FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. D-1-FM-04-001703, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
The opinion of the court was delivered by: J. Woodfin Jones, Chief Justice
Evelyn Jones appeals from a Travis County district court's order striking and dismissing her petitions to modify orders in two suits (later consolidated) affecting the parent-child relationship. The district court struck and dismissed the pleadings on the ground that they constituted an impermissible collateral attack on a prior final order of a Williamson County court. In five issues, Jones contends that the trial court erred in dismissing her pleadings because: (1) she had standing to file them; (2) the Williamson County court did not have jurisdiction to render the earlier order, making it void and subject to collateral attack; (3) even if her pleadings were filed in the wrong court, they sufficed to put all parties on notice of her intent to seek custody of one of the subject children; (4) one of the orders she sought to modify was not extinguished by the subsequent marriage of the parents of the subject child; and (5) the trial court should not have proceeded to dispose of motions that were improperly noticed. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2009, the Texas Department of Family and Protective Services ("the Department") filed a petition in Williamson County seeking conservatorship and termination of parental rights to two children, F.A. and C.A. In its jurisdictional allegations, the Department stated its belief that "no other Court has continuing, exclusive jurisdiction over the children." The Department's petition also stated that it would request that the bureau of vital statistics confirm that the children had not previously been the subject of a suit resulting in a different court's becoming the court of continuing, exclusive jurisdiction. See Tex. Fam. Code Ann. § 155.101 (West 2008) (with two exceptions, petitioner or court shall request from bureau of vital statistics identification of court that last had continuing, exclusive jurisdiction). Although judgments involving F.A. and C.A. had in fact previously been rendered by a court in Travis County, the bureau of vital statistics, in response to the Department's request, sent a letter to the Department in August 2009 stating that according to the bureau's central record file, neither F.A. nor C.A. had been the subject of a suit affecting the parent-child relationship (SAPCR) in which a judgment was entered. Consequently, the Department was under the impression that there was no other court that had continuing, exclusive jurisdiction over the children. See id. § 155.001(a) (court acquires continuing, exclusive jurisdiction over SAPCR on rendition of final order). However, the Department failed to file with the Williamson County court the letter it received from the bureau of vital statistics. See id. § 155.104 (if request for information from bureau of vital statistics has been made, court may not render final order until that information is filed with court).
In October 2010, Jones filed a petition in intervention in the Williamson County SAPCR. In the jurisdictional allegations of her petition, Jones recited that the Williamson County court had acquired and retained continuing, exclusive jurisdiction of the SAPCR "as a result of prior proceedings." Jones sought to be appointed sole managing conservator of F.A. and C.A. on the ground that the children's parents had "voluntarily relinquished possession and control of the children to [her] for a period of one year or more, a portion of which was within ninety days preceding the date of intervention," and because it was in the children's best interest for her to be so appointed.
The Department filed a motion to strike Jones's petition for intervention in the Williamson County proceeding. In November 2010, after an evidentiary hearing, the Williamson County court signed an order striking Jones's petition in intervention. See Tex. R. Civ. P. 60. On December 17, 2010, the Williamson County court signed a final order in the SAPCR appointing the Department permanent managing conservator of F.A. and C.A. Jones timely filed a motion for new trial asserting that the trial court abused its discretion in striking her petition in intervention. As an additional ground, Jones stated:
The Texas Department of Family and Protective Services failed to discern whether any other court was a court of continuing, exclusive jurisdiction over the children the subject of this suit, which rendered the Court's decision on December 17, 2010 voidable pursuant to Texas Family Code § 155.104(b). There are two final orders entered in two separate Travis County cases involving the children the subject of this suit; therefore those courts are the courts of continuing, exclusive jurisdiction over the children the subject of this suit, and this Court should set aside the voidable order entered on December 17, 2010.
Jones also filed with the trial court a motion to vacate the Williamson County final order on the ground that it was voidable because a Travis County court had exclusive, continuing jurisdiction over the children. After the motion for new trial was overruled, Jones filed a notice of appeal and statement of appellate points, one of which stated her contention that the trial court's order was voidable because a Travis County court had continuing, exclusive jurisdiction over F.A. and C.A. See id. § 155.104(b) (final order rendered in absence of filing information from bureau of vital statistics is voidable on showing that court other than court that rendered order had continuing, exclusive jurisdiction). Although the clerk's record in her appeal was filed with this Court, Jones did not file a brief or respond to this Court's overdue notice. As a result, her appeal was ultimately dismissed for want of prosecution. See Jones v. Texas Dep't of Family & Protective Servs., No. 03-11-00034-CV, 2011 WL 2437700 (Tex. App.-Austin June 17, 2011, no pet.) (mem. op.).
After the Williamson County court signed its final order in December 2010, Jones filed, in Travis County, the two pleadings that are the subject of this appeal. They are both titled First Amended Petition to Modify Order in Suit Affecting Parent-Child Relationship. In these pleadings, Jones sought to modify earlier Travis County orders regarding conservatorship of F.A. and C.A. so as to appoint her as the children's managing conservator. With respect to F.A., Jones alleged that the order she was seeking to modify was a Travis County order dated August 4, 2004, titled "Order Establishing the Parent-Child Relationship." With respect to C.A., Jones alleged that the order she was seeking to modify was a Travis County order dated April 25, 2007, titled "Order Establishing the Parent-Child Relationship."*fn1 In both pleadings, Jones alleged the following:
The Texas Department of Family and Protective Services (hereinafter "the Department") was appointed as temporary managing conservator in an order issued in Cause Number 09-2194-FC1 in the County Court at Law Number 1 of Williamson County, Texas and styled "In the Interest of C.A. and F.A., Children" on August 9, 2009. The Department was appointed as Permanent Managing Conservator in that same case on December 17, 2010. Petitioner contends that this is a void or voidable order under Texas Family Code § 155.104.
Thus, Jones's pleadings did not seek to modify or set aside the Williamson County order; rather, she took the position that that order simply had no effect.
The Department filed a motion to dismiss Jones's pleadings in the Travis County SAPCR. The Department asserted that the December 17, 2010 Williamson County order naming it as the managing conservator of the children was issued by a court with jurisdiction over F.A. and C.A. and thus superseded any previous orders relating to placement of the children. Moreover, the Department contended that because Jones was not a party to the December 17, 2010 order, she did not have standing to seek to modify it; the Department noted that she had failed to appeal the Williamson County court's December 2010 order striking her attempted intervention in that proceeding. The Department took the position that Jones lacked standing to challenge the order and that her petitions seeking to modify the previous Travis County orders were effectively collateral attacks on the Williamson County order.
The attorney ad litem (AAL) for F.A. and C.A. also filed a motion to strike Jones's pleadings. Like the Department, the AAL noted that Jones had failed to appeal the Williamson County court's order striking her plea in intervention and asserted that she had no standing to attempt to alter the Williamson County December 17, 2010 order appointing the Department as F.A.'s and C.A.'s managing conservator either by a motion to modify that ...