In the Interest of X.M.B.E., a Child v. the State of Texas

Opinion filed February 6, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00237-CV
__________

IN THE INTEREST OF X.M.B.E., A CHILD

On Appeal from the County Court at Law
Erath County, Texas
Trial Court Cause No. 23CVCC-00119

OPINION
Section 263.401(b) of the Family Code allows a trial court to retain certain
suits that involve the parent-child relationship on its docket if it makes the necessary
findings. See TEX. FAM. CODE ANN. § 263.401(b) (West Supp 2024). In the
underlying suit, the trial court proceeded to a final hearing, and ultimately terminated
Appellant’s parental rights, after it had denied Appellant’s multiple requests to
extend the automatic dismissal date. On appeal, we consider, among other things,
whether the trial court, by denying Appellant’s requests, properly applied the
extension criteria set forth in Section 263.401(b-3). See id. § 263.401(b-3).
The genesis of this appeal originates from the trial court’s decision to
terminate the parental rights of the mother and father of X.M.B.E.1 Only the mother,
Appellant, has appealed from the trial court’s order. She raises four issues on appeal
contending that: (1) the evidence is legally and factually insufficient to support the
trial court’s termination finding under subsection (O) that she failed to comply with
the provisions of her court-ordered family plan of service; (2) she proved by a
preponderance of the evidence that she made a “good faith effort” to comply with
her service plan requirements, and should not be blamed for her alleged
noncompliance; (3) the evidence is legally and factually insufficient to support the
trial court’s finding that terminating her parental rights is in the child’s best interest;
and (4) the trial court abused its discretion by denying her requests to extend the
automatic dismissal date. See id. §§ 161.001(b)(1)(O), (b)(2), (d), 263.401.
Because we conclude that the trial court abused its discretion when it refused
to extend the dismissal date, we reverse in part and remand.
I. Factual and Procedural Background 2
On September 8, 2023, the Department of Family and Protective Services (the
Department) was granted temporary managing conservatorship of X.M.B.E., and the
child was thereafter placed with her paternal aunt and uncle in Burleson, Texas. At
a status hearing on November 7, 2023, the trial court approved Appellant’s and the
father’s family plans of service and adopted them as orders of the court. Appellant’s
family plan of service required her to:
• obtain and maintain stable, legal employment for six consecutive months
prior to September 9, 2024, the automatic dismissal date, and provide proof
thereof;

1
We use initials to refer to the child. See TEX. R. APP. P. 9.8(b).
2
Because of our disposition, we will not address Appellant’s sufficiency complaints. As such, we
limit our rendition of the facts to those which are necessary to resolve this appeal.
2
• obtain and maintain appropriate housing that provides a safe environment
for the child;
• maintain regular contact with the Department and provide any change in
address or telephone number within three days;
• complete a parenting skills course;
• complete a drug and alcohol assessment and follow the recommendations
of the provider;
• submit to random drug testing within four hours of the Department’s
request;
• complete psychological and psychosocial evaluations;
• complete a mental health assessment through “MHMR”3;
• participate in individual counseling; and
• complete a Victim’s Intervention and Prevention Program (VIPP)
assessment and comply with the issued recommendations.
The trial court held a permanency hearing on May 28, 2024. Bailey Markum,
the assigned “permanency specialist with Our Community-Our Kids” (OCOK),4
reported that Appellant had completed her parenting classes, a psychological
evaluation, a psychosocial evaluation, was “participating in her counseling
services,” and “was successfully discharged” from VIPP counseling in March.
Appellant and the father were living together in “clean and appropriate . . . stable
housing,” and Appellant was “employed cleaning houses.” Appellant completed an
initial drug and alcohol assessment in October 2023, but Markum submitted a
referral for another assessment because Appellant and the father asked to change
service providers. According to Markum, Appellant “has submitted to random drug

3
“MHMR” refers to “state-provided mental health services.” See J.B. v. Tex. Dep’t of Fam. &
Protective Servs., No. 03-24-00159-CV, 2024 WL 3906786, at *5 (Tex. App.—Austin Aug. 23, 2024, no
pet.) (mem. op.).
4
Our Community Our Kids is a contractor that provides the Department with foster care and case
management services. See In re L.L., No. 02-23-00132-CV, 2023 WL 5767483, at *2 n.9 (Tex. App.—
Fort Worth Sept. 7, 2023, pet. denied) (mem. op.).
3
testing when asked, and her last drug test was negative.” Finally, Markum explained
that Appellant’s visits with the child “have been going great,” and the unspecified
“concerns during a couple of visits . . . have been addressed.”
The Department’s goal at the time of the permanency hearing was family
reunification. At that time, Appellant had not yet completed her “mental health
assessment with MHMR,” and Markum explained that both parents needed to “fully
engage in their drug and alcohol assessments and their substance abuse counseling.”
At the conclusion of this hearing, the trial court informed Appellant and the father:
[Y]ou’re both partially compliant with your service plan. You’re doing
almost everything I’ve asked. There are just a few hiccups along the
way. You can address those and get past those, because if you don’t,
this isn’t going to turn out very well, and I really want it to turn out.
You’ve heard me say, I believe kids do best with their parents, and there
is a good possibility that this child would be returned to you all. I want
[X.M.B.E.] to return home to you all. . . . The goal is family reunification
at this time.
The trial court then advised the parents that their parental rights could be terminated
unless they were willing and able to provide the child “with a safe, appropriate, drug-
free home environment.”
On June 15, 2024, nearly three weeks after the permanency hearing, Appellant
called the police to report that the father “had beaten her up.” Officers John Duffield
and Trevor Augustus with the Stephenville Police Department responded to the call
and observed that Appellant had “a visible knot to her left eye area.” Appellant was
“visibly upset,” but was not confrontational. The father, on the other hand, was
confrontational and uncooperative, so the officers “had to use force” to detain him.
Appellant told Officer Duffield that she and the father were arguing in their bedroom
when “he slapped [her] three times in the face,” “punched [her],” then “ended up
biting [her].” After speaking to the father and observing that he had no visible
injuries, the officers found Appellant’s version of events to be credible and arrested
4
the father for assaulting Appellant. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)
(West Supp. 2024). An order for emergency protection was issued, and the father’s
criminal case was still pending at the time of the final hearing. See TEX. CODE CRIM.
PROC. ANN. art. 17.292(a) (West Supp. 2024).
The parties appeared for the final hearing on August 27, 2024. At the outset,
Appellant requested an extension of the automatic dismissal date, which was
September 9, 2024. Appellant informed the trial court that the father had assaulted
her in June, and that the protective order was still in effect. Because of the assault
and her fear of other possible physical altercations with the father, “[s]he had to flee
to Oklahoma” to live with her mother, which “caused a disruption in her services
and an inability . . . to complete her service plan [requirements].” The trial court
denied Appellant’s initial extension request and found that “there [were] no
extraordinary circumstances” because Appellant “still had at least nine months to
complete her service plan.”
At the final hearing, the Department presented the testimony of Markum and
Officers Duffield and Augustus. According to Markum, Appellant had not
maintained steady employment since the May 28 permanency hearing, and her
“housing situation” had changed. Appellant “did have steady housing for a while”
until she moved to Oklahoma to live with her mother, on whom she relies for
financial support. Prior to that time, Appellant relied primarily on the father for
financial support.
Markum testified that Appellant did not complete her substance abuse course
or mental health assessment before moving to Oklahoma, but “did remain in contact
with her counselor” who “helped her get in touch with MHMR in Oklahoma.”
Markum verified that Appellant “did go to MHMR, but [she did not] know if
an assessment was done. . . . [She] was told that MHMR did not provide [any]
recommendations, but [I have received] no word on whether an assessment was done
5
or not.” During her testimony, Appellant confirmed that she sought mental health
services in Oklahoma, but did not receive a mental health assessment for
recommendations because “they don’t do it.” When she attempted to complete this
service plan requirement, she “told them exactly what [Markum] told [her] . . . she
wanted them to give a recommendation on stuff that [she] need[s] to do, and they
told [her] that they do not give recommendations. It’s a place you go to if you feel
like you need the help.”
Markum expressed her belief that X.M.B.E. would not be safe in Appellant’s
current home environment, but then explained the following:
[MARKUM]: I have not had a chance to see the home to be able to give
a judgment on that.
[ATTORNEY AD LITEM]: Is it that you haven’t been able to go out
there and she cooperated, or what’s the situation with that?
[MARKUM]: So, with that, I have not been able to go out there and I
was giving her some time once she moved up there to kind of get settled
and everything, and then her mom was in an accident and required
surgery.
[ATTORNEY AD LITEM]: So you don’t know what the home
environment is like?
[MARKUM]: No, ma’am.
On further cross-examination, Markum agreed that it “was no fault of [Appellant’s]”
that Markum had not seen the home in Oklahoma. Appellant testified that Markum
never asked to inspect her mother’s home there, and never asked “to do a walk-
through with Zoom or something like that.”
Appellant’s last in-person contact with X.M.B.E. was on June 22, 2024. She
relies on her mother for transportation, but her mother was involved in an accident
on July 6, 2024. Markum stated that Appellant is “allowed Zoom visits and
FaceTime calls with [X.M.B.E.],” but does not exercise these visitation options

6
regularly. However, Appellant testified that she had participated in video chats with
X.M.B.E. and had never refused visits with her whenever it was offered.
Markum opined that it was in X.M.B.E.’s best interest to remain with her aunt
and uncle because “[t]hat home is stable and able to provide her with everything that
she needs,” “[t]hey’re loving, they’re nurturing,” and “[t]hey’re all that she’s known
pretty much throughout this entire case.” Markum further stated that it was not in
X.M.B.E.’s best interest to return to Appellant “[d]ue to the stability factors as far
as financial stability,” and that she did not believe that Appellant had sufficiently
addressed the reasons for X.M.B.E.’s removal. Markum never expounded on the
reasons for the child’s removal, and the Department did not offer the removal
affidavit in support of its petition seeking temporary managing conservatorship of
X.M.B.E. Likewise, Appellant’s service plan was not offered at the final hearing—
in fact, no relevant exhibits were offered—but the trial court nevertheless took
judicial notice “of everything that’s been filed in this case at all prior hearings.” 5
Appellant twice reurged her request for an extension of the dismissal date as
the final hearing progressed: once during the Department’s case-in-chief because
“she had no control over the fact that Ms. Markum is now saying her home is not
safe”; and a second time at the close of the evidence. The trial court denied both

5
Texas courts have repeatedly expressed concerns regarding underdeveloped records in parental
termination cases and find themselves reiterating that “none of the [matters presented at] previous hearings
constitute evidence that can support the trial court’s order terminating a parent’s rights.” See In re E.F.,
591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.) (“Given the constitutional rights of the
parents in these proceedings, the future placement of the children involved, and the effect such placement
will have on their lives . . . we urge the trial court and the parties to more completely develop the evidence
at trial, so the appellate record is commensurate with the finality of parental termination.”); see also In re
Z.R.M., 665 S.W.3d 825, 829 n.6, 831 (Tex. App.—San Antonio 2023, pet. denied) (collecting cases and
“reluctantly conclud[ing] . . . that the evidence is legally and factually sufficient to have permitted the trial
court[’s]” best interest finding despite the paltry record); In re M.A.J., 612 S.W.3d 398, 417 n.24 (Tex.
App.—Houston [1st Dist.] 2020, pet. denied); In re M.R., No. 13-22-00304-CV, 2022 WL 17844215, at
*5–6 (Tex. App.—Corpus Christi–Edinburg Dec. 22, 2022, no pet.) (mem. op.) (The best interest
determination was not supported by sufficient evidence, which “spanned only approximately fifty-eight
pages of the reporter’s record, contained only one exhibit which was unrelated to [the appellant-mother],
and included testimony from only two witnesses.”). “The only evidence that can support the trial court’s
order is [the] evidence admitted at trial.” E.F., 591 S.W.3d at 142 n.4.
7
requests and explained that it had “handled this case from the very beginning” and
“handled every court hearing,” and is “familiar with this family and the facts that
brought . . . this child . . . into the Department’s care.” Despite its observation that
“the Department could have worked a little harder at the end” to return X.M.B.E. to
the parents, the trial court terminated Appellant’s parental rights under
Section 161.001(b)(1)(O) and found termination to be in the best interest of
X.M.B.E. This appeal followed.
II. Discussion
In her fourth issue, which we conclude is dispositive, Appellant asserts that
the trial court abused its discretion when it denied her requests to extend the
automatic dismissal date pursuant to Section 263.401(b). See FAM. § 263.401(b).
We review a trial court’s decision to grant or deny an extension requested under
Section 263.401(b) for an abuse of discretion. In re L.C.C., 667 S.W.3d 510, 516
(Tex. App.—Eastland 2023, pet. denied) (citing In re M.G., 585 S.W.3d 51, 58 (Tex.
App.—Eastland 2019, no pet.)). A trial court abuses its discretion by acting
unreasonably or arbitrarily, or by misapplying the law to the established facts of the
case. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth 2008, pet. denied);
see Huynh v. Blanchard, 694 S.W.3d 648, 674 (Tex. 2024); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a trial court does not
abuse its discretion “when it simply exercises that discretion in a different manner
than reviewing appellate courts might.” Low v. Henry, 221 S.W.3d 609, 620 (Tex.
2007).
A. The Purpose of Section 263.401(b-3)
In a parental termination proceeding, a trial on the merits must commence by
“the first Monday after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator.”
FAM. § 263.401(a). The failure to comply with this deadline without a valid
8
subsection (b) extension deprives the trial court of jurisdiction over the suit, and
results in its automatic dismissal. Id. Section 263.401(b) permits the trial court to
retain the suit on its docket only if the trial court finds that: (1) “extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the [D]epartment”; and (2) “continuing the appointment of the
[D]epartment as temporary managing conservator is in the best interest of the child.”
Id. § 263.401(b).
“[A]ctions that [are caused by and] considered to be the parent’s fault will
generally not constitute extraordinary circumstances.” In re M.S., 602 S.W.3d 676,
680 (Tex. App.—Texarkana 2020, no pet.) (internal quotation marks omitted) (The
mother’s confinement was the result of her actions and was not an extraordinary
circumstance.); In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *3 (Tex.
App.—Fort Worth Aug. 6, 2020, pet. denied) (mem. op.) (“[P]arents cannot blunder
their way into extraordinary circumstances.”). For example, a parent’s failure to
timely begin his or her service plan requirements does not constitute an extraordinary
circumstance. See, e.g., In re J.M., No. 02-21-00346-CV, 2022 WL 872542, at *4
(Tex. App.—Fort Worth Mar. 24, 2022, no pet.) (mem. op.) (“Father’s inability to
complete services because of and after his incarceration was the consequence of his
own actions,” and thus was not an extraordinary circumstance.); see also In re H.S.,
No. 02-23-00367-CV, 2024 WL 1207304, at *16–17 (Tex. App.—Fort Worth
Mar. 21, 2024, pet. filed) (mem. op.) (the mother’s failure to timely begin working
her service plan did not constitute an extraordinary circumstance) (citing In re
O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet. denied)).
Consequently, if a parent, by choice, fails to comply with a service plan and
then moves for an extension of the statutory dismissal date to complete the plan’s
requirements, the trial court will not abuse its discretion if it denies the parent’s
extension request. See S.B. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-22-
9
00476-CV, 2023 WL 402206, at *3 (Tex. App.—Austin Jan. 26, 2023, no pet.)
(mem. op.) (citing In re Y.G., No. 01-22-001810CV, 2022 WL 3362953, at *9 (Tex.
App.—Houston [1st Dist.] Aug. 16, 2022, no pet.) (mem. op.)).
On appeal, Appellant relies on Section 263.401(b-3), claiming that she made
a “good faith effort” to complete her service plan requirements. In 2021, the
legislature amended Section 263.401 to include subsection (b-3), which provides:
A [trial] court shall find under Subsection (b) that extraordinary
circumstances necessitate the child remaining in the temporary
managing conservatorship of the department if:
(1) a parent of a child has made a good faith effort to
successfully complete the service plan but needs additional
time; and
(2) on completion of the service plan the [trial] court intends
to order the child returned to the parent.
Act of Apr. 28, 2021, 87th Leg., R.S., ch. 8, § 9, 2021 Tex. Sess. Law Serv. 10, 15.
(emphasis added). Because of its recent enactment, judicial guidance concerning
the proper construction and application of subsection (b-3) is scant. As such, we
believe that an interpretation of subsection (b-3)’s purpose and intent is required.
“Statutory construction is a question of law, and review is conducted de
novo.” City of Round Rock v. Rodriguez, 399 S.W.3d 130, 133 (Tex. 2013). “Our
ultimate purpose when construing a statute is to discover the Legislature’s intent,”
and the statute’s text is the best indication of such intent. Id.
The phrase “good faith effort” in the context of a parent’s compliance with
their court-ordered service plan is also found in Section 161.001(d) of the Family
Code. See FAM. § 161.001(d). We presume that the legislature enacted
Section 263.401(b-3) consistent with, and knowledge of, the prevailing judicial
understanding of “good faith effort” as that phrase has been interpreted under
Section 161.001(d)(2). See JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481,
486 (Tex. 2019) (construing statutory text under the presumption that the legislature
10
enacted the statute “with full knowledge of the existing condition of the law,”
including common law, “and with reference to it”) (quoting In re Pirelli Tire, L.L.C.,
247 S.W.3d 670, 677 (Tex. 2007)).
“In ascertaining a term’s meaning, courts look primarily to how that term is
used throughout the statute as a whole.” Tex. Dep’t of Transp. v. Needham, 82
S.W.3d 314, 318 (Tex. 2002). Therefore, statutory terms should be interpreted
consistently in every part of a statute. Id. To that end, we look to relevant judicial
interpretations as to what constitutes a parent’s “good faith effort” to comply with
the provisions of a court-ordered service plan under Section 161.001(d)(2). See In
re Facebook, Inc., 625 S.W.3d 80, 92 (Tex. 2021) (“[W]hen faced with a statute that
reasonably lends itself to multiple readings, we promote stability and predictability
in the law by adopting the position unanimously taken by other courts if the text
permits.”).
We first note, however, that Section 161.001(d)(2), in addition to requiring a
parent’s “good faith effort” to comply with his or her service plan, includes a
provision that the parent’s alleged noncompliance cannot be “attributable to any
fault of the parent.” See FAM. § 161.001(d)(2) (emphasis added). Of particular
significance is the absence of a no-fault requirement in Section 263.401(b-3). We
recognize that a “good faith effort” necessarily entails, to some degree, a lack of
culpability for a parent’s noncompliance. Nevertheless, the mandate of subsection
(b-3) is clear: if a parent has made a “good faith effort” to comply with his or her
service plan and in turn needs additional time to satisfy the plan’s requirements, and
the trial court intends to return the child to the parent upon the parent’s completion
of the service plan, the trial court shall find that extraordinary circumstances
necessitate the child remaining in the temporary managing conservatorship of the
Department. FAM. § 263.401(b-3).

11
B. Section 263.401(b-3): Extraordinary Circumstances
We and several of our sister courts have addressed a panoply of parents’
excuses for their failure to complete their service plans, and have made it clear that
a parent’s obstinance, apathy, intentional delay, or outright refusal to engage in
services is the antithesis of a “good faith effort.” See, e.g., In re Z.R.E.B., No. 11-
23-00233-CV, 2024 WL 968965, at *6 (Tex. App.—Eastland Mar. 7, 2024, no pet.)
(mem. op.) (The mother’s incarceration for the first seven months while the case was
pending did not excuse her “persistent disregard of other material requirements”
after her release.); In re B.R.T., No. 04-22-00416-CV, 2023 WL 29381, at *3–4, *6
(Tex. App.—San Antonio Jan. 4, 2023, no pet.) (mem. op.) (The mother did not
establish that she made good faith efforts because her noncompliance was due to her
choice to reschedule appointments and drug tests, and she did not maintain
employment because she was pregnant.); In re B.A., No. 09-20-00216-CV, 2021 WL
1217334, at *8–10 (Tex. App.—Beaumont Apr. 1, 2021, no pet.) (mem. op.) (The
father did not make a good faith effort to comply with service plan—he gave
“pushback,” “did not make any efforts to work services,” and did not take it
seriously.). On the other hand, parents’ compliance with their service plans “as far
as [they are] able to under the circumstance[s]” will generally constitute “good faith
efforts.” In re A.D., No. 12-17-00334-CV, 2018 WL 6191116, at *7 (Tex. App.—
Tyler Nov. 28, 2018, no pet.) (mem. op.); see also In re J.R., No. 11-24-00185-CV,
2024 WL 5160456, at *4–6 (Tex. App.—Eastland Dec. 19, 2024, no pet. h.) (mem.
op.) (incarcerated father made a good faith effort to comply with his service plan
because he “completed the services made available to him” in jail, “and his
noncompliance was attributable to his pretrial confinement”).
The Third Court of Appeals addressed the propriety of a parent’s request for
an extension of the dismissal date due to the parent moving from Texas during the
pendency of the case. See S.B., 2023 WL 402206, at *3. In S.B., the mother moved
12
to Michigan three months before the final hearing “without the court’s approval,”
and could not afford to pay for services there that were otherwise “provided free of
charge in Texas.” Id. The mother also never obtained employment or housing and
had only seen her child once—a communication via Zoom—since she moved to
Michigan. Id. The trial court denied the mother’s extension request. Id. On appeal,
the court held that the trial court “could have reasonably determined that [the mother]
waited too long to begin trying to comply with her service plan and that any
impediment to her completing her services was a result of her own decision to move
outside of Texas.” Id.
The circumstances in S.B. are distinguishable from the matter before us—
namely, Appellant’s reasons for moving from Texas to Oklahoma, and her genuine
attempts to complete her service plan requirements after moving there. Appellant
had complied with all but a few of her service plan requirements before the father
assaulted her in their home. The Department described this encounter as “a
spectacular physical blow-up where [the father] brutally assaulted [Appellant].”
Thus, this attack alone could arguably have been deemed an extraordinary
circumstance in and of itself. As a result, and suddenly without housing,
transportation, and financial support, Appellant sought refuge with her mother.
While in Oklahoma, based on her counselor’s and Markum’s directions, Appellant
located mental health services—“just not in the way that suited the Department.”
See In re R.J.G., 681 S.W.3d 370, 383 (Tex. 2023) (finding insufficient evidence for
termination of the mother’s parental rights based on the mother’s noncompliance
with her service plan).
Markum also conceded that she was not “able to give a judgment on” the
safety and stability of Appellant’s current living arrangement because she “was
giving [Appellant] some time . . . to kind of get settled.” This is, therefore, not a
typical scenario in which a parent chose and intended not to comply with their
13
service plan. See S.B., 2023 WL 402206, at *3. Even with Appellant’s unforeseen
upheaval, she nevertheless made genuine attempts and took affirmative steps to
comply with the provisions of her court-ordered service plan pursuant to
Section 263.401(b-3)(1). Further, assuming that “parental fault” is or should be a
relevant consideration in this analysis, and we do not hold that it is, we cannot say
that Appellant created the circumstances that necessitated her extension requests. In
this instance, the uncontroverted evidence shows that Appellant made a “good faith
effort” to comply with the requirements of her service plan and needed additional
time to do so.
Moreover, and importantly, we note that the trial court expressed a clear
intention to return X.M.B.E. to Appellant upon Appellant’s completion of her
service plan’s requirements. See FAM. § 263.401(b-3)(2). As set forth above, the
trial court advised Appellant and the father during the May 28 permanency hearing
that “there is a good possibility that [X.M.B.E.] would be returned” to them if they
addressed certain concerns and completed their service plan requirements. Indeed,
circumstances can and do change throughout the pendency of termination
proceedings, and the Department may ultimately present clear and convincing
evidence that termination of Appellant’s parental rights is necessary. However,
when Appellant first requested an extension of the dismissal date, other than
Appellant’s proffer that she “had to flee to Oklahoma” after being assaulted by the
father, no evidence to support the Department’s basis for termination had been
presented to the trial court. Further, even after hearing all the testimony that
corroborated Appellant’s arguments, the trial court lamented: “I hate this
for [X.M.B.E.]. I get no joy out of making this finding . . . . I wish this had
worked out differently.” Therefore, we conclude that the second requirement of
subsection (b-3)—the trial court’s intent to return the child to the parent upon the
parent’s completion of the service plan—has been met.
14
Here, the record shows that (1) Appellant made a “good faith effort” to comply
with and complete her service plan requirements, (2) she needed additional time to
do so, and (3) the trial court intended to return X.M.B.E. to Appellant upon the
completion of her service plan. FAM. § 263.401(b-3). In that regard, and because
of the trial court’s expressed intention, pursuant to the clear directive of
subsection (b–3), it was required to find that extraordinary circumstances existed for
X.M.B.E. to remain in the temporary custody of the Department. Id. The trial court
abused its discretion when it did not so find.
C. Section 263.401(b): Best Interest of the Child Finding
An extension of the dismissal date is not required based on a finding of
extraordinary circumstances alone—it must also be in the child’s best interest to
“continu[e] the appointment of the department as temporary managing conservator.”
Id. § 263.401(b).
For clarity, we note that both Appellant’s and the Department’s briefs refer to
matters and statements that are included in the removal affidavit attached to the
Department’s original petition seeking temporary managing conservatorship of
X.M.B.E. As we have discussed, the Department presented no evidence at trial to
address the reasons for X.M.B.E.’s removal. Moreover, the trial court’s judicial
notice of its file and records cannot encompass the truth of the allegations in such
material. M.G., 585 S.W.3d at 57; In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—
San Antonio 2012, no pet.); Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.
App.—Austin 1994, no writ). For example, a trial court may not take judicial notice
of the truth of a removal affidavit’s factual contents. See J.E.H., 384 S.W.3d at 870);
see also In re B.D.A., 546 S.W.3d 346, 363–64 (Tex. App.—Houston [1st Dist.]
2018, pet. denied) (collecting cases regarding judicial notice); In re T.J., No. 11-19-
00259-CV, 2020 WL 746765, at *3 (Tex. App.—Eastland Feb. 13, 2020, no pet.)
(mem. op.) (Because the removal affidavit was not admitted at trial, it “cannot be
15
considered by this court, nor could it have been considered by the trial court.”). That
is not to say that a removal affidavit may never be relevant; it may be considered in
some circumstances, such as to show “what the trial court relied on in determining
whether removal was justified.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013).
However, even if we assume that the trial court did consider the affidavit, we
nevertheless conclude that extending the automatic dismissal date was justified and
in X.M.B.E.’s best interest.
The legislature enacted Section 263.401 to encourage the prompt resolution
of Department-initiated termination proceedings. In re G.X.H., 627 S.W.3d 288,
292 (Tex. 2021). In determining whether to grant an extension under
Section 263.401(b), the focus and paramount consideration is on the needs of the
child. In re J.S.S., 594 S.W.3d 493, 501 (Tex. App.—Waco 2019, pet. denied); In
re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied). In
opposing Appellant’s extension requests and in support of its reasons for
termination, the Department primarily relied on the stability of X.M.B.E.’s
placement, even calling them her “new family.” But the child’s needs are generally
presumed to be best served in the care of a parent who has demonstrated the ability
to act in the child’s best interest. See FAM. § 153.001 (Texas public policy is to
“assure that children will have frequent and continuing contact with parents who
have shown the ability to act in the best interest of the child.”) (emphasis added).
The evidence presented by the Department at the final hearing focused, to a
degree, on the father’s violence and positive drug tests, as well as Appellant’s recent
move to her mother’s home in Oklahoma, a home that the Department never visited.
In light of Appellant’s requests, the trial court had three opportunities in which to
extend the automatic dismissal date, including after evidence had been presented that
substantiated Appellant’s good faith efforts and reasons for the disruption in her
services. The automatic dismissal date had not previously been extended, and the
16
Department’s sole ground for seeking to terminate Appellant’s parental rights was
her failure to comply with her service plan requirements. We are mindful of the
“potential misuses of (O),” and the supreme court’s caution against terminating the
parent-child relationship based on a trial court’s subsection (O) finding or a parent’s
status as a victim. See In re A.P., 672 S.W.3d 132, 137 (Tex. 2023) (Young, J.,
concurring); In re A.L.R., 646 S.W.3d 833, 836 (Tex. 2022) (per curiam). In this
case, Appellant, X.M.B.E.’s biological mother, actively pursued and participated in
services both before and after the father assaulted her. Based on the circumstances
before us, Appellant’s requests for additional time to continue her efforts to meet her
service plan requirements with the hope of preserving the parent-child relationship
indicate that it was in X.M.B.E.’s best interest at the time to continue the
appointment of the Department as her temporary managing conservator while
Appellant strived to comply. The trial court abused its discretion by implicitly
finding otherwise when it denied her extension requests.
“[T]he choices the Legislature made in crafting and amending the text of
Section 263.401” further reinforces our conclusion. See In re J.S., 670 S.W.3d 591,
597 (Tex. 2023) (“The starting point for determining statutory meaning is to examine
both the literal text and its context; and part of the statutory context includes the
history of the statute in question.”) (quoting Stredic v. State, 663 S.W.3d 646, 659
(Tex. Crim. App. 2022)). The legislature has amended Section 263.401 four times
since 2005 to emphasize “the hefty stakes of these proceedings . . . which
incorporate heightened protections against government interference with parents’
fundamental liberty interest in the care, custody, and control of their children.” J.S.,
670 S.W.3d at 599. “In recognition of this interest, all branches of Texas
government have implemented strong due-process protections for parents facing
termination of their parental rights.” Id. And “[w]e are not at liberty to provide trial

17
courts with more flexibility in these cases than the Legislature clearly specified they
should have.” Id. at 600.
We conclude that the trial court abused its discretion when it denied
Appellant’s requests to extend the automatic dismissal date. Accordingly, we
sustain Appellant’s fourth issue. Because the resolution of this issue is dispositive
of this appeal, we need not reach the other issues raised by Appellant. See TEX. R.
APP. P. 47.1. Further, our holding does not alter the trial court’s appointment of the
Department as X.M.B.E.’s managing conservator. See In re J.A.J., 243 S.W.3d 611,
615–17 (Tex. 2007).
III. This Court’s Ruling
We reverse the order of the trial court insofar as it terminated Appellant’s
parental rights, and we remand this cause to the trial court for further proceedings
consistent with this opinion. See TEX. R. APP. P. 44.1(b). Any proceedings on
remand must be commenced within 180 days of this court’s mandate. See TEX. R.
APP. P. 28.4(c).

W. STACY TROTTER
JUSTICE

February 6, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

18