05-18-01127-CV

IN THE FIFTH DISTRICT COURT OF APPEALS

AT DALLAS, TEXAS

IN THE INTEREST OF R.M., A CHILD

JILL KUTKA,

APPELLANT

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

APPELLEE

SHAWN INGRAM AND JENNIFER INGRAM,

APPELLEES

Appeal from Order Granting Intervenor’s Petition in 

Intervention in Suit and Plea to the Jurisdiction

Arising out of the 417TH Judicial District Court of Collin County, Texas

Cause No. 417-02593-2018

Honorable Cynthia Wheless Presiding

APPELLANT’S BRIEF

Submitted by,

CASEY T. BOYD

State Bar No. 24059477

205 W. Louisiana Street, Suite 103

McKinney, Texas 75069

Tel: (469) 777-6129

Email: boydlitigation@gmail.com

COUNSEL FOR APPELLANT

ORAL ARGUMENT REQUESTED

1

ACCEPTED

05-18-01127-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

1/31/2019 3:50 AM

LISA MATZ

CLERK

 RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/31/2019 3:50:34 AM LISA MATZ Clerk

5th Court of Appeals

FILED: 01/31/2019

Lisa Matz, Clerk
IDENTITIES OF PARTIES AND COUNSEL

Petitioner / Appellant: 

Jill Kutka

Petitioner/Appellant’s Counsel in Trial Court: 

Mr. Casey T. Boyd

State Bar No. 24059477

205 W. Louisiana Street, Suite 103

McKinney, Texas 75069

Tel: (469) 777-6129

Email: boydlitigation@gmail.com

Respondent/Appellee:

Collin County Unit of the Texas Department of Family and Protective Services

Respondent/Appellee’s Trial Counsel:

Ms. Alyson Dietrich

State Bar No. 24012529

Assistant District Attorney

Collin County District Attorney’s Office

2100 Bloomdale Road, Suite 200

McKinney, Texas 75071

Tel: (972) 548-4336

Fax: (972) 548-4767

Email: adietrich@co.collin.tx.us

Respondent/Appellee’s Appellate Counsel:

Mr. John Rolater

Assistant District Attorney

Collin County District Attorney’s Office

2100 Bloomdale Road, Suite 100

McKinney, Texas 75071

Tel: (972) 548-4323

Fax: (214) 491-4860

Email: jrolater@co.collin.tx.us

2
Intervenors/Appellees:

Shawn Ingram and Jennifer Ingram

Intervenors/Appellees’ Trial Counsel:

Ms. Rebecca Rowan

State Bar No. 24060729

KOONSFULLER, P.C.

1717 McKinney Avenue, Suite 1500 

Dallas, Texas 75202 

Tel: (214) 871-2727 

Fax: (214) 871-0196

Email: rrowan@.koonsfuller.com

R.M. is the minor child subject of this suit.

Attorney Ad Litem in Trial Court for R.M., the Child:

Ms. Terri Daniel

State Bar No. 00796433

6675 Mediterranean Dr., Suite 407 

McKinney, Teas 75072 

Tel: (469) 519-2739 

Fax: (877) 291-1215 

Email: terri@terridaniellaw.com

3
TABLE OF CONTENTS

Index of Authorities...........................................................................5

Record References.............................................................................6

Statement of the Case........................................................................7

Statement on Oral Argument.................................................................8

Issues Presented................................................................................8

Statement of Facts.............................................................................8

Standard of Review.........................................................................12

Arguments and Authorities.................................................................13

A. Section 161.211(a) of the Texas Family Code is Unconstitutional

as Applied to Appellant...............................................................13

B. Intervenors’ Petition in Intervention Should Have Been Denied................20

Conclusion....................................................................................21

Prayer..........................................................................................22

Certificate of Service........................................................................23

Appellant’s Appendix.......................................................................24

4
INDEX OF AUTHORITIES

Caselaw

Abdullatif v. Erpile, LLC, 460 S.W.3d 685

(Tex.App.-Houston [14th Dist.] 2015, no pet.)...............................................20

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex.2000)..............................12

City of Dallas v. Carbajal, 324 S.W.3d 537 (Tex.2010)...................................12

F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex.2007)................13

Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793 S.W.2d 652 (Tex. 1990)......20

H. Tebbs, Inc. v. Silver Eagle Distribs., 797 S.W.2d 80

(Tex.App.-Austin 1990, no writ)..............................................................20

In re C.M.D., 287 S.W.3d 510 (Tex.App.-Houston [14th Dist.] 2009, no pet.)........14

In re C.P.J., 129 S.W.3d 573 (Tex.App.-Dallas 2003, pet. denied)......................13

In re C.T.C., 365 S.W. 3d 853 (Tex.App.-Dallas 2012)..............................18, 19

In re D.J.R., 319 S.W.3d 759 (Tex.App.-El Paso 2010, pet. denied).......13, 14, 18, 19

In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.-Austin 2007, no pet.).............12

In re E.R., 335 S.W.3d 816 (Tex.App.-Dallas 2011, pet. granted)...................15, 16

In re E.R., 385 S.W. 3d 552 (Tex. 2012)............................................14, 15, 19

In re M.N., 262 S.W.3d 799 (Tex. 2008)....................................................15

In re Union Carbide, 273 S.W.3d 152 (Tex. 2008).........................................20

In the Interest of B.G., 317 S.W.3d 250, 258 (Tex.2010)..................................15

In the Interest of J.O.A., 283 S.W.3d 336 (Tex.2009)......................................15

5
Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802 (Tex. 1989)............13

Santosky v. Kramer, 455 U.S. 745 (1982)...................................................14

Serna v. Webster, 908 S.W.2d 487 (Tex.App.-San Antonio 1995, no writ).............20

Stanley v. Illinois, 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)..........15

Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex.1993)............13

Texas Dep't of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974)........................13

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004)...............12

Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636 (Tex.1999).................................12

Texas Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864 (Tex.2001)......12

Walker v. Tex. Dep't of Family & Protective Servs.,

312 S.W.3d 608 (Tex.App.-Houston [1st Dist.] 2009, pet. denied)..................14, 19

Rules and Statutory Authority

Tex.Fam.Code Section 161.001(1)(K).............................................7, 9, 11

Tex.Fam.Code Section 161.211(a).....................8, 13, 14, 15, 16, 17, 18, 19, 21

Tex.Fam.Code Section 263.405...........................................................14

TRAP 20.1....................................................................................12

TRAP 39.1.....................................................................................8

RECORD REFERENCES

The Record references listed below are used throughout Appellant’s Brief:

CR at __ Clerk’s Record

RR __:__ Reporter’s Record

6
STATEMENT OF THE CASE

On May 29, 2018, Appellant filed her Original Petition for Bill of Review on 

seeking to review an order terminating her parental rights which was signed by the 

Court on October 7, 2016 in Cause Number 417-30048-2014 and styled “In the 

Interest of R.M., A Child”. The order terminating Appellant’s parental rights was 

predicated on a finding by the Court that Appellant executed an unrevoked or 

irrevocable affidavit of relinquishment of parental rights as provided by Section 

161.001(1)(K) of the Texas Family Code. CR at 7.

On August 24, 2018, Intervenors filed a Petition in Intervention in Suit and 

Plea to the Jurisdiction. CR at 62.

On September 6, 2018, Intervenors filed their Original Answer to Original 

Petition for Bill of Review. CR at 68.

On September 10, 2018, Intervenors filed a Brief in Support of Plea to the 

Jurisdiction. CR at 75.

Appellant’s Original Petition for Bill of Review and Intervenors’ Petition in 

Intervention and Plea to the Jurisdiction were set for a hearing on September 10, 

2018. The trial court heard Intervenors’ Petition in Intervention and Plea to the 

Jurisdiction, after which the trial court signed an Order granting Intervenors’

Petition in Intervention and Plea to the Jurisdiction, and dismissing Appellant’s 

Petition for Bill of Review with prejudice. RR 14:17-18; 33:8-11; CR at 87.

7
This is an appeal from the Order Granting Intervenors’ Petition in 

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction, 

which was signed by the trial court on September 10, 2018.

STATEMENT ON ORAL ARGUMENT

Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, Appellant 

requests oral argument and believes that the decisional process would be 

significantly aided by oral argument.

ISSUES PRESENTED

C. Section 161.211(a) of the Texas Family Code is Unconstitutional as

Applied to Appellant.

D. Intervenors’ Petition in Intervention Should Have Been Denied.

STATEMENT OF FACTS

On August 27, 2015, in the underlying proceeding to terminate Appellant’s 

parental rights, the parties entered into a Mediated Settlement Agreement wherein 

the parties entered into a series of agreements which resulted in Appellant

relinquishing her parental rights, and which allowed Appellant to have specific

periods of supervised access to the child “after entry of the final order.” CR at 76.

Intervenors were not parties to the underlying termination proceeding, they 

were not physically present at mediation, and they were not signatories to the 

Mediated Settlement Agreement. Notwithstanding, the Mediated Settlement 

8
Agreement included representations made by Intervenors regarding Appellant’s 

future access to the child. CR at 26.

On October 7, 2016, the “Final Order in Suit Affecting Parent-Child 

Relationship – Termination of Parental Rights, and Appointment of Managing 

Conservator” (hereinafter “Termination Order”) was signed by the Court based on 

the Mediated Settlement Agreement. The Final Termination Order terminated 

Appellant’s parental rights, and in so doing, the Court found by clear and 

convincing evidence that termination of the parent-child relationship was in the 

best interest of the child, and that Appellant executed an unrevoked or irrevocable 

affidavit of relinquishment of parental rights as provided by Section 161.001(1)(K) 

of the Texas Family Code. CR at 33.

The Termination Order incorporated the provisions in the Mediated 

Settlement Agreement, including those specifying Appellant’s future access to the 

child after entry of the final order. The Termination Order also included a 

provision requiring Appellant’s trial counsel, Karen Arias, to remain as 

Appellant’s attorney of record after entry of the termination so that she could 

ensure that the provisions of the Mediated Settlement Agreement and Final Order 

were incorporated into a future Decree of Adoption. The Termination Order 

required that Appellant’s attorney receive copies of all pleadings and orders related 

to the adoption of the child to ensure that the provisions of the Mediated 

9
Settlement Agreement were incorporated into the adoption order “for 

enforceability purposes”. CR at 33.

On August 4, 2017, the Court entered an Agreed Order Granting Adoption

which did not incorporate any provisions regarding post-termination contact from 

the Mediated Settlement Agreement or the Termination Order. CR at 77.

Appellant’s trial attorney did not receive any notice of the adoption 

proceedings, or an opportunity to review the adoption order prior to entry with the 

Court. CR at 60.

Intervenors allowed Appellant to have supervised visits with the child until 

March 2018 pursuant to the terms of the Mediated Settlement Agreement and 

Termination Order. Sometime thereafter, it became apparent to Appellant that 

Intervenors would no longer be honoring the terms of the Mediated Settlement 

Agreement and Termination Order. CR at 77-78. It was at that point that 

Appellant first became aware of the fact that Intervenors had no intention of 

continuing to honor the terms of the Mediated Settlement Agreement and 

Termination Order. CR at 78; CR at 54-58.

As a result, Appellant filed her Original Petition for Bill of Review on May 

29, 2018 seeking to review the order terminating her parental rights signed by the 

Court on October 7, 2016. The order terminating Appellant’s parental rights was 

predicated on a finding by the Court that Appellant voluntarily executed an 

10
unrevoked or irrevocable affidavit of relinquishment of parental rights as provided 

by Section 161.001(1)(K) of the Texas Family Code. CR at 7.

On August 24, 2018, Intervenors filed a Petition in Intervention in Suit and 

Plea to the Jurisdiction. CR at 62.

On September 6, 2018, Intervenors filed their Original Answer to Original 

Petition for Bill of Review. CR at 68.

On September 10, 2018, Intervenors filed a Brief in Support of Plea to the 

Jurisdiction. CR at 75.

Appellant’s Petition for Bill of Review and Intervenors’ Petition in 

Intervention and Plea to the Jurisdiction were set for a hearing on September 10, 

2018. The trial court heard Intervenors’ Petition in Intervention and Plea to the 

Jurisdiction, after which the trial court signed an Order granting Intervenors’

Petition in Intervention and Plea to the Jurisdiction, and dismissing Appellant’s 

Petition for Bill of Review with prejudice. RR 14:17-18; 33:8-11; CR at 87.

The trial court granted Intervenors’ Plea to the Jurisdiction without reaching 

the merits of Appellant’s Original Petition for Bill of Review. RR 33:8-11.

Appellant’s trial counsel made an offer of proof to the Court regarding the

substance of Appellant’s Bill of Review. RR 33:16 through 42:17.

Appellant filed her Notice of Appeal on September 25, 2018. CR at 88.

11
This is an appeal from the Order Granting Intervenors’ Petition in 

Intervention in Suit for Bill of Review, and Intervenors’ Plea to the Jurisdiction, 

which was signed by the trial court on September 10, 2018.

Appellant is presumed indigent and may proceed without paying costs under 

Rule 20.1 of the Texas Rules of Appellate Procedure.

STANDARD OF REVIEW

A plea to the jurisdiction challenges a trial court's subject matter jurisdiction.

See, e.g., City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex.2010) (citing Tex. 

Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999)). Whether a court has 

subject matter jurisdiction is a question of law that we review de novo. Id. (citing 

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004)); see

also In re D.K.M., 242 S.W.3d 863, 865 n. 1, (Tex.App.-Austin 2007, no pet.)

(motion to dismiss based on lack of subject matter jurisdiction is functional 

equivalent of plea to jurisdiction and is reviewed de novo).

In deciding a plea to the jurisdiction, a court may not weigh the claims' 

merits but must consider only the plaintiffs' pleadings and the evidence pertinent to 

the jurisdictional inquiry. Texas Natural Res. Conservation Comm'n v. White, 46 

S.W.3d 864 (Tex.2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547

(Tex.2000). When the appellate court consider a trial court's order on a plea to the 

jurisdiction, it must construe the pleadings in the plaintiff's favor and look to the 

12
pleader's intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440

(Tex.1993); Peek v. Equipment Serv. Co. of San Antonio, 779 S.W.2d 802 (Tex. 

1989). When a plaintiff fails to plead facts that establish jurisdiction, but the 

petition does not affirmatively demonstrate incurable defects in jurisdiction, the 

issue is one of pleading sufficiency and the plaintiff should be afforded the 

opportunity to amend. See Peek, 779 S.W.2d at 804-05; Texas Dep't of Corrections 

v. Herring, 513 S.W.2d 6 (Tex.1974).

Additionally, statutory construction and the constitutionality of a statute are 

legal questions and are reviewed de novo. See, e.g., F.F.P. Operating Partners, L.P. 

v. Duenez, 237 S.W.3d 680 (Tex.2007) (statutory construction); In re C.P.J., 129

S.W.3d 573 (Tex.App.-Dallas 2003, pet. denied) (constitutionality of statute).

ARGUMENTS AND AUTHORITIES

1. Section 161.211(a) of the Texas Family Code is Unconstitutional as

Applied to Appellant.

Section 161.211(a) of the Texas Family Code limits a direct or collateral

attack on an order terminating parental rights based on an unrevoked affidavit of 

relinquishment to issues relating to fraud, duress, or coercion in the execution of

the affidavit of relinquishment.

An individual who challenges the constitutionality of a statute bears the 

burden to establish its unconstitutionality. In re D.J.R., 319 S.W.3d 759 (Tex.App.-

El Paso 2010, pet. denied). A claim that a statute is unconstitutional as applied is a 

13
claim that the statute, although generally constitutional, operates unconstitutionally 

as to the claimant. Id. 857. An as-applied challenger is required only to 

demonstrate that the statute operates unconstitutionally when applied to his or her 

particular set of circumstances. Id.

Courts should decide constitutional issues narrowly based on the precise 

facts of the case, not speculative or hypothetical injuries. In re C.M.D., 287 S.W.3d 

510, 515 (Tex.App.-Houston [14th Dist.] 2009, no pet.). There is no need to reach 

the constitutionality of a statute where there is no showing the operation of the 

challenged statute harmed the Appellant. See In re D.J.R., 319 S.W.3d 759,

Tex.App.-El Paso 2010, pet. denied); Walker v. Tex. Dep't of Family & Protective 

Servs., 312 S.W.3d 608 (Tex.App.-Houston [1st Dist.] 2009, pet. denied).

When the State seeks to sever permanently the relationship between a parent 

and a child, it must first observe fundamentally fair procedures. A parental rights 

termination proceeding encumbers a value "far more precious than any property 

right" and is consequently governed by special rules. Santosky v. Kramer, 455 

U.S. 745 (1982); In re E.R., 385 S.W. 3d 552 (Tex. 2012).

In reference to Section 263.405 of the Texas Family Code, the Texas 

Supreme Court held that it did not indicate legislative intent to unfairly or 

unreasonably preclude parents from appealing final orders. In like manner, Section

161.211(a) does not indicate a legislative intent to unfairly or unreasonably

14
preclude a parent from challenging an order terminating parental rights based on

fraud, duress, or coercion in the execution of an affidavit of relinquishment. In re 

M.N., 262 S.W.3d 799 (Tex. 2008).

Finality cannot trump a parent's constitutional right to be heard. Stanley v. 

Illinois, 405 U.S. 645, 646, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (noting that "the 

Constitution recognizes higher values than speed and efficiency"); In re E.R., 385

S.W. 3d 552 (Tex. 2012). The Texas Supreme Court has held that the Family 

Code provisions that expedite termination proceedings must still yield to due 

process. See In the Interest of B.G., 317 S.W.3d 250 (Tex.2010); In the Interest of 

J.O.A., 283 S.W.3d 336 (Tex.2009). 

This Court held in In re E.R., 335 S.W.3d 816 (Tex.App.-Dallas 2011, pet.

granted) that "[t]he mandatory language of family code section 161.211 leaves no 

room for a construction other than a requirement that any collateral or direct attack 

on the termination of parental rights, including a motion for new trial, be filed no 

more than six months after the termination order is signed." Id. at 820. The 

majority further concluded, "The six-month deadline in family code section 

161.211 is not a plea in avoidance, but is, rather, a bar to or preclusion of a 

challenge to a termination order more than six months after the termination order is 

signed." Id. The majority addressed the dissent by stating that while "[t]he dissent 

would hold that section 161.211's six-month bar to [the mother's] direct or 

15
collateral attack on the validity of a termination order is unconstitutional," the 

mother "has not argued her constitutional rights have been violated or otherwise 

challenged the constitutionality of the statute and, therefore, has not preserved or 

presented the issue for our review." Id. at 822-23.

Appellant’s case is distinguishable from In re E.R., and finding that Section 

161.211(a) is unconstitutional as applied to Appellant here would be consistent 

with this Court’s holding and opinion in In re E.R. 

First, Appellant argued in the trial court that her constitutional rights have 

been violated, or she otherwise challenged the constitutionality of the statute, and 

she has therefore preserved the constitutional issues for this Court’s review, 

including her due process rights. See RR: 10:2-25; 12:5-25; 13:1-5; 18:21-24; 

32:6-16; 34:10-19; 25:18-25.

Appellant also made a showing that, to the extent allowed by the trial court,

the operation of Section 161.211(a) harmed Appellant. Exhibit “C” to Appellant’s

Original Petition for Bill of Review is a text message from Intervenors to 

Appellant indicating that it was within their sole discretion to follow or not follow

the terms of the Mediated Settlement Agreement and the Termination Order. 

Intervenors’ pleadings establish that they will only allow Appellant’s visits with 

the child as they see fit. 

16
The Court’s application of Section 161.211(a) to Appellant eliminates any 

adequate legal remedy for Appellant, and ratifies the material misrepresentations

made by the Texas Department of Family and Protective Services to induce 

Appellant into signing a mediated settlement agreement which resulted in

relinquishment of her parental rights and termination of her parental rights. 

It further allows the Department and the Intervenors to completely renege on 

those agreements without any recourse by a parent whose parental rights have been 

terminated as a result of the promises made by the State of Texas in mediation, 

with the apparent authority of the Intervenors. 

It encourages the Department to comply with the terms of the Mediated 

Settlement Agreement and Termination Order for six months, but to then turn 

around and renege on those agreements after the time for Appellant to lodge a 

direct or collateral attack has expired under Section 161.211(a). The State of 

Texas and the Intervenors continued to perpetrate a fraud on Appellant to ensure 

that she would not act to timely assert her constitutional parental rights to the child,

and the interpretation of Section 161.211(a) advocated by the majority opinion of 

this Court rewards them for committing fraud while depriving Appellant, and more 

importantly, the child, of any procedural safeguards for Appellant’s parental rights,

and for the child’s constitutional relationship with Appellant.

17
Appellant has been harmed by application of Section 161.211(a) to her case 

because she has forever relinquished her constitutional right to raise her child, and 

had her constitutional right permanently severed, without any recourse when the 

State of Texas and Intervenors decided that their promises were discretionary.

Appellant has lost time with her child, time that she was promised in the 

Mediated Settlement Agreement and Termination Order. CR at 54-58.

Appellant was harmed because the State of Texas decided to violate the

terms of the Mediated Settlement Agreement and Termination Order by failing to 

give Appellant’s trial counsel notice of the subsequent adoption proceedings.

This Court affirmed the trial court’s judgment in In re C.T.C., 365 S.W. 3d 

853 (Tex.App.-Dallas 2012). In so doing, the Court stated that “The record shows 

Father argued in the trial court, without objection by Mother, that section 

161.211(a) is unconstitutional as applied to him because it violates his due process 

rights. However, on this record, we cannot conclude Father has met his burden to 

show he was harmed by the application of that statute to his case. See In re D.J.R.,

319 S.W.3d at 765-66. The record shows the agreed order of termination was 

signed on November 24, 2009. Thus, the six-month time period during which 

Father could challenge that order expired on May 24, 2010. See TEX. FAM. 

CODE ANN. § 161.211(a). Father pleaded he was aware of the alleged fraud by 

Mother "on or about April 14, 2010," more than one and one-half months before 

18
the end of the six-month time period, and, according to his affidavit, he contacted 

counsel by, at the latest, April 2010. Yet, despite the language in section 

161.211(a) providing a six-month deadline, Father did not file his attack on the 

agreed order of termination until September 29, 2010. Father does not explain, and 

the record does not show, how section 161.211(a)'s six-month time limit operated 

to adversely affect his right to attack the agreed termination order when the sixmonth time period had not elapsed at the time he became aware of the alleged 

fraud and retained counsel. Accordingly, we decide Father's second issue against 

him. See In re D.J.R., 319 S.W.3d at 765-66; Walker, 312 S.W.3d at 625.”

Unlike the father in In re C.T.C., the six-month time period had already 

passed when Appellant first became aware of the fraud, duress, or coercion in her 

execution of the affidavit of relinquishment. The record affirmatively demonstrates 

that Appellant was harmed by the application of Section 161.211(a). 

However, if this Court does not believe that the record affirmatively 

demonstrates that she was harmed by application of this section, then that 

deficiency is a result of the trial court’s refusal to allow Appellant to proceed with 

making her prima facie case in support of her Original Petition for Bill of Review.

Due process should prevail over a state law time limit, even one imposed on 

challenges to termination of parental rights or adoptions. In re E.R., 385 S.W. 3d

552 (Tex. 2012).

19
2. Intervenors’ Petition in Intervention Should Have Been Denied.

Intervenors’ Petition in Intervention should have been denied. The

sufficiency of the petition in intervention is tested by the allegations of fact on 

which the right to intervene depends. Serna v. Webster, 908 S.W.2d 487 

(Tex.App.-San Antonio 1995, no writ); H. Tebbs, Inc. v. Silver Eagle Distribs., 

797 S.W.2d 80 (Tex.App.-Austin 1990, no writ).

Intervenors must have a justiciable interest in the suit. In re Union Carbide, 

273 S.W.3d 152 (Tex. 2008). A party can intervene if it (1) could have brought all 

or part of the same suit in its own name or (2) would have been able to defeat all or 

part of the recovery if the suit had been filed against it. Guaranty Fed. Sav. Bank 

v. Horseshoe Oper. Co., 793 S.W.2d 652 (Tex. 1990).

The court must have subject matter jurisdiction over any claims for relief 

asserted by the Intervenor. See Abdullatif v. Erpile, LLC, 460 S.W.3d 685 

(Tex.App.-Houston [14th Dist.] 2015, no pet.). The petition in intervention should 

allege facts that demonstrate the court’s subject matter jurisdiction. Id. at 691.

Appellant objected to Intervenors’ Petition in Intervention, and Appellant’s 

objection was tried by consent. RR 6:18; 13:9-16; 13:23-25; 14:1-16. After 

hearing the arguments of counsel, the trial court overruled Appellant’s objection

and allowed Intervenors to proceed. RR 14:17-18.

20
Intervenors’ Petition in Intervention and Plea to the Jurisdiction did not 

allege facts that demonstrated the trial court’s subject matter jurisdiction over any

claims for relief asserted by the Intervenor. CR at 62. To the contrary, Intervenors’

Petition in Intervention and Plea to the Jurisdiction affirmatively refuted the trial 

court’s subject matter jurisdiction when they asked the trial court to “dismiss this 

action because this Court lacks subject matter jurisdiction under Texas Family 

Code §161.211(a).” CR1:63. It is impossible for the Intervenors to intervene in a

proceeding over which they claim the trial court lacks subject matter jurisdiction.

Further, Intervenors’ failed to show that they could have brought all or part 

of the same suit in their own name, or that they would have been able to defeat all 

or part of the recovery if the suit had been filed against them.

The trial court should have denied Intervenors’ Petition in Intervention.

CONCLUSION

Section 161.211(a) of the Texas Family Code is unconstitutional as applied 

to Appellant, and Appellant preserved the constitutional issues for this Court’s 

review, including her due process rights. See RR: 10:2-25; 12:5-25; 13:1-5; 18:21-

24; 32:6-16; 34:10-19; 25:18-25. Appellant also made a showing that, to the extent 

allowed by the trial court, the operation of Section 161.211(a) harmed Appellant. 

Intervenors’ Petition in Intervention should have been denied. Appellant 

objected to Intervenors’ Petition in Intervention, and Appellant’s objection was 

21
tried by consent. RR 6:18; 13:9-16; 13:23-25; 14:1-16. Intervenors’ Petition in 

Intervention and Plea to the Jurisdiction did not allege facts that demonstrated the 

trial court’s subject matter jurisdiction over any claims for relief asserted by the 

Intervenor, and actually argued against any subject matter jurisdiction of the trial 

court. CR at 62-63. Intervenors’ failed to show that they could have brought all or 

part of the same suit in their own name, or that they would have been able to defeat 

all or part of the recovery if the suit had been filed against them.

PRAYER

Appellant prays that this Court reverses the Order Granting Petition in 

Intervention and Plea to the Jurisdiction signed by the trial court below, and that 

this Court remands this case back to the trial court for a hearing on the merits of 

Appellant’s Original Petition for Bill of Review. 

Alternatively, Appellant prays for whatever relief to which this Court finds 

that Appellant may otherwise be entitled.

Respectfully submitted,

BOYD LITIGATION GROUP

205 W. Louisiana Street, Suite 103

McKinney, Texas 75069

Tel: (469) 777-6129

Email: boydlitigationgroup@gmail.com

By:__________________________________

CASEY T. BOYD

State Bar No. 24059477

Counsel for APPELLANT

22
CERTIFICATE OF SERVICE

I certify that on January 31, 2019, I served a copy of the Appellant’s Brief to 

the following counsel and parties by electronic mail or via facsimile:

Respondent/Appellee’s Appellate Counsel:

Mr. John Rolater

Assistant District Attorney

Collin County District Attorney’s Office

2100 Bloomdale Road, Suite 100

McKinney, Texas 75071

Tel: (972) 548-4323

Fax: (214) 491-4860

Email: jrolater@co.collin.tx.us

Intervenors/Appellees’ Trial Counsel:

Ms. Rebecca Rowan

State Bar No. 24060729

KOONSFULLER, P.C.

1717 McKinney Avenue, Suite 1500 

Dallas, Texas 75202 

Tel: (214) 871-2727 

Fax: (214) 871-0196

Email: rrowan@.koonsfuller.com

Attorney Ad Litem in Trial Court for R.M., the Child:

Ms. Terri Daniel

State Bar No. 00796433

6675 Mediterranean Dr., Suite 407 

McKinney, Teas 75072 

Tel: (469) 519-2739 

Fax: (877) 291-1215 

Email: terri@terridaniellaw.com

CASEY T. BOYD

Counsel for APPELLANT

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05-18-01127-CV

IN THE FIFTH DISTRICT COURT OF APPEALS

AT DALLAS, TEXAS

IN THE INTEREST OF R.M., A CHILD

JILL KUTKA,

APPELLANT

TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,

APPELLEE

SHAWN INGRAM AND JENNIFER INGRAM,

APPELLEES

APPELLANT’S APPENDIX

1. Texas Family Code Section 162.211(a) Appendix Exhibit “A”

2. Texas Family Code Section 263.405 Appendix Exhibit “B”

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APPELLANT’S APPENDIX EXHIBIT “A”

25
§ 161.211. Direct or Collateral Attack on Termination Order, TX FAMILY § 161.211

 © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

Vernon's Texas Statutes and Codes Annotated

Family Code (Refs & Annos)

Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &

Annos)

Subtitle B. Suits Affecting the Parent-Child Relationship

Chapter 161. Termination of the Parent-Child Relationship (Refs & Annos)

Subchapter C. Hearing and Order

V.T.C.A., Family Code § 161.211

§ 161.211. Direct or Collateral Attack on Termination Order

Currentness

(a) 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.

(b) Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights

of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month

after the date the order was signed.

(c) A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment

of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in

the execution of the affidavit.

Credits

Added by Acts 1997, 75th Leg., ch. 600, § 1, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 601, § 2, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 1390, § 19, eff. Sept. 1, 1999.

Notes of Decisions (48)

V. T. C. A., Family Code § 161.211, TX FAMILY § 161.211

Current through the end of the 2017 Regular and First Called Sessions of the 85th Legislature

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

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APPELLANT’S APPENDIX EXHIBIT “B”

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Sec. 263.405. APPEAL OF FINAL ORDER. (a) An appeal of a final order rendered 

under this subchapter is governed by the procedures for accelerated appeals in civil cases under 

the Texas Rules of Appellate Procedure. The appellate court shall render its final order or 

judgment with the least possible delay.

(b) A final order rendered under this subchapter must contain the following prominently

displayed statement in boldfaced type, in capital letters, or underlined: "A PARTY 

AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN APPEAL IN A SUIT 

IN WHICH TERMINATION OF THE PARENT-CHILD RELATIONSHIP IS SOUGHT IS 

GOVERNED BY THE PROCEDURES FOR ACCELERATED APPEALS IN CIVIL CASES 

UNDER THE TEXAS RULES OF APPELLATE PROCEDURE. FAILURE TO FOLLOW 

THE TEXAS RULES OF APPELLATE PROCEDURE FOR ACCELERATED APPEALS 

MAY RESULT IN THE DISMISSAL OF THE APPEAL."

(b-1) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(c) The supreme court shall adopt rules accelerating the disposition by the appellate

court and the supreme court of an appeal of a final order granting termination of the parentchild relationship rendered under this subchapter.

(d) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(e) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(f) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(g) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(h) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

(i) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 75, Sec. 5, eff. September 1, 2011.

Added by Acts 2001, 77th Leg., ch. 1090, Sec. 9, eff. Sept. 1, 2001.

Amended by: 

Acts 2005, 79th Leg., Ch. 176 (H.B. 409), Sec. 1, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 526 (S.B. 813), Sec. 2, eff. June 16, 2007.

Acts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906), Sec. 4, eff. September 1, 2011.

Acts 2011, 82nd Leg., R.S., Ch. 75 (H.B. 906), Sec. 5, eff. September 1, 2011.

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