in the Interest of R.W. and G.W., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00143-CV
___________________________
IN THE INTEREST OF R.W. AND G.W., CHILDREN
On Appeal from County Court at Law No. 1
Parker County, Texas
Trial Court No. CIV-21-0342
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant L.A. (Mother) and Appellant D.W. (Father) appeal the trial court’s
order terminating their respective parental rights to R.W. and G.W. (the children). In
seven issues, Mother contends that the evidence is legally and factually insufficient1 to
support the termination of her parental rights to the children under Family Code
Subsections 161.001(b)(1)(D), (E), (N), (O), and (P), that she was denied her right to a
jury trial due to ineffective assistance of counsel and trial-court error, and that the trial
court erred in overruling her motion for extension of the dismissal date. Father
similarly contends that the evidence is legally and factually insufficient to support the
termination of his parental rights to R.W. under Family Code Subsections
161.001(b)(1)(D), (E), (N), (O), and (P) and that he received ineffective assistance of
counsel because his trial counsel failed to advise Father of his right to a jury trial and
to request a jury trial on Father’s behalf. Father also argues that the trial court erred by
terminating Father’s parental rights to G.W. under Section 161.002 of the Family
Code and by admitting evidence of Father’s drug test results through a witness that
was not properly qualified.
As to Mother’s and Father’s respective issues related to termination under
Family Code Section 161.001(b), we will hold that the evidence was legally and
Mother’s issues on appeal appear to challenge only the factual sufficiency of
1
the evidence. However, her argument incorporates both factual- and legal-sufficiency
standards, and she combines her discussion of Family Code Subsections
161.001(b)(1)(D) and (E). In the interest of justice, we will review the evidence under
both legal- and factual-sufficiency standards.
2
factually sufficient to support the termination of Mother’s parental rights to the
children and of Father’s parental rights to R.W. under Subsections 161.001(b)(1)(D)
and (E). We will sustain Father’s issue related to the termination of his parental rights
to G.W. and hold that the trial court erred by terminating Father’s parental rights
under Family Code Section 161.002 and that the error was harmful, but we will affirm
the trial court’s conservatorship appointment. With respect to Mother’s complaint of
ineffective assistance of counsel, we will hold that Mother failed to prove that she was
prejudiced by her trial counsel’s representation. With respect to Father’s complaint of
ineffective assistance of counsel, we will hold that Father failed to prove that his trial
counsel’s representation was deficient. We will thus overrule Mother’s and Father’s
respective ineffective assistance of counsel claims. On Father’s issue related to the
admission of evidence of Father’s drug test results, we will hold that the evidence was
cumulative and was therefore harmless. On Mother’s issue related to her motion for
extension, we will hold that the trial court did not abuse its discretion by denying
Mother’s motion. Accordingly, we affirm in part and reverse and remand in part for a
new trial.
I. Background
The Texas Department of Family and Protective Services (TDFPS) began
investigating Mother and Father after receiving several reports involving domestic
violence and drug abuse in the home and physical abuse. In May 2021 alone, Child
Protective Services (CPS) received several reports involving Mother and Father. The
3
children were ultimately removed in May 2021; R.W. was approximately twenty-one
months old and G.W. was less than one month old. After a bench trial, the trial court
signed its order terminating Mother’s and Father’s parental rights to the children and
appointing TDFPS permanent managing conservator of the children.
A. The Children’s Removal and G.W.’s Fractured Ribs
On May 9, 2021, CPS immediately responded to a new report because G.W.
had sustained four rib fractures and was taken to the hospital in an ambulance. When
CPS investigator, Latasha Koku, arrived at the hospital, the only family member there
was paternal grandmother—Mother and Father were not present. Koku tried to call
both parents but was able to reach only maternal grandmother, who provided excuses
for why Mother could not be at the hospital with the injured child.2 Regarding how
the child’s ribs had been fractured, paternal grandmother indicated to Koku that
Mother had thrown G.W. in his car seat. After Koku spoke with G.W.’s doctors at the
hospital, she became concerned that G.W. had previously sustained similar injuries.
Amber Maloney, a TDFPS investigation supervisor on the children’s case, also
expressed concerns related to the cause of G.W.’s rib fractures, stating that they likely
would not have happened from being thrown in a car seat or even during childbirth.
2
Mother testified that she had been at a behavioral health hospital when she
was notified that G.W. was in the hospital. When asked why Mother did not go to the
hospital to be with G.W., Mother testified that she was afraid of “not really knowing
everything that happened.”
4
Specifically, she was concerned that G.W.’s injuries were not accidental but were
trauma induced.
At trial, Father testified that the children had been in paternal grandmother’s
care3 and that he had not seen the children in the two days before G.W. went to the
hospital. According to Father, G.W.’s ribs had been fractured while he was in the care
of paternal grandmother. Father claimed that paternal grandmother had instructed
Father to blame Mother for G.W.’s injuries.
Mother’s testimony does not align with Father’s version of events. Mother
testified that on May 9, 2021—the day G.W. was taken to the hospital—Mother and
Father were at paternal grandmother’s house with the children and had gotten into an
argument with paternal grandmother. Sometime around noon, they left the children
with paternal grandmother, and Mother claimed that both children were in good
condition when Mother and Father left paternal grandmother’s house. Mother
testified that when she fed G.W. and changed his diaper earlier that day, he did not
show any discomfort or pain and did not have any bruises or other injuries. But later
that day, G.W. was in the hospital with rib fractures that were already in the process
of healing.
3
Mother and Father often left the children with paternal grandmother and
paternal grandmother’s boyfriend, E.W. Mother and Father both testified that E.W.
was physically abusive, that he had sexually assaulted Mother and Father, and that he
had threatened Mother and Father. Father also alleged that there had been domestic
violence between paternal grandmother and E.W.
5
After investigating the incident, TDFPS determined that the children needed to
be brought into TDFPS care. Maloney testified that regardless of who had inflicted
G.W.’s injuries, TDFPS would have been concerned about Mother’s and Father’s
failure to protect the children. Moreover, even discounting G.W.’s fractured ribs,
TDFPS still would have sought removal.
B. Evidence of Domestic Violence
TDFPS initially became involved with Mother and Father because the children
had been exposed to domestic violence in the home. Less than a year before trial
began, Mother claimed that Father had tried to kill her. Mother testified that her
attempted murder had been the last incident of domestic violence, though she later
claimed that she was persuaded to make those allegations. Mother acknowledged that
she had “repeatedly” reported to law enforcement that Father had been physically
abusive and that there was domestic violence between her and Father. But in the same
line of questioning, Mother denied any domestic violence.
Notwithstanding Mother’s self-contradicting testimony, Father’s criminal
history shows a propensity for domestic violence, including several charges for family-
violence assault and aggravated assault. When TDFPS received their initial intake
involving the children, Father was being investigated for a family-violence assault
against Mother. He was eventually incarcerated in February 2022 for a domestic-
violence offense against Mother, which Father stated had been “bumped up” to a
higher charge due to his criminal history. When questioned about this domestic-
6
violence charge, Father testified that the allegations were false and that he was being
targeting by his and Mother’s families. Specifically, Father testified that Mother had
been manipulated into reporting the abuse.
In addition to Father’s criminal history, Mother’s and Father’s prior CPS
histories also reflected a trend of domestic violence. Specifically, Mother had reported
that she did not feel safe with Father in the home, and she had accused Father of
abuse. Despite Mother’s domestic-violence denials at trial, Maloney testified that even
when a domestic-violence case is ruled out by CPS, TDFPS must take such allegations
into consideration when meeting with families.
C. Evidence of Mother’s and Father’s Drug Use
Both Mother and Father had ongoing problems with drug use. Mother
submitted to a drug test in May 2021, which resulted positive for methamphetamines
and amphetamines. The results concerned TDFPS because Mother had been
breastfeeding G.W. at the time. Mother submitted to another drug test in February
2022, which also returned positive for methamphetamines and amphetamines. Mother
testified that her last drug use had been in December 2021, though she did not know
how much she had used then or who had given it to her. She stated she did not have
an excuse for why she used. The day before trial began, Mother failed to submit to a
drug test that TDFPS had requested from her. Mother conceded that she had used
drugs during the termination case.
7
TDFPS was concerned about the effects of Mother’s drug use on her ability to
parent the children. Specifically, a parent that abuses illegal drugs may be extremely
violent or may “pass out for hours on end,” leaving children to care for themselves,
which is especially concerning when the children are as young as R.W. and G.W. were
at the time of trial. Mother agreed with TDFPS’s contentions that her drug use was
unsafe for the children.
In May 2021, Father submitted to a drug test that came back positive for
methamphetamines, amphetamines, and marijuana. Father reported that his last drug
use had been in early 2021, which he claimed he had been forced to use by several
criminal gangs that had been harassing and threatening to kill him and his family.
When asked about his use of methamphetamines, Father testified that he was not a
drug user but was only “partaking with the gang members who were stalking [his]
family.” However, Father’s criminal history shows a propensity for illegal drug use
beginning in 2006, including charges for possession of a controlled substance,
possession of a dangerous drug, possession of marijuana, and driving while
intoxicated. TDFPS was concerned about Father’s drug abuse after seeing “up and
down behaviors” and aggressiveness.
D. Mother’s Untreated Mental Health Issues
In addition to domestic violence and illegal drug use in the home, TDFPS had
developed concerns related to Mother’s mental health. Mother reported that she had
been diagnosed with PTSD and bipolar disorder. She testified that she had frequent
8
panic attacks and was dealing with trauma related to being sexually assaulted as a
child. Father testified that there were times in which Mother would stay awake for up
to twenty hours at a time, and he described her behavior as “extremely hyperactive.”
Father also testified that because of Mother’s PTSD, he would always take the
children to paternal grandmother’s house or with him when he would leave Mother.
Mother had also purportedly experienced psychotic episodes.
Despite the effects of Mother’s mental illnesses, she had not been following up
with treatment and was refusing to take her medications. This concerned TDFPS
because Mother had not been on any medication for over a year and no longer had a
primary care physician.
E. Mother’s and Father’s Services
Mother and Father initially received their service plans shortly after removal in
June 2021. Monica Villegas, a permanency specialist with Our Community Our Kids
(OCOK), was assigned to the case in September 2021. Part of Villegas’s role in the
case was to ensure that Mother and Father had their service plans and to help them
complete their services. To ensure that they had their service plans, Villegas
confirmed Mother and Father’s contact information and emailed them a copy of their
service plans. She then met with Mother and Father in person and provided them
with a hard copy. Villegas maintained contact with Mother and Father for one to two
months before losing contact with them.
9
Mother and Father had reported that they moved to Austin sometime in
August 2021. While they were in Austin, Villegas attempted to set up their services
but was unable to because Mother and Father would not provide an address or a
location in Austin where they were staying. After she lost contact with Mother and
Father, Villegas hired a special investigator to try to locate them. However, the special
investigator was not successful. Villegas eventually found an updated phone number
for Mother and Father, but not until January 2022.
Villegas testified that her contact information did not change during her
involvement with the case and that there was no reason that Mother and Father
would not have been able to reach her. When Villegas did occasionally hear from
Mother and Father, they would ask how the children were doing, though they had not
visited the children since June 2021, shortly after removal.4 Villegas testified that she
made every effort to try to get Mother and Father to engage in their services, but
Mother and Father did not cooperate. Indeed, they did not even start their services
until the month before trial began.
4
Mother’s and Father’s visitations with the children were stopped in June 2021,
almost immediately after removal. Villegas testified that TDFPS had received a report
that Mother stole a gun from paternal grandmother’s home, which had also been
reported to the police. Both Mother and Father then allegedly threatened to shoot and
kill everyone involved in the case. Father denied all allegations in the report. Father
maintains that he is merely “a victim of bad circumstances.”
10
1. Mother’s Service Plan
Mother’s required services were FOCUS for Mothers, Batterer’s Intervention
and Prevention Program (BIPP), psychosocial, psychiatric evaluation, proof of
financial stability, and proof of housing stability. Villegas testified that Mother had not
been engaged in her service plan, she had not addressed the concerns that brought the
children into care, she was not stable and did not have a stable home environment for
the children, and she had not addressed her mental health or substance abuse issues.
Mother testified that she understood that she was required to complete her
services to get her children back. But the only service she completed in the almost-
year between removal and trial was the psychiatric evaluation, which she had
completed only the month before trial began. Mother did not enroll in FOCUS for
Mothers until March 2022 for classes that would begin the week of trial, so that
service was incomplete. Mother did not reach out to the BIPP provider until the week
that trial began in April 2022, so that service had not been started. Although Mother
had scheduled an appointment to complete her psychosocial service in March 2022,
she did not show up for the appointment.
Villegas testified that Mother did not provide proof of financial stability or
other evidence of employment. To the contrary, Mother had told Villegas that she
was unemployed. Mother testified that she received $800 per month as disability
income but did not provide a budget or otherwise explain how she planned to care for
the children, or herself, financially. Mother also failed to provide proof of stable
11
housing. Rather, Mother testified that she had been homeless during the case. She had
been evicted while pregnant with G.W. and then lived in hotel rooms after G.W. was
born. Mother and Father had also periodically lived with paternal grandmother or
stayed on friends’ couches.
Villegas expressed concerns about Mother’s housing and financial situation and
her ability to safely care for and provide for the children. Mother testified that, were
the children returned to her, she would not have a home to take them to and would
not be able to provide health care, food, or transportation.
2. Father’s Service Plan
Father’s required services were FOCUS for Fathers, BIPP, psychiatric
evaluation, submitting to drug testing, proof of financial stability, and proof of
housing stability. Father did not complete any of his services.
Father did not enroll in FOCUS for Fathers until the month before trial began.
He did not attend his first session, was late to his second session, and had just
attended his third session the day before trial began. At the time of trial, Father’s
BIPP referral was still pending because Father had reached out to the provider only
the week before trial. Although Father had scheduled his psychiatric evaluation, the
date on which it was scheduled would have been after trial had concluded. Father also
failed to submit to further drug testing. His service plan indicated that the failure to
submit to a drug test is a presumed positive for drug use.
12
Father did not provide proof of financial stability. Father reported to Villegas
that he was employed, but Villegas was unable to contact his purported employer to
confirm his employment. And when asked about his income, Father testified that he
had not received any income since May 2021. Father did not provide proof of housing
stability. To the contrary, Father reported to Villegas—and testified at trial—that he
was homeless. While in Austin, Mother and Father had been homeless and living on
the street.
When asked how he intended to care for the children if they were returned,
Father responded, “I would ask that you not do that.” He stated that he needed the
court’s help. Father testified that without help from the state, he could not keep the
children safe from the gangs he claimed were after him and his family.
F. The Children’s Foster Placement
At the time of trial, the children had been in their foster home for almost a
year. Villegas testified that the children were doing very well in their foster placement,
adding that they were thriving and were very active. For example, R.W. had difficulties
with his speech at the time of removal that had since improved drastically.
Villegas testified that the children did not have a bond with Mother and Father
and that R.W.—the only verbal child—had not asked about them. However, the
children’s foster family had expressed interest in adopting the children, which Villegas
indicated would be in the children’s best interest.
13
II. Discussion
At the close of trial, the trial court terminated Mother’s and Father’s parental
rights to the children and signed its Order of Termination. In its ruling, the trial court
stated that it did not find Mother and Father to be credible witnesses.
A. Termination under Subsections 161.001(b)(1)(D) and (E)
Mother and Father each argue that the evidence is legally and factually
insufficient to support termination of their respective parental rights under Family
Code Subsections 161.001(b)(1)(D) and (E). We disagree.
1. Standard of Review
For a trial court to terminate a parent–child relationship, TDFPS must prove
two elements by clear and convincing evidence: (1) that the parent’s actions satisfy
one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in
the child’s best interest.5 Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d
541, 545 (Tex. 2020). Evidence is clear and convincing if it “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 Ann. § 101.007; Z.N., 602 S.W.3d at 545.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
5
In its termination order, the trial court found that termination of Mother’s and
Father’s parental rights was in the best interest of the children. However, Mother and
Father do not challenge the trial court’s best-interest finding on appeal.
14
that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,
but they must be reasonable and logical. Id. We assume that the factfinder settled any
evidentiary conflicts in favor of its finding if a reasonable factfinder could have done
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved,
and we consider undisputed evidence even if it is contrary to the finding. Id.; In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the
finding if a reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The
factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that TDFPS
proved the specific grounds for termination under Family Code Subsections
161.001(b)(1)(D) and (E). Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d
17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or
belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.
15
2. Applicable Law
Under Subsections (D) and (E), the trial court may terminate a parent’s rights if
it finds by clear and convincing evidence 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; [or]
(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[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
“‘[E]ndanger’ means to expose to loss or injury” or “to jeopardize.” In re
J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987)). Under Subsection (D), it is necessary to examine
the evidence related to the environment of the child to determine if the environment
was the source of the endangerment to the child’s physical or emotional well-being.
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The conduct
of a parent in the home can create an environment that endangers the physical and
emotional well-being of a child. Id. For example, “abusive or violent conduct by a
parent or other resident of a child’s home may produce an environment that
endangers the physical or emotional well-being of a child.” Id. Illegal drug use or drug-
related criminal activity by the parent “likewise supports the conclusion that the
child[]’s surroundings endanger [his] physical or emotional well-being.” Id.16
Under Subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. See id.; see also Tex. Fam. Code
Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be based on more
than a single act or omission; a voluntary, deliberate, and conscious course of conduct
by the parent is required. J.T.G., 121 S.W.3d at 125. The endangering conduct need
not be directed at the child, nor must the child actually suffer injury. J.F.-G., 627
S.W.3d at 312 (citing Boyd, 727 S.W.2d at 533). The specific danger to a child’s well-
being may be inferred from parental misconduct standing alone. See In re R.W., 129
S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule,
conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.”). Illegal drug use and its effect on the
parent’s life and her ability to parent may establish an endangering course of conduct.
Id. Criminal activity that exposes the parent to incarceration may also endanger a
child. In re I.L., No. 02-18-00206-CV, 2018 WL 5668813, at *5 (Tex. App.—Fort
Worth Nov. 1, 2018, no pet.) (mem. op.); In re A.N.D., No. 02-12-00394-CV, 2013
WL 362753, at *2 (Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.).
Because the evidence pertaining to Subsections (D) and (E) is interrelated, we
conduct a consolidated review of those subsections. See In re S.H., No. 02-17-00188-
CV, 2017 WL 4542859, at *10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem.
op.); In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).
17
3. Analysis as to Mother
Here, the record reflects that the children were exposed to domestic violence in
the home. Mother “repeatedly” reported to law enforcement that Father had been
physically abusive and that there was domestic violence between her and Father.
Notably, Mother reported to TDFPS that she did not feel safe with Father in the
home. Although Mother later denied domestic violence at trial, Father’s pending
family-violence-assault charge and incarceration contradicted Mother’s denials.
Despite knowing of Father’s propensity for domestic violence and even fearing for
her own safety in the home, Mother allowed the children to remain in that home and
failed to take any action to remove them from that environment. Additionally, Mother
often allowed the children to remain under the the care of paternal grandmother and
E.W., despite knowing that E.W. had a history of domestic violence, physical abuse,
and sexual assault.
The record also shows that Mother failed to protect the children from physical
abuse—either by placing the children in the care of a physically abusive person or by
her own conduct. Mother denied any knowledge or fault related to the cause of
G.W.’s fractured ribs. But the trial court heard conflicting testimony from Mother and
other witnesses, and it is unclear from the record exactly how G.W. sustained his
injuries. Regardless, even if Mother had not been the physical abuser herself, she likely
would have been responsible for placing the children with and allowing them to
remain under the care of G.W.’s physical abuser.
18
Further, Mother had problems with illegal drug use. Mother’s drug test from
May 2021 showed that she had been using methamphetamines and amphetamines at
or near the time of removal and while she was breastfeeding G.W. After a second
methamphetamine-positive drug test in February 2022, Mother admitted that her
most recent drug use had been in December 2021—seven months after removal.
Mother’s illegal drug use affected her mental health and overall ability to parent the
children. Indeed, Mother acknowledged that her drug use was unsafe for the children.
And both Mother’s and Father’s drug use in the home likely created a dangerous
environment for the children, which Mother allowed to continue when she failed to
remove the children from that environment.
The record shows that Mother’s untreated mental illnesses affected the safety
of the children’s environment. Although she had suffered from bipolar disorder and
PTSD, Mother failed to consistently seek mental health treatment and refused to take
any medication. Mother’s untreated panic attacks, psychotic episodes, and
hyperactivity likely subjected the children to uncertainty and instability in the home.
Indeed, Mother’s PTSD concerned Father to the point that he would take the
children to paternal grandmother’s house.
Mother failed to take the necessary steps to have the children returned. Mother
had not been engaged in her service plan, she had not addressed the concerns that
brought the children into care, she was not financially stable, and she did not provide
a stable home environment for the children. In fact, Mother admitted that she did not
19
have a home for the children and was not capable of providing the children with
health care, food, or transportation.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Mother had knowingly placed or had knowingly allowed R.W. and
G.W. to remain in conditions or surroundings that endangered their emotional or
physical well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). And we hold that
there is some evidence of endangering conduct on which a reasonable factfinder
could have formed a firm belief or conviction that Mother had engaged in conduct
that endangered their physical or emotional well-being. See id. § 161.001(b)(1)(E).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with our
own, and after reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that Mother had knowingly placed or had knowingly
allowed R.W. and G.W. to remain in conditions or surroundings that endangered their
emotional or physical well-being and that Mother had engaged in conduct that
endangered their physical or emotional well-being. See id. § 161.001(b)(1)(D), (E).
Accordingly, we overrule Mother’s issues regarding termination under Subsections
(D) and (E). See id. Because a finding of only one ground alleged under Section
20
161.001(b)(1) is sufficient to support termination, In re A.V., 113 S.W.3d 355, 362
(Tex. 2003), we need not reach Mother’s issues regarding termination under
Subsections (N), (O), and (P).
4. Analysis as to Father
The record reflects that Father committed several acts of domestic violence in
the home. Mother made numerous allegations of domestic violence against Father,
including his attempt to kill Mother. Father testified that he was a felon and that his
pending family-violence-assault charge had been enhanced because of his criminal
history. Although Father denied the domestic-violence allegations and attempted to
blame others for their origination, his criminal history demonstrates Father’s
propensity for domestic violence.
Additionally, Father alleged that there had been domestic violence between
paternal grandmother and E.W. Despite his knowledge of the domestic violence and
of E.W.’s history of physical abuse and sexual assault, Father often left the children in
the care of paternal grandmother and E.W.
Like Mother, Father is likely responsible for G.W.’s rib fractures. The trial
court heard conflicting testimony regarding Father’s and the children’s whereabouts
during the two days before G.W.’s hospitalization and regarding the cause of G.W.’s
injuries. Nevertheless, Father failed to protect the children when he allowed them to
21
be placed with and remain under the care of G.W.’s physical abuser—whether
Mother, paternal grandmother, or E.W.6
Father had an ongoing problem with illegal drug use. Although Father was
required to submit to drug testing as part of his service plan, Father submitted to only
one drug test in May 2021, which resulted positive for methamphetamines,
amphetamines, and marijuana. Father’s failure to submit to further drug testing meant
he was presumed positive. Father’s illegal drug use affected his life and his ability to
parent: his up-and-down behavior and aggressiveness, his extensive criminal history,
and his risk of further incarceration. Additionally, Father admitted to using drugs
“with the gang members who were stalking [his] family”—the same gang members
that had purportedly threatened to kill Father and his family. Father’s use of
methamphetamines with dangerous criminal gangs is likely not conducive to a safe
environment for the children.
Father failed to take the necessary steps for the return of the children.
Specifically, Father did not complete any of his required services, he was not
financially stable, and he did not have housing for himself or the children. Moreover,
Father asked that the trial court not return the children to his care. He even admitted
that he could not keep the children safe.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
6
The factfinder could have made any of these attributions.
22
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Father had knowingly placed or had knowingly allowed R.W. to
remain in conditions or surroundings that endangered his emotional or physical well-
being. See id. § 161.001(b)(1)(D). And we hold that there is some evidence of
endangering conduct on which a reasonable factfinder could have formed a firm
belief or conviction that Father had engaged in conduct that endangered R.W.’s
physical or emotional well-being. See id. § 161.001(b)(1)(E).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with our
own, and after reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that Father had knowingly placed or had knowingly
allowed R.W. to remain in conditions or surroundings that endangered his emotional
or physical well-being and that Father had engaged in conduct that endangered R.W.’s
physical or emotional well-being. See id. § 161.001(b)(1)(D), (E). Accordingly, we
overrule Father’s issues regarding termination of his parental rights to R.W. under
Subsections (D) and (E). See id. Because a finding of only one ground alleged under
Section 161.001(b)(1) is sufficient to support termination, A.V., 113 S.W.3d at 362,
we need not reach Father’s issues regarding termination as to R.W. under Subsections
(N), (O), and (P).
23
B. Termination of Father’s Parental Rights to G.W. under Section 161.002
The trial court terminated Father’s parental rights to G.W. under Section
161.002(b)(1) of the Family Code. In its termination order, the trial court referred to
Father as G.W.’s “alleged” father7 and found by clear and convincing evidence that
Father did not timely file an admission of paternity or file a counterclaim for paternity,
pursuant to Section 161.002(b)(1) of the Family Code, and that termination was in
G.W.’s best interest. Father contends that the trial court erred by terminating Father’s
parental rights to G.W. under Section 161.002 of the Family Code. We agree.
1. Family Code Section 161.002(b)(1)
Under Section 161.002(b)(1), “[t]he rights of an alleged father may be
terminated if . . . after being served with citation, he does not respond by timely filing
an admission of paternity or a counterclaim for paternity.” Tex. Fam. Code Ann.
§ 161.002(b)(1). However, if the alleged father files an admission of paternity, TDFPS
must then prove one of the grounds for termination under Section 161.001(b)(1)
before his parental rights can be terminated. In re J.L.A., No. 04-13-00857-CV, 2014
WL 1831097, at *2 (Tex. App.—San Antonio May 7, 2014, no pet.) (mem. op.); Toliver
7
TDFPS did not plead that Father was G.W.’s alleged father in its original
petition or request termination under Section 161.002 of the Family Code. Rather,
TDFPS identified Father as “[t]he father of the children [R.W.] and [G.W.]” and
requested termination pursuant to grounds listed in Section 161.001(b)(1). TDFPS
never amended its petition or otherwise pled that Father was an alleged father, and
nothing in the record shows that TDFPS sought termination as to G.W. based on
Father’s alleged paternity. In fact, the first mention in the record of Father’s “alleged”
paternity as to G.W. is from the trial court’s temporary order following the June 1,
2021 Adversary Hearing identifying Father’s appearance at the hearing.
24
v. Tex. Dep’t of Fam. & Protective Servs., 217 S.W.3d 85, 104 (Tex. App.—Houston [1st
Dist.] 2006, no pet.); In re K.W., 138 S.W.3d 420, 430 (Tex. App.—Fort Worth 2004,
pet. denied); Phillips v. Tex. Dep’t of Protective & Regul. Servs., 25 S.W.3d 348, 357 (Tex.
App.—Austin 2000, no pet.). If the trial court erroneously terminates an alleged
father’s parental rights after he sufficiently admits paternity, reversal and remand for a
new trial to require TDFPS to meet its burden of proof under Section 161.001 is the
appropriate remedy. See In re E.O., 595 S.W.3d 858, 865 (Tex. App.—El Paso 2020,
no pet.) (citing In re C.M.C., 273 S.W.3d 862, 883 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (op. on reh’g)); Phillips, 25 S.W.3d at 357.
2. Did Father file an admission of paternity?
Father did not file a counterclaim for paternity. See Tex. Fam. Code Ann.
§ 161.002(b)(1). However, Father contends that he admitted paternity as to G.W.
Soon after TDFPS filed its petition, Father filed an affidavit of indigency and
application for appointed counsel listing both R.W. and G.W. as his dependents and
identifying himself as their father. Father then filed Respondent Father’s Original
Answer entering a general denial of allegations and asking the trial court to deny
TDFPS’s request to terminate his parental rights. At trial, Father testified that Mother
was his wife and the mother of their children, that G.W. was his son, and that he
loved his children—referring to “[R.W.] and [G.W.] both”—and he requested that his
parental rights to his children not be terminated. Indeed, Father referred to both R.W.
and G.W. as his children throughout his testimony.
25
Subsection 161.002(b)(1) allows the trial court to “summarily terminate” the
rights of an alleged father that fails to file an admission of paternity. Toliver, 217
S.W.3d at 104; Phillips, 25 S.W.3d at 357. However, the statute does not prescribe any
formalities that must be observed when “filing” an admission of paternity or for such
admission to be effective. J.L.A., 2014 WL 1831097, at *2 (conceding that alleged
father’s appearance and participation in the trial court was sufficient admission of
paternity); In re K.E.S., No. 02-11-00420-CV, 2012 WL 4121127, at *3 (Tex. App.—
Fort Worth Sept. 20, 2012, pet. denied) (mem. op. on reh’g) (finding admission of
paternity when alleged father signed his name as “Respondent Parent” and responded
to a TDFPS letter acknowledging that he believed the child was his); Toliver, 217
S.W.3d at 105 (appearing at trial and admitting paternity triggered alleged father’s right
to require TDFPS to prove one of the conduct grounds under Section 161.001(b)(1)
of the Family Code); K.W., 138 S.W.3d at 429–30 (holding alleged father’s letters to
the trial court and to TDFPS stating that he was the biological father constituted
admissions of paternity); Estes v. Dall. Cnty. Child Welfare Unit of Tex. Dep’t of Hum.
Servs., 773 S.W.2d 800, 801–02 (Tex. App.—Dallas 1989, writ denied) (concluding
alleged father’s pro se answer alleging he was “an indigent parent” was a specific
admission of paternity).
Here, although Father did not formally file a particular document admitting
paternity with the trial court clerk, he filed an affidavit of indigency and application
for appointed counsel identifying himself at G.W.’s father, responded to TDFPS’s
26
petition, appeared and testified at trial prior to the court’s termination of his parental
rights, unequivocally asserted that he was G.W.’s father, and requested that his
parental rights not be terminated. Accordingly, we hold that Father admitted paternity
as to G.W. sufficient to trigger his right to require TDFPS to prove that he engaged in
one of the conduct grounds listed in Section 161.001(b)(1) of the Family Code before
his parental rights could be terminated. Because we conclude that Father’s actions
constituted admission of paternity, we hold that the trial court erred by terminating
Father’s parental rights to G.W. under Section 161.002(b)(1).
TDFPS argues that any error regarding the trial court’s finding pursuant to
Family Code Section 161.002(b) is harmless because there is “ample evidence” to
terminate Father’s paternal rights to both children under Section 161.001(b). But the
trial court did not terminate Father’s parental rights to G.W. based on one of the
conduct grounds listed in Section 161.001(b)(1). Rather, the trial court erred when it
summarily terminated Father’s rights to G.W. pursuant to Section 161.002. Father’s
parental rights to G.W. were therefore terminated specifically because of the trial
court’s error. Accordingly, the error is harmful. See Tex. R. App. P. 44.1(a); Romero v.
KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).
We sustain Father’s issue related to the termination of his parental rights to
G.W. pursuant to Section 161.002 of the Family Code and reverse and remand for a
new trial.
27
We note that Father does not challenge the trial court’s appointment of TDFPS
as G.W.’s permanent managing conservator. See In re J.A.J., 243 S.W.3d 611, 616–17
(Tex. 2007) (concluding that a challenge to the trial court’s appointment of a
managing conservator is not subsumed in a parent’s challenge to the trial court’s
termination order). Accordingly, we affirm the trial court’s conservatorship
appointment. See id. (holding that absent an independent challenge, the reversal of a
termination order does not affect the trial court’s conservatorship appointment when
the trial court finds that appointing a parent as conservator would significantly impair
the child’s physical health or emotional development and that appointment of TDFPS
is in the child’s best interest); In re B.C., No. 02-15-00175-CV, 2015 WL 6081452, at
*3 (Tex. App.—Fort Worth Oct. 15, 2015, no pet.) (mem. op.) (reversing the trial
court’s termination order but affirming the trial court’s conservatorship appointment).
C. Ineffective Assistance of Counsel Claims
In her second issue, Mother contends she was denied her right to a jury trial
due to the ineffective assistance of her trial counsel in not advising Mother of her
right to a jury trial and because the trial court failed to admonish Mother of her right
to a jury trial.8 Father similarly contends he received ineffective assistance of counsel
because his trial counsel failed to advise Father of his right to a jury trial or request a
jury trial on Father’s behalf.
Although Mother summarily contends that the trial court erred by failing to
8
admonish her regarding her right to a jury trial, Mother does not brief or otherwise
argue the issue.
28
1. Standard of Review and Applicable Law
Parents have the right to effective assistance of counsel in termination cases.
J.O.A., 283 S.W.3d at 341, 343; In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). A parent
who responds in opposition to a government-initiated parental-rights-termination suit
may assert a claim for ineffective assistance of counsel. In re D.T., 625 S.W.3d 62, 73
(Tex. 2021). We analyze the effectiveness of counsel in parental-rights-termination
cases under the same two-prong test utilized in the criminal context. See Strickland v.
Washington, 466 U.S. 668, 688–93, 104 S. Ct. 2052, 2064–68 (1984); M.S., 115 S.W.3d
at 545. Under Strickland, an appellant must prove by a preponderance of the evidence
that (1) his or her counsel’s representation was deficient and (2) the deficiency
prejudiced his or her defense. 466 U.S. at 687, 104 S. Ct. at 2064; M.S., 115 S.W.3d at
545.
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307
(Tex. Crim. App. 2013); M.S., 115 S.W.3d at 545. Our review of counsel’s
representation is highly deferential, and we indulge a strong presumption that
counsel’s conduct was not deficient. M.S., 115 S.W.3d at 545.
29
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must
show a reasonable probability that the proceeding would have turned out differently
without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308. A “reasonable probability” is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.
We must ultimately focus on examining the fundamental fairness of the proceeding in
which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.
2. Analysis as to Mother
Lacy Kimball was appointed to represent Mother. Mother argues that she did
not know she was entitled to a jury trial and that Kimball never discussed the option
of a jury trial. Mother’s brief does not allege error on the part of the trial court but
specifically presents the issue as “whether [Kimball’s] performance was deficient in
not addressing this constitutionally fundamental right with her client.” She then
analyzes the two-prong test set forth in Strickland. Without deciding whether
Kimball’s performance was deficient, 9 we will hold that Mother has failed to show
that she was prejudiced by Kimball’s actions. See id. at 694, 104 S. Ct. at 2068.
9
We need not address both prongs of the Strickland test if the appellant makes
an insufficient showing on one component, nor must we address them in any
particular order. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
30
Implicitly addressing how she was prejudiced by Kimball’s alleged failure to
inform Mother of her right to a jury trial, Mother vaguely asserts that “[a] denial of
that right is a very serious matter.” See Bell Helicopter Textron v. Abbott, 863 S.W.2d 139,
141 (Tex. App.—Texarkana 1993, writ denied). Mother conflates portions of the
record to suggest that the trial court was biased against her after learning of threats of
violence involving firearms that posed a risk of harm to the judiciary—though Mother
was not present when the alleged threats were made and only heard about them later.
Mother also highlights obscure statements in the record—that the trial court made in
a relevancy context—to suggest prejudice.
In the context of the waiver of a jury proceeding, the proper measure of
prejudice for an attorney’s deficient performance is “whether there is a reasonable
likelihood that the defendant would have opted for the proceeding if his attorney had
performed adequately.” Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018)
(op. on reh’g) (citing Lee v. United States, 137 S. Ct. 1958, 1965 (2017)). Here, then, we
must determine whether Mother has shown that a reasonable likelihood existed that
she would have requested a jury trial had Kimball timely informed her of her right to
elect one. Mother herself never testified that she would have requested a jury trial. At
the hearing on her motion for new trial, Mother stated that she had only recently
developed concerns regarding the court systems, the judge, and “things like that” but
that she did not feel any of those concerns at any time previously in the case. And it
31
was not until “[h]ere recently” that Mother became concerned about alleged bias in
the court system in Parker County. Thus, our analysis turns on other record evidence.
To the extent that Mother complains of Kimball’s failure to communicate to
Mother that she had a right to a jury trial, Mother was “out of pocket” and did not
have access to a phone; thus, she made herself unavailable to Kimball while Mother
and Father were in Austin. Mother also testified that she had notified only her family
and the caseworker supervisor that she was moving to Austin.
Additionally, Mother refused to be by G.W.’s side while he was in the hospital
with fractured ribs, refused to leave Father after reporting that he had committed
several acts of domestic violence against Mother, tested positive for using
methamphetamines on two drug tests in May 2021 and February 2022, failed to
submit to further drug testing before trial, refused to follow up with her mental health
treatment, refused to take any medication for her mental illnesses, did not complete
her required services, and did not obtain financial stability or stable housing.
Given Mother’s lack of engagement in the case, we are not persuaded that it
was reasonably likely that Mother would have requested a jury trial even had Kimball
timely informed her of the existence of that right. See In re L.H., No. 02-21-00260-CV,
2022 WL 246868, at *6 (Tex. App.—Fort Worth Jan. 27, 2022, no pet.) (mem. op.)
(citing Miller v. State, No. 05-14-01065-CR, 2018 WL 4579788, at *3 (Tex. App.—
Dallas Sept. 25, 2018, pet. denied) (mem. op., not designated for publication)).
Accordingly, we overrule Mother’s issue regarding ineffective assistance of counsel.
32
3. Analysis as to Father
Kathleen Wise was appointed to represent Father. Father asserts that he was
not aware of his right to a jury trial, that Wise did not discuss his right to a jury trial
with him until after the trial, that he was prejudiced by Wise’s deficiency, and that he
would have requested a jury trial but for his lack of knowledge. TDFPS argues that
the entire record shows that Wise’s assistance of counsel was effective and that Father
has not shown how having a jury trial would have resulted in a different outcome.
Before trial began, Wise filed a motion to withdraw asserting that Father’s
conduct had rendered counsel unable to communicate with him in a manner
conducive to good attorney–client relations. At the motion for new trial hearing,
Father testified that he had met with Wise three times in person and two to four times
by phone. Father alleged that Wise never “properly sat down” and explained to him
his right to a jury trial. Wise, however, testified that on May 28, 2021, specifically, she
described to Father his right to a jury trial during a phone conversation with him.
According to Wise, Father was unresponsive to communications, he did not show up
for the first hearing, and he refused to attend an in-person meeting at the
commencement of the case. Wise also testified that she had had multiple phone
conversations with Father at the commencement of the case but that he then stopped
communicating with her, and she did not hear from him again until she visited him in
jail while he was incarcerated in February 2022.
33
At the beginning of trial, Father explained that he and Wise had not “been in
the best contact” but that the communication issues were not “all on [Wise’s] part.”
The trial court then gave Father the option to either agree with Wise that she remain
on his case or to have Wise appointed as a stand-by attorney. He requested that Wise
continue to represent him, which she did. Father later declared that he had no
complaints about Wise’s representation, “not whatsoever.”
Reviewing the totality of the representation and the particular circumstances of
the case, we hold that Wise provided reasonable assistance under all the circumstances
and prevailing professional norms. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at
2065. The record reflects that throughout trial, Wise zealously advocated on Father’s
behalf. She made numerous objections and provided the trial court with legal
arguments. Additionally, Wise cross-examined TDFPS’s witnesses, raised questions
about their evidence, and pleaded Father’s case in closing arguments. Wise’s
representation was therefore not deficient. Because Father made an insufficient
showing on the deficient-performance prong, we need not address the prejudice
prong. See id. at 697, 104 S. Ct. at 2069. Accordingly, we overrule Father’s issue
regarding ineffective assistance of counsel.
D. Admission of Evidence of Father’s Drug Test Results
Father argues that the trial court erred by admitting evidence of Father’s
purported drug test results because the witness did not have the requisite training,
34
education, experience, skill, or knowledge in a field that would qualify her to interpret
and convey the purported drug testing results.
Whether to admit or exclude evidence is within the trial court’s sound
discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on
reh’g). While Father cites to general authority applicable to testimony by purported
experts, see Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), he cites no authority that
requires expert testimony to interpret or explain drug test results in parental
termination cases. Nevertheless, without deciding whether the trial court abused its
discretion, we hold that any error in admitting the testimony was harmless.
1. Harmless Error
We will not reverse a trial court’s judgment because of an erroneous evidentiary
ruling unless the ruling probably, though not necessarily, caused the rendition of an
improper judgment. Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018); U-Haul Int’l, Inc.
v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). The complaining party must usually show
that the whole case turned on the evidence at issue. Interstate Northborough P’ship, 66
S.W.3d at 220. Thus, an erroneous admission of evidence is harmless if it is merely
cumulative. In re K.R.G., No. 02-12-00384-CV, 2013 WL 3179498, at *3 (Tex. App.—
Fort Worth Mar. 21, 2013, pets. denied) (mem. op.) (citing In re C.R., 263 S.W.3d 368,
370–71 (Tex. App.—Dallas 2008, no pet.)).
35
2. Analysis
Maloney testified that Father’s drug test in May 2021 resulted positive for
methamphetamines, amphetamines, and marijuana. Other evidence in the record
shows that Father himself admitted at trial that he had tested positive for
methamphetamine and marijuana on a drug test at the beginning of the case, that his
last drug use prior to that drug test would have been anywhere from one week to one
month prior, and that he had ingested those drugs sometime before the drug test in
May 2021. Additionally, Villegas testified—without any objection from Father—that
Father had reported to TDFPS that the last time he used drugs was in early 2021.
The complained-of testimony is cumulative of evidence in the record that
supported Father’s drug use in or before May 2021. Therefore, any error in the
admission of this evidence was harmless. See C.R., 263 S.W.3d at 370–71 (overruling
appellant’s complaint about the admission of her drug test results when there was
extensive other evidence that appellant used illegal drugs such that the drug test
results were cumulative, rendering the error, if any, harmless). Accordingly, we
overrule Father’s issue regarding the admission of evidence of Father’s drug test
results.
E. Denial of Mother’s Motion for Extension
Mother contends that the trial court erred by denying her Motion to Extend.
TDFPS argues that the trial court did not abuse its discretion by denying the continuance
because Mother, through her own choices, failed to comply with her service plan.
36
1. Standard of Review and Applicable Law
Section 263.401 of the Family Code provides a one-year dismissal deadline for
a suit affecting the parent–child relationship filed by TDFPS that requests
termination. Tex. Fam. Code Ann. § 263.401(a). However, if the trial court finds that
“extraordinary circumstances” necessitate the child remaining in the temporary
managing conservatorship of TDFPS and that continuing the appointment of TDFPS
as temporary managing conservator is in the best interest of the child, the trial court
may retain the suit on the court’s docket for up to 180 days. Id. § 263.401(b). The
focus in granting or denying an extension of the statutory dismissal date is on the
needs of the child—not of the parent. In re D.R., 631 S.W.3d 826, 836 (Tex. App.—
Texarkana 2021, no pet.); In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth
2012, pet. denied) (en banc op. on reh’g).
We review the denial of a motion to extend the dismissal date under an abuse
of discretion standard. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet.
denied, 260 S.W.3d 462 (Tex. 2008). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles—that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court
abused its discretion merely because the appellate court would have ruled differently
in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
37
A trial court also abuses its discretion by ruling without supporting evidence.
Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But no abuse of discretion
occurs when the trial court decides based on conflicting evidence, so long as some
substantive and probative evidence supports its decision. Unifund CCR Partners v. Villa,
299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002) (op. on reh’g).
2. Analysis
Mother filed her motion for extension requesting more time to complete her
services and requesting additional time for TDFPS to review a recent possible kinship
placement with her brother. To explain why she had not completed her services,
Mother testified that she had experienced a lot of trauma related to domestic violence
and to a recent sexual assault by E.W., which had inhibited her ability to start her
services sooner. On appeal, Mother recognizes that this may not rise to the level of
extraordinary circumstances. Regardless, Mother argues that TDFPS’s failure to fulfill
its statutory duty related to seeking kinship placement prior to trial does constitute
extraordinary circumstances. We hold that the trial court did not abuse its discretion.
The trial court heard testimony that Mother’s own choices led to her failure to
comply with her required service plan. Actions that are considered to be the parents’
fault will generally not constitute extraordinary circumstances, such as the failure to
comply with a service plan. In re M.K.V., 648 S.W.3d 478, 483 (Tex. App.—San
Antonio 2021, no pet.); D.R., 631 S.W.3d at 837; In re J.S.S., 594 S.W.3d 493, 501
38
(Tex. App.—Waco 2019, pet. denied) (mem. op.). We therefore cannot say that the
trial court abused its discretion by failing to find extraordinary circumstances under
these facts.
Likewise, we cannot say that the trial court abused its discretion by failing to
find that the recently identified possible kinship placement constituted extraordinary
circumstances. Mother argues that the one-year deadline imposed on a parent in
Family Code Section 263.401(b)—to be fully prepared for trial—should be equally
imposed on TDFPS to seek possible kinship placement. However, Mother provides
no authority, and we have found none, that supports Mother’s argument or otherwise
suggests that TDFPS has a statutorily imposed duty to make a kinship placement
before proceeding to trial. 10
At trial, Villegas testified that TDFPS would continue looking into possible
kinship placement for the children even after termination. However, the
determination of where a child will be placed is a factor in evaluating the child’s best
interest. In re C.C., No. 2-04-206-CV, 2005 WL 1244672, at *6–7 (Tex. App.—Fort
Worth May 26, 2005, no pet.) (per curiam) (mem. op.). It is not a bar to termination
proceedings that placement plans are not final. See id. Indeed, “a trial court does not
abuse its discretion in determining that it would be against the children’s best interest
The authority Mother does cite is not applicable because, unlike the potential
10
issue addressed by the Texas Supreme Court, our record contains no evidence that
TDFPS had dismissed Mother’s brother or any other possible kinship placement
options. See In re J.W., 645 S.W.3d 726, 748 (Tex. 2022).
39
to delay the suit to evaluate a relative, risking dismissal of the case.” In re G.B. II, 357
S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.) (citing In re Northrop, 305 S.W.3d
172, 177–78 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (op. on reh’g);
C.C., 2005 WL 1244672, at *6–7).
Accordingly, we hold that the trial court did not abuse its discretion by denying
Mother’s motion for extension. We overrule Mother’s issue regarding the denial of
her motion for extension.
III. Conclusion
Having overruled Mother’s and Father’s respective issues related to termination
under Family Code Section 161.001(b), Mother’s and Father’s respective issues related
to ineffective assistance of counsel, Father’s evidentiary issue, and Mother’s issue
related to her motion for extension, we affirm that portion of the judgment
terminating Mother’s parental rights as to R.W. and G.W. and terminating Father’s
parental rights as to R.W. However, we reverse that portion of the judgment
terminating Father’s parental rights to G.W. and remand the cause to the trial court
for a new trial related to Father’s rights to G.W., and we affirm the trial court’s
conservatorship appointment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: October 18, 2022
40