in the Interest of J.M.B. III and A.J.J. ( 2018 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00185-CV
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IN THE INTEREST OF J.M.B. III AND A.J.J.
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CV1306482
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MEMORANDUM OPINION
S.D. appeals from an order terminating her parental rights to her minor
children, J.M.B. III and A.J.J., after a bench trial. 1 In three issues, S.D. challenges
the sufficiency of the evidence supporting termination of her parental rights under
section 161.001(b)(1)(L) and 161.001(b)(1)(Q) of the Texas Family Code and argues
that she was denied effective assistance of counsel. 2 See Tex. Fam. Code Ann. §
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The trial court’s order also terminated the parental rights of the children’s
father, who is not a party to this appeal.
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S.D. does not challenge the sufficiency of the evidence supporting the best
interest finding.
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161.001(b)(1)(L), (Q) (West Supp. 2017). We affirm the trial court’s termination
order.
ISSUES ONE AND TWO
In issue one, S.D. challenges the sufficiency of the evidence supporting
termination of her parental rights under section 161.001(b)(1)(Q), and in issue two,
S.D. challenges the sufficiency of the evidence supporting termination of her
parental rights under § 161.001(b)(1)(L). See id. We address issues one and two
together.
The Department alleged in its petition that S.D. had been convicted of being
criminally responsible for the death or serious injury to a child, but explicitly limited
its allegations to convictions for sexual assault, aggravated assault, aggravated
sexual assault, or injury to a child, elderly individual or disabled individual.3 The
Department did not allege that S.D. was convicted of any of the other offenses
enumerated as grounds for termination in section 161.001(b)(1)(L), one of which is
indecency with a child. See Tex. Fam. Code Ann. § 161.001(b)(1)(L)(iv). The
Department’s petition did not allege that S.D. had knowingly engaged in criminal
conduct that resulted in conviction and confinement for not less than two years from
3
The record is silent regarding the reason the Department decided to include
a partial list of the offenses set forth in subsection (L), and more importantly, why
the Department chose not to include the actual offense committed by S.D.
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the date of petition, as provided in section 161.001(b)(1)(Q). See id. §
161.001(b)(1)(Q).
S.D., who is currently incarcerated, testified by phone. S.D. testified that she
is currently incarcerated as a result of a 2014 conviction for indecency with a child,
and she is not eligible for parole until 2023. The trial court admitted a copy of the
judgment of conviction into evidence as an exhibit. The Department did not elicit
further testimony from S.D. regarding the indecency with a child conviction, nor did
S.D.’s counsel or the guardian ad litem, and no evidence was adduced regarding any
other convictions.
During a break in the testimony, the trial judge commented, “[The] mother
can be . . . L or Q. Convicted of indecency, that’s L. More than two years is Q.”
After the Department and the children’s father had rested, the trial judge commented,
“I want you to argue . . . L and Q for the mother. . . . I find there’s enough evidence
in the record for those[.]” S.D.’s counsel then argued as follows:
Unfortunately, Judge, on L and Q, our hands are tied with that, because
we received a certified copy of the judgment for [S.D.], here, in Liberty
County where she was charged and sentenced [for] indecency with a
child . . . . And you’ve heard that she[is] not eligible for parole until
2023.
At the conclusion of the closing arguments, the trial judge stated that he would
terminate S.D.’s parental rights “under L and Q[,]” and the trial judge signed an
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order terminating S.D.’s parental rights after finding that S.D. had been (1) convicted
of sexual assault, aggravated assault, aggravated sexual assault, or injury to a child,
elderly individual or disabled individual and (2) had knowingly engaged in criminal
conduct that resulted in her conviction of an offense and imprisonment for not less
than two years from the date the Department filed its petition, “pursuant to §
161.001(b)(1)(Q), Texas Family Code[.]”
A judgment must conform to the pleadings and proof. Tex. R. Civ. P. 301. A
trial court’s jurisdiction is invoked by the pleadings, and a judgment terminating
parental rights cannot be based upon grounds not pleaded in the petition. In re
Guardianship of Winn, 372 S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet); In
the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.—Amarillo 1980, no
writ). However, unpleaded claims that were tried by express or implied consent are
treated as though they were raised by the pleadings. Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 495 (Tex. 1991); In the Interest of 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). “To determine whether
an issue was tried by consent, we examine the record for ‘trial of the issue’ as
opposed to ‘evidence of the issue.’” In the Interest of K.S., 448 S.W.3d at 533
(quoting In the Interest of S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009,
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no pet.)). “A party who allows an issue to be tried by consent and fails to raise the
lack of a pleading before submission of the case cannot later raise the pleading
deficiency for the first time on appeal.” Id.
By failing to raise the lack of a pleading before submission of the case, S.D.
failed to preserve this issue for appeal. See id. In addition, because S.D.’s attorney
did not challenge the trial judge’s suggestion that subsections (L) and (Q) supported
termination and instead affirmatively stated that, due to the evidence introduced
regarding S.D.’s conviction for indecency with a child, S.D.’s hands were tied as to
the applicability of those subsections, the record demonstrates that the issues were
tried by consent. See id. at 533-34. We therefore conclude that sufficient evidence
supported the trial court’s findings regarding subsections (L) and (Q). Accordingly,
we overrule issues one and two.
ISSUE THREE
In issue three, S.D. argues that if this Court determines that her counsel tried
the unpleaded termination grounds by consent, she received ineffective assistance of
counsel. Specifically, S.D. asserts that there is no plausible reason why a competent
attorney “would concede a basis for termination of parental rights which [is] outside
the scope of the pleadings.” S.D. contends that counsel’s performance was deficient,
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and but for counsel’s deficient performance, the outcome of the trial would have
been different.
The Texas Supreme Court has adopted the Strickland standards for evaluating
the effectiveness of counsel in parental-rights termination cases. In the Interest of
M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). To prevail on a claim of ineffective assistance of counsel, an
appellant must demonstrate that trial counsel’s performance was deficient, and that
counsel’s deficiency prejudiced the defense. Id. at 545. An appellant must establish
both prongs of Strickland. Id. An appellant must show that counsel’s errors were so
serious as to deprive her of a fair trial whose result is reliable. Strickland, 466 U.S.
at 687. In evaluating a claim of ineffective assistance, we consider all of the
circumstances surrounding the case, and we must focus on whether counsel
performed in a reasonably effective manner. In the Interest of M.S., 115 S.W.3d at
545. We must strongly presume that counsel’s conduct falls within the wide range
of reasonable professional assistance and was motivated by sound trial strategy;
however, counsel is ineffective when the representation provided is so deficient that
it renders the proceedings fundamentally unfair. Id. When the record is silent
regarding the reasons for counsel’s actions, we may not speculate to find counsel
ineffective. Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
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623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). On a silent record, “courts
will ordinarily presume that the challenged action might be considered sound trial
strategy.” Maxwell v. Tex. Dep’t of Family & Protective Servs., No. 03-11-00242-
CV, 2012 WL 987787, at *6 (Tex. App.—Austin Mar. 23, 2012, no pet). (mem. op.).
In this case, no motion for new trial was filed, and no affidavit from trial
counsel appears in the record. Because the record is silent, we may not speculate to
find counsel ineffective, and we must presume that counsel engaged in sound trial
strategy. See Walker, 312 S.W.3d at 623; Maxwell, 2012 WL 987787, at *6. If S.D.’s
counsel had raised the pleadings issue before the trial judge, the Department could
have requested, and would be entitled to, a trial amendment to correct the deficiency
in its pleadings. See Tex. R. Civ. P. 66; Zarate v. Rodriguez, 542 S.W.3d 26, 37
(Tex. App.—Houston [14th Dist.] 2017, pet. denied) (holding that a trial court has
no discretion to refuse a trial amendment unless (1) the opposing party presents
evidence of surprise or prejudice, or (2) the amendment is facially prejudicial
because it asserts a new cause of action). S.D. had notice that one of the grounds
upon which the Department sought to terminate her parental rights was her
conviction of one of the criminal offenses identified in section 161.001(b)(1)(L).
Because S.D. failed to satisfy the first prong of Strickland, she has failed to
demonstrate that trial counsel provided ineffective assistance. Accordingly, we
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overrule issue three and affirm the trial court’s order terminating S.D.’s parental
rights.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on August 29, 2018
Opinion Delivered October 4, 2018
Before McKeithen, C.J., Kreger and Johnson, JJ.
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