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In re A.F.

Court of Appeals of Texas, Second District, Fort Worth

September 24, 2019

In the Interest of A.F., W.J., A.J., and J.J., Children

          On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-621373-17

          Before Birdwell, Bassel, and Womack, JJ.

          OPINION

          WADE BIRDWELL JUSTICE

         Mother and Father[1] appeal the termination of their parental rights, arguing that the trial court lost jurisdiction before rendering judgment because it failed to comply with the family code's one-year deadline for termination suits. See Tex. Fam. Code Ann. § 263.401(a). We agree that the trial court lost jurisdiction and that the judgment is void. Therefore, we vacate the trial court's judgment and dismiss the appeal.

         I. Background

         On June 28, 2017, the Texas Office of the Attorney General (OAG) filed a petition to establish Father's paternity with regard to two of Mother's children: A.J. and J.J. The petition asserted that Father had already legally acknowledged his parent-child relationship with the oldest of the couple's three children, W.J., by executing and filing an Acknowledgement of Paternity with the Vital Statistics Unit pursuant to chapter 160 of the family code. See id. §§ 160.301–.302, .304–.305. In the same pleading, the OAG filed a suit affecting parent-child relationship (SAPCR)[2] as to all three children, seeking the appointment of "appropriate conservators" pursuant to family code section 153.005 and an order of current and retroactive child and medical support pursuant to family code chapter 160. On December 5, 2017, the trial court entered a default temporary order-after Father failed to appear at the hearing due to his incarceration in Henderson, Texas-establishing the parent-child relationship between Father and the three children, appointing Mother as their managing conservator, appointing Father their possessory conservator, and ordering Father to pay child support. Due to the following intervening events and the subsequent judicial admission of paternity by Father in eventually seeking custody, the trial court never entered a final order on the SAPCR filed by the OAG.

         On January 8, 2018, the Texas Department of Family and Protective Services (the Department) filed-in the same cause number as the paternity suit-a Motion for Orders in Aid of Investigation of a Report of Child Abuse or Neglect pursuant to chapter 261 of the family code. The Department sought ex parte orders from the trial court to facilitate its investigation into allegations of child abuse and neglect of not only W.J., A.J., and J.J., but also an older half-sibling, A.F., all of whom allegedly lived with Mother at their maternal grandmother's residence.

         In a supporting affidavit, the Department investigator, Nicole Rosier, summarized the allegations of abuse and neglect made the basis of the motion as the abusive use of cocaine and alcohol by Mother, the maternal grandmother, and an uncle while living in a dilapidated home, as well as the absence of electricity and running water in that home, the latter requiring the use of a bucket as a toilet. Rosier further noted reports that the children had been seen asking for food in the neighborhood and that Mother had been beating them with her fists. Rosier had been able to interview W.J, A.J., and J.J. at school, but Mother and the maternal grandmother had either repeatedly denied or otherwise avoided granting Rosier access to the children themselves and to the home for Rosier's investigation. Significantly, the report initiating the investigation occurred on December 7, 2017, just two days after Mother had appeared with the OAG for the hearing resulting in the default temporary order adjudicating Father's paternity.

         Based on Rosier's affidavit, and specifying family code section 261.303 for its authority, on January 8, 2018, the trial court entered an order authorizing a representative of the Department to have immediate investigatory access to each of the children, including immediate access to their home for the purpose of interviewing them and examining the premises for evidence of abuse or neglect. See id. § 261.303 (allowing trial court to order interview, examination, or investigation for good cause if admission to child's home, school, or place where the child may be cannot be obtained). Having obtained court-ordered access to the children through this second SAPCR, the Department made no further filings related to this motion and order.

         On March 1, 2018, however, the Department filed-again, in the same cause number-its original petition to terminate Mother's and Father's respective parental rights with regard to W.J., A.J., and J.J., as well as Mother's and A.F.'s father's parental rights to A.F. The petition urged neither the filing of the original paternity SAPCR nor the chapter 261 motion for orders in aid of investigation as the statutory basis for the trial court's jurisdiction; instead, it invoked the trial court's jurisdiction pursuant to family code chapter 262: "This Court has jurisdiction of the suit affecting the parent-child relationship and of the suit for protection of a child under chapter 262, Texas Family Code, and Petitioner believes no other Court has continuing, exclusive jurisdiction over the children." Indeed, despite the fact that Mother, Father, and the OAG were already before the trial court as parties to the original paternity SAPCR, the Department requested service of process on Mother, Father, and A.F.'s father, and asserted service by mail upon the OAG, as required by section 102.009 of the Texas Family Code upon "the filing of a petition in an original suit." See id. § 102.009(a)(1) ("a managing conservator"), (a)(2) ("a possessory conservator"), (a)(7) ("each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Chapter 161"), (d) ("Title IV-D agency").[3]

         In support of this second SAPCR, including its request for emergency orders to obtain removal, possession, and temporary sole managing conservatorship of the children, the Department again attached an affidavit from Rosier, wherein she referenced "a priority 2 intake" received by the Department on February 22, 2018, asserting essentially the same allegations of abuse and neglect made the basis of the Department's first SAPCR. Significantly, however, Rosier's second affidavit established that the Department considered this investigation to be "a new case" because despite the Department's having obtained a court order for access in the first SAPCR, "[t]hat [prior] case was closed" due to Mother's lack of cooperation, and Mother was "still refus[ing] caseworker entry to the home." In addition to recounting much of the information contained in her original affidavit, Rosier provided additional information justifying the emergency relief and other relief sought by the Department in this second SAPCR, including an outcry from A.J. of being subjected to pornographic material by an uncle that lived in the home.

         On the same day the Department filed its second SAPCR, the trial court rendered an emergency order naming the Department as the children's temporary sole managing conservator, asserting jurisdiction under section 262.002 of the family code. Id. § 262.002. It is undisputed that under section 263.401 of the family code, the emergency order triggered a one-year statutory dismissal deadline for the trial court (1) to commence a trial on the merits, (2) on the basis of certain express findings, to render an order extending the original deadline up to 180 days (and to thereafter commence a trial on the merits within the extended deadline), or (3) to dismiss the second SAPCR. See id. § 263.401(a), (b). The original dismissal deadline was to expire on the first Monday after one year had passed, which was March 4, 2019. See id. Trial was set for February 27, 2019.

         As the trial setting and the dismissal deadline approached, though, Father filed a motion for continuance. A hearing was scheduled on Father's motion. The parties agree that no record was made of the proceeding. The parties disagree on the outcome of the hearing: Mother and Father contend that no order of continuance extending the dismissal deadline was formally rendered; the Department contends that an extension and continuance were both granted, citing an entry in the trial court's case management system, which was electronically signed by an associate judge, indicating that the trial court had "granted extension and reset on or before 4/30/19."

         Regardless, the original dismissal deadline of March 4, 2019, soon passed, and neither Mother nor Father filed a motion to dismiss the proceeding. On March 26, 2019, the presiding judge commenced a bench trial. On the first day of trial, the Department presented and asked the trial court to sign an order purporting to grant an extension of the dismissal deadline under section 263.401(b). In response to the trial court's query, counsel for Mother and Father stated that they had no objection to the proposed order, which the trial court then signed. The order found, without factual explanation, that extraordinary circumstances and the best interest of the children necessitated the retention of the case on the trial court's docket and the continued temporary managing conservatorship of the Department. The order further extended the dismissal deadline to August 30, 2019, not the April 30, 2019 date set forth in the case management system entry. And although the order provided a line for the entry of a new trial setting as required by section 263.401(b), the trial court left it blank upon signing.

         After hearing the evidence, the trial court granted termination as to all of the parents and named the Department as the permanent managing conservator of all four children. Mother and Father appeal.

         II. Which Version of Family Code Section 263.401 Applies?

         To begin with, the parties dispute which version of the statutory dismissal deadline should apply in these proceedings. The difference is critical because under the current version of section 263.401, the one-year deadline is jurisdictional and dismissal is automatic. See In re G.X.H., No. 14-19-00053-CV, 2019 WL 2631165, at *1 (Tex.App.-Houston [14th Dist.] June 27, 2019, no pet. h.). Under the former version of that section, the deadline was not jurisdictional, In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009) (orig. proceeding), and it was incumbent on the parent to move for dismissal or else risk forfeiting any complaint that the deadline had passed. In re M.T.R., No. 14-18-01058-CV, 2019 WL 2144685, at *8 (Tex.App.-Houston [14th Dist.] May 16, 2019, no pet.) (collecting cases).

         Complicating the analysis, sections 263.401 and 263.402 were amended twice by the 85th Legislature in 2017 through the enactment of Senate Bill 11 and House Bill 7. Act of May 28, 2017, 85th Leg., R.S., ch. 319, §§ 12–13, 2017 Tex. Sess. Law Serv. 716, 721–22 (S.B. 11); Act of May 24, 2017, 85th Leg., R.S., ch. 317, §§ 27–28, 2017 Tex. Sess. Law Serv. 615, 623–24 (H.B. 7). The language of the relevant amendments is identical in House Bill 7 with the sole addition of an additional sentence requiring judicial notification of impending dismissal:

Sec. 263.401. DISMISSAL AFTER ONE YEAR; NEW TRIALS; EXTENSION. (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 [court shall dismiss] 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 automatica ly dismissed, the court sha l notify al parties to the suit of the automatic dismissal date.
(b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court's docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court's docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in ...

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