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In re A.N.M.

Court of Appeals of Texas, Tenth District

August 2, 2017

IN THE INTEREST OF A.N.M., A CHILDIN THE INTEREST OF J.C.M., A CHILD

         From the County Court at Law Ellis County, Texas Trial Court Nos. 92813CCL, 91157CCL

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice.

         In numerous issues in appellate cause numbers 10-17-00079-CV and 10-17-00081-CV, appellants, Amy and Doug, challenge the trial court's orders terminating their parental rights to their children, A.N.M. and J.C.M.[1] Because we overrule all of Amy and Doug's issues in both appeals, we affirm the judgments of the trial court.[2]

         I. Amy and Doug's Motions to Dismiss and the Trial Court's Monitored-Return Orders

         In her first three issues in both appellate cause numbers, Amy challenges the trial court's monitored-return orders, as well as the trial court's denial of her motions to dismiss. In his first two issues in appellate cause number 10-17-00081-CV, the case involving J.C.M., Doug also complains about the trial court's monitored-return orders and the denial of his motion to dismiss. Specifically, the parties contend in these issues that the trial court should have granted their motions to dismiss because "[o]nce the trial court revoked the order for monitored return[, ] the previous deadlines came back into effect. At the moment the trial court revoked the order for monitored return[, ] the case had already went past the previous deadlines." The parties further argue that the trial court did not have authority to fix the deadline problem, but rather could only dismiss the lawsuits. In addition, Amy independently argues that the trial court erred in ordering a "conditional" monitored return.[3]

         A. Applicable Law

         "A motion to dismiss a case is a matter ordinarily addressed to the sound judicial discretion of the trial court." In re C.T., No. 12-11-00384-CV, 2012 Tex.App. LEXIS 8248, at *6 (Tex. App.-Tyler Sept. 28, 2012, pet. denied) (mem. op.) (citing City of Waco v. Tex. Coffin Co., 472 S.W.2d 800, 804 (Tex. App.-Waco 1971, writ ref'd n.r.e.)). "Therefore, we review the trial court's ruling on a motion to dismiss for an abuse of discretion." Id. (citing Tex. Coffin Co., 472 S.W.2d at 804); see, e.g., In re K.E., No. 07-13-00082-CV, 2013 Tex.App. LEXIS 11270, at *3 (Tex. App.-Amarillo Aug. 30, 2013, no pet.) (mem. op.) (applying an abuse-of-discretion standard to a determination of the dismissal date under chapter 263 of the Family Code); In re M.D.W., No. 02-13-00013-CV, 2013 Tex.App. LEXIS 7956, at **12-13 (Tex. App.-Fort Worth June 27, 2013, pet. denied) (mem. op.) (per curiam). A trial court abuses its discretion if it acts arbitrarily or unreasonably. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); see also In re C.T., 2012 Tex.App. LEXIS 8248, at *3.

         B. Analysis

         In appellate cause number 10-17-00081-CV, the Department filed its original petition to terminate Amy and Doug's parental rights as to J.C.M. and another child that is not the focus of this appeal on March 9, 2015.[4] In a subsequent permanency-hearing order signed on August 27, 2015, the trial court set the dismissal date for the suit as March 14, 2016, as required by section 263.401(a) of the Family Code. See Tex. Fam. Code Ann. § 263.401(a) (West Supp. 2016). On January 28, 2016, the trial court signed an order retaining the suit on the court's docket and extending the dismissal date pursuant to section 263.401(b) of the Family Code until September 5, 2016. See id. § 263.401(b). In July 2016, Amy and Doug each filed motions requesting the monitored return of J.C.M. Thereafter, on August 17, 2016, the trial court signed an order for monitored return, wherein the trial court denied Doug's request for monitored return but granted a monitored return to Amy. As a result of this order, the dismissal date was extended to February 13, 2017, pursuant to section 263.403(b) of the Family Code. See id. § 263.403(b) (West 2014).

         Among the conditions of the order for monitored return was that Amy must provide the Department with her work schedule and a child-care plan and ensure that J.C.M. had no contact with Doug. Because Doug failed to leave her home, Amy filed a motion on August 31, 2016, seeking to modify the order for monitored return to allow her more time to comply with the order and to enable placement. On September 15, 2016, the trial court granted the modification request and ordered that J.C.M. be placed with Amy on September 16, 2016.

         When delivery of J.C.M. was attempted at Amy's home on September 16, 2016, the Department learned that Doug continued to reside at the home, which constituted a violation of the conditions of the monitored-return order. Therefore, on September 16, 2016, the Department filed a motion to revoke the monitored-return order and to set a new dismissal date. In its motion, the Department recounted the unsuccessful monitored return and requested that the dismissal date be reset to March 13, 2017.

         On September 22, 2016, the trial court entered its "Order Revoking Monitored Return and Setting New Dismissal Date" with the following findings:

THE COURT FINDS pursuant to §263.403(c) of the Texas Family Code that the child was unable to be placed into the home of [Amy] on or before September 1, 2016 and also on or before September 16, 2016, due to failure of the parents to comply with the requirements as set forth in the Order for Monitored Return on August 17, 2016, and/or Order Modifying Monitored Return on September 15, 2016.
THE COURT FURTHER FINDS that the child's parents are unwilling or unable to provide the child with a safe environment at this time. Therefore, [J.C.M.] requires substitute care at this time.

(Emphasis in original). The trial court then found "pursuant to §263.403(c) of the Texas Family Code that a new dismissal date, being a date not later than the 180th day after the date the child is moved from the home of the parent, being September 16, 2016, the date of failed placement, under §263.403(c), shall be scheduled" and scheduled the new dismissal date as March 15, 2017.

         Shortly thereafter, Amy and Doug filed separate motions to dismiss, alleging that the trial court's entry of the "Order Revoking Monitored Return and Setting New Dismissal Date" nullified the original monitored-return order and that the case was now beyond the dismissal date established under section 263.401 of the Family Code. In a letter dated October 11, 2016, the trial judge noted the following:

It was not the Court's intention, nor the legal effect, that the Order Revoking the Monitored Return legally nullify the entire prior Orders. Even assuming arguendo that nullification was the effect of the September 22ndOrder, we are still within the 20 day restricted appeal window. To remove any uncertainty that may exist for the parties, I have this day entered an Order Vacating Order Revoking Monitored Return and Setting ...

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