In re D.W., No. 2-06-191-CV.

CourtCourt of Appeals of Texas
Writing for the CourtAnne Gardner
Citation249 S.W.3d 625
PartiesIn the Interest of D.W., T.W., and S.G., Children.
Decision Date19 February 2008
Docket NumberNo. 2-06-191-CV.
249 S.W.3d 625
In the Interest of D.W., T.W., and S.G., Children.
No. 2-06-191-CV.
Court of Appeals of Texas, Fort Worth.
February 19, 2008.

[249 S.W.3d 628]

Swanda & Swanda, P.C., Dean M. Swanda, Arlington, for Appellant.

Lee Owens, Arlington, Guardian Ad Litem.

Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Chief, Appellate Division, Sharon A. Johnson, Melissa R. Paschall, Asst. Dist. Attys., Fort Worth and Duke Hooten, Austin, for Appellee.

Before the court en banc.

OPINION

ANNE GARDNER, Justice.


Appellant Betty W. appeals a final order terminating her parental rights to her three children, D.W., T.W., and S.G. In

249 S.W.3d 629

four issues, she complains that (1) the one-year dismissal deadline imposed by section 263.401(a) of the Texas Family Code violates the Separation of Powers Clause of the Texas constitution; (2) the trial court erred by denying her motion to extend the one-year dismissal deadline; (3) section 263.405(i) of the family code, barring review by appellate courts of issues not listed in a statement of points in the trial court, violates the Separation of Powers Clause of the Texas constitution; and (4) section 263.405(i) also violates due process under the United States Constitution. We hold that Betty failed to preserve her first issue under the rules of appellate procedure; that section 263.405(i) violates the Separation of Powers Clause of the Texas constitution; but that, on the merits of Betty's second issue, the trial court did not abuse its discretion by overruling Betty's motion to extend the one-year dismissal deadline. Accordingly, we affirm.

I. Procedural Background

Betty is the biological mother of D.W., T.W., and S.G.1 The Texas Department of Family and Protective Services ("Department") filed a petition seeking to terminate the parent-child relationship between Betty and her two older children, D.W. and T.W., on June 6, 2005. Betty gave birth to S.G. on July 12, 2005. The Department subsequently filed an amended petition adding S.G.

The trial court set a final hearing in this case for April 3, 2006. Betty filed a "Motion For Extension Of Time To Dismiss Suit Or Render Final Order And Alternative Motion For Continuance" on March 22, 2006. She sought to extend the final hearing deadline by 180 days or, alternatively, to continue the trial date until a time closer to the original dismissal deadline.2 The trial court's docket sheet reflects that the trial court granted Betty a continuance but only reset the final hearing to May 16, 2006, still within the existing one-year dismissal deadline. Prior to the beginning of the termination hearing on May 16, 2006, Betty's trial counsel re-urged her motion requesting a 180-day extension, but the trial court denied it.

After a hearing on the merits, the trial court found that Betty knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, that Betty engaged in conduct or placed the children with persons who engaged in conduct which endangered their physical or emotional well-being, and that termination of the parent-child relationship was in the best interest of the children. The trial court rendered its final order terminating Betty's parental rights to all three children on May 16, 2006.

On May 31, 2006—the fifteenth day after the trial court entered its termination order—Betty's trial counsel filed a notice of appeal and statement of points for appeal, raising only insufficient-evidence

249 S.W.3d 630

points.3 On June 1—the sixteenth day— the trial court granted trial counsel's motion to substitute and appointed appellate counsel to represent Betty.

On June 6—the twenty-first day after the trial court signed its final order—appellate counsel filed a "Motion for New Trial and Supplemental Statement of Points on Appeal." In her supplemental points, Betty contended that the evidence was factually insufficient to support the trial court's order and that family code section 263.405(i) violates the separation of powers provision of the Texas constitution and the Due Process Clause of the United States Constitution. This appeal followed.

II. Discussion

As previously noted, Texas Family Code section 263.401 provides a one-year dismissal deadline for a suit affecting the parent-child relationship filed by the Department that requests termination or conservatorship, with a one-time extension of 180 days based upon proof of "extraordinary circumstances":

(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.

(b) 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 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. 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).4

The version of family code section 263.405(i) applicable to this suit provides:

The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.5

Thus, section 263.401 deals with the dismissal deadline while section 263.405(i) deals with what issues we may consider on appeal.

A. Section 263.401's Dismissal Deadline and Separation of Powers

In her first issue, Betty argues that the legislative dismissal deadline found in section 263.401 violates the separation of powers provision of the Texas constitution by interfering with the trial courts' judicial

249 S.W.3d 631

power to determine the timing and speed of disposition of causes. But Betty failed to raise this issue in the trial court.

To preserve her complaint for our review under the Texas Rules of Appellate procedure, Betty must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if the grounds are not apparent from the context of the request, objection, or motion, and she must have obtained an explicit or implicit ruling from the trial court.6 If a party fails to do this, error is not preserved, and the complaint is waived.7 Even a constitutional challenge to the facial validity of a statute may apparently be waived if not properly raised in the trial court.8

Betty argues the Separation of Powers Clause renders the dismissal statute void so that preservation of her first issue in the trial court was not required. But the cases she relies upon involved challenges to void judgments, which can be attacked at any time, not void statutes.9 Betty is not contending that the judgment is void; she is complaining that the judgment is erroneous because the statute in question imposes arbitrary deadlines that prevented her from properly presenting her defense.10 Thus, Betty's complaint does not involve the type of challenge of facial unconstitutionality of a statute that may be asserted for the first time on appeal.

Betty also concedes in her brief that neither her original nor her supplemental statement of points contained a complaint regarding the constitutionality of section 263.401. Because Betty never raised the constitutionality of section 263.401 in the trial court, she cannot raise that issue on appeal.11 Therefore, we overrule her first issue.

B. Trial Court's Denial of Betty's Motion to Extend Dismissal Deadline

1. Preservation of Error

In her second issue, Betty argues that the trial court erred by denying her

249 S.W.3d 632

motion for a 180-day extension of the dismissal deadline because she showed extraordinary circumstances. Unlike Betty's first issue, this issue was preserved for appeal not just once but twice pursuant to appellate rule 33.1 — first by her pretrial motion for extension of the final hearing deadline by 180 days and second by her action in re-urging that motion before trial began — and she obtained a ruling by the trial court on both occasions.12

2. New Section 263.405(i) as a Bar to Considering Betty's Second Issue

Nevertheless, the Department contends that section 263.405(i) bars us from considering Betty's second issue because she failed to list it in her original statement of points filed within fifteen days after the judgment was signed as required by section 263.405(b). This brings us to Betty's third issue, in which she contends that, to the extent section 263.405(i) bars our consideration of her issue on the merits, it violates the Separation of Powers Clause of the Texas constitution.13

As a threshold matter, we must determine whether we are precluded from considering Betty's third issue challenging the constitutionality of section 263.405(i) because that issue was likewise not included in her original statement of points. As we have already noted, while Betty did not challenge section 263.405(i)'s constitutionality in her original statement of points, she did list that "point" in her supplemental statement of points and motion for new trial.14

Nevertheless, because her supplemental statement of points was not filed within the fifteen-day period required by section 263.405(b), the Department argues that section 263.405(i) bars us from even considering Betty's complaints about that section's constitutionality. But our ability to...

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83 practice notes
  • Goyzueta v. State, No. 2-07-383-CR.
    • United States
    • Court of Appeals of Texas
    • August 26, 2008
    ...unduly interferes with another branch so that the other cannot effectively exercise its constitutionally assigned powers. In re D.W., 249 S.W.3d 625, 635 (Tex.App.-Fort Worth 2008, pet. denied). The power to pass laws and to revise the criminal laws of Texas is vested in the legislature. TE......
  • In the Interest of M.M.F., No. 2-08-014-CV (Tex. App. 12/18/2008), No. 2-08-014-CV.
    • United States
    • Court of Appeals of Texas
    • December 18, 2008
    ...family code section 263.405(i) is void as a violation of the separation of powers provision of the Texas constitution. See In re D.W., 249 S.W.3d 625, 645 (Tex. App.-Fort Worth 2008, pet....
  • In re Interest of J.A.W., No. 06-09-00068-CV (Tex. App. 4/1/2010), No. 06-09-00068-CV.
    • United States
    • Court of Appeals of Texas
    • April 1, 2010
    ...substantive power as an appellate court to rehear and determine issues on the merits that were decided in the court below. In re D.W., 249 S.W.3d 625, 640 (Tex. App.-Fort Worth 2008, pet. denied) (footnote However, the facts in this case are distinctly different from those in D.W. In that c......
  • In the Interest of T.T.F., a Child., No. 02–09–00382–CV.
    • United States
    • Court of Appeals of Texas
    • December 2, 2010
    ...section 263.401(b) does not indicate which appellate standard of review to apply, we apply the abuse of discretion standard.” In re D.W., 249 S.W.3d 625, 647 (Tex.App.-Fort Worth 2008, pet. denied) (citing In re J.A., No. 02–05–00454–CV, 2006 WL 3114434, at *9 (Tex.App.-Fort Worth 2006, no ......
  • Request a trial to view additional results
81 cases
  • Goyzueta v. State, No. 2-07-383-CR.
    • United States
    • Court of Appeals of Texas
    • August 26, 2008
    ...unduly interferes with another branch so that the other cannot effectively exercise its constitutionally assigned powers. In re D.W., 249 S.W.3d 625, 635 (Tex.App.-Fort Worth 2008, pet. denied). The power to pass laws and to revise the criminal laws of Texas is vested in the legislature. TE......
  • In the Interest of M.M.F., No. 2-08-014-CV (Tex. App. 12/18/2008), No. 2-08-014-CV.
    • United States
    • Court of Appeals of Texas
    • December 18, 2008
    ...family code section 263.405(i) is void as a violation of the separation of powers provision of the Texas constitution. See In re D.W., 249 S.W.3d 625, 645 (Tex. App.-Fort Worth 2008, pet....
  • In re Interest of J.A.W., No. 06-09-00068-CV (Tex. App. 4/1/2010), No. 06-09-00068-CV.
    • United States
    • Court of Appeals of Texas
    • April 1, 2010
    ...substantive power as an appellate court to rehear and determine issues on the merits that were decided in the court below. In re D.W., 249 S.W.3d 625, 640 (Tex. App.-Fort Worth 2008, pet. denied) (footnote However, the facts in this case are distinctly different from those in D.W. In that c......
  • In the Interest of T.T.F., a Child., No. 02–09–00382–CV.
    • United States
    • Court of Appeals of Texas
    • December 2, 2010
    ...section 263.401(b) does not indicate which appellate standard of review to apply, we apply the abuse of discretion standard.” In re D.W., 249 S.W.3d 625, 647 (Tex.App.-Fort Worth 2008, pet. denied) (citing In re J.A., No. 02–05–00454–CV, 2006 WL 3114434, at *9 (Tex.App.-Fort Worth 2006, no ......
  • Request a trial to view additional results

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