                                   NUMBER 13-14-00620-CV

                                      COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

            CORPUS CHRISTI—EDINBURG
____________________________________________________

                IN THE INTEREST OF A.V. AND I.V., MINOR CHILDREN


                      On appeal from the County Court at Law No. 5
                                of Nueces County, Texas
____________________________________________________

                                   MEMORANDUM OPINION

                      Before Justices Garza, Benavides, and Perkes
                        Memorandum Opinion by Justice Perkes
          Appellant father appeals the termination of his parental rights.1 Following a jury

verdict, the trial court entered an order terminating the parental rights of appellant to his

two minor children, A.V. and I.V.2 By one issue, appellant argues the judgment should


          1   The order also terminated the parental rights of the children’s mother. She is not a party to this
appeal.

         2 In appeals involving the termination of parental rights, the Texas Rules of Appellate Procedure

require the use of an alias to refer to a minor. TEX. R. APP. P. 9.8. We may also use an alias “to [refer to]
the minor’s parent or other family member” to protect the minor’s identity. Id.
be reversed because the pleadings are “fatally defective.” We vacate and dismiss in part,

and affirm in part.

                                              I. BACKGROUND

        A.        The Petition

        The Department of Family and Protective Services (“Department”) filed a petition

to terminate parental rights with respect to A.V. and I.V. The Department sought to

terminate the parental rights of the children’s mother, and, in a section specifically

identifying her by name, alleged statutory grounds for termination against her under the

Texas Family Code.3 The affidavit in support of removal, filed with the petition, alleged

neglectful supervision and physical neglect of the children by mother. More specifically,

the relevant paragraph states:

                  13.     Termination of [Mother’s][4] Parental Rights

                          If reunification with the mother cannot be achieved, the Court
                          should terminate the parent-child relationship between
                          [Mother] and the children the subject of this suit under
                          Chapter 161, Texas Family Code, because termination of the
                          parent-child relationship is in the children’s best interest and
                          [Mother] has committed one or more of the following acts or
                          omissions:

                          *****

                          13.20. The Court should terminate the parent-child
                          relationship between [Mother] and the children the subject of
                          this suit under § 161.003, Texas Family Code, because
                          [Mother] has a mental or emotional illness or a mental
                          deficiency that renders the mother unable to provide for the
                          physical, emotional, and mental needs of the children and will

        3  The Department also requested: to be named the temporary sole managing conservator of the
children; if the children could not be safely reunified with either parent, that the Department, a relative, or
other suitable person be named the permanent sole managing conservator of the children; and temporary
orders regarding support of the children, possession and access to the children, and services to be
completed by the parents.

        4   In the petition, the mother’s actual name was used throughout this section in bold as shown.

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                    continue to render the mother unable to provide for the
                    children’s needs until the 18th birthday of the children, despite
                    at least six months of reasonable efforts to return the children
                    to the parent, pursuant to § 161.003, Texas Family Code.

      The petition, however, did not include a similar section identifying appellant by

name, did not allege any statutory grounds for termination against him under the Texas

Family Code, and did not seek termination of appellant’s parental rights. Rather, the sole

reference in the petition to appellant by name was with respect to service:

             4.     Parties to be Served

                    *****
                    4.2.    The alleged father of the child [A.V.] AND [I.V.] is:

                    Party:        [Father’s Name]
                    Date Of Birth:      unknown

                    The alleged father is deceased.

      Soon after the Department filed its original petition, the Department discovered

appellant was alive and incarcerated. He was subsequently served with the petition, but

the pleadings were never amended.

      B.     Pre-Trial Proceedings

      On the date the petition was filed, the trial court signed an emergency order naming

the Department as temporary sole managing conservator of the children. At the initial

permanency hearing, the trial court appointed an attorney to represent appellant. He later

appeared by and through counsel at a second permanency hearing. The trial court

granted appellant’s motion to attend the trial by telephone because of his incarceration.

      C.     Jury Trial

      The case was presented to a jury. During opening statements, the Department’s

counsel explained to the jury, without objection, that the Department was seeking to


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terminate the parental rights of both parents pursuant to Texas Family Code sections

161.001(1)(N) and (Q).5 See TEX. FAM. CODE ANN. §§ 161.001(1)(N), (Q) (West, Westlaw

through 2013 3d C.S.). Appellant’s counsel argued that the evidence would be insufficient

to show that termination would be in the children’s best interest.6

        The trial court granted a partial instructed verdict on the grounds for termination

set out in sections 161.001(1)(N) and (Q), and the case was submitted to the jury solely

on the issue of the children’s best interest. The jury found by clear and convincing

evidence “that termination of the parent-child relationship between [appellant] and the

children, [A.V.] and [I.V.], is in the best interests of the children.” The trial court rendered

judgment terminating appellant’s parental rights. This appeal followed.

                                        II. DEFECTIVE PLEADINGS

        By one issue, appellant argues that the Department’s petition is fatally defective

because the pleadings failed to request termination of appellant’s parental rights.



       5 The Texas Family Code provides statutory grounds for termination where the court finds by clear

and convincing evidence that the parent has:

        (N) constructively abandoned the child who has been in the permanent or temporary
        managing conservatorship of the Department of Family and Protective Services or an
        authorized agency for not less than six months, and: (i) the department or authorized
        agency has made reasonable efforts to return the child to the parent; (ii) the parent has not
        regularly visited or maintained significant contact with the child; and (iii) the parent has
        demonstrated an inability to provide the child with a safe environment; [or]

        *****

        (Q) knowingly engaged in criminal conduct that has resulted in the parent’s: (i) conviction
        of an offense; and (ii) confinement or imprisonment and inability to care for the child for not
        less than two years from the date of filing the petition[.]

TEX. FAM. CODE ANN. §§ 161.001(1)(N),(Q) (West, Westlaw through 2013 3d C.S.).

        6 Before terminating parental rights, the trier of fact must find by clear and convincing evidence that

the parent committed an act prohibited by subsection 161.001(1) of the Texas Family Code and that
termination is in the best interest of the child. Id. § 161.001.


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Specifically, appellant argues that the Department’s petition does not meet the statutory

pleading requirements for a petition seeking termination of the parent-child relationship.

Appellant maintains the judgment terminating his parental rights is void because it is not

supported by the pleadings.7

        A.       Preservation of Error

        We must address preservation of error as a threshold issue. Appellant concedes

he “failed to raise concerns or objections about the State’s pleadings” during the

underlying pretrial and trial proceedings. The Department argues that by failing to object

to the pleadings appellant did not preserve his complaint for appellate review.

        A party must make the trial court aware of a complaint, timely and plainly, and

obtain a ruling to preserve an issue for appellate review. TEX. R. APP. P. 33.1; In re B.L.D.,

113 S.W.3d 340, 349 (Tex. 2003). However, jurisdictional defects represent fundamental

error and may be raised for the first time on appeal. See Mapco, Inc. v. Carter, 817 S.W.2d

686, 687 (Tex. 1991). A judgment must be supported by the pleadings, and a trial court

exceeds its jurisdiction if it renders a judgment in the absence of pleadings. TEX. R. CIV.

P. 301; Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex. App.—Corpus Christi 2001, no pet.).

Rendering judgment without jurisdiction is fundamental error.                       Cotton v. Cotton, 57

S.W.3d 506, 510 (Tex. App—Waco 2001, no pet.). Because appellant questions the trial

court’s jurisdiction to render judgment, the issue may be raised for the first time on appeal.

See Mapco, Inc., 817 S.W.2d at 687.



        7 While appellant maintains the trial court’s order of termination is void, he does not explicitly argue

fundamental error. However, lack of jurisdiction is fundamental error that may be recognized by the
appellate court, sua sponte, for the first time on appeal. See Britton v. Tex. Dep’t of Criminal Justice, 95
S.W.3d 676, 681 n. 6 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“In an appeal properly before it, an
appellate court may always address fundamental error, even without an appellate challenge.”).


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       B.     Applicable Law

       We construe appellant’s issue as follows: whether the trial court has jurisdiction

to render judgment terminating parental rights in the absence of any pleadings seeking

such relief. Involuntary termination of parental rights involves fundamental constitutional

rights and divests the parent and child of all legal rights, privileges, duties and powers

normally existing between them, except for the child’s right to inherit from the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778

(Tex. App.—Corpus Christi 2006, no pet.). A petition to terminate parental rights “is

sufficient without the necessity of specifying the underlying facts if the petition alleges in

the statutory language the ground for the termination and that termination is in the best

interest of the child.” TEX. FAM. CODE ANN. § 161.101.

       A court's jurisdiction is invoked by the pleadings. In re Guardianship of Winn, 372

S.W.3d 291, 297 (Tex. App.—Dallas 2012, no pet.). Where there are no pleadings

seeking affirmative relief, the trial court is without jurisdiction as to the parties or the

subject matter. Daniels, 45 S.W.3d at 282; Seber v. Glass, 258 S.W.2d 122, 124 (Tex.

Civ. App—Fort Worth 1958, no writ). A judgment terminating parental rights cannot be

supported on grounds not pleaded in the petition. See In re S.R.M., 601 S.W.2d 766, 769

(Tex. Civ. App.—Amarillo 1980, no writ) (holding that parental rights, being of

constitutional dimension, may not be terminated on unpleaded grounds); see also In re

B.B., 971 S.W.2d 160, 163 (Tex. App.—Beaumont 1998, pet. denied) (holding that

grounds for termination must be pleaded to support trial court's judgment), disapproved

on other grounds by In re C.H., 89 S.W.3d 17 (Tex. 2002).




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        C.       Discussion

        Appellant relies on In re S.R.M., 601 S.W.2d at 769, to support his argument that

the Department’s petition is “fatally defective.” In S.R.M., the pleadings alleged statutory

grounds for termination of the mother’s parental rights. Id. at 768–69. Following a bench

trial, the trial court terminated the mother’s parental rights based upon three separate

statutory grounds not supported by the pleadings. Id. at 769. The court of appeals

rejected the petitioner’s argument that the termination grounds were tried by consent and

held “the judgment should be reversed because the trial court terminated the appellant’s

parental rights to the child upon unpled grounds.” Id. The court further noted “[i]n the

case before us, there is a total absence from the record of any notice to the appellant that

the trial court was trying, considering or even contemplating termination upon any unpled

statutory grounds.” Id. at 770. The court concluded that the mother “did not knowingly

relinquish or waive her right to have the statutory grounds for termination stated in the

petition, and that she did not expressly or meaningfully consent to a trial upon the unpled

grounds.” Id.

        In response, the Department argues S.R.M. is distinguishable because appellant

received fair notice of the Department’s intent to seek termination of his parental rights

and the issue was tried by consent.8             The court in S.R.M., however, expressly rejected

this argument noting that cases applying the trial by consent doctrine “do not involve the




         8 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. TEX. R. CIV. P. 67. “The
doctrine of trial by consent is not intended to establish a general rule of practice and should be applied with
care; it should never be applied in a doubtful situation.” In re P.D.D., 256 S.W.3d 834, 841 (Tex. App.—
Texarkana 2008, no pet.).


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same mandatory statute nor are they of the same constitutional dimension as the issues

present in the case before us.” Id.

       We note other appellate courts have applied the trial by consent doctrine to

termination of parental rights cases, but only when the trial court’s judgment is supported

by a petition seeking termination against the parent. See In re 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 where Department pleaded for

termination under Texas Family Code); see also In re A.J.B., No. 14–02–00794–CV, 2003

WL 21403480, at *1–2 (Tex. App.—Houston [14th Dist.] June 19, 2003, pet. denied)

(mem. op.) (where pleading sought to terminate father’s parental rights for failing to

register with paternity registry, termination on basis of impregnating child’s mother by

sexual assault was tried by consent).

       Assuming, without deciding, that unpled termination grounds can be tried by

consent, we conclude the trial by consent doctrine does not apply here, where there is no

pleading whatsoever seeking to terminate appellant’s parental rights. In the absence of

a pleading seeking affirmative relief, the trial court is without jurisdiction to render

judgment. See Daniels, 45 S.W.3d at 282. Here, the only explicit reference to appellant

in the petition is a section identifying him as the children’s deceased father. At a minimum,

a petition seeking to terminate the parent child relationship must “allege[] in the statutory

language the ground for the termination and that termination is in the best interest of the

child.” TEX. FAM. CODE ANN. § 161.101. There are no pleadings from which the trial court

could render judgment as to appellant. See Cunningham v. Parkdale Bank, 660 S.W.2d

810, 812–13 (Tex. 1983) (noting that document filed was not sufficient to support



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judgment where it did not state cause of action and alleged no statutory basis upon which

judgment could be based); Daniels, 45 S.W.3d at 282 (holding that trial court was without

jurisdiction to enter judgment “since no live pleading existed in case urging a cause of

action from which judgment could be taken”); Granado v. Madsen, 729 S.W.2d 866, 870

(Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding that summary judgment

order was a nullity and of no effect where there were no live pleadings and no cause of

action against which summary judgment could be granted); Seber, 258 S.W.2d at 124

(holding trial court was without jurisdiction to render order where there existed no

pleadings seeking affirmative relief).

       We hold that the trial court exceeded its jurisdiction in rendering judgment against

appellant because there was no pleading seeking to terminate his parental rights. This

is fundamental error. See Cotton, 57 S.W.3d at 510. We sustain appellant’s sole issue.

                                         III. CONCLUSION

       We vacate the portion of the trial court’s judgment terminating appellant’s parental

rights and dismiss the cause as it pertains to appellant. See TEX. R. APP. P. 43.2(e); City

of El Paso v. Marquez, 380 S.W.3d 335, 345 (Tex. App.—El Paso 2012, no pet.)

(explaining that where the trial court does not have jurisdiction to render a judgment, the

proper practice is for the reviewing court to set the judgment aside and dismiss the cause).

The judgment is otherwise affirmed.


                                                           Gregory T. Perkes
                                                           Justice

Delivered and filed the
30th day of April, 2015.




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