









Dismissed and Opinion filed July 17, 2003








Dismissed and Opinion filed July 17, 2003.
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-02-00397-CV
____________
 
IN THE INTEREST OF
A.J.K., A CHILD
 

 
On Appeal from the
314th District Court
Harris County, Texas
Trial Court Cause
No. 00-06825J
 

 
O P I N I O N




In this suit affecting
the parent-child relationship, Tyson and Laura Kennedy appeal a final order
establishing conservators of the Kennedys’ child,
A.J.K.  The order appointed Laura Kennedy’s
parents, James and Katherine Hawthorne, joint managing conservators and gave
the Kennedys only joint possessory conservatorship of
A.J.K.  In two issues, the Kennedys contend the evidence was legally and factually
insufficient to support the jury’s finding that appointing them as joint managing
conservators would not be in A.J.K.=s
best interest because their appointment would significantly impair A.J.K.’s physical health or emotional development.  The Hawthornes and the other appellee, the
Texas Department of Protective and Regulatory Services (TDPRS), claim this
finding is supported by sufficient evidence. They also contend the Kennedys did not timely file their appeal and it should be
dismissed.  They claim this appeal is
subject to the rules for accelerated appeals as provided in Texas Family Code
section 263.405.  If controlling, this
issue would dispose of the appeal.
Undisputedly, the Kennedys did not meet the deadline for filing an
accelerated appeal.  But the Kennedys vigorously assert the accelerated appeal rules do
not apply to this case because the TDPRS did not request termination of
parental rights at trial.  The question
the Kennedys raise is this:  If a case filed by the TDPRS initially
involves a termination and a conservatorship request under subchapter 263 of
the Family Code, but termination ultimately is not sought and the case turns
into a custody fight with the parents, grandparents and the TDPRS as parties,
does section 263.405 still apply to require an accelerated appeal?  We hold that the accelerated appeal rule set
out in section 263.405 applies when (1) the TDPRS files a suit requesting
conservatorship of the child or termination of parental rights, and (2)
a final orderCas
defined by section 263.401Cis
entered.  Because this suit met those
requirements, we dismiss the appeal as being untimely filed.
I.          BACKGROUND
In September of 2000, the
TDPRS filed suit for emergency protection of A.J.K., and requested the court to
either terminate the parent-child relationship or, alternatively, appoint the
TDPRS or another party as managing conservator of the child.  Shortly thereafter, pursuant to a mediation
agreement between the Kennedys and the TDPRS, the
court appointed the TDPRS temporary sole managing conservator.  Several months later, the conservatorship
appointment and A.J.K.’s placement were reviewed, and
the court modified the terms of the prior mediation agreement but continued the
appointment of the TDPRS as temporary sole managing conservator.  On August 1, 2001, the court entered an order
extending the one-year dismissal deadline to November 26, 2001.[1]




A
trial before a jury, with the Kennedys, the
Hawthornes, and the TDPRS as parties, was concluded in September of 2001.  Upon the jury’s unanimous verdict, the court
rendered a final order on November 26 appointing A.J.K.’s
maternal grandparents, the Hawthornes, as her joint managing conservators; it
appointed the Kennedys as joint possessory
conservators.  The trial court signed a
final order on January 16, 2002.  The Kennedys filed a motion for new trial on February 15,
2002, and filed their notice of appeal on April 11, 2002.
II.        THE PARTIES’ CLAIMS
A.  The
TDPRS Claims ' 263.405 Applies to this Case.
 
The
Hawthornes and the TDPRS contend that the Kennedys’
notice of appeal is untimely because the appeal is governed by newly enacted
Texas Family Code section 263.405, which provides for accelerated appeals: 
An appeal of a
final order rendered under this subchapter is governed by the rules of the
supreme court for accelerated appeals in civil cases and the procedures
provided by this section.  The appellate
court shall render its final order or judgment with the least possible delay.
Tex. Fam. Code Ann. ' 263.405(a) (Vernon Supp.
2002).  This section further provides
that the filing of a motion for new trial does not extend the deadline for
filing a notice of appeal:
A motion for a new
trial, a request for findings of fact and conclusions of law, or any other post‑trial
motion in the trial court does not extend the deadline for filing a notice of
appeal under Rule 26.1(b), Texas Rules of Appellate Procedure, or the deadline for
filing an affidavit of indigence under Rule 20, Texas Rules of Appellate
Procedure.
Tex. Fam. Code Ann. ' 263.405(c).  Texas Rule of Appellate Procedure 26.1(b)
provides that a notice of appeal in an accelerated appeal must be filed within
20 days after the judgment or order is signed. 
The Hawthornes and the TDPRS point out that the Kennedys
followed the traditional appeal rules, filing a motion for new trial 30 days
after entry of the judgment to extend the deadline for filing their notice of
appeal and filing their notice of appeal 55 days later.  They claim that this notice of appeal, filed
85 days after the final judgment was signed, was untimely and the appeal must
be dismissed.  
B.  The Kennedys Claim That Section 263.405 Does Not Apply.
In
response, the Kennedys argue three points:  (1) section 263.405 applies only when the
TDPRS pursues termination of parental rights through trial, and if it abandons
its termination claim and custody remains the only issue, the rules for
accelerated appeals do not apply; (2) the trial court did not consider this a
parental termination case because it did not render its final order on or prior
to the statutory dismissal date as required in Texas Family Code section
263.401; and (3) dismissing this appeal on jurisdictional grounds would produce
an absurd result not favored in the law when the statute is ambiguous and the
case was not tried as a termination of parental rights case.  
C.  The
Central Issue in the Case.
None
of the parties disputes that the accelerated appeal provision applies in a
termination suit.  But here, the TDPRS
abandoned its request for termination, yet remained a party and apparently
focused its efforts on getting the Hawthornes custody.  Central to the Kennedys’
claim that section 263.405 does not apply is whether abandonment of the
termination claim took this caseCinitially
filed under subtitle ECout
of the subtitle, and transformed it into a “normal” custody case subject to the
normal appellate deadlines.  Answering
that issue will answer the first and third of the Kennedys’
points listed above.
The
Kennedy=s primary issueCthat section 263.405
applies only to cases in which termination of the parent-child relationship is
pursued through trialCappears
to be based on section 109.002(a) of the Family Code:




An appeal from a
final order rendered in a suit, when allowed under this section or under other
provisions of law, shall be as in civil cases generally.  An appeal in a suit in which termination
of the parent‑child relationship is in issue shall be given precedence
over other civil cases and shall be accelerated by the appellate courts.  The procedures for an accelerated appeal
under the Texas Rules of Appellate Procedure apply to an appeal in which the
termination of the parent‑child relationship is in issue.
Tex. Fam. Code Ann. ' 109.002(a) (emphasis
added).  Because all of the parties agree
that this case initially was subject to Chapter 263, we will begin our inquiry
by looking at that statute to determine if it still applies to this case.


III.       RULES FOR CONSTRUING A STATUTORY SECTION
In
construing a statutory section, the ultimate purpose is to discover the
legislature’s intent.  See Meritor Auto., Inc. v. Ruan
Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001). 
To help discover this intent, the Code Construction Act enumerates rules
of construction.  See Tex. Gov’t Code Ann.
' 311.002 (Vernon 1998)
(Act applies to codes and amendments enacted after 60th legislative session); see
also Tex. Gov=t Code Ann. ' 311.003 (“The rules
provided in this chapter are not exclusive but are meant to describe and
clarify common situations in order to guide the preparation and construction of
codes.”).
Section
311.023 of the Code Construction Act directs that courts may consider, among
other factors, the laws on the same or similar subjects.  See Tex.
Gov=t Code Ann. ' 311.023(3).  But, the Meritor
court cautioned that, if the meaning of the statutory language is
unambiguous, the exceptions are rare when its interpretation through the
factors listed in section 311.023 would deviate from the interpretation
supported by the plain meaning of the provision=s
words and terms.  Meritor,
44 S.W.3d at 89. 
IV.       CONSTRUING SECTION 263.405
A.  Section
263.405 Applies Even If a Termination Request is Dropped.




We
turn, then, to section 263.405.  But
before we take a detailed look at the language of the section, we think it
useful to look at the broader pictureCwhere
section 263.405 is located in the Family Code. 
Section 263.405 falls under subtitle E, entitled “Protection of the
Child.”  Subtitle E is in Title 5, called
“The Parent-Child Relationship and the Suit Affecting the Parent-Child
Relationship.”  Of the five titles in the
Family Code, only Title 5 contains legislation governing the parent-child
relationship and suits involving that relationship.[2]  Of the five subtitles in Title 5, only
subtitle E, which is the very last subtitle in the Family Code, speaks to the
role the TDPRS has in protecting children and the procedures it must follow
when it intervenes in the family to protect a child.  See Tex.
Fam. Code Ann. Chaps. 261B265.[3]  Chapter 263, of which section 263.405 is one
of many sections, deals very specifically with the review of children placed
under the care of the TDPRS, and subchapter ECwhich
contains sections 263.401B.405Cof Chapter 263 relates
solely to a final order for a child under the care of the TDPRS.  In short, then, subtitle ECwhich includes Chapter
263 and subchapter EChas
a role unique in the Family Code:  its
sole focus is the protection of the childCboth
from abuse by others and from the uncertainty caused when the TDPRS intervenes
in the family.  Subchapter E=s focus is even narrower;
it provides the framework by which a final order is entered and appealed.  An inverse pyramid chart of the relationships
among these titles, chapters, and sections looks like this:
   Title 5:    The Parent-Child Relationship and the Suit Affecting the Child
   Subtitle E:    Protection of the Child




   Chapter 263:      Review of Placement of Children under care
of DPRS
   Subchapter E:    Final Order for Child under Department Care
('' 263.401B405)
 
Knowing
where subchapter E falls in the Family Code and its unique role in the Code, we
turn to the plain language in section 263.405. 
See Bragg v. Edwards Acquifer Auth., 71
S.W.3d 729, 734 (Tex. 2002); see also Tex.
Gov’t Code Ann. '
311.011(a) (“[w]ords and phrases shall be read in
context and construed according to the rules of grammar and common usage.”).  It states that an appeal from a “final order”
that is “rendered under this subchapter” is governed by the rules for
accelerated appeals in civil cases.  This
language is very clear, especially when one considers the related sections in
subchapter 263.  
The
main purpose of section 263.401 is to set out a 12-month time-limitCplus one possible 180-day
extensionCwithin
which a court must finally dispose of a suit in which a child is in the care of
the TDPRS.  This time limit applies to
cases in which (1) the TDPRS has requested to be appointed conservator of the
child, or (2) the TDPRS has requested termination of the parent-child
relationship.  This case fell under
section 263.401 because the TDPRS requested that both options be considered.
The
“final order” referred to in section 263.405(a) is also defined in section
263.401.  The definition of “final order”
is important because a case must be dismissed if an order qualifying as a final
order is not entered within the stated time-frame.  The legislature chose to define “final order”
broadly; the definition encompasses just about allCif not allCof the orders a court
would enter if a child under the care of the TDPRS were before it.
An
order that qualifies as a final order under subchapter E does one of the
following:
(1)  requires that a child be returned to the
child=s parent;
(2)  names a relative of the child or another
person as the child=s managing conservator;
(3)  without terminating the parent‑child
relationship, appoints the department as the managing conservator of the child;
or




(4) terminates the parent‑child relationship
and appoints a relative of the child, another suitable person, or the
department as managing conservator of the child. 
Tex. Fam. Code Ann. ' 263.401(d).  Here, the case concluded with an order that
fell under one of the four categories in subsection 263.401(d):  It named a relative of the child as managing
conservator.  See Tex. Fam. Code Ann. ' 263.401(d)(2).  Clearly, this order qualified as a final
order. 
With
all of this information in hand, if we take a second look at section 263.405,
it seemsCundeniablyCto apply to this final
order.  
(a)  an appeal of a final order rendered under this
subchapter is governed by the rules of the supreme court for accelerated
appeals in civil cases and the procedures provided by this section.
 
Tex. Fam. Code Ann. ' 263.405(a).




As
we noted earlier, two suits fall under the purview of section 263.401 and
subchapter E:  A suit for termination of
parental rights and a suit requesting that the department be named as
conservator.  The TDPRS’s
pleading here contained both requests. 
Subchapter E does not require that only a termination request be made
before it will apply.  It requires either
of two requests: either a termination or a conservatorship request (although
the TDPRS may choose to plead both and did so here).  Because this suit started out as both a
termination and a custody request, and the TDPRS remained in the suitCdropping only the
termination requestCthis
was still a subchapter E suit subject to a subchapter E final order.[4]              To
sum up, this was a final order.  Clearly,
it was rendered under subchapter E. 
Clearly, it was governed by the rules for accelerated appeals in civil
cases and the procedures in section 263.405. 
As we discuss below, this conclusion makes sense from many
perspectives.  
B.  Reasons
Chapter 263’s Accelerated Appeal Should Apply Even Without Termination Request.
 
Several
reasons exist for applying the accelerated appeal rules to this case; they are
both policy-based and practical.
First,
if the underlying suit is subject to a time-limit within which it must be
disposed of by the court or dismissed, see Tex. Fam. Code Ann. ' 263.405(f)B(h), it is perfectly
reasonable to require an appeal to be taken within a short time period.  Allowing ordinary appellate timetables to
apply would defeat the purpose of the statuteCto
resolve these cases as quickly as feasible.




Second,
while a suit filed by the TDPRS is pending, the emotional impact on the family
unit is greatCwhether
termination or managing conservatorship is requestedCso there is no reason to
treat these two alternatives differently. 
Even when termination has not been requested, when a child is in the
care of the TDPRS, it is just as much in the child=s best interest that the
case be resolved as quickly as it is when termination is requested.  In both cases, the child is separated from
the parent(s).  Common sense says that a temporary
situation creates anxiety for the entire family unit, and none of the members
of the family unitCmost
especially the childCcan
fully adjust emotionally until the uncertainty is resolved.  The obvious goal is location of a permanent
home for the child as quickly as possible. 
The Legislature’s intent to further this goal has been recognized as one
of the express purposes behind the enactment of Chapter 263: “[l]andmark legislation mandating a basic one-year deadline for
lawsuits in which the State intervenes in a family was enacted in a[n] attempt
to urge placement of [a] child and not allow [the child] to languish in an
unresolved status.”  See Cynthia
Bryant & Charles G. Childress, Introductory Comment to Chapter 263,
Sampson & Tindall=s Texas Family Code Annotated
at 950.  Thus, because of the emotional
impact, whenever the TDPRS has intervened in the family unitCwhether or not it
requests terminationCthe
legislature has required prompt disposition, both at the trial level and at the
appellate level.
Third,
cases like thisCin
which the custody battle is not between two parents, but between the parents
and a relative, or the parents and the TDPRS, or the parents and another third
partyCare fundamentally
different than a custody battle between two parents.  At the conclusion of a typical custody
battle, one of the child=s
parents will be named managing conservator; but, at the conclusion of a custody
battle under Chapter 263, the managing conservator may not be the parent (as in
this case).  And, even if the parent is
named as managing conservator, the TDPRS (being a party to the suit) and the
relative or other third party who sought custody have the right to appeal the
appointment of the parent as managing conservator.  In this situation, it is in the best interest
of the child for the appeal to be accelerated, for the same reasons noted
earlier:  the faster the appeal is
concluded, the faster custody between the parent and a third party is resolved,
and the faster the uncertainty for all of them (child, parent and third party)
is resolved.
Finally,
having decided that the suit itself falls within Chapter 263, logically, we
should apply the appeal provision contained in that chapterC'
263.405Crather than a general
appeal provisionC' 109.002Ccontained in a completely
different chapter.  See Tex. Fam. Code Ann. '' 109.002, 263.405.  The rules of statutory construction support
our conclusion; when two statutory provisions arguably apply, the more specific
generally controls.  See Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000).  Our conclusion also provides a bright-line
test that eliminates uncertainty for litigants attempting to determine whether
the accelerated appeal rules apply to their case.




C.  The
Legislative History Is Inconclusive.
We
asked the parties to provide us the legislative history on subchapter E.  We have reviewed the limited information they
provided and find it inconclusive.
V.        CONSTRUING SECTION 109.002
A.  The
Plain Language of Section 109.002: Why It Does Not Control.
Although
we think our prior analysis makes it abundantly clear that section 263.405
applies to this case, we will address briefly the Kennedys’
claim that section 109.002 should apply anyway. 
As explained earlier, the Kennedys argue that,
under section 109.002(a), an appeal from a final order is “as in civil cases
generally” unless the suit is one in which termination of the parent-child
relationship is “in issue.”  See Tex. Fam. Code Ann. ' 109.002(a).  Because termination was not “in issue”
through trial, they contend that the rules for accelerated appeal do not apply.
Like
section 263.405, section 109.002 falls under “Title 5:  The Parent-Child Relationship and the Suit
Affecting the Parent-Child Relationship.” 
Unlike section 263.405, which falls under subtitle E, pertaining solely
to actions by the TDPRS, section 109.002 is in subtitle A, “General Provisions.”  Subtitle A pertains to suits brought by the
parents of a child, to suits the TDPRS has brought or joined, and to suits
brought by others.
As
noted earlier, rules of statutory construction require us to apply the more
specific statute rather than the more general. 
Auld, 34 S.W.3d at 901. 
Section 109.002 clearly is the more general statute.




In
addition, our holding will not render section 109.002=s language referring to
appeal of a termination case superfluous. 
Another chapter of the codeCChapter
161Crelates strictly to
termination of the parent-child relationship. 
See Tex. Fam. Code Ann.
'' 161.001B.211 (Vernon 2002).  It sets out the grounds for termination,
procedures for requesting termination, and lists other requirements and
procedures for various aspects of hearings and orders related to
termination.  But, Chapter 161 does not
expressly provide for an appeal of a termination order.[5]  Consequently, there is at least one reason,
apart from section 263.405, that section 109.002 specifically refers only to
termination:  it provides for accelerated
appeals from a termination order entered in Chapter 161.  And, there is no reason for it to refer to
non-termination cases in which an appeal may be accelerated, because subchapter
E takes care of those situations.
Finally,
even if section 109.002 did apply to subchapter E, our interpretation of
section 263.405 does not contradict section 109.002.  Section 109.002 does not exclude the
possibility that a final order, like the one entered here, may be
accelerated.  It merely makes it clear
that a final order terminating the parent-child relationship shall be
accelerated.
B.  No
Practical Reasons Section 109.002 Should Control.
When
we considered the consequences of requiring an accelerated appeal under section
263.405, we found many reasons for applying it to a case in which the TDPRS was
involved; we found many reasons why it made sense.  All of those reasonsCapplying the more
specific statute, subjecting the appeal to time deadlines because the
underlying suit is also subject to deadlines, quickly resolving the uncertainty
for the family, and finding a fundamental difference between a suit for custody
between two parents or relatives and a suit in which someone other than the
parents may secure custodyCmilitate
against interpreting section 109.002 to say that only termination final
orders are accelerated.  Simply put,
there are no practical reasons to adopt the Kennedys’
interpretation of sections 109.002 and 263.405, and we find no absurd results
that would ensue if we do not adopt their argument.


VI.       THE
TRIAL COURT FOLLOWED THE DEADLINES SET OUT IN SECTION 263.401.
 




The
Kennedys’ last claim is that sections 263.401 and 405
do not apply to this case because the trial court did not follow the time
deadlines contained in section 263.401. 
Without getting into the fallacies of this argument, we note only that
the trial court did follow the deadlines. 
One year after the intervention by the TDPRS, the trial court granted a
180-day extension and, on the jury=s
verdict, it rendered a final order on the 180th day of the extensionCNovember 26, 2001.  See Tex.
Fam. Code Ann. '
263.401(b)(3) (stating that if the court grants an extension, it must set a
final hearing so that it can render a final order or dismiss the suit on
or before the 180th day of the extension).
                                                                CONCLUSION
To
summarize, the provisions of subchapter 263 continue to apply to a suit in
which the TDPRS has intervened in the family unit and remains a party to the
suitCeven if the TDPRS does
not ultimately request termination of parental rightsCbecause this type of case
has the same issues as a termination case: 
the child has been taken from the parent, someone other than the parent
may be appointed the managing conservator, and the child’s emotional state has
been placed in jeopardy, in part because of the events leading up to the TDPRS’s
intervention, and in part because the child=s
future remains uncertain.
For
these reasons, we conclude that this case is subject to the accelerated appeal
provision contained in section 263.405. 
Because it was not filed within the time deadlines set out in that
section, the appeal is dismissed for lack of jurisdiction.
 
 
/s/        Wanda McKee Fowler
Justice
 
 
Judgment rendered and Opinion filed July
17, 2003.
Panel consists of Justices Fowler,
Edelman, and Frost.




[1]  Section
263.401 of the Family Code requires a trial court to dismiss a suit affecting
the parent-child relationship filed by the TDPRS within one year of the court=s initial order in the case, but also provides for one
180-day extension.  Tex. Fam. Code Ann. ' 263.401 (Vernon 2002).


[2]  One other
TitleCTitle 2Cinvolves
children, but its provisions are not applicable here.  Instead, it concerns (1) removal of
disabilities of minority, see Tex.
Fam. Code Ann. '' 31.001B.007;
(2) consent to treatment of a child by someone other than the parent, see
Tex. Fam. Code Ann. '' 32.001B.201;
(3) notice of abortion, see Tex.
Fam. Code Ann. '' 33.001B.011;
(4) parental liability for a child=s
conduct, see Tex. Fam. Code Ann.
'' 41.001B.003;
(5) liability for interference with possessory rights, see Tex. Fam. Code Ann. '' 42.001B.009;
and (6) change of name, see Tex.
Fam. Code Ann. '' 45.001B.005.


[3]  Presumably,
placing this subtitle last was on purpose, and it certainly makes sense.  Intervention by the TDPRS into the family is
a last resort, of sorts, taken only after ensuring that it is necessary.  Other sections in the Family Code also
contain references to the TDPRS and contemplate its involvement with the family
unitCTex. Fam. Code Ann. ' 151.131 (Vernon 2002) (presuming that a parent will
be appointed managing conservator (1) unless that would not be in the best
interest of the child, because it would significantly impair the child’s
well-being, or (2) family violence exists); Tex.
Fam. Code Ann. ' 151.005 (Vernon 2002) (authorizing the appointment of
a sole or joint managing conservator and listing those persons who may be
appointed a managing conservator, including approved agencies); Tex. Fam. Code Ann. ' 153.004 (Vernon 2002) (discussing how a history of
family violence will impact who is chosen as managing conservator of a child)Cbut nowhere else does the Family Code set forth the
details governing the TDPRS=s contact with the family unit and children.


[4]  At least one
family law commentator has concluded that section 263.405 requires an
accelerated appeal in a suit in which the TDPRS has intervened in the family
unit and remains a party to the suit:
 
This section
establishes specific post-trial procedures for prompt resolution of child
protection cases.  These cases are now
clearly subject to accelerated appeals under the Texas Rules of Appellate
Procedure, as provided by this section and by amendments to ' 109.002.  A notice of appeal must be filed within 20
days after the judgment is signed.  The
party seeking to appeal must reveal the points for appeal within 15 days after
the judgment is signed.  The trial court
must hold a hearing within 30 days after the judgment is signed to determine
whether: (1) a new trial should be granted; (2) the appellant is indigent; and,
(3) the appeal is frivolous.
 
Charles G.
Childress, Comment to Section 263.405, Sampson & Tindall=s Texas Family Code Annotated at 965 (August 2002).


[5]  Section
161.211 refers to direct or collateral attacksCas
opposed to appealsCon termination orders. 
Its purpose is to set time limits within which these attacks must be
made.  See Tex. Fam. Code Ann. '
161.211.  With limited exceptions, these
attacks must be made within six months.  See
id.


