IN THE

TENTH COURT OF APPEALS

No. 10-22-00210-CV

IN THE INTEREST OF

T.W., J.W. AND L.W., CHILDREN

From the 82nd District Court

Falls County, Texas

Trial Court No. 40508

MEMORANDUM OPINION

The mother (Mother) of T.W., J.W., and L.W. and the father (Father) of J.W. and 

L.W. appeal the trial court’s judgment awarding joint managing conservatorship of 

L.W. to the foster parents (the Intervenors) who intervened.1 Mother and Father do not 

appeal the trial court’s judgment as it relates to T.W. and J.W. We will affirm.

Background

T.W. and J.W. were removed by the Department of Family and Protective 

Services (the Department) due to Mother’s and Father’s drug use and neglect. Mother 

and Father were storing drugs and drug paraphernalia in the room they shared with the 

1 The father of T.W. is not a party to this appeal.
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children. T.W. and J.W. were placed with the Intervenors. While the case was pending, 

Mother gave birth to L.W., who was also removed by the Department and placed with 

the Intervenors. 

The Department initially focused on terminating the rights of Mother and Father, 

but subsequently sought family reunification. After a bench trial, the Department was 

dismissed, and the Intervenors were granted joint managing conservatorship of all 

three children. Mother and Father were named joint possessory conservators and 

limited to an eight-hour, unsupervised visitation with the children once a month. 

Mother and Father then filed the present appeal.2

Issues

Mother and Father present the following issues:

1) The trial court erred in finding that Intervenors had standing as to L.W.

2) The trial court did not have jurisdiction to render a final order.

Issue One

Mother and Father argue that the trial court erred in determining that the 

Intervenors had standing because the Intervenors did not have possession of L.W. for 

twelve months prior to filing their original petition.

2 All parties agree, and the trial court found, that the parents did not receive notice from the district clerk

of the trial court’s final order within twenty days after it was signed, that the post-judgment period began 

to run on April 18, 2022, and that the request for findings of fact and conclusions of law was timely filed. 

We therefore construe the parties’ joint notice of appeal as timely filed.

 Additionally, we suspend operation of the submission deadlines of Rule 39.8. See TEX. R. JUD. ADMIN.

6.2, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app.; TEX. R. APP. P. 2 and 39.8.
In the Interest of T.W., J.W., and L.W., Children Page 3

AUTHORITY

We review the issue of standing de novo. In re H.S., 550 S.W.3d 151, 155 (Tex. 

2018). We construe the pleadings in favor of the petitioner and consider relevant 

evidence offered by the parties. Id. If a party fails to establish standing, the trial court 

must dismiss the suit. Id. (citing In re C.M.C., 192 S.W.3d 866, 870 (Tex. App.—

Texarkana 2006, no pet.)).

Standing to bring a suit affecting the parent-child relationship is governed by the 

family code. See In re Keith, 549 S.W.3d 747, 751 (Tex. App.—Waco 2017, orig. 

proceeding) (citing TEX. FAM. CODE ANN. §§ 102.003-.007; and In re H.G., 267 S.W.3d 120, 

124 (Tex. App.—San Antonio 2008, pet. denied)). 

Texas Family Code section 102.003 provides, in pertinent part:

(a) An original suit may be filed at any time by:

(12) a person who is the foster parent of a child placed by the 

Department of Family and Protective Services in the person's home 

for at least 12 months ending not more than 90 days preceding the 

date of the filing of the petition;

(b) In computing the time necessary for standing under Subsections (a)(9), 

(11), and (12), the court may not require that the time be continuous and 

uninterrupted but shall consider the child's principal residence during the

relevant time preceding the date of commencement of the suit.

(c) Notwithstanding the time requirements of Subsection (a)(12), a person 

who is the foster parent of a child may file a suit to adopt a child for 

whom the person is providing foster care at any time after the person has 

been approved to adopt the child. The standing to file suit under this

subsection applies only to the adoption of a child who is eligible to be 

adopted.

Section 102.004 additionally provides:
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(b) An original suit requesting possessory conservatorship may not be 

filed by a grandparent or other person. However, the court may grant a 

grandparent or other person, subject to the requirements of Subsection (b1) if applicable, deemed by the court to have had substantial past contact

with the child leave to intervene in a pending suit filed by a person 

authorized to do so under this chapter if there is satisfactory proof to the

court that appointment of a parent as a sole managing conservator or both 

parents as joint managing conservators would significantly impair the 

child's physical health or emotional development.

(b-1) A foster parent may only be granted leave to intervene under 

Subsection (b) if the foster parent would have standing to file an original 

suit as provided by Section 102.003(a)(12).

Rule 44.1 of the Rules of Appellate Procedure provides:

(a) Standard for Reversible Error. No judgment may be reversed on 

appeal on the ground that the trial court made an error of law unless the 

court of appeals concludes that the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the 

case to the court of appeals.

TEX. R. APP. P. 44.1.

DISCUSSION

The Department’s original petition as to L.W. was filed on February 10, 2020, 

four days after L.W.’s birth. The trial court consolidated L.W.’s case with that of T.W. 

and J.W. on February 26, 2020, and a temporary order regarding L.W. was signed the 

same day. The Department was appointed temporary managing conservator for L.W., 

and L.W. was placed with the Intervenors, who already had custody of T.W. and J.W.

The Intervenors filed their original petition for intervention as to all three 

children on May 21, 2020. The petition referenced sections 102.003(a)(12) and 102.003(b)
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as the basis for standing. Father filed a motion to strike the petition in intervention on 

May 28, 2020. Mother joined in the motion at a hearing on July 14, 2020. The trial court 

denied the motion on the same day.

The trial court delayed proceedings in the case in an order signed September 2, 

2020 pursuant to the Supreme Court’s Twenty-Second Emergency Order Regarding the 

COVID-19 State of Disaster. The trial court extended the dismissal date from 

November 13, 2020 to February 2, 2021. Mother filed a motion for continuance on 

December 3, 2020 based on the Supreme Court’s Twenty-Ninth Emergency Order and 

the rise in COVID-19 cases.

The Intervenors filed an amended petition in intervention on December 7, 2020, 

approximately ten months after L.W.’s birth. The amended petition referenced sections

102.003(a)(12) and 102.003(b) as the basis for standing.

The trial court signed another order retaining the suit on the court’s docket 

pursuant to the Supreme Court’s Twenty-Ninth Emergency Order and set the new 

dismissal date for May 10, 2021.

The Intervenors filed a second amended petition in intervention on March 20, 

2021, approximately thirteen months after L.W.’s birth. The second amended petition 

in intervention again referenced sections 102.003(a)(12) and 102.003(b) as the basis for 

standing.

On April 1, 2021, the Department advised the trial court that its primary 

permanency goal had changed to family reunification. On the same day, the trial court 
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granted the Intervenors’ oral motion for a continuance and extended the dismissal date 

to September 1, 2021. 

On April 13, 2021, the trial court signed another order retaining the suit on the 

court’s docket pursuant to the Supreme Court’s Thirty-Sixth Emergency Order and 

reaffirmed the new dismissal date as September 1, 2021.

On July 22, 2021, the trial court signed another order retaining the suit on the 

court’s docket pursuant to the Supreme Court’s Thirty-Eighth Emergency Order and set 

the new dismissal date for October 13, 2021. The case proceeded to a bench trial on 

October 13, 2021. At that point, L.W. had been in the custody of the Intervenors for at 

least eighteen months.

We find that the Intervenors had standing as a result of the second amended 

petition for intervention. L.W. had been in the Intervenors’ custody “for at least 

[twelve] months ending not more than [ninety] days” prior to the filing of the second 

amended petition in intervention. Even if it was error for the trial court to allow 

intervention based upon the original or first amended petition, it did not cause the 

rendition of an improper judgment as the Intervenors had standing to request 

intervention in the case of T.W. and J.W., and the cases of all the children were 

consolidated. TEX. R. APP. P. 44.1(a). Additionally, the evidence supporting the trial 

court’s judgment was the same as to all three children.

We overrule the first issues raised by Mother and Father.
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Issue Two

Mother and Father argue that the Texas Supreme Court did not have the 

authority to extend the dismissal deadline of section 263.401, and, thus, the trial court

lacked jurisdiction to enter an order of termination. Specifically, Mother and Father 

argue that the Supreme Court’s emergency orders violate the separation of powers

doctrine of the Texas Constitution.3 Mother and Father do not otherwise question the 

validity of the extensions of the deadlines.

AUTHORITY

We review the constitutionality of a statute de novo, beginning with the 

presumption that the statute is constitutional. See TEX. GOV’T CODE ANN. § 311.021(1); 

see also Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011).

Rule 33.1 of the Rules of Appellate Procedure Provides:

(a) In General. As a prerequisite to presenting a complaint for appellate 

review, the record must show that:

(1) the complaint was made to the trial court by a timely request, 

objection, or motion that:

(A) stated the grounds for the ruling that the complaining 

party sought from the trial court with sufficient specificity to 

make the trial court aware of the complaint, unless the 

specific grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of 

Evidence or the Texas Rules of Civil or Appellate Procedure; 

and

3 Mother and Father also make reference to the United States Constitution. To the extent this is a 

separate ground for their second issues, we determine it is not adequately briefed. See TEX. R. APP. P.

38.1.
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(2) the trial court:

(A) ruled on the request, objection, or motion, either 

expressly or implicitly; or

(B) refused to rule on the request, objection, or motion, and 

the complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a).

DISCUSSION

The record does not reflect that either Mother or Father made an objection in the 

trial court regarding the alleged violation of separation of powers due to the Supreme 

Court’s emergency orders regarding the COVID-19 pandemic. Additionally, as noted, 

Mother’s motion for continuance used the Supreme Court’s Twenty-Ninth Emergency 

Order and the rise in COVID-19 cases as the basis for relief.

Even constitutional complaints can be waived absent a timely objection. See

Zorrilla v. Aypco Construction II, LLC, 469 S.W.3d 143, 155 n.10 (Tex. 2015) (complaint on 

appeal must comport with complaint presented to trial court including complaints of 

constitutional violations); see also In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003); In re 

S.A.S., 200 S.W.3d 823, 826 (Tex. App.—Beaumont 2006, pet. denied).

We overrule Mother’s and Father’s second issues as they were not preserved for 

appellate review. TEX. R. APP. P. 33.1.

Conclusion

Having overruled the issues raised by Mother and Father, we affirm the 

judgment of the trial court.
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We deny as moot the Request for Rule 34.5(d) Instruction filed by Mother and 

Father on September 12, 2002 as a supplemental record was filed by the district clerk.

MATT JOHNSON

Justice

Before Chief Justice Gray,

Justice Johnson, and

Justice Smith

Affirmed; motion denied

Opinion delivered and filed November 2, 2022

[CV06]