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In re A.M.T.

Court of Appeals of Texas, Fourth District, San Antonio

December 18, 2019

IN THE INTEREST OF A.M.T., a Child

          From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-01238 Honorable Richard Garcia, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          LUZ ELENA D. CHAPA, JUSTICE.

         A.M.T.'s parents, Danielle and Deron, appeal a final order appointing A.M.T.'s paternal grandmother, A.B., as A.M.T.'s sole permanent managing conservator and appointing them possessory conservators.[1] We affirm the trial court's order.

         Procedural Background

         In June 2018, the Texas Department of Family and Protective Services filed an original petition for A.M.T.'s protection and conservatorship, and for termination of Danielle's and Deron's parental rights. A.M.T. was removed and placed with his paternal grandmother, A.B. A.B. did not file a petition in intervention and was not otherwise made a party to the proceedings.

         The case proceeded to a bench trial. At trial, the Department no longer sought the termination of Danielle's and Deron's parental rights. Instead, the Department asked the trial court to appoint A.B. as A.M.T.'s sole permanent managing conservator and Danielle and Deron as possessory conservators. Several witnesses-including two caseworkers, A.B., Deron's sister, Danielle, and Deron-testified. After taking the case under advisement, the trial court signed a final order granting the relief the Department requested at trial. Danielle and Deron appeal.

         Issues on Appeal

         In her appellant's brief, Danielle raises two issues. First, she argues the trial court erred by appointing a nonparty as A.M.T.'s sole permanent managing conservator. Second, she argues the trial court abused its discretion by appointing her a possessory conservator. In his appellant's brief, Deron similarly argues the trial court abused its discretion in finding that appointing A.B. as sole permanent managing conservator is in A.M.T.'s best interest.

         A. Appointment of Nonparty as Sole Permanent Managing Conservator

         This court recently held that when a trial court does not order termination of a parent-child relationship, the "trial court [has] authority to appoint a nonparty managing conservator." In re M.I.A., No. 04-19-00227-CV, 2019 WL 5030241, at *10 (Tex. App.-San Antonio Oct. 9, 2019, no pet. h.). Furthermore, trial by consent "can cure lack of pleading." Bos v. Smith, 556 S.W.3d 293, 306 (Tex. 2018). A.B. testified, without objection, that she was seeking managing conservatorship. The Department also requested this relief without objection. Because the parties litigated the appointment of A.B. as managing conservator without objection, the issue was tried by consent. See id. We overrule this issue.

         B. Conservatorship

         Danielle and Deron also argue the trial court abused its discretion in appointing them as joint possessory conservators.

         1. Applicable Law & ...


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