in the Interest of L. A., a Minor Child ( 2006 )

                                    NUMBER 13-05-367-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

         IN THE INTEREST OF L.A., A MINOR CHILD

                       On appeal from the County Court at Law No. 5

                                        of Nueces County, Texas.

                                         MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Castillo

Memorandum Opinion by Chief Justice Valdez  

Appellant, K. A., appeals from the judgment of the trial court terminating her parental rights.  We reverse. 

Background

K. A.=s child, L.A., was born in 2001.  In 2004, the Texas Department of Protective and Regulatory Services (TDPRS) filed an Aoriginal petition for protection of a child, for conservatorship, and for termination in suit affecting the parent-child relationship.@  TDPRS requested (1) emergency orders allowing for immediate removal of the child, (2) appointment of TDPRS as temporary sole managing conservator of the child, (3) appointment of TDPRS as permanent sole managing conservator of the child, (4) termination of the father=s parental rights, and (5) appointment of an attorney ad litem and a guardian ad litem for the child.  At no point in the petition did TDPRS indicate that it was also requesting termination of K. A.=s parental rights.

During opening arguments, counsel for TDPRS asserted that the trial court should terminate K. A.=s parental rights. K. A.=s counsel immediately objected, stating Ait appears that [TDPRS] is making allegations outside the scope of the pleadings, and I would object to any witness being called to testify regarding the termination of [K. A.=s] parental rights because there=s nothing in the pleadings that supports that . . . .@  The court declined to rule on counsel=s objection immediately, and ultimately ruled to terminate K. A.=s parental rights. The order terminating her rights and the rights of L. A.=s alleged father was entered on May 10, 2005.  The order also appointed TDPRS permanent managing conservator of  L. A. and directed that she be placed with relatives.

K. A. filed a motion for new trial following entry of the order of termination.  At the June 21, 2005, hearing on the motion, TDPRS conceded that its petition had not included a request to terminate K. A.=s parental rights, but it requested that the trial court allow a post-trial amendment of the pleadings to include this request.  The trial court granted this motion and ruled that the pleadings could be amended to reflect a request to terminate K.A.=s parental rights. This appeal ensued.

Amendment of Pleadings

By her first issue, K. A. argues that the trial court erred in allowing TDPRS to amend its pleadings after trial.  Specifically, she argues that because the petition did not seek termination of her parental rights, the court erred by allowing the petition to be amended to include this request for termination after entering judgment to that effect.

A judgment must be supported by the pleadings and, if not so supported, it is erroneous.  See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).  With regard to termination of parental rights in particular, the parent is entitled to pleadings that allege the grounds for termination before the judgment can be permitted to stand, given the gravity of the potential outcome.  See In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.BCorpus Christi 1998, no pet.); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (proceedings must be strictly scrutinized and strictly construed in favor of the parent in termination proceedings).  The termination of parental rights is a serious and grave proceeding, and parents are clearly entitled to advance notice of this type of proceeding against them. See Tex. Fam. Code Ann. ' 161.101 (establishing required allegations in a petition for termination); Stanley v. Illinois, 405 U.S. 645, 651 (1972) (characterizing parental rights as "essential," a "basic civil right," and "far more precious . . . than property rights"); Holick, 685 S.W.2d at 20‑21.

The rules of civil procedure allow for a Atrial amendment@ of pleadings if it becomes clear that the evidence and pleadings do not conform.  See Tex. R. Civ. P. 66.  However, this amendment has to occur Aat the trial@ or Aduring the trial.@  See id.  It has long been the rule in this Court that Aafter judgment is rendered, it is too late to amend [the pleadings], whether by a trial amendment or an amendment complete in itself.@  Boarder to Boarder Trucking, Inc. v. Mondi, Inc., 831 S.W.2d 495, 498 (Tex. App.BCorpus Christi 1992, no writ) (citing Warren v. Ward Oil Corp., 87 S.W.2d 501, 502‑03 (Tex. Civ. App.BTexarkana 1935, writ dism'd)); see also Mayhew v. Dealey, 143 S.W.3d 356, 371 (Tex. App.BDallas 2004, pet. denied).  

In this case it is uncontested by the parties that the pleadings did not request termination of K. A.=s parental rights and that the court=s judgment erroneously terminating those rights was signed and entered May 10, 2005.  TDPRS=s motion to amend the pleadings was not filed until June 6, 2005, and the court=s order to amend the pleadings was not entered until June 21, 2005.  Prior cases have allowed amendment of pleadings on the same day judgment is rendered; however, the law does not allow for pleadings to be so dramatically amended over a month after entry of the judgment so as to include a previously unpled request for termination of parental rights.   See In re T.R.R., 986 S.W.2d at 37 (reversing order of termination, in part A[b]ecause the petition failed to state any statutory ground for the termination@).

TDPRS argues in response that K. A. waived this issue for purposes of appeal by failing to adequately object to the introduction of evidence about K. A.=s parenting at trial.  In its appellate brief, TDPRS essentially argues that K. A. allowed  Atrial by consent@ on the question of termination.

We disagree.  K. A.=s counsel immediately objected to the discussion of the termination of K. A.=s parental rights, and the court responded by noting the objection but declining to rule until the end of trial, at which point the objection was implicitly overruled.  See Tex. R. App. P. 33.1.  This demonstrates that there was no Aconsent@ by K. A. to the trial of issues regarding termination.  See Tex. R. Civ. P. 67; In re Walters, 39 S.W.3d 280, 289 (Tex. App.BTexarkana 2001, no writ) (limiting the rule of trial by consent to Athose exceptional cases where the parties clearly tried an unpled issue by consent.@).

K. A. did not continually object to every witness called by TDPRS to testify about her parenting skills, which TDPRS argues is proof of consent to the trial of the termination issue.   However, K. A.=s objection to the discussion of termination of her rights had already been effectively lodged and noted by the court.  The proceeding involved the trial of possession and conservatorship issues relating to K. A.=s child, and the witnesses were called to provide evidence relevant to those issues.  Having made her objection to discussion of termination known immediately, K. A. did not consent to trial of the issue of termination by allowing testimony from witnesses regarding properly pled issues of conservatorship and possession.  The similarity of evidence involved in termination and other TDPRS proceedings like possession and conservatorship does not imply that termination was tried by consent in this case.  See Compass Bank v. MFP Fin. Servs., 152 S.W.3d 844, 854‑55 (Tex. App.BDallas 2005, pet. filed) (AWhen evidence relevant to both a pleaded and an unpleaded issue has been admitted without objection, the doctrine of trial by consent should not be applied unless clearly warranted.@).

The trial court erred by allowing the post-judgment amendment of the pleadings to include the termination of K. A.=s parental rights.  We sustain K. A.=s first issue on appeal.  We need not address K.A.=s remaining issues on appeal.  See Tex. R. App. P. 47.1.

Conclusion

We reverse the trial court's judgment to the extent it terminates K.A.=s parental rights, and we render judgment that K.A.=s parental rights are not terminated.  The case is remanded for further proceedings consistent with this opinion.   

ROGELIO VALDEZ

Chief Justice

Memorandum Opinion delivered and

filed this 11th day of May, 2006.