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In re R.W.K.

Court of Appeals of Texas, Tenth District

May 10, 2017

IN THE INTEREST OF R.W.K., A CHILD IN THE INTEREST OF L.E.M.K., A CHILD

         From the County Court at Law Ellis County, Texas Trial Court Nos. 91784CCL, 93756CCL

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          AL SCOGGINS Justice

         In one issue in appellate cause numbers 10-16-00393-CV and 10-16-00396-CV, appellant, V.L., contends that the trial court abused its discretion by ordering her to comply with the requirements of a Family Service Plan after a trial on all the issues. Specifically, V.L. argues that the trial court is without authority to grant relief on unpleaded theories, on a theory that was not tried by consent, and when there is no express statutory authority to do so. We affirm.

         I. Analysis

         In her sole issue in both appellate cause numbers, V.L. asserts that the trial court erred by ordering her to comply with the requirements of a Family Service Plan after a trial on all issues. We disagree.

         In this case, the parties ask us to interpret various provisions of the Texas Family Code involving a situation where the trial court declined to terminate the parental rights of V.L. because it was not in the best interest of the children. "A question of statutory construction is a legal one which we review de novo, 'ascertaining and giving effect to the Legislature's intent as expressed by the plain and common meaning of the statute's words.'" MCI Sales & Serv. v. Hinton, 329 S.W.3d 475 (Tex. 2010) (quoting F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007)); see Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008) (citing Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000)). In doing so, our objective is to give effect to the Legislature's intent, which requires us to first look to the statute's plain language. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015); Leland, 257 S.W.3d at 206. If that language is unambiguous, we interpret the statute according to its plain meaning. Lippincott, 462 S.W.3d at 509. We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted. Lippincott, 462 S.W.3d at 509; In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).

         Section 153.002 of the Family Code provides that: "The best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002 (West 2014). Moreover, section 153.005(b) states that: "A managing conservator must be a parent, a competent adult, the Department of Family and Protective Services, or a licensed child-placing agency." Id. § 153.005(b) (West Supp. 2016). In the instant case, the trial court concluded that the Department had established the predicate grounds for terminating V.L.'s parental rights; however, according to the trial court, termination of V.L.'s parental rights was not in the best interest of her children, R.W.K. and L.E.M.K. As such, under section 153.005(b), the Department was named managing conservator of the children. See id. V.L. was denied visitation rights with the children "due to [her] present conditions and the safety concerns concerning [V.L.], " unless the Department determines supervised visitation is in the children's best interest.

         In any event, after the trial court signed its final order on November 1, 2016, the Department filed a motion for clarification, seeking a determination as to whether V.L. was required "to continue to make efforts to remedy the safety concerns in [her] home during the period of PMC to the Department without termination, such as comply with an ongoing Family Service Plan." Still within its plenary power, the trial court signed an order of clarification on November 18, 2016, requiring V.L. "to comply with the Department's original, or any amended, service plan during the period that the Texas Department of Family and Protective Services is the Permanent Managing Conservator of the child." See Tex. R. Civ. P. 329b(d) ("The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed.").

         Nevertheless, V.L. argues that the trial court lacked authority to require her to comply with the requirements of the Family Service Plan because the trial court cannot grant relief on unpleaded theories, on a theory that was not tried by consent, or when there is no express statutory authority to do so. Contrary to V.L.'s assertions, section 161.205 of the Family Code provides the following: "If the court does not order termination of the parent-child relationship, the court shall: (1) deny the petition; or (2) render any order in the best interest of the child." Tex. Fam. Code Ann. § 161.205 (West 2014) (emphasis added). Furthermore, section 263.404(a) of the Family Code states that:

The court may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent of the child if the court finds that:
(1) appointment of a parent 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; and
(2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator.

Id. § 263.404(a) (West Supp. 2016). In making this decision, the court must consider several factors, including "the needs and desires of the child." Id ...


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