Full Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-26-00060-CV ___________________________ IN THE INTEREST OF J.K., A CHILD On Appeal from the 78th District Court Wichita County, Texas Trial Court No. DC89-CV2025-1073 Before Birdwell, Bassel, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION The trial court dismissed J.A.J.’s1 (Mother’s) bill of review for want of jurisdiction pursuant to Texas Family Code Section 161.211(a).2 We will reverse and remand. I. Background The relevant facts of this case are best presented in a chronological outline. A. Original SAPCR * February 22, 2021: Appellee J.K. (Father) filed a Suit Affecting the Parent–Child Relationship (SAPCR) in the 89th District Court of Wichita County naming Mother as the respondent and J.K. (Child) as the subject of the case. This petition sought to have Father and Mother appointed joint managing conservators of Child but did not ask for termination of Mother’s parental rights. * June 24, 2022: Mother’s counsel filed an Application for a Temporary Restraining Order admitting that the trial court had continuing exclusive jurisdiction of the suit. * June 27, 2022: The trial court granted Mother’s temporary restraining order but vacated it later that same day. 1 To protect the identity of the child subject to this case, we use initials to refer to the child and both parents. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2). Mother’s parental rights were terminated in a default judgment dated April 5, 2 2024. Mother sought to have that judgment set aside by the bill of review in question. Section 161.211(a) provides that “Notwithstanding Rule 329, Texas Rules of Civil Procedure, the validity of an order terminating the parental rights of a person who has been personally served or who has executed an affidavit of relinquishment of parental rights or an affidavit of waiver of interest in a child or whose rights have been terminated under Section 161.002(b) is not subject to collateral or direct attack after the sixth month after the date the order was signed.” Tex. Fam. Code § 161.211(a). 2 * July 28, 2022: Mother’s motion to recuse the presiding judge was granted, resulting in the case being transferred to the County Court at Law but still bearing the original district court case number. * May 23, 2023: According to Father’s Brief, after a trial in which both parties appeared with counsel, a Final Order was entered in the Original SAPCR.3 According to Father’s Brief, it was that order that formed the basis for his subsequent Original Petition to Modify the Parent–Child Relationship. B. SAPCR Modification and Termination of Parental Rights * July 12, 2023: Father filed his Original Petition to Modify the Parent–Child Relationship according to his Brief. * September 11, 2023: According to Father’s Brief, Mother’s attorney accepted personal service of the Second Amended Petition to Modify the Parent–Child-Relationship and related requests for extraordinary relief. Also, according to Father’s Brief, on November 1, 2023, Mother was served with Citation for the Third Amended Petition to Modify Parent–Child Relationship and various requests for extraordinary relief and notice of hearing. * January 3, 2024: Father filed his Original Petition to Terminate Parent–Child Relationship and, in the alternative, Fourth Amended Petition to Modify Parent–Child Relationship and Request for Extraordinary Relief, which was personally served on Mother on that same date by a Wichita County deputy sheriff. Mother was ordered to appear on January 12, 2024, at 1:30 PM. * January 12, 2024: According to Father’s Brief: Mother failed to file an answer and failed to appear at the hearing for Temporary Orders; the hearing was conducted after the court found that she 3 Uncontroverted factual statements from the appellee’s brief may be accepted as true. Schwarz v. Pully, No. 05-14-00615-CV, 2015 WL 4607423, at *5 (Tex. App.—Dallas Aug. 3, 2015, no pet.) (mem. op.); Redman v. Bennett, 401 S.W.2d 891, 896 (Tex. App.— Tyler 1966, no writ); see also 6 McDonald & Carlson, Tex. App. Prac. § 39:6 (updated Feb. 2026) (“The appellate court will accept as true the facts stated by a party unless another party contradicts them.”). All factual statements from Father’s Brief referenced in this opinion are not controverted by Mother. 3 had been properly served and notified; Mother received the signed Temporary Orders through the electronic filing system and she opened the Temporary Orders at 4:25 PM that day; and Mother did not file a response or objection after receiving the Temporary Orders in the termination suit. Mother agrees that the Temporary Orders entered following the hearing on January 12, 2024 “recited that the court had jurisdiction over the case and all parties.” * January 18, 2024: According to Father’s Brief: a Second Amended Order to Appear was filed that ordered Mother to appear on March 28, 2024, and included language that “[a] final hearing on all matters as set before the Court, as filed in the above-numbered and entitled cause, will be held in the above referenced cause”; Mother was served with the order on February 14, 2024 pursuant to another order that authorized substituted service on Mother through her e-mail address and her Instagram account. Mother admits she received this service by email and Instagram on February 14, 2024. * March 27, 2024: According to Father’s Brief: Mother, using her e-service address, filed her “Affidavit of Disqualification Cause and Show Cause” seeking recusal of the presiding judge, Mother did not file an objection to the Second Amended Order to Appear or ask for a continuance of the March 28 hearing; she only requested the removal of the judge. Mother confirms in her Brief that she filed a pro se “Affidavit of Disqualification Cause and Show Cause” seeking Judge Butler’s recusal on March 27, 2024. * March 28, 2024: According to Father’s Brief: the Eighth Administrative Judicial Region Judge signed an Order Summarily Denying Affidavit of Disqualification Cause and Show Cause; that order was sent through the electronic filing system to Mother, as well as to her former attorneys-of-record. * March 28, 2024: According to Father’s Brief, the “final hearing” in the termination suit did not begin until after the Order Summarily Denying Affidavit of Disqualification Cause and Show Cause was rendered on March 28. * March 28, 2024: Father’s Petition to Terminate Parent–Child Relationship was heard by the trial court. Mother failed to appear after having been given due notice, a default judgment was taken, 4 and after hearing evidence, the court rendered judgment terminating Mother’s parental rights. * April 2, 2024: Mother was electronically served notice through the electronic filing system that a proposed final order terminating her parental rights was submitted to the trial court at 4:41 PM. Per Father’s Brief, Mother viewed the proposed order terminating parental rights on April 2, 2024, at 4:42 PM. * April 5, 2024: The trial court signed its Order Terminating Parental Rights. Mother received notice of the file-marked Order Terminating Parental Rights through the electronic filing system. In relevant part, the Order Terminating Parental Rights was based on clear and convincing evidence pursuant to Section 161.001(b)(1)(A), (D), (E), and (J)(ii) of the Texas Family Code, and not an unrevoked affidavit of relinquishment of parental rights. The order provided that “[t]he [c]ourt, having examined the parties’ pleadings and having heard evidence and argument of counsel, finds that all necessary residence qualifications and notice prerequisites are legally met,” and thus “the [c]ourt finds that it has jurisdiction over this case and all the parties.” Additionally, the Order Terminating Parental Rights stated, “[Mother] made a general appearance, and after due notification of this hearing date, failed to appear and has defaulted.” Mother did not file a motion for new trial in the termination case. C. Bill of Review Mother filed her Origial Petition for Bill of Review on May 30, 2025. She filed her First Amended Petition for Bill of Review on October 23, 2025.4 In it, she asserted 4 Although the First Amended Petition for Bill of Review was filed less than seven days before the hearing on the Original Petition for Bill of Review, the First Amended Petition was the live pleading because a plea to the jurisdiction is not a trial under Rule 63’s seven-day filing rule. See McDaniel v. Crowley Ind. Sch. Dist., No. 02-24-00053-CV, 2025 WL 876777, at *1 n.2 (Tex. App.—Fort Worth Mar. 20, 2025, pet. denied) c.f. Tex. R. Civ. P. 63. 5 multiple grounds in support of her bill of review including deprivation of due process because of lack of notice of trial in the termination proceeding. Father filed a plea to the jurisdiction under Texas Family Code Section 161.211(a) because the bill of review had been filed more than six months after the termination order was signed. Tex. Fam. Code § 161.211(a). The trial court granted the plea to the jurisdiction under Section 161.211(a) and dismissed the bill of review. This appeal ensued. II. Standards of Review We review a challenge to a court’s subject matter jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Section 161.211(a) “is a distinct type of jurisdictional time bar to suit.” C.M.C. v. Tex. Dep’t of Fam. & Protective Servs., 696 S.W.3d 185, 189 (Tex. App.—Houston [1st Dist.] 2024, pet. denied), cert. denied, 146 S. Ct. 213 (2025); In re A.A.C.C., No. 10-24-00197-CV, 2026 WL 1180213, at *3 (Tex. App.—Waco Apr. 30, 2026, no pet.) (mem. op.). Any of several procedural tools may be used to challenge a trial court’s subject matter jurisdiction including a plea to the jurisdiction. Amboree v. Bonton, 575 S.W.3d 38, 42–43 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The standards of review are basically the same. Id. at 43. As stated by the Texas Supreme Court, When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders’ intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in 6 jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. [Cnty. of Cameron v.] Brown, 80 S.W.3d [549,] 555 [Tex. 2002]. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See Bland [Indep. Sch. Dist. v. Blue], 34 S.W.3d [547,] 555 [(Tex. 2000)] (confining the evidentiary review to evidence that is relevant to the jurisdictional issue). When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable. Id. at 554. Then, in a case in which the jurisdictional challenge implicates the merits of the plaintiffs’ cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. . . . If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 226–28. In pleas to the jurisdiction where there is a challenge to the existence of jurisdictional facts, the court’s review mirrors that of a traditional summary judgment motion. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). If the movant meets his burden to prove his challenge to jurisdiction then the opposing party is required to show a disputed material fact exists regarding jurisdictional facts. Id. If a fact issue exists, the trial court should deny the plea. Id. But if the relevant evidence is 7 undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law. Id. III. Analysis Mother presents four issues: 1. Whether the trial court erred in granting the plea to the jurisdiction and dismissing [Mother]’s bill of review for lack of jurisdiction when her live petition alleged the underlying termination judgment was void for lack of subject[ ]matter jurisdiction, lack of standing, violations of the UCCJEA, and constitutionally inadequate notice of the termination trial setting. 2. Whether Texas Family Code [Section] 161.211 bars a bill of review as a matter of law when the petitioner alleges the termination judgment is void or was obtained in violation of fundamental due process, notwithstanding the Texas Supreme Court’s holding in In re E.R., 385 S.W.3d 552 (Tex. 2012), that [Section] 161.211 does not foreclose a challenge when the parent received no constitutionally adequate notice. 3. Whether the underlying termination judgment was subject to bill-of-review relief because the notice of hearing (a) referenced enforcement proceedings rather than termination of parental rights, (b) did not clearly notify [Mother] that termination would be adjudicated, and (c) was served only 42 days before the hearing, in violation of the 45-day minimum required by Texas Rule of Civil Procedure 245 for a first trial setting in a contested case. 4. Whether the trial court could dismiss the bill of review on a jurisdictional plea without allowing adjudication of [Mother]’s allegations that she was prevented from presenting meritorious defenses by fraud, concealment, and constitutionally inadequate notice, unmixed with any negligence on her own part. Mother’s first argument, which is dispositive, can be summarized as follows: Section 161.211(a) cannot bar her bill of review because she did not receive constitutionally required timely notice of the March 28 termination hearing. 8 In this case, Father pled lack of jurisdiction because of the applicability of Section 161.211(a)—Mother was personally served with the petition seeking to terminate her parental rights and the judgment terminating her parental rights was signed more than six months before the filing of the bill of review, in contravention of Section 161.211(a). Father proved that fact through the termination judgment and its date and the date of the filing of the bill of review. He therefore established that he was entitled to judgment unless Mother established an avoidance to the jurisdiction argument.5 Mother pleaded that the termination judgment was void because she did not receive constitutional due process. Termination judgments that are void because of constitutional due process deprivation are not subject to Section 161.211(a)’s bar. E.R., 385 S.W.3d at 566–67. It is uncontroverted that Mother only received forty-three days’ notice of “the final hearing” in the termination case—a bench trial. It was also the first trial setting of the case based on the record. Mother contends, and we agree, that she was entitled to a minimum of forty-five days’ notice of this first trial setting and that failure to provide her such notice was a violation of her due process rights. Ray v. Tottenham, No. 01-22-00695-CV, 2023 WL 4872978, at *3 (Tex. App.—Houston [1st Dist.] Aug. 1, 2023, no pet.) (mem. op.) (forty-two days’ notice of first trial setting in a divorce case 5 The courts of appeal disagree regarding whether Section 161.211(a) is a statute of limitations or a jurisdictional bar. See Von Falkenhorst v. Ford, No. 01-20-00864-CV, 2022 WL 2812022, at *2–3 (Tex. App.—Houston [1st Dist.] July 19, 2022, no pet.) (mem. op.) (collecting cases). We need not decide that question since Section 161.211(a) was affirmatively raised in the trial court. 9 violated Rule 245 and due process rights); see also Highsmith v. Highsmith, 587 S.W.3d 771, 778–79 (Tex. 2019); In re Marriage of Mowafy, No. 07-26-00166-CV, 2026 WL 2178986, at *2 (Tex. App.—Amarillo July 28, 2026, no pet.) (mem. op.); Hildebrand v. Hildebrand, No. 01-18-00933-CV, 2020 WL 4118023, at *4–5 (Tex. App.—Houston [1st Dist.] July 21, 2020, no pet.) (mem. op.); Blanco v. Bolanos, 20 S.W.3d 809, 811–12 (Tex. App.—El Paso 2000, no pet.); Tex. R. Civ. P. 245. Father contends that the termination hearing was not a “contested” matter under Rule 245 because Mother had not filed an answer or other pleading objecting to the trial and therefore she was not entitled to forty-five days’ notice of the first trial setting. See Brown v. Brown, 521 S.W.2d 730, 732 (Tex. App.—Houston [14th Dist.] 1975, no writ). We disagree. First, the termination judgment recites that Mother entered a general appearance. A general appearance, albeit not being a “standard form” answer, is all that is necessary to entitle a party to notice of proceedings in a case. Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992). A party appears if she files a document that identifies the parties, the case, and their current address. Id.; see also Hughes v. Habitat Apartments, 860 S.W.2d 872, 872–73 (Tex. 1993) (filing of pauper’s affidavit was sufficient to constitute an appearance requiring notice of subsequent proceedings); Santex Roofing & Sheet Metal, Inc. v. Venture Steel, Inc., 737 S.W.2d 55, 56 (Tex. App.—San Antonio 1987, no writ) (“Texas courts have always been reluctant to uphold a default judgment without notice where some response from the defendant is found in the record.”). Here, Mother filed 10 what would be generally characterized as a motion to recuse the sitting judge on the day before the final hearing. It was filed using the electronic filing system listing her email address. Although the motion is not in the record on appeal, Father admitted that it was received by Father’s counsel and overruled with great dispatch by the regional presiding judge. Thus, there is no reason to believe it did not contain the cause number and the electronic address information for opposing counsel. We hold that the filing of the recusal motion constituted an appearance such that the final hearing on March 28, 2024, was a contested hearing under Rule 245. Therefore, Mother was constitutionally entitled to at least forty-five days’ notice of the March 28 hearing, and she did not receive it. The termination judgment of April 5, 2024, was therefore ineffective. See Ray, 2023 WL 4872978, at *3. IV. Conclusion We sustain Mother’s first issue as it relates to deprivation of due process because of lack of the required notice of the termination hearing rendering the termination judgment ineffectual. Having so ruled, we need not address the remainder of her issues. See Tex. R. App. P. 47.1. We reverse the trial court’s Order of Dismissal for Lack of Jurisdiction and remand the case to the trial court for further proceedings. 11 /s/ Mike Wallach Mike Wallach Justice Delivered: November 5, 2026 12