervenors be appointed the primary sole managing conservator of the child. Further, appointment of [the Department] as joint or sole managing conservator would not be in the best interest of the child because the appointment would significantly impair the children's [sic] physical health or emotional development. Intervenors should be appointed sole managing conservator of the child and alternatively, seeks [sic] adoption of the child. Intervenors request that they be appointed temporary managing conservator of the child."
Subsection (b) of Texas Family Code section 102.004 provides that
the court may grant a grandparent or other person, subject to the requirements of Subsection (b-1) if applicable, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.TEX. FAM. CODE § 102.004(b) (emphasis added). Subsection (b-1) states, "A foster parent may only be granted leave to intervene under Subsection (b) if the foster parent would have standing to file an original suit as provided by Section 102.003(a)(12)." Id. § 102.004(b-1).
In their response to the petition for writ of mandamus, the Rodriguezes argue the termination suit was still pending because the remand by this court "re-opened" or "re-activated" the case for further orders regarding custody and adoption. According to the Rodriguezes, because Family Code section 263.503(b) requires the trial court to conduct status hearings regarding the care of the child, the case remains pending. Section 263.503(b) was repealed in 2015. However, section 263.5031 states "[a]t each permanency hearing after the court renders a final order, the court shall" perform certain duties. See id. § 263.5031 (emphasis added).
An argument similar to that made by the Rodriguezes has been rejected by the Austin Court of Appeals. In Jasek v. Texas Department of Family & Protective Services, 348 S.W.3d 523, 529 (Tex. App.—Austin 2011, no pet.), the trial court issued a final order in January 2008 that terminated the biological parents' parental rights and named the Department as sole managing conservator. About two months later, the Department placed the children with the Jaseks. In December 2009, the Jaseks filed a petition to intervene in the same cause number as the termination proceedings. The trial court granted the Department's motion to strike and the Jaseks appealed. Id. at 526-27.
On appeal, the Jasek court first noted that "the termination proceeding, in which a final and appealable order [was] issued, is no longer 'pending.'" Id. at 529. However, the Jaseks argued that in a proceeding where parental rights have been terminated and the Department named managing conservator, the case remains "pending" until the subject children have been adopted or become adults. Id. They argued that Family Code section 263.501(b) requires courts in such cases to conduct periodic placement-review hearings after entry of the final order of termination and the existence of this statutory duty meant the case remained pending. Id.
Section 263.501 provides that
[i]f the department has been named as a child's managing conservator in a final order that terminates a parent's parental rights, the court shall conduct a permanency hearing not later than the 90th day after the date the court renders the final order. The court shall conduct additional permanency hearings at least once every six months until the department is no longer the child's managing conservator.TEX. FAM. CODE § 263.501(b) (emphasis added).
The Jasek court "disagree[d] that the existence of this statutory duty means that the SAPCR remains 'pending' in the sense that term is used in family code section 102.004(b)." Jasek, 348 S.W.3d at 530. According to the court, "[s]ection 263.501(b)'s reference to 'a final order' indicates that the court has already decided the termination suit. The proceeding, therefore, is not 'pending' by any ordinary definition of that term." Id. Therefore, the court concluded section 102.004(b) was not available to the Jaseks because there was no "pending suit" in which to intervene. Id.
Although we are not bound to follow the precedent of our sister courts of appeals, we find the reasoning in Jasek persuasive. See In re Reardon, 514 S.W.3d 919, 923 (Tex. App.—Fort Worth 2017, orig. proceeding) (courts of appeals are not bound by precedent of sister courts but may be guided by their reasoning and analysis). Similar to the factual scenario in Jasek, the Rodriguezes filed their December 12, 2019 petition to intervene in the same cause number as the termination proceeding. By that time, however, the trial court's termination order was final. Although the "Order of Termination After Remand" was ministerially signed on January 31, 2020, the date the trial court entered the original 2019 judgment was the date the "Order of Termination After Remand" was "rendered." Therefore, despite the remand from this court that left custody and adoption unresolved, the termination proceeding was no longer pending. Because the termination proceeding was no longer pending, the trial court erred by allowing the Rodriguezes to intervene.
The Rodriguezes make an alternative argument that they have a February 11, 2020 motion for modification pending asking the trial court to modify the conservatorship designation of J.O. The Rodriguezes assert this pleading allows them to "be in the case." Langford counters that the motion does not satisfy the requirements of Family Code section 156.102. In view of our conclusion that the trial court erred by allowing the Rodriguezes to intervene and because the trial court has not considered the motion to modify, we cannot conclude the motion to modify allows or does not allow the Rodriguezes to "be in the case."
"If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b)." TEX. FAM. CODE § 156.102(a).
AUTHORIZATION TO PLACE
Langford also asks this court to order the trial court to sign the authorization to place ("ATP") that allows the Department to determine J.O.'s primary residence and consent to her adoption or, alternatively, order the trial court to consider and rule on Keiler's motion for new placement. Langford contends the Department's efforts to reunite J.O. with her half-brother has been thwarted by the trial court's refusal to sign the ATP or rule on Keiler's motion.
As noted above, the J.O. court concluded the provisions in the 2019 termination order regarding custody, placement, and adoption were not pled or tried by consent. Therefore, the Order of Termination After Remand did not include these rulings. However, Langford contends that even after the order on remand issued, the trial court continued to refuse to sign the Department's ATP. Langford relies on two hearings as support for her argument. Langford contends the trial court refused to sign the ATP during a January 31, 2020 pretrial hearing. The trial court did not "refuse" to rule during this hearing and, instead, reset the matter for a later date. Langford also contends the court refused to consider or rule on Keiler's motion for new placement during an April 23, 2020 hearing. However, no reporter's record was taken from this hearing; therefore, there is no record to support Langford's contention.
Because Langford's arguments that the trial court has refused to sign the ATP or consider and rule on Keiler's motion for new placement are not supported by the record, we cannot conclude the trial court abused its discretion.
CONCLUSION
We conclude the trial court abused its discretion by allowing the Rodriguezes to intervene; therefore, we conditionally grant the petition for writ of mandamus in part and order the trial court to vacate its order allowing the Rodriguezes to intervene no later than fifteen days from the date of this opinion. We also conclude the trial court abused its discretion by ordering "all parties" to mediation; therefore, we conditionally grant the petition for writ of mandamus in part and order that the April 23, 2020 "Order of Referral to Mediation" be vacated no later than fifteen days from the date of this opinion. We deny all other relief requested.
Our opinion is limited to whether the Rodriguezes may intervene in the termination case.
We do not address Langford's statement that the trial court erred by striking her petition to intervene because this complaint is not briefed and is, therefore, waived.
Liza A. Rodriguez, Justice