in the Interest of S.R., S.R. and B.R.S., Children , 2014 Tex. App. LEXIS 12308 ( 2014 )

Affirmed and Opinion filed November 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00393-CV
NO. 14-14-00416-CV
IN THE INTEREST OF S.R., S.R. AND B.R.S., CHILDREN
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 70722
OPINION
In these consolidated appeals, both D.R. (the Father) and D.S. (the Mother)
appeal from the decree terminating their parental rights to three children, S.R.
(Scott), S.R. (Sally), and B.R.S. (the Baby) (collectively, the Children).1 The
Father raises three issues challenging the sufficiency of the evidence supporting the
trial court’s termination findings and the failure to appoint counsel for him until
after the first adversary hearing. The Mother raises a single broad issue challenging
the sufficiency of the evidence supporting termination. We affirm.
1
To protect the identities of the minors, we have not used the actual names of the
Children, parents, or other family members. See Tex. R. App. P. 9.8.
I. BACKGROUND
The record reflects that the Mother and Father were married in early 2009,
but they separated in January 2012. The Children were very young during these
proceedings: Scott was born in March 2010, Sally was born in January 2011, and
the Baby was born in July 2012.
In 2011 and early 2012, before the youngest child was born, the Department
of Family and Protective Services (the Department) became involved with the
parents after receiving several referrals alleging drug use, unsanitary living
conditions, physical abuse, sexual abuse, and neglect. Although the Department’s
investigation later ruled out physical and sexual abuse of the Children, the
Department was concerned about the parents’ acknowledged untreated mental
illnesses and instances of domestic violence in front of the Children. The parents
were offered family-based safety services for protection of the Children, and in
May 2012, they signed the first of several safety plans outlining services for the
safety and protection of the Children.
Shortly thereafter, it was alleged that the Mother left Scott and Sally alone
with her father (the Grandfather). The safety plan had specified the Children were
not to be left alone with the Grandfather because of his health problems and history
of marijuana use. At that time, the two older children were living with the Father
and his girlfriend, and the Mother had supervised visits.
In July 2012, shortly after the Baby was born, the Department’s caseworker
visited the Mother and instructed her in safe care of the Baby. The Mother signed
another safety plan to include protection of the Baby. Later that same month, the
Father was arrested and charged with assaulting the Mother. After the Father was
arrested, all three Children were placed in the Mother’s care, with her mother (the
Grandmother) supervising her contact with the Children.
2
At a visit in September, the caseworker found the Children at the Father’s
home unsupervised, and she was concerned for their safety. The Department also
alleged the parents did not comply with the safety plans, particularly those services
addressing domestic violence issues. On September 20, 2012, the parents signed an
agreement for Parental Child Safety Placement voluntarily placing the Children
with a friend, Melissa Green. The parents were permitted supervised visits with the
Children until their service plans were completed. In November, the Father was
arrested for possession of drug paraphernalia. In early December, the Department
became concerned about other individuals who were staying in Green’s home, and
the Mother had also moved into the home.
On December 3, 2012, Green advised the caseworker that the Mother took
the Children away from her home unsupervised and their whereabouts were
unknown. The Department then petitioned for protection of the Children, seeking
custody and termination of the parents’ parental rights. After an emergency
hearing, the court found an immediate danger to the health or safety of the
Children and named the Department temporary managing conservator of the
Children. The Children were missing for two days before the parents returned them
to the Children’s Protective Services (CPS) offices. By this time, the Father was no
longer living with his girlfriend.
A full adversary hearing was set for December 13, 2012. The record reflects
the Father was present at the adversary hearing, but the Mother was not. The court
found there was a danger to the physical health and safety of the Children and
signed an order naming the Department temporary managing conservator of the
Children. The Children were placed in foster care, and the parents each were
granted supervised visits at the CPS office.
On January 17, 2013, the court appointed CASA, an acronym for Court
Appointed Special Advocates, as guardian ad litem for the Children. See Tex. Fam.
3
Code § 107.031. A status hearing was held January 31, 2013. The Mother was
present, but the Father was not. He was represented by counsel, however. The
initial permanency hearing was held May 30, 2013. The Father was present, but the
Mother was not. A permanency hearing was held on October 17, 2013. The parents
were not present. Another permanency hearing was held January 30, 2014, and
both parents were present.
The case was tried to the court on May 6–8, 2014. The Mother was not
present at trial and her whereabouts were unknown. Two of the Department’s
caseworkers, the CASA volunteer, a mental health professional, a mental health
caseworker, a police officer, and the Father testified at trial. At the conclusion of
the trial, the court granted the Department’s request for termination of both
parents’ parental rights. On May 16, 2014, the court signed a judgment reciting
that both parents’ parental rights were terminated based on findings that
termination is in each of the Children’s best interest and that the parents committed
acts establishing the predicate termination grounds set out in subsections D, E, and
O of Texas Family Code Section 161.001(1). Tex. Fam. Code §§ 161.001(1)(D),
(E) & (O); 161.001(2). The Department was appointed sole managing conservator
of the Children. Both parents filed notices of appeal.2
II. BURDEN OF PROOF AND STANDARDS OF REVIEW
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is
2
The Father’s appeal was docketed under case number 14-14-00393-CV, and the
Mother’s appeal was docketed under case number 14-14-00416-CV. The appeals were ordered
consolidated.
4
imperative for courts to recognize the constitutional underpinnings of the parent-
child relationship, it is also essential that emotional and physical interests of the
child not be sacrificed merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“Clear and convincing evidence” means “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code § 101.007; accord In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
Fam. Code §§ 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Only one predicate finding under section 161.001 is necessary to support a
judgment of termination when there is also a finding that termination is in the
child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a parental-rights
termination case, we must consider all the evidence in the light most favorable to
the finding to determine whether a reasonable factfinder could have formed a firm
belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re
J.F.C., 96 S.W.3d at 266. We assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable fact finder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved. In re J.O.A., 283
S.W.3d at 244; In re J.F.C., 96 S.W.3d at 266.
5
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all of the evidence including disputed or conflicting evidence.
In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding
is so significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. We give due deference
to the factfinder’s findings and we cannot substitute our own judgment for that of
the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is
the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at
109. We are not to “second-guess the trial court’s resolution of a factual dispute by
relying on evidence that is either disputed, or that the court could easily have
rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003)
(explaining that in a parental-rights termination case, an appellate court should not
reweigh disputed evidence or evidence that depends on a witness’s credibility).
III. ISSUES ON APPEAL
In his first issue, the Father argues that the trial court reversibly erred in
failing to appoint an attorney to represent him until after the adversary hearing had
been completed. In his second issue, the Father asserts that the evidence is legally
and factually insufficient to support the trial court’s finding that the Children were
removed from him due to abuse or neglect, as required by the predicate termination
ground in section 161.001(1)(O). The Father alleges in his third issue that the
evidence is legally and factually insufficient to support the trial court’s
endangerment findings in section 161.001(1)(D), (E). The Father’s third issue
includes a challenge to the legal and factual sufficiency of the evidence supporting
the trial court’s finding that termination of his parental rights is in the Children’s
best interest. See Tex. Fam. Code § 161.001(2).
The Mother has alleged a single broad issue challenging the sufficiency of
6
the evidence to support the trial court’s termination findings.3 Although the
Mother’s issue is broadly worded, she has not argued or cited authority that the
evidence is insufficient to support the trial court’s best-interest finding. See Tex.
Fam. Code § 161.001(2).
If disposition of an issue would result in a rendition of judgment, an
appellate court should consider that issue before addressing any issues that would
only result in a remand for a new trial. See Natural Gas Pipeline Co. of Am. v.
Pool, 124 S.W.3d 188, 201 (Tex. 2003); see also In re K.W., 138 S.W.3d 420, 428
(Tex. App.—Fort Worth 2004, pet. denied) (applying this rule in a termination of
parental rights appeal and first addressing legal sufficiency challenges).
Accordingly, we first consider the challenges to the legal sufficiency of the
evidence, followed by a review for factual sufficiency.
IV. PREDICATE TERMINATION GROUNDS
Both parents challenge the legal and factual sufficiency of the evidence to
support the predicate termination grounds. The trial court found three predicate
grounds for termination: subsections D, E, and O of section 161.001(1). See Tex.
Fam. Code § 161.001(1)(D), (E) & (O). Relevant to this proceeding, section
161.001(1) provides in relevant part that termination of parental rights is warranted
if the trial court finds by clear and convincing evidence, in addition to the best
3
Included in the Mother’s issue is an argument challenging the appointment of the
Department as the sole managing conservator of the Children When parental-rights termination
is sought, appointment of a managing conservator is governed by section 161.207, which
provides that if a court terminates the parent-child relationship of both parents, “the court shall
appoint a suitable, competent adult, [the Department], a licensed child-placing agency, or an
authorized agency as managing conservator of the child.” Tex. Fam. Code § 161.207(a). A trial
court does not abuse its discretion in appointing the Department as conservator of the children
where the evidence is sufficient to support termination of parental rights. In re C.N.S., No. 14-
14-00301-CV, 2014 WL 3887722, *13 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014, no pet.)
(mem. op.). As discussed herein, the evidence in this case is sufficient to support termination of
the parents’ parental rights. Accordingly, we hold the court did not abuse its discretion by
appointing the Department as the Children’s managing conservator.
7
interest finding, that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional
well-being of the child;
...
(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or neglect of
the child;
Tex. Fam. Code § 161.001(1)(D),(E) & (O).
Because subsections D and E both concern endangerment and the evidence
on each may overlap in some respects, we address both of these predicate findings
together.
V. ENDANGERMENT
Both subsections D and E of section 161.001(1) use the term “endanger.”
“To endanger” means to expose a child to loss or injury or to jeopardize a child’s
emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996);
Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied).
Endangerment under subsection D may be established by evidence related to
the child’s environment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied). “Environment” refers to the acceptability of living
conditions, as well as a parent’s conduct in the home. In re W.S., 899 S.W.2d 772,
776 (Tex. App.—Fort Worth 1995, no writ). A child is endangered when the
8
environment creates a potential for danger that the parent is aware of but
consciously disregards. See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort
Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston
[14th Dist.] 2005, no pet.). Inappropriate, abusive, or unlawful conduct by a parent
or other persons who live in the child’s home can create an environment that
endangers the physical and emotional well-being of a child as required for
termination under subsection D. In re M.R.J.M., 280 S.W.3d at 502.
Under subsection E, the evidence must show the endangerment was the
result of the parent’s conduct, including acts, omissions, or failure to act. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination
under subsection E must be based on more than a single act or omission; the statute
requires a voluntary, deliberate, and conscious course of conduct by the parent. Id.
A court properly may consider actions and inactions occurring both before and
after a child’s birth to establish a “course of conduct.” In re S.M., 389 S.W.3d 483,
491–92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves
physical endangerment, the statute does not require that conduct be directed at a
child or that the child actually suffers injury; rather, the specific danger to the
child’s well-being may be inferred from parents’ misconduct alone. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d
732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that
subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—
Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex. 2014).
In evaluating endangerment under subsection D, we consider the child’s
environment before the Department obtained custody of the child. See In re J.R.,
171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Under
subsection E, however, courts may consider conduct both before and after the
9
Department removed the child from the home. See Avery v. State, 963 S.W.2d 550,
553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (considering persistence of
endangering conduct up to time of trial); In re A.R.M., No. 14-13-01039-CV, 2014
WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem.
op.) (considering pattern of criminal behavior and imprisonment through trial).
Because the inquiry under both subsections D and E includes the conduct of
the parent, evidence of criminal conduct, convictions, or imprisonment is relevant
to a review of whether a parent engaged in a course of conduct that endangered the
well-being of the child. A.S. v. Tex. Dep’t of Family & Protective Servs., 394
S.W.3d 703, 712-13 (Tex. App.—El Paso 2012, no pet.). Evidence of the parents’
criminal histories was presented at trial. The Father received deferred adjudication
probation for theft by check on September 24, 2009. He testified the probation was
later revoked and he spent about thirty days in jail. The Father was arrested for
assaulting the Mother in July 2012. He was also arrested for possession of drug
paraphernalia in November 2012. The Father was arrested and jailed for theft at the
time of the January 2014 permanency hearing. In addition, he was arrested for
possession of a drug detection device in April 2014.
The Mother was convicted of theft on August 22, 2013, and she was
sentenced to sixty-eight days in county jail. At the same time, she was convicted of
assault causing bodily injury and sentenced to a concurrent sixty-eight days in
county jail. On January 23, 2014, the Mother was convicted of another assault
causing bodily injury to a family member, the Grandfather, and she was sentenced
to 100 days in county jail. In January 2014, the Mother acknowledged she had
been arrested for assault three times in the last year and a half.
In addition, “[d]omestic violence, want of self-control, and propensity for
violence may be considered as evidence of endangerment.” In re J.I.T.P., 99
S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). The
10
Department’s Family-Based Safety Services (FBSS) caseworker, Donzell Bellow,
testified at trial about her involvement with the family from June 4, 2012 until
December 2012. Bellow testified she was concerned about the domestic violence
around the Children and stated the Children were not safe with their parents.
Bellow testified the parents admitted to domestic violence in front of the children.
At trial, however, the Father denied ever hitting the Mother. Bellow testified that
the Mother received a broken nose in one incident, and that the Father was arrested
for another assault in July 2012. The Father told Bellow that when he took the
Children to visit their Mother, “she wouldn’t get out of the car” and “started
fighting him, trying to stay in the car. He took off with her and then he threw her
out of the car” while the Children were in the car.
Bellow also testified to another incident in December 2012, when she was
concerned for the Children’s safety. The Mother removed the Children from the
voluntary placement, and the Children were missing for two days. The Department
obtained an emergency order to take custody of the Children. Although the Father
at first denied knowing where the Mother and Children were, he located them and
with the Grandmother’s help, convinced the Mother to return the Children. Bellow
and another caseworker were following the parents, who had the Children in the
car, to ensure they returned the Children to the CPS office. The co-worker
observed the Father hitting the Mother. The police were notified about the assault,
and officers were at the CPS office when the parents arrived. The officers
questioned the Mother about the assault, but she denied it. Bellow testified that in
her opinion, these incidents of domestic violence were conditions that endanger the
physical and emotional well-being of the Children.
A parent’s drug use can also qualify as a voluntary, deliberate, and
conscious course of conduct endangering the child’s well-being. See In re C.A.B.,
289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Continued
11
illegal drug use after a child’s removal is conduct that jeopardizes parental rights
and may be considered as establishing an endangering course of conduct.
Cervantes–Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244,
253–54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).
Bellow testified about the Mother’s drug use. Early in the case, the Mother
had tested positive for marijuana, despite her denial that she used marijuana. As a
result of the positive drug test, the Mother was asked to participate in a drug
assessment, but she left the facility without completing the assessment. The Mother
testified at the January 2014 hearing that she had last used illegal drugs, namely
“speed,” the previous July. Bellow testified she was also concerned about the
Mother’s appearance as indicative of drug use. She appeared to lack proper
hygiene: she was dirty, had sores all over her face and body, and her teeth were
decayed.
As for the Father, Bellow was concerned about his possible drug use. Bellow
had a strong belief that the Father was using drugs, and she was aware of his arrest
for possession of drug paraphernalia. The Father told Bellow the drugs found in the
car at that time belonged to his friend. Bellow explained that the Department did
not routinely test for “K2,” synthetic marijuana, and special tests were required.
She testified that parental drug use around children endangers them.
At trial, the Father denied drug use. On cross-examination, he admitted that
he had smoked K2, resulting in a positive drug test, because of the stress of the
CPS case. He claimed that the drug use resulting in the positive test was an isolated
incident, and he stated the Children were not present. The Department’s
caseworker acknowledged at trial that the Father’s drug tests during the last year
were negative.4 The Father had missed some scheduled tests, however. In addition,
4
Although the record contains the parents’ drug tests that were positive for “K2,” or
synthetic marijuana, the reports were not authenticated and were admitted for only limited
12
Officer Joshua Rowland testified about the Father’s arrest for possession of a drug
test falsification device called “Safeguard U Pass Synthetic Urine” on April 4,
2014. The Father admitted to the officer that the device was his property. At trial,
however, the Father claimed that the device was not his and he never used it.
The Department’s caseworkers also testified about their concerns that the
parents were not participating in the court-ordered services. A parent’s efforts to
improve or enhance parenting skills are relevant in determining whether a parent’s
conduct results in endangerment under subsection E. See In re D.T., 34 S.W.3d
625, 640 (Tex. App.—Fort Worth 2000, pet. denied). Failure to maintain stability
endangers the child’s physical and emotional well-being. See In re A.B., 412
S.W.3d at 599.
In her testimony at the January 2014 hearing, the Mother agreed she had not
done a good job in completing her services over the past year. Bellow testified she
was concerned about the Mother’s instability. There was evidence that the Mother
had no safe home and no employment. Caseworker Schrelle Atkinson, who was
assigned the case in September 2013 after the previous caseworker left the
Department’s employ, testified that until the Mother was incarcerated in January
2014, she had trouble locating her. After the Mother’s release from jail in early
2014, she was not employed and was living with her uncles in Bay City.
Caseworker Atkinson testified that at the time of the permanency hearing in
January 2014, the Father was in jail on a theft charge. The caseworker testified that
as a result of the Father’s incarceration, he was not able to be employed, support
his family, or visit the Children. The Father admitted he was not employed before
he was arrested. He testified he lost one plumbing job because the company
purposes related to the parents’ service plans, not as evidence of drug use. See Tex. R. Evid. 105.
Therefore, we do not consider the results of the positive drug tests as evidence of drug use for
purposes of the sufficiency analysis.
13
downsized and he lost another because he took off work to visit the Mother when
she was hospitalized. The Father explained that his failure to attend therapy and
complete his other services was due to a lack of transportation. He testified he had
a car, but lacked funds to buy gas. He also complained that the Department
changed his therapist. The caseworker explained that another therapist had been
added to the Father’s service plan because that therapist was qualified to provide
behavior therapy to treat the Father’s bipolar condition.
The record also contains evidence related to the parents’ mental health and
their failure to participate in services related to treatment. Mental illness alone is
not grounds for terminating the parent-child relationship. Maxwell v. Tex. Dep’t of
Family & Protective Servs., No. 03–11–00242–CV, 2012 WL 987787, at *9 (Tex.
App.—Austin Mar. 23, 2012, no pet.) (mem. op.). Untreated mental illness can
expose a child to endangerment, however, and is a factor the court may consider.
See id. at *10; In re L.L.F., No. 02–11–00485–CV, 2012 WL 2923291, at *15
(Tex. App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (considering a parent’s
failure to take medication to treat mental health issues as a factor in creating an
environment that endangers the child’s emotional or physical well-being); In re
J.I.T.P., 99 S.W.3d at 845 (considering a parent’s mental health and non-
compliance with her medication schedule as factors in endangering the child).
Caseworker Bellow was concerned that the parents violated the safety plans
and failed to comply with the court-ordered services related to treatment for their
mental health. She testified, “we did not feel the home was stable enough for the
kids to reside in because the parents were not cooperating with services to get the
help that was needed.” Both parents acknowledged that they failed to comply with
the recommendations for therapy. The Father admitted he did not take medications
recommended to treat his conditions, and he testified he did not believe he needed
medication any more.
14
Venette C. Westhoven, Ph.D., a clinical psychologist, testified at trial about
the psychological evaluations she performed on the parents in July 2012. She
diagnosed the Father with bipolar disorder and borderline personality disorder. The
Father told her that he had been diagnosed with borderline personality disorder in
2011 when he was in the military. Westhoven described bipolar disorder as a mood
disorder that involves a combination of manic episodes and depressive symptoms.
An individual in a depressive episode has “difficulty motivating, getting things
done. In a manic episode, a [person] has difficulty concentrating.” She testified not
only does a parent with this untreated condition have difficulty meeting the
parent’s own needs, the parent finds it difficult to meet a child’s needs. With
borderline personality disorder, a person has traits including perceived
abandonment and rejection, an unstable, volatile, and intense pattern of
relationships, unstable self-image, impulsivity, reactive mood, irritability, anxiety,
chronic feelings of emptiness, feelings of isolation and paranoid ideation that can
include self-harm and harm to others, suicidality, moodiness, irritability, and
difficulty controlling anger. Westhoven added that the component of difficulty
controlling anger puts a person at risk for hurting someone else. The instability,
irritability, difficulty controlling anger, and intense volatile relationships can
negatively impact a child. Westhoven was concerned about the Father’s lack of
emotional stability and the personality characteristics described above making it
difficult for him to implement effective parenting strategies. Westhoven testified
she would be concerned if the Father failed to take medication for bipolar disorder
and failed to undergo treatment for borderline personality disorder.
At the time of her evaluations, Westhoven found no indications that the
Children were in danger at that point, but based on her diagnoses, she
recommended that the Department monitor and supervise closely the Father’s
home environment. She had concerns about the Father’s parenting ability. She
15
recommended counseling to address the Father’s personality characteristics,
specifically individual or group Dialectical Behavioral Therapy. She discussed
domestic violence with the Father. He told her that he tries to remain nonphysical,
but the Mother hits him and that he has to defend himself by restraining her.
Westhoven diagnosed the Mother with adjustment disorder, anxiety, and
depression. She explained that with depression, a person lacks motivation and has
difficulty finding the energy to take care of one’s children. The Mother also
admitted using marijuana, but she told Westhoven she last used it in September
2011. The Mother later acknowledged that she had a positive drug test in May
2012. Westhoven testified drug use “impairs functioning, which then would impair
parenting.” Westhoven recommended the mother participate in individual
counseling and also recommended the Mother, who was pregnant at the time, be
reevaluated after the birth of the Baby so that a medication evaluation could be
made. Westhoven also recommended the Mother complete a drug treatment
program, follow up with a support group, participate in parenting classes, and
attend family therapy with the Children.
Westhoven acknowledged that neither parent had participated in treatment
with her since her July 2012 evaluations. The parents also acknowledged they did
not engage in therapy. Additionally, the Father admitted that he did not regularly
take his recommended medication. The Father later testified, however, that he had
been in therapy with CPS-selected therapists from 2012 until trial.
The Department also presented testimony from Crystal Carpenter, a former
crisis case manager for the Gulf Coast Center of Galveston County MHMR
(Mental Health and Mental Retardation). She explained that as a crisis case
manager, she worked to assist people with psychiatric needs who are in crisis.
Either from referrals or through the crisis hotline, she responded to “people with
suicidal thoughts or hearing voices or just having a really bad time, to assist with
16
them not going into inpatient hospitalization.” Carpenter described her duties to
perform an initial crisis assessment and work to alleviate the crisis so the patients
could be referred to the adult clinic, avoiding hospitalization. Her office arranged
for “telemedicine” to provide medication for the patients. She explained that in
telemedicine, a patient at the Angleton clinic, which has special video equipment,
can be evaluated by a psychiatrist in a remote location “over the TV,” and the
patient can receive access to medication in emergency situations.
Carpenter testified she completed a crisis assessment on the Father on
January 7, 2013. The Father told her he was depressed about the CPS case, and he
was having suicidal thoughts. He acknowledged he had experienced suicidal
thoughts in the past. Carpenter set up an appointment for telemedicine and
provided the Father transportation to the clinic. She testified the Father was
prescribed medication—Effexor XR, Depakote ER, Hydroxyzine, and Elavil.
Carpenter again provided the Father transportation to the follow-up visit to
evaluate the Father’s medication. She stressed to the Father the importance of
taking his medication. Carpenter testified that the Father also called her on January
30, 2013, and told her he had a fight with his roommate and “[h]e was feeling like
he wanted to hurt him.” She called a mental health deputy to transport the Father to
a hospital. The Father acknowledged he spent two to four weeks at St. Joseph’s
psychiatric ward in February 2013, after stating he felt homicidal. After that
incident, the Father was scheduled to be evaluated at the adult clinic in Angleton,
but he was a “no-show.” Carpenter then scheduled the Father an appointment with
Dr. Aviles, a psychiatrist in Alvin, and she provided transportation to that
appointment on March 21, 2013. The Father was supposed to have another follow-
up visit in four to six weeks, but he did not attend any further appointments.
This evidence of the parents’ failure to comply with services to improve
their mental health is a factor that the trial court could have considered in finding
17
that the parents engaged in a course of conduct that endangered the physical and
emotional well-being of the Children. See In re J.I.T.P., 99 S.W.3d at 845 (finding
mother’s suicidal thoughts and history of noncompliance with medication schedule
relevant to endangerment analysis).
Reviewing all the evidence—including the evidence summarized above—in
the light most favorable to the termination findings under subsections D and E, we
conclude that a reasonable factfinder could have formed a firm belief or conviction
as to the truth of the finding that the parents engaged in endangering conduct and
left the Children in endangering conditions. See In re J.O.A., 283 S.W.3d at 344. In
light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of these termination findings is not so significant that a
factfinder could not reasonably have formed a firm belief or conviction as to the
truth of these termination findings. See In re H.R.M., 209 S.W.3d at 108. As the
finder of fact and sole judge of the credibility of the witnesses, the trial court was
free to disregard any or all of the parents’ self-serving testimony. See In re S.A.H.,
420 S.W.3d 911, 927 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We hold
the evidence is legally and factually sufficient to support the predicate termination
findings under subsections D and E.
Having determined that the evidence is sufficient to support the trial court’s
finding on these statutory grounds, we need not consider whether the evidence
would support subsection O—the other ground for termination challenged in the
Father’s second issue. See In re A.V., 113 S.W.3d at 362 (affirming termination
decree based on one predicate without reaching second predicate found by the trier
of fact and challenged by the parent); In re B.K.D., 131 S.W.3d 10, 16 (Tex.
App.—Fort Worth 2003, pet. denied). We overrule the Mother’s sole issue and the
main component of the Father’s third issue concerning the endangerment predicate
grounds.
18
VI. BEST INTEREST
We next address the remainder of the Father’s third issue, in which he
contends the evidence does not support the trial court’s finding that termination of
his parental rights is in the best interest of the Children. Before terminating a
parent’s rights, the factfinder also must find that terminating the parent’s rights is
in the child’s best interest. Tex. Fam. Code § 161.001(2); see also In re A.V., 113
S.W.3d at 362 (noting that the primary focus of parental-rights termination
proceedings is protecting the best interest of the child). We review the entire record
in deciding a challenge to the court’s best-interest finding. In re E.C.R., 402
S.W.3d 239, 250 (Tex. 2013).
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a).
Courts may consider the following nonexclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). As noted, this list
of factors is not exhaustive, and evidence is not required on all of the factors to
support a finding that terminating a parent’s parental rights is in the child’s best
19
interest. Id.; In re D.R.A., 374 S.W.3d at 533.
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and
whether the child’s family demonstrates adequate parenting skills, including
providing the child with minimally adequate health and nutritional care, a safe
physical home environment, and an understanding of the child’s needs and
capabilities. Tex. Fam. Code § 263.307(b); R.R., 209 S.W.3d at 116.
Criminal Activity, Including Domestic Violence
We begin our analysis by noting that evidence supporting termination under
one of the grounds listed in section 161.001(1) also can be considered in support of
a finding that termination is in the best interest of the Children. See In re C.H., 89
S.W.3d at 27 (holding the same evidence may be probative of both section
161.001(1) grounds and best interest). Thus, it is appropriate to consider at the
outset the evidence recited above relevant to endangerment. The Father’s criminal
activity, especially the history of domestic violence in front of the Children,
supports the trial court’s best-interest finding. The trial court reasonably could
have considered that the Father’s repeated acts of violence would continue in the
future. See Walker, 312 S.W.3d at 617. The factfinder may infer from past conduct
endangering the child’s well-being that similar conduct will recur if the child is
returned to the parent. In re M.R.J.M., 280 S.W.3d at 502.
20
Stability and Compliance with Services
Evidence that the Father did not comply with the court-ordered service plan
for reunification with the Children also supports the trial court’s best-interest
determination. See In re E.C.R., 402 S.W.3d at 249. The parents’ family service
plans were admitted in evidence. The tasks in the Father’s service plan included
that he engage in domestic violence counselling, complete parenting education
classes, complete anger management classes, participate in individual counseling
including a psychological evaluation and compliance with any recommendations
therefrom, remain drug and alcohol free and submit to random drug tests, obtain
and maintain safe and stable housing, and attend all court hearings and visitations
with the Children. The Father acknowledged at trial that the Department’s
caseworker explained to him that his failure to complete the prescribed services
could result in his parental rights being restricted or terminated. He testified he
understood the requirements of the plan, but he acknowledged he had not
completed it.
Caseworker Atkinson testified at trial about the Father’s failure to complete
the court-ordered services that were designed to help him parent the Children
safely. Atkinson testified that this failure was one reason the Department sought
termination of his parental rights and that returning the Children to the Father was
not in their best interest. The Father had not refrained from criminal activity,
including domestic violence, as recited above. The Father also used drugs and did
not comply with all of the court-ordered urinalyses; Atkinson testified he missed
approximately four appointments. Atkinson also testified the Father did not
complete domestic violence counseling or anger management classes. He did not
comply with all the recommendations from the original psychological evaluation.
The Father did not continue his medication, so he was required to complete an
additional psychological evaluation. The evidence at trial reflected that the Father
21
failed to appreciate the need for treatment to combat his history of mental
instability. Therefore, the factfinder could infer that the Father’s mental health
issues likely would recur and further jeopardize the Children’s well-being. See In
re R.W., 129 S.W.3d at 741.
Evidence of a parent’s unstable lifestyle also can support a factfinder’s
conclusion that termination of parental rights is in the child’s best interest. In re
S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of
stability, including a stable home, supports a finding that the parent is unable to
provide for a child’s emotional and physical needs. See In re G.M.G., ___ S.W.3d
___, 2014 WL 2826363, at *12 (Tex. App.—Houston [14th Dist.] June 19, 2014,
no pet.); see also Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d
390, 398 (Tex. App.—El Paso 2000, pet. denied) (holding that a parent’s failure to
provide a stable home and provide for a child’s needs contributes to a finding that
termination of parental rights is in the child’s best interest).
The record reflects the Father has not maintained stable employment. He
was unemployed for most of the year and a half that these proceedings were
pending. He testified at trial that he had been employed at Admiral Glass and
Mirror for about three months. In addition, the Father had not maintained stable
housing. The Department’s caseworker testified that the Father had moved often
and not notified the Department about the moves. He sometimes stayed with
friends, he resided in a Salvation Army shelter at one point, and stayed in a motel
for a short period. In July of 2013, the Father rented a mobile home and lived there
about three months. There was some evidence from the CASA volunteer that the
previous caseworker found the home was clean and appropriate for children.
Photographs of the home were offered, but not admitted, in evidence. The Father
already had been evicted from this residence when the new caseworker Atkinson
had an opportunity to visit. When she saw the residence, there were no working
22
utilities, and the home was very dirty. After the eviction, Atkinson said the Father
was “transient from location to location.” The Father testified at trial that he
recently had obtained a new residence. Neither the Department nor the CASA
volunteer had had an opportunity to evaluate the residence. Caseworker Atkinson
testified that she was informed the Father was residing with a friend in Houston,
but he was not there when she visited. She also testified the Father provided no
lease agreement to establish his residence. Even if the Father’s new home had been
determined to be appropriate, the factfinder may conclude that a parent’s changes
shortly before trial are too late to have an impact on the best-interest determination.
See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)
(explaining that a father’s “efforts to improve his ability to effectively parent on
the eve of trial [were] not enough to overcome a decade of poor parenting and
neglect” in evaluating the best interest of the children).
The factfinder reasonably could have concluded the Father’s lack of stability
supported the finding that termination is in the Children’s best interest. See L.Z. v.
Texas Dep’t of Family & Protective Servs., No. 03–12–00113–CV, 2012 WL
3629435, at *10–11 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.)
(holding the best-interest finding was supported where the father had a history of
instability, domestic violence, and criminal activity, and Department planned to
have the child’s foster family adopt him); see also In re A.D., 203 S.W.3d 407,
411–12 (Tex. App.—El Paso 2006, pet. denied) (affirming termination of parental
rights because mother failed to meet family service plan’s material requirements
including drug assessment, finding a job, and providing a safe home).
Parenting Abilities
The factfinder may consider a parent’s parenting skills in a best interest
analysis. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no
pet.). The Father testified that before the Children were removed from the parents’
23
care, he had been a “stay-at-home parent.” He testified he fed and bathed the
Children, put them to bed and played with them. He testified he provided only non-
physical discipline and used positive reinforcement. The Father testified that the
Children had seen their doctor regularly and they had all their immunizations.
While the Mother usually took the Children to the doctor, if they were very sick he
took them to the doctor or emergency room. The Father also testified that he had
completed a parenting class. While the Father was in the Army in the fall of 2011,
Sally had to be hospitalized with an “abscess.” The Father testified that he returned
from Fort Hood to be with her and take care of his family. He later admitted he
was absent without leave, and he received an “other than honorable” discharge
from the Army.
Evidence was also presented, however, that the parents had not provided
sufficient care for the Children before they were removed from the home.
Caseworker Bellow testified that when the Department became involved in the
case, there was concern about the condition of the home and that the Children were
unclean. When the Children came into the Department’s care, they were seen by a
physician. The Baby was underweight and the Department was concerned about
her failure to gain weight. Sally needed dental care; her front teeth were “rotten.”
In addition, Scott needed surgery for a hernia, and the parents had not made any
arrangements for the surgery. Bellow conceded, however, that the Children
appeared properly fed and clothed and had no bruises.
The Father had not attended all of his scheduled visits with the Children. He
explained that his visits were sometimes scheduled during work hours and he could
not attend. The Father’s visits were then moved to the Women’s Center to
accommodate his schedule, and the Grandmother attended the visits with him. The
Father had four visits with the Children at the Women’s Center, but the Center did
not permit the CASA volunteer or the Department’s caseworker to observe the
24
visits. The CASA volunteer reported that after the Children’s visits were moved
back to the Department’s office, the Father stopped attending the visits. Thus, the
CASA volunteer, who had been assigned the case for over a year, had been able to
observe the Father with the Children only one time. The Children appeared happy
to see their Father, and there was no indication the relationship was improper.
While there is some evidence that the Father had the ability to parent the
Children, the factfinder reasonably could have determined that this factor does not
outweigh the other factors supporting the trial court’s best interest finding.
Children’s Desires, Needs, and Proposed Placement
The Children were very young at the time of trial and there is no evidence of
the Children’s desires. When children are too young to express their desires, the
factfinder may consider whether the children have bonded with the foster family,
are well-cared for by them, and have spent minimal time with a parent. In re J.D.,
436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A child’s
need for permanence through the establishment of a “stable, permanent home” has
sometimes been recognized as the paramount consideration in a best-interest
determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no
pet.). Therefore, evidence about the present and future placement of the Children is
relevant to the best-interest determination. See C.H., 89 S.W.3d at 28.
The evidence shows the Children had bonded with the foster parents and
were well-cared for by them. See In re J.M., 156 S.W.3d 696, 706 (Tex. App.—
Dallas 2005, no pet.). The CASA volunteer testified at the January 2014
permanency hearing about how well the Children were doing in their placement.5
At first, the Children had been behind in their emotional and social development,
5
The Children’s first foster home was determined to be unsatisfactory and the Children
were moved to the current placement in May 2013, a year before trial.
25
but at the time of the hearing, they were “on target” for their ages. She explained,
“They’re speaking well. They have developed nice manners. They no longer hit,
bite, and pull hair. They were exhibiting some real violence toward each other at
times early on in the case.” In recommending termination of both parents’ rights,
she testified, “They’ve been in and out of jail. They haven’t stayed in any one
place for any particular period of time.”
At trial, the CASA volunteer testified that she was concerned that the parents
had not complied with their court-ordered services. She stated, “I believe that the
parents need to make a lot of changes in their lives, even to take care of
themselves. And in order to take care of children, they have to be able to stabilize
themselves and be able to support themselves. And I don’t see this happening.” In
requesting that the parents’ rights be terminated, she explained, “I believe that
children deserve and need parents who can meet their needs. I believe that these
parents are basically unable to meet their own needs and take care of themselves,
and I don’t believe that adding three children to the mix would help the parents or
the children. I don’t believe that they would be able to offer the stability and the —
just the basic needs of guidance and care that children require. These are three very
active little children who require a great deal of attention and effort.” The CASA
volunteer also was concerned that the Father was not taking medication for his
mental health issues. She stated, “I believe that his mental health issues need to be
addressed. And he told me himself about his mental health issues; so, I know that
he’s aware of them.” She also added that neither parent had answered her questions
about their plans to provide and care for the Children. There was no evidence apart
from his testimony that the Father had the ability to care for three small children on
his own.
The CASA volunteer also described the Children’s foster home, which she
had visited many times. She testified, “They’re in a home with a married couple
26
who have a son who is, I believe, nine. They are very happy. The girls share a
bedroom, and [Scott] shares a bedroom with their son. He’s very proud of it.
They—the [foster parents’] son is just delighted with the younger children. He
loves being the big brother. They seem to be extremely happy and well-adjusted.
They’re doing really, really well.” She also stated that the Children were “in a very
good daycare that has really helped them grow intellectually and socially.” She
testified that in her opinion, termination of the parents’ parental rights is in the best
interest of the Children. See Tex. Fam. Code § 107.002(e) (setting out the guardian
ad litem’s duty to testify regarding her recommendations relating to the best
interests of the child and the reasons for the recommendations). This evidence
supports the trial court’s best-interest finding.
In sum, the record contains sufficient evidence to support the best-interest
finding based on the Father’s lack of stable housing, lack of stable employment,
noncompliance with services, pattern of domestic violence, and other criminal
behavior that resulted in periods of incarceration, even while these proceedings
were pending. Viewing all the evidence in the light most favorable to the
judgment, we conclude that a factfinder could have formed a firm belief or
conviction that termination of the Father’s parental rights is in the Children’s best
interest. See J.F.C., 96 S.W.3d at 265–66. In light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the best-
interest finding is not so significant that a fact finder could not reasonably have
formed a firm belief or conviction that termination of the Father’s parental rights is
in the Children’s best interest. See In re H.R.M., 209 S.W.3d at 108. After
considering the relevant factors under the appropriate standards of review, we hold
the evidence is legally and factually sufficient to support the trial court’s finding
that termination of the parent-child relationship is in the Children’s best interest.
We therefore overrule the best-interest challenge in the Father’s third issue.
27
VII. APPOINTMENT OF COUNSEL
In his first issue, the Father asserts that the trial court reversibly erred in
failing to appoint an attorney to represent him until after the adversary hearing. See
Tex. Fam. Code § 262.201(a) (requiring the trial court to conduct a full adversary
hearing within fourteen days after the children are removed from parental custody
by a governmental agency).6 He asserts that it is apparent from the record that he
appeared in opposition to the termination proceedings and that he was indigent.
The record reflects that on the day of the adversary hearing on December 13, 2012,
the Father signed a Request for Appointment of Counsel, certifying he was without
means to employ counsel. He also completed a questionnaire about his financial
resources, stating he was unemployed and had no assets. The trial court signed an
order that day finding the Father indigent and appointing counsel to represent the
Father’s interests.
The clerk’s record does indicate that the Father was unrepresented at the
time of the adversary hearing, but the clerk’s record does not reflect whether he
filed the request for counsel before or after the adversary hearing. There is no
reporter’s record from the adversary hearing. The Father testified at trial that when
he arrived for the adversary hearing, he informed the Department caseworker that
he wanted an attorney. He stated he was told by the associate judge that he would
have to “wait.” Because there is no record of the adversary hearing itself, we do
not know whether appellant requested counsel before the hearing and was told to
“wait” by the associate judge.
6
This statute was amended effective September 1, 2013, to add sections (a-1), (a-2) and
(a-3), requiring that the court, before the adversary hearing, admonish unrepresented parents of
the right to a court-appointed attorney, direct the completion of an affidavit of indigence by a
parent claiming indigence, and appoint an attorney if the court determines the parent is indigent.
See Act eff. Sept. 1, 2013, 83rd Leg., R.S., ch. 810, § 9, 2013 Tex. Gen Laws 2026, 2029
(codified at Tex. Fam. Code § 262.201(a-1)–(a-3). “The changes in law made by this Act apply
only to a suit affecting the parent-child relationship filed on or after the effective date of this
Act.” Id. at § 12. Thus, these amendments do not apply to this case, which was filed in 2012.
28
Texas has adopted a statutory scheme for providing counsel to assist
indigent parents, mandating the appointment of an attorney ad litem to represent
the interests of an indigent parent who responds in opposition to the termination of
the parent-child relationship in a suit filed by a governmental entity. See Tex. Fam.
Code § 107.013(a)(1); see also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)
(recognizing indigent parents are entitled to appointed counsel in parental rights
termination cases). Specifically, the Family Code provides that in suits filed by a
governmental entity the trial court “shall appoint an attorney ad litem to represent
the interests of: (1) an indigent parent of the child who responds in opposition to
the termination . . . .” Tex. Fam. Code § 107.013(a)(1).
Section 107.013(d) provides that a “parent who claims indigence under
Subsection (a) must file an affidavit of indigence in accordance with Rule 145(b)
of the Texas Rules of Civil Procedure before the court can conduct a hearing to
determine the parent’s indigence under this section.” Id. § 107.013(d). Thus, a
parent’s filing of an affidavit of indigence “trigger[s] the process for mandatory
appointment of an attorney ad litem.” In re V.L.B., ___ S.W.3d ____, No. 01-14-
00201-CV, 2014 WL 4373567, at * 3 (Tex. App.—Houston [1st Dist.] Sept. 4,
2014, no pet.) (quoting In re K.L.L.H., No. 06-09-00067-CV, 2010 WL 87043, at
*5 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.)). After a parent
has filed an affidavit of indigence, the court may, but is not required to, conduct a
hearing to determine whether the parent is indigent. See Tex. Fam. Code
§263.0061(b).
Unlike section 107.012 requiring appointment of an attorney ad litem for a
child, section 107.013 contains no specific timetable for appointing an attorney ad
litem to represent the parent’s interests. See In re M.J.M.L., 31 S.W.3d 347, 354
(Tex. App.—San Antonio 2000, pet. denied). Courts have found that the complete
failure of a trial court to appoint counsel to represent the interests of indigent
29
parents constitutes reversible error. See, e.g., In re V.L.B., ___ S.W.3d ____, No.
01-14-00201-CV, 2014 WL 4373567, at * 5 (citing In re C.D.S., 172 S.W.3d 179,
185–86 (Tex. App.—Fort Worth 2005, no pet.)). In this case, we are asked to
determine whether the appointment of counsel was untimely.
The Father cites In re J.M., 361 S.W.3d 734 (Tex. App.—Amarillo 2012, no
pet.), in which the court stated it was apparent from the record that the indigent
mother was “responding in opposition to the termination,” requiring appointment
of counsel under section 107.013. Id. at 737. The court in J.M. stated that “when a
parent files an answer contesting the termination and requests appointment of
counsel, the trial court must, at a minimum, conduct an inquiry into whether the
parent is indigent and, if the court finds that the parent is indigent, must appoint
counsel.” Id. In today’s case, the Father did not file an answer contesting the
termination before requesting appointment of an attorney ad litem to represent his
interests. In J.M., the mother proceeded to trial without an attorney. Thus, J.M.
does not support the Father’s contention that the trial court erred in this case.
Section 107.013(d) requires that a parent who claims indigence under
section 107.013(a) must file an affidavit of indigence before the court can conduct
a hearing to determine the parent’s indigence. Tex. Fam. Code § 107.013(d). Here,
the Father signed a written request for appointment of counsel, with information
supporting his indigence claim, on December 13, 2012. Counsel was appointed the
same day. Assuming the Father’s documents were sufficient to trigger the process
for mandatory appointment of an attorney ad litem,7 the trial court completed that
process promptly upon receiving the Father’s documents. We hold the trial court
7
The document addressing indigence was not sworn or notarized. Therefore, it was not
an “affidavit of indigence,” as required by section 107.013(d). See Tex. Gov’t Code § 312.011(1)
(defining “affidavit” to include the requirement that it is sworn before a notary or other official).
Nonetheless, the trial court determined the Father was indigent and appointed an attorney ad
litem to represent his interests.
30
did not err in appointing counsel for the Father after the adversary hearing. See In
re K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *13 n.3 (Tex. App.—
Beaumont Aug. 21, 2014, no pet.) (mem. op.) (holding no abuse of discretion when
court appointed counsel at next status hearing after adversary hearing, which
occurred over fifteen months prior to trial); In re C.Y.S., No. 04-11-00308-CV,
2011 WL 5971068, at *4–5 (Tex. App.—San Antonio Nov. 30, 2011, no pet.)
(mem. op.) (holding no abuse of discretion where at hearing on temporary orders,
trial court expressly deferred ruling on appointment of counsel for mother because
it found mother had not “appeared in opposition to this suit or has not established
indigency” as required by statute, and counsel was subsequently appointed the
same day the affidavit of indigence was filed).
In addition, trial did not commence for almost a year and a half after the
attorney ad litem was appointed. We note the Father’s attorney ad litem was
appointed in time to move—and did move—to set aside the temporary order
signed at the adversary hearing that named the Department temporary managing
conservator of the children. Accordingly, the record does not reflect that any error
in the timing of counsel’s appointment probably led to the rendition of an improper
judgment. Tex. R. App. P. 44.1(a)(1). The Father’s first issue is overruled.
VIII. CONCLUSION
We have concluded that legally and factually sufficient evidence supports
the trial court’s finding of at least one predicate ground under section 161.001(1)
as to both the Mother and Father, and that termination of the Father’s parental
rights is in the best interest of the Children. We have also held that the trial court
did not err in waiting to appoint an attorney ad litem to represent the Father’s
interests until after the adversary hearing.
31
Having overruled the parents’ issues, we affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
32