In Re Texas Department of Family & Protective Services

210 S.W.3d 609, 50 Tex. Sup. Ct. J. 238, 2006 Tex. LEXIS 1265, 2006 WL 3691615
CourtTexas Supreme Court
DecidedDecember 15, 2006
Docket04-1043
StatusPublished
Cited by230 cases

This text of 210 S.W.3d 609 (In Re Texas Department of Family & Protective Services) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Texas Department of Family & Protective Services, 210 S.W.3d 609, 50 Tex. Sup. Ct. J. 238, 2006 Tex. LEXIS 1265, 2006 WL 3691615 (Tex. 2006).

Opinions

Justice WAINWRIGHT

delivered the

opinion of the Court,

in which Chief Justice JEFFERSON, Justice HECHT, Justice BRISTER, Justice MEDINA, Justice GREEN, Justice JOHNSON, and Justice WILLETT joined.

We deny Joy Higdon’s motion for rehearing. We withdraw our opinion of September 22, 2006 and substitute the following in its place.

Section 263.401 of the Texas Family Code establishes a deadline for rendition of a final order in suits affecting the parent-child relationship (SAPCRs) brought by the Texas Department of Family and Protective Services. Although the trial court abused its discretion in faffing to dismiss the Department’s case, we conclude that here, the parties challenging the trial court’s denial of a motion to dismiss under section 263.401 had an adequate remedy by accelerated appeal.

On January 23, 2003, the Department filed a SAPCR to terminate the parent— child relationship between Joy Higdon and her two children. That day, the trial court entered an ex parte order giving the Department the authority to take possession of the children, naming the Department temporary managing conservator, and setting the matter for a full adversarial hearing on February 3, 2003. Apparently, Higdon was restored as managing conservator of the children at the February hearing but agreed to place the children with their great-grandmother, Ruby Ludwig.

The trial court held periodic status hearings. In a temporary order dated August 19, 2003, the trial court appointed the Department temporary managing conservator and identified the dismissal date for the case as August 16, 2004. The children continued to reside with Ludwig. In September, the trial court identified the dismissal date for the Department’s case as January 26, 2004, and set the case for trial on the merits. In January, the trial court extended the dismissal date to July 24, 2004, as permitted by section 263.401(b) of the Texas Family Code. On February 23, 2004, Ludwig intervened, seeking sole managing conservatorship of the children.

On Monday, July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon filed motions to dismiss for failure to render a final order before the statutory deadline. The Department rested its case on Friday, July 23, 2004. Saturday, July 24, 2004, was the dismissal deadline identified by the court in its January order. The trial recommenced on Tuesday, July 27, 2004. On July 28, 2004, the jury returned a unanimous verdict terminating the parent-child relationship between Higdon and each child and appointing the Department, rather than Ludwig, as sole managing conservator of the children. The trial court announced the verdict from the bench, terminated the parental rights of the fathers of the children, and denied the motions to dismiss. A hearing for entry of judgment was set for August 11, 2004. The trial court rendered judgment on Higdon’s parental rights and Ludwig’s intervention when it signed and filed the final decree of termination on August 13, 2004.

On August 11, 2004 and August 12, 2004, Ludwig and Higdon, respectively, filed petitions for writ of mandamus with the court of appeals seeking to compel the trial court to dismiss the case for failure to render a final order before the dismissal date. On October 21, 2004, the court of appeals granted mandamus relief and ordered the trial court to dismiss the Department’s case. On November 18, 2004, the court of appeals denied the Department’s motion [612]*612for rehearing, correctly noting that Ludwig’s intervention would be unaffected by the dismissal of the Department’s SAPCR. The next day, the Department filed a petition for writ of mandamus in this Court and a motion to stay further proceedings. This Court granted the motion to stay.

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The issuance of mandamus by the court of appeals is improper if the trial court did not abuse its discretion or if the record fails to demonstrate the lack of an adequate remedy on appeal. In re Prudential, 148 S.W.3d at 135-36; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). A trial court abuses its discretion when it fails to apply the law correctly, so we consider the trial court’s legal ruling. Walker, 827 S.W.2d at 839-40.

In construing a statute, our objective is to determine and give effect to the Legislature’s intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). To determine the Legislature’s intent, we look to the statute’s plain language and the common meaning of the statute’s words. Id. Subsection 263.401(a) of the Texas Family Code requires a trial court to dismiss a SAPCR filed by the Department 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. The statute allows a maximum extension of 180 days. Tex. Fam. Code § 263.401(b), (c). If the trial court has not rendered a final order at the expiration of the additional 180 days, the court must dismiss the SAPCR. Id. § 263.401(c). Section 263.403, entitled “Monitored Return of Child to Parent,” provides an exception to the dismissal rule, but it is not applicable to this case.

Higdon argues the time period described in subsection 263.401(a) began running on the day the trial court entered its ex parte orders. She calculates the first Monday after the one-year anniversary of the January 23, 2003 ex parte order as January 26, 2004. After adding a 180-day extension, she argues the dismissal deadline was Saturday, July 24, 2004. The Department argues that the January 23, 2003 ex parte order that gave the Department temporary conservatorship did not trigger the section 263.401 time period. Instead, the Department contends that the period began after the August 11, 2003 hearing, making the dismissal deadline August 15, 2004.

The Department obtained temporary managing conservatorship by order of the trial court on January 23, 2003. Thus, the statutory time period started on January 23rd because a court “rendered a temporary order appointing the department as temporary managing conservator.” Tex. Fam.Code § 263.401(a). Nothing in the statute excludes the Department’s fourteen-day conservatorship obtained through the ex parte order from the calculation of the dismissal deadline in section 263.401. We therefore determine the deadline to be the date of the Monday following the one-year anniversary of January 23, 2003, which is January 26, 2004.

On January 26, 2004, the trial court held a permanency hearing at which the court concluded that a 180-day extension of this dismissal deadline was in the best interest of the children, as permitted by subsection 263.401(b) of the Texas Family Code and set the dismissal date for July 24, 2004.

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Bluebook (online)
210 S.W.3d 609, 50 Tex. Sup. Ct. J. 238, 2006 Tex. LEXIS 1265, 2006 WL 3691615, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-texas-department-of-family-protective-services-tex-2006.