Opinion issued September 29, 2022
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00306-CV ——————————— IN THE INTEREST OF I.A.B.N., A CHILD
On Appeal from the County Court at Law Austin County, Texas Trial Court Case No. 2017L-6966
MEMORANDUM OPINION
In this private termination of parental rights case, appellee A.A.N. (“Mother”)
sought to terminate the parental rights of appellant L.B.B. (“Father”) to the parties’
minor daughter I.A.B.N. (“Isabelle”).1 Mother sought termination under Family
1 In this opinion, we refer to the minor child, her parents, and her grandmothers by pseudonyms to protect their privacy. Code section 161.001(b)(1)(F). Father, who had previously had his possession and
access rights to Isabelle suspended, requested that he be allowed to have access to
Isabelle. The trial court held a hearing, at which it repeatedly stated that the issue
before the court at that time was whether Father should be allowed supervised
visitation with Isabelle. Several months later, without further hearing, the trial court
terminated Father’s parental rights to Isabelle pursuant to Family Code subsections
161.001(b)(1)(C) and 161.001(b)(1)(F).
In three issues on appeal, Father contends that (1) the trial court reversibly
erred by terminating his parental rights to Isabelle because no pleadings supported
termination under section 161.001(b)(1)(C), that issue was not tried by consent, and
neither of the grounds specified in the termination order were supported by legally
or factually sufficient evidence; (2) the court violated his due process rights by
terminating his parental rights without a final trial or by not providing him notice
that the hearing on supervised visitation was a trial setting on termination; and (3) the
court erred by failing to appoint an amicus attorney or attorney ad litem for Isabelle.
We reverse and remand for further proceedings.
Background
Mother and Father have one child together, Isabelle. Isabelle was seven years
old at the time of the hearing in this case.
2 In December 2017, the trial court signed an agreed order that adjudicated
Father’s paternity of Isabelle. The court appointed Mother and Father as joint
managing conservators, granted Mother the exclusive right to determine Isabelle’s
primary residence, and granted Father possessory rights. The order required Father
to pay $541 per month in child support and $280 per month in medical support for
Isabelle.
It is undisputed that Father did not comply with his support obligation. Mother
moved for enforcement of Father’s support obligation and requested that the trial
court confirm the amount of support arrearages. After a hearing, the trial court signed
an order in which it found that Father violated the child support and medical support
provisions of the December 2017 order. The court confirmed Father’s support
arrearages in the amount of $6,500 and ordered Father to pay $125 per month
towards the arrears. The court also lowered Father’s monthly child support
obligation to $380 and his monthly medical support obligation to $220.
In January 2020, Mother moved to modify the parent-child relationship. She
alleged that Father had used drugs and had been arrested for possession of
methamphetamine. She also alleged that Father had been “found to have marijuana
in the car” when dropping Isabelle off after visitation. Mother requested that she be
named sole managing conservator of Isabelle and that Father have no possession of
Isabelle due to his drug use.
3 In May 2020, the trial court signed a default order granting Mother’s motion
to modify. The court appointed Mother as Isabelle’s sole managing conservator and
appointed Father as possessory conservator. The court also suspended Father’s
possessory rights, ordering that Father was to have “no possession and access of the
child . . . until order is further modified by the Court.”
Both Father and Mother sought relief in 2021. In March 2021, Father filed a
petition to establish paternity of Isabelle and to be named as joint managing
conservator. Father later amended this petition to request reduction of his child
support obligation. He requested “supervision” so he could have time with Isabelle
and that “appropriate orders be made for access to the child and the allocation of the
rights and duties of the conservators.”
On June 1, 2021, Mother filed a petition to terminate Father’s parental rights
to Isabelle. She alleged one statutory predicate ground for termination: that Father
failed to support Isabelle in accordance with his ability during a period of one year
ending within six months of the date of the filing of the petition. See TEX. FAM. CODE
§ 161.001(b)(1)(F).
The trial court held an evidentiary hearing on November 29, 2021. After an
off-the-record discussion with the parties, the trial court repeatedly stated that the
only issue for the hearing was whether to allow Father to have supervised visitation
with Isabelle. The parties were directed to limit their testimony to this issue.
4 Father, Mother, Isabelle’s paternal grandmother (“Julie”), and Isabelle’s
maternal grandmother (“Michelle”) all testified at the hearing. All witnesses testified
about two visits that Father had with Isabelle: an in-person visit in March 2021 and
a FaceTime visit in November 2021. The witnesses’ testimony addressed how Father
and Isabelle interacted, whether Isabelle was happy to see Father, Isabelle’s
demeanor, and any effects on Isabelle’s behavior after the visits. Mother testified
that she did not want the court to grant supervised visitation; instead, she wanted the
court to terminate Father’s parental rights.
The witnesses also testified concerning Father’s repeated failure to pay child
support, his history with drug usage, his legal troubles relating to his drug usage, and
his stays in rehabilitation facilities. Father had been in rehab for most of 2021, and
he had been released several weeks before the hearing. Father was not employed at
the time of the hearing.
At the close of the hearing, the trial court stated its intent to confer with the
Attorney General’s office concerning Father’s child support arrearages. The court
closed the hearing by stating that it would consider whether to allow Father to have
supervised visitation. Until the court made that decision, the current visitation order
would stay in place, and the court would notify the attorneys “about any
modifications.”
5 The trial court did not hold any further hearings. On March 25, 2022, the court
signed an order terminating Father’s parental rights. The trial court found that two
statutory predicate grounds were supported by clear and convincing evidence:
Family Code section 161.001(b)(1)(C) and section 161.001(b)(1)(F). The court also
found that termination of Father’s parental rights was in Isabelle’s best interest.
At Father’s request, the trial court filed findings of fact and conclusions of
law. This appeal followed.
Sufficiency of the Evidence
In his first issue, Father contends that the trial court erred by rendering a final
order terminating his parental rights to Isabelle because no pleadings supported
termination under section 161.001(b)(1)(C) and the issue was not tried by consent.
He further argues that the trial court’s findings of both statutory predicate grounds—
161.001(b)(1)(C) and 161.001(b)(1)(F)—were not supported by legally or factually
sufficient evidence.
A. Standard of Review
A parent’s right to the “companionship, care, custody, and management” of
their children is a constitutional interest that is “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Lassiter v. Dep’t
of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981)); In re D.T., 625
S.W.3d 62, 69 (Tex. 2021) (recognizing that parental right to make child-rearing
6 decisions is “fundamental”). Due to the final nature of termination proceedings, we
“carefully scrutinize” such proceedings and strictly construe involuntary termination
statutes in the parent’s favor. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012); see In re
E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). Because protection of the child is
“paramount,” parental rights are not absolute and “are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex.
2003) (quotation omitted).
For a trial court to terminate a parent’s rights, the party seeking termination
must prove that (1) the parent’s actions or omissions satisfy a statutory predicate
ground set out in Family Code section 161.001(b)(1), and (2) termination of the
parent’s rights is in the best interest of the child. See TEX. FAM. CODE § 161.001(b).
As a matter of due process, the party seeking termination must prove both elements
by clear and convincing evidence. Id.; In re E.N.C., 384 S.W.3d at 802 (stating that
heightened burden is mandated by both Family Code and Due Process Clause). The
Family Code defines clear and convincing evidence as “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007.
Because the burden of proof at trial is heightened, the standard of review on
appeal is likewise heightened. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per
curiam). In reviewing a legal sufficiency challenge, we must determine whether the
7 evidence is such that the factfinder could reasonably form a firm belief or conviction
about the truth of the matter sought to be proved. In re J.F.-G., 627 S.W.3d 304, 312
(Tex. 2021) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We consider
the evidence in the light most favorable to the finding under review. In re J.F.C., 96
S.W.3d at 266. The factfinder is the sole arbiter of the witnesses’ credibility and
demeanor, so we must defer to the trial court’s factual determinations. In re J.F.-G.,
627 S.W.3d at 312; In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). We assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. In re J.F.-G., 627 S.W.3d at 312
(quoting In re J.F.C., 96 S.W.3d at 266). We may not, however, disregard
undisputed facts that do not support the finding. In re J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d at 345. If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction concerning the finding, then the evidence is factually
insufficient. Id. (quoting In re J.F.C., 96 S.W.3d at 266). We must give due
deference to the factfinder’s findings, and we should not substitute our judgment for
that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
8 Only one predicate finding under section 161.001(b)(1) is necessary to
support a termination judgment when there is also a finding that termination is in the
children’s best interest. In re A.V., 113 S.W.3d at 362. Thus, if the trial court finds
multiple predicate grounds, we may affirm on any one ground because only one is
necessary for termination. In re J.G.S., 574 S.W.3d 101, 115 (Tex. App.—Houston
[1st Dist.] 2019, pet. denied).
B. Law Concerning Trial by Consent
Under Texas Rule of Civil Procedure 301, a trial court’s judgment must
conform to the pleadings. TEX. R. CIV. P. 301; In re K.S., 448 S.W.3d 521, 533 (Tex.
App.—Tyler 2014, pet. denied); see also Vasquez v. Tex. Dep’t of Protective &
Regul. Servs., 190 S.W.3d 189, 194 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) (holding that termination order can be upheld only on grounds both pleaded
by petitioner and found by trial court). A party’s pleadings invoke the trial court’s
jurisdiction, and a judgment that is not supported by the pleadings is void. Guillory
v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.); In
re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.). However,
unpleaded claims or defenses that are tried by express or implied consent of the
parties are treated as if they had been raised by the pleadings. In re K.S., 448 S.W.3d
at 533 (citing Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.
1991)); see TEX. R. CIV. P. 67.
9 Trial by consent “can cure lack of pleading, but an issue is not tried by consent
merely because evidence regarding it is admitted.” Bos v. Smith, 556 S.W.3d 293,
306–07 (Tex. 2018). To determine whether an issue was tried by consent, the court
must examine the record not for evidence of the issue, but rather for evidence of trial
of the issue. Id. at 307 (quotation omitted); In re A.B.H., 266 S.W.3d 596, 600 (Tex.
App.—Fort Worth 2008, no pet.). A party consents to trial of an unpleaded issue
when evidence on the issue is developed under circumstances indicating that both
parties “understood what the issue was in the case, and the other party failed to make
an appropriate complaint.” In re K.S., 448 S.W.3d at 533; In re A.B.H., 266 S.W.3d
at 600; see Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both parties
present evidence on an issue and the issue is developed during trial without
objection, any defects in the pleadings are cured at trial, and the defects are
waived.”). If a party allows an issue to be tried by consent and does not raise the lack
of pleading before submission of the case, the party may not raise the pleading
deficiency for the first time on appeal. In re K.S., 448 S.W.3d at 533.
“Trial by consent is intended only in the exceptional case where the record
clearly reflects the parties’ trial of an issue by consent.” In re S.A.A., 279 S.W.3d at
856; see Guillory, 442 S.W.3d at 690. An issue is not tried by consent if the evidence
presented on that issue is also relevant to other issues raised by the pleadings. King
v. Lyons, 457 S.W.3d 122, 127 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The
10 trial-by-consent doctrine is “not intended to establish a general rule of practice,” and
it “should be applied with care.” Guillory, 442 S.W.3d at 690. The doctrine should
not be applied in a “doubtful situation.” In re S.A.A., 279 S.W.3d at 856; In re A.B.H.,
266 S.W.3d at 600.
The trial court has broad discretion in determining whether an unpleaded issue
has been tried by consent. In re K.S., 448 S.W.3d at 533. The trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner or without reference to
any guiding rules or principles. Id. at 533–34.
C. Whether Parties Tried Termination Under Section 161.001(b)(1)(C) By Consent
1. Procedural History
Father and Mother engaged in several years of litigation before the
proceedings that formed the basis of this appeal. In December 2017, the trial court
entered an agreed order that, among other things, established Father’s paternity over
Isabelle, set out Father’s possession and access rights, and imposed a child and
medical support obligation on him. The court required Father to pay monthly child
support and medical support. After Father failed to comply with his support
obligation, Mother filed a motion for enforcement of the child support order. In
December 2018, the trial court confirmed Father’s arrearages and reduced his child
support obligation. The trial court also held Father in contempt and placed him on
probation for two years.
11 In January 2020, Mother moved to modify the parent-child relationship. In
her modification petition, which she supported with an affidavit, Mother alleged that
Father used drugs, had been arrested for possession of methamphetamine, and had
marijuana in his car while driving with Isabelle. Mother requested that she be named
as Isabelle’s sole managing conservator. She also requested that Father “have no
possession of the child as his continued drug use is endangering the child’s physical
well being.”
Father did not file an answer to Mother’s modification petition, and the trial
court entered a default modification order. The trial court appointed Mother as sole
managing conservator of Isabelle and Father as possessory conservator. The court
also ordered that Father will have “no possession and access of the child . . . until
order is further modified by the Court.”
The proceedings underlying this appeal began in March 2021, when Father
filed a petition to establish paternity. He later amended his petition, arguing that his
child support obligation should be modified and he should be named a joint
managing conservator. He also requested “supervision” so he could spend time with
Isabelle and that the court make “appropriate orders” for “access to the child and the
allocation of the rights and duties of the conservators.”
In June 2021, Mother moved to terminate Father’s parental rights to Isabelle.
She alleged one statutory predicate ground for termination: Father failed to support
12 Isabelle in accordance with his ability during a period of one year ending within six
months of the date of filing the termination petition. See TEX. FAM. CODE
§ 161.001(b)(1)(F). She also alleged that termination of Father’s parental rights
would be in Isabelle’s best interest. Father answered and filed a general denial.
Mother did not file an amended petition asserting any other statutory predicate
grounds for termination.
The trial court held a hearing on November 29, 2021. The volume of the
reporter’s record for this hearing is entitled “Motion Hearing.” At the beginning of
the hearing, the trial court stated on the record:
The attorneys and the parties are here. We had some discussion off the record. Where I think we are now is the current arrearage that [Father] owes between child support and medical support as of today is $25,914.51. The Attorney General’s office was included in an email setting this today. They’re not here today, and I would want to get with them and find out if any percentage of that is government assistance. So, we may have to include that in an e-mail to get confirmation from them. When we talked with the attorneys, one of the issues that was discussed was a supervised visitation between [Father] and [Isabelle]; and, unfortunately, all the time we took trying to do this, we only have about 45 minutes left. So, I just want to limit the testimony right now as to whether or not a supervised visitation is either a good thing or a bad thing.
After asking the attorneys to identify the witnesses they intended to call on that issue,
the court also stated, “So, I want to really limit things just on one issue, on whether
13 or not it’s worth on a trial basis to set up supervised visitation between [Isabelle] and
her father.”
The trial court then addressed Father’s counsel and stated, “[S]ince you’d be
the one asking for some supervised visitation, I’ll let you call your witness first; and,
like I said, we’ll probably have to present your case in about 15 minutes or so as to
why that would be a good thing for [Isabelle].” Father then testified. His testimony
addressed an in-person visit with Isabelle in March 2021, a FaceTime conversation
with her in early November 2021, and his residence at a drug rehabilitation facility
for most of 2021. He testified that he was currently living with his aunt. He also
stated that he would be willing to participate in a supervised visitation program.
On cross-examination, Mother’s counsel questioned Father about his history
of not complying with his child support obligation. Father agreed that he had missed
many of his required payments, although he had made some payments, particularly
when he received government stimulus payments. Mother’s counsel also questioned
Father about his history of drug abuse. Father agreed that, at one point, he had
alcohol in the car while he was driving with Isabelle. He also agreed that, in May
2021, he was placed on deferred adjudication for three years for possession of a
controlled substance. He further agreed that, in the past, he had violated probation
conditions.
14 After Father’s testimony, the trial court questioned him further about the
circumstances of his March 2021 visit with Isabelle. Father testified that Isabelle
was happy to see him, they played with her toys, and the visit “went well.”
Mother then testified about the March 2021 visitation. Mother agreed that
Isabelle was pleased to see Father, but she was “very emotional” after the visit.
Mother testified that Father’s tendency to be in and out of Isabelle’s life affected her
in a negative way, and she did not fully understand why he would be absent for
periods of time. Isabelle was doing “exceptionally well” in school, her grades were
“nearly perfect,” and Mother tried to keep her busy with activities “to ensure that
she is not missing a single thing in her life.”
Mother had the following exchange with her counsel:
Q. We’ve had to be back and forth in front of this Court numerous times; and it’s always been because of [Father’s] actions; is that correct? A. Correct. Q. It’s always been breaking the law again this time or going to jail this time, right? A. Right. Q. And is that what—and on top of that, because of those actions, he’s not able to see [Isabelle] and support [Isabelle], correct? A. Right. Uh-huh. Q. And is that why you’re asking this Court to grant the termination to where this roller coaster can stop and her emotional well-being is not affected in a negative way anymore? A. Yes. 15 On cross-examination, Mother agreed that Isabelle would be happy to see
Father and Father’s parents. Father’s counsel attempted to ask Mother about her own
alleged drug usage around the time she met Father. The trial court sustained
Mother’s objection and stated, “Right now I’m just trying to decide if there should
be supervised visitation.” After Father’s counsel started to explain his rationale for
the question, the court stated, “And, again, if there is or is not going to be supervised
visitation between [Father] and [Isabelle], [Mother’s] past activities are irrelevant to
that.” Mother was not willing to give Father any more chances at parenting Isabelle.
On re-direct examination, Mother agreed with her counsel that she has “to
keep picking up the pieces of [her] little daughter when [Father] screws up the next
time and isn’t around for six months to two years or whatever it may be if he gets in
trouble again on probation.” Counsel asked Mother:
Is that why you’re asking this Court to just keep the order—visitation order that’s in place, which is no—no visitation if they’re not going to terminate today and let him catch up on support if he’s really going to try or to just terminate today? Is that what you’re requesting?
Mother responded, “[Y]es, I’m requesting a termination.” In an exchange with the
trial court, Mother stated that she was not comfortable with the idea of taking Isabelle
for supervised visitation at a facility because any required security at the facility
might be traumatic for Isabelle. Mother was not in favor of any in-person visits
between Isabelle and Father.
16 After Mother’s testimony, the trial court asked whether Father’s counsel
wanted to call any other witnesses “if [counsel] think[s] they could add to this issue
of supervised visitation or not.” Father called his mother, Julie, to testify. Julie
testified that she was willing to supervise Father’s visitations with Isabelle. She was
present during the March 2021 visitation, and she believed that Father and Isabelle
“get along great” and Isabelle “enjoys all the time she gets to spend with him.” She
did not witness Isabelle display any signs of trauma or distress. Julie stated, “I’ll
support [Father] however I need to in order to be able to see our granddaughter.” On
cross-examination, Julie testified that she was not willing to pay Father’s child
support obligation for him, but she intended to make sure that Father got a job and
paid child support.
Mother called her mother, Michelle, to testify. Michelle testified that Isabelle
had difficult sleeping after visits with Father. She agreed with Mother’s counsel that
Isabelle had experienced emotional trauma “from the roller coaster that [Father has]
put her life on in the last couple of years.” Michelle agreed that Isabelle does poorly
in school if she sees Father and then does not see him “for months at a time.” She
believed that continued visits with Father would negatively impact Isabelle.
After Michelle’s testimony, the trial court stated:
Well, I’m going to contact with the AG’s office and try to clarify the issue of child support and if the AG is really interested in collecting any money on their behalf. So, I’ll find that out and consider whether or not I’ll have some supervised visitation on a short term basis or not. So, as 17 of right now until I can rule on that, the current order stays in place; and then I’ll let the attorneys know about any modifications. That’s it for today. Thank you.
The court then recessed the hearing.
The trial court’s docket sheet reflects that no further hearings occurred in the
case. After the November 2021 hearing, Father filed several documents with the trial
court, including a notice that he had obtained employment in January 2022. On
January 28, 2022, Father’s counsel filed a letter that he had sent to Mother’s counsel
and counsel for the Attorney General’s office. In this letter, counsel stated that Father
had obtained employment and that Julie was willing to pay $10,000 to reduce
Father’s support arrearages if Mother would agree to dismiss the termination
petition, establish a possession schedule, and allow Julie and her husband to have
regular visitation with Isabelle. Counsel stated that Father was willing to agree to
supervised visitation.
On March 25, 2022, the trial court signed an order terminating Father’s
parental rights. The order stated that Mother’s termination petition was heard by the
court on November 29, 2021.2 The trial court found, by clear and convincing
evidence, that Father:
2 The order also stated that a record of the proceeding “was waived by the parties with the consent of the Court.” The appellate record, however, does include a transcript of the November 29, 2021 hearing. 18 I. voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months and II. failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of this petition.
See TEX. FAM. CODE § 161.001(b)(1)(C), (F). The court also found that termination
of Father’s parental rights was in Isabelle’s best interests. Father did not file any
post-judgment motions.
2. Analysis
Mother acknowledges that she did not plead the predicate ground of
abandonment—Family Code section 161.001(b)(1)(C)—in her termination petition.
See id. § 161.001(b)(1)(C) (providing that court may terminate parental rights if it
finds by clear and convincing evidence that parent “voluntarily left the child alone
or in the possession of another without providing adequate support of the child and
remained away for a period of at least six months”). She argues, however, that the
trial court properly terminated Father’s parental rights based on this predicate ground
because the issue was tried by consent at the November 2021 hearing. We disagree.
The trial court repeatedly stated during the November 2021 hearing that it was
only hearing evidence on the question of whether Father should be granted
supervised visitation with Isabelle during the pendency of Mother’s termination
petition. Evidence of Father’s past conduct—including his prior visitations with
19 Isabelle, the frequency of his visits with Isabelle, his history of using drugs, his
criminal history, and his willingness and ability to comply with court orders—was
relevant to that question.
Neither Mother nor her counsel stated at the hearing that they intended to seek
termination based on subsection (C). The closest Mother and her counsel come to
referencing subsection (C) is this exchange that Mother had with her counsel:
Q. We’ve had to be back and forth in front of this Court numerous times; and it’s always been because of [Father’s] actions; is that correct? A. Correct. Q. It’s always been breaking the law again this time or going to jail this time, right? A. Right. Q. And is that what—and on top of that, because of those actions, he’s not able to see [Isabelle] and support [Isabelle], correct? A. Right. Uh-huh. Q. And is that why you’re asking this Court to grant the termination to where this roller coaster can stop and her emotional well-being is not affected in a negative way anymore? A. Yes.
It is not clear from this testimony, however, that Mother desired to assert subsection
(C) as a predicate ground for termination in addition to subsection (F), which also
focuses on a parent’s support of their child, and which Mother had pleaded.
Mother later stated in her testimony that she was opposed to Father having
supervised visitation, and she was requesting termination of Father’s parental rights. 20 After this testimony, however, the trial court asked the parties whether they had any
additional witnesses who could present testimony relevant to the supervised
visitation question. The trial court concluded the hearing by stating that it wished to
confer with the Attorney General’s Office, and then it would decide whether Father
would be allowed supervised visitation with Isabelle. We agree with Father that, in
the context of the hearing as a whole, Mother’s references to requesting termination
are best understood as her stating her opposition to supervised visitation. Mother did
not want to give Father any further chances at visitation with Isabelle; she wanted
his parental rights terminated. Her statements are not, however, an indication that
the trial court considered the November 2021 hearing to be the final trial on the
merits of Mother’s termination petition.
Father acknowledges that evidence relevant to subsection (C) was presented
at the November 2021 hearing. However, in determining whether an issue was tried
by consent, we examine the record not for evidence of the issue, but for evidence of
trial of the issue. Bos, 556 S.W.3d at 307; In re A.B.H., 266 S.W.3d at 600. A key
component of this inquiry is whether the evidence is developed under circumstances
indicating that both parties “understood what the issue was in the case, and the other
party failed to make an appropriate complaint.” In re K.S., 448 S.W.3d at 533; see
Ingram, 288 S.W.3d at 893. Mother’s statements about requesting termination are
not an indication that both she and Father understood that she was now asserting
21 subsection (C) as an additional, unpleaded predicate ground for termination. See,
e.g., In re K.S., 448 S.W.3d at 533.
We should only apply the trial-by-consent doctrine in “exceptional” cases
where the record clearly reflects that the parties tried an unpleaded issue by consent.
In re S.A.A., 279 S.W.3d at 856; see Guillory, 442 S.W.3d at 690. We should not
apply the doctrine in a “doubtful situation.” In re S.A.A., 279 S.W.3d at 856. We
conclude that this case is not an “exceptional case” in which the record clearly
demonstrates that the parties tried the issue of whether Father’s parental rights
should be terminated under the unpleaded ground of section 161.001(b)(1)(C) by
consent. See id. The record instead reflects that the November 2021 hearing was
solely a hearing on whether Father should be allowed supervised visitation with
Isabelle and was not a final trial on the merits of Mother’s termination petition.
Moreover, although evidence relevant to subsection (C) was presented at the
hearing, it was not clear that both Mother and Father understood that Mother sought
termination under subsection (C) in addition to the pleaded predicate ground of
subsection (F). See In re K.S., 448 S.W.3d at 533; In re A.B.H., 266 S.W.3d at 600.
We hold that the trial court erred by finding, in its termination order, that
Father violated subsection (C) because Mother did not plead subsection (C) as a
predicate ground for termination and the parties did not try the issue by consent at
the November 2021 hearing. See TEX. R. CIV. P. 301 (providing that judgment “shall
22 conform to the pleadings”); Guillory, 442 S.W.3d at 690 (stating that judgment
unsupported by pleadings is void).
Father also argues in his first issue that the trial court erred by rendering the
final termination order because Family Code subsection 161.001(b)(1)(F)—the
predicate ground pleaded by Mother in her termination petition and the other ground
found by the trial court in its termination order—was not supported by legally or
factually sufficient evidence. We need not address whether sufficient evidence
supports this finding because, as we have concluded above, the November 2021
hearing was a hearing solely on supervised visitation. It was not a final trial on the
merits of the termination petition. The appellate record does not reflect that any other
evidentiary hearing occurred after the November 2021 hearing. Because the trial
court expressly limited the November 2021 hearing to the question of supervised
visitation, and the court did not hold any further hearings or a final trial on the merits
of Mother’s termination petition, we hold that the trial court erred by rendering the
order terminating Father’s parental rights. See TEX. FAM. CODE § 105.003(a)
(providing that in suits affecting parent child relationship, which include suits to
terminate parental rights, “proceedings shall be as in civil cases generally”); see also
id. § 161.202 (providing that, in termination proceedings, party may move “for a
preferential setting for a final hearing on the merits”).
23 We sustain Father’s first issue.3
Conclusion
We reverse and remand the case for further proceedings.
April L. Farris Justice
Panel consists of Justices Goodman, Countiss, and Farris.
3 Because we sustain Father’s first appellate issue and remand the case for a new trial, we need not address Father’s second and third appellate issues because these issues would not grant Father greater relief. See TEX. R. APP. P. 47.1 (providing that court of appeals must hand down written opinion that addresses “every issue raised and necessary to final disposition of the appeal”). 24