Unpleaded Constructive Abandonment Requires Preservation | A.G. v. DFPS (2026)

A.G. v. Texas Department of Family and Protective Services, 03-26-00428-CV, September 29, 2026.

On appeal from 419th District Court of Travis County

Synopsis

Termination on an unpleaded constructive-abandonment ground under Texas Family Code § 161.001(b)(1)(N) does not constitute fundamental error reviewable without preservation. When the issue is tried by consent and the parent fails to make a timely pleading or notice objection, Texas Rule of Appellate Procedure 33.1 forecloses reversal on that complaint.

Relevance to Family Law

Although A.G. arises from a parental-rights termination proceeding, its preservation analysis applies throughout Texas family-law litigation. Divorce, conservatorship, possession, support, reimbursement, fraud-on-the-community, and property-division cases frequently evolve beyond the theories stated in the live pleadings. If an opposing party introduces evidence and seeks relief on an unpleaded theory, counsel cannot assume that the judgment will later be reversible merely because it exceeds the pleadings. A timely objection is necessary to prevent trial by consent, preserve a notice or pleading complaint, and give the trial court an opportunity to cure the problem.

The same principle applies defensively. A party seeking relief not expressly pleaded may establish trial by consent when the issue is unmistakably developed and contested without objection. But reliance on implied consent remains risky—particularly in parental-rights cases, where expedited appellate deadlines and constitutional interests heighten the consequences of an incomplete pleading record.

Case Summary

Fact Summary

The Department initiated the underlying SAPCR shortly after Annie was born in May 2020 with THC and cocaine in her system. Father was incarcerated at the time. During the litigation, the trial court ordered services for the parents, but Father remained incarcerated for substantial portions of the case and was not served until June 2024. Paternity testing later established him as Annie’s biological father, and the trial court signed an order establishing the parent-child relationship in February 2026.

In its live termination petition, the Department expressly pleaded the endangerment grounds found in Texas Family Code § 161.001(b)(1)(D) and (E). The petition did not expressly request termination under subsection (N), constructive abandonment, but it notified Father that the Department intended to establish a visitation plan and would seek termination for constructive abandonment if he failed to comply after the requisite period.

The bench trial occurred over four dates between October 2025 and January 2026. Father remained incarcerated and did not personally appear, although appointed counsel appeared and represented him. In its opening statement, the Department additionally requested termination under subsection (P), which concerns an inability to care for a child for two years because of a criminal conviction and incarceration. In closing argument, the Department expressly requested termination under subsection (N) and advised the court that it was no longer pursuing the pleaded subsections (D) and (E).

The final decree terminated Father’s parental rights based on subsections (N) and (P), together with a best-interest finding. On appeal, Father challenged the legal sufficiency of the subsection (P) finding. He also argued that termination under subsection (N) was fundamental error because the Department had not expressly pleaded that ground before the evidence closed.

Father conceded that he had not preserved the pleading complaint in the trial court. He nevertheless maintained that the lack of an express subsection (N) pleading deprived him of constitutionally adequate notice and an opportunity to be heard.

Issues Decided

• Whether termination under the unpleaded constructive-abandonment ground in Texas Family Code § 161.001(b)(1)(N) constituted fundamental error that could be reviewed without a timely trial objection.

• Whether subsection (N) was tried by consent despite the Department’s failure to plead that ground expressly in its live termination petition.

• Whether the court needed to address Father’s separate legal-sufficiency challenge to the subsection (P) finding after upholding termination under subsection (N).

Rules Applied

Texas Rule of Appellate Procedure 33.1 requires a party to present a timely request, objection, or motion to the trial court and obtain an express or implicit ruling as a prerequisite to appellate review. The objection must be sufficiently specific to alert the trial court to the complaint and permit correction while correction remains possible.

Texas Rule of Civil Procedure 301 generally requires a judgment to conform to the pleadings. But Rule 67 provides that issues tried by express or implied consent must be treated as though they had been raised in the pleadings. Trial by consent is determined from the record as a whole, with the reviewing court asking whether the parties actually understood that the unpleaded issue was being tried—not merely whether evidence relevant to that issue happened to be admitted.

Under Texas Family Code § 161.001(b)(1)(N), constructive abandonment may support termination when the child has been in the Department’s conservatorship for the required period, the Department made reasonable efforts to return the child, the parent did not regularly visit or maintain significant contact, and the parent demonstrated an inability to provide a safe environment.

The court relied on In re B.L.D., 113 S.W.3d 340 (Tex. 2003), in which the Texas Supreme Court characterized fundamental error as a discredited and exceptionally narrow doctrine and declined to extend the criminal-law fundamental-error framework to parental-rights termination proceedings.

The court also applied the principle recognized in In re N.G., 577 S.W.3d 230 (Tex. 2019), that an appellate court generally needs to uphold only one statutory predicate ground, together with the required best-interest finding, to affirm a termination judgment. Because Father did not challenge the best-interest finding and subsection (N) independently supported termination, the court did not need to resolve his subsection (P) sufficiency challenge.

Application

Father attempted to avoid Rule 33.1 by characterizing the unpleaded subsection (N) finding as a due-process violation implicating his right to notice and an opportunity to be heard. The Third Court rejected the premise that the asserted pleading defect automatically qualified as fundamental error. Under In re B.L.D., the constitutional importance of parental rights does not eliminate ordinary preservation requirements.

The court then examined whether the absence of an express subsection (N) pleading deprived the trial court of authority to terminate on that ground. Rule 301 requires a judgment to conform to the pleadings, but Rule 67 permits an unpleaded issue to support the judgment when the issue was tried by consent.

Looking at the record as a whole, the court agreed with the Department that constructive abandonment had been tried by consent. The live petition expressly notified Father that the Department intended to pursue constructive abandonment if the relevant conditions developed. The issue was presented during the proceedings, evidence bearing on that ground was developed without a timely pleading or notice objection, and the Department expressly requested termination under subsection (N) in closing argument. Father’s counsel did not object that subsection (N) was outside the pleadings, request additional time to respond, move to reopen the evidence, or otherwise ask the trial court to cure the asserted lack of notice.

That omission was decisive. A timely objection could have allowed the trial court to exclude the unpleaded theory, permit a trial amendment, reopen the evidence, grant a continuance, or take another curative measure. By waiting until appeal, Father deprived the trial court of that opportunity and allowed the subsection (N) theory to be treated as if pleaded.

Once the court upheld subsection (N), the subsection (P) challenge could not change the judgment. One valid predicate ground, coupled with the unchallenged best-interest finding, was sufficient to affirm termination.

Holding

A complaint that the trial court terminated parental rights on an unpleaded constructive-abandonment ground is not fundamental error exempt from Texas Rule of Appellate Procedure 33.1. The constitutional significance of a termination proceeding does not excuse the failure to make a timely and specific objection.

The subsection (N) ground was tried by consent. Because Father did not object when the Department developed and submitted constructive abandonment as a basis for termination, the issue was treated as though it had been raised in the pleadings.

The court affirmed without deciding Father’s legal-sufficiency challenge to subsection (P). The upheld subsection (N) finding and the unchallenged best-interest finding independently supported the termination decree.

Practical Application

A.G. reinforces several strategic points for Texas family-law litigators:

• Termination trials: Compare the live petition to every predicate ground announced in opening statement, developed through testimony, or requested in closing argument. Object as soon as the variance becomes apparent; do not wait for rendition or entry of the decree.

• Conservatorship disputes: If a party begins seeking an unpleaded geographic restriction, supervised possession, exclusive decision-making authority, or third-party conservatorship, make a pleading objection before the issue is fully tried.

• Divorce and property division: Watch for unpleaded reimbursement claims, fraud-on-the-community theories, characterization disputes, requests for a disproportionate division, or claims involving undisclosed entities and assets. Evidence admitted without a limiting objection may support an argument that the issue was tried by consent.

• Due-process complaints: Constitutional terminology does not substitute for preservation. State the specific notice or pleading defect, identify the resulting prejudice, request appropriate relief, and obtain a ruling.

• Requests for continuance: If an unpleaded theory emerges after evidence has begun—or during closing argument—request a continuance, move to reopen the evidence, or seek leave to present rebuttal evidence. Those requests help demonstrate both prejudice and an effort to secure a trial-level remedy.

• Post-trial practice: A motion for new trial may be useful, but it ordinarily does not cure the failure to object when the disputed issue was introduced and tried. Preservation should occur at the earliest point when the grounds for complaint become apparent.

• For the party seeking relief: Plead all grounds supported by the developing record. Trial by consent is a fallback doctrine, not a preferred pleading strategy, especially when fundamental parental rights or significant property interests are at stake.

Checklists

Audit the Live Pleadings Before Trial

• Identify every statutory ground, affirmative claim, defense, and form of relief contained in the live pleading.
• Compare the pleadings against the proposed order or decree.
• Confirm that anticipated termination grounds are pleaded expressly.
• Confirm that requested conservatorship, possession, support, and property remedies have a pleading basis.
• File a timely amendment when discovery or changed circumstances support an additional theory.
• Do not rely solely on general prayers or informal notice when specific statutory grounds can be pleaded.

Preserve an Objection to an Unpleaded Theory

• Object when the opposing party first clearly offers evidence or argument directed solely to the unpleaded issue.
• Identify the specific variance between the live pleading and the relief being pursued.
• Invoke Rules 301 and 67 when appropriate.
• Explain why the evidence is not relevant to an issue already contained in the pleadings.
• State the lack of notice and resulting prejudice on the record.
• Request exclusion of the theory or evidence.
• Alternatively, request a continuance, additional discovery, or an opportunity to present responsive evidence.
• Obtain an express ruling.
• Renew the objection if the opposing party requests the unpleaded relief in closing argument or in a proposed decree.

Avoid Implied Trial by Consent

• Do not cross-examine extensively on an unpleaded issue without first making and securing a ruling on the pleading objection.
• Request a limiting instruction or ruling when evidence is admissible for a pleaded issue but not the unpleaded theory.
• Clarify on the record that participation is subject to the prior objection.
• Object to proposed findings of fact and conclusions of law resting on the unpleaded ground.
• Object to entry of a decree granting unpleaded relief.
• Ensure that the reporter’s record captures the objection, requested relief, and ruling.

Establish Trial by Consent When Representing the Claimant

• Move for leave to amend as soon as the additional ground becomes apparent.
• Identify where the opposing party received actual notice of the theory.
• Develop evidence specifically addressing each element of the ground.
• Make clear during trial—not only after the evidence closes—that the ground is being pursued.
• Document the opposing party’s examination, evidence, and argument concerning the issue.
• Request an express finding on the ground.
• Preserve an alternative argument that the issue was tried by consent under Rule 67.

Prepare the Appellate Record

• Include the live petition and all amendments in the clerk’s record.
• Include written objections, motions for continuance, trial amendments, and proposed orders.
• Ensure that opening statements, evidentiary objections, closing arguments, and the court’s rulings are reported.
• Request findings of fact and conclusions of law when appropriate.
• Challenge every predicate ground necessary to obtain appellate relief.
• Challenge the best-interest finding when the record supports doing so.
• Address preservation and trial by consent directly in the appellate briefing.

Citation

A.G. v. Texas Department of Family & Protective Services, No. 03-26-00428-CV (Tex. App.—Austin Sept. 29, 2026, no pet. h.) (mem. op.).

Full Opinion

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