Celestine v. Dep't Of Family

• Decision Date: 15 July 2010
• Docket Number: No. 01-09-00693-CV.,01-09-00693-CV.
• Citation: 321 S.W.3d 222
• Parties: Priscilla CELESTINE, Appellant, v. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
• Court: Texas Court of Appeals

321 S.W.3d 222

Priscilla CELESTINE, Appellant,

v.DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.

No. 01-09-00693-CV.

Court of Appeals of Texas,Houston (1st Dist.).

July 15, 2010.

COPYRIGHT MATERIAL OMITTED.

Shonda M. Jones, Law Office of Shonda Jones, Houston, TX, for Appellant.

Brian J. Fischer, Sandra D. Hachem, Senior Assistant County Attorney, Houston, TX, for Appellee.

Panel consists of Justices KEYES, HANKS, and HIGLEY.

OPINION

EVELYN KEYES, Justice.

Appellant, Priscilla Celestine, appeals the dismissal of her petition for adoption and the trial court's denial of her motion for new trial. We affirm the judgment of the trial court.

BACKGROUND

On August 29, 2006, the 313th Judicial District Court of Harris County issued a final decree terminating the parental rights of DDD's, DJD's, JID's and CRD's biological parents and appointing the Department of Family and Protective Services (DFPS) as the children's sole managing conservator. ¹ DFPS had placed the children with Celestine while the termination proceeding was pending. In December 2006, DFPS removed the children from Celestine's home after a caseworker learned that Celestine had left the children alone with their biological mother. ² It is undisputed that the children had only lived with Celestine for five and a half months prior to their removal.

On May 17, 2007-five months after the children were removed from her home-Celestine, claiming to be a maternal aunt to two of the children, filed a petition to terminate DFPS's conservatorship and adopt all four children. ³ Although Celestine attempted to file her petition for adoption under cause number 2005-03847J (termination proceeding), the clerk's office corrected the error and assigned Celestine's petition a new cause number, 2007-29969. ⁴ Celestine subsequently filed three amended petitions. ⁵ DFPS responded to all three by filing general denials and special exceptions asserting that Celestine failed to plead any facts that would establish that she had standing to bring the suit. In its response to Celestine's Third Amended Petition, DFPS also moved to strike the pleadings. After a hearing before Associate Judge Robert Molder of the 313th Judicial District Court, DFPS's motion to strike was denied. ⁶ DFPS subsequently filed its First Amended Answer to Celestine's Third Amended Petition. In its amended answer, DFPS stated that, as the children's Sole Managing Conservator, it did not consent to Celestine's adoption of the children and, furthermore, that waiver of consent was not authorized because DFPS had good cause to refuse consent.

For reasons not fully explained by either the briefs or the clerk's record in this matter, Celestine's petition came before Judge Frank Rynd, presiding judge of the 309th District Court of Harris County. ⁷ Celestine argues in her supplemental brief that the District Clerk's office must have erroneously assigned her case to the 309th District Court when it assigned her petition a new cause number, 2007-29969. On August 25, 2008, Judge Rynd signed an order of dismissal for want of prosecution under the corrected cause number and style of Celestine's petition for adoption. The order of dismissal, which was filed with the District Clerk's office on August 27, 2008, indicates that neither Celestine nor her counsel appeared on April 25, 2008 for a trial on the merits. No motion to reinstate was filed with respect to Judge Rynd's order.

Despite Judge Rynd's order of dismissal, a hearing on Celestine's petition for adoption was held on October 1, 2008 before Associate Judge Robert Molder of the 313th Judicial District Court, presided over by Judge Pat Shelton. ⁸ After the hearing, the 313th District Court signed an order dismissing Celestine's petition with prejudice, and without explanation. Celestine promptly filed a motion for new trial before the 313th District Court, which, after a hearing, was also denied without explanation. Celestine now appeals the October 2008 order of the 313th District Court dismissing her petition for adoption and the subsequent denial of her motion for new trial/reconsideration.

SUBJECT MATTER JURISDICTION

As a preliminary matter, we must determine whether the 313th District Court had jurisdiction to enter the October 1, 2008 order of dismissal. DFPS argues that the October 1, 2008 order of dismissal-the only order of dismissal Celestine is appealing-was appropriate because the case had already been dismissed on August 25, 2008 for want of prosecution by Judge Rynd, the presiding Judge of the 309th District Court, who was sitting on behalf of the 313th District Court, pursuant to the exchange-of-benches doctrine. According to DFPS, by the time Associate Judge Molder heard the motion to dismiss on October 1, 2008, the 313th District Court's plenary power had already expired, thus depriving the court of jurisdiction over the case. Celestine, on the other hand, argues that Judge Rynd was not acting on behalf of the 313th District Court, as DFPS contends, but, instead, was acting on behalf of the 309th District Court because the District Clerk's office had erroneously assigned her petition to Judge Rynd's court, the 309th District Court. According to Celestine, the 309th District Court did not have jurisdiction to dismiss her petition for adoption because the 313th District Court was the court of continuing and exclusive jurisdiction. Although she does not expressly state as much, we understand the remainder of her argument to be that the August 25, 2008 order issued by Judge Rynd was void for want of jurisdiction (rather than merely “voidable”); therefore, the district court's plenary power had not expired by the time Associate Judge Molder dismissed her petition, and Associate Judge Molder could not have properly dismissed her petition on that basis.

Exchange of Benches Doctrine

The Texas Constitution and Government Code give district courts broad discretion to exchange benches and enter orders on other cases in the same county, even without a formal order memorializing the exchange or transfer. In re U.S. Silica Co., 157 S.W.3d 434, 439 (Tex.2005); Tex. Const. art. V, § 11 (“[T]he District Judges may exchange districts, or hold courts for each other when they may deem it expedient”); Tex. Gov't Code Ann. § 74.094(a) (Vernon 2005) (stating that district court judges may “hear and determine a matter pending in any district or statutory county court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the matter. The judge may sign a judgment or order in any of the courts regardless of whether the case is transferred. The judgment, order, or action is valid and binding as if the case were pending in the court of the judge who acts in the matter.”); Tex. Gov't Code Ann. § 24.303(a) (Vernon 2004) (allowing district court judges in multi-court counties to transfer any civil or criminal matters on their docket to another district court in the same county and to “exchange benches or districts from time to time”). The Texas Rules of Civil Procedure further enforce this rule. In counties with more than one district court, “any judge may hear any part of any case.” See Tex.R. Civ. P. 330(g). And Rule 330(h) provides that in such counties, “any judge may hear ... all preliminary matters, questions and proceedings and may enter judgment or order thereon in the court in which the case is pending without having the case transferred to the court of the judge acting.... Any judgment rendered or action taken by any judge in any of said courts in the county shall be valid and binding.” Tex.R. Civ. P. 330(h).

Although the Texas Family Code contains a unique provision giving a court continuing and exclusive jurisdiction over matters involving the welfare of a child upon the rendition of a final order in an original suit affecting a parent-child relationship, see Tex. Fam.Code Ann. § 155.001 (Vernon 2008), this does not preclude the application of the exchange-of-benches doctrine in such cases. See In re Garza, 981 S.W.2d 438, 441 (Tex.App.-San Antonio 1998, orig. proceeding) (holding that when district court has continuing and exclusive jurisdiction over SAPCR matter, judge of another district court in same county may rule in matter, so long as record is clear that judge is acting on behalf of court with continuing and exclusive jurisdiction).

It is undisputed that the 313th Judicial District Court has exclusive and continuing jurisdiction in the present case by virtue of the fact that it issued the final order in the termination proceeding. See Tex. Fam.Code Ann. § 155.001. If Judge Rynd was acting on the behalf of the 313th, the court of continuing and exclusive jurisdiction-rather than acting on the behalf of the 309th-there would be no question that the August 25, 2008 order he signed dismissing Celestine's petition for want of prosecution was valid and enforceable as an order of the 313th District Court. Thus, the initial issue before this Court is whether the record demonstrates that Judge Rynd was acting on behalf of the 309th or the 313th District Court when he issued his order dismissing Celestine's petition.

The August 25, 2008 order dismissing Celestine's petition was signed by Judge Rynd in his capacity as “Judge.” The order's caption suggests that the matter was pending before the 309th District Court. The District Clerk's record also contains docket sheets indicating that Celestine's adoption case may have been mistakenly assigned to the 309th District Court when the District Clerk's office assigned her petition for adoption a new cause number, 2007-29969. Moreover, docket sheets from the 313th District Court, which are also contained in the District Clerk's record, indicate that the 313th was docketing activities relating to Celestine's adoption petition under the 2005 case number assigned to the termination proceeding rather than under the 2007 case number assigned to the...