## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00098

- CV

IN THE INTEREST OF J.W., S.S., J.S., AND S.S., CHILDREN

On Appeal from the 62nd District Court Hopkins County, Texas Trial Court No. CV44470

B efore Morr iss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Carter

____________________________________ *Jack Carter, Justice , Retired, Sitting by Assignment2 

### ME MORANDUM OPINION On October 7, 2020, the Department of Family and Protective Servi ces ( the Department ) filed a petition to terminate Mother ’s parental rights t o her children, J.W ., S.S., J.S., and S.S. T he Department ’s petition also sought to terminate Father’s parental rights to his known children, S.S., J.S., and S.S. , and the pare n t al rig hts of J.W.’s alleged father. After DNA test results showed that J.W. w as not the child of the person named in the Department’s petition as the alleged father, the trial court , on August 27, 2021, ordered Father to submit to genetic testing to det e r min e i f J.W. was his biological child

. On September 23, 2021, DNA test result s establish ed that J.W. was Father’s child , and the trial court entered an order adjudicating Father’s parentage to J.W. After a hearing held on September 27, the trial court te rmin ate d Mother ’ s and Father’s parental rights to all of the children. 1 Mothe r and Father both appeal . Mother’s attorney has filed an Anders brief with this Court arguing that there are no non

- frivolous issues that can be raised on appeal. See Ande rs v. Ca lif ornia , 386 U.S. 738, 743

– 44 (1967). Father, however, argues that the tr ial court erred by

1 The trial court terminated Mo ther ’ s and Father’s parental rights after finding that each of them (1) knowingly placed or kno w ing l y allo wed the childr en to remain in conditio ns or surro undings that endangered their physical or emotional well

- being, as set f orth by Section 161.001(b)(1)( D) of the Texas Family Code, (2) engaged in conduct or knowingly place d the children with pers o ns who en gaged in condu ct that endangered thei r physical or emotional well

- being, as set forth by Section 161.001(b)(1)(E), (3) co ntumaciously refused to submit to a reasonable and lawful order of a court as described by Section 1 61.001(b)(1)(I), (4) cons t r u ctivel y abandoned th e children as described b y Section 161.001(b)(1)(N), (5) failed to comply with the provisions of a court ord er that specified the actions necessary for Mother to obtain the return of the children, as describe d by Section 161.001( b)(1 ) ( O ), and ( 6 ) used a co ntrolled substance in a m anner that endangered the health or safety of the children, as described by Section 161.001(b)(1) (P). See T EX . F AM . C ODE A NN . § 161.001(b)(1)(D), (E), (I), (N), (O), (P) (Supp.)

. The trial cou r t also fo und t hat te rmination of Mother ’ s and Father’s parental rights was in the children’s best interests. See T EX . F AM . C ODE A NN . § 161.001(b)(2) (Supp.)

.3

terminat ing his parental rights to J.W. because the Department’s petition failed to name hi m as J.W.’s parent. We agree that there are no meritorious gr ou nds fo r r eversal of the trial court’s order terminating Mother’s parental rights to her children. Accordingly, we affirm the trial court’s order terminating Mother’s parental rights. Because Father raises no complaint regarding the termination of his p ar ental rig hts to S.S., J.S., and S.S., we also affirm that portion of the trial

co urt’s judgment. However, beca use we determine that the trial court erred by terminating Father’s parental rights to J.W. in the absence of pleadings by the Department seeking such
act ion , we vacate the trial court’s judgment terminating Father’s parental rights as to J.W. only. I. There Are No Meritorious Grounds for Reversal of the Termination of Mother’s Parental Rights Mother’s court

- appointed appellate counsel has filed a mo tio n to withdraw and a brief discussing the applicable law and evaluatin g the entire record in this case . Counsel states that she has reviewed the record and has found no genuinely arguable issues that could be raised on appeal. The brief sets out the proce dur al history of the case and summarizes the evidence elicited during the t rial court proceedings. Meeting the requirements of Anders , counsel has provided a professional evaluation of the record demonstrating why there are no arguable ground s to be advan ced. See Anders , 386 U.S. at 743

– 44; In re Schulman , 252 S.W .3d 403, 406 (Tex. Crim. App. 20 08) (orig. proceeding); see In re P.M
. , 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (recognizing that Anders procedures apply in parental

- rights termin at ion c ases). On No vember 12 , 2021, counsel mailed to Mother copies of the brief, the appellate record, and the motion to withdraw. Mother was informed of h er right s to review the record and4

file a pro se response. By letter dated November 12 , this Court in for m ed Moth er tha t any pro se response was due on or before December 2

. On January 12 , this Court further informed Mother that the case would be set for submission on the briefs on February 2

. We received neither a pro se response from Mother nor a mo tio n r e questin g an e xtension of time in which to f ile such a response. We h ave determined that Mother ’ s appeal is wholly frivolous

. We have independently reviewed the entire appellate record and, like counsel, have determined that no arguable issue

s upports an a ppe al by Mother

. See Bleds oe v. State , 178 S.W.3d 824, 8 26

– 27 (Tex. Crim. App. 20 05). Even so, we deny Mother ’ s counsel ’ s motion to withdraw. See In re P.M
. , 520 S.W.3d at 27 (noting that in parental

- rights termination cases, court

- appointed counsel ’ s d uty to her client gene rall y ex tends “through the exhaustion of appeals , ” “ including the filing of a petition for review” in the Texas Supreme Court). If Mother desires to pursue this matter in the Texas Supreme Court, counsel may fulfill her du ty “by fili n g a petition for revie w th at s atisfi es the standards for an Anders brief. ” See id

. at 28. II. The Tri al Court Erred by Terminating Father’s Parental Rights to J.W. in the Absence of Any Pleading Requesting Such Action The Department named anothe r man as J. W .’s father in its peti ti on. A lthoug h DNA test results showed that the other man did not fa ther J.W., the Department never filed an amended petition and did not seek a trial amendment to correct the error. As a result, o ur review of the Depart ment’s peti t ion shows that it did no t seek to te rminate Father’s parental rights to J.W. Eve n so, because D NA test results showed , just four days before trial, that J.W. was Father’s child , the trial court adjudicated Father’s parentage and terminated his parental r i ghts to J.W.5

“The Su p reme Co urt of the United States and the Suprem e Court of Texas have

reco gnized that involuntary termination of parental rights involves fundamental constitutional rights.” In re S.R.M

. , 601 S.W.2d 766, 769 (Tex. App.

— Ama rillo 1980, no pet.) (citing Stanl e y v. Il linois , 405 U.S. 645, 651 (1972); In re G.M

. , 596 S. W.2d 846 (Tex. 1980) )

. As a result, when the Department seeks to permanently terminate the relationship between a parent and a child, it must observe fundamentall y fair pro ce dures. In re E.R
. , 38 5 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer , 45 5 U.S. 745 (1982)). “The most basic of these is notice.” Id

. Moreover, “[ t ] he judgment of the court shall conform to the pleadings, the nature of the case pr oved and t he verdict, if any, and s hall be so fr amed as to give the party all the relief to wh ich he [or she] may be entitled either in law or equity.” In re P.M.G

. , 405 S.W.3d 406, 416 (Tex. App.

— Texarkana 2013, no pet.) (quoting T EX . R. C IV . P

. 301). “ Because th e party ’ s pleadings inv oke the t rial c ourt ’ s jurisdiction to render a judgment, an order not supported by the pleadings is void for lack of jurisdiction. ” Id. at 416

– 17 ; see In re A.V

. , No. 13

- 14

- 00620

- CV, 2015 WL 1957093, at *5 (Tex. App.

— Corpu s Christi Ap r. 30, 2 015, no pet.) (mem. op .) (co ncluding that terminating Father’s parental rights in the absence of pleadings constituted fundamental error); In re S.A.A

. , 279 S.W.3d 853, 856 (Tex. App.

— Dallas 2009, no pet.) (“A
court ’ s jurisdiction to re nder judgm en t is inv oked by plead ings, and a jud gment unsupported by pleadings is void.” (q uoting Ex parte Fleming , 532 S.W.2d 122, 123 (Tex. App.

— Dallas 1975, orig. proceeding ) ) )

. Since “[a] judgment, absent issues tried by consent, must conform to the pleadings , ” r elief “may no t be granted in t h e abse nce of pleadings to support that relief.” In re P.M.G

. , 405 S.W.3d at 417.6

The Department first argues that, even though it did not plead for the trial court to terminate Father’s parental rights to J.W. , Father ha s failed to pres erve the err or. The De partment then argues that the issue was tried by cons ent because, among other things, Father did not object t o the trial after his parentage was adjudicated and witnesses testified about J.W. without object ion. Howev er , we conclude that Father was n ot re quired to preserve fundamental
error, t he adjudication of Father’s parentage was not sufficient to give Father notice that the Department was seeking termination of his parental rights to J.W. , and nothing s hows that t he trial

- by

- consent doct rine applies in th e situ ation before us. Yet, even applying the trial

- b y consent doctrine out of an abundance of caution , we co nclude that the evidence introduced by the Department was equally applicable to the alleg ations in its p et ition to terminate Mot her’s parenta l r ights an d Father’s parental rights to S.S., J.S., and S. S. , precluding a conclusion that Father’s parental

- right s termination was tried by consent. “A party must make the trial court aware of a compl aint, timely an d plainly, and obtain a ruling to pre ser ve an is sue for appellate review.” In re A.V. , 2015 WL 1957093, at *3 (citing T EX . R. A PP . P. 33.1; In re B.L.D
. , 113 S.W.3d 340, 349 (Tex. 2003)). “However, jurisdictional defects represent fundamen tal error and m ay be raised for the fir st time on ap pea l.” Id. (citing Mapco, Inc. v. Carter , 817 S.W.2d 686, 687 (Tex. 1991) (per curiam) ). “A judgment must be supported by the pleadings, and a trial court exceeds its jurisdiction if it renders a judgme nt in the absen ce of pleadings.” Id. (citing T EX . R

. C IV . P

. 30 1). “ Rendering judgment without jurisdiction is fundamental error. ” Id. (citing Cotton v. Cotton , 57 S.W.3d 5 06, 510 (Tex. App.

— Waco 2001, no pet. ) ). “ Because appellant questions the trial court ’ s jurisdi ct ion to render7

judgment, the issue m ay be rais ed for the first time on appeal. ” Id. (citing Mapco, Inc
. , 81 7 S.W.2d at 687 )

. To determine whether a claim was pled, we must determine whether the pleadings are adequate to state , “with reas onable certainty ” and without reference to outside in fo rmation, “ the relief sought with sufficient information upon which to base a judgment.” In re P.M.G

. , 405 S.W.3d at 417 (quoting Stoner v. Thompson , 578 S.W.2d 679, 68 3 (Tex. 1979) ). The Department’ s pleading named an other man as J.W.’s father and sought to term inate his parent al rights. The Department ’s argument that the trial court had jurisdict ion over the children, who

w ere the subject matter of the dispute, and had personal jurisdiction o ver Father because of t he allegatio ns against the other chil dren fa ils to consider the “ total a bsence from the record of any notice to the appellant that t he trial court was trying, con sidering or even contemplating termination upon any unpled statutory g rounds. ” In re S.R.M

. , 60 1 S.W.2d at 770. It cannot be sho wn that Father had notic e that the D epartment sought to terminate his parental rights to J.W. ba sed on the live pleading becau se Father did not even know that J.W. was his biological child until f our days before trial. Ev en though the Department alleged g rounds f or terminating F ather’s pare ntal rights to other children, the Department listed no grou nds for terminating his parent al rights to J.W. As a result, we conclude that termination of Father ’s parental rights to J. W. in the a bsence of any pleading re questing such action con stituted fun damental error, which was not required to be preserved. E ven so, the Department asks us to apply the trial

- by

- consent doctrine. “Absent trial by consent, judgment on an unpled acti on is void. ” In re S.A.A

. , 279 S. W.3d at 85 6 (citing Stoner ,8

578 S.W.2d at 682 ). “We note other appella te 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 aga i nst the p are nt
. ” In re A.V. , 2015 WL 1957093, at *4. E very case cited by the Department on trial by consent is easily distinguishable since none involves the situation here. Instead, the Depa rtment’s c ited trial

- by

- co ns ent cases are ones in which th e D epartment cl early filed a pleading to terminate the parent’s rights on c ertain grounds, evidence of additional grounds that were not pled were admitted into evidence without objection, and pare ntal rights were terminated ba sed on the grounds that were omi tted from th e pleadings. See In re C.J.G

. , No. 04

- 19

- 00237

- CV, 201 9 WL 5580253, at *5 (Tex. App.

— San Antonio Oct. 30, 2019, no pet.) ( not designated for publication ) (finding that Father trie d the issue of termination bas e d on Ground O by consent whe r e the Depart ment’s amende d petition

s ought to terminate his parental rights on other grounds with respect to the same child); In re B.L.H
. , No. 14

- 18

- 00087

- CV, 2018 WL 3385119, at *9 (Tex. App.

— H ousto n [14th Dist.] July 12, 20 1 8, no pet.) (mem. op.) ( find i ng terminati on on Ground O tried by M other’s consent where the Department filed a ple ading to ter minate Mother’s parental rights on other grounds with respect to the same child ); In re K.S

. , 448 S.W.3 d 521, 534 (Tex. App.

— Tyle r 2014, pet. denied) ( overrul i ng Mother’s compliant tha t the trial court erred by terminating her parental rights o n Indian Chi ld Welfare Act grounds because they were not alleged in the Department’s petition seeking to termi nate her parental rights to the same child ); In re A.J.B

. , N o . 14

- 02

- 0079 4

- CV, 2003 WL 21403480, a t *2 (Tex. App.

— Houston [14th Dist.] June 19, 20 03, pet. den ied) (mem. op.) (overruling Father’s complaint that there were no pleadings to justify9

termination of h is parental rights based o n evidence that he impregnate d child’s mot her by sexual assault in a suit brought by the child’s adoptive mother, w hich sought to terminate Father’s parental rights on other grounds as to the same child ) ; see also In re G.M

. , No. 04

- 13

- 00689

- CV, 2014 WL 12 4 2662, at *2

– 3 (Tex. App.

— San Antonio Mar. 26, 2014, no pet.) (mem. o p. ) (over ruling Mother’s complaint that the trial court erred by remo ving her as managing conservator of the child where the Department ’s petition did not s pecif ically seek to remove Moth e r as joint managing conserva t or, but wher e Department filed a pet ition to ter minate her parental rights to the child a nd also requested t o be named permanent sole managing conservator because “[t]echnical rules of practice and p leadings are of little impo r tance in determining issues concerning t he custody of children ” (quoting L eithold v. Plass , 413 S.W.2d 698, 701 (Te x. 1967)) )

. 2 Becaus e t he Department has not cited us to, and this Court has not found, any cases applying the t rial

- by

- consent doctrine to t he absence of a pleading s eeking to term inate parental rights t o a specific child , we find that nothing shows t hat the trial

- by

- con sent doctrine applies to the situation in this case. See In re A.V

. , 2015 WL 19570 93, at *4 ( “ [T] he trial by consent doc tri n e does not apply here, wher e there is no pleading whatsoever s eeking to terminate appellant’s parental rights. In the abs ence of a pleading seeking affirmative relief, the trial court is w ithout jur isdiction to re nder judgment.”). In any event, “ t ri al b y consent i s a doctrine tha t is only intended to cover the e xceptional case in which it clearly appears from the record as a whole that the parties tried the [unpled]

2 Although the Department cites to the rule that “[t]echnical rules of practice and p leadings a r e of litt le i m portance i n determining issues concerning the c ustody of children,” Leithold v. Plass , 413 S.W.2d 698, 701 (Tex. 1967), this rule has not been app lied to a case like this one where the pleadings fail to seek termination of a parent ’s relatio n ship to a spe c ific chi ld

.10

issue.” In re A.B.H

. , 2 66 S.W.3d 596, 600 (Tex. App.

— Fort Worth 2008, no pet.) ( citi ng R E /MAX of Te x ., Inc. v. Katar Corp

. , 9 61 S.W.2d 32 4, 328 (Tex. App.

— Houston [1st Dist.] 1997), pet. denied , 98 9 S.W.2d 363 (Tex. 1999)). “The doctrine of trial by consent is no t intended to e stablish a gener al rule of practice and should be applied wit h c a re; it shou l d never be appli ed in a d oubtful situ ation.” In re A.V

. , 2015 WL 1957093, at *4 n.8 (quotin g In re P.D.D. , 256 S.W.3d 834, 841 (Tex. App.

— Texarkana 20 08, no pet.) ) (finding th at t rial court was without jurisdiction to terminate Father’s par en ta l rights even though Departmen t sought to terminate Mother’s parental rights and listed th e alleged father as “unkn own”) ; see In re A.B.H

. , 266 S.W.3d at 600

. Here, we find that the Department’s evidence a t trial with respect to J.W. did not rise to the level of su p port ing a finding t hat ter mination of Fa ther’s parental rights was tried by consent. As a result , and as further explained below, “we conclude that the appellant did not knowingly relinquish or wai ve h[is] right to have the statutory groun ds f or termination stated in the pe tition, and that []he did not expressly or meaningfully consent to a trial upo n the unpled grounds.” In re S.R.M. , 601 S.W.2d at 770

.

“ To determine whether an issue was tried by consent, the court must examine the record

no t for evidence o f the issue, but rather for evidence of trial of the issue. ” In re A.B.H

. , 266 S.W.3d at 600 (empha sis added) ( citing RE/MAX of Tex., Inc

. , 961 S.W.2d at 328) . “ Consent may be found only where evidence regarding a party ’ s unpleaded iss ue i s developed un d er circumstances indica ting both part ies understood the issue was in the case , and the other pa rty failed to make an appropriate complaint. ” Id. Our review of the record shows that no such circ umstances existed because “[e]vidence rele van t to other pled causes of action does n ot11

amount to t rial by consent.” RE/MAX of Tex

. , Inc. v. Katar Corp

. , 96 1 S.W.2d 324, 328 (Tex. App.

— Houston [1st Dist.] 199 7), pet. denied , 989 S.W.2d 363 (Tex. 1999). H ere, the Department sought to terminate Mo the r ’s parental ri g hts to all four childre n and Father’s parental rights to three of those child ren . At trial, th ere was no evidence specifically related to Father’s parental rights as to J.W. that could not also be interpreted as evidence supporting the gro u nds actually p l ed by the Depart ment. 3 E vidence of F ather’s failure to complete the family s ervice plan and ev idence on other grounds did not serve to give Fathe r notice that the Department was seeking terminat ion of his parental rights to J.W. because su c h evidence app l ied equally to t he Depa rtment’s efforts to termi nat e his parent al rights to S.S., J.S., and S.S. The Department’s witnesses also referred to “the paren ts” collectively when testifying about what was i n the best interests of the children , a n d evidence related t o J.W.’s best int erests also applied t o the Department’s a llegation that termination of Mother’s parental rights to J.W. was in his best interests. Father’s testimony at trial was not specific as to any of the children and, as a re sul t , was relevant to th e petition to ter minate his parental r i ghts to S.S., J.S., and S.S. Last, in announcing its rul ing, the trial court did not name J.W. specifically. After reviewing this record, we cannot conclud e that the evidence was developed un der a circumstance indic a ting that Father unders tood that the Department was seeki ng to terminate his parental rights to J.W. In this case , there are no pleadings seeking to terminate Father’s parental rights to J.W. ,
a nd we conclude , even assuming that t he t rial

- by

- consent do c trine applied, tha t termi natio n of

3 The evidence sho wed that Mother was charged with sexually abusing J.W. and that the Department’s witnesses spoke generally about J.W.’s all egations of abuse without stating that it was committed by Fathe r and made general s tatements t h a t th e children did no t want to talk about their parents

.12

Fath er’s parental rig hts to J.W. was not tried by consent. As a result, we find “that the trial court exceeded its jurisdiction in re n dering judgment against [Fa ther] because there was no pleading

see k ing to terminate h i s parental rights” to J.W

. In re A.V

. , 2015 WL 1957093, at *5; see In re S.R.M

. , 601 S.W.2d at 77 0

– 7 1; see also In re A.B.H

. , 266 S.W.3d at 599

– 600

. III. Conclusion We affirm the trial court’s order terminating Mother’s parental ri g hts to a ll four ch i ldre n and also af

firm the trial court’s judgment termin ating Father’s parental rights to S.S., J.S., and S.S . However, we vacate the trial court’s judgmen t terminating Father’s parental rights to J.W. I n all other respects, the tr i al c ourt’ s jud gment is affir med

.

Jack Carter Justic e Dat e Submitted: February 2 , 2022 Date Decided: February 3 , 2022