                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ________________
                                NO. 09-18-00185-CV
                               ________________

             IN THE INTEREST OF J.M.B. III AND A.J.J.
__________________________________________________________________

                On Appeal from the 75th District Court
                        Liberty County, Texas
                     Trial Cause No. CV1306482
__________________________________________________________________

                           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. §



      1
        The trial court’s order also terminated the parental rights of the children’s
father, who is not a party to this appeal.
      2
        S.D. does not challenge the sufficiency of the evidence supporting the best
interest finding.
                                           1
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.
                                           2
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,

                                          4
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,



                                           5
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,

                                           6
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

                                         7
overrule issue three and affirm the trial court’s order terminating S.D.’s parental

rights.

          AFFIRMED.



                                            _____________________________
                                                  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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