In Re Kf

351 S.W.3d 108, 2011 WL 3123360
CourtCourt of Appeals of Texas
DecidedJuly 27, 2011
Docket04-10-00811-CV
StatusPublished

This text of 351 S.W.3d 108 (In Re Kf) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Kf, 351 S.W.3d 108, 2011 WL 3123360 (Tex. Ct. App. 2011).

Opinion

351 S.W.3d 108 (2011)

In the Interest of K.F., I.T. and K.L.H.

No. 04-10-00811-CV.

Court of Appeals of Texas, San Antonio.

July 27, 2011.

*109 Deborah Perry, Attorney At Law, Seguin, TX, for Appellant.

*110 Charles Taylor, Thomas H. Morris, III, Attorney At Law, Seguin, TX, Luisa Petrin Marrero, Texas Department of Family and Protective Services, Austin, TX, for Appellee.

Sitting: SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.

OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

In this accelerated appeal the appellant-mother of three children challenges the trial court's decision to place one of her three children with the child's father. On appeal, appellant asserts the statutorily-required dismissal date had expired; therefore, the trial court should have dismissed the case. Because the issues in this appeal are procedural in nature, the following discussion does not include the facts underlying the trial court's decision regarding placement of any of the three children. We affirm.

BACKGROUND

Appellant is the mother of three children: KF, KH, and IT. Each child has a different father. The child who is the subject of this appeal is IT and his father is "Charles." On October 30, 2008, the Texas Department of Family and Protective Services ("the Department") filed suit to remove all three children from their home and to terminate the parental rights as to all three children. The next day, the Department was appointed temporary managing conservator of the three children. The first permanency hearing occurred on April 17, 2009. On July 1, 2009, Charles filed an "Original Counter[-P]etition in Suit Affecting the Parent-Child Relationship" in which he sought appointment as sole managing conservator of IT.[1]

Following an August 7, 2009 permanency hearing, the associate judge signed an order granting a six-month extension of the original trial date to March 19, 2010, with a new dismissal date of May 1, 2010. In the August 7 order, the associate judge ordered that KF and KH remain in their foster home and that IT be returned to and remain with Charles. The order also stated that the Department would remain as the temporary managing conservator of KF and KH.

Following a March 5, 2010 permanency hearing, the associate judge signed an order on March 19, 2010 granting a monitored return of KF and KH to appellant, with the Department remaining as temporary managing conservator of the two children. The associate judge also referred the parties to the district court "for final disposition as to custody of" IT. Finally, the court set a new date for trial on August 9, 2010, with a new dismissal date of September 9, 2010.

On April 23, 2010, the trial court conducted a trial regarding custody of IT, following which the court ruled as follows from the bench:

The parties willing [sic] appointed joint—joint managing conservators, and [Charles] will have the right to establish residence and domicile. [Appellant] will have access pursuant to a standard possession order.
...
I will make this return and monitor order, giving the Department rights to monitor both the primary conservator *111 and any visitation by [appellant] that they choose to monitor.

The court ordered appellant to pay child support pursuant to the guidelines and ordered family counseling.

Following a May 28, 2010 permanency hearing, the trial court signed an order allowing KF and KH to remain with appellant "because services continue to be offered." The court also allowed IT to remain with Charles "because services continue to be offered pending finalization of orders as to [him]." The order did not set a new trial date or dismissal date.

Although the trial court ruled from the bench on April 23, 2010, the court did not sign an order until July 21, 2010. On July 21, the trial court signed an "Interlocutory Order in Suit Affecting The Parent-Child Relationship as to [IT]" ("the July 21 Order"), in which the court appointed Charles and appellant joint managing conservators of IT, gave Charles the exclusive right to designate IT's residence, and dismissed the Department as a party with reference to IT. The court found that the order "sufficiently defines the rights and duties of the parents of the children ... and no further parenting plan is appropriate or necessary." The court denied all relief not expressly granted, and the order contained the statutory notice regarding appeals of final orders involving the Department. Finally, the court terminated any "other existing court-ordered relationships with the children the subject of this suit" and dismissed from the suit any parties claiming such a court-ordered relationship.

On October 1, 2010, the trial court signed an order in which it dismissed the Department as temporary managing conservator with regard to KF and KH. In this same order, the trial court also stated it "finds that the [July 21 Order] is the controlling order as to [IT]." On October 28, 2010, the court signed an "Order on Appeal to Referring Court," in which the court found that (1) the trial on the merits as to IT was commenced on April 23, 2010, "which date was prior to the dismissal date in this case," and (2) the order rendered in open court on April 23, 2010 and entered on July 21, 2010 "is, in all respects, a final order as to [IT]."

On appeal, appellant asserts that the July 21 Order was not a final order because IT's case was not severed from the case as to the other two children and the Department remained involved in the case. Therefore, according to appellant, because the May 1, 2010 dismissal date passed without the Department being dismissed from the case and the May 1, 2010 dismissal date was not extended, the cause of action pertaining to IT should have been dismissed. Appellant also asserts not all parties received notice of the April 23, 2010 trial setting.

DISCUSSION

The Texas Family Code requires a trial court to dismiss a suit filed by the Department that requests termination of the parent-child relationship or requests that the Department be named conservator of the child on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the Department as temporary managing conservator "[u]nless the court has commenced the trial on the merits or granted an extension under subsection (b)." TEX. FAM.CODE ANN. § 263.401(a) (West 2008).

Under subsection (b), if the court has not "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 Department's temporary managing conservatorship and *112 that continuing the appointment of the Department as temporary managing conservator is in the child's best interest. Id. § 263.401(b). "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)." Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hall v. City of Austin
450 S.W.2d 836 (Texas Supreme Court, 1970)
In Re United Fire Lloyds
327 S.W.3d 250 (Court of Appeals of Texas, 2010)
In the Interest of K.F., I.T. and K.L.H
351 S.W.3d 108 (Court of Appeals of Texas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
351 S.W.3d 108, 2011 WL 3123360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kf-texapp-2011.