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In re K.B.

Court of Appeals of Texas, Ninth District, Beaumont

December 5, 2019

IN THE INTEREST OF K.B. AND J.B.

          Submitted on October 15, 2019

          On Appeal from the 258th District Court Polk County, Texas Trial Cause No. CIV31460

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON JUSTICE.

         Appellant Mother appeals the trial court's entry of an Agreed Final Order in Suit Affecting the Parent-Child Relationship ("SAPCR") regarding her minor children K.B. and J.B.[1] As explained below, we conclude that the order from which the appellant appeals is void and must be vacated, and we dismiss this appeal.

         Procedural Background

         On December 5, 2017, the Department of Family and Protective Services ("Department") filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship and Order Setting Hearing. Following a hearing, on December 12, 2017, the trial court entered a temporary order appointing the Department as temporary managing conservator for the children. On November 27, 2018, the court entered an Agreed Order for Monitored Return of the Children to [Mother], ordering a transition plan for monitored return of the children to Mother and that the Department would continue to serve as temporary managing conservator of the children. The order for monitored return included the following provision:

Pursuant to § 263.403(b), Texas Family Code, this suit shall be dismissed on ____, which date is not later than 180 days following the date this temporary order is rendered, unless the child must be removed from said home prior to that date.

         The children were then returned to the Mother on a monitored basis on November 27, 2018. Before the children were returned to the Mother the Department had placed the children with foster parents. On February 4, 2019, over two months after the children were returned to the Mother, the foster parents ("Intervenors") filed an intervention in the SAPCR. The Intervenors sought to be appointed the children's managing conservator, or in the alternative, possessory conservator.

         On April 26, 2019, the trial court held a permanency hearing, and the matter was set for trial on June 10, 2019. At the permanency hearing, the Department told the court that the monitored return had been successful, and the Department was ready to dismiss. The caseworker, the court-appointed special advocate, and Mother agreed to dismissal of the action. The clerk's record includes a letter to the parties' attorneys from the trial judge stating that the case had been transferred to his court from another judge and the trial judge believed "the dismissal date for this suit is June 12, 2019." The trial court held a hearing on the petition to intervene on May 10, 2019. The trial court granted the petition to intervene over the objections from Mother.

         The trial court held a "Settlement Agreement" hearing on June 7, 2019. The Department told the court the settlement "is agreeable with the Department with the note that the Department is going to be dismissed and not named any type of conservator." Counsel for the Intervenors told the court that they had reached an agreement with Mother to be appointed managing conservator and intervenors as possessory but that there was no agreement as to which weekend the Intervenors would have the children, and the Intervenors' attorney stated "[r]ight now, we just agree it's the first weekend unless otherwise agreed." The trial court stated that the Department was "getting out of it." Counsel for the Intervenors agreed to draft an order for the court by the following Monday. The court stated on the record that the agreement "needs to be signed off on by the parties and the counsel."

         Before any written agreement was signed or filed with the trial court, on June 12, 2019, Mother filed an affidavit with the court indicating she could not agree with the Intervenors and stating in relevant part:

A hearing was held on Friday June 7, 2019 at which time I agreed before the Court to a step-up visitation schedule with the Intervenors[.]
Their attorney [] was to prepare an Order for signing on Monday, June 10, 2019, for my review and agreement.
I appeared in Court on Monday, June 10, 2019 at 8:30 a.m. and [counsel for the Intervenors] did not have an Order for my review at that time. [The Intervenors] were not present as well as the CPS workers, their supervisors, Assistant District Attorney, [counsel for the Department], nor any ...

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