In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00278-CV ___________________________
IN THE INTEREST OF Q.C. AND P.C., CHILDREN
On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-686108-20
Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Appellant K.C. (Mother) appeals the trial court’s judgment modifying her
conservatorship rights, child-custody arrangements, and child-support obligations. She
raises six issues in her original opening brief, eight in her amended opening brief,
three more in her reply, and numerous others in miscellaneous motions filed with this
court. But Mother is bound to the issues raised in her opening brief—specifically, in
her original opening brief. And as she concedes, none of those issues were briefed in
accordance with the Rules of Appellate Procedure. Plus, even if she had obtained
leave to raise new issues in her amended opening brief, her eight amended complaints
also lack merit. Therefore, we will affirm.
I. Background Mother and Father share two daughters, and in 2021, Father petitioned to
modify the conservatorship, custody, and child-support arrangements. The case
continued for four years, and while much of what occurred has no bearing on this
appeal, a scattering of pretrial rulings, mid-trial motions, and trial court findings
remains relevant.
A. Pretrial Rulings
At one point relatively early in the case, Mother filed a no-evidence motion for
summary judgment. See Tex. R. Civ. P. 166a(i).1 Mother’s motion is missing from the
Rule 166a has since been amended, but the “amendments apply only to a 1
motion for summary judgment filed on or after March 1, 2026” and are thus
2 appellate record, as is Father’s response. Regardless, the trial court denied Mother’s
motion.
Later, Mother sought to pre-admit Father’s allegedly deficient discovery
responses as deemed admissions. Again, the discovery responses are missing from the
appellate record. But whatever the responses’ contents, the trial court denied Mother’s
requested relief, ruling that it would not treat Father’s responses as deemed
admissions.
B. Initial Trial
The parties then proceeded to a bench trial in August 2023. The record gives
no indication that either party filed a written request for a jury before the trial began,
nor did either party object when the bench trial commenced. As the judgment recites,
“A jury was waived.” See Tex. R. Civ. P. 216.
After the presentation of evidence concluded, the trial court interviewed both
children in chambers, even though the children were under the age of 12 at the time.
See Tex. Fam. Code § 153.009(a) (providing that, upon application, a trial court “shall
interview in chambers a child 12 years of age or older and may interview in chambers
a child under 12 years of age”). Then, the trial court announced its decision in a letter
ruling.
inapplicable here. Sup. Ct. of Tex., Final Approval of Amendments to Rule 166a of the Texas Rules of Civil Procedure, Misc. Docket No. 26-9012 (Feb. 27, 2026). All citations to Rule 166a refer to the prior version of the Rule.
3 But not long thereafter, Father moved to reopen the evidence, and the trial
court partially granted the motion and heard additional evidence and argument.
Mother failed to appear at the November 2023 trial on the reopened evidence,
though. So when she subsequently moved for a new trial, the trial court granted the
motion but only as to the evidence it had heard in November, i.e., as to the reopened
evidence.
C. Mid-Trial Motions
Before the trial court could conduct a new trial on the reopened evidence,
Mother filed motions for mid-trial relief. Many of these motions—though relevant to
her appellate complaints—are missing from the appellate record.
For example, Mother filed a motion for a jury trial, but the motion is not in the
appellate record. Either way, the trial court heard arguments on the motion and
verbally denied it at a mid-trial hearing in April 2024.
Similarly, Mother filed a mid-trial motion for an emergency restraining order,
but the motion is not in the appellate record. However, again, the trial court heard
arguments on the motion in April 2024. In fact, the transcript from that hearing
reflects that Mother filed her motion during a recess and sought to present evidence
on it that day. But the trial court explained that it would not hear evidence that day
and would instead decide whether temporary relief was warranted based on the
document itself. See Tex. R. Civ. P. 680 (“No temporary restraining order shall be
granted without notice to the adverse party unless it clearly appears from specific facts
4 shown by affidavit or by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before notice can be served and a hearing
had thereon.”). Mother protested, alluding to video evidence and expert testimony
that she had intended to offer at the hearing. Nonetheless, the trial court maintained
its ruling and set the restraining-order motion for a full evidentiary hearing on another
day.
Meanwhile, Mother also renewed a previously withdrawn request for
accommodations under “the Americans with Disabilities Act [(ADA)] and other
[unspecified] relevant federal and state laws.”2 Unlike the other mid-trial motions
mentioned, this motion appears in the appellate record. And in it, Mother asserted
that she had cognitive disabilities3 that necessitated a wide range of accommodations.
The trial court granted several of Mother’s requested accommodations, including
allowing “a helper” to sit with her at counsel table and giving her additional time to
present her case. But the trial court denied Mother’s request for “Communication
Access Realtime Translation (CART) for real-time transcription,” explaining that it
When the trial court held a hearing on Mother’s request for ADA 2
accommodations in January 2024, Mother’s counsel indicated that because Mother “[wa]s now represented[,] . . . [t]he ADA requests . . . [were] unnecessary,” and Mother’s counsel “d[id] not have any ADA requests on file.” Mother filed her amended motion for accommodations after her counsel withdrew.
Mother’s amended motion stated that she had “multiple disabilities” as well as 3
“an acquired brain injury post-COVID.”
5 did not have access to that technology and its court reporter was not able to provide
real-time transcription.
D. Trial, Findings, and Judgment
With these rulings in place, the trial court heard the final days of reopened trial
evidence in May 2024. Then, the court issued a letter ruling appointing Father as sole
managing conservator and Mother as possessory conservator; establishing the custody
arrangements; detailing the trial court’s “findings on child support pursuant to [Family
Code] Section 154.130”; and explaining its “reasons . . . for deviating from the
[statutory] guidelines for possession of and access to the children.” [Capitalization
altered.] See Tex. Fam. Code § 153.258(a) (providing that, when “the possession of the
child varies from the standard possession order, . . . on request by a party, the court
shall state in writing the specific reasons for the variance”). The trial court’s
“reasons . . . for deviating from the [statutory] guidelines” included findings that
Mother had, for example,
• “stole[n] $1,000.00 from [one child’s] account”;
• “maintain[ed] . . . that [one] child . . . suffers from conditions the child does not have”;
• “engaged in at least one physical altercation [with one child] . . . resulting in a minor injury to [that child]”;
• “installed an app on the children’s phone” and “co-opted the name and likeness of one of the child[ren]’s friends” to “circumvent the [trial] court’s orders for electronic access to the children between possession periods”;
6 • “expresse[d] to the children that [she] and the children w[ould] not be following the rules that the [trial c]ourt ha[d] ordered”; and
• “endangered [the children’s] physical . . . [and] emotional well being.” These findings were reiterated in the trial court’s subsequent final judgment.
Nonetheless, Mother filed a request for findings of fact and conclusions of law,
followed by tardy notices of past-due findings.4 See Tex. R. Civ. P. 296–98. The trial
court did not issue additional findings or conclusions.
E. Appellate Proceedings
Mother then appealed the trial court’s judgment. Although her appellate brief
was due in January 2025, she requested and received multiple extensions before
ultimately filing her brief in May 2025. Despite the lengthy preparation time, her
opening brief’s purported legal analysis—which advanced six appellate issues—
spanned just five pages with zero record references and a citation to a nonexistent
case. Cf. Tex. R. App. P. 38.1(i).
Three months later, on the day Father’s brief was due, Mother moved for leave
to file an overhauled amended brief. Mother conceded that her original opening brief
4 Mother’s request for findings was filed 20 days after the judgment was signed. Compare Tex. R. Civ. P. 296 (stating that a request for findings and conclusions “shall be filed within twenty days after judgment is signed”), with Tex. R. Civ. P. 298 (stating that, after the trial court issues findings, a party may request additional or amended findings “within ten days after the court sends the original findings and conclusions”). She then filed a tardy notice of past-due filings more than a month later, and more than a month after that, she filed a second notice of past-due findings. See Tex. R. Civ. P. 297 (stating that, if a trial court fails to issue findings of fact and conclusions of law after a party’s timely request, then “within thirty days after filing the original request,” the requestor must file a notice of past-due findings).
7 had not complied with the Rules of Appellate Procedure and she stated that her
amended opening brief “correct[ed the] technical deficiencies, incorporate[d] accurate
citations to the record and legal authority, and present[ed] the substantive arguments
in a clear, organized manner.” Mother expressly represented that her “amendment
w[ould] not expand issues”; it would merely “reorder[ the] arguments for clarity.” We
granted Mother’s motion for leave based on these representations.
But as it turned out, Mother’s amended brief was nearly three times the length
of her original brief and it raised new and different appellate issues.5 Thus, Father—
who had already responded to Mother’s original opening brief—found it necessary to
prepare a second responsive brief. See ERC Midstream LLC v. Am. Midstream Partners,
LP, 497 S.W.3d 99, 108 n.2 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting
that court “rarely, if ever, addresses issues raised for the first time in amended or
supplemental briefs because . . . [doing so] would potentially extend indefinitely the
period in which such briefs could continue to be filed” (internal quotation marks
omitted)).
Yet, even after Mother filed—and raised new issues in—her amended opening
brief, she filed a reply brief raising more issues, and she filed motions that attempted
to expand the issues still further. Indeed, Mother filed more than fifteen motions over
5 Furthermore, Mother’s amended opening brief cited to portions of case law that did not exist and quoted statements nowhere to be found in the cited case law.
8 the course of her appeal. Seven of those motions remain pending, 6 and because they
implicate the scope of our review, we turn there first.
II. Mother’s Appellate Motions Mother’s still-pending motions fall into four categories:
• (1) two post-submission motions to supplement the record with evidence that was not before the trial court at the time it rendered judgment;7
• (2) a motion challenging a vexatious-litigant order allegedly entered against Mother in a severed cause;
• (3) two motions raising new appellate complaints about the trial court’s judgment;8 and
6 Before Mother filed her amended opening brief, she moved for emergency relief and to supplement the record, which we denied. She also moved to strike the trial court’s findings, which we carried with the case. Then, after Mother filed her amended opening brief, she moved to strike Father’s responsive brief. We denied the motion, so Mother filed a motion for leave to file a supplemental brief, which motion we carried with the case. She also filed a motion to supplement the appellate record with “post-judgment medical documents,” which we carried with the case.
Additionally, Mother filed a motion for temporary orders, and when that motion was denied, she filed another motion for temporary orders, along with three other motions. When all four motions were denied, she filed four new motions seeking a rehearing of each denied motion. The motions for rehearing were carried with the case. 7 Mother’s motions seek to supplement the record with “post-judgment medical documents.” One of the motions also urges us to take judicial notice of three other judicial proceedings—including an unspecified justice court proceeding—as evidence “that the [alleged ADA] access violations at issue in this appeal were not isolated.” 8 Specifically, Mother filed a motion to strike the trial court’s allegedly improper findings of fact and conclusions of law and a motion to file a supplemental brief. Mother’s motion to strike complained of the findings’ allegedly improper placement in the judgment. Cf. infra Section III.C.2. Meanwhile, even though Mother represented that her supplemental brief “d[id] not raise new issues,” it attempted to raise multiple
9 • (4) two post-submission motions that—in addition to raising new appellate issues—seek temporary relief pending appeal. 9 All of these motions fail.
First, we decline to supplement the record post-submission, see Aluminum
Chems. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 49, 50–51 (Tex. App.—Texarkana 2000,
order) (denying request to supplement record post-submission when supplementation
would delay disposition), and we cannot consider evidence that was not before the
trial court anyway, see Baylor Scott & White, Hillcrest Med. Ctr. v. Weems, 575 S.W.3d 357,
366–67 (Tex. 2019) (denying motion to supplement record and reiterating that “the
supplementation rules cannot be used to create new evidence” and, for evidence to be
considered on appeal, it “must have been admitted at the trial court”); Gen. Elec. Co. v.
Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (“Our system is
founded upon a belief that trial courts should first be given the opportunity to
consider and weigh factual evidence[; p]ermitting challenge to a judgment based on
affidavits first filed in the appellate court undermines this judicial structure.”).
Second, Father’s quest to deem Mother a vexatious litigant was severed from
this cause, so any vexatious-litigant order entered in that severed cause is beyond the
scope of this appeal. See Tex. R. Civ. P. 41; cf. Schieffer v. Patterson, 433 S.W.2d 418, 419
new issues—including new constitutional complaints, new arguments regarding “[s]ubsequent events” that occurred “months after trial,” and new challenges to the severed vexatious-litigant order.
Mother seeks rehearing of her previously denied motion for temporary orders, 9
and she seeks a stay of the Attorney General’s collection of child support.
10 (Tex. 1968) (reiterating rule that an order of severance “effectively separates the
controversy into two causes”).
Third, Mother cannot raise new appellate issues outside of those raised in her
opening brief. See Tex. R. App. P. 38.1(f) (requiring appellant’s brief to identify issues
presented), 38.9 (explaining that briefs must “acquaint the court with the issues in a
case”); see also Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 64–65 (Tex.
1998); MedStar Funding, LC v. Willumsen, 651 S.W.3d 569, 572 (Tex. App.—Houston
[14th Dist.] 2022, no pet.) (supp’l op. on reh’g); Craaybeek v. Craaybeek, No. 02-20-
00080-CV, 2021 WL 1803652, at *4 (Tex. App.—Fort Worth May 6, 2021, pet.
denied) (mem. op.).
And fourth, as for Mother’s requests for temporary relief, those requests are—
or soon will be—mooted by our disposition of this appeal.
Thus, all of Mother’s pending motions are denied. Our review is limited to the
trial court record and the appellate issues preserved in Mother’s opening brief.
Of course, that raises the question: Which opening brief?
III. Mother’s Appellate Issues Although Mother’s original opening brief raises six issues, her amended
opening brief abandons two, reframes four, and adds what we construe as another
four.10 Then, her reply brief tacks on three more.
10 Mother’s amended opening brief purports to raise five issues: (1) “legal insufficiency and structural error”; (2) the trial court’s alleged failure to make
11 Mother’s reply brief does not present a close call—“[t]he Texas Rules of
Appellate Procedure do not allow parties to add a new issue in their reply brief that
was not discussed in their original brief.” Bookout v. Shelley, No. 02-22-00055-CV, 2022
WL 17173526, at *20 (Tex. App.—Fort Worth Nov. 23, 2022, no pet.) (mem. op.); see
Tex. R. App. P. 38.3. We thus need not address the three new issues raised in
Mother’s reply.11
But Mother’s amended opening brief presents a more nuanced question. A
party cannot raise new issues in an amended brief—unless it obtains leave to do so.
See Tex. R. App. P. 38.7 (allowing amended briefing “whenever justice requires, on
“statutorily mandated findings”; (3) the trial court’s alleged “refus[al] to conduct a mandatory child interview”; (4) the trial court’s “exclu[sion of] expert testimony and denying offers of proof”; and (5) “cumulative Title II effective-communication denials.” But the substance of her arguments strays from these labels.
For example, her “legal insufficiency” argument focuses on challenges to the trial court’s summary judgment and discovery rulings and attacks the trial court’s exclusion of her video evidence and its failure to provide a jury trial. As for the evidence presented at trial, Mother alleges that the trial court’s ADA violations discriminated against her and impeded her ability to present her case. Meanwhile, she references numerous other alleged errors in passing without analyzing them as distinct appellate issues.
We thus renumber and reorganize Mother’s issues for clarity. To the extent that Mother intends to raise additional complaints beyond those addressed herein, she has failed to adequately “acquaint the court with the issues” to enable our review. Tex. R. App. P. 38.9; see Tex. R. App. P. 38.1(f), (i); Craaybeek, 2021 WL 1803652, at *3–6. 11 Specifically, we will not address the reply brief’s complaints (1) that the trial court’s findings of fact do not qualify as such because they do not cite specific evidence; (2) that the trial court abused its discretion in a variety of rulings on the admission of evidence at trial; and (3) that the trial court repeatedly denied Mother the opportunity to make offers of proof at trial.
12 whatever reasonable terms the court may prescribe”); 2d Tex. App. (Fort Worth) Loc.
R. 1(B) (recognizing that appellant may file timely opening brief and reply without
leave but “[a]ll other briefs of the parties must be accompanied by a motion for leave
to file, unless the brief is requested by the court”); Standard Fruit & Vegetable Co., 985
S.W.2d at 64–65 (holding court of appeals was entitled to disregard new argument
raised in supplemental brief when such brief was filed post-submission months after
the change that triggered it and attempted to “resurrect an abandoned claim”);
Craaybeek, 2021 WL 1803652, at *4 (chastising appellant for “lodg[ing] new
accusations [in his amended brief] in an attempt to expand the issues raised in his
original brief” when court had warned him not to do so unless he requested leave for
that purpose). Mother was granted leave to file her amended opening brief, but she
was not granted leave to raise new issues. Rather, she was granted leave to remedy
briefing deficiencies. See MedStar Funding, 651 S.W.3d at 572 (denying rehearing and
rejecting appellant’s argument that the majority opinion had ignored an issue raised in
appellant’s amended brief; explaining that appellant had requested and received leave
to file amended brief to address recent case law—not to assert new issues). Indeed,
the deficiencies in Mother’s original opening brief were sufficiently pervasive that she
recognized them herself, and had she not amended her brief, there would not have
been any appellate complaints adequately presented for our review. See Craaybeek, 2021
WL 1803652, at *3–6 (holding that appellant waived all appellate issues because his
brief’s “flagrant formal defects” did not “present argument [sufficient to] . . . enable
13 the court to decide the case”); see also Tex. R. App. P. 38.1, 38.9. In seeking leave to
remedy these deficiencies, Mother expressly represented to this court that her
amended brief “w[ould] not expand [the] issues.” And we are not inclined to reward
dishonesty.
Nonetheless, had Mother candidly sought leave to raise new issues in her
amended opening brief, we might have permitted her to do so. And, generally, we
strive to reach the merits of an appeal whenever reasonably possible. See Bertucci v.
Watkins, 709 S.W.3d 534, 541–42 (Tex. 2025); Horton v. Stovall, 591 S.W.3d 567, 567–
68 (Tex. 2019).
We need not decisively resolve this tension because even if Mother had
obtained leave to raise new issues in her amended opening brief, the result would be
the same: All eight issues raised in Mother’s amended opening brief—her two pretrial
challenges, four mid-trial challenges, and two trial-and-judgment-related challenges—
fail on their own.
A. Pretrial Issues
First, Mother challenges two pretrial rulings by arguing that the trial court
(1) should have granted her no-evidence summary judgment motion and (2) should
have treated Father’s discovery responses as deemed admissions that required
14 judgment in her favor. 12 But none of the relevant motions or discovery documents
appear in the appellate record.
It is Mother’s burden, as the appellant, to bring forth an appellate record
sufficient to show the error of which she complains.13 See Enter. Leasing Co. of Hous. v.
Barrios, 156 S.W.3d 547, 549–50 (Tex. 2004) (holding appellant complaining of
summary judgment bore burden to provide appellate record containing the key
evidence that was on file with the trial court and referenced in the relevant summary
judgment motion so as to enable the appellate court to determine harm); Burgin v.
Burgin, No. 02-24-00504-CV, 2025 WL 2552341, at *4 (Tex. App.—Fort Worth Sept.
4, 2025, no pet.) (mem. op.) (noting lack of reporter’s record and reiterating that “[i]t
is the appellant’s burden to bring forward a record showing the error alleged”). And
Mother has not taken the steps necessary to ensure that the complained-of summary
12 Neither pretrial ruling was challenged in Mother’s original opening brief. See Standard Fruit & Vegetable Co., 985 S.W.2d at 64–65; MedStar Funding, 651 S.W.3d at 572; Craaybeek, 2021 WL 1803652, at *4. Moreover, in the trial court, Mother did not seek judgment on Father’s discovery responses; rather, she sought to pre-admit them as evidence. See Tex. R. App. P. 33.1(a). 13 When the trial court found Mother to be indigent for purposes of this appeal, it ordered the clerk to prepare the record for Mother without requiring payment. But by default, a clerk’s record contains only a limited set of documents, and that limited set does not include an unsuccessful no-evidence summary judgment motion or a party’s discovery-related filings. See Tex. R. App. P. 34.5(a). If Mother wished to challenge or rely upon these documents on appeal, she needed to designate them for inclusion in the appellate record. See Tex. R. App. P. 34.5(b)(2). But she did not do so. In fact, the record does not show that Mother filed a request for the clerk’s record at all. See Tex. R. App. P. 34.5(a).
15 judgment and discovery documents were included in the appellate record. See Tex. R.
App. P. 34.5(a), (b)(2); see also Price v. HPGM, LLC, No. 02-25-00294-CV, 2026 WL
1108911, at *8 (Tex. App.—Fort Worth Apr. 23, 2026, pet. filed) (mem. op.)
(rejecting appellant’s argument that attorney’s fees required segregation and noting
that she had “not even taken the steps necessary to include the potentially relevant
pleadings in the appellate record”).
The record does not contain Mother’s no-evidence summary judgment motion,
Father’s response, Mother’s objections (if any), or her reply. 14 Nor does the record
contain Father’s allegedly “legally insufficient” discovery responses. And although
Mother has moved to supplement the appellate record since filing her amended
opening brief, none of those motions sought to supplement the record with the
relevant summary judgment or discovery documents.15
14 In portions of Mother’s brief, she expresses outrage that the trial court “explicitly admitted it had not read [her summary judgment] reply” and argues that this amounted to an admission by the trial court that it erred. But the reporter’s record reveals that (1) Mother’s reply was filed on Good Friday before the Monday hearing on her summary judgment motion, and (2) when she informed the trial court that she had filed a reply, the trial court stated, “I’ll read that, so I’ll take this [i.e, the summary- judgment motion] under advisement.”
The only supplementation motion that might have encompassed the 15
necessary documents was an omnibus motion that Mother filed on the day she filed her original opening brief.
Mother’s original opening brief did not challenge the summary judgment or discovery rulings. However, it complained that the clerk’s record did not include a “May 2022 ex parte order and July 1, 2022 extension order.” On the day that Mother filed this brief, she moved this court to order the trial court clerk to file not only the
16 We thus have no way of assessing whether the trial court erred in its summary
judgment or discovery rulings, much less any way to determine whether the trial
court’s rulings impacted the remainder of the case. Cf. Tex. R. App. P. 44.1(a) (stating
that “[n]o judgment may be reversed . . . unless . . . the error complained
of . . . probably caused the rendition of an improper judgment”). To the contrary,
because the documents are missing from the record, we must presume that their
contents support the trial court’s rulings. See Enter. Leasing Co. of Hous., 156 S.W.3d at
550 (“If the pertinent summary judgment evidence considered by the trial court is not
included in the appellate record, an appellate court must presume that the omitted
evidence supports the trial court’s judgment.”); Barnes v. Univ. Fed. Credit Union, No.
03-10-00147-CV, 2013 WL 1748788, at *8 (Tex. App.—Austin Apr. 18, 2013, no pet.)
(mem. op.) (rejecting challenge to discovery sanction when relevant discovery
documents were missing from appellate record and explaining that, without the
documents, the appellate court “cannot appraise whether the trial court abused its
“ex parte order and . . . extension order” but also a wide variety of other documents—including orders from the severed vexatious-litigant case, “any orders from the [trial] court between April 2021 and January 2025,” and more than 60 trial- court documents with no relevance to the issues in her original opening brief. That motion was denied.
To the extent that Mother’s proposed omnibus supplementation might have included the summary judgment and discovery documents of which she now complains, she could not fulfill her responsibility to bring forth an adequate appellate record through an omnibus request for every document bar none. Cf. Tex. R. App. P. 33.1(a) (requiring, in parallel preservation context, that appellant raise a specific— rather than global—objection). To hold otherwise would make a mockery of the Rules of Appellate Procedure.
17 discretion and must presume that the missing documents would sustain the trial
court’s ruling” (internal quotation marks omitted)), supplemented on other grounds, No. 03-
10-00147-CV, 2013 WL 3953175 (Tex. App.—Austin July 2, 2013, no pet.) (supp’l
op.).
Because Mother has not provided a record sufficient to show that the trial
court harmfully erred in its summary judgment or discovery rulings, we overrule her
two pretrial challenges.
B. Mid-Trial Issues
In her next four issues, Mother asserts that the trial court erred in its rulings on
her mid-trial motions by (1) refusing to consider either (a) her video evidence or
(b) her expert testimony; (2) denying her a jury for the May 2024 trial on the reopened
evidence; and (3) violating the ADA.
1. Exclusion of Evidence
Mother’s first two mid-trial complaints—regarding the trial court’s alleged
exclusion of her video evidence16 and expert testimony—are moot.
Mother attempted to offer the video evidence and expert testimony as support
for her mid-trial motion for an emergency temporary restraining order. And “[i]t is
well-settled that a temporary order is superseded by entry of a final order, rendering
moot any complaint about the temporary order.” In re B.W.S., No. 05-20-00343-CV,
Mother’s complaint regarding her video evidence was not raised in her 16
original opening brief. See Standard Fruit & Vegetable Co., 985 S.W.2d at 64–65; MedStar Funding, 651 S.W.3d at 572; Craaybeek, 2021 WL 1803652, at *4.
18 2022 WL 2712494, at *4 (Tex. App.—Dallas July 13, 2022, no pet.) (mem. op.)
(noting further that “[c]omplaints concerning a hearing to obtain temporary orders
[are] similarly mooted by the issuance of a final order”); see In re A.C., No. 02-21-
00121-CV, 2022 WL 1793419, at *3 (Tex. App.—Fort Worth June 2, 2022, no pet.)
(mem. op.) (holding grandmother’s complaints regarding temporary orders were moot
because “complaints about temporary orders fall by the wayside anyway when a final
order has been entered”); see also Tex. R. App. P. 44.1(a)(1). Indeed, the trial court’s
judgment expressly “discharged [the parties] from all further liabilities and obligations
imposed by any temporary order [previously] rendered in th[e] case by th[e trial
c]ourt.” We thus overrule Mother’s two moot complaints.
2. Jury Trial
Next, regarding the trial court’s allegedly depriving her of a jury trial, 17 Mother’s
argument is premised on the assumption that she was entitled to a jury trial for the
May 2024 continuation of the August 2023 bench trial. Mother has not cited, nor have
we found, any authority for this alleged partial-jury-trial entitlement.
And as for the trial as a whole—the trial that began in August 2023—Mother
has not pointed us to anything in the record indicating that she requested a jury trial in
Mother did not raise this issue in her original opening brief. See Standard Fruit 17
& Vegetable Co., 985 S.W.2d at 64–65; MedStar Funding, 651 S.W.3d at 572; Craaybeek, 2021 WL 1803652, at *4.
19 writing before the proceeding began.18 See Tex. R. Civ. P. 216(a) (“No jury trial shall
be had in any civil suit[] unless a written request for a jury trial is filed with the
clerk . . . a reasonable time before the date set for trial . . . but not less than thirty days
in advance.”). To the contrary, the judgment recites that “[a] jury was waived.” See
A.C., 2022 WL 1793419, at *4 (holding that grandmother “waived any complaint
about not receiving a jury trial” in SAPCR because she did not “point [the court] to
any place in the record where she requested a jury trial” and “did not object to going
forward with a bench trial”).
We overrule Mother’s jury-trial issue.
3. ADA Violations
Mother’s final mid-trial complaint—that the trial court violated the ADA by
discriminating against her based on her disability and failing to grant her motion for
reasonable accommodations—is also misguided.19
18 Mother has not even taken the steps necessary to include her mid-trial motion for a jury trial in the appellate record. See Tex. R. App. P. 34.5(b)(2); Enter. Leasing Co. of Hous., 156 S.W.3d at 549–50.
Mother further asserts that by violating the ADA, the trial court necessarily 19
violated the Texas Government Code and Due Process Clause. But the substance of Mother’s argument focuses on the provisions and requirements of the ADA. She cites no authority for her assumption that a violation of the ADA is a de facto violation of the Government Code or the Due Process Clause. And to the extent that she intends to argue that the trial court’s actions independently violated the Government Code or Due Process Clause, she did not raise that issue in her original opening brief, and she has inadequately briefed it in her amended opening brief. See Tex. R. App. P. 38.1(i), 38.9.
20 By arguing that the trial court violated the ADA, Mother is essentially asserting
a cause of action against the trial court. See Magnuson v. Mullen, 65 S.W.3d 815, 828–29
(Tex. App.—Fort Worth 2002, pet. denied) (rejecting challenge to judgment based on
trial court’s alleged failure to make reasonable ADA accommodations and explaining
that claim was “not properly before us” because the appellant was “asserting a cause
of action directly against the trial court that ha[d] not been litigated on its merits”).
The ADA “authorizes private citizens to bring suits for money damages” against
public entities that exclude, deny services to, or discriminate against a qualified
individual by reason of that individual’s disability. Tennessee v. Lane, 541 U.S. 509, 517,
531, 124 S. Ct. 1978, 1984–85, 1993 (2004) (describing the ADA as “subject[ing] the
States to private suits for money damages” for failing to comply with the statute’s
provisions); see 42 U.S.C. § 12132 (providing that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be
denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity”), § 12133 (providing for enforcement
by referencing 29 U.S.C. § 794a); United States v. Georgia, 546 U.S. 151, 154, 126 S. Ct.
877, 879 (2006) (“Title II [of the ADA] authorizes suits by private citizens for money
damages against public entities that violate § 12132.”); cf., e.g., Layton v. Elder, 143 F.3d
469, 471–73 (8th Cir. 1998) (reviewing case in which a plaintiff sued a county judge
under the ADA alleging “that the programs and services offered in the county
courthouse are inaccessible”).
21 Mother did not sue the trial court in this case, nor did her live pleading contain
any ADA-related claims or affirmative defenses. See Corona v. Pilgrim’s Pride Corp., 245
S.W.3d 75, 83 (Tex. App.—Texarkana 2008, pet. denied) (rejecting similar ADA-
based challenge to judgment; noting that even if “a violation of the ADA [by the
opposing party] could void a judgment, [a sister court] has held the claim is an
affirmative defense that must be pleaded and proved to avoid waiver”; and observing
that the appellant had not pleaded the ADA as an affirmative defense); George v. Hous.
Eye Assocs., No. 14-02-00629-CV, 2003 WL 22232651, at *4 (Tex. App.—Houston
[14th Dist.] Sept. 30, 2003, pet. denied) (mem. op.) (rejecting argument that trial
court’s dismissal of appellant’s claims violated ADA and noting that there was “no
evidence in the record that appellant pursued, or attempted to pursue, a cause of
action under the ADA in the trial court”); Magnuson, 65 S.W.3d at 828–29 (reviewing
ADA-related challenge to judgment and distinguishing appellant’s case law because,
“in the cases cited by [the appellant] in support of his ADA claim, the plaintiffs filed
lawsuits specifically naming the alleged discriminating courts or judges as
defendants”); cf. In re P.M., No. 02-14-00205-CV, 2014 WL 8097064, at *33 (Tex.
App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op. on reh’g) (holding ADA
complaint was not preserved and reiterating that “in a termination-of-parental-rights
case, an ADA complaint [against the opposing party, i.e., the Department of Family
and Protective Services] is an affirmative defense that must be pleaded and proven
22 and for which findings must be secured to preserve error for appeal”); In re B.L.M.,
114 S.W.3d 641, 648–49 (Tex. App.—Fort Worth 2003, no pet.) (similar).
Mother has not cited any authority to support her assumption that an
unpleaded, unlitigated ADA claim against an offending trial court may invalidate the
trial court’s otherwise-valid judgment in a direct appeal from an action between the
disabled individual and a third party. See Corona, 245 S.W.3d at 83 (noting lack of
authority “for the proposition that a violation of the ADA voids an otherwise valid
judgment” and clarifying that “[a] person alleging discrimination under Title II of the
ADA has the remedies, procedures, and rights set forth in [federal law]”); see also
Magnuson, 65 S.W.3d at 828–29. And we “decline to decide an [ADA claim] on appeal
that has not yet been the subject of litigation in a trial court.”20 Magnuson, 65 S.W.3d at
828–29.
Even if we were to reach the merits of Mother’s unlitigated ADA claim, she 20
has not demonstrated a violation of the statute.
First, she has not demonstrated that the accommodations she demanded were reasonable or that the trial court’s accommodations were inadequate. See Lane, 541 U.S. at 531–32, 124 S. Ct. at 1993 (noting that the ADA “requires only ‘reasonable modifications’”); Corona, 245 S.W.3d at 83 (noting that “[a] public entity is not required to grant the specific accommodation requested, so long as the accommodation granted is adequate”). The trial court granted several of Mother’s requested accommodations, including allowing her the assistance of an ADA helper. Yet, Mother claims she was entitled to more—specifically, to “CART Technology” and to have “all information in writing, including testimonies and arguments.” But the trial court explained that it “d[id]n’t have [CART Technology] to be able to provide it.” See Lane, 541 U.S. at 532, 124 S. Ct. at 1993 (commenting that, “in the case of older facilities, . . . a public entity may comply with [the ADA] by adopting a variety of less costly measures, including . . . assigning aides to assist persons with disabilities in
23 We overrule Mother’s ADA issue.
C. Trial and Judgment Issues
Mother next complains that the trial court’s ultimate assessment of the
evidence and disposition of the case were flawed in two ways: that the trial court
(1) failed to conduct an in-chambers child interview as part of its consideration of the
trial evidence; and (2) failed to enter findings of fact and conclusions of law explaining
the reasons for its judgment.
1. Child Interview
Mother’s first allegation—that “the [trial] court did not conduct the statutorily
mandated [child] interview”—is belied by the record. See Tex. Fam. Code
§ 153.009(a).
Mother argues that the trial court was required to interview the couple’s eldest
child because that child had turned 12 by the time the trial ended in May 2024. See id.
(“In a nonjury trial or at a hearing, on the application of a party, . . . the court shall
accessing services”). And resolving a trial on written submission rather than through the presentation of live evidence would fundamentally alter the nature of the proceeding. Id. at 532, 124 S. Ct. at 1993–94 (recognizing that the ADA does not “require[ the court] to undertake measures that would . . . effect a fundamental alteration in the nature of the service”).
Regarding Mother’s second ADA complaint—her allegation that the trial court violated the ADA by discriminating against her—she attempts to support her argument by pointing to the trial court’s other challenged actions, i.e., its failure to provide all of her requested accommodations, failure to grant her summary judgment motion, failure to consider her video evidence and expert testimony at the mid-trial hearing, failure to provide her a jury trial, and the like. But we have already rejected Mother’s challenges to those actions on other grounds. See supra Sections III.A–B.2.
24 interview in chambers a child 12 years of age or older . . . .”). But the record confirms
that the trial court had long since interviewed both children before either of them
turned 12. See id. (“In a nonjury trial or at a hearing, . . . the court . . . may interview in
chambers a child under 12 years of age . . . .”). Indeed, the reporter’s record includes a
volume transcribing the interviews, and the judgment recites that the trial court
“conducted an in-chambers interview of the children the subject of this suit on or
about August 28, 2023.” To the extent that Mother—by ignoring the interviews’
existence—intends to assert that the trial court was required to conduct a second
interview after the eldest child turned 12, she has not cited any legal authority for that
assertion. See Tex. R. App. P. 38.1(i).
And such an assertion would be inconsistent with Mother’s theory of harm
anyway. She complains that “the absence of the child’s testimony creates a gap in the
evidence.” But because the trial court did, in fact, interview both children, the record
confirms that no such gap exists.21
We overrule this issue.
2. Findings of Fact and Conclusions of Law
Mother’s other trial-related complaint similarly ignores the record. She argues
that the trial court “failed to issue the statutorily required findings [of fact] explaining
21 Although Mother asserts, in her reply brief, that the children’s circumstances had materially changed between August 2023 and May 2024, she has not cited any legal authority requiring a trial court to conduct a second in-chambers interview based on a mid-trial change in circumstances. And regardless, she did not raise that issue in her original opening brief or amended opening brief.
25 its deviations” from the standard guidelines for parental conservatorship, possession,
and child support. See Tex. Fam. Code § 154.130 (requiring a trial court to make child-
support findings in certain circumstances), § 153.258(a) (requiring a trial court, upon a
proper request, to make findings stating its reasons for deviating from standard
possession guidelines).22 But again, the trial court did, in fact, make “findings on child
support pursuant to [Family Code] Section 154.130” and findings delineating, in its
words, “the reasons the [trial c]ourt g[a]ve[] for deviating from the guidelines for
possession of and access to the children pursuant to the Texas Family Code.”
[Capitalization altered.] Such findings were set forth both in the trial court’s letter
ruling and in the final judgment itself.23 To the extent that Mother—by ignoring such
22 Mother’s amended opening brief repeatedly asserts that Section 153.131 of the Family Code requires both parents to be appointed as joint managing conservators unless the trial court enters findings that such appointment “would significantly impair the child[ren]’s physical health or emotional development.” Tex. Fam. Code § 153.131(a). But in reality, the statute she invokes addresses a trial court’s failure to appoint either “a parent . . . [as] sole managing conservator or both parents . . . as joint managing conservators.” Id. (stating that, “unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child”). 23 Even if the trial court had not issued findings, because Mother’s notices of past-due findings were untimely, she waived the issue. See Tex. Fam. Code § 153.258(b) (requiring request for possession-related findings to “conform to the Texas Rules of Civil Procedure”); Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 137 (Tex. 2017) (reiterating rule that “a party waives its right to challenge a failure to file findings if it does not file a notice of past due findings as [R]ule 297 requires” and going on to note that, for purposes of this preservation requirement, “it is immaterial
26 findings’ existence—intends to challenge the trial court’s failure to repeat its findings
in a separate document dedicated to that purpose, 24 she does not explain how the
findings’ placement harmed her. See Tex. R. App. P. 38.1(i), 38.9, 44.1(a). To the
contrary, Mother’s theory of harm is that the lack of findings “forced [her] to guess at
the specific reasons for the trial court’s significant deviations” without “knowing
which factors the court found determinative or what evidence it found most
credible.” That theory falls apart in the face of the record because—whether or not
the findings should have been included in the judgment—the trial court explained its
reasoning.
We overrule this final issue.
whether the court literally filed no findings or filed something that amounts to no findings”); supra note 4. 24 Although Mother’s amended opening brief generally ignores the findings’ existence altogether, at times, she frames her argument as the trial court’s “failure to issue separate findings.” And Mother’s original opening brief (and motion to strike filed around the same time) acknowledged that the trial court made findings of fact and conclusions of law but argued that they were improperly included in the judgment. Meanwhile, her reply brief acknowledges the trial court’s findings but argues that they “[we]re not findings—they [we]re ultimate conclusions” because the trial court did not cite the “specific evidence” supporting its statements.
27 IV. Conclusion
Mother cannot raise new appellate issues beyond those in her original opening
brief, and even if she had obtained leave to do so, the eight issues raised in her
amended opening brief lack merit. Mother’s pending motions are denied, and the trial
court’s judgment is affirmed. See Tex. R. App. P. 43.2(a).
/s/ Wade Birdwell
Wade Birdwell Justice
Delivered: July 9, 2026