NUMBER 13-14-00620-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
IN THE INTEREST OF A.V. AND I.V., MINOR CHILDREN
On appeal from the County Court at Law No. 5
of Nueces County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant father appeals the termination of his parental rights.1 Following a jury
verdict, the trial court entered an order terminating the parental rights of appellant to his
two minor children, A.V. and I.V.2 By one issue, appellant argues the judgment should
1 The order also terminated the parental rights of the children’s mother. She is not a party to this
appeal.
2 In appeals involving the termination of parental rights, the Texas Rules of Appellate Procedure
require the use of an alias to refer to a minor. TEX. R. APP. P. 9.8. We may also use an alias “to [refer to]
the minor’s parent or other family member” to protect the minor’s identity. Id.
be reversed because the pleadings are “fatally defective.” We vacate and dismiss in part,
and affirm in part.
I. BACKGROUND
A. The Petition
The Department of Family and Protective Services (“Department”) filed a petition
to terminate parental rights with respect to A.V. and I.V. The Department sought to
terminate the parental rights of the children’s mother, and, in a section specifically
identifying her by name, alleged statutory grounds for termination against her under the
Texas Family Code.3 The affidavit in support of removal, filed with the petition, alleged
neglectful supervision and physical neglect of the children by mother. More specifically,
the relevant paragraph states:
13. Termination of [Mother’s][4] Parental Rights
If reunification with the mother cannot be achieved, the Court
should terminate the parent-child relationship between
[Mother] and the children the subject of this suit under
Chapter 161, Texas Family Code, because termination of the
parent-child relationship is in the children’s best interest and
[Mother] has committed one or more of the following acts or
omissions:
*****
13.20. The Court should terminate the parent-child
relationship between [Mother] and the children the subject of
this suit under § 161.003, Texas Family Code, because
[Mother] has a mental or emotional illness or a mental
deficiency that renders the mother unable to provide for the
physical, emotional, and mental needs of the children and will
3 The Department also requested: to be named the temporary sole managing conservator of the
children; if the children could not be safely reunified with either parent, that the Department, a relative, or
other suitable person be named the permanent sole managing conservator of the children; and temporary
orders regarding support of the children, possession and access to the children, and services to be
completed by the parents.
4 In the petition, the mother’s actual name was used throughout this section in bold as shown.
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continue to render the mother unable to provide for the
children’s needs until the 18th birthday of the children, despite
at least six months of reasonable efforts to return the children
to the parent, pursuant to § 161.003, Texas Family Code.
The petition, however, did not include a similar section identifying appellant by
name, did not allege any statutory grounds for termination against him under the Texas
Family Code, and did not seek termination of appellant’s parental rights. Rather, the sole
reference in the petition to appellant by name was with respect to service:
4. Parties to be Served
*****
4.2. The alleged father of the child [A.V.] AND [I.V.] is:
Party: [Father’s Name]
Date Of Birth: unknown
The alleged father is deceased.
Soon after the Department filed its original petition, the Department discovered
appellant was alive and incarcerated. He was subsequently served with the petition, but
the pleadings were never amended.
B. Pre-Trial Proceedings
On the date the petition was filed, the trial court signed an emergency order naming
the Department as temporary sole managing conservator of the children. At the initial
permanency hearing, the trial court appointed an attorney to represent appellant. He later
appeared by and through counsel at a second permanency hearing. The trial court
granted appellant’s motion to attend the trial by telephone because of his incarceration.
C. Jury Trial
The case was presented to a jury. During opening statements, the Department’s
counsel explained to the jury, without objection, that the Department was seeking to
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terminate the parental rights of both parents pursuant to Texas Family Code sections
161.001(1)(N) and (Q).5 See TEX. FAM. CODE ANN. §§ 161.001(1)(N), (Q) (West, Westlaw
through 2013 3d C.S.). Appellant’s counsel argued that the evidence would be insufficient
to show that termination would be in the children’s best interest.6
The trial court granted a partial instructed verdict on the grounds for termination
set out in sections 161.001(1)(N) and (Q), and the case was submitted to the jury solely
on the issue of the children’s best interest. The jury found by clear and convincing
evidence “that termination of the parent-child relationship between [appellant] and the
children, [A.V.] and [I.V.], is in the best interests of the children.” The trial court rendered
judgment terminating appellant’s parental rights. This appeal followed.
II. DEFECTIVE PLEADINGS
By one issue, appellant argues that the Department’s petition is fatally defective
because the pleadings failed to request termination of appellant’s parental rights.
5 The Texas Family Code provides statutory grounds for termination where the court finds by clear
and convincing evidence that the parent has:
(N) constructively abandoned the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services or an
authorized agency for not less than six months, and: (i) the department or authorized
agency has made reasonable efforts to return the child to the parent; (ii) the parent has not
regularly visited or maintained significant contact with the child; and (iii) the parent has
demonstrated an inability to provide the child with a safe environment; [or]
*****
(Q) knowingly engaged in criminal conduct that has resulted in the parent’s: (i) conviction
of an offense; and (ii) confinement or imprisonment and inability to care for the child for not
less than two years from the date of filing the petition[.]
TEX. FAM. CODE ANN. §§ 161.001(1)(N),(Q) (West, Westlaw through 2013 3d C.S.).
6 Before terminating parental rights, the trier of fact must find by clear and convincing evidence that
the parent committed an act prohibited by subsection 161.001(1) of the Texas Family Code and that
termination is in the best interest of the child. Id. § 161.001.
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Specifically, appellant argues that the Department’s petition does not meet the statutory
pleading requirements for a petition seeking termination of the parent-child relationship.
Appellant maintains the judgment terminating his parental rights is void because it is not
supported by the pleadings.7
A. Preservation of Error
We must address preservation of error as a threshold issue. Appellant concedes
he “failed to raise concerns or objections about the State’s pleadings” during the
underlying pretrial and trial proceedings. The Department argues that by failing to object
to the pleadings appellant did not preserve his complaint for appellate review.
A party must make the trial court aware of a complaint, timely and plainly, and
obtain a ruling to preserve an issue for appellate review. TEX. R. APP. P. 33.1; In re B.L.D.,
113 S.W.3d 340, 349 (Tex. 2003). However, jurisdictional defects represent fundamental
error and may be raised for the first time on appeal. See Mapco, Inc. v. Carter, 817 S.W.2d
686, 687 (Tex. 1991). A judgment must be supported by the pleadings, and a trial court
exceeds its jurisdiction if it renders a judgment in the absence of pleadings. TEX. R. CIV.
P. 301; Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.).
Rendering judgment without jurisdiction is fundamental error. Cotton v. Cotton, 57
S.W.3d 506, 510 (Tex. App—Waco 2001, no pet.). Because appellant questions the trial
court’s jurisdiction to render judgment, the issue may be raised for the first time on appeal.
See Mapco, Inc., 817 S.W.2d at 687.
7 While appellant maintains the trial court’s order of termination is void, he does not explicitly argue
fundamental error. However, lack of jurisdiction is fundamental error that may be recognized by the
appellate court, sua sponte, for the first time on appeal. See Britton v. Tex. Dep’t of Criminal Justice, 95
S.W.3d 676, 681 n. 6 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“In an appeal properly before it, an
appellate court may always address fundamental error, even without an appellate challenge.”).
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B. Applicable Law
We construe appellant’s issue as follows: whether the trial court has jurisdiction
to render judgment terminating parental rights in the absence of any pleadings seeking
such relief. Involuntary termination of parental rights involves fundamental constitutional
rights and divests the parent and child of all legal rights, privileges, duties and powers
normally existing between them, except for the child’s right to inherit from the parent.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778
(Tex. App.—Corpus Christi 2006, no pet.). A petition to terminate parental rights “is
sufficient without the necessity of specifying the underlying facts if the petition alleges in
the statutory language the ground for the termination and that termination is in the best
interest of the child.” TEX. FAM. CODE ANN. § 161.101.
A court's jurisdiction is invoked by the pleadings. In re Guardianship of Winn, 372
S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet.). Where there are no pleadings
seeking affirmative relief, the trial court is without jurisdiction as to the parties or the
subject matter. Daniels, 45 S.W.3d at 282; Seber v. Glass, 258 S.W.2d 122, 124 (Tex.
Civ. App—Fort Worth 1958, no writ). A judgment terminating parental rights cannot be
supported on grounds not pleaded in the petition. See In re S.R.M., 601 S.W.2d 766, 769
(Tex. Civ. App.—Amarillo 1980, no writ) (holding that parental rights, being of
constitutional dimension, may not be terminated on unpleaded grounds); see also In re
B.B., 971 S.W.2d 160, 163 (Tex. App.—Beaumont 1998, pet. denied) (holding that
grounds for termination must be pleaded to support trial court's judgment), disapproved
on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002).
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C. Discussion
Appellant relies on In re S.R.M., 601 S.W.2d at 769, to support his argument that
the Department’s petition is “fatally defective.” In S.R.M., the pleadings alleged statutory
grounds for termination of the mother’s parental rights. Id. at 768–69. Following a bench
trial, the trial court terminated the mother’s parental rights based upon three separate
statutory grounds not supported by the pleadings. Id. at 769. The court of appeals
rejected the petitioner’s argument that the termination grounds were tried by consent and
held “the judgment should be reversed because the trial court terminated the appellant’s
parental rights to the child upon unpled grounds.” Id. The court further noted “[i]n the
case before us, there is a total absence from the record of any notice to the appellant that
the trial court was trying, considering or even contemplating termination upon any unpled
statutory grounds.” Id. at 770. The court concluded that the mother “did not knowingly
relinquish or waive her right to have the statutory grounds for termination stated in the
petition, and that she did not expressly or meaningfully consent to a trial upon the unpled
grounds.” Id.
In response, the Department argues S.R.M. is distinguishable because appellant
received fair notice of the Department’s intent to seek termination of his parental rights
and the issue was tried by consent.8 The court in S.R.M., however, expressly rejected
this argument noting that cases applying the trial by consent doctrine “do not involve the
8 When issues not raised by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings. TEX. R. CIV. P. 67. “The
doctrine of trial by consent is not intended to establish a general rule of practice and should be applied with
care; it should never be applied in a doubtful situation.” In re P.D.D., 256 S.W.3d 834, 841 (Tex. App.—
Texarkana 2008, no pet.).
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same mandatory statute nor are they of the same constitutional dimension as the issues
present in the case before us.” Id.
We note other appellate courts have applied the trial by consent doctrine to
termination of parental rights cases, but only when the trial court’s judgment is supported
by a petition seeking termination against the parent. See In re K.S., 448 S.W.3d 521,
533–34 (Tex. App.—Tyler 2014, pet. denied) (holding that termination of parental rights
under the Indian Child Welfare Act was tried by consent where Department pleaded for
termination under Texas Family Code); see also In re A.J.B., No. 14–02–00794–CV, 2003
WL 21403480, at *1–2 (Tex. App.—Houston [14th Dist.] June 19, 2003, pet. denied)
(mem. op.) (where pleading sought to terminate father’s parental rights for failing to
register with paternity registry, termination on basis of impregnating child’s mother by
sexual assault was tried by consent).
Assuming, without deciding, that unpled termination grounds can be tried by
consent, we conclude the trial by consent doctrine does not apply here, where there is no
pleading whatsoever seeking to terminate appellant’s parental rights. In the absence of
a pleading seeking affirmative relief, the trial court is without jurisdiction to render
judgment. See Daniels, 45 S.W.3d at 282. Here, the only explicit reference to appellant
in the petition is a section identifying him as the children’s deceased father. At a minimum,
a petition seeking to terminate the parent child relationship must “allege[] in the statutory
language the ground for the termination and that termination is in the best interest of the
child.” TEX. FAM. CODE ANN. § 161.101. There are no pleadings from which the trial court
could render judgment as to appellant. See Cunningham v. Parkdale Bank, 660 S.W.2d
810, 812–13 (Tex. 1983) (noting that document filed was not sufficient to support
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judgment where it did not state cause of action and alleged no statutory basis upon which
judgment could be based); Daniels, 45 S.W.3d at 282 (holding that trial court was without
jurisdiction to enter judgment “since no live pleading existed in case urging a cause of
action from which judgment could be taken”); Granado v. Madsen, 729 S.W.2d 866, 870
(Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding that summary judgment
order was a nullity and of no effect where there were no live pleadings and no cause of
action against which summary judgment could be granted); Seber, 258 S.W.2d at 124
(holding trial court was without jurisdiction to render order where there existed no
pleadings seeking affirmative relief).
We hold that the trial court exceeded its jurisdiction in rendering judgment against
appellant because there was no pleading seeking to terminate his parental rights. This
is fundamental error. See Cotton, 57 S.W.3d at 510. We sustain appellant’s sole issue.
III. CONCLUSION
We vacate the portion of the trial court’s judgment terminating appellant’s parental
rights and dismiss the cause as it pertains to appellant. See TEX. R. APP. P. 43.2(e); City
of El Paso v. Marquez, 380 S.W.3d 335, 345 (Tex. App.—El Paso 2012, no pet.)
(explaining that where the trial court does not have jurisdiction to render a judgment, the
proper practice is for the reviewing court to set the judgment aside and dismiss the cause).
The judgment is otherwise affirmed.
Gregory T. Perkes
Justice
Delivered and filed the
30th day of April, 2015.
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