Petition for Writs of Mandamus and Prohibition Denied; Memorandum
Opinion filed January 8, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-12-01111-CV
                                 NO. 14-12-01112-CV

                            IN RE K. D. P. S., Relator


                      ORIGINAL PROCEEDING
               WRITS OF MANDAMUS AND PROHIBITION
                 On Appeal from the 312th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2009-01569


                        MEMORANDUM OPINION
      Relator, K. D. P. S., filed a petition in this court seeking the issuance of writs
of mandamus and prohibition. See Tex. Gov’t Code § 22.221; see also Tex. R.
App. P. 52. In the petition, relator first asks this court to compel the Honorable
David Farr, presiding judge of the 312th District Court of Harris County to set
aside his Permanency Hearing Order signed December 6, 2012. In the order, the
court placed the children who are the subject of the underlying suit with their
father, who resides in Arizona, “during the Winter Break.”
       In the underlying case, the father filed a suit affecting the parent-child
relationship seeking a modification of conservatorship over his two children. The
Texas Department of Family and Protective Services (the Department) intervened
in the case, and the Department was appointed temporary managing conservator of
the children while investigating allegations of neglectful supervision by relator, the
children’s mother. The trial court conducted an adversary hearing over several
days in May of 2012. See Tex. Fam. Code § 262.201 (requiring a full adversary
hearing no later than the 14th day after the child has been taken into the
Department’s care). The trial court’s order appointing the Department temporary
managing conservator was signed June 25, 2012, but according to relator, the
Department was actually appointed temporary managing conservator on May 25,
2012.1

       The record reflects that the Department asserted in its Permanency Plan that
it was appointed temporary managing conservator on May 25, 2012, and the trial
court’s docket entry also reflects the May 25, 2012 appointment. The Texas
Supreme Court has determined that the date the Department obtained temporary
conservatorship is the operative date. See In re Tx. Dep’t Fam. & Prot. Servs., 210
S.W.3d 609, 612 (Tex. 2006) (holding that the time period for conducting statutory
hearings began when the Department obtained custody by ex parte order before the
adversary hearing required to be held within fourteen days). The 180th day after
the Department obtained custody was November 21, 2012.2 Therefore, relator
asserts that the trial court’s December 6, 2012, order was signed after the 180-day
1
 Relator filed an emergency motion to stay the June 25, 2012, order, and the December 6, 2012,
order placing the children with their father during the Winter Break. See Tex. R. App. P. 52.10.
We denied the motion for temporary relief.
2
  The permanency hearing had been scheduled on November 15, 2012, within the 180-day
deadline. The hearing was postponed, apparently because relator had not received a copy of the
permanency plan ten days before the hearing, as required by Section 263.3025 of the Texas
Family Code.
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statutory deadline. See Tex. Fam. Code § 263.304(a) (“[n]ot later than the 180th
day after the court renders a temporary order appointing the department as
temporary managing conservator of a child, the court shall hold a permanency
hearing to review the status of, and permanency plan for, the child . . . .”).

      Relator asserts that because the trial court failed to conduct a mandatory
permanency hearing by the statutory deadline, it lacked jurisdiction to enter the
December 6, 2012, order. Relator also asserts that the trial court abused its
discretion in denying her motion to dismiss the Department’s intervention based on
the untimely permanency hearing. In addition to setting aside the December 6,
2012, order, relator asks that we direct the respondent to set aside its order denying
her motion to dismiss the Department’s intervention, the order appointing the
Department temporary managing conservator, and all orders related to the
Department’s intervention in the underlying suit and its conservatorship of the
children. Relator also seeks a writ of prohibition to prevent any further action by
the trial court in response to a request from the Department.

      As authority that the Department’s intervention should be dismissed, relator
cites In re L.S.C., 169 S.W.3d 758 (Tex. App.—Dallas 2005, no pet.). In L.S.C.,
the Dallas Court of Appeals held that the trial court erred in failing to grant the
appellant-father’s motion to dismiss the Department from his divorce suit for
failure to render a final order within the statutory deadline, or the extended
deadline, even though no extension order was signed. Id. at 763. The court found
that appellant was harmed by the error, and declined to address any harm from the
failure to conduct a timely permanency hearing. Id. at 764. Accordingly, L.S.C.
does not support relator’s position that dismissal was required in this case.

      Section 263.304 of the Texas Family Code, which requires a permanency
hearing to be held before the 180th day after the Department has been appointed

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temporary managing conservator, does not contain a remedy for the failure to
conduct the hearing in a timely manner. See In re E.D.L., 105 S.W.3d 679, 686-88
(Tex. App.—Fort Worth 2003, pet. denied) (holding that because a similar
provision requiring an adversary hearing within the time set out in section 262.201
does not contain a remedy, dismissal is not required). Instead, the statute provides
that any party or attorney ad litem may seek a writ of mandamus to compel the
court to comply with the duties imposed by the subsection.3 Tex. Fam. Code Ann.
§ 263.304(b).

       In contrast, Section 263.401 of the Texas Family Code provides a one-year
deadline after the Department has been appointed temporary managing conservator
for a trial on the merits to commence and the statute requires dismissal for non-
compliance. See Tex. Fam. Code § 263.401. Upon findings of extraordinary
circumstances and the best interest of the child, the court may retain the case for a
maximum of 180 additional days. Tex. Fam. Code § 263.401(b). The court may
not grant an additional extension and if the trial is not commenced by the extended
dismissal date, the court “shall dismiss the suit.” Id. at (c).

       The Texas Supreme Court has determined that the dismissal dates governing
termination and child protection proceedings where the Department has temporary
custody are not jurisdictional. See In re Dept. of Fam. and Prot. Servs., 273
S.W.3d 637, 642 (Tex. 2009). Thus, the trial court retains jurisdiction over the suit
after the time limits set out in the statute have passed. Id. Similarly, even when the
permanency hearing is not held within the 180 days set out in section 263.304 of
the Family Code, the trial court is not divested of jurisdiction. See Garcia v. Tex.

3
  Relator asserts that she has no ability to seek mandamus relief against the Department to
compel it to comply with its statutory duty. The trial court has the ability to require the
Department’s compliance, however. Our record does not reflect that relator asked the trial court
to compel the Department’s compliance.
                                               4
Dep’t of Human Servs., 721 S.W.2d 528 (Tex. App.—Corpus Christi 1986, no
writ). In a slightly different context, the Fort Worth Court of Appeals held that
although Family Code section 262.201(a) requires a trial court to conduct a full
adversary hearing within fourteen days of the date a governmental entity takes
possession of a child, the requirement is procedural, not jurisdictional. In re T.T.F.,
331 S.W.3d 461, 479-80 (Tex. App.—Fort Worth 2010, no pet.). The parent could
have sought to enforce her procedural right to a timely status hearing, a timely
initial permanency hearing, and timely subsequent permanency hearings by
mandamus. Id. Instead of seeking mandamus to require a timely hearing, in this
case, relator seeks mandamus to require dismissal of the Department’s
intervention.

      Mandamus is an extraordinary remedy that will issue only if (1) the trial
court clearly abused its discretion and (2) the party requesting mandamus relief has
no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004). We determine the adequacy of an appellate remedy by
balancing the benefits of mandamus review against its detriments. Id. at 136.

      A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to analyze or apply the law correctly. In re Cerberus Capital Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005). When reviewing the trial court’s decision for an
abuse of discretion, we may not substitute our judgment for that of the trial court
with respect to the resolution of factual issues or matters committed to the trial
court’s discretion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

      Relator has not established that the trial court abused its discretion.
Dismissal of the Department’s intervention was not required, and the trial court


                                          5
retains jurisdiction over the intervention. Therefore, we conclude that relator is not
entitled to mandamus relief.

      A writ of prohibition operates like an injunction to control or prevent action
in a lower court. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 682 (Tex.
1989). The writ is typically used to protect the subject matter of a pending appeal
or to protect an appellate court’s jurisdiction. Id. at 683. A writ of prohibition has
three functions: (1) preventing interference with higher courts in deciding a
pending appeal; (2) preventing inferior courts from entertaining suits which will
relitigate controversies which have already been settled by issuing courts; and (3)
prohibiting a trial court’s action when it affirmatively appears that the court lacks
jurisdiction. Tex. Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 187 (Tex.
App.—Texarkana 1993, orig. proceeding); McClelland v. Partida, 818 S.W.2d
453, 456 (Tex. App.—Corpus Christi 1991, orig. proceeding).

      First, a writ of prohibition is not necessary to protect this court’s jurisdiction.
A related appeal is pending before this court, but the trial court’s actions related to
the Department do not threaten our jurisdiction over the related case. Relator’s
counterclaims against the Department were dismissed, and relator’s appeal of the
dismissal is pending under our appellate case number 14-12-00673-CV. The
counterclaims were severed from the child custody and protection action, however.
Therefore, the trial court’s actions related to child custody and protection do not
affect our jurisdiction over relator’s pending appeal.

      Secondly, as discussed above, we have concluded that any delay in
conducting the permanency hearing has not deprived the trial court of jurisdiction
over the Department’s intervention. See In re Dept. of Fam. and Prot. Servs., 273
S.W.3d at 642. Finally, no allegation has been made in this proceeding that the trial


                                           6
court is attempting to relitigate settled issues. Therefore, there is no basis for
issuance of a writ of prohibition.

      We deny relator’s petition for writs of mandamus and prohibition.



                                     PER CURIAM



Panel consists of Chief Justice Hedges and Justices Brown and Busby.




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