in the Interest of K.A., A.S.B. AKA A.A., Children

• Court: Court of Appeals of Texas
• Decided: January 26, 2022
• Docket: 07-21-00199-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00199-CV

IN THE INTEREST OF K.A., A.S.B. AKA A.A., CHILDREN

On Appeal from the County Court at Law Moore County, Texas Trial Court No. CL112-20, Honorable Jerod Pingelton, Presiding

January 26, 2022

OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

A.C.A. (Mother) appeals from a final order terminating her parental rights to K.A.

and A.S.B. We vacate in part and affirm in part.

K.A.

“For want of a nail . . .” or, in this case, “for want of reading your pleadings . . . .”

We first address the order terminating Mother’s rights regarding K.A. She argues

that the trial court lacked subject-matter jurisdiction to terminate that relationship. We

agree.

The underlying suit (CL112-20) emanated from the consolidation of distinct suits

previously assigned cause numbers CL112-20 with CL136-20. The latter implicated the

parental relationship between Mother and A.S.B., while the former involved that between Mother and K.A. In ordering consolidation, the trial court decreed that “[a]ll pleadings and

other documents filed in both cause numbers prior to this date shall be deemed filed in

said consolidated case, and all future filings shall be captioned under the consolidated

cause number.”

After consolidation, the Department of Family and Protective Services

(Department) filed its first amended petition for the protection of a child, conservatorship,

and termination of the parent-child relationship. It named only one child as the object of

the protection, conservatorship, and termination. That child was A.S.B. K.A. was

mentioned nowhere therein. Nor did the Department refer to any desire to terminate the

parental relationship between Mother and K.A. in the amended pleading. Nevertheless,

the trial court convened a final hearing and adjudicated Mother’s rights as to both children.

There are two kinds of consolidation. One is a true consolidation while the other

is for trial only. Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 432 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (op. on reh’g); accord Amir-Sharif v. Cadieux, No. 05-

14-01055-CV, 2015 Tex. App. LEXIS 2814, at *3–4 (Tex. App.—Dallas Mar. 25, 2015, no

pet.) (mem. op.) (stating the same); see also Rust v. Tex. & Pac. Ry. Co., 107 Tex. 385,

387, 180 S.W. 95, 95 (1915) (stating that “the order of consolidation having been properly

made, there remained no separable cause of action. It became but one suit . . . .”). The

former merges the separate actions into a single proceeding under one docket number.

Hong Kong Dev., Inc., 229 S.W.3d at 432. Being so merged, they become and proceed

as one suit. Id. That happened here, as illustrated by the language of the consolidation

order. Nothing in it insinuates that the two previously independent actions were merged

simply for trial purposes. Rather, the trial court ordered that all prior pleadings in the two

2 proceedings were deemed filed in CL112-20 and all future filings were to be captioned

under CL112-20. Simply put, there no longer was a CL136-20. The order wrought a true

consolidation at bar, and only one proceeding or action remained.

In that one remaining suit, the Department filed an amended petition. Such an

amendment supersedes all previous ones and becomes the controlling or live pleading.

See Pisharodi v. United Biologics, L.L.C., No. 04-18-00324-CV, 2020 Tex. App. LEXIS

2460, at *18 (Tex. App.—San Antonio Mar. 25, 2020, pet. denied) (mem. op.). Moreover,

causes of action in earlier pleadings but unmentioned in the amended document are

effectively dismissed or nonsuited. See FKM P’ship v. Bd. of Regents of the Univ. of

Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008). The same is true regarding parties;

they are dismissed as effectively by omitting their names from the amended pleading as

they are by entry of a dismissal order. See In re Catholic Diocese of El Paso, 465 S.W.3d

808, 813–14 (Tex. App.—El Paso 2015, orig. proceeding); Woodruff v. Wright, 51 S.W.3d

727, 731 (Tex. App.—Texarkana 2001, pet. denied). The effect is to extinguish the

underlying case or controversy involving the dismissed party or claim. See Univ. of Tex.

Med. Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per

curiam) (stating that nonsuit extinguishes a case or controversy from “the moment the

motion is filed”). In short, the dispute becomes moot. So too does it vitiate the trial court’s

subject-matter jurisdiction to adjudicate the interests of the missing party when that party

falls within the category of indispensable. Nuchia v. Woodruff, 956 S.W.2d 612, 616–17

(Tex. App.—Houston [14th Dist.] 1997, pet. denied) (op. on reh’g); Goodman v. Summit

at West Rim, 952 S.W.2d 930, 933 (Tex. App.—Austin 1997, no pet.); see April Sound

Mgmt. Corp. v. Concerned Prop. Owners for April Sound, Inc., 153 S.W.3d 519, 526 (Tex.

3 App.—Amarillo 2004, no pet.) (noting that the absence of an indispensable party may

deprive the trial court of jurisdiction).

No one can reasonably dispute that the Department’s effort to amend the petition

resulted in a dismissal of K.A. as a party. Again, the live pleading said nothing about him

or severing the parental relationship between him and Mother; that effectuated a nonsuit

or dismissal of K.A. as a party under the foregoing authorities. Nor can one reasonably

dispute the indispensable status of either the parent or child in a suit ending the

relationship between them. So, given K.A.’s absence as a party to this proceeding, the

trial court not only lost subject-matter jurisdiction over him and his parental relationship

with Mother but also lacked the authority to end that relationship.

The Department suggests otherwise because the matter was tried by the consent

of the parties.1 The problem with that is two-fold. First, K.A. was not a party, which would

be a prerequisite to effectively giving consent. Second, parties cannot by consent vest a

trial court with subject-matter jurisdiction over a dispute. San Antonio River Auth. v. Austin

Bridge & Rd., L.P., 601 S.W.3d 616, 627 (Tex. 2020). So, the remaining parties could

not consent to the trial court adjudicating the interests of one over which it lacked subject-

matter jurisdiction.

As previously said, for want of a nail, or in this case, the Department reviewing its

live pleading, the trial court lacked jurisdiction to adjudicate the parental relationship in

question and the conservatorship of K.A. Thus, we must vacate that portion of the final

order.

1 We find it a bit ironic that the child to whom the Department refers in its argument is A.S.B., not K.A. A.S.B. was a party. K.A. was not. It apparently missed that, too.

4 A.S.B.

The first issue we address regarding the child A.S.B. concerns the Department’s

appointment as her temporary conservator prior to termination. We are told that the trial

court lacked “sufficient grounds” to make it. As we observed in In re L.M.B., No. 07-19-

00147-CV, 2019 Tex. App. LEXIS 8420 (Tex. App.—Amarillo Sept. 17, 2019, no pet.)

(mem. op.), a final order terminating parental rights renders moot an earlier temporary

conservatorship order. Id. at *7–8 (and cases cited therein). A final order of termination

having been executed here, we overrule this issue as moot.

The remaining issues concern the sufficiency of the evidence underlying the trial

court’s decision to terminate the parental relationship. Mother questions the evidence

underlying both the finding relating to the statutory grounds and best interest

determinations of the court.2 The pertinent standard of review is that discussed in In re

N.G., 577 S.W.3d at 235. We apply it here.

As for the statutory grounds warranting termination, the trial court found several.

They included Mother’s endangering the physical and emotional well-being of the

children, see TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E); constructively abandoning the

children, see id. § 161.001(b)(1)(N); and failing to comply with the provision of a court

order, see id. § 161.001(b)(1)(O). The evidence need only suffice as to one, though. In

re N.G., 577 S.W.3d at 234.

The evidence at bar included proof that Mother birthed four children. Her parental

relationship with the two eldest were voluntarily terminated. The two youngest, K.A. and

2 “Texas Family Code section 161.001(b) allows for involuntary termination of parental rights if clear

and convincing evidence supports that a parent engaged in one or more of the twenty-one enumerated grounds for termination and that termination is in the best interest of the child.” In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam).

5 A.S.B., were born in August of 2019 and October of 2020, respectively. The Department

removed K.A. from Mother when it discovered that 1) she and his father regularly smoked

marijuana, 2) Mother eschewed taking medication to address her mental disabilities, and

3) Mother had neither a home, income, nor vehicle. This resulted in the initiation of

conservatorship and termination proceedings involving K.A.

The Department placed the child with his great-grandmother (Grandmother), who

lived in Oklahoma. Mother was also ordered to pursue certain services to obtain his

return. Mother was current on working those services when she birthed A.S.B. Shortly

thereafter, the Department initiated a separate conservatorship action involving that child,

though the trial court allowed A.S.B. to remain with Mother during the interim.

Then, Mother decided to leave Texas with A.S.B. without informing the

caseworker. Though her purported motive for doing so concerned a desire to see K.A.,

she had no intent to return to Texas. That resulted in Oklahoma law enforcement

personnel intervening. Mother’s location was ultimately discovered. Furthermore, A.S.B.

was removed from her care and placed with Grandmother, as well. That occurred in

February of 2021.

Since A.S.B.’s removal, Mother failed to attend additional counseling required of

her, to comply with two requests for drug testing, and to provide her caseworker with proof

of employment. Though she lives in an apartment, it belongs to her boyfriend’s

grandmother. And, though she has a boyfriend (D), Mother remains married to another

person.

Additionally, D has multiple criminal convictions. They include convictions for theft,

assault, and domestic violence. Moreover, he and Mother’s uncle engaged in a quarrel

6 at a birthday party for K.A. It occurred when Mother and D appeared after being told

before their arrival by Grandmother that D was not welcome.

Uncle also had a criminal record and served about eight years in prison. Though

Grandmother permits him to interact with the children, she does not allow them to be

alone during the interaction. She remains present.

Since their placement with Grandmother, the children have visited with Mother on

a regular basis, both in person and virtually. During one of the in-person visits,

Grandmother smelled marijuana on Mother.

Other evidence revealed that Mother twice bought groceries for her children during

the numerous months they have lived with Grandmother. Yet, she provided no other

financial support for them. Instead, she often solicited funds from Grandmother for her

own use and care.

Nor had Mother acquired either a job or vehicle until a few days before the final

termination hearing. The job consisted of part-time work at a fast-food restaurant earning

$10 an hour. We found no description of the car, its condition, or its susceptibility for use

as a family vehicle. Nevertheless, we assume that it was available to bring Mother to the

final hearing. Instead of so journeying, she attended virtually.

Again, K.A. and A.S.B. reside with Grandmother. Grandmother has assured that

the children receive attention for their medical conditions. They include K.A.’s clubfoot,

which requires him to wear a brace day and night. In turn, A.S.B. was born with a heart

murmur and two holes in her heart. To reiterate, Grandmother attends to and secures

the requisite medical care to address those conditions, and more importantly, the children

7 do well under her care. Grandmother also has the financial means and housing to provide

the children with the stability children need.

All witnesses for the Department opined that termination was warranted and in the

best interests of the child. The caseworker believed this appropriate because Mother

failed to comply with her service plan, lacked a stable home environment and income,

and failed to complete all her assigned drug tests. Such were requirements of the service

plan. Indeed, Mother’s continued lack of stability despite having opportunity to improve

formed a major theme throughout the proceedings. Though the caseworker thought

Mother had the ability to find stability if she so chose, she conceded that mother had yet

to find same.

A parent’s conduct before and after a child’s birth and removal may be considered

when assessing the appropriateness of termination. In re S.M.G., No. 01-17-00056-CV,

2017 Tex. App. LEXIS 5981, at *11 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet.

denied) (mem. op.); In re J.E., No. 07-12-00449-CV, 2013 Tex. App. LEXIS 1063, at *7

(Tex. App.—Amarillo Feb. 5, 2013, no pet.) (mem. op.); In re M.N.G., 147 S.W.3d 521,

536 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g). Evidence of conduct before

and after the birth and removal of A.S.B. appears of record. Additionally, evidence of illicit

drug use by a parent affecting a child is an example of conduct endangering the physical

and emotional well-being of a child, see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)

(involving the use of marijuana), and In re C.R., No. 07-20-00314-CV, 2021 Tex. App.

LEXIS 1286, at *7–8 (Tex. App.—Amarillo Feb. 23, 2021, pet. denied) (mem. op.), even

if the drug is marijuana. See In re J.O.A., 283 S.W.3d at 345–46. The trial court had

such evidence here. Mother had no income or home with which to care for K.A. but

8 nonetheless regularly acquired and smoked marijuana. She had no job or visible means

with which to support A.S.B. Nor did she provide regular financial support for either child;

yet she continued to acquire and utilize the substance, or so Grandmother’s testimony

indicated. More importantly, her use occurred despite her having mental disabilities.

The same is true of conduct subjecting a child to a life of uncertainty and instability;

it too endangers a child’s physical and emotional well-being. In re A.B., No. 04-21-00051-

CV, 2021 Tex. App. LEXIS 5984, at *6–7 (Tex. App.—San Antonio July 28, 2021, no pet.)

(mem. op.); In re A.M.A., No. 07-16-00224-CV, 2016 Tex. App. LEXIS 10565, at *10 (Tex.

App.—Amarillo Sept. 27, 2016, pet. denied) (mem. op.). The trial court also had such

evidence here. Mother previously relinquishing her interest in two children, her lacking

employment until days before the final hearing, her lacking a vehicle until the day of the

hearing, her dependency on others to provide her a home, her working at a part-time job

paying sums insufficient to support children with medical needs, and her living with a

boyfriend while married to another man evinces the aforementioned instability.

Endangering conduct under § 161.001(b)(1)(D) and (E) need not be aimed at the

child made subject of the termination proceeding. In re J.F.-G., 627 S.W.3d 304, 312

(Tex. 2021). Nor must the child actually experience injury. Id. Rather, endangerment

occurs when the child is exposed to loss, injury, or jeopardy. See id. (noting that to

endanger means to expose to loss or injury or otherwise jeopardize). The totality of

evidence before the trial court was enough to allow the factfinder to form a clear and

convincing belief that Mother’s conduct satisfied the elements of (E), at the very least. It

showed that she engaged in conduct which exposed A.S.B. to loss, injury, or jeopardy.

The very same evidence highlighted by the present home environment of the child, the

9 child’s medical improvement while in that home, and mother’s habitation with one

convicted of violent crimes also permits the formation of the same clear and convincing

belief about termination being in A.S.B.’s best interests. Consequently, the trial court had

sufficient evidentiary basis upon which to terminate the parental relationship between

Mother and A.S.B.

We modify the trial court’s final order by vacating that portion dealing with K.A., his

conservatorship, and his parental relationship with Mother. The trial court lost jurisdiction

to act with regard to him when the Department omitted the child from its live pleading.

We affirm the final order as modified.

Brian Quinn Chief Justice