C. C. v. Tex. Dep't of Family & Protective Servs.

C. C., Appellant v. Texas Department of Family and Protective Services, Appellee

No. 03-21-00587-CV

Court of Appeals of Texas, Third District, Austin

April 15, 2022

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 311577, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Triana.

MEMORANDUM OPINION

Gisela D. Triana, Justice.

Appellant C.C. (Mother) appeals from the district court's conservatorship order. In two issues on appeal, Mother argues that the district court's order is void because the final hearing did not commence before the automatic dismissal date provided by Section 263.401 of the Family Code and that the district court abused its discretion in appointing the maternal grandparents as nonparent joint managing conservators. We will affirm the district court's order.

BACKGROUND

On August 14, 2019, the Texas Department of Family and Protective Services filed an original petition seeking termination of Mother's and Father's parental rights to L.W. (Son), born March 9, 2019, and nonparent managing conservatorship of Son.^[1] The suit was based on allegations that Mother had exposed Son to methamphetamine use and domestic violence committed by Mother's boyfriend (Boyfriend). The case proceeded to a bench trial before an associate judge beginning June 23 2021, continuing June 30, 2021, and concluding August 11 2021. By the time of trial, the Department was no longer seeking termination of Mother's and Father's parental rights but was seeking to have the maternal grandparents appointed joint managing conservators of Son. At the conclusion of trial, the associate judge found that appointing Mother and Father as joint managing conservators would significantly impair Son's physical health or emotional development and that it was in Son's best interest to appoint the maternal grandparents as his joint managing conservators. On August 31, 2021, the associate judge issued its order appointing the maternal grandparents as Son's joint managing conservators and Mother and Father as possessory conservators. Mother requested a de novo hearing on the matter, which was held on October 12, 2021. At the conclusion of that hearing, the district court "confirm[ed] [the] ruling and order" of the associate judge and later issued its de novo order appointing the maternal grandparents as joint managing conservators of Son. Mother and Father were appointed Son's possessory conservators, and each had visitation rights to Son for no less than two hours twice per month, at the discretion and under the supervision of the maternal grandparents. This appeal by Mother followed.

DISCUSSION

Appellate Jurisdiction

We first address a preliminary issue raised by the Department in its brief. The Department asserts that this Court lacks jurisdiction over Mother's appeal because she failed to timely file her notice of appeal. An appeal from an order in a child-protection case is accelerated and must be filed within twenty days after the order is signed. See Tex. Fam. Code § 263.405(a); Tex.R.App.P. 26.1(b), 28.4(a). On November 9, 2021, Mother filed her notice of appeal from the "Order Appointing Managing Conservator signed by the Judge for this Court on November 8, 2021." However, no order was signed on that date, and the Department asserts that the notice of appeal was referring to the associate judge's order, signed August 31, 2021. Thus, in the Department's view, the notice of appeal was filed beyond the twenty-day deadline for appealing that order, which would have been September 20 2021.

We disagree with the Department's contention that Mother's notice of appeal referred to the order of the associate judge. Mother had already "appealed" that order on August 13, 2021, by requesting a de novo hearing before the district court, which was held October 12, 2021. At the conclusion of that hearing, the district court confirmed the associate judge's ruling and, on December 14, 2021, signed its "De Novo Order Appointing Managing Conservator." Based on the sequence of events in the court below, including Mother's filing of her notice of appeal after the de novo hearing was held, we conclude that Mother's notice of appeal referred to the district court's order and that her notice of appeal from that order was timely. The filing of Mother's notice of appeal before the district court signed its order made her notice of appeal premature rather than late, and a premature notice of appeal does not deprive this Court of jurisdiction, provided that the appealable order is subsequently signed, as it was here. See Tex. R. App. P. 27.1(a) ("In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal."); Fusion Indus., LLC v. Edgardo Madrid & Assocs., LLC, 624 S.W.3d 843, 849 (Tex. App.-El Paso 2021, no pet.) ("[I]n lieu of dismissal, we may treat a case that is appealed before the judgment is final as a prematurely filed appeal and permit the defect to be cured.").

Nor are we deprived of jurisdiction merely because Mother failed to include in her notice of appeal the correct date or full title of the order that she was appealing. It is clear from the totality of the record before us that Mother was appealing the district court's ruling, and to conclude otherwise would be to "elevate form over substance," which we will not do. See Higgins v. Randall Cnty. Sheriff's Off., 257 S.W.3d 684, 688 (Tex. 2008) (stating that Rules of Appellate Procedure are to be interpreted "liberally in favor of preserving appellate rights"); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (declining to "elevate form over substance" when determining whether appellant timely filed notice of appeal); Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989) (explaining that "the factor which determines whether jurisdiction has been conferred on the appellate court is not the form or substance of the [notice] but whether the [notice] 'was filed in a bona fide attempt to invoke appellate court jurisdiction'" (quoting United Ass'n of Journeymen & Apprentices v. Borden, 328 S.W.2d 739, 741 (1959))); cf. City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (holding that City's notation of incorrect cause number on its notice of appeal did not defeat the jurisdiction of the court of appeals as "there [was] no suggestion of confusion regarding the judgment from which the City sought appeal"); Garcia v. Rodriguez, No. 08-02-00379-CV, 2003 WL 21106619, at *2 (Tex. App.-El Paso May 15, 2003, no pet.) (mem. op. on motion) (concluding that typographical error on notice of appeal did not deprive appellate court of jurisdiction because order being appealed was "clear from the clerk's record" and declining to require appellant to amend notice of appeal because doing so "would serve no useful purpose").

We conclude that we have jurisdiction over this appeal.

Automatic Dismissal Date

In her first issue, Mother argues that the district court's order is void because the final hearing did not commence before the automatic dismissal date, thereby divesting the district court of jurisdiction over the case. We disagree.

In cases where the Department requests termination of parental rights or conservatorship of a child, the Family Code requires the court to begin trial within one year of appointing the Department as temporary managing conservator of the child. Tex. Fam. Code § 263.401(a). The trial court may extend the deadline once for 180 days upon finding 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 trial court grants an extension under subsection (b) but fails to commence the trial on the merits before the dismissal date, "the court's jurisdiction over the suit is terminated and the suit is automatically dismissed without a court order." Id. § 263.401(c); see In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021).

However in response to the COVID-19 pandemic, the Supreme Court of Texas permitted trial courts to suspend the deadlines and procedures in Section 263.401. See, e.g., First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265 (Tex. 2020) (effective March 13, 2020) (providing that courts may "[m]odify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order"); Third Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 266, 267 (Tex. 2020) (effective March 19, 2020) (clarifying that authorization to modify or suspend deadlines and procedures "applies to all proceedings under Subtitle E, Title 5, of the Family Code, and specifically, to the deadlines in Section 263.401"). Additionally, as the COVID-19 pandemic continued through 2020 and 2021, the Supreme Court authorized additional extensions of the automatic dismissal date, which had the effect of permitting the trial court to continue extending the dismissal date with each successive Supreme Court order.^[2] See E.N. v. Texas Dep't of Fam. & Protective Servs., No. 03-21-00014-CV, 2021 WL 2460625, at *5 (Tex. App.-Austin June 17, 2021, no pet.) (mem. op.) (explaining that successive emergency COVID-19 orders "would theoretically have allowed the district court to extend the case indefinitely by granting an extension under each successive order" so long as "the Supreme Court would continue to authorize additional extensions").

Beginning with the Eighteenth Emergency Order, the trial court was required to comply with the requirements of Section 263.401(b) before...