in Re Kristal Timish Walker A/K/A Kristal Timisha Walker ( 2008 )

Opinion issued June 30, 2008

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-08-00348-CV

__________

IN RE KRISTAL TIMISH WALKER A/K/A KRISTAL TIMISHA WALKER, Relator

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Original Proceeding on Petition for Writ of Mandamus

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O P I N I O N  

By petition for writ of mandamus, relator, Kristal Timish Walker, also known as Kristal Timisha Walker, challenges the trial court's order denying her motion to dismiss the suit brought by the real party in interest, the Texas Department of Family & Protective Services ("TDFPS"), to terminate Walker's parent-child relationship with her two minor children. ⁽¹⁾ In a single issue, Walker contends that the trial court clearly abused its discretion in not dismissing TDFPS's suit after the statutory dismissal date had passed ⁽²⁾ and she has no adequate remedy by appeal.

We conditionally grant Walker's petition for writ of mandamus. Procedural Background

Although the record presented by the relator is scant, the pertinent procedural facts are largely undisputed. On July 18, 2006, the trial court appointed TDFPS temporary managing conservator of Walker's two minor children, and, on June 28, 2007, a trial commenced on TDFPS's petition. The trial concluded on July 10, 2007, and, on this date, the trial court orally rendered an order terminating Walker's parental rights as well as the parental rights of the fathers. ⁽³⁾ Consistent with its oral rendition, on August 21, 2007, the trial court signed a decree terminating Walker's and the fathers' parent-child relationship with the children.   

After the trial court orally rendered the termination order, on August 1, 2007, Walker filed a new trial motion, asserting that the evidence was legally and factually insufficient to support the trial court's findings on which the trial court based its termination order. ⁽⁴⁾ On August 28, 2007, the trial court granted Walker's new trial motion. ⁽⁸⁾ Thereafter, sometime in March 2008, Walker filed a "motion to dismiss and for immediate return of children," arguing that because the trial court had granted her new trial motion and had set aside its termination order, the trial court did not timely render a final order within the statutory one-year deadline in which the trial court was required to render a final order. ⁽⁹⁾ Walker noted that the trial court had reset the termination case for another trial on the merits on April 22, 2008. Walker further argued that because the statutory deadline had expired and there was no timely final order, and because the trial court had never extended the statutory dismissal deadline, the trial court was required to dismiss the case under former section 263.401 of the Texas Family Code. ⁽¹⁰⁾ The trial court denied Walker's motion to dismiss on March 20, 2008, and Walker filed her petition for writ of mandamus. ⁽¹¹⁾   Walker represented in her briefing, and the parties agreed at argument, that the trial court had subsequently reset the trial for June 4, 2008. ⁽¹²⁾  

Standard of Review

Mandamus is an extraordinary remedy, which is available only when a trial court clearly abuses its discretion and there is no adequate remedy by appeal. In re McAllen Med. Ctr., Inc., No. 05-0892, 2008 WL 2069837, at *1 (Tex. May 16, 2008); In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609, 612 (Tex. 2006); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). With respect to a trial court's determination of legal principles, a trial court has no discretion in determining what the law is or applying the law to facts. In re Prudential, 148 S.W.3d at 135. A trial court abuses its discretion when it fails to apply the law correctly, so we consider the trial court's legal ruling. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 612.

Dismissal Under Section 263.401

In her single issue, Walker argues that the trial court clearly abused its discretion in not dismissing TDFPS's suit because the statutory dismissal date had passed due to the trial court's granting of Walker's new trial motion. Relying on former sections 263.401 and 263.402 of the Texas Family Code, Walker asserts that the intent of these statutes is clear and that if, for any reason, including the granting of new trial motion, a final order is not rendered in a suit to terminate the parent-child relationship before the statutory dismissal deadline passes, then the proper remedy is for the trial court to dismiss the suit.

The version of former section 263.401 of the Texas Family Code, applicable to this case, provides,

(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). 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).

(d) For purposes of this section, a final order is an order 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.

See 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 [referred to herein as Former Tex. Fam. Code Ann. § 263.401] (amended 2007) (current version at Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007). ⁽¹³⁾

The former version of section 263.402 of the Texas Family Code, applicable to this case, provides,

(a) The parties to a suit under this chapter may not extend the deadlines set by the court under this subchapter by agreement or otherwise.

(b) A party to a suit under this chapter who fails to make a timely motion to dismiss the suit or to make a motion requesting the court to render a final order before the deadline for dismissal under this subchapter waives the right to object to the court's failure to dismiss the suit. A motion to dismiss under this subsection 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.

See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113, amended by Act of May 30, 1999, 76th Leg., R.S., ch. 1390, § 48, 1999 Tex. Gen. Laws 4695, 4709, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2396-97 [referred to herein as Former Tex. Fam. Code Ann. § 263.402] (amended 2007) (current version at Tex. Fam. Code Ann. § 263.402 (Vernon Supp. 2007)). ⁽¹⁴⁾    

In construing these statutes, "our objective is to determine and give effect to the Legislature's intent." In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 612. To determine the Legislature's intent, we look to the plain language of the statutes and the common meaning of the words included in the statutes. Id.

Former section 263.401(a) of the Texas Family Code plainly requires a trial court to dismiss a suit affecting the parent-child relationship filed by TDFPS that requests termination of the parent-child relationship if a final order has not been rendered by the first Monday after the one-year anniversary of the date when the trial court appointed the Department temporary managing conservator. See Former Tex. Fam. Code Ann. § 263.401; see also In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 612.

Here, the trial court appointed TDFPS temporary managing conservator of the children on July 18, 2006. Under former section 263.401(a), the trial court had until the first Monday after the one-year anniversary of this date to render a final order, or grant an extension, before it was required to dismiss the suit. See Former Tex. Fam. Code Ann. § 263.401. The parties agree that the trial court, on July 10, 2007, timely, orally rendered an order terminating Walker's parent-child relationship to her children. ⁽¹⁵⁾

However, on August 28, 2007, the trial court granted Walker's timely-filed motion for new trial.

In granting the new trial, the trial court set aside the original termination order, thus allowing the parties to "proceed without prejudice from previous proceedings" because the granting of the new trial 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." Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); see also Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005) (stating that when motion for new trial is granted, "the case shall be reinstated upon the docket of the trial court and stand for trial the same as though no trial had been had" and that "the court essentially wipes the slate clean and starts over"); Montemayor v. Ortiz, 208 S.W.3d 627, 665-66 (Tex. App.--Corpus Christi 2006, pet. denied) ("Granting a new trial has 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."). When the trial court granted Walker's new trial motion, thereby vacating the termination order as to Walker, it did so outside of the statutory one-year period in which it was required to render a final order. See Former Tex. Fam. Code Ann. § 263.401.   

Although, under former section 263.401(b), the trial court could have retained the suit on its docket for an additional 180 days after the expiration of the initial one-year period, it could have done so only upon finding that extraordinary circumstances necessitated the children remaining in the temporary managing conservatorship of TDFPS and that continuing the appointment of TDFPS as temporary managing conservator was in the best interest of the children. See id. The trial court, in order to retain the suit, would also had to have rendered an order in which it scheduled the new date for dismissal of the suit not later than the 180th day after the expiration of the one-year deadline, made further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit, and set a final hearing on a date that allowed the court to render a final order before the required date for dismissal of the suit. See id.

Nothing in the record indicates that the trial court made the requisite findings or rendered the type of order prescribed under former section 263.401(b) in order to grant an extension to retain the suit on its docket. ⁽¹⁶⁾ Instead, after granting Walker's motion for new trial, the trial court reset the case for trial on April 22, 2008, and subsequently reset the case for trial on June 4, 2008. ⁽¹⁷⁾  

After the trial court granted Walker's new trial motion and vacated the termination order, but before TDFPS had "introduced all of [its] evidence, other than rebuttal evidence, at the trial on the merits," which had been reset as necessitated by the granting of the new trial, Walker filed her motion to dismiss, asserting that the trial court did not timely render a final order under former section 263.401(a). See Former Tex. Fam. Code Ann. § 263.402.

TDFPS first argues that because Walker did not timely move to dismiss the case, she waived her right to seek dismissal. TDFPS asserts that, under former section 263.402(b), "a party's complaint about a court's failure to render a timely order under section 263.401 is waived if the party fails to file the motion or request before [TDFPS] introduces its evidence and before the dismissal deadline." TDFPS notes that, here, the trial began on June 28, 2007 and concluded on July 10, 2007, TDFPS introduced all of its evidence at this trial and rested without any objection or request for dismissal, and Walker did not seek dismissal "before that rendition" and did not file a motion to render a final order before the dismissal deadline, which passed in July 2007.

The Texas Supreme Court has interpreted former section 263.402(b) as follows,

Section 263.402 describes the vehicles by which a party can obtain a dismissal: a timely motion to dismiss or a motion requesting the court to render a final order before the deadline for dismissal. A timely motion to dismiss must be filed before [TDFPS] introduces all of its evidence, other than rebuttal evidence. A motion requesting the court to render a final order must be made before the dismissal deadline passes.

In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 613 (citations omitted) (emphasis added). Thus, as noted by the Texas Supreme Court, the two separate procedural vehicles, appropriately, have different deadlines: (1) a motion to dismiss must be filed before TDFPS introduces all of its evidence, other than rebuttal evidence, in the trial on the merits, and (2) a motion requesting the court to render a final order must be made before the deadline for dismissal. See id.

At oral argument, TDFPS asserted that, under the proper construction of former section 263.402(b), a parent must file either a motion to dismiss or a motion requesting the court to render a final order before section 263.401(a)'s deadline for dismissal or the parent waives the right to object to the court's failure to dismiss the suit. Although the first sentence of former section 263.402(b) states that a motion requesting the court to render a final order must be filed before the dismissal deadline, this language, as illustrated by the second sentence in former section 263.402(b), does not apply to a timely motion to dismiss. See Former Tex. Fam. Code Ann. § 263.402. Rather, a "timely motion to dismiss" is defined in the second sentence of former section 263.402(b) as being made "before the department has introduced all of the department's evidence, other than rebuttal evidence, at the trial on the merits." See id.

Regarding error preservation, the different vehicles with different deadlines were practical and made sense. Generally to preserve error or complaint for appellate review, a party must timely make her complaint known to the trial court to afford it an opportunity to avoid or correct error. Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.--Houston [1st Dist.] 1996, no writ); see also Tex. R. App. P. 33.1. By its plain language, former section 263.402(b) addressed two scenarios regarding section 263.401(a)'s one-year deadline. First, if the trial on the merits had commenced and concluded before the deadline, but the trial court had not rendered a final order, a parent had to file a motion requesting the court to render a final order before the deadline for dismissal. See Former Tex. Fam. Code Ann. § 263.402. This motion would inform the trial court of the upcoming deadline and allow it to avoid error by timely rendering such an order. Obviously, a parent would not make a motion requesting a trial court to render a final order unless the trial court was in a position to do so. Second, if the trial on the merits had not commenced or had not concluded before section 263.401(a)'s one-year deadline, a parent had to file a motion to dismiss the suit before TDFPS had introduced all of its evidence, other than rebuttal evidence. See id. This motion would inform the trial court that the deadline had passed prior to TDFPS's presentation of the evidence.

Here, Walker timely filed her motion to dismiss because, given the procedural posture of the case, the trial on the merits, which had been set for June 4, 2008, had not commenced and she filed the motion "before the department has introduced all of the department's evidence, other than rebuttal evidence, at the trial on the merits." ⁽¹⁸⁾   TDFPS's argument that it had already "introduced all of its evidence" in the previous trial ignores the fact that the granting of the new trial 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." Markowitz, 118 S.W.3d at 88 (emphasis added). TDFPS and Walker, by the granting of the new trial, were permitted to "proceed without prejudice from [the] previous proceedings." Id.

After granting Walker's new trial motion, the trial court reset the termination suit against Walker for a new trial ⁽¹⁹⁾ and, presumably, TDFPS intends to pursue termination of Walker's parental rights and introduce evidence at a new trial in support of its petition. In a new trial, TDFPS would not be restricted to presenting only the evidence it presented at the first trial, which resulted in a termination order that the trial court subsequently vacated. Of course, if the trial court granted Walker's new trial motion on the factual insufficiency grounds as alleged in her new trial motion, TDPS's presentation of the exact same evidence in the exact same manner could prove to be a futile gesture. TDFPS's assertion that it has already presented its evidence ignores the procedural posture of the case.

TDFPS also suggested at oral argument that Walker may have waived her right to seek dismissal of the case by agreeing to continue the case outside of the statutory dismissal deadline. However, section 263.402(a) specifically provides that "[t]he parties to a suit under this chapter may not extend the deadlines set by the court under this subchapter by agreement or otherwise." See Tex. Fam. Code Ann. § 263.402(a). Accordingly, we hold that Walker timely filed her motion to dismiss TDFPS's suit against her and she did not waive her right to object to the trial court's failure to dismiss the suit.

TDFPS next argues that Walker's petition for writ of mandamus has no merit because the trial court did, in fact, render a "final order" as defined in former section 263.401(d). TDFPS contends that it would be unjust and unreasonable to "unconditionally require courts to dismiss a [TDFPS] suit if a court ever grants a new trial in [a] case after the original dismissal deadline even if a final order was rendered before the dismissal deadline." It argues that the unreasonableness of Walker's interpretation is readily apparent because former section 263.405(d) of the Texas Family Code requires trial courts, in these types of cases, to automatically consider whether to grant a new trial. See Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws 2395, 2396-97 (amended 2007) (current version at Tex. Fam. Code Ann. § 263.405(d) (Vernon Supp. 2007)) (stating that trial court shall hold hearing not later than 30th day after date final order is signed to determine whether a new trial should be granted). TDFPS asserts that this mandate in former section 263.405(d) "likely occurs after the dismissal deadline passes." ⁽²⁰⁾

The Texas Supreme Court has recently indicated, in the context of reviewing a trial court's denial of a motion for new trial after a default judgment, that when a trial court renders a judgment terminating parental rights, but subsequently grants that parent a new trial, TDFPS's suit to terminate parental rights remains subject to the original statutory deadlines prescribed in section 263.401. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In In re R.R., the trial court entered a default judgment terminating the parental rights of a mother who was incarcerated at the time of the default judgment hearing. Id. at 114. After being notified that her parental rights had been terminated, the mother informed the trial court that she wanted to appeal and wanted an attorney. Id. The trial court then appointed the mother an attorney, who filed a motion for new trial on the mother's behalf. Id. In the motion and attached affidavit, the mother asserted, among other things, that she did not realize the significance of the termination petition she had received, she had relied on a child protective services worker to be her representative, and she was willing to go to trial immediately. Id. The supreme court considered whether the mother's motion was filed at such a time that granting it would not result in delay or otherwise injure TDFPS. Id. at 116 (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). In regard to this factor, the court noted,

[The mother's] motion for new trial was timely filed and urged that granting a new trial would not result in delay or otherwise injure CPS or the children. . . . At the hearing on her motion she testified that she would be ready to go to trial immediately and would not ask for any continuances. It was uncontroverted that under the one-year deadline in the Family Code, at the time of the default judgment hearing CPS had more than two months to terminate Rodgers's parental rights or face dismissal of the suit, or seek an additional 180-day extension of the deadline.

Id. at 116 (emphasis added) (citations omitted).

In In re R.R., like this case, the trial court had already entered an order terminating the mother's parental rights. Id. In determining that the granting of the new trial would not result in delay or otherwise injure TDFPS, the supreme court specifically noted that the mother had agreed to go to trial immediately and that more than two months remained before the expiration of the statutory one-year period in which the trial court had to render its final order or, alternatively, that TDFPS could seek an extension. Id. Thus, the above passage from In re R.R. suggests that, even if a termination order is rendered in a termination case, if a trial court grants a new trial, the prior termination order is set aside and the trial court must still render its "final order" within the original one-year statutory deadline or grant an extension. Id. Simply put, the Texas Supreme Court analyzed the issue presented in In re R.R. premised on an interpretation that the deadlines prescribed in section 263.401 are not modified by the granting of a new trial. ⁽²¹⁾   See id.

This reading of former section 263.401 comports not only with the statute's plain language, but also with its purpose. As noted by the Austin Court of Appeals, "[t]he time limitations found in chapter 263 of the [F]amily [C]ode were established by the [L]egislature in order to carry out the 1996 recommendation of the Governor's Committee to Promote Adoption that parental rights be terminated or families reunified within twelve months." In re Ludwig, 150 S.W.3d 819, 822 (Tex. App.--Austin 2004, orig. proceeding), mand. granted, In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609. To this end, section 263.401 "caution[s] trial courts to set a hearing well in advance of the dismissal date." In re Ludwig, 150 S.W.3d at 823. Moreover, as did the Austin Court of Appeals, we also note that we are required to "strictly construe involuntary termination statutes in favor of the parent." Id. at 822 (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). Accordingly, we hold that the trial court did not render a final order before the statutory dismissal deadline and that the trial court clearly abused its discretion in not dismissing TDFPS's suit against Walker.

Adequate Remedy by Appeal

Having held that the trial court clearly abused its discretion in not dismissing TDFPS's suit against Walker, we must now determine whether Walker has an adequate remedy by appeal. See In re McAllen Med. Ctr., Inc., 2008 WL 2069837, at *3 ("Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review."). In determining whether there is an adequate remedy by appeal, we note that the word "adequate" "has no comprehensive definition" and 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 & Protective Servs., 210 S.W.3d at 613 (citing In re Prudential, 148 S.W.3d at 135-36). "[M]andamus will not issue when the law provides another plain, adequate, and complete remedy." Id.

The supreme court in In re Texas Department of Family & Protective Services addressed the availability of mandamus relief when a trial court abuses its discretion in not dismissing a case under former section 263.401. Id. In that case, the supreme court recognized that "justice demands a speedy resolution in cases involving child custody" and that an "appeal is frequently inadequate to protect the rights of parents and children," but the supreme court further noted that section 263.405 of the Texas Family Code provided for an accelerated appeal of a final order rendered under that subchapter and that this section shortened appellate deadlines, expedited the filing of the appellate record, and required the appellate court to render its final order or judgment with the least possible delay. Id. (citing Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2007)). In concluding that the accelerated appeal provided the parents in the case before it with an adequate remedy, the supreme court noted that the parents had filed their motions to dismiss during the trial and that physical possession of the children had already passed to TDFPS. Id. However, the court cautioned that it was not holding that a party "could never be entitled to mandamus relief" for a trial court's failure to dismiss under section 263.401, and it specifically noted that an impending transfer of physical possession of children or an unreasonable delay in entering a final decree might support mandamus relief. ⁽²²⁾   Id. Nevertheless, on the facts before it, the court emphasized that the parents could have initiated the accelerated appeal "at worst two days after they filed their petitions for writ of mandamus" and, thus, they had an adequate appellate remedy. Id. at 614.

Here, from the record before us, it appears that TDFPS has served as the temporary managing conservator of the children since July 18, 2006. As there was no extension granted under former section 263.401(b), the one-year period prescribed in former section 263.401(a) expired in July 2007. The trial court granted Walker's motion for new trial on August 28, 2007, setting aside its termination order. The trial court did not, in conjunction with the granting of a new trial, grant an extension to retain the suit on its docket. In fact, at argument, TDFPS conceded that it did not request an extension to retain the suit because it operated with the understanding that, even if the trial court granted Walker's new trial motion, a "final order" had already been entered and the statutory deadlines in section 263.401 no longer applied. Moreover, even if an extension had been granted, the dismissal deadline, at the latest, would have expired in January 2008. See Tex. Fam. Code Ann. § 263.401(b). But sometime after granting Walker's new trial motion the trial court set the case for a new trial on the merits on April 22, 2008, nine months after the expiration of the actual one-year deadline. Additionally, as represented by the parties at argument, the trial court then reset the case for a trial on June 4, 2008, which would have been almost one full year after the dismissal deadline. In the case before us, unlike in In re Texas Department of Family & Protective Services, Walker filed her motion to dismiss the termination proceedings in March 2008, before the initial trial reset date of April 22, 2008 and the subsequent reset date of June 4, 2008. Thus, when Walker sought relief, she was not in the "midst of trial" with an accelerated appeal just two days away. Also, in In re Texas Department of Family & Protective Services, the dismissal deadline passed on July 24, 2004 and the trial court terminated the parental rights only a few days later on July 28, 2004. 210 S.W.3d at 611. Here, the dismissal deadline passed in July 2007, approximately one year ago. ⁽²³⁾ Finally, we note that, under TDFPS's interpretation of the statute, which the trial court apparently accepted, the statutory deadlines enacted by our Legislature to carry out the goal of terminating parental rights or reunifying families within 12 months no longer applied. As there is no guarantee that the second trial will result in a promptly rendered final order, an accelerated appeal simply cannot provide an adequate remedy in this case because the date at which such an appeal may ripen is uncertain. See In re Tex. Dep't of Family & Protective Services, 210 S.W.3d at 614.

If we accepted TDFPS's interpretation of former section 263.401, when a trial court renders a termination order, but subsequently sets that order aside, the trial court is no longer governed by the statutory mandates that the Legislature enacted to ensure speedy resolution of termination proceedings. Such an interpretation would, under these procedural circumstances, eviscerate the legislative mandates enacted to encourage a trial court's speedy resolution of termination of parental rights cases. Accordingly, we hold that Walker does not have an adequate remedy by appeal to address the trial court's failure to dismiss TDFPS's suit to terminate her parental rights.

Conclusion

Having held that the trial court clearly abused its discretion in not dismissing TDFPS's suit and that Walker does not have an adequate remedy by appeal, we conditionally grant the writ of mandamus and direct the trial court to dismiss TDFPS's suit against Walker. A writ from this Court will issue only if the trial court does not comply.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Bland.

En banc consideration was requested. See Tex. R. App. P. 41.2(c).

A majority of the en banc court voted to deny en banc consideration. See id.

Justice Keyes, dissenting from denial of en banc consideration. Dissenting opinion to follow.

1.

In the Interest of W, No. 2006-06805J (314th District Court, Harris County, Tex.).

2.

See 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 [referred to herein as Former Tex. Fam. Code Ann. § 263.401] (amended 2007) (current version at Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007)).

3.

Although the parties did not supply this Court with the complete reporter's record from the underlying proceedings, the parties agree that the trial court orally rendered a termination order on July 10, 2007, within the statutory one-year deadline prescribed in former section 263.401(a). As explained below, however, upon the granting of Walker's motion for new trial, this termination order was vacated.

4.

More specifically, Walker argued that the trial court erred in terminating her parental rights because there was no clear and convincing evidence that (1) she had engaged in conduct or knowingly placed the children with persons who had engaged in conduct which endangered the physical or emotional well being of the children; (2) she had been convicted or placed on community supervision for being criminally responsible for the death or serious injury of a child or adjudicated for conduct that caused the death or serious injury of a child and that would constitute the offense of indecency with a child; (3) ⁽⁵⁾

5.

' ⁽⁶⁾

6. ⁽⁷⁾

7. §§ §

8.

In its order, the trial court stated that it was granting a new trial "as to mother only." The fathers are not relators in this proceeding.

9.

See Former Tex. Fam. Code Ann. § 263.401.

10.

See id.

11.

After the trial court denied her motion to dismiss, Walker filed her first petition for writ of mandamus in this Court on April 10, 2008, complaining that the associate judge in her case had abused her discretion in not dismissing TDFPS's suit to terminate Walker's parental rights. We dismissed that petition for writ of mandamus because we lacked mandamus jurisdiction over the associate judge. In re Walker, No. 01-08-00253-CV, 2008 WL 1830400 (Tex. App.--Houston [1st Dist.] Apr. 18, 2008, orig. proceeding) (citing Tex. Gov't Code Ann. § 22.221(b) (Vernon 2004)). Walker corrected that error and filed the instant petition for writ of mandamus, which properly identifies the district court judge as the respondent.

12.

On April 30, 1998, Walker filed her petition for writ of mandamus as well as an emergency motion to stay the June 4, 2008 trial. The case was submitted to this Court and oral argument was held on May 21, 1998. On May 29, 2008, we granted Walker's motion to stay the June 4, 2008 trial. See Tex. R. App. P. 43.6.

13.

The dismissal deadlines in section 263.401 are procedural, not jurisdictional. See In re J.C.J., No. 05-05-01555-CV, 2006 WL 2348987, at *5 n.4 (Tex. App.--Dallas Aug. 15, 2006, no pet.) (mem. op.); In re R.W.W., No. 12-04-00329-CV, 2005 WL 2155193, at *2 (Tex. App.--Tyler Sept. 7, 2005, no pet.) (mem. op.); In re Ludwig, 150 S.W.3d 819, 822 (Tex. App.--Austin 2004, orig. proceeding); In re M.N.G., 147 S.W.3d 521, 527 n.1 (Tex. App.--Fort Worth 2004, pet. denied); In re J.B.W., 99 S.W.3d 218, 224 n.27 (Tex. App.--Fort Worth 2003, pet. denied); In re A.B., 125 S.W.3d 769, 773 n.2 (Tex. App.--Texarkana 2003, pet. denied); In re D.D.M., 116 S.W.3d 224, 229 (Tex. App.--Tyler 2003, no pet.).

14.

The 2007 amendments to sections 263.401 and 263.402 apply only to suits filed on or after the effective date of the amendments, which is June 15, 2007. See Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 6, 2007 Tex. Gen. Laws 1837, 1838. A suit affecting the parent-child relationship filed before the effective date of the 2007 amendments to these sections is governed by the law in effect at the time the suit was filed. See id. As this suit was filed prior to the effective date of the 2007 amendments, we apply the former versions of sections 263.401 and 263.402. We note that, although the prior version of section 263.401 was amended in 2007 in several respects, the most important distinction between the current version and the prior version is that the current version requires dismissal "[u]nless the court has commenced the trial on the merits or granted an extension . . . ." See Tex. Fam. Code Ann. § 263.401 (Vernon Supp. 2007).

15.

Although the trial court signed its termination decree on August 21, 2007, which would have fallen outside the one-year period prescribed in former section 263.401(a), the trial court's oral rendition terminating her parent-child relationship on July 10, 2007, but for the subsequent granting of the new trial, would have provided the required "final order" within the prescribed time period. See Tex. Fam. Code Ann. § 101.026 (Vernon 2002) ("'Render' means the pronouncement by a judge of the court's ruling on a matter. The pronouncement may be made orally in the presence of the court reporter or in writing, including on the court's docket sheet or by a separate written instrument.").

16. We note that nothing in former section 263.401(b) suggests that an extension allowed under that section must be granted prior to the expiration of the one-year period prescribed in section 263.401(a). See Former Tex. Fam. Code Ann. § 263.401. Thus, contrary to TDFPS's assertions, a trial court that grants a new trial outside of the one-year deadline, but before the expiration of the additional 180-day extension period, could simply, in the same order, grant the new trial and include the statutory findings and other requirements necessary to grant the extension. See id.

17.

We note that, even if an extension of 180 days had been granted under former section 263.401(b), the extended period would have expired, at the latest, in January 2008.

18.

The current version of section 263.402(b) provides, "A party to a suit under this chapter who fails to make a timely motion to dismiss the suit under this subchapter waives the right to object to the court's failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences." Tex. Fam. Code Ann. § 263.402(b) (emphasis added). Thus, under the current version of section 263.402(b), a party may file only a motion to dismiss before the trial on the merits commences. See id. As noted above, upon the granting of a motion for new trial, a "case shall be reinstated upon the docket of the trial court and stand for trial the same as though no trial had been had" and "the court essentially wipes the slate clean and starts over." Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Thus, even applying the current version of section 263.402(b), Walker's motion would still be timely.

19.

Again, we note that we stayed the June 4, 2008 trial.

20.

TDFPS does not explain why this mandate likely occurs outside the statutory deadline.

21.

TDFPS argues that, if we accept Walker's position, "if one of these cases is appealed, and an appellate court orders a new trial, the trial court would have to immediately dismiss the case on remand rather than trying the issues that the appellate court evaluated should be retried." However, nothing in former section 263.401(a) suggests such an interpretation. See Former Tex. Fam. Code Ann. § 263.401. In fact, former section 263.401(a) concerns only the trial court's one-year deadline to render a final order; it does not impose appellate court deadlines and does not impose any further deadlines after appellate review of such a final, appealable order. See id.

22.

The second factor used by the supreme court to conclude that the accelerated appeal provided an adequate remedy, i.e., the transfer of physical possession of the children to TDFPS, would seem to exist in many of the cases in which TDFPS is seeking termination. In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d at 613; see also Tex. Fam. Code Ann. § 263.401(a) (providing that statutory dismissal deadline only commences once TDFPS is appointed temporary managing conservator of child). Thus, we do not conclude the fact that TDFPS has already obtained physical possession of Walker's children precludes the availability of mandamus relief in this case.

23.

TDFPS notes that at least some of the delay can be attributed to continuances that Walker either requested or agreed to. But, again, section 263.402(a) specifically provides that "[t]he parties to a suit under this chapter may not extend the deadlines set by the court under this subchapter by agreement or otherwise." See Tex. Fam. Code Ann. § 263.402(a).