in the Interest of E. M., C. M., N. M. and J. M. F., Children

NO. 12-09-00092-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN THE INTEREST OF E.M., § APPEAL FROM THE 321ST C.M., N.M. AND J.M.F., JR., § JUDICIAL DISTRICT COURT CHILDREN § SMITH COUNTY, TEXAS MEMORANDUM OPINION R.F. has filed a motion for rehearing, which is overruled. However, in light of the Texas Supreme Court’s holding in In re B.G.,[1] we withdraw our opinion and substitute the following opinion in its place. R.F.[2] appeals the termination of her parental rights. In five issues, R.F. challenges the order of termination. We affirm. Background R.F. is the mother of four children, E.M., born February 4, 1989;[3] C.M., born March 22, 1992; N.M., born March 22, 1992; and J.M.F., Jr., born January 6, 2005. J.M.[4] is the father of the three older children and J.M.F., Sr. is the father of J.M.F., Jr. This case began on May 19, 2005, and after numerous hearings, orders, and petitions, an agreed order was filed on August 16, 2007. The trial court ordered that the Department of Family and Protective Services (the “Department”) be appointed permanent managing conservator of C.M. and N.M. and that the children remain in their current foster care placement. The foster parents were appointed joint sole managing conservators of J.M.F., Jr., and the Department was dismissed as a party in reference to this child. R.F. and the fathers of the three children were appointed joint possessory conservators. However, on October 15, 2007, the foster parents and the Department filed a first amended joint petition to modify the parent-child relationship regarding all three children. Later, the Department and the foster parents filed a third amended joint petition to modify and to terminate the parent-child relationship between C.M., N.M., and J.M.F., Jr. and R.F., and between J.M.F., Jr. and J.M.F., Sr. After a jury trial, the trial court found by clear and convincing evidence that R.F. engaged in acts or conduct that satisfied one or more of the statutory grounds for termination and that termination was in the best interest of the children. On March 9, 2009, the trial court ordered that the parent-child relationship between C.M., N.M., and J.M.F., Jr. and R.F. be terminated. Likewise, the trial court found by clear and convincing evidence that J.M.F., Sr. engaged in acts or conduct that satisfied one or more of the statutory grounds for termination and that termination was in the best interest of the child. The trial court ordered that the parent-child relationship between J.M.F., Jr. and J.M.F., Sr. be terminated.[5] On March 16, 2009, R.F. filed a motion for appointment of appellate counsel and a notice of appeal. On March 27, 2009, the trial court filed an order appointing R.F.’s trial counsel to represent R.F. on appeal. Service In her first issue, R.F. contends that the trial court’s order of termination is void because J.M. is an indispensable party, has not been properly served, and therefore is not properly joined. The foster parents and the Department disagree, arguing that R.F. does not have standing to challenge J.M.’s service and, even if she does, that J.M. has been properly served. Generally, only the person who has not been properly served has standing to challenge the lack of due process. Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859, 864 (Tex. App.–Texarkana 2005, pet. denied). Here, R.F. argues that the service of citation for J.M. is “fatally flawed” because it does not conform to the requirements of rule 99 of the Texas Rules of Civil Procedure. However, R.F. lacks standing to challenge J.M.’s allegedly improper service because R.F. was not the person being served. See Regions Bank, 162 S.W.3d at 864. Even if, in the context of joinder, R.F. could have challenged J.M.’s allegedly improper service, defects in joinder must be raised at the trial court by a sworn plea alleging the defect. Tex. R. Civ. P. 93(4). Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.–Houston [1st Dist.] 1980, no writ). R.F. did not raise the alleged defect in J.M.’s joinder by a sworn plea in the trial court. Because she failed to do so, she has waived her right to complain of any defect in joinder. See Jackson, 610 S.W.2d at 522. Moreover, a judgment is no longer rendered invalid solely because it was entered in the absence of an indispensable party. See Jones v. LaFargue, 758 S.W.2d 320, 324 (Tex. App.–Houston [14th Dist.] 1988, writ denied). Where the case has been tried as to those parties who were present and there was no appropriate objection made at the trial level, the court is not automatically deprived of jurisdiction. See id. In other words, the absence of an indispensable party does not deprive the trial court of jurisdiction and it is not fundamental error for the trial court to proceed to judgment in such a case. See Stone v. King, No. 13-98-022-CV, 2000 WL 35729200, at *5 (Tex. App.–Corpus Christi 2000, pet. denied) (not designated for publication) (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982); Jones, 758 S.W.2d at 324). Because R.F. did not raise the defect in J.M.’s joinder by a sworn plea in the trial court, any resulting lack of joinder did not deprive the trial court of jurisdiction, the order of termination is valid, and it was not fundamental error for the trial court to proceed to judgment. See Stone, 2000 WL 35729200, at *5; Jones, 758 S.W.2d at 324. R.F.’s first issue is overruled. Rule 324(b) In her second, third, and fourth issues, R.F. argues that the evidence is factually insufficient to terminate her parental rights to C.M., N.M., and J.M.F., Jr. The Department disagrees, contending that R.F. waived any error regarding factual insufficiency because she did not file a motion for new trial. A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to support a jury finding. Tex. R. Civ. P. 324(b)(2). Here, the jury found that the parent-child relationship between R.F. and C.M., N.M., and J.M.F., Jr. should be terminated. R.F. did not file a motion for new trial. Because she did not do so, she has failed to preserve her factual sufficiency complaint regarding termination of her parental rights to C.M., N.M., and J.M.F., Jr. Accordingly, R.F.’s second, third, and fourth issues are overruled. Possessory Conservator In her fifth issue, R.F. contends that the trial court abused its discretion by appointing the Department as possessory conservator of C.M. and N.M. More specifically, R.F. argues that the Department never requested appointment as possessory conservator of C.M. and N.M. and, thus, the trial court abused its discretion in appointing it. The foster parents and the Department disagree, contending that the trial court has the discretion to appoint a possessory conservator. Applicable Law The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to a child. Tex. Fam. Code Ann. § 153.002 (Vernon 2008). The trial court has wide latitude in determining the best interest of a child, and the decision of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. Marriage of Stein, 153 S.W.3d 485, 488 (Tex. App.–Amarillo 2004, no pet.). “[A] suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession, and visitation matters involving the child.” Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). Thus, technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. Id.; see also Williams v. Williams, 150 S.W.3d 436, 446 (Tex. App.–Austin 2004, pet. denied); Green v. Green, 850 S.W.2d 809, 811 (Tex. App.–El Paso 1993, no writ). Again, the paramount concern is the best interest of the child, and the niceties of the procedural rules of pleading will not be used to defeat that interest. Green, 850 S.W.2d at 811. If a managing conservator is appointed, the court may appoint one or more possessory conservators. Tex. Fam. Code Ann. § 153.006(a) (Vernon 2008). The court shall specify the rights and duties of a person appointed possessory conservator. Tex. Fam. Code Ann. § 153.006(b). A nonparent possessory conservator has any other right or duty specified in the order. Tex. Fam. Code Ann. § 153.376(b) (Vernon 2008). Analysis Here, the agreed order filed on August 16, 2007 appointed the Department as permanent managing conservator of C.M. and N.M. In the third amended joint petition to modify and to terminate the parent-child relationship, the foster parents and the Department requested termination of the parent-child relationship between R.F. and her children, C.M. and N.M., and appointment of the foster parents as sole managing conservators of C.M. and N.M. The Department did not request appointment as possessory conservator of C.M. and N.M. However, in its order of termination, the trial court found that appointment of the Department as possessory conservator of C.M. and N.M. was in the best interest of the children. The trial court also ordered the Department to continue providing all available benefits to the children, including, but not limited to, preparation for Adult Living Resources, education benefits and/or the completion of all adoptive home studies. Even though R.F. argues that the trial court may not enter a judgment appointing the Department as possessory conservator because the appointment was never requested, we are mindful that the trial court has wide discretion in determining the best interest of a child. See Marriage of Stein, 153 S.W.3d at 488. The paramount concern is the best interest of the child, not the procedural rules of pleading. See Green, 850 S.W.2d at 811. R.F. does not dispute that the trial court’s appointment was in the best interest of the children. Further, at the time of the order of termination, the Department had been managing conservator of C.M. and N.M. for approximately two years. Thus, in light of the important interests involved in “custody and control” of a child, the trial court did not abuse its discretion in appointing the Department as possessory conservator of C.M. and N.M. See Leithold, 413 S.W.2d at 701. Moreover, because the trial court appointed the foster parents as sole managing conservators of C.M. and N.M., the trial court was allowed to appoint a possessory conservator, or in this case, the Department. See Tex. Fam. Code Ann. § 153.006(a). The trial court also specified the rights and duties of the Department as possessory conservator. See Tex. Fam. Code Ann. § 153.006(b). Therefore, the trial court did not abuse its discretion in appointing the Department as possessory conservator of C.M. and N.M. R.F.’s fifth issue is overruled. Disposition The judgment of the trial court is affirmed. Brian Hoyle Justice Opinion delivered August 25, 2010. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH) [1] 53 Tex. Sup. Ct. J. 947, 2010 WL 2636050 (Tex. July 2, 2010). [2] Pursuant to rule 9.8 of the Texas Rules of Appellate Procedure, we use an alias to refer to the minors’ parents. Tex. R. App. P. 9.8(b)(2). [3] The oldest child, E.M., reached the age of eighteen and was no longer enrolled in an accredited secondary school in a program leading toward a high school diploma before the agreed order was filed (August 16, 2007). Therefore, E.M. was no longer subject to the jurisdiction of the district court. See Tex. Fam. Code Ann. §§ 154.001(a)(1), 154.002(a)(1) (Vernon 2008). Thus, the parent-child relationship between R.F. and E.M. was not terminated. [4] J.M. is not a party to this appeal. [5] J.M.F., Sr. is not a party to this appeal.