Court of Appeals of Texas, Second District, Fort Worth
IN THE INTEREST OF J.N. AND M.N., CHILDREN
THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
MEMORANDUM OPINION 
LIVINGSTON CHIEF JUSTICE
mother of J.N. and M.N. and the father of J.N. appeal from
the trial court's judgment terminating their parental
rights. We affirm.
March 2015, Mother voluntarily placed J.N. and M.N. with
their maternal grandmother (Grandmother) after Mother was
arrested for assaulting her girlfriend and threatening her
with a knife while the children were at home with her. Mother
was also under the influence of drugs and had a history of
long-term drug use. While the children were in the voluntary
placement, the Department of Family and Protective Services
worked with Mother to provide family-based safety services so
that the children could be returned to her safely. Mother
either did not provide the Department with Father's
correct first name or there was a misunderstanding about his
first name; regardless, the Department did not learn
Father's correct first name or address until over a year
later. A little over six months after the voluntary
placement, Mother failed a drug test. As a result, in October
2015, the Department filed a petition seeking to be named
temporary managing conservator of the children and to remove
the children from Mother's conservatorship but not from
their placement with Grandmother. At the time, Mother's
sister and her four children were also living with
Grandmother, with the Department's knowledge and
acquiescence. The original petition conditionally pled that
if family reunification could not be achieved, the Department
sought (1) permanent placement of the children with a
relative "or other suitable person" or (2) if a
permanent placement could not be achieved, to be named the
children's permanent managing conservator, either after
termination of the parents' rights or with the
an adversary hearing, the trial court named the Department
temporary managing conservator of the children. The
Department prepared, and Mother began to try to follow, a
service plan for the return of the children. Mother only
sporadically worked her services. The record shows that the
Department made several attempts to locate and serve Father
over the next nine months, but those attempts were initially
unsuccessful because the Department did not have his correct
name or address. During one of Mother's visits with the
children in July 2016, a CASA volunteer and Department
caseworker overheard Mother calling Father so that Father
could wish J.N. a happy birthday, which is when the
Department learned Father's actual first name. The
Department was then able to serve Father on September 26,
2016. Father sent a letter to the trial court indicating that
he wanted genetic testing and stating that if he was
J.N.'s biological father he wanted to take care of the
child. The trial court appointed counsel for Father, ordered
paternity testing, and ordered Father to work services.
Because Father had been served shortly before the one-year
dismissal deadline, the trial court extended the trial date
for six months, to begin on May 1, 2017. See Tex.
Fam. Code Ann. § 263.401 (West Supp. 2016).
October 2016, a kinship caregiver specialist with the
Department visited Grandmother's three-bedroom, one-bath
house and found Mother's father, who has a criminal
history, hiding in Grandmother's bedroom. The specialist
also discovered that Mother's uncle and his long-time
girlfriend, both of whom had been investigated by the
Department, would sometimes be there. By the time of trial
during the first week of May 2017, they were living with
Grandmother, along with another uncle of Mother's with a
criminal history who had parked his trailer in
Grandmother's yard. On October 31, 2016, the Department
removed the children from placement with Grandmother and
placed the children in the first of a series of foster homes.
the trial court ordered genetic testing of Father and J.N.,
Father failed to attend his first three testing appointments.
When a test was completed in January 2017, UPS lost the
sample. Father's paternity of J.N. was finally confirmed
one month before trial. Father never worked any of the
ordered services, nor did he allow the Department to visit
his home or provide the Department with any relatives'
first day of trial, before voir dire, Mother moved to exclude
"any evidence, whether via testimony or document, in
support of termination of [her] rights" because the
Department had failed to supplement its response to her
request for disclosures to indicate that it was seeking
adoption of the children by a nonrelative. According to
Mother, the Department had consistently responded to
discovery stating only that the primary goal for the children
was adoption by a relative with family reunification as a
secondary goal. Father joined Mother's motion. The trial
judge bench filed a trial brief in support of the motion,
heard argument, and overruled the motion before trial began.
But the trial court gave appellant a running objection to any
• Mother's parental rights to both children should
be terminated on (D), (E), and (O) grounds,
• Father's parental rights to J.N. should be
terminated on (E), (N), and (O) grounds, and
• M.N.'s alleged father's rights should be
terminated on the (A) ground.
See id. § 161.001(b)(1)(A), (D)-(E), (N), (O)
(West Supp. 2016). Mother and Father both appealed, but
M.N.'s alleged father did not.
issues, Mother contends (1) that the trial court erred by
determining that rule 193.6(a) did not bar admission of
evidence pertaining to adoption by a nonrelative in the event
of termination and (2) that because the Department failed to
comply with various family code provisions related to notice
and placement of the children, the trial court should not
have permitted the Department to "move forward"
with the trial.
Adoption Evidence Was Admissible
discovery, a party may request disclosure of "the legal
theories and, in general, the factual bases of the responding
party's claims or defenses." Tex.R.Civ.P. 194.2(c).
A party who fails to "make, amend, or supplement" a
discovery response "may not introduce in evidence . . .
information not timely disclosed unless the court finds (1)
there was good cause for the failure to timely disclose, or
(2) the failure to timely disclose will not unfairly surprise
or unfairly prejudice the other party." Tex.R.Civ.P.
193.6(a); Williams v. Cty. of Dallas, 194 S.W.3d 29,
32 (Tex. App.--Dallas 2006, pet. denied) (op. on reh'g).
Unless the trial court finds good cause or a lack of unfair
surprise or prejudice, the sanction for failure to comply
with this rule is the "automatic and mandatory"
exclusion from trial of the omitted evidence. Gibbs v.
Bureaus Inv. Grp. Portfolio No. 14, LLC, 441 S.W.3d 764,
766 (Tex. App.--El Paso 2014, no pet.); Lopez v. La
Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex.
App.--Dallas 2006, no pet.); VingCard A.S. v. Merrimac
Hospitality Sys., Inc., 59 S.W.3d 847, 856 (Tex.
App.--Fort Worth 2001, pet. denied) (op. on reh'g);
see In re E.A.G., 373 S.W.3d 129, 145 (Tex.
App.--San Antonio 2012, pets. denied).
when answering a request for disclosure, "the responding
party need not marshal all evidence that may be offered at
trial." Tex.R.Civ.P. 194.2(c). Rule 194 is intended to
require disclosure only of a party's "basic
assertions, " not necessarily all aspects of the
party's claims or defenses. Tex.R.Civ.P. 194 cmt. 2;
Holland v. Friedman & Feiger, No.
05-12-01714-CV, 2014 WL 6778394, at *6 (Tex. App.--Dallas
Dec. 2, 2014, pet. denied) (mem. op.). A "complete
response" is one that is based on all information
reasonably available to the responding party or its attorney
at the time the response is made. Tex.R.Civ.P. 193.1;
Leas v. Comm'n for Lawyer Discipline, No.
13-10-00441-CV, 2012 WL 3223688, at *6 (Tex. App.--Corpus
Christi Aug. 9, 2012, pet. dism'd w.o.j.) (mem. op.).
Additionally, "properly pled claims for affirmative
relief, as opposed to withheld evidence, are not abandoned or
waived by a party's failure to expressly identify those
claims in a response to a request for disclosure."
Concept Gen. Contracting, Inc. v. Asbestos Maint.
Servs., 346 S.W.3d 172, 180 (Tex. App.--Amarillo 2011,
trial brief, Mother contended that she was only prepared for
a trial seeking adoption by a relative, not a trial seeking
termination of her parental rights. But the Department's
goal of adoption of these children by a relative presumes
termination. See Tex. Fam. Code Ann. §
162.001(b) (West Supp. 2016). Mother further argued in the
trial court that the Department was barred from offering
evidence related to whether the children could or should be
adopted by a nonrelative because it had not supplemented its
discovery to explain its legal theories and factual bases
supporting that type of relief.
March 31, 2017 response to Mother's request for
disclosure, the Department noted,
As stated in the Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship . . ., the safety and welfare
of the child is sufficiently at risk to justify temporary or
permanent restriction, and, if necessary, termination, on the
grounds stated in the petition, of parental rights unless the