in the Interest of F.S., M.S., and A.S.

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00114-CV
__________________
IN THE INTEREST OF F.S., M.S., AND A.S.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 19-12-16453-CV
__________________________________________________________________
OPINION
In suits to terminate a parent-child relationship, section 263.401(a)
of the Texas Family Code generally requires the trial of the case to begin
by the first Monday following the one-year anniversary of the day the
trial court signed the temporary order appointing the Department as the
child’s temporary managing conservator. 1 But one of the exceptions to
the above rule—call it the automatic-one-year-dismissal deadline or the
1See Tex. Fam. Code Ann. § 263.401(a).
1
automatic-dismissal deadline—allows trial courts to extend the deadline
by finding that extraordinary circumstances and good cause require
allowing the child to remain in the Department’s custody. 2 While the
findings must be made if the trial has not started by the automatic-
dismissal deadline or the suit is dismissed, the statute’s terms do say that
trial courts must state their findings in writing or state them orally when
they rule on a motion to extend the statutory deadline. 3
At issue in this appeal is whether the findings in section 263.401
may be inferred from the record before us in this appeal. For the reasons
explained below, we hold the findings may be inferred when the record
shows a party filed a written motion before the automatic-dismissal
deadline, asked the trial court to retain the case on its docket under
Family Code section 263.401 because extraordinary circumstances and
2Id. § 263.401(b) (emphasis added).
3See id. § 263.401. While the Legislature amended section 263.401
by adding section 263.401(b-3) to the statute after the Department filed
this suit, the amendment relevant to analyzing whether the findings
required by the statute may be implied when supported by the record
were not changed by the amendment. No changes were made to
subsections (a) and (b) when the Legislature added subsection (b-3) to the
statute. Compare Act of April 28, 2021, 87th Leg., R.S., ch. 8, 2021 Tex.
Gen. Laws 15, with the current version at Tex. Fam. Code Ann. § 263.401.
Thus, when referring to section 263.401 we cite to the current version of
the statute.
2
good cause required it to do so, the trial court orally granted the motion,
and the statements made by the court during the hearing support
inferring the trial court found the grounds alleged in the motion for
extending the automatic-dismissal deadline had merit. 4
Background
In December 2019, the police notified the Department that Mother
had been arrested after she was found with her three children, who were
then three, two, and one-month old. Because police put Mother in jail and
the Department couldn’t find Father, the Department filed an affidavit
supporting the petition it filed seeking an emergency order authorizing
the Department to remove the children from their home. According to the
caseworker who signed the affidavit of removal, the police told her that
Mother, when the police picked her up, “had pills on her.” 5 After the
Department sued, the Montgomery County district clerk assigned the
case to the County Court at Law Number 3. 6 The judge of that court
4Id.
5The record does not state what the charges were that resulted in
Mother’s arrest.
6The county courts at law in Montgomery County have concurrent
jurisdiction in district courts in family law cases, and the district clerk,
which is where the Department filed its petition and accompanying
3
granted the Department’s request for an emergency order, appointed the
Department as the children’s temporary managing conservator, and on
grounds of emergency ordered the children removed from their home. By
appointing the Department as the children’s temporary managing
conservator, the trial court started the clock on the automatic-one-year-
dismissal deadline of section 263.401(a). 7
Then in a later adversary hearing on December 19, the trial court
signed a temporary order naming the Department as the temporary
managing conservator of the children and naming Mother and Father as
their possessory conservators. In the order, the trial court warned Mother
and Father of the actions they needed to complete for their children to be
returned to them, and it also warned that should they fail to comply with
the order, their parental rights could be restricted or terminated. When
simplified, the temporary order essentially required Mother and Father
to do five things: (1) to submit to interviews by a psychologist or
psychiatrist as required by the temporary order; (2) to attend and
cooperate in counseling sessions as required by the temporary order; (3)
affidavit, serves as the clerk of the county courts at law in cases of
concurrent jurisdiction. Tex. Gov’t Code Ann. § 25.1722(a)(1), (e).
7See Tex. Fam. Code Ann. § 263.401(a).
4
to attend parenting classes as required by the temporary order; (4) to
submit and cooperate in court-ordered drug and alcohol dependency
assessments and testing as required by the temporary order; and (5) to
comply with the Department’s original and any amended family service
plans during the suit. In a separate order, also signed on December 19,
the trial court notified the parties that the one-year-statutory dismissal
deadline fell on December 14, 2020.
In a hearing in October, the trial court set the case for trial on
December 7, 2020. The December setting contemplated the parties would
try the case to the bench. But that same month, Mother filed a jury
demand. And in November, Father asked the court in a written motion
to extend the case past the automatic-one-year-dismissal deadline,
alleging extraordinary circumstances and good cause required doing so
because the COVID-19 pandemic prevented him from completing his
service plan and because the additional time would serve his children’s
best interest by allowing him to complete his family service plan so his
family could “be reunified or [] a relative placement may be secured.”
On November 30, the trial court conducted a pretrial hearing to
consider the three pending motions: (1) the demand Mother filed to have
5
the case tried to a jury; (2) Father’s motion to extend the automatic-one-
year-dismissal deadline; and (3) the Department’s objections to Mother’s
request for a jury. 8 When the hearing began, the trial court noted the
court had read the parties’ motions. Then the trial court asked whether
the children were still together in the same foster home where they had
been “for a while.” The Department’s caseworker confirmed the children
were still together in the foster home. The court also asked whether the
children’s parents were together “at this time[.]” Father’s attorney told
the court it was her understanding the parents were together.
Next, Father’s attorney told the trial court that Father also wanted
the case tried to a jury. The Department did not object when Father told
the trial court that he too wanted a jury trial. So even though the
Department had filed objections to the jury demand Mother had filed for
a jury before the hearing, it didn’t object in the hearing to Father’s
demand, which he made for the first time. At that point, the trial court
said: “All right. So I am going to go ahead and grant an extension.” Even
though no one asked the trial court to explain the specific reasons it was
8The Department didn’t file written objections to Father’s motion to
extend the automatic-one-year-dismissal deadline, and it didn’t object to
Father’s request in the hearing.
6
granting the extension, the trial court did make some statements in the
hearing that show why it extended the deadline. The trial court said that
since Mother and Father wanted a jury, the court “didn’t have a choice”
but to grant Father’s motion to extend the deadline because the court
couldn’t “try a case within the first deadline based on COVID-related
issues.”9
After the automatic-one-year-dismissal deadline passed, the trial
court signed an order and found “extraordinary circumstances
necessitate the children, [F.S. M.S., and A.S.], 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 children.”
9While this case was pending in the trial court, several Texas
Supreme Court Emergency Orders that resulted from the COVID-19
pandemic affected the trial court’s deadlines. The appellants do not argue
the trial court failed to comply with any of those orders. Later the trial
court granted even more extensions, including one under section 263.403
of the Family Code, which allows trial courts to retain jurisdiction
notwithstanding the provisions of section 263.401 pending the outcome
of a child’s monitored return. See id. § 263.403. That said, Mother and
Father have not complained about the trial court’s rulings on the later
extensions and for that reason we have not addressed them in the appeal.
7
After the trial court granted several more extensions that are not
at issue here, the trial in the case started on January 25, 2022. When the
jury returned with its verdict, the jury found that Mother’s and Father’s
rights should be terminated. As to Mother, the jury found her rights
should be terminated on four grounds: (1) conduct endangerment; (2)
condition endangerment; (3) failure to comply with her court-ordered
family service plan; and (4) because she has a mental or emotional illness
or mental deficiency that renders her unable to care for her children.10
As to Father, the jury found his rights should be terminated on three
grounds: (1) condition endangerment; (2) conduct endangerment; and (3)
because he failed to comply with his court-ordered family service plan.11
Together with the above findings, the jury answered separate issues and
found that terminating Mother’s and Father’s rights is in the children’s
best interest. Relying on the jury’s findings, the trial court signed an
order terminating the parent-child relationships between the appellants
and their three children.
10See id. § 161.001(b)(1)(D),(E), (O), and § 161.003.
11See id. § 161.001(b)(1)(D),(E), (O).
8
Standard of Review
The issue in this appeal is whether section 263.401 requires trial
courts to make express findings either orally in a hearing or in a written
order filed before the automatic-one-year-dismissal deadline expires.12
Because this is an issue of statutory construction, the issue is a legal one
and subject to de novo review. 13 When construing a statute, “we assume
the Legislature chose statutory language with care, included each chosen
word for a purpose, and purposefully omitted all other words.” 14 “Our
objective is to ascertain and give effect to the Legislature’s intent, and
the truest manifestation of what lawmakers intended is what they
enacted.” 15
We note that unlike section 263.401, there are other instances in
the Family Code where the Legislature requires trial courts to issue
orders that include “a statement of” a required finding or an order that
“states the reasons” for the trial court’s findings. 16 Thus the Legislature
12Seeid. § 263.401.
the Interest of D.S., 602 S.W.3d 504, 514 (Tex. 2020).
13In
14Id.
15Id. (cleaned up).
16See, e.g., Tex. Fam. Code Ann. § 261.504(b) (required findings
when trial courts issue a protective order after finding a child is a victim
9
knows how to require trial courts to make findings of record when it
wants to do so and to avoid requiring the findings required by its statutes
to be implied. 17
Analysis
In separately filed briefs, Mother and Father argue that because
the trial court did not sign an order granting Father’s motion to extend
the deadline before the deadline passed or make the findings required by
section 263.401(b) to extend the deadline in the hearing, the case was
dismissed by operation of law. They also argue that because the order the
trial court ultimately signed was signed after the statutory deadline
expired, the trial court’s order didn’t revive a case that had been
automatically dismissed under section 263.401. 18
The Department raises three arguments in response to the
arguments raised in the appellants’ briefs. First, it argues that good
cause and extraordinary circumstances are not jurisdictional
prerequisites to a trial court maintaining jurisdiction over the
of abuse or neglect a threat still exists); id. § 263.109(b) (when the trial
court finds that visitation between a parent and child is not in the child’s
best interest).
17See D.S., 602 S.W.2d at 514.
18See Tex. Fam. Code Ann. § 263.401(a), (b).
10
Department’s suit. Second, it contends the only reasonable interpretation
of the hearing on Father’s motion to extend the automatic-one-year-
dismissal deadline is that the trial court granted Father’s motion. Third,
it suggests the good cause and extraordinary circumstances findings, if
required by the statute, may be implied from the hearing the trial court
conducted on Father’s motion from the pleadings before the trial court
together with the record of the hearing. 19
To resolve Mother’s and Father’s appeal, we must answer four
questions. First, we must decide whether the Legislature made the
statutory findings required by section 263.401(b) jurisdictional
prerequisites to a trial court’s retaining jurisdiction over suits to
terminate a parent’s relationship with their child. Second (no matter how
we decide the first question), we must decide whether an oral ruling on a
motion to extend the section 236.401 dismissal deadline if it is not
memorialized in a written order or noted in the docket sheet is effective
to extend the automatic-one-year-dismissal deadline. Third (if the record
shows the trial court granted Father’s motion), we must decide whether
19See id. § 263.401.
11
section 263.401 requires trial courts to state their findings orally or in
timely-filed written orders, or instead whether the statutorily required
findings may be implied when the trial court grants a motion to extend
the statutory deadline and no one requested the trial court provide the
parties with written findings. Fourth (if the required statutory findings
may be implied from the ruling on the motion), we must decide whether
the appellants have met their burden to show that when the ruling was
made the pleadings and evidence do not support the trial court’s implied
findings of extraordinary circumstances and good cause.
First, we address whether, under the statute as currently written,
extraordinary circumstances and good cause are jurisdictional
prerequisites to a trial court’s granting a motion to extend the automatic-
one-year dismissal deadline under section 263.401(a). 20 Section 263.401
creates a clock, which requires trial courts to begin the trial of a case filed
by the Department to terminate the parent-child relationship by the
“first Monday after the first anniversary of the date the court rendered a
temporary order appointing the [D]epartment as [child’s] temporary
managing conservator” unless an exception to the statutory deadline
20Id. § 263.401(a).
12
applies. 21 Before the trial court granted the extension at issue here, the
automatic-one-year-dismissal deadline was December 14, 2020. The
record shows the trial started on January 25, 2022, which was after the
automatic-one-year-dismissal deadline unless based on what the trial
court did in the November 2020 counts as a valid ruling granting a
section 236.401 extension.
Mother and Father argue the final order terminating their rights is
void because the trial court lost jurisdiction over the suit when, according
to them, the trial court failed to comply with the requirements of section
263.401 in November 2020 and after that didn’t sign a written order
before the suit was automatically dismissed. 22 Under Texas law, a
“judgment is void, rather than voidable when it is apparent that the court
rendering judgment had no jurisdiction over the parties or property, no
jurisdiction over the subject matter, no jurisdiction to enter the particular
judgment, or no capacity to act.” (emphasis added). 23
21Id.
22Id. § 263.401.
23In the Interest of D.S., 602 S.W.3d at 512 (cleaned up).
13
Section 263.401(b) allows a trial court to retain a case like the
Department’s if a trial on the merits has not “commenced” by the
automatic-one-year-dismissal deadline upon making two findings:
(1) “extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship
of the [D]epartment and that”
(2) “continuing the appointment of the [D]epartment as
temporary managing conservator is in the best interest
of the child.” 24
The Department argues the above two findings are not jurisdictional
prerequisites to the trial court’s maintaining jurisdiction over its suit. We
disagree.
In 2021, the Texas Supreme Court said that “section 263.401(b)
requires a court to make [extraordinary circumstances and best interest
findings] as a prerequisite to granting an extension. 25 And we note that
unless the trial court has started the trial by the automatic-one-year-
dismissal deadline, the penalty that applies under section 263.401(a) is
an automatic dismissal under section 263.401(a), absent an extension
under section 263.401(b). 26 We further note that in 2017, the Legislature
24See Tex. Fam. Code Ann. § 263.401(b).
25In the Interest of G.X.H., 627 S.W.3d 288, 298-299 (Tex. 2021).
26Tex. Fam. Code Ann. § 263.401(a), (b).
14
removed a waiver provision from chapter 263 that under the prior version
of Chapter 263 allowed the parties to waive the provisions of chapter
263.401, but it left in the provision that parties to suits under chapter
263 “may not extend the deadlines set by the court under this subchapter
by agreement or otherwise.” 27 Given these provisions and the fact the
parties cannot extend them by agreement or otherwise, which we
presume includes by waiver, we conclude the Legislature intended to
require trial courts to find extraordinary circumstances and best interest
(leaving for later in the opinion whether the findings must be stated in
an order or orally in a hearing or whether they may be implied) to retain
a suit filed to terminate a parent’s rights on the court’s docket. 28 Thus
sections 263.401(b) and 263.402, as currently written, apparently allow
a party to collaterally attack a judgment terminating a parent’s rights in
the rare case when the automatic-one-year-dismissal deadline has passed
and the trial court failed to state its extraordinary circumstances and
good cause findings on the record even though it granted a party’s request
27Compare Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 13, 2017
Tex. Gen. Laws 733, with the current version at Tex. Fam. Code Ann. §
263.402.
28Tex. Fam. Code. Ann. 263.401.
15
to extend the statutory deadline. 29 While a court might question the
wisdom of the policy behind creating a claim that a jurisdictional defect
exists that allows a collateral attack on the order of termination, our
responsibility is to decide whether the standard set by the Legislature
has been satisfied, it is not our prerogative to impose a policy of our own.30
Second, we must decide whether an oral ruling on a motion to
extend the section 263.401 dismissal deadline, if it is not memorialized
in a written order or noted in the docket sheet before the suit is
automatically dismissed, is effective to extend the automatic-one-year-
dismissal deadline? Mother and Father concede, as they must, that the
trial court orally granted Father’s motion. The transcript from the
November hearing shows that during the hearing the trial court said
when ruling on Father’s motion to extend the section 263.401 deadline:
“I’m going to go ahead and grant the extension.” That said, when granting
the extension, the trial court didn’t set a future trial date. The trial court
did announce when the suit would next be automatically dismissed
should a trial on the merits not occur by the date as extended based on
§ 263.401(b); § 263.402.
29Id.
30See Univ. of Tex. v. Garner, 595 S.W.3d 645, 651 (Tex. 2019) (per
curiam).
16
Father’s section 263.401 motion. 31 As to the future date of the trial, the
court explained:
I’m going to give the parents a jury trial if that is what they
want. I will give it to them as quickly as I can. Now,
unfortunately, I don’t know when that is going to be
[referencing COVID-19 restrictions then in place] on the jury
trial process[.]
So was the oral extension without more effective to extend the
automatic-one-year-dismissal deadline? In 2021, the Texas Supreme
Court gave the bar and trial courts guidance about what section 263.401
requires. In In the Interest of G.X.H., the Texas Supreme Court said a
“trial court’s failure to extend the automatic dismissal date before that
date passes—through a docket-sheet notation or otherwise—is
jurisdictional.”32 Looking first to the trial court’s docket sheet, we find no
docket entries that mention the November 2020 hearing. Yet the
appellate record includes a transcript of the November 2020 hearing, so
we know a hearing on Father’s motion occurred. So the question for
jurisdictional purposes in deciding if there is a ruling in the record is
whether it is apparent from the reporter’s record that the trial court’s oral
31Tex. Fam. Code Ann. § 263.401(b)(1).
32In the Interest of G.X.H., 627 S.W.3d at 301.
17
ruling granting Father’s motion to extend the section 263.401 deadline
complied with the or otherwise requirements of In the Interest of G.X.H.33
We begin by noting that nothing in section 263.401 requires that
trial courts sign written orders or note on their docket sheet how they
have ruled on a motion seeking to extend the automatic-one-year-
dismissal deadline. For purposes of jurisdiction, it is apparent from the
court reporter’s record of the November hearing that the trial court
granted Father’s motion to extend the automatic-one-year-dismissal. We
conclude that by orally announcing it was granting the motion during the
November hearing, the trial court complied with the or otherwise
requirement of section 263.401 as to ruling on Father’s motion as that
requirement is described in In the Interest of G.X.H. 34
Next, we turn to our third question: Does section 263.401 require
trial courts to state their findings orally or in timely-filed written orders,
or instead may the required statutory findings be implied when the trial
court grants a motion to extend the statutory deadline and no one asks
the trial court for written findings? Looking again to section 263.401,
33See In the Interest of D.S., 602 S.W.3d at 512; In the Interest of
G.X.H., 627 S.W.3d at 301; Tex. Fam. Code Ann. § 263.401(b).
34Id.
18
nothing in the statute requires the findings required by the statute to be
stated in in a written order. 35 We find nothing in section 263.401 where
the Legislature required trial courts to state their extraordinary
circumstances and good cause findings on the record by stating them in
the terms the Legislature used in section 263.401. 36
That said, we agree with Mother and Father that a court may not
make the findings required by section 263.401 for the first time after the
statutory deadline has passed. 37 Still, that conclusion doesn’t resolve
whether the required findings may be implied from the appellate record
we have here. 38
To support the claim that findings of fact may not be implied when
the appellate record includes a reporter’s record of the hearing conducted
on a motion to extend the section 263.401 statutory dismissal deadline,
the appellants rely on In the Interest of J.S., No. 05-21-00898-CV, 2022
35Tex. Fam. Code Ann. § 263.401.
36Id.
37Inthe Interest of G.X.H., 627 S.W.3d at 301; In the Interest J.R.T.,
No. 09-21-00361-CV, 2022 Tex. App. LEXIS 1781, at 9 (Tex. App.—
Beaumont Mar. 17, 2022, no pet. h.) (mem. op.); In the Interest of K.B.,
No. 09-19-00239-CV, 2019 Tex. App. LEXIS 10570, at *8 (Tex. App.—
Beaumont Dec. 5, 2019, no pet.) (mem. op.).
38Tex. Fam. Code Ann. § 263.401 (a), (b); § 263.402.
19
Tex. App. LEXIS 1491 (Tex. App.—Dallas Mar. 3, 2022, pet. denied).39
But J.S., in our opinion, is distinguishable on its facts. And even should
it stand for the proposition it is cited for—that the required statutory
findings under section 263.401 cannot be implied when there is a
reporter’s record of the hearing—opinions from our sister courts “are not
binding on this Court.”40
In J.S., the parties appeared in court the day the case was to be
tried, the same day that was the one-year-automatic-dismissal deadline
under section 263.401(b). 41 During the pretrial proceedings that day, the
Department asked the trial court “to find that it’s in the child’s best
interest to remain in the care of the Department and extend the case so
that it can be officially retained on the Court’s docket.” 42 From the
39After Father file his brief, he notified the court that the
Department filed a motion for rehearing in In the Interest of J.S., No. 05-
21-00898-CV, 2022 Tex. App. LEXIS 1491, *6 (Tex. App.—Dallas Mar. 3,
2022, pet. denied). On August 22, 2022, the Texas Supreme Court
requested a response from the respondent, which is due September 12.
https://search.txcourts.gov/Case.aspx?cn=22-0420&coa=cossup (last
checked September 7, 2022).
40Rhinoceros Ventures Grp., Inc. v. Transcanada Keystone Pipeline,
L.P., 388 S.W.3d 405, 409 (Tex. App.—Beaumont 2012, pet. denied).
41In the Interest of J.S., 2022 Tex. App. LEXIS, at *6; Tex. Fam.
Code Ann. § 263.401(b).
42In the Interest of J.S., 2022 Tex. App. LEXIS, at *7.
20
information in the opinion, it does not appear the Department filed a
written motion to extend the automatic-one-year dismissal deadline
before the trial. And when the Department asked the trial court to extend
the deadline, it does not appear the Department mentioned it was
seeking an extension under section 263.401. 43 Add to that, the
Department never asked the trial court to find that extraordinary
circumstances required the child to remain in the Department’s custody,
and during the hearing, nothing was discussed by the parties or the court
explaining why the trial court could not try the case that day. 44 When no
one objected to the Department’s request, the trial court found it was in
the child’s best interest to remain in its current placement and for the
Department to remain the child’s temporary managing conservator.45
Later, after the automatic-one-year-dismissal deadline passed, the trial
court signed a written order, which states extraordinary circumstances
and good cause required extending the statutory deadline. 46
43Id. at *6-7.
44See id. at *7 (emphasis added).
45Id.
46Id. at *8.
21
Based on a rather perfunctory record, the J.S. Court reasoned the
record failed to show the trial court made the necessary extraordinary
circumstances and good cause findings to extend the automatic-dismissal
deadline. 47 In its analysis, the J.S. court noted that unlike the record In
in the Interest of G.X.H., the appellate record before them included a
reporter’s record but that their record didn’t support a finding of
extraordinary circumstances. 48 As a result, the J.S. Court held the trial
court lost jurisdiction over the case when it was automatically dismissed,
so it vacated the trial court’s judgment and dismissed the trial court’s
order terminating the mother’s relationship with her child. 49
The record before us contains more than was in the appellate record
before the J.S. Court, including a written motion containing allegations
of extraordinary circumstances and good cause. As to extraordinary
circumstances, Father’s motion states “[t]he current COVID-19 pandemic
certainly seems to fit the definition of extraordinary circumstances given
that the public is called to maintain social distancing and avoid crowded
public areas and events in order to prevent community transmission of
47Id. at *11.
48Id. at *6 (citing In the Interest of G.X.H., 627 S.W.3d at 301).
49Id. at *11-12.
22
this highly communicable disease.” The motion then describes the
problems created by the COVID-19 pandemic in Father’s ability to obtain
the services he was ordered to complete to comply with his family service
plan. As to best interest, Father’s motion states his children’s best interest
would be served by retaining the case on the docket so that his family
“may be reunified or so that a relative placement may be secured.” On
this record, we conclude that since the parties did not ask the trial court
for written findings, the findings may be implied if the record before the
appellate court supports the ruling the trial court made. 50
So, we reach the fourth and last question: Have the appellants met
their burden on the appellate record to show that the record the trial
court had before it when it made its ruling is insufficient to support the
trial court’s implied findings of extraordinary circumstances and good
cause?51 In the absence of written findings, we must presume the trial
court agreed with the extraordinary circumstance allegations in Father’s
50In the Interest of G.X.H., 627 S.W.3d at 299 (citing Shields Ltd.
P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)); see also Tex. R.
Civ. P. 299 (Omitted Findings).
51See In the interest of G.X.H., 627 S.W.3d at 300 (noting that since
the mother and father were the parties who were challenging the trial
court’s ruling, they bore the burden of proof in the appeal).
23
motion, because they were uncontested and the trial court granted the
motion. We assume the trial court was aware of the condition of its docket
and knew how covid-related conditions, which existed at that time, were
restricting the court’s ability to meet Mother’s and Father’s demand for
a trial by jury by the December 2020 automatic-dismissal deadline unless
the trial court granted Father’s motion seeking a section 263.401
extension. 52 We also presume the trial court found good cause based on
the allegations in Father’s motion, allegations that were uncontested
when the trial court granted the motion. And we assume the trial court
was aware and had knowledge from the permanency hearings it had
conducted before November 2020 that Father had made progress on
completing his service plan but had encountered difficulty in completing
some of the services his plan required for the reasons he asserted in his
motion. 53 Simply put, on this record we must imply the trial court found
52Id. at 299; Bradberry, 526 S.W.3d at 480; Marchand, 83 S.W.3d at
795; see also Tex. R. Civ. P. 299 (Omitted Findings).
53See Tex. Fam. Code Ann. § 263.303 (requiring the Department to
file a permanency progress report that provides the court with the
information necessary for the court to conduct a permanency hearing and
makes its findings and determinations under section 263.306); Tex. Fam.
Code Ann. § 263.306(a-1) (requiring a court presiding over a permanency
hearing to review the temporary orders, service plans, and permanency
24
extraordinary circumstances and good cause required extending the
automatic-one-year dismissal deadline under section 263.401. 54
Even though we have held section 263.401 didn’t require the trial
court to reduce its findings on Father’s motion into written form or to
state its findings orally in the hearing, we add that we agree with the
Texas Supreme Court’s observation that “section 263.401(b) findings
[should be made] in a written order as a matter of course.”55 Of course,
the trial court did not do that here, leading to an appeal that might have
been avoided and arguably creating an avenue that would have allowed
someone to attempt to collaterally attack the trial court’s order even after
it became final. But when trial courts don’t provide parties with written
findings, the omitted findings are presumed when the findings are
supported by the record. 56 They are supported here. 57
progress report); In the Interest of S.J.S., No. 04-12-00067-CV, 2012 Tex.
App. LEXIS 5090, at *6 (Tex. App.—San Antonio June 27, 2012, pet.
denied) (mem. op.) (stating that courts may presume a trial court
presiding over a parental termination case took judicial notice of family
service plans in the record without a request being made and without an
announcement that it had done so).
54In the Interest of G.X.H., 627 S.W.3d at 299.
55Id.
56Tex. R. Civ. P. 299; In the Interest of G.X.H., 627 S.W.3d at 299;
Marchand, 83 S.W.3d at 795.
57Tex. Fam. Code Ann. § 263.401.
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Conclusion
We overrule the sole issue Mother and Father raise in their
respective briefs. We hold the trial court’s order terminating Mother’s
and Father’s parent-child relationship with F.S., M.S., and A.S. is not
void for lack of jurisdiction as the appellants have claimed. For the
reasons explained above, the trial court’s judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted August 18, 2022
Opinion Delivered September 22, 2022
Before Kreger, Horton and Johnson, JJ.
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