                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-07-397-CV


IN RE ROXSANE R.




                                    ------------

          FROM THE 231 ST DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                   OPINION

                                    ------------

      This is an original proceeding in which relator Roxsane R., J.R.’s

mother, contends that this court should compel the trial court to dismiss the

pending plea in intervention filed by real parties in interest Jennifer and Gary

S., former foster parents of J.R., in which they seek to be named managing

conservators of J.R. We conditionally grant the writ.1




      1
       … Our disposition of this case in favor of relator renders our previous
granting of an extension to file a supplemental record on behalf of relator
moot.
                                  Background

      On October 30, 2003, the Texas Department of Family and Protective

Services (TDFPS)2 filed an original petition for emergency removal of four-

month-old J.R. in the 170th District Court of McLennan County, seeking

permanent managing conservatorship. J.R. was with his mother Roxsane in

Wisconsin at the time and was removed there. J.R. was placed with the

foster parents around this time. TDFPS amended its petition on November

9, 2004, adding a paragraph seeking termination of the parent-child

relationship.

      Roxsane filed a motion to dismiss on April 11, 2005, in which she

alleged that the trial court should dismiss the case if a final order was not

entered by the statutory dismissal date, April 28, 2005.3 The trial court held


      2
      … At the time of initial filing, the agency was known as the Texas
Department of Protective and Regulatory Services, but its name was
changed during the pendency of the suit.
      3
       … At the time of the termination suit, family code section 263.401
provided as follows, in pertinent part:

             (a)   Unless the court has rendered a final order or granted
      an extension under Subsection (b), 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 shall dismiss the suit affecting the parent-child
      relationship filed by the department that requests termination of
      the parent-child relationship or requests that the department be
      named conservator of the child.
a jury trial the next day, April 12, 2005. The trial court’s charge to the jury

submitted only the termination ground, not the ground seeking to have




             (b)   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 finds that continuing the appointment
      of the department as temporary managing conservator is in the
      best interest of the child. 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 for dismissal of the
      suit 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 a final hearing on a date that allows the
      court to render a final order before the required date for dismissal
      of the suit under this subsection.

             (c)   If the court grants an extension but does not render
      a final order or dismiss the suit on or before the required date for
      dismissal under Subsection (b), the court shall dismiss the suit.
      The court may not grant an additional extension that extends the
      suit beyond the required date for dismissal under Subsection (b).

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws
2395, 2396 (amended 2005 & 2007), and Act of May 28, 1997, 75th Leg.,
R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2113 (current version at
T EX. F AM. C ODE A NN. § 263.401 (Vernon Supp. 2007)).

      Section 263.401was amended in this past legislative session to
provide that the requirement to enter a final order or dismiss the suit does
not apply once trial on the merits has commenced; however, that
amendment does not apply to this case because it was commenced before
the effective date of the amendment. See Act of May 27, 2007, 80th Leg.,
R.S., ch. 866, § 6, 2007 Tex. Gen. Laws 1837, 1838.
TDFPS named permanent managing conservator.4 The jury found that

Roxsane’s parental rights should not be terminated.

          Nothing in the record shows that Roxsane ever moved for a judgment

on the verdict. On April 19, 2005, after the jury trial but before the trial

court had rendered judgment on the verdict, the foster parents filed a plea in

intervention, alleging standing under family code section 102.003(12), which

allows foster parents who have had a child placed in their home “for at least

12 months ending not more than 90 days preceding the date of the filing of

the petition” to file an original suit affecting the parent-child relationship

(SAPCR). T EX. F AM. C ODE A NN. § 102.003(12) (Vernon Supp. 2007). Their

petition alleged that it was in J.R.’s best interest that TDFPS continue to be

managing conservator under family code section 263.401(d)5 or 263.403,6


      4
      … However, the jury charge specifically stated that “[i]f no
termination of the parent-child relationship is ordered, the court may modify
[Roxsane’s] rights and duties by court order.”
      5
       … Former section 263.401(d), which was applicable in April 2005,
described a final order as one that

      (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.
Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws
2108, 2113 (repealed 2007).
     6
       … The version of section 263.403 that was applicable in April 2005
read as follows:

            (a) Notwithstanding Section 263.401, the court may retain
     jurisdiction and not dismiss the suit or render a final order as
     required by that section if the court renders a temporary order
     that:

           (1) finds that retaining jurisdiction under this section is in
     the best interest of the child;
           (2) orders the department to return the child to the child's
     parent;
           (3) orders the department to continue to serve as
     temporary managing conservator of the child; and
           (4) orders the department to monitor the child's placement
     to ensure that the child is in a safe environment.

           (b) If the court renders an order under this section, the
     court shall:

           (1) include in the order specific findings regarding the
     grounds for the order; and
           (2) schedule a new date, not later than the 180th day after
     the date the temporary order is rendered, for dismissal of the
     suit.

            (c) If a child placed with a parent under this section must
     be moved from that home by the department before the
     dismissal of the suit or the rendering of a final order, the court
     shall, at the time of the move, schedule a new date for dismissal
     of the suit. The new dismissal date may not be later than the
     original dismissal date established under Section 263.401 or the
     180th day after the date the child is moved under this
     subsection, whichever date is later.

           (d) If the court renders an order under this section, the
or inthe alternative, that the trial court appoint the foster parents as J.R.’s

managing conservators.

      Although there is no written objection to the plea in intervention in the

mandamus record, Roxsane must have objected to the foster parents’

standing to intervene because the trial court ruled on the standing issue in a

hearing on April 26, 2005 as follows:

      [I]t’s being raised at this point in time as to whether or not they
      can participate in this proceeding. The Court will, with some
      trepidation, rule at this point in time that [the foster parents do]
      have standing, believing that intervention and standing to file an
      original suit are essentially the same in regard to this matter.

At the hearing, the trial court also determined that the evidence warranted

the issuance of a monitored return order under section 263.403 7 of the

family code.

      On April 28, 2005—the section 263.401 enter-a-final-order-or-dismiss

date—the trial court entered a monitored return order under section

263.403, finding that TDFPS should continue to serve as temporary

managing conservator but that J.R. should be returned to Roxsane under the



      court must include in the order specific findings regarding the
      grounds for the order.

Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, 2001 Tex. Gen. Laws
2395, 2397 (amended 2007) (current version at T EX. F AM. C ODE A NN. §
263.403 (Vernon Supp. 2007)).
      7
          … See note 6 supra.
supervision of TDFPS. The trial court set a new mandatory dismissal date of

not more than 180 days from the date of its monitored return order, October

25, 2005, as required by the statute. See id. § 263.403(b)(2). TDFPS was

to remain temporary managing conservator during this transition.

      The monitored return order did not acknowledge or specifically

encompass the jury’s verdict that Roxsane’s parental rights should not be

terminated but states that “the Court finds that placing [J.R.] in the home of

[Roxsane] while retaining jurisdiction is in the best interest of the child to

establish a safe transition of the child who has been out of [Roxsane’s] home

for approximately 18 months.” The court ordered TDFPS to monitor the

placement of J.R. in Roxsane’s home and to remove him “if circumstances

indicate that the home is no longer a safe environment.” During this six

month period, TDFPS was to provide unlimited counseling for Roxsane and

counseling and play therapy for J.R. as appropriate. The trial court also

ordered the foster parents to assist with the transition into Roxsane’s home

and ordered interim visitation between J.R. and the foster parents as agreed

to or proposed by the parties.8




      8
       … There is no additional temporary order or agreed temporary order in
the record designating any specified period of possession to [the] foster
parents during the monitored return, however.
      On May 31, 2005, the trial court 9 transferred the case to Tarrant

County, where Roxsane was residing. The transfer order states that J.R. “is

to be returned to the home of [Roxsane] on May 31, 2005” but that the

provisions of the monitored return order were to remain in effect until the

end of the six month period. Upon transfer to Tarrant County, the case was

assigned to the 322nd District Court.

      On October 21, 2005, four days before the suit was to be dismissed in

accordance with section 263.401, the 322nd District Court, the Honorable

Frank Sullivan presiding, held a hearing on several issues in the case. The

court signed an order granting TDFPS’s motion for nonsuit of its “Movant’s

Petition Seeking Termination of the Parent-Child Relationship in this cause”

and removing TDFPS as J.R.’s temporary managing conservator. The order

did not designate a conservator for J.R., temporary or otherwise. The court

also appointed an amicus attorney for J.R.

      That same day, Roxsane filed a pro se “Mother’s Objection to

Conservators and Amicus Attorney.” In it, she stated that she objected to

the foster parents being appointed conservators of J.R. and to the

appointment of an amicus attorney for J.R. Specifically, Roxsane objected



      9
       … Although the case had been pending in the 170th District Court of
McLennan County, the caption of the transfer order shows that it was an
order from the 74th District Court of McLennan County.
to having to share in the expense of an amicus attorney. Roxsane also

requested that the case be dismissed and that she would “like to be re-

united with [her] son permanently as soon as possible without a

conservator.” Further, Roxsane stated that the foster parents had not had

any contact with J.R. for five of the six months since the monitored return

order was signed.

      On January 13, 2006, Judge Sullivan signed an order noting that a

hearing had been held on October 21, 2005, that the trial court granted a

nonsuit to TDFPS, and that “a separate order was signed.” Judge Sullivan

ordered that J.R. would remain in Roxsane’s custody until “a hearing could

be had on temporary orders.” His order also states that “[t]he Court finds

that, on the issue of standing of [the foster parents], the 74th Judicial

District Court of McLennan County has already ruled that [the foster parents]

have standing in this matter.” Judge Sullivan did not enter a final order in

the case as required by former section 263.403(b)(2) governing dismissal

upon the expiration of a monitored return order.

      Next, the trial court’s associate judge entered temporary orders

sometime before January 23, 2006,10 which Roxsane appealed to Judge

Sullivan. On February 2, 2006, Judge Sullivan signed an order indicating



      10
           … These orders are not in the record.
that he had heard Roxsane’s “Appeal of Temporary Orders” affirming the

temporary orders with the following changes: (1) Roxsane was ordered to

give the amicus attorney access to J.R.; (2) Roxsane was ordered to give

the foster parents possession of J.R. on the first and third weekends of each

month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday; and (3) Roxsane

was enjoined from changing her residence from Tarrant County during

pendency of the suit. Again, the judge did not designate a conservator for

J.R.11

         On May 11, 2006, Roxsane filed a “Plea to the Jurisdiction/Motion to

Strike Plea in Intervention/Motion to Dismiss” (motion to dismiss) asking the

trial court to dismiss the suit under family code section 263.401 because the

trial court had not entered a “final order” by the October 25, 2005 statutory

dismissal date. Roxsane argued that the intervention was untimely, that the

foster parents had no standing to intervene in the suit, and that the 322nd

District Court failed to follow the 74th District Court’s order setting the final

dismissal date as October 25, 2005. Roxsane also argued that the plea in

intervention should be stricken because it complicates the case with

excessive multiplication of issues, it is not necessary to protect the interests



         11
         … Section 151.001 of the family code sets forth the rights and
duties of a parent in the absence of an order establishing conservatorship.
T EX. F AM. C ODE A NN. § 151.001 (Vernon Supp. 2007).
of the foster parents, it places an undue burden on Roxsane, both financially

and mentally, and the temporary visitation is a source of confusion for J.R.

Judge Sullivan denied the motion on July 7, 2006 by written order.

      On August 9, 2006, the foster parents filed a first amended petition

seeking sole managing conservatorship of J.R. Roxsane responded on

August 22, 2006, again challenging the standing of the foster parents. On

January 1, 2007, the Honorable Nancy Berger was sworn in as presiding

judge of the 322nd District Court; she voluntarily recused herself from the

case. The case was then transferred to the 231st District Court of Tarrant

County.

      Roxsane and the foster parents each filed motions to modify the

February 2, 2006 temporary orders in May 2007. The only subsequent

order in the record is dated June 6, 2007, in which the associate judge of

the 231st District Court ordered the preparation of a social study at the

expense of the foster parents. However, the associate judge’s report, dated

the same day, states that the temporary orders restricting J.R.’s residence to

Tarrant County are modified to allow his residence to be in Tarrant or

contiguous counties. The associate judge also withheld ruling on several

other issues raised by the parties in their motions to modify the temporary

orders.
      Roxsane filed a notice of removal to federal court on June 15, 2007,

but the federal court remanded the case to the 231st District Court on

October 9, 2007. Roxsane filed this petition for writ of mandamus on

November 14, 2007, contending that this court should order the trial court

to dismiss the underlying suit “in accordance with the jury’s original verdict

rendered on April 12, 2005, [or] in the alternative, strike the plea in

intervention” by the foster parents. Because the presiding judge of the

231st District Court, the Honorable Randy Catterton, had not ruled on any of

the issues raised in the petition, we abated the case to provide Judge

Catterton with an opportunity to rule on Roxsane’s motion to dismiss. See

State v. Olsen, 163 Tex. 449, 360 S.W.2d 402, 403 (1962) (orig.

proceeding); In re Whitfield, 134 S.W.3d 314, 315 (Tex. App.—Waco 2003,

order); see also T EX. R. A PP. P. 7.2(b). After a nonevidentiary hearing, Judge

Catterton denied the motion. We reinstated the case on February 22, 2008,

upon Roxsane’s filing of a supplemental record containing the trial court’s

order denying the motion.

                                     Laches

      Before we address Roxsane’s issues, we must address the argument

of the foster parents that Roxsane’s claims are barred by the doctrine of

laches. According to the foster parents, there is no justification for
Roxsane’s delay in seeking mandamus relief from this court when some of

her complaints relate to the trial court’s actions (and alleged inaction) two

and one-half years before she filed her petition.

      Although mandamus is not an equitable remedy, its issuance is largely

controlled by equitable principles. In re Users Sys. Servs., Inc., 22 S.W.3d

331, 337 (Tex. 1999) (orig. proceeding); Rivercenter Assocs. v. Rivera, 858

S.W.2d 366, 367 (Tex. 1993) (orig. proceeding); In re Hinterlong, 109

S.W.3d 611, 620 (Tex. App.—Fort Worth 2003, orig. proceeding). One of

these equitable principles is that equity aids the diligent and not those who

slumber on their rights. Rivercenter Assocs., 858 S.W.2d at 367; In re

Hinterlong, 109 S.W.3d at 620. Thus, mandamus relief may be denied

when a party inexplicably delays asserting its rights. See, e.g., Rivercenter

Assocs., 858 S.W.2d at 367; In re Hinterlong, 109 S.W.3d at 620.

      In determining if Roxsane’s delay in seeking a writ of mandamus bars

issuance of a writ, a court may analogize to the doctrine of laches, which

bars equitable relief. In re Hinterlong, 109 S.W.3d at 620. A party asserting

the defense of laches must show both an unreasonable delay by the other

party in asserting its rights and harm resulting to it because of the delay.

Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 80 (Tex. 1989); In re

Hinterlong, 109 S.W.3d at 620.
      Although the record shows periods of delay by Roxsane in seeking

relief as to the petition in intervention, overall, the record also shows a

pattern by Roxsane of trying to seek relief from each of the trial courts

involved. In addition, the record also shows that Roxsane was represented

by different attorneys and was, at one point, pro se when she sought relief

from the trial courts. Specifically, Mary Beth Scott represented Roxsane at

the termination trial and after trial when the foster parents filed the petition

in intervention, presumably when Roxsane raised her first objection as to

standing. After the McLennan County courts entered the monitored return

order and transfer order to Tarrant County, Roxsane had no need to object

because J.R. was returned to her by court order and the foster parents had

no contact with him for at least five months, from May 31, 2005 to October

21, 2005. It was only when TDFPS nonsuited its claims, yet the foster

parents remained in the suit, that Roxsane had a reason to again raise the

issue of the propriety of proceedings continuing as to their petition in

intervention. And Roxsane did object at that time, seeking relief from the

322nd District Court. She was pro se at the time; there is no evidence as to

how long it took for her to find and hire a new attorney.12 Her motion to

dismiss was filed by Yusuf Abdullah, who represented her until at least


      12
       … Roxsane was still pro se when the 322nd District Court entered its
February 2, 2006 order affirming the associate judge’s temporary orders.
August 2006. The mandamus record does not show when Roxsane hired

her current attorney, Judith Grantham, but the first document filed by

Grantham in the mandamus record is a motion to modify temporary orders

filed on May 31, 2007.

      We conclude and hold that the record shows that Roxsane did not

unreasonably delay in seeking relief as to the propriety of the petition in

intervention. Thus, we will review and consider the merits of Roxsane’s

complaints in this mandamus proceeding.

           Should Trial Court Have Dismissed Plea in Intervention?

      In her petition for writ of mandamus and in her motion to dismiss filed

in the trial court, Roxsane challenges the timeliness and propriety of the

foster parents’ plea in intervention. She contends that the trial court should

have stricken the plea in intervention when it was filed. She also contends

that even if the plea in intervention was timely and the 170th District Court

in McClennan County had discretion not to strike it, the 322nd District Court

in Tarrant County, to which the case was transferred, nevertheless should

have dismissed the foster parents from the suit and rendered a final order in

her favor upon TDFPS’s nonsuit of its claims. Implicit in her arguments is

the contention that the scope of the plea in intervention was limited to the

issues in TDFPS’s termination suit. That is, when TDFPS nonsuited its
claims, there were no remaining claims for affirmative relief by the foster

parents that would have justified them remaining in the suit; the termination

suit had already been tried to a jury. We agree with Roxsane’s latter

contention. Furthermore, because it is dispositive, we need not address her

claims as to the initial timeliness and propriety of the intervention. See T EX.

R. A PP. P. 47.1; Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221

S.W.3d 802, 809 (Tex. App.—Fort Worth 2007, pet. denied).

Applicable Law

      “Any party may intervene by filing a pleading, subject to being stricken

out by the court for sufficient cause on the motion of any party.” T EX. R.

C IV. P. 60. Upon filing of a timely petition in intervention, an intervenor

becomes a party to the suit for all purposes. In re D.D.M., 116 S.W.3d 224,

231 (Tex. App.—Tyler 2003, no pet.); Brook v. Brook, 865 S.W.2d 166,

172 (Tex. App.—Corpus Christi 1993), aff’d, 881 S.W.2d 297 (Tex. 1994).

If a party nonsuits its claims or its claims are dismissed, a remaining party’s

right to be heard on any of its pending claims for affirmative relief is not

prejudiced, and the trial court retains jurisdiction over the remaining claims.

T EX. R. C IV. P. 162; Univ. of Tex. Med. Branch at Galveston v. Estate of

Blackmon ex rel. Shultz, 195 S.W.3d 98, 100–01 (Tex. 2006); Yaquinto v.

Britt, 188 S.W.3d 819, 824 (Tex. App.—Fort Worth 2006, pet. denied); In
re D.D.M., 116 S.W.3d at 232.

      A claim for affirmative relief is a pleading that states facts showing a

cause of action independent of the plaintiff’s claim on which the claimant

could obtain relief even if the plaintiff abandons or is unable to establish its

cause of action. Univ. of Tex. Med. Branch, 195 S.W.3d at 101; In re

D.D.M., 116 S.W.3d at 232. Whether a pleading is an affirmative claim for

relief is determined by the facts alleged and not by the name given the plea

or by the form of the prayer for relief. In re D.D.M., 116 S.W.3d at 232;

Baca v. Hoover, Bax & Shearer, 823 S.W.2d 734, 737 (Tex. App.—Houston

[14th Dist.] 1992, writ denied).

Analysis

      Here, the foster parents’ plea in intervention stated as follows:

            It is in the best interests of the child that the Court
      continue the appointment of [TDFPS] as Managing Conservator
      pursuant to Section 263.401(d) or 263.403 of the Texas Family
      Code. Failing that, it is in the best interest of the child to
      appoint intervenors managing conservators of the child, and to
      make such other and further orders as are necessary to ensure
      that the child is in a safe environment.

             WHEREFORE, intervenors request that the parties take
      notice of the filing of this plea in intervention, and that, on
      hearing the Court appoint intervenors managing conservators of
      the child or, in the alternative, order that intervenors have access
      to the child in accordance with the allegations of this plea, grant
      intervenors’ their costs of suit, including attorney’s fees, and
      make such other and further orders to which intervenors may be
      justly entitled. [Emphasis added.]
Looking to the facts pled by the foster parents, we conclude that their claims

are contingent upon, and not independent of, TDFPS’s allegations in its

previously tried termination suit.13 Specifically, they asked that TDFPS be

continued as the managing conservator, either in a final order under family

code section 263.401(d)14 or in a monitored return order under section

263.403; their request to be appointed managing conservators of J.R. is also

clearly made in the alternative.15

      The trial court granted the foster parents the relief they requested in



      13
         … Although the plea in intervention states that the foster parents
have standing under section 102.003(a)(12) of the family code—which
provides that a foster parent with whom TDFPS has placed a child and who
has had possession of that child for at least twelve months ending not more
than ninety days preceding the date of the filing of a petition has standing to
file an original SAPCR—the facts alleged in the plea show that it was meant
to be a plea in intervention rather than an original suit seeking
conservatorship of J.R. See T EX. F AM. C ODE A NN. § 102.003(a)(12) (Vernon
Supp. 2007); In re N.L.G., 238 S.W.3d 828, 830-31 (Tex. App.—Fort Worth
2007, no pet.); In re A.M., 60 S.W.3d 166, 169 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (“[I]ntervening and filing the original suit are distinct
legal actions.”).
      14
        … Former section 263.401(d) provided that a final order includes one
that, “without terminating the parent-child relationship, appoints [TDFPS] as
the managing conservator of the child.”
      15
        … Our conclusion is supported by the posture of the case at the time.
The foster parents did not intervene until after the jury had already
determined the merits of TDFPS’s termination suit. Thus, they were no
longer able to seek an affirmative claim for adoption and, as nonparents,
would have had to overcome the statutory presumption in favor of parents
to seek any affirmative relief as to J.R. See T EX. F AM. C ODE A NN. § 153.131
(Vernon 2002).
their plea in intervention when it rendered the monitored return order

providing for the transition of J.R. into Roxsane’s home.16 Further, in its

order transferring the case to Tarrant County, the 74th District Court

required J.R. to be returned to Roxsane without any additional provision for

further possession by the foster parents; they did not have any possession

of him from that date until at least October 21, 2005 and possibly until the

effective date of the 322nd District Court’s February 2, 2006 temporary

orders giving them limited possession. Thus, the record shows that the

McClennan County trial judge intended to fully resolve the alternative claims

for relief in the foster parents’ plea in intervention by entering the monitored

return order, under which the judge intended for J.R. to remain with Roxsane

unless TDFPS or the foster parents became aware of any circumstances

justifying his subsequent removal, the statutory exception to dismissal. The

record shows that TDFPS did not remove J.R. from Roxsane’s possession

from the time he was returned to her possession on May 31, 2005 to the


      16
        … The trial court’s comments at the April 26, 2005 hearing clarify
the court’s intent. After noting that the jury had determined that Roxsane’s
rights should not be terminated, the court stated that it had not heard
anything new or different. While explaining the terms of the monitored
return order, the court addressed the foster parents, acknowledging the toll
it would probably take on them to return J.R. But the court further stated,
“And then we’ll just see how this works. If you [Roxsane] can handle this
and if [J.R.] can handle it, then obviously he will be in his family.” It is clear
from the trial court’s comments that its intention was to resolve all pending
claims by the foster parents.
date of its nonsuit. Thus, the record shows that upon expiration of the

monitored return order, the McClennan County trial judge intended for

Roxsane to have sole possession of J.R. if he had not been removed from

her before that time for safety concerns.

      Because the foster parents’ claims for relief had been resolved when

TDFPS nonsuited its claims—and they had no pending claims for affirmative

relief—the 322nd District Court abused its discretion by failing to dismiss the

plea in intervention and enter a final order in Roxsane’s favor on October 21,

2005. We recognize that this case has followed a unique and convoluted

procedural history. However, because the foster parents no longer had

standing under section 102.003(a)(12) when they filed their first

independent claim for affirmative relief in August 2006, the 231st District

Court abused its discretion by refusing to dismiss the plea in intervention

while this case was abated. We sustain Roxsane’s challenge to the trial

court’s failure to dismiss the plea in intervention.

                         Adequate Remedy by Appeal

      To be entitled to mandamus relief, Roxsane must also show that she

has an inadequate remedy by appeal. In re Sw. Bell Tel. Co., 235 S.W.3d

619, 623 (Tex. 2007); In re Spiritas Ranch Enters., L.L.P., 218 S.W.3d 887,

893 (Tex. App.—Fort Worth 2007, orig. proceeding). There is no final order
in this case; the trial court’s order denying the motion to dismiss is

interlocutory. See Wright v. Pino, 163 S.W.3d 259, 263 (Tex. App.—Fort

Worth 2005, no pet.) (holding that a judgment is final when it actually

disposes of every claim and party or clearly and unequivocally states that it

disposes of all claims and parties). Texas appellate courts have jurisdiction

only over final orders or judgments unless a statute permits an interlocutory

appeal. Ogletree v. Matthews, No. 06-0502, 2007 WL 4216606, at *2 n.1

(Tex. Nov. 30, 2007); Jain v. Stafford, 214 S.W.3d 94, 96 (Tex. App.—Fort

Worth 2006, pet. dism’d). Here, an appeal of the trial court’s order is not

authorized by statute. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 51.014(a)

(Vernon Supp. 2007) (listing appealable interlocutory orders); T EX. F AM. C ODE

A NN. § 105.001(e) (Vernon Supp. 2007) (providing that temporary orders

are not subject to interlocutory appeal).

      Because the trial court’s order is not immediately appealable, we must

determine whether an appeal from any final order on the petition in

intervention would be adequate. We hold that it would not.

      The supreme court has held that determining whether an adequate

remedy by appeal exists “demands a ‘careful balance of jurisprudential

considerations that determine when appellate courts will use original

mandamus proceedings to review the actions of lower courts.’” In re Tex.
Dep’t of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)

(quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.

2004)). It has also held that justice demands a speedy resolution in cases

involving child custody and that appeal is frequently inadequate to protect

the rights of parents and children. Id.

      Here, Roxsane has been forced to defend against and participate in the

costs of a suit alleging previously litigated issues involving custody and

conservatorship of her child that should have been dismissed no later than

October 21, 2005. The foster parents would not have had standing to file

an original suit in October 2005 since they had not had any contact with

J.R. for five months. Currently, Roxsane is having to participate in a social

study, and the foster parents are maintaining contact with J.R. that they

would not otherwise have had. There is no evidence that J.R.’s

circumstances have changed in a way that would warrant removal or the

institution of a new suit. No trial date is set, so it is unclear how much

longer Roxsane will have to participate in and defend against this suit. We

conclude and hold that any remedy available by appeal would be inadequate

to protect Roxsane’s interest in J.R.

      Because we have determined that Roxsane is entitled to relief, i.e., the

dismissal of the foster parents’ plea in intervention, we conditionally grant
the writ of mandamus and order the trial court to enter an order dismissing

the foster parents’ plea in intervention.17 A writ will issue only if the trial

court fails to comply with this order.




                                            TERRIE LIVINGSTON
                                            JUSTICE

PANEL B:    LIVINGSTON, WALKER, and MCCOY, JJ.

DELIVERED: March 28, 2008




      17
        … Our holding should not be construed as preventing the trial court
from entering any temporary orders that may be otherwise permissible by
law or that may be agreed to by the parties providing for gradually decreased
possession by the foster parents as the trial court may find to be in J.R.’s
best interest. See, e.g., T EX. F AM. C ODE A NN. §§ 109.001, 153.001–.002
(Vernon 2002).
