
    In re Ruby V. LUDWIG & In re Joy Higdon.
    No. 03-04-00464-CV, 03-04-00466-CV.
    Court of Appeals of Texas, Austin.
    Oct. 21, 2004.
    Rehearing Overruled Nov. 18, 2004.
    
      John J. Hindera, Hindera Law Firm, Austin, for Ruby V. Ludwig.
    Mary Farrington, Carl Bryan Case, Jr., Asst. Dist. Attys., Austin, for Texas Department of Protective and Regulatory Services.
    Robert Galvin, Austin, for Joy Higdon.
    Christina Menning-Utkov, Austin, for Ad Litem.
    Before Justices KIDD, B.A. SMITH and PURYEAR.
   OPINION

BEA ANN SMITH, Justice.

Relator Joy Higdon is the mother of two minor children K.H. and Z.H. The Texas Department of Family and Protective Services (Department) recently obtained a judgment in a suit affecting the parent-child relationship (SAPCR) that terminates Higdon’s parental rights and appoints the Department as sole managing conservator of the children. Relator Ruby Y. Ludwig is the children’s great-grandmother who intervened in the suit and unsuccessfully sought to be named the children’s sole managing conservator.

Relators filed petitions for a writ of mandamus with this Court requesting that we command the trial court to (1) vacate its order terminating Higdon’s parent-child relationship with her children K.H. and Z.H. and appointing the Department as sole managing conservator of the children and (2) dismiss the Department’s SAPCR. Relators contend that the trial court did not render a final order within the mandatory time frame set forth in section 263.401 of the family code, and therefore the trial court had no discretion but to dismiss the Department’s SAPCR. Because we find that both relators made a timely motion that brought the statutory deadline to the attention of the court and the trial court did not render a final order prior to that deadline, we conditionally grant both relators’ petitions.

FACTUAL AND PROCEDURAL BACKGROUND

On January 23, 2003, the trial court entered an ex parte order finding that there was “an immediate danger to the Children, or the Children have been the victim of neglect or sexual abuse and that continuation in the home would be contrary to the Children’s welfare.” See Tex. Fam.Code Ann. § 262.102 (West Supp. 2005). The order gave temporary managing conservatorship to the Department and set a full adversarial hearing for February 3, 2003. See id. A docket entry from the February 3 hearing notes “TMC to CPS” and placement of the children with their great-grandmother, Ludwig. A written order was signed on February 5, 2003 that did not mention the placement of the children or temporary managing conservator-ship but did grant Higdon visitation with the children and ordered Higdon to follow a number of requirements.

Periodic healings were held in the case throughout the year while the children remained with Ludwig. On January 23, 2004, the trial court held a permanency hearing. An order signed January 26, 2004, recognized that the dismissal date for the Department’s SAPCR was January 26, 2004, but extended the deadline until July 24, 2004, in the best interests of the children. In February 2004 Ludwig filed a petition in intervention seeking sole managing conservatorship of the children. In March, the Department filed a notice of settings for the trial on the merits for May 17 or 24, or June 21 or 28.

The jury trial on the merits did not actually begin until Monday, July 19, 2004. The Department rested its case-in-chief on Friday, July 23. Trial resumed on Tuesday, July 27, and the jury returned a verdict the following day. On July 28, 2004, the trial court entered a judgment on the verdict terminating Higdon’s parent-child relationship and designating the Department as sole managing conservator of the children.

Relators both filed motions to dismiss during the trial on Thursday, July 22. These motions informed the trial court that it must dismiss the Department’s SAPCR if a final order was not rendered on or before the dismissal date of July 24, 2004. Relators brought these motions to the trial court’s attention on July 24, before the Department rested its case-in-chief. Relators again sought dismissal of the suit after the jury returned its verdict on July 28. The trial court denied the motions and rendered judgment on the verdict.

DISCUSSION

Mandamus relief is appropriate if a trial court fails to dismiss a SAPCR when an order has not been rendered within the statutory deadline. See In re Ruiz, 16 S.W.3d 921, 926 (Tex.App. — Waco 2000, orig. proceeding) (appeal frequently inadequate to protect right of parents and children in child custody cases because justice demands speedy resolution); In re Bishop, 8 S.W.3d 412, 416 (Tex.App.—Waco 1999, orig. proceeding); In re Neal, 4 S.W.3d 443, 447 (Tex.App.—Houston [1st Dist.] 1999, orig. proceeding). Dismissal can be waived if a party does not properly object to the rendering of an order outside of the deadline. See Tex. Fam.Code Ann. § 263.402(b) (West 2002). Our resolution of this mandamus proceeding centers on whether relators filed a timely motion to dismiss or motion to render a final order so as to avoid waiver of the statutory deadline for a final order in a termination suit. See id.

When considering cases involving the termination of the parent-child relationship, we must be sensitive to the fundamental constitutional rights involved. The Texas Supreme Court has described the bond between parent and child to be a constitutionally protected “natural right” far more precious than the right to property. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Therefore, we strictly construe involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20; Heard v. Bauman, 443 S.W.2d 715, 719 (Tex.1969). Although substantial, the protected interest in the parent-child relationship does not override all procedural restrictions. See In re B.L.D., 113 S.W.3d 340, 354 (Tex.2003) (due process does not require review of unpreserved error in parental rights termination cases).

The time limitations found in chapter 263 of the family code were established by the legislature in order to carry out the 1996 recommendation of the Governor’s Committee to Promote Adoption that parental rights be terminated or families reunified within twelve months. See In re Bishop, 8 S.W.3d at 417. The statute requires dismissal of a termination suit if a final order has not been rendered on or before the first Monday after the one-year anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator of a child. Tex. Fam.Code Ann. § 263.401 (West 2002). The trial court may extend the deadline for dismissal for up to 180 days, and must dismiss the suit if a final order is not rendered on or before the new dismissal date; it may not extend the deadline any more. Id. Amendments to the statute enacted in 2001 eliminated jurisdictional language in the deadline provision and created section 263.402’s waiver provision. See In re J.B.W., 99 S.W.3d 218, 224 (Tex.App.—Fort Worth 2003, pet. denied). Section 263.402 prohibits the parties in a termination suit from extending the dismissal deadline by agreement, but provides that the deadline can be waived:

A party to a suit under this chapter who fails to make a timely motion to dismiss or to make a motion requesting the court to render a final order before the deadline for dismissal under this sub-chapter waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the department has introduced all of the department’s evidence, other than rebuttal evidence.

Tex. Fam.Code Ann. § 263.402(b) (West 2002). In this case, the trial court overruled relators’ motions to dismiss based on the Department’s contention that relators had waived the right to object under section 263.402(b).

The Department explains that relators waived their right to object to the rendering of an order beyond the dismissal deadline because relators’ motions were filed prior to the dismissal deadline, when they were not yet timely, and were reurged after the Department rested its case-in-chief, when they were no longer timely. Essentially, the Department seeks an interpretation of the statute which would only permit a timely motion to dismiss to be filed during a window of time in which the dismissal deadline has passed, but the Department has not yet completed its case-in-chief. So long as the department completed its case-in-chief prior to the dismissal deadline, it would be impossible to enforce section 263.401’s requirement that a final order be rendered on or before the dismissal deadline. See id. § 263.401. We do not find that this interpretation reflects the plain language of sections 263.401 and 263.402, nor would it be consistent with our obligation to strictly construe the statute in favor of parents. See Holick, 685 S.W.2d at 20; Heard, 443 S.W.2d at 719.

Section 263.402(b) defines a timely motion to dismiss as one that is filed “before the department has introduced all of department’s evidence ... at the trial on the merits.” Tex. Fam.Code Ann. § 263.402(b). Requiring a motion to dismiss to be filed before the Department concludes its case-in-chief is consistent with other provisions in the statute that give notice to the Department and the trial court that the case will be dismissed if it continues past the deadline. The statute requires the trial court to “set a final hearing ... on a date that allows the court to render a final order before the date for dismissal of the suit under this chapter.” Id. § 263.304 (emphasis added). The 180 day extension provision in section 263.401 also states that the court shall render an order that “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.” Id. § 263.401(b)(3) (emphasis added). These provisions, which caution trial courts to set a hearing well in advance of the dismissal date and require giving notice of an impending dismissal deadline before the Department rests its case-in-chief, evidence the legislature’s intent that suits be dismissed even during the trial on the merits if no final order is rendered before the dismissal date.

The Department’s interpretation of the statute is also inconsistent with the plain language of section 263.401’s dismissal provision. That statute requires dismissal if a final' order is not rendered within the statutory time limitation. The Department’s interpretation would limit dismissal to cases where the Department failed to complete its case-in-chief within that time frame. Section 263.401, however, makes dismissal contingent on the date the trial court renders a final order. We will not ignore the clear language of the statute to require only that the Department rests its case-in-chief before the deadline.

Furthermore, there is no mention of a requirement that a timely motion to dismiss be filed after the expiration of the dismissal deadline, and we will not construe the statute to include a procedural trap for unwary parents. See Holick, 685 S.W.2d at 20.

The Department forcefully argues it should only be required to complete its case-in-chief before the deadline because that is the only aspect of a trial under its control. The trial court also reasonably questioned the wisdom of an arbitrary deadline for the dismissal of a termination suit when a trial is well under way or a jury has reached a verdict. However, these issues need to be brought to the attention of the legislature; this court cannot avoid the plain language of the statute as it is now written.

The Department alternatively contends that the true dismissal date was not until August 2004 because the Department was not actually appointed temporary managing conservator until August 11, 2003. Although there is an order dated August 16, 2003 which appoints the Department temporary managing conservator, the statute begins the one-year time limit when a “temporary order appointing the department as temporary managing conservator” is signed. Id. § 263.401(a) (emphasis added). The trial court issued a temporary order appointing the Department temporary managing conservator of the children on January 23, 2002, pursuant to its authority under section 262.102 of the family code. Therefore, the one-year dismissal deadline was correctly set from that date.

CONCLUSION

The relators made timely motions to dismiss which preserved their right to object to the trial court’s rendering of a final order after the dismissal date for this termination proceeding. Because the trial court was required to dismiss the Department’s SAPCR, we conditionally grant the writ. The writ will issue only in the event that the trial court does not vacate its order terminating Higdon’s parent-child relationship and dismiss the Department’s SAPCR. 
      
      . The trial judge's comments at the July 28 hearing indicate that she thoughtfully considered relators’ motions and was greatly troubled by the dilemma they presented:
      [I]t seems to me that almost every case I’ve had lately has not been very tidy, and we are out here making law on the — regrettably, in a situation involving a four-year-old child and a 20-month old, and I cannot in good conscience, after hearing from 11 members of the jury that they believe that Mr. Galvan’s client’s parental rights should be terminated and that Ms. Ludwig is not the individual that they have identified as managing conservator, that they do not find that in the best interest of the child.
      I cannot in good conscience fail to give the legislature some latitude in creating section 263.402 for the reasons articulated by the Department.
     
      
      . The statute permits a party to avoid waiver by filing either a "motion to dismiss" or a “motion to render a final order” before the dismissal deadline. See Tex. Fam.Code Ann. § 263.402(b) (West 2002). To the extent that the Department argues that relators waived the right to object to the trial court’s failure to dismiss the case because they filed a "motion to dismiss” rather than a “motion to render a final order before the deadline for dismissal,” we construe relators' motions to dismiss as motions to render a final order. Relators motions citing the statutory deadline gave notice to the court and the Department that the case must be dismissed if the court did not render a final order on or before the deadline. We will not find waiver because relators may have incorrectly titled their motion. See In re A.B., 125 S.W.3d 769, 773 n. 2 (Tex.App.—Texarkana 2003, pet. denied) (motion for new trial that alternatively sought dismissal preserved issue for review); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985).
     
      
      . See supra note 1.
     
      
      . There is also a docket entry dated February 3, 2002 which appoints the Department temporary managing conservator.
     