Opinion
NO. 03-15-00673-CV
02-24-2016
L. H. & T. H., Appellants v. Texas Department of Family & Protective Services, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 267,051-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant L.H. ("Mother") appeals from the trial court's final order terminating her parental rights to her children, W.H., T.V.H., and T.I.H.See Tex. Fam. Code § 161.001. Appellant T.H. ("Father") appeals from the trial court's final order terminating his parental rights to his children with L.H., T.V.H. and T.I.H.See id. Following a jury trial, the trial court entered judgment in accordance with the jury's findings by clear and convincing evidence that statutory grounds for terminating Mother's and Father's parental rights existed and that termination was in the children's best interest. See id. §§ 160.001(b)(1)(D), (E), (O), (2) (Mother), 160.001(b)(1)(E), (2) (Father). In two issues, Father asserts that (1) he received ineffective assistance of counsel because his trial attorney did not move to dismiss the case after a dismissal deadline set by the court passed and (2) the case must be dismissed because the trial court lost jurisdiction over the suit after the same dismissal deadline passed. Mother's court-appointed counsel has filed a motion to withdraw and a brief concluding that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967) (court-appointed counsel who finds appeal to be wholly frivolous should so advise court and request permission to withdraw and file brief referring to anything in record that might arguably support appeal); Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights). For the reasons explained below, we will affirm.
To preserve the parties' privacy and for convenience, we refer to the children and their parents by their initials or their roles. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Although the order also terminated the parental rights of W.H.'s father, he is not a party to this appeal.
PROCEDURAL BACKGROUND
The parties are familiar with the facts, procedural history, and applicable standards of review. Accordingly, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
The Texas Department of Family & Protective Services was appointed temporary managing conservator of the children on November 5, 2013. Family Code Section 263.401 generally requires a trial court to dismiss a termination suit on the first Monday after the first anniversary of the date that the court rendered a temporary order appointing the Department as temporary managing conservator, unless the court has commenced the trial on the merits or granted an extension allowed by statute by that date. Tex. Fam. Code § 263.401(a). Additionally, Section 263.403 allows a court to retain the suit if it renders a temporary order returning the children to a parent and ordering the Department to monitor the children's placement. Id. § 263.403. Specifically, Section 263.403 provides:
Section 263.401 was amended effective September 1, 2015, but the amendment is not relevant to this case, so we cite to the current statute for convenience.
(a) Notwithstanding Section 263.401, the court may retain jurisdiction and not dismiss the suit or render a final order as required by that section if the court renders a temporary order that:
(1) finds that retaining jurisdiction under this section is in the best interest of the child;
(2) orders the department to return the child to the child's parent;
(3) orders the department to continue to serve as temporary managing conservator of the child; and
(4) orders the department to monitor the child's placement to ensure that the child is in a safe environment.
(b) If the court renders an order under this section, the court shall:
Id. § 263.403(a)-(b). Section 263.403 further provides that if the monitored return must be disrupted and the children moved from the parent's home before dismissal of the suit or commencement of the trial on the merits, the trial court shall schedule a new dismissal date. Section 263.403 states:(1) include in the order specific findings regarding the grounds for the order; and
(2) schedule a new date, not later than the 180th day after the date the temporary order is rendered, for dismissal of the suit unless a trial on the merits has commenced.
(c) If a child placed with a parent under this section must be moved from that home by the department before the dismissal of the suit or the commencement of the trial on the merits, the court shall, at the time of the
move, schedule a new date for dismissal of the suit unless a trial on the merits has commenced. The new dismissal date may not be later than the original dismissal date established under Section 263.401 or the 180th day after the date the child is moved under this subsection, whichever date is later.Id. § 263.403(c)-(d).
(d) If the court renders an order under this section, the court must include in the order specific findings regarding the grounds for the order.
Over the course of the Department's involvement with the family, the trial court approved two monitored returns to Mother. The first monitored return occurred and ended in late 2013. On August 27, 2014, the trial court signed an order finding that extraordinary circumstances existed that necessitated the children remaining in the temporary managing conservatorship of the Department and that continuing the Department's appointment as temporary managing conservator was in the children's best interest. See id. § 263.401(b). Accordingly, the court set a new dismissal date of April 25, 2015, which was within 18 months of the initial order appointing the Department as temporary managing conservator. See id. (allowing court to retain parental-termination suit on court's docket for period not to exceed 180 days after first Monday after first anniversary of date that Department was appointed temporary managing conservator if court makes findings of extraordinary circumstances and best interest).
In January 2015, the trial court ordered the second monitored return of the children to Mother and set a new dismissal date of July 20, 2015. The trial court conducted a permanency hearing on April 29 and May 20, 2015. After removing the children from Mother's home on an emergency basis on April 29, the trial court officially ended the monitored return after a full hearing on May 20. The parties dispute whether the trial court orally rendered a new dismissal date at the May 20 hearing. At the hearing, the Department's counsel requested that the trial court set another permanency hearing for July 22, jury trial for September 7, and "the dismissal date to be the first Monday 180 days from today." Counsel further stated, "My math is bad, but I'll put in what that day is in the order." There is no dispute that at the hearing the trial court set a permanency hearing for July 22, 2015, and trial for September 8, 2015—both of which were after the prior July 20 dismissal date. The court discussed with counsel that the proposed trial date was Labor Day, so the court set the trial date for September 8 instead of September 7. There is no discussion about the dismissal date in the record other than counsel's statements, but all counsel were present and no objection was voiced as to any of the three dates discussed. On August 10, the trial court signed an order memorializing the dates for the July 22 permanency hearing, the September 8 trial, and the November 16 dismissal deadline.
After a jury trial on September 8, the trial court rendered a decree of termination based on the jury's verdict. This appeal followed.
ANALYSIS
Father and Mother present separate issues on appeal. We turn first to Father's issues, which are related to the case's dismissal date.
Father's appeal
Father challenges the trial court's ruling in two issues, both of which turn on his assumption that the prior July 20 dismissal date remained in place when the trial court ended the children's monitored return to Mother before the dismissal of the suit or the commencement of the trial on the merits. Father asserts that (1) he received ineffective assistance of counsel because his trial attorney did not move to dismiss the case after the July 20 dismissal deadline passed and (2) the case must be dismissed because the trial court lost jurisdiction over the suit after the July 20 dismissal deadline passed.
Father contends that his trial counsel's failure to file a motion to dismiss at any point between July 20 and the beginning of trial was objectively unreasonable. See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)) (to establish ineffective assistance, appellant must show that counsel's assistance fell below objective standard of reasonableness and that counsel's deficient assistance, if any, prejudiced appellant). This argument rests on Father's premises that the trial court did not orally render an order setting a new dismissal date at the April 29 and May 20 hearings and that this failure to set a new dismissal date left the July 20 dismissal date intact. He further contends that because the July 20 dismissal date was intact, the trial court would have been required to grant a motion to dismiss if his trial counsel had filed one at any point between July 20 and the beginning of the trial on the merits.
We first address Father's underlying premise that a failure to schedule a new dismissal date necessarily left the July 20 dismissal date intact. Even if we assume (without deciding) that the trial court did not orally schedule a new dismissal date, we disagree that not having a new dismissal date would necessarily leave the old dismissal date in place. The trial court's January temporary orders ordering the children's monitored return to Mother stated that under Section 263.403(b) the court determined "that the date for dismissal of this cause shall be July 20, 2015 which date is no later than 180 days following the date the Court renders the temporary order placing the children with the parent(s), unless the children must be removed from said home prior to that date." (Emphasis added.) Consequently, pursuant to the trial court's January order, the July 20 dismissal date was no longer valid once the trial court removed the children from Mother's home before that date.
Moreover, the Family Code itself provides that the dismissal date set when a monitored return begins must change if the monitored return is disrupted before the suit has been dismissed or trial has begun. See Tex. Fam. Code § 263.403(c). The language in the court's January order invalidating the dismissal date upon the children's removal is consistent with the statutory language requiring that "the court shall, at the time of the move [of the children from the home], schedule a new date for dismissal of the suit unless a trial on the merits has commenced." Id. The statute does not, however, provide a consequence for a trial court's failure to schedule a new date at the time of the move. It merely provides an outer limit for "[t]he new dismissal date," which in this case could "not be later than . . . the 180th day after the date the child is moved under this subsection." Id.
Therefore, we conclude that the July 20 dismissal date was no longer valid once the court ordered the children's removal. The trial court's written August 10 order memorialized the schedule discussed at the May 20 hearing, including the new dismissal date, November 16, 2015, which was 180 days after May 20. To the extent that between May 20 and the date that the court signed the written order memorializing the settings there was allegedly no dismissal date scheduled, Father cannot show that his court-appointed counsel acted unreasonably by failing to move for dismissal after July 20 because the trial court could properly retain this case on its docket after the disruption of the monitored return until "the 180th day after the date the child is moved under this subsection." Id. We overrule Father's first issue.
Father's second issue fails for the same reason. Father argues that despite counsel's failure to file a motion to dismiss, the dismissal deadlines imposed under Section 263.403 are jurisdictional, not procedural, and may not be waived, meaning that the trial court lacked jurisdiction to render the termination decree after July 20. As explained above, however, the July 20 dismissal date was no longer valid once the trial court removed the children. Therefore, the trial court did not lose jurisdiction over the suit after that date passed. We overrule Father's second issue.
Having determined that July 20 was no longer the dismissal deadline in place after May 20, we need not address Father's arguments that Section 263.403's dismissal deadlines are jurisdictional and are not waivable under Section 263.402. See Tex. R. App. P. 47.1 (appellate court must hand down written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of appeal). --------
Mother's appeal
On appeal, Mother's court-appointed attorney has filed a motion to withdraw and a brief concluding that the appeal is frivolous and without merit. See Anders, 386 U.S. at 744; Taylor, 160 S.W.3d at 646-47. The brief meets the requirements of Anders by presenting a professional evaluation of the record demonstrating that there are no arguable grounds to be advanced on appeal. See 386 U.S. at 744; Taylor, 160 S.W.3d at 646-47. Mother's counsel has certified to this Court that he provided Mother with a copy of the Anders brief and motion to withdraw as counsel and a notice of her right to examine the appellate record and to file a pro se brief. The Department filed a response to the Anders brief, indicating it will not file a brief unless it deems a brief necessary after review of any pro se brief or unless requested to do so by this Court.
Mother has filed a pro se letter brief expressing her love for her children and presenting argument that we construe as challenging the sufficiency of the evidence supporting the judgment. See Tex. R. App. P. 38.9 (requiring appellate courts to liberally construe briefing rules). Mother admits that she did not finish therapy and that she failed some drug tests, but she challenges the jury's finding that she put her children in danger. She also asserts that she has a stable home free from domestic violence. The trial court ordered termination of Mother's parental rights based on the jury's finding, after a four-day jury trial at which fourteen witnesses testified, that there was clear and convincing evidence that termination was in the children's best interest and that Mother had committed at least one of the following statutory grounds for termination: (1) she knowingly placed or allowed the children to remain in conditions or surroundings that endanger the children's physical or emotional well-being, (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the children's physical or emotional well-being, or (3) she failed to comply with provisions of a court order that specifically established actions necessary for her to obtain return of the children. See Tex. Fam. Code § 161.001(1)(D), (E), (O), (2). We note that among other facts supporting the termination grounds, Mother admitted that Father abused her when they were living together, sometimes when the children were present, and the children's second monitored return to Mother was disrupted when Mother tested positive for illegal drugs. And while Mother at times before trial had complied with the plan outlining the services necessary for her to regain custody, as evidenced by the two attempted monitored returns, evidence was presented at trial that she did not remain drug free, complete individual therapy, or provide the required child-support payments. Regarding the best-interest determination, the jury could have determined that Mother had not sufficiently improved in terms of her ability to be an appropriately protective parent, which includes providing a safe and drug-free home environment, protection from exposure to violence, and stability.
Upon receiving an Anders brief, we must conduct a full examination of all of the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have carefully reviewed the entire record, including the Anders brief submitted on Mother's behalf and the pro se brief submitted by Mother. We find nothing in the record that would arguably support an appeal. We agree with Mother's counsel that the appeal is frivolous and without merit. Accordingly, we grant counsel's motion to withdraw and we affirm the order terminating Mother's parental rights.
CONCLUSION
Having overruled Father's two issues, and having agreed that Mother's appeal is frivolous and without merit, we affirm the trial court's order of termination.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: February 24, 2016