Opinion
No. 02-06-102-CV
Delivered: November 2, 2006.
Appeal from the 323rd District Court of Tarrant County.
Panel F: GARDNER, WALKER, and McCOY, JJ.
MEMORANDUM OPINION
See TEX. R. APP. P. 47.4.
I. INTRODUCTION
Appellant, mother of H.B. and E.H., appeals the termination of her parental rights. In a single issue, Mother argues that the trial court erred by denying her motion to extend the dismissal deadline because the legislative dismissal deadlines constitute a violation of the separation of powers provision of the Texas Constitution. Because we hold that Mother does not have standing to make this constitutional challenge, we will affirm.
II. PROCEDURAL BACKGROUND
On April 28, 2005, the Texas Department of Family and Protective Services (TDFPS) filed its original petition to terminate the parent-child relationship between Mother and H.B. and E.H., alleging that termination was in the children's best interest because Mother had committed one or more of the following acts: knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being, executed an unrevoked or irrevocable affidavit of relinquishment of parental rights, or constructively abandoned the children. That same day, the trial court signed an "Order for Protection of a Child in an Emergency and Notice of Hearing," setting a full adversary hearing for May 10, 2005. At the full adversary hearing, the trial court appointed TDFPS as temporary managing conservator of H.B. and E.H. Thus, the trial court subsequently determined on November 17, 2005 at the permanency hearing that the statutory one-year dismissal date for any proceeding to terminate Mother's parental rights to H.B. and E.H. was May 1, 2006.
On June 29, 2005, TDFPS amended its original petition to add Mother's mental or emotional illness or mental deficiency as a ground for termination.
Section 263.401(a) of the family code mandates that the trial court dismiss the suit if a final order has not been rendered or an extension under section 263.401(b) has not been granted by the first Monday after the first anniversary of the date that the trial court rendered a temporary order appointing TDFPS as temporary managing conservator. TEX. FAM. CODE ANN. § 263.401(a) (Vernon Supp. 2006). Section 263.401(b) authorizes up to a 180-day extension of the one-year deadline under certain circumstances. Id. § 263.401(b).
Although TDFPS's initial service plan for the children sought family reunification or placement of the children with a relative, on November 17, 2005, the trial court held a permanency hearing and found that Mother had not demonstrated adequate and appropriate compliance with the service plan; the trial court then set a March 13, 2006 trial date. Approximately two weeks prior to trial, TDFPS changed the service plan to add a requirement that Mother avail herself of particular mental health services.
Based on this change in the service plan, Mother filed a motion for a six-month extension of the one-year statutory dismissal date so that she could have the opportunity to comply with the mental health provisions added to the service plan. The trial court conducted a hearing on Mother's motion and denied it. This hearing was not reported. Mother reurged her motion prior to commencement of the bench trial; TDFPS opposed Mother's motion, arguing that "there's a great possibility I won't be able to prove mental health grounds," and "I'll be asking the Court to terminate on D E grounds. . . . And that's what I'll be proceeding on." The trial court again denied Mother's motion for a six-month extension.
Although both sides apparently agree that such a motion was filed, the motion is not in our record, and the trial court clerk has indicated that no such motion exists in the trial court files.
When asked if she was ready to proceed to trial, Mother's attorney announced that she was ready to proceed subject to the motion for extension.
After a two-day bench trial, the trial court found that Mother had knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical or emotional well-being, that Mother had engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being, that Mother had constructively abandoned the children, and that there was clear and convincing evidence that termination of the parent-child relationship was in the children's best interest. But the trial court granted Mother a directed verdict on the mental health grounds alleged by TDFPS. The trial court signed an order terminating the parent-child relationship between Mother and H.B. and E.H. Mother subsequently filed a motion for new trial and a notice of appeal.
III. TRIAL COURT DID NOT ERR BY DENYING MOTHER=S MOTION TO EXTEND DISMISSAL DEADLINE
In her sole issue, Mother argues that the trial court erred by denying her motion to extend the statutory one-year dismissal deadline because the legislatively created deadline constitutes a violation of the separation of powers provision of the Texas Constitution. The State responds by arguing, in part, that Mother's separation of powers complaint was not preserved at trial and that Mother lacks standing to complain about the statutory deadline because it is a burden imposed on the State.
A. Preservation
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if they are not apparent from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a); see also TEX. R. EVID. 103(a)(1) (Vernon 2003). If a party fails to do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g); In re D.T.M., 932 S.W.2d 647, 652 (Tex.App.-Fort Worth 1996, no writ) (stating that even constitutional arguments are waived if not raised in trial court).
Here, Mother challenged the constitutionality of section 263.401(a) in her timely filed motion for new trial. Therefore, she properly preserved her complaint for our review. See Tex.R.App.P. 33.1 (providing that complaint is preserved if presented in timely filed motion); accord In re Baby Boy R., 191 S.W.3d 916, 917 (Tex.App.-Dallas 2006, pet. denied) (implicitly recognizing constitutional challenge may be raised in "pretrial or post-judgment motion"), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 5, 2006) (No. 06-6904).
B. Standing
Having held that Mother preserved her complaint for our review, we must now determine whether she has standing to challenge the constitutionality of section 263.401(a). See Meshell v. State, 739 S.W.2d 246, 250 (Tex.Crim.App. 1987) (stating that "[b]efore a court decides an issue involving the constitutionality of a statute, it must first assure itself that the party raising such a claim has presently been injured by the statute"). This requirement stems from courts' reluctance to decide constitutional questions unless absolutely necessary. Id. Therefore, this court must assure itself that Mother's constitutional claim is not "based upon an apprehension of future injury." Id.
Section 263.401(a) imposes a requirement upon TDFPS to obtain a final order or an extension within the defined one-year period, or the trial court shall dismiss the termination suit. TEX. FAM. CODE ANN. § 263.401(a). Thus, the statute cannot operate to prejudice Mother because the penalty for a violation of this statutory provision enures to Mother's benefit by resulting in a dismissal of the termination suit. See id. Likewise, the trial court's failure to grant a section 263.401(b) extension of the one-year deadline cannot operate to prejudice Mother because the penalty for not obtaining an extension is, again, dismissal of the termination suit. Id. at § 263.401(b).
The record here reveals that the trial court routinely set the trial date in this case for March 13, 2006; nothing in section 263.401(a), the section that Mother challenges on appeal, mandated that the trial court use this trial date. The record further demonstrates that all parties announced ready at the trial on that date, although Mother's announcement was subject to the trial court's reconsideration of her motion requesting a six-month extension of the one-year statutory dismissal date so that she could comply with the mental health services required by the amended service plan. But the trial court here did not find that Mother's rights should be terminated based on the new mental health ground added to the petition and, later, as requirements to the service plan; instead, the trial court granted Mother a directed verdict on that ground. The trial was conducted within the one-year statutory deadline. Thus, although Mother's parental rights were terminated, she has failed to show that section 263.401(a) — the provision mandating dismissal after one year — operated against her in any unconstitutional manner. Therefore, she does not have standing to challenge the constitutionality of section 263.401(a). See Meshell, 739 S.W.2d at 250. We overrule Mother's sole issue.
To the extent Mother's complaint is a straightforward challenge to the trial court's refusal to grant a continuance of the termination trial, the denial of a motion for a continuance is within the trial court's sound discretion. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). And, given counsel for TDFPS's representation that he was proceeding on "D and E" grounds, not on the added mental health grounds, no abuse of discretion occurred.
IV. CONCLUSION
Having overruled Mother's sole issue, we affirm the trial court's judgment terminating her parental rights to H.B. and E.H.