Petition for Writ of Mandamus Denied and Memorandum Opinion filed
February 4, 2014.




                                     In The

                    Fourteenth Court of Appeals

                               NO. 14-13-01139-CV



                              IN RE E.C., Relator


                         ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              309th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2008-39339

                        MEMORANDUM OPINION

      On December 27, 2013, relator E.C. filed a petition for writ of mandamus in
this Court. See Tex. Gov’t Code Ann. § 22.221; 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.

                                     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 2008).

       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
prescribed by § 263.401(a) [of the Texas Family Code], unless a final order is

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rendered by that date.”1 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.2
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
        Relator stated in her petition that the trial court did not enter an order retaining cause
number 2007-20638 on the docket. The Department, however, attached to its response the
August 30, 2012 order retaining cause number 2007-20638 on the docket.
       2
        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.
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      On July 29, 2013, the trial court entered the orders modifying the prior
orders and decree 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. This mandamus
followed.

                                      ANALYSIS

      In her first three issues, relator asserts that the trial court abused its
discretion by not dismissing the Department’s suit when she filed and presented a
motion to dismiss prior to the date the trial court entered judgment. In her fourth
issue, relator argues once the jury returned its verdict, the trial court was limited to
entering final judgment on the verdict.

      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.”
Id. § 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
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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.

      The Department filed its petitions in cause numbers 2007-20638 and 2008-
39339 on October 4, 2011, and the trial court signed the temporary orders
appointing the Department managing conservator on October 10, 2011.                 The
temporary orders stated the dismissal date for both cases was October 15, 2012.
On August 30, 2012, the trial court entered orders in both cases extending the
dismissal date to April 15, 2013. See id. § 263.401(b)(1). Trial commenced on
March 14, 2013. Relator filed her motions to dismiss in both cases on July 18,
2013, and the trial court entered final judgments in both cases on July 29, 2013.

      Relator contends that if the trial court grants a 180-day extension, but does
not sign a final order within that period, it must dismiss the suit. See In re J.L.C.,
194 S.W.3d 667, 672 (Tex. App.—Fort Worth 2006, no pet.) (applying former
version of section 263.401).     Relator is relying on a prior version of section



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263.401, which provided for dismissal unless the trial court “rendered a final
order” within the statutory deadlines.3

       Therefore, contrary to relator’s assertions, it is not the trial court’s failure to
“render a final order” that requires dismissal.             Instead, under the current and
applicable version of section 263.401, dismissal is required based upon the trial
court’s failure to “commence[] trial on the merits” by the first Monday after the
first anniversary of the date the court rendered a temporary order appointing the
Department as temporary managing conservator, or after the 180-day extension has
run. Tex. Fam. Code Ann. § 263.401(a); see also In re K.E., No. 07-13-00082-CV,
2013 WL 4733999, at *2 (Tex. App.—Amarillo Aug. 30, 2013, no pet.) (mem.
op.) (“Foundational to the mother’s argument is the notion that the trial court was
statutorily required to sign a final order within the 180-day extension period, that
is, by September 8, 2012. But under the current, applicable version of section
263.401(c), it is the commencement of trial, not the rendering of a final order, that
must occur during the extension period.”); In re K.F., 351 S.W.3d 108, 113–14
(Tex. App.—San Antonio 2011, no pet.) (observing, that when trial on the merits
commenced before the dismissal date, nothing in the current version of the Family
Code required rendition of a final order before dismissal date). 4 Here, the trial


       3
        See Act of May 28, 1997, 75th Leg., R.S., ch. 600, § 17, 1997 Tex. Gen. Laws 2108,
2112−13; Act of May 28, 1997, 75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119,
2123−24; Act of May 31, 1997, 75th Leg., R.S., ch. 1022, § 90, 1997 Tex. Gen. Laws 3733,
3768−69, amended by Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 2, 2007 Tex. Gen. Laws
1837, 1837−38.
4
  Relator also relies on the August 30, 2012 orders granting the 180-day extensions. Each order
states “this suit shall be dismissed on April 15, 2013, which the date not later than the 180th day
after the time described in § 263.401(a), unless a final order is rendered by that date.”
(Emphasis added). However, the statute provides dismissal is required unless trial on the merits
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court “commenced trial on the merits” on March 14, 2013—a month before the
April 15, 2013 dismissal date.

       Relator further claims that she timely moved to dismiss the Department’s
suit before the trial court signed a final order.            See Tex. Fam. Code Ann.
§ 263.402(b) (West 2008). Under section 263.402(b), a party who fails to make a
timely motion to dismiss waives the right to object to the court’s failure to dismiss
the suit. Id. A motion to dismiss is “timely if the motion is made before the trial
on the merits commences.” Id. The statutory deadlines are not jurisdictional. In
re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009) (orig.
proceeding).      Relator did not file her motions to dismiss prior to the
commencement of the trial on the merits. Therefore, relator’s motions to dismiss
were untimely, and the trial court did not abuse its discretion by denying them on
July 18, 2013.

       The trial court granted new trials in both cases as to the issue of
conservatorship, but not as to termination of parental rights. When a trial court
grants a motion for new trial, the case is reinstated on the trial court’s docket as
though no trial had occurred, and the slate is essentially wiped clean as to orders
such as an oral pronouncement of judgment and written judgment based on the
trial. Id. at 644. Relator appears to argue that the granting of new trials on the
issue of conservatorship means the trial court did not commence trial on the merits
prior to the April 15, 2013 dismissal date.



commences by the statutory dismissal date. The fact that the trial court used an outdated form
order does not change the requirements of the statute.
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        However, we need not decide the effect of the trial court’s granting the
motions for new trial in this case because relator has failed to make the necessary
predicate request for relief in the trial court.

        After the trial court granted the Department’s motions for new trial on
conservatorship on August 2, 2013, relator did not request that the trial court
dismiss the suits for failure to comply with section 263.041’s deadlines on any
basis, including that the cases were reset on the docket as if there had been no trial,
or otherwise request that the trial court reconsider its rulings on the motions for
new trial. “A party’s right to mandamus relief generally requires a predicate
request for some action and refusal of that request.” In re Perritt, 992 S.W.2d 444,
446 (Tex. 1999) (orig. proceeding) (per curiam). Such requirement is excused
when the request would have been futile and the trial court’s refusal little more
than a formality. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig.
proceeding).

        Objecting to the failure to dismiss the SAPCRs because the trial court was
no longer in compliance with section 263.401’s deadlines due to the granting of the
new trials on conservatorship would have added something for the trial court’s
consideration. See In re Brown, 277 S.W.3d 474, 483 (Tex. App.—Houston [14th
Dist.] 2009, orig. proceeding) (plurality op.) (“To determine whether a request
would have been futile, appellate courts examine whether the request would have
added anything for the court’s consideration.”). Instead, relator waited nearly five
months to file her mandamus petition in this court requesting her relief for the first
time.


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      Relator has not established her entitlement to mandamus relief.
Accordingly, we deny relator’s petition for writ of mandamus.



                                                 PER CURIAM



Panel Consists of Justices Boyce, Christopher, and Brown.




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