in the Interest of A. G., J. G., S. G., M. G., and J. G., III, Children ( 2002 )

                             NUMBER 13-00-518-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI

___________________________________________________________________

IN THE INTEREST OF A.G., J.G., S.G., M.G., AND J.G., III, CHILDREN

___________________________________________________________________

                   On appeal from the 36th District Court

                        of San Patricio County, Texas.

__________________________________________________________________

                              O P I N I O N

          Before Chief Justice Valdez and Justices Yañez and Castillo

                                  Opinion by Justice Castillo

This is an appeal from a judgment following a trial in which the jury returned a verdict recommending the termination of the parental rights of both Juan Garcia, Jr.  (AGarcia@) and Brenda Guzman (AGuzman@) as to five children. Guzman and Garcia both filed notices of appeal and present separate issues for review. We dismiss this case as to both Juan Garcia, Jr. and Brenda Guzman for want of jurisdiction.

                                               Procedural History  

The record before us discloses that on March 22, 1999, pursuant to a referral by a school nurse, caseworkers with the Texas Department of Protective and Regulatory Services (ATDPRS@) arrived at the home of appellant Guzman=s mother and found a nine-year-old female child and an eight-month-old infant boy without supervision.^[1]  Born with a heart defect, the infant was not hooked up to an apnea monitor and was crying.  Since the previous December, Brenda Guzman had temporarily placed the children with her mother, Lenore Guzman, as the result of prior TDPRS intervention because of Brenda Guzman=s drug use.  Lenore Guzman had left the two children at home with an Aolder girl@ while she took the five other children to the grocery store. The home was in disarray.  Food, some in original wrappers and some left over, was left throughout the kitchen.  Clothes were strewn about.  It was discovered that one child had scabies while others had lice. 

On the same day, TDPRS took emergency possession of all the children. After removing Guzman=s seven children from the home, TDPRS filed a suit affecting parent-child relationship (ASAPCR@), seeking conservatorship of the children and termination of parental rights.^[2]  The SAPCR named as respondents Guzman and Garcia, identifying Garcia as the children=s father.^[3] In connection with the SAPCR, TDPRS obtained emergency temporary orders naming it temporary sole managing conservator of the children.^[4]  On April 5, 1999, after the statutory adversary hearing,^[5] the district court entered temporary orders appointing TDPRS as temporary sole managing conservator of the children. Although Guzman appeared, Garcia was not notified and did not appear.

Subsequently, the trial court held four statutory hearings.^[6]  On February 14, 2000, Garcia filed a Motion to Continue Trial and Extend Time of Court=s Jurisdiction, seeking postponement of a March 14, 2000, jury trial setting, since he was confined in San Diego, Texas with a projected discharge date of May 9, 2000.^[7]  On February 28, 2000, the trial court entered an order granting the continuance and extending the trial court=s jurisdiction to August 21, 2000,^[8] without further orders for the children=s safety and welfare.^[9]  On May 17, 2000, a jury returned a verdict that the parent-child relationship between Guzman, Garcia, and the children should be terminated.^[10]  Having denied Garcia=s post-trial motions, on June 9, 2000, the trial court entered an Order of Termination from which Garcia and Guzman bring their appeals.  As Garcia notes in his brief, the order provides that the parent-child relationship between Garcia and the children Ashould be terminated,@ whereas, for Guzman, the relationship Ais terminated.@  ^[11] (Emphasis added). 

Garcia raises four issues for review. By his first two issues, Garcia urges that the evidence was legally and factually insufficient to support the judgment terminating his parental rights.  By his third and fourth issues, he maintains that the evidence was legally and factually insufficient to support the jury=s determination that termination of his parental rights was in the best interest of the children. 

Guzman raises eleven issues for review.  By her first, third, fifth, and eighth issues, she urges that the evidence was legally insufficient to support the jury verdict as to each of the statutory grounds alleged in support of termination of her parental rights. By her second, fourth, sixth, and seventh issues, she argues that the evidence was factually insufficient as to each of the statutory grounds. By her ninth and tenth issues, Guzman maintains that the evidence was legally and factually insufficient to support the jury=s determination that termination of the parent-child relationship was in the best interest of each child.  By her eleventh issue, Guzman asserts that she was denied procedural due process under the Fifth and Fourteenth Amendments to the U.S. Constitution since the trial court did not comply with section 262.106 of the family code.^[12]

                                                     Jurisdiction

          Before we reach the merits of this case, we must first determine whether we have jurisdiction over this appeal.  Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because the question of jurisdiction is a legal question, we follow the de novo standard of review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Jurisdiction of a court is never presumed and, if the record does not affirmatively demonstrate the appellate court=s jurisdiction, the appeal must be dismissed.  El-Kareh v. Texas Alcoholic Beverage Comm=n, 874 S.W.2d 192, 194 (Tex. App.BHouston [14th Dist.] 1994, no writ). 

Chapter 263 of the family code addresses judicial review of the placement of children under the care of the TDPRS.^[13]  Section 263.401(a) of the family code,  provides for a one-year time limit for the disposition of a SAPCR unless a timely extension has been granted, stating:

(a)  Unless the court has rendered a final order or granted an extension under Subsection (b), 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 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. 

Tex. Fam. Code Ann. ' 263.401(a) (Vernon Supp. 2002).^[14]

In the present case, the first anniversary of the date of the temporary order naming TDPRS temporary managing conservator of the children was March 23, 2000.  The Monday next was March 27, 2000.  However, the same statute authorized the trial court to extend jurisdiction as follows:

(b) On or before the time described by Subsection (a) for dismissal of the suit, the court may extend the court=s jurisdiction of the suit for a period stated in the extension order, but not longer than 180 days after the time described by Subsection (a), if the court has continuing jurisdiction of the suit and the appointment of the department as temporary managing conservator is in the best interest of the child. If the court grants an extension, the extension order must also:

(1)      schedule the new date for dismissal of the suit; and

(2)      make further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit.

Act of May 31, 1997, 75^th Leg., ch. 1022, '90, 1997 Tex. Gen. Laws 3733, 3769 (amended 2001)(current version at Tex. Fam. Code Ann. '263.401(b)(Vernon Supp. 2002)).     

Here, upon the motion to continue the jury trial setting, the trial court entered an AOrder for Continuance of Trial and Extension of Time of Court=s Jurisdiction@ on February 28, 2000.^[15]  The jurisdictional problem arises upon the analysis of the final part of subsection (b) which provides that the order make further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit.

The order schedules a new dismissal date within the 180-day window, and it expressly extends jurisdiction to accommodate the Athe moving parties= need for additional time for preparation and discovery.@  However, the order is wholly silent as to further temporary orders for the safety and welfare of the children.  We note also that the order does not make any findings about the trial court=s continuing jurisdiction or that the appointment of the department as temporary managing conservator is in the best interest of the child, the requisite conditions precedent for the trial court to have jurisdiction to enter an extension order at all.  Act of May 31, 1997, 75^th Leg., ch. 1022, '90, 1997 Tex. Gen. Laws 3733, 3769 (amended 2001)  .  Accordingly, we hold that the extension order fails to meet the statutory mandates for extending jurisdiction and therefore fails to preserve the trial court=s jurisdiction to proceed to a termination hearing.  See In re Neal, 4 S.W.3d 443, 446 (Tex. App.BHouston [1st Dist.] 1999, orig. proceeding)(where order did not contain findings mandated by a particular section of the family code, the order could not be considered an order of extension under that section, interpreting specifically section 263.402(a)); but see In Re Bishop, 8 S.W.3d 412, 418 (Tex. App.BWaco 1999, orig. proceeding)(in which the court, without ruling on the question of requirements, treated an order that did not comply with the precise provisions of section 263.401(b) as an extension order).

On March 27, 2000, which was the Monday following the date of the anniversary of the order appointing TDPRS temporary managing conservator, there was neither a final order in place nor an order properly extending jurisdiction.  Therefore, the trial court was required to sign a dismissal order on March 27, 2000. Tex. Fam. Code Ann. '263.401(a)(Vernon Supp. 2002); In the Interest of T.M., a Child, 33 S.W.3d 341, 346 (Tex. App.BAmarillo 2000, no pet.). The order of  termination entered after the jury rendered its verdict is dated June 9, 2000, well after the expiration of the statutory dismissal date. Accordingly, the only action the trial court could take at that time was to sign an order dismissing the suit.^[16]  In re Ruiz, 16 S.W.3d 921, 926-28 (Tex. App.BWaco 2000, orig. proceeding).

                                    Conclusion 

The trial court entered the order of termination of parental rights as to both appellants after it lost jurisdiction to do so.  Hence, the order is void.   We have no jurisdiction over a void judgment and so do not reach the merits of the appeals before us.^[17]  See Nabejas v. Texas Dep=t of Pub. Safety, 972 S.W.2d 875, 876 (Tex. App. B Corpus Christi 1998, no pet.).  While there is no need to appeal a void judgment, it is well settled that where a party has done so, the proper practice for a reviewing court is to set the judgment aside and dismiss the case. State Ex. Rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex.1995); Dallas County Appraisal Dist. v. Funds Recovery, 887 S.W.2d 465 (Tex. App. B  Dallas 1994, writ denied)(citing Fulton v. Finch, 346 S.W.2d 823, 827 (Tex. 1961) and State ex rel. Kelly v. Baker, 580 S.W.2d 611, 612-13 (Tex. Civ. App. B Amarillo 1979, no writ)).  We therefore set aside the order of termination of parental rights as to both appellants and dismiss both appeals for want of jurisdiction.^[18]             

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of April, 2002.

---

^[1] Both are subjects of the underlying suit.  

^[2] Originally, the lawsuit involved seven children.  On March 13, 2000, the district court severed the cause involving the two children whose father was cross-petitioner Raul Maldonado.

^[3] We note that Garcia denied paternity in all filed documents.  The TDPRS caseworker in charge of the case testified that he told her Ahe wasn=t sure that all the children were his.@ During a later conversation, he reportedly said Ahe would take all the children because he knew all the children and didn=t want to split the children up.@ At trial, Garcia did not testify and Guzman was not asked, and  did not address, whether Garcia was the children=s father.

^[4] On the same day, the district court appointed a local attorney as attorney ad litem and guardian ad litem for the subject children.  Both Garcia and Guzman were represented by attorneys.

^[5] Tex. Fam. Code Ann. ' 262.201 (Vernon Supp. 2002).

^[6] A status hearing was held on May 17, 1999, pursuant to section 262.201 of the family code.  Permanency hearings were held on August 2, 1999, October 27, 1999, and January 25, 2000, pursuant to section 263.306 of the family code.  On January 25, 2000, Garcia appeared for the first time, having previously not received notice.  Another permanency hearing was held on February 21, 2000. 

^[7] The record discloses that Garcia was in a Substance Abuse Felony Punishment Facility (SAFPF) following a July 16, 1999, judgment of conviction placing him on probation for delivery of a controlled substance (.20 gram cocaine).

^[8] Tex. Fam. Code Ann. ' 263.401 (Vernon Supp. 2002).

^[9] Tex. Fam. Code Ann. ' 263.401(b)(2) (Vernon Supp. 2002).

^[10] As to Juan Garcia, Jr., the jury charge instructed that, for termination of the parent-child relationship, clear and convincing evidence must prove that he Aknowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child@ or Aengaged in conduct which endangers the physical or emotional well-being of the child.@  As to Brenda Guzman, the jury charge included the identical instructions for Garcia with the additional grounds for termination that she  Ahas been the cause of the child being born addicted to alcohol or a controlled substance@ other than a prescription or Aused a controlled substance . . . in a manner that endangered the health and safety of the child.@ 

^[11] We note that the language stating Garcia=s rights Ashould@ be terminated is of questionable finality. However, it is representative of a record that leaves unanswered whether there ever was a parent-child relationship to terminate between Garcia and the subject children.  See e.g., Tex. Fam. Code Ann. '' 151.001(b), 151.002, 160.101 et seq., 162.001 et seq.

^[12] The provision mandates the procedures for the initial hearing after a governmental entity=s taking possession of a child in an emergency without a court order.  Tex.  Fam. Code Ann. '262.106 (Vernon Supp. 2002).

^[13] ADepartment@ means the Department of Protective and Regulatory Services. Tex. Fam.

Code Ann. '263.001(a)(1)(Vernon 1996). 

¹⁴ Although section 263.401 has been amended since the time of the hearing in question, the amendment did not affect subsection (a) and so the current recitation reflects the law in effect at the time of the hearing.

^[15] Garcia filed the motion joined by Guzman.  The children=s attorney and the assistant county attorney Aneither joined in nor opposed the motion.@ 

^[16] We note that section 263.402 of the family code, known as the Areturn and monitor statute@ authorizes the extension of the trial court=s jurisdiction A[n]otwithstanding Section 263.401. . . .@  Tex. Fam. Code Ann. '263.402 (a)(Vernon Supp. 2002).  The provision, however, is inapplicable to the case before us since it addresses a situation in which TDPRS, as temporary managing conservator, returns a child to a parent and monitors the placement for a court-imposed period not to exceed 180 days from the date of the timely placement.  Here, TDPRS did not place any child with a parent. 

¹⁷ As we are dismissing for lack of jurisdiction, we need not address the questions previously raised by the record about the sufficiency of the evidence and the termination order.  See notes 3 and 11, supra, regarding the lack of evidence as to the paternity of the children and the apparent lack of finality of the order relating to Garcia.

¹⁸ A dismissal under section 263.401(a) of the family code is without prejudice.  See Bishop, 8 S.W.3d at 420.  Thus TDPRS is not barred from re-filing the case asserting new grounds, if any, for the removal of the children and new grounds, if any, for the termination of parental rights. See Ruiz, 16 S.W.3d at 927.