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In re J.N.

Court of Appeals of Texas, Second District, Fort Worth

September 7, 2017

IN THE INTEREST OF J.N. AND M.N., CHILDREN

         FROM THE 442ND DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-08692-442

          PANEL LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

          MEMORANDUM OPINION [1]

          TERRIE LIVINGSTON CHIEF JUSTICE

         The 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.

         In 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 Department's consent.

         After 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).

         In 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.

         Although 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' names.

         On the 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 such evidence.

         A jury found that

• 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.

         Mother's Issues

         In two 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.

         Nonrelative Adoption Evidence Was Admissible

         During 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).

         But 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, pet. denied).

         In her 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.[2] 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.

         In its 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 ...

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