Two = years=20 ago, the court of appeals granted Joy Higdon (the children=92s mother) = and Ruby=20 Ludwig (the children=92s great-grandmother) mandamus relief, holding = that the=20 trial court was required to dismiss the Department=92s suit seeking = termination of=20 Higdon=92s parental rights because no final judgment was rendered within = the time=20 limit established by section 263.401 of the Family Code. We stayed that = order,=20 and presumably the children have remained in foster care pending the = outcome of=20 these proceedings. The Court now agrees that the trial court was = required to=20 dismiss the case, but holds that the court of appeals erred in granting = mandamus=20 relief because Higdon and Ludwig had an adequate remedy in the = accelerated=20 appeal afforded by section 263.405 of the Family Code. Neither the = Department=20 nor any of the real parties in interest raise this issue, perhaps = because it is=20 inconsistent with our mandamus jurisprudence. Because I believe that = mandamus=20 review is appropriate in this case, I respectfully dissent.
First, as the=20 Court acknowledges, we have regularly granted mandamus relief in cases = affecting=20 child custody. See, e.g., Powell v. Stover, 165 = S.W.2d 322,=20 324 (Tex. 2005); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004). = Child-custody proceedings touch on constitutional interests of parents = and=20 critical issues affecting children=92s welfare. In re M.S., 115 = S.W.3d 534,=20 547 (Tex. 2003). In this sensitive context, we have afforded mandamus = review=20 even though an appeal may have been available. Geary v. Peavy, = 878 S.W.2d=20 602, 603 (Tex. 1994).
I = agree with=20 the Court that mandamus is generally not available to a party that has = an=20 adequate remedy by appeal. But we have said that the concept of = =93adequacy=94 is=20 not inexorably fixed, and =93rigid rules are necessarily inconsistent = with the=20 flexibility that is the remedy=92s principal virtue.=94 In re = Prudential Ins.=20 Co., 148 S.W.3d 124, 136 (Tex. 2004). In recent years, we have = allowed=20 mandamus review to protect interests of far less consequence than those = at stake=20 in this case. We have, for example, granted mandamus relief to a party=20 wrongfully denied arbitration, Jack B. Anglin Co. v. Tipps, 842 = S.W.2d=20 266 (Tex. 1992); a party seeking to enforce a forum-selection clause, = In re=20 AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004); a party seeking relief = from=20 overbroad discovery orders, In re CSX Corp., 124 S.W.3d 149 (Tex. = 2003);=20 a party seeking to enforce a pre-trial jury waiver, In re Prudential = Ins.=20 Co., 148 S.W.3d 124; and a party denied a legislative continuance = under =A7=20 30.003 of the Texas Civil Practice and Remedies Code, In re Ford = Motor=20 Co., 165 S.W.3d 315, 322 (Tex. 2005). Yet when a child lingers in = foster=20 care while the legal process determines whether the parental = relationship will=20 be forever severed, the Court decides that an adequate appellate remedy=20 precludes mandamus review. Under the circumstances this case presents, I = disagree.
On =
the dates=20
Higdon and Ludwig filed their mandamus petitions in the court of =
appeals, August=20
11 and 12, 2004, respectively, no appeal was then available because the =
trial=20
court had not yet rendered a final judgment. I seriously doubt that the =
Court=20
would question the propriety of mandamus relief if, for example, the =
trial court=20
had denied Higdon and Ludwig=92s motion to dismiss and issued a =
six-month=20
continuance. Further, although the trial court did enter a judgment =
terminating=20
parental rights and appointing the Department the children=92s managing=20
conservator on August 13th, after the mandamus petition was filed, the =
trial=20
court had no power to render any judgment but dismissal under both the =
court of=20
appeals=92 and this Court=92s construction of the Family Code. At this =
point in the=20
proceedings, it is questionable whether Ludwig or Higdon will be able to =
appeal=20
the trial court=92s judgment. See
This Court=20 has suggested that a party may be excused from pursuing an appellate = remedy when=20 a trial court acts with a =93complete lack of authority=94 in a manner = that=20 adversely affects our legal system, or if it commits an error that is = clear and=20 simple to correct. In re Prudential Ins. Co., 148 S.W.3d at 137. = In this=20 case, the Court agrees that the trial court lacked authority to do = anything but=20 dismiss the Department=92s action. The error was clear, and the solution = straightforward =97 an order directing the trial court to dismiss the = case. While=20 the overall effect on the legal system of the trial court=92s failure to = dismiss=20 may not be widespread, the consequence to the family in this case is = deep and=20 potentially irremediable. If the avenue of appeal proves to be = foreclosed in=20 this case, the family will be permanently dissolved even though the path = to=20 review that Ludwig and Higdon chose was entirely appropriate at the = time. Under=20 these circumstances, I would deny the Department=92s petition for writ = of=20 mandamus.
__________________________________________
Harriet=20 O=92Neill
Justice
OPINION DELIVERED: = December 15,=20 2006.