Court of Appeals of Texas, Sixth District, Texarkana
Submitted: September 11, 2017
Appeal from the County Court at Law No. 1 Gregg County, Texas
Trial Court No. 2015-2179-CCL1
Morriss, C.J., Moseley and Burgess, JJ.
C. MOSELEY, JUSTICE
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. 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
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.
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.
The CCL1 Had Jurisdiction Pursuant to a Proper
Transfer from the CCL2
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.
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.
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.
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
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]
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. 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.
Sufficient Evidence Supports Termination of
Allen's Parental Rights
Standard of Review
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.
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.
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 ...