in the Interest of J.G. ( 2009 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ________________

NO. 09-08-00328-CV ____________________

IN THE INTEREST OF J.G.

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On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-200,121

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MEMORANDUM OPINION

J.G.'s mother appeals the trial court's order terminating her parental rights as to J.G. Appellant contends the trial court abused its discretion in finding her appeal was frivolous, because one of her points of appeal was that the trial court erred in denying her motion to dismiss pursuant to former section 263.401 of the Texas Family Code. Appellee concedes error. We therefore reverse the order and remand the case for further proceedings consistent with this opinion.

On March 16, 2007, the Texas Department of Family and Protective Services filed a petition for the protection of three of appellant's children. The Department requested that the court appoint the Department as the children's temporary sole managing conservator, and if necessary, that the Department would be named permanent conservator and that the parental rights as to the children be terminated. The original petition was filed prior to J.G.'s birth, and so did not name J.G. as a child subject to the suit. However, the Department was appointed temporary managing conservator of J.G. on May 16, 2007, three days after J.G.'s birth. ⁽¹⁾

On April 17, 2008, the trial court signed an order extending the dismissal date of the suit to November 14, 2008. The trial court signed a termination order on July 15, 2008. On September 5, 2008, the trial court granted appellant's motion for new trial. A new trial began November 4, 2008, but was continued until December 12, 2008.

On December 12, 2008, prior to the presentation of the Department's evidence, the trial court denied appellant's section 263.401 motion to dismiss. The trial court signed an order terminating appellant's parental rights as to J.G. on December 16, 2008.

Appellant filed her sworn statement of indigency, timely motion for new trial, and statement of intended points on appeal. In her statement of points on appeal, appellant included her assertion that the trial court erred by denying her motion to dismiss pursuant to section 263.401 of the Texas Family Code. After a hearing, the trial court found appellant was indigent, denied her motion for new trial, and found that the appeal was frivolous under section 13.003(b), finding no merit to her statement of points on appeal.

Appellant argues that under the applicable version of section 263.401, the trial court erred in denying her motion to dismiss. The statute was amended effective June 15, 2007. Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 2, 2007 Tex. Gen. Laws 1837, 1838. A suit affecting the parent-child relationship filed before that date, "is governed by the law in effect at the time the suit was filed, and the former law is continued in effect for that purpose." Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 6, 2007 Tex. Gen. Laws 1838. The version of section 263.401 that appellant argues, and the State concedes, is applicable to this case provides in relevant 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.

(b) 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). . . .

(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 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws 2395, 2396, amended by Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen. Laws 621, 636 (amended 2007) (current version at Tex. Fam. Code Ann. § 263.401 (Vernon 2008)). Under the applicable version of section 263.402(b), a motion to dismiss is timely "if the motion is made before the department has introduced all of the department's evidence, other than rebuttal evidence, at the trial on the merits." Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2396-2397 (amended 2007) (current version at Tex. Fam. Code Ann. § 263.402(b) (Vernon 2008)).

Less than a year after the trial court appointed the Department as J.G.'s managing conservator in a temporary order, the trial court extended the dismissal date to November 14, 2008, pursuant to section 263.401(b). See Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 1.40, 2005 Tex. Gen. Laws 621, 636 (amended 2007) (current version at Tex. Fam. Code Ann. § 263.401(b) (Vernon 2008)). The trial court's initial termination order was signed July 15, 2008. However, the trial court's granting of a new trial on September 5, 2008, had the "'legal effect of vacating the original judgment and returning the case to the trial docket as though there had been no previous trial or hearing.'" In re Walker, 265 S.W.3d 545, 550 (Tex. App.--Houston [1st Dist.] 2008, orig. proceeding) (quoting Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)). Appellant's motion to dismiss was filed prior to the presentation of all of the Department's evidence and was therefore timely. See Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2396-98 (amended 2007) (current version at Tex. Fam. Code Ann. 263.402(b) (Vernon 2008)); In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 643-44 (Tex. 2009) (Though parent filed motion to dismiss after one-year dismissal date had passed as well as 180-day period for trial court to retain the suit on its docket, parent's motion to dismiss filed prior to former section 263.402(b)'s deadline was timely.). Section 263.401's time restraints are mandatory. In the Interest of L.S.C., 169 S.W.3d 758, 762 (Tex. App.--Dallas 2005, no pet.); In the Interest of D.D.M., 116 S.W.3d 224, 231 (Tex. App.--Tyler 2003, no pet.); In the Interest of T.M., 33 S.W.3d 341, 346 (Tex. App--Amarillo 2000, no pet.). The Department concedes error. We sustain appellant's issue. We reverse the trial court's order and remand the case to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED. _________________________________

DAVID GAULTNEY

Justice

Submitted on June 24, 2009

Opinion Delivered July 16, 2009

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

1. In an amended petition, the Department later added J.G. as a child subject to the suit.