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In re G.X.H.

Court of Appeals of Texas, Fourteenth District

June 27, 2019

IN THE INTEREST OF G.X.H., JR. AND B.X.H., CHILDREN

          On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2017-04498J

          Panel consists of Justices Wise, Jewell, and Hassan.

          OPINION

          Ken Wise Justice.

         This accelerated appeal arises from a final decree in a suit in which termination of the parent-child relationship was at issue. See Tex. Fam. Code Ann. § 109.002(a-1). The trial court terminated the parental rights of R.L.C. (Mother) and G.X.H. (Father) with respect to their sons, Gregory and Brandon.[1] The trial court also appointed the Texas Department of Family and Protective Services (the Department) to be the boys' managing conservator.

         On appeal, Mother and Father contend the decree is void because the trial on the merits did not commence before a statutory deadline. Alternatively, they assert the evidence is legally and factually insufficient to support termination. The Department counters that the trial on the merits did commence before the deadline, and even if it did not, the decree is not void for various reasons.

         We agree the decree is void. Therefore, without reaching the merits of the sufficiency challenges, we vacate the decree and dismiss the underlying case.

         Dismissal Deadline

         Effective September 1, 2017, the trial court in a parental termination case automatically loses jurisdiction if the trial on the merits does not begin by the deadline imposed by section 263.401(a) of the Texas Family Code. Section 263.401(a) states:

(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court's jurisdiction over the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60th day before the day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.

         It is undisputed the trial court did not grant an extension under Subsection (b) or (b-1). Accordingly, the dates relevant to our analysis are: (1) the date the court rendered a temporary order appointing the Department as temporary managing conservator; (2) the first anniversary of that date; (3) the date of the following Monday; and (4) the date the trial on the merits began.

         The trial court signed an Order for Protection of a Child in an Emergency on September 21, 2017, the day suit was filed, appointing the Department as the boys' temporary managing conservator until a full adversary hearing was held. The full adversary hearing was held on October 5, 2017, after which the trial court signed an order appointing the Department as Gregory's and Brandon's temporary managing conservator.

         Assuming the first order started the section 263.401(a) clock, the first anniversary of that date was Friday, September 21, 2018. The first Monday after that date was Monday, September 24, 2018. The trial on the merits began on October 17, 2018.

         The trial on the merits did not commence by the deadline imposed by section 263.401(a), and no extension was granted under section 263.401(b) or (b-1). As a result, the trial court's jurisdiction terminated and the suit was automatically dismissed on September 24, 2018. The decree, which was signed after the trial court's jurisdiction had terminated, is void.

         The Department's Arguments

         The Department offers three arguments why the decree is not void. First, it contends the trial on the merits actually began when the trial court considered evidence in February 2018 of Father's paternity. Second, the Department says, a pleading it filed after the automatic dismissal date "was sufficient to confer jurisdiction on the court." Third, on behalf of Gregory and Brandon, the Department asserts section 263.401(a) is unconstitutional facially and as applied. The boys' attorney ad litem joins the Department's constitutional arguments.

         I. The trial on the merits began in October 2018, not February 2018.

         The first question we face is one of statutory construction: what does "commenced the trial on the merits" mean as used in section 263.401(a)? That question usually arises in the following context: the trial court called the case for trial on or before the dismissal date, a witness briefly testified, then the trial court recessed the trial until after the dismissal deadline. Parents on appeal have argued such proceedings before the dismissal deadline were a sham. We recently encountered such an argument but did not reach its merits because the appellants had not preserved the complaint for appellate review. In re P.N.T., No. 14-18-01115-CV, ___ S.W.3d ___, 2019 WL 2426692, at *2 (Tex. App.-Houston [14th Dist.] June 11, 2019, no pet. h.). Our sister courts have considered whether an appointed lawyer's failure to file a motion to dismiss in that situation constituted ineffective assistance of counsel. They have refused to find the lawyer to have provided ineffective assistance when the claimed error is based on the "unsettled law" of what constitutes commencement of the trial on the merits. See In re P.M.W., 559 S.W.3d 215, 221 (Tex. App.-Texarkana 2018, pet. denied); In re D.I., No. 12-16-00159-CV, 2016 WL 6876503, at * 5 (Tex. App.-Tyler 2016, no pet.) (mem. op.); G.M. v. Tex. Dep't of Family & Protective Servs., No. 03-15-00825-CV, 2016 WL 3522131, *3-*4 (Tex. App.-Austin June 23, 2016, no pet.) (mem. op.).

         This case is different, because there is no suggestion the trial court called the case for trial, as that phrase is typically used, on or before the dismissal date. Rather, the Department contends the trial court "commenced the trial on the merits" in February 2018, when it considered evidence of Father's paternity.

         A. Statutory construction

         Our objective in statutory construction is to give effect to the Legislature's intent. We ascertain intent from the plain meaning of the words used in the statute, because "the best indicator of what the Legislature intended is what it enacted." Sw. Royalties, Inc. v. Hegar, 500 S.W.3d 400, 404 (Tex. 2016). Several presumptions guide the intent analysis. We presume the Legislature intended that (1) the statute would comply with the United States and Texas Constitutions, (2) the entire statute would be effective, (3) the result would be "just and reasonable," (4) the result would be feasible of execution, and (5) public interest is favored over any private interest. Tex. Gov't Code Ann. § 311.021. Courts may consider many factors in construing a statute, including (1) the object sought to be obtained, and (2) the circumstances under which the statute was enacted. Tex. Gov't Code Ann. § 311.023(1)-(2); Wal-Mart Stores, Inc. v. Forte, 497 S.W.3d 460, 466 (Tex. 2016).

         We presume the Legislature selected statutory words, phrases, and expressions deliberately and purposefully and was just as careful in selecting the words, phrases, and expressions that were included or omitted. In re A.L.M.-F., No. 17-0603 ___, S.W.3d ___, 2019 WL 1966623, at *5 (Tex. May 3, 2019). We do not consider those words and phrases in isolation; rather, "we consider the statute as a whole, giving effect to each provision so that none is rendered meaningless or mere surplusage." TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).

         B. "Trial on the merits"

         The Department asserts "commenced the trial on the merits" should be construed according to its common usage as dictated by the Code Construction Act. Tex. Gov't Code Ann. § 311.011(a). The Code Construction Act also states, "Words or phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." Id. § 311.011(b). The Department contends "commenced" means "began" and "the trial on the merits" means "formal judicial examination of evidence and substantive determination of all or part of the claims for relief in the suit." Using those definitions, the Department asserts the trial on the merits began when the trial court considered evidence in February 2018 regarding Father's paternity of Gregory and Brandon, because determination of paternity was part of the relief the Department requested in its original petition.

         Determination of parentage is governed by the Uniform Parentage Act, codified in chapter 160 of the Family Code. That chapter imposes its own procedures to adjudicate parentage. See generally Tex. Fam. Code Ann. §§ 160.601-.637. The result of such a proceeding is an "order adjudicating parentage." Id. § 160.636.

         For several reasons, we disagree that a proceeding to adjudicate paternity conducted as part of a suit for termination of parental rights is "the trial on the merits" in the termination suit. First, we look to the language the Legislature chose. Chapter 160 creates a "proceeding to adjudicate parentage." Tex. Fam. Code Ann. ch. 160, subtitle G. If the Legislature intended the deadline in section 263.401(a) to be satisfied by the trial court's conducting a proceeding to adjudicate parentage, it could have said so. Instead, it used the phrase "the trial on the merits."

         Second, a hallmark of a proceeding to adjudicate parentage is the prohibition of a jury. "The court shall adjudicate paternity of a child without a jury." Id.§ 160.632.[2] By contrast, a suit for termination of parental rights generally may be tried by a jury. Tex. Fam. Code Ann. § 105.002.[3] Characterizing a proceeding to adjudicate parentage as part of "the trial on the merits" would conflict with a party's constitutional right to a jury trial in a suit to terminate parental rights. Tex. Const. art. I, ยง 15 ("The right of trial by jury shall remain inviolate."). Such a characterization violates the first presumption of statutory ...


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