in Re Roxsane R. ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-397-CV
IN RE ROXSANE R.
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FROM THE 231 ST DISTRICT COURT OF TARRANT COUNTY
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OPINION
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This is an original proceeding in which relator Roxsane R., J.R.’s
mother, contends that this court should compel the trial court to dismiss the
pending plea in intervention filed by real parties in interest Jennifer and Gary
S., former foster parents of J.R., in which they seek to be named managing
conservators of J.R. We conditionally grant the writ.1
1
… Our disposition of this case in favor of relator renders our previous
granting of an extension to file a supplemental record on behalf of relator
moot.
Background
On October 30, 2003, the Texas Department of Family and Protective
Services (TDFPS)2 filed an original petition for emergency removal of four-
month-old J.R. in the 170th District Court of McLennan County, seeking
permanent managing conservatorship. J.R. was with his mother Roxsane in
Wisconsin at the time and was removed there. J.R. was placed with the
foster parents around this time. TDFPS amended its petition on November
9, 2004, adding a paragraph seeking termination of the parent-child
relationship.
Roxsane filed a motion to dismiss on April 11, 2005, in which she
alleged that the trial court should dismiss the case if a final order was not
entered by the statutory dismissal date, April 28, 2005.3 The trial court held
2
… At the time of initial filing, the agency was known as the Texas
Department of Protective and Regulatory Services, but its name was
changed during the pendency of the suit.
3
… At the time of the termination suit, family code section 263.401
provided as follows, in pertinent part:
(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.
a jury trial the next day, April 12, 2005. The trial court’s charge to the jury
submitted only the termination ground, not the ground seeking to have
(b) 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 finds that continuing the appointment
of the department as temporary managing conservator is in the
best interest of the child. 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 for dismissal of the
suit 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
resolving the suit; and
(3) sets a final hearing on a date that allows the
court to render a final order before the required date for dismissal
of the suit under this subsection.
(c) If the court grants an extension but does not render
a final order or dismiss the suit on or before the required date for
dismissal under Subsection (b), the court shall dismiss the suit.
The court may not grant an additional extension that extends the
suit beyond the required date for dismissal under Subsection (b).
Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws
2395, 2396 (amended 2005 & 2007), and Act of May 28, 1997, 75th Leg.,
R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113 (current version at
T EX. F AM. C ODE A NN. § 263.401 (Vernon Supp. 2007)).
Section 263.401was amended in this past legislative session to
provide that the requirement to enter a final order or dismiss the suit does
not apply once trial on the merits has commenced; however, that
amendment does not apply to this case because it was commenced before
the effective date of the amendment. See Act of May 27, 2007, 80th Leg.,
R.S., ch. 866, § 6, 2007 Tex. Gen. Laws 1837, 1838.
TDFPS named permanent managing conservator.4 The jury found that
Roxsane’s parental rights should not be terminated.
Nothing in the record shows that Roxsane ever moved for a judgment
on the verdict. On April 19, 2005, after the jury trial but before the trial
court had rendered judgment on the verdict, the foster parents filed a plea in
intervention, alleging standing under family code section 102.003(12), which
allows foster parents who have had a child placed in their home “for at least
12 months ending not more than 90 days preceding the date of the filing of
the petition” to file an original suit affecting the parent-child relationship
(SAPCR). T EX. F AM. C ODE A NN. § 102.003(12) (Vernon Supp. 2007). Their
petition alleged that it was in J.R.’s best interest that TDFPS continue to be
managing conservator under family code section 263.401(d)5 or 263.403,6
4
… However, the jury charge specifically stated that “[i]f no
termination of the parent-child relationship is ordered, the court may modify
[Roxsane’s] rights and duties by court order.”
5
… Former section 263.401(d), which was applicable in April 2005,
described a final order as one that
(1) requires that a child be returned to the child’s parent;
(2) names a relative of the child or another person as the
child’s managing conservator;
(3) without terminating the parent-child relationship, appoints
the department as the managing conservator of the child; or
(4) terminates the parent-child relationship and appoints a
relative of the child, another suitable person, or the department
as managing conservator of the child.
Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws
2108, 2113 (repealed 2007).
6
… The version of section 263.403 that was applicable in April 2005
read as follows:
(a) Notwithstanding Section 263.401, the court may retain
jurisdiction and not dismiss the suit or render a final order as
required by that section if the court renders a temporary order
that:
(1) finds that retaining jurisdiction under this section is in
the best interest of the child;
(2) orders the department to return the child to the child's
parent;
(3) orders the department to continue to serve as
temporary managing conservator of the child; and
(4) orders the department to monitor the child's placement
to ensure that the child is in a safe environment.
(b) If the court renders an order under this section, the
court shall:
(1) include in the order specific findings regarding the
grounds for the order; and
(2) schedule a new date, not later than the 180th day after
the date the temporary order is rendered, for dismissal of the
suit.
(c) If a child placed with a parent under this section must
be moved from that home by the department before the
dismissal of the suit or the rendering of a final order, the court
shall, at the time of the move, schedule a new date for dismissal
of the suit. The new dismissal date may not be later than the
original dismissal date established under Section 263.401 or the
180th day after the date the child is moved under this
subsection, whichever date is later.
(d) If the court renders an order under this section, the
or inthe alternative, that the trial court appoint the foster parents as J.R.’s
managing conservators.
Although there is no written objection to the plea in intervention in the
mandamus record, Roxsane must have objected to the foster parents’
standing to intervene because the trial court ruled on the standing issue in a
hearing on April 26, 2005 as follows:
[I]t’s being raised at this point in time as to whether or not they
can participate in this proceeding. The Court will, with some
trepidation, rule at this point in time that [the foster parents do]
have standing, believing that intervention and standing to file an
original suit are essentially the same in regard to this matter.
At the hearing, the trial court also determined that the evidence warranted
the issuance of a monitored return order under section 263.403 7 of the
family code.
On April 28, 2005—the section 263.401 enter-a-final-order-or-dismiss
date—the trial court entered a monitored return order under section
263.403, finding that TDFPS should continue to serve as temporary
managing conservator but that J.R. should be returned to Roxsane under the
court must include in the order specific findings regarding the
grounds for the order.
Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws
2395, 2397 (amended 2007) (current version at T EX. F AM. C ODE A NN. §
263.403 (Vernon Supp. 2007)).
7
… See note 6 supra.
supervision of TDFPS. The trial court set a new mandatory dismissal date of
not more than 180 days from the date of its monitored return order, October
25, 2005, as required by the statute. See id. § 263.403(b)(2). TDFPS was
to remain temporary managing conservator during this transition.
The monitored return order did not acknowledge or specifically
encompass the jury’s verdict that Roxsane’s parental rights should not be
terminated but states that “the Court finds that placing [J.R.] in the home of
[Roxsane] while retaining jurisdiction is in the best interest of the child to
establish a safe transition of the child who has been out of [Roxsane’s] home
for approximately 18 months.” The court ordered TDFPS to monitor the
placement of J.R. in Roxsane’s home and to remove him “if circumstances
indicate that the home is no longer a safe environment.” During this six
month period, TDFPS was to provide unlimited counseling for Roxsane and
counseling and play therapy for J.R. as appropriate. The trial court also
ordered the foster parents to assist with the transition into Roxsane’s home
and ordered interim visitation between J.R. and the foster parents as agreed
to or proposed by the parties.8
8
… There is no additional temporary order or agreed temporary order in
the record designating any specified period of possession to [the] foster
parents during the monitored return, however.
On May 31, 2005, the trial court 9 transferred the case to Tarrant
County, where Roxsane was residing. The transfer order states that J.R. “is
to be returned to the home of [Roxsane] on May 31, 2005” but that the
provisions of the monitored return order were to remain in effect until the
end of the six month period. Upon transfer to Tarrant County, the case was
assigned to the 322nd District Court.
On October 21, 2005, four days before the suit was to be dismissed in
accordance with section 263.401, the 322nd District Court, the Honorable
Frank Sullivan presiding, held a hearing on several issues in the case. The
court signed an order granting TDFPS’s motion for nonsuit of its “Movant’s
Petition Seeking Termination of the Parent-Child Relationship in this cause”
and removing TDFPS as J.R.’s temporary managing conservator. The order
did not designate a conservator for J.R., temporary or otherwise. The court
also appointed an amicus attorney for J.R.
That same day, Roxsane filed a pro se “Mother’s Objection to
Conservators and Amicus Attorney.” In it, she stated that she objected to
the foster parents being appointed conservators of J.R. and to the
appointment of an amicus attorney for J.R. Specifically, Roxsane objected
9
… Although the case had been pending in the 170th District Court of
McLennan County, the caption of the transfer order shows that it was an
order from the 74th District Court of McLennan County.
to having to share in the expense of an amicus attorney. Roxsane also
requested that the case be dismissed and that she would “like to be re-
united with [her] son permanently as soon as possible without a
conservator.” Further, Roxsane stated that the foster parents had not had
any contact with J.R. for five of the six months since the monitored return
order was signed.
On January 13, 2006, Judge Sullivan signed an order noting that a
hearing had been held on October 21, 2005, that the trial court granted a
nonsuit to TDFPS, and that “a separate order was signed.” Judge Sullivan
ordered that J.R. would remain in Roxsane’s custody until “a hearing could
be had on temporary orders.” His order also states that “[t]he Court finds
that, on the issue of standing of [the foster parents], the 74th Judicial
District Court of McLennan County has already ruled that [the foster parents]
have standing in this matter.” Judge Sullivan did not enter a final order in
the case as required by former section 263.403(b)(2) governing dismissal
upon the expiration of a monitored return order.
Next, the trial court’s associate judge entered temporary orders
sometime before January 23, 2006,10 which Roxsane appealed to Judge
Sullivan. On February 2, 2006, Judge Sullivan signed an order indicating
10
… These orders are not in the record.
that he had heard Roxsane’s “Appeal of Temporary Orders” affirming the
temporary orders with the following changes: (1) Roxsane was ordered to
give the amicus attorney access to J.R.; (2) Roxsane was ordered to give
the foster parents possession of J.R. on the first and third weekends of each
month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday; and (3) Roxsane
was enjoined from changing her residence from Tarrant County during
pendency of the suit. Again, the judge did not designate a conservator for
J.R.11
On May 11, 2006, Roxsane filed a “Plea to the Jurisdiction/Motion to
Strike Plea in Intervention/Motion to Dismiss” (motion to dismiss) asking the
trial court to dismiss the suit under family code section 263.401 because the
trial court had not entered a “final order” by the October 25, 2005 statutory
dismissal date. Roxsane argued that the intervention was untimely, that the
foster parents had no standing to intervene in the suit, and that the 322nd
District Court failed to follow the 74th District Court’s order setting the final
dismissal date as October 25, 2005. Roxsane also argued that the plea in
intervention should be stricken because it complicates the case with
excessive multiplication of issues, it is not necessary to protect the interests
11
… Section 151.001 of the family code sets forth the rights and
duties of a parent in the absence of an order establishing conservatorship.
T EX. F AM. C ODE A NN. § 151.001 (Vernon Supp. 2007).
of the foster parents, it places an undue burden on Roxsane, both financially
and mentally, and the temporary visitation is a source of confusion for J.R.
Judge Sullivan denied the motion on July 7, 2006 by written order.
On August 9, 2006, the foster parents filed a first amended petition
seeking sole managing conservatorship of J.R. Roxsane responded on
August 22, 2006, again challenging the standing of the foster parents. On
January 1, 2007, the Honorable Nancy Berger was sworn in as presiding
judge of the 322nd District Court; she voluntarily recused herself from the
case. The case was then transferred to the 231st District Court of Tarrant
County.
Roxsane and the foster parents each filed motions to modify the
February 2, 2006 temporary orders in May 2007. The only subsequent
order in the record is dated June 6, 2007, in which the associate judge of
the 231st District Court ordered the preparation of a social study at the
expense of the foster parents. However, the associate judge’s report, dated
the same day, states that the temporary orders restricting J.R.’s residence to
Tarrant County are modified to allow his residence to be in Tarrant or
contiguous counties. The associate judge also withheld ruling on several
other issues raised by the parties in their motions to modify the temporary
orders.
Roxsane filed a notice of removal to federal court on June 15, 2007,
but the federal court remanded the case to the 231st District Court on
October 9, 2007. Roxsane filed this petition for writ of mandamus on
November 14, 2007, contending that this court should order the trial court
to dismiss the underlying suit “in accordance with the jury’s original verdict
rendered on April 12, 2005, [or] in the alternative, strike the plea in
intervention” by the foster parents. Because the presiding judge of the
231st District Court, the Honorable Randy Catterton, had not ruled on any of
the issues raised in the petition, we abated the case to provide Judge
Catterton with an opportunity to rule on Roxsane’s motion to dismiss. See
State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig.
proceeding); In re Whitfield, 134 S.W.3d 314, 315 (Tex. App.—Waco 2003,
order); see also T EX. R. A PP. P. 7.2(b). After a nonevidentiary hearing, Judge
Catterton denied the motion. We reinstated the case on February 22, 2008,
upon Roxsane’s filing of a supplemental record containing the trial court’s
order denying the motion.
Laches
Before we address Roxsane’s issues, we must address the argument
of the foster parents that Roxsane’s claims are barred by the doctrine of
laches. According to the foster parents, there is no justification for
Roxsane’s delay in seeking mandamus relief from this court when some of
her complaints relate to the trial court’s actions (and alleged inaction) two
and one-half years before she filed her petition.
Although mandamus is not an equitable remedy, its issuance is largely
controlled by equitable principles. In re Users Sys. Servs., Inc., 22 S.W.3d
331, 337 (Tex. 1999) (orig. proceeding); Rivercenter Assocs. v. Rivera, 858
S.W.2d 366, 367 (Tex. 1993) (orig. proceeding); In re Hinterlong, 109
S.W.3d 611, 620 (Tex. App.—Fort Worth 2003, orig. proceeding). One of
these equitable principles is that equity aids the diligent and not those who
slumber on their rights. Rivercenter Assocs., 858 S.W.2d at 367; In re
Hinterlong, 109 S.W.3d at 620. Thus, mandamus relief may be denied
when a party inexplicably delays asserting its rights. See, e.g., Rivercenter
Assocs., 858 S.W.2d at 367; In re Hinterlong, 109 S.W.3d at 620.
In determining if Roxsane’s delay in seeking a writ of mandamus bars
issuance of a writ, a court may analogize to the doctrine of laches, which
bars equitable relief. In re Hinterlong, 109 S.W.3d at 620. A party asserting
the defense of laches must show both an unreasonable delay by the other
party in asserting its rights and harm resulting to it because of the delay.
Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 80 (Tex. 1989); In re
Hinterlong, 109 S.W.3d at 620.
Although the record shows periods of delay by Roxsane in seeking
relief as to the petition in intervention, overall, the record also shows a
pattern by Roxsane of trying to seek relief from each of the trial courts
involved. In addition, the record also shows that Roxsane was represented
by different attorneys and was, at one point, pro se when she sought relief
from the trial courts. Specifically, Mary Beth Scott represented Roxsane at
the termination trial and after trial when the foster parents filed the petition
in intervention, presumably when Roxsane raised her first objection as to
standing. After the McLennan County courts entered the monitored return
order and transfer order to Tarrant County, Roxsane had no need to object
because J.R. was returned to her by court order and the foster parents had
no contact with him for at least five months, from May 31, 2005 to October
21, 2005. It was only when TDFPS nonsuited its claims, yet the foster
parents remained in the suit, that Roxsane had a reason to again raise the
issue of the propriety of proceedings continuing as to their petition in
intervention. And Roxsane did object at that time, seeking relief from the
322nd District Court. She was pro se at the time; there is no evidence as to
how long it took for her to find and hire a new attorney.12 Her motion to
dismiss was filed by Yusuf Abdullah, who represented her until at least
12
… Roxsane was still pro se when the 322nd District Court entered its
February 2, 2006 order affirming the associate judge’s temporary orders.
August 2006. The mandamus record does not show when Roxsane hired
her current attorney, Judith Grantham, but the first document filed by
Grantham in the mandamus record is a motion to modify temporary orders
filed on May 31, 2007.
We conclude and hold that the record shows that Roxsane did not
unreasonably delay in seeking relief as to the propriety of the petition in
intervention. Thus, we will review and consider the merits of Roxsane’s
complaints in this mandamus proceeding.
Should Trial Court Have Dismissed Plea in Intervention?
In her petition for writ of mandamus and in her motion to dismiss filed
in the trial court, Roxsane challenges the timeliness and propriety of the
foster parents’ plea in intervention. She contends that the trial court should
have stricken the plea in intervention when it was filed. She also contends
that even if the plea in intervention was timely and the 170th District Court
in McClennan County had discretion not to strike it, the 322nd District Court
in Tarrant County, to which the case was transferred, nevertheless should
have dismissed the foster parents from the suit and rendered a final order in
her favor upon TDFPS’s nonsuit of its claims. Implicit in her arguments is
the contention that the scope of the plea in intervention was limited to the
issues in TDFPS’s termination suit. That is, when TDFPS nonsuited its
claims, there were no remaining claims for affirmative relief by the foster
parents that would have justified them remaining in the suit; the termination
suit had already been tried to a jury. We agree with Roxsane’s latter
contention. Furthermore, because it is dispositive, we need not address her
claims as to the initial timeliness and propriety of the intervention. See T EX.
R. A PP. P. 47.1; Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221
S.W.3d 802, 809 (Tex. App.—Fort Worth 2007, pet. denied).
Applicable Law
“Any party may intervene by filing a pleading, subject to being stricken
out by the court for sufficient cause on the motion of any party.” T EX. R.
C IV. P. 60. Upon filing of a timely petition in intervention, an intervenor
becomes a party to the suit for all purposes. In re D.D.M., 116 S.W.3d 224,
231 (Tex. App.—Tyler 2003, no pet.); Brook v. Brook, 865 S.W.2d 166,
172 (Tex. App.—Corpus Christi 1993), aff’d, 881 S.W.2d 297 (Tex. 1994).
If a party nonsuits its claims or its claims are dismissed, a remaining party’s
right to be heard on any of its pending claims for affirmative relief is not
prejudiced, and the trial court retains jurisdiction over the remaining claims.
T EX. R. C IV. P. 162; Univ. of Tex. Med. Branch at Galveston v. Estate of
Blackmon ex rel. Shultz, 195 S.W.3d 98, 100–01 (Tex. 2006); Yaquinto v.
Britt, 188 S.W.3d 819, 824 (Tex. App.—Fort Worth 2006, pet. denied); In
re D.D.M., 116 S.W.3d at 232.
A claim for affirmative relief is a pleading that states facts showing a
cause of action independent of the plaintiff’s claim on which the claimant
could obtain relief even if the plaintiff abandons or is unable to establish its
cause of action. Univ. of Tex. Med. Branch, 195 S.W.3d at 101; In re
D.D.M., 116 S.W.3d at 232. Whether a pleading is an affirmative claim for
relief is determined by the facts alleged and not by the name given the plea
or by the form of the prayer for relief. In re D.D.M., 116 S.W.3d at 232;
Baca v. Hoover, Bax & Shearer, 823 S.W.2d 734, 737 (Tex. App.—Houston
[14th Dist.] 1992, writ denied).
Analysis
Here, the foster parents’ plea in intervention stated as follows:
It is in the best interests of the child that the Court
continue the appointment of [TDFPS] as Managing Conservator
pursuant to Section 263.401(d) or 263.403 of the Texas Family
Code. Failing that, it is in the best interest of the child to
appoint intervenors managing conservators of the child, and to
make such other and further orders as are necessary to ensure
that the child is in a safe environment.
WHEREFORE, intervenors request that the parties take
notice of the filing of this plea in intervention, and that, on
hearing the Court appoint intervenors managing conservators of
the child or, in the alternative, order that intervenors have access
to the child in accordance with the allegations of this plea, grant
intervenors’ their costs of suit, including attorney’s fees, and
make such other and further orders to which intervenors may be
justly entitled. [Emphasis added.]
Looking to the facts pled by the foster parents, we conclude that their claims
are contingent upon, and not independent of, TDFPS’s allegations in its
previously tried termination suit.13 Specifically, they asked that TDFPS be
continued as the managing conservator, either in a final order under family
code section 263.401(d)14 or in a monitored return order under section
263.403; their request to be appointed managing conservators of J.R. is also
clearly made in the alternative.15
The trial court granted the foster parents the relief they requested in
13
… Although the plea in intervention states that the foster parents
have standing under section 102.003(a)(12) of the family code—which
provides that a foster parent with whom TDFPS has placed a child and who
has had possession of that child for at least twelve months ending not more
than ninety days preceding the date of the filing of a petition has standing to
file an original SAPCR—the facts alleged in the plea show that it was meant
to be a plea in intervention rather than an original suit seeking
conservatorship of J.R. See T EX. F AM. C ODE A NN. § 102.003(a)(12) (Vernon
Supp. 2007); In re N.L.G., 238 S.W.3d 828, 830-31 (Tex. App.—Fort Worth
2007, no pet.); In re A.M., 60 S.W.3d 166, 169 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (“[I]ntervening and filing the original suit are distinct
legal actions.”).
14
… Former section 263.401(d) provided that a final order includes one
that, “without terminating the parent-child relationship, appoints [TDFPS] as
the managing conservator of the child.”
15
… Our conclusion is supported by the posture of the case at the time.
The foster parents did not intervene until after the jury had already
determined the merits of TDFPS’s termination suit. Thus, they were no
longer able to seek an affirmative claim for adoption and, as nonparents,
would have had to overcome the statutory presumption in favor of parents
to seek any affirmative relief as to J.R. See T EX. F AM. C ODE A NN. § 153.131
(Vernon 2002).
their plea in intervention when it rendered the monitored return order
providing for the transition of J.R. into Roxsane’s home.16 Further, in its
order transferring the case to Tarrant County, the 74th District Court
required J.R. to be returned to Roxsane without any additional provision for
further possession by the foster parents; they did not have any possession
of him from that date until at least October 21, 2005 and possibly until the
effective date of the 322nd District Court’s February 2, 2006 temporary
orders giving them limited possession. Thus, the record shows that the
McClennan County trial judge intended to fully resolve the alternative claims
for relief in the foster parents’ plea in intervention by entering the monitored
return order, under which the judge intended for J.R. to remain with Roxsane
unless TDFPS or the foster parents became aware of any circumstances
justifying his subsequent removal, the statutory exception to dismissal. The
record shows that TDFPS did not remove J.R. from Roxsane’s possession
from the time he was returned to her possession on May 31, 2005 to the
16
… The trial court’s comments at the April 26, 2005 hearing clarify
the court’s intent. After noting that the jury had determined that Roxsane’s
rights should not be terminated, the court stated that it had not heard
anything new or different. While explaining the terms of the monitored
return order, the court addressed the foster parents, acknowledging the toll
it would probably take on them to return J.R. But the court further stated,
“And then we’ll just see how this works. If you [Roxsane] can handle this
and if [J.R.] can handle it, then obviously he will be in his family.” It is clear
from the trial court’s comments that its intention was to resolve all pending
claims by the foster parents.
date of its nonsuit. Thus, the record shows that upon expiration of the
monitored return order, the McClennan County trial judge intended for
Roxsane to have sole possession of J.R. if he had not been removed from
her before that time for safety concerns.
Because the foster parents’ claims for relief had been resolved when
TDFPS nonsuited its claims—and they had no pending claims for affirmative
relief—the 322nd District Court abused its discretion by failing to dismiss the
plea in intervention and enter a final order in Roxsane’s favor on October 21,
2005. We recognize that this case has followed a unique and convoluted
procedural history. However, because the foster parents no longer had
standing under section 102.003(a)(12) when they filed their first
independent claim for affirmative relief in August 2006, the 231st District
Court abused its discretion by refusing to dismiss the plea in intervention
while this case was abated. We sustain Roxsane’s challenge to the trial
court’s failure to dismiss the plea in intervention.
Adequate Remedy by Appeal
To be entitled to mandamus relief, Roxsane must also show that she
has an inadequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d
619, 623 (Tex. 2007); In re Spiritas Ranch Enters., L.L.P., 218 S.W.3d 887,
893 (Tex. App.—Fort Worth 2007, orig. proceeding). There is no final order
in this case; the trial court’s order denying the motion to dismiss is
interlocutory. See Wright v. Pino, 163 S.W.3d 259, 263 (Tex. App.—Fort
Worth 2005, no pet.) (holding that a judgment is final when it actually
disposes of every claim and party or clearly and unequivocally states that it
disposes of all claims and parties). Texas appellate courts have jurisdiction
only over final orders or judgments unless a statute permits an interlocutory
appeal. Ogletree v. Matthews, No. 06-0502, 2007 WL 4216606, at *2 n.1
(Tex. Nov. 30, 2007); Jain v. Stafford, 214 S.W.3d 94, 96 (Tex. App.—Fort
Worth 2006, pet. dism’d). Here, an appeal of the trial court’s order is not
authorized by statute. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(a)
(Vernon Supp. 2007) (listing appealable interlocutory orders); T EX. F AM. C ODE
A NN. § 105.001(e) (Vernon Supp. 2007) (providing that temporary orders
are not subject to interlocutory appeal).
Because the trial court’s order is not immediately appealable, we must
determine whether an appeal from any final order on the petition in
intervention would be adequate. We hold that it would not.
The supreme court has held that determining whether an adequate
remedy by appeal exists “demands a ‘careful balance of jurisprudential
considerations that determine when appellate courts will use original
mandamus proceedings to review the actions of lower courts.’” In re Tex.
Dep’t of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
(quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.
2004)). It has also held that justice demands a speedy resolution in cases
involving child custody and that appeal is frequently inadequate to protect
the rights of parents and children. Id.
Here, Roxsane has been forced to defend against and participate in the
costs of a suit alleging previously litigated issues involving custody and
conservatorship of her child that should have been dismissed no later than
October 21, 2005. The foster parents would not have had standing to file
an original suit in October 2005 since they had not had any contact with
J.R. for five months. Currently, Roxsane is having to participate in a social
study, and the foster parents are maintaining contact with J.R. that they
would not otherwise have had. There is no evidence that J.R.’s
circumstances have changed in a way that would warrant removal or the
institution of a new suit. No trial date is set, so it is unclear how much
longer Roxsane will have to participate in and defend against this suit. We
conclude and hold that any remedy available by appeal would be inadequate
to protect Roxsane’s interest in J.R.
Because we have determined that Roxsane is entitled to relief, i.e., the
dismissal of the foster parents’ plea in intervention, we conditionally grant
the writ of mandamus and order the trial court to enter an order dismissing
the foster parents’ plea in intervention.17 A writ will issue only if the trial
court fails to comply with this order.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, WALKER, and MCCOY, JJ.
DELIVERED: March 28, 2008
17
… Our holding should not be construed as preventing the trial court
from entering any temporary orders that may be otherwise permissible by
law or that may be agreed to by the parties providing for gradually decreased
possession by the foster parents as the trial court may find to be in J.R.’s
best interest. See, e.g., T EX. F AM. C ODE A NN. §§ 109.001, 153.001–.002
(Vernon 2002).