in the Interest of A.L.S., a Child ( 2018 )

Opinion filed September 13, 2018
In The
Eleventh Court of Appeals
__________
No. 11-18-00090-CV
__________
IN THE INTEREST OF A.L.S., A CHILD
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 51810
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of A.L.S. A.L.S.’s mother filed a notice of appeal.
She presents three issues for this court’s review. In the first issue, she complains of
the trial court’s refusal to dismiss the lawsuit. In the second and third issues, she
challenges the legal and factual sufficiency of the evidence to support the
termination of her parental rights. We affirm.
In her first issue, Appellant argues that the trial court erred when it denied her
motion to dismiss the lawsuit “for failure to render a final order”1 prior to the
mandatory dismissal date. Appellant’s complaint is based on Section 263.401(a) of
the Texas Family Code. The version of Section 263.401(a) that applies to this case
reads as follows:
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 shall dismiss 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.
Former FAM. § 263.401(a) (2015) (emphasis added) (as that subsection existed prior
to the 2017 amendments)2; see In re P.M.W., No. 06-17-00094-CV, 2018 WL
3862798, at *2 (Tex. App.—Texarkana Aug. 15, 2018, no pet. h.).
1
We note that the applicable date is the date that trial commences, not the date that the trial court
renders a final order. See In re H.R.T., No. 11-16-00055-CV, 2016 WL 4385724, at *3 n.2 (Tex. App.—
Eastland Aug. 12, 2016, no pet.) (mem. op.).
2
For suits filed on or after September 1, 2017, the statute, as amended, provides:
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 a court order.
Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 12, 2017 Tex. Gen. Laws 713, 718–19 (codified at TEX.
FAM. CODE § 263.401(a)) (emphasis added). The effective date of the amendment was September 1, 2017.
Id. § 34, at 735. The legislature provided, however, that the changes made to Section 263.401 “apply only
to a suit affecting the parent-child relationship filed on or after the effective date of this Act. A suit affecting
the parent-child relationship filed before the effective date of this Act is governed by the law in effect on
the date the suit was filed, and the former law is continued in effect for that purpose.” Id. § 33, at 735; see
In re T.W., No. 07-18-00056-CV, 2018 WL 3799883, at *1 n.2, *2 (Tex. App.—Amarillo Aug. 9, 2018, no
pet. h.) (holding that the 2017 amendments do not apply to suit filed before September 1, 2017, and that the
language of the second 2017 amendment—the Act of May 28, 2017—controls with respect to the effective
date); see also TEX. GOV’T CODE ANN. § 311.025(b) (West 2013) (providing for resolution of conflicting
amendments enacted in the same session).
2
The record reflects that the trial court entered a temporary order in which it
appointed the Department of Family and Protective Services as the temporary
managing conservator of A.L.S. on March 23, 2017. Therefore, the dismissal date
was March 26, 2018. The trial commenced on April 4, 2018, after the mandatory
dismissal date. Appellant, however, did not object or file a motion to dismiss prior
to the commencement of trial. She waited until after the first witness testified before
she brought the matter to the trial court’s attention and asked the trial court to dismiss
the suit.
Under the law as it existed on the date this suit was filed, a trial court did not
lose jurisdiction over a termination proceeding when the dismissal date passed. In
re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009).
Furthermore, a party who failed to “make a timely motion to dismiss” prior to the
commencement of the trial waived the right to object to the trial court’s failure to
dismiss the suit. Former FAM. § 263.402(b)3; see In re K.L.C., No. 11-14-00019-
CV, 2014 WL 3639124, at *6 (Tex. App.—Eastland July 17, 2014, pet. denied)
(mem. op.). Although Section 263.402(b) was deleted by the legislature in the 2017
amendments to the Family Code, it remained in effect in this case. See In re T.W.,
No. 07-18-00056-CV, 2018 WL 3799883, at *2 (Tex. App.—Amarillo Aug. 9, 2018,
no pet. h.) (holding that parents were obligated to timely move for dismissal). Here,
Appellant failed to file her motion to dismiss prior to the commencement of the trial.
Therefore, under the law applicable to this case, she waived the right to object to any
3
Prior to the 2017 amendments, Section 263.402(b) provided as follows:
A party to a suit under this chapter who fails to make a timely motion to dismiss
the suit under this subchapter waives the right to object to the court’s failure to dismiss the
suit. A motion to dismiss under this subsection is timely if the motion is made before the
trial on the merits commences.
This provision was deleted by the legislature in the 2017 amendments to the Family Code. See Act of
May 28, 2017, 85th Leg., R.S., ch. 319, § 13, at 719.
3
failure of the trial court to dismiss this suit based upon the mandatory dismissal date.
See former FAM. § 263.402(b); T.W., 2018 WL 3799883, at *2; K.L.C., 2014 WL
3639124, at *6. We overrule Appellant’s first issue.
In her next two issues, Appellant asserts that the evidence is legally and
factually insufficient to support the trial court’s findings under subsections (D) and
(E) of Section 161.001(b)(1) of the Family Code. See TEX. FAM. CODE ANN.
§ 161.001(b)(1) (West Supp. 2017). We need not reach the merits of these issues
because Appellant challenges only two of the four findings made by the trial court
under Section 161.001(b)(1).
To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
Id. § 161.001(b). After the final hearing in this case, the trial court found by clear
and convincing evidence that Appellant had committed four of the acts listed in
Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that Appellant had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the
physical or emotional well-being of the child, that Appellant had engaged in conduct
or knowingly placed the child with persons who engaged in conduct that endangered
the physical or emotional well-being of the child, that Appellant had constructively
abandoned the child, and that Appellant had failed to comply with the provisions of
a court order that specifically established the actions necessary for her to obtain the
return of child. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of Appellant’s parental rights would be in the best interest of the child.
The Department, in its brief, points out that Appellant has not challenged the
findings made by the trial court pursuant to subsections (N) and (O) or the finding
made by the trial court as to best interest. Because Appellant failed to challenge
4
these findings, they are binding on this court. In re E.A.F., 424 S.W.3d 742, 750
(Tex. App.—Houston [14th Dist.] 2014, pet. denied). Accordingly, we need not
address Appellant’s second and third issues because the unchallenged findings are
sufficient to support termination. See id.; see also FAM. § 161.001(b).
We affirm the order of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
September 13, 2018
Panel consists of: Bailey, J.;
Gray, C.J., 10th Court of Appeals 4;
and Wright, S.C.J.5
Willson, J., not participating.
4
Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
5
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
5