in the Interest of J.R.T.

• Court: Court of Appeals of Texas
• Decided: March 17, 2022
• Docket: 09-21-00361-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00361-CV __________________

IN THE INTEREST OF J.R.T.

__________________________________________________________________

On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 11-06-06413-CV __________________________________________________________________

MEMORANDUM OPINION

After a jury trial, Appellant M.P. (“Mayra”) 1 appeals the trial court’s order

terminating her parental rights to her minor daughter J.R.T. (“Jenny”), who was a

few weeks shy of her sixteenth birthday at the time of trial. In two issues, Appellant

argues that the trial court lost jurisdiction over the case prior to the jury trial for

failure to make required findings and by failure to enter an order prior to the

dismissal date, which renders the trial court’s final orders void. Appellee, the

Department of Family and Protective Services (“the Department”), agrees. For

1 To protect the identities of the minors, we use pseudonyms to refer to the children and their family members. See Tex. R. App. P. 9.8(b)(2). 1 reasons explained herein, we vacate the trial court’s Final Order Affecting the

Parent-Child Relationship and dismiss the underlying case, without prejudice to the

Department’s rights.

Background

On May 17, 2019, the Department filed a Petition to Modify in trial cause

number 11-06-064132 seeking temporary managing conservatorship of Shirelle,

who was then fifteen years old. The petition named Mayra and Paul as Shirelle’s

parents, and the Department sought termination of both Mayra’s and Paul’s parental

rights to Shirelle. The petition was supported by an affidavit by a Child Protective

Services (“CPS”) worker and representative, stating that on May 10, 2019, the

Department received a referral alleging physical abuse of Jenny by Mayra. The

affidavit also stated that the home was in “horrendous[]” condition, including having

no working toilet, Mayra had kicked Shirelle out of the house, Shirelle also reported

abuse by Mayra, and Mayra had a history of drug and alcohol abuse and family

violence. The affidavit reported that Mayra also had a history of criminal charges

2 Trial cause number 11-06-06413 commenced on June 9, 2011, when the Office of the Attorney General filed a Petition to Establish the Parent-Child Relationship. The petition sought to determine parentage of Mayra’s daughter Shirelle, who was then almost nine years old. On October 13, 2011, the trial court signed an Order Establishing the Parent-Child Relationship that found Paul was Shirelle’s father. 2 and CPS cases. According to the affidavit, the whereabouts of Shirelle’s father Paul

was unknown.3

The same day, in trial court cause number 14-10-11129, the Department filed

an Original Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship seeking temporary

managing conservatorship of Jenny, who was then thirteen years old. The petition

named Mayra and Donald as Jenny’s parents and sought to terminate Mayra’s

parental rights to Jenny.4

On June 6, 2019, the Department was named temporary managing conservator

of Shirelle and Jenny, the court consolidated the two cases into cause number 11-

06-06413-CV, and the court set a dismissal date for both cases as June 8, 2020. Also,

on June 6, 2019, the trial court signed an order consolidating the causes. The trial

court signed a Temporary Order Following Show Cause Hearing on August 1, 2019

appointing the Department temporary managing conservator of Shirelle. On August

1, 2019, the trial court signed an order setting the dismissal date as June 8, 2020.

3 On October 29, 2020, Paul signed an Affidavit of Voluntary Relinquishment of Parental Rights. Paul is not a party to this appeal, and we discuss him only as necessary. 4 Donald passed away in September 2015. 3 On May 1, 2020, the parties attempted mediation but did not settle, and Mayra

filed a request for jury trial. The trial court signed an order retaining the suit on its

docket, which read in relevant part:

On June 10, 2020, a hearing was held in this case. The Court finds that the Texas Supreme Court has entered emergency orders regarding COVID-19 that are applicable to this case. The Court further finds that this County is currently under a state of disaster and the Courts have been affected by the disaster[.] Pursuant to the Supreme Court Emergency Order, the Court finds good cause to extend the dismissal deadline in this case. IT IS THEREFORE ORDERED, pursuant to the Supreme Court’s Emergency Orders, that this suit is retained on the Court’s docket, that the Department is retained as Temporary Managing Conservator of the children the subject of this suit, and that a new dismissal date is hereby set at December 7, 2020. IT IS THEREFORE ORDERED, pursuant to the Supreme Court’s Emergency Orders, that this suit is retained on the Court’s docket, that the Department is retained as Temporary Managing Conservator of the children the subject of this suit, and that a new dismissal date is hereby set as December 7, 2020. ... ORDERED on June 10, 2020 and SIGNED on 8/6/2021[].

A docket notation dated June 10, 2020 stated, “General extension granted and

dismissal 12/7[.]” The court subsequently granted three additional extensions: (1) on

March 1, 2021, the trial court set a new dismissal date of May 10, 2021; (2) on April

30, 2021, the trial court set a new dismissal date of September 2, 2021; and (3) on

September 1, 2021, the court gave “a COVID extension[]” and set the date for trial

at “either 10/18/21 or 10/25/21[.]”

A jury trial was held October 18 through 20, 2021. The jury found that

termination of Mayra’s parental rights to Jenny was in Jenny’s best interest and there 4 were five predicate statutory bases for termination, including endangerment,

constructive abandonment, and failure to comply with a court-ordered family service

plan.5 On October 29, 2021, the trial court signed a Final Order Affecting the Parent-

Child Relationship, adopting the jury’s findings, finding termination of Mayra’s

parental rights to Jenny was in Jenny’s best interest, and finding five predicate

statutory bases for termination. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),

(N), (O), (P), (2). Mayra timely appealed.

Issues

Appellant raises two issues on appeal, both of which challenge the trial court’s

jurisdiction. In her first issue, she argues that the trial court failed to make the

findings required in section 263.401 of the Family Code in its June 10, 2020 order.

In her second issue, she argues that the trial court failed to “enter an order” pursuant

to Texas Family Code Section 263.401 to extend its jurisdiction until June 10, 2020,

which was after the automatic statutory dismissal date of June 8, 2020, and the trial

court’s judgment was void because the trial court lost jurisdiction. In Appellee’s

brief, the Department agrees that the trial court’s order extending the dismissal

deadline was not “rendered or entered” until after the automatic dismissal deadline

5 At the time of trial, Shirelle was eighteen years old, and the jury trial did not address Mayra’s parental rights to Shirelle. 5 had passed and that the trial court lost jurisdiction to terminate Mayra’s parental

rights.

Analysis

We review a challenge to the trial court’s subject-matter jurisdiction de novo.

See Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

An order resulting from judicial action that is rendered after the trial court loses

jurisdiction is void. See In re A.F., No. 02-19-00117-CV, 2019 Tex. App. LEXIS

8563, at *27 (Tex. App.—Fort Worth Sept. 24, 2019, no pet.). Despite the

Department’s concession, we must analyze the jurisdictional question because

subject-matter jurisdiction is a power that “‘exists by operation of law only, and [it]

cannot be conferred upon any court by consent or waiver.’” In re E.S., No. 12-21-

00057-CV, 2021 Tex. App. LEXIS 6153, at **2-3 (Tex. App.—Tyler July 30, 2021,

no pet.) (mem. op.) (quoting Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.

2000); In re X.A.F., No. 07-19-00443-CV, 2020 Tex. App. LEXIS 4215, at *2 (Tex.

App.—Amarillo June 1, 2020, no pet.) (mem. op.)).

Section 263.401(a) and (b) of the Texas Family Code states

(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 6 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 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). In other words, a trial court automatically

loses jurisdiction in a termination of parental rights case brought by the Department

if the trial court does not commence a trial on the merits or grant an extension by the

dismissal deadline. See id.; In re Z.S., 631 S.W.3d 313, 315 (Tex. App.—Houston

[14th Dist.] 2020, no pet.).

The Supreme Court of Texas has permitted courts to modify the deadlines and

procedures in section 263.401(a) due to the COVID-19 state of emergency. See In

re K.T.S.N., No. 01-21-00456-CV, 2022 Tex. App. LEXIS 123, at **15-16 (Tex.

App.—Houston [1st Dist.] Jan. 11, 2022, pet. denied) (mem. op.). Relevant to this 7 case, on May 26, 2020, the Supreme Court signed its Seventeenth Emergency Order

Regarding the COVID-19 State of Disaster, which permitted courts to modify or

suspend deadlines for a period not to exceed 180 days for cases under Subtitle E,

Title 5 of the Family Code. See 609 S.W.3d 119 (Tex. 2020). This order expired on

July 31, 2020. See id. The Court subsequently signed other emergency orders

permitting trial courts to extend cases previously retained under a prior emergency

order for an additional period not to exceed 180 days. 6

To compute the automatic dismissal date, we begin by determining when the

trial court “rendered a temporary order appointing the [D]epartment as temporary

managing conservator” of Jenny. See Tex. Fam. Code Ann. § 263.401(a). The

Family Code provides that “‘[r]ender’ 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.” See id. § 101.026. The reporter’s record reflects that

the trial court ordered the appointment of the Department as temporary managing

6 See Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 863 (Tex. 2020) (effective Nov. 11, 2020, and expiring on Feb. 1, 2021); Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 135 (Tex. 2020) (effective Oct. 1, 2020, and expiring Dec. 1, 2020); Twenty-Second Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 129 (Tex. 2020) (effective Aug. 6, 2020, and expiring Sept. 30, 2020); In re Eighteenth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 122 (Tex. 2020) (effective June 29, 2020, and expiring Aug. 31, 2020). 8 conservator of both Shirelle and Jenny in a hearing on June 6, 2019. Therefore, the

automatic dismissal date was the first Monday following the first anniversary date,

which would have been June 8, 2020. The record reflects that the trial court’s order

extending the dismissal date was rendered two days after the automatic dismissal

date.

A trial court’s failure to timely extend the automatic dismissal date before that

date passes is jurisdictional. See In re G.X.H., 627 S.W.3d 288, 301 (Tex. 2021); In

re A.M., No. 07-19-00391-CV, 2020 Tex. App. LEXIS 2128, at *6 (Tex. App.—

Amarillo Mar. 11, 2020, no pet.) (mem. op). While the Supreme Court’s emergency

orders allow a trial court to extend the dismissal date for cases under section 263.401,

the emergency orders do not suggest that a trial court that has already been divested

of jurisdiction may extend the dismissal date. See In re J.R., 622 S.W.3d 602, 606

n.3 (Tex. App.—Fort Worth 2021, orig. proceeding); A.M., 2020 Tex. App. LEXIS

2128, at *7 (“[O]nce a trial court loses jurisdiction following the automatic dismissal

of section 263.401, jurisdiction cannot be revived through a subsequent order.”)

(citing In re K.B., No. 09-19-00239-CV, 2019 Tex. App. LEXIS 10570, at **8-9

(Tex. App.—Beaumont Dec. 5, 2019, no pet.) (mem. op.)).

A judgment is void when it is apparent that the court rendering judgment had

“no jurisdiction of the parties or property, no jurisdiction of the subject matter, no

jurisdiction to enter the particular judgment, or no capacity to act.” PNS Stores, Inc.

9 v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012) (citation omitted); see also Mapco, Inc.

v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (defining a void judgment as one

rendered when a court has no jurisdiction over parties or subject matter, no

jurisdiction to render judgment, or no capacity to act as a court); A.M., 2020 Tex.

App. LEXIS 2128, at *7 (same). When an appeal is taken from a void judgment, an

appellate court lacks jurisdiction to consider the merits of the appeal, but it has

jurisdiction to declare the judgment void and dismiss the case. See A.M., 2020 Tex.

App. LEXIS 2128, at **7-8; see also In re X.A.F., 2020 Tex. App. LEXIS 4215, at

**2-3 (concluding the judgment in a parental-rights-termination case was void

where the trial court commenced trial one day after the deadline imposed by section

263.401).

We conclude that the trial court automatically lost jurisdiction over the

Department’s underlying suit because on June 8, 2020, it had not commenced trial

on the merits or granted an extension according to section 263.401(a). Therefore, the

trial court’s Final Order Affecting the Parent-Child Relationship terminating

Mayra’s parental rights to Jenny is void and without effect. See id. We sustain

Appellant’s second issue, and we need not address Appellant’s first issue. See Tex.

R. App. P. 47.1. We vacate the trial court’s Final Order Affecting the Parent-Child

Relationship and dismiss the underlying case, without prejudice to the Department

to refile. See Tex. R. App. P. 43.2(e).

10 VACATED AND DISMISSED.

_________________________ LEANNE JOHNSON Justice

Submitted on March 1, 2022 Opinion Delivered March 17, 2022

Before Kreger, Horton and Johnson, JJ.