In re Ruiz

• Court: Texas Court of Appeals
• Writing for the Court: DAVIS; Gray; GRAY
• Citation: In re Ruiz, 16 S.W.3d 921 (Tex. App. 2000)
• Decision Date: 25 May 2000
• Docket Number: No. 10-00-174-CV,10-00-174-CV
• Parties: (Tex.App.-Waco 2000) IN RE DIONEL RUIZ AND RENEE BONFIGLIO RUIZ

Page 921

16 S.W.3d 921 (Tex.App.-Waco 2000)

IN RE DIONEL RUIZ AND RENEE BONFIGLIO RUIZ

No. 10-00-174-CV

IN THE TENTH COURT OF APPEALS

May 25, 2000

ORIGINAL PROCEEDING

[Copyrighted Material Omitted]

O P I N I O N

DAVIS, Chief Justice

Relators Dionel Ruiz and Renee Bonfiglio Ruiz ask this Court to issue a writ of mandamus against Respondent, the Honorable Ralph T. Strother, Judge of the 19th District Court of McLennan County. The Ruizes request that we order Respondent to dismiss a suit affecting the parent-child relationship filed against them by the Department of Protective and Regulatory Services ("DPRS") because Respondent allegedly failed to render a final order in the case by the Monday following the first anniversary of DPRS's appointment as temporary managing conservator of their daughter R.R. We will conditionally grant the relief requested.

BACKGROUND

Respondent signed an order appointing DPRS as temporary managing conservator of R.R. on April 6, 1999. A jury returned a verdict recommending termination of the Ruizes' parental rights on March 28, 2000. On that date, Respondent made the following handwritten notation on the docket sheet:

Jury returned verdict at approximately 7:15 p.m. Decree of termination to be entered as to both parents per jury's verdict. /s/ Ralph T. Strother, Judge Presiding.

The Ruizes filed substantially identical motions¹ to dismiss the suit under section 263.401(a) of the Family Code on April 26 and 27. See Tex. Fam. Code Ann. § 263.401(a) (Vernon Supp. 2000). Respondent set the matter for hearing on May 2. Respondent signed a final decree terminating the Ruizes' parental rights and appointing DPRS as permanent managing conservator of R.R. on May 2. He signed an order denying the Ruizes' dismissal motions three days later.

RENDITION OF JUDGMENT

The issue presented in this proceeding is whether the above-quoted docket notation constitutes rendition of a final order sufficient to avoid the one-year dismissal mandated by section 263.401(a).² That statute requires a trial court to dismiss a suit filed by DPRS "on the first Monday after the first anniversary of the date the court rendered a temporary order appointing [DPRS] as temporary managing conservator" "[u]nless the court has rendered a final order or granted an extension." Tex. Fam. Code Ann. § 263.401(a).

A trial court renders judgment by oral pronouncement of its decision in open court or by a signed, written memorandum filed with the clerk.³ S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857-58 (Tex. 1995) (per curiam). To constitute rendition, the court's pronouncement "must clearly indicate the intent to render judgment at the time the words are expressed." Id. at 858; Balogh v. Ramos, 978 S.W.2d 696, 701 (Tex. App.--Corpus Christi 1998, pet. denied) (op. on reh'g), cert. denied, ___ U.S. ___, 120 S. Ct. 66, 145 L. Ed. 2d 57 (1999). For suits affecting the parent-child relationship, the Legislature has provided that rendition of judgment may be accomplished by a docket notation.⁴ See Tex. Fam. Code Ann. § 101.026 (Vernon 1996).

Furthermore, section 263.401(d) specifically defines what is required to constitute a "final order" for purposes of that statute. See Tex. Fam. Code Ann. § 263.401(d) (Vernon Supp. 2000). The parties agree that only subdivision (d)(4) potentially applies in this case. Id. § 263.401(d)(4). That subdivision defines a "final order" as one which "terminates the parent-child relationship and appoints a relative of the child, another suitable person, or the department as managing conservator of the child." Id.

We have no record of an oral pronouncement in this case. See S & A Restaurant Corp., 892 S.W.2d at 857. Thus, the issue before us is whether Respondent's signed docket notation constitutes rendition of judgment by written memorandum. Id. The docket notation states in pertinent part, "Decree of termination to be entered as to both parents per jury's verdict." This notation fails to satisfy either of the requirements of a subdivision (d)(4) "final order." See Tex. Fam. Code Ann. § 263.401(d). The notation does not "grant" DPRS's petition, nor does it "order" or "decree" that the Ruizes' parental rights be terminated. Cf. Balogh, 978 S.W.2d at 700; Giles v. Giles, 830 S.W.2d 232, 234 (Tex. App.--Fort Worth 1992, no writ). Rather, it indicates the court's intent to render a termination decree in the future. Cf. Intercoastal Warehouse Corp. v. Clear Lake Nat'l Bank, 795 S.W.2d 294, 295-96 (Tex. App.--Houston [14th Dist.] 1990, writ dism'd w.o.j.); Formby's KOA v. BHP Water Supply Corp., 730 S.W.2d 428, 430-31 (Tex. App.--Dallas 1987, no writ).

Even assuming that rendition of a termination decree could be implied from the docket notation, the writing fails to address the appointment of a managing conservator for R.R., which subdivision (d)(4) requires in a "final order." See Tex. Fam. Code Ann. § 263.401(d)(4). DPRS does not address the requirements of subdivision (d)(4) in its response. The attorney ad litem for R.R. argues that the docket notation nonetheless satisfies subdivision (d)(4) because, "under the circumstances of this case, the only party who could become managing conservator following the termination of parental rights was [DPRS]." We disagree.

Section 161.207(a) provides in pertinent part:

If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as managing conservator of the child.⁵

Tex. Fam. Code Ann. § 161.207(a) (Vernon 1996). Section 161.207(a) finds its origin in a substantially similar statute first enacted by the Legislature in 1907. See Act approved Apr. 5, 1907, 30th Leg., R.S., ch. 64, § 6, 1907 Tex. Gen. Laws 135, 136 (amended 1962) (current version at Tex. Fam. Code Ann. § 161.207).⁶ The 1907 Act provided in pertinent part:

Upon the hearing of such case, if the said child shall be found to come within any of the provinces of Section 1 of this act it shall be adjudged a "dependent child," and an order may be entered making disposition of said child as to the court seems best for its moral and physical welfare. It may be turned over to the care and custody of any suitable person or any suitable institution in the county or State organized for the purpose of caring for "dependent children" and which is able and willing to care for same.

Id.

Under the 1907 version of the statute, Texas courts held that "the trial court had the authority to award custody of the children to any suitable person or agency." Moore v. Ham, 342 S.W.2d 825, 826 (Tex. Civ. App.--Amarillo 1961, no writ) (citing Bough v. Bough, 263 S.W.2d 573, 574 (Tex. Civ. App.--San Antonio 1953, no writ)); accord Davis v. Collins, 147 Tex. 418, 424, 216 S.W.2d 807, 811 (1949); DeWitt v. Brooks, 143 Tex. 122, 128, 182 S.W.2d 687, 691 (1944). In Bough, the court concluded that the trial court:

had the authority of its own motion, and in the absence of application therefor (if under the evidence it deemed that neither parent was a proper person to have the custody and control of the children), to award such custody to any suitable person disposed to assume this responsibility.

Bough, 263 S.W.2d at 574 (quoting Noble v. Noble, 185 S.W. 318, 319 (Tex. Civ. App.--Austin 1916, no writ)); accord Haynes v. Haynes, 191 S.W.2d 81, 81 (Tex. Civ. App.--Beaumont 1945, writ dism'd).

Because of the substantial similarities between the 1907 statute and section 161.207, we presume that the Legislature intended for this construction of the statute to continue. See Ector County v. Stringer, 843 S.W.2d 477, 479 n.4 (Tex. 1992); Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 617-18 (Tex. App.--Amarillo 1999, no pet.); Blount v. Dutton, 967 S.W.2d 955, 957 (Tex. App.--Beaumont 1998, no pet.). Accordingly, we conclude that Respondent could have appointed any suitable person or agency to be R.R.'s managing conservator, regardless of whether such person or agency filed pleadings requesting such appointment. See Tex. Fam. Code Ann. 161.207; Bough 263 S.W.2d at 574; Haynes, 191 S.W.2d at 81; Noble, 185 S.W. at 319.

ADEQUATE REMEDY AT LAW

Settled law establishes that mandamus relief is appropriate to correct a clear abuse of discretion when the Relator has no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); In re Bishop, 8 S.W.3d 412, 416 (Tex. App.--Waco 1999, orig. proceeding [mand. denied]). This Court has determined that mandamus is an appropriate vehicle for enforcement of section 263.401 because the relators in such a case have no adequate legal remedy by which they can otherwise obtain timely compliance with the statute. Bishop, 8 S.W.3d at 416, 421; accord In re Neal, 4 S.W.3d 443, 447 (Tex. App.--Houston [1st Dist.] 1999, orig. proceeding [mand. denied]).

DPRS contends that mandamus is inappropriate in this case because an appeal is "immediately available" to the Ruizes in which they can assert the question presented. DPRS distinguishes our Bishop decision, in which we held that the relators had no adequate remedy by appeal, on the basis that Bishop involved a pre-trial ruling. See Bishop, 8 S.W.3d at 415-16. We reject this distinction. When the Ruizes filed their respective motions to dismiss under section 263.401(a), Respondent had no discretion but to dismiss the suit. Id. at 419.

Respondent signed a "Final Judgment" in this case on May 2, six days after Dionel Ruiz filed his motion to dismiss.⁷ Assuming no motion for new trial is filed, the Ruizes' notice of appeal would be due on June 1. Tex. R. App. P. 26.1(a). The Family Code mandates that appeals in such cases "be given precedence over other civil cases." Tex. Fam. Code Ann. § 109.002(a) (Vernon Supp. 2000). Assuming we treated such an appeal as an accelerated one for the...