IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES (Dissenting)

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State: Texas

Court: Supreme Court

Docket No: 04-1043

Case Date: 12/15/2006

Judge: argument, we direct the court of appeals to vacate its order to the trial court

Preview:IN RE TEXAS DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES (Dissenting)
MAJORITY | DISSENTING
IN THE SUPREME COURT OF TEXAS
No. 04-1043
In re Texas Department of Family and Protective services, RELATOR
On Petition for Writ of Mandamus
PER CURIAM
Section 263.401 of the Texas Family Code establishes a deadline for rendition of a final order in suits affecting the
parent-child relationship (SAPCRs) brought by the Texas Department of Family and Protective Services. Although the
trial court abused its discretion in failing to dismiss the Department s case, we conclude that here, the parties
challenging a trial court s denial of a motion to dismiss under section 263.401 had an adequate remedy by accelerated
appeal.
On January 23, 2003, the Department filed a SAPCR to terminate the parent child relationship between Joy Higdon
and her two children. That day, the trial court entered an ex parte order giving the Department the authority to take
possession of the children, naming the Department temporary managing conservator, and setting the matter for a full
adversarial hearing on February 3, 2003. Apparently, Higdon was restored as managing conservator of the children at
the February hearing but agreed to place the children with their great-grandmother, Ruby Ludwig.
The trial court held periodic status hearings. In a temporary order dated August 19, 2003, the trial court appointed the
Department temporary managing conservator and identified the dismissal date for the case as August 16, 2004. The
children continued to reside with Ludwig. In September, the trial court identified the dismissal date for the Department
s case as January 26, 2004, and set the case for trial on the merits. In January, the trial court extended the dismissal
date to July 24, 2004, as permitted by section 263.401(b) of the Texas Family Code. On February 23, 2004, Ludwig
intervened, seeking sole managing conservatorship of the children.
On Monday, July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon filed motions to dismiss
for failure to render a final order before the statutory deadline. The Department rested its case on Friday, July 23, 2004.
Saturday, July 24, 2004, was the dismissal deadline identified by the court in its January order. The trial recommenced
on Tuesday, July 27, 2004. On July 28, 2004, the jury returned a unanimous verdict terminating the parent-child
relationship between Higdon and each child and appointing the Department, rather than Ludwig, as sole managing
conservator of the children. The trial court announced the verdict from the bench, terminated the parental rights of the
fathers of the children, and denied the motions to dismiss. The trial court did not render judgment on Higdon s parental
rights or Ludwig s intervention. The trial court scheduled a hearing for August 11, 2004, to enter the final decree
terminating Higdon s parental rights, but the trial court never signed the decree.
On August 11, 2004 and August 12, 2004, Ludwig and Higdon, respectively, filed petitions for writ of mandamus with
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the court of appeals seeking to compel the trial court to dismiss the case for failure to render a final order before the
dismissal date. On October 21, 2004, the court of appeals granted mandamus relief and ordered the trial court to
dismiss the Department s case. On November 18, 2004, the court of appeals denied the Department s motion for
rehearing, correctly noting that Ludwig s intervention would be unaffected by the dismissal of the Department s
SAPCR. The next day, the Department filed a petition for writ of mandamus in this Court and a motion to stay further
proceedings. This Court granted the motion to stay.
Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
The issuance of mandamus by the court of appeals is improper if the trial court did not abuse its discretion or if the
record fails to demonstrate the lack of an adequate remedy on appeal. In re Prudential, 148 S.W.3d at 135 36; Johnson
v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). A trial court abuses its discretion when it clearly fails to
correctly apply the law. Walker, 827 S.W.2d at 839-40.
In construing a statute, our objective is to determine and give effect to the Legislature s intent. McIntyre v. Ramirez,
109 S.W.3d 741, 745 (Tex. 2003). To determine the Legislature s intent, we look to the statute s plain language and the
common meaning of the statute s words. Id. Subsection 263.401(a) of the Texas Family Code requires a trial court to
dismiss a SAPCR filed by the Department if a final order has not been rendered by the first Monday after the one-year
anniversary of the date when the trial court appointed the Department temporary managing conservator. The statute
allows a maximum extension of 180 days. Tex. Fam. Code 263.401(b), (c). If the trial court has not rendered a final
order at the expiration of the additional 180 days, the court must dismiss the SAPCR. Id. 263.401(c). Section 263.403,
entitled Monitored Return of Child to Parent, provides an exception to the dismissal rule, but it is not applicable to this
case.
Higdon argues the time period described in subsection 263.401(a) began running on the day the trial court entered its
ex parte orders. She calculates the first Monday after the one-year anniversary of the January 23, 2003 ex parte order
as January 26, 2004. After adding a 180-day extension, she argues the dismissal deadline was Saturday, July 24, 2004.
The Department argues that the January 23, 2003 ex parte order that gave the Department temporary conservatorship
did not trigger the section 263.401 time period. Instead, the Department contends that the period began after the
August 11, 2003 hearing, making the dismissal deadline August 15, 2004.
The Department obtained temporary managing conservatorship on January 23, 2003. Nothing in the statute excludes
the Department s fourteen-day conservatorship obtained through the ex parte order from the calculation of the
dismissal deadline in section 263.401. We therefore determine the deadline to be the date of the Monday following the
one-year anniversary of January 23, 2003, which is January 26, 2004.
On January 26, 2004, the trial court held a permanency hearing at which the court concluded that a 180-day extension
of this dismissal deadline was in the best interest of the children, as permitted by subsection 263.401(b) of the Texas
Family Code and set the dismissal date for July 24, 2004. We agree that July 24, 2004 was the dismissal deadline for
the Department s SAPCR. The trial court erred when it failed to render a final order by that deadline.
Parties may waive complaints about a trial court s failure to render a timely final order. Section 263.402 describes the
vehicles by which a party can obtain a dismissal: a timely motion to dismiss or a motion requesting the court to render
a final order before the deadline for dismissal. A timely motion to dismiss must be filed before the Department
introduces all of its evidence, other than rebuttal evidence. Tex. Fam. Code 263.402(b). A motion requesting the court
to render a final order must be made before the dismissal deadline passes. Id. The Department argues that Ludwig s
and Higdon s motions to dismiss were not timely made.
On July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon made motions to dismiss based on
the Saturday, July 24 dismissal deadline. The Department rested its case on Friday, July 23. On Wednesday, July 28,
2004, the jury returned a unanimous verdict terminating the parent-child relationship between Higdon and each child
and appointing the Department, rather than Ludwig, sole managing conservator of the children. The trial court read the
verdict, terminated the parental rights of the fathers, and denied both motions to dismiss. Higdon and Ludwig complied
with the statutory deadline by filing before the Department rested and had ripe motions to dismiss before the trial court
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when the deadline passed. The trial court abused its discretion by failing to dismiss the Department s SAPCR within
the statutory time period as requested by Higdon s and Ludwig s timely motions.
Now we must determine whether the court of appeals correctly concluded that Higdon and Ludwig had no adequate
remedy by appeal and were therefore entitled to mandamus relief. Although we have recognized that the standard s
operative word, adequate , has no comprehensive definition and demands a careful balance of jurisprudential
considerations that determine when appellate courts will use original mandamus proceedings to review the actions of
lower courts, mandamus will not issue when the law provides another plain, adequate, and complete remedy. In re
Prudential, 148 S.W.3d at 135 36; see also Iley v. Hughes, 311 S.W.2d 648, 652 (Tex. 1958).
However, [j]ustice demands a speedy resolution in cases involving child custody. See Proffer v. Yates, 734 S.W.2d
671, 673 (Tex. 1987). In fact, we have acknowledged that appeal is frequently inadequate to protect the rights of
parents and children . . . . Id. (granting mandamus relief for a trial court s failure to transfer custody dispute to the
required venue). The Legislature enacted section 263.405, which provides an accelerated appeal that shortens
deadlines, expedites filing of the appellate record, and requires the appellate court to render its final order or judgment
with the least possible delay, to address this concern. Tex. Fam. Code 263.405(a); see House Comm. On Juvenile
Justice & Family Issues, Bill Analysis, Tex. H.B. 2249, 77th Leg., R.S. (2001) ( House bill 2249 addresses post-
judgment appellate delays . . . . ); see also Tex. Fam. Code 263.405 (expediting appeals of final orders rendered under
subchapter E Final Order for Child under Department Care ); id. 263.304 (authorizing parties to seek mandamus relief
to compel a court to comply with certain duties). Texas Rule of Appellate Procedure 28 provides other mechanisms for
expediting appeals involving the termination of parental rights.
In this case, Higdon and Ludwig filed their motions to dismiss during trial. Because the trial was underway when the
dismissal deadline passed and because physical possession of the children had already transferred to the Department
when the petition for writ of mandamus was filed with the court of appeals, we conclude that an accelerated appeal
provided an adequate remedy in this case. We do not hold that a party complaining of a trial court s failure to dismiss a
SAPCR within the statutory deadline could never be entitled to mandamus relief, but under the facts of this case, we
cannot conclude that an accelerated appeal was not an adequate remedy. Impending transfer of physical possession of
the children or a trial court s unreasonable delay in entering a final decree might alter this conclusion, but this record
raises neither situation. In fact, assuming the trial court entered the final decree at the scheduled August 11, 2004
hearing, Ludwig and Higdon could have initiated an accelerated appeal under section 263.403 of the Texas Family
Code on the same day they filed their petitions for writ of mandamus.
We recognize that in particular cases the statute could work injustice or encourage gamesmanship to push litigation
beyond the deadline. We presume the Legislature recognized this also. But the Legislature also recognized that a
statutory deadline would expedite the trial of these cases to help provide a modicum of certainty for children whose
family situations are subject to the outcomes in these proceedings. It is not the Court s task to choose between
competing policies addressed by legislative drafting. See McIntyre, 109 S.W.3d at 748. We apply the mandates in the
statute as written.
For these reasons, we conclude that the court of appeals erred in granting Ludwig s and Higdon s petitions for writ of
mandamus. We conditionally grant the Department s petition for writ of mandamus because Higdon and Ludwig had
an adequate remedy by appeal. Pursuant to Texas Rule of Appellate Procedure 52.8(c) and without hearing oral
argument, we direct the court of appeals to vacate its order to the trial court directing the trial court to dismiss the case.
The writ will issue only if the court of appeals does not comply.
OPINION DELIVERED: September 22, 2006
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