                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00254-CV
                            ____________________


                   IN THE INTEREST OF H.C.D. and A.L.D.

_______________________________________________________             ______________

                    On Appeal from the 418th District Court
                         Montgomery County, Texas
                       Trial Cause No. 15-02-01193-CV
________________________________________________________             _____________

                          MEMORANDUM OPINION

      In this appeal from a judgment in a suit affecting the parent-child

relationship, we are asked to decide whether the trial court should have allowed

two of the children, who were represented in the suit by an attorney ad litem, to

amend their pleadings to include a claim asking that the court consider giving the

two children court-ordered rights of access to their half-sibling. Based on the trial

court’s conclusion that the issue of sibling access had not been tried by consent, the

trial court refused to allow the attorney ad litem to amend the pleadings of the

children she represented to include a claim of sibling access. We conclude the trial

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court did not abuse its discretion in denying the request the children made through

their attorney to include a claim of sibling access.

      In a suit brought by the Texas Department of Family and Protective Services

for the protection of the minors, H.C.D. and A.L.D., 1 the trial court appointed the

children’s paternal aunt (“Aunt”) as their managing conservator. In a separate case

involving H.C.D.’s and A.L.D.’s half-sibling, K.G., the trial court appointed

K.G.’s maternal grandmother (“Grandmother”) as K.G.’s managing conservator.

Although the cases were filed separately, the reporter’s record of the proceedings

indicates that the two cases were tried by the court in a consolidated non-jury

proceeding. During the trial, the attorney ad litem appointed to represent H.C.D.

and A.L.D. requested that the trial court allow H.C.D. and A.L.D. to amend their

pleadings to include a claim by H.C.D. and A.L.D. for court-ordered rights of

access to K.G. The ad litem sought the trial amendment once it became apparent

that the trial court was considering appointing the Aunt to be H.C.D. and A.L.D.’s

managing conservator but was considering appointing Grandmother as K.G.’s

managing conservator. Aunt and Grandmother are not biologically related. In the




      1
       We refer to the minors by their initials to protect their identities. See Tex.
R. App. P. 9.8(b). We refer to the adults by their relation to the children; here,
Aunt and Grandmother. See id.
                                           2
sole issue raised in their appeal, H.C.D. and A.L.D contend the trial court abused

its discretion by “finding that the issue of sibling access was not tried by consent.”

      The Family Code allows children who are separated from their brothers or

sisters because of an action of the Department of Protective and Family Services to

file a suit requesting court-ordered rights of access to their siblings. See Tex. Fam.

Code Ann. § 153.551 (West 2014); see also Tex. Fam. Code Ann. § 102.0045

(West Supp. 2016). However, H.C.D. and A.L.D. did not file a separate petition

seeking sibling access, and prior to the trial that concerned who should be

appointed to be the managing conservators of K.G., H.C.D. and A.L.D., H.C.D.

and A.L.D.’s attorney did not file any pleadings seeking an order for H.C.D. and

A.L.D. to be awarded rights of access to K.G.

      On appeal, H.C.D. and A.L.D. rely on Rule 67 of the Texas Rules of Civil

Procedure to argue that the issue of whether the trial court was required to consider

their sibling-access claim was tried by consent in a trial that resolved who to

appoint as the managing conservators of the three children. See Tex. R. Civ. P. 67

(“When issues not raised by the pleadings are tried by express or implied consent

of the parties, they shall be treated in all respects as if they had been raised in the

pleadings.”). However, the rule of trial by consent is limited to exceptional cases

where the record, as a whole, clearly shows that the parties tried an unpleaded

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issue by consent. See Gutierrez v. Gutierrez, 86 S.W.3d 721, 729 (Tex. App.—El

Paso 2002, no pet.); In re Walters, 39 S.W.3d 280, 289 (Tex. App.—Texarkana

2001, no pet.); Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex. App.—Houston [1st

Dist.] 1993, writ denied). Rule 67 was not intended to establish a general rule of

practice, the rule of trial by consent is to be applied with care, and a trial court does

not abuse its discretion by refusing to apply the rule of trial by consent in doubtful

situations. See Stephanz, 846 S.W.2d at 901. In general, the conclusion that an

unpleaded issue was tried by implied consent “applies only where it appears from

the record that the issue was actually tried[.]” Johnston v. McKinney Am., Inc., 9

S.W.3d 271, 281 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

      To determine whether an issue was tried by consent, the appellate court

reviews the reporter’s record, not for evidence of the issue, but for evidence of the

trial of the issue. Stephanz, 846 S.W.2d at 901. When the evidence that a party is

relying upon to suggest that an issue was tried by consent is also relevant to

another issue that was pleaded and tried, the evidence that a party relies upon to

suggest an issue was tried by consent will not necessarily support the conclusion

that the trial court erred in refusing the request to amend their pleadings. Under

such circumstances, because the evidence would be relevant to an issue raised by

the live pleadings the proffer of that evidence would not likely elicit an objection

                                           4
from any of the parties during the trial. See Sage St. Assocs. v. Northdale Constr.

Co., 863 S.W.2d 438, 446 (Tex. 1993); McBride v. McBride, No. 09-14-00040-

CV, 2016 WL 157764, at *4 (Tex. App.—Beaumont Jan. 14, 2016, no pet.); In re

J.M., 156 S.W.3d 696, 705 (Tex. App.—Dallas 2005, no pet.).

      In this case, the principal issues the trial court was being asked to decide

based on the live pleadings concerned who should be appointed as the managing

conservators of H.C.D., A.L.D., and K.G. At trial, Grandmother was requesting to

be appointed the managing conservator of all three of the children. Although the

testimony in the trial includes evidence about the disadvantages that might occur if

Grandmother were not named as the managing conservator of all three children,

evidence of the siblings’ bonds with each other, and evidence favoring the

placement of all three children with Grandmother, that same evidence was relevant

to the trial court’s determination of whether to appoint Aunt or Grandmother as

H.C.D. and A.L.D.’s managing conservator. See generally Tex. Fam. Code Ann.

§§ 153.005 (West Supp. 2016), 153.131, 153.311 (West 2014), 153.371, 263.404

(West Supp. 2016). In other words, the evidence that H.C.D. and A.L.D. rely upon

in their argument to support their claim of trial by consent was not relevant solely

to their claim seeking a court-ordered right of sibling access.




                                          5
      Additionally, the reporter’s record of the trial does not demonstrate that the

Department or Aunt allowed the claim of sibling access to be tried by consent.

Before the testimony commenced, the attorney ad litem, who represented all three

of the minors, suggested that “some form of visitation is crucial among the siblings

and with grandma for the two who will not -- who are advocating to stay where

they are currently placed.” In opening statement, however, Aunt’s counsel

reminded the trial court that “there haven’t been any suits filed for sibling

possession, access or visitation.” In closing statements, the attorney ad litem who

represented all three children argued that Grandmother should be named a

possessory conservator of these two children and be granted unsupervised

visitations, adding, “that would also cure the sibling visits, as well.”

      After a brief recess, the trial court orally pronounced its decision regarding

who would be appointed to the role of managing conservator of each of the three

minors involved in the suit, and it then recessed the proceedings to allow the

parties to negotiate on visitation. At that point, Grandmother’s attorney asked

whether the court was considering visitation and access for the siblings, and the

trial court responded that it was considering visitation for “everybody involved.”

The attorney ad litem for H.C.D. and A.L.D. argued that sibling access could be

implemented through an order for grandparent access, and she requested the trial

                                           6
court’s permission to file a trial amendment on behalf of H.C.D. and A.L.D.

seeking sibling access to K.G. The Department opposed Grandmother’s request to

amend the pleadings, arguing that no claim for sibling access had been raised in the

pleadings then on file. The Department’s attorney suggested that the evidence

addressing the minors’ relationships with one another had been admitted during the

trial in the context of Grandmother’s request to be appointed managing conservator

over all three of the minors. Grandmother’s attorney did not oppose the request,

suggesting that there was evidence admitted in the trial addressing Grandmother’s

desire to have access to all three children. However, Aunt’s attorney opposed the

request by the attorney ad litem to add a claim of sibling access, arguing that the

claim seeking sibling access had been raised only after the trial court had

announced its decision to deny Grandmother’s request to have possessory rights to

all three of the minors. After the trial court considered the parties’ arguments, the

trial court denied the ad litem’s request to add claim of sibling access to the suit.

      In this case, the record supports the conclusion that the parties did not try the

issue of sibling access by consent. In our opinion, the evidence relied upon by the

minors in their appeal to support their claim of trial by consent was not relevant

solely to their claim of sibling access. That same evidence was relevant to

Grandmother’s claim seeking rights of possession to all three of the minors and

                                           7
relevant to the trial court’s determinations about what possessory appointment

would be in each child’s best interest. See generally McBride, 2016 WL 157764, at

*5. For example, although a caseworker employed by the Department of Family

and Protective Services testified that the trial court had ordered sibling visits

throughout the case, the clerk’s record shows the trial court granted temporary

visitation to Grandmother after the attorney ad litem for H.C.D. and A.L.D. filed a

motion for visitation. During the trial, the caseworker agreed that the relationships

between the siblings should be maintained, but her concerns that the children might

not see each other absent court-ordered visitation were expressed in the context of

the court ordering visitation with Grandmother and of keeping the children

together based on the option of appointing Grandmother to be all three of the

minors’ managing conservator. While there was also testimony during the trial by a

psychologist that indicated there would be benefits to keeping all three of the

children together, his testimony occurred in the context of placing H.C.D. and

A.L.D. in Grandmother’s home. A psychotherapist who had seen the children

stated that she would support sibling visitation if Aunt were to be appointed as the

managing conservator, but she clarified that she thought the appropriate degree of

contact with Grandmother and those in her household would be one visit every six

weeks.

                                         8
      In summary, the trial court’s view that the existing pleadings made the

testimony about how often H.C.D. and A.L.D. should see Grandmother and those

living in her home relevant to the question of who should be appointed the minors’

conservators was reasonable. We agree with the trial court’s view that the evidence

about the benefits of the children remaining together is not evidence that relates

exclusively to an unpleaded claim for sibling access. Because the trial court did not

abuse its discretion by denying the requested amendment to add a claim of sibling

access, we overrule the appellants’ issue. The trial court’s judgment is affirmed.

      AFFIRMED.



                                              ________________________________
                                                      HOLLIS HORTON
                                                            Justice



Submitted on November 1, 2016
Opinion Delivered December 29, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.




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