                                            OPINION
                                        No. 04-10-00811-CV

                           IN THE INTEREST OF K.F., I.T. and K.L.H.

                 From the 2nd 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 08-1847-CV
                            Honorable W.C. Kirkendall, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 27, 2011

AFFIRMED

           In this accelerated appeal the appellant-mother of three children challenges the trial

court’s decision to place one of her three children with the child’s father. On appeal, appellant

asserts the statutorily-required dismissal date had expired; therefore, the trial court should have

dismissed the case. Because the issues in this appeal are procedural in nature, the following

discussion does not include the facts underlying the trial court’s decision regarding placement of

any of the three children. We affirm.

                                         BACKGROUND

           Appellant is the mother of three children: KF, KH, and IT. Each child has a different

father. The child who is the subject of this appeal is IT and his father is “Charles.” On October
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30, 2008, the Texas Department of Family and Protective Services (“the Department”) filed suit

to remove all three children from their home and to terminate the parental rights as to all three

children. The next day, the Department was appointed temporary managing conservator of the

three children. The first permanency hearing occurred on April 17, 2009. On July 1, 2009,

Charles filed an “Original Counter[-P]etition in Suit Affecting the Parent-Child Relationship” in

which he sought appointment as sole managing conservator of IT. 1

           Following an August 7, 2009 permanency hearing, the associate judge signed an order

granting a six-month extension of the original trial date to March 19, 2010, with a new dismissal

date of May 1, 2010. In the August 7 order, the associate judge ordered that KF and KH remain

in their foster home and that IT be returned to and remain with Charles. The order also stated

that the Department would remain as the temporary managing conservator of KF and KH.

           Following a March 5, 2010 permanency hearing, the associate judge signed an order on

March 19, 2010 granting a monitored return of KF and KH to appellant, with the Department

remaining as temporary managing conservator of the two children. The associate judge also

referred the parties to the district court “for final disposition as to custody of” IT. Finally, the

court set a new date for trial on August 9, 2010, with a new dismissal date of September 9, 2010.

           On April 23, 2010, the trial court conducted a trial regarding custody of IT, following

which the court ruled as follows from the bench:

                   The parties willing [sic] appointed joint - - joint managing conservators,
           and [Charles] will have the right to establish residence and domicile. [Appellant]
           will have access pursuant to a standard possession order.
                                                    ...
                   I will make this return and monitor order, giving the Department rights to
           monitor both the primary conservator and any visitation by [appellant] that they
           choose to monitor.


1
    The appellate record does not contain any petition appellant may have filed with regard to IT.


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The court ordered appellant to pay child support pursuant to the guidelines and ordered family

counseling.

       Following a May 28, 2010 permanency hearing, the trial court signed an order allowing

KF and KH to remain with appellant “because services continue to be offered.” The court also

allowed IT to remain with Charles “because services continue to be offered pending finalization

of orders as to [him].” The order did not set a new trial date or dismissal date.

       Although the trial court ruled from the bench on April 23, 2010, the court did not sign an

order until July 21, 2010. On July 21, the trial court signed an “Interlocutory Order in Suit

Affecting The Parent-Child Relationship as to [IT]” (“the July 21 Order”), in which the court

appointed Charles and appellant joint managing conservators of IT, gave Charles the exclusive

right to designate IT’s residence, and dismissed the Department as a party with reference to IT.

The court found that the order “sufficiently defines the rights and duties of the parents of the

children . . . and no further parenting plan is appropriate or necessary.” The court denied all

relief not expressly granted, and the order contained the statutory notice regarding appeals of

final orders involving the Department. Finally, the court terminated any “other existing court-

ordered relationships with the children the subject of this suit” and dismissed from the suit any

parties claiming such a court-ordered relationship.

       On October 1, 2010, the trial court signed an order in which it dismissed the Department

as temporary managing conservator with regard to KF and KH. In this same order, the trial court

also stated it “finds that the [July 21 Order] is the controlling order as to [IT].” On October 28,

2010, the court signed an “Order on Appeal to Referring Court,” in which the court found that

(1) the trial on the merits as to IT was commenced on April 23, 2010, “which date was prior to




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the dismissal date in this case,” and (2) the order rendered in open court on April 23, 2010 and

entered on July 21, 2010 “is, in all respects, a final order as to [IT].”

        On appeal, appellant asserts that the July 21 Order was not a final order because IT’s case

was not severed from the case as to the other two children and the Department remained

involved in the case. Therefore, according to appellant, because the May 1, 2010 dismissal date

passed without the Department being dismissed from the case and the May 1, 2010 dismissal

date was not extended, the cause of action pertaining to IT should have been dismissed.

Appellant also asserts not all parties received notice of the April 23, 2010 trial setting.

                                            DISCUSSION

        The Texas Family Code requires a trial court to dismiss a suit filed by the Department

that requests termination of the parent-child relationship or requests that the Department be

named conservator of the child on the first Monday after the first anniversary of the date the

court rendered a temporary order appointing the Department as temporary managing conservator

“[u]nless the court has commenced the trial on the merits or granted an extension under

subsection (b).” TEX. FAM. CODE ANN. § 263.401(a) (West 2008).

        Under subsection (b), if the court has not “commenced the trial on the merits,” the court

may not retain the suit on the court’s docket after the time described by subsection (a) unless the

court finds that extraordinary circumstances necessitate the child remaining in the Department’s

temporary managing conservatorship and that continuing the appointment of the Department as

temporary managing conservator is in the child’s best interest. Id. § 263.401(b). “If the court

makes those findings, 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).” Id. 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



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on which the suit will be dismissed if the trial on the merits has not commenced, which date must

be 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 the trial on the merits on a date not later than the date specified

under Subdivision (1).” Id.

       In this case, the trial court first rendered temporary orders on October 31, 2008. Pursuant

to section 263.401(a), the one-year anniversary would have occurred in November 2009, unless

extended for 180 days under section 263.401(b). Appellant does not allege the trial court failed

to comply with section 263.401(b) when, on August 7, 2009, it granted the first 180-day

extension and set a new trial date for March 19, 2010 and a new dismissal date of May 1, 2010.

Having granted this extension, the trial court was required to dismiss the suit if the trial on the

merits did not commence before the required date for dismissal of May 1, 2010. See id.

§ 263.401(c) (“The court may not grant an additional extension that extends the suit beyond the

required date for dismissal under Subsection (b).”).

       However, 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.

Id. § 263.403(a).




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       If the court renders such 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 unless

a trial on the merits has commenced.” Id. § 263.403(b). In this case, the associate judge signed

an order on March 19, 2010 that complied with the requirements of section 263.403(a), made the

appropriate findings under section 263.403(b), set a new date for trial on August 9, 2010, and set

a new dismissal date of September 9, 2010, which was within 180 days of the date of the order.

       Appellant first asserts that because trial on the merits as to KF and KH did not commence

before the September 9, 2010 dismissal date, the case should have been dismissed.               The

Department argues the suit as to IT was severed from the cause rendering the “July 21 Order”

final; therefore, trial was held before the dismissal date. We disagree with both arguments.

“Severance and bifurcation are distinct trial procedures.” In re United Fire Lloyds, 327 S.W.3d

250, 254 (Tex. App.—San Antonio 2010, orig. proceeding). A severance divides the lawsuit into

two or more separate and independent causes. Hall v. City of Austin, 450 S.W.2d 836, 837–38

(Tex. 1970). A judgment that disposes of all parties and issues in one of the severed causes is

final and appealable. Id. at 838. An order for a separate trial, however, leaves the lawsuit intact

but enables the court to hear and determine one or more issues without trying all controverted

issues at the same time. Id. There is nothing in the transcript of this case that could be construed

as ordering a severance of IT’s case from the case involving KF and KH. Instead, in every order

signed by the trial court, the court made no distinction between the three children in setting new

trial and dismissal dates. Therefore, the entire suit was carried forward with each new order.

The entire suit remained intact and a “trial on the merits” was ultimately necessary only as to IT

because the final unresolved issue (conservatorship) pertained only to IT. See id. Although the



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July 21 Order was entitled “Interlocutory Order,” it is clear from the record of the April 23

proceeding and the language of the July 21 order that the court conducted a “trial on the merits”

on April 23. Because trial on the merits commenced before the dismissal date of September 9,

2010, the trial court was not required to dismiss the case as to any of the three children.

        Appellant’s argument on appeal also focuses on the dates on which the trial court signed

the July 21 Order and the October 1, 2010 order dismissing the Department, both of which

appellant contends were past the dismissal dates. The prior version of Family Code section

263.401 provided, in part, as follows:

        (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.

                                              .       .        .

        (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). 2

[Emphasis added.] The prior version of Family Code section 263.403 provided, in part,
as follows:

        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. 3

2
 See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2112 Act of May 28, 1997,
75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119, 2123; Act of May 31, 1997, 75th Leg. R.S., ch. 1022,
§ 90, Tex. Gen. Laws 3733, 3768 amended by Act of May 27, 2007, 80th Leg., R.S., ch. 866 § 2, 2007 Tex. Gen.
Laws 1837, 1838.
3
 See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108, 2112 Act of May 28, 1997,
75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119, 2123; Act of May 31, 1997, 75th Leg. R.S., ch. 1022,
§ 90, Tex. Gen. Laws 3733, 3768 amended by Act of May 27, 2007, 80th Leg., R.S., ch. 866 § 4, 2007 Tex. Gen.
Laws 1837, 1838.


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        However, the current versions of Family Code sections 463.401 and 463.403, which

govern this case, no longer require dismissal of a case based upon the date on which an order is

rendered. Instead, the appropriate date is the date on which trial on the merits commences.

Having returned two of the children to appellant, the trial court was required to commence trial

as to the remaining child (IT) before the dismissal date of September 9, 2010. Trial as to IT

commenced on April 23, 2010. Nothing in the current version of the Family Code, as applicable

to this case, required the trial court to render a final order prior to the dismissal date.

        Finally, appellant asserts the trial court failed to notify all the parties of the April 23,

2010 hearing regarding custody of IT. Appellant concedes notice was sent to her attorney, to

Charles’s attorney, and to the children’s ad litem. On appeal, appellant does not identify which

“other parties” did not receive notice; however, we assume she refers to the fathers of the other

two children. Because all parties necessary to the disposition of IT’s custody received proper

notice, we disagree with appellant’s argument. 4

                                             CONCLUSION

        We overrule appellant’s issues on appeal and affirm the trial court’s order.



                                                  Sandee Bryan Marion, Justice




4
 Appellant does not argue and we can find no basis to hold that the fathers of KF and KH should have received
notice of the trial regarding IT’s custody.

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