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In re A.E.

Court of Appeals of Texas, Second District, Fort Worth

October 1, 2019

In the Interest of A.E., A Child

          On Appeal from the 158th District Court Denton County, Texas Trial Court No. 17-10158-158

          Before Gabriel, Bassel, and Womack, JJ.

          MEMORANDUM OPINION AND ORDER

          Lee Gabriel Justice.

         Appellant T.S. (Mother) appeals the trial court's order terminating her parental rights to her son A.E. (Adam).[1] In her first issue, Mother complains that the trial court jurisdictionally erred by extending the case's dismissal deadline under family code section 263.401(b). See Tex. Fam. Code Ann. § 263.401(b). In her second issue, she asserts that the trial court erred by not complying with the notice provisions of the Indian Child Welfare Act (ICWA). See 25 U.S.C.A. § 1912(a). In her third issue, Mother contends that the trial court erred by not complying with ICWA's qualified-expert-witness requirement. See id. § 1912(f). In her fourth issue, she alleges that the trial court erred by not making ICWA's required finding beyond a reasonable doubt that Adam's continued custody by her or an Indian custodian would likely cause the child serious physical or emotional damage. See id. Finally, in her fifth issue, Mother challenges the factual sufficiency of the evidence to support the trial court's best-interest finding, embedding a fundamental-fairness subissue as well as an argument based on the ICWA standard of review, see id.

         We overrule Mother's first issue and that portion of her fifth issue not based on ICWA. But we sustain her second issue, conditionally affirm the trial court's judgment, abate the appeal, and remand this case to the trial court.

         We direct the trial court to ensure prompt and proper notice under ICWA, to conduct a hearing to determine whether Adam is an Indian child under ICWA, and to transmit a supplemental reporter's record of the hearing and a supplemental clerk's record containing a copy of the ICWA-compliant notice, the trial court's written findings, any return receipts, and any other supporting documentation to this court by November 6, 2019. No extensions will be granted in this ultra-accelerated appeal. See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed).

         If we receive a supplemental record by Wednesday, November 6, 2019, that contains the trial court's determination that Adam is not an Indian child, we will affirm. Otherwise, we will reverse for a new trial. See 25 C.F.R. § 23.107(b)(2) (directing the trial court with reason to know that a child before it is an Indian child but not enough evidence to determine whether or not the child is an Indian child to "[t]reat the child as an Indian child, unless and until it is determined on the record that the child" is not); Tex. R. Jud. Admin. 6.2(a).

         I. BRIEF FACTS

         Child Protective Services (CPS) removed Adam after he and Mother both tested positive for amphetamines at his November 2017 birth. Mother, a long-time user of methamphetamine with several untreated mental-health issues, a criminal history, and a lengthy CPS history, admitted before the removal that she had last used methamphetamine two days before Adam's birth.

         CPS originally placed Adam in foster care but at the end of May 2018 placed him with his maternal grandmother (Grandma), with whom at least two of Mother's other four children currently lived; a foster family had adopted another child of Mother's. Grandma returned Adam to CPS in early November 2018, and he was placed back with his original foster parents, with whom he remained at the May 2019 trial.

         In her trial testimony, Mother admitted that she last used methamphetamine less than a month before the trial and last used heroin in January 2019, a few months before the trial and just before her drug and alcohol assessment for CPS. She conceded that it was fair to conclude that she had shown "absolutely no behavioral change" since Adam's removal.

         The trial court found that termination of the parent-child relationship between Mother and Adam was in his best interest and that Mother

7.2.1. knowingly placed or knowingly allowed [Adam] to remain in conditions or surroundings which endangered [his] physical or emotional well-being . . .;
7.2.2. engaged in conduct, or knowingly placed [Adam] with persons who engaged in conduct, which endangered [his] physical or emotional well-being . . .;
7.2.3. constructively abandoned [Adam], who ha[d] been in the temporary managing conservatorship of the Department of Family and Protective Services [(DFPS)] for not less than six months, and: 1) [DFPS] ha[d] made reasonable efforts to return [Adam] to [Mother]; 2) [she had] not regularly visited or maintained significant contact with [him]; and (3) [she had] demonstrated an inability to provide [him] with a safe environment; and
7.2.4. failed to comply with the provisions of a court order that specifically established the actions necessary for [her] to obtain [Adam's] return[, ] . . . [when he had] been in the temporary managing conservatorship of [DFPS] for not less than nine months as a result of [his] removal from [Mother] for abuse or neglect . . . .

See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (2). The trial court terminated Mother's parental rights as well as those of R.E. (Father), who voluntarily relinquished his parental rights and did not appeal.

         II. SUBJECT MATTER JURISDICTION AND EXTENSION OF DISMISSAL DEADLINE

         In her first issue, Mother contends for the first time that "[t]he trial court should not have extended the state's case against [her] when there were no 'extraordinary circumstances' within the meaning of that term as used in Texas Family Code section 263.401(b), and none were pleaded nor proved." Within her first issue, Mother claims that the trial court lacked subject matter jurisdiction because it improperly extended the case. We address Mother's jurisdictional claim because subject matter jurisdiction is an issue that cannot be waived and that may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). Whether a trial court has subject matter jurisdiction is a question of law; we therefore review it de novo. Tex. Parks & Wildlife Dep't v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011).

         Section 263.401(a) now provides that "on the first Monday after the first anniversary of the date the court rendered a temporary order appointing [DFPS] as temporary managing conservator," a trial court loses its jurisdiction over a "suit affecting the parent-child relationship filed by [DFPS] that requests termination of the parent-child relationship or requests that [DFPS] be named conservator of the child" "[u]nless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1)." Tex. Fam. Code Ann. § 263.401(a). DFPS filed its petition for termination against Mother and Father on November 30, 2017, and the trial court entered an order naming DFPS Adam's temporary sole managing conservator that same date. Thus, under section 263.401(a), the case's original automatic dismissal deadline was Monday, December 3, 2018. See id. Father filed a motion for extension of the dismissal deadline on September 25, 2018, less than a week before an October 1, 2018 trial setting. In his motion, Father asked for more time to complete his services and characterized that need as "extraordinary circumstances." Id. § 263.401(b). On October 3, 2018, the trial court signed an order entitled "Agreed Order Extending Dismissal Date" in which it (1) found that Father's needing more time to complete his court-ordered services amounted to extraordinary circumstances, (2) found that continuing the appointment of DFPS as Adam's temporary managing conservator was in his best interest, (3) set a new trial date of March 25, 2019, and (4) set a new dismissal date of May 29, 2019. See id. The order recited that all the parties agreed to it, but our review of the order indicates that no party or counsel indicated by signature any substantive agreement, only approval of the order's form. See id. § 263.402 (providing parties may not extend the dismissal deadline by agreement). On the other hand, the record does not contain any evidence that Mother opposed Father's motion, and she did not object to the trial court's ruling or file a motion to dismiss the case; in fact, she filed a motion for continuance on May 13, 2019, the day the trial began, which the trial court denied.

         When the trial court granted Father's motion to extend the case's dismissal deadline less than eleven months after issuing its first temporary order regarding Adam's conservatorship, the trial court was well within its jurisdiction to do so. See id. § 263.401(a). The trial court's granting Father's motion to extend the dismissal deadline allowed the trial court to keep the case on its docket (and within its jurisdiction) for an additional 180 days beyond the original deadline. See id. § 263.401(b); cf. Brant Oilfield Mgmt. & Sales, Inc. v. Mountwest, Inc., No. 14-15-00240-CV, 2016 WL 3574669, at *2 (Tex. App.-Houston [14th Dist.] June 30, 2016, no pet.) (mem. op.) ("If the December 19th motion was a deadline-extending motion under [appellate] rule 26.1, then Brant's notice of appeal was timely filed[, ] and this court has subject matter jurisdiction to decide the merits."). Thus, whether the trial court erroneously granted the motion to extend the dismissal deadline while it had subject matter jurisdiction is not a jurisdictional question. See In re P.N.T., No. 14-18-01115-CV, 2019 WL 2426692, at *2 (Tex. App.-Houston [14th Dist.] June 11, 2019, no pet. h.) ("[A] judgment is void only when it is shown that the court had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court." (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985))) (construing the prior version of the statute). Nonjurisdictional error, like a trial court's action in violation of a statute, makes the court's judgment merely voidable, not void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003); Glassman v. Goodfriend, 347 S.W.3d 772, 780 (Tex. App.-Houston [14th Dist.] 2011, pet. denied) (op. on reh'g en banc) (citing Reiss). The trial court here had "jurisdiction to err." Parrish v. Jessee, 464 S.E.2d 141, 146 (Va. 1995) (quoting Farant Inv. Corp. v. Francis, 122 S.E. 141, 147 (Va. 1924)). We therefore reject both Mother's claim that the trial court lacked subject matter jurisdiction and her conflation of alleged trial error with an alleged absence of jurisdiction.

         Mother did not object in the trial court to the granting of Father's requested extension of the dismissal deadline. Challenges to a voidable judgment "are subject to the rules for preservation of error." P.N.T., 2019 WL 2426692, at *2. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request's, objection's, or motion's context. Tex.R.App.P. 33.1(a)(1)(A). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). Because Mother did not object to the trial court's extending the dismissal deadline, she failed to preserve her complaint that the trial court erred by doing so. We therefore overrule her first issue.

         III. ADAM'S BEST INTEREST

         Mother does not challenge the sufficiency of the evidence supporting the trial court's findings of endangerment, nor does she directly challenge the trial court's findings that she constructively abandoned Adam and failed to comply with the court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O). However, in her fifth issue, she contends that the evidence is factually insufficient to support the trial court's finding that termination of her parental rights is in Adam's best interest. See id. § 161.001(b)(2).

         A. STANDARD OF REVIEW

         We must perform "an exacting review of the entire record" in determining the factual sufficiency of the evidence supporting the trial court's best-interest finding. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the finding and do not supplant it with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that the termination of Adam's and Mother's parent-child relationship would be in his best interest. Tex. Fam. Code Ann. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If a factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18-19.[2]

         B. APPLICABLE LAW

         Although we generally presume that keeping a child with a parent is in the child's best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child's well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child's best interest may be the same evidence that is probative of a conduct ground. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1). We also consider the evidence in light of nonexclusive factors that the trier of fact may apply in determining the child's best interest:

(A) the child's desires;
(B) the child's emotional and physical needs, now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the ...

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