In the Interest of K.L.B., a Child

Supreme Court of Texas
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No. 26-0077
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In the Interest of K.L.B., a Child

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On Petition for Review from the
Court of Appeals for the Seventh District of Texas
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JUSTICE SULLIVAN, joined by Justice Young, concurring in the
denial of the petition for review.

I concur in today’s decision to deny review because Mother isn’t
entitled to relief from the trial court’s judgment terminating her parental
rights. Given that this case involves the civil death penalty, however,
one issue deserves a few extra words. In re D.T., 625 S.W.3d 62, 69 (Tex.
2021). Mother argues that the trial court should’ve granted her a
180-day extension of the automatic-dismissal date so she could complete
her service plan. See Tex. Fam. Code § 263.401. Although the court of
appeals was right to find no error in that decision, it was wrong to rely
on cases decided under an old version of the extension statute.

I
Section 263.401 of the Family Code imposes a one-year deadline
for commencing trial in a parental-termination suit, at which point the
suit is automatically dismissed and the trial court loses subject-matter
jurisdiction. Tex. Fam. Code § 263.401(a). A trial court can extend the
dismissal date by 180 days if it finds both that “extraordinary
circumstances necessitate the child remaining in” substitute care, and
that it’s “in the best interest of the child” to stay there. Id. § 263.401(b).
Courts of appeals long held that “when a parent, through his or
her own choices, fails to comply with a service plan and then at the time
of the termination trial requests a continuance or an extension of the
statutory dismissal deadline in order to complete the plan, the trial court
does not abuse its discretion by denying the continuance or extension.”
In re K.P., No. 02-09-00028-CV, 2009 WL 2462564, at *4 (Tex. App.—Fort
Worth Aug. 13, 2009, no pet.); see also, e.g., In re D.R., 631 S.W.3d 826, 837
(Tex. App.—Texarkana 2021, no pet.); In re A.S., No. 12-16-00104-CV,
2016 WL 5827941, at *2 (Tex. App.—Tyler Sep. 30, 2016, no pet.); In re
B.M., No. 13-17-00467-CV, 2017 WL 5953098, at *10 (Tex. App.—Corpus
Christi–Edinburg Nov. 30, 2017, pet. denied). Thus, lower courts used to
say that “[a]ctions that are considered to be the parent’s fault will
generally not constitute an extraordinary circumstance.” In re A.B.,
No. 07-19-00180-CV, 2019 WL 5199299, at *4 (Tex. App.—Amarillo Oct.
15, 2019, no pet.) (internal quotation marks omitted).
But that approach has been largely overtaken by events in the
Legislature, which we presume is aware of relevant judicial decisions.
Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 748 (Tex. 2012). In
2019, the Legislature added Subsection (b-2) to Section 263.401, which
requires that if a service plan includes a substance-abuse treatment
program, then the trial court “shall consider whether the parent made a
good faith effort to successfully complete the program” in determining

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whether to make an extraordinary-circumstances finding. Act of May
22, 2019, 86th Leg., R.S., ch. 783, § 1, 2019 Tex. Gen. Laws 2228, 2228.
So, at least in substance-abuse cases, the analysis must now focus on
whether the parent made a good-faith effort to complete the program,
rather than on his relative responsibility for not doing so. This is a
subtle yet important change of focus.
In 2021, the Legislature went a step further by making the
extraordinary-circumstances finding mandatory for certain cases. Act of
April 28, 2021, 87th Leg., R.S., ch. 8, § 9, 2021 Tex. Gen. Laws 10, 15.
Under the new Subsection (b-3), a trial court must make such a finding if
(1) the parent made a good-faith effort to complete the service plan and
(2) DFPS’s permanency goal is reunification. Tex. Fam. Code
§ 263.401(b-3); see also id. § 263.3026(a). This good-faith-effort provision
applies in all parental-termination cases, not just in the substance-abuse
cases that Subsection (b-2) covers.
The Legislature also did away with the oft-abused Paragraph (O),
pursuant to which strict compliance with a court-ordered service plan
used to be necessary to avoid termination of a parent–child relationship.
See Tex. Fam. Code § 161.001(b)(1)(O) (2023), repealed by Act of May 14,
2025, 89th Leg., R.S., ch. 211, § 2, 2025 Tex. Gen. Laws 573, 573–76. In
2017, the Legislature made a parent’s good-faith effort to comply with a
service plan an affirmative defense to termination on that basis. Act of
May 26, 2017, 87th Leg., R.S., ch. 317, § 12, 2017 Tex. Gen. Laws 612, 616
(codified at Tex. Fam. Code § 161.001(d)). And in 2025, the Legislature
repealed the old Paragraph (O) altogether. Act of May 14, 2025, 89th
Leg., R.S., ch. 211, § 2, 2025 Tex. Gen. Laws 573, 573–76.

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The bottom line is that making the extraordinary-circumstances
finding is no longer a purely discretionary decision, and opinions that
held otherwise are no longer good law.

II
Here, the court of appeals saw no abuse of discretion in the trial
court’s decision to deny Mother an extension because a “parent’s
voluntary failure to complete a service plan generally does not constitute
extraordinary circumstances.” No. 07-25-00195-CV, 2025 WL 3701025,
at *3–4 (Tex. App.—Amarillo Dec. 19, 2025) (citing In re D.R., 631 S.W.3d
at 837). That reasoning leaves something to be desired.
For starters, the court of appeals skipped the question whether an
extraordinary-circumstances finding was mandatory or discretionary.
Relying on an old precedent, the court simply assumed that the finding
was discretionary. Now it happens that Mother wasn’t entitled to the
mandatory extension, but that’s because DFPS’s permanency goal was
adoption rather than reunification. See Tex. Fam. Code § 263.401(b-3)(2).
The court of appeals also focused on the wrong thing, analyzing
whether Mother’s failure to complete her service plan was “voluntary.”
In a substance-abuse case like this one, the court instead had to
“consider” whether Mother made a good-faith effort to complete her
substance-abuse program. Id. § 263.401(b-2). On these facts, she probably
didn’t. Mother “waited approximately ten months after removal” before
she started working services. 2025 WL 3701025, at *4. And even after
she did start, she only sporadically participated in drug treatment and
faced potential “discharge for non-compliance.” Id.

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To be clear, this doesn’t mean that any delay or interruption in
working services negates good faith. There are good reasons a parent
might not complete a service plan by the initial dismissal date. Parents
often face waitlists to get into the programs that their service plans
require, as occurred in another case decided today. In re H.S., ___
S.W.3d ___ (Tex. June 5, 2026). Some parents have difficulty attending
the programs while also fulfilling their separate obligation to maintain
stable housing and employment. And parents struggling with addiction
face the added hurdle that recovery from substance abuse isn’t a linear
process. But what the court must consider for extraordinary-
circumstances purposes is whether the parent has been making good-
faith efforts toward completing the services—not whether her failure to
do so was voluntary. See Tex. Fam. Code § 263.401(b-2).
Several other courts of appeals have also relied on old precedents
that were abrogated by the 2021 statutory change. See In re L.W.R.L.,
No. 09-24-00256-CV, 2025 WL 242937, at *12 (Tex. App.—Beaumont Jan.
16, 2025, pet. denied) (citing In re A.S., 2016 WL 5827941, at *2); In re K.T.,
No. 02-24-00352-CV, 2024 WL 4898796, at *2 (Tex. App.—Fort Worth Nov.
27, 2024, pet. denied) (citing In re I.B., No. 02-21-00358-CV, 2022 WL
1257133, at *3 (Tex. App.—Fort Worth Apr. 28, 2022, no pet.)); In re C.J.B.,
No. 10-24-00002-CV, 2024 WL 2206169, at *3–4 (Tex. App.—Waco May 16,
2024, no pet.) (citing In re K.P., 2009 WL 2462564, at *11–12). But the
law’s the law. The 2021 change didn’t end up making a difference here,
but it will in other cases.

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* * *
Though the court of appeals reached the right decision here, I
hope that, in the future, lower courts will take care not to rely on judicial
opinions that’ve been abrogated by statute.

James P. Sullivan
Justice

OPINION FILED: June 5, 2026

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