                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-13-00203-CV

                     IN THE INTEREST OF C.L.B., A CHILD



                        From the County Court at Law No 2
                              Johnson County, Texas
                           Trial Court No. D201100274


                           MEMORANDUM OPINION


       Asserting twenty-five issues, Appellant K.L. appeals the trial court’s termination

of her parental rights to her son C.L.B. after a jury trial. We will affirm.

       Background:     C.L.B. was born in Indiana in July 2010 and lived there with

Appellant, his mother, and Harry, his now-deceased father. On September 18, 2011,

when C.L.B. was approximately fifteen months old, Appellant and Harry signed a

written authorization for Elizabeth and Bradley Borys to take temporary care of C.L.B.

from September 18 to November 25, 2011 in Texas, where the Boryses resided.

Elizabeth is Harry’s adult daughter and C.L.B.’s half-sister.        The Boryses had two

children at that time and were expecting their third child.           Elizabeth has known
Appellant for several years and testified that Appellant also has a nine-year old

daughter who has been living with Appellant’s father in Indiana.

        Elizabeth first met C.L.B. in Indiana when he was just about a month old. At that

time, Elizabeth was concerned about C.L.B.’s well-being because Appellant, Harry, and

C.L.B. were living in a dirty and cluttered residence, Harry was drinking (Elizabeth

described him as a “heavy alcoholic”), and Appellant was not taking her medication for

mental illness. Elizabeth was aware that Appellant and Harry had lived in four or five

different residences with C.L.B. in Greencastle, Indiana.      She saw C.L.B. again in

Indiana around Christmas when he was about six months old. Elizabeth said that she

was again concerned about C.L.B. because he had severe diaper rash, and her husband

took Harry to the store to get medication for it.

        Elizabeth did not contact Indiana CPS with her concerns about C.L.B. because

she understood that he already had a caseworker. According to Elizabeth, Indiana CPS

had been involved with C.L.B. since his birth because of Appellant’s mental-health

history, and there was an agreement that C.L.B. would not be left alone in Appellant’s

care. Elizabeth was aware that Indiana CPS had removed C.L.B. on two occasions, each

for a week or less. Her understanding for C.L.B.’s removal was that Appellant had been

found by the police in an incoherent state, and upon going to their residence, Harry was

“deemed unfit” at the time.

        The last place where C.L.B. lived with Appellant and Harry was in Donaldson,

Indiana, in a house that the Boryses owned, and C.L.B. was there for less than a week.

Elizabeth testified that in September of 2011, Harry had contacted her and said that they


In the Interest of C.L.B., a Child                                                 Page 2
were homeless with C.L.B. and needed help. The Boryses decided to allow Appellant

and Harry to stay in their Donaldson house and rented them a U-Haul vehicle so they

could get their belongings out of storage and take them from Greencastle to Donaldson.

The Boryses had asked Appellant and Harry to pay them $200 a month to cover the

utilities.

         When Harry, Appellant, and C.L.B. arrived at the Boryses’ Donaldson house,

Elizabeth learned that Harry was intoxicated at that time, so the Boryses decided to go

to Indiana. They also contacted CPS in Marshall County, Indiana, the county that

Donaldson is located in. When the Boryses arrived in Donaldson, they found Harry to

be drinking and Appellant to be incoherent at times. At that time, on September 18,

Appellant and Harry signed the written authorization for the Boryses to temporarily

care for C.L.B. until November 25. The Boryses agreed to care for C.L.B. because Harry

was drinking and Appellant was not taking her medication. Elizabeth said that the

purpose for their temporarily caring for C.L.B. in Texas was to give Appellant and

Harry “the opportunity to get on their feet and get going in a better direction so that

they would be able to care for [C.L.B.] on their own.” According to Elizabeth, because

Appellant and Harry were in agreement with the Boryses taking C.L.B., Indiana CPS in

Marshall County closed the case.

         The Boryses returned to Texas with C.L.B. and cared for him in their home in

Texas.       While she cared for C.L.B., Elizabeth had several concerns:   C.L.B. would

become scared if they left the room; he had trouble sleeping at night; he did not like

physical contact; and he was malnourished and slightly lethargic.


In the Interest of C.L.B., a Child                                                Page 3
        Appellant and Harry stayed at the Boryses’ Donaldson house until November 1.

The Boryses asked Appellant and Harry to vacate the Boryses’ house at that time

because Harry had not gotten a job and Appellant was not getting treatment for her

mental illness, and those were the Boryses’ conditions for Appellant and Harry to live

in their house.         When the Boryses returned to Indiana with C.L.B. the week of

Thanksgiving, Appellant and Harry had vacated the house, but they had left behind,

among other items, a large number of empty liquor bottles, a lot of pornographic DVDs

and magazines, important personal papers, and Appellant’s medication.

        The Boryses were returning C.L.B. that week in accordance with the written

authorization and their agreement with Appellant and Harry. Upon getting to Indiana,

the Boryses contacted Harry by telephone on Thanksgiving—he had a pre-paid cell

phone, and he could only be reached if he put minutes on the phone. Harry would not

tell Elizabeth where he and Appellant were, nor would he let Elizabeth talk to

Appellant; he told Elizabeth that they were “heading south.”

        Because Appellant and Harry had not gotten in a better situation and were not to

be found to return C.L.B. to them, the Boryses contacted the Marshall County CPS

caseworker for advice on what to do with C.L.B. Elizabeth said that they were advised

that, because Appellant and Harry had left Marshall County and had abandoned C.L.B.

into the Boryses’ care, the Boryses should return to Texas with C.L.B. and contact CPS

in Texas.

        The Boryses thus returned to Texas with C.L.B., and Elizabeth contacted Harry

and told him that she was going to turn C.L.B. over to Texas CPS if Harry and


In the Interest of C.L.B., a Child                                                Page 4
Appellant would not agree to relinquish their parental rights. Harry refused to do that

and again refused to let Elizabeth talk to Appellant. Harry asked Elizabeth to agree to

keep C.L.B. until Harry became able to come to Texas and get him, but the Boryses

refused because there was no indication that Appellant and Harry’s circumstances

would change and because the situation had become too stressful for the Boryses.

         On the Monday after Thanksgiving, Elizabeth contacted Texas CPS about

C.L.B.’s situation. Holli Hutto was the Department investigator assigned to Elizabeth’s

referral. Hutto contacted Harry by phone after visiting with Elizabeth, and he told her

that he did not have a place to live. Although Hutto understood that Appellant was

with Harry, she was not able to speak to Appellant. Because the Boryses were no

longer able to care for C.L.B. and because Appellant and Harry were not able to come to

Texas to get him, the Department removed C.L.B. and filed suit for conservatorship on

November 29, 2011.

        During her two-week involvement with the case, Hutto was never able to speak

to Appellant. Hutto learned from Appellant’s grandparents that Appellant was in a

psychiatric hospital. Hutto faxed some case documentation to a social worker at the

psychiatric hospital, but she does not know if Appellant received it.

        Lisa Peebles was the first Department caseworker and worked on C.L.B.’s case

for seven months. She prepared a service plan for Appellant and Harry and eventually

located them in the end of January 2012. Throughout her time on the case, Peebles had

trouble locating and contacting Appellant and Harry because they were “very

transient” and Appellant was often in various psychiatric hospitals. Peebles spoke with


In the Interest of C.L.B., a Child                                                 Page 5
Harry twice and, on the first call, explained the service plan to him.

        Peebles spoke with Appellant only one time; on that occasion, Appellant was in

an Indiana psychiatric hospital and was not coherent. Peebles attempted to discuss

C.L.B. and the service plan with Appellant, but Peebles did not believe that Appellant

was able to understand and thus did not provide any details. Peebles gave a nurse her

contact information so that it could be given to Appellant, but Appellant never

contacted Peebles. Peebles mailed the service plan by certified mail to Appellant’s

grandparents in Florida, and it was received there, but Peebles did not know if

Appellant ever received it. Peebles said that because of Appellant’s transient status and

the inability to maintain contact with Appellant, she was never able to set up services

for Appellant.

        Peebles also investigated Appellant’s relatives for possible placement of C.L.B.,

but Appellant’s father was unable to care for C.L.B. and Appellant’s grandparents were

in their upper 80s and could not care for a toddler. During Peebles’s work on the case,

Appellant and Harry never contacted or visited C.L.B.

        Peebles got transferred to a new position, so Blanca Garza became the next

caseworker. In August of 2012, while attempting to contact Appellant, Garza learned

that Appellant had been in a mental-health facility in Columbus, Georgia but was

discharged on August 17. In October, Garza learned that Harry had drowned on

September 4 in the Chattahoochee River in Columbus. Elizabeth said that, at that time,

Harry and Appellant were living on the banks of that river, and Garza said that the

police report on Harry’s drowning stated that they were living in a tent on the banks of


In the Interest of C.L.B., a Child                                                 Page 6
the river.

         Garza was first able to speak with Appellant in December of 2012 when

Appellant was staying with her grandparents. Garza said that the phone call was very

short because when she discussed that C.L.B. was in Texas, Appellant did not

understand why C.L.B. was in Texas, became very upset and handed the phone to her

father, and would not talk further with Garza. Thereafter, Appellant never contacted

Garza.

         Garza spoke with Appellant on April 15, 2013. At that time, Appellant was

living in a group home, which Garza said would not be a safe environment for C.L.B.

Garza was able to obtain some background information from Appellant about herself

and Harry, but Appellant ended the call before Garza was finished because she “needed

to heat up some noodles.”

         Garza called Appellant two weeks before trial to obtain important information

about C.L.B., but Appellant quickly ended the call without providing any information

because she “wanted to catch some sun.” Elizabeth also said that Appellant was living

in a group home and that she had spoken to her a few times recently. Appellant

appeared more coherent to Elizabeth and they discussed Harry, but C.L.B. was not

discussed until Elizabeth brought him up. From their discussion, Elizabeth understood

that Appellant knew C.L.B. was in Texas.

         Appellant did not appear at trial. Before trial began, the trial court telephoned

Appellant in Indiana on the record and told her that the trial was going to proceed.

Appellant stated that she “was not able to make it” but still wanted a jury trial. Her


In the Interest of C.L.B., a Child                                                  Page 7
appointed counsel was present and represented her in the trial.

        Jurisdiction. Appellant’s first issue is that the trial court abused its discretion in

finding that it had personal jurisdiction over her. A little over five months after the case

was filed, the trial court appointed counsel for Appellant on May 9, 2012. Appellant

was served by substituted service in Indiana on October 29, 2012, but the return was not

properly executed. Appellant filed a plea to the jurisdiction on December 21, 2012.

Citation was reissued, and Appellant was personally served in Indiana on January 14,

2013. In her plea to the jurisdiction, Appellant asserted that the trial court did not have

subject-matter jurisdiction because the trial court lacked personal jurisdiction over her.

The trial court denied the plea to the jurisdiction.

        The Department asserts that the trial court had personal jurisdiction over

Appellant because she failed to file a special appearance.         A parent’s challenge to

personal jurisdiction is properly raised in a special appearance under Rule 120a. In re

S.A.V., 837 S.W.2d 80, 85 (Tex. 1992); TEX. R. CIV. P. 120a; see, e.g., In re N.M.G., No. 07-

12-00522-CV, 2013 WL 2642885 (Tex. App.—Amarillo June 10, 2013, no pet.) (mem. op.);

In re Marriage of Roman, No. 10-06-00023-CV, 2007 WL 1378493 (Tex. App.—Waco May

9, 2007, no pet.) (mem. op.). A special appearance must be made by sworn motion. TEX.

R. CIV. P. 120a(1). Strict compliance with Rule 120a is required, and a trial court does

not err in denying an unsworn special appearance. Siemens AG v. Houston Cas. Co., 127

S.W.3d 436, (Tex. App.—Dallas 2004, pet. dism’d). Because Appellant’s plea to the




In the Interest of C.L.B., a Child                                                      Page 8
jurisdiction was unsworn, the trial court did not err in denying it.1                         Issue one is

overruled.

        Appellant’s second, third, and fourth issues assert that the trial court abused its

discretion in finding that it had personal jurisdiction over C.L.B., in finding that Texas

was C.L.B.’s home state at the time the case was filed, and in exercising more than

temporary emergency jurisdiction over C.L.B.                    Appellant argues that, under the

Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA, chapter 152 of

the Family Code), Indiana was C.L.B.’s home state and that, other than exercising

temporary emergency jurisdiction over C.L.B. because he was present in Texas, the trial

court lacked subject-matter jurisdiction and its termination order is thus void.

        Construction of the UCCJEA’s “home state” provision is a question of law that

we review de novo. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005); see also In re Dean,

393 S.W.3d 741 (Tex. 2013). And whether a trial court has subject-matter jurisdiction

1
  The Department further asserts that because the trial court had status (in rem) jurisdiction over C.L.B.’s
custody determination, personal jurisdiction over Appellant was not necessary. See S.A.V., 837 S.W.2d at
84; N.M.G., 2013 WL 2642885, at *1 (“personal jurisdiction over the parent whose interest is being
terminated is unnecessary”). Also, the Department notes that the Family Code authorizes the exercise of
personal jurisdiction over a nonresident if the child resides in Texas “as a result of the acts or directives”
of the nonresident, TEX. FAM. CODE ANN. § 102.011(b)(3) (West Supp. 2013), and that, if the Family Code’s
requirements are satisfied,

        the state’s interest in determining custody has been demonstrated. That is, the state has
        acquired a sovereign’s interest in and responsibility for the child’s welfare. In such a
        situation, the state’s interest in the child’s welfare outweighs the nonresident parent’s
        interest in avoiding the burden and inconvenience of defending the suit in Texas.
        Therefore, due process does not require that a connection exist between the nonresident
        parent and this state. In adjudications of custody, once these jurisdictional provisions
        have been satisfied, the court can properly exercise jurisdiction over the nonresident.
        Satisfaction of these provisions confers “personal jurisdiction” over the nonresident as
        well as subject matter jurisdiction over the case.

S.A.V., 837 S.W.2d at 84; see also In re M.G.M., 163 S.W.3d 191, 197 (Tex. App.—Beaumont 2005, no pet.)
(“’States have a parens patriae duty to children within their borders… ‘”).


In the Interest of C.L.B., a Child                                                                     Page 9
under the UCCJEA to terminate parental rights is a question of law. See In re F.M.-T,

No. 02-13-00230-CV, 2013 WL 5517915, at *2 (Tex. App.—Fort Worth Oct. 3, 2013, no

pet.) (mem. op.); In re J.C.B., 209 S.W.3d 821, 822 (Tex. App.—Amarillo 2006, no pet.).

        In denying Appellant’s plea to the jurisdiction, the trial court made findings of

fact and concluded that Texas was the home state of C.L.B. None of the jurisdictional

facts in this case are in dispute. The trial court found that C.L.B. was born in Indiana

and that he was brought to Texas by the Boryses. It is not in dispute that the Boryses

brought C.L.B. to Texas at the request and with the authorization of Appellant and

Harry and that two months later, after being unable to locate Appellant and Harry in

Indiana to return C.L.B. to them, the Boryses returned to Texas with C.L.B. with at least

Harry’s knowledge (Elizabeth testified that when they returned to Texas with C.L.B.,

Harry would not let her talk to Appellant). The trial court also found that Appellant

and Harry had not been to Texas before or after the case was filed, and it is undisputed

that they were living in Indiana when the case was filed.

        Subsection 152.201(a) sets forth the instances in which a Texas court has

jurisdiction to make an initial child custody determination. “In short, if the child has a

home state, if it is one other than Texas, and if the courts of that state have not declined

to exercise their jurisdiction, then the courts of Texas lack jurisdiction over the child.”2

J.C.B., 209 S.W.3d at 823; see TEX. FAM. CODE ANN. § 152.201(a) (West 2008). But section

152.204 is an exception to subsection 152.201(a).                See id. § 152.201(a) (“Except as


2
 “Home state” is defined as the state in which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately before the commencement of a child custody proceeding.
TEX. FAM. CODE ANN. § 152.102(7) (West 2008).


In the Interest of C.L.B., a Child                                                                Page 10
otherwise provided in Section 152.204, a court of this state has jurisdiction to make an

initial child custody determination only if”); J.C.B., 209 S.W.3d at 823.

          Appellant concedes on appeal that the trial court had temporary emergency

jurisdiction over C.L.B. under section 152.204(a). See TEX. FAM. CODE ANN. § 152.204(a)

(West 2008) (Texas court has temporary emergency jurisdiction if child is present in

Texas and has been abandoned). It is also not in dispute that, when this case was filed

and while it was pending, there was no previous child-custody determination entitled

to be enforced in Indiana and no child custody proceeding had been commenced in

Indiana.3 See id. § 152.204(b). Thus, the Department correctly points out that subsection

152.204(b) applies, rather than subsection 152.204(c), which Appellant relies on.4 See

J.C.B., 209 S.W.3d at 823 & n.3.


3
  The trial court appeared to make such a finding of fact when it found: “At the time this case was filed
there were no court ordered relationships as concern the child, [C.L.B.].”
4
    Section 152.204 provides:

          (a) A court of this state has temporary emergency jurisdiction if the child is present in
          this state and the child has been abandoned or it is necessary in an emergency to protect
          the child because the child, or a sibling or parent of the child, is subjected to or
          threatened with mistreatment or abuse.

          (b) If there is no previous child custody determination that is entitled to be enforced
          under this chapter and a child custody proceeding has not been commenced in a court of
          a state having jurisdiction under Sections 152.201 through 152.203, a child custody
          determination made under this section remains in effect until an order is obtained from a
          court of a state having jurisdiction under Sections 152.201 through 152.203. If a child
          custody proceeding has not been or is not commenced in a court of a state having jurisdiction
          under Sections 152.201 through 152.203, a child custody determination made under this section
          becomes a final determination, if it so provides and this state becomes the home state of the child.

          (c) If there is a previous child custody determination that is entitled to be enforced under
          this chapter, or a child custody proceeding has been commenced in a court of a state
          having jurisdiction under Sections 152.201 through 152.203, any order issued by a court
          of this state under this section must specify in the order a period that the court considers
          adequate to allow the person seeking an order to obtain an order from the state having


In the Interest of C.L.B., a Child                                                                               Page 11
        At least two other courts have addressed this situation, with both noting that the

trial court had temporary emergency jurisdiction to enter temporary orders for

protection and conservatorship. See F.M.-T, 2013 WL 5517915, at *3; J.C.B., 209 S.W.3d

at 824. Thereafter, with no other child custody proceeding being commenced in another

state, those courts held that, after six months, Texas became the children’s home state

and the trial court then had subject-matter jurisdiction over the termination portion of

the Department’s petition. See F.M.-T, 2013 WL 5517915, at *3-4; J.C.B., 209 S.W.3d at

824 & n.4.

        Likewise, at the time of the hearing on Appellant’s plea to the jurisdiction, C.L.B.

had been in the Department’s conservatorship for over a year and had been living in

Texas with the Boryses and then in foster care for a total of sixteen months. At that time

and at the time of trial, C.L.B.’s home state was Texas. See F.M.-T, 2013 WL 5517915, at

*3; J.C.B., 209 S.W.3d at 824. Accordingly, the trial court had subject-matter jurisdiction

to proceed over the termination of Appellant’s parental rights. See F.M.-T, 2013 WL

5517915, at *3; J.C.B., 209 S.W.3d at 824. We thus overrule issues two, three and four.

        jurisdiction under Sections 152.201 through 152.203. The order issued in this state
        remains in effect until an order is obtained from the other state within the period
        specified or the period expires.

        (d) A court of this state which has been asked to make a child custody determination
        under this section, upon being informed that a child custody proceeding has been
        commenced in or a child custody determination has been made by a court of a state
        having jurisdiction under Sections 152.201 through 152.203, shall immediately
        communicate with the other court. A court of this state which is exercising jurisdiction
        pursuant to Sections 152.201 through 152.203, upon being informed that a child custody
        proceeding has been commenced in or a child custody determination has been made by a
        court of another state under a statute similar to this section shall immediately
        communicate with the court of that state to resolve the emergency, protect the safety of
        the parties and the child, and determine a period for the duration of the temporary order.

TEX. FAM. CODE ANN. § 152.204 (West 2008) (emphases added).


In the Interest of C.L.B., a Child                                                                   Page 12
        Extension: In issue five, Appellant makes multiple complaints about the trial

court’s grant of an extension of the dismissal date. See TEX. FAM. CODE ANN. § 263.401

(West 2008). The trial court’s September 4, 2012 permanency hearing order noted the

one-year dismissal date of December 3, 2012 and set the case for trial on that date. On

December 3, the parties appeared in court. Appellant’s attorney first advised the trial

court that Appellant was not present and that he had not been able to locate and contact

Appellant, and Harry’s attorney then advised the trial court of Harry’s recent death and

that he had filed a suggestion of death that day.

        Next, the Department’s attorney informed the trial court that C.L.B.’s attorney ad

litem had recently informed him that the officer’s return of service for the citation that

was served on Appellant by substituted service was not notarized and was thus

inadequate. Therefore, the Department requested a 180-day extension of the case so

that Appellant could be served again.

        Appellant’s attorney objected to the extension, and testimony was elicited from

Garza about the Department’s effort to contact Appellant’s grandparents and to serve

Appellant and about the difficulty in locating and serving Appellant because she was

homeless. Garza also testified that, because she did not know where Appellant was, it

would not be possible to return C.L.B. to her and that if she did, it would be contrary to

C.L.B.’s welfare and best interest and would necessitate a CPS case in another state for

C.L.B. Garza further said that C.L.B.’s current placement was meeting his needs.

        Appellant’s attorney then specifically objected to the extension on the ground

that the Department had been dilatory in serving Appellant and asked the trial court to


In the Interest of C.L.B., a Child                                                 Page 13
deny the requested extension. The trial court overruled the objection and made an oral

finding that the Department had used due diligence in attempting to serve Appellant.

The trial court also took judicial notice of the prior testimony and the pleadings

pertaining to the attempts to locate Appellant and noted that there was information that

Appellant was homeless and had been in Indiana, Georgia, and possibly Florida, which

made service on her “difficult.”         The trial court further made an oral finding that

C.L.B.’s current placement was in his best interest at the time. Finally, the trial court

orally found that there was “sufficient need” to extend the case for 180 days.

        On December 4, the trial court signed an order retaining the suit; the order found

that “extraordinary circumstances necessitate the child remaining” in the Department’s

temporary       managing        conservatorship   and   that   continuing   the   Department’s

appointment as temporary managing conservator was in the child’s best interest. The

December 4 order set a new dismissal date of May 31, 2013 and set the next permanency

hearing. The trial court’s April 16, 2013 order set the case for trial on May 17, but after

Appellant demanded a jury trial, the case was reset for trial on May 29, when trial

commenced.

        Section 263.401 provides in pertinent part:

               (a) Unless the court has commenced the trial on the merits or
        granted an extension under Subsection (b), on the first Monday after the
        first anniversary of the date the court rendered a temporary order
        appointing the department as temporary managing conservator, the court
        shall dismiss the suit affecting the parent-child relationship filed by the
        department that requests termination of the parent-child relationship or
        requests that the department be named conservator of the child.

                 (b) Unless the court has commenced the trial on the merits, the


In the Interest of C.L.B., a Child                                                      Page 14
        court may not retain the suit on the court's docket after the time described
        by Subsection (a) unless the court finds that extraordinary circumstances
        necessitate the child 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 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 time described by Subsection (a). If the court retains the suit on
        the court’s docket, the court shall render an order in which the court:
                (1) schedules the new date on which the suit will be 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 Subsection (a);
                (2) makes further temporary orders for the safety and welfare of the
                child as necessary to avoid further delay in resolving the suit; and
                (3) sets the trial on the merits on a date not later than the date
                specified under Subdivision (1).

TEX. FAM. CODE ANN. § 263.401(a, b).

        Appellant first argues that the trial court abused its discretion in extending the

dismissal date because the trial court did not find any extraordinary circumstances for

the extension or set them forth. We review a trial court’s ruling on an extension request

under section 263.401(b) for an abuse of discretion. In re D.M., 244 S.W.3d 397, 416 (Tex.

App.—Waco 2007, no pet.) (op. on reh’g).

        The trial court’s December 4, 2012 order found that extraordinary circumstances

existed. Section 263.401 does not require that the trial court make more explicit findings

or explain the extraordinary circumstances. In re T.R.F., No. 10-07-00086-CV, 2007 WL

2325818, at *1 (Tex. App.—Waco Aug. 17, 2007, no pet.) (mem. op.); see also In re J.G.K.,

No. 02-10-00188-CV, 2011 WL 2518800, at *35 (Tex. App.—Fort Worth June 23, 2011, no

pet.) (mem. op.).         Moreover, the trial court made an oral finding that there was

“sufficient need” to extend the case after noting that locating and serving Appellant had



In the Interest of C.L.B., a Child                                                     Page 15
been difficult for the Department because of her homelessness and transience. We

cannot say that the trial court abused its discretion.

        Next, Appellant complains that the trial court’s December 4 order was signed

after the December 3 dismissal date, “after it lost jurisdiction over Appellant and

C.L.B.” But the dismissal date in section 263.401 is procedural, not jurisdictional, and

the trial court did not lose jurisdiction. In re Dep’t of Fam. & Prot. Servs., 273 S.W.3d 637,

642 (Tex. 2009). Moreover, the statute does not require that the order be entered before

the expiration of one year, and in any event, at the December 3 hearing, the trial court

orally granted the extension. See J.G.K., 2011 WL 2518800, at *35 (section 263.401(b) does

not require written extension order and oral rendition is sufficient). Again, we cannot

say that the trial court abused its discretion. For all the above reasons, we overrule

issue five.

        Issue six asserts that the trial court denied Appellant her due-process rights

under the U.S. and Texas Constitutions by granting an extension of the dismissal date.

This complaint was not made in the trial court at the December 3 hearing, so it is not

preserved for appellate review and is thus overruled. TEX. R. APP. P. 33.1(a); see In re

M.A.-O.R., No. 02-11-00499-CV, 2013 WL 530952, at *3 n.10 (Tex. App.—Fort Worth Feb.

14, 2013, no pet.) (mem. op.) (“due process contentions in termination cases must be

preserved in the trial court to be raised on appeal”); Brewer v. Simental, 268 S.W.3d 763,

767 (Tex. App.—Waco 2008, no pet.) (“Constitutional violations must be raised in the

trial court for them to be preserved for appellate review.”).

        Issue nine complains that the trial court erred and abused its discretion in


In the Interest of C.L.B., a Child                                                     Page 16
denying Appellant’s motion to dismiss that was made during trial at the conclusion of

the evidence. The basis for the motion to dismiss was the Department’s alleged failure

to use diligence in serving Appellant.            Appellant’s counsel referred to his earlier

objection to the extension at the time of the extension hearing and argued that, based on

additional trial testimony, the case should be dismissed because of the Department’s

lack of diligence. The trial court denied the motion to dismiss.

        To the extent that the motion to dismiss was made under subchapter E of chapter

263, it was plainly untimely under subsection 263.402(b), which provides: “A party to a

suit under this chapter who fails to make a timely motion to dismiss the suit under this

subchapter waives the right to object to the court’s failure to dismiss the suit. A motion

to dismiss under this subsection is timely if the motion is made before the trial on the

merits commences.” TEX. FAM. CODE ANN. § 263.402(b) (West 2008). The trial court thus

did not abuse its discretion in denying the motion to dismiss.5 Issue nine is overruled.

        Service plan: In issues seven and eight, Appellant asserts that her due-process

rights under the U.S. and Texas Constitutions were denied because of the Department’s

failures to serve her with a copy of the family service plan and to discuss its

requirements with her.6 Because these complaints were either not timely made or made




5
 To the extent that Appellant’s motion to dismiss was not made under subchapter E of chapter 263,
Appellant cites no authority in support of her argument that a termination case is subject to dismissal
because of the Department’s alleged failure to use diligence in serving a parent.
6
 The Department did not seek termination on the ground that Appellant failed to comply with the court-
ordered service plan. See TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2013).


In the Interest of C.L.B., a Child                                                             Page 17
at all in the trial court, they are not preserved for appellate review and are overruled.7

TEX. R. APP. P. 33.1(a); see M.A.-O.R., 2013 WL 530952, at *3 n.10.

        Failure to Admonish: Issue ten complains that the trial court erred and abused

its discretion in failing to admonish Appellant of her rights and that her parental rights

were subject to limitation or termination. Because Appellant did not timely raise this

complaint in the trial court, it is not preserved for appellate review and is thus

overruled. TEX. R. APP. P. 33.1(a); see M.A.-O.R., 2013 WL 530952, at *3 n.10.

        Sufficiency of the Evidence: In issues eleven through twenty-two, Appellant

challenges the legal and factual sufficiency of the evidence to support the five grounds

for termination and the best-interest finding.

        In a proceeding to terminate the parent-child relationship brought under section

161.001, the Department must establish by clear and convincing evidence two elements:

(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,

termed a predicate violation; and (2) that termination is in the best interest of the child.

TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2013); Swate v. Swate, 72 S.W.3d 763,

766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements

are established by clear and convincing evidence, and proof of one element does not

relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d

367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. If multiple predicate violations under

section 161.001(1) were found in the trial court, we will affirm based on any one ground

7
 The complaint that the Department’s failure to serve Appellant with the service plan denied Appellant
due process was made for the first time in a postjudgment motion to modify, reform, or correct judgment,
which was thus not timely. No due-process complaint was made at all about the Department’s failure to
discuss the service plan’s requirements with Appellant.


In the Interest of C.L.B., a Child                                                              Page 18
because only one predicate violation under section 161.001(1) is necessary to a

termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet.

denied), overruled in part on other grounds by In re A.M., 385 S.W.3d 74, 79 (Tex. App.—

Waco 2012, pet. denied).

        The standards of review for legal and factual sufficiency in termination cases are

well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).         In reviewing the legal

sufficiency, we view all the evidence in the light most favorable to the finding to

determine whether a trier of fact could reasonably have formed a firm belief or

conviction about the truth of the Department’s allegations. In re J.L., 163 S.W.3d 79, 84-

85 (Tex. 2005); J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed

evidence that does not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the

factual sufficiency of the evidence, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing.           Id. We must

consider the disputed evidence and determine whether a reasonable factfinder could

have resolved that evidence in favor of the finding. Id. If the disputed evidence is so

significant that a factfinder could not reasonably have formed a firm belief or

conviction, the evidence is factually insufficient. Id.

        The trial court ordered termination of Appellant’s parental rights based on the

jury’s findings that Appellant: (1) voluntarily left the child alone or in the possession of

another not the parent without expressing an intent to return, without providing for the

adequate support of the child, and remained away for a period of at least three months


In the Interest of C.L.B., a Child                                                   Page 19
(TEX. FAM. CODE ANN. § 161.001(1)(B)); (2) voluntarily left the child alone or in the

possession of another without providing adequate support of the child and remained

away for a period of at least six months (id. § 161.001(1)(C)); (3) knowingly placed or

knowingly allowed the child to remain in conditions or surroundings that endanger the

physical or emotional well-being of the child (id. § 161.001(1)(D)); (4) engaged in

conduct or knowingly placed the child with persons who engaged in conduct that

endangered the child’s physical or emotional well-being (id. § 161.001(1)(E)); and (5)

constructively abandoned the child (id. § 161.001(1)(N)).     The jury also found that

termination was in C.L.B.’s best interest.

        In issues twelve and seventeen, Appellant argues, respectively, that the evidence

is legally and factually insufficient to support termination on the ground that Appellant

voluntarily left the child alone or in the possession of another without providing

adequate support of the child and remained away for a period of at least six months, as

provided for by subsection 161.001(1)(C).

        Appellant’s sufficiency complaint focuses solely on the element of adequate

support; she does not dispute that she voluntarily left C.L.B. in the possession of

another and remained away for a period of at least six months. Appellant argues that

the trial court did not order her to pay child support and that the Department never

requested support. But under subsection 161.001(1)(C), while the parent is not required

to “personally support” the child, an abandoning parent does not provide adequate

support if she does not “make arrangements” for the child’s adequate support. See In re

T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *5 (Tex. App.—Houston [1st Dist.] Dec.


In the Interest of C.L.B., a Child                                                Page 20
13, 2012, no pet.) (mem. op.) (citing Holick v. Smith, 685 S.W.2d 18, 21 (Tex. 1985)).

        Appellant also argues that she made arrangements for C.L.B.’s support by

entering into the agreement with the Boryses for them to care for C.L.B. The agreement,

however, was for only for two months, and thereafter, once Appellant was notified that

C.L.B. was in foster care, the caseworkers testified that Appellant did not make any

support payments and did not provide any diapers, food, or other necessities.

Appellant never made arrangements for C.L.B’s support; she never contacted the

Department or C.L.B. at all, much less to make arrangements for his support.

         Finally, Appellant asserts that there was no evidence that she had the means to

pay any support,8 but proving a parent’s ability to pay support is only required for

termination under subsection 161.001(1)(F), which was not a ground for termination in

this case. See TEX. FAM. CODE ANN. § 161.001(1)(F) (“failed to support the child in

accordance with the parent’s ability”); In re D.S.W., No. 10-10-00108-CV, 2010 WL

5419014, at *1 (Tex. App.—Waco Dec. 29, 2010, no pet.) (mem. op.).

        For these reasons, the evidence is legally and factually sufficient to support the

jury’s finding that Appellant failed to provide adequate support. We overrule issues

twelve and seventeen.            We thus need not address issues eleven, thirteen through

sixteen, and eighteen through twenty, which complain of the legal and factual

insufficiency of the evidence to support termination under the other four grounds.

        Issues twenty-one and twenty-two complain that the evidence is legally and


8
 Elizabeth testified that, in 2011, Appellant was receiving a monthly social security disability check in the
amount of $376.60 for her mental illness and a monthly SSI (supplemental security income) check for
C.L.B. in the amount of $87.


In the Interest of C.L.B., a Child                                                                   Page 21
factually insufficient to support the jury’s best-interest finding. In determining the best

interest of a child, a number of factors have been considered, including (1) the desires of

the child; (2) the emotional and physical needs of the child now and in the future; (3)

the emotional and physical danger to the child now and in the future; (4) the parental

abilities of the individuals seeking custody; (5) the programs available to assist these

individuals; (6) the plans for the child by these individuals; (7) the stability of the home;

(8) the acts or omissions of the parent that may indicate the existing parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of the

parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but simply indicates

factors that have been or could be pertinent. Id.

        The Holley factors focus on the best interest of the child, not the best interest of

the parent. Dupree v. Tex. Dep’t Prot. & Reg. Serv’s., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ). The goal of establishing a stable permanent home for a child is a

compelling state interest.           Id. at 87.   The need for permanence is a paramount

consideration for a child’s present and future physical and emotional needs. In re

S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (en banc).

        Evidence of past misconduct or neglect can be used to measure a parent’s future

conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet.

denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is

often prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5-6 (Tex.

App.—Corpus Christi 2007, no pet.) (mem. op.) (considering parent’s past history of

unstable housing, unstable employment, unstable relationships). Evidence of a parent’s


In the Interest of C.L.B., a Child                                                    Page 22
home and job instability can show a lack of parental abilities. Doe v. Brazoria Cty. Child

Prot. Servs., 226 S.W.3d 563, 574 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Evidence of a recent improvement does not absolve a parent of a history of

irresponsible choices. In re T.C., No. 10-10-00207-CV, 2010 WL 4983512, at *8 (Tex.

App.—Waco Dec. 1, 2010, pet. denied) (mem. op.); Smith v. Tex. Dep’t Prot. & Reg. Servs.,

160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.).

        C.L.B. was too young to express his desires. He has no health or educational

issues, and his needs are being met in his foster home, where he has been for over a

year (fifteen months as of the time of trial.         His foster parents want C.L.B. to

permanently remain with them, and the Department’s goal is for C.L.B.’s adoption by

the foster parents.          Elizabeth, Garza, and the CASA volunteer all testified that

termination of Appellant’s parental rights was in C.L.B.’s best interest.

        Elizabeth testified that Appellant’s older daughter was living with and being

raised by Appellant’s father. Because of Appellant’s mental illness, Indiana CPS had

monitored C.L.B. since his birth. C.L.B. had been removed from Appellant’s care by

Indiana CPS two times, and Elizabeth found C.L.B. to have severe and untreated diaper

rash on one occasion. When Elizabeth cared for C.L.B., she had several concerns about

him: he would become scared if they left the room; he had trouble sleeping at night; he

did not like physical contact; and he was malnourished and slightly lethargic.

        In addition to moving four or five times while she had C.L.B., Appellant was

subsequently homeless and transient for much of the time that this case was pending.

She was hospitalized several times for mental illness, and she had a history of not


In the Interest of C.L.B., a Child                                                 Page 23
taking her medication. At the time of trial, Appellant appeared to Elizabeth to be more

coherent, and she was living in a group home, which Garza said would not be a safe

environment for C.L.B. Appellant told Elizabeth that she did not have a bed in the

group home and that she slept on the floor.

        Considering all the evidence in relation to the Holley factors in the light most

favorable to the jury’s finding, we hold that a reasonable factfinder could have formed a

firm belief or conviction that termination was in the child’s best interest.           For

Appellant’s factual sufficiency complaint on best interest, after considering all of the

evidence, we hold that a reasonable factfinder could have formed a firm belief or

conviction that termination was in the child’s best interest. The evidence is legally and

factually sufficient to support the jury’s best-interest finding.     We overrule issues

twenty-one and twenty-two.

        Issue twenty-four asserts that the trial court erred in denying her motion for new

trial. In her motion for new trial, Appellant asserted that the evidence was legally and

factually insufficient on the predicate grounds for termination and on best interest.

Because we have found the evidence to be legally and factually sufficient on at least one

predicate ground for termination and on best interest, the trial court did not err in

denying the motion for new trial. We overrule issue twenty-four.

        Issue twenty-five asserts that the trial court erred in denying her motion for

directed verdict. We review a trial court’s ruling on a motion for directed verdict just as

we do a claim that the evidence is legally insufficient. C.B. v. Tex. Dept. of Fam. & Prot.

Servs., ___ S.W.3d ___, ___, 2013 WL 3064405, at *9 (Tex. App.—El Paso June 19, 2013, no


In the Interest of C.L.B., a Child                                                  Page 24
pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). Because we have

found the evidence to be legally sufficient on at least one predicate ground for

termination and on best interest, the trial court did not err in denying the motion for

directed verdict. We overrule issue twenty-five.

        Permanent Managing Conservator: Finally, in issue twenty-three, Appellant

asserts that the trial court abused its discretion in appointing the Department as C.L.B.’s

permanent managing conservator and in failing to appoint Appellant as permanent

managing conservator.

               In cases where a trial court’s termination of the parent-child
        relationship is reversed, a parent is required to independently challenge a
        trial court’s finding under section 153.131(a) to obtain reversal of the
        conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616-17 (Tex.
        2007); In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008,
        pet. denied). In this case, however, we have overruled appellant’s
        challenge to the termination, and the trial court’s appointment of the
        Department as sole managing conservator may be considered a
        “consequence of the termination pursuant to Family Code section
        161.207.” In re A.S., 261 S.W.3d at 92.            Section 161.207, entitled
        “Appointment of Managing Conservator on Termination,” provides: “If
        the court terminates the parent-child relationship with respect to both
        parents or to the only living parent, the court shall appoint a suitable,
        competent adult, the Department of Protective and Regulatory Services, a
        licensed child-placing agency, or an authorized agency as a managing
        conservator of the child.” TEX. FAMILY CODE ANN. § 161.207(a) (West
        2008). Appellant provides no authority for the proposition that she is a
        “suitable, competent adult” as contemplated by section 161.207(a) or that
        the presumption in section 153.131(a) applies to a parent whose parental
        rights have been terminated under Chapter 161. See In re A.W.B., No. 14-
        11-00926-CV, 2012 WL 1048640, at *7 ((Tex. App.—Houston [14th Dist.]
        Mar. 27, 2012, no pet.) (mem.op.). Rather, when a trial court terminates
        the parent-child relationship, the court also “divests the parent and the
        child of all legal rights and duties with respect to each other.” TEX. FAM.
        CODE ANN. § 161.206 (West 2008); A.W.B., 2012 WL 1048640, at *7.
        Accordingly, appellant’s challenge to the trial court’s appointment of the



In the Interest of C.L.B., a Child                                                     Page 25
        Department as sole managing conservator, rather than appellant, is
        without merit.

In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *12 (Tex. App.—Houston [14th

Dist.] Feb. 12, 2013, pet. denied) (mem op.).

        For the same reason, we hold that Appellant’s complaint that the trial court

abused its discretion in appointing the Department as sole managing conservator,

rather than Appellant, is without merit. Issue twenty-three is overruled.

        We affirm the trial court’s order of termination.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 20, 2014
[CV06]




In the Interest of C.L.B., a Child                                           Page 26
