IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-1043

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In re Texas = Department of=20 Family and Protective Services

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On Petition for Writ of = Mandamus

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Justice Wainwright delivered = the=20 opinion of the Court, in which Chief=20 Justice Jefferson, Justice=20 Hecht, Justice = Brister,=20 Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.

Justice O=92Neill filed a = dissenting=20 opinion.

We = deny Joy=20 Higdon=92s motion for rehearing. We withdraw our opinion of September = 22, 2006 and=20 substitute the following in its place.

Section=20 263.401 of the Texas Family Code establishes a deadline for rendition of = a final=20 order in suits affecting the parent-child relationship (SAPCRs) brought = by the=20 Texas Department of Family and Protective Services. Although the trial = court=20 abused its discretion in failing to dismiss the Department=92s case, we = conclude=20 that here, the parties challenging the trial court=92s denial of a = motion to=20 dismiss under section 263.401 had an adequate remedy by accelerated = appeal.

On = January=20 23, 2003, the Department filed a SAPCR to terminate the parent=96child=20 relationship between Joy Higdon and her two children. That day, the = trial court=20 entered an ex parte order giving the Department the authority to take = possession=20 of the children, naming the Department temporary managing conservator, = and=20 setting the matter for a full adversarial hearing on February 3, 2003.=20 Apparently, Higdon was restored as managing conservator of the children = at the=20 February hearing but agreed to place the children with their = great-grandmother,=20 Ruby Ludwig.

The = trial=20 court held periodic status hearings. In a temporary order dated August = 19, 2003,=20 the trial court appointed the Department temporary managing conservator = and=20 identified the dismissal date for the case as August 16, 2004. The = children=20 continued to reside with Ludwig. In September, the trial court = identified the=20 dismissal date for the Department=92s case as January 26, 2004, and set = the case=20 for trial on the merits. In January, the trial court extended the = dismissal date=20 to July 24, 2004, as permitted by section 263.401(b) of the Texas Family = Code.=20 On February 23, 2004, Ludwig intervened, seeking sole managing = conservatorship=20 of the children.

On = Monday,=20 July 19, 2004, the trial began. On Thursday, July 22, 2004, Ludwig and = Higdon=20 filed motions to dismiss for failure to render a final order before the=20 statutory deadline. The Department rested its case on Friday, July 23, = 2004.=20 Saturday, July 24, 2004, was the dismissal deadline identified by the = court in=20 its January order. The trial recommenced on Tuesday, July 27, 2004. On = July 28,=20 2004, the jury returned a unanimous verdict terminating the parent-child = relationship between Higdon and each child and appointing the = Department, rather=20 than Ludwig, as sole managing conservator of the children. The trial = court=20 announced the verdict from the bench, terminated the parental rights of = the=20 fathers of the children, and denied the motions to dismiss. A hearing = for entry=20 of judgment was set for August 11, 2004. The trial court rendered = judgment on=20 Higdon=92s parental rights and Ludwig=92s intervention when it signed = and filed the=20 final decree of termination on August 13, 2004.

On = August 11,=20 2004 and August 12, 2004, Ludwig and Higdon, respectively, filed = petitions for=20 writ of mandamus with the court of appeals seeking to compel the trial = court to=20 dismiss the case for failure to render a final order before the = dismissal date.=20 On October 21, 2004, the court of appeals granted mandamus relief and = ordered=20 the trial court to dismiss the Department=92s case. On November 18, = 2004, the=20 court of appeals denied the Department=92s motion for rehearing, = correctly noting=20 that Ludwig=92s intervention would be unaffected by the dismissal of the = Department=92s SAPCR. The next day, the Department filed a petition for = writ of=20 mandamus in this Court and a motion to stay further proceedings. This = Court=20 granted the motion to stay.

Mandamus=20 relief is proper only to correct a clear abuse of discretion when there = is no=20 adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 = S.W.3d=20 124, 135‑36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, = 839 (Tex.=20 1992). The issuance of mandamus by the court of appeals is improper if = the trial=20 court did not abuse its discretion or if the record fails to demonstrate = the=20 lack of an adequate remedy on appeal. In re Prudential, 148 = S.W.3d at=20 135‑36; Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, = 917 (Tex.=20 1985). A trial court abuses its discretion when it fails to apply the = law=20 correctly, so we consider the trial court=92s legal ruling. = Walker, 827=20 S.W.2d at 839-40.

In = construing=20 a statute, our objective is to determine and give effect to the = Legislature=92s=20 intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). To=20 determine the Legislature=92s intent, we look to the statute=92s plain = language and=20 the common meaning of the statute=92s words. Id. Subsection = 263.401(a) of=20 the Texas Family Code requires a trial court to dismiss a SAPCR filed by = the=20 Department if a final order has not been rendered by the first Monday = after the=20 one-year anniversary of the date when the trial court appointed the = Department=20 temporary managing conservator. The statute allows a maximum extension = of 180=20 days. Tex. Fam. Code = =A7=20 263.401(b), (c). If the trial court has not rendered a final order at = the=20 expiration of the additional 180 days, the court must dismiss the SAPCR. = Id. =A7 263.401(c). Section 263.403, entitled =93Monitored Return = of Child to=20 Parent,=94 provides an exception to the dismissal rule, but it is not = applicable=20 to this case.

Higdon argues=20 the time period described in subsection 263.401(a) began running on the = day the=20 trial court entered its ex parte orders. She calculates the first Monday = after=20 the one-year anniversary of the January 23, 2003 ex parte order as = January 26,=20 2004. After adding a 180-day extension, she argues the dismissal = deadline was=20 Saturday, July 24, 2004. The Department argues that the January 23, 2003 = ex=20 parte order that gave the Department temporary conservatorship did not = trigger=20 the section 263.401 time period. Instead, the Department contends that = the=20 period began after the August 11, 2003 hearing, making the dismissal = deadline=20 August 15, 2004.

The = Department obtained temporary managing conservatorship by order of the = trial=20 court on January 23, 2003. Thus, the statutory time period started on = January=20 23rd because a court =93rendered a temporary order appointing the = department as=20 temporary managing conservator.=94 Tex.=20 Fam. Code =A7 263.401(a). Nothing in the statute excludes the = Department=92s=20 fourteen-day conservatorship obtained through the ex parte order from = the=20 calculation of the dismissal deadline in section 263.401. We therefore = determine=20 the deadline to be the date of the Monday following the one-year = anniversary of=20 January 23, 2003, which is January 26, 2004.

On = January=20 26, 2004, the trial court held a permanency hearing at which the court = concluded=20 that a 180-day extension of this dismissal deadline was in the best = interest of=20 the children, as permitted by subsection 263.401(b) of the Texas Family = Code and=20 set the dismissal date for July 24, 2004. We agree that July 24, 2004 = was the=20 dismissal deadline for the Department=92s SAPCR. The trial court erred = when it=20 failed to render a final order by that deadline.

Parties may=20 waive complaints about a trial court=92s failure to render a timely = final order.=20 Section 263.402 describes the vehicles by which a party can obtain a = dismissal:=20 a timely motion to dismiss or a motion requesting the court to render a = final=20 order before the deadline for dismissal. A timely motion to dismiss must = be=20 filed before the Department introduces all of its evidence, other than = rebuttal=20 evidence. Id. =A7 263.402(b). A motion requesting the court to = render a=20 final order must be made before the dismissal deadline passes. Id. = The=20 Department argues that Ludwig=92s and Higdon=92s motions to dismiss were = not timely=20 made.

On = July 19,=20 2004, the trial began. On Thursday, July 22, 2004, Ludwig and Higdon = made=20 motions to dismiss based on the Saturday, July 24 dismissal deadline. = The=20 Department rested its case on Friday, July 23. On Wednesday, July 28, = 2004, the=20 jury returned a unanimous verdict terminating the parent-child = relationship=20 between Higdon and each child and appointing the Department, rather than = Ludwig,=20 sole managing conservator of the children. The trial court read the = verdict,=20 terminated the parental rights of the fathers, and denied both motions = to=20 dismiss. Higdon and Ludwig complied with the statutory deadline by = filing before=20 the Department rested and had ripe motions to dismiss before the trial = court=20 when the deadline passed. The trial court abused its discretion by = failing to=20 dismiss the Department=92s SAPCR within the statutory time period as = requested by=20 Higdon=92s and Ludwig=92s timely motions.

Now = we must=20 determine whether the court of appeals correctly concluded that Higdon = and=20 Ludwig had no adequate remedy by appeal and were therefore entitled to = mandamus=20 relief. Although we have recognized that the standard=92s =93operative = word,=20 =91adequate=92, has no comprehensive definition=94 and demands a = =93careful balance of=20 jurisprudential considerations that determine when appellate courts will = use=20 original mandamus proceedings to review the actions of lower courts,=94 = mandamus=20 will not issue when the law provides another plain, adequate, and = complete=20 remedy. In re Prudential, 148 S.W.3d at 135‑36; see also = Iley v.=20 Hughes, 311 S.W.2d 648, 652 (Tex. 1958).

However,=20 =93[j]ustice demands a speedy resolution=94 in cases involving child = custody. See=20 Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). In fact, we have=20 acknowledged that appeal =93is frequently inadequate to protect the = rights of=20 parents and children . . . .=94 Id. (granting mandamus relief for = a trial=20 court=92s failure to transfer a custody dispute to the required venue). = The=20 Legislature enacted section 263.405, which provides an accelerated = appeal that=20 shortens deadlines, expedites filing of the appellate record, and = requires the=20 appellate court to =93render its final order or judgment with the least = possible=20 delay,=94 to address this concern. Tex.=20 Fam. Code =A7 263.405(a); see House Comm. On Juvenile Justice = & Family=20 Issues, Bill = Analysis,=20 Tex. H.B. 2249, 77th Leg., R.S. (2001) (=93House bill 2249 addresses = post-judgment=20 appellate delays . . . .=94); see also Tex. Fam. Code =A7 263.405 = (expediting=20 appeals of final orders rendered under subchapter E =93Final Order for = Child under=20 Department Care=94); id. =A7 263.304 (authorizing parties to seek = mandamus=20 relief to compel a court to comply with certain duties). Texas Rule of = Appellate=20 Procedure 28 provides other mechanisms for expediting appeals involving = the=20 termination of parental rights.

In = this case,=20 Higdon and Ludwig filed their motions to dismiss during trial. Because = the trial=20 was underway when the dismissal deadline passed and because physical = possession=20 of the children had already transferred to the Department when the = petition for=20 writ of mandamus was filed with the court of appeals, we conclude that = an=20 accelerated appeal provided an adequate remedy in this case. We do not = hold that=20 a party complaining of a trial court=92s failure to dismiss a SAPCR = within the=20 statutory deadline could never be entitled to mandamus relief, but under = the=20 facts of this case, we cannot conclude that an accelerated appeal was = not an=20 adequate remedy. Impending transfer of physical possession of the = children or a=20 trial court=92s unreasonable delay in entering a final decree might = alter this=20 conclusion, but this record raises neither concern. In fact, because the = trial=20 court entered the final decree on August 13, 2004, Ludwig and Higdon = could have=20 initiated an accelerated appeal under section 263.403 of the Texas = Family Code=20 at worst two days after they filed their petitions for writ of = mandamus.

We = recognize=20 that in particular cases the statute could work injustice or encourage=20 gamesmanship to push litigation beyond the deadline. We presume the = Legislature=20 recognized this also. But the Legislature also recognized that a = statutory=20 deadline would expedite the trial of these cases to help provide a = modicum of=20 certainty for children whose family situations are subject to the = outcomes in=20 these proceedings. It is not the Court=92s task to choose between = competing=20 policies addressed by legislative drafting. See McIntyre, 109 = S.W.3d at=20 748. We apply the mandates in the statute as written.

For = these=20 reasons, we conclude that the court of appeals erred in granting = Ludwig=92s and=20 Higdon=92s petitions for writ of mandamus. We conditionally grant the = Department=92s=20 petition for writ of mandamus because Higdon and Ludwig had an adequate = remedy=20 by appeal. Pursuant to Texas Rule of Appellate Procedure 52.8(c) and = without=20 hearing oral argument, we direct the court of appeals to vacate its = order to the=20 trial court directing the trial court to dismiss the case. The writ will = issue=20 only if the court of appeals does not comply.

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J. = Dale=20 Wainwright

Justice

OPINION = DELIVERED:=20 December 15, 2006