Opinion filed September 13, 2018

In The

Eleventh Court of Appeals __________

No. 11-18-00090-CV

__________

IN THE INTEREST OF A.L.S., A CHILD

On Appeal from the 118th District Court

Howard County, Texas

Trial Court Cause No. 51810

M E M O R A N D U M O P I N I O N

This is an appeal from an order in which the trial court terminated the parental 

rights of the mother and father of A.L.S. A.L.S.’s mother filed a notice of appeal.

She presents three issues for this court’s review. In the first issue, she complains of 

the trial court’s refusal to dismiss the lawsuit. In the second and third issues, she

challenges the legal and factual sufficiency of the evidence to support the 

termination of her parental rights. We affirm. 
2

In her first issue, Appellant argues that the trial court erred when it denied her 

motion to dismiss the lawsuit “for failure to render a final order”1 prior to the 

mandatory dismissal date. Appellant’s complaint is based on Section 263.401(a) of 

the Texas Family Code. The version of Section 263.401(a) that applies to this case 

reads as follows: 

Unless the court has commenced the trial on the merits or granted 

an extension under Subsection (b) or (b-1), on the first Monday after 

the first anniversary of the date the court rendered a temporary order 

appointing the department as temporary managing conservator, the 

court shall dismiss the suit affecting the parent-child relationship filed 

by the department that requests termination of the parent-child 

relationship or requests that the department be named conservator of 

the child.

Former FAM. § 263.401(a) (2015) (emphasis added) (as that subsection existed prior 

to the 2017 amendments)2

; see In re P.M.W., No. 06-17-00094-CV, 2018 WL 

3862798, at *2 (Tex. App.—Texarkana Aug. 15, 2018, no pet. h.).

 1

We note that the applicable date is the date that trial commences, not the date that the trial court 

renders a final order. See In re H.R.T., No. 11-16-00055-CV, 2016 WL 4385724, at *3 n.2 (Tex. App.—

Eastland Aug. 12, 2016, no pet.) (mem. op.). 

2

For suits filed on or after September 1, 2017, the statute, as amended, provides:

Unless the court has commenced the trial on the merits or granted an extension 

under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the 

court rendered a temporary order appointing the department as temporary managing 

conservator, the court’s jurisdiction over the suit affecting the parent-child relationship 

filed by the department that requests termination of the parent-child relationship or requests 

that the department be named conservator of the child is terminated and the suit is 

automatically dismissed without a court order. 

Act of May 28, 2017, 85th Leg., R.S., ch. 319, § 12, 2017 Tex. Gen. Laws 713, 718–19 (codified at TEX.

FAM. CODE § 263.401(a)) (emphasis added). The effective date of the amendment was September 1, 2017. 

Id. § 34, at 735. The legislature provided, however, that the changes made to Section 263.401 “apply only 

to a suit affecting the parent-child relationship filed on or after the effective date of this Act. A suit affecting 

the parent-child relationship filed before the effective date of this Act is governed by the law in effect on 

the date the suit was filed, and the former law is continued in effect for that purpose.” Id. § 33, at 735; see 

In re T.W., No. 07-18-00056-CV, 2018 WL 3799883, at *1 n.2, *2 (Tex. App.—Amarillo Aug. 9, 2018, no 

pet. h.) (holding that the 2017 amendments do not apply to suit filed before September 1, 2017, and that the 

language of the second 2017 amendment—the Act of May 28, 2017—controls with respect to the effective 

date); see also TEX. GOV’T CODE ANN. § 311.025(b) (West 2013) (providing for resolution of conflicting 

amendments enacted in the same session). 
3

The record reflects that the trial court entered a temporary order in which it 

appointed the Department of Family and Protective Services as the temporary 

managing conservator of A.L.S. on March 23, 2017. Therefore, the dismissal date 

was March 26, 2018. The trial commenced on April 4, 2018, after the mandatory 

dismissal date. Appellant, however, did not object or file a motion to dismiss prior 

to the commencement of trial. She waited until after the first witness testified before 

she brought the matter to the trial court’s attention and asked the trial court to dismiss 

the suit. 

Under the law as it existed on the date this suit was filed, a trial court did not 

lose jurisdiction over a termination proceeding when the dismissal date passed. In 

re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009). 

Furthermore, a party who failed to “make a timely motion to dismiss” prior to the 

commencement of the trial waived the right to object to the trial court’s failure to 

dismiss the suit. Former FAM. § 263.402(b)3

; see In re K.L.C., No. 11-14-00019-

CV, 2014 WL 3639124, at *6 (Tex. App.—Eastland July 17, 2014, pet. denied)

(mem. op.). Although Section 263.402(b) was deleted by the legislature in the 2017 

amendments to the Family Code, it remained in effect in this case. See In re T.W., 

No. 07-18-00056-CV, 2018 WL 3799883, at *2 (Tex. App.—Amarillo Aug. 9, 2018, 

no pet. h.) (holding that parents were obligated to timely move for dismissal). Here, 

Appellant failed to file her motion to dismiss prior to the commencement of the trial. 

Therefore, under the law applicable to this case, she waived the right to object to any 

 3

Prior to the 2017 amendments, Section 263.402(b) provided as follows: 

A party to a suit under this chapter who fails to make a timely motion to dismiss 

the suit under this subchapter waives the right to object to the court’s failure to dismiss the 

suit. A motion to dismiss under this subsection is timely if the motion is made before the 

trial on the merits commences.

This provision was deleted by the legislature in the 2017 amendments to the Family Code. See Act of

May 28, 2017, 85th Leg., R.S., ch. 319, § 13, at 719. 
4

failure of the trial court to dismiss this suit based upon the mandatory dismissal date. 

See former FAM. § 263.402(b); T.W., 2018 WL 3799883, at *2; K.L.C., 2014 WL 

3639124, at *6. We overrule Appellant’s first issue. 

In her next two issues, Appellant asserts that the evidence is legally and 

factually insufficient to support the trial court’s findings under subsections (D) and 

(E) of Section 161.001(b)(1) of the Family Code. See TEX. FAM. CODE ANN. 

§ 161.001(b)(1) (West Supp. 2017). We need not reach the merits of these issues 

because Appellant challenges only two of the four findings made by the trial court 

under Section 161.001(b)(1). 

To terminate parental rights, it must be shown by clear and convincing 

evidence that the parent has committed one of the acts listed in 

Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child. 

Id. § 161.001(b). After the final hearing in this case, the trial court found by clear 

and convincing evidence that Appellant had committed four of the acts listed in 

Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).

Specifically, the trial court found that Appellant had knowingly placed or knowingly 

allowed the child to remain in conditions or surroundings that endangered the 

physical or emotional well-being of the child, that Appellant had engaged in conduct 

or knowingly placed the child with persons who engaged in conduct that endangered 

the physical or emotional well-being of the child, that Appellant had constructively 

abandoned the child, and that Appellant had failed to comply with the provisions of 

a court order that specifically established the actions necessary for her to obtain the 

return of child. The trial court also found, pursuant to Section 161.001(b)(2), that 

termination of Appellant’s parental rights would be in the best interest of the child.

The Department, in its brief, points out that Appellant has not challenged the 

findings made by the trial court pursuant to subsections (N) and (O) or the finding 

made by the trial court as to best interest. Because Appellant failed to challenge 
5

these findings, they are binding on this court. In re E.A.F., 424 S.W.3d 742, 750 

(Tex. App.—Houston [14th Dist.] 2014, pet. denied). Accordingly, we need not 

address Appellant’s second and third issues because the unchallenged findings are

sufficient to support termination. See id.; see also FAM. § 161.001(b). 

We affirm the order of the trial court.

JIM R. WRIGHT

SENIOR CHIEF JUSTICE 

September 13, 2018

Panel consists of: Bailey, J.; 

Gray, C.J., 10th Court of Appeals4

;

and Wright, S.C.J.5

Willson, J., not participating. 

 4

Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment 

to the 11th Court of Appeals.

5

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.