in Re J.O. ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00381-CV
IN THE INTEREST OF J.O., a Child
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-PA-01006
Honorable Richard Garcia, Associate Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: December 11, 2019
REVERSED IN PART AND REMANDED
The trial court terminated parental rights to J.O and appointed the Texas Department of
Family and Protective Services as J.O.’s sole permanent managing conservator. 1 J.O.’s parents do
not appeal. In the termination order, the trial court ordered J.O. to remain placed in the home of
Elizabeth Escamilla-Rodriguez and Eduardo Rodriguez and ordered the Department “to proceed
to adoption in 40–90 days, unless appeal is filed.” Appellant Wendy Langford is the adoptive
mother of J.O.’s half-brother. She intervened and now appeals the termination order as to J.O.’s
placement and adoption. Langford argues in three issues that the relief the associate judge ordered
(1) does not comport with the pleadings, (2) improperly limits the Department’s managing
1
To protect the identity of the minor child in this appeal, we refer to her by her initials. See TEX. FAM. CODE ANN.
§ 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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conservatorship, and (3) conflicts with the district judge’s findings. 2 We sustain Langford’s first
and second issues and reverse the termination order as to adoption and the placement restrictions
placed upon the Department as managing conservator. We affirm the termination order in all other
respects and remand for further proceedings consistent with this opinion.
BACKGROUND
On May 10, 2018, the Department filed an original petition for protection of a child, for
conservatorship, and for termination of the parent-child relationship between J.O. and her parents.
At the time, J.O. was three-days old. Prior to filing its petition, the Department had removed J.O.
from her mother based upon allegations of the mother’s drug use, limited prenatal care, and mental
health disorders. J.O.’s father was unknown. The Department requested that it be appointed J.O.’s
temporary managing conservator and that the Department be named J.O.’s permanent sole
managing conservator if J.O. could not be reunified with either parent or permanently placed with
a relative or other suitable person. The trial court ordered the Department to be named temporary
sole managing conservator.
The Department’s initial goal following removal was reunification of J.O. with her mother.
To facilitate this result, the Department placed J.O., the day she was removed, with the
Rodriguezes, who lived within 50-miles of J.O.’s mother in San Antonio. Beginning in May 2018,
the Department’s caseworker communicated with Langford, the adoptive mother of J.O.’s half-
brother. In their conversations, Langford told the caseworker that she was interested in becoming
a foster parent to J.O. In September 2018, Langford became licensed to be a foster parent, and,
2
The Honorable Richard Garcia, Associate Judge, presided over a bench trial and signed the termination order. The
parties waived de novo review by the district court to secure a trial setting before the associate judge. Langford’s third
issue concerns findings the district court judge made in a pre-trial order. We do not reach the third issue.
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around that time, the Department changed its plan from reunification of J.O. with her mother to
termination of the mother’s parental rights.
In October 2018, the Department requested permission to move J.O. from her current
placement with the Rodriguezes to placement with Langford. The associate judge denied the
Department’s request, and the Department requested a de novo hearing before the district court.
On November 29, 2018, the day before the de novo hearing, the Rodriguezes filed a petition in
intervention, in which they sought their appointment as sole managing conservators of J.O. or
alternatively to adopt the child. The Rodriguezes also requested their appointment as temporary
managing conservators of J.O. and that J.O. be placed with them for the duration of the suit.
Langford, Eduardo Rodriguez, and the Department’s caseworker testified at the de novo
hearing held on November 30, 2018. Langford testified that she wished to adopt J.O. if parental
rights were terminated. She also testified that she was able and willing to foster J.O. for the
duration of the suit at her home in Waller, Texas, which is approximately 180 miles from San
Antonio. Eduardo Rodriguez testified that the Department told him that he and his wife had a
good chance to adopt J.O. when J.O. was placed with them. He further testified that J.O. did not
have special needs but was rehabilitating from a recent surgery to her tongue to address a risk of
aspiration. The caseworker testified that the Rodriguezes were under the “Foster-to-Adopt
Program.” According to the caseworker, the Department did not treat foster parents in the program
differently than other foster parents but used the program to indicate whether the foster parents
were looking to adopt children. The caseworker testified that she advised the Rodriguezes not to
become overly attached to J.O. because J.O. might be removed from their home.
After hearing the evidence, the trial court affirmed the associate judge’s order to keep J.O.
at her current placement with the Rodriguezes. The trial court also ordered J.O.’s placement into
Langford’s home for periodic visits. The trial court remarked that policies supported both
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temporary placements. The Department’s policy to keep a child within 50-miles of a parent before
termination weighed in favor of placement with the Rodriguezes as too did the public policy to
minimize placement changes. Because J.O. would continue therapy related to her surgery while
with the Rodriguezes, this fact also weighed in the Rodriguezes’ favor. The Department’s policy
to place siblings together and the respect owed the Department as sole temporary managing
conservator weighed in favor of placement with Langford. Nevertheless, the trial court stated in
no uncertain terms:
[T]he Department is acting in good faith . . . . [A]t the end of this case, if the
parental rights of the parents are terminated, the Department has to give written
consent to an adoption. If they don’t give you [the Rodriguezes] that written
consent, you will never adopt this child.
The trial court also found that the Rodriguezes did not have standing to intervene.
On January 3, 2019, the trial court confirmed its oral pronouncements with a written ruling
containing its findings. That same day, the trial court ordered that the Rodriguezes’ petition in
intervention be stricken. On January 28, 2019, Langford filed a petition in intervention. 3
On May 1, 2019, the associate judge held a bench trial. The Department’s investigator, the
Department’s caseworker, Langford, and J.O.’s mother testified; the Rodriguezes did not testify.
The caseworker testified it was in J.O.’s best interest to be placed with Langford. Langford wished
J.O. to be placed in her home and intended to adopt J.O. if parental rights were terminated. J.O.’s
mother testified that she wished J.O. to be placed with J.O.’s half-brother if the mother’s parental
rights were terminated. At closing, J.O.’s attorney and guardian ad litem recommended
termination of parental rights and that J.O. be placed with Langford. He stated: “I would like to
[ac]knowledge that the Rodriguezes are wonderful foster parents, but it’s a policy of the
3
“Under Texas law, a third party is not required to secure the court’s permission to intervene,” but the petition is
“subject to being stricken by the court for sufficient cause on the motion of any party.” State v. Naylor, 466 S.W.3d
783, 788 (Tex. 2015) (orig. proceeding) (citations and brackets omitted); see also TEX. R. CIV. P. 60.
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Department to keep kids together, and that this is the only way we can do it.” The trial court took
the case under advisement.
On May 16, 2019, the trial court signed an order terminating parental rights to J.O. and
appointing the Department as her sole permanent managing conservator. The trial court entered
the following findings:
6.1. [The] Court finds the child has been placed in a foster-to-adopt home, [the]
Rodriguez[es’], since age 3 days old.
6.2. [The] Court is aware of CPS policy regarding placement of siblings.
6.3. [The] Court finds the evidence at this hearing indicates the proposed placement,
Langford, is a very good placement.
6.4. [The] Court finds, at [a] prior hearing, the current foster-to-adopt home is also
a very good placement, as acknowledged by [the] child’s attorney at this hearing.
6.5. [The] Court finds the paramount guiding principal is the best interest of the
child.
6.6. [The] Court finds the evidence presented at trial does not present evidence
regarding [the] best interest of [the] child as regards to placement and permanency,
but only presented as [a] policy decision.
6.7. [The] Court finds other siblings are in separate placements.
6.8. [The] Court finds the following orders are based on [the] best interest of the
child.
The trial court ordered in a section titled “Further Orders”:
11.1. [The] Child remains in [the] current foster-to-adopt home, and CPS is to
proceed to permanency at [the] Rodriguez[es’s] home.
11.2. [The] Court finds the best interest of the child is to remain in [the]
Rodriguez[es’] foster-to-adopt home.
11.3. [The] Court orders sibling contact to be set up regularly with all 3 children, if
possible, even though placed in 3 separate homes.[4]
4
At trial, Langford testified that a third sibling lived with an adoptive mother in Austin and that Langford planned
sibling visits among the three children.
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11.4. Twenty days after judgement [sic] signed, CPS to process adoption in 40–90
days, unless appeal is filed.
Langford appeals these specific orders relating to placement and adoption. The
Department supports placing J.O. with Langford and waived a response brief. The Rodriguezes,
having been denied intervention, are not parties to this appeal and also did not file a brief.
Although the Department waived its brief and the Rodriguezes did not file a brief, we must
independently determine whether Langford’s arguments are sound. Cf. Haas v. Voigt, 940 S.W.2d
198, 201 n.1 (Tex. App.—San Antonio 1996, writ denied) (“[P]arties cannot concede a question
of law necessary to the proper disposition of a point of error.”).
DISCUSSION
Langford argues in her first issue that the trial court’s order is void insofar as it orders the
Department to proceed with permanency of J.O. at the Rodriguezes’ home and orders the
Department to process her adoption by the Rodriguezes because this relief was not pled or tried by
consent. In her second issue, Langford argues the trial court had no authority to order that J.O.
was to remain placed with the Rodriguezes or to order the Department to consent to J.O.’s adoption
by the Rodriguezes because no limitation on the Department’s sole managing conservatorship was
requested by any party. 5
Standard of Review & Applicable Law
“Texas is a ‘fair notice’ state, which means that all parties are entitled to fair notice of a
claim.” In re M.G.N., 491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied) (citations
5
See TEX. FAM. CODE ANN. § 153.371 (specifying the rights and duties of a nonparent appointed as sole managing
conservator). In her brief, Langford prays that we vacate the parts of the termination order “which relate to placement
and adoption.” Because Langford does not address the trial court’s order as to sibling contact and does not pray that
we vacate the order as to sibling contact, we do not address the issue or vacate that part of the order related to sibling
contact. See TEX. R. APP. P. 38.1(i) (requiring an appellant’s brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record); id. 38.1(j) (requiring an appellant’s brief
to contain a short conclusion that clearly states the nature of the relief sought).
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omitted). “Ultimately, the purpose of pleadings is to give the adversary parties notice of each
parties [sic] claims and defenses, as well as notice of the relief sought.” Perez v. Briercroft Serv.
Corp., 809 S.W.2d 216, 218 (Tex. 1991). “All pleadings shall be construed so as to do substantial
justice.” TEX. R. CIV. P. 45. We do not give pleadings a “too cabined reading.” SmithKline
Beecham Corp. v. Doe, 903 S.W.2d 347, 354 (Tex. 1995). “To determine whether a claim was
pled, we must determine whether the pleadings are adequate to state ‘with reasonable certainty,’
and without reference to outside information, ‘the relief sought with sufficient information upon
which to base a judgment.’” In re G.M., No. 04-13-00689-CV, 2014 WL 1242662, at *3 (Tex.
App.—San Antonio Mar. 26, 2014, no pet.) (mem. op.) (quoting Stoner v. Thompson,578 S.W.2d
679, 683 (Tex. 1979)). “Pleadings must at a minimum notify the opposing party of the claim
involved.” Messier v. Messier, 389 S.W.3d 904, 907 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).
A judgment must conform to the pleadings. TEX. R. CIV. P. 301; Cunningham v. Parkdale
Bank, 660 S.W.2d 810, 813 (Tex. 1983). “Because a party’s pleading invokes the trial court’s
jurisdiction, an order or judgment not supported by the pleadings is void for lack of jurisdiction.”
Rivera v. Figueroa, No. 04-18-00256-CV, 2019 WL 691502, at *2 (Tex. App.—San Antonio Feb.
20, 2019, no pet.) (mem. op.); accord In re G.M., 2014 WL 1242662, at *3. “If issues not raised
by the pleadings are tried by express or implied consent of the parties, these issues shall be treated
as if they had been raised by the pleadings.” Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex.
App.—Houston [14th Dist.] 2013, no pet.); see also TEX. R. CIV. P. 67. “To determine whether an
issue was tried by consent, we must review the record not for evidence of the issue, but rather for
evidence of trial of the issue.” In re G.M., 2014 WL 1242662, at *4. “An unpleaded issue may
be deemed tried by consent when the evidence on the issue is developed without objection under
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circumstances indicating both parties understood the issue was being contested.” In re C.J.G., No.
04-19-00237-CV, 2019 WL 5580253, at *5 (Tex. App.—San Antonio Oct. 30, 2019, no pet. h.).
Analysis
At the time of trial, the only pleadings on file were the Department’s original petition and
Langford’s petition in intervention. In its petition, the Department sought termination of parental
rights and sought to be appointed as permanent sole managing conservator of J.O. if J.O. could not
be reunified with either parent or permanently placed with a relative or other suitable person. In
her petition in intervention, Langford sought only attorney’s fees and “general relief.” The trial
court had struck the Rodriguezes’ petition in intervention on the Department’s motion.
At trial, the Department and Langford sought (1) termination of the parental rights of J.O.’s
mother and the unknown father, (2) the Department’s appointment as managing conservator, and
(3) J.O.’s placement with Langford. Alternatively, the Department requested that Langford take
nothing if the trial court decided not to place the child at that time. J.O.’s mother sought to maintain
her parental rights, and, in the alternative, requested that J.O. be placed with Langford if the
mother’s parental rights were terminated. J.O.’s attorney and guardian ad litem recommended
termination and that J.O. be placed with Langford. The Rodriguezes were not parties at the time
of trial and were not discussed in trial testimony. No exhibits were admitted at trial. In the entire
proceeding, only the attorney and guardian ad litem mentioned the Rodriguezes, when, at closing,
he stated that the Rodriguezes “are wonderful foster parents” and that he had recently been to their
home to visit J.O. The attorney and guardian ad litem stated that J.O. seemed happy and healthy
on his recent visit and that Langford and the Rodriguezes communicated and had a good
relationship.
On this record, the matter of J.O.’s adoption was not pled or tried by consent. The
Department’s petition raised only the issues of termination and conservatorship. While the
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Rodriguezes attempted to intervene and raise the issue of adoption, the trial court struck their
petition in intervention. Langford intervened, but did not raise the issue of J.O.’s adoption by
either her or the Rodriguezes. 6
The matter of permanency and adoption by the Rodriguezes was also not tried by consent.
Because their intervention failed, the Rodriguezes were not parties at trial and did not present
affirmative evidence relevant to the issue of adoption. Among other matters, the Rodriguezes did
not present evidence to prove that the Department consented to their adoption or that there existed
an exception to the requirement for consent. See TEX. FAM. CODE ANN. § 162.010(a) (“Unless the
managing conservator is the petitioner, the written consent of a managing conservator to the
adoption must be filed. The court may waive the requirement of consent by the managing
conservator if the court finds that the consent is being refused or has been revoked without good
cause.”). Underscoring the fact that no evidence was presented at trial as to matters related to
permanency or adoption by the Rodriguezes, the trial court referenced a previous hearing to
support its finding that the Rodriguezes’ home was a good placement. The termination order
states:
6.4. [The] Court finds, at [a] prior hearing, the current foster-to-adopt home is . . .
a very good placement, as acknowledged by [the] child’s attorney at this hearing.
(emphasis added). 7
In sum, the issue of permanency and J.O.’s adoption by the Rodriguezes was not pled or
tried by consent. The pleadings did not notify Langford, the Department, or the attorney and
6
Langford prayed for “general relief,” but this general prayer cannot be used to “enlarge a pleading to the extent that
it embraces an entirely different cause of action for which fair notice does not exist.” Stoner, 578 S.W.2d at 683
(holding that a prayer “for such other and further relief to which plaintiff (or cross-plaintiff, intervenor, etc.) may show
himself entitled” did not enlarge a pleading to give a party fair notice that the trial court might award money damages
where there was no mention in the pleading of money damages sustained and no specific prayer for money damages).
7
This finding reveals that the trial court considered evidence that was not in the trial record. See In re E.F., No. 04-
18-00635-CV, 2019 WL 2194539, at *2 n.4 (Tex. App.—San Antonio May 22, 2019, no pet.) (“The only evidence
that can support the trial court’s [termination] order is that evidence admitted at trial.”).
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guardian ad litem of the Rodriguezes’ claim for adoption, and the record does not show that
Langford, the Department, or the attorney and guardian ad litem understood the issue of adoption
was involved. Consequently, the record does not support the trial court’s judgment ordering the
Department to proceed to permanency at the Rodriguezes’ home and to process adoption. See
TEX. R. CIV. P. 301; Rivera, 2019 WL 691502, at *2; cf. In re J.M., 352 S.W.3d 824, 828 (Tex.
App.—San Antonio 2011, no pet.) (reversing parental termination order where the judgment was
not supported by the pleadings after the Department abandoned its pleading for termination).
The analysis as to custody is slightly different than the analysis as to adoption because the
Texas Supreme Court has long recognized that pleading standards may be relaxed on issues
concerning the custody of children. See In re M.G.N., 491 S.W.3d at 408 (citing Leithold v. Plass,
413 S.W.2d 698, 701 (Tex. 1967)). In Leithold v. Plass, a father sought modifications to a divorce
decree with respect to the “custody and control” of his son. 413 S.W.2d at 701. The trial court
modified the decree to allow the father to have visitation for two-weeks each year at the father’s
home out-of-state. Id. at 700. On appeal, the mother argued that the trial court’s order, which
modified visitation rights, did not conform to the pleadings, which sought modification as to
custody only. Id. at 700–01. The supreme court held that the pleadings supported the lesser relief
of modification to visitation rights, stating:
[W]e are of the view that a suit properly invoking the jurisdiction of a court with
respect to custody and control of a minor child vests that court with decretal powers
in all relevant custody, control, possession and visitation matters involving the
child. The courts are given wide discretion in such proceedings. Technical rules
of practice and pleadings are of little importance in determining issues concerning
the custody of children. . . . [O]nce the child is brought under its jurisdiction by
suit and pleading cast in terms of custody and control, it becomes the duty of the
court in the exercise of its equitable powers to make proper disposition of all
matters comprehended thereby in a manner supported by the evidence.
Id. at 701 (citations omitted). We have applied this precedent to affirm custody judgments that
depart from technical requests in pleadings. See, e.g., In re M.G.N., 491 S.W.3d at 407–08
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(applying Leithold to affirm a modification to a conservatorship order that awarded a mother the
superior right to possession of her children at all times not specifically designated when neither
party pled for this specific relief and both parties testified at trial as to possession of the children);
In re G.M., 2014 WL 1242662, at *3–4 (applying Leithold to affirm a judgment removing a
grandmother as managing conservator where the Department pled for its appointment as sole
managing conservator and the grandmother and the Department presented evidence relevant to the
grandmother’s conservatorship at trial). 8
However, here, unlike in Leithold and cases relying upon it, no pleadings were filed or
evidence adduced at trial that would give the Department, Langford, or the attorney and guardian
ad litem fair notice of the custody restriction the trial court imposed. Unlike the father in Leithold,
the Rodriguezes did not have any pleadings on file and did not adduce any evidence at trial to
support J.O.’s placement in their home. Cf. Leithold, 413 S.W.2d at 701 (noting that the court of
appeals recognized the record amply supported “a true visitation order” and that the mother did
not challenge whether the trial court’s modification order was against the weight and
preponderance of the evidence). In fact, no party developed the record as to the Rodriguezes’
custody of J.O. Thus, even considering the relaxed pleading standards as to custody described in
Leithold, we hold the trial court’s judgment ordering J.O.’s placement with the Rodriguezes is not
supported by the pleadings and was not tried by consent. See TEX. R. CIV. P. 301; Rivera, 2019
WL 691502, at *2. We cannot say the parties had fair notice of the placement issue determined
by the trial court; therefore, the order as to placement is void. See TEX. R. CIV. P. 301; Rivera,
8
We continue to look to Leithold for guidance as current precedent, although one of our sister courts has questioned
its continued force after the enactment of the Texas Family Code, which Leithold predated. See Baltzer v. Medina,
240 S.W.3d 469, 476 n.5 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
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2019 WL 691502, at *2; In re M.G.N., 491 S.W.3d at 406; see also Messier v. Messier, 389 S.W.3d
at 907 (“Pleadings must at a minimum notify the opposing party of the claim involved.”).
CONCLUSION
We sustain Langford’s first and second issues and hold that the trial court’s judgment is
not supported by the pleadings or tried by consent. We reverse the trial court’s judgment insofar
as it orders J.O. to remain in her placement with the Rodriguezes and insofar as it orders the
Department to proceed to permanency at the Rodriguezes’ home and process adoption. We
remand the case for further proceedings consistent with this opinion.
Rebeca C. Martinez, Justice
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