in the Interest OF P.Z.F., a Child

Opinion

Affirm and Opinion Filed September 2, 2021

In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00161-CV

IN THE INTEREST OF P.Z.F., A CHILD

On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-18-00558-X

OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Nowell Father appeals from the trial court’s Decree of Termination that terminated

his parental rights to P.Z.F., a child. In a single issue, Father argues the Decree of

Termination is void because the trial court lost jurisdiction.1 We affirm.

PROCEDURAL HISTORY

The Department of Family and Protective Services filed its original petition

for protection of a child, for conservatorship, and for termination in a suit affecting

the parent-child relationship on May 11, 2018. P.Z.F. was one of the children who

was the subject of the suit. The trial court executed an ex parte order for emergency

1 Because Father does not challenge the sufficiency of the evidence, we only provide the facts relevant to the disposition of the appeal. See TEX. R. APP. P. 47.1. care and temporary custody of P.Z.F. on May 14, 2018, which appointed the

Department as the temporary managing conservator of P.Z.F. On June 6, 2018, the

trial court entered a temporary order appointing the Department as temporary

managing conservator of P.Z.F.

In February 2019, the court set the case for a bench trial to begin on April 17,

2019. Two days before the trial date, the Department filed a motion for continuance

stating that the results of a home study of the children’s grandparents who lived in

Arkansas were pending. On April 17, 2019, the trial court made the following docket

sheet entry:

TBC – TRIAL BY COURT (1:30pm) All sides present. Issue of whether ICPC [home study] candidate will take all three children. Continuance by agreement.

On May 16, 2019, the trial court made another docket sheet entry:

TBC – TRIAL BY COURT (1:30pm) All sides present. Parties have [mediated settlement agreement] – awaiting [home study] from Arkansas. Continue by agreement and extend by agreement. Also OAG Intervention.

A docket sheet entry made on May 20, 2019 states: “CANCELED. DISM –

DISMISSAL (9:00 AM) . . . REQUESTED BY JUDGE.” A new dismissal date was

set for November 15, 2019.

On September 26, 2019, following a hearing, the trial court orally ordered

P.Z.F. returned to Mother for a monitored return pursuant to conditions in the

–2– parties’ mediated settlement agreement. On October 11, 2019, the court signed a

written order stating:

The Court having reviewed the file, pleadings, arguments of counsel and parties and noted that this matter has come to the court prior to the tolling of the one year anniversary date and hereby finds that it is in the best interests of the children, and necessary for the administration of justice, pursuant to 263.403 of the Texas Family Code, to extend the Court’s jurisdiction to allow the children to be placed in the parent’s home. The Court further finds that retaining jurisdiction under Section 263.403 of the Texas Family Code is in the best interests of the children. The Court further finds that the children will be placed into full- time possession of [Mother], who will continue to cooperate and comply with the Court ordered services AND ALL FOLLOW-UP RECOMMENDATIONS.

The trial court further ordered: “The Court’s jurisdiction shall be EXTENDED and

continue until March 23, 2020[,] which shall become the date of dismissal and it is

the date this Court shall lose its jurisdiction and is also the date the temporary orders

regarding the Texas Department of Family and Protective Services shall expire by

operation of law.” The trial court continued Mother as the Temporary Managing

Conservator on December 17, 2019; in the same order, it reset the trial date for

March 5, 2020.

Trial commenced on March 5, 2020, and continued on several subsequent

dates. The trial court then signed a Decree of Termination terminating Father’s

parental rights to P.Z.F. on March 9, 2021. This appeal followed.

–3– LAW & ANALYSIS

In his sole issue, Father argues the Decree of Termination is void because the

trial court did not properly extend its jurisdiction pursuant to section 263.401(b) of

the family code. See TEX. FAM. CODE ANN. § 263.401(b). 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).

In cases where the Department requests termination of parental rights or

conservatorship of a child, the family code requires the court to begin 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 TEX. FAM. CODE § 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 grants an extension under subsection (b) but

–4– fails to commence the trial on the merits before the dismissal date, “the court’s

jurisdiction over the suit is terminated and the suit is automatically dismissed without

a court order.” Id. § 263.401(c); see also In re G.X.H., No. 19-0959, 2021 WL

1704234, at *1 (Tex. Apr. 30, 2021). “The court may not grant an additional

extension that extends the suit beyond the required date for dismissal” under

Subsection (b). TEX. FAM CODE § 263.401(c).

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

TEX. FAM. CODE § 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.” TEX. FAM. CODE

§ 263.403(b).

In this case, the trial court initially appointed the Department as temporary

managing conservator of P.Z.F. on May 14, 2018; accordingly, the automatic

dismissal date was May 20, 2019. See generally TEX. FAM. CODE § 263.401(a) (the

first Monday after the first anniversary of the date the court rendered a temporary

order appointing the Department as temporary managing conservator). Father

–5– argues the May 16, 2019 docket sheet entry, made four days before the automatic

dismissal date, did not extend the trial court’s jurisdiction and, therefore, the order

terminating his parental rights is void. The Department responds that, based on the

Texas Supreme Court’s recent opinion in In re G.X.H., the trial court’s docket sheet

entry was sufficient, and the trial court never lost jurisdiction.

In G.X.H., the Department filed suit seeking to terminate both parents’

parental rights to two children. G.X.H., 2021 WL 1704234, at *1. The trial court

entered a temporary order appointing the Department as the children’s temporary

managing conservator, and it set the case for trial one month before the automatic

dismissal date. Id. at *1-2. One month before the automatic dismissal date, the

Department filed a motion to retain the suit on the court’s docket and set a new

dismissal date. Id. at *2. The Department’s motion tracked the statutory language,

asserting “[t]here are extraordinary circumstances that necessitate the children

remaining in the temporary managing conservatorship of the Department” and

“continuing the appointment of the Department as temporary managing conservator

is in the best interest of the children.” Id. (quoting Department’s motion). The

Department also filed a motion for continuance. Rather than entering an order, the

trial court made a docket sheet entry:

–6– Motion for continuance – cps, strickling, cooper, parents, serious injury case, med recs missing for trial, agreed continuance – 10/17/18 for trial, extension granted to reach the agreed trial date; trial – 10/17/18.2

Id. The rescheduled trial commenced on October 17, 2018, which was within the

180-day extension period permitted by section 263.401(b).

Generally docket sheet entries are insufficient to constitute a decree of the

court; however, the family code alters this general rule in suits affecting the parent-

child relationship, including parental-rights-termination cases. Id. at *6 (discussing

TEX. FAM. CODE § 101.026). In G.X.H., the docket sheet showed the court granted

both an agreed continuance of the trial date to a date approximately seven weeks

later and “an ‘extension . . . to reach the agreed trial date.’” Id. at *7 (quoting docket

sheet entry). The supreme court concluded “the only reasonable interpretation of

this docket entry—which was entered on the date of the hearing on the Department’s

motion for continuance—is that the trial court granted both a continuance of the trial

date and an extension of the automatic dismissal date under section 263.401(b).” Id.

The supreme court further concluded that the trial court’s extension of the automatic

dismissal date as reflected in its docket sheet entry “allowed the trial court to retain

jurisdiction beyond [the original automatic dismissal date],” and the final decree

terminating parental rights was not void. Id. at *7.

2 The supreme court opinion states the references to “strickling” and “cooper” “appear to be references to counsel for the Department and the attorney ad litem appointed to represent the children, respectively.” Id. at *2, n.2. –7– A. Father’s Arguments

As in G.X.H., the trial court entered an extension of the trial date and

automatic dismissal date in a docket sheet entry. See id. at *7. Father argues the

May 16 docket sheet entry is distinguishable from that in G.X.H. and does not satisfy

section 263.401 because the family code prohibits the court from extending the

deadlines by agreement, no party filed a motion for extension of the dismissal date,

the trial court did not include the new dismissal date in the docket sheet entry, and

no reporter’s record was made on May 16, 2019. We consider each argument in

turn.

Section 263.402 states: “The parties to a suit under this chapter may not extend

the deadlines set by the court under this subchapter by agreement or otherwise.”

TEX. FAM. CODE § 263.402. Father asserts the May 16 docket sheet entry shows the

deadlines were extended by agreement in violation of this provision. We disagree.

Docket sheet entries are made by the trial court, and reflect the court’s decision to

extend the relevant dates. We conclude the trial court, not the parties, extended the

relevant deadlines, and the parties were in agreement with the decision to extend the

deadlines.

Father argues this case is distinguishable from G.X.H. because no party filed

a motion for extension of the dismissal date in the instant case and no pleadings were

presented to the court that quoted the language of the required findings pursuant to

section 263.401(b). Father does not explain why this distinction is relevant to our

–8– analysis about whether the trial court lost jurisdiction, and we cannot conclude it is

determinative. The statute does not require a party file a motion or other pleading

for the trial court to retain the suit on its docket beyond the one-year dismissal date.

See TEX. FAM. CODE § 263.401(a), (b).

Father also asserts this case is distinguishable from G.X.H. because the trial

court did not write the date of the extension in the docket sheet entry nor did the

court include the new dismissal date on the docket sheet entry. We begin by noting

the trial court in G.X.H. did not include the new dismissal date in the docket sheet

entry; the trial court set the new trial date and noted “extension granted to reach the

agreed trial date”; the supreme court considered this entry sufficient. See G.X.H.,

2021 WL 1704234, at *2. The trial court then entered an order approximately two

months after extending the trial date to specify the new dismissal date. See id. at *9.

In the case before us, the May 16 docket sheet entry also does not include the new

dismissal date. However, as in G.X.H., the trial court later issued an order setting

the new dismissal date in March 2020.

Additionally, section 263.401(b) requires the court render an order in which

it: (1) schedules the new date on which the suit will be automatically dismissed if

the trial on the merits has not commenced; (2) makes further temporary orders for

the safety and welfare of the child; and (3) sets the trial date on the merits on a date

not later than the new automatic dismissal date. See TEX. FAM. CODE § 263.401(b).

Although none of these findings was on the docket sheet entry, the supreme court

–9– stated that “while a trial court’s failure to timely extend the automatic dismissal date

before that date passes—through a docket-sheet notation or otherwise—is

jurisdictional, claimed defects relating to the other requirements of 263.401(b) are

not. Accordingly, with the exception of a trial court’s failure to extend the automatic

dismissal date before it passes, complaints regarding the trial court’s compliance

with the requirements in subsection (b) must be preserved for appellate review.”

G.X.H., 2021 WL 1704234, at *9. Here, as in G.X.H., the trial court extended the

automatic dismissal date before the deadline passed, but did not note the new

dismissal date until later. Father’s other complaints that the trial court failed to make

the findings described in subsection (b) were not raised in the trial court and, thus,

were not preserved for our review. See id.

Finally, Father argues that no reporter’s record was made on May 16, 2019,

and therefore, we cannot imply the trial court made the findings required by section

263.401(b) orally or in writing. The trial court’s docket sheet shows all sides were

present on May 16. “Where, as here, the trial court held an oral hearing on the

proposed extension and the parties failed to bring forth the record of that hearing on

appeal, we will presume the trial court made the necessary findings to support the

extension orally on the record at the hearing.” Id. at *8. While trial courts “should

make the section 263.401(b) findings in a written order as a matter of course . . . the

failure to do so is not error, provided the findings are made orally on the record or

in some other writing.” Id. Further, “where the trial court granted an extension after

–10– conducting an oral hearing and the record of that hearing is not made part of the

record on appeal, courts may imply the section 263.401(a) findings were made on

the record at the oral hearing.” Id. Based on G.X.H., we imply the section

263.401(a) findings were made on the record at the oral hearing. Additionally, to

the extent we were to presume a court reporter was not present, “no objection was

raised, and thus any complaint that the [May 16] hearing was not recorded is

waived.” Id. at *8 n.6.

Having considered each of Father’s arguments and, applying the supreme

court’s analysis in G.X.H., we conclude “the only reasonable interpretation of [the

May 16] docket entry” is that the court extended the dismissal date in accordance

with section 263.401(b). See G.X.H., 2021 WL 1704234, at *7.

B. Jurisdiction Beyond Section 263.401

Section 263.401 only empowered the trial to extend the automatic dismissal

date for 180 days. And the trial court extended it beyond that date. Therefore, we

must still ensure the trial court retained jurisdiction over this matter between May

20, 2019, the original automatic dismissal date, and March 5, 2020, the date trial

began.

After the May 16 docket sheet entry, the trial court set a new dismissal date

for November 15, 2019, which is within 180 days of May 20, 2019. See TEX. FAM.

CODE § 263.401(b). Based on the docket sheet entry, the reasons the court continued

the trial and extended the automatic dismissal date were because the parties were

–11– waiting on the results of a home study and the parties reached a mediated settlement

agreement. Section 263.403 allows a trial court to retain jurisdiction and enter an

order for the monitored return of the child beyond the provisions of section 263.401.

See TEX. FAM. CODE § 263.403(a); In re of K.R., No.07-20-00149-CV, 2020 WL

6266286, at *2 (Tex. App.—Amarillo Oct. 23, 2020, pet. denied) (mem. op.); In re

R.S., No. 10-10-00350-CV, 2011 WL 2480341, at *6 (Tex. App.—Waco June 22,

2011, pet. denied) (mem. op.). During the monitored return, the Department

remained the temporary managing conservator, but Mother had physical possession

of the children. In its October 11, 2019 Order of Monitored Return/Extension of

Dismissal Date, the trial court reset the dismissal date to March 23, 2020, which is

fewer than 180 days from the date of the October 11, 2019 order. The trial then

commenced on March 5, 2020. By commencing trial on March 5, which was before

the March 23 dismissal date, the trial court retained jurisdiction over this case.

We overrule Father’s sole issue.

CONCLUSION

We conclude the trial court did not lose jurisdiction and the Decree of

Termination is not void. Therefore, we affirm the trial court’s Decree of

Termination.

210161 /Erin A. Nowell// ERIN A. NOWELL JUSTICE

–12– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF P.Z.F., A On Appeal from the 305th Judicial CHILD District Court, Dallas County, Texas Trial Court Cause No. JC-18-00558- No. 05-21-00161-CV X. Opinion delivered by Justice Nowell. Justices Molberg and Reichek participating.

In accordance with this Court’s opinion of this date, the trial court’s Decree of Termination is AFFIRMED.

Judgment entered this 2nd day of September, 2021.

–13–