In the Interest of B.Y.B., C.L.B., D.R.B., G.G.B. Jr., and W.R.B. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00402-CV
__________________
IN THE INTEREST OF B.Y.B., C.L.B., D.R.B., G.G.B. JR., AND W.R.B.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 22-10-14152-CV
__________________________________________________________________
MEMORANDUM OPINION
Mother J.B. (“Mother”) appeals from an order terminating her parental rights
to her children B.Y.B., C.L.B., D.R.B., G.G.B. Jr., and W.R.B. (“the children”).1 See
Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2). In a single issue, she challenges the
trial court’s subject-matter jurisdiction to enter the final Order of Termination. For
the reasons explained herein, we affirm.
1
To protect the minor children, we refer to the parents as “Mother” and
“Father,” and we refer to the children by their initials. See Tex. Fam. Code Ann.
§ 109.002(d); Tex. R. App. P. 9.8(b)(2).
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Procedural Background
The Department of Family and Protective Services (“the Department”) filed
an Original Petition for Protection of a Child for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship in Harris County
seeking temporary managing conservatorship of the children and seeking
termination of Mother’s and Father’s parental rights to the children 2 if the children
could not be safely reunified with either parent. The Petition was supported by an
affidavit by a Child Protective Services (“CPS”) representative who stated that the
Department had received a report of “allegations of Refusal of Parental
Responsibility” by Mother. According to CPS there had been a prior referral based
on a report of alleged sexual abuse of some of the children by Mother’s friend. The
affidavit further stated that some of the children had alleged Father sexually abused
them, and Father was “currently incarcerated for Continuous Sexual Abuse of a
Child and 3 counts of Indecency with Child Sexual Contact.”
The Harris County trial court signed an order on May 27, 2021, appointing
the Department as temporary managing conservator of the children. On February 5,
2022, Mother filed a Motion to Transfer Venue requesting to transfer the case to the
2
A sixth child was also the subject of the Original Petition. By the time of
trial, the sixth child had reached the age of majority, and the proceedings and Order
of Termination did not address her. She is also not a subject of this appeal.
2
court of continuing jurisdiction in Montgomery County, and the case was transferred
to the County Court at Law No. 3 in Montgomery County.
On September 22, 2022, Mother filed a Motion for Sever[a]nce requesting a
separate trial from Father. The Motion requested that the trial court
. . . sever her case from the father because it will cause
emotional[] abuse to be in the same room with her abuser and the abuser
of her children. [Mother] will be unable to clearly give testimony in
front of [Father], as she suffers from the trauma inflicted by [Father]
against her and her children.
Counsel for [Mother] requests the Court to sever the case of
[Mother] from [Father] in the interest of justice. The cases heard
together will unduly prejudice the case of [Mother] by allowing the case
of both parents to be heard together. The Jury is likely to be unduly
prejudiced by the testimony of [Father] even though [Mother] was not
charged with a crime against children and has no criminal history.
[Mother’s counsel] prays, on behalf of [Mother], that the Court
grant the relief requested in this motion based on the interest of justice
and more importantly so that justice may be done. . . .
On October 17, 2022, the trial court signed an order denying the motion for
severance. Trial began later the same day, and Mother’s attorney told the court that
Mother had signed an affidavit of voluntary relinquishment. 3 Counsel for the
Department then raised the option to reconsider severing Mother’s and Father’s
cases. Father’s attorney expressed no objection to Mother having a separate trial.
Mother’s attorney told the court that
3
Mother was not present for the trial.
3
[t]he reason my client, wanted [] to have a separate trial even if it was
before the Bench, she did not - - and I told you she felt it was undue
prejudice. She did not want her children to have to appear before
[Father] again, and she did not want to have to appear before [Father].
So that is one of the large reasons that she felt like it was in the
children’s best interest for her to relinquish her rights because that way
the children would not be up here. . . .
The trial court noted that Mother’s execution of an affidavit of voluntary
relinquishment presented “a completely different ground for termination” than what
the Department originally sought, there was no longer the same “congruence of facts
and circumstances[]” as to Mother and Father, and that Mother had never wanted
her case to be heard by a jury. The Department agreed that the concerns about
Mother and Father were “not intertwined like they were before.” The trial court
agreed to sever Mother’s case from Father’s over no objection by the parties, and an
Agreed Order to Sever was signed by the court and counsel for all parties later that
day. 4
Also at the bench trial, a certified copy of Mother’s affidavit of voluntary
relinquishment was entered as an exhibit. A conservatorship supervisor testified for
the Department that she believed that it would be in the children’s best interest for
the court to accept Mother’s affidavit and that in the affidavit, Mother stated that it
was in the children’s best interest for her to relinquish her rights. The supervisor also
The Agreed Order to Sever severed Mother’s case from Cause No. 13-07-
4
07557-CV into Cause No. 22-10-14152.
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testified that Mother had “not alleviated the reason why the children came into [the
Department’s] care[,]” she had not obtained stable housing, and she had not finished
her individual counseling. Mother’s counsel agreed to stipulate that it was in the
children’s best interest for Mother’s parental rights to be terminated, to which the
Department agreed, and the court accepted the stipulation. The supervisor further
testified that she was present when Mother signed the affidavit of relinquishment,
that she believed that Mother knew what she was doing, and that Mother had
concerns about her children being subjected to another trial. The children’s guardian
ad litem also testified that it was in the children’s best interest for Mother’s parental
rights to be terminated.
The trial court found by clear and convincing evidence that Mother had
executed a voluntary affidavit of relinquishment of her parental rights to the
children, and that termination of Mother’s parental rights was in the children’s best
interests. The trial court signed an Order of Termination, terminating Mother’s
parental rights to the children based on Mother’s execution of an affidavit of
relinquishment of parental rights and because termination was in the children’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2). This appeal followed.
Issue
On appeal, Mother argues that the trial court lost jurisdiction over the case
when it severed Father from the lawsuit. According to Mother, Father was an
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indispensable party, without whom it was impossible for the trial court to make a
decision regarding the children’s best interest. Mother further argues that the final
order terminating Mother’s parental rights is void because the trial court had already
lost subject-matter jurisdiction over the case.
Analysis
Mother complains about the trial court’s severance of the termination suit as
to Father from the termination suit as to Mother. Mother argues that under section
102.009(a)(7) of the Family Code, each parent as to whom the parent-child
relationship has not been terminated is entitled to service of citation on the filing of
a petition in an original suit. See Tex. Fam. Code Ann. § 102.009(a)(7). That said,
Mother does not challenge the service on either Father or Mother.
Mother contends that a “suit affecting parent-child relationship requires all
parents to be parties in order for a full disposition to be made regarding a child’s best
interest.” Mother does not cite legal authority to support this assertion. See Tex. R.
App. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”).
Texas Rule of Civil Procedure 41 provides that “[a]ny claim against a party may be
severed and proceeded with separately.” Tex. R. Civ. P. 41. And “[a] trial court may
order separate trials ‘to avoid prejudice.’” In re B.L.D., 113 S.W.3d 340, 346 (Tex.
2003) (citing Tex. R. Civ. P. 174(b)); see also In re B.S., No. 09-06-293-CV, 2007
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Tex. App. LEXIS 3788, at *8 (Tex. App.—Beaumont May 17, 2007, no pet.) (mem.
op.) (“Trial courts have considerable discretion in determining whether to order
separate trials or to sever claims.”). Mother cites no authority that indicates a
severance is not appropriate in cases seeking the termination of parental rights, nor
are we aware of any. See Tex. R. App. P. 38.1(i); see also, e.g., In re D.W., 353
S.W.3d 188, 193-94 (Tex. App.—Texarkana 2011, pet. denied) (finding no abuse of
discretion in severing the parental-rights cases of the mother and the father and
explaining that the separate lawsuits result in appealable, final judgments).
Mother argues that Rule 39(a)(1) of the Rules of Civil Procedure applies,
which provides that “[a] person who is subject to service of process shall be joined
as a party in the action if [] in his absence complete relief cannot be accorded among
those already parties[.]” See Tex. R. Civ. P. 39(a)(1). Mother’s brief fails to explain
how the severance or absence of Father in this case and under these facts prevented
the trial court from reaching a decision on the termination of her parental rights and
the best interest of the children. See Tex. R. App. P. 38.1(i).
In support of her argument that the failure to join Father in the lawsuit
deprived the trial court of subject-matter jurisdiction, Mother cites to Petroleum
Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex. 1966) and Scott v. Graham,
292 S.W.2d 324 (Tex. 1956). In Petroleum Anchor, the Texas Supreme Court stated
“[j]urisdiction over indispensable parties to a suit is as essential to the court’s right
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and power to proceed to judgment as is jurisdiction of the subject matter.” 406
S.W.2d at 892 (citing Scott, 292 S.W.2d at 327). However, the Court did not find the
excluded party in Petroleum Anchor was an indispensable party. Id. at 894.
The Court later addressed Petroleum Anchor in Cooper v. Texas Gulf
Industries, 513 S.W.2d 200 (Tex. 1974). In Cooper, the Court explained that
Petroleum Anchor was decided before Rule 39 was amended in 1971, and the Rule
as amended “initiated an entirely new method for resolving the question of joinder
of parties.” Id. at 203. The Court stated, “contrary to our emphasis under Rule 39
before it was amended, today’s concern is less that of the jurisdiction of a court to
proceed and is more a question of whether the court ought to proceed with those who
are present.” Id. at 204. The Court further stated that under the Rule as amended, “it
would be rare indeed if there were a person whose presence was so indispensable in
the sense that his absence deprives the court of jurisdiction to adjudicate between
the parties already joined.” Id. After Rule 39 was amended, the Court found the
failure to raise the objection to the nonjoinder of a party and absence of that party in
the trial court waived the issue for appeal. See Brooks v. Northglen Ass’n, 141
S.W.3d 158, 163 (Tex. 2004) (citing William V. Dorsaneo, III, Compulsory Joinder
of Parties in Texas, 14 Hous. L. Rev. 345, 369 (1977)); see also Cox v. Johnson, 638
S.W.2d 867, 868 (Tex. 1982) (explaining that, under Rule 39 as amended, the failure
to raise nonjoinder at trial is not fundamental error, and because it is not, the error
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must be preserved in the trial court to preserve it for appeal). In this case, Mother’s
brief fails to explain how Father’s presence was indispensable, and the brief only
makes a conclusory assertion that his absence made it “impossible to make a
decision” about the children’s best interest despite undisputed evidence of Mother’s
voluntary relinquishment and Mother’s stipulation that it was in the children’s best
interest for Mother’s parental rights to be terminated to which the Department
agreed. See Tex. R. App. P. 38.1(i).
We have previously explained that the failure to join a party needed for just
adjudication should be raised by a verified plea in abatement and, by failing to raise
the issue of joinder of parties in the trial court, a party waives the issue for appeal.
See Cahill v. Cahill, No. 09-20-00206-CV, 2022 Tex. App. LEXIS 792, at *21 (Tex.
App.—Beaumont Feb. 3, 2022, pet. denied) (mem. op.) (citing Tex. R. Civ. P. 93(4);
Brooks, 141 S.W.3d at 163; Jones v. LaFargue, 758 S.W.2d 320, 324 (Tex. App.—
Houston [14th Dist.] 1988, writ denied)). We have also explained that the nonjoinder
of parties is not a jurisdictional defect. See id. at *22; see also Stark v. Benckenstein,
156 S.W.3d 112, 118 (Tex. App.—Beaumont 2004, pet. denied) (citing Brooks, 141
S.W.3d at 162; Cooper, 513 S.W.2d at 204; Pirtle v. Gregory, 629 S.W.2d 919, 920
(Tex. 1982)). Because nonjoinder of parties is not jurisdictional and because Mother
failed to raise the issue of nonjoinder at trial, she has waived the issue for appeal.
See Cahill, 2022 Tex. App. LEXIS 792, at *22.
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In addition, we conclude that estoppel bars Mother’s argument on appeal.
“Judicial estoppel precludes a party who successfully maintains a position in one
proceeding from afterwards adopting a clearly inconsistent position in another
proceeding to obtain an unfair advantage.” Ferguson v. Bldg. Materials Corp. of
Am., 295 S.W.3d 642, 643 (Tex. 2009) (citing Pleasant Glade Assembly of God v.
Schubert, 264 S.W.3d 1, 6 (Tex. 2008)). The doctrine functions “‘to prevent the use
of intentional self-contradiction as a means of obtaining unfair advantage[,]’” and
“precludes a litigant from requesting a ruling from a court and then complaining that
the court committed error in giving it to him.” Schubert, 264 S.W.3d at 6 (quoting
Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 650 (Tex. App.—El
Paso 1997, writ denied)); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex.
2005) (discussing estoppel and explaining the “invited error” doctrine).
In this context, for estoppel to bar Mother’s position on appeal, Mother must
have “unequivocally taken a position in the trial court that is clearly adverse to [her]
position on appeal.” See Tittizer, 171 S.W.3d at 862 (citing Am. Sav. & Loan Ass’n
v. Musick, 531 S.W.2d 581, 589 (Tex. 1975)). At trial, Mother filed a motion to sever
requesting that the trial court sever her case from Father’s to avoid prejudicing the
jury and “in the interest of justice[.]” Although the trial court initially denied the
motion, later the same day, after trial began and after Mother filed her Affidavit of
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Relinquishment, an Agreed Order to Sever was signed by the trial court and by
counsel for all parties.
After having prevailed on her motion to sever in the trial court, Mother now
complains about the trial court’s severance and seeks to “vacate the trial court’s
Order of Termination and dismiss the underlying case without prejudice” as to
Mother because she claims severing Father from the lawsuit deprived the trial court
of subject-matter jurisdiction and made it “impossible to make a decision” about the
children’s best interest. We find that Mother’s unequivocal position in the trial court
is adverse to her position on appeal. See id. Judicial estoppel prevents Mother from
obtaining an unfair advantage on appeal by adopting a position that is clearly
inconsistent with her position in the trial court and on which she prevailed. See
Ferguson, 295 S.W.3d at 643.
In summary, the severance of Father did not create a jurisdictional defect as
explained above, and Mother failed to preserve her complaint about the nonjoinder
of parties. See Cahill, 2022 Tex. App. LEXIS 792, at *22. In addition, the doctrine
of judicial estoppel prevents Mother from asserting a position on appeal that is
completely contrary to the position and argument she made in the trial court and on
which she prevailed. See Ferguson, 295 S.W.3d at 643; Tittizer, 171 S.W.3d at 862.
We overrule Mother’s issue on appeal, and we affirm the trial court’s order
terminating the parent-child relationship.
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AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on April 18, 2023
Opinion Delivered April 27, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
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