in the Interest of N.J.D. a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00293-CV
IN THE INTEREST OF N.J.D., a Child
From the 216th Judicial District Court, Bandera County, Texas
Trial Court No. FL-11-356
Honorable M. Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: February 12, 2014
DISMISSED AS MOOT
Appellants, the parents of N.J.D., seek to appeal the trial court’s “Final Order in Suit
Affecting the Parent-Child Relationship” signed on April 25, 2013, which awarded permanent
managing conservatorship of then 17-year-old N.J.D. to the Department of Family and Protective
Services, and denied them possessory conservatorship but did not terminate their parental rights.
See TEX. FAM. CODE ANN. § 263.404 (West 2008). Appellee Department of Family and Protective
Services filed a motion to dismiss the appeal for mootness, asserting that because N.J.D. has since
turned 18 years old, and is thus no longer a “child” under the Family Code, there is no longer a
justiciable controversy. See TEX. FAM. CODE ANN. § 101.003 (West 2008) (defining a “child” as
a person under 18 years of age who is not married and has not had the disabilities of minority
removed); id. § 263.404(a) (authorizing the court to render a final order appointing the department
04-13-00293-CV
as managing conservator of a “child” without terminating the parents’ rights upon certain findings
as to the child’s best interests). A controversy must exist between the parties at every stage of the
legal proceedings, including appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); see Valley
Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) (appellate courts have
no jurisdiction to issue advisory opinions when there ceases to be a live controversy between the
parties); see also In re E.H., No. 02-07-00343-CV, 2008 WL 2404490, at *1 (Tex. App.—Fort
Worth June 12, 2008, no pet.) (mem. op.); Ngo v. Ngo, 133 S.W.3d 688, 691-92 (Tex. App.—
Corpus Christi 2003, no pet.).
Appellants concede that N.J.D. is now 18 years old but assert their appeal is not moot
because N.J.D. is in extended foster care and is thus under the extended jurisdiction of the trial
court pursuant to section 263.602 of the Family Code. See TEX. FAM. CODE ANN. § 263.602 (West
Supp. 2013). That provision extends the trial court’s jurisdiction over a “young adult” who is
between 18 and 21 years of age who was in the conservatorship of the Department on the day
before his 18th birthday and who resides in foster care or receives transitional living services from
the Department after his 18th birthday. Id.; see id. § 263.601(4) (West Supp. 2013) (defining
“young adult”).
The record filed in this court shows that N.J.D. is no longer subject to the Department’s
conservatorship. The supplemental clerk’s record contains an order signed by the trial court after
N.J.D. turned 18 years old which dismisses the Department as managing conservator of N.J.D.,
finds that N.J.D. is a “young adult” remaining in extended foster care, and confirms that the trial
court’s jurisdiction over N.J.D. is thus extended pursuant to section 263.602(a). TEX. FAM. CODE
ANN. § 263.602(a). Because the record shows that N.J.D. is no longer a “child” within the meaning
of the Family Code and the Department no longer has conservatorship of N.J.D., an appeal of the
April 25, 2013 order awarding conservatorship to the Department is moot. See In re E.H., 2008
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WL 2404490, at *1 (dismissing appeal as moot because child who was the subject of order
awarding Department permanent managing conservatorship had turned 18 years old); Ngo, 133
S.W.3d at 691-92 (divided custody issue was moot because the only child awarded to appellee had
reached the age of 18, and no exceptions applied). The “Statement of Points on Appeal” filed by
appellants confirms that the issues intended to be raised on appeal all stem from actions taken by
the Department and court proceedings leading up to the April 25, 2013 order granting the
Department managing conservatorship over N.J.D. before he turned 18 years old. Accordingly,
we conclude the Department’s motion to dismiss the appeal as moot should be granted.
This appeal was previously abated to the trial court for a determination of appellants’ claim
of indigence. Therefore, it is ORDERED that the appeal is REINSTATED on the docket of this
court. Based on the foregoing reasons, the Department’s motion to dismiss the appeal as moot is
GRANTED, and the appeal is DISMISSED AS MOOT. The appellants’ appeal of the trial court’s
findings that they are not indigent, and that their appeal is frivolous, need not be addressed as that
issue is rendered moot by the dismissal of the appeal. All pending motions filed by appellants are
likewise denied as moot.
PER CURIAM
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