Writ Conditionally Granted and Opinion Filed February 17, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00768-CV
IN RE C.D., F.D. AND L.D., Children
Original Proceeding from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-19-12390
MEMORANDUM OPINION
Before Justices Schenck, Nowell, and Garcia
Opinion by Justice Schenck
In this original proceeding, relators, T.S.T. and R.M.M., the foster parents of
C.D., F.D, and L.D., challenge the trial court’s order striking their petition in
intervention in the underlying parental-termination proceeding, urging the trial court
erroneously concluded that the 12-month placement rule to establish a foster parent’s
standing to intervene was tolled under a Texas Supreme Court’s emergency orders
regarding the COVID-19 state of disaster. We issued an order staying the trial of
this suit affecting the parent–child relationship pending resolution of this original
proceeding and requested a response to the petition. The Texas Department of
Family and Protective Services (the “Department”) responded; the parents did not.
In its response, the Department asserted the petition is moot because the trial court
lost jurisdiction of the underlying case before it issued the challenged order. After
reviewing the parties’ briefs and the mandamus record, we conclude nothing
indicates the trial court ever lost jurisdiction to rule on relators’ petition in
intervention and the trial court abused its discretion in applying the Texas Supreme
Court’s emergency orders regarding the COVID-19 state of disaster to suspend the
time for relators to establish standing to intervene. Accordingly, we conditionally
grant the petition for writ of mandamus.
BACKGROUND
On July 3, 2019, the Department filed petitions seeking to terminate the
parental rights of the Mother and Father of C.D., F.D., and L.D. On the same day,
the trial court entered ex parte orders appointing the Department as temporary
managing conservator of the children. The children were placed in relators’ home
in July or August of 2019.
On March 19, 2020, the trial court consolidated the cases. On December 3,
2020, relators filed a petition in intervention seeking, in part, termination of the
parental rights of both parents and appointment as joint permanent managing
conservators of the children. On August 26, 2021, Mother filed a motion to dismiss
the petition in intervention based solely on the ground that the current supreme court
emergency order regarding the COVID-19 state of disaster suspended the time
necessary for relators to establish standing to intervene in the case. The trial court
conducted a hearing on the motion on August 31, 2021. The court agreed with
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Mother and granted the motion and struck the petition in intervention. This
mandamus proceeding followed.
JURISDICTION
As a threshold matter, we address the Department’s assertion the petition is
moot because the trial court lacked jurisdiction over the underlying case when it
struck the intervention petition.
In cases where the Department requests conservatorship of a child or
termination of the parent–child relationship, the Family Code requires the court to
begin the trial no later than the first Monday after the first anniversary of the date
the court rendered a temporary order appointing the Department as temporary
managing conservator. See TEX. FAM. CODE ANN. § 263.401(a). The trial court may
extend the deadline if it 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.” Id. § 263.401(b). If the court makes those
findings, the court may retain the suit on its docket “for a period not to exceed 180
days after the time described by Subsection (a).” Id. If the trial court does not begin
the trial within the required time, the court’s jurisdiction over the suit is terminated
and the suit is automatically dismissed without a court order. Id. § 263.401(a), (c);
see also In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). The parties may not extend
the deadlines “by agreement or otherwise.” FAM. § 263.402.
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In this case, the trial court signed an order appointing the Department
temporary managing conservator of the children on July 3, 2019. The first Monday
following the first anniversary of that date was July 6, 2020. On June 12, 2020, prior
to the dismissal date in effect, the trial court signed an order extending the dismissal
date to January 2, 2021, as permitted by section 263.401(b) of the Texas Family
Code. See id. § 263.401(b).1 Ordinarily, the court may not grant any additional
extensions under section 263.401. FAM. § 263.401(c). But certain orders of the
Texas Supreme Court, adopted in response to the state of disaster created by
COVID-19, allow a trial court to extend the automatic dismissal date in proceedings
under Subtitle E, Title 5 of the Family, suits affecting the parent–child relationship
(SAPCR). In order for the court to retain jurisdiction by extending the dismissal
1
Section 263.401(b) provides:
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 Subsection (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 the 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 as 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).
FAM. § 263.401(b).
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date, however, the court must actually extend the dismissal date before it expires. In
re A.M., No. 07-19-00391-CV, 2020 WL 1174579, at *3 (Tex. App.—Amarillo Mar.
11, 2020, no pet.) (mem. op.).2
The record before us indicates the trial court did not attempt to extend the
dismissal date until January 14, 2021, after the prior extension of the deadline for
disposition of the case lapsed. Thus, the trial court lost jurisdiction over the
Department’s petition on January 2, 2021. See FAM. § 263.401(c).
Even though the trial court’s jurisdiction over the Department’s petition
expired, the trial court retained jurisdiction over relators’ petition in intervention
seeking termination of the parent–child relationship. See In re L.D.R., No. 05-21-
00369-CV, 2021 WL 5104376, at *3 (Tex. App.—Dallas Nov. 3, 2021, no pet.)
(mem. op.). The jurisdictional restrictions of section 263.401(a) apply only to the
court’s jurisdiction over the suit affecting the parent–child relationship filed by the
department that requests termination of the parent–child relationship or requests that
the department be named conservator of the child. FAM. § 263.401(a). There are no
similar restrictions on the court’s jurisdiction over a termination suit brought by a
private party. L.D.R., 2021 WL 5104376, at *3. Relators filed their petition in
intervention on December 3, 2020 when the trial court had jurisdiction over the case.
2
The court does not have to enter a written order to render an extension of the dismissal date, the court
may also extend the dismissal date with a docket sheet entry or by making an oral pronouncement in the
presence of the court reporter. G.X.H., 627 S.W.3d at 298 (citing TEX. FAM. CODE ANN. § 102.026)). In
this case, there is no docket entry that extends the January 2 dismissal date, and there is no reporter’s record
of any hearings in the operative time frame.
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Nothing indicates the trial court ever lost jurisdiction to rule on relators’ petition in
intervention seeking termination of Mother’s and Father’s parental rights.
We conclude the trial court had jurisdiction to rule on Mother’s motion to
strike relators’ petition in intervention. Accordingly, we will proceed to determine
whether the trial court clearly abused its discretion in striking the petition and, if so,
whether relators have an adequate remedy by appeal.
AVAILABILITY OF MANDAMUS RELIEF
To be entitled to mandamus relief, relator must show both that the trial court
has clearly abused its discretion and that he has no adequate appellate remedy. In re
Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004). A clear abuse of
discretion occurs when a trial court “reaches a decision so arbitrary and unreasonable
as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d
833, 839 (Tex. 1992) (orig. proceeding). A trial court has no discretion in
determining what the law is or applying the law to the facts. Id. Therefore, a clear
failure by the trial court to analyze or apply the law correctly will constitute an abuse
of discretion and may result in appellate reversal by extraordinary writ. Id. at 840.
Standing is a component of subject matter jurisdiction and is a constitutional
prerequisite to maintaining a lawsuit under Texas law. In re M.K.S.–V., 301 S.W.3d
460, 463 (Tex. App.—Dallas 2009, pet. denied). Thus, it may be raised for the first
time on appeal by the parties or by the court. Tex. Ass’s of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). Whether a party has standing to seek
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relief in a suit affecting the parent–child relationship is governed by the Texas
Family Code. In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas 2012, pet.
denied).
A person seeking conservatorship of a child must have standing to bring suit.
In re I.I.G.T., 412 S.W.3d 803, 805–06 (Tex. App.—Dallas 2013, no pet.). Standing
in a SAPCR is governed by the family code, and a party bringing a SAPCR must
plead and establish standing under the family code’s provisions. M.K.S.–V., 301
S.W.3d at 464. Intervention in a pending SAPCR is governed by specific provisions
of the family code. See FAM. § 102.004(b).
DISCUSSION
To intervene in the SAPCR, relators were required to establish statutory
standing under the family code. See id. Under section 102.004(b), the trial court
may permit a grandparent or other person deemed to have had substantial contact
with the child leave to intervene in a pending suit if there is satisfactory proof that
appointment of one or both parents as managing conservator would significantly
impair the child’s physical health or emotional development. Id. Relators, as foster
parents, may only be granted leave to intervene if they would also have standing to
file an original suit. Id. § 102.004(b-1). A foster parent has standing to file an
original suit if the child has been placed in their home “for at least 12 months ending
not more than 90 days preceding the date of the filing of the petition.” Id.
§ 102.003(a)(12).
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At the hearing on Mother’s motion to strike the petition in intervention, the
trial court judge expressed her belief that, with respect to CPS cases, the supreme
court’s order tolled the relevant time periods.
We disagree with the trial court’s assessment of the effect of the supreme
court’s emergency order because paragraph 4 of the order provided:
In any proceeding under Subtitle E, Title 5 of the Family Code, all
deadlines and procedures must not be modified or suspended, unless
permitted by statute, except the dismissal date may be extended as
follows: . . . .
Supreme Court of Texas, Fortieth Emergency Order Regarding the COVID-19 State
of Disaster, Misc. Docket No. 21-9079, 629 S.W.3d 911 (Tex. 2021) (emphasis
added).
The Department’s petition in this case was filed under family code section
262.105, which is part of Subtitle E, Title 5 of the family code. See FAM. § 262.105.
Thus, paragraph 4 of the Emergency Order applies to this case. Paragraph 4 provides
that deadlines and procedures, except the dismissal date, in proceedings under
Subtitle E, Title 5 of the family code “must not be modified or suspended, unless
permitted by statute.” Thus, the 12-month-placement requirement for relators to
establish standing was not suspended by the emergency order. See In re M.T.-G.,
No. 05-21-00763-CV, 2022 WL 178688, at *3 (Tex. App.—Dallas Jan. 20, 2022,
orig. proceeding) (mem. op.). Accordingly, the trial court abused its discretion in
striking relators’ petition on that basis.
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Next, we address the Department’s assertion that even if the trial court
misapplied the supreme court’s emergency orders, it did not abuse its discretion in
striking relators’ petition in intervention because relators did not request leave to file
their petition and did not present satisfactory proof that appointment of the parents
as sole or joint managing conservators would significantly impair the children’s
physical health or emotional development. See FAM. § 102.004(b).
With respect to the Department’s assertion relators did not request leave to
file their petition in intervention, we note this ground was not raised in the trial court.
Nevertheless, we reject this assertion because relator’s petition in intervention can
reasonably be read as a request for leave to intervene. The petition (1) alleges that
relators are the foster parents of the children, (2) seeks termination of Mother’s and
Father’s parental rights and appointment of relators as permanent joint managing
conservators of the children, and (3) concludes by requesting relief in accordance
with the allegations in the petition. See In re A.T., No. 14-14-00071-CV, 2014 WL
11153028, at *9 (Tex. App.—Houston [14th Dist.] July 15, 2014, no pet.) (mem.
op.).
As to the Department’s assertion relators did not present satisfactory proof of
significant impairment to invoke standing to intervenor, we note that, in its petition,
the Department sought termination of the parental rights of Mother and Father based
on their longstanding drug use and mental health issues, F.D. and L.D. having tested
positive for amphetamines at birth, and mother having left C.D. largely in the care
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of a relative, who also tested positive for drug use. Clear, deliberate, and
unequivocal assertions of fact in live pleadings are regarded as judicial admissions.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000). A judicial
admission not only relieves an adversary from making proof of the fact admitted but
also bars the party himself from disputing it. Id. We cannot say at this point that the
record fails to show proof of the significant impairment requirement.
Moreover, we note, this ground was not raised in the motion to strike the
intervention or at the hearing on the motion. Thus, we do not know how the trial
court would have exercised its discretion had it considered the remaining grounds
for intervention under section 102.004(b). Nor were relators given an opportunity
to respond and make the showing required by that section. While in general we may
affirm a trial court’s order if it is correct on any legal theory applicable to the case,
we will not affirm the trial court’s order based on a legal theory not presented to the
trial court and to which the other party had no opportunity to respond. M.T.-G., 2022
WL 178688, at *4. We agree that the burden is on relators to make the showing
required by section 102.004(b), but at this juncture the trial court has not considered
that showing or exercised its discretion based on a fully developed record. Because
relators’ standing was not challenged on any ground other than the suspension of the
placement requirement by the supreme court’s emergency orders, we decline to
further consider this unraised ground.
Finally, the Department argues relators have an adequate remedy by appeal
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from a final judgment. The Texas Supreme Court has held that mandamus review
is appropriate when the trial court’s jurisdiction is challenged in a proceeding
involving child custody issues. See Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.
1994) (orig. proceeding). Due to the unique and compelling circumstances
presented in a SAPCR case, mandamus relief is an appropriate remedy for an order
denying or granting a motion to dismiss for lack of standing in such a case. In re
Martin, 523 S.W.3d 165, 169 (Tex. App.—Dallas 2017, orig. proceeding); In re
Shifflet, 462 S.W.3d 528, 541–42 (Tex. App.—Houston [1st Dist.] 2015, orig.
proceeding) (no adequate remedy on appeal and mandamus proceeding appropriate
to seek relief from order granting motion to dismiss intervention in SAPCR case for
lack of standing).
In this case, the trial court’s jurisdiction over relators’ petition in intervention,
which sought custody of the children, was challenged by Mother’s motion to
dismiss. In this context, we conclude relators do not have an adequate remedy by
appeal.
CONCLUSION
We conditionally grant the petition for writ of mandamus. We order the trial
court to vacate its order of August 31, 2021 striking relators’ petition in intervention.
Because we assume the trial court will comply with this opinion, we direct our clerk
not to issue the writ of mandamus unless information is received that the district
court has not so complied.
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We lift the stay issued by this Court on October 26, 2021.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
210768F.P05
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