In the Interest of G.L.J. and G.M.J., Children v. the State of Texas ( 2024 )

Affirmed and Opinion Filed May 24, 2024
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01296-CV
IN THE INTEREST OF G.L.J. AND G.M.J., CHILDREN
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-21-16025-S
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Breedlove
Opinion by Justice Goldstein
Mother appeals the trial court’s order terminating her parental rights. In three
issues, Mother asserts that the trial court lacked jurisdiction to enter the order of
termination.1 We affirm in this memorandum opinion. See TEX. R. APP. P. 47.2(a).
BACKGROUND
Twins G.L.J. and G.M.J. were born to Mother in October 2019. In March
2021, the Texas Department of Family and Protective Services (Department)
1
Mother solely challenged jurisdiction and raises no issue associated with the bases of termination,
§ 161.001(b)(1)(D), (E), and (O) of the Texas Family Code, in the memorandum ruling rendered on
November 15, 2023, amended on November 21, 2023 and the order of termination entered November 30,
2023. The unchallenged predicate findings with respect to the termination of Mother’s parental rights are
binding. In re E.C., No. 05-23-00586-CV, 2023 WL 8733027, at *8 (Tex. App.—Dallas Dec. 19, 2023, no
pet.) (mem. op.). We therefore do not address the grounds for termination.
received an allegation of neglectful supervision by Mother’s then live-in boyfriend.
In their subsequent investigation, case workers from the Department made contact
with a man, T.D.H., who claimed to be the children’s father.
On September 28, 2021, the Office of the Attorney General filed a petition to
establish the parent-child relationship between T.D.H. and the children. Two months
later, on December 8, the Department filed its original petition for protection of a
child, for conservatorship, and for termination. The same day, an associate judge
entered (1) a temporary order appointing the Department as temporary managing
conservator of the children and (2) an order naming the Dallas Court Appointed
Special Advocate (CASA) as special advocate for the children.
On December 21, 2021, the associate judge entered an order directing T.D.H.
to undergo DNA testing to determine paternity. The results of the DNA test
ultimately ruled out T.D.H. as the children’s father. On June 10, 2022, the
Department amended its petition, this time alleging that the children’s father was
E.D.L. or alternatively, an “unknown” man.
The trial court scheduled trial for November 29, 2022, with a dismissal date
of December 12, 2022. After the November 29 trial, the trial court entered a
memorandum ruling final trial (November 2022 Order) terminating the
“alleged/unknown” father’s parental rights. The trial court denied the termination of
Mother’s parental rights “at this time” and ordered a monitored return of the children
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to Mother “until March 27, 2023 with the goal of her completing services and finding
stable housing.” The children were returned to Mother on November 29, 2022.
On January 17, 2023, a representative from CASA filed a report with the trial
court including the following allegations:
Per the [trial court’s] Order of November 29, 2022, the children
were removed from daycare and returned to [Mother] by 5:00
p.m. that day. [Mother] met her children at her [m]other’s house
(children’s maternal grandmother), which [Mother] had
represented to the [trial court] during her testimony that this is
where she and the children would be living during the monitored
return until she could find stable housing. However, the next
morning, November 30th [Mother] and children left with all of
their belongings and have since been relocating and living in
several places, including hotels and homeless shelters. In nearly
every instance, if not every instance, [Mother], contrary to her
instructions, has not let the [Department] caseworker
immediately know of her whereabouts so that [the Department]
can effectively monitor the return. Until [Mother]’s and
children’s disappearance on December 23, 2022, caseworker had
to initiate several calls and leave messages until she heard back
from [Mother]. Each time she has heard back from [Mother],
[Mother] and children are in a different location.
On December 7, 2022, CASA called [Mother] to schedule an
appointment to visit the children, but [Mother] denied CASA a
visit and access to the children.
To the best of CASA’s knowledge, from December 16th to on or
about December 23rd, [the Department] caseworker did not
know the whereabouts of [Mother] and children. Numerous calls
to [Mother] went unreturned. On December 23rd, upon receiving
a call from [Mother], the caseworker visited [Mother] and
children in a hotel room and assessed that the children were not
in a safe environment and/or being neglected. The caseworker
determined that removal of the children was in order. Suspecting
such, [T.D.H.] drove to the premises and relocated her and the
children to an unknown location prior to the Dallas Police
Department’s arrival to remove children. Since December 23,
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2022, neither [the Department] nor CASA has known the
whereabouts of [Mother] and children, and [the Department] has
assigned Special investigators to locate them.
To the best of CASA’s knowledge, [Mother] has not initiated any
of her court-ordered services since the November 29th trial,
including submission to a drug test, or looked for stable housing.
CASA has not been able to visit or see the children, except
through digital pictures provided by CPS, since November 29,
2022.
The Department, on January 20, filed a motion to modify temporary orders and
request for emergency removal, which the associate judge granted as an ex parte
order for emergency care and temporary custody that same date, setting a hearing
for February 1, 2023.2
On February 22, 2023, the associate judge held a hearing on the temporary
orders and, on February 27, issued a Chapter 263 permanency hearing order, which
noted that the children were removed from Mother on January 20, 2023, during
monitored return, and pursuant to 263.403(c) set the new dismissal date for July 19,
2023, with the permanency hearing reset to March 29. On March 29, 2023, the
associate judge held a pretrial conference, issued a pretrial order and set the final
trial for June 27, 2023.
Trial commenced on June 27, 2023, and Mother failed to appear. In Mother’s
absence, the Department and counsel for Mother agreed to attend mediation. The
trial court suspended testimony and set the trial to recommence on September 28,
2
The docket sheet from the trial court lists a February 1, 2023 “CPS Hearing” but the transcript of the
hearing is not in our record.
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2023. The day before that setting, the associate judge entered an order resetting
hearing finding that trial commenced on June 27, 2023, and that testimony was
suspended. The trial court further found that the trial was scheduled to resume
September 28, 2023, and that “pursuant to TFC 263.4011 good cause exists to extend
the 90 day period for rendering the final order” as “the Court is unavailable” for the
trial date, extended the case, and continued trial to November 14, 2023. Trial
recommenced on November 14, and the trial court heard testimony from Mother,
Mother’s psychologist, a Department case worker, and a CASA representative.
Following trial, the trial court entered an order terminating Mother’s parental rights.
This appeal followed.
DISCUSSION
Mother asserts that the trial court lacked jurisdiction to enter the termination
order. Mother argues that the trial court had no jurisdiction after December 12, 2022;
specifically averring:
Issue No. 1:
Because no court order was entered after the November 29, 2022
ruling, no order altered the dismissal date, and the court lost
jurisdiction with the initial dismissal date of December 12, 2022
pursuant to Texas Family Code Section 263.401.
Issue No. 2:
The court lost jurisdiction prior to the November 14, 2023
hearing pursuant to Texas Family Code Section 263.4011.
Issue No. 3:
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The court lost jurisdiction prior to the November 14, 2023
hearing pursuant to Texas Family Code Section 263.403(b)(2).
The Department responds that the trial court’s November 2022 Order is governed
by Section 263.403 of the Family Code and the trial court’s failure to include a new
dismissal date in the order is not jurisdictional. The Department argues that as a non-
jurisdictional issue, Mother was required to raise her issues in the trial court and,
having failed to do so, waived them for appeal.
I. STANDARDS OF REVIEW
We review de novo issues implicating a trial court’s jurisdiction. In re H.S.,
550 S.W.3d 151, 155 (Tex. 2018). Appellate courts have jurisdiction to determine
whether an order or judgment underlying the appeal is void and to make appropriate
orders based on that determination. In re P.Z.F., 651 S.W.3d 147, 150 (Tex. App.—
Dallas 2021, pet. denied) (citing In re D.S., 602 S.W.3d 504, 512 (Tex. 2020)). A
judgment is void when it is apparent that the court rendering judgment lacked
jurisdiction over the parties or subject matter, had no jurisdiction to enter the
particular judgment, or had no capacity to act. Id. (citing Freedom Commc’ns., Inc.
v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam)).
Generally, as “a prerequisite to presenting a complaint for appellate review,
the record must show that ... the complaint was made to the trial court by a timely
request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1)(A). “A limited exception
to our procedural preservation rules is the fundamental-error doctrine.” In re B.L.D.,
113 S.W.3d 340, 350 (Tex. 2003). Fundamental error occurs when, for example, the
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trial court lacked subject-matter jurisdiction over the case. See id. Accordingly,
“subject-matter jurisdiction can be raised for the first time on appeal.” Henry v. Cox,
520 S.W.3d 28, 35 (Tex. 2017).
II. ANALYSIS
A. Section 263.401
In her first issue, Mother argues that in order for the trial court to have retained
jurisdiction past December 12, 2022, it was required to enter, prior to that date, an
order that included a new dismissal date pursuant to Section 263.401 of the Family
Code. Specifically, Mother contends that the November 2022 Order, the trial court’s
“rendering” after “final trial on the merits” was never a final order; therefore, as no
new dismissal date was entered, the December 12, 2022, dismissal date was not
altered and the trial court lost jurisdiction. The Department responds that Mother
waived this issue for appeal. We agree with the Department.
Section 263.401 of the Family Code provides, in pertinent part:
(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
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
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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).
TEX. FAM. CODE ANN. § 263.401(a)–(b).
The supreme court has considered when a trial court’s failure to adhere to the
requirements of Section 263.401 is jurisdictional. In re G.X.H., 627 S.W.3d 288, 292
(Tex. 2021). Automatic dismissal is statutorily mandated, and jurisdiction
terminated, “if the trial court neither commences trial by the dismissal date nor
extends it in accordance with section 263.401(b).” Id. at 292. In G.X.H. the supreme
court addressed the continuance of a trial setting and extension of the dismissal date
as reflected in a docket entry, holding that the docket-sheet entry extending the trial
date to October 17, 2018, was sufficient to avoid automatic dismissal under Section
263.401(b). See id. at 297. The court found that “because section 263.401(a) never
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divested the trial court of jurisdiction” the docket entry extension “allowed the trial
court to retain jurisdiction . . . throughout the time it took to complete the trial and
enter the Final Decree,” and the “Final Decree is not void.” Id. at 298. The court
concluded that “while a trial court’s failure to timely extend the automatic dismissal
date before that date passes—through a docket-sheet notation or otherwise—is
jurisdictional, claimed defects relating to the other requirements of 263.401(b) are
not.” Id. at 301. Complaints regarding the trial court’s compliance with the
requirements in subsection (b),” such as objections to the continuance or extensions,
or the lack of section 263.401(b) findings, “must be preserved for appellate review.”
Id. at 298–301.
In this case, Mother does not contest that the trial court commenced the trial
prior to the initial dismissal date. Mother argues that the failure to render a final
order necessitated a new dismissal date be entered.3 Mother fails to address the
timely commenced trial or the impact on the proceedings of the ordered monitored
return. Mother did not object to the monitored return, the form of the order, or the
lack of finality. The trial court’s November 2022 Order states:
The Court DENIES termination of the Mother’s Parental Rights
at this time. The Court Orders a monitored return to the Mother
until March 27, 2023 with the goal of her completing services
and finding stable housing. The Court Orders the case into
extension. The Case will be on a report back at 9:00 a.m. on
March 27, 2023.
3
Mother argues both that the trial court “never set a new dismissal date” prior to the December 12,
2022, initial dismissal date and that the initial dismissal date was “never altered.”
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Like the language in the docket-entry order in G.X.H., we conclude that this language
was sufficient to retain the case on the trial court’s docket and avoid automatic
dismissal. See id. at 297. The trial court’s failure to include a dismissal date in a
Section 263.401 order does not create a jurisdictional issue. See In re P.Z.F., 651
S.W.3d at 153.
In order to preserve her issue regarding the trial court’s failure to include a
dismissal date in its November 2022 Order, Mother was required to raise it in the
trial court “by a timely request, objection, or motion.” TEX. R. APP. P. 33.1(a)(1)(A);
see In re G.X.H., 627 S.W.3d at 301; In re B.L.D., 113 S.W.3d at 350. Mother did
not do so, and as a result the complaint is waived for appeal.
We overrule Mother’s first issue.
B. Section 263.4011
In her second issue, Mother argues that because trial commenced on
November 29, 2022, the trial court was required to enter a final order within ninety
days pursuant to Section 263.4011 of the Family Code, therefore, we discern Mother
to argue that the trial court lacked jurisdiction to enter the final order of termination
over a year later on November 30, 2023. The Department again argues that Mother
waived this issue for appeal. We agree with the Department.
Section 263.4011 of the Family Code provides, in full:
(a) On timely commencement of the trial on the merits under
Section 263.401, the court shall render a final order not later
than the 90th day after the date the trial commences.
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(b) The 90-day period for rendering a final order under
Subsection (a) is not tolled for any recess during the trial.
(c) The court may extend the 90-day period under Subsection (a)
for the period the court determines necessary if, after a
hearing, the court finds good cause for the extension. If the
court grants a good cause extension under this subsection, the
court shall render a written order specifying:
(1) the grounds on which the extension is granted; and
(2) the length of the extension.
(d) A party may file a mandamus proceeding if the court fails to
render a final order within the time required by this section.
TEX. FAM. CODE ANN. § 263.4011.
We conclude that the requirement to enter an order within ninety days of trial
is not jurisdictional. In construing statutes, we “presume that statutory requirements
are not jurisdictional absent ‘clear contrary legislative intent.’” In re J.S., 670
S.W.3d at 603. Section 263.4011 lacks any language indicating a legislative intent
to impose a limit on the trial court’s jurisdiction.
Indeed, the text of the statute reveals the opposite. Under subsection (d), a
party may initiate a “mandamus proceeding” to challenge the trial court’s failure to
issue an order within the time prescribed by subsection (a). The phrase “mandamus
proceeding” is a technical phrase, the definition of which we presume the Legislature
knew when it enacted Section 463.4011. See City of Rockwall v. Hughes, 246
S.W.3d 621, 625 (Tex. 2008) (“In construing statutes, . . . [w]e use definitions
prescribed by the Legislature and any technical or particular meaning the words have
acquired.”) (citing TEX. GOV’T CODE ANN. § 311.011(b)). A “mandamus
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proceeding” is an original proceeding instituted in an appellate court to correct a trial
court’s clear abuse of discretion for which the petitioner has no adequate appellate
remedy. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig.
proceeding); see also TEX. R. APP. P. 52.1–.11. Mandamus relief is available, for
example, to compel a trial court to rule on a motion that has been pending before the
court for a reasonable period of time. See In re Kam, No. 05-19-01462-CV, 2020
WL 1815830, at *1 (Tex. App.—Dallas Apr. 10, 2020, orig. proceeding) (mem. op.)
(citing In re Shredder Co., L.L.C., 225 S.W.3d 676, 679 (Tex. App.—El Paso 2006,
orig. proceeding)).
By authorizing parties to “file a mandamus proceeding” in subsection (d), the
Legislature contemplated that a court of appeals may enter an order directing the
trial court to issue the final order that the trial court failed to enter within the time
limit prescribed by subsection (a). See TEX. FAM. CODE ANN. § 463.4011(d). It would
make no sense for an appellate court to compel a trial court to enter an order that the
trial court has no jurisdiction to enter. Cf. KMS Retail Rowlett, LP v. City of Rowlett,
593 S.W.3d 175, 183 (Tex. 2019) (courts must avoid construing statutes that lead to
nonsensical or absurd results). Thus, the Legislature’s inclusion of subsection (d) is
clear evidence that it did not intend for the deadline in subsection (a) to be
jurisdictional.
Because we conclude that the ninety-day period in Section 263.4011(a) is not
jurisdictional, Mother was required to raise it in the trial court “by a timely request,
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objection, or motion.” TEX. R. APP. P. 33.1(a)(1)(A); see In re B.L.D., 113 S.W.3d
at 350. Mother did not do so, and as a result the issue is waived for appeal.
C. Section 263.403
In her third issue, Mother contends that, to the extent the trial court’s
November 2022 Order can be construed as a monitored-return order under Section
263.403 of the Family Code, the trial court was required to include a new dismissal
date under subsection (b)(2) of that statute. Mother argues that the trial court’s failure
to do so deprived it of jurisdiction to enter the termination order on November 30,
2023. The Department argues that Mother waived this issue for failing to raise it
with the trial court. We agree with the Department.
Section 263.403 provides, in relevant part:
(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:
(A) return the child to the child’s parent; or
(B) transition the child, according to a schedule
determined by the department or court, from
substitute care to the parent while the parent
completes the remaining requirements
imposed under a service plan and specified in
the temporary order that are necessary for the
child’s return;
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(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 unless a trial on the merits has commenced.
TEX. FAM. CODE ANN. § 263.403(a), (b). As with Section 263.401, courts have held
that the requirement to include a dismissal date in a monitored-return order under
Section 263.403 is not jurisdictional. In re J.J., No. 07-20-00361-CV, 2021 WL
1741875, at *2 (Tex. App.—Amarillo Apr. 30, 2021, pet. denied) (mem. op.)
(“[G]iven the absence of legislatively mandated consequences for the failure to
specify a new dismissal date, we conclude that the trial court did not lose jurisdiction
over the cause through noncompliance with § 263.403(b).”); see also In re D.O.A.I.,
No. 11-16-00141-CV, 2016 WL 6998940, at *2 (Tex. App.—Eastland Nov. 30,
2016, no pet.) (mem. op.) (failure to include dismissal date in order pursuant to
Section 263.403(c)4 not jurisdictional). We agree with our sister courts and conclude
4
Section 263.403(c) further provides:
If before the dismissal of the suit or the commencement of the trial on the merits a child
placed with a parent under this section must be moved from that home by the department
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that a trial court failure to comply with Section 263.403(b) constitutes a non-
jurisdictional error.
In order to preserve her issue regarding the trial court’s failure to include a
dismissal date in its monitored-return order pursuant to Section 263.403, Mother was
required to raise the issue in the trial court “by a timely request, objection, or
motion.” TEX. R. APP. P. 33.1(a)(1)(A). Mother did not raise these issues in the trial
court, and as a result they are waived for appeal. See In re G.X.H., 627 S.W.3d at
301; In re P.Z.F. 651 S.W.3d at 153.
CONCLUSION
We conclude the trial court had jurisdiction to enter its final order terminating
Mother’s parental rights. We overrule Mother’s issues and affirm the trial court’s
order.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
231296F.P05 JUSTICE
or the court renders a temporary order terminating the transition order issued under
Subsection (a)(2)(B), the court shall, at the time of the move or order, 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
or the order is rendered under this subsection, whichever date is later.
TEX. FAM. CODE ANN. § 263.403(c). Here, the trial court cited this provision in its February 27,
2023 permanency hearing order, setting a dismissal date of July 19, 2023. Without substantive
argument by either party regarding this provision, we do not address it further.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF G.L.J. AND On Appeal from the 255th Judicial
G.M.J., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-21-16025-
No. 05-23-01296-CV S.
Opinion delivered by Justice
Goldstein. Justices Carlyle and
Breedlove participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 24th day of May 2024.
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