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In re S.L.W.

Court of Appeals of Texas, Sixth District, Texarkana

September 20, 2017

IN THE INTEREST OF S.L.W., A CHILD

          Date Submitted: September 11, 2017

         On Appeal from the County Court at Law No. 1 Gregg County, Texas Trial Court No. 2015-2179-CCL1

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          BAILEY C. MOSELEY, JUSTICE

         On November 23, 2015, in the County Court at Law No. 2 of Gregg County, Texas (CCL2), the Department of Family and Protective Services (Department) filed a petition to terminate Allen and Alice's parental rights to their daughter, Sally.[1] On May 1, 2017, the County Court at Law No. 1 of Gregg County, Texas (CCL1), entered an order terminating Mother's and Father's parental rights to Sally and naming the Department as Sally's permanent managing conservator.

         On appeal, both parties initially argue that the CCL1 lacked jurisdiction over this dispute. In addition, Allen argues that the trial court erred in finding that (1) Allen engaged in conduct or knowingly placed Sally with persons who engaged in conduct which endangered her physical or emotional well-being, (2) Allen failed to comply with the provisions of a court order that established the actions necessary for him to obtain Sally's return after she was left in conservatorship of the Department for not less than nine months as a result of her removal for abuse or neglect, (3) termination of Allen's parental rights was in Sally's best interest, and (4) Sally's foster parents' petition for intervention should not be struck. See Tex. Fam. Code Ann. §161.001(b)(1)(E), (O), (2) (West Supp. 2016). Alice argues that the judge of the CCL2 erred in signing the final order before counsel had an opportunity to object to her assignment to this case by the Honorable Mary Murphy, the presiding judge of the First Administrative Judicial Region of Texas.[2]

         We find that (1) the CCL1 had jurisdiction over the Department's petition, (2) termination of Allen's parental rights to Sally was supported by legally and factually sufficient evidence, (3) the trial court did not abuse its discretion in failing to strike the foster parent's petition in intervention, and (4) Alice did not preserve any complaint about Judge Simpson hearing this case. Accordingly, we affirm the trial court's judgment.

         I. The CCL1 Had Jurisdiction Pursuant to a Proper Transfer from the CCL2

         When the Department initially filed its petition in the CCL2, the case was docketed under cause number 2015-2179-CCL2. On December 10, 2015, the judge of the CCL2 made a docket sheet entry stating that the case had been transferred to the CCL1. The CCL2 also notified the parties that a status hearing would be held in connection with a new cause number, 2015-2179-CCL1, in the CCL1. From that point on, the judge of the CCL1 presided over status and permanency hearings.

         Prior to the expiration of the one-year deadline to commence trial on the merits under Section 263.401 of the Texas Family Code, the CCL1 entered an order extending the deadline by 180 days to May 27, 2017. See Tex. Fam. Code Ann. § 263.401(b) (West Supp. 2016). Confusion arose during the pendency of the case because (a) parties continued to file documents in the CCL2 case, (b) parties filed documents in the CCL1 using the CCL2 cause number, and (c) the CCL1 issued orders using the CCL2 caption and cause number. To ease the confusion, Sally's foster parents, who had intervened in the suit, filed a motion in the CCL2 to transfer the case to the CCL1. Their motion was filed on March 17, 2017, which was well after the one-year deadline, but before the expiration of the 180-day extension that had already been granted by the CCL1. Following a hearing, on April 4, 2017, the CCL2 entered a written order transferring the case to the CCL1. After a trial on the merits, the CCL1 entered an order terminating Allen and Alice's parental rights to Sally.

         Allen filed a motion for new trial and argued (among other things) that the CCL1 lacked jurisdiction to decide the case. Specifically, Allen argued (a) that the one-year deadline passed, (b) that the CCL2's transfer order was signed after the expiration of the one-year deadline, and (c) therefore, that the CCL1 had no jurisdiction to enter its prior order extending the deadline by an additional 180 days. Because Section 263.401(a) of the Texas Family Code requires dismissal of cases unless a trial court commences trial on the merits within the one-year deadline or unless a proper extension is made, Allen argued that the Department's petition should have been dismissed. On appeal, Allen raises these same arguments.

         The Texas Supreme Court has explained that "although subsection 263.401(a) provides for what is called the 'one-year dismissal date' and subsection 263.401(b) provides for a 180-day extension of that one-year dismissal date (if the trial court finds that certain circumstances exist), nothing in the language of section 263.401 indicates that these deadlines are jurisdictional." In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). In issuing its opinion, the Texas Supreme Court noted that Section 263.401 "merely states that the trial court 'shall dismiss the suit' and 'may not retain the suit on the court's docket' when the deadlines expire." Id. (quoting Tex. Fam. Code Ann. § 263.401(a), (b)). Section 263.402 of the Texas Family Code specifically states,

A party to a suit under this chapter who fails to make a timely motion to dismiss the suit under this subchapter waives the right to object to the court's failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences.

Tex. Fam. Code Ann. § 263.402 (West 2014). No motion to dismiss was filed prior to the entry of the final order on the merits, and, in any event, the Texas Supreme Court has decided that the "deadlines are [not] jurisdictional." Id.[3]

         Moreover, Allen's argument that the CCL1 lacked jurisdiction in this case until the CCL2 entered its formal transfer order on April 4, 2017, also fails. The docket sheet stated that the judge of the CCL2 had already transferred the case to the CCL1 on December 10, 2015. Allen argues that Rule 330(e) of the Texas Rules of Civil Procedure does not permit the exchanges of benches in this case.[4] We agree. The authority for the exchange of benches in this case was provided under Section 74.121(a) of the Texas Government Code, which states,

The judges of constitutional county courts, statutory county courts, justice courts, and small claims courts in a county may transfer cases to and from the dockets of their respective courts, except that a case may not be transferred from one court to another without the consent of the judge of the court to which it is transferred and may not be transferred unless it is within the jurisdiction of the court to which it is transferred. The judges of those courts within a county may exchange benches and courtrooms with each other so that if one is absent, disabled, or disqualified, the other may hold court for him without the necessity of transferring the case. Either judge may hear all or any part of a case pending in court and may rule and enter orders on and continue, determine, or render judgment on all or any part of the case without the necessity of transferring it to his own docket. . . .

Tex. Gov't Code Ann. § 74.121 (West 2013). No motion or hearing is necessary to transfer a case pursuant to Section 74.121 of the Texas Government Code. See Davis v. Davis, No. 13-01-707-CV, 2003 WL 21355239, at *1 (Tex. App.-Corpus Christi June 12, 2003, no pet.) (mem. op.). Thus, we find that the case was properly transferred to the CLL1 on December 10, 2015.

         II. Sufficient Evidence Supports Termination of Allen's Parental Rights

         A. Standard of Review

         We strictly scrutinize termination proceedings in favor of the parent. In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.-Texarkana 2007, pet. denied) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). To terminate an individual's parental rights to his child, clear and convincing evidence must show: (1) that the parent has engaged in one of the statutory grounds for termination and (2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1) (West Supp. 2016); In re E. N.C. , 384 S.W.3d 796, 798 (Tex. 2012); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). The clear and convincing burden of proof has been defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." C.H., 89 S.W.3d at 23; see Tex. Fam. Code Ann. § 101.007 (West 2014). Due process demands this heightened standard. E. N.C. , 384 S.W.3d at 802 (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)).

         In a legal sufficiency review, termination findings are given appropriate deference. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Smith v. Tex. Dep't of Protective & Regulatory Servs., 160 S.W.3d 673, 679 (Tex. App.-Austin 2005, no pet.). In such cases, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder could reasonably have formed a firm belief or conviction that the grounds for termination were proven. E. N.C. , 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.-Texarkana 2011, no pet.). We assume that the disputed facts were resolved in favor of the findings if a reasonable fact-finder could do so. E. N.C. , 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573. Conversely, we disregard evidence that a fact-finder may have reasonably disbelieved or testimony from witnesses whose credibility may reasonably be doubted. E. N.C. , 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573.

         "In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.-Texarkana 2015, no pet.) (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. (internal quotation marks omitted) (alteration and omission in original) (quoting H.R.M., 209 S.W.3d at 109; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); J.F.C., 96 S.W.3d at 264, 266. "If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting J.F.C., 96 S.W.3d at 266). "[I]n making this ...


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