Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-26-00428-CV A.G., Appellant v. Texas Department of Family and Protective Services, Appellee FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-20-003098, THE HONORABLE AURORA MARTINEZ-JONES, JUDGE PRESIDING MEMORANDUM OPINION A.G. (Father) appeals from the trial court’s final decree terminating his parental rights to “Annie,” who was five years old at the time of the bench trial. 1 We affirm the decree. BACKGROUND Annie was born in May 2020 with THC and cocaine in her system while Father was incarcerated. Soon after, the Texas Department of Family and Protective Services filed a suit affecting the parent–child relationship (SAPCR), and C.T. (Mother) was ordered to complete services in “drug court.” 2 Father was ordered to complete services also, including to submit to 1We use pseudonyms for the children involved in this suit to protect their privacy. See Tex. Fam. Code § 109.002(d). 2 The trial court’s Order for Required Participation signed shortly after the Department filed its SAPCR ordered Mother to, among other things, “participate in the Travis County Drug random drug screenings, to complete a psychiatric evaluation and follow all recommendations, to complete individual therapy and follow all recommendations, and to complete a protective- parenting class and follow all recommendations. As the SAPCR progressed, the Department filed periodic status reports with the trial court, and the trial court signed multiple orders for continued participation. In several of the status reports, the Department represented that Father was incarcerated. In a June 2022 order, Mother was “unsuccessfully discharged” from drug court; Mother testified that she was pregnant at the time with another child, “Alexa,” from a different father, S.O. 3 In an August 2022 temporary order, the trial court found that Mother and the Department had signed a mediated settlement agreement and rendered its order in accordance therewith, appointing Mother joint temporary managing conservator of Annie along with Annie’s maternal grandparents. The order recited that Father, who had been referred to throughout the SAPCR as Annie’s “alleged father,” had been “duly noticed” but had “not yet been properly served and did not appear.” In the order, the court found that the appointment of Father as a temporary managing or possessory conservator of Annie would not be in her best interest and would significantly impair her physical health or emotional development, and it ordered that he “shall have no conservatorship designation or possession or access rights pending adjudication of paternity.” Court and Parenting in Recovery program.” At trial, Mother and the Department referred to the requirements under this order, without specifics, as “drug court,” and we employ the same term. 3 Alexa is not a subject of this suit, and S.O.’s parental rights to her are not at issue in this suit. 2 The Department became involved with the family again in April 2023 after law enforcement responded to a physical disturbance at the home of Annie’s maternal grandmother. S.O. was alleged to have assaulted the maternal grandmother while Annie, Alexa, and Mother were present. The Department filed a petition for intervention in the SAPCR and for an order requiring Mother and maternal grandmother to participate in Department services and appointing a “safe and appropriate individual as temporary managing conservator of” Annie. The Department alleged in its petition that Annie “has no presumed father” and that Father “has a right to be given an opportunity to file a statement of paternity regarding” Annie and “to petition the Court for voluntary acknowledgement of paternity.” The trial court, “on its own initiative,” conditionally appointed an attorney for Father because, “based on the most recent information available,” he “appears to be eligible for an attorney appointed to represent” him “pursuant to Texas Family Code § 107.013(a)[(1)].” Several unexecuted citations for service on Father appear in the record, but eventually, in June 2024, he was served while incarcerated in the Texas Department of Criminal Justice (TDCJ) in Beeville. In July 2024, the Department filed an original petition seeking termination of Mother’s and Father’s parental rights to Annie and/or managing conservatorship. The Department was appointed temporary managing conservator of Annie, and Father was ordered to submit to paternity testing. The order included provisions for Father to complete the testing while in a correctional facility if he was incarcerated at the time he was required to submit to testing. Father completed the testing, and in February 2026, the court signed an order establishing that Father is the biological father of Annie and that a parent–child relationship exists between them. 3 Trial to the court occurred over four dates between October 25, 2025, and January 13, 2026. Testifying witnesses included Mother; a CPS caseworker; a CPS investigator; a CPS drug-court caseworker; a CPS supervisor; a CASA volunteer; two APD police officers; a deputy with the Travis County Sheriff’s Office; Annie and Alexa’s step-grandmother, with whom they had been placed for different periods since 2020; and a therapist who had worked with Mother, Annie, and Alexa. Father, who was incarcerated at the time of trial, did not appear at trial, but his court-appointed attorney appeared and represented him. 4 In its final decree, signed April 12, 2026, the trial court terminated Father’s parental rights to Annie but—despite finding that the two predicate endangerment grounds had been proven with respect to Mother, see Tex. Fam. Code § 161.001(b)(D), (E)—did not terminate Mother’s parental rights because it found that termination of her rights would not be in Annie’s best interest, see id. § 161.001(b)(2). Father perfected this appeal. DISCUSSION In its original and live (second amended) termination petition, the Department alleged that a parent–child relationship does not exist between Father and Annie but that, if one were to be established, termination of Father’s parental rights would be in Annie’s best interest and that the predicate grounds in subsections (D) (child endangerment through conditions or surroundings) and (E) (child endangerment through conduct) had been met. See Tex. Fam. Code § 161.001(b)(1)(D), (E). The Department additionally represented in its petition that it “will be establishing a visitation plan between” Father and Annie and that Father “is hereby notified, should he not comply with the visitation plan, that—after the requisite time period has elapsed— 4 The record does not indicate why Father did not appear or whether a bench warrant had been issued to allow him to appear despite being incarcerated. 4 the Department will be seeking to terminate his parental rights for his constructive abandonment” of Annie. See id. § 161.001(b)(1)(N). In its opening statement, the Department additionally asked for termination based on subsection (P) (two-year inability to care for child due to criminal conviction and incarceration), and in its closing argument the Department expressly requested termination based on subsection (N) and clarified that it was no longer seeking termination on (D) and (E) grounds. In its termination decree, the trial court found by clear and convincing evidence that termination of Father’s parental rights was in Annie’s best interest and that the two grounds the Department had not dropped—(N) and (P)—were proven. See id. § 161.001(b)(1)(N), (P), (b)(2). In two issues, Father argues that (1) the evidence was legally insufficient to support termination on the (P) ground and (2) it was fundamental error for the trial court to terminate on the (N) ground because the Department did not expressly plead for termination on that ground until after the close of evidence and all parties had rested. We begin with Father’s second issue, as our determination of that issue in the Department’s favor dispenses with the necessity of addressing his first. See In re N.G., 577 S.W.3d 230, 231 (Tex. 2019) (per curiam) (to affirm termination judgment on appeal, appellate court need uphold only one termination ground, in addition to upholding challenged best-interest finding, even if trial court based termination on more than one ground); see also Tex. R. App. P. 47.1 (appellate court’s opinion shall be “as brief as practicable” but “address[] every issue raised and necessary to final disposition of the appeal”). Father concedes that he did not preserve error as to the Department’s failure to expressly plead termination on the (N) ground, which ordinarily would preclude us from addressing the issue. See Tex. R. App. P. 33.1(a)(1)(A) (error-preservation rule). However, he 5 argues that the fundamental-error doctrine provides an exception to the general error-preservation rule, see In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003), and that his right to due process—specifically, his right to notice and an opportunity to be heard on the allegations brought against him—was violated by the Department’s failure to expressly plead the (N) ground and its adding it only after the close of evidence. The Department correctly responds that the supreme court has declined to extend the fundamental-error doctrine to parental-rights-termination cases. See id. The supreme court stated, “we have used the term ‘fundamental error’ to describe situations in which an appellate court may review error that was neither raised in the trial court nor assigned on appeal.” Id. at 350. However, “[i]n light of our strong policy considerations favoring preservation, we have called fundamental error ‘a discredited doctrine.’” Id. (citation omitted). Noting that the doctrine is typically applied in criminal cases and has been extended to juvenile-delinquency proceedings, which are “quasi-criminal,” the “rationale” behind the doctrine “does not support applying the criminal fundamental-error doctrine to parental rights termination cases.” Id. at 350–51 (declining to extend doctrine to unpreserved jury-charge error in termination case). Nonetheless, Father’s complaint that his right to notice and an opportunity to be heard on the allegations brought against him potentially implicates the trial court’s jurisdiction to terminate his parental rights. See Tex. R. Civ. P. 301 (“The judgment of the court shall conform to the pleadings.”); In re A.K.S., No. 01-22-00228-CV, 2022 WL 6576902, at *4 (Tex. App.— Houston [1st Dist.] Oct. 11, 2022, pet. denied) (mem. op.) (“A party’s pleading invokes the trial court’s jurisdiction, and therefore, an order or judgment not supported by the pleadings is void.”). However, the Department argues in its brief that this Court should overrule Father’s issue about lack of notice because the (N) ground was tried by consent. See Tex. R. Civ. P. 67 6 (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); see also In re A.K.S., 2022 WL 6576902, at *4 (“Issues not raised in pleadings can be tried by express or implied consent.”). We agree with the Department. To determine whether an issue was tried by consent, we examine the record to determine if the issue was tried as opposed to evidence being presented on the issue. In re A.K.S., 2022 WL 6576902, at *4. An unpleaded issue may be deemed tried by consent when the evidence of the issue is developed without objection under circumstances indicating both parties understood the issue was being contested. Id. “[A] party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal.” Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991). The trial court has broad discretion in determining whether an unpleaded issue was tried by consent. In re A.K.S., 2022 WL 6576902, at *4 (concluding that issue of whether mother had failed to comply with service plan was developed without objection and that both parties understood issue was being contested). Appellate courts routinely apply the trial-by-consent rules to termination proceedings the same as to other proceedings. See, e.g., In re A.K.S., 2022 WL 6576902, at *4; In re C.J.G., No. 04-19-00237-CV, 2019 WL 5580253, at *5–6 (Tex. App.—San Antonio Oct. 30, 2019, no pet.) (mem. op.); In re B.L.H., No. 14-18- 00087-CV, 2018 WL 3385119, at *9 (Tex. App.—Houston [14th Dist.] July 12, 2018, no pet.) (mem. op.); In re K.S., 448 S.W.3d 521, 533–34 (Tex. App.—Tyler 2014, pet. denied). Constructive abandonment under the (N) ground occurs when (1) a child has been in the permanent or temporary managing conservatorship of the Department for not less than six months, (2) the Department has made reasonable efforts to return the child to the parent, (3) the 7 parent has not regularly visited or maintained significant contact with the child, and (4) the parent has shown an inability to provide the child with a safe and stable environment. See Tex. Fam. Code § 161.001(b)(1)(N). Father does not (a) challenge the evidentiary sufficiency of any of these four requirements, (b) dispute the Department’s contention that the issue was tried by consent, or (c) assert that the trial court abused its discretion in determining that the issue was tried by consent. He also did not object when, after the close of evidence and before the cause was submitted to the court for fact-finding, the Department stated that it was now seeking to terminate his rights on the (N) ground. Furthermore, Father was on notice by the Department’s pleadings that the Department would be seeking termination on the (N) ground should he fail to comply with his visitation plan. On this record, we cannot conclude that the trial court abused its discretion in impliedly determining that the issue was tried by consent. Most of the time spent and issues tried during the four-day trial did not pertain to Father but to Mother. Of the relatively small percentage of overall trial time spent on issues pertaining to Father, however, the majority was spent on issues directly relating to whether Father had constructively abandoned Annie. For instance, on the Department’s direct examination, and without objection, Mother testified that Father was incarcerated when Annie was born; that he has never seen her in person; that he has had no involvement in Annie’s five years of life except for “over-the-phone conversations once in a while”; and that he has been “mostly” incarcerated since Annie was born except for “a little bit” of time, during which he did not see Annie. Mother further testified that Father has not sent any child support for Annie and that he “rarely” talks to her on the phone—that he “doesn’t really talk to her at all, really.” Caseworker Patricia Torres testified that one of the Department’s courtesy workers “made contact with” and visited Father once while he was incarcerated in Bexar County 8 Jail but that “he refused to see her in jail” beyond that one time. During Torres’s time on the case, Father was out of jail for about a month or two but did not visit Annie. She testified that Father was required to complete the following services but did not provide the Department proof of completion for any of them: an OSAR evaluation, parenting classes, a psychological evaluation, therapy, and regular drug testing. Department conservatorship supervisor, Tenaya Oliveras, testified that Annie had never met Father and that her only communication with him had been over the phone. She testified that Father “is not currently in a position to offer her any sort of regular contact or stability,” as his projected release date from TDCJ is 2029. She testified that her reasonable efforts to reunite Father with Annie included attempting monthly to contact him at his then-current incarceration facility, sending him letters to whichever physical TDJC facility he was in as well as sending the letters to “the processing center in Dallas that scans and uploads the letters to tablets.” In the letters, Oliveras provided Father “updates on how [Annie] was doing” and asked him “what services, if any, he was engaged in, in his facility, and asked for any documentation of any services that he was engaged in.” However, Oliveras “did not get responses to the letters.” “Depending on what region [Father] was in,” Oliveras had “courtesy workers in that region assigned to go to the facilities to meet with [Father] in person.” In cross-examination by Father’s counsel, Oliveras confirmed that the Department generally keeps track of incarcerated parents, their whereabouts, and “when they’re potentially going to be released.” When asked whether she was aware that Father “is in the parole review process,” Oliveras answered that she was not. However, Oliveras testified that she was aware that Father’s “parole eligibility date is June 16 of this year,” and she agreed that “it’s possible” that if Father is released on parole and his rights are not terminated, he could “have more than 9 just phone calls” with Annie. Oliveras testified that the last monthly letter she sent Father—as required by the Department’s “usual policy” of monthly letters for incarcerated parents—was the month before trial started, and that since Father had been moved to the “Ferguson Unit” of TDCJ, which has “more strict” in-person visitation policies, the Department had not been able to conduct in-person visits with him via a courtesy worker. Much of this unobjected-to evidence relates directly to the requirements in subsection (N) that (a) the parent has failed to regularly visit or maintain significant contact with the child and (b) the parent has shown an inability to provide the child with a safe and stable environment. See Tex. Fam. Code § 161.001(b)(1)(N). 5 The record demonstrates that the parties developed the issue of whether Father had constructively abandoned Annie and that Father understood the issue was being tried. It also demonstrates that Father had notice that the Department might seek termination on the (N) ground. His failure to object to the Department’s expressly adding (N) as a ground in its closing argument and reiterating a second time during that argument that it was seeking termination on that ground supports the conclusion that Father understood the issue had indeed been tried, as does his counsel’s concession during her closing argument that she believed the Department had met its burden on “at least . . . two of the grounds 5 The documentary evidence establishes the fourth requirement in subsection (N)—that Annie had been in the Department’s temporary managing conservatorship for more than six months—and no party disputed that issue. Furthermore, the trial court made the express finding, separately required by subsection (f), that the Department had made reasonable efforts to return Annie to Father before commencement of the trial on the merits and that, despite those reasonable efforts, “a continuing danger remains in the home that prevents the return of the child to the parent.” See Tex. Fam. Code § 161.001(f). This subsection (f) finding necessarily meets the requirement in subsection (N) that the Department have “made reasonable efforts to return the child to the parent.” See id. § 161.001(b)(1)(N)(i); D.F. v. Texas Dep’t of Fam. & Protective Servs., 731 S.W.3d 726, 742 (Tex. App.—Austin 2026, pet. filed) (observing that phrase “reasonable efforts to return the child to the parent” recently added to subsection (f) “is not new to section 161.001, as it appears in subsection 161.001(b)(1)(N)”). 10 they’re seeking termination on”—which statement Father’s counsel made after the Department had already abandoned grounds (D) and (E). 6 See Roark, 813 S.W.2d at 495 (party who allows issue to be tried by consent and then fails to raise lack of pleading before case is submitted cannot raise pleading deficiency for first time on appeal); In re C.J.G., 2019 WL 5580253, at *5-6 (concluding that father’s failure to comply with service plan was tried by consent when plan was admitted into evidence, witnesses testified about his actions related thereto without objection, and father did not object to Department’s unpleaded request to terminate on that ground); In re K.S., 448 S.W.3d at 534 (concluding that mother tried by consent unpleaded issue of ICWA’s requirements when testimony on issue was elicited by both parties, mother failed to object to lack of pleading before submission of charge to jury, and mother included issue in her proposed charge). We conclude that the trial court did not abuse its discretion in determining that the parties impliedly tried the issue of constructive abandonment by consent and accordingly affirm the trial court’s finding of the predicate (N) ground supporting termination. See In re A.K.S., 2022 WL 6576902, at *4. We accordingly overrule Father’s second issue and need not address his first issue. See In re N.G., 577 S.W.3d at 231; Tex. R. App. P. 47.1. 6 The Department in its opening argument also asked the court to terminate Father’s rights on a third ground—his failure to register with the paternity registry, see Tex. Fam. Code § 161.002, “in case he’s not the father”—and noted in its closing argument that there were “pending paternity tests” that would have to be addressed, “if appropriate, at the end of trial.” Although no evidence at trial was elicited on Father’s alleged failure to register, the trial court’s February 4, 2026 order establishing a parent–child relationship between Father and Annie obviated this ground, and the final decree identified Father as Annie’s father. 11 CONCLUSION Having determined that the trial court did not err in finding that Father’s parental rights should be terminated on the (N) ground, we affirm the trial court’s final decree. __________________________________________ Karin Crump, Justice Before Justices Triana, Crump, and Ellis Affirmed Filed: September 29, 2026 12