In re Interest of K.S.

IN THE INTEREST OF K.S., A MINOR

NUMBER 13-19-00416-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

January 28, 2021

On appeal from the County Court at Law No. 5 of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Hinojosa

The Department of Family and Protective Services (the Department) filed a suit affecting the parent-child relationship (SAPCR) seeking to terminate the parental rights of appellant S.K. (Mother) to her minor child K.S. and to be named as K.S.'s managing conservator.¹ Mother appeals the trial court's final judgment, which appoints her the sole managing conservator of K.S. and awards possessory conservatorship to appellees R.S.and V.S., the child's maternal great-uncle and great-aunt, respectively.² In six issues, which we have reordered, Mother argues: (1) the trial court lacked jurisdiction to enter a final order; (2) appellees' petition in intervention should be dismissed because they lacked standing; (3) the case should be dismissed because respondent "unknown father" was not served with citation; (4) the trial court abused its discretion in signing an emergency removal order because the Department's removal affidavit was deficient; (5) the adversary hearing was not timely held in violation of Mother's due process rights; and (6) the trial court erred in imposing a geographic restriction on Mother's right to designate the child's primary residence.

K.S., through her attorney ad litem, also appeals the trial court's judgment. In three issues, which we treat as two, K.S. argues that: (1) the trial court was without jurisdiction to enter the final order; and (2) the trial court abused its discretion by ignoring Mother's completion of her service plan. We reverse and render in part and affirm in part.

I. BACKGROUND

On May 9, 2017, the Department filed an original SAPCR supported by a removal affidavit. The affiant, a Department caseworker, testified that the Department took custody of twenty-month-old K.S. the previous day because Mother was in the Nueces County Jail on charges of possession of a controlled substance and had left K.S. in the care of a friend with a history of drug use and criminal behavior. According to the affiant, the Department took K.S. to Driscoll Children's Hospital in Corpus Christi, Texas, where laboratory tests indicated that K.S. was exposed to amphetamines while in the care ofMother's friend. The trial court signed an order for protection of a child in an emergency which appointed the Department as the temporary managing conservator of K.S. and scheduled an adversary hearing to occur on May 22, 2017. On that date, the trial court ordered that K.S. be placed with appellees.

The adversary hearing commenced as scheduled but was recessed until June 6, 2017. Following the recessed hearing, the trial court signed an order maintaining the Department as K.S.'s temporary managing conservator and requiring Mother to comply with a family service plan signed by Mother and the Department.

Appellees filed a "Motion Seeking Intervention" on October 23, 2017. In their most recent pleading, filed on October 3, 2018, appellees requested to be named joint managing conservators of K.S. or, in the alternative, to be named possessory conservators.

On May 24, 2018, the trial court signed an order retaining the suit on the trial court's docket and extending the statutory dismissal deadline from May 14, 2018, to October 7, 2018. See TEX. FAM. CODE ANN. § 263.401 ("Dismissal After One Year; New Trials; Extension"). On August 9, 2018, the trial court ordered that K.S. be returned to the care of Mother while the Department retained temporary managing conservatorship. See id. § 263.403 ("Monitored Return of Child to Parent"). The trial court did not further extend the dismissal date.

The case proceeded to a final hearing on January 30, 2019, and February 27, 2019, during which the Department recommended that the trial court award sole managing conservatorship to Mother, who had maintained her sobriety and hadsuccessfully completed her court-ordered services. Appellees requested to be appointed joint managing conservators or, in the alternative, possessory conservators.

Evonne Flores, a Department caseworker, testified at the hearing that Mother had been drug free since September 2017. Flores stated that Mother completed her court-ordered services, including counseling and drug rehabilitation. According to Flores, Mother currently provided K.S. with a positive home environment. Flores stated that Mother had a job and transportation. Flores observed that K.S. has been very happy since being returned to Mother's care. Flores stated that Mother's case was one of the "very few successful cases" she has worked on for the Department. Flores did not believe Mother would prevent appellees from seeing K.S. Flores stated that Mother previously accommodated appellees' requests to have visitation outside of the court-ordered schedule. Flores noted that Mother had been open to having appellees be a part of K.S.'s life outside of a court-ordered relationship.

Haitham Jifi-Bahlool, M.D., testified that Mother had been his patient since 2014. During that time, Dr. Jifi-Bahlool prescribed medication for pain management. Dr. Jifi-Bahlool acknowledged that Mother may have been prescribed pain medication during the early part of Mother's pregnancy with K.S. However, Dr. Jifi-Bahlool agreed with counsel's statement that K.S. did not test positive for any harmful narcotics at birth.

V.S. testified that she and R.S. took care of K.S. from May 22, 2017 through August 9, 2018, when she was returned to Mother's care. V.S. testified that K.S. was "in pretty bad shape emotionally" when she came into her care after being away from Mother for a month. V.S. stated that K.S. received play therapy to help her with attachment disorder,which "helped [K.S.] a lot." V.S. testified that she and Mother "work very well together most of the time."

At the conclusion of the hearing, the trial court took the matter under advisement. On May 31, 2019, the trial court signed a final order appointing Mother as the permanent managing conservator of K.S. The trial court appointed appellees as possessory conservators. The trial court granted appellees' request to restrict Mother's right to designate the child's primary residence to Nueces County, Texas. Upon the Department's request, the trial court issued findings of fact and conclusions of law. The trial court denied motions for new trial filed by Mother and the Department. This appeal followed.

II. JURISDICTION

By her first issue, Mother argues that the trial court lost jurisdiction by operation of law because it failed to commence a trial on the merits within the statutory deadline. Mother maintains that the trial court's final order is void as a result. K.S. presents the same argument in her first issue.

An appellate court does not have jurisdiction to address the merits of appeals from void orders. Freedom Commc'ns., Inc. v. Coronado, 372 S.W.3d 621, 623-24 (Tex. 2012). In such a case, the appellate court must declare the orders void and dismiss the appeal. See State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Section 263.401³ of the family code provides that the Department's lawsuit requestingtermination of parental rights must be dismissed on the first Monday after the first anniversary of the date the court rendered the first temporary order naming the Department as temporary managing conservator unless the court has commenced a trial on the merits or granted a one-time extension under subsection (b). See TEX. FAM. CODE ANN. § 263.401.

To be entitled to dismissal, a party to a termination proceeding must file a motion to dismiss before the trial on the merits commences. See id. § 263.402(b). If a party fails to make a timely motion to dismiss, then the party "waives the right to object to the court's failure to dismiss the suit." Id. The statutory dismissal deadline applicable to the present case is not jurisdictional in nature.⁴ In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009).

Here, the trial on the merits was held after the extended statutory dismissal deadline. However, no party filed a motion to dismiss in the trial court. See TEX. FAM. CODE ANN. § 263.402(b); In re Dep't of Family & Protective Servs., 273 S.W.3d at 642. Having failed to do so, Mother and K.S. have waived error concerning the trial court's failure to dismiss the suit. See TEX. FAM. CODE ANN. § 263.402(b); In re Dep't of Family & Protective Servs., 273 S.W.3d at 642. We overrule both Mother and K.S.'s first issue.

III. STANDING

In her second issue, Mother argues that appellees lacked standing to intervene.

A. Standard of Review & Applicable Law

A party seeking conservatorship of a child must have standing to seek such relief. In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.—San Antonio 2004, no pet.). As a general rule, an individual's standing to intervene is commensurate with that individual's standing to file an original lawsuit. Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet.). "Standing is implicit in the concept of subject matter jurisdiction." Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because "[s]ubject matter jurisdiction is essential to the authority of a court to decide a case," a party's lack of standing deprives the court of subject matter jurisdiction and renders any subsequent trial court action void. Id.; In re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). Standing cannot be conferred by consent or waiver and may be raised for the first time on appeal. In re A.C.F.H., 373 S.W.3d 148, 150 (Tex. App.—San Antonio 2012, no pet.). A party's standing to seek relief is a question of law we review de novo. Tex. Dep't of Transp. v. City of...