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MEMORANDUM OPINION
No. 04-08-00340-CV
IN THE INTEREST OF S.M., I.T., and J.D.T., Children
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 06-10-45136
Honorable Ricardo H. Garcia, Judge Presiding
PER CURIAM
Sitting: Alma L. Lopez, Retired Chief Justice1
Karen Angelini, Justice
Steven C. Hilbig, Justice
Delivered and Filed: June 10, 2009
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
L.S.M. appeals the trial court’s final order appointing the Texas Department of Family and
Protective Services as managing conservator of L.S.M.’s three children without terminating L.S.M.’s
parental rights. In a prior opinion, we addressed the trial court’s order finding that L.S.M. is not
indigent and that her appeal from the trial court’s order would be frivolous. See In re S.M., No. 04-
08-00340-CV, 2008 WL 5423138 (Tex. App.—San Antonio Dec. 31, 2008, order). We reversed
the portion of the trial court’s order finding that an appeal of the issue relating to the trial court’s
failure to appoint L.S.M. as possessory conservator would be frivolous, and we affirmed the
1
… Chief Justice López (Retired), not participating.
04-08-00340-CV
remainder of the trial court’s order. Id. We ordered L.S.M. to file a brief on the merits of the issue
relating to the trial court’s failure to appoint L.S.M. as possessory conservator. See id. After L.S.M.
filed her brief addressing the merits of that issue, we granted the parties agreed motion to abate the
appeal to enable the parties to mediate and ordered the parties to file a written status report no later
than May 26, 2009. On May 18, 2009, the Department filed written notice that the mediation was
not successful. Accordingly, we reinstate the appeal on this court’s docket.
Based on its review of the record and authority in this cause, the Department concedes “that
it was clearly the intention of the trial judge to appoint [L.S.M.] as permanent possessory conservator
of the subject children.” Accordingly, the Department requests that this court reverse the portion of
the trial court’s order “denying or omitting the appointment of [L.S.M.] as permanent possessory
conservator of the children and remand this case for further proceedings to determine [L.S.M.’s]
possessory rights.”
In light of our discussion of this issue in our prior opinion, see In re S.M., 2008 WL 5423138,
at *2, and in view of the Department’s concession, we reverse the portion of the trial court’s order
omitting the appointment of L.S.M. as permanent possessory conservator. See also TEX . FAM . CODE
ANN . § 153.191 (Vernon 2008). The remainder of the trial court’s order is affirmed. The cause is
remanded for further proceedings. Costs of the appeal are taxed against the Department.
PER CURIAM
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