




Affirmed and Substituted Opinion filed April 10, 2007







Affirmed and Substituted Opinion filed April 10, 2007.
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-05-01216-CV
_______________
 
 
In the Interest of J.R. and B.R.
 
 
                                                                                                                                               

On Appeal from 314th District Court
Harris County, Texas
Trial Court Cause No. 02‑07575J
                                                                                                                                               

 
S U B S T I T U T E D   O P I N I O N
 
C.M.=s motion for rehearing is overruled,
our opinion issued in this case on January 4, 2007 is withdrawn, and the
following opinion is issued in its place.
C.M.[1]
appeals the trial court=s Order Modifying Order of Termination Pursuant to Judgment
of Appellate Court (the Aorder@) on the ground that it fails to comply with this Court=s mandate (the Amandate@) from the previous appeal in this
case because the trial court did not hold further proceedings before entering
it.  We affirm.




In 2002, the Department of Family and
Protective Services (ADFPS@) removed C.M.=s two children, J.R. and B.R., from
her, and sought, as relevant to this appeal, to terminate C.M.=s parental rights and to be appointed
sole managing conservator of the two children.  In 2004, following trial, the
trial court entered an order terminating C.M.=s parental rights and naming DFPS
sole managing conservator for both children.  In 2005, this Court issued an
opinion: (1) reversing the termination of C.M.=s parental rights; (2) neither
affirming nor reversing the judgment appointing DFPS conservator (because C.M.
did not challenge it on appeal);  and (3) remanding the case to the trial court
for further proceedings consistent with the opinion.  See In re J.R.,
171 S.W.3d 558, 579 (Tex. App.CHouston [14th Dist.] 2005, no pet.).[2]
On remand, C.M. filed two motions
with the trial court seeking to dismiss the case or to modify the trial court=s previous orders to grant her access
to the children, both of which motions were denied after hearings.  The trial
court then entered the order (before our mandate issued), which provides in
pertinent part:
IT IS ORDERED that this Court VACATES Section 9 of the AOrder of Termination@ signed by this court on April 6, 2004, attached herein as Exhibit A,
[hereinafter AOrder of Termination@] which provides as follows:
9. 
Termination of Respondent Mother [C.M.]=s
PARENTAL RIGHTS
*          *          *




9.3       IT IS THEREFORE ORDERED that the parent-child relationship
between [C.M.] and the children [J.R.] AND [B.R.], the subject of this suit is
finally and forever terminated.
IT IS FURTHER, ORDERED, that this court modifies its prior AOrder of Termination,@ to deny the request of Department of Family & Protective Services
to terminate her parental rights, and, in this regard, it is ORDERED that this
court=s AOrder of
Termination@ be modified with the following Section 9, in place of
the vacated section, to read as follows:
9.         Termination of the parental rights of [C.M.] is hereby
DENIED.
IT IS FURTHER ORDERED that no other provisions in the AOrder of Termination@ are modified by this Order, and, in this regard, the request of [C.M.]
to dismiss or modify this court=s prior AOrder of Termination@ on the basis of the Appellate Court=s
judgment to name her as a joint or sole managing conservator of the children,
[J.R.] and [B.R.] is DENIED.
The order thus removed from the
previous judgment the portion reversed by this Court, affirmatively denied that
relief, and left the remainder of that judgment intact.
C.M.=s sole issue on appeal asserts that
the trial court erred in entering the order without holding further proceedings
to determine her status as a conservator and her rights, powers and duties, and
possession of and access to her children, which she contends was required by
our mandate, which provides:
We have inspected the record and find
the trial court erred in terminating the parent-child relationship between
appellant [C.M.] and her children J.R. and B.R.  We therefore order that the
portions of the judgment that terminate the parent-child relationship between
appellant [C.M.] and her children J.R. and B.R. are REVERSED and RENDER
judgment in part that the TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
take nothing as to its request that the parent-child relationship between
appellant [C.M.] and her children J.R. and B.R. be terminated.  We order that
the remainder of the trial court=s judgment, except those portions
that deal with [the children=s father], be severed and REMANDED for further proceedings in
accordance with this court=s opinion.




            C.M. contends that
further proceedings were required by our mandate because, otherwise, this Court
could have simply rendered the new judgment the trial court ordered, making a
remand unnecessary.  As DFPS acknowledges, some further proceedings will be required,
such as periodic placement review hearings.  See Tex. Fam. Code Ann. '' 263.501(a), 263.503 (Vernon 2002).
C.M. argues, however, that, upon this
court=s reversal of her parental
termination, she thereby regained full status as a parent, and the trial court
was thereby required by law to conduct further proceedings to either appoint
her as a possessory conservator or make a specific finding that such an
appointment was not in the child=s best interest and that her
possession or access would endanger the welfare of the child.[3] 
We disagree.
Nothing in our prior opinion or
mandate: (1) required the trial court to vacate or modify any portions of its
prior judgment other than the termination; (2) restrained the trial court from
correcting its prior judgment to conform with our decision before holding any
further proceedings; or (3) required the trial court to take any other
particular further action, or hold any particular further proceedings before
entering the order.  In addition, C.M.=s position would treat our prior
judgment as if it had reversed and remanded the conservatorship finding when it
instead did precisely the opposite.[4]




Because neither the trial court=s appointment of DFPS as sole
managing conservator, nor its conclusion of law that such appointment was in
the children=s best interest, was challenged or overturned in our 2005 opinion, each
remained in effect on remand subject to modification, which C.M. has not
sought.[5]  Because C.M.=s issue therefore fails to establish
that the trial court=s entry of the order without litigating her rights as a
possessory conservator was improper, it is overruled, and the judgment of the
trial court is affirmed.
 
 
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered and Substitute
Opinion filed April 10, 2007.
Panel consists of Justices Anderson,
Edelman, and Frost.




[1]           To protect the privacy of the parties in
this case, we identify them only by initials.  See Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002).


[2]           Our prior opinion states, in
part:
[W]e reverse the trial court=s judgment to the extent it
terminates [C.M.]=s parental rights as to [J.R.] and [B.R.], and we render
judgment in part that the [DFPS] take nothing as to termination of [C.M.]=s parental rights. [C.M.] has not
challenged on appeal the trial court=s appointment of the [DFPS] as sole
managing conservator of [J.R.] and [B.R.], and we do not reverse the trial
court=s judgment in this regard.  We remand
this case to the trial court for further proceedings consistent with this
opinion.
In re J.R., 171 S.W.3d at 579.


[3]           Generally, if a parent is not appointed as
a sole or joint managing conservator, he or she must be named a possessory
conservator unless the trial court makes a specific finding that such an
appointment would not be in the best interest of the child or that parental
possession would endanger the child=s
physical or emotional welfare.  Tex.
Fam. Code Ann. ' 153.191 (Vernon 2002).


[4]           The First Court of Appeals has issued at
least one opinion holding, as C.M. contends, that where a challenge to a
parental termination is sustained, the appointment of DFPS as sole managing
conservator must also be reversed, even though unchallenged.  See Colbert v.
Dep=t of Family & Protective Servs.,  __ S.W.3d __, __ (Tex. App.CHouston [1st. Dist] 2006, no. pet.).  We
disagree with that holding and agree instead with the dissent in that case that
where a parent fails to challenge and overturn a trial court=s conservatorship decision, his or her only recourse
is to seek a modification.  See id. at __ (Jennings, J., dissenting).


[5]           See Tex. Fam. Code Ann. '
156.002(a) (Vernon 2002).  Appellant contends that she lacks standing to file a
motion to modify because she is not a conservator.  However, because section
156.002(a) allows a motion to modify to be filed by any party affected by the
order to be modified, it is not apparent how appellant would lack such
standing.  See id.  She also complains that she would not be entitled to
court-appointed counsel in a modification proceeding, as she was in the
termination proceeding initiated by the State.  See id. ' 107.013(a)(1), (c) (Vernon Supp. 2006).  To whatever
extent that is correct, it is a choice that has been made by the Legislature,
and it is not within our province to circumvent by reversing a decision of the
trial court where no error has been shown.  See, e.g., In re Tex. Dep=t of Family & Protective Servs., 210 S.W.3d 609, 614 (Tex. 2006) (AIt is not the Court=s
task to choose between competing policies addressed by legislative drafting.@).


