Affirm and Opinion Filed May 3, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00967-CV
IN THE INTEREST OF T.S. AND T.Y., CHILDREN
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-19-818-X
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Garcia
Opinion by Justice Molberg
Mother and Father separately appeal the trial court’s order terminating their
parental rights to T.S. and T.Y. Father’s counsel has filed a brief stating the appeal
is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967).
Mother’s counsel also filed an Anders brief before withdrawing it and filing an
amended brief in which she argues the trial court failed to properly extend the suit’s
automatic dismissal date pursuant to section 263.401(a) of the family code. When
one parent files an Anders brief, and the other parent raises an issue seeking to
overturn the trial court’s judgment, we can both address the issue raised and conduct
an Anders analysis. See In re K.K., No. 05-18-01254-CV, 2019 WL 1233267 (Tex.
App.—Dallas Mar. 15, 2019, no pet.) (mem. op.). Because we conclude the trial
court extended the automatic dismissal date prior to the case being dismissed and
otherwise find no meritorious issues in our review of the record, we affirm the trial
court’s judgment.
Mother’s jurisdictional issue
Appellant Mother argues in her brief that the trial court’s July 13 docket
entry—“Continue because of Covid. Extend d.o.d. on 8/10/20”—did not suffice to
extend the initial automatic dismissal date because it was noncompliant with family
code section 263.401, which, to extend a parental termination suit’s dismissal date,
requires a court to find that “extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department” and
“continuing the appointment of the department as temporary managing conservator
is in the best interest of the child.” TEX. FAM. CODE § 263.401(b). Because the
docket entry did not include these required findings, she argues, the Department’s
suit was automatically dismissed on August 10, and the trial court’s final judgment
is void. Under family code section 263.401(a),
Unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b-1), on the first Monday after the
first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, 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 is terminated and the suit is automatically dismissed without
a court order. Not later than the 60th day before the day the suit is
automatically dismissed, the court shall notify all parties to the suit of
the automatic dismissal date.
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TEX. FAM. CODE § 263.401(a). And under subsection (b), unless the court has
commenced 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).
Id. § 263.401(b). If the suit is retained on the court’s docket, “the court shall render
an order” that (1) schedules a new dismissal date, which must not be later than 180
days after the first dismissal date; (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 trial for a date not later than the new dismissal date. Id.
In this case, the trial court entered an order for emergency care and temporary
custody on August 9, 2019. The automatic dismissal date was therefore Monday,
August 10, 2020. The clerk’s record indicates a hearing was held on July 13, 2020,
after which the trial court made the following docket entry: “Father alleged to be
making veiled threats to DFPS and Court. DA, DFPS, RM & atty, RF atty, GAL
CASA, atty ad litem. Still need TBJ. Continue because of Covid. Extend d.o.d. on
8/10/20[.]” No reporter’s record of this hearing is before us on appeal. That
extension made the new dismissal date February 8, 2021, which was reflected in the
court’s case summary. The court conducted another hearing on November 16, 2020,
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and entered this docket entry: “DA, DFPS, GAL, RM atty, RF atty, CASA, Latest
emergency order. No juries before 2/2/2021. We wik [sic] not make dismissal date.
Extend based on latest order.”1 On March 14, 2021, the trial court again extended
the dismissal date,2 but this time entered an order, finding that “extraordinary
circumstances necessitate the children remaining in the temporary managing
conservatorship of TDFPS, continuing the appointment of TDFPS as temporary
managing conservator is in the best interest of the children and necessary for the
administration of justice, pursuant to the First Emergency Order, and that the Court’s
jurisdiction should be extended.” The court scheduled jury trial for August 23, 2021,
and trial commenced on that day.
The Supreme Court of Texas discussed and applied the provisions at issue
here in In re G.X.H., 627 S.W.3d 288 (Tex. 2021), which we conclude controls the
resolution of the jurisdictional question raised by Mother. In that case, the dismissal
date was September 24, 2018. Id. at 292. On August 27, the Department filed a
motion to retain the suit on the court’s docket pursuant to section 263.401(b), and a
hearing was held on August 29. Id. at 293. The court did not enter any order relating
1
The emergency COVID-19 order in effect at the time allowed courts, in proceedings under Subtitle
E, Title 5 of the Texas Family Code, “to extend the dismissal for an additional period not to exceed 180
days from the date of this Order” “for any case previously retained on the court’s docket pursuant to Section
263.401(b) or (b-1), or for any case whose dismissal date was previously modified under an Emergency
Order of this Court related to COVID-19[.]” Twenty-Ninth Emergency Order Regarding COVID-19 State
of Disaster, 629 S.W.3d 863, 863–64 (Tex. 2020).
2
The COVID-19 order in effect during this hearing was entered March 5, 2021, and it contained the
same above-quoted language relating to dismissal-date extensions in parental termination cases. Thirty-
Sixth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 897 (Tex. 2021).
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to the motion, but it made a docket entry on August 29, stating, “Motion for
continuance – cps, strickling, cooper, parents, serious injury case, med recs missing
for trial, agreed continuance – 10/17/18 for trial, extension granted to reach the
agreed trial date; trial – 10/17/18[.]” Id. The supreme court concluded the docket
entry was sufficient under section 263.401(b) to retain jurisdiction over the case,
finding that “the only reasonable interpretation” of the entry was that it granted an
extension of the automatic dismissal date. Id. at 297–98. The court rejected the
appellants’ contention that, “because the two findings required by section 263.401(b)
do not appear in the record[,]” the dismissal date was not validly extended. Id. at
298. The court noted that the statute requires a court to make the two findings but
observed that the family code “permits trial courts to render orders orally in the
presence of the court reporter or in writing on its docket sheet or by a separate written
instrument.” Id. at 299 (citing TEX. FAM. CODE § 101.026). The court continued,
Here, the trial court held an oral hearing on the Department’s motion
for continuance weeks before the initial dismissal date. No party filed
a response opposing a continuance of the trial date or extension of the
dismissal date. Indeed, the docket entry created on the date of the oral
hearing reflects that the trial court granted the extension and that the
parties agreed to the continuance of the trial. The parents now complain
about the absence of written findings required by section 263.401(a).
We note, first, that nothing in the record reflects the parents ever raised
this complaint in the trial court. More importantly, the parents ignore
that trial courts are empowered to make the section 263.401(a) findings
in writing in a separate instrument or orally in the presence of a court
reporter. Where, as here, the trial court held an oral hearing on the
proposed extension and the parties failed to bring forth the record of
that hearing on appeal, we will presume the trial court made the
necessary findings to support the extension orally on the record at the
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hearing. Trial courts should make the section 263.401(b) findings in a
written order as a matter of course, but we hold that the failure to do so
is not error, provided the findings are made orally on the record or in
some other writing. We further hold that, where the trial court granted
an extension after conducting an oral hearing and the record of that
hearing is not made part of the record on appeal, courts may imply the
section 263.401(a) findings were made on the record at the oral hearing.
Id. (citations omitted).
Applying In re G.X.H. to the facts of this case, we must conclude that, on this
record, the trial court’s docket entry sufficed to extend the automatic dismissal date.
The only reasonable interpretation of the entry—“Continue because of Covid.
Extend d.o.d. on 8/10/20”—is that it extended the automatic “date of dismissal,”
which was “8/10/20.” Just as in G.X.H., there are no findings under section
263.401(a) relating to this extension in the record before us, and there is no reporter’s
record before us from the hearing after which the trial court made this docket entry.
Given that the “trial court granted an extension after conducting an oral hearing and
the record of that hearing is not made part of the record on appeal,” we “imply the
section 263.401(a) findings were made on the record at the oral hearing.” See
G.X.H., 627 S.W.3d at 299.
Mother relies on this Court’s recent decision in In re J.S., No. 05-21-00898-
CV, 2022 WL 620709 (Tex. App.—Dallas Mar. 3, 2022, no pet. h.) (mem. op.),
arguing the statutory findings are jurisdictional. In that case, the initial dismissal
date for the termination suit was February 8, 2021. Id. at *3. The case was first set
for trial on that date, but trial did not commence; instead, the “court conferred off
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the record with the parties’ attorneys and then announced on the record that the
parents would receive a jury trial and that the trial would take place on June 14.” Id.
The Department asked the trial court to “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 parents did not object, and the court found 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.” Id. A month and a half later, on March 30, the trial court
signed an order finding that “‘extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the Department,’ ‘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.” Id. Jury
trial was held on June 14 and 15. Id.
The Court concluded the March 30 order was entered too late (after the initial
dismissal date of February 8) to extend the jurisdictional period; the question
therefore was whether the February 8 oral finding on the record satisfied section
263.401(b) and extended the dismissal date. Id. The Court concluded the oral
finding did not satisfy 263.401(b) because the trial court did not find “that
extraordinary circumstances necessitate the child remaining in the temporary
managing conservatorship of the department.” Id. “A finding that it is in the child’s
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best interest for the case to be extended and for the Department to remain as
temporary managing conservator is not a finding of extraordinary circumstances as
required by subsection (b).” Id. Thus, after February 8, the case was automatically
dismissed because the trial court’s jurisdiction terminated. Id. at 4. The trial court’s
judgment was void. Id.
The Court in J.S. answered a different question than the one presented here.
There, the Court concluded that making one of the required findings under section
263.401(a) did not work to make the other required finding. Here, we conclude the
trial court extended the dismissal date, and we do not have a record before us to say
that it failed to make either of the required findings. The Court in J.S. acknowledged
such a circumstance when it stated, “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.” J.S., 2022 WL 620709, at *3 (citing G.X.H., 627 S.W.3d at 299).
Accordingly, we conclude the Department’s suit was not automatically
dismissed on August 10, 2020, because the trial court extended the automatic
dismissal date on July 13, 2020, and retained jurisdiction over the case. We overrule
Mother’s sole issue.
Father’s Anders brief
As noted above, Father’s counsel filed a brief pursuant to Anders, 386 U.S. at
738. Counsel provided Father a copy of the brief filed on his behalf and advised him
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about his right to examine the record and file his own response. Additionally, this
Court provided Father a copy of the brief filed by counsel and notified Father about
his right to examine the appellate record and file a pro se response. Father did not
file such a response.
In August 2019, the Texas Department of Family and Protective Services filed
a petition seeking to terminate Mother’s and Father’s parental rights to T.S. and T.Y.
after a physician examined one of the children and concluded she had been
physically abused. A trial before the court was held in August 2021. Evidence
showed that the Department became involved with T.S. and T.Y. after concerns
arose about physical abuse of T.Y. Dr. Suzanne Dakil examined T.Y., who was
fifty-one days old at the time, and determined that T.Y. had 26 different fractures.
Dr. Dakil concluded there was no medical problem explaining the fractures; instead,
they were consistent with child abuse. Evidence showed that Father, Mother, and
Paternal Grandfather were the sole caretakers of T.Y. up to that point. T.S. was also
taken into care because he was one year old and thus “not able to protect himself
from abuse or neglect.” Evidence also showed Mother and Father used marijuana
around T.S. and T.Y. Caseworkers from the Department testified Mother and Father
failed to participate in their service plans. They were discharged from individual
counseling, they refused to take drug tests after their initial tests were positive, and
they refused to complete psychiatric consultations.
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The trial court found that Mother and Father knowingly placed or allowed the
children to remain in conditions or surroundings that endanger the physical or
emotional well-being of the children, see TEX. FAM. CODE § 161.001(b)(1)(D);
engaged in conduct or knowingly placed the children with persons who engaged in
conduct that endangered the physical or emotional well-being of the children, see id.
§ 161.001(b)(1)(E); and failed to comply with the provisions of a court order that
specifically established the actions necessary for Mother and Father to obtain the
return of the children, who were in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a result of
removal under chapter 262, see id. § 161.001(b)(1)(O). The trial court further found
that termination of the parent-child relationship between Mother and Father and the
children was in the best interest of the children. See id. § 161.001(b)(2).
The procedures outlined in Anders apply in termination of parental rights
cases. In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied). In
reviewing Anders briefs, we do not review the merits of each claim raised in the brief
or pro se response. Id. Instead, we determine whether there are any arguable
grounds for reversal, and if there are, we remand the case for new counsel to be
appointed. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
In his Anders brief, Father’s appellate counsel demonstrates he reviewed the
record and concludes the appeal is without merit and frivolous. See Anders, 386
U.S. at 744. We independently reviewed the whole record and counsel’s brief, and
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we agree the appeal is frivolous and without merit. We find nothing in the record
that could arguably support the appeal.
Conclusion
We affirm the trial court’s judgment terminating Mother’s and Father’s
parental rights.
/Ken Molberg/
210967f.p05 KEN MOLBERG
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF T.S. AND On Appeal from the 305th Judicial
T.Y., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. JC-19-818-X.
No. 05-21-00967-CV Opinion delivered by Justice
Molberg. Justices Myers and Garcia
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 3rd day of May 2022.
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