In re Carole Bishop and Roger Herrera--Appeal from of County

IN THE

TENTH COURT OF APPEALS

No. 10-99-283-CV

IN RE CAROLE BISHOP AND ROGER HERRERA,

Relators

Original Proceeding

CONCURRING AND DISSENTING OPINION

I concur in the majority s analysis of Section 263.401 of the Family Code and with its application to the three older children. The application of Section 263.401 to the youngest of the four children, S.J.H, is more problematic. The question is whether an order is an extension order because of its content or because of its effect. The April 1, 1999 order contained the elements of an extension order and purported to be an extension order. However, as the majority notes, the effect of the order is actually to shorten the time in which the trial court could decide the permanency issue with regard to S.J.H. The majority states that such a construction appears to run counter to the legislature s intention that DPRS have twelve months to attain permanency in such a suit.

The DPRS is not guaranteed 12 months to resolve the permanency issue. By establishing a deadline by which to act, the statute by implication allows the court to resolve the permanency issue at any time prior to the deadline. It appears to have been the legislature s intent to give the trial court discretion as to the timing of resolving the permanency issue and all the tools necessary to enforce its deadline. It appears the legislature wanted to make sure the trial court and the DPRS understood that time was of the essence when dealing with the lives of children.

In this situation there were three children on one timetable and a much younger child on another timetable. The trial court should have the authority to decide if it is in the best interest of each child to keep the timetables separate or force them to all be decided at the same time. I see nothing inherently wrong with the trial court being allowed to review the status of the various children and the evidence necessary to determine permanency, and put all the children on the same timetable for a permanency decision. Likewise the trial court should have the discretion to keep the various children on separate timetables.

If the trial court decides that a single timetable is preferable when multiple children are involved, and an extension under Section 263.401(a) of the Family Code is being considered, I see nothing in the statute or the legislative history that compels me to believe that the trial court cannot make the terms of that extension order, and thus the same timetable, apply to each child, even if it has the effect of shortening the ultimate time for determination of permanency to less than twelve months. It is clear that the legislature wanted to shorten the time that it was taking to decide permanency issues.

Thus, for the reasons expressed, I respectfully dissent from that portion of the majority opinion that holds that the trial court may not dismiss a suit pursuant to Section 263.401(a) in less than the twelve months provided by the statute. The April 1, 1999 extension order put all four children on the same timetable. It had the indirect impact of shortening the ultimate amount of time for a permancy determination for S.J.H. to less than twelve months. Thus, I would hold that the DPRS suit as to S.J.H. must be dismissed pursuant to Section 263.401 for the same reasons as the suits regarding the other three children must be dismissed. This would keep the litigants and the reviewing court from having to look behind the express language of a trial court order to determine if it was not in fact an extension order as it clearly purported to be on its face.

The majority also holds that an order continuing the trial court s jurisdiction under Section 263.402 cannot be rendered after the expiration of an extension period granted under Section 263.401. The trial court has not attempted to do this and thus this issue is not before us. We should await the time to decide this issue until it is properly before us, and has been fully briefed by the parties. I express no opinion on the majority s analysis of this issue.

TOM GRAY

Justice

Concurring and dissenting opinion delivered and filed on December 10, 1999

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