Petition for Writ of Certiorari — R. S. C., Petitioner v. Texas Department of Family and Protective Services

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Appendix A

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

We use aliases to protect the children’s identities. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).

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.

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.

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.

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.).

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 factors i); Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976)

(Holley factors ii).

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).

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)).

Discussion

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.

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).

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.

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.

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.

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 appearance 4 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.

Applicable Law

Section 262.201(o) reads as follows:

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.”).

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).

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.

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

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).

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;

(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).

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Appendix B

IN THE SUPREME COURT OF TEXAS

══════════

No. 20-0175

══════════

IN THE INTEREST OF J.J.R.S. AND L.J.R.S., CHILDREN

══════════════════════════════════════════

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

══════════════════════════════════════════

Argued October 28, 2020

JUSTICE DEVINE delivered the opinion of the Court.

This parental rights case presents two questions: (1) whether, and under what

circumstances, a trial court may order that a parent’s access to a child is solely at the discretion of

the managing conservator; and (2) whether the trial court’s issuance of an ex parte temporary order

pursuant to Texas Family Code section 262.201(o) is unconstitutional on its face or as applied to

Mother.

The court of appeals determined that the evidence was legally and factually sufficient to

support the terms of the visitation order and that the terms of the order were permissible under the

Family Code upon a finding that they were in the best interest of the children. 607 S.W.3d 400,

405–08 (Tex. App.—San Antonio 2020). It also denied Mother’s constitutional challenge to Texas

Family Code section 262.201(o). Id. at 408–10.

We hold that the trial court did not abuse its discretion in imposing a restriction on Mother’s

right of access because the court could have reasonably concluded that such a severe restriction

was in the children’s best interest. See TEX. FAM. CODE § 153.193. We decline to address Mother’s

constitutional challenges to Texas Family Code section 262.201(o) because they were rendered

moot by the trial court’s issuance of a final order. Accordingly, we affirm the judgment of the court

of appeals.

In August 2018, law enforcement responded to an aggravated robbery at a San Antonio

motel. According to Mother, the incident began when one of her clients asked her to perform

certain acts with which she was uncomfortable while prostituting herself. A struggle ensued, and

Mother’s boyfriend entered the room with a firearm and proceeded to take the client’s clothes and

money. The client chose not to press charges.

In a nearby motel room, law enforcement found Mother’s two children, J.J.R.S. and

L.J.R.S. Between both rooms, law enforcement retrieved three bags of methamphetamine less than

a gram each, a small amount of marijuana, glass pipes, and small, clear baggies. 1 The boyfriend

claimed the drugs were his. Mother stated that the unregistered firearm belonged to her but denied

any attempt to rob her client. Mother stated that she and her children were from Florida and had

been living in the motel for eight months. Police made no arrests during the incident, but Mother

called her sister—the children’s maternal aunt—to watch the children that night. The children have

been residing with Aunt and Uncle since.

The record is unclear whether the drugs were found in the children’s room or the other room.

Shortly after the incident, law enforcement referred the case to the Texas Department of

Family and Protective Services. The Department investigator first interviewed both children,

whom he perceived as wanting to protect Mother because they “[did] not want her to get into

trouble.” The Department next interviewed Aunt, who described her relationship with Mother as

estranged. Six months before the incident, Mother had contacted Aunt for the first time in two

years, asking for money to pay for a motel room. According to Aunt, the children lived in Puerto

Rico with Mother before moving to Florida and were likely born addicted to drugs. Aunt stated

she was willing to take care of the children.

The investigator then separately interviewed both Mother and her boyfriend. During his

interview, the boyfriend—who is not the biological father of J.J.R.S. or L.J.R.S.—denied any

attempt to rob the client and denied possessing a firearm. He admitted using marijuana but refused

to sign an acknowledgment-of-substance-use form. Mother also admitted using marijuana but

refused a drug test. She admitted to prostituting herself but denied any attempted robbery, stating

that her boyfriend was trying to protect her from an abusive client. Mother stated that she called

her sister only because she was not sure if she was going to jail.

To avoid legal action, the Department attempted to place the children with Aunt and Uncle.

Mother, however, refused to sign a Parental Child Safety Placement form and refused to comply

with services. The Department remained concerned for the children’s safety, believing that they

would be in immediate danger if returned to Mother because of her illegal activities, including

drug use, robbery, and prostitution.

The Department filed its original petition against Mother on August 20, 2018, requesting

orders pursuant to Texas Family Code section 262.101 for temporary sole managing

conservatorship of the children pending final disposition of the lawsuit. See TEX. FAM.

CODE §§ 262.201, 105.001(a)(1), (h). If reunification could not be achieved, the Department

sought termination of Mother’s parental rights. Id. § 161.001(b).

The day the lawsuit was filed, the trial court issued a temporary emergency order naming

the Department temporary sole managing conservator and noticed a full adversary hearing to be

held nine days later. 2 The court appointed an attorney ad litem for Mother and a separate attorney

ad litem and guardian ad litem for the children. A full adversary hearing pursuant to chapter 262

was held on September 12. Id. § 262.201. Mother was not served with a citation prior to this

hearing and was not present at the hearing, but the court nonetheless entered an order naming the

Department temporary managing conservator for the pendency of the lawsuit. See id. § 262.201(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.”). The order restricted Mother’s visitation to two visits per month

until the final trial. Mother was eventually served by publication on September 18, after the

Department stated it could not locate her.

The Department established a family service plan for Mother and the children’s biological

Father, who lived in Florida when the lawsuit was initiated. 3 Mother was uncooperative with the

Department and failed to complete any service plan goals, including demonstrating the ability to

The hearing was pushed beyond nine days and was eventually held on September 12.

When the lawsuit began, Father’s exact whereabouts in Florida were unknown to the Department.

Eventually, Father made contact with the Department and was amenable to engaging in services and having

a relationship with his children. Because only Mother appeals here, information regarding Father’s parental

rights is omitted unless relevant.

stay sober, providing basic necessities to the children, completing therapy for her diagnosed mental

health conditions, and finding stable housing. Mother did not make contact with the Department

to acknowledge her service plan or visit her children until May 1, 2019—eight months after the

lawsuit was filed. Mother arranged visitation with her children but regularly missed meetings,

attending only four visits with her children over the life of the lawsuit. By contrast, while in the

care of Aunt and Uncle, the children began attending school for the first time in two years and

regularly attended therapy, showing improvements in their physical and emotional development.

At the final trial, Department supervisor Kimberly Barnhill testified, stating that the

children had bonded with Aunt and Uncle, who were meeting their emotional needs. Barnhill

further testified that Mother could not meet the physical and emotional needs of the children

because she failed to maintain any stability, permanent housing, or contact with the children

throughout the case. Even so, Barnhill believed it was in the children’s best interest to have limited

visitation with Mother because the children missed their mom and were sad about the situation.

On cross-examination, Barnhill testified that she was opposed to once-a-month visits with

Mother at a supervised facility, instead preferring supervised visits at Aunt’s discretion because of

the “emotional and . . . drug-influenced state that Mother has been in throughout the case.” When

pressed if procedures such as clean drug tests could alleviate these concerns, Barnhill stated they

would not alleviate the concerns stemming from Mother acting “highly hysterical” on some phone

calls and not showing up to visits, which was hard on the children. Making the children wait for

Mother in the Department’s lobby was “not a very good environment . . . especially when they’re

excited to see their mom,” Barnhill believed. The “lack of stability,” she testified, is “extremely

emotionally traumatizing for them.”

Mother offered no evidence at the final trial.

Because of the children’s bond with Mother and Father’s attempt to maintain a relationship,

the Department recommended the trial court not terminate their parental rights. The guardian ad

litem recommended termination of Mother’s parental rights but stated he would be amenable to

possessory conservatorship with visitation “possibly later with a lot of services.” The court

appointed special advocate (CASA) representative recommended termination of Mother’s rights.

Based on those recommendations, the court named Aunt and Uncle permanent managing

conservators and named Mother and Father possessory conservators. The court orally stated it was

deviating from the standard possession order based on the testimony and evidence presented by

the Department.

With regard to Mother, the final order stated that she “shall have possession of the children

at times mutually agreed to in advance by the parties.” In the absence of mutual agreement, Mother

could have “supervised visitation with the children, under the terms and conditions agreed to in

advance by the managing conservator,” with 48 hours’ advance notice. Below this, in handwriting,

the trial court added, “[o]nly if the managing conservator agreed to visitation. Sole discretion.”

The court orally stated that its order was in the best interest of the children.

Mother appealed, arguing there was insufficient evidence to support the order, the order

was void for vagueness, and Family Code section 262.201(o) is facially unconstitutional. The court

of appeals affirmed. 607 S.W.3d at 405–08. First, the court determined that the trial court had good

cause to deviate from the standard possession order because Mother’s “failure to attend visits was

harming the children emotionally.” Id. at 407. Thus, requiring specific times and conditions for

Mother’s possession and access was not in the children’s best interest. Id. at 407–08. The court

further stated that 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.” Id. at 407 (quoting In re A.N., No. 10-1600394-CV, 2017 WL 4080100, at *7 (Tex. App.—Waco Sept. 13, 2017, no pet.)). Here, the court

concluded, the evidence was legally and factually sufficient to support the order. Id. at 405. As

such, the court of appeals held, the trial court did not abuse 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.” Id. (citing In re K.A.M.S., 583 S.W.3d 335, 344 (Tex. App.—Houston [14th

Dist.] 2019, no pet.)). To gain greater access, the court explained, Mother may petition the trial

court in the future if her or the children’s circumstances materially or substantially change. Id. at

407–08 (citing TEX. FAM. CODE § 156.001).

Mother filed a petition for review, arguing in this Court that (1) the court of appeals erred

in holding that vesting Aunt and Uncle with complete discretion over her access rights to the

children was permissible under the Family Code, and (2) the trial court violated her due process

rights by naming the Department temporary managing conservator, pursuant to Texas Family Code

section 262.201(o), before she received notice of the suit.

While we understand the gravity of imposing a severe restriction or limitation on access to

one’s children, we nevertheless conclude that the trial court did not abuse its discretion in vesting

the managing conservators with complete discretion over Mother’s access to the children. We do

not reach the merits of Mother’s constitutional arguments regarding Texas Family Code section

262.201(o) because they are moot.

The final order naming Mother possessory conservator gave her “possession of the children

at times mutually agreed to in advance by the parties.” In the absence of such mutual agreement,

Mother could have supervised visitation with the children in the managing conservators’ “[s]ole

discretion.” Mother argues that such an order effectively denies her the right of access to her

children.

For reasons explained below, we disagree.

“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 § 153.002. As conservatorship determinations are “intensely fact driven,” Lenz v. Lenz, 79

S.W.3d 10, 19 (Tex. 2002), the trial court is in the best position to “observe the demeanor and

personalities of the witnesses and can ‘feel’ the forces, powers, and influences that cannot be

discerned by merely reading the record,” Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—

Austin 2002, no pet.). A trial court’s determination of what is in the child’s best interest,

specifically the establishment of terms and conditions of conservatorship, is a discretionary

function. MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.—Corpus Christ–Edinburg

1990, writ denied). The trial court’s judgment will be reversed only when it appears from the

record as a whole that the court has abused its discretion. Gillespie v. Gilliespie, 644 S.W.2d 449,

451 (Tex. 1982). A trial court abuses its discretion when it acts “without reference to any guiding

rules or principles; or in other words, [when it acts] arbitrarily or unreasonably.” Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

Mother’s contention that the trial court abused its discretion presumes that the trial court

lacked the authority to tailor the visitation order as it did. The Family Code sets out a series of

directives to which a trial court must adhere when determining the appropriateness of a visitation

order. Under the Family Code, “a parent shall be appointed sole managing conservator” unless a

court finds that the appointment would not be in the best interest of the child “because the

appointment would significantly impair the child’s physical health or emotional development.”

TEX. FAM. CODE § 153.131(a). A parent who is not appointed managing conservator “shall” be

appointed possessory conservator, “unless [the court] finds that the appointment is not in the best

interest of the child and that parental possession or access would endanger the physical or

emotional welfare of the child.” Id. § 153.191. A court, based on these parameters, must then

determine the conservators’ appropriate level of possession and access.

There is a rebuttable presumption that the standard possession order provides the

reasonable minimum level of possession and access for a parent named possessory conservator

and is in the best interest of the child. Id. § 153.252. When determining whether to deviate from

the standard possession order, a court 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.” Id. § 153.256. Importantly, the terms of an order that deviates from the standard possession

order—that is, an order that “denies possession of a child to a parent or imposes restrictions or

limitations on a parent’s right to possession of or access to a child”—“may not exceed those that

are required to protect the best interest of the child.” Id. § 153.193. Further, a court must “specify

and expressly state in the order the times and conditions for possession of or access to the child,

unless a party shows good cause why specific orders would not be in the best interest of the child.”

Id. § 153.006(c) (emphasis added). 4

Nonspecific orders issued pursuant to section 153.006(c) can vary, based on the needs of

the case, as to the level of specificity provided by the trial court and the amount of discretion left

to the parties. See id. § 153.193. The type of nonspecific order at issue in this case—an “as agreed”

visitation order—falls on the opposite end of the spectrum from the standard possession order,

leaving visitation to the managing conservator’s complete discretion.

Neither party argues that the trial court lacked good cause to deviate from the standard

possession order. See id. § 153.006(c). Thus, we address whether section 153.006(c) of the Texas

Family Code relaxes the specificity requirement for possession and access orders to the point of

permitting an “as agreed” order as the one issued here. We conclude that it does.

Mother argues that Texas Family Code section 153.006(c) must have intended to permit

courts to issue less specific orders, if specificity is not in the child’s best interest, but that less

specificity does not mean no specificity. Conversely, the Department argues that the propriety of

any restriction or limitation imposed on possession or access rights depends on whether such

restrictions are in the best interest of the child. In other words, once a trial court determines that

good cause exists for a nonspecific order, the only question left is whether the extent of the

restriction or limitation under section 153.193 is in the best interest of the child. 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

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

standard possession order. TEX. FAM. CODE § 153.258(a). Here, Mother did not request findings nor does she

complain on appeal that the trial court failed to make them.

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

best interest.”). The Department argues that here, no visitation until Mother “get[s] her act

together” was in the best interest of the children because Mother’s failure to show up to scheduled

meetings caused “extreme disappointment” for the children, “manifested by crying after waiting

in the CPS lobby for long periods of time.”

Mother’s contention that the trial court lacked the authority to issue an “as agreed”

visitation order is a matter of statutory construction. “When interpreting statutes, we presume the

Legislature’s intent is reflected in the words of the statute and give those words their fair meaning.”

In re H.S., 550 S.W.3d 151, 155 (Tex. 2018) (citing In re C.J.N.–S., 540 S.W.3d 589, 591 (Tex.

2018) (per curiam)). We analyze statutes “as a cohesive, contextual whole, accepting that

lawmaker-authors chose their words carefully, both in what they included and in what they

excluded.” Id. (quoting Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017));

see also R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619,

628 (Tex. 2011) (“When the Legislature uses a word or phrase in one portion of a statute but

excludes it from another, the term should not be implied where it has been excluded.”).

When interpreting statutes, we start with the words of the statute and look first to the “plain

and common meaning of the statute’s words,” State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002),

“unless a different meaning is supplied by legislative definition,” Tex. Lottery Comm’n v. First

State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Section 153.006(c) of the Family Code

allows the trial court to issue a nonspecific order regarding a possessory conservator’s possession

and access when “good cause” exists, see TEX. FAM. CODE § 153.006(c), while section 153.193

places an outer limit on the permissible scope of restrictions on a parent possessory conservator’s

rights: such “restrictions or limitations on a parent’s right to possession of or access to a child may

not exceed those that are required to protect the best interest of the child,” id. § 153.193. Thus, in

rare cases, a severe restriction or limitation is permissible if it is in the best interest of the child.

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

Mother argues that the trial court’s order in this case, which authorized supervised

visitation with the children at Aunt and Uncle’s sole discretion, amounts to a wholesale denial of

access that section 153.193 does not authorize, regardless of best interest. Mother asserts that under

section 153.193, the court may “den[y] possession of a child to a parent” but may only impose

“restrictions or limitations” on a parent’s access to a child. TEX. FAM. CODE § 153.193. We

disagree with Mother’s characterization of the trial court’s order as a denial of access and thus

need not decide whether section 153.193 authorizes such an order.

Because the Family Code does not define these terms, we begin with the commonly

understood meanings of “deny,” “restriction,” and “limitation.” To “deny” is “to not allow

someone to have or do something.” 5 A “restriction” is something that “confines within bounds” or

“restrains,” 6 and a “limitation” is something that “bounds, restrains, or confines.” 7 In other words,

a denial is an outright refusal to allow certain conduct to occur, whereas a restriction or limitation

confines conduct to certain bounds. The trial court’s visitation order in this case falls into the latter

category. By its terms, Mother can obtain access to her children either (a) when she and the

managing conservators agree or, if they cannot reach an agreement, (b) when the managing

Deny, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/deny (last

visited May 27, 2021).

Restrict and restriction, MERRIAM-WEBSTER, https://www merriam-webster.com/dictionary/

restrict (last visited May 27, 2021).

Limitation and limit, MERRIAM-WEBSTER https://www merriam-webster.com/dictionary/limit

(last visited May 27, 2021).

conservators consent to access. In other words, the order restricts and limits Mother’s access to

her children to supervised visitation at the managing conservators’ discretion. The restriction is

undoubtedly a severe one, permissible only if necessary to protect the children’s best interest, but

it is not an outright denial that forecloses all access.

This case resembles In re A.N., which concerned an “as agreed” visitation order nearly

identical to the one at issue here. 2017 WL 4080100, at *7. In A.N., Mother’s parental rights to

one of her daughters were terminated based on endangerment and neglect, but she was named

possessory conservator of her other daughter. Id. at *5, *3. The visitation order stated that “in the

absence of mutual agreement,” Mother “shall have no visitation with the child . . . due to present

conditions and the safety concerns regarding [Mother],” unless the child’s caregivers determine

“in their sole discretion that visitation between [Mother] and [the child] is in the best interest of

the child.” Id. at *7. Mother appealed, arguing that the trial court abused its discretion by creating

an “unenforceable visitation schedule.” Id. at *6. Specifically, Mother argued that: (1) visitation

must be in the child’s best interest because she was appointed possessory conservator; (2) visitation

could only occur if the managing conservators determined it was in the child’s best interest,

amounting to no visitation at all; and (3) the terms of visitation in the trial court’s order were

ambiguous. Id.

The court of appeals determined there was sufficient evidence to find that a severe

restriction was in the child’s best interest. Id. at *7–8. Though it recognized that an “as agreed”

order should be used only in rare circumstances, the court disagreed that the terms of the order

were “tantamount to no visitation at all.” Id. The court noted record evidence that the child’s

caregivers were willing to allow supervised contact with Mother if that contact was positive,

concluding that the order’s language suggested that “it is not in [the child’s] best interest for

[Mother] to have access in the near term due to ‘present conditions’ and ‘safety concerns.’” Id.

Thus, “visitation was not completely denied, as [the child’s] caregivers were authorized to resume

visitation” when they believed it would be in her best interest. Id. at *8.

As in A.N., the record here contains legally sufficient evidence to support a finding that it

was in the best interest of J.J.R.S. and L.J.R.S. to impose a severe restriction on Mother’s access.

For one, the incident leading to the children’s removal involved Mother soliciting with an armed

boyfriend while her children waited in another motel room. Evidence collected from the scene

included drug paraphernalia that could have been accessible by the children. Once the lawsuit was

filed, Mother failed to participate in or acknowledge the lawsuit for eight months, attending only

four scheduled visits with her children. Mother’s failure to attend most visits was very hard on the

children, causing J.J.R.S. to worry about Mother’s safety and wonder if she was hurt. Prior to their

removal, both children had been out of school for nearly two years and showed signs of social and

emotional developmental issues. Mother refused all drug tests, failed to complete any part of her

service plan, and failed to obtain stable housing or a job throughout the entirety of the lawsuit.

Notably, that same lack of stability prior to the removal had been “extremely emotionally

traumatizing for [the children.]” This case presents extreme circumstances warranting a severe

restriction.

We hold that Texas Family Code sections 153.006(c) and 153.193, read in conjunction,

permit the kind of “as agreed” order at issue in this case in the narrow circumstance where such a

severe restriction is necessary to protect the child’s best interest. We further hold that legally

sufficient evidence supported the terms of the trial court’s order here.

Mother next argues that if a total denial of access serves the children’s best interest, the

trial court must terminate the parent–child relationship instead of creating a possessory

conservatorship that amounts to an effective denial of access. Again, the trial court’s order was not

a denial of access. Even if it were, Mother’s argument leads to the perverse result that a court,

upon concluding that the kind of severe restriction imposed here is necessary to protect a child’s

best interest, must irrevocably terminate a parent’s rights rather than restrict those rights and give

the parent the opportunity to seek to increase her access rights in the future.

Requiring termination of parental rights rather than a conservatorship with severe access

restrictions would place trial courts in an unimaginable bind. Such a harsh rule would force a trial

court to either allow access to a child by a possessory conservator who may immediately endanger

that child’s physical or emotional wellbeing, or conversely, force the trial court to prematurely

sever the parent–child relationship out of fear that immediate access may cause irreparable harm

to the child. Such a proposition is antithetical to the purpose of visitation orders, which strive to

balance the rights of parents with the importance of protecting children. See TEX. FAM.

CODE § 153.001(a).

For the same reason, Mother’s argument that an order that specifies “an amount of days”

is preferable over an otherwise “completely unworkable” possession order is also unavailing. 8

Whether a set of broad, enforceable guidelines is preferable to an order granting discretion to the

managing conservators requires a case-by-case basis determination of the child’s best interest.

For this proposition, Mother relies on Pickens v. Pickens, No. 12-13-00235-CV, 2014 WL 806358 (Tex.

App.—Tyler Feb. 28, 2014, no pet.), but her reliance is misplaced. Pickens did not involve an “as agreed” order, nor

did the Pickens court consider whether a complete denial of access was in the best interest of the child or permissible

under Texas Family Code section 153.006(c). See id. at *1, *4.

Further, Mother’s reliance on In re A.P.S., 54 S.W.3d 493 (Tex. App.—Texarkana 2001,

no pet.), is misplaced. In that case, Mother appealed the trial court’s modification order that named

her possessory conservator and awarded her possession of the children “at reaasonable [sic] times

and places as determined by [Father].” Id. at 495. After reviewing the record, the court of appeals

concluded that a “complete denial of access was not warranted and, from an examination of the

order, was not intended by the trial court.” Id. at 498. Further, Father offered no evidence to show

good cause, as required by Texas Family Code section 153.006(c), to issue a nonspecific order

deviating from the standard possession order. Id. As such, the court of appeals remanded with

instructions to provide more specificity because without a showing of good cause or even the trial

court’s intent to give Father total discretion over Mother’s access rights, the trial court was required

to “fashion an order that specifically articulates the times and conditions” of Mother’s access. Id.

at 499. The court did not hold that possessory conservators are entitled to a certain level of access

by virtue of the appointment alone. We decline to adopt Mother’s view that the appointment of a

parent as possessory conservator entitles the parent to a certain level of access without regard to

what is in the child’s best interest.

Here, the CASA representative and the children’s guardian ad litem recommended

termination of Mother’s rights, but the Department recommended possessory conservatorship with

access at the managing conservators’ discretion. The Department’s recommendation rested on the

children’s love for their Mother. Given the evidence, the trial court arguably could have terminated

Mother’s rights, but it chose to preserve the bond between Mother and her children while still

protecting their physical and emotional needs.

We do not sit here to question why the trial court made the choice it did except to determine

whether it was an abuse of discretion. Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959). The

Family Code permits a restriction or limitation to the extent necessary to protect the children’s best

interest. See TEX. FAM. CODE § 153.193. It does not require termination when a severe restriction

or limitation on access can also be in the best interest of the child while preserving the possibility

that the parent and child may continue to have a relationship in the future. That is, so long as the

trial court made the necessary findings that the restriction or limitation is in the children’s best

interest, the terms of the order are permissible.

Lastly, Mother urges that “as agreed” visitation orders are an impermissible delegation of

judicial authority. Specifically, Mother suggests that a growing minority of courts of appeals take

the position that placing complete discretion over parental access in the hands of a managing

conservator results in orders unenforceable by contempt. 9 Mother argues that such “as agreed”

orders leave the aggrieved parent with no recourse in the event the managing conservator

arbitrarily and capriciously withholds access because the orders are unenforceable without

objective standards. While Mother has not attempted to hold Aunt and Uncle in contempt, she

argues she could not successfully enforce this order if Aunt and Uncle denied her access to her

children. The Department disagrees, arguing that no disagreement among the Texas courts of

appeals exists because the variation in the outcomes of conservatorship cases can be explained by

what the trial court believed was in the best interest of the children in those cases.

See, e.g., infra, notes 11–14.

We have long held that “for a person to be held in contempt for disobeying a court decree,

the decree must spell out the details of compliance in clear, specific and unambiguous terms so

that such person will readily know exactly what duties or obligations are imposed upon him.” Ex

parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967) (collecting cases). Indeed, the power to enforce an

order by contempt is “an essential element of judicial independence and authority.” Ex parte

Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (citing Ex parte Browne, 543 S.W.2d 82, 86 (Tex.

1976)). But “[w]hether or not a decree is enforceable by contempt depends, not on statutory

authority, but on the nature of the decree itself.” Id. For example, in Ex parte Slavin we held that

a Father’s child-support obligations in a divorce decree were so indefinite that they could not be

enforced by contempt. 412 S.W.2d at 45. We did not render the order void for vagueness, however.

Id. Thus, while an order must be “clear, specific, and unambiguous” to be enforceable by contempt,

id. at 44, it does not follow that every order less than that is invalid.

Applying the same logic to visitation orders, when the facts are so egregious so as to

warrant a nonspecific order under which access to the children is in the sole discretion of the

managing conservator, the nature of the “as agreed” visitation order is by definition nonspecific.

See TEX. FAM. CODE §§ 153.006(c), .193. Stated another way, while the Family Code provides

that conservators may be subject to contempt for disobeying a court order, see id. § 157.001(b),

the Code does not require—nor have we ever held—that trial courts must issue orders that are

always enforceable by contempt. Thus, whether a conservator may enforce an order by contempt

depends on the contents of the order and the facts and circumstances of the particular case. 10

For example, in Hale v. Hale, No. 04-05-00314-CV, 2006 WL 166518, at *3 (Tex. App.—San

Antonio Jan. 25, 2006, pet. denied), the Court remanded an order for greater specificity because though the

“trial court concluded that it was in [the child’s] best interest not to visit with her father until a therapist

In cases where the record indicates the trial court’s intent was to issue an order imposing

specific conditions or restrictions, the “judgment must state in clear and unambiguous terms what

is required for the conservator to comply.” Hale, 2006 WL 166518, at *3 (citing Ex parte Brister,

801 S.W.2d 833, 834 (Tex. 1990)). But where, as here, the trial court intended to issue an “as

agreed” order per Texas Family Code sections 153.006(c) and 153.193 due to the severity of

Mother’s conduct and impact on the children’s physical and emotional wellbeing, the order was

intentionally nonspecific. Because such an order is permitted by Texas Family Code sections

153.006(c) and 153.193, lack of specificity is not erroneous unless the trial court failed to make

the necessary findings of good cause and best interest. See TEX. FAM. CODE §§ 153.006(c), .193.

Accordingly, we agree with the Department that the apparent disagreement among the

courts of appeals is illusory and that the disparate outcomes in the cases on which Mother relies

depend on a host of factors. For example, courts of appeals have required greater specificity in

visitation orders because (1) the trial court did not make the best-interest finding needed to restrict

or limit access; 11 (2) a showing of “good cause” to deviate from the standard possession order was

lacking; 12 (3) the order, as written, effectively denied all access, but the record revealed the trial

recommended otherwise . . . [t]he order [did] not name a therapist or provide any guidelines to ensure that

the best interests of the child are protected in these circumstances.” Id.

In re J.Y., 528 S.W.3d 679, 690–91 (Tex. App.—Texarkana 2017, no pet.).

A.P.S., 54 S.W.3d at 498; In re P.M.W., 559 S.W.3d 215, 222 n.4 (Tex. App.—Texarkana 2018, pet.

denied).

court did not intend that result; 13 or (4) the trial court may have intended to severely restrict access,

but the facts of the case did not rise to the level of an extreme circumstance. 14

Finally, Mother is not without a remedy. If Mother, Aunt, and Uncle are unable to reach

any agreement for access, Mother can move for a modification of the original order if the

circumstances have materially or substantially changed and if a modification would be in the best

interest of the children. See TEX. FAM. CODE § 156.101(1).

III

In her second issue, Mother mounts both facial and as-applied constitutional challenges to

section 262.201(o) of the Family Code.

When a governmental entity takes possession of a child without prior notice or a hearing

under Texas Family Code section 262.101—as was done here—a court generally must hold a full

adversary hearing within fourteen days. TEX. FAM. CODE § 262.201(a). At this hearing—

colloquially known as a “Chapter 262 hearing”—the parents are informed that the court may

temporarily restrict or terminate their parental rights unless they are willing and able to provide

the child with a safe environment. Id. § 262.201(m). At the conclusion of the hearing, the court

may issue temporary orders under chapter 105 of the Texas Family Code. Id. § 262.102(a); see

id. § 105.001. While the Family Code generally entitles parents to notice before this adversary

For example, in In re J.S.P., 278 S.W.3d 414, 422–23 (Tex. App.—San Antonio 2008, no pet.), the Court

remanded an order because the part pertaining to possession was “not specific enough to be enforceable.” Id. at 423.

The trial court fashioned an order requiring Father to participate in a transitory program led by a therapist, but the

order did not contain a “reporting schedule or other deadline.” Id. Without such a timeline, the Court held the order

did not meet the standards of enforceability. Id. Thus, while the trial court’s intent was to issue an order with guidelines

for Father to follow, the language of the order missed the mark. Id.; see also Hale, 2006 WL 166518, at *2–3; In re

J.Y., 528 S.W.3d at 691.

Fish v. Lebrie, No. 03-09-00387-CV, 2010 WL 5019411, at *10 (Tex. App.—Austin Dec. 10, 2010, no

pet.).

hearing, see id. § 262.109(a), a trial court may issue ex parte temporary orders if a parent’s

whereabouts are unknown and the Department is unable to serve the parent with notice before the

hearing takes place, id. § 262.201(o).

Mother argues that section 262.201(o) is facially unconstitutional because it deprives

parents of procedural due process rights to notice before the Chapter 262 hearing. Mother argues

that the provision can never be applied constitutionally because it always operates to deprive notice

to transient parents who lack stable housing. Mother also argues the provision is unconstitutional

as applied to her because she was not served with citation, either personally or by publication,

before the trial court issued a temporary order to remove her children. The court of appeals,

addressing only Mother’s facial challenge, held the statute constitutional because “the statute’s

plain language is permissive, not mandatory.” 607 S.W.3d at 409.

We do not reach the merits of the Mother’s arguments, however, because the final order in

the suit moots Mother’s constitutional challenges to the temporary order rendered pursuant to

section 262.201(o). 15

A case is moot when a justiciable controversy between the parties ceases to exist or when

the parties cease to have a “legally cognizable interest in the outcome.” State v. Harper, 562

S.W.3d 1, 6 (Tex. 2018) (quoting Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001)). Put simply,

a case is moot when the court’s action on the merits cannot affect the parties’ rights or interests.

Heckman v. Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). Any ruling on the merits of a

moot issue constitutes an advisory opinion, which we lack jurisdiction to issue. See TEX. CONST.

Courts may raise jurisdictional issues sua sponte for the first time on appeal. See Wells Fargo Bank, N.A.

v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445–

46 (Tex. 1993)).

art. II, § 1; Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex.

1993).

Here, the Department filed its original petition on August 20, 2018, and the trial court

issued temporary emergency orders the same day naming the Department temporary sole

managing conservator. On September 12, the trial court conducted the Chapter 262 hearing on the

emergency removal. The Department stated it could not locate Mother to serve her with citation

prior to the hearing. The trial court in turn exercised jurisdiction pursuant to Texas Family Code

section 262.201(o) and issued an ex parte order naming the Department temporary managing

conservator. Mother’s appointed counsel objected to the temporary order on the ground that

Mother had not received citation. The court advised that Mother could move for reconsideration

of the temporary order once she was located. After Mother was served, however, she did not seek

reconsideration of the temporary order in the trial court, electing instead to seek mandamus relief

in the court of appeals and this Court, which was denied. In re Reina S.C., No. 04-18-00682-CV,

2018 WL 6331053, at *1 (Tex. App.—San Antonio Dec. 5, 2018, orig. proceeding [mand.

denied]).

Mother again seeks review of the constitutionality of section 262.201(o)—the basis for the

temporary order authorizing the emergency removal of her children—but the trial court has since

rendered a final judgment regarding Mother’s parental rights. As such, any action on the merits

related to the prior temporary order would not affect Mother’s rights or interests. See Heckman,

369 S.W.3d at 162; In re E.R.W., 528 S.W.3d 251, 257 (Tex. App.—Houston [14th Dist.] 2017,

orig. proceeding).

***

We conclude that section 153.006(c) of the Texas Family Code permits trial courts to issue

nonspecific visitation orders and that section 153.193 allows restrictions or limitations on a

possessory conservator’s access to the extent necessary to “protect the best interest of the child.”

Here, the trial court did not abuse its discretion in imposing a severe restriction on Mother’s access

rights where the evidence reveals it was in the best interest of her children. Further, the trial court’s

final judgment in this proceeding rendered Mother’s complaints about the temporary orders moot.

Accordingly, the court of appeals’ judgment is affirmed.

___________________________________

John P. Devine

Justice

OPINION DELIVERED: June 4, 2021

Appendix C

264

267

269

275

Appendix D

Appendix E