In re Roxsane R.

• Decision Date: 28 March 2008
• Docket Number: No. 2-07-397-CV.,2-07-397-CV.
• Citation: 249 S.W.3d 764
• Parties: In re ROXSANE R.
• Court: Texas Court of Appeals

249 S.W.3d 764

In re ROXSANE R.

No. 2-07-397-CV.

Court of Appeals of Texas, Fort Worth.

March 28, 2008.

Judith A. Grantham, Carrollton, TX, for Appellant.

Griffith, Jay & Michel, LLP, Thomas M. Michel, Fort Worth, TX, for Appellee.

Panel B: LIVINGSTON, WALKER, and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

This is an original proceeding in which relator Roxsane R., J.R.'s mother, contends that this court should compel the trial court to dismiss the pending plea in intervention filed by real parties in interest Jennifer and Gary S., former foster parents of J.R., in which they seek to be named managing conservators of J.R. We conditionally grant the writ.¹

Background

On October 30, 2003, the Texas Department of Family and Protective Services (TDFPS)² filed an original petition for emergency removal of four-month-old J.R. in the 170th District Court of McLennan County, seeking permanent managing conservatorship. J.R. was with his mother Roxsane in Wisconsin at the time and was removed there. J.R. was placed with the foster parents around this time. TDFPS amended its petition on November 9, 2004, adding a paragraph seeking termination of the parent-child relationship.

Roxsane filed a motion to dismiss on April 11, 2005, in which she alleged that the trial court should dismiss the case if a final order was not entered by the statutory dismissal date, April 28, 2005.³ The trial court held a jury trial the next day, April 12, 2005. The trial court's charge to the jury submitted only the termination ground, not the ground seeking to have TDFPS named permanent managing conservator.⁴ The jury found that Roxsane's parental rights should not be terminated.

Nothing in the record shows that Roxsane ever moved for a judgment on the verdict. On April 19, 2005, after the jury trial but before the trial court had rendered judgment on the verdict, the foster parents filed a plea in intervention, alleging standing under family code section 102.003(12), which allows foster parents who have had a child placed in their home "for at least 12 months ending not more than 90 days preceding the date of the filing of the petition" to file an original suit affecting the parent-child relationship (SAPCR). TEX. FAM.CODE ANN. § 102.003(12) (Vernon Supp.2007). Their petition alleged that it was in J.R.'s best interest that TDFPS continue to be managing conservator under family code section 263.401(d)⁵ or 263.403,⁶ or in the alternative, that the trial court appoint the foster parents as J.R.'s managing conservators.

Although there is no written objection to the plea in intervention in the mandamus record, Roxsane must have objected to the foster parents' standing to intervene because the trial court ruled on the standing issue in a hearing on April 26, 2005 as follows:

[I]t's being raised at this point in time as to whether or not they can participate in this proceeding. The Court will, with some trepidation, rule at this point in time that [the foster parents do] have standing, believing that intervention and standing to file an original suit are essentially the same in regard to this matter.

At the hearing, the trial court also determined that the evidence warranted the issuance of a monitored return order under section 263.403⁷ of the family code.

On April 28, 2005—the section 263.401 enter-a-final-order-or-dismiss date—the trial court entered a monitored return order under section 263.403, finding that TDFPS should continue to serve as temporary managing conservator but that J.R. should be returned to Roxsane under the supervision of TDFPS. The trial court set a new mandatory dismissal date of not more than 180 days from the date of its monitored return order, October 25, 2005, as required by the statute. See id. § 263.403(b)(2). TDFPS was to remain temporary managing conservator during this transition.

The monitored return order did not acknowledge or specifically encompass the jury's verdict that Roxsane's parental rights should not be terminated but states that "the Court finds that placing [J.R.] in the home of [Roxsane] while retaining jurisdiction is in the best interest of the child to establish a safe transition of the child who has been out of [Roxsane's] home for approximately 18 months." The court ordered TDFPS to monitor the placement of J.R. in Roxsane's home and to remove him "if circumstances indicate that the home is no longer a safe environment." During this six month period, TDFPS was to provide unlimited counseling for Roxsane and counseling and play therapy for J.R. as appropriate. The trial court also ordered the foster parents to assist with the transition into Roxsane's home and ordered interim visitation between J.R. and the foster parents as agreed to or proposed by the parties.⁸

On May 31, 2005, the trial court⁹ transferred the case to Tarrant County, where Roxsane was residing. The transfer order states that J.R. "is to be returned to the home of [Roxsane] on May 31, 2005" but that the provisions of the monitored return order were to remain in effect until the end of the six month period. Upon transfer to Tarrant County, the case was assigned to the 322nd District Court.

On October 21, 2005, four days before the suit was to be dismissed in accordance with section 263.401, the 322nd District Court, the Honorable Frank Sullivan presiding, held a hearing on several issues in the case. The court signed an order granting TDFPS's motion for nonsuit of its "Movant's Petition Seeking Termination of the Parent-Child Relationship in this cause" and removing TDFPS as J.R.'s temporary managing conservator. The order did not designate a conservator for J.R., temporary or otherwise. The court also appointed an amicus attorney for J.R.

That same day, Roxsane filed a pro se "Mother's Objection to Conservators and Amicus Attorney." In it, she stated that she objected to the foster parents being appointed conservators of J.R. and to the appointment of an amicus attorney for J.R. Specifically, Roxsane objected to having to share in the expense of an amicus attorney. Roxsane also requested that the case be dismissed and that she would "like to be re-united with [her] son permanently as soon as possible without a conservator." Further, Roxsane stated that the foster parents had not had any contact with J.R for five of the six months since the monitored return order was signed.

On January 13, 2006, Judge Sullivan signed an order noting that a hearing had been held on October 21, 2005, that the trial court granted a nonsuit to TDFPS, and that "a separate order was signed." Judge Sullivan ordered that J.R. would remain in Roxsane's custody until "a hearing could be had on temporary orders." His order also states that "[t]he Court finds that, on the issue of standing of [the foster parents], the 74th Judicial District Court of McLennan County has already ruled that [the foster parents] have standing in this matter." Judge Sullivan did not enter a final order in the case as required by former section 263.403(b)(2) governing dismissal upon the expiration of a monitored return order.

Next, the trial court's associate judge entered temporary orders sometime before January 23, 2006,¹⁰ which Roxsane appealed to Judge Sullivan. On February 2, 2006, Judge Sullivan signed an order indicating that he had heard Roxsane's "Appeal of Temporary Orders" affirming the temporary orders with the following changes: (1) Roxsane was ordered to give the amicus attorney access to J.R.; (2) Roxsane was ordered to give the foster parents possession of J.R. on the first and third weekends of each month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday; and (3) Roxsane was enjoined from changing her residence from Tarrant County during pendency of the suit. Again, the judge did not designate a conservator for J.R.¹¹

On May 11, 2006, Roxsane filed a "Plea to the Jurisdiction/Motion to Strike Plea in Intervention/Motion to Dismiss" (motion to dismiss) asking the trial court to dismiss the suit under family code section 263.401 because the trial court had not entered a "final order" by the October 25, 2005 statutory dismissal date. Roxsane argued that the intervention was untimely, that the foster parents had no standing to intervene in the suit, and that the 322nd District Court failed to follow the 74th District Court's order setting the final dismissal date as October 25, 2005. Roxsane also argued that the plea in intervention should be stricken because it complicates the case with excessive multiplication of issues, it is not necessary to protect the interests of the foster parents, it places an undue burden on Roxsane, both financially and mentally, and the temporary visitation is a source of confusion for J.R. Judge Sullivan denied the motion on July 7, 2006 by written order.

On August 9, 2006, the foster parents filed a first amended petition seeking sole managing conservatorship of J.R. Roxsane responded on August 22, 2006, again challenging the standing of the foster parents. On January 1, 2007, the Honorable Nancy Berger was sworn in as presiding judge of the 322nd District Court; she voluntarily recused herself from the case. The case was then transferred to the 231st District Court of Tarrant County.

Roxsane and the foster parents each filed motions to modify the February 2, 2006 temporary orders in May 2007. The only subsequent order in the record is dated June 6, 2007, in which the associate judge of the 231st District Court ordered the preparation of a social study at the expense of the foster parents. However, the associate judge's report, dated the same day, states that the temporary orders restricting J.R.'s residence to Tarrant County are modified to allow his residence to be in Tarrant or contiguous counties. The associate judge also withheld ruling on several other issues raised by the parties in their motions to modify the temporary orders.

Roxsane filed a notice of removal to federal court on June 15, 2007,...