IN THE INTEREST OF R.W.K., A CHILD IN THE INTEREST OF L.E.M.K., A CHILD
the County Court at Law Ellis County, Texas Trial Court Nos.
Chief Justice Gray, Justice Davis, and Justice Scoggins
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.
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.
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).
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
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.").
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
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
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."