Opinion
No. 04-15-00591-CV
02-10-2016
IN THE INTEREST OF M.G.F., Jr., N.J.F., and K.R.F., Children
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 13381B
Honorable Rex Emerson, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice DISMISSED FOR LACK OF JURISDICTION
Guy F. appeals the trial court's order in which the court concludes its July 22, 2014 Order of Termination was a final order. Guy F. asserts the July 22, 2014 order was not a final order because it did not dispose of his timely filed intervention. The Department of Family and Protective Services and the foster parents respond as appellees, asserting the July 22, 2014 order was final because: (1) the order was entered after a conventional trial on the merits and contains a "Mother Hubbard" clause; (2) the order appointed the Department as managing conservator, thereby disposing of Guy F.'s request to be appointed managing conservator; and (3) section 161.211 of the Texas Family Code prohibits a direct or collateral attack on a parental termination order after six months. Because we hold the July 22, 2014 order was not a final order, we dismiss this appeal for lack of jurisdiction.
Our holding implicitly reverses the trial court's order concluding the July 22, 2014 order was a final order. Because no final order has been entered, however, we dismiss the appeal.
BACKGROUND
In April of 2013, the Department filed an original petition to terminate the parental rights of K.J.I. and M.G.F., Sr. to their children M.G.F., Jr., N.J.F., and K.R.F. Guy F. is M.G.F., Sr.'s father and the children's grandfather. The case was set for a bench trial on July 22, 2014 at 9:00 a.m.
On June 9, 2014, a mediation agreement was signed by all of the parties in which K.J.I. agreed to execute an affidavit of voluntary relinquishment of parental rights which would become the sole ground on which her parental rights were terminated. On July 17, 2014, Guy F. filed a petition in intervention.
On the date of trial, July 22, 2014, the Department filed a motion to strike Guy F.'s petition in intervention at 8:39 a.m. At 10:53 a.m., an affidavit of voluntary relinquishment signed by M.G.F., Sr. was filed. At 11:19 a.m., an Order of Termination and a Rule 11 Agreement were filed. The Order of Termination expressly states, "A rule 11 agreement has been entered into by the parties and is wholly incorporated into this order and has been approved by the Court." The Rule 11 Agreement was signed by all parties including Guy F. It provides for the completion of two home studies of Guy F. The Rule 11 Agreement further provides, "If both home studies agree that placement with [Guy F.] is appropriate," the Department will allow Guy F. supervised visitation. Finally, the Rule 11 Agreement provides, "The parties agree to push the Motion To Strike The Petition And Intervention to a later date."
In 2015, the issue of whether the July 22, 2014 order was a final order disposing of Guy F.'s intervention was raised through various filings. On July 15, 2015, a hearing was held regarding the issue, and an associate judge entered an order concluding the July 22, 2014 order was a final order. After a de novo hearing was requested, the trial court reached the same conclusion and entered the order which Guy F. appeals.
DISCUSSION
"A judgment that disposes of all remaining parties and claims, based on the record in the case, is final, regardless of its language." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). A presumption arises that a judgment rendered after a conventional trial on the merits is final "in the absence of a contrary showing in the record." North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966); see also Richey v. Bolerjack, 589 S.W.2d 957, 959 (Tex. 1979) (noting trial court's judgment on the merits is not final if the judgment "expressly reserve[s]" an issue "for future consideration"); Exxon Corp. v. Garza, 981 S.W.2d 415, 419 (Tex. App.—San Antonio 1998, pet. denied) (noting Aldridge presumption only applies in the absence of a contrary showing in the record). Since the record may rebut the presumption by establishing that a judgment or order did not dispose of all pending claims and parties, an appellate court should review the record to determine whether the Aldridge presumption has been rebutted. See Lehmann, 39 S.W.3d at 205-06.
In this case, the appellees' reliance on the Aldridge presumption is misplaced because the record rebuts the presumption. The order of termination incorporates the Rule 11 Agreement which expressly reserves the issue of Guy F.'s intervention for consideration at "a later date." The appellee's reliance on the "Mother Hubbard" clause is similarly misplaced. The inclusion of such a clause in a judgment or order does not preclude this court from looking at the record to determine whether the order is final. Id. at 205-06 ("To determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case."). Finally, the appellees' contention that the appointment of the Department as managing conservator necessarily denied Guy F.'s request for such an appointment would require this court to ignore the Rule 11 agreement which was expressly incorporated into the order of termination and reserved the issue of Guy F.'s intervention for "a later date." Cf. In re J.D., 304 S.W.3d 522, 526-27 (Tex. App.—Waco 2009, no pet.) (holding order of termination not final where section of order dismissing the claims of the intervenors was marked out by the trial court).
In their brief, the appellees cite Jasek v. Tex. Dept. of Family & Protective Servs, 348 S.W.3d 523, 527 (Tex. App.—Austin 2011, no pet.); however, Jasek is clearly distinguishable because the order of termination was signed in January of 2008, while the petition in intervention was not filed until December of 2009. --------
Finally, the appellees rely on section 161.211(a) of the Texas Family Code which states an order terminating parental rights "is not subject to collateral or direct attack after the sixth month after the date the order was signed." TEX. FAM. CODE ANN. § 161.211(a) (West 2014). Direct attacks include appeals, motions for new trial, and bills of review, all of which presuppose a final judgment or order. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271-72 (Tex. 2012). Similarly, a collateral attack also requires a final judgment. Browning v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005) ("Collateral attacks on final judgments are generally disallowed because it is a policy of the law to give finality to the judgments of the courts."). In this case, the order of termination is not final; therefore, Guy F. is not making a collateral or direct attack on the order. Instead, Guy F. is attempting to have the issues he raised in his intervention, which the trial court reserved for "a later date," resolved.
Having reviewed the record in this case, we hold the trial court's July 22, 2014 order of termination did not dispose of Guy F.'s intervention. Accordingly, it was not a final order. Because no final order has been entered in the underlying cause, this appeal is dismissed for lack of jurisdiction.
Sandee Bryan Marion, Chief Justice