In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-24-00035-CV

IN THE INTEREST OF R.G., A CHILD

On Appeal from the 6th District Court

Lamar County, Texas

Trial Court No. 91576

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice Rambin
2

MEMORANDUM OPINION

The Department of Family and Protective Services filed a petition to terminate Mother’s 

and Father’s parental rights to their daughter, Raynese.

1

 Following a bench trial, the trial court 

terminated Mother’s and Father’s parental rights after finding that (1) they knowingly placed or 

allowed Raynese to remain in conditions or surroundings that endangered her physical or 

emotional well-being, (2) they engaged in conduct or knowingly placed Raynese with persons 

who engaged in conduct that endangered her physical or emotional well-being, (3) they 

constructively abandoned Raynese, (4) they “failed to comply with the provisions of a court 

order that specifically established the actions necessary” to obtain Raynese’s return, as described 

in Section 161.001(b)(1)(O) of the Texas Family Code, and (5) termination of their parental 

rights was in the child’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), 

(O), (b)(2) (Supp.). 

On appeal, Mother and Father both argue that the evidence was insufficient to support a 

ground of termination. While Mother does not challenge the best-interest findings as to her, 

Father argues that the trial court erred by finding that termination of his parental rights was in 

Raynese’s best interests. Mother and Father also argue that the trial court erred by terminating 

their parental rights based on grounds N and O because the Department’s petition failed to plead 

those statutory grounds and the issue was not tried by consent. Father alternatively argues that 

his counsel rendered ineffective assistance. Lastly, Father argues that the trial court erred by 

failing to provide a statutory warning in open court designed to notify Father that his parental 

1We use pseudonyms to protect the identity of the child. See TEX. R. APP. P. 9.8.
3

rights were subject to termination if he was unwilling or unable to provide Raynese with a safe 

environment. 

We find that sufficient evidence supported the trial court’s finding that Mother’s and 

Father’s parental rights should be terminated under ground E and that doing so was in Raynese’s 

best interests. Even so, we sustain Mother’s and Father’s points of error arguing that parentalrights termination under grounds N and O was unsupported by the pleadings. As a result, we 

modify the trial court’s judgment to remove those grounds. Because our findings on those issues 

are dispositive of this appeal, we overrule the remaining points of error and affirm the trial 

court’s judgment. 

I. A Statutory Ground for Termination of Parental Rights is Supported by Legally 

and Factually Sufficient Evidence 

In their first points of error, Mother and Father both assert that the evidence was legally 

and factually insufficient to support the trial court’s findings that statutory grounds existed to 

support the termination of their parental rights.

A. Standard of Review 

“The natural right existing between parents and their children is of constitutional 

dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting 

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to 

make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel 

v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates 

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at 

trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is . . . required to 
4

‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to 

support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at 500). 

“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (alteration in 

original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied)).

“In order to terminate parental rights, the trial court must find, by clear and convincing 

evidence, that the parent has engaged in at least one statutory ground for termination and that 

termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re 

E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of 

proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of 

the allegations sought to be established.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing 

In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof necessarily affects our 

review of the evidence.” Id.

“In our legal sufficiency review, we consider all the evidence in the light most favorable 

to the findings to determine whether the fact-finder reasonably could have formed a firm belief 

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920 

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) 

(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We 

assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a 

reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have 

reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re 

J.P.B., 180 S.W.3d at 573). 
5

“In our review of factual sufficiency, we give due consideration to evidence the trial 

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209 

S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder 

reasonably could have found to be clear and convincing and determine ‘“whether the evidence is 

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of 

the . . . allegations.”’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108); see

In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of the entire record, the disputed 

evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so 

significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then 

the evidence is factually insufficient.” In re L.E.S., 471 S.W.3d at 920 (quoting In re J.F.C., 96 

S.W.3d at 266). “‘[I]n making this determination,’ we must undertake ‘“an exacting review of 

the entire record with a healthy regard for the constitutional interests at stake.”’” Id. (alteration 

in original) (quoting In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)). “We also recognize that the 

trial court, as the fact-finder, is the sole arbiter of a witness’ demeanor and credibility, and it may 

believe all, part, or none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 

3077784, at *3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re 

H.R.M., 209 S.W.3d at 109). When, as in this case, “findings of fact and conclusions of law are 

not properly requested and none are filed, the trial court’s judgment implies all findings of fact 

necessary to support it.” In re Z.E., No. 05-22-01337-CV, 2023 WL 3595627, at *5 (Tex. 
6

App.—Dallas May 23, 2023, pet. denied) (mem. op.) (citing Shields Ltd. P’ship v. Bradberry, 

526 S.W.3d 471, 480 (Tex. 2017)).

2

“Despite the profound constitutional interests at stake in a proceeding to terminate 

parental rights, ‘“the rights of natural parents are not absolute; protection of the child is 

paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 

2003)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)). “A child’s emotional and physical 

interests must not be sacrificed merely to preserve parental rights.” Id. (quoting In re C.A.J., 459 

S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d 17, 26

(Tex. 2002))).

B. The Evidence at Trial 

Tiffany Massey, an investigator for the Department, testified that Mother and Father “had 

previous removals and termination of their parental rights” to other children. As a result, Massey 

said that the Department became concerned when Raynese was born to Mother and Father in 

September 2022. According to Massey, Mother was “intellectually disabled, ha[d] a lower IQ, 

[and] ha[d] trouble meeting her daily needs for herself,” and both Mother and Father were 

unemployed and “did not have gas money.” Due to those factors, Massey said that Mother and 

Father, who “were both responsible for [Raynese’s] feedings,” were unable to meet the baby’s 

nutritional needs, causing her to lose weight. Massey added that Father, who had a history with 

2We note that, without any citation to relevant caselaw, analysis, or discussion of harm, Father argues, in a 

conclusory manner, that his counsel “failed to request that the trial court issue findings of fact and conclusions of 

law.” When a party provides no argument or legal authority to support his appellate position, the issue is 

inadequately briefed. See TEX. R. APP. P. 38.1(i). 
7

marihuana, had tested positive again. As a result, Massey obtained an order from the trial court 

requiring Mother and Father to participate in family-based safety services on December 7, 2022. 

Amber Ivey, a family-based safety services supervisor, testified that Raynese’s doctor 

“had concerns during the investigation that [Mother and Father] weren’t mixing the formula 

correctly, that they were diluting it.” According to Ivey, Mother was shown how to mix the baby 

formula appropriately but still struggled to do so, causing Raynese to drop “from [the] 7th 

percentile in her weight to the 5th percentile in her weight.” 

It soon became apparent that Mother and Father were unable to care for the child when, 

according to Ivey, the Department learned that Mother and Father had decided to let Raynese 

stay with a friend, Ashley, who began taking care of the child. Ivey testified that Mother and 

Father’s decision to let their newborn stay with Ashley caused “concern [over] how much 

attachment [was] really there and how much . . . [they were] willing to provide for [Raynese],” 

especially since they had not participated in their court-ordered services. Monique Andretti, a 

Child Protective Services (CPS) caseworker, testified that Raynese was removed from Ashley’s 

home, which was “filthy,” had roaches “crawling all over the walls,” and posed “a health hazard 

for the child.” 

When discussing the parents’ progression with the court-ordered, family-based safety 

services, Andretti testified that Mother had completed parenting classes. Even so, Mother and 

Father were ordered to obtain employment and go to counseling but failed to do so. Mother was 

also ordered to undergo an East Texas Council on Alcoholism and Drug Abuse (ETCADA) 

assessment but did not. Although Mother was granted weekly visits, she only visited five times 
8

in seven months due to, among other things, lack of transportation. Andretti said Court 

Appointed Special Advocates (CASA) went over the bus schedules with Mother to allow her to 

make her appointments, but Mother often failed to use the bus. According to Andretti, Father 

missed drug tests and was unable to provide the Department with a negative drug test, which was 

required to allow him to visit Raynese. As a result, Father had not seen Raynese in fourteen 

months. When Father took a hair-follicle drug test in January 2024, he tested positive for 

cocaine. While he admitted to smoking marihuana, which he obtained from Oklahoma, he 

denied ever using cocaine. 

According to Andretti and Julie Pursley, a CASA volunteer, Mother and Father’s 

apartment building strongly smelled of smoke, and Raynese’s doctor did not believe the 

apartment would provide a good atmosphere for the child in light of her asthma. Because they 

could not meet Raynese’s needs, Andretti testified that termination of Mother’s and Father’s 

parental rights was in the child’s best interests. 

Mother, who had a ninth-grade education, testified that, as her payee, Father received,

from her Social Security disability, approximately $400.00 per month after rent was paid. 

Mother admitted that she would need assistance in raising Raynese if she were returned to her. 

Father testified that he had stopped living with Mother in the hopes that the child would be 

returned to her. 

C. Sufficient Evidence Supports the Ground E Findings 

“Only one predicate finding under Section 161.001[b](1) is necessary to support a 

judgment of termination when there is also a finding that termination is in the child’s best 
9

interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. 

denied) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.))). Even 

so, when the trial court’s findings under grounds D or E are challenged on appeal, due process 

demands that we review the evidence supporting the findings under at least one of those grounds. 

See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“We hold that due process and 

due course of law requirements mandate that an appellate court detail its analysis for an appeal of 

termination of parental rights under [S]ection 161.001(b)(1)(D) or (E) of the Family Code.”). 

This is because termination of parental rights under these grounds may implicate the parent’s 

parental rights to other children. Id. at 234; see TEX. FAM. CODE ANN. § 161.001(b)(1)(M) 

(Supp.) (providing as a ground for termination of parental rights that the parent “had his or her 

parent-child relationship terminated with respect to another child based on a finding that the 

parent’s conduct was in violation of Paragraph (D) or (E)”).

Ground E permits the termination of a parent’s parental rights “if the court finds by clear 

and convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the 

physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). 

“‘[E]ndanger’ means more than a threat of metaphysical injury or potential ill effects of a lessthan-ideal family environment . . . .” In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). 

“‘[E]ndanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v. 

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—

Texarkana 2007, no pet.); see In re L.E.S., 471 S.W.3d at 923. “It is not necessary that the 

conduct be directed at the child or that the child actually suffer injury.” In re L.E.S., 471 S.W.3d 
10

at 923. Under ground “(E), it is sufficient that the child’s well-being is jeopardized or exposed to 

loss or injury.” Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367). “Further, 

termination under [ground] (E) must be based on more than a single act or omission. Instead, a 

‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting 

Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 

2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.))); 

see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67.

Ground E “refers only to the parent’s conduct, as evidenced not only by the parent’s acts, 

but also by the parent’s omissions or failures to act.” In re S.K., 198 S.W.3d 899, 902 (Tex. 

App.—Dallas 2006, pet. denied); In re N.S.G., 235 S.W.3d at 366–67. The endangering conduct 

may also occur “either before or after the child’s removal by the Department.” In re Z.J., 

No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth Nov. 21, 2019, pet. 

denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 

617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). 

Here, the Department established that Mother and Father had previously lost their 

parental rights to other children. While in their care, Raynese became malnourished and kept 

losing weight despite Mother and Father receiving instruction on how to properly feed the child. 

The failure to properly feed Raynese jeopardized her health and placed her in the bottom fifth 

percentile of weight in her age group. Neither Mother, who was intellectually disabled, nor 

Father had stable employment and, because they were unable to care for Raynese, eventually 
11

decided to allow Ashley to care for their newborn. However, Andretti testified that Ashley’s 

home was filthy, covered in roaches, and posed a health hazard to the child. 

In our analysis under ground E, we may also consider a parent’s failure to complete 

relevant requirements of a family service plan. Id.; In re U.H.R., No. 07-18-00318-CV, 2019 

WL 81874, at *5 (Tex. App.—Amarillo Jan. 2, 2019, no pet.) (mem. op.). Mother and Father 

were told that, in order to ensure Raynese’s return, they would have to obtain stable housing for 

the child, but their house smelled of smoke, posing a further hazard to Raynese, who had been 

diagnosed with asthma. Mother also failed to complete counseling or undergo an ETCADA 

assessment. Massey testified that Mother had difficulty meeting her own daily needs, and at 

trial, Mother admitted that she would need assistance to care for Raynese if she were returned to 

her.

Also, Father admitted to smoking marihuana, which he obtained in Oklahoma and 

brought back to Texas. “‘Because it exposes the child to the possibility that the parent may be 

impaired or imprisoned, illegal drug use may support termination under’ Ground E.” In re 

H.M.J., No. 06-18-00009-CV, 2018 WL 3028980, at *5 (Tex. App.—Texarkana June 19, 2018, 

no pet.) (mem. op.) (quoting In re A.L., No. 06-14-00050-CV, 2014 WL 5204888, at *7 (Tex. 

App.—Texarkana Oct. 8, 2014, no pet.) (mem. op.)). Moreover, Father tested positive for 

marihuana and cocaine during the pendency of the case, and his “failure to remain drug-free 

while under the Department’s supervision will support a finding of endangering conduct under 

[ground] (E).” Id. (quoting In re J.A.W., No. 2-08-215-CV, 2009 WL 579287, at *4 (Tex. 

App.—Fort Worth Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vasquez v. Tex. Dep’t 
12

of Protective & Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied))). 

Based on the testimony at trial, the trial court could find, by clear and convincing 

evidence, that both Mother and Father engaged in a course of conduct that endangered Raynese’s 

physical well-being. Since there was sufficient evidence supporting the trial court’s finding 

under ground E, we need not review its findings under ground D. See J.T. v. Tex. Dep’t of Fam. 

& Protective Servs., No. 03-21-00070-CV, 2021 WL 2672055, at *9 (Tex. App.—Austin June 

30, 2021, no pet.) (mem. op.); In re M.F., No. 14-19-00964-CV, 2020 WL 2832166, at *8 (Tex. 

App.—Houston [14th Dist.] May 28, 2020, pet. denied) (mem. op.). We overrule Mother’s and 

Father’s first points of error. 

II. Sufficient Evidence Supports the Trial Court’s Best-Interest Finding 

Next, Father argues that the evidence was legally and factually insufficient to support the 

trial court’s finding that termination of his parental rights was in the child’s best interests. After 

reviewing the record, we disagree. 

A. Standard of Review 

“There is a strong presumption that keeping a child with a parent is in the child’s best 

interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus 

Christi–Edinburg Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 

(Tex. 2006) (per curiam)). “Termination ‘“can never be justified without the most solid and 

substantial reasons.”’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) 

(quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). 
13

In determining the best interests of the child, courts consider the following Holley factors:

(1) the desires of the child, (2) the emotional and physical needs of the child now 

and in the future, (3) the emotional and physical danger to the child now and in 

the future, (4) the parental abilities of the individuals seeking custody, (5) the 

programs available to assist these individuals, (6) the plans for the child by these 

individuals, (7) the stability of the home, (8) the acts or omissions of the parent 

that may indicate the existing parent-child relationship is not a proper one, and 

(9) any excuse for the acts or omissions of the parent. 

Id. at 819 (citing Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976)); see In re E.N.C., 384 

S.W.3d at 807; TEX. FAM. CODE ANN. § 263.307(b). 

The Department is not required to present proof of each Holley factor. In re M.C., 482 

S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied) (citing In re C.H., 89 S.W.3d at 27). 

“When considering the child’s best interest[s], we may take into account that a parent is unable 

to provide adequate care for a child, lacks parenting skills, or exercises poor judgment.” Id.

(citing In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.)). “Parental 

drug abuse, which reflects poor judgment, is also a factor that may be considered when 

determining the child’s best interest[s].” Id. (citing In re M.R., 243 S.W.3d 807, 820 (Tex. 

App.—Fort Worth 2007, no pet.)). “[T]he parent’s . . . past performance as a parent [is] relevant 

in determining the child’s best interest[s].” Id. (citing In re C.H., 89 S.W.3d at 28). Further, we 

may consider evidence used to support the grounds for termination of parental rights in the bestinterest analysis. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

B. Analysis of the Holley Factors 

As for the first factor, Raynese was eighteen months old at trial and was too young to 

communicate her desires. Even so, Andretti testified that Raynese was bonded with both her 
14

Mother and foster mother but had no bond with Father. The record shows that Father had not 

seen Raynese for fourteen months. As a result, the first Holley factor weighs in favor of 

terminating Father’s parental rights to his child. See In re K.O., 488 S.W.3d 829, 842 (Tex. 

App.—Texarkana 2016, pet. denied). 

Next, while the emotional and physical needs of Raynese now and in the future were 

great given her young age, the evidence at trial showed that Father had placed Raynese in 

physical danger by failing to feed her appropriately. He also demonstrated a lack of parental 

ability by placing the newborn with Ashley, without the Department’s knowledge, after being 

unable to care for her. Ivey said that Raynese had been diagnosed with asthma and had frequent 

ear infections, which would require medical treatment, but according to Massey, Father was 

unemployed and “did not have gas money.” Father had recently moved out of Mother’s 

apartment, was living with his mother, and claimed to make $400.00 per month from “personal 

construction . . . [for] family members or friends of family members.” Even so, Father testified 

that he did not intend to live with Raynese and Mother. 

Considering that testimony, Father’s history with Raynese, and the fact that he had lost 

parental rights to other children, the trial court was free to conclude that Father would not 

adequately provide for Raynese’s physical and emotional needs. See In re J.M., 603 S.W.3d 

163, 171 (Tex. App.—Texarkana 2020, no pet.) (“Evidence of past misconduct or neglect can be 

used to measure a parent’s future conduct.” (quoting In re Z.M., 456 S.W.3d 677, 689 (Tex. 

App.—Texarkana 2015, no pet.))) Also, the trial court could find that Father lacked parental 

abilities because Father contributed to Raynese’s malnourishment, left her to be cared for by 
15

Ashley, could not provide a negative drug test so that he could visit Raynese, and wished for the 

child to return to Mother, who had her own disabilities and difficulty caring for herself. 

Accordingly, we find that the second, third, and fourth Holley factors favor terminating Father’s 

parental rights. 

As for the programs available to assist Father, Father testified that he had applied for 

Social Security benefits after he sustained a back injury, was denied, but was trying to reapply 

with help from his mother. Because he had previously been denied, nothing was guaranteed. 

Further, the Department testified that it had counseling programs available to assist Father, but 

he had failed to take advantage of them. We find that the fifth Holley factor weighs against 

Father. 

As for the sixth and seventh factors, Father did not plan for the child to live with him. 

Instead, he wanted the Department to place Raynese with Mother. That was contrary to the 

Department’s plan. Because Raynese was bonded to her foster mother, who had a stable home 

and was able to take care of all the child’s needs, both the Department and CASA believed that it 

was in the child’s best interests to terminate parental rights so that she could remain in the stable 

foster home. Pursley also indicated that Raynese’s foster family might adopt her. Given that the 

trial court could find that Mother’s intellectual disability, which led her to endanger Raynese’s 

physical health, was not something that could be resolved, we find that the Department’s plan for 

Raynese to remain in a stable foster home was in the child’s best interests. Accordingly, we find 

that the sixth and seventh Holley factors weigh in favor of terminating Father’s parental rights. 
16

As for the last two Holley factors, Father’s many acts and omissions, for which he had no 

excuse, indicated that the existing parent-child relationship was not a proper one. Father’s 

parental rights to his other children had been terminated. Despite knowing that he had to submit 

negative drug tests to visit Raynese, Father missed many drug tests, tested positive for cocaine, 

and admitted to using marihuana, which he smuggled from Oklahoma, up to two months before 

trial. Father denied using cocaine, but when asked if marihuana were more important than 

Raynese, Father replied, “Me being able to move around and support was more important.” 

Given that Father could have obtained pain relief from legal means, the trial court could have 

determined that Father’s excuse was a poor one and that the excuse, combined with his plan to 

leave Raynese with Mother, showed that the parent-child relationship was not appropriate. 

After weighing the Holley factors, we conclude that legally and factually sufficient 

evidence supported the trial court’s best-interests finding against Father. As a result, we overrule 

Father’s second point of error. 

III. Parental-Rights Termination Under Grounds N and O Was Unsupported by the 

Pleadings 

The Department’s petition did not seek to terminate Mother’s and Father’s parental rights 

under grounds N or O. It was not until after the trial had concluded that the Department first 

announced, during closing argument, that it was seeking termination of parental rights based on 

grounds N and O. Consequently, Mother and Father argue that the trial court erred by 

terminating their parental rights on those grounds. 

“The Supreme Court of the United States and the Supreme Court of Texas have 

recognized that involuntary termination of parental rights involves fundamental constitutional 
17

rights.” In re J.W., No. 06-21-00098-CV, 2022 WL 319868, at *2 (Tex. App.—Texarkana 

Feb. 3, 2022, no pet.) (mem. op.) (quoting In re S.R.M., 601 S.W.2d 766, 769 (Tex. App.—

Amarillo 1980, no pet.) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972))). “As a result, when 

the Department seeks to permanently terminate the relationship between a parent and a child, it 

must observe fundamentally fair procedures.” Id. (citing In re E.R., 385 S.W.3d 552, 554 (Tex. 

2012) (citing Santosky v. Kramer, 455 U.S. 745 (1982))). “The most basic of these is notice.”

Id. (quoting In re E.R., 385 S.W.3d at 554). 

Also, “[t]he judgment of the court shall conform to the pleadings, the nature of the case 

proved and the verdict, if any, and shall be so framed as to give the party all the relief to which 

he [or she] may be entitled either in law or equity.” Id. (alterations in original) (quoting In re 

P.M.G., 405 S.W.3d 406, 416 (Tex. App.—Texarkana 2013, no pet.) (quoting TEX. R. CIV. P.

301)). “Because the party’s pleadings invoke the trial court’s jurisdiction to render a judgment, 

an order not supported by the pleadings is void for lack of jurisdiction.” Id. (quoting In re 

P.M.G., 405 S.W.3d at 416–17) (explaining that error preservation is not required to raise the 

issue of whether a judgment comports with the pleadings); see In re A.V., No. 13-14-00620-CV, 

2015 WL 1957093, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 30, 2015, no pet.) (mem. 

op.); In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.) (“A court’s 

jurisdiction to render judgment is invoked by pleadings, and a judgment unsupported by 

pleadings is void.” (quoting 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 
18

pleadings,’ relief ‘may not be granted in the absence of pleadings to support that relief.’” In re 

J.W., 2022 WL 319868, at *2 (alteration in original) (quoting In re P.M.G., 405 S.W.3d at 417).

Here, the State argues that we should apply the trial-by-consent doctrine, which is 

“intended to cover the exceptional case in which it clearly appears from the record as a whole 

that the parties tried the [unpled] issue.” Id. at *4 (alteration in original) (quoting In re A.B.H., 

266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.) (citing RE/MAX of Tex., Inc. v.

Katar Corp., 961 S.W.2d 324, 328 (Tex. App.—Houston [1st Dist.] 1997), pet. denied, 989 

S.W.2d 363 (Tex. 1999)). “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.” Id. (quoting In re A.V., 2015 WL 1957093, at *4 n.8). 

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

not for evidence of the issue, but rather for evidence of trial of the issue.” Id. (quoting In re 

A.B.H., 266 S.W.3d at 600 (citing RE/MAX of Tex., Inc., 961 S.W.2d at 328)). “Consent may be 

found only where evidence regarding a party’s unpleaded issue is developed under circumstances 

indicating both parties understood the issue was in the case, and the other party failed to make an 

appropriate complaint.” Id. (quoting In re A.B.H., 266 S.W.3d at 600). We do not find such 

circumstances here. 

In this case, although the Department introduced evidence at trial relevant to grounds N 

and O, such evidence was also relevant to the course of conduct necessary to support a finding 

under ground E. Moreover, evidence relevant to the issue of abandonment and failure to follow 

the court-ordered, family-based service plan was also relevant to the best-interests finding. 
19

Because “[e]vidence relevant to other pled causes of action [or grounds] does not amount to trial 

by consent,” we do no find that Mother and Father consented to go to trial on unpled grounds N 

or O. Id. (first alteration in original) (quoting RE/MAX of Tex., Inc., 961 S.W.2d at 328).

We sustain Mother’s and Father’s points of error complaining of the grounds N and O 

findings in the absence of any pleadings by the Department seeking such findings. As a result, 

we must modify the trial court’s judgment by deleting those findings.3,4

IV. Disposition 

We modify the trial court’s judgment by deleting grounds N and O as a basis for 

termination of Mother’s and Father’s parental rights. As modified, we affirm the trial court’s 

judgment. 

Jeff Rambin

Justice

Date Submitted: September 3, 2024

Date Decided: September 11, 2024

3By separate point, Father argued that his counsel rendered ineffective assistance by failing to object to the 

Department’s attempt to terminate parental rights on unpled grounds. Our ruling that grounds N and O must be 

removed as a basis for terminating Mother’s and Father’s parental rights is dispositive of this point of error. 

4

“Chapter 262 [of the Texas Family Code] authorizes a trial court to enter emergency orders and other temporary 

orders.” In re D.W., 533 S.W.3d 460, 464 (Tex. App.—Texarkana 2017, pet. denied) (citing TEX. FAM. CODE ANN.

§§ 262.102–.103). Father also raises a point of error on the basis that the trial court did not provide a statutory 

admonishment during the Chapter 262 adversary hearing “in open court that parental and custodial rights and duties 

may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child 

with a safe environment.” TEX. FAM. CODE ANN. § 262.201(m) (Supp.). Similar admonishments are required at 

status hearings and permanency hearings after the Department has been named temporary managing conservator of a 

child. TEX. FAM. CODE ANN. § 263.006. The statutory warnings Father asserts were required pertain to the trial 

court’s temporary orders under Chapter 262 and 263. Because the trial court issued a final order terminating 

parental rights under Chapter 161, any issues regarding the temporary orders are moot. See In re J.J.R.S., 627 

S.W.3d 211, 225 (Tex. 2021) (finding Mother’s Chapter 262 complaint moot on entry of final judgment regarding 

Mother’s parental rights).