in the Interest of C.V.G. A/K/A C.V.S. A/K/A C.V.S.

Opinion issued June 5, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00456-CV

____________

IN THE INTEREST OF C.V.G. a/k/a C.V.S., A MINOR CHILD

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 99-05963J

OPINION ON REHEARING

Texas Department of Protective and Regulatory Services (TDPRS), the

appellee, and Allen C. and Pamela R. Gunter, the intervenors, filed motions for

rehearing. We grant the motions, withdraw our opinion of October 31, 2002, and

issue this one in its stead.

Maria Carolina Vicente Garcia appeals the final judgment terminating her

parental rights as to C.V.G. (a.k.a. C.V.S.). In one point of error, Garcia argues that

the trial court lacked jurisdiction to enter the final order because it failed to properly

grant an order extending its jurisdiction beyond the dismissal date. We affirm.

FACTS

In August 1999, Allen and Pamela Gunter became foster parents of C.V.G.

On August 24, 1999, the Texas Department of Protective and Regulatory Services

(TDPRS) filed a suit affecting the parent-child relationship (SAPCR), seeking to

terminate Garcia’s and Hector Sotelo’s

parental rights to C.V.G. The trial court

named TDPRS temporary managing conservator of C.V.G. on September 8, 1999.

On July 26, 2000, TDPRS requested, by motion, an extension of the dismissal

deadline, which originally was August 30, 2000. That same day, the trial court made

the following entry on the docketing sheet: “continue FH and ext. of D.D. Look for

placement. FH – 11– 13– 00. Blood test on all F.” On November 13, 2000, the trial

court signed an order granting TDPRS’s motion for extension of time and ordered

that the new dismissal date was to be February 24, 2001.

On January 25, 2001, the Gunters filed their petition in intervention seeking

termination of Garcia’s and Sotelo’s parental rights. The trial court granted the

Gunters’s intervention without objection from Garcia. On February 5–7, 2001, a

bench trial was conducted; at its conclusion, the trial court found that Garcia’s

conduct had endangered C.V.G. and ordered Garcia’s parental rights terminated. On

February 19, 2001, the trial court entered a final judgment that terminated Garcia’s

parental rights and appointed TDPRS as C.V.G.’s sole managing conservator.

JURISDICTION

In her sole point of error, Garcia contends that the trial court did not have

jurisdiction to enter a final order. Specifically, she argues that, because the trial court

did not render an extension order that included a new dismissal date prior to the first

Monday following the one-year anniversary of the date the trial court rendered a

temporary order appointing TDPRS as temporary managing conservator, the trial

court lacked jurisdiction to enter the final order.

Waiver

TDPRS argues that Garcia did not preserve error to challenge the trial court’s

failure to dismiss the suit under section 263.401 of the Family Code. Tex. Fam.

Code Ann . § 263.402(b) (Vernon 2002). Specifically, it argues that, because the

Legislature amended sections 263.401 and 263.402 during the pendency of this

appeal, Garcia was required to move for dismissal before TDPRS presented its

evidence at trial.

See Act of June 11, 1997, 75th Leg., R.S., ch. 600, 1997 Tex. Gen.

Laws 2108 , 2113, amended by Act of May 22, 2001, 77th Leg., R.S., ch. 1090, §§

8 and 9, 2001 Tex. Gen. Laws 2395 , 2396. Garcia did not make a motion to dismiss

the case for lack of jurisdiction.

These amendments, however, do not affect Garcia’s ability to bring this appeal.

The enacting legislation provides: “An appeal of a final order under Subchapter E,

Chapter 263, Family Code, filed before the effective date of this Act is governed by

the law in effect on the date the appeal was filed, and the former law is continued in

effect for that purpose.” Act of May 22, 2001, 77th Leg., R.S., ch. 1090, §§ 8 and

9, 2001 Tex. Gen. Laws 2395 , 2396 . Garcia filed her notice of appeal on March 26,

2001, and the amendments to sections 263.401 and 263.402 became effective

September 1, 2001. Therefore, Garcia was not required to move for dismissal to

preserve error for appeal. We conclude that Garcia’s appeal is properly before this

Court.

TDPRS

In her sole point of error, Garcia argues

The trial court had no jurisdiction to enter a final order after the first

Monday following the anniversary of the date the court rendered a

temporary order appointing Appellee as Temporary Managing

Conservator, because the trial court failed to render an extension order

scheduling a new date for dismissal prior to the aforesaid first

anniversary.

Appellant’s argument is based on section 263.401(a) of the Family Code, which

provides that, unless the trial court renders a final order by the first Monday after the

first anniversary of the date the trial court rendered a temporary order appointing

TDPRS as temporary managing conservator in a suit affecting the parent-child

relationship (SAPCR), the trial court shall dismiss the suit. Tex. Fam. Code Ann .

§ 263.401(a) (Vernon 2002); In re Neal , 4 S.W.3d 443, 445 (Tex. App.—Houston

[1st Dist.] 1999, no pet.).

Here, the trial court rendered its temporary order appointing a temporary

managing conservator on September 8, 1999. The first Monday after the first

anniversary of the trial court’s signing of the order was on September 11, 2000. On

July 26, 2000, the trial court made an entry on the docket sheet, which we construe

as a continuance of the final hearing of the case until November 13, 2000 and an

extension of the dismissal date. The docket sheet does not show the newly-scheduled

dismissal date. On November 13, the trial court signed an order granting the

extension of the dismissal date until February 24, 2001. The order stated, in part,

that, “on July 26, 2000, the [trial court] considered [TDPRS’s] Motion for Extension

of Dismissal date.”

Garcia argues that, because the new dismissal date (February 24, 2001) was not

included in the docket notation, the trial court failed to properly render the order

extending the dismissal date. She also argues that, because the trial court did not

properly extend its jurisdiction by making the docket entry, the trial court lacked

jurisdiction to enter a final order terminating Garcia’s parental rights in February.

Garcia relies on In re Ruiz , 16 S.W.3d 921, 924 (Tex. App.—Waco 1999, orig.

proceeding), and In re Bishop , 8 S.W.3d 412, 419 (Tex. App.—Waco 2000, orig.

proceeding), in support of her argument.

In Ruiz , the court considered whether the trial court’s signed docket notation

constituted a rendition of final judgment by written memorandum. In re Ruiz , 16

S.W.3d at 924 . The docket notation indicated that a “decree of termination [was] to

be entered as to both parents per [the] jury’s verdict,” but it did not name a managing

conservator for the child. Id . The Ruiz court held that the docket notation did not

grant TDPRS’s petition because it merely indicated the trial court’s intention to

render a termination decree in the future; had the docket notation constituted a

rendition of judgment, it would have been insufficient because it failed to address the

appointment of a managing conservator. Id .; see also Tex. Fam. Code Ann . §

263.401(d)(4) (Vernon 2002).

In Bishop , the trial court entered an order naming a temporary managing

conservator on September 14, 1998. In re Bishop , 8 S.W.3d at 415 . A permanency

hearing was conducted on April 1, 1999. Following the hearing, the trial court

entered an order stating that “the suit shall be dismissed on dates set by an amended

scheduling order which date is not later than 180 days following the date this

temporary order is rendered.” Id . On July 15, 1999, the trial court entered an order

continuing a pretrial hearing until September 16 and continuing the trial date until

October 5. Id . On September 30, two days after the one-year dismissal deadline of

September 28, the trial court heard and denied the relator’s motion to dismiss. Id .

The appeals court held that the extension order complied with all requirements of

section 263.401(b) except subsection (b)(1), which requires that the order specify a

new date of dismissal. Id . at 418. The Bishop court also held that, because the trial

court’s second extension order based on the “return and monitor” exception was

entered two days after the extended dismissal date, the trial court was required to

dismiss the suit. Id .

Here, unlike Ruiz , the trial court’s docket notation indicates a present intention

to extend the dismissal date. Therefore, we consider, as did the Bishop court, whether

the docket notation complies with the section 263.401(b) requirements for entering

an order. Section 263.401(b) provides, in pertinent part, that the trial court shall

render an order in which the court (1) schedules a new dismissal date, (2) makes any

necessary temporary orders for the safety and welfare of the child, and (3) sets a final

hearing date. Here, the trial court set the final hearing date for November 13, 2000,

made an order to “look for placement,” and ordered “blood test[s] on all F.”

The

docket notation complied with subsections two and three. However, the docket

notation failed to include a new dismissal date, as required by section 263.401(b)(1).

The trial court, therefore, lost jurisdiction over the case on September 12, 2000.

Furthermore, even if, by giving meaning to the docket sheet, we construed the

November 13, 2000 final hearing date as the new dismissal date, the trial court

violated section 263.401(c) of the Family Code by thereafter setting a later dismissal

date of February 24, 2001. See Tex. Fam. Code Ann . § 263.401(c)(Vernon 2002)

(only one order extending dismissal date is allowed). Accordingly, the trial court lost

jurisdiction over TDPRS’s SAPCR before the trial on February 5, 2001.

The Gunters

All parties agree that the Gunters had standing to bring suit seeking termination

based on their role as C.V.G.’s care givers for one and one-half years. See Tex. Fam.

Code Ann. § 102.003(12) (Vernon 2002). Even if, as we have decided, the trial court

no longer had jurisdiction over TDPRS’s petition, there was nothing to preclude the

Gunters from filing suit under section 161.001.

The Gunters’ petition in intervention sought termination of Garcia’s and

Sotelo’s parental rights. The final order of the trial court granted the same relief that

the Gunters requested with respect to termination, and the Gunters have requested an

affirmance of the trial court’s judgment.

The trial court can appoint any suitable person or agency to be C.V.G.’s

managing conservator, regardless of whether such person or agency filed pleadings

requesting such appointment. Tex. Fam. Code Ann . § 161.207 (Vernon 2002); In

re Ruiz , 16 S.W.3d at 925 . Therefore, our decision that the trial court had no

jurisdiction over TDPRS’s claims is of no consequence to the trial court’s decision

to name TDPRS as C.V.G.’s managing conservator. Garcia’s and Sotelo’s parental

rights are terminated and TDPRS is C.V.G.’s managing conservator.

We overrule Garcia’s sole point of error and find that the trial court, despite

having lost jurisdiction over TDPRS’s claims, maintained jurisdiction over the

Gunters’ petition.

Conclusion All pending motions are denied. We reform the decree to reflect that the

Gunters were the petitioners, and, as reformed, we affirm.

Frank C. Price

Justice

Panel consists of Justices Taft, Mirabal,

and Price.

Justice Mirabal concurring.