In the Interest of A.J.K.

The provisions of subchapter 263 continue to apply to a suit in which the TDPRS has intervened in the family unit and remains a party to the suit -- even if the TDPRS does not ultimately request termination of parental rights -- because this type of case has the same issues as a termination case.

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Family Law No. 14-02-00397-CV, 7/17/2003. Click here for the full text of this decision FACTS: In this suit affecting the parent-child relationship, Tyson and Laura Kennedy appeal a final order establishing conservators of the Kennedys’ child, A.J.K. The order appointed Laura Kennedy’s parents, James and Katherine Hawthorne, joint managing conservators and gave the Kennedys only joint possessory conservatorship of A.J.K. In two issues, the Kennedys contend the evidence was legally and factually insufficient to support the jury’s finding that appointing them as joint managing conservators would not be in A.J.K.’s best interest because their appointment would significantly impair A.J.K.’s physical health or emotional development. The Hawthornes and the other appellee, the Texas Department of Protective and Regulatory Services (TDPRS), claim this finding is supported by sufficient evidence. They also contend the Kennedys did not timely file their appeal and it should be dismissed. They claim this appeal is subject to the rules for accelerated appeals as provided in Texas Family Code �263.405. If controlling, this issue would dispose of the appeal. Undisputedly, the Kennedys did not meet the deadline for filing an accelerated appeal. But the Kennedys vigorously assert the accelerated appeal rules do not apply to this case because the TDPRS did not request termination of parental rights at trial. The question the Kennedys raise is this: If a case filed by the TDPRS initially involves a termination and a conservatorship request under subchapter 263 of the Family Code, but termination ultimately is not sought and the case turns into a custody fight with the parents, grandparents and the TDPRS as parties, does �263.405 still apply to require an accelerated appeal? HOLDING: Dismissed. The Hawthornes and the TDPRS contend that the Kennedys’ notice of appeal is untimely because the appeal is governed by newly enacted Texas Family Code �263.405, which provides for accelerated appeals. This section further provides that the filing of a motion for new trial does not extend the deadline for filing a notice of appeal. Texas Rule of Appellate Procedure 26.1(b) provides that a notice of appeal in an accelerated appeal must be filed within 20 days after the judgment or order is signed. The Hawthornes and the TDPRS point out that the Kennedys followed the traditional appeal rules, filing a motion for new trial 30 days after entry of the judgment to extend the deadline for filing their notice of appeal and filing their notice of appeal 55 days later. They claim that this notice of appeal, filed 85 days after the final judgment was signed, was untimely and the appeal must be dismissed. None of the parties disputes that the accelerated appeal provision applies in a termination suit. But here, the TDPRS abandoned its request for termination, yet remained a party and apparently focused its efforts on getting the Hawthornes custody. Central to the Kennedys’ claim that �263.405 does not apply is whether abandonment of the termination claim took this case – initially filed under subtitle E – out of the subtitle, and transformed it into a “normal” custody case subject to the normal appellate deadlines. The Kennedy’s primary issue – that �263.405 applies only to cases in which termination of the parent-child relationship is pursued through trial – appears to be based on �109.002(a) of the Family Code. Because all the parties agree that this case initially was subject to Chapter 263, the court begins its inquiry by looking at that statute to determine if it still applies to this case. Section 263.405 falls under subtitle E, titled “Protection of the Child.” Subtitle E – which includes Chapter 263 and subchapter E – has a role unique in the Family Code: its sole focus is the protection of the child- both from abuse by others and from the uncertainty caused when the TDPRS intervenes in the family. Subchapter E’s focus is even narrower; it provides the framework by which a final order is entered and appealed. Knowing where subchapter E falls in the Family Code and its unique role in the Code, the court turns to the plain language in �263.405. It states that an appeal from a “final order” that is “rendered under this subchapter” is governed by the rules for accelerated appeals in civil cases. This language is very clear, especially when one considers the related sections in subchapter 263. The main purpose of �263.401 is to set out a 12-month time-limit – plus one possible 180-day extension – within which a court must finally dispose of a suit in which a child is in the care of the TDPRS. This time limit applies to cases in which 1. the TDPRS has requested to be appointed conservator of the child; or 2. the TDPRS has requested termination of the parent-child relationship. This case fell under �263.401 because the TDPRS requested that both options be considered. The “final order” referred to in �263.405(a) is also defined in �263.401. The definition of “final order” is important because a case must be dismissed if an order qualifying as a final order is not entered within the stated time-frame. The legislature chose to define “final order” broadly; the definition encompasses just about all (if not all) of the orders a court would enter if a child under the care of the TDPRS were before it. Here, the case concluded with an order that fell under one of the four categories in subsection 263.401(d): It named a relative of the child as managing conservator. Clearly, this order qualified as a final order. With all of this information in hand, if the court takes a second look at section 263.405, it seems to apply to this final order. Two suits fall under the purview of �263.401 and subchapter E: a suit for termination of parental rights and a suit requesting that the department be named as conservator. The TDPRS’s pleading here contained both requests. Subchapter E does not require that only a termination request be made before it will apply. It requires either of two requests: either a termination or a conservatorship request (although the TDPRS may choose to plead both and did so here). Because this suit started out as a termination and a custody request, and the TDPRS remained in the suit – dropping only the termination request – this was still a subchapter E suit subject to a subchapter E final order. This was a final order. Clearly, it was rendered under subchapter E. Clearly, it was governed by the rules for accelerated appeals in civil cases and the procedures in �263.405. Several reasons exist for applying the accelerated appeal rules to this case; they are policy-based and practical. The provisions of subchapter 263 continue to apply to a suit in which the TDPRS has intervened in the family unit and remains a party to the suit – even if the TDPRS does not ultimately request termination of parental rights – because this type of case has the same issues as a termination case: the child has been taken from the parent, someone other than the parent may be appointed the managing conservator, and the child’s emotional state has been placed in jeopardy, in part because of the events leading up to the TDPRS’s intervention, and in part because the child’s future remains uncertain. The court concludes that this case is subject to the accelerated appeal provision contained in �263.405. Because it was not filed within the time deadlines set out in that section, the appeal is dismissed for lack of jurisdiction. OPINION: Fowler, J.; Fowler, Edelman and Frost, JJ.

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