Background
A.G. was incarcerated when his daughter, “Annie,” was born in May 2020 with THC and cocaine in her system. The Texas Department of Family and Protective Services initiated a suit affecting the parent-child relationship and later became involved again following an alleged domestic assault in the maternal grandmother’s home. A.G. was served while incarcerated in June 2024, and paternity testing eventually established that he was Annie’s biological father.
Following a four-day bench trial, the district court terminated A.G.’s parental rights under Texas Family Code subsections 161.001(b)(1)(N), for constructive abandonment, and (P), concerning an inability to care for a child because of a criminal conviction and incarceration. On appeal, A.G. challenged the legal sufficiency of the evidence under subsection (P) and argued that termination under subsection (N) was fundamental error because the Department did not expressly request that ground until closing argument.
The Court’s Holding
The Third Court of Appeals affirmed. It held that the constructive-abandonment ground was tried by implied consent even though the Department had not expressly pleaded it as a current termination ground. Evidence bearing directly on constructive abandonment—including A.G.’s lack of in-person contact with Annie, limited telephone contact, failure to visit while temporarily out of jail, failure to document completion of services, and inability to provide stability—was developed without objection.
The court also emphasized that the Department’s pleadings had notified A.G. that it might seek termination for constructive abandonment if he failed to comply with a visitation plan. A.G. did not object when the Department invoked subsection (N) during closing argument, and his counsel subsequently acknowledged that the Department had met its burden on at least two asserted grounds. Because one valid predicate ground was sufficient to support termination and A.G. did not challenge the best-interest finding, the court did not address his evidentiary challenge to subsection (P).
Key Takeaways
- An unpleaded statutory ground for terminating parental rights may be treated as pleaded when the parties try the issue by express or implied consent.
- Implied consent was supported by the development, without objection, of evidence directly addressing the elements of constructive abandonment and by the father’s failure to object before submission.
- Once the appellate court upheld subsection (N) and the best-interest finding remained unchallenged, it did not need to review the separate subsection (P) ground.
Why It Matters
The decision underscores that Texas trial-by-consent principles apply in parental-rights-termination proceedings. A parent who believes the Department is pursuing an unpleaded termination ground must timely object when evidence or argument makes that ground part of the case.
It also illustrates the one-ground rule on appeal: affirmance of a single predicate termination ground, together with an unchallenged or sustained best-interest finding, is enough to uphold the termination judgment.