Opinion
NUMBER 13-14-00559-CV
03-10-2016
IN THE INTEREST OF J.W., A CHILD
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Chief Justice Valdez
Appellants, the biological parents of J.W., T.W. and G.G., appeal from the trial court's granting permanent managing conservatorship of J.W. to a non-parent, J.W.'s aunt, A.F. By two issues, appellants contend that the trial court abused its discretion in rendering judgment against them without providing notice to them of a trial and that their trial counsel rendered ineffective assistance for failing to appear at the purported trial. We reverse and remand.
I. BACKGROUND
On September 12, 2013, appellee, the Texas Department of Family and Protective Services (the "Department"), filed a petition for protection of a child for conservatorship and for termination of parental rights in a suit affecting the parent-child relationship. The record reflects that J.W. suffers from a condition that appears to be an autoimmune disorder, but apparently doctors are still mystified by her ailments. Nonetheless, it is undisputed that J.W. requires extensive medical care, which includes the use of medical equipment that requires training. In an affidavit supporting its petition, the Department alleged that J.W. had been diagnosed with "severe starvation" with a life threatening medical condition due to the lack of vital nutrition. The Department further alleged that J.W. faced a "significant risk of death" and that T.W. had tested positive for hydrocodone and marihuana. On September 12, 2013, the trial court appointed the Department as the temporary managing conservator of J.W. and her siblings.
At a June 9, 2014 setting, with all parties present, the Department was dismissed as the temporary managing conservator of J.W.'s siblings. On August 1, 2014, a hearing was set for August 14, 2014. Appellants and their trial counsel did not appear at the August 14, 2014 hearing. After hearing evidence, the trial court appointed A.F. as permanent managing conservator of J.W. and found that that appointment of a parent or both parents as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. This appeal followed.
II. DISCUSSION
Appellants request that we reverse the judgment and remand to the trial court for further proceedings for two reasons: (1) appellants claim that neither they nor their trial counsel received notice of the August 14, 2014 hearing; and (2) appellants claim in the alternative that their trial counsel rendered ineffective assistance of counsel for failing to appear at the August 14, 2014 hearing. The Department also requests that we reverse the trial court's judgment and remand for further proceedings because appellants' trial counsel rendered ineffective assistance of counsel. Neither party has requested that this judgment be affirmed. We cannot grant relief not requested. See Stevens v. Nat'l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000) (assuming error and concluding that the Texas Supreme Court could not remand for new trial because appellant only requested for the court to render judgment in its prayer); Molina v. Moore, 33 S.W.3d 323, 327 (Tex. App.—Amarillo 2000, no pet.) ("Should we determine, in considering appellant's issue on this appeal, that the record contains error warranting reversal and that remand for a new trial would be the appropriate remedy, we are not authorized to remand for a new trial because appellant has requested this court only to reverse and render judgment in her favor."); W. End API, Ltd. v. Rothpletz, 732 S.W.2d 371, 374 (Tex. App.—Dallas 1987, writ ref'd n.r.e.) ("What can be better established than the proposition that relief that has not been prayed cannot be granted?"); see also Ballard v. First Nat. Bank of Trenton, No. 06-09-00111-CV, 2010 WL 2574036, at *1 (Tex. App.—Texarkana June 29, 2010, no pet.) (mem. op.); Jay Petroleum, L.L.C. v. EOG Res., Inc., No. 01-08-00541-CV, 2009 WL 1270251, at *3 (Tex. App.—Houston [1st Dist.] May 7, 2009, pet. denied) (mem. op.); Lentino v. Cullen Center Bank & Trust, No. 14-00-00692-CV, 2002 WL 220421, at *11 (Tex. App.—Houston [14th Dist.] Feb. 14, 2002, pet. denied) (mem. op.) ("We cannot grant relief appellants do not request.").
Therefore, due to the unique disposition of this case, in which both parties to this appeal request the same relief, without addressing the merits, we reverse the trial court's judgment and remand this cause to the trial court for a new trial regarding appointment of a permanent managing conservator. See Ervin v. Wichita County Family Court Servs., 533 S.W.2d 947, 951 (Tex. Civ. App.—Fort Worth 1976, no writ.) ("Many cases hold that a reversal is proper where the appellee confesses error.").
III. CONCLUSION
We reverse the trial court's judgment and remand for proceedings consistent with this opinion.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Delivered and filed this the 10th day of March, 2016.