in the Interest of K.G. and A. K., Children ( 2019 )

Opinion filed August 8, 2019
In The
Eleventh Court of Appeals
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No. 11-19-00066-CV
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IN THE INTEREST OF K.G. AND A.K., CHILDREN
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. FM17917
MEMORANDUM O PI NI O N
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the fathers of K.G. and A.K. The mother filed this appeal.
In her sole issue on appeal, she contends that the order of termination is void because
the trial court had lost jurisdiction because it did not timely commence the trial. See
TEX. FAM. CODE ANN. § 263.401(a) (West 2019). We affirm.
Background Facts
On February 14, 2019, the trial court commenced the bench trial and signed
the order of termination in this cause. The trial court found by clear and convincing
evidence that termination of Appellant’s parental rights would be in the best interest
of the children and also that Appellant had committed five of the acts listed in
Section 161.001(b)(1) of the Texas Family Code. See id. § 161.001(b)(1), (2) (West
Supp. 2018). Because Appellant does not challenge those findings in this appeal,
we need not discuss the evidence in support of those findings.
Instead, the pertinent facts relate to the date that the trial court entered an order
regarding temporary conservatorship, the dismissal date as mandated by the Family
Code, and the date that the bench trial commenced. The record reflects that the
Department of Family and Protective Services filed the original petition in this cause
on September 12, 2017, and that the trial court entered its emergency order
appointing the Department as the temporary sole managing conservator of the
children on September 13, 2017. In an order dated March 1, 2018, the trial court
correctly indicated that the dismissal date was September 17, 2018. However, on
July 30, 2018, prior to the original dismissal date, the trial court determined that
extraordinary circumstances necessitated that the children remain in the temporary
managing conservatorship of the Department and that it would be in the children’s
best interest to do so. In its July 30, 2018 order, the trial court retained the case on
the court’s docket and set a new dismissal date of March 16, 2019, which was 180
days after the original dismissal date. Trial commenced prior to March 16, 2019.
Analysis
The section of the Family Code upon which Appellant relies provides in
relevant part as follows:
(a) Unless the court has commenced the trial on the merits or
granted an extension under Subsection (b) or (b-1), 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’s jurisdiction over 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 is terminated and the suit is automatically
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dismissed without a court order. Not later than the 60th day before the
day the suit is automatically dismissed, the court shall notify all parties
to the suit of the automatic dismissal date.
(b) Unless the court has commenced the trial on the merits, the
court may not retain the suit on the court’s docket after the time
described by Subsection (a) unless the court finds that extraordinary
circumstances necessitate the child remaining in the temporary
managing conservatorship of the department and that continuing the
appointment of the department as temporary managing conservator is
in the best interest of the child. If the court makes those findings, 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 retains
the suit on the court’s docket, the court shall render an order in which
the court:
(1) schedules the new date on which the suit will be
automatically dismissed if the trial on the merits has not
commenced, which date must be 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 the trial on the merits on a date not later than
the date specified under Subdivision (1).
Id. § 263.401(a), (b).
If the trial court had not entered the July 30, 2018 order extending the
dismissal date, we would agree with Appellant that, pursuant to the above-quoted
statute, the trial court’s termination order would be void. We note that the July 30
order was not a part of the appellate record when Appellant filed her brief—despite
Appellant’s request for the trial court clerk to include all of the trial court’s orders.
At the request of the Department, however, a supplemental clerk’s record containing
the July 30 order was subsequently filed in this court. The July 30 order complied
with Section 263.401(b) and, thus, extended the dismissal date. Because the bench
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trial commenced prior to the properly extended dismissal date, the trial court retained
jurisdiction over the suit. See id. Accordingly, we overrule Appellant’s sole issue
on appeal.
This Court’s Ruling
We affirm the trial court’s order of termination.
KEITH STRETCHER
JUSTICE
August 8, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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