In the Interest of J.J.S., Jr., K.W. and R.G., Children v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00204-CV

IN THE INTEREST OF J.J.S., JR., K.W., AND R.G., CHILDREN

From the County Court at Law
Hill County, Texas
Trial Court No. CV194-22CCL

MEMORANDUM OPINION

J.J., the mother of J.J.S., Jr., K.W., and R.G., appeals from a judgment that

terminated her parental rights to her children. See TEX. FAM. CODE § 161.001. Mother

complains that the judgment was void because the trial court lost jurisdiction after the

initial dismissal date for two reasons: first, because the parties agreed to the extension in

violation of Section 263.402, and second, because the trial court did not make the required

findings required by Section 263.401(b) of the Family Code. Alternatively, Mother

complains that the trial court abused its discretion by not giving her the full six months

of the extension to attempt to complete her service plan. Because we find no reversible
error, we affirm the judgment of the trial court.1

IMPROPER EXTENSION OF THE DISMISSAL DATE

In her first issue, Mother complains that the trial court erred by granting an

extension of the case because the extension was based on the agreement of the parties in

contravention of Section 263.402 of the Family Code and because the trial court did not

make a finding that extraordinary circumstances necessitated the extension and that it

was in the best interest of the child for the extension to be granted. The Department

argues that Mother did not raise either complaint to the trial court at the time the

extension was granted and thus the complaints have been forfeited.

The initial dismissal date of this proceeding was May 8, 2023. At the first

scheduled trial on May 4, 2023, the Department, the parents' attorneys, and the children's

attorney ad litem expressed an agreement to extend the trial court's jurisdiction to

conduct mediation because they believed that an agreement could be reached. The

children's guardian ad litem did not agree with the extension. The trial court announced

on the record that the final hearing was reset to June 15, 2023 so that the parties could

attempt to resolve the proceeding in mediation, that the dismissal date was reset to

October 30, 2023, and that otherwise the status quo would continue. The docket sheet

reflects these dates as well. No other findings were made on the record or on the trial

1 Mother does not challenge the sufficiency of the evidence to support the judgment, therefore, we will not
address the evidence presented at trial in support of the judgment as it is not necessary for the disposition
of this appeal. See TEX. R. APP. P. 47.1.
In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 2
court's docket sheet entry. Mother agreed to the extension and did not object to the reset

date on the record at that hearing.

The trial court conducted the final hearing on June 15, 2023. No written objection

or motion for continuance of the June 15, 2023 date was filed and Mother's trial counsel

announced ready to proceed at the beginning of the trial. At the conclusion of the trial,

the trial court granted the Department's request to terminate Mother's parental rights and

the parental rights of the fathers of the children. 2

FAMILY CODE § 263.402

Section 263.402 of the Family Code states that "[t]he parties to a suit under this

chapter may not extend the deadlines set by the court under this subchapter by

agreement or otherwise." TEX. FAM. CODE § 263.402. Mother argues that the

announcement of an agreement by the Department and her trial counsel to extend the

deadline rendered the final judgment void. A judgment is void when it is apparent that

the court rendering judgment lacked jurisdiction over the parties or subject matter, had

no jurisdiction to enter the particular judgment, or had no capacity to act. In re D.S., 602

S.W.3d 504, 512 (Tex. 2020).

The docket sheet entries were made by the trial court, and the trial court orally

extended the deadlines on the record, both of which reflect the court's decision to extend

the relevant dates. We conclude the trial court, not the parties, extended the relevant

2 None of the fathers appealed the judgment of the trial court.
In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 3
deadlines, and the Department and the parents agreed with the decision to extend the

deadlines. See In the Interest of P.Z.F., 651 S.W.3d 147, 152 (Tex. App.—Dallas 2021, pet.

denied).

FAMILY CODE § 263.401

Mother also complains that the trial court's judgment is void because the trial court

failed to make findings 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." TEX. FAM. CODE § 263.401(b). Mother argues that the suit could not be

maintained in the absence of those findings, which are mandatory.

The Supreme Court of Texas recently addressed jurisdiction as it relates to the

findings required for the trial court to grant an extension pursuant to Section 263.401. See

In re J.S., 670 S.W.3d 591 (Tex. 2023). The Court determined that the findings are

mandatory and the failure to make the findings is erroneous, but the failure to expressly

make the findings does not deprive the trial court of jurisdiction. See In re J.S., 670 S.W.3d

at 604. The Court ultimately held that the failure of the trial court to make the express

findings, although erroneous, is subject to the traditional rules of procedural default, i.e.,

an objection must be made to the trial court in order to preserve error for purposes of

appeal. See In re J.S., 670 S.W.3d at 605. As such, the failure to object to the lack of the

mandatory findings cannot be raised for the first time on appeal. See id. Mother did not

In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 4
object to the lack of findings to the trial court and therefore, her complaint has not been

preserved. See TEX. R. APP. P. 33.1(a). We overrule issue one.

CONTINUANCE

In her second issue, Mother argues that if the extension was valid, the trial court

erred by conducting the final hearing a month after the initial dismissal date, rather than

giving her the full six months of the extension to attempt to complete her service plan.

At the time the extension was made on May 4, 2023, the trial court reset the trial for June

15, 2023, even though the case was extended until October 30, 2023. Mother agreed with

the Department's assertion that the extension was for the parties to attempt to resolve the

case through mediation and did not object to the trial court setting the final hearing on

the June date. Moreover, she did not file a motion for continuance of the final hearing

prior to its commencement and announced "ready" at the start of the trial in June. During

the questioning of the caseworker and Mother, there was testimony that Mother would

like additional time to complete her service plan and in her argument her counsel

requested that additional time be given to Mother to complete her service plan.

Whether the trial court grants or denies a motion for continuance is within its

sound discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002);

In the Interest of J.P.-L., 592 S.W.3d 559, 575 (Tex. App.—Fort Worth 2019, pet. denied)

(mem. op.). A trial court abuses its discretion if it acts without reference to any guiding

rules or principles. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).

In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 5
A trial court generally does not abuse its discretion when it denies an oral motion

for continuance. See TEX. R. CIV. P. 251 (stating that no continuance shall be granted

"except for sufficient cause supported by affidavit, or by consent of the parties, or by

operation of law"); In re J.P.-L., 592 S.W.3d at 575. When a movant fails to comply with

those requirements, "we presume the trial court did not abuse its discretion in denying

the motion." In re K.-A.B.M., 551 S.W.3d 275, 283 (Tex. App.—El Paso 2018, no pet.).

There was no written request for a continuance, and we will therefore presume

that the trial court did not abuse its discretion by not continuing the proceedings based

on Mother's testimony and the argument of her trial counsel. Mother does not cite to any

authority, nor do we agree with the proposition that an extension of time granted in a

proceeding would require the trial court to give a party that full amount of time prior to

a trial court being able to proceed to a final judgment in a termination proceeding. The

trial court did not abuse its discretion in not giving Mother additional time to work on

her service plan in this proceeding. We overrule issue two.

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY
Chief Justice

In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 6
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 30, 2023
[CV06]

In the Interest of J.J.S., Jr., K.W. & R.G., Children Page 7