in the Interest of S.M., I.T., and D.T., Children

• Court: Court of Appeals of Texas
• Decided: June 10, 2009
• Docket: 04-08-00340-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-08-00340-CV

IN THE INTEREST OF S.M., I.T., and J.D.T., Children

From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 06-10-45136 Honorable Ricardo H. Garcia, Judge Presiding

PER CURIAM

Sitting: Alma L. Lopez, Retired Chief Justice1 Karen Angelini, Justice Steven C. Hilbig, Justice

Delivered and Filed: June 10, 2009

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

L.S.M. appeals the trial court’s final order appointing the Texas Department of Family and

Protective Services as managing conservator of L.S.M.’s three children without terminating L.S.M.’s

parental rights. In a prior opinion, we addressed the trial court’s order finding that L.S.M. is not

indigent and that her appeal from the trial court’s order would be frivolous. See In re S.M., No. 04-

08-00340-CV, 2008 WL 5423138 (Tex. App.—San Antonio Dec. 31, 2008, order). We reversed

the portion of the trial court’s order finding that an appeal of the issue relating to the trial court’s

failure to appoint L.S.M. as possessory conservator would be frivolous, and we affirmed the

1 … Chief Justice López (Retired), not participating. 04-08-00340-CV

remainder of the trial court’s order. Id. We ordered L.S.M. to file a brief on the merits of the issue

relating to the trial court’s failure to appoint L.S.M. as possessory conservator. See id. After L.S.M.

filed her brief addressing the merits of that issue, we granted the parties agreed motion to abate the

appeal to enable the parties to mediate and ordered the parties to file a written status report no later

than May 26, 2009. On May 18, 2009, the Department filed written notice that the mediation was

not successful. Accordingly, we reinstate the appeal on this court’s docket.

Based on its review of the record and authority in this cause, the Department concedes “that

it was clearly the intention of the trial judge to appoint [L.S.M.] as permanent possessory conservator

of the subject children.” Accordingly, the Department requests that this court reverse the portion of

the trial court’s order “denying or omitting the appointment of [L.S.M.] as permanent possessory

conservator of the children and remand this case for further proceedings to determine [L.S.M.’s]

possessory rights.”

In light of our discussion of this issue in our prior opinion, see In re S.M., 2008 WL 5423138,

at *2, and in view of the Department’s concession, we reverse the portion of the trial court’s order

omitting the appointment of L.S.M. as permanent possessory conservator. See also TEX . FAM . CODE

ANN . § 153.191 (Vernon 2008). The remainder of the trial court’s order is affirmed. The cause is

remanded for further proceedings. Costs of the appeal are taxed against the Department.

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