Edward M. Toliver v. Daina Leigh Norton, et al. — Opinion by Justice Pratt

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-25-00257-CV
EDWARD M. TOLIVER, APPELLANT
V.
DAINA LEIGH NORTON, ET AL., APPELLEES
No. 07-25-00258-CV
IN THE INTEREST OF D.J.L., A CHILD
On Appeal from the 287th District Court
Parmer County, Texas
Trial Court Nos. 11992 and 11993, Honorable Kathryn H. Gurley, Presiding
October 22, 2026
OPINION
Before PARKER, C.J., and DOSS and PRATT, JJ.
Appellant, Edward M. Tolliver, has filed two appeals with this Court. In his first
case, he appeals the denial of his bill of review in a termination and adoption proceeding
by which Appellees Daina Leigh Norton and Harold Dean Norton became the adoptive

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parents of D.J.L. (Child).1 Appellant contends the trial court erred by denying his bill of
review and raises the following issues: (1) the trial court lacked subject matter jurisdiction
under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)2; (2) the
trial court lacked subject matter jurisdiction as Appellant was not properly cited in the
underlying termination and adoption proceeding; and (3) the trial court erred by finding
Appellant lacked standing. In his second case, Appellant appeals the trial court’s
dismissal of his Petition to Modify the Parent-Child Relationship for lack of standing. We
vacate the trial court’s judgment and render judgment dismissing Appellant’s petition for
bill of review and declaratory judgment for want of jurisdiction in Cause No. 07-25-00257-
CV. We also affirm the trial court’s judgment with respect to Cause No. 07-25-00258-CV.
BACKGROUND
This appeal arises at the intersection of several statutory schemes in family law.
The UCCJEA allocates jurisdiction among the States, so only one court at a time governs
a child’s custody. However, the UCCJEA “does not govern an adoption proceeding.”
TEX. FAM. CODE § 152.103. Chapters 161 and 162 of the Texas Family Code, in turn,
permit a termination suit to be joined with an adoption and bar any “collateral or direct
attack” on the resulting orders after six months. §§ 162.001(b)(1), 161.211, 162.012(a).
Read together, these provisions could mean that a Texas court may terminate parental
rights and grant an adoption affecting a child who is already the subject of another State’s
custody order without the jurisdictional inquiry the UCCJEA would otherwise require. Any
1 For the protection of the child, we have referred only to his initials, otherwise we refer to him as
Child. TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b).
2 TEX. FAM. CODE §§ 152.001–152.317.

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later challenge to the court’s authority to do so, including a claim that the judgment is void
or voidable, may be cut off by the passage of time. The record here illustrates the
consequence.
On June 3, 2016, the Ninth Judicial District Court of Roosevelt, County, New
Mexico entered an Order Appointing Kinship Guardian, and appointed Appellee Daina
Norton, Child’s paternal grandmother, as kinship guardian of Child. Appellant, Child’s
paternal grandfather, was not a party to that proceeding.3 The New Mexico trial court
found he “was not provided any rights, responsibilities or duties” under the order.
At some time in 2018, Appellees moved to Parmer County, Texas, just across the
border from New Mexico. Over the next five years, Appellees allowed Appellant to
interact with Child, including taking care of Child at Appellant’s mother’s home and
attending Child’s baseball games. Following an argument between Appellant and
Appellees at a baseball game, on September 19, 2023, Appellees filed a petition to
terminate Child’s parents’ rights and adopt Child. The trial court held a hearing on
Appellees’ petition and rendered an order granting the request for termination and
adoption on September 14, 2023.4 The order recites that no other court had continuing,
exclusive jurisdiction.
In February 2024, the record reveals Appellant filed a motion, as intervenor, in the
New Mexico case. The motion sought the revocation of the appointment of Daina Norton
3 Daina Norton and Edward M. Toliver were previously married.
4 In its order, the trial court stated that Child’s father was personally served and defaulted and that
Child’s mother was served by publication and appeared through an attorney ad litem. Appellant was not
served with notice of the suit.

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as kinship guardian and the appointment of Appellant as guardian in her stead. When
Appellees’ attorney was served with this motion, he contacted Appellant, informing him
for the first time of the termination and adoption proceedings in Texas. The New Mexico
trial court then entered an ex parte order on June 24, 2024, appointing Appellant as the
new kinship guardian of Child.5
On August 21, 2024, about eleven months after the original Texas order, Appellant
filed a petition for a bill of review and declaratory judgment in Parmer County, seeking a
new trial in the termination and adoption proceeding. Appellant also filed a corresponding
suit affecting the parent-child relationship (SAPCR) requesting a “50/50” shared custody
of Child with Appellees. However, on September 5, 2024, the New Mexico trial court
dissolved its ex parte order and dismissed Appellant’s action pursuant to a motion filed
by Appellees, finding it no longer had exclusive continuing jurisdiction over the matter due
to the termination and adoption order entered in Texas.
Appellees filed a general denial in response to both Appellant’s petition for bill of
review and SAPCR cases on October 3, 2024. The trial court held a hearing on both
issues on June 17, 2025, in which Appellees argued to the trial court Appellant lacked
standing to bring his bill of review and his SAPCR. On August 12, 2025, the trial court
agreed with Appellees and rendered an order in each case dismissing Appellant’s bill of
review and SAPCR for lack of standing. Appellant filed a separate notice of appeal for
both the bill of review and the SAPCR, and we consider both in this opinion.
5 The order was apparently amended on August 8, 2024, to correct some typographical errors.

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ANALYSIS
Appellant’s arguments center around his contention the trial court did not have
authority to entertain Appellees’ termination and adoption proceeding. Appellant
contends that the Texas court never acquired subject matter jurisdiction because the
UCCJEA required it to refer the termination matter back to the court which made the initial
child-custody determination and that he received no notice of the Texas proceedings.
TEX. FAM. CODE §§ 152.201, 152.203. For the first time on appeal, Appellees have argued
Appellant’s bill of review is “time barred” under Texas Family Code Sections 161.211 and
161.012. Appellees claim Appellant had six months from the date of the termination and
adoption order to file his challenge. Because the cited statutes implicate the subject
matter jurisdiction of the trial court, we must begin with a jurisdictional analysis under
these statutes.
Generally, a bill of review is an equitable remedy used to collaterally attack a
judgment that is no longer subject to appeal or a motion for a new trial. Katy Venture,
Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015); Valdez v. Hollenbeck,
465 S.W.3d 217, 220–21 (Tex. 2015). Typically, a bill of review must be filed within the
residual four-year statute of limitations. TEX. CIV. PRAC. & REM. CODE § 16.051; Caldwell
v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). However, in family law matters, especially
parental termination proceedings, the finality of judgments is “uniquely important” to avoid
putting children’s lives in limbo while “judicial processes crawl forward.” See In re D.S.,
602 S.W.3d 504, 512–13 (Tex. 2020). In response, the Legislature has enacted Texas
Family Code Sections 161.211 and 162.012. These statutes limit the permissible grounds

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for a collateral attack and outline procedures to advance such challenges, resulting in
both finality and promptness in challenges to terminations and adoptions. See Id. at 516–
18.
Texas Family Code Section 161.211 provides:
Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an
order terminating the parental rights of a person who has been personally
served or who has executed an affidavit of relinquishment of parental rights
or an affidavit of waiver of interest in a child or whose rights have been
terminated under Section 161.002(b) is not subject to collateral or direct
attack after the sixth month after the date the order was signed.
TEX. FAM. CODE § 161.211(a). Similar language applies to orders of adoption in Section
162.012. See § 162.012(a). Both contain a specific time limitation, taking precedence
over the general four-year limitation. Thus, a collateral attack challenging a termination
or adoption order filed more than six months after the order was signed is untimely.
Several courts of appeals have held that Section 161.211(a) is a jurisdictional bar.
See e.g., Von Falkenhorst v. Ford, No. 01-20-00864-CV, 2022 LEXIS 4915, at *7–8 (Tex.
App.—Houston [1st Dist.] July 19, 2022, no pet.); see also C.M.C. v. Tex. Dep’t of Family
& Protective Servs., 696 S.W.3d 185, 189–90 (Tex. App.—Houston [1st Dist.] 2024, pet.
denied); In re E.R., 335 S.W.3d 816, 821 (Tex. App.—Dallas 2011), rev’d on other
grounds, 385 S.W.3d 552 (Tex. 2012); see also L.J. v. Dep’t of Fam. and Protective
Servs., 355 S.W.3d 898, 901 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (dismissing
restricted appeal for lack of jurisdiction because it was brought six months and thirteen
days after final order was signed); see also In re A.P., No. 11-14-0278-CV, 2014 Tex.
App. LEXIS 12759, at *2 (Tex. App.—Eastland Nov. 26, 2014, no pet.) (mem. op.) (stating

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Section 161.211(a) is not a statute of limitations but a bar to or preclusion of a challenge
to a termination order); In re C.O.G., No. 13-12-00577-CV, 2013 Tex. App. LEXIS 14928,
at *4–13 (Tex. App.—Corpus Christi—Edinburg, Dec. 12, 2013, no pet.) (mem. op.)
(upholding grant of plea to jurisdiction based on untimeliness under Section 161.211(a)).6
While a statute of limitations or a statute of repose affirmative defense can be waived,
subject matter jurisdiction cannot. In re J.F., Nos. 07-22-00058-CV, 07-22-00064-CV,
2022 Tex. App. LEXIS 5836, at *5 (Tex. App.—Amarillo Aug. 11, 2022, no pet.). It can
be raised for the first time on appeal. In a case transferred from the Second Court of
Appeals, we have previously ruled the time bar in Section 161.211 is jurisdictional and,
therefore, deprives the trial court of the ability to review a challenge—direct or collateral—
to a judgment of termination more than six months after the judgment has been rendered.
In re M.E., No. 07-16-00039-CV, 2018 Tex. App. LEXIS 195, at *6–7 (Tex. App.—Amarillo
Jan. 8, 2018, no pet.). We now apply this same rubric to this case from our district.
Here, Appellant filed his petition for a bill of review outside the prescribed six-month
window for a collateral attack on the termination and adoption order. The only allowances
made by the Texas Supreme Court for failing to file a challenge within the statutorily
prescribed window are for constitutional defects related to notice of the suit for
6 We acknowledge currently there is a split in authority on this subject. Some of our sister courts
have viewed these statutory periods as a statute of limitations and have required defendants to plead it as
an affirmative defense. See In re Bullock, 146 S.W.3d 783, 790–91 (Tex. App.—Beaumont 2004, no pet.);
In re S.A.B., No. 04-01-00795-CV, 2002 Tex. App. LEXIS 6728, at *2–3 (Tex. App.—San Antonio Sept. 18,
2002, pet. denied). The Fourteenth Court of Appeals once considered Section 161.211 to be an affirmative
defense, but more recently, it has treated the section as a jurisdictional bar. Compare In re M.Y.W., No.
14-06-00185-CV, 2006 Tex. App. LEXIS 10060, at *10–11 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied) (mem. op.) (Section 161.211 is an affirmative defense), with In re P.W., 579 S.W.3d 713, 724 (Tex.
App.—Houston [14th Dist.] 2019, no pet.) (citing Section 161.211(a) and stating that once the six-month
period expires, a party may not challenge prior termination findings in the future if the Department seeks to
terminate parental rights as to another child based on the prior finding). The Texas Supreme Court has yet
to resolve this disagreement in authority.

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termination. In re E.R., 385 S.W.3d 552, 566–67 (Tex. 2012) (Section 161.211 did not
preclude parent from attacking termination more than six months after signing of judgment
when there was a complete failure of service); see also In re J.D.H., 738 S.W.3d 522,
526–28 (Tex. 2026) (holding a parent who fails to timely appeal a judgment terminating
parental rights because of ineffective assistance of counsel related to filing of notice of
appeal may pursue an out-of-time appeal). On this record, Child’s biological mother and
biological father were properly notified of the termination proceeding before the Texas
trial court.
Appellant contends he was not served with notice of the underlying termination
and adoption suit, and therefore, his petition for bill of review was not statutorily barred.
He urges his caretaking of his grandson and his previous involvement with his grandson’s
activities necessarily required Appellees to serve him with notice of the suit. However,
the Texas Family Code has specifically delineated which parties must be given notice of
a child-custody proceeding. See TEX. FAM. CODE § 102.009(a). Appellant, although
Child’s paternal biological grandfather, does not fit the description of any category of
person listed in the statute. The New Mexico guardianship order did not give him any
legal right to access and possession. Even accepting his testimony he cared for and had
regular possession of Child, Appellant is not a “person having possession of or access to
[Child] under an order[.]” Id. at (a)(3). In fact, the order from the New Mexico district court
appointed only Daina Norton as kinship guardian, not Appellant. The order also stated
Appellant and the biological parents “shall have physical and telephonic visitation with the
minor child at the discretion of [Daina Norton] [emphasis added].” Thus, even under the
then-existing child-custody order, Norton could legally restrict Appellant’s access to Child.

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Appellant does not point to any other legal authority in this State which would have
required Appellees to serve him with notice of the termination and adoption suit. See
§ 152.205(a) (before a child-custody determination, notice “must be given to all persons
entitled to notice under the law of this state.”). Therefore, we do not find Appellant was a
person entitled to service of notice of the suit under the UCCJEA, and he could not attack
the judgment outside the six-month jurisdictional time bar period. Accordingly, the trial
court lacked jurisdiction to consider his petition for bill of review filed 11 months after the
termination and adoption order was rendered. We hold Appellant’s petition for a bill of
review should be dismissed for want of jurisdiction.
Because the trial court lacked jurisdiction to consider the bill of review, all of
Appellant’s remaining issues from his appeal in Cause No. 07-25-00257-CV are rendered
moot, and we do not address them. TEX. R. APP. P. 47.1.
We also must evaluate Appellant’s arguments in Cause No. 07-25-00258-CV, a
separate lawsuit filed subsequently to the bill of review and not a collateral or direct attack
on the trial court’s judgment for termination or adoption. As Appellant lacked standing to
bring a suit under the Family Code after the termination of the biological parents’ rights,
we must necessarily affirm the judgment of the trial court dismissing Appellant’s
companion suit to modify. See TEX. FAM. CODE § 153.434; § 102.006 (biological
grandparent may not sue for possession or access of grandchild if both biological parents’
parental rights have been terminated or the child has been adopted); see Martinez v.
Estrada, 392 S.W.3d 261, 264 (Tex. App.—San Antonio 2012, pet. denied) (paternal
grandparent lost standing to sue for custody after biological parents’ rights were

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terminated); cf. In re B.W.A., No. 03-25-00931-CV, 2026 Tex. App. LEXIS 3011, at *10
(Tex. App.—Austin Apr. 1, 2026, no pet.) (grandparents lacked standing to bring SAPCR
after biological father passed away and mother’s rights were terminated after adoption by
unrelated adoptive parents).
We write further to note the concern that this case exposes. Whether a person
with a legitimate relationship to a child, or a court that has already exercised continuing
jurisdiction over the child, receives any notice of a Texas termination and adoption
depends entirely on who the petitioner chooses to cite. Where, as here, the petitioner is
herself the person to whom the other State’s order gave custody, nothing in the statutory
scheme ensures that the Texas court is told of that order or that its existence is tested
against the UCCJEA’s requirements. And once six months passes, the Legislature’s
strong interest in finality forecloses review even of a claim that the judgment was entered
without jurisdiction. That interest in finality is a weighty and legitimate one. But the
absence of any mechanism for notice to affected persons or for jurisdictional scrutiny at
the front end raises concerns of due process that only the Legislature is positioned to
address. The cost of these gaps falls primarily on the child, whose stability is the very
thing finality is meant to protect, but also on the family relationships that may be severed
without any court having examined whether it had the power to do so. Our decision today
is compelled by the law as it stands.

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CONCLUSION
We vacate the trial court’s judgment and render judgment dismissing Appellant’s
petition for bill of review and declaratory judgment for want of jurisdiction in Cause No.
07-25-00257-CV, styled Toliver v. Norton, et al.
We also affirm the trial court’s judgment with respect to Appellant’s lawsuit to
modify the parent-child relationship in Cause No. 07-25-00258-CV, styled In the Interest
of D.J.L., a Child.
Laura A. W. Pratt
Justice