in the Interest of J.H., a Child

 

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00163-CV

 

In the Interest of J.H., a Child

                                                                                   

 

 

 


From the 278th District Court

Madison County, Texas

Trial Court No. 05-10858-09

 

ORDER

 


            The Department of Family and Protective Services filed the underlying proceeding as the permanent managing conservator of J.H. seeking termination of the parent-child relationship between the child and her mother.  The trial court granted the relief sought.  The parties, the trial court, and this Court have, to this point, acted under the assumption that this appeal is governed by section 263.405 of the Family Code.  See Tex. Fam. Code Ann. § 263.405 (Vernon Supp. 2007).  On further review, it is not entirely clear that section 263.405 even applies.  Therefore, the parties are ordered to brief this issue.

            The Department first filed a suit affecting the parent-child relationship with respect to J.H. in July 2005.  One year later, the court signed a “Final Order in Suit Affecting the Parent-Child Relationship.”  This “final order” appointed the Department as permanent managing conservator but did not terminate the mother’s parental rights.  See Tex. Fam. Code Ann. § 263.404 (Vernon 2002).

            In April 2007, the Department filed a “First Amended Petition for Termination and Motion to Modify Access in Suit Affecting Parent-Child Relationship.”  The Department alleged in the petition that it has standing under sections 102.003(5) and 262.001 of the Family Code.  The former provides that “a governmental entity” has standing to file an original SAPCR “at any time.”  Id. § 102.003(5) (Vernon Supp. 2007).  It is at least arguable that the latter provision does not apply because section 262.001 and successive provisions are “for the removal of a child from an abusive home.”  See Goodson v. Castellanos, 214 S.W.3d 741, 750 (Tex. App.—Austin 2007, pet. denied).  Here, however, J.H. had already been removed from her home in 2005 and the litigation surrounding her removal culminated in a final, appealable judgment.

            The unique provisions of section 263.405 apply only to the “appeal of a final order rendered under [Chapter 263, Subchapter E].”  Tex. Fam. Code Ann. § 263.405(a).  Thus, it may be argued that the Department’s “First Amended Petition” was in fact an original suit affecting the parent-child relationship governed primarily by Chapter 161 of the Family Code and that the provisions of Chapter 263 do not apply.  Regardless, because the judgment terminates the mother’s parental rights, this appeal is accelerated.  See Tex. Fam. Code Ann. § 109.002(a) (Vernon 2002), § 263.405(a).

            Accordingly, the parties are directed to provide supplemental briefs on the issue of whether this appeal is governed by section 263.405.  The appellant’s brief shall be filed within 10 days after the date of this Order.  The Department’s brief shall be filed within 10 days after the appellant’s.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray not participating)

Order issued and filed August 13, 2008

Do not publish

[CV06]