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). The court shall consider a parent's good faith effort to successfully complete a substance abuse treatment program when granting an extension of the deadline. Tex. Fam. Code § 263.401(b-2). The court must make a finding of extraordinary circumstances to extend the dismissal date of a suit if a parent has made a good faith effort to complete a service plan but needs more time and the court intends to return the child once the plan is completed. Tex. Fam. Code § 263.401(b-3).

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 automatically 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).

If, after commencement of the initial trial on the merits within the time required by Tex. Fam. Code § 263.401(a) or (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 date on which the suit will be automatically dismissed, 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 (b-1) but does not commence the trial on the merits before the dismissal date, the court's jurisdiction over the suit is terminated and the suit is automatically dismissed without a court order. 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 (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);

In re J.E.P., No. 04-18-00241-CV (Tex. App.—San Antonio 2018) (By rejecting the trial court's proposed trial date, which was the only date left available within the one-year deadline, father effectively agreed to the extension).

In re J.-R.A.M., No. 10-20-00221-CV (Tex. App.—Waco 2020, pet. denied) (mem. op.) (Failure to enter a written order or to specifically set a dismissal date does not affect the validity of an order granting an extension pursuant to emergency orders issued by the Texas Supreme Court regarding the COVID-19 State of Disaster. The emergency orders do not expressly require compliance with an extension granted after the initial extension).

In re A.R.¸ No 11-20-00152-CV (Tex. App.—Eastland 2020) (mem. op.) (It is well within the trial court's discretion to deny a request for a continuance despite any assertion that a party needs more time to complete services due to the COVID-19 pandemic disrupting services).

In re A.W. a/k/a A.R.W., 623 S.W.3d 519 (Tex. App.—Waco 2021, no pet.) (The Twenty-Ninth Emergency Order requires that an extension order entered under COVID-19 provisions where a case has not yet entered an extension order pursuant to Tex. Fam. Code § 263.401(b) must still adhere to its requirements).

2. Failure to Resolve Case Before Dismissal Date

If the court does not commence the trial on the merits before the required date for dismissal, the court's jurisdiction over the suit is terminated and the suit is automatically dismissed without a court order, unless the court has granted an extension. Tex. Fam. Code § 263.401(c).

3. Motion to Dismiss

There is no duty to file a motion to dismiss. The court automatically loses jurisdiction of the case without a court order unless the trial court has commenced the trial on the merits or granted an extension under Tex. Fam. Code § 263.401(b) or (b-1).

4. Effect of Dismissal

Typically, the dismissal of a SAPCR 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). See also 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 are not sufficient to deny placement with parents absent evidence of current danger to the health or safety of the child).