Opinion
No. 07-20-00103-CV
08-17-2020
On Appeal from the 140th District Court Lubbock County, Texas
Trial Court No. 2014-511,343; Honorable Jim Bob Darnell, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, S.M., appeals the trial court's order terminating her parental rights to her child, T.M. She challenges the order through two issues. In the first issue, she contends the trial court lacked jurisdiction to terminate her parental rights. By her second issue, she contends her due process rights were violated when the trial court failed to reconvene the final hearing before issuing its final order. The Texas Department of Family and Protective Services has conceded the merits of S.M.'s first issue. Accordingly, we will reverse and remand the matter to the trial court.
To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b).
BACKGROUND
S.M. and C.M. are the parents of seven-year-old T.M. At the time of T.M.'s removal in 2018, C.M. did not live with the family. T.M. visited C.M. a couple of days a week but the majority of time was spent at the home of S.M. and her mother. S.M. had a boyfriend at the time of the removal. S.M. requested that T.M. be placed with her boyfriend but the Department declined to do so.
C.M., the father of T.M., is not a party to this appeal.
The Department became involved with the family in June 2018, when police received information concerning domestic violence between S.M. and her mother, that S.M. was using illegal drugs, that the home in which T.M. was living was dirty, and that there was concern over S.M.'s mental health. T.M. was removed from S.M.'s care after a police officer visited the home in response to a call concerning domestic violence in the home. When the officer visited the home, he noted unusual behavior by S.M. and her mother and observed the house was dirty with dog feces and urine. Police were also informed of concerns that S.M. was using methamphetamine at the time.
The record is unclear regarding S.M.'s mental health issues. From the scant and sometimes contradictory evidence in the record, it appears S.M. was treated for anxiety and depression and was prescribed medication for those conditions. The record also indicates it is possible S.M. was not taking those medications as directed.
Two hearings make up the majority of the reporter's record in this case. The first hearing was held in November 2019, and S.M. was the only witness. At that hearing, S.M. testified T.M. was removed from her home following allegations of domestic violence between herself and her mother. She also acknowledged a positive drug test and told the court she was going to check herself into rehab but never did. She also told the court she lied when she admitted to having a problem with methamphetamine. She said she made that admission "with an ulterior motive," namely that she would go to a rehabilitation facility, be discharged immediately, and, by that time, T.M. would be at home with her boyfriend. She further said her positive drug test results were due to her medications she was taking to treat her mental health issues.
At the final hearing, C.M. testified to domestic violence by S.M. toward her boyfriend, noting one occasion where he saw S.M. "whopping" on the boyfriend. C.M. also testified to an occasion on which S.M. punched him in the jaw while she was holding T.M.
Despite evidence to the contrary, the mother testified she had used methamphetamine only once, when she was seventeen.
A central issue in this case was S.M.'s credibility. S.M. admitted to lying to the court regarding her use of methamphetamine and her treatment in a drug rehabilitation facility. Furthermore, she readily admitted she told these lies with an "ulterior motive." The record is replete with evidence of S.M.'s untruthfulness, repeated excuses for her behavior, and irrational explanations against the Department's evidence.
A final hearing was held in February 2020. During that hearing C.M., the grandmother, and the caseworker testified. S.M. appeared for the hearing but requested additional time to "mentally prepare." The court denied her request and when she was called as a witness, she did not appear and thus, did not testify. During the hearing, the caseworker agreed the Department was not seeking termination of S.M.'s parental rights. C.M. did testify that, while termination was not his initial objective, he had come to believe it was in T.M.'s best interest. He said, "It's not what I initially wanted, but I feel like she's made this choice. She's had a year and a half and she's done nothing to make her situation better. I have no faith in her."
While the Department did file pleadings seeking termination of S.M.'s parental rights, it concedes on appeal that it abandoned its termination pleadings when it made known at trial its intent to not seek termination.
At the conclusion of that hearing, the court requested the presence of S.M. the next day. S.M. appeared as requested and the trial court informed her she would be ordered to submit to drug testing so that the court could determine whether she was using methamphetamine. The court then excused S.M. and told her she would not be permitted to visit T.M. until the results of the test were returned. Although S.M. never rested or closed her case, no further proceedings were had before the court issued its final order terminating S.M.'s parental rights under several predicate grounds contained in the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (D), (E), (O) (West 2019). The trial court also found clear and convincing evidence to support a finding that termination of S.M.'s parental rights was in T.M.'s best interest. Id. at § 161.001(b)(2). Finally, the trial court named C.M. the permanent managing conservator of T.M.
S.M. raises two appellate issues. In her first issue, she contends the trial court did not have jurisdiction to terminate her parental rights because the Department abandoned its request to terminate her parental rights through the caseworker's testimony at the final hearing. The Department concedes as much and, in its prayer, acknowledges that this case should be reversed and remanded for further proceedings. Accordingly, we will address S.M.'s first issue and pretermit her second issue. See TEX. R. APP. P. 47.1.
ISSUE ONE—JURISDICTION
Whether a party has abandoned a pleading is a question of law that we review de novo. In re J.M., 352 S.W.3d 824, 826 (Tex. App.—San Antonio 2011, no pet.) (citing In re C.C.J., 244 S.W.3d 911, 921 (Tex. App.—Dallas 2008, no pet.); In re Shaw, 966 S.W.2d 174, 177 (Tex. App.—El Paso 1998, no pet.)). A stipulation may be sufficient to demonstrate abandonment of a pleading and formal amendment is not required. In re J.M., 352 S.W.3d at 826 (citing In re C.C.J., 244 S.W.3d at 921; In re Shaw, 966 S.W.2d at 177). "A stipulation is an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys respecting some matter incident thereto." In re J.M., 352 S.W.3d at 826-27 (citing Laredo Med. Group v. Jaimes, 227 S.W.3d 170, 174 (Tex. App.—San Antonio 2007, pet. denied) (citing Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998)). When construing a stipulation, we "must determine the parties' intent from the language of the entire agreement and the surrounding circumstances, including the state of the pleadings, the allegations made therein, and the attitudes of the parties toward the issue." In re J.M., 352 S.W.3d at 827 (citation omitted). We will not give a stipulation greater effect than the parties intended. Id. (citation omitted). If the trial court enters an order not supported by the pleadings, it commits reversible error. See In re J.M., S.W.3d at 828; In re I.L., 580 S.W.3d 227, 245 (Tex. App.—San Antonio 2019, pet. dism'd).
Here, the Department's original petition sought to terminate the parental rights of both parents. No amended petition appears in the record. During the hearing, the Department caseworker expressly stated the Department was not seeking the termination of S.M.'s parental rights, but rather sought to name her a possessory conservator while naming the father as the child's managing conservator. She stated the Department preferred not to terminate the rights of one parent when it was seeking to name the other parent as permanent managing conservator because the Department would "like to see child support and medical support paid to the parent who has the child, as well as to have some contact if that can be done in a safe manner." The caseworker also testified she did not believe it was in T.M.'s best interest that S.M.'s parental rights be terminated. She then explained, saying, "[T.M.] needs to see his mom. I know he loves his mother, but I do believe there needs to be some stipulations where there is some consistency so [T.M.] is not continually affected by her not showing up." The case worker further agreed it would be in T.M.'s best interest to have supervised visits with his mother.
During the hearing, the caseworker stated she believed the Department had amended its pleadings to reflect that it was no longer seeking termination of S.M.'s parental rights.
During redirect-examination, the attorney representing the Department and the caseworker engaged in the following exchange:
Q. You have permitted or requested that [S.M.] be listed as a possessory conservator; is that correct?In addition, the caseworker answered affirmatively when asked, "And the Department is currently asking for [C.M.] to be the permanent managing conservator of [T.M.], is that correct?"
A. Correct.
Q. You initially pled in this case that [S.M.'s] parental rights be terminated; is that accurate? At one point were you seeking termination of parental rights for [S.M.]?
A. Initially, yes.
Q. When did that change?
A. I believe we tried to reach an agreement about a month ago.
As previously noted, the Department concedes it abandoned its pleadings seeking termination by stipulation. Based on our review of the trial proceedings, we agree. Accordingly, we find the Department abandoned its request to terminate S.M.'s parental rights. See In re Shaw, 966 S.W.2d at 176 (finding the Department abandoned its termination request by statements made that the Department was not seeking termination). See also In re I.L., 580 S.W.3d at 245 (finding the Department abandoned its request to terminate parental rights when it initially requested termination, but expressly did not seek termination at trial and further finding a court cannot grant unrequested relief). Compare In re M.F.L., No. 10-16-00256-CV, 2016 Tex. App. LEXIS 13736, at *5 (Tex. App.—Waco Dec. 28, 2016, no pet.) (mem. op.) (concluding the Department did not abandon its pleading because there was "no unequivocal statement by the Department that it is not seeking termination for either parent"). Based on this record, we further find the Department expressly abandoned its termination pleadings. Consequently, there were no pleadings before the court seeking termination of S.M.'s parental rights. As a result, the trial court reversibly erred in terminating the parental rights of S.M. In re J.M., 352 S.W.3d 826-27.
We further note that C.M. did not file any pleadings requesting termination of S.M.'s parental rights.
CONCLUSION
Having sustained S.M.'s first issue, we reverse the judgment of the trial court and remand the matter for proceedings consistent with this opinion.
Patrick A. Pirtle
Justice