Affirmed and Substituted Opinion filed April 10,=20
2007.
In The
Fourteenth=20
Court of Appeals
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NO. 14-05-01216-CV
_______________
In the Interest of J.R. and =
B.R.
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On Appeal from 314th District =
Court
Harris County, Texas
Trial Court Cause No.=20
02‑07575J
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S U B S T I T U T E D O P I =
N I O=20
N
C.M.=3Ds motion for =
rehearing is=20
overruled, our opinion issued in this case on January 4, 2007 is=20
withdrawn, and the following opinion is issued in its =
place.
C.M. =
appeals=20
the trial court=3Ds Order Modifying =
Order of=20
Termination Pursuant to Judgment of Appellate Court (the =
Aorder@) on the ground that =
it fails=20
to comply with this Court=3Ds mandate (the =
Amandate@) from the previous =
appeal in=20
this case because the trial court did not hold further proceedings =
before=20
entering it. We affirm.
In 2002, the =
Department of=20
Family and Protective Services (ADFPS@) removed =
C.M.=3Ds two children, J.R. =
and B.R.,=20
from her, and sought, as relevant to this appeal, to terminate=20
C.M.=3Ds parental rights and =
to be=20
appointed sole managing conservator of the two children. In =
2004,=20
following trial, the trial court entered an order terminating=20
C.M.=3Ds parental rights and =
naming=20
DFPS sole managing conservator for both children. In 2005, =
this=20
Court issued an opinion: (1) reversing the termination of =
C.M.=3Ds parental rights; =
(2) neither=20
affirming nor reversing the judgment appointing DFPS conservator =
(because=20
C.M. did not challenge it on appeal); and (3) remanding the =
case to=20
the trial court for further proceedings consistent with the =
opinion. =20
See In re J.R., 171 S.W.3d 558, 579 (Tex. App.CHouston [14th Dist.] =
2005, no=20
pet.).
On remand, C.M. filed =
two=20
motions with the trial court seeking to dismiss the case or to =
modify the=20
trial court=3Ds previous orders to =
grant her=20
access to the children, both of which motions were denied after=20
hearings. The trial court then entered the order (before our =
mandate=20
issued), which provides in pertinent part:
IT IS ORDERED that this Court VACATES =
Section 9 of=20
the AOrder of Termination@ signed by this court on April 6, 2004, =
attached=20
herein as Exhibit A, [hereinafter AOrder of Termination@] which provides as follows:
9. Termination of Respondent =
Mother=20
[C.M.]=3Ds PARENTAL RIGHTS
* =20
* =20
*
9.3 =
IT IS=20
THEREFORE ORDERED that the parent-child relationship between =
[C.M.] and=20
the children [J.R.] AND [B.R.], the subject of this suit is =
finally and=20
forever terminated.
IT IS FURTHER, ORDERED, that this court =
modifies=20
its prior AOrder of Termination,@ to deny the request of Department of =
Family &=20
Protective Services to terminate her parental rights, and, in this =
regard,=20
it is ORDERED that this court=3Ds AOrder of Termination@ be modified with the following Section =
9, in=20
place of the vacated section, to read as follows:
9. =20
Termination of the parental rights of [C.M.] is hereby =
DENIED.
IT IS FURTHER ORDERED that no other =
provisions in=20
the AOrder of Termination@ are modified by this Order, and, in =
this regard,=20
the request of [C.M.] to dismiss or modify this court=3Ds prior AOrder of Termination@ on the basis of the Appellate =
Court=3Ds judgment to name her as a joint or =
sole managing=20
conservator of the children, [J.R.] and [B.R.] is =
DENIED.
The order thus =
removed from the=20
previous judgment the portion reversed by this Court, =
affirmatively denied=20
that relief, and left the remainder of that judgment =
intact.
C.M.=3Ds sole issue on =
appeal asserts=20
that the trial court erred in entering the order without holding =
further=20
proceedings to determine her status as a conservator and her =
rights,=20
powers and duties, and possession of and access to her children, =
which she=20
contends was required by our mandate, which provides:
We have inspected the =
record=20
and find the trial court erred in terminating the parent-child=20
relationship between appellant [C.M.] and her children J.R. and =
B.R. =20
We therefore order that the portions of the judgment that =
terminate the=20
parent-child relationship between appellant [C.M.] and her =
children J.R.=20
and B.R. are REVERSED and RENDER judgment in part that the TEXAS=20
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES take nothing as to =
its=20
request that the parent-child relationship between appellant =
[C.M.] and=20
her children J.R. and B.R. be terminated. We order that the=20
remainder of the trial court=3Ds judgment, except =
those=20
portions that deal with [the children=3Ds father], be severed =
and=20
REMANDED for further proceedings in accordance with this =
court=3Ds=20
opinion.
=
C.M. contends that further proceedings were required by our =
mandate=20
because, otherwise, this Court could have simply rendered the new =
judgment=20
the trial court ordered, making a remand unnecessary. As =
DFPS=20
acknowledges, some further proceedings will be required, such as =
periodic=20
placement review hearings. See Tex. Fam. Code Ann. =
'' 263.501(a), 263.503 =
(Vernon=20
2002).
C.M. argues, however, =
that,=20
upon this court=3Ds reversal of her =
parental=20
termination, she thereby regained full status as a parent, and the =
trial=20
court was thereby required by law to conduct further proceedings =
to either=20
appoint her as a possessory conservator or make a specific finding =
that=20
such an appointment was not in the child=3Ds best interest and =
that her=20
possession or access would endanger the welfare of the child. We=20
disagree.
Nothing in our prior =
opinion or=20
mandate: (1) required the trial court to vacate or modify any =
portions of=20
its prior judgment other than the termination; (2) restrained the =
trial=20
court from correcting its prior judgment to conform with our =
decision=20
before holding any further proceedings; or (3) required the trial =
court to=20
take any other particular further action, or hold any particular =
further=20
proceedings before entering the order. In addition, =
C.M.=3Ds position would =
treat our=20
prior judgment as if it had reversed and remanded the =
conservatorship=20
finding when it instead did precisely the opposite.
Because neither the =
trial=20
court=3Ds appointment of DFPS =
as sole=20
managing conservator, nor its conclusion of law that such =
appointment was=20
in the children=3Ds best interest, was =
challenged=20
or overturned in our 2005 opinion, each remained in effect on =
remand=20
subject to modification, which C.M. has not sought. =20
Because C.M.=3Ds issue therefore =
fails to=20
establish that the trial court=3Ds entry of the order =
without=20
litigating her rights as a possessory conservator was improper, it =
is=20
overruled, and the judgment of the trial court is =
affirmed.
/s/ =20
Richard H. Edelman
Justice
Judgment rendered and =
Substitute Opinion filed April 10, 2007.
Panel consists of =
Justices=20
Anderson, Edelman, and Frost.
=20
To protect the privacy of the parties in this case, we identify =
them only=20
by initials. See Tex.=20
Fam. Code Ann. ' 109.002(d) (Vernon =
2002).
=20
Our prior opinion states, in part:
[W]e reverse the =
trial=20
court=3Ds judgment to the =
extent it=20
terminates [C.M.]=3Ds parental rights as =
to [J.R.]=20
and [B.R.], and we render judgment in part that the [DFPS] take =
nothing as=20
to termination of [C.M.]=3Ds parental rights. =
[C.M.] has=20
not challenged on appeal the trial court=3Ds appointment of the =
[DFPS] as=20
sole managing conservator of [J.R.] and [B.R.], and we do not =
reverse the=20
trial court=3Ds judgment in this=20
regard. We remand this case to the trial court for further=20
proceedings consistent with this opinion.
In re J.R., 171 S.W.3d at 579.
=20
Generally, if a parent is not appointed as a sole or joint =
managing=20
conservator, he or she must be named a possessory conservator =
unless the=20
trial court makes a specific finding that such an appointment =
would not be=20
in the best interest of the child or that parental possession =
would=20
endanger the child=3Ds physical or emotional welfare. =
Tex. Fam. Code Ann. =
' 153.191 (Vernon 2002).
=20
The First Court of Appeals has issued at least one opinion =
holding, as=20
C.M. contends, that where a challenge to a parental termination is =
sustained, the appointment of DFPS as sole managing conservator =
must also=20
be reversed, even though unchallenged. See Colbert v.=20
Dep=3Dt of Family & Protective=20
Servs., __ S.W.3d =
__, __=20
(Tex. App.CHouston [1st. Dist] 2006, no. =
pet.). We disagree with that holding and agree instead with =
the=20
dissent in that case that where a parent fails to challenge and =
overturn a=20
trial court=3Ds conservatorship decision, his or her =
only=20
recourse is to seek a modification. See id. at __ =
(Jennings,=20
J., dissenting).
=20
See Tex. Fam. =
Code=20
Ann. ' 156.002(a) (Vernon 2002). =
Appellant=20
contends that she lacks standing to file a motion to modify =
because she is=20
not a conservator. However, because section 156.002(a) =
allows a=20
motion to modify to be filed by any party affected by the order to =
be=20
modified, it is not apparent how appellant would lack such =
standing. =20
See id. She also complains that she would not be =
entitled to=20
court-appointed counsel in a modification proceeding, as she was =
in the=20
termination proceeding initiated by the State. See =
id.=20
' 107.013(a)(1), (c) (Vernon Supp. =
2006). To=20
whatever extent that is correct, it is a choice that has been made =
by the=20
Legislature, and it is not within our province to circumvent by =
reversing=20
a decision of the trial court where no error has been shown. =
See,=20
e.g., In re Tex. Dep=3Dt of Family & Protective=20
Servs., 210 S.W.3d 609, =
614 (Tex.=20
2006) (AIt is not the Court=3Ds task to choose between competing =
policies=20
addressed by legislative drafting.@). |