In the Interest of A.B.A. A/K/A A. B. S v. Department of Family and Protective Services ( 2023 )

Opinion issued December 21, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00548-CV
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IN THE INTEREST OF A.B.A. A/K/A A.B.S., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2022-00726J
MEMORANDUM OPINION
In this case, the Texas Department of Family and Protective Services (“DFPS”
or “the Department”) sought termination of the parental rights of H.B.S. (“Mother”)
and G.F.A. (“Father”) to their minor daughter, A.B.A. a/k/a A.B.S. (“Alice”).1 Upon
1
In this opinion, we use pseudonyms for the minor child, her parents, her brother,
and her extended family members to protect their privacy. See TEX. R. APP. P.
9.8(b)(2).
the associate judge’s recommendation following a bench trial, the trial court signed
an order terminating Mother’s parental rights pursuant to three statutory predicate
grounds for termination and terminating Father’s parental rights pursuant to two
statutory predicate grounds. See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (O). The
court also found that terminating Mother’s and Father’s parental rights was in
Alice’s best interest. The court appointed DFPS as Alice’s sole managing
conservator.
On appeal, Mother raises six issues and Father raises five issues. Both parents
argue that: (1) the trial court erred by terminating their parental rights because at
trial, the Department abandoned the grounds for termination alleged in its live
pleading and therefore the judgment was not supported by the pleadings; (2)–(3) the
evidence was legally and factually insufficient to support termination under Family
Code subsections 161.001(b)(1)(E) and (O); (4) the evidence was legally and
factually insufficient to support the trial court’s finding that termination was in
Alice’s best interest; and (5) the trial court abused its discretion by appointing the
Department as Alice’s sole managing conservator. In an additional issue, Mother
challenges the legal and factual sufficiency of the evidence to support termination
of her parental rights under subsection 161.001(b)(1)(D). The Department waived
its opportunity to file a brief and stated it was “taking no position in this appeal.”
We reverse and remand for further proceedings.
2
Background
Mother and Father have two children together: K.F.A. (“Kendall”), a son born
in 2017, and Alice. Mother has two older sons from prior relationships, and Father
also has a son from a prior relationship. None of these children live with Mother or
Father. In June 2018, a Liberty County district court terminated Mother’s and
Father’s parental rights to Kendall. Kendall was adopted by Mother’s cousin A.G.
(“Amanda”) and her husband Z.G. (“Zane”). Mother still has her parental rights to
her older sons.
Alice was born in April 2022.2 At the time, Mother, Father, and Father’s
mother all lived together at a hotel in Baytown, Texas. The Department immediately
became involved in Alice’s life because Mother tested positive for
methamphetamine while at the hospital. Although Alice did not test positive for
methamphetamine in her urine, her meconium did test positive. Father also took a
drug test, and although his urinalysis results were negative for the presence of drugs,
his hair follicle tested positive for methamphetamine. At the time of Alice’s birth,
Father was on parole for a possession of a controlled substance offense.
2
Alice was born prematurely, and she also tested positive for “non-reactive syphilis”
at birth. However, she was healthy and had no medical concerns at the time she was
discharged from the hospital. At the time of trial, Alice was “about two months
behind” on her developmental milestones due to her premature birth, but she was
healthy and was not receiving any special services. Alice’s current doctor had no
concern about the prior syphilis diagnosis.
3
The Department filed an “Original Petition for Protection of a Child for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship.” The Department requested that if Alice could not safely be reunited
with either Mother or Father, the court appoint a relative, another suitable person, or
the Department itself as Alice’s sole managing conservator. In the alternative, the
Department sought termination of Mother’s and Father’s parental rights and asserted
several statutory predicate grounds as the basis for termination.
The trial court appointed DFPS as Alice’s temporary managing conservator.
While this proceeding was pending, the Department placed Alice with Amanda and
Zane.
The trial court ordered Mother and Father to comply with family service plans.
Among other things, the service plans required Mother and Father to obtain
appropriate, safe, and stable housing; maintain stable income; refrain from using
illegal substances and comply with random drug screening; participate in a drug and
alcohol assessment and follow all recommendations given; complete a psychosocial
evaluation; participate in and complete parenting classes; and refrain from criminal
activity.
At the start of an April 2023 trial setting before the associate judge, DFPS’s
counsel requested that before proceeding with trial, the court rule on a “motion for
monitored return.” DFPS’s counsel acknowledged that both Mother and Father had
4
a history of drug use, but Father’s last positive drug test was in April 2022 and
Mother’s last positive test was in June 2022. They had “completed all of their
services,” they had obtained housing, and Father was employed with Harris County.
The DFPS caseworker, Iris Darrington, believed that Mother and Father were
committed to their sobriety and to demonstrating that their lifestyles had changed.
Both Mother and Father had actively engaged in the services required of them and
had “mediate[d] the concerns that brought [Alice] into care.”
Mother and Father had engaged in weekly supervised visits with Alice as the
case progressed. Counsel stated that the Department was “ready to start transitioning
[Alice] home,” and it had a proposed “transition plan that would begin with
unsupervised visits.” Darrington testified that the transition plan started with two
unsupervised four-hour visits. If those visits were successful, DFPS planned to
gradually increase the unsupervised visits to six hours, then day visits for eight
hours, and then overnight visits. Darrington testified that the Department wished to
place Alice with Mother and Father after six weeks of increasing unsupervised
visitation and then monitor the placement for an additional six months. DFPS would
continue to require drug testing during this monitoring period, and it would provide
additional services if necessary, such as daycare services if Mother became
employed and “aftercare service” that provides parenting support and therapy.
5
Darrington believed it was in Alice’s best interest to be returned to Mother and
Father’s care.
Both Alice’s ad litem attorney and the child advocate assigned as Alice’s
guardian ad litem, Alicia Lee, had reservations about this plan.3 The ad litem
attorney was concerned with Mother’s and Father’s past drug history, their prior
drug-related criminal convictions, Mother’s history with DFPS with respect to her
older sons, the termination of Mother’s and Father’s parental rights to Kendall in
2018, and the fact that they had only recently obtained a sponsor through their
AA/NA program.
Darrington also acknowledged that although Mother and Father had
completed the services required by their service plans, Amanda still had “concerns
about safety, security, [and] stability,” and she was opposed to reuniting Alice with
Mother and Father. Father agreed that he and Mother did not have a good
relationship with Amanda, but if the court returned Alice to him and Mother, he was
willing to facilitate Alice’s continued relationship with her brother Kendall.
Amanda, however, was not willing.
After hearing testimony from Darrington, Father, Mother, Amanda, and Lee,
the trial court stated:
3
When asked about her opinion on the transition plan, Lee testified: “We think we
should go week by week and see what develops. We also, again, would continue to
encourage [Mother and Father] to maintain their sobriety and to take steps to do so.”
6
First of all, all the evidence I heard right now, I’m going to take under
consideration for trial. So the monitored return at this point is denied.
What we’re going to do is start the trial. I want you to present some of
the exhibits that we can put in, then I’m going to recess, set the parties
to mediation with [Amanda] and we will resume in about a month
because I want to see if there’s any ideas for attempting to have the
adults work together for the child. But I’m agreeing with the ad litem
and Child Advocates that, right now, I’m not doing the monitored
return.
The court admitted eighteen exhibits offered by DFPS and stated: “[W]e just listened
for an hour and a half of testimony. The Court’s taking that into consideration as part
of the trial record.”4
Trial resumed two months later in June 2023 before the associate judge. At
the beginning of this trial setting, DFPS, Mother, and Father all re-urged the motion
for monitored return. Alice’s ad litem attorney and Lee opposed returning Alice to
Mother and Father’s custody.5 The trial court declined to reconsider its prior ruling
4
Mother’s counsel objected, noting that she “thought it was one kind of hearing” and
she “would have been a bit more vigorous in terms of objections if it had been a
trial.”
5
Lee testified that she believed Mother’s and Father’s parental rights to Alice should
be terminated. Lee’s concerns included Mother’s and Father’s delay in obtaining
sponsors, Lee’s inability to speak with Mother’s and Father’s sponsors, and Alice’s
status as a nonverbal one-year-old who would not be able to “verbalize anything
that may [have] potential to cause her harm, abuse or neglect.” Lee did not believe
Mother and Father had completed their substance abuse treatment or that they had
addressed, “to [Lee’s] satisfaction, their addiction and coping strategies for high risk
situations that may lead to a relapse.” Lee further believed that Alice was thriving
in her current placement with Amanda and Zane and that staying in that placement
was in her best interest.
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“at this time.” However, the court noted that “[w]e’re in trial” and monitored return
“may be appropriate when everyone’s finished putting on their evidence.”
Darrington testified that since the April trial setting, Mother and Father had
continued weekly supervised visits with Alice and those visits continued to be
appropriate. They had also continued meeting with their sponsors, and those visits
were also going well. Mother had obtained employment. DFPS’s current goal was
family reunification,6 and it wanted to monitor Alice in Mother’s and Father’s home.
Mother and Father had completed all required services and maintained sobriety, and
the Department did not have any safety concerns, but the parties had not been able
to exercise monitored return.
Darrington agreed with Father’s counsel that DFPS was not seeking
termination of Mother’s and Father’s parental rights. She testified that family
reunification was in Alice’s best interest because Mother and Father “have alleviated
the concerns of the Agency. [Mother and Father] have demonstrated a lifestyle
change. They have demonstrated their willingness unlike they have done before.
They have shown they are able to meet the child’s needs and they are willing to put
the child’s needs before their own.”
6
The Department’s alternate goal was “relative conservatorship” with Amanda and
Zane, but Darrington did not consider that a workable goal because Amanda “has
made it clear she is not in favor of facilitating that goal.” Darrington agreed that if
the trial court ordered “relative conservatorship” with Amanda, Mother and Father
both had legitimate fears that they would end up having no relationship with Alice.
8
At the beginning of closing arguments, counsel for DFPS stated, “We are
abandoning our termination grounds. Of course, we are reurging the monitored
return. Parents have alleviated the concerns of the Agency.” Upon a question from
the trial court, counsel agreed that the Department did not abandon its termination
grounds before trial but that it was “just doing it now.” Counsel again stated: “We
are reurging the motion for a monitored return. In the alternative, we are asking for
[permanent managing conservatorship] to the current caregivers [Amanda and Zane]
with parents named as [possessory conservators].”
Alice’s ad litem attorney agreed with Lee’s request for termination of
Mother’s and Father’s parental rights. The ad litem attorney acknowledged that
Alice’s only pleading on file was an original answer.
Following conclusion of the trial, the trial court signed a final judgment
terminating Mother’s and Father’s parental rights to Alice. The court terminated
Mother’s parental rights pursuant to Family Code subsections 161.001(b)(1)(D), (E),
and (O). The court terminated Father’s parental rights pursuant to subsections
161.001(b)(1)(E) and (O). The court also found that termination of both parents’
rights would be in Alice’s best interest. The court appointed the Department as
Alice’s sole managing conservator. This appeal followed.
9
Abandonment of Pleadings
In their first issues, both Mother and Father argue that the trial court erred by
terminating their parental rights to Alice because, at the close of trial, counsel for the
Department stated on the record that the Department was abandoning the grounds
for termination that it had pleaded in its original and amended petitions. No other
pleadings seeking affirmative relief were on file with the trial court. Mother and
Father therefore argue that the trial court’s judgment terminating their parental rights
was not supported by the pleadings.
A. Standard of Review and Governing Law
The trial court’s final judgment must be supported by the pleadings. See TEX.
R. CIV. P. 301. “An order terminating parental rights that is not supported by a
pleading seeking termination of the parent-child relationship is erroneous and
reversible.” In re E.H., No. 04-20-00440-CV, 2021 WL 799890, at *2 (Tex. App.—
San Antonio Mar. 3, 2021, no pet.) (mem. op.); In re T.M., No. 07-20-00103-CV,
2020 WL 4773207, at *2 (Tex. App.—Amarillo Aug. 17, 2020, no pet.) (mem. op.)
(“If the trial court enters an order not supported by the pleadings, it commits
reversible error.”). “When a party abandons a claim in its live pleading, that pleading
will no longer support a judgment on the abandoned claim.” In re E.H., 2021 WL
799890, at *2; In re T.M., 2020 WL 4773207, at *3.
10
A party who abandons any part of its “claim or defense, as contained in the
pleadings, may have that fact entered of record, so as to show that the matters therein
were not tried.” TEX. R. CIV. P. 165; In re C.C.J., 244 S.W.3d 911, 921 (Tex. App.—
Dallas 2008, no pet.). Whether a party has abandoned a pleading is a question of law
that we review de novo. In re I.L., 580 S.W.3d 227, 245 (Tex. App.—San Antonio
2019, pet. dism’d); In re J.M., 352 S.W.3d 824, 826 (Tex. App.—San Antonio 2011,
no pet.). A party may abandon a pleading by stipulation, “such as an agreement or
concession ‘made in a judicial proceeding by the parties or their attorneys respecting
some matter incident thereto.’” In re I.L., 580 S.W.3d at 245 (quoting In re J.M.,
352 S.W.3d at 826–27).
“A party abandons a pleading when it unequivocally states in open court it no
longer seeks the pleaded relief.” In re E.H., 2021 WL 799890, at *2 (concluding that
DFPS expressly abandoned its pleading for termination of father’s parental rights
when counsel announced at beginning of trial that Department was no longer seeking
termination and caseworker unequivocally testified that Department was instead
requesting that father be named possessory conservator, which was in child’s best
interest). Formal amendment of the pleadings is not required to show abandonment.
In re N.H., No. 02-22-00157-CV, 2022 WL 4374638, at *7 (Tex. App.—Fort Worth
Sept. 22, 2022, no pet.) (mem. op.); In re Shaw, 966 S.W.2d 174, 177 (Tex. App.—
El Paso 1998, no pet.).
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B. Whether the Department Abandoned its Pleadings Seeking Termination of
Mother’s and Father’s Parental Rights
Here, in its original and amended petitions, the Department requested that if
reunification of Alice with Mother and Father was not possible, the trial court name
a relative of Alice, another suitable person, or the Department itself as Alice’s sole
managing conservator. In the alternative, the Department sought termination of
Mother’s and Father’s parental rights to Alice under several statutory predicate
grounds. No other party had pleadings requesting affirmative relief on file.
At the first trial setting in April 2023, the Department’s counsel requested that
the trial court first consider its motion for monitored return. Counsel and Darrington,
the DFPS caseworker, both explained the “transition plan” that had been formulated
to reunite Alice with Mother and Father. Under this plan, Mother and Father would
gradually have longer and longer unsupervised visits with Alice, including overnight
visits if shorter unsupervised visits were successful. After six weeks of these visits,
DFPS planned to return Alice to Mother and Father and monitor the placement for
six months, offering additional services to Mother and Father if needed. Darrington
testified that Mother and Father had completed the services required by their family
service plans and had committed to their sobriety and lifestyle change, resolving the
Department’s concerns about leaving Alice in their care.
Although counsel for the Department, Mother, and Father all requested that
the trial court grant the request for monitored return, both the ad litem attorney and
12
Lee on behalf of Child Advocates opposed it. Ultimately, the trial court denied the
motion and considered the testimony in support of the request for monitored return
as testimony relevant to trial on the termination grounds. The trial court recessed the
trial proceedings until June 2023.
At the beginning of the June 2023 trial setting, counsel for the Department,
Mother, and Father again urged the trial court to reconsider its ruling on the request
for monitored return. The ad litem attorney and Lee again opposed this request. The
trial court stated:
So I’m not going to change the order at this time. We’re in trial. I mean,
that [monitored return] may be appropriate when everyone’s finished
putting on their evidence. I don’t know. But it seems to me that we
should be just going forward, finishing the trial and then, of course, you
can argue whatever the evidence is, as can the others.
Darrington, Zane, and Lee all testified, with Darrington’s and Lee’s testimony
primarily focusing on any changes since the April 2023 trial setting.
Darrington testified that the Department’s current goal for Alice was “family
reunification,” and the Department “would like to monitor the child in the home.”
She testified that Mother and Father had “completed their services and maintained
sobriety.” The Department had no safety concerns with allowing Alice in the home,
but it had not been “able to exercise [its] goal.” The Department’s alternative goal
was “[r]elative conservatorship,” continuing Alice’s placement in Amanda and
Zane’s home. Darrington agreed with Father’s counsel that DFPS was not seeking
13
termination of Mother’s and Father’s parental rights. Darrington testified that family
reunification was in Alice’s best interest because she believed Mother and Father
had “alleviated the concerns of the Agency,” “demonstrated a lifestyle change,”
“demonstrated their willingness unlike they have done before,” and had “shown they
are able to meet the child’s needs and they are willing to put the child’s needs before
their own.”
At the beginning of closing arguments, the Department’s counsel and the trial
court had the following exchange:
Counsel: We are abandoning our termination grounds. Of course,
we are reurging the monitored return. Parents have
alleviated the concerns of the Agency. When we were here
in April, two lingering concerns were continuing—
The Court: So did you abandon your termination before we started
trial or are you just doing it now?
Counsel: Now, Judge.
The Court: Okay.
Counsel: Two lingering concerns we heard last time were parents
continuing with a sponsor, which they’ve done since the
last setting. It was also raised the concern that Mom was
not employed and she has found employment since then.
We are reurging the motion for a monitored return. In the
alternative, we are asking for [permanent managing
conservatorship] to the current caregivers [Amanda and
Zane] with parents named as [possessory conservators].
Although Mother’s counsel repeatedly expressed confusion over what was before
the trial court at the time, Father’s counsel “support[ed] the position of DFPS.” The
14
ad litem attorney supported termination and also confirmed on the record that his
only pleading on file was an original answer. The trial court later signed a written
judgment terminating Mother’s and Father’s parental rights to Alice and appointing
DFPS as Alice’s sole managing conservator.
We conclude that the Department—through Darrington’s testimony and its
counsel’s statements on the record during closing argument—unequivocally
abandoned the portion of its pleading seeking termination of Mother’s and Father’s
parental rights. See In re N.H., 2022 WL 4374638, at *8; In re E.H., 2021 WL
799890, at *2; In re T.M., 2020 WL 4773207, at *3; In re I.L., 580 S.W.3d at 245;
In re J.M., 352 S.W.3d at 827–28. As a result, there was no pleading before the court
that requested termination of Mother’s and Father’s parental rights to Alice. See In
re E.H., 2021 WL 799890, at *2 (concluding that mother, who had not filed pleading
and did not seek leave to file one, could not rely on claim for termination abandoned
by DFPS to uphold termination of father’s parental rights). We hold that the trial
court’s judgment terminating Mother’s and Father’s parental rights to Alice was not
supported by a pleading seeking termination of their rights and was therefore
erroneous. See In re N.H., 2022 WL 4374638, at *7; In re E.H., 2021 WL 799890,
at *2; In re T.M., 2020 WL 4773207, at *2.
15
We sustain Mother’s and Father’s first issues.7
Conclusion
We reverse the judgment of the trial court and remand for further proceedings.
April L. Farris
Justice
Panel consists of Justices Goodman, Countiss, and Farris.
7
In light of our resolution of Mother’s and Father’s first issue, we remand the case
for the trial court to reconsider the question of conservatorship of Alice.
Furthermore, because we hold that the trial court’s judgment terminating Mother’s
and Father’s rights was not supported by the pleadings, we need not address
Mother’s second, third, and fourth issues and Father’s second and third issues—all
of which challenge the legal and factual sufficiency of the evidence supporting the
statutory predicate grounds for termination—or Mother’s fifth issue and Father’s
fourth issue—which challenge the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of their parental rights was in
Alice’s best interest. See TEX. R. APP. P. 47.1 (stating that court of appeals must
hand down written opinion that addresses “every issue raised and necessary to final
disposition of the appeal”).
16