In Re TDST

287 S.W.3d 268, 2009 WL 1011110
CourtCourt of Appeals of Texas
DecidedApril 15, 2009
Docket07-08-0399-CV
StatusPublished
Cited by1 cases

This text of 287 S.W.3d 268 (In Re TDST) 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 TDST, 287 S.W.3d 268, 2009 WL 1011110 (Tex. Ct. App. 2009).

Opinion

287 S.W.3d 268 (2009)

In the Interest of T.D.S.T. and C.T., Children.

No. 07-08-0399-CV.

Court of Appeals of Texas, Amarillo.

April 15, 2009.

*269 James C. Fling, Adkins & Fling, Shamrock, TX, for Appellants.

Dale A. Rabe Jr., Bird, Bird & Rabe, Childress, TX, for Guardian Ad Litem.

Duke Hooten, Texas Department of Family and Protective Services, Austin, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

JAMES T. CAMPBELL, Justice.

In this accelerated appeal, appellants R.T. and M.T. bring four issues challenging the trial court's judgment terminating their parental rights to T.D.S.T. and C.T. We will affirm.

Background

Because R.T. and M.T. do not challenge the sufficiency of the evidence supporting termination, we will recite only the facts relevant to the issues presented. On December 2, 2005, the Department of Family and Protective Services filed a petition to terminate the parental rights of R.T. and M.T. to their biological children T.D.S.T. and C.T. Through emergency orders of December 2, the Department was appointed sole temporary managing conservator of T.D.S.T. and C.T. Following a full adversary hearing before the associate judge on December 8, temporary orders were signed appointing the Department temporary managing conservator of T.D.S.T. and C.T. A permanency hearing order signed on August 28, 2006, fixed December 4, 2006, as the date for dismissal and scheduled a final hearing for November 28.

The final hearing was held November 28, 2006, before the associate judge. At the conclusion of the hearing, the associate judge orally rendered an order terminating the parental rights of R.T. and M.T. and appointing the Department permanent managing conservator of T.D.S.T. and C.T. On December 1, R.T. and M.T. filed notice appealing the associate judge's rendition to the referring district court. The oral rendition *270 was reduced to a written order signed by the associate judge on December 12.

The district court conducted a trial de novo on February 20, 2007. At the proceeding, the parties agreed the court would base its judgment exclusively on the record of the hearing of November 28, 2006. The district court then took the matter under advisement. On March 7, 2008, R.T. and M.T. filed a motion to dismiss the case on the ground that a final order was not rendered within the period specified by Family Code section 263.401(a).[1]

A new district judge was appointed in March 2008. He convened a hearing in the case on April 7. There, the parties stated their positions on the merits and agreed to submit briefs. The court indicated it would review the briefs before deciding to review the record. There was no objection. The court denied the motion to dismiss of R.T. and M.T. by order of June 3.

In an order signed August 6, 2008, the district court terminated the parental rights of R.T. and M.T. and appointed the Department permanent managing conservator of T.D.S.T. and C.T. The order recites that the court inter alia reviewed the reporter's record of the November 28, 2006, hearing and the clerk's record before reaching its decision. The order adopted the material terms of the associate judge's order. R.T. and M.T. then appealed to this court.

Discussion

Through their first and second issues R.T. and M.T. argue the district court erred by failing to dismiss the case[2] because a final order was not rendered within the time limits of Family Code section 263.401.

As it existed at the time applicable to the underlying case, section 263.401 in pertinent part required that unless:

[T]he court has rendered a final order... 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.

Tex. Fam.Code Ann. § 263.401(a).

On the record, at the conclusion of the November 28, 2006, hearing the associate judge stated:

The Court finds the evidence sufficient, does terminate the parental rights of [M.T. and R.T.] to the children [T.D.S.T. and C.T.]. Appoints the Department of Family and Protective Services as permanent managing conservator of both children. Sets the initial placement review matter in this-initial placement review hearing in this matter on Thursday, *271 March 15, 2007 at 11 a.m. Will not order either parent to pay child support pending adoption. That concludes this hearing.

According to R.T. and M.T., the rendition by the associate judge terminating the parent-child relationship was not a final order because it was timely appealed to the district court for trial de novo. And the district court erred, they further argue, by not dismissing the case when it failed to render a final order within the one year period of section 263.401(a).

To analyze the issue, we must necessarily consider the meaning of the words "render" and "final order" as applied by section 263.401 and their application to the rendition by the associate judge. The term "render" is defined in the Family Code. It "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." Tex. Fam.Code Ann. § 101.026. We are guided in our understanding of "final order" by the canon of construction that when words are given a technical or particular meaning, the court should construe them accordingly. Tex. Gov't Code Ann. § 311.011(b) (Vernon 2005). See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex.1995) (court is bound to construe statutory terms, in this case the DTPA, according to their statutory definitions). Section 263.401 then gave its own particular meaning to the term "final order":

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.

Tex. Fam.Code Ann. § 263.401(d).

Concerning the role of the associate judge in the underlying proceedings, the version of the Family Code in place at the time allowed a district judge to appoint a full-time or part-time associate judge to hear matters in a suit affecting the parent-child relationship. Tex. Fam.Code Ann.

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Bluebook (online)
287 S.W.3d 268, 2009 WL 1011110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tdst-texapp-2009.