IN THE INTEREST OF J.S., A CHILD
No. 05-21-00898-CV
Court of Appeals Fifth District of Texas at Dallas
March 3, 2022
Before Justices Myers, Partida-Kipness, and Carlyle. Opinion by Justice Myers.
On Appeal from the County Court At Law No. 1, Kaufman County, Texas. Trial Court Cause No. 104418-CC.
J.S.‘s mother appeals the termination of the parent-child relationship between her and J.S. A jury found the Texas Department of Family and Protective Services proved statutory grounds under paragraphs (D), (E), (N), (O), and (P) of section
JURISDICTION UNDER FAMILY CODE SECTION 263.401
“A judgment is void when it is apparent that the court rendering judgment lacked jurisdiction over the parties or subject matter, had no jurisdictiоn to enter the particular judgment, or had no capacity to act.” In re D.S., 602 S.W.3d 504, 512 (Tex. 2020) (internal punctuation omitted). Appellate courts have jurisdiction to determine whether an order or judgment underlying the appeal is void and to make appropriate orders based on that determination. In re P.Z.F., No. 05-21-00161-CV, 2021 WL 3941667, at *2 (Tex. App.—Dallas Sept. 2, 2021, pet. denied).
The question of jurisdiction is fundamental and may be raised at any time, including on appeal. Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985) (per curiam). The court of appeals must ascertain its own jurisdiction.
The supreme court has stated,
The Texas Legislature enactеd Texas Family Code section 263.401 to encourage prompt resolution of suits in which the Department of Family and Protective Services requests termination of the parent-child relationship or requests that the Department be named conservator of a child. Section 263.401 does this by requiring trial courts presiding
over such suits to commence the trial on the merits within one year after the initial temporary order. In extraordinary circumstances defined in section 263.401(b), trial courts may extend that one-year deadline, or “dismissal date” in the pаrlance of the statute. But if the trial court neither commences trial by the dismissal date nor extends it in accordance with section 263.401(b), the statute dictates a dire consequence: the trial court‘s jurisdiction over the suit “is terminated and the suit is automatically dismissed.”
Interest of G.X.H., 627 S.W.3d 288, 292 (Tex. 2021) (quoting
Under section
Subsection (b) provides a way to extend the dismissal date by up to 180 days. Subsection (b) provides:
(b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court‘s docket after the time described by Subsectiоn (a) unless the court finds
that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and
that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.
If the court makes those findings, the court may retain the suit on the court‘s docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court‘s docket, the court shall render an order in which thе court:
(1) schedules the new date on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the child аs necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).
Under this statute, the trial court may commence the trial after the initial dismissal date by following a two-step process. First, the court must tаke action to retain the case on the court‘s docket after the initial dismissal date. The court does this by making two findings before the initial dismissal date: (1) “that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department,” and (2) “that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.”
The findings necessary to keep the case on the docket—extraordinary circumstances and best interеst of the child—are best made in writing in written findings or in an order, but they may also be made “orally on the record or in some other writing.” Id. at 299. The supreme court has recognized only one situation in which the making of the findings may be presumed, and that is when the trial court grants an extension after holding a hearing and there is no reporter‘s record of the hearing. Id.
In this case, the Department filed a petition to terminate the parents’ parental rights on February 4, 2020. The trial court appointed the Department to be the child‘s temporary managing conservator the same day. The first Monday after the first anniversary of February 4, 2020, was February 8, 2021, which was the initial dismissal date for the Department‘s suit for termination.
The “Case Summary” in the clerk‘s record shows the case was set for trial on February 8, 2021.1 The reporter‘s record for the hearing оn that date shows the trial did not commence. Instead, the parents each requested a jury trial. The trial court conferred off the record with the parties’ attorneys and then announced on the record that the parents would receive a jury trial and that the triаl would take place on June 14. The attorney for the Department asked the court to make findings so the case could be retained on the court‘s docket:
[Department‘s attorney]: . . . Given the new orders on the plan, the timeline for the case, I‘m asking that the Court find that it‘s in the child‘s best interest to remain in the care of the Department and extend the case so that it can be officially retained on the Court‘s docket.
The Court: Any objection?
[Father‘s attorney]: No objection, Judge.
[Mother‘s attorney]: No objection.
The Court: All right. I will find that it‘s in the best interest of the child for this case to be extended, that the child remain in its current placement and that the Department remain as the temporary managing conservator of the child.
The new dismissal date will be—
[Department‘s attorney]: It would be 180 days from today.
The Court: Yes, 180 days from today.
On March 30, the trial court signed an order finding “that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the Depаrtment,” “that continuing the appointment of the Department as temporary managing conservator is in the best interest of the child,” setting the new dismissal date for August 7 (which was 180 days after February 8), and setting the case for trial on June 14. The jury trial was held on June 14 and 15, which was less than 180 days aftеr February 8.
Because the initial dismissal date was February 8, the trial court‘s written findings on March 30 came too late to extend the jurisdictional period and maintain the case on the court‘s docket. Thus, the question is whether the trial court‘s oral findings on the record on February 8 were sufficient to satisfy the requirements of section
The court orally made this finding during the February 8 hearing: “I will find that it‘s in the best interest of the child for this case to be extended, that the child remain in its current placеment and that the Department remain as the temporary managing conservator of the child.” This finding may satisfy the requirement that the court find “that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.” But it does nоt satisfy the requirement that the court find “that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department.” A finding that it is in the child‘s best interest for the case to be extended and for the Department to remаin as temporary managing conservator is not a finding of extraordinary circumstances as required by subsection (b).
The Department argues that the trial court made the extraordinary-circumstances finding on March 30 and that Mother waived the timing of making the finding by not objecting in the trial court. The Department relies on G.X.H. in support of this argument. In G.X.H., the supreme court distinguished between the findings necessary to maintain the case on the trial court‘s docket and the orders necessary to reset the trial date, which are numbered (1), (2), and (3) in subsection (b). The supreme court said:
we conclude that, while a trial court‘s failure to timely extend the automatic dismissal date before that date passes—through a docket-sheet notation or otherwise—is jurisdictional, claimed defects relating to the other requirements of 263.401(b) are not. Accordingly, with the еxception of a trial court‘s failure to extend the automatic dismissal date before it passes, complaints regarding the trial court‘s compliance with the requirements in subsection (b) must be preserved for appellate review.
G.X.H., 627 S.W.3d at 301. The findings of extraordinary circumstances and best interest are the actions necessary “to timely extend the automatic dismissal date before that date passes,” which the supreme court said were jurisdictional. What the supreme court said were not jurisdictional were the other requirements of subsection (b), including setting the new dismissal date and date of trial and rendering any necessary temporary orders. Those latter requirements are not jurisdictional, and “complaint regarding the trial court‘s compliance with [those requirements] must be preserved for appellate review.” Id. (“[W]e hold their complaints regarding the timing and form of the order resetting the trial and dismissal dates are waived.“). But the trial court‘s failure to make the extraordinary-circumstances and best-interest findings are jurisdictional and not subject to waiver.
Section
When a party appeals a void judgment due to lack of subject-matter jurisdiction, we have jurisdiction to vacate the judgment and dismiss the case for lack of subject-matter jurisdiction. Pappas v. Shamoun & Norman, LLP, No. 05-16-01405-CV, 2018 WL 2749691, at *3 (Tex. App.—Dallas May 31, 2018, no pet.) (mem. op.); Duggan v. Tanglewood Villa Owners Ass‘n, No. 05-16-00300-CV, 2017 WL 2610032, at *2–3 (Tex. App.—Dallas June 16, 2017, no pet.) (mem. op.); see Freedom Commc‘ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (“appellate courts do not have jurisdiction to address the merits of appeals from void orders or judgments; rаther, they have jurisdiction only to determine that the order or judgment underlying the appeal is void and make appropriate orders based on that determination“).
CONCLUSION
Because the trial court lacked subject-matter jurisdiction over this case after February 8, 2021, we vаcate the trial court‘s judgment signed September 20, 2021, and we dismiss the case for lack of subject-matter jurisdiction.
210898f.p05
/Lana Myers/
LANA MYERS
JUSTICE
JUDGMENT
IN THE INTEREST OF J.S., A CHILD
No. 05-21-00898-CV
On Appeal from the County Court At Law No. 1, Kaufman County, Texas. Trial Court Cause No. 104418-CC. Opinion delivered by Justice Myers. Justices Partida-Kipness and Carlyle participating.
In accordance with this Court‘s opinion of this date, we VACATE the judgment signed September 20, 2021, and DISMISS the cause for lack of subject-matter jurisdiction.
Judgment entered this 3rd day of March, 2022.