Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-19-00571-CV

IN THE INTEREST OF J.J.R.S. and L.J.R.S., Children

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2018PA01865

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Patricia O. Alvarez, Justice

Irene Rios, Justice

Delivered and Filed: February 12, 2020

AFFIRMED

In this parental rights case, the trial court determined it was in the children’s best interests 

to appoint Mom’s sister and husband (Aunt and Uncle) as permanent managing conservators and 

to appoint Mom as a possessory conservator.1

 Mom argues there was insufficient evidence to 

support the order, the order was void for vagueness, and Family Code section 262.201(o) is facially 

unconstitutional. We affirm the trial court’s order.

BACKGROUND

On August 11, 2018, Mom was allegedly prostituting herself, and when her boyfriend came 

into the motel room and attempted to rob the client, an altercation ensued.2 Officers from the San 

1 We use aliases to protect the children’s identities. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). 2 Mom and Dad were appointed as possessory conservators, but Dad did not appeal. We recite only the facts pertaining 

to Mom and the children.
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Antonio Police Department responded. The officers found the two children, then ages ten and 

eight, in the same motel but in another room. In that room, the officers found methamphetamine, 

marijuana, glass pipes, and an unsecured weapon. Mom stated the weapon was hers. 

While the officers were still at the motel, either the San Antonio Police Department or 

Mom called Aunt (Mom’s sister) to come and take the children. Aunt took the children to her 

home where they have been living with Aunt and Uncle. 

Although the children were safe and doing well with Aunt and Uncle, on August 20, 2018, 

the Department sought temporary managing conservatorship of the children in case Mom tried to 

take the children back from Aunt and Uncle. The trial court granted temporary orders which 

appointed the Department as temporary managing conservator of the children, and the Department 

chose for the children to remain with Aunt and Uncle. 

Sometime before the September 12, 2018 section 262.201 hearing, the Department talked 

with Mom and tried to serve her, but Mom was not served before the hearing. At the conclusion 

of the adversary hearing, the trial court again appointed the Department as temporary managing 

conservator of the children. Mom was served by citation by publication on September 18, 2018.

Mom received a service plan created by the Department, but Mom did not complete her 

plan.3

 She failed to complete her psychological evaluation, drug assessment, drug testing, or 

substance abuse treatment program; she did not attend most scheduled visits with the children or 

provide proof of stable housing and employment. Mom was authorized twenty-three visits with 

her children; she attended four but did not provide any reason for missing the other visits. She 

was ordered to complete twelve drug tests; she completed none. 

3 The record on Mom’s service plans is not clear. Mom’s first service plan in the record shows a “Plan 

Completed/Conference Date” of September 13, 2018, but at the September 12, 2018 adversary hearing, the 

Department case worker testified that the Department sought temporary managing conservatorship because Mom 

refused to sign her service plan.
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Although the children’s ad litem and the CASA volunteer recommended that the trial court 

terminate Mom’s parental rights, the Department did not request termination because of the 

children’s love for their mother and their ongoing desire to see her.

Taking the children’s desires into consideration, the trial court appointed Aunt and Uncle 

as permanent managing conservators and Mom as a possessory conservator. But it ordered that, 

for now, Mom have no visits with the children unless Aunt and Uncle approved. Mom appeals.

INSUFFICIENT EVIDENCE FOR CONSERVATORSHIP ORDER

In her first issue, Mom argues there was insufficient evidence to support the trial court’s 

conservatorship order. Mom argues that the Department did not present any evidence that Mom 

lacked stable housing, was not employed, or used illegal drugs. Mom also insists that the 

Department’s witness produced only conclusory statements that are, in legal effect, no evidence. 

The Department contends that the evidence was legally and factually sufficient to support 

the trial court’s order.

We briefly recite the evidentiary and appellate review standards.

A. Standard of Review

“Conservatorship determinations . . . are subject to review only for abuse of discretion, and 

may be reversed only if the decision is arbitrary and unreasonable.” In re J.A.J., 243 S.W.3d 611, 

616 (Tex. 2007); accord In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.] 

2016, pet. denied). “The best interest of the child shall always be the primary consideration of the 

court in determining the issues of conservatorship and possession of and access to the child.” TEX.

FAM. CODE ANN. § 153.002; accord In re J.A.J., 243 S.W.3d at 614. In its conservatorship 

determination, the trial court has broad discretion to decide the best interest of the child. In re 

A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Gillespie v. 

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). 
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Although an appellant may raise sufficiency of the evidence issues, “[l]egal and factual 

insufficiency challenges are not independent grounds for asserting error in custody determinations, 

but are relevant factors in assessing whether the trial court abused its discretion.” In re A.L.E., 279 

S.W.3d at 427 (citing Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.)). 

“A trial court does not abuse its discretion if there is some evidence of a substantive and probative 

character to support its decision.” In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th 

Dist.] 2016, pet. denied); accord In re A.L.E., 279 S.W.3d at 428.

B. Evidentiary Standard

In a conservatorship determination, an order appointing a nonparent as a managing 

conservator must meet only a preponderance-of-the-evidence standard. See TEX. FAM.CODE ANN.

§ 105.005; In re J.A.J., 243 S.W.3d at 616; In re W.M., 172 S.W.3d 718, 724 (Tex. App.—Fort 

Worth 2005, no pet.). 

C. Discussion

At trial, the Department’s representative testified regarding Mom’s and the children’s 

circumstances that the trial court could use to evaluate the best interests of the children. See TEX.

FAM.CODE ANN. § 263.307 (statutory factorsi); Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976)

(Holley factorsii). 

The children were removed because Mom was prostituting herself, her boyfriend attempted 

to rob her client, and the young children were found in a room with methamphetamine, marijuana, 

glass pipes, and an unsecured weapon. See TEX. FAM. CODE ANN. § 263.307 (factors (1), (3), (8), 

(12)); Holley, 544 S.W.2d at 371–72 (factors (B), (C), (D), (G), (H)). The representative also 

testified that Mom attended only four of her scheduled twenty-three visits with her children; she 

did not complete any of her twelve ordered drug tests; she failed to complete her psychological 

evaluation, drug assessment, drug testing, and substance abuse treatment program; and she failed 
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to provide proof of stable housing and employment. See TEX. FAM. CODE ANN. § 263.307 (factors 

(8), (10), (11), (12)); Holley, 544 S.W.2d at 371–72 (factors (B), (C), (D), (G), (H), (I)). The 

representative testified that Mom could not meet the children’s needs, the children are bonded to 

their current placement (Aunt and Uncle), and Aunt and Uncle are meeting all the children’s needs 

now and will be able to continue to do so. See TEX. FAM. CODE ANN. § 263.307 (factors (2), (6), 

(13)); Holley, 544 S.W.2d at 371–72 (factors (A), (B), (C), (F), (G)). 

Mom did not object to the testimony, and she did not present any evidence to rebut the 

Department’s evidence.

We conclude the evidence was legally and factually sufficient to support the trial court’s 

conservatorship order, and the trial court acted within its discretion. See In re K.S., 492 S.W.3d at 

426; In re A.L.E., 279 S.W.3d at 428. We overrule Mom’s first issue.

CONSERVATORSHIP ORDER VOID FOR VAGUENESS

In her second issue, citing section 153.006, Mom argues the conservatorship order was 

void for vagueness because it does not state the times and conditions for visitation and the 

Department failed to show good cause why a specific order is not in the children’s best interests. 

See TEX. FAM.CODE ANN. § 153.006 (Appointment of Possessory Conservator). Mom also asserts 

that because the order places sole discretion on granting visits in the Aunt and Uncle, her rights to 

her children are being effectively terminated. 

The Department contends the trial court stated on the record why specific orders were not 

in the children’s best interests and the order meets the good cause exception. See id. § 153.006(c). 

A. Applicable Law

The Family Code establishes guidelines for the trial court to use in determining possession 

for a possessory-conservator parent:
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In ordering the terms of possession of a child under an order other than a standard 

possession order, the court shall be guided by the guidelines established by the 

standard possession order and may consider:

(1) the age, developmental status, circumstances, needs, and best interest of the 

child;

(2) the circumstances of the managing conservator and of the parent named as 

a possessory conservator; and

(3) any other relevant factor.

TEX. FAM. CODE ANN. § 153.256; accord In re K.A.M.S., 583 S.W.3d 335, 344 (Tex. App.—

Houston [14th Dist.] 2019, no pet.).

If possession is contested and the order varies from the standard possession order, “on 

request by a party, the court shall state in writing the specific reasons for the variance from the 

standard order.” TEX. FAM. CODE ANN. § 153.258; accord In re K.A.M.S., 583 S.W.3d at 344. If 

no party requests the findings, we will “imply all findings necessary to support the trial court’s 

judgment.” In re K.A.M.S., 583 S.W.3d at 344; accord Pickens v. Pickens, No. 12-13-00235-CV, 

2014 WL 806358, at *2 (Tex. App.—Tyler Feb. 28, 2014, no pet.) (mem. op.) (citing Roberson v. 

Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam)).

B. Discussion

1. Trial Court’s Order

The trial court’s order appointed Aunt and Uncle as permanent managing conservators and 

Mom as a possessory conservator; it also states as follows:

IT IS ORDERED that the conservators shall have possession of the children at 

times mutually agreed to in advance by the parties and, in the absence of mutual 

agreement, as specified in Attachment A to this order, which is incorporated herein 

as if set out verbatim in this paragraph. 

In Attachment A, the following subparagraph addresses Mom’s possession of, and access to, the 

children:

18.1 [Mom shall have] supervised visitation with the children, under the terms and 

conditions agreed to in advance by the managing conservator, provided that the 
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managing conservator or other placement shall have 48 hours advance notice of 

intent to exercise the visitation. The managing conservator or designee shall 

supervise the visitation.

Immediately after subparagraph 18.1 is the following handwritten interlineation:

Only if managing conservator agrees to visitation. Sole discretion.

2. Written Findings Not Requested

Although possession of the children was contested and the trial court varied from the 

standard possession order, the record does not show that Mom asked the trial court to state its 

findings in writing. See TEX. FAM. CODE ANN. § 153.258; In re K.A.M.S., 583 S.W.3d at 344. 

Thus, we will “infer that the trial court made all the necessary findings to support its judgment.” 

See Pickens, 2014 WL 806358, at *2 (citing Roberson, 768 S.W.2d at 281).

3. Section 153.006 Compliance

The order does not “specify and expressly state . . . the times and conditions for possession 

of or access to the child[ren],” see TEX. FAM. CODE ANN. § 153.006, but that does not end our 

analysis, see In re A.N., No. 10-16-00394-CV, 2017 WL 4080100, at *8 (Tex. App.—Waco Sept. 

13, 2017, no pet.) (mem. op.). 

The Department’s representative testified that Mom was scheduled for twenty-three visits, 

but she only showed up for four, and the representative testified about how Mom’s failure to attend 

visits was harming the children emotionally. The children cried when Mom did not show up for 

the visits, and “when [Mom] doesn’t show up, [the older child] is fearful that something’s 

happened to [Mom]. She could be dead. She could be hurt. And so that lack of stability is 

extremely emotionally traumatizing for them.” 

The trial court expressly stated it was “deviating from the standard possession order based 

on the testimony and evidence the Court heard and the reasons for CPS intervention, and the 
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recommendations” from the CASA and the children’s ad litem that Mom’s parental rights be 

terminated. 

4. Specific Orders Not in Best Interest of Children

Having reviewed the evidence in the record, we infer that the trial court found that ordering 

specific times and conditions for Mom’s possession was not in the children’s best interests, see

TEX. FAM. CODE ANN. § 153.006; In re K.A.M.S., 583 S.W.3d at 344, and we cannot conclude the 

trial court abused its discretion in deciding not to state specific times and conditions for Mom’s 

visits but instead ordered that Aunt and Uncle set those times and conditions, see In re K.A.M.S., 

583 S.W.3d at 344 (“A trial court does not abuse its discretion in restricting a parent’s possession 

when the record contains some evidence to support a finding that such restrictions are in the child’s 

best interest.”); In re A.N., 2017 WL 4080100, at *8. 

5. Restrictions on Access and Possession

In the second part of her second issue, Mom argues that the trial court’s order effectively 

terminates her parental rights, but her argument is not persuasive. 

First, the CASA volunteer and the children’s ad litem both recommended Mom’s parental 

rights be terminated—which would give Mom no access to the children. The Department did not 

ask for Mom’s rights to be terminated because of the children’s love for and bond with Mom, but 

it opposed any visitation by Mom for now based on the emotional trauma her no-shows caused the 

children. Although conditioning Mom’s visitation rights on Aunt and Uncle’s approval could be 

a severe restriction, “a severe restriction or limitation, even one that amounts to a denial of access, 

is permissible if it is in the best interest of the child.” In re A.N., 2017 WL 4080100, at *7 (quoting 

In re Walters, 39 S.W.3d 280, 286 n.2 (Tex. App.—Texarkana 2001, no pet.)).

Second, as In re J.A.J. noted, “[t]he Family Code . . . guards against that possibility 

[because] [t]he trial court retains jurisdiction to modify a conservatorship order if it is in the child’s 
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best interest, and the parent’s or child’s circumstances have materially and substantially changed 

since the order was rendered.” In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007). Mom was 

represented at trial by court-appointed counsel, and Mom was present at trial. Mom heard the trial 

court limit her access to her children and explain the reasons for the limitations, and Mom’s 

counsel arguably had a duty to advise Mom that if her circumstances materially changed, she could 

petition the court for greater access. See TEX. FAM. CODE ANN. § 156.001; In re J.A.J., 243 S.W.3d 

at 617.

We conclude the trial court’s order was supported by the evidence and was not 

unreasonable or arbitrary. See In re J.A.J., 243 S.W.3d at 617. We overrule Mom’s second issue.

CITATION BY PUBLICATION

In her third issue, Mom contends Family Code section 262.201(o) is facially 

unconstitutional because she was not served before the full adversary hearing and was thus denied 

her due process right to notice and to be heard. 

The Department concedes it did not serve Mom before the adversary hearing but argues 

Mom’s appearance at subsequent hearings made the failure to serve Mom harmless error.

A. Additional Background

From the August 11, 2018 motel incident, Aunt took Mom’s two children at Mom’s 

request. On August 20, 2018, the Department petitioned for temporary managing conservatorship 

of the children to prevent Mom from taking the children back from Aunt and Uncle, and the trial 

court appointed counsel to represent Mom. 

Although the adversary hearing and trial testimony was quite limited, it appears that 

sometime before the September 12, 2018 section 262.201 hearing (adversary hearing), the 

Department talked with Mom, but it did not successfully serve her. To try to serve Mom, the 

Department worker went to the motel where Mom had been living, but Mom was not in the room, 
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and the motel’s front desk clerk said Mom no longer lived there. The Department called Mom on 

her phone and sent her text messages, but Mom did not respond. The Department asked Aunt if 

she knew where Mom was living, but Aunt did not know.

At the adversary hearing, the trial court acknowledged Mom’s counsel’s statement that 

Mom had not been personally served, but the court noted section 262.201(o) authorized the court 

to issue a temporary order before citation by publication was published if Mom’s location was 

unknown. The trial court admonished the Department to keep trying to locate Mom so she could 

be personally served, but it also advised the Department to proceed with citation by publication. 

The children’s ad litem recommended that the children stay with Aunt and Uncle and asked 

the court for “an order protecting [the children] so that the parents can’t come and pick them up.” 

The trial court’s September 12, 2018 temporary order appointed the Department as 

temporary managing conservator of the children before Mom was served. Six days later, on 

September 18, 2018, the trial court signed an Order for Substituted Service by Posting, and Mom 

was served by citation by publication. 

At the October 15, 2018 status hearing, Mom made a special appearance4 and announced 

not ready. At the February 11, 2019, and May 13, 2019 status hearings, Mom appeared in person 

with counsel and announced ready. At the August 8, 2019 trial on the merits, Mom appeared in 

person with counsel but announced not ready, which was denied. 

B. Applicable Law

Section 262.201(o) reads as follows:

4 On September 23, 2018, Mom petitioned this court for a writ of mandamus—arguing that the trial court abused its 

discretion by removing Mom as primary managing conservator of her children before Mom was served. The petition 

also raised facial and as-applied challenges to section 262.201(o). In December 2018, this court denied Mom’s petition

and her motion for en banc reconsideration. Subsequently, Mom raised the same issues in the Texas Supreme Court 

and the Supreme Court of the United States; neither court granted her requested relief.
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(o) When citation by publication is needed for a parent . . . in an action brought 

under this chapter because the location of the parent . . . is unknown, the court may 

render a temporary order without delay at any time after the filing of the action 

without regard to whether notice of the citation by publication has been published.

TEX. FAM. CODE ANN. § 262.201(o). 

When we review a constitutional challenge to a statute, “we begin . . . with a presumption 

that the statute is valid.” Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 701 (Tex. 2014); accord

Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (“We presume

that a statute passed by the Legislature is constitutional.”).

C. Facial Challenge

“A facial challenge claims that a statute, by its terms, always operates unconstitutionally.” 

Tenet Hosps., 445 S.W.3d at 702 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). To 

prevail in a facial challenge, the challenger “must demonstrate that the statute always operates 

unconstitutionally.” Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999); accord In re R.J.S., 219 

S.W.3d 623, 628 (Tex. App.—Dallas 2007, pet. denied). “A party seeking to invalidate a statute 

‘on its face’ bears a heavy burden of demonstrating that the statute is unconstitutional in all of its 

applications.” HCA Healthcare Corp. v. Tex. Dep’t of Ins., 303 S.W.3d 345, 349 (Tex. App.—

Austin 2009, no pet.) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 

449 (2008)). “Whether a statute is facially constitutional is a question of law that we review de

novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); accord Tex. Alcoholic Beverage 

Comm’n v. Live Oak Brewing Co., LLC, 537 S.W.3d 647, 654 (Tex. App.—Austin 2017, pet. 

denied). 

D. Discussion

Mom argues that section 262.201(o) is facially unconstitutional because it “instructs courts 

to deprive Texans of their fundamental parenting rights before personal service or service by 
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publication has taken place.”5 We presume that the statute is constitutional, see Tenet Hosps., 445 

S.W.3d at 701, and it is Mom’s burden to show it is not, see Wilson, 10 S.W.3d at 670. 

But Mom cannot meet her high burden “of demonstrating that the statute is unconstitutional 

in all of its applications,” see HCA Healthcare Corp., 303 S.W.3d at 349; accord Wilson, 10 

S.W.3d at 670, because, inter alia, the statute’s plain language is permissive, not mandatory, see

TEX. FAM. CODE ANN. § 262.201(o). The statute states “the court may render a temporary order 

without delay at any time after the filing of the action without regard to whether notice of the 

citation by publication has been published.” Id. (emphasis added). The statute does not compel 

the trial court to render a temporary order before citation by publication has been published. 

Instead, the trial court has discretion to consider the facts in each case and determine whether the 

circumstances warrant issuing a temporary order before citation by publication has been published. 

See id.

The statute gives the trial court discretion to render a temporary order after it considers 

whether the Department has been diligent in its efforts to locate the parent, the parent’s location 

and locating information is not known, see In re E.R., 385 S.W.3d at 560–61, 564, citation by 

publication is appropriate, and citation by publication has been published. See TEX. FAM. CODE 

ANN. § 262.201(o) (permissive, not mandatory, order). The statute does not require the trial court 

to issue a temporary order before citation by publication is published. See id.

In the instance recited above, the parent’s due process rights would not be violated, and 

thus Mom has not met her high burden to “demonstrate[e] that the statute is unconstitutional in all 

of its applications.” See HCA Healthcare, 303 S.W.3d at 349; see also Tenet Hosps., 445 S.W.3d 

at 702; Wilson, 10 S.W.3d at 670. We overrule Mom’s third issue.

5 We agree that Mom’s challenge is not moot because it is capable of repetition but evading review. See Spencer v. 

Kemna, 523 U.S. 1, 17 (1998); Murphy v. Hunt, 455 U.S. 478, 482 (1982).
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CONCLUSION

Having reviewed the record, we conclude the evidence was legally and factually sufficient 

to support the trial court’s conservatorship order, the trial court found good cause to not issue a 

dates-and-times specific order for Mom’s visitation, and Family Code section 262.201(o) is not 

facially unconstitutional. Therefore, we affirm the trial court’s order.

Patricia O. Alvarez, Justice

i Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts should consider

in determining the best interest of a child:

(1) the child’s age and physical and mental vulnerabilities; 

(2) the frequency and nature of out-of-home placements; 

(3) the magnitude, frequency, and circumstances of the harm to the child; 

(4) whether the child has been the victim of repeated harm after the initial report and intervention 

by the department; 

(5) whether the child is fearful of living in or returning to the child’s home; 

(6) the results of psychiatric, psychological, or developmental evaluations of the child, the 

child’s parents, other family members, or others who have access to the child’s home; 

(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who 

have access to the child’s home; 

(8) whether there is a history of substance abuse by the child’s family or others who have access 

to the child’s home; 

(9) whether the perpetrator of the harm to the child is identified; 

(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling 

services and to cooperate with and facilitate an appropriate agency’s close supervision; 

(11) the willingness and ability of the child’s family to effect positive environmental and personal 

changes within a reasonable period of time; 

(12) whether the child’s family demonstrates adequate parenting skills; . . . and 

(13) whether an adequate social support system consisting of an extended family and friends is 

available to the child. 

TEX. FAM. CODE ANN. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).

ii Holley Factors. The Supreme Court of Texas identified the following factors that courts have used to determine the 

best interest of a child:

(A) the desires of the child;

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

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

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the best interest of the child;

(F) the plans for the child by these individuals or by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship 

is not a proper one; and 

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796, 

807 (Tex. 2012) (reciting the Holley factors).