      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-16-00065-CV



                                        P. R. M., Appellant

                                                  v.

                 Texas Department of Family and Protective Services, Appellee


    FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
         NO. 42,519, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


                P.R.M. appeals from the trial court’s order granting the plea to the jurisdiction filed

by the Texas Department of Family and Protective Services in P.R.M.’s suit requesting managing

conservatorship of her two minor grandchildren, E.K. and S.K.1 In two issues, P.R.M. contends

that the trial court erred in granting the Department’s plea to the jurisdiction. We will affirm the

trial court’s order.


                                         BACKGROUND

                The Department previously brought suit to terminate the parental rights of K.K. and

D.K., the children’s parents, and placed the children in a foster home. On March 20, 2015, the trial

court in that proceeding held a termination hearing and made an oral pronouncement terminating


        1
        To protect the privacy of the parties, we refer to the children, their parents, and their
grandmother by their initials. See Tex. Fam. Code § 109.002(d).
the parental rights of K.K. and D.K. On May 1, 2015, the court signed an order stating that the court

was terminating the parental rights of K.K. and D.K. and appointing the Department permanent

managing conservator of the children.

                On July 16, 2015, P.R.M. filed a petition requesting managing conservatorship of

the children. The petition alleges that P.R.M. has standing to bring this suit on two grounds. First,

P.R.M. alleges that the children’s present circumstances would significantly impair their physical

health or emotional development. See Tex. Fam. Code § 102.004(a)(1) (“[A] grandparent . . . may

file an original suit requesting managing conservatorship if there is satisfactory proof to the court

that: (1) the order requested is necessary because the child’s present circumstances would significantly

impair the child’s physical health or emotional development . . . .”). Second, P.R.M. alleges that

both of the children’s parents consented to P.R.M.’s suit prior to having their parental rights

terminated. See id. § 102.004(a)(2) (“[A] grandparent . . . may file an original suit requesting

managing conservatorship if there is satisfactory proof to the court that: (2) both parents, the

surviving parent, or the managing conservator or custodian either filed the petition or consented to

the suit.”).

                The Department filed a plea to the jurisdiction, and the trial court held a hearing on

the plea. The Department argued that P.R.M. lacks standing to bring this suit because: (1) she filed

suit more than 90 days after the trial court terminated the parents’ rights, see id. § 102.006(c)

(providing that grandparent may not file suit requesting managing conservatorship after parental

rights have been terminated unless grandparent files suit within 90 days of termination); (2) she

failed to provide satisfactory proof that the children’s present circumstances would significantly



                                                   2
impair their health or emotional development, see id. § 102.004(a)(1); and (3) she failed to provide

satisfactory proof that both parents consented to her suit, see id. § 102.004(a)(2). After holding a

hearing, the trial court granted the Department’s plea to the jurisdiction and dismissed P.R.M.’s suit.

This appeal followed.2


                                           DISCUSSION

               In her first issue, P.R.M. contends that the trial court erred in concluding that she

failed to establish standing under Texas Family Code section 102.004(a)(1).3

               The Texas Family Code grants standing to grandparents to file suit requesting

managing conservatorship of children when specified conditions are met. See id. § 102.004. To

establish standing, there must be “satisfactory proof to the court” that one of the following is true:

“(1) the order requested is necessary because the child’s present circumstances would significantly

impair the child’s physical health or emotional development; or (2) both parents, the surviving

parent, or the managing conservator or custodian either filed the petition or consented to the suit.”

Id. § 102.004(a). However, the statute also provides that a grandparent may not file such a suit after

“the parent-child relationship between the child and every living parent of the child has been

terminated,” see id. § 102.006(a)(3), unless the grandparent files suit within 90 days of the date that

the parents’ rights were terminated. See id. § 102.006(c). Therefore, in reviewing whether the


       2
           The trial court’s subject-matter jurisdiction may be challenged through a plea to the
jurisdiction. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004);
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject-matter
jurisdiction is a question of law we review de novo. Miranda, 133 S.W.3d at 226.
       3
         On appeal, P.R.M. does not challenge the trial court’s conclusion that she failed to establish
standing under section 102.004(a)(2).

                                                  3
Family Code grants P.R.M. standing to bring this suit requesting managing conservatorship of

E.K. and S.K., we must first decide whether P.R.M. filed suit within 90 days of the date the parents’

rights were terminated.

               The record before us includes a written order from the trial court purportedly

terminating the parents’ rights that was signed on May 1, 2015. P.R.M. filed suit on July 16, 2015,

less than 90 days later. Nevertheless, the Department argues that P.R.M.’s suit was untimely because

the trial court actually terminated the parents’ rights on March 20, 2015 (more than 90 days before

July 16), when it announced in open court that it was terminating the parents’ rights. According to

the Department, this oral pronouncement was the effective date of termination, and the written

order merely memorialized the trial court’s previously rendered decision.

               The trial court in this suit agreed with the Department and made the following

findings of fact: (1) “On March 20, 2015, this Court held a final hearing and entered a final order

terminating the rights of parents [K.K.] and [D.K.] with regard to the children E.K. and S.K., while

appointing the Department as permanent managing conservator of the children.”; and (2) “On May

1, 2015, this Court signed a written judgment memorializing the orders issued at the final hearing

March 20, 2015.” P.R.M. has not directly challenged these findings on appeal. Therefore, we will

take the court’s findings as true if they are supported by the record. See Tenaska Energy, Inc. v.

Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014) (“We defer to unchallenged

findings of fact that are supported by some evidence.”); Wiese v. AlBakry, No. 03-14-00799-CV,

2016 WL 3136874, at *3 (Tex. App.—Austin June 1, 2016, no. pet. h.) (mem. op.) (“Unchallenged

findings of fact are binding on an appellate court unless the contrary is established as a matter of

law or there is no evidence to support the finding.”).

                                                 4
               The record before us contains an affidavit of a representative of the Department that

avers the following: “The Department was thereafter appointed the children’s permanent managing

conservator on or about March 20, 2015, with the exclusive right to designate the children’s primary

residence.” Moreover, although the reporter’s record of the March 20 termination hearing is not in

the record in this appeal, it was a part of the record before this Court in D.K.’s appeal of the

termination order. See D. K. v. Texas Dep’t of Family & Protective Servs., No. 03-15-000257-CV,

2015 WL 4999014 (Tex. App.—Austin Aug. 21, 2015, no pet.) (mem. op.). We may take judicial

notice of our own records. See Tex. R. Evid. 201(c)(1), (d); Bahar v. Lyon Fin. Servs., Inc.,

330 S.W.3d 379, 385 n.1 (Tex. App.—Austin 2010, pet. denied) (taking judicial notice of

order included in record of related appeal). Accordingly, we take judicial notice of the reporter’s

record of the March 20 termination hearing contained in the record of appellate cause

number 03-15-000257-CV. At the conclusion of that hearing, the trial court announced the following:


       And the Court’s going to find by clear and convincing evidence, it’s in the best
       interest of the children of this case, [E.K. and S.K.], that the parent/child relationship,
       which exists between the children and their mother is to be and is here by [sic]
       terminated.

       ***

       The Court’s further going to find by clear and convincing evidence that the
       parent/child relationship which exists between [E.K. and S.K.] and their father is
       hereby terminated.

       The department is appointed the permanent managing conservator.


               When a trial court announces in open court that a parent’s rights are terminated, the

termination is effective immediately, and the written order signed later by the trial court merely

                                                   5
memorializes the termination. See Tex. Fam. Code § 101.026 (“‘Render’ means the pronouncement

by a judge of the court’s ruling on a matter. The pronouncement may be made orally in the presence

of the court reporter or in writing, including on the court’s docket sheet or by a separate written

instrument.”) (emphasis added); In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 644

(Tex. 2009) (“We agree that the trial court rendered a final order on July 10 when it orally

pronounced the termination of K.W.’s parental rights.”); In Interest of E.G., No. 14-14-00967-CV,

2016 WL 1128137, at *2 (Tex. App.—Houston [14th Dist.] Mar. 22, 2016, no pet.) (mem. op.) (“A

trial court’s oral pronouncement of its decision terminating a parent-child relationship constitutes

the rendition of a final judgment. In the case of an oral rendition, the judgment is effective

immediately, and the signing and entry of the judgment are only ministerial acts.”) (citations omitted).

We conclude that the trial court’s use of the present tense, “is hereby terminated,” shows an intent

to terminate K.K.’s and D.K.’s parental rights immediately. Therefore, we conclude that the trial

court rendered judgment terminating K.K.’s and D.K.’s parental rights at the March 20 hearing.

                Given the trial court’s unchallenged finding in this case that the parents’ rights were

terminated on March 20, the Department’s affidavit that it was appointed the permanent managing

conservator on or about March 20, and the reporter’s record showing that the trial court terminated

the parents’ rights on March 20, we conclude that the parents’ rights were terminated on March 20,

2015. Therefore, because P.R.M. did not file her petition within 90 days of that date, the Family

Code deprives her of standing to bring this suit. See Tex. Fam. Code § 102.006(a), (c). Accordingly,

we conclude that the trial court did not err in granting the Department’s plea to the jurisdiction, and

we overrule P.R.M.’s first issue.



                                                   6
                In her second issue, P.R.M. asserts a “due process liberty interest in the care, custody,

and control of [her] grandchildren” and challenges the constitutionality of portions of the Texas

Family Code. However, P.R.M. has not preserved these arguments because she failed to present

them to the trial court. See Tex. R. App. P. 33.1(a); In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)

(“Both we and the United States Supreme Court have held that constitutional error was waived in

comparable circumstances . . . . Accordingly, we hold that the due process argument Duenas

raises here was not preserved below.”); In re Rocher, No. 14-15-00462-CV, 2016 WL 4131626,

at *2 (Tex. App.—Houston [14th Dist.] Aug. 2, 2016, no. pet. h.) (mem. op.) (holding appellant

waived constitutional complaint); Middleton v. Texas Dep’t of Protective & Regulatory Servs.,

No. 03-03-00766-CV, 2005 WL 1115957, at *11 (Tex. App.—Austin May 12, 2005, pet. denied)

(mem. op.) (“‘Without proper preservation, even constitutional error may be waived.’”) (quoting

Harris v. State, 125 S.W.3d 45, 48 (Tex. App.—Austin 2003, pet. ref’d, untimely filed)). Accordingly,

we overrule P.R.M.’s second issue.4


                                           CONCLUSION

                We affirm the trial court’s order granting the Department’s plea to the jurisdiction.




       4
           In her appellate brief, P.R.M. cites Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.
1990) for the proposition that “A due process claim can be raised for the first time on appeal.” We
conclude that Briggs offers no support for that proposition. To the contrary, the court in Briggs held
“that in failing to object at trial, appellant waived any claim that admission of the videotape violated
his rights to confrontation and due process/due course of law.” Id.

                                                   7
                                           __________________________________________

                                           Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: August 26, 2016




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