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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-19-00360-CV

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IN THE INTEREST OF A.S. AND T.S.

________________________________________________________________________

On Appeal from the 418th District Court

Montgomery County, Texas

Trial Cause No. 17-09-10731-CV

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MEMORANDUM OPINION

This appeal originates from a suit to terminate the rights of A.S. and T.S.’s 

parents by the Department of Family and Protective Services (“the Department”).

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Appellants are the children’s paternal grandparents who filed pleadings in the 

termination suit after the trial court terminated the parents’ rights, seeking to gain 

custody of their grandchildren. In two issues, the grandparents argue that the trial 

court: (1) abused its discretion when it struck their petition in intervention without 

notice, a hearing, evidence, or a signed order and later struck their “Original 

1 We refer to the appellants as “the grandparents” and their grandchildren by 

their initials to protect their identities. See Tex. R. App. P. 9.8(b)(2).
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Petition”; and (2) abused its discretion when it dismissed the case with a partial 

nonsuit while they still had an affirmative pleading on file. We affirm.

I. Background

On September 11, 2018, the trial court terminated the parent-child relationship

of the parents to T.S. and A.S. after T.S was abused based on a traumatic hypoxicischemic injury to his brain together with multiple other fractures.2 The order 

terminating the relationship between T.S. and A.S. and their parents appoints the 

Department as their managing conservator.

On October 11, 2018, the grandparents filed a pleading in the termination case 

titled “Petition in Intervention in Suit Affecting the Parent-Child Relationship.” 

They did not file any timely post-judgment motions challenging the trial court’s 

September 2018 final order. In response, the Department moved to strike and dismiss 

the intervention and the request for temporary orders. 

Around two months later, in December 2018, the grandparents filed an 

“Original Petition in Suit Affecting the Parent-Child Relationship” (SAPCR) in the 

same cause number as the termination seeking to be named managing conservators

of the children and to grant them the exclusive right to designate the children’s 

2 The record shows that the child, previously healthy, now suffers from severe 

neurological impairment and other related health issues, requiring extensive medical 

care and therapy.
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primary residence.3 The Department moved to strike and dismiss the grandparent’s 

original petition.”

After filing their “Original Petition,” a paralegal with the law office 

representing the grandparents sent the trial court the following email:

Good Morning [trial court],

[The attorney representing the grandparents] has asked me to contact 

you. We would like to get all the court dates from December to present 

in this case, Cause # 17-09-10731. We will need transcripts from each 

of those court dates as soon as possible. And any and all notes from the 

judge on this case. Apparently, its being said that the Judge ruled

against our clients and [the grandparents’ attorney] doesn’t remember 

hearing that.

In response, the trial court printed the email and handwrote on the email, “After due 

consideration the Court declines the invitation. Signed July 17, 2019[.]” The judge 

signed the email.

October 4, 2019, the trial court signed an order dismissing the case in part as 

it pertained to A.S. because A.S. had been adopted. On October 15, 2019, the 

grandparents filed a notice of appeal, citing the trial court’s order of dismissal as the 

final appealable order. The grandparents also filed a motion for new trial on October 

21, 2019, and a First Amended Motion for Reconsideration in December, both of 

which were overruled by operation of law. 

3 We note that although this document was titled an “original petition,” the 

petition seeks to modify the trial court’s order appointing the Department as the 

children’s managing conservator after terminating their parent’s rights. 
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II. Issue One

In their first issue, the grandparents argue the trial court abused its discretion 

by striking their intervention without notice, hearing, evidence, or a signed order” 

and dismissing their original petition. According to the appellants, they “were 

absolutely denied their day in Court to prove standing and that the best interest of 

the child[ren] would be served if the child[ren] [were] placed with the family and 

paternal grandparents as managing conservators.” 

A. Petition in Intervention

A trial court has only a limited period in which to change a ruling in a final 

order. See Tex. R. Civ. P. 329b. After signing an order that functions as a final 

judgment, the trial court has plenary power to change its ruling for a period of thirty 

days unless, within thirty days, a party in the case files a motion to alter the trail 

court final order. See Tex. R. Civ. P. 329b(d). Post-judgment motions filed by a party 

to the final order add additional time during which the trial court retains its plenary 

power to alter a ruling in a final order or judgment, which begins running on the date 

the final order that functions as a final judgment was signed. See Tex. R. Civ. P. 

329b(e) (extending the trial court’s plenary power if a post-trial motion such as a 

motion for new trial is filed for “thirty days after all such timely-filed motions are 

overruled, either by a written and signed order or by operation of law, whichever 

occurs first.”). But after the trial court’s plenary power expires, any further orders or 
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judgments the trial court may sign in the case are void. See Tex. R. Civ. P. 329b(f); 

see also Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 543 

(Tex. App.—Houston [1st Dist.] 2003, no pet.). 

“A judgment is final for purposes of appeal if it disposes of all pending parties 

and claims.” McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278, 283 (Tex. 

2018) (citation omitted). Here, the grandparents were not parties to the case when 

the trial court signed the order terminating the parental relationship between T.S. 

and A.S., and their parents. Consequently, a request to intervene, which is filed by 

someone who previously was not a party to the case, is not a proper motion that is 

available to extend a trial court’s plenary power. “A petition in intervention must 

generally be made before judgment is rendered.” In re Barrett, 149 S.W.3d 275, 279 

(Tex. App.—Tyler 2004, no pet.) (citing Citizens State Bank v. Caney Inv., 746 

S.W.2d 477, 478 (Tex.1988); First Alief Bank v. White, 682 S.W.2d 251, 252 

(Tex.1984)). Stated another way, a trial court cannot consider an intervention filed 

after a judgment was signed when the judgment has not been set aside. In re H.G., 

267 S.W.3d 120, 122 n.1 (Tex. App.—San Antonio 2008, pet. denied). 

No one argues the trial court’s September 2018 order terminating the parentchild relationship, which is the order relevant to the grandparents’ first issue 

complaining about the trial court striking their intervention, is not a final order. Since 

the grandparents were not parties to the case when the trial court signed that order, 
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they no longer had the right to intervene. That’s because “an intervention must

generally be filed before entry of judgment; if filed after judgment, it may not be 

considered unless and until the judgment has been set aside.” In re H.G., 267 S.W.3d 

at 122 n.1 (citations omitted). Here, the grandparents did not have the right to 

intervene in a lawsuit the trial court had already disposed of by signing a final 

judgment. For that reason, we hold the trial court did not abuse its discretion when 

it “decline[d] the [grandparents’ email] invitation[]” to consider their untimely 

petition to intervene. 

B. Original Petition

In December 2018, after the trial court denied the grandparents’ intervention, 

they filed an “Original Petition” to be “designated as the conservator who has the 

exclusive right to designate the primary residence of the children.”4 The District 

Clerk filed that petition in the same cause number as the termination, trial court cause 

number 17-19-10731-CV. 

The Original Petition seeking to modify custody rights over T.S. and A.S does 

not include the information required to allow the courts to know that the person who 

filed the suit has standing to file a SAPCR. In any suit seeking to alter who can 

designate a child’s primary residence filed within one year of the order, “the person 

filing the suit shall execute and attach an affidavit” that contains supporting facts 

4 The substance of this pleading makes clear it is a modification.
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and allegations that: (1) the child’s present environment endangers the child; (2) the 

person having the exclusive right to designate the child’s primary residence is the 

one seeking or consenting to the modification, and it is in the child’s best interest; 

or (3) that the person who has the exclusive right to designate the child’s primary 

residence voluntarily relinquished primary care and possession of the child for at 

least six months prior to the modification, and the modification is in the child’s best 

interest. See Tex. Fam. Code Ann. § 156.102(a), (b). The grandparents filed their 

“Original Petition” seeking to modify the managing conservatorship within one year 

of the termination order naming the Department as the managing conservator. 

Therefore, the statute applied and required the affidavit we describe above. But the 

grandparents failed to file such an affidavit with their “Original Petition” or at any 

time in the suit. See id.

Further, the Family Code provides that “[t]he [trial] court shall deny the relief

sought and refuse to schedule a hearing for modification . . . unless the court 

determines, on the basis of the affidavit, that facts adequate to support an allegation 

listed in Subsection (b) are stated in the affidavit.” Id. § 156.102(c) (emphasis 

added). Where no affidavit is filed with facts supporting a necessary allegation, the 

plain language of the statute requires the judge to deny the relief and refuse to 

schedule a hearing. See id. Given the grandparents’ failure to include the required

affidavit, the trial court had no choice but to deny their request to modify custody.
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See id.; see also In re A.S.M., 172 S.W.3d 710, 716 (Tex. App.—Fort Worth 2005, 

no pet.) (concluding trial court did not err in concluding 156.102 required appellant 

to file affidavit and dismissing suit for failure to do so). At least two of our sister 

courts have held that it is error for a court to conduct a hearing on a request to modify 

custody when the party has failed to file the required affidavit to demonstrate 

standing. See Serafin v. Seale, No. 03-09-00516-CV, 2010 WL 4910047, at *2 (Tex. 

App.—Austin Dec. 2, 2010, no pet.) (mem. op.) (concluding it was error for trial 

court to set a hearing on petition for modification in absence of affidavit); In re 

A.C.S., 157 S.W.3d 9, 18 (Tex. App.—Waco 2004, no pet.) (same).

We overrule the grandparents’ first issue. 

III. Issue Two

In their second issue, the grandparents argue that the trial court erred by 

granting the October 4, 2019 dismissal of this case when they had affirmative 

pleadings on file. According to the grandparents, by dismissing the case, they “were 

denied ever having the ability to present any evidence to the Court regarding their 

pleadings.” The grandparents’ argument lacks merit. As explained above, the 

grandparents failed to include the affidavit required by section 156.102 of the Family 

Code, a choice that allowed the trial court to deny their request for relief. While the 

grandparents filed a motion for new trial, they failed to include any information in 

that motion, including an affidavit like the one required by section 156.102, to 
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demonstrate they have standing to be heard on their claims. See Tex. Fam. Code 

Ann. § 156.102(a)-(c); In re A.S.M., 172 S.W.3d at 716; In re A.C.S., 157 S.W.3d at

18. Because grandparents have not shown the trial court erred by ordering the case 

dismissed, we overrule issue two.

IV. Conclusion

Having overruled the grandparents’ issues, we affirm the trial court’s 

judgment.

AFFIRMED.

 ________________________________

 CHARLES KREGER 

 Justice

 

Submitted on February 19, 2021

Opinion Delivered October 21, 2021

Before Golemon, C.J., Kreger and Horton, JJ.