In re Interest of J.S.

670 S.W.3d 591

In the INTEREST OF J.S., a Child

No. 22-0420

Supreme Court of Texas.

Argued February 2, 2023

OPINION DELIVERED: June 16, 2023

Katherine Alice Snyder, Leslie Capace, Caroline Carow, Judd E. Stone II, Jerry Reyes, Allison Collins, Michael Burton, Amie Serrano, Cody Rutowski, Eric T. Tai, Rebecca L. Safavi, for Petitioner Texas Department of Family Protective Services.

Emily Dunn, Tina Montoya, for Respondent R., S.

K. Luther Tankersley, Cedar Hill, for Other interested party Shotwell, Jonathan.

Courtney Wortham, for Other interested party J.S., A Child.

Justice Busby delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Blacklock, Justice Bland, Justice Huddle, and Justice Young joined.

Every day, trial courts across Texas make findings in issuing their orders. Although all findings play an important role in ensuring that justice is delivered for the people of this State, few are as consequential as the findings at issue in this parental rights termination suit. The Legislature has directed courts to resolve these suits promptly or they lose jurisdiction automatically. The statute does permit courts to extend the automatic dismissal deadline, but a court "may not retain the suit ... unless" it "makes [two] findings": (1) "extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship" of the Department of Family and Protective Services, and (2) continuing that conservatorship "is in the best interest of the child." TEX. FAM. CODE § 263.401(b).

We hold that although this unique statute requires trial courts to make the "extraordinary circumstances" and "best interest" findings expressly (either in writing or on the record), that requirement is mandatory rather than jurisdictional. As a result, a parent whose rights have been terminated cannot complain for the first time on appeal that the trial court failed to make both findings when it granted an extension. Instead, the parent generally must object before the initial automatic dismissal deadline passes.

In this case, the trial court made only one of the required findings when it extended the dismissal deadline. Respondent Mother appealed a subsequent judgment terminating her parental rights and naming petitioner Department of Family and Protective Services as the child's permanent managing conservator. The court of appeals vacated that judgment sua sponte and dismissed the Department's termination suit, concluding that the trial court lost jurisdiction when it failed to make the other required finding by the initial dismissal deadline. Because the findings requirement is not jurisdictional and Mother did not timely object that the trial court granted the extension without a required finding, the court of appeals erred. Accordingly, we reverse its judgment of dismissal and remand for it to address Mother's appellate issues.

BACKGROUND

Two days after J.S. was born, the Department received a report of abuse or neglect by Mother, who had tested positive for methamphetamines at a prenatal visit. Although both Mother and J.S. tested negative at J.S.’s birth, both of J.S.’s parents have a significant history of drug use and had previously lost custody of another child due to their drug use.

In August 2019, J.S.’s parents were ordered to complete services through the Department, including substance abuse and psychological assessments, parenting classes, and random drug testing. From August 2019 until February 2020, J.S.’s parents refused to participate in those court-ordered services despite many reminders and encouragements to do so from the Department's caseworker. When the caseworker made an unannounced visit to the home in January 2020, she recorded numerous safety and sanitation problems.

On February 4, 2020, the Department filed its initial petition to remove J.S. from Mother and Father's custody, terminate their parental rights, and appoint the Department as J.S.’s permanent sole managing conservator. The trial court signed temporary orders the same day appointing the Department as temporary managing conservator, and the Department then took possession of J.S., who required urgent treatment for an ear infection. The day after coming into the Department's custody, J.S.’s hair follicle sample tested positive for methamphetamines and marijuana, with the methamphetamine test recording more than thirteen times the level needed to obtain a positive result. At the time of trial in June 2021, J.S. had been in a foster-to-adopt home for six months and had improved substantially since being removed from the custody of his parents.

The Department's termination suit was set for trial by remote appearance on February 8, 2021, which was also the initial deadline for either commencing trial or dismissing the suit under Section 263.401(a) of the Family Code. J.S.’s attorney ad litem did not appear. The trial court asked counsel for both parents to confirm that their clients had waived their jury trial rights. Both counsel denied that their clients had done so, but both admitted that they had not filed timely jury demands. The Department's counsel noted that the parties had been aware of the trial setting "since at least October, November."

After conferring with counsel briefly off the record, the trial court rescheduled the trial for June 14, 2021, without objection from any party. Before the February 8 proceeding adjourned, the court asked the parties if there was "anything else?" Counsel for the Department then asked the trial court to "find that it's in the child's best interests to remain in the care of the Department and extend the case so that it can be officially retained on the Court's docket" given the new orders and timeline. In doing so, the Department's counsel was requesting an extension under Section 263.401 of the Texas Family Code, which provides in relevant part:

(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 [department's] suit ... is terminated and the suit is automatically dismissed without a court order....

(b) 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).

TEX. FAM. CODE § 263.401 (emphases added).

Neither Mother's nor Father's counsel objected to the Department's request for an extension. In response, the trial court made an oral finding "that it's in the best interests 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." The court also set the new automatic dismissal date and ordered that all of its previous orders would remain in place. The court did not mention extraordinary circumstances.

Before concluding the February 8 proceeding, the trial court asked two more times if there was "anything else" the attorneys wanted to bring to its attention. Counsel for both Mother and Father answered no on the first occasion and were silent on the second.

On March 30, 2021, the trial court signed a written order providing in relevant part:

Pursuant to § 263.401(b), Texas Family Code, the Court finds that this Court has continuing jurisdiction of this suit, and 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. An order to retain the case on the Court's docket should be granted.

The case then proceeded to a jury trial from June 14 to 16, 2021. Attorneys for both Mother and Father participated, but neither Mother nor Father appeared or testified at trial.

The jury ultimately found against Mother and Father and in favor of the Department on all twelve questions submitted to it, returning the verdict on the same day the trial concluded. The trial court's final judgment, signed September 20, 2021, echoed the jury's findings and terminated Mother's and Father's parental rights to J.S. under paragraphs (D), (E), (N), (O), and (P) of Section 161.001(b)(1) of the Family Code. The judgment also appointed the Department as J.S.’s permanent managing conservator.

Only Mother appealed, challenging the legal and factual sufficiency of the evidence supporting the jury's findings, as well as some of the trial court's evidentiary rulings. The court of appeals requested sua sponte that the parties brief whether the trial court lost jurisdiction under Section 263.401(a) of the Family Code prior to trial and judgment.

The court of appeals concluded that the trial court's jurisdiction expired on February 8, 2021—the first Monday after the first...