Affirm and Opinion Filed November 3, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00369-CV
IN THE INTEREST OF L.D.R. AND D.J., CHILDREN
On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-04007-R
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Myers Father appeals the termination of the parent–child relationship between him
and his two children, L.D.R. and D.J. Termination was sought by both the petitioner,
the Texas Department of Family and Protective Services, and by an intervenor, the
children’s grandmother. In one issue, Father contends the trial court lacked
jurisdiction over the case when it was called to trial because the statutory deadline
for the Department to bring the case to trial had expired. See TEX. FAM. CODE ANN.
§ 263.401. We conclude that regardless of whether the trial court retained
jurisdiction over the Department’s suit, the trial court had jurisdiction over the
intervenor’s suit for termination. We affirm the trial court’s judgment. BACKGROUND
Father shot and killed the children’s mother. The older child was in the room
when the shooting occurred but was not physically injured, and the younger child
was in utero but was saved. On October 1, 2018, the Department filed its petition
seeking appointment as temporary managing conservator of the children and
termination of the parent–child relationship between Father and the children. The
same day, the trial court appointed the Texas Department of Family and Protective
Services to be the temporary managing conservator of the children.
By November 7, 2018, S.J., the children’s grandmother, had filed a petition in
intervention1 seeking termination of the parent–child relationship and her
appointment as the children’s sole managing conservator.2 She alleged the parent–
child relationship should be terminated because Father engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the physical or emotional well-being of the children and because termination would
be in the children’s best interest. See FAM. § 161.001(b)(1)(E). The Department
investigated S.J. as a placement for the children, but she tested positive for drugs.
However, she successfully completed the services required by the Department,
1 S.J. filed her amended petition in intervention on November 7, 2018. She appears to state in her brief regarding jurisdiction filed in the trial court that she filed her original petition in intervention on November 6, 2018. 2 S.J. alleged standing under sections 102.003(a)(9) and (11) and 102.004(a) of the Family Code. No party challenged S.J.’s standing to bring suit. –2– including random drug testing. On August 8, 2019, the trial court signed an Order
of Monitored Return placing the children in S.J.’s custody.
The court began the trial on February 3, 2020. Father’s attorney requested a
continuance because Father had been declared incompetent to stand trial in his
criminal case. After hearing the evidence of one witness, the court continued the
case to a date agreeable to all the parties. The trial resumed on December 7, 2020.
After hearing the evidence, the trial court found that Father “has engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangers the physical or emotional well-being of the children” and that
“termination of the parent–child relationship . . . is in the best interest of the
children.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (b)(2). The court ordered
the parent–child relationship between Father and the children terminated, the court
removed the Department as the children’s temporary managing conservator, and the
court appointed S.J. as the children’s permanent managing conservator.
JURISDICTION
In his sole issue on appeal, Father contends the trial court’s judgment
terminating the parent–child relationship is void because the trial court did not
properly extend its jurisdiction pursuant to section 263.401(b) of the Family Code
and lost jurisdiction over the case before the trial commenced. See FAM. §
263.401(b).
–3– 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. In re D.S., 602 S.W.3d 504, 512 (Tex.
2020). 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. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623
(Tex. 2012) (per curiam).
In cases where the Department requests conservatorship of a child or
termination of the parent–child relationship, the Family Code requires the court to
begin the trial no later than the first Monday after the first anniversary of the date
the court rendered a temporary order appointing the Department as temporary
managing conservator. See FAM. § 263.401(a). The trial court may extend the
deadline if it 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.” Id. § 263.401(b). If the court makes those findings, the court
may retain the suit on its docket “for a period not to exceed 180 days after the time
described by Subsection (a).” Id. If the trial court does not begin the trial within the
required time, the court’s jurisdiction over the suit is terminated and the suit is
automatically dismissed without a court order. Id. § 263.401(a), (c); see also In re
–4– G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). The parties may not extend the deadlines
“by agreement or otherwise.” FAM. § 263.402.
However, notwithstanding the provisions of section 263.401, the trial court
may retain jurisdiction over a case if it: (1) finds that retention is in the best interest
of the child; (2) orders a Department-monitored return of the child to a parent; and
(3) continues the Department as temporary managing conservator of the child. See
FAM. § 263.403(a); see also In re A.H.J., No. 05-15-00501-CV, 2015 WL 5866256,
at *2 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). If the trial court
renders an order pursuant to section 263.403, it shall “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.” FAM. § 263.403(b).
In this case, the trial court signed an order appointing the Department
temporary managing conservator on October 1, 2018. The first Monday following
the first anniversary of that date was October 7, 2019. Therefore, unless the trial
court entered an order extending its jurisdiction under section 263.401(b) or section
263.403, the court’s jurisdiction under the Department’s petition expired on October
7, 2019.
The court’s August 8, 2019 Order of Monitored Return did not extend the
court’s jurisdiction under section 263.403. Section 263.403 applies to a monitored
return of “the child to the child’s parent.” FAM. § 263.403(a)(2)(A). The statute
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Affirm and Opinion Filed November 3, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00369-CV
IN THE INTEREST OF L.D.R. AND D.J., CHILDREN
On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-18-04007-R
MEMORANDUM OPINION Before Justices Myers, Partida-Kipness, and Garcia Opinion by Justice Myers Father appeals the termination of the parent–child relationship between him
and his two children, L.D.R. and D.J. Termination was sought by both the petitioner,
the Texas Department of Family and Protective Services, and by an intervenor, the
children’s grandmother. In one issue, Father contends the trial court lacked
jurisdiction over the case when it was called to trial because the statutory deadline
for the Department to bring the case to trial had expired. See TEX. FAM. CODE ANN.
§ 263.401. We conclude that regardless of whether the trial court retained
jurisdiction over the Department’s suit, the trial court had jurisdiction over the
intervenor’s suit for termination. We affirm the trial court’s judgment. BACKGROUND
Father shot and killed the children’s mother. The older child was in the room
when the shooting occurred but was not physically injured, and the younger child
was in utero but was saved. On October 1, 2018, the Department filed its petition
seeking appointment as temporary managing conservator of the children and
termination of the parent–child relationship between Father and the children. The
same day, the trial court appointed the Texas Department of Family and Protective
Services to be the temporary managing conservator of the children.
By November 7, 2018, S.J., the children’s grandmother, had filed a petition in
intervention1 seeking termination of the parent–child relationship and her
appointment as the children’s sole managing conservator.2 She alleged the parent–
child relationship should be terminated because Father engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the physical or emotional well-being of the children and because termination would
be in the children’s best interest. See FAM. § 161.001(b)(1)(E). The Department
investigated S.J. as a placement for the children, but she tested positive for drugs.
However, she successfully completed the services required by the Department,
1 S.J. filed her amended petition in intervention on November 7, 2018. She appears to state in her brief regarding jurisdiction filed in the trial court that she filed her original petition in intervention on November 6, 2018. 2 S.J. alleged standing under sections 102.003(a)(9) and (11) and 102.004(a) of the Family Code. No party challenged S.J.’s standing to bring suit. –2– including random drug testing. On August 8, 2019, the trial court signed an Order
of Monitored Return placing the children in S.J.’s custody.
The court began the trial on February 3, 2020. Father’s attorney requested a
continuance because Father had been declared incompetent to stand trial in his
criminal case. After hearing the evidence of one witness, the court continued the
case to a date agreeable to all the parties. The trial resumed on December 7, 2020.
After hearing the evidence, the trial court found that Father “has engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangers the physical or emotional well-being of the children” and that
“termination of the parent–child relationship . . . is in the best interest of the
children.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (b)(2). The court ordered
the parent–child relationship between Father and the children terminated, the court
removed the Department as the children’s temporary managing conservator, and the
court appointed S.J. as the children’s permanent managing conservator.
JURISDICTION
In his sole issue on appeal, Father contends the trial court’s judgment
terminating the parent–child relationship is void because the trial court did not
properly extend its jurisdiction pursuant to section 263.401(b) of the Family Code
and lost jurisdiction over the case before the trial commenced. See FAM. §
263.401(b).
–3– 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. In re D.S., 602 S.W.3d 504, 512 (Tex.
2020). 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. See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623
(Tex. 2012) (per curiam).
In cases where the Department requests conservatorship of a child or
termination of the parent–child relationship, the Family Code requires the court to
begin the trial no later than the first Monday after the first anniversary of the date
the court rendered a temporary order appointing the Department as temporary
managing conservator. See FAM. § 263.401(a). The trial court may extend the
deadline if it 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.” Id. § 263.401(b). If the court makes those findings, the court
may retain the suit on its docket “for a period not to exceed 180 days after the time
described by Subsection (a).” Id. If the trial court does not begin the trial within the
required time, the court’s jurisdiction over the suit is terminated and the suit is
automatically dismissed without a court order. Id. § 263.401(a), (c); see also In re
–4– G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). The parties may not extend the deadlines
“by agreement or otherwise.” FAM. § 263.402.
However, notwithstanding the provisions of section 263.401, the trial court
may retain jurisdiction over a case if it: (1) finds that retention is in the best interest
of the child; (2) orders a Department-monitored return of the child to a parent; and
(3) continues the Department as temporary managing conservator of the child. See
FAM. § 263.403(a); see also In re A.H.J., No. 05-15-00501-CV, 2015 WL 5866256,
at *2 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). If the trial court
renders an order pursuant to section 263.403, it shall “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.” FAM. § 263.403(b).
In this case, the trial court signed an order appointing the Department
temporary managing conservator on October 1, 2018. The first Monday following
the first anniversary of that date was October 7, 2019. Therefore, unless the trial
court entered an order extending its jurisdiction under section 263.401(b) or section
263.403, the court’s jurisdiction under the Department’s petition expired on October
7, 2019.
The court’s August 8, 2019 Order of Monitored Return did not extend the
court’s jurisdiction under section 263.403. Section 263.403 applies to a monitored
return of “the child to the child’s parent.” FAM. § 263.403(a)(2)(A). The statute
does not provide a jurisdictional extension for a monitored return of a child to a
–5– grandparent. S.J. argues the Order of Monitored Return also constituted findings
under section 263.401(b) to extend the court’s jurisdiction by 180 days. However,
the order contains no finding of extraordinary circumstances, and there is no
indication the court or the parties intended the order to constitute findings under
section 263.401(b). Cf. In re G.X.H., 627 S.W.3d 288, 297–98 (Tex. 2021) (trial
court’s docket-sheet entry stating “extension granted to reach the agreed trial date”
could only be interpreted to mean court granted extension of the automatic dismissal
date). The Department concedes the trial court’s jurisdiction over its petition had
expired before the trial commenced on February 3, 2020. We agree with the
Department and conclude the trial court’s jurisdiction over the Department’s petition
expired October 7, 2019.
Both the Department and S.J. argue that even if the trial court’s jurisdiction
over the Department’s petition had expired, the trial court retained jurisdiction over
S.J.’s petition in intervention seeking termination of the parent–child relationship.
We agree. The jurisdictional restrictions of section 263.401(a) apply only to “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.” FAM. § 263.401(a). There are
no similar restrictions on the court’s jurisdiction over a termination suit brought by
a private party. S.J. filed her petition in intervention in November 2018 when the
–6– trial court clearly had jurisdiction. Nothing indicates the trial court ever lost
jurisdiction to rule on S.J.’s petition in intervention seeking termination.
We conclude the trial court had jurisdiction to render judgment terminating
the parent–child relationship between Father and the children. Father does not
challenge the sufficiency of the evidence to support the termination. We overrule
Father’s issue on appeal.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers// 210369f.p05 LANA MYERS JUSTICE
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF L.D.R. AND On Appeal from the 254th Judicial D.J., CHILDREN District Court, Dallas County, Texas Trial Court Cause No. DF-18-04007- No. 05-21-00369-CV R. Opinion delivered by Justice Myers. Justices Partida-Kipness and Garcia participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 3rd day of November, 2021.
–8–