Opinions, July 21, 2015

The Fourteenth Court of Appeals released its Memorandum Opinion this morning in In re W.J.B. & J.B., No. 14-15-00186-CV (Tex.App.–Houston [14th Dist.] Jul. 21, 2015) affirming an order signed by the trial court denying a motion to reinstate after the case was DWOPed. The Court of Appeals affirmed.

In this case, the maternal grandfather of the two children at issue had been the SMC since February 2010. In February 2013, the mother of the children filed a modification suit, seeking to be named SMC in place of the maternal grandfather. The children were placed with DFPS in March 2013. That same month, DFPS filed a petition to terminate the mother and father’s rights. The mother then filed an affidavit of relinquishment. At trial in August 2014, the associate judge stated the termination of the mother’s rights was granted and the paternal grandfather would be named SMC, on DFPS’s recommendation. A final order was filed for entry but no written judgment was signed.

In September 2014, the judge of the 311th filed a voluntary recusal and the case was transferred to the 257th. After transfer, the 257th’s docket sheet stated the rendition at trial was set aside sua sponte on the Court’s own motion. The entry was not signed or initialed and no written order was entered. In January 2015, the case was dismissed by the trial judge of the 257th. DFPS filed a motion to reinstate, render judgment on the August 2014 rendition, enter the decree and reopen for additional evidence. The court denied the motion and DFPS appealed.

On appeal, the DFPS asserted three issues: 1) the trial court erred in dismissing the case on the belief the case had already been dismissed as a matter of law under section 263.401 of the Family Code because that section is not jurisdictional and the case included a private lawsuit–the mother’s modification suit–that was not subject to dismissal under section 263.401; 2) the trial court’s finding of insufficient evidence to support the AJ’s recommendation to terminate both parents’ right is not a legal basis to deny the motion to reinstate; and 3) because no record was taken of the dismissal hearing, the case should be reversed and reinstated on the trial court’s docket.

In response to the DFPS’s first issue, the Court of Appeals said it’s true the Texas Supreme Court has held dismissal dates governing termination and child protection proceedings where DFPS has temporary custody are not jurisdictional. But the Court of Appeals also noted a trial on the merits had not occurred within the statutory limitation of one year and the trial court could not extend the limitation sua sponte. Rather, the statute requires a trial court to make specific findings supporting an extension. The 257th determined that the 311th had ordered a new date of dismissal of September 1, 2014 without making the appropriate findings and therefore abused its discretion in doing so. Accordingly, the Court of Appeals found the trial court did not abuse its discretion in denying the motion to reinstate. The Court of Appeals also found that DFPS’s allegation that the trial court erred by dismissing a case which included a private lawsuit (mother’s mod claim), that alleged error would not be basis for overturning the dismissal of DFPS’s suit or a finding the trial court erred in denying DFPS’s motion to reinstate. DFPS’s first issue was overruled.

Because the Court of Appeals overruled DFPS’s first issue, it was unnecessary for the court to reach the second issue of sufficiency of the evidence.

As for the third issue, the Court of Appeals overruled it, finding that the so-called hearing was no more than a docket call. Because the one year deadline to proceed to trial on the merits was neither satisfied nor properly extended, the final issue was overruled.

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