Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 158th District Court Denton County, Texas
Trial Court No. 17-10158-158
Gabriel, Bassel, and Womack, JJ.
MEMORANDUM OPINION AND ORDER
T.S. (Mother) appeals the trial court's order terminating
her parental rights to her son A.E. (Adam). In her first
issue, Mother complains that the trial court jurisdictionally
erred by extending the case's dismissal deadline under
family code section 263.401(b). See Tex. Fam. Code
Ann. § 263.401(b). In her second issue, she asserts that
the trial court erred by not complying with the notice
provisions of the Indian Child Welfare Act (ICWA).
See 25 U.S.C.A. § 1912(a). In her third issue,
Mother contends that the trial court erred by not complying
with ICWA's qualified-expert-witness requirement. See
id. § 1912(f). In her fourth issue, she alleges
that the trial court erred by not making ICWA's required
finding beyond a reasonable doubt that Adam's continued
custody by her or an Indian custodian would likely cause the
child serious physical or emotional damage. See id.
Finally, in her fifth issue, Mother challenges the factual
sufficiency of the evidence to support the trial court's
best-interest finding, embedding a fundamental-fairness
subissue as well as an argument based on the ICWA standard of
review, see id.
overrule Mother's first issue and that portion of her
fifth issue not based on ICWA. But we sustain her second
issue, conditionally affirm the trial court's judgment,
abate the appeal, and remand this case to the trial court.
direct the trial court to ensure prompt and proper notice
under ICWA, to conduct a hearing to determine whether Adam is
an Indian child under ICWA, and to transmit a supplemental
reporter's record of the hearing and a supplemental
clerk's record containing a copy of the ICWA-compliant
notice, the trial court's written findings, any return
receipts, and any other supporting documentation to this
court by November 6, 2019. No extensions will be granted in
this ultra-accelerated appeal. See Tex. R. Jud.
Admin. 6.2(a) (requiring appellate court to dispose of appeal
from a judgment terminating parental rights, so far as
reasonably possible, within 180 days after notice of appeal
receive a supplemental record by Wednesday, November 6, 2019,
that contains the trial court's determination that Adam
is not an Indian child, we will affirm. Otherwise, we will
reverse for a new trial. See 25 C.F.R. §
23.107(b)(2) (directing the trial court with reason to know
that a child before it is an Indian child but not enough
evidence to determine whether or not the child is an Indian
child to "[t]reat the child as an Indian child, unless
and until it is determined on the record that the child"
is not); Tex. R. Jud. Admin. 6.2(a).
Protective Services (CPS) removed Adam after he and Mother
both tested positive for amphetamines at his November 2017
birth. Mother, a long-time user of methamphetamine with
several untreated mental-health issues, a criminal history,
and a lengthy CPS history, admitted before the removal that
she had last used methamphetamine two days before Adam's
originally placed Adam in foster care but at the end of May
2018 placed him with his maternal grandmother (Grandma), with
whom at least two of Mother's other four children
currently lived; a foster family had adopted another child of
Mother's. Grandma returned Adam to CPS in early November
2018, and he was placed back with his original foster
parents, with whom he remained at the May 2019 trial.
trial testimony, Mother admitted that she last used
methamphetamine less than a month before the trial and last
used heroin in January 2019, a few months before the trial
and just before her drug and alcohol assessment for CPS. She
conceded that it was fair to conclude that she had shown
"absolutely no behavioral change" since Adam's
trial court found that termination of the parent-child
relationship between Mother and Adam was in his best interest
and that Mother
7.2.1. knowingly placed or knowingly allowed [Adam] to remain
in conditions or surroundings which endangered [his] physical
or emotional well-being . . .;
7.2.2. engaged in conduct, or knowingly placed [Adam] with
persons who engaged in conduct, which endangered [his]
physical or emotional well-being . . .;
7.2.3. constructively abandoned [Adam], who ha[d] been in the
temporary managing conservatorship of the Department of
Family and Protective Services [(DFPS)] for not less than six
months, and: 1) [DFPS] ha[d] made reasonable efforts to
return [Adam] to [Mother]; 2) [she had] not regularly visited
or maintained significant contact with [him]; and (3) [she
had] demonstrated an inability to provide [him] with a safe
7.2.4. failed to comply with the provisions of a court order
that specifically established the actions necessary for [her]
to obtain [Adam's] return[, ] . . . [when he had] been in
the temporary managing conservatorship of [DFPS] for not less
than nine months as a result of [his] removal from [Mother]
for abuse or neglect . . . .
See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (N), (O), (2). The trial court terminated Mother's
parental rights as well as those of R.E. (Father), who
voluntarily relinquished his parental rights and did not
SUBJECT MATTER JURISDICTION AND EXTENSION OF DISMISSAL
first issue, Mother contends for the first time that
"[t]he trial court should not have extended the
state's case against [her] when there were no
'extraordinary circumstances' within the meaning of
that term as used in Texas Family Code section 263.401(b),
and none were pleaded nor proved." Within her first
issue, Mother claims that the trial court lacked subject
matter jurisdiction because it improperly extended the case.
We address Mother's jurisdictional claim because subject
matter jurisdiction is an issue that cannot be waived and
that may be raised for the first time on appeal. Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 445 (Tex. 1993). Whether a trial court has subject
matter jurisdiction is a question of law; we therefore review
it de novo. Tex. Parks & Wildlife Dep't v. Sawyer
Tr., 354 S.W.3d 384, 388 (Tex. 2011).
263.401(a) now provides that "on the first Monday after
the first anniversary of the date the court rendered a
temporary order appointing [DFPS] as temporary managing
conservator," a trial court loses its jurisdiction over
a "suit affecting the parent-child relationship filed by
[DFPS] that requests termination of the parent-child
relationship or requests that [DFPS] be named conservator of
the child" "[u]nless the court has commenced the
trial on the merits or granted an extension under Subsection
(b) or (b-1)." Tex. Fam. Code Ann. § 263.401(a).
DFPS filed its petition for termination against Mother and
Father on November 30, 2017, and the trial court entered an
order naming DFPS Adam's temporary sole managing
conservator that same date. Thus, under section 263.401(a),
the case's original automatic dismissal deadline was
Monday, December 3, 2018. See id. Father filed a
motion for extension of the dismissal deadline on September
25, 2018, less than a week before an October 1, 2018 trial
setting. In his motion, Father asked for more time to
complete his services and characterized that need as
"extraordinary circumstances." Id. §
263.401(b). On October 3, 2018, the trial court signed an
order entitled "Agreed Order Extending Dismissal
Date" in which it (1) found that Father's needing
more time to complete his court-ordered services amounted to
extraordinary circumstances, (2) found that continuing the
appointment of DFPS as Adam's temporary managing
conservator was in his best interest, (3) set a new trial
date of March 25, 2019, and (4) set a new dismissal date of
May 29, 2019. See id. The order recited that all the
parties agreed to it, but our review of the order indicates
that no party or counsel indicated by signature any
substantive agreement, only approval of the order's form.
See id. § 263.402 (providing parties may not
extend the dismissal deadline by agreement). On the other
hand, the record does not contain any evidence that Mother
opposed Father's motion, and she did not object to the
trial court's ruling or file a motion to dismiss the
case; in fact, she filed a motion for continuance on May 13,
2019, the day the trial began, which the trial court denied.
the trial court granted Father's motion to extend the
case's dismissal deadline less than eleven months after
issuing its first temporary order regarding Adam's
conservatorship, the trial court was well within its
jurisdiction to do so. See id. § 263.401(a).
The trial court's granting Father's motion to extend
the dismissal deadline allowed the trial court to keep the
case on its docket (and within its jurisdiction) for an
additional 180 days beyond the original deadline. See
id. § 263.401(b); cf. Brant Oilfield Mgmt.
& Sales, Inc. v. Mountwest, Inc., No.
14-15-00240-CV, 2016 WL 3574669, at *2 (Tex. App.-Houston
[14th Dist.] June 30, 2016, no pet.) (mem. op.) ("If the
December 19th motion was a deadline-extending motion under
[appellate] rule 26.1, then Brant's notice of appeal was
timely filed[, ] and this court has subject matter
jurisdiction to decide the merits."). Thus, whether the
trial court erroneously granted the motion to extend the
dismissal deadline while it had subject matter jurisdiction
is not a jurisdictional question. See In re P.N.T.,
No. 14-18-01115-CV, 2019 WL 2426692, at *2 (Tex. App.-Houston
[14th Dist.] June 11, 2019, no pet. h.) ("[A] judgment
is void only when it is shown that the court had no
jurisdiction of the parties or property, no jurisdiction of
the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act as a court." (quoting
Browning v. Placke, 698 S.W.2d 362, 363 (Tex.
1985))) (construing the prior version of the statute).
Nonjurisdictional error, like a trial court's action in
violation of a statute, makes the court's judgment merely
voidable, not void. Reiss v. Reiss, 118 S.W.3d 439,
443 (Tex. 2003); Glassman v. Goodfriend, 347 S.W.3d
772, 780 (Tex. App.-Houston [14th Dist.] 2011, pet. denied)
(op. on reh'g en banc) (citing Reiss). The trial
court here had "jurisdiction to err." Parrish
v. Jessee, 464 S.E.2d 141, 146 (Va. 1995) (quoting
Farant Inv. Corp. v. Francis, 122 S.E. 141, 147 (Va.
1924)). We therefore reject both Mother's claim that the
trial court lacked subject matter jurisdiction and her
conflation of alleged trial error with an alleged absence of
did not object in the trial court to the granting of
Father's requested extension of the dismissal deadline.
Challenges to a voidable judgment "are subject to the
rules for preservation of error." P.N.T., 2019
WL 2426692, at *2. To preserve a complaint for appellate
review, a party must present to the trial court a timely
request, objection, or motion that states the specific
grounds for the desired ruling, if not apparent from the
request's, objection's, or motion's context.
Tex.R.App.P. 33.1(a)(1)(A). If a party fails to do this,
error is not preserved. Bushell v. Dean, 803 S.W.2d
711, 712 (Tex. 1991) (op. on reh'g). Because Mother did
not object to the trial court's extending the dismissal
deadline, she failed to preserve her complaint that the trial
court erred by doing so. We therefore overrule her first
ADAM'S BEST INTEREST
does not challenge the sufficiency of the evidence supporting
the trial court's findings of endangerment, nor does she
directly challenge the trial court's findings that she
constructively abandoned Adam and failed to comply with the
court-ordered service plan. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (N), (O). However, in her fifth
issue, she contends that the evidence is factually
insufficient to support the trial court's finding that
termination of her parental rights is in Adam's best
interest. See id. § 161.001(b)(2).
STANDARD OF REVIEW
perform "an exacting review of the entire record"
in determining the factual sufficiency of the evidence
supporting the trial court's best-interest finding.
In re A.B., 437 S.W.3d 498, 500 (Tex. 2014).
Nevertheless, we give due deference to the finding and do not
supplant it with our own. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction
or belief that the termination of Adam's and Mother's
parent-child relationship would be in his best interest. Tex.
Fam. Code Ann. § 161.001(b)(2); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002). If a factfinder reasonably could
form such a firm conviction or belief, then the evidence is
factually sufficient. C.H., 89 S.W.3d at
we generally presume that keeping a child with a parent is in
the child's best interest, In re R.R., 209
S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is
child-centered, focusing on the child's well-being,
safety, and development, In re A.C., 560 S.W.3d 624,
631 (Tex. 2018). Evidence probative of a child's best
interest may be the same evidence that is probative of a
conduct ground. In re E.C.R., 402 S.W.3d 239, 249
(Tex. 2013); C.H., 89 S.W.3d at 28; see
Tex. Fam. Code Ann. § 161.001(b)(1). We also consider
the evidence in light of nonexclusive factors that the trier
of fact may apply in determining the child's best
(A) the child's desires;
(B) the child's emotional and physical needs, now and in
(C) the emotional and physical danger to the child now and in
(D) the parental abilities of the individuals seeking
(E) the programs available to assist these individuals to
promote the ...