In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00239-CV
__________________
IN THE INTEREST OF K.B. AND J.B.
__________________________________________________________________
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. CIV31460
__________________________________________________________________
MEMORANDUM OPINION
Appellant Mother appeals the trial court’s entry of an Agreed Final Order in
Suit Affecting the Parent-Child Relationship (“SAPCR”) regarding her minor
children K.B. and J.B. 1 As explained below, we conclude that the order from which
the appellant appeals is void and must be vacated, and we dismiss this appeal.
1
To protect the identity of the minors, we use the initials to refer to the
children and “Mother” to refer to the appellant. See Tex. R. App. P. 9.8(b)(2).
1
Procedural Background
On December 5, 2017, the Department of Family and Protective Services
(“Department”) filed an Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship and Order Setting Hearing. Following a hearing, on December 12,
2017, the trial court entered a temporary order appointing the Department as
temporary managing conservator for the children. On November 27, 2018, the court
entered an Agreed Order for Monitored Return of the Children to [Mother], ordering
a transition plan for monitored return of the children to Mother and that the
Department would continue to serve as temporary managing conservator of the
children. The order for monitored return included the following provision:
Pursuant to § 263.403(b), Texas Family Code, this suit shall be
dismissed on ______, which date is not later than 180 days following
the date this temporary order is rendered, unless the child must be
removed from said home prior to that date.
The children were then returned to the Mother on a monitored basis on
November 27, 2018. Before the children were returned to the Mother the Department
had placed the children with foster parents. On February 4, 2019, over two months
after the children were returned to the Mother, the foster parents (“Intervenors”) filed
an intervention in the SAPCR. The Intervenors sought to be appointed the children’s
managing conservator, or in the alternative, possessory conservator.
2
On April 26, 2019, the trial court held a permanency hearing, and the matter
was set for trial on June 10, 2019. At the permanency hearing, the Department told
the court that the monitored return had been successful, and the Department was
ready to dismiss. The caseworker, the court-appointed special advocate, and Mother
agreed to dismissal of the action. The clerk’s record includes a letter to the parties’
attorneys from the trial judge stating that the case had been transferred to his court
from another judge and the trial judge believed “the dismissal date for this suit is
June 12, 2019.” The trial court held a hearing on the petition to intervene on May
10, 2019. The trial court granted the petition to intervene over the objections from
Mother.
The trial court held a “Settlement Agreement” hearing on June 7, 2019. The
Department told the court the settlement “is agreeable with the Department with the
note that the Department is going to be dismissed and not named any type of
conservator.” Counsel for the Intervenors told the court that they had reached an
agreement with Mother to be appointed managing conservator and intervenors as
possessory but that there was no agreement as to which weekend the Intervenors
would have the children, and the Intervenors’ attorney stated “[r]ight now, we just
agree it’s the first weekend unless otherwise agreed.” The trial court stated that the
Department was “getting out of it.” Counsel for the Intervenors agreed to draft an
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order for the court by the following Monday. The court stated on the record that the
agreement “needs to be signed off on by the parties and the counsel.”
Before any written agreement was signed or filed with the trial court, on June
12, 2019, Mother filed an affidavit with the court indicating she could not agree with
the Intervenors and stating in relevant part:
A hearing was held on Friday June 7, 2019 at which time I agreed
before the Court to a step-up visitation schedule with the Intervenors[.]
Their attorney [] was to prepare an Order for signing on Monday,
June 10, 2019, for my review and agreement.
I appeared in Court on Monday, June 10, 2019 at 8:30 a.m. and
[counsel for the Intervenors] did not have an Order for my review at
that time. [The Intervenors] were not present as well as the CPS
workers, their supervisors, Assistant District Attorney, [counsel for the
Department], nor any Casa representatives, and the Attorney Ad Litem
for the children[.]
Further, in an effort to set up visitation times, I met with [one of
the Intervenors] over the week-end. After some discussion, we were
unable to work out a visitation time schedule, exacerbating my concerns
of our continued long term relationship relating to my sons[.]
I also have serious concerns relating to the release of medical
records and school records of my sons.
I also have concerns relating to the restrictions on my
geographical residence and where my two boys and myself may live.
In consideration of the above, I am unable to enter into a
possessory agreement with [the Intervenors].
The matter was then set for another hearing on July 19, 2019, and on that date
the court entered an “Agreed Final Order” despite the objections from Mother. The
order appointed Mother permanent managing conservator of the children and
removed the Department as managing or possessory conservator. The Order named
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Intervenors as possessory conservator and Intervenors were granted possession and
access pursuant to terms specified in Attachment A to the order. The order also
dismissed any other existing court-ordered relationships with the children. The
Agreed Final Order included in the clerk’s record is not signed by any party. The
docket sheet includes an entry dated July 19, 2019 stating “Judgment signed over
objection of [Mother’s counsel].”
Statutory Deadlines
Mother’s first issue on appeal argues that the trial court did not have
jurisdiction to sign the final order because the lawsuit had already been dismissed
by operation of statute. The Department agrees.
Section 263.401(a) of the Family Code provides that
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. Not later than the 60th day before the day the suit is
automatically dismissed, the court shall notify all parties to the suit of
the automatic dismissal date.
Tex. Fam. Code Ann. § 263.401(a) (“Dismissal After One Year; New Trials;
Extension”).
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In this case, the trial court entered a temporary order that appointed the
Department temporary managing conservator of the children on December 19, 2017.
Without an extension under subsection (b) or (b-1), by statute the case should have
been “automatically dismissed without a court order” on December 19, 2018. Id.
Although the record shows no requests for an extension (or trial on the merits), the
trial court entered an Agreed Order for Monitored Return of the Children on
November 27, 2018.
Section 263.403 of the Family Code provides that
(a) Notwithstanding Section 263.401, the court may retain jurisdiction
and not dismiss the suit or render a final order as required by that section
if the court renders a temporary order that:
(1) finds that retaining jurisdiction under this section is in the best
interest of the child;
(2) orders the department to:
(A) return the child to the child’s parent; or
(B) transition the child, according to a schedule
determined by the department or court, from substitute
care to the parent while the parent completes the remaining
requirements imposed under a service plan and specified
in the temporary order that are necessary for the child’s
return;
(3) orders the department to continue to serve as temporary
managing conservator of the child; and
(4) orders the department to monitor the child’s placement to
ensure that the child is in a safe environment.
...
(b) If the court renders an order under this section, the court shall:
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(1) include in the order specific findings regarding the grounds
for the order; and
(2) schedule a new date, not later than the 180th day after the date
the temporary order is rendered, for dismissal of the suit unless a
trial on the merits has commenced.
Id. § 263.401(a), (b).
One hundred eighty days after the date of the monitored return was May 26,
2019. See Tex. R. Evid. 201 (a court may take judicial notice of facts not subject to
reasonable dispute). Mother argues that at the time of the June 7, 2019 hearing, when
the parties’ purported agreement was addressed, “the trial court lacked jurisdiction
over the suit because it had already been dismissed.”
We review de novo issues that implicate a court’s subject-matter jurisdiction.
In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). Several of our sister courts have
concluded that, under the current version of section 263.401, the trial court
automatically loses jurisdiction over the Department’s termination SAPCR if the
court does not commence a trial on the merits or enter a specific order of extension
by the dismissal deadline provided by section 263.401(a). See In re A.F., No. 02-19-
00117-CV, 2019 Tex. App. LEXIS 8563, at **23-27 (Tex. App.—Fort Worth Sept.
24, 2019, no pet. h.) (citing Tex. Fam. Code Ann. § 263.401(a), (b); In re M.M., No.
05-19-00329-CV, 2019 Tex. App. LEXIS 8270, at *3 (Tex. App.—Dallas Sept. 11,
2019, pet. filed) (mem. op.); In re G.X.H., No. 14-19-00053-CV, 2019 Tex. App.
7
LEXIS 5381, at **1-2 (Tex. App.—Houston [14th Dist.] June 27, 2019, no pet.
filed)); F.R. v. Tex. Dep’t of Family and Protective Servs., No. 03-17-00487-CV,
2017 Tex. App. LEXIS 11681, at *13 n.5 (Tex. App.—Austin Dec. 15, 2017, no
pet.) (mem. op.) (explaining the current version of the statute makes deadlines
jurisdictional for suits filed after September 1, 2017).
Generally, an order rendered after the trial court loses jurisdiction is void. See
In re A.F., 2019 Tex. App. LEXIS 8563, at *27 (citing State ex rel. Latty v. Owens,
907 S.W.2d 484, 486 (Tex. 1995) (per curiam); Alaimo v. U.S. Bank Tr. Nat’l Ass’n,
551 S.W.3d 212, 218 (Tex. App.—Fort Worth 2017, no pet.)). Because the trial court
had already been divested of jurisdiction before rendering the Agreed Final Order
on July 19, 2019, that order was void and did not extend the dismissal deadline. See
id.; see also In re G.X.H., 2019 Tex. App. LEXIS 5381, at *11 (explaining that a
subsequent order cannot “resurrect the trial court’s jurisdiction” following an
automatic dismissal under section 263.401). Therefore, to the extent the Agreed
Final Order purported to relate to the Department’s original petition, the order is
void for lack of jurisdiction. See In re A.F., 2019 Tex. App. LEXIS 8563, at *31.
Revocation of the Agreement
Mother’s second issue on appeal argues that the trial court erred in rendering
judgment and signing the void final order after Appellant had withdrawn her consent
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to the settlement. Assuming without deciding that the trial court retained jurisdiction
over the lawsuit as between Mother and the Intervenors, we examine whether
Mother agreed to the terms in the Agreed Final Order.
Contract law governs settlement agreements made in open court pursuant to
Rule 11. See Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (citing Padilla v. LaFrance, 907 S.W.2d
454, 460 (Tex. 1995)). Whether an agreement is legally enforceable is a question of
law. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.—
Houston [14th Dist.] 2005, no pet.); Gaede v. SK Invs., Inc., 38 S.W.3d 753, 757-58
(Tex. App.—Houston [14th Dist.] 2001, pet. denied).
“[C]onsent must exist at the time an agreed judgment is rendered.” Kennedy
v. Hyde, 682 S.W.2d 525, 528 (Tex. 1984). When parties reach a settlement
agreement in pending litigation, the trial court may render a judgment based on the
agreement so long as no party has withdrawn her consent to the agreement. Padilla,
907 S.W.2d at 461. A party may revoke its consent to a settlement agreement at any
time before judgment is rendered on the agreement, and a judgment rendered after a
party has revoked consent is void. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855,
857 (Tex. 1995); In re K.N.M., No. 2-08-308-CV, 2009 Tex. App. LEXIS 5707, at
**13-14 (Tex. App.—Fort Worth July 23, 2009, no pet.) (mem. op.). A party’s
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withdrawal of consent must be effectively communicated to the trial court. In re
Caballero, 441 S.W.3d 562, 573 (Tex. App.—El Paso 2014, orig. proceeding).
Without all parties consenting to the settlement agreement, the trial court cannot
render judgment and may only enforce the settlement agreement as a written
contract.2 Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996);
Padilla, 907 S.W.2d at 462.
The record reflects that the trial court did not render judgment on a settlement
agreement at the June 7, 2019 hearing; rather, the court instructed the parties to
prepare an order and return to court the following week. Mother filed her affidavit
revoking consent on June 12, 2019, before the trial court signed the Agreed Final
Order. Because Mother revoked her agreement before the trial court rendered
judgment, her revocation was valid and the judgment was void. See S & A, 892
S.W.2d at 857.
For the reasons explained above, we conclude that the trial court’s Agreed
Final Order signed and entered on July 19, 2019 is void. An appellate court has no
jurisdiction to consider the merits of an appeal from a void judgment. See Freedom
Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012); Ins. Co. of Pa. v.
2
The appellate record does not reflect that the Intervenors filed an action in
the trial court to enforce the Agreed Final Order as a contract, and the Intervenors
have not appeared in this appeal.
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Martinez, 18 S.W.3d 844, 847 (Tex. App.—El Paso 2000, no pet). Our jurisdiction
in an appeal from a void judgment is limited only to determining that the judgment
is void and making appropriate orders based on that determination. See In re M.K.,
514 S.W.3d 369, 380 (Tex. App.—Fort Worth 2017, no pet.). Therefore, we vacate
the Agreed Final Order and dismiss the appeal. See In re A.F., 2019 Tex. App.
LEXIS 8563, at *31; Martinez, 18 S.W.3d at 847.
ORDER VACATED; APPEAL DISMISSED.
_________________________
LEANNE JOHNSON
Justice
Submitted on October 15, 2019
Opinion Delivered December 5, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.
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