NO. 07-03-0262-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JUNE 4, 2004

______________________________ IN THE INTEREST O F D.B. AND E.A.B., CHIL DREN

_________________________________ FROM THE 3 20TH DI STRICT COURT OF PO TTER CO UNTY; NO. 59,321-D; HONORABLE D ON EMERSON , JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
OPINION Appellant

Tamm y Savage challenges the trial court’s order

terminating her parentchild relationshi p with E.A .B. and D.B. Shea sserts t hat the Family Code requi red dismi ssal o f the sui ts befor e the te rminat ion hea ring . We affirm.

BACKGROUND
On September 30, 1998, t he Department of Protective and Regu latory Ser vices (DPRS)filed a suit affe cting the parent-child relationship in t he 320th Distric t Court of1 Furt her reference to a sec tion of the Texas F amily Code will b e by referenceto “section __.” -2- Potter County seeking conserv atorship of Savage’s son E.A.B. The cau se number assigned was 59,321-D. On March 23, 1999, the trial court appointed DPRS permanent managing conservator of E.A.B. Savage does not contend that s uch order was not a “final order.” See T EX . F AM . C ODE A NN . § 263.401(d)(3) (Vernon 2002 ). 1
On April 12, 199 9, DPRS filed a petition in th e 320 th Distric t Court of Potter

County seeking conservatorship of Savage’s daughter D. B. That cause was assigned number 60,262-D. In cause number 60,262-D the tr ial court app ointed DPRS te mporary manag ing conservator

of D.B. on April 27, 1999. On J anuary 20, 2000 , the trial court issued a Permanency Hearing Order in cau se number 60,262-D which, among other things, extended the dismissal date of the suit until October 13, 2000. See section 263.401(a), (b).
On January 28, 2000, DPRS filed an Original Petit i on for Terminatio n in cause number 59,321-D and an A mended Petition for Ter mination in caus e number 60, 262-D. On July 24, 2000, Todd W hite and Kathleen W hite filed petitions in intervention in both the suits. By their

intervent ions, the Whites sought termination of the p arent-child relationship between Savage and the children, and appointment as manag ing conser vators of the children.
Ata January 22, 2001 hearing , the trial court consoli dated the cases under cause number 59,321-D, appoi nted DPRS manag ing conser vator of the ch ildren and appointed-3-

Savage aspossessory conservator of the children. The writte n order was signed on April 27, 2 001.
On October 25, 2001, the Whites filed a separate suit in the 3 20 th Distric t Court of Potter County seek ing to termi nate the parent-c hild relati onship betwe en Savage and both of the children . The suit was assigned cause number 64,685- D. On Augus t 8, 2002, the trial court consol idated causes 64, 685-D and 64,646-D, a sui t filed seeking grandparent
access to the childr

en, into cause number 59,321-D. In January and March, 20 03, Kathleen White (“W hite”) amended her petiti on seekin g termination of the paren t-child relationship between Savage and her chi ldren, wh ich was by then pending as part of cause number 59,321-D. Todd White nonsuited hi s action. Although sh e filed an answer to the original pleadin g in cause 64,685 -D, Savage did not chall enge the propr iety of the suit, nor did she file a res ponse to W h ite’s amended peti tions in the consolidated caus e number 59,321-D.
On March 24, 2003, cause num ber 59,321-D was call ed for tr ial and S avage announced ready. After hearing the evidence at a bench trial, the trial cour t terminated the parent-child relationshi p between Savage and the chi ldren and appointed White an d DPRS
as permanent mana ging conservators of E.A.B. and D.B. The tri al court’s order reflecti ng this judgment was si gned on April 24, 2003. It is from this Order

of Termination that Savage appeals. Savage c on tends that: (1) section 263.4 01(a) deprived the trial court of subject matter jurisdic tion to terminate Savage’ s parental r ights in t he suits filed by DPRS because-4-

the suits shoul d h ave be en dismissed pr ior to the ter mination hearing ; (2) the w aiver provisi on contained in section 263.4 02(b) does not apply beca use i t bec ame eff ecti ve after the mandatory di smissal date un de r section 263.401(a); and (3) if section 263.402(b)’s waiver provision is applicable, then trial counsel’s failure to tim elyfile a motion to dismiss constituted inef fec tive assistance of counsel. She does not, how ever, chal lenge the tr ial court’s jur isdiction to terminate her parental ri ghts pursuant to either White’s intervention petition in cause 59,321- D, or W hite’s original suit in 64,685-D, w hich was consolidated i nto cause number 59,321- D.
LAW AND ANALYSIS
When a separate and i nd ep endent ground tha t supports a j udgment is not challenged on appeal, the appellate court must affirm the lower court's judgment. See San Antonio Press v . Custom Bilt Mach. , 852 S.W.2d 64, 65 (Tex.App.- -San Antonio 1993, no writ); Herndon v. First Nat'l Bank of Tulia , 802 S.W .2d 396, 400 (Tex.App. --Amarillo 1991, writ denied). And, both White’s interventi on, see In re C.V. G. , 112 S.W .3d 180, 184 (Tex.App.–Hous ton [1 st Dist.] 2003, no pet.), and her separate, ori ginal sui t, see Lea ch v. Brown , 156 Tex. 66, 292 S.W .2d 329, 331 (1956), th e proprie tyof which w as not challenged, vested the tr ial court w ith juris diction to ter minate Savag e’s parental rights.
Because Savage doe s not challeng e the trial court’s jur isdiction ov er claims to terminate her

parental rights via White’s intervention and sui t, and b ecauseWhite’s cl aims vest e d the trial court wit h jurisdic tion to terminate Savage’ s parental r ights, w e need not and do not address Savage’s first and second issues which challenge the trial court’s2 Because we do not address the merits of Savage’s chal lenges to the trial court’s

jurisdict ion, we expr

ess no opinion o n w hether t he trial cour t’s rulin g would have been correct had the court sustained such a jurisdi ctional challenge, had one been presented.
-5- failure to dismiss DPRS’s claims for ter mination. See T EX . R. A PP . P. 47.1; Herndon , 802 S.W.2d at 400. Savage’s thir

d issu e clai ms ineffective ass istance of counsel based on applicabil ity of the section 263.402(b) waiver provision and her counsel’s failure to seek dismissal of the DPRS’s su it pursuant to section 263.401( a). To prev ail on her c laim of in eff ecti ve assistance of counsel, however, Savage has the burd en to affirmativel y prov e both deficient performance by counsel and prej udice from the all egedly defic ient performance. See Mitchell v. State , 989 S.W.2d 747, 748 (Tex. Crim. App. 1999), citing Stric klan d v. Washington , 466 U.S. 668,_, 104 S.Ct. 2052, 2066-68, 80 L.Ed .2d 674 (1984). To p rove prejudice, she must prove a r easonable probabi lity that but for counsel’s al leged erro r, the result of the procee di ng would have been different. A reaso nable probability is a probability

sufficient to undermine confidence in the out come. See Hernandez v . State , 726 S.W.2d 53, 55 (Tex.Crim.App. 1986)

. E ven had counsel mov ed for and obtained di smissal of the D PRS’s clai ms for termination of Savage’s parental ri ghts pursuant to section 263.401(a), 2 Savage does not assert or demonstra te that t he dismissal would have altered the tr ial court j udgment terminating h er parental rights bas ed on White’s claims. Accor dingly , she has failed to demonstrate prejudice from counsel’s all eged ineffectiv e as sista nce. Issue three is overrule d.-6- CONCLUSION
We af firm the Order o f Termination.

Phil Johnson Chief Justice