Tenth Court Affirms Strike of Aunt’s Post-Termination SAPCR Intervention as Untimely

Kong v. Department of Family and Protective Services, 10-25-00101-CV, April 23, 2026.

On appeal from County Court at Law of Hill County, Texas

Synopsis

The Tenth Court of Appeals held that a paternal aunt’s post-termination SAPCR filing was untimely where it was filed nearly five months after the final order terminating parental rights. The court concluded the trial court acted within its discretion in striking the pleading because intervention after final judgment is generally unavailable absent the judgment being set aside, the court’s plenary power had expired, and Family Code section 102.006(c) independently barred the aunt’s request because it was filed more than 90 days after termination.

Relevance to Family Law

This opinion matters well beyond CPS termination practice because it reinforces a recurring principle in Texas family litigation: standing and timeliness are often outcome-determinative, and they can extinguish otherwise sympathetic claims before the court ever reaches best-interest evidence. For family law litigators handling conservatorship disputes, modification suits, kinship placements, or post-judgment strategy in divorce and custody cases, Kong is a sharp reminder that relatives seeking affirmative conservatorship relief after termination must move immediately and within the statutory window. The case also illustrates the procedural difference between a pre-judgment intervention and a post-judgment filing, a distinction that can affect not only Department cases but also private SAPCR and modification practice where parties attempt to enter a case after final orders have been signed.

Case Summary

Fact Summary

The Department filed the underlying case in March 2023 and was appointed temporary managing conservator of three children. After a three-day trial, a jury returned a verdict terminating the parental rights of the mother and one father and appointing the Department as permanent managing conservator. The trial court signed the final termination order on September 17, 2024.

Anna Kong, the paternal aunt of two of the children, did not file a pleading before judgment. Instead, she filed a Petition in Intervention for Suit Affecting Parent-Child Relationship on February 13, 2025—almost 150 days after the final termination order. In that petition, she sought permanent managing conservatorship of the children. The Department moved to strike, arguing the filing was untimely, that Kong lacked standing, and that the pleading had other deficiencies. The trial court granted the motion to strike, and Kong appealed.

The Tenth Court did not need to resolve every complaint raised on appeal because the timing issue was dispositive. The court focused on two timing barriers: first, the filing came after final judgment and after expiration of plenary power; second, it fell outside the 90-day post-termination filing period imposed by Texas Family Code section 102.006(c) for relatives seeking managing conservatorship.

Issues Decided

• Whether the trial court abused its discretion by striking a paternal aunt’s petition in intervention filed after entry of a final termination order.
• Whether a relative may intervene in a SAPCR after final judgment and after the trial court’s plenary power has expired.
• Whether Texas Family Code section 102.006(c) bars a relative’s post-termination request for managing conservatorship when filed more than 90 days after the termination order.
• Whether the aunt’s filing could survive if treated as an original petition rather than an intervention.

Rules Applied

The court relied on several familiar procedural and family-law rules:

• Orders granting motions to strike interventions are reviewed for abuse of discretion.
• As a general rule, intervention is timely only if filed before final judgment.
• A post-judgment intervention may not be considered unless and until the judgment has been set aside.
• A judgment is final for appellate purposes when it disposes of all pending parties and claims.
• After signing a final judgment, a trial court’s plenary power generally expires in 30 days, or later if extended by a timely post-judgment motion.
• Texas Family Code section 102.006 operates as a standing limitation on relatives seeking post-termination conservatorship relief.
• Under section 102.006(c), a relative seeking managing conservatorship after termination must file no later than the 90th day after termination, absent statutory exceptions such as court-ordered possession or the managing conservator’s consent to suit.

The opinion cited, among others, Guar. Fed. Savs. Bank v. Horseshoe Operating Co., 793 S.W.2d 652 (Tex. 1990), Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008), Terrazas v. Ramirez, 829 S.W.2d 712 (Tex. 1991), McFadin v. Broadway Coffeehouse, LLC, 539 S.W.3d 278 (Tex. 2018), Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022), and In re J.C., 399 S.W.3d 235 (Tex. App.—San Antonio 2012, no pet.).

Application

The court’s analysis was straightforward and unforgiving. It began with the ordinary rule governing intervention: a nonparty may generally intervene only before final judgment. Here, the final termination order signed on September 17, 2024 disposed of all parties and claims. That made the judgment final. Kong did not attempt to intervene before that point, and by the time she filed her petition in February 2025, the court had long since lost plenary power over the judgment. Under settled Texas procedure, a post-judgment intervention cannot simply be inserted into a closed case unless the judgment has first been set aside. That never happened here.

The court then turned to the Family Code’s independent statutory bar. Section 102.006(c) limits when a relative may seek managing conservatorship following termination. The aunt’s filing came more than 90 days after the termination order, and the court treated that timing requirement as dispositive. The opinion makes clear that the aunt could not avoid the statute by relabeling her pleading. Even if the filing were construed not as an intervention but as an original petition requesting conservatorship, it still came too late under the statute.

That dual rationale is what gives the opinion practical force. The aunt lost both procedurally and statutorily. She was outside the window for intervention because the case was already final, and she was outside the Family Code’s 90-day window for a relative’s post-termination conservatorship claim. Once those timing defects were established, the court had no need to engage in a broader standing or best-interest discussion.

Holding

The Tenth Court held that the trial court did not abuse its discretion in striking Kong’s petition in intervention. Because the petition was filed after the final termination order and after expiration of the trial court’s plenary power, Kong had no right to intervene in the closed case.

The court further held that section 102.006(c) independently rendered the filing untimely. Kong filed more than 90 days after termination, and the opinion recognizes that the statute functions as a time limitation on a relative’s standing to seek managing conservatorship after termination.

Finally, the court rejected any attempt to save the pleading by treating it as something other than an intervention. Even if construed as an original petition, the aunt’s request was still filed outside the statutory 90-day deadline and was therefore untimely.

Practical Application

For practitioners representing relatives, Kong is a deadline case first and a kinship case second. If a relative may want conservatorship after termination, counsel should not assume there will be time to evaluate placement options after appellate activity begins or after the final order is signed. The opinion indicates that once the termination order is final, the procedural landscape changes immediately. Intervention rights largely disappear, plenary power begins running, and section 102.006(c)’s 90-day clock becomes a hard statutory constraint unless a recognized exception applies.

For counsel representing the Department, foster parents, or prospective adoptive placements, Kong provides a clean basis to challenge untimely relative pleadings without having to litigate best interest on the merits. The case supports an early motion to strike or dismissal where a relative appears only after termination and outside the statutory window.

For private family lawyers, the broader lesson is that labels do not rescue untimely pleadings. Calling a filing an intervention, modification, or original SAPCR will not solve a jurisdictional or standing defect created by statutory timing rules. In custody litigation generally, post-judgment strategy must account for both procedural finality and any family-code-specific limitations that define who may file and when.

In practice, litigators should consider the following:

• Identify potential relative claimants early in a CPS case and determine whether they intend to seek affirmative conservatorship relief.
• Calendar the final termination date and immediately calculate the 90-day deadline under section 102.006(c).
• Evaluate whether any statutory exception applies, including court-ordered possession or consent from the managing conservator.
• Do not rely on the pendency of an appeal to extend a relative’s filing deadline unless a statute or rule expressly provides that extension.
• If you represent the prevailing side, challenge untimely post-termination filings promptly and frame the issue as both a procedural-finality problem and a statutory-standing problem.

Checklists

Checklist for Relative Counsel Considering Post-Termination Conservatorship Relief

• Confirm the exact date the final termination order was signed.
• Calculate the 90th day after termination under Texas Family Code section 102.006(c).
• Determine whether the relative has court-ordered possession of the child.
• Determine whether the current managing conservator has consented to the filing.
• Decide whether relief must be sought before final judgment rather than after it.
• Review whether any post-judgment vehicle is actually available, rather than assuming intervention remains viable.
• File before the statutory deadline; do not wait for the underlying appeal to conclude.
• Plead facts establishing standing with specificity.

Checklist for Department or Child’s Counsel Opposing a Late Relative Filing

• Obtain the signed final termination order and confirm finality.
• Calculate whether the trial court’s plenary power has expired.
• Calculate the section 102.006(c) 90-day deadline.
• Evaluate whether the relative pleaded or proved any statutory exception.
• Move to strike or dismiss on timeliness and standing grounds at the outset.
• Cite both procedural authorities on post-judgment intervention and Family Code section 102.006(c).
• Emphasize that relabeling the filing as an original petition does not cure untimeliness.
• Preserve the record on dates, finality, and lack of exception.

Checklist for Trial Lawyers Managing Kinship Placement Issues Before Final Judgment

• Identify all viable relatives early in the case.
• Determine which relatives want placement, visitation, or conservatorship.
• Clarify whether the relative seeks to participate before judgment or only after termination.
• Develop a record regarding relative placement efforts before the final order is signed.
• Advise clients that post-termination windows are narrow and potentially jurisdictional in effect.
• Avoid waiting until after judgment to test a relative’s willingness or suitability.
• If intervention is contemplated, file before final judgment.

Checklist for Appellate Preservation and Framing

• Frame the standard of review as abuse of discretion for striking the intervention.
• Preserve the argument that final judgment forecloses intervention absent the judgment being set aside.
• Brief section 102.006(c) as a standing/time-limitation issue, not merely a pleading defect.
• Address whether the filing could be construed as an original petition and explain why that still fails.
• Include all relevant dates in the statement of facts and procedural history.
• Use finality and plenary-power authorities alongside Family Code authorities for a layered defense.

Citation

Kong v. Department of Family and Protective Services, No. 10-25-00101-CV, 2026 WL ___ (Tex. App.—Waco Apr. 23, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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