Texas Child Protection Law Bench Book

August 2015 edition

B. Court May Extend Dismissal Date if Extraordinary Circumstances

Unless the court has commenced the trial on the merits, the court may not retain the suit on the court’s docket after the 12-month period unless the court finds that extraordinary circumstances necessitate the child remaining in temporary managing conservatorship of DFPS and that continuing the appointment of DFPS as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court’s docket for a period not to exceed 180 days after the one-year period. Tex. Fam. Code § 263.401(b).

If the court retains the suit on the court’s docket, the court shall render an order in which the court:

•   Schedules the new date on which the suit will be dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Tex. Fam. Code § 263.401(a);

•   Makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and

•   Sets the trial on the merits on a date not later than the new dismissal period. Tex. Fam. Code § 263.401(b).

Special Issue: Judges should consider if extensions are being granted because of a lack of community or judicial resources or to allow DFPS more time to establish reasonable efforts and evaluate whether this presents extraordinary circumstances that justify keeping a child in care. The lack of resources or reasonable efforts may indicate a systemic problem that could be addressed by the child welfare and judicial communities so that children in foster care do not bear the burden of system inadequacies. Staying in care longer only to achieve the same result that would have been achieved at the original deadline may only serve to exacerbate problems that tend to develop with lengthy stays in foster care, all of which make achieving permanency more difficult.

The 84^th Texas Legislature in 2015 addressed the situation when a new trial occurs. If, after commencement of the initial trial on the merits within the time required by Tex. Fam. Code § 263.401(a) or Tex. Fam. Code § 263.401(b), the court grants a motion for a new trial or mistrial, or the case is remanded to the court by an appellate court following an appeal of the court’s final order, the court shall retain the suit on the court’s docket and render an order in which the court schedules a new dismissal date, makes further temporary orders, and sets a new trial date pursuant to Tex. Fam. Code § 263.401(b-1).

If the court grants an extension under Tex. Fam. Code § 263.401(b) or Tex. Fam. Code § 263.401(b-1) but does not commence the trial on the merits before the dismissal date, the court shall dismiss the suit. The court may not grant an additional extension that extends the suit beyond the required date for dismissal under Tex. Fam. Code § 263.401(b) or Tex. Fam. Code § 263.401(b-1), as applicable. Tex. Fam. Code § 263.401(c).

1. Limits on the Extensions

The parties to a suit under this chapter may not extend the deadlines set by the court by agreement or otherwise. Tex. Fam. Code § 263.402(a). In addition to the limitation imposed by Tex. Fam. Code§ 263.401(c), the following cases address limits on extension of time. In re J.L.C., 194 S.W.3d 667 (Tex. App.—Fort Worth 2006) (mother’s request for extension of one year deadline binds her to 18 months maximum for decision); In re J.H.G., 302 S.W.3d 304 (Tex. 2010) (mother's failure to challenge the trial court's extension of the statutory deadline in her statement of points waived the issue on appeal).

2. Failure to Resolve Case Before Dismissal Date

If the court grants an extension but does not commence the trial on the merits before the required date for dismissal, the court shall dismiss the suit. The court may not grant an additional extension that extends the suit beyond the required date for dismissal. Tex. Fam. Code § 263.401(c).

3. Failure to Make a Timely Motion to Dismiss

A party to a suit who fails to make a timely motion to dismiss the suit waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss is timely if the motion is made before the trial on the merits commences. Tex. Fam. Code § 263.402(b).

4. Effect of Dismissal

Typically, the dismissal of a suit affecting the parent-child relationship leaves the parties and the children in the status they had before the suit was filed. This is not always the case when DFPS files suit. For example, if a child is placed with a relative after DFPS files suit, the relative may gain standing to file an original suit seeking custody if the child remains with that relative for six months or more during the pendency of the DFPS lawsuit. The relative may not have had this standing at the time the DFPS lawsuit was filed, but now does with the passage of time. Tex. Fam. Code § 102.003(a)(9).

Dismissal of the suit filed by DFPS also does not bar another party with standing from proceeding to trial on the suit against the parents. An attorney ad litem appointed to represent the child is entitled to request a hearing or a trial on the merits. Tex. Fam. Code § 107.003(a)(3)(B). In re Bishop, 8 S.W.3d 412, 420 (Tex. App.—Waco 1999, orig. pet.) (dismissal is without prejudice and does not affect pleadings of intervenor relative and guardian ad litem); In re J.C., 250 S.W.3d 486 (Tex. App.—Ft. Worth 2008, no pet. hist.) (foster parents sought and obtained termination of parent’s rights after DFPS suit was dismissed).

DFPS may file a new petition after dismissal, but must look to the current situation in the home in order to find evidence sufficient to establish a continuing danger exists for the child if returned home. A parent must be appointed managing conservator of the child unless the appointment would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 153.131(a); see also In re Cochran, 151 S.W.3d 275 (Tex. App.—Texarkana 2004, orig. proceeding) (past terminations alone not sufficient to deny placement with parents absent evidence of current danger to the health or safety of the child).