in the Interest of S.T., a Child

508 S.W.3d 482, 2015 Tex. App. LEXIS 12799, 2015 WL 9244913
Court of Appeals of Texas·Decided December 17, 2015·No. NO. 02-15-00203-CV·Published·Cited by 68 cases

Opinions

OPINION

BONNIE SUDDERTH, JUSTICE

I. Introduction

In a single issue, Appellant Father appeals the trial court’s determination that the Department of Family and Protective Services (DFPS) should remain his child S.T.’s managing conservator. We reverse the trial court’s judgment and remand the case for a new trial.

II. Factual and Procedural Background

DFPS filed a petition for protection, conservatorship, and termination of parental rights a few days after S.T.’s birth in November 2013.1 Not quite a year later, when DFPS notified Father that he might be S.T.’s father, he immediately wrote back, requested a DNA test, and stated that he would parole within five months.2 The trial court extended the suit’s dismissal date and ordered a paternity test. The test results confirming Father’s paternity were filed on December 29, 2014.

In January 2015, in his CPS service plan, Father was assigned parenting classes, a substance abuse assessment, random drug tests, and individual counseling, and he was required to refrain from criminal activities, illegal acts, and illegal drugs and to maintain safe, stable, and appropriate housing.3 In April 2015, Father filed an original answer in the case, requesting appointment as the child’s permanent managing conservator or, alternatively, appointment of DFPS as the child’s permanent managing conservator and his appointment as the child’s possessory conservator.

DFPS filed a motion seeking to be named the child’s permanent managing conservator and for S.T.’s maternal grandmother P.T. to be named the child’s tem[485]*485porary possessory conservator.4 At the conclusion of the hearing on DFPS’s motion, DFPS asked the trial court to make DFPS S.T.’s permanent managing conservator, make P.T. the child’s possessory conservator, and adjudicate Father as S.T.’s father.5 The trial court adjudicated Father as the child’s father, named DFPS as S.T.’s managing conservator, and named P.T. as the child’s temporary pos-sessory conservator.6

III. Discussion

Father argues that the evidence is legally and factually insufficient to support the trial court’s finding that appointing him as S.T.’s sole managing conservator or a joint managing conservator would significantly impair the child’s physical health or emotional development. He complains that the trial court abused its discretion because the evidence is insufficient to overcome the parental presumption in family code section 153.131(a).

DFPS responds that Father invited the error he now complains of when he requested the relief the trial court granted, even though he requested this relief in the alternative, and that the evidence is legally and factually sufficient to support the trial court’s order.

A. Invited Error

Under the doctrine of invited error, a party is estopped from challenging a trial court’s ruling on appeal if the complaining party actually requested the specific action that the trial court took. Everitt v. Everitt, No. 01-11-00031-CV, 2012 WL 3776343, at *10 (Tex.App.-Houston [1st Dist.] Aug. 31, 2012, no pet.) (mem.op.) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861-62 (Tex.2005)). This rule bars a party from convincing a trial court to take a particular action and then convincing an appellate court that the trial court’s action was erroneous—that is, it prevents an appellant from having his cake and eating it too.

Whether in this case Father is estopped from challenging the trial court’s decision depends upon what Father requested the trial court to do, how clearly he articulated his request, and whether the trial court ultimately granted the relief requested.

In his pleadings, Father requested two alternative forms of relief:

.. .that [S.T.] be returned to [Father] and [Father] be named Permanent Managing Conservator of [S.T.]. Or, in the alternative, [Father] prays that [Father ]’s parental rights are not terminated and the Department of Family and Protective Services be named Permanent Managing Conservator and [Father] be named Possessory Conservator over [S.T.].

The trial court did not grant either of these alternatives; therefore, based upon the pleadings, the invited error doctrine would not preclude Father from challenging the trial court’s ruling on appeal. In re Dep’t of Family & Protective Servs., 273 5.W.3d 637, 646 (Tex.2009) (orig.proceeding) (holding that the invited error rule did not apply when “[appellant] does not assert error in regard to what she asked the trial court to do and it did do ... [s]he [486]*486asserts error in regard to what she asked the trial court to do and it did not do”).

However, at the permanency hearing three weeks later, Father’s request for alternative relief changed. During opening statements, Father’s attorney stated his position as, “I believe today the father will be asking for custody of the child, possession of the child, or, in the alternative, possession of the child going to maternal grandparents.” And Father testified consistent with his attorney’s opening statement:

Q. Are you okay with if [sic] the Court desires for CPS to remain in the case and monitor your placement with [S.T.]—or [S.T.] ’s placement with you?
A. Yes.
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Q. If this Court does not feel at this time you’re ready for placement for [S.T.] to be placed with you, are you asking the Court to place with [P.T.]?
A. Yes.

Thus, at this juncture during trial, the record shows that Father requested that the trial court either: (1) place S.T. with him on a DFPS-monitored basis, or (2) place the child with her grandmother.

However, during final argument, Father’s attorney equivocated, summarizing Father’s position as:

.... And we are today asking you to return the child to [Father], If the Court doesn’t feel comfortable returning, you know, bam, PMC, we’re out of here. And I understand that, and I think [Father] understands that.
He testified that he would understand—he would understand about having a monitored return is what the Department would say and allow the Department to monitor that. He hasn’t had that opportunity....
... Screw it up if he has to, but at least prove to the Court that he can do it or cannot do it. And if this Court doesn’t think that he’s—he needs to have the opportunity to do that, t hen we do ask that you place with [P.T.], either on a PMC basis or the Department PMC, and to allow [Father] to finish his individual counseling, however much is left of that. But I believe that he at least needs that opportunity to do that.
... He’s done everything he needed to do, with the exception of finishing those individual counseling.

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in the Interest of S.T., a Child, 508 S.W.3d 482, 2015 Tex. App. LEXIS 12799, 2015 WL 9244913 (Tex. Ct. App. 2015).

508 S.W.3d 482 (in the Interest of S.T., a Child) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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