Appellant argues that the trial court erred when it denied his motion to extend the dismissal date under family code section 263.401. See Tex. Fam.Code Ann. § 263.401(a) (2012)

Court of Appeals of Texas, Waco.

Appellant argues that the trial court erred when it denied his motion to extend the dismissal date under family code section 263.401. See Tex. Fam.Code Ann. § 263.401(a), (b) (West 2008). In our original opinion, we incorrectly held that appellant had forfeited this issue because he had not included this particular issue in his statement of points on appeal as required under former section 263.405(i). IN RE: A.J.M., No. 02–11–00137–CV, 2011 WL 5984540, at *1 (Tex.App.—Fort Worth Dec. 1, 2011, no pet.) (mem.op.); see Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (repealed 2011). The holding in our original opinion is incorrect because this court has previously held that former section 263.405(i) violates the Separation of Powers Clause of the Texas constitution in that it prevents an appellant from pursuing an issue on appeal that has been properly preserved in the trial court; thus, it unconstitutionally interferes with our constitutionally conferred power to review the issue on the merits on appeal. D.W., 249 S.W.3d at 640, 645. Therefore, we have the power to review this issue on appeal. Here, appellant moved to extend the dismissal deadline of the underlying termination suit for 108 days because he was still incarcerated in the Parker County jail and would not be released until shortly before the scheduled trial date of February 9, 2011. See Tex. Fam.Code. Ann. § 263.401. He specifically asked that the case be reset to October 7, 2011 so that after his release he could attend the trial and also complete the parenting class and other services required by his service plan. First, we note that appellant preserved this issue for appeal by bringing his request to the trial court's attention by written motion dated January 11, 2011. See Tex.R.App. P. 33.1. Furthermore, appellant properly raised the issue on appeal in his first issue: “The trial court erred by denying appellant's motion to extend the dismissal date.” Appellant's requested extension date of October 7, 2011 is within the 180–day permissible extension when counting from the Monday following the one-year anniversary of any temporary order appointing the Texas Department of Family and Protective Services (the Department) as managing conservator. See Tex. Fam.Code Ann. § 263.401(a). Section 263.401(b) allows the trial court to extend the dismissal deadline if the movant shows “extraordinary circumstances [that] necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child.” Id. § 263.401(b). At the January 14, 2011 hearing on his motion for continuance, appellant claimed his incarceration had prevented his ability to comply with his service plan and his ability to show his willingness to work to get his children back. He also agreed that their current placement was not harmful and that the children were not readily adoptable at that time. Conversely, the children's ad litem testified that any delay in termination would delay an anticipated lengthy adoption, that she could not recommend returning the children to the parents regardless, and that incarceration was not an “extraordinary circumstance” justifying extension under the statute. We review a trial courts decision to grant or deny an extension of the dismissal date under the abuse of discretion standard. D.W., 249 S.W.3d at 647. The focus is on the needs of the child, whether extraordinary circumstances necessitate the child remaining in the temporary custody of the Department, and whether continuing such is in the best interest of the child. Tex. Fam.Code Ann. § 263.401(b). The trial court is further directed to make such findings and include them in any order granting the extension, along with the new trial date and any further necessary temporary orders. Id. Appellant attended the continuance hearing and the permanency hearing held at the same time, with trial counsel. At the end of the permanency hearing, the trial court found that appellant had “not demonstrated adequate and appropriate compliance with the service plan.” The trial court further declared appellant to be the father of both children and named him a temporary possessory conservator. Moreover, the trial court found the guidelines for possession and access to the children were not in their best interest and granted appellant supervised visitation of one hour per week. Pursuant to section 263.306(a)(13), the trial court set the next dismissal date as April 11, 2011 and confirmed the February 9, 2011 trial date. Tex. Fam.Code Ann. § 263.306(a)(13) (West Supp.2011).

NO. 02–11–00137–CV

Decided: July 17, 2012

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

OPINION ON APPELLANT'S MOTION FOR REHEARING AND MOTION FOR EN BANC RECONSIDERATION1

In his brief

V. We affirm the trial court's judgment.

Having overruled appellant's dispositive issues, we affirm the trial court's judgment.

EN BANC

WALKER, J., filed a concurring opinion in which GABRIEL, J., joins.

DAUPHINOT, J., filed a dissenting and concurring opinion, in which MEIER, J., joins.

DELIVERED: July 16, 2012

COURT OF

NO. 02–11–00137–CV

In the Interest of A.J.M.

AND E.A.M., CHILDREN

FROM COUNTY Court AT LAW NO. 1 OF PARKER COUNTY CONCURRING OPINION ON APPELLANT'S

I concur in the result reached by the majority. I write separately to clarify what I understand to be the holding of In re D.W., 249 S.W.3d 625 (Tex.App.—Fort Worth), pet. denied, 260 S.W.3d 462 (Tex.2008).⁵

In D.W., an en banc majority of this court held:

Section 263.405(i) [6] interferes with our power to exercise discretion in determining whether to consider issues not listed in a statement of points, even in absence of prejudice to the Department. The statute bars our consideration of all issues not listed even when they were properly preserved for review under the rules of procedure. In effect, the legislature decides for us that complaints not listed in a timely statement of points are waived. In so doing, section 263.405(i) infringes upon our ability to exercise a “core power” reserved for the judicial branch by telling us not only how we must rule on issues brought before us but that we cannot consider those issues at all. We hold that section 263.405(i) is, therefore, void as a violation of the separation of powers provision of the Texas constitution․

Because section 263.405(i) is void, we are not barred by that statute from considering points that were not listed in a statement of points so long as they were properly preserved for appellate review.

Id. at 645. Though our holding was not worded as precisely as it could have been, my understanding was that we declared section 263.405(i), as applied to Betty, the mother involved in the

SUE WALKER

JUSTICE

GABRIEL, J., joins.

DELIVERED: July 16, 2012

COURT OF

NO. 02–11–00137–CV

In the Interest of A.J.M.

and E.A.M., Children

FROM County Court at Law No. 1 OF Parker COUNTY DISSENTING AND CONCURRING OPINION ONAPPELLANT'S

LEE ANN DAUPHINOT

JUSTICE

MEIER, J., joins.

DELIVERED: July 16, 2012

FOOTNOTES

FN1. See Tex.R.App. P. 49.7.. FN1. See Tex.R.App. P. 49.7.

FN4. See Tex. Fam.Code Ann. § 161.001(2).. FN4. See Tex. Fam.Code Ann. § 161.001(2).

FN5. The undersigned author was not a member of the original three-judge panel in D.W.. FN5. The undersigned author was not a member of the original three-judge panel in D.W.

FN6. All references are to the former section 263.405(i). See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405 remains in effect for final orders rendered before September 1, 2011).. FN6. All references are to the former section 263.405(i). See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405 remains in effect for final orders rendered before September 1, 2011).

FN7. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405 remains in effect for final orders rendered before September 1, 2011).. FN7. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405 remains in effect for final orders rendered before September 1, 2011).

FN8. See Tex.R.App. P. 49.7.. FN8. See Tex.R.App. P. 49.7.

FN9. 249 S.W.3d 625, 645 (Tex.App.—Fort Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex.2008) (per curiam).. FN9. 249 S.W.3d 625, 645 (Tex.App.—Fort Worth) (en banc), pet. denied, 260 S.W.3d 462 (Tex.2008) (per curiam).

FN10. Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405, including subsection (i), is still in effect for final orders rendered before September 1, 2011).. FN10. Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332 (adding subsection (i), requiring statement of points, to section 263.405 of the family code), repealed by Act effective Sept. 1, 2011, 82nd Leg., R.S., ch. 75, §§ 5, 8, 2011 Tex. Gen. Laws 348, 349 (deleting subsection (i) but noting that former section 263.405, including subsection (i), is still in effect for final orders rendered before September 1, 2011).

FN11. See In re E.A.R., 201 S.W.3d 813, 814–15 & n.2 (Tex.App.—Waco 2006, no pet.) (Vance, J., concurring) (quoting House Comm. on Juvenile Justice and Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005)).. FN11. See In re E.A.R., 201 S.W.3d 813, 814–15 & n.2 (Tex.App.—Waco 2006, no pet.) (Vance, J., concurring) (quoting House Comm. on Juvenile Justice and Family Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005)).

FN12. 249 S.W.3d at 645.. FN12. 249 S.W.3d at 645.

FN13. Id. at 640.. FN13. Id. at 640.

FN14. 260 S.W.3d at 462.. FN14. 260 S.W.3d at 462.

FN15. In re J.O.A., 283 S.W.3d 336, 343–44 (Tex.2009) (citations omitted).. FN15. In re J.O.A., 283 S.W.3d 336, 343–44 (Tex.2009) (citations omitted).

FN16. Id. at 347–48 (Willett, J., concurring).. FN16. Id. at 347–48 (Willett, J., concurring).

FN17. 302 S.W.3d 304 (Tex.2010).. FN17. 302 S.W.3d 304 (Tex.2010).

FN18. Id. at 306 (citations omitted).. FN18. Id. at 306 (citations omitted).

FN19. See Lubbock Cnty., Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (stating that once the Supreme Court of Texas announces a proposition of law, the decision becomes binding precedent, and “it is not the function of a court of appeals to abrogate or modify established precedent”).. FN19. See Lubbock Cnty., Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (stating that once the Supreme Court of Texas announces a proposition of law, the decision becomes binding precedent, and “it is not the function of a court of appeals to abrogate or modify established precedent”).

FN20. In re A.S.D., No. 02–10–00255–CV, 2011 WL 5607608, at *1 (Tex.App.—Fort Worth Nov. 17, 2011, no pet.) (mem.op.) (citing J.H.G. for proposition that court is prohibited from addressing issue parent did not raise in statement of points); In re G.A.H., No. 02–11–00015–CV, 2011 WL 4711980, at *7 (Tex.App.—Fort Worth Oct. 6, 2011, no pet.) (mem.op.) (same); In re G.G.C., No. 02–10–00354–CV, 2011 WL 1600840, at *3 (Tex.App.—Fort Worth Apr. 28, 2011, pet. denied) (mem.op.) (same); In re H.S.B., No. 02–10–00324–CV, 2011 WL 1434948, at *1 (Tex.App.—Fort Worth Apr. 14, 2011, no pet.) (mem.op.) (same); In re O.E.W.-K., No. 02–10–00199–CV, 2011 WL 1225470, at *24 n.35 (Tex.App.—Fort Worth Mar. 31, 2011, no pet.) (mem.op.) (same); In re K.B., No. 02–09–00441–CV, 2010 WL 4028107, at *15 (Tex.App.—Fort Worth Oct. 14, 2010, no pet.) (mem.op.) (same); but see In re J.T.V.H., 02–10–00416–CV, 2011 WL 4916388, at *20 & n.17 (Tex.App.—Fort Worth Oct. 13, 2011, no pet.) (assuming without deciding that issue was preserved despite parent's failure to file statement of points when parent also contended on appeal that statute was void).. FN20. In re A.S.D., No. 02–10–00255–CV, 2011 WL 5607608, at *1 (Tex.App.—Fort Worth Nov. 17, 2011, no pet.) (mem.op.) (citing J.H.G. for proposition that court is prohibited from addressing issue parent did not raise in statement of points); In re G.A.H., No. 02–11–00015–CV, 2011 WL 4711980, at *7 (Tex.App.—Fort Worth Oct. 6, 2011, no pet.) (mem.op.) (same); In re G.G.C., No. 02–10–00354–CV, 2011 WL 1600840, at *3 (Tex.App.—Fort Worth Apr. 28, 2011, pet. denied) (mem.op.) (same); In re H.S.B., No. 02–10–00324–CV, 2011 WL 1434948, at *1 (Tex.App.—Fort Worth Apr. 14, 2011, no pet.) (mem.op.) (same); In re O.E.W.-K., No. 02–10–00199–CV, 2011 WL 1225470, at *24 n.35 (Tex.App.—Fort Worth Mar. 31, 2011, no pet.) (mem.op.) (same); In re K.B., No. 02–09–00441–CV, 2010 WL 4028107, at *15 (Tex.App.—Fort Worth Oct. 14, 2010, no pet.) (mem.op.) (same); but see In re J.T.V.H., 02–10–00416–CV, 2011 WL 4916388, at *20 & n.17 (Tex.App.—Fort Worth Oct. 13, 2011, no pet.) (assuming without deciding that issue was preserved despite parent's failure to file statement of points when parent also contended on appeal that statute was void).

FN21. In re M.E.-M.N., 342 S.W.3d 254, 260 (Tex.App.—Fort Worth 2011, pet. denied).. FN21. In re M.E.-M.N., 342 S.W.3d 254, 260 (Tex.App.—Fort Worth 2011, pet. denied).

FN22. See In re J.L.J., 352 S.W.3d 536, 540–41 (Tex.App.—El Paso 2011, no pet.); In re J.J.C., 302 S.W.3d 436, 444 (Tex.App.—Houston [14th Dist.] 2009, pet. denied).. FN22. See In re J.L.J., 352 S.W.3d 536, 540–41 (Tex.App.—El Paso 2011, no pet.); In re J.J.C., 302 S.W.3d 436, 444 (Tex.App.—Houston [14th Dist.] 2009, pet. denied).

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