Petition for Writ of Mandamus Denied and Opinion filed May 15, 2014.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-14-00228-CV



                              IN RE E.C., Relator


                        ORIGINAL PROCEEDING
                          WRIT OF MANDAMUS
                            309th District Court
                           Harris County, Texas
              Trial Court Cause Nos. 2008-39339 & 2007-20638

                                   OPINION

      On March 19, 2014, relator E.C. filed a petition for writ of mandamus in this
Court. See Tex. Gov’t Code Ann. §22.221 (West 2004); see also Tex. R. App. P.
52. In the petition, relator asks this Court to compel the Honorable Sheri Dean,
presiding judge of the 309th District Court of Harris County, to dismiss the Texas
Department of Family and Protective Services (the “Department”) from the
underlying suits affecting the parent-child relationship (“SAPCRs”). We deny the
petition.

                                     I. BACKGROUND

       Relator is the maternal grandmother of the two children involved in the
underlying SAPCRs. On October 4, 2011, the Department filed original motions
to modify and petitions for protection of a child, conservatorship, and termination
in a suit affecting the parent-child relationship in cause numbers 2007-20638 and
2008-39339.

       On October 10, 2011, the trial court signed an agreed order following an
adversary hearing, appointing the Department temporary managing conservator in
each case, and determined that the mandatory dismissal date for each case was
October 12, 2012, pursuant to the Texas Family Code. See Tex. Fam. Code Ann.
§ 263.401 (West 2014).

       Relator filed a petition in intervention on November 7, 2011, in cause
number 2007-20638, seeking to be appointed sole managing conservator of both
children, even though only one child was the subject of cause number 2007-20638.
Relator subsequently filed, on March 13, 2013, another petition in intervention in
cause number 2008-39339, seeking to be appointed the sole managing conservator
of the child subject to that suit.

       On August 30, 2012, the trial court signed orders retaining cause numbers
2007-20638 and 2008-39339 on the docket, and setting a dismissal date of April
15, 2013 for each case, “which is a date not later than the 180th day after the time

                                           2
prescribed by § 263.401(a) [of the Texas Family Code], unless a final order is
rendered by that date.” The orders further set a date for the next permanency
hearing for November 15, 2012.

       The cases were tried together before a jury, with trial commencing on March
14, 2013. The jury returned its verdicts on April 10, 2013; the jury found that
Mother’s parental rights should be terminated as to each child, and relator should
be appointed managing conservator for both children, rather than the Department.1
The trial court orally “accept[ed] and adopt[ed]” the jury’s verdicts.

       On June 28, 2013, the Department filed a motion for additional orders in
each case, requesting the suspension of visitation between relator and the children,
the discontinuation of harassing written and/or verbal communications from
relator,    and      the      completion         of   a      previously      court-ordered
psychosocial/psychological evaluation of relator.              On July 10, 2013, the
Department filed a motion for new trial on the issue of managing conservatorship
in both cases based on newly discovered evidence, and noticed a hearing for July
17, 2013. Relator moved to strike the hearing on the Department’s motions for
new trial on July 17, 2013, and moved to dismiss the Department from both suits
on July 18, 2013. The trial court, on July 18, 2013, denied relator’s motions to
dismiss and signed orders in both cases suspending relator’s visitation with the
children.


       1
        The trial court had already terminated Father’s parental rights to the child in cause
number 2008-39339 and the other Father’s parental rights to the child in cause number 2007-
20638.
                                             3
      On July 29, 2013, the trial court entered the orders modifying the prior
orders and decrees for termination. In those orders, Mother’s and each Father’s
parental rights were terminated, and relator was appointed sole managing
conservator, with the Department continuing as possessory conservator of the
children until they were relinquished to relator. However, on August 2, 2013, the
trial court entered orders granting new trials in each case as to managing
conservatorship, but not as to termination of parental rights, and reinstated the
Department as temporary managing conservator of the children.

      Relator filed a petition for writ of mandamus in this court. See In re E.C.,
No. 14-13-01139-CV, 2014 WL 465901 (Tex. App.—Houston [14th Dist.] Feb. 4,
2014, orig. proceeding) (mem. op.). Relator sought the same relief she seeks in
this current proceeding—that the Department be dismissed from the underlying
suits. Id. at *1. Specifically, relator argued that the Department was required to be
dismissed from the underlying suits pursuant to the statutory deadlines provided in
Section 263.401 of the Texas Family Code. Id. at *2. We concluded that the trial
court did not abuse its discretion by denying relator’s motions to dismiss because
they were not timely filed.     Id. at *2−3; see also Tex. Fam. Code Ann. §
263.402(b) (West 2014). We did not address the effects of the granting of the new
trials on the statutory dismissal date or the date for timely filing the motions to
dismiss because relator had not raised the issue in the trial court. See E.C., 2014
WL 465901, at *4. We denied relator’s petition and her subsequent motions for
rehearing and en banc reconsideration.



                                         4
       Thereafter, relator filed new motions to dismiss in the trial court, arguing
that granting the Department’s new trials on conservatorship allowed the
Department to avoid the statutory deadlines. On February 25, 2014, the trial court
denied relator’s motions to dismiss.2 The cases are set for trial on September 22,
2014. This mandamus followed.

                                       II. ANALYSIS

       Although relator raises the same issues she raised in her prior petition for
writ of mandamus, our analysis will focus on the effect of the new trials on the
statutory deadlines as to the specific facts of this case.

A.     Sections 263.401 and 263.402 of the Texas Family Code

       Section 263.401(a) of the Texas Family Code requires the dismissal of a
SAPCR filed by the Department requesting the termination of parental rights or
requesting that the Department be named managing conservator, “[u]nless the
court has commenced trial on the merits or granted an extension under Subsection
(b), on the first Monday after the anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator.”
Tex. Fam. Code Ann. § 263.401(a).

       Section 263.401(b) provides for a maximum 180-day extension to retain the
SAPCR on the court’s docket.              Id. § 263.401(b).        “Unless the court has

       2
         The trial court also held a permanency hearing on February 25, 2014, and ordered that
“No contact with grandmother, [E.C.], shall continue in effect until [E.C.] completes the court
ordered recommendation including but not limited to the psychological.” The trial court set the
next permanency hearing for May 15, 2014.
                                              5
commenced trial on the merits,” it may not retain the suit on its docket, “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.” Id.

      Finally, section 263.401(c) provides the court “shall dismiss the suit” if the
court granted an extension but does “not commence trial on the merits” before the
dismissal date with the 180-day extension. Id. § 263.401(c). Moreover, the court
may not grant any additional extensions that would extend the suit beyond the 180-
day extension. Id.

      A motion to dismiss is timely if the motion is made before the trial on the
merits commences. Tex. Fam. Code Ann. § 263.402(b). A party who fails to
timely make a motion to dismiss waives the right to object to the trial court’s
failure to dismiss the suit. Id.

B.    Relator’s Intervention Could Have Been Brought in a Separate Action

      Relator filed two virtually identical petitions in intervention. She asserted
that she had standing to intervene, and pleaded for conservatorship of the children
as follows:

      9.      Conservatorship

            It is in the best interest of the children that Intervenor be
      appointed sole managing conservator of the children. Further,
      appointment of a parents [sic] as sole managing conservators would
      not be in the best interest of the children because the appointment

                                          6
      would significantly impair the children’s physical health or emotional
      development.

      Under Texas Rule of Civil Procedure 60, “[a]ny party may intervene by
filing a pleading, subject to being stricken out by the court for sufficient cause on
the motion of any party.” Tex. R. Civ. P. 60. Upon filing of the petition, an
intervenor becomes a party to the suit for all purposes. In the Interest of D.D.M.,
116 S.W.3d 224, 231 (Tex. App.—Tyler 2003, no pet.).

      Relator’s intervention could have been brought in a separate action. See In
the Interest of A.C., No. 2-08-407-CV, 2009 WL 1815658, at *4−5 (Tex. App.—
Fort Worth June 25, 2009, no pet.) (mem. op.) (holding that the trial court did not
abuse its discretion in severing foster mother’s claims in her petition in
intervention and trying them separately from the Department’s claims because her
claims were not so interwoven with the termination suit that they could not be tried
separately).

C.   The Partial New Trial Did Not Disturb the Termination of the Parental
Rights
      The trial court’s grant of the partial new trial did not disturb the termination
of parental rights. A partial new trial may be granted when such part is clearly
separable without unfairness to the parties. Tex. R. Civ. P. 320. Granting a new
trial has the legal effect of vacating the original judgment and returning the case to
the trial docket as though there had been no previous trial or hearing. Markowitz v.
Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied). When a motion for new trial is granted, the original judgment is set aside
and the parties may proceed without prejudice from previous proceedings. Id.
                                          7
Thus, when the trial court grants a motion for new trial, the court essentially wipes
the slate clean and starts over. Wilkins v. Methodist Health Care Sys., 160 S.W.3d
559, 563 (Tex. 2005).

       Relator sought appointment as sole managing conservator of the children,
not the termination of Mother’s parental rights. No party moved to strike her
petition in intervention. Relator’s claims are not necessarily contingent upon the
Department’s request for termination of parental rights.3 Therefore, the trial court
could properly grant a partial new trial on conservatorship.

D.   The Remaining Claim Is Not Subject to the Section 263.402 Time
Guidelines
       The partial granting of the new trial had the effect of setting the
conservatorship issue on the docket as though it had never been tried. Relator
contends that, because the new trial was granted on the conservatorship issue, her
motions to dismiss the Department were timely filed under section 263.402, the
trial court was required to dismiss the Department from the suits, and the
Department may not use a new trial to circumvent the statutory deadlines set forth

       3
          See In the Interest of A.C., 2009 WL 1815658, at *4−5 (holding that the trial court did
not abuse its discretion in severing foster mother’s claims in her petition in intervention and
trying them separately from the Department’s claims because her claims were not so interwoven
with the termination suit that they could not be tried separately); In re Roxsane R., 249 S.W.3d
764, 773 (Tex. App—Fort Worth 2008, orig. proceeding) (holding that foster parents’ claims
were contingent upon, and not independent of, the Department’s allegations where they pleaded
that the Department be continued as managing conservator, either in a final order or in a
monitored return, with their request to be appointed managing conservators made in the
alternative); D.D.M., 116 S.W.3d at 232 (holding that foster parents’ petition in intervention
asking for termination and appointment of joint managing conservators was affirmative relief
that was independent of the Department’s cause of action and would survive if the Department
were dismissed from the suit).
                                               8
in section 263.401. Relator’s arguments assume that section 263.401’s deadlines
are applicable to her intervention.            We disagree with such an assumption.
Mother’s rights have been terminated in the Department’s suits against her. At this
point, relator’s conservatorship claims are against the Department. This is not a
“suit affecting the parent-child relationship filed by the department that requests
termination of the parent-child relationship or requests that the department by
named conservator of the child” under section 263.401. See Tex. Fam. Code Ann.
§ 263.401(a) (emphasis added). Consequently, the section 263.401 deadlines are
not applicable in this case.4 We conclude that the trial court did not abuse its
discretion by denying relator’s motions to dismiss.

       Accordingly, we deny relator’s petition for writ of mandamus.




                                            /s/       Marc W. Brown
                                                      Justice


Panel consists of Justices Boyce, Christopher, and Brown.




       4
         In our prior opinion, we addressed the timeliness of relator’s motions to dismiss the
Department’s suits in the trial court. E.C., 2014 WL 465901, at *2−3. We implied that the
deadlines in sections 263.401 and 263.402 applied to this intervention. However, assuming that
the deadlines applied, our previous conclusion that relator’s motions to dismiss were untimely is
nonetheless correct.
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