in the Interest of D.R.W., a Child
11-16-00143-CV
| Tex. App. | Nov 30, 2016Background
- Mother (Appellant) had prior DFPS involvement (2008, 2011); children removed after 2014 drug raid and other concerns.
- Trial court ordered monitored return in July 2015 with DFPS as managing conservator; children were removed from monitored return on October 2, 2015 after alleged physical abuse.
- Trial court later set a new dismissal date (March 30, 2016) more than two months after the removal; mother moved to dismiss one week before trial.
- Trial court terminated mother’s parental rights in three consolidated appeals; findings invoked multiple Family Code termination grounds and best-interest prong.
- Mother did not challenge sufficiency of evidence on appeal; she raised (1) a statutory dismissal/timing/finding challenge under Tex. Fam. Code §263.403 and (2) a res judicata/judicial-admission objection seeking exclusion of pre-removal evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying motion to dismiss under Tex. Fam. Code §263.403(c) for failing to set a new dismissal date at time of removal | Trial court failed to schedule a new dismissal date "at the time" of removal as §263.403(c) requires; dismissal is required | The court later set a new dismissal date (March 30, 2016); statute gives no sanction of dismissal for belated scheduling and dismissal dates are not jurisdictional | Denied; belatedly setting the dismissal date was not reversible error and dismissal is not required |
| Whether the trial court erred by denying motion to dismiss under §263.403(d) for lack of specific written findings upon removal | Order after removal lacked the specific findings §263.403(d) requires; order should be invalid or dismissal required | §263.403(d) does not require nullification of the case docket for omission; best-interest finding in court was sufficient for retention | Denied; omission of detailed written findings did not mandate dismissal or void retention of the case |
| Whether evidence of events before the monitored-return removal (pre-9/28/2015) was barred by res judicata and prior temporary order/judicial admission | Prior temporary order (finding continuation in mother’s home was in best interest) is res judicata/judicial admission that pre-removal conduct cannot be relitigated or used against mother | Temporary monitored-return orders are not final judgments; C.B. distinguished on unique facts; Family Code and precedent permit consideration of prior conduct and prior hearing evidence in termination proceedings | Denied; trial court properly overruled res judicata objections and could consider pre-removal evidence |
Key Cases Cited
- C.B. v. Texas Dep’t of Family & Protective Servs., 440 S.W.3d 756 (Tex. App.—El Paso 2013) (discussed but distinguished on its unique procedural posture)
- In re Dep’t of Family & Protective Servs., 273 S.W.3d 637 (Tex. 2009) (dismissal dates in Family Code are not jurisdictional)
- Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627 (Tex. 1992) (res judicata applies to final judgments)