In the Interest of T.S., L.S., and D.S., Children v. the State of Texas ( 2024 )

IN THE
TENTH COURT OF APPEALS
No. 10-23-00311-CV
IN THE INTEREST OF
T.S., L.S., AND D.S., CHILDREN
From the 52nd District Court
Coryell County, Texas
Trial Court No. DC-20-51857
MEMORANDUM OPINION
After a jury trial, Mother appealed the order terminating her parental rights to T.S.,
L.S., and D.S., and Father appealed the order terminating his parental rights to D.S.1 The
parents raise issues concerning the trial court’s jurisdiction, ineffective assistance of
counsel of the children’s attorney ad litem, dismissal of appointed counsel, sufficiency of
1Father’s parental rights to T.S. and L.S. were terminated in a prior termination case in which he signed a
voluntary relinquishment of his rights to both children. Any references to Father’s parental rights in this
opinion will pertain only to his rights to D.S. unless otherwise noted.
the evidence to terminate Father’s parental rights, and the trial court’s ruling permitting
the Intervenors to intervene in the suit.2 We affirm the judgment of the trial court.
Background
On December 12, 2020, the Department of Family and Protective Services (“the
Department”) received a report alleging Mother had left four-year-old T.S. in the care of
a registered sex offender and that T.S. wandered unsupervised across the street to a
neighbor’s house. As part of the Department’s investigation, Mother and all three
children submitted to hair follicle drug tests. Mother and D.S. both tested positive for
methamphetamine and amphetamine and L.S. tested positive for methamphetamine.
On December 29, 2020, the Department filed its original petition seeking
conservatorship of T.S., L.S., and D.S. and seeking termination of Mother and Father’s
parental rights. The trial court entered an order on the same day naming the Department
as temporary sole managing conservator of the children. Mother and Father were
appointed counsel, and an attorney ad litem and guardian ad litem were appointed for
the children. All three children were eventually placed in a foster home with R.A. and
2 Mother and Father’s presentation of this appeal is arguably multifarious. See In re S.K.A., 236 S.W.3d 875,
894 (Tex. App.—Texarkana 2007, pet. denied) (observing that a multifarious issue or point of error is one
that raises more than one specific ground of error). Courts may disregard any assignment of error that is
multifarious. Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008, no pet.). However, a reviewing
court may consider a multifarious issue if it can determine, with reasonable certainty, the error about which
the appellant wants to complain. Id. We will therefore address those issues about which we have
determined with reasonable certainty the appellants want to complain.
In the Interest of T.S., L.S., and D.S., Children Page 2
M.A. (“Intervenors”), who had previously served as a foster placement for T.S. and L.S.
in a prior termination case against Mother and Father.
Intervenors filed their petition in intervention on March 3, 2022. Shortly before
the Department’s statutory deadline expired, the Department requested a temporary
orders hearing seeking to be dismissed from the case and requesting the trial court to
appoint Intervenors as temporary managing conservators of the children. After a three-
day hearing, the Department was dismissed and Intervenors were named temporary
managing conservators of the children. The trial court discharged Mother and Father’s
court-appointed counsel as well as the court-appointed attorney ad litem and guardian
ad litem for the children.3 Shortly thereafter, Mother and Father each retained their own
counsel; however, the parents’ retained attorneys requested to withdraw from
representation prior to trial. Because Mother and Father consented to their attorneys’
withdrawal requests, the trial court granted the attorneys’ motions to withdraw, and both
Mother and Father proceeded to jury trial pro se.
After a three-day jury trial, the jury unanimously voted to terminate Mother’s
parental rights to all three children and unanimously voted to terminate Father’s parental
3 The record does not contain a separate written order releasing the court-appointed attorneys. In the
record before us, our only written indication that the court-appointed attorneys were dismissed is in the
order from the temporary hearing that concluded on June 23, 2022, which was signed on July 12, 2022. In
the order, there were typed provisions stating that each of the court-appointed attorneys would continue
their representation; however, each of these provisions were struck through and initialed, presumably, by
the trial court. Nonetheless, the parties agree that the court-appointed attorneys for the parents and the
children were released once the Department was dismissed from the suit.
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rights to D.S. The trial court approved and incorporated the jury’s findings into its Order
of Termination, and appointed Intervenors as managing conservators of the children.
Mother and Father timely filed their joint notice of appeal.
Intervenors’ Petition in Intervention
In her fourth issue, Mother contends that Intervenors did not establish standing to
intervene in the Department’s termination proceeding. She also claims that their
intervention petition was untimely filed.4 Mother raised both claims in her Motion to
Strike Petition in Intervention in the trial court. We disagree.
Standing
Because Intervenors’ lack of standing would be dispositive in this case, we address
this issue first.
STANDARD OF REVIEW
Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives
the court of subject matter jurisdiction and renders subsequent trial court action void. In
re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).
Whether a trial court has subject matter jurisdiction is a question of law, which we review
4 Father does not list Intervenors’ standing or the timeliness of Intervenors’ petition as points of error;
however, he occasionally disputes these issues in his brief and raised them in his Motion to Strike Petition
in Intervention in the trial court. To the extent that Father has raised these issues, we address his arguments
and reach the same conclusion as we do herein for Mother’s contentions.
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de novo. Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018). In our review of standing, we
must take as true all evidence favorable to the challenged party, indulge every reasonable
inference, and resolve any doubts in the challenged party's favor. See Tex. Dept. of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When a statute specifically confers
standing, the statute itself serves as the proper framework for a standing analysis. In re
K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
APPLICABLE LAW
A party's standing to file an original suit affecting a parent-child relationship is
governed by Texas Family Code Sections 102.003 and 102.004(a). See TEX. FAM. CODE
ANN. §§ 102.003 (general standing), 102.004(a) (standing for a grandparent or other
relative of the child). However, Section 102.004(b) of the Family Code provides a relaxed
standing rule by which parties who would not have standing to file an original suit may
nonetheless intervene in a pending suit. See Id. § 102.004(b); Whitworth v. Whitworth, 222
S.W.3d 616, 621 (Tex. App.—Houston [1st Dist.] 2007, no pet.). This subsection gives the
trial court permission, within its discretion, to grant a person who has had
substantial past contact with the child leave to intervene in a pending suit
filed by a person authorized to do so under this chapter if there is
satisfactory proof to the court that appointment of a parent as a sole
managing conservator or both parents as joint managing conservators
would significantly impair the child’s physical health or emotional
development.
TEX. FAM. CODE ANN. § 102.004(b). If the person seeking leave to intervene is a foster
parent of the child, standing under this subsection is granted only when the person is the
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“foster parent of a child placed by [the Department] in the person’s home for at least 12
months ending not more than 90 days preceding the date of the filing of the petition.” Id.
§§ 102.004(b-1), 102.003(a)(12).
To make the required showing under subsection 102.004(b), the party seeking to
intervene must offer evidence of specific acts or omissions of the parent that demonstrate
an award of custody to the parent would result in physical or emotional harm to the child.
Interest of K.J., 676 S.W.3d 186, 191 (Tex. App.—Tyler 2023, no pet.). The evidence
presented must support a logical inference that the specific, identifiable behavior or
conduct will probably result in the child being physically harmed or emotionally
impaired. Mauldin v. Clements, 428 S.W.3d 247, 263 (Tex. App.—Houston [1st Dist.] 2014,
no pet.). Evidence that merely raises a surmise or speculation of possible harm is
insufficient to establish that inference. Id.DISCUSSION
Mother argues that Intervenors failed to establish that, at the time the intervention
petition was filed, appointing either of the parents as managing conservators would have
significantly impaired the physical health or emotional development of the children.
Although the trial court apparently conducted a hearing on Intervenors’ petition and the
parents’ motions to strike, we do not have a transcript of the hearing. Further, the trial
court did not make express findings of fact or conclusions of law regarding standing.
When the trial court does not make separate findings of fact and conclusions of law
In the Interest of T.S., L.S., and D.S., Children Page 6
regarding standing, we imply the findings necessary to support the judgment and we
review the entire record to determine if the trial court's implied findings are supported
by any evidence. Id. at 262–63. In granting Intervenor’s petition to intervene and denying
the parents’ motions to strike, the court impliedly found that appointing Mother or Father
as a managing conservator would significantly impair the children’s physical health or
emotional development.5 We will thus review the entire record to determine if the trial
court’s implied findings are supported by any evidence. See Interest of K.J., 676 S.W.3d at
192.
In this context, “satisfactory proof” means “proof established by a preponderance
of the evidence as the facts existed at the time the suit or intervention was filed.” Compton
v. Pfannenstiel, 428 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2014, no pet). In
determining whether a parent’s acts or omissions constitute significant impairment,
courts have considered factors such as “physical abuse, severe neglect, abandonment,
drug or alcohol abuse, or very immoral behavior on the part of the parent” and “parental
irresponsibility, a history of mental disorders and suicidal thoughts, frequent moves, bad
judgment, child abandonment, and an unstable, disorganized, and chaotic lifestyle that
has put and will continue to put the child at risk.” Thomas v. Thomas, 852 S.W.2d 31, 35-
5
The trial court also implicitly found that the children had been placed in Intervenors’ home by the
Department for at least 12 months ending not more than 90 days preceding the date of the filing of the
petition. The parties agree that Intervenors met this element of standing under Texas Family Code Section
102.004(b), and the record supports the determination that this element has been met. See TEX. FAM. CODE
ANN. § 102.004(b-1).
In the Interest of T.S., L.S., and D.S., Children Page 7
36 (Tex. App.—Waco 1993, no writ); In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort
Worth 2015, no pet.). Although evidence of past misconduct, standing alone, may not be
sufficient to demonstrate present circumstances forecasting substantial impairment, a
factfinder may infer the present fitness of a parent to be managing conservator from the
parent's recent, deliberate past misconduct. In re Mitchell, 585 S.W.3d 38, 48 (Tex. App.—
Texarkana 2019, no pet.).
At the time the intervention petition was filed, the record shows that Mother and
Father had not demonstrated an ability to consistently maintain a stable, safe, and drug-
free environment for the children. Mother’s history with the Department shows a pattern
of neglect and drug use that resulted in her parental rights to her two oldest children
being terminated in 2016 and in removal of T.S. and L.S. in 2018 when L.S. tested positive
for methamphetamine. T.S. and L.S. had only been returned to Mother’s care for
approximately seven months when the current case was initiated. A few days later,
Mother tested positive for methamphetamine at a level of 100,473 ng/ml and for
amphetamine at a level of 11,036 ng/ml. Hair follicle samples taken from the children
after their removal from Mother’s care revealed that L.S. was positive for
methamphetamine for the second time under Mother’s care, and D.S. was positive for
methamphetamine and for amphetamine. A few months later, Mother also tested
positive for cocaine and admitted to consuming “large amounts of alcohol” to cope with
the consequences of her positive drug test on her visitation rights with her children.
In the Interest of T.S., L.S., and D.S., Children Page 8
The record also indicates that Father was absent for the majority of D.S.’s life and
had only seen D.S. once or twice before the Department’s removal proceedings. He left
D.S. in the care and responsibility of Mother while he repeatedly abused
methamphetamine and demonstrated a pattern of attaining short-term sobriety followed
by relapse. Regarding these specific removal proceedings, Father attributed his delay in
contacting the Department to going “on a binge” of using methamphetamine to cope with
his grief over his mother’s death. Father further testified at the temporary orders hearing
that he may have used methamphetamine as recently as two weeks before he contacted
the Department to get involved in the case.
In the absence of findings of fact and conclusions of law, and because the trial court
is charged with making credibility determinations, we find that the implied findings
necessary to support the trial court’s determination that appointment of either of the
parents as a managing conservator would significantly impair the children’s physical
health or emotional well-being were supported by the evidence. Therefore, Intervenors
established standing to intervene. See TEX. FAM. CODE ANN. § 102.004(b).
Untimeliness of Intervention
Mother asserts that the trial court abused its discretion by denying her Motion to
Strike Petition in Intervention because Intervenors’ petition was untimely filed.
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STANDARD OF REVIEW AND APPLICABLE LAW
We review a denial of a motion to strike under an abuse of discretion standard. In
re N.L.G., 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.). A trial court abuses
its discretion when its action was arbitrary or unreasonable. Id. Furthermore, generally,
an intervention is timely at any time before a final judgment. See Tex. Mut. Ins. Co. v.
Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008); Hisaw & Assocs. Gen. Contractors, Inc. v. Cornerstone
Concrete Sys., Inc., 115 S.W.3d 16, 21 (Tex. App.—Fort Worth 2003, pet. denied).
DISCUSSION
Mother argues that Intervenors’ petition was untimely because it was filed after
the parents had been granted unsupervised visitation with the children. Neither of the
cases cited by Mother stand for the proposition that a trial court abuses its discretion by
permitting an otherwise qualified person to intervene because the parents have been
granted unsupervised visitation with the children. See In re C.A.L., 02-05-00308-CV (Tex.
App.—Fort Worth Feb. 15, 2007, no pet.) (mem. op); L.J. v. Tex. Dept. of Fam. & Protective
Servs., No. 03-11-00435-CV, 2012 WL 3155760 (Tex. App.—Austin Aug. 1, 2012, no pet.)
(mem. op.). We note that the issue of whether unsupervised visitation was in the best
interest of the children was contested by the parties to the suit. Intervention by foster
parents may enhance the trial court's ability to adjudicate what is in the best interest of
children involved in a parental termination suit. See In re N.L.G., 238 S.W.3d at 830.
Given that the family code grants standing to foster parents to intervene in a suit affecting
In the Interest of T.S., L.S., and D.S., Children Page 10
the parent-child relationship, that the trial court was charged with determining the
children's best interest in this case, and that Intervenors filed written pleadings to
intervene prior to trial, we cannot find that the trial court’s denial of Mother’s motion to
strike was arbitrary and unreasonable. See In re C.C.W., No. 02-07-00384-CV, 2009 WL
51032, *2 (Tex. App.—Fort Worth Jan. 8, 2009, pet. ref’d) (mem. op.). The trial court did
not abuse its discretion in denying Mother’s Motion to Strike Petition in Intervention.
Accordingly, we overrule Mother’s fourth issue.
The Trial Court’s Jurisdiction
In their first issue, Mother and Father assert that the trial court’s order terminating
their parental rights and appointing Intervenors as managing conservators of the
children is void because a trial on the merits did not begin on or before the Department’s
statutory deadline of July 2, 2022. We disagree.
STANDARD OF REVIEW AND APPLICABLE LAW
Whether a trial court has subject matter jurisdiction is a question of law that we
review de novo. Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018). In a parental rights
termination case brought by the Department, the trial on the merits must commence by
the first Monday after the first anniversary of the date the court renders a temporary
order appointing the Department as temporary managing conservator of the child. TEX.
FAM. CODE ANN. § 263.401(a). However, the trial court may grant an extension and retain
the suit on the court’s docket for a period not to exceed 180 days after the one-year
In the Interest of T.S., L.S., and D.S., Children Page 11
dismissal date if extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the Department and continuing the
Department’s appointment as temporary managing conservator is in the best interest of
the child. TEX. FAM. CODE ANN. § 263.401(b). If the court grants the extension, the court
must render an order that schedules the new mandatory dismissal date, makes further
temporary orders for the safety and welfare of the child, and sets the trial on the merits
on a date not later than the 180th day after the original statutory dismissal date. Id. If the
trial court does not commence the trial on the merits before the new dismissal date, the
court's jurisdiction over the Department’s suit is terminated and the suit is automatically
dismissed without a court order. TEX. FAM. CODE ANN. § 263.401(c).
Although the deadlines outlined in the Family Code are jurisdictional in cases
brought by the Department, the same is not true for individuals who have intervened in
a suit brought by the Department and seek affirmative relief. Interest of A.W., 623 S.W.3d
519, 522 (Tex. App.—Waco 2021, no pet.). Any party may intervene in a suit by filing a
pleading, subject to being stricken by the court for sufficient cause on a motion of any
party. TEX. R. CIV. P. 60; Brook v. Brook, 865 S.W.2d 166, 172 (Tex. App.—Corpus Christi
1993), aff'd, 881 S.W.2d 297 (Tex. 1994). Upon filing of the petition, an intervenor becomes
a party to the suit for all purposes. Brook, 865 S.W.2d at 172. If a party is nonsuited or
dismissed, an opposing party’s right to be heard on a pending claim for affirmative relief
may not be prejudiced. See In re D.D.M., 116 S.W.3d 224, 231-32 (Tex. App.—Fort Worth
In the Interest of T.S., L.S., and D.S., Children Page 12
2003, no pet.). The trial court retains jurisdiction over a pending claim for relief if the trial
court initially had subject matter jurisdiction. Williams v. Nat'l Mortgage Co., 903 S.W.2d
398, 403 (Tex. App.—Dallas 1995, writ denied).
DISCUSSION
The Department filed an original petition seeking termination of Mother’s and
Father’s parental rights on December 29, 2020. The trial court entered an order naming
the Department as temporary sole managing conservator of the children on the same date
and properly calculated the initial mandatory dismissal date as January 3, 2022. Prior to
the mandatory dismissal date, Mother’s attorney filed a Motion to Extend Dismissal Date
based on extraordinary circumstances. The trial court granted the motion and extended
the dismissal deadline by 180 days to July 2, 2022. Meanwhile, Intervenors timely filed
their Petition in Intervention in Suit Affecting the Parent-Child Relationship on March 3,
2022, requesting that Mother and Father’s parental rights be terminated and that they be
appointed managing conservators of the children. This constitutes a request for
affirmative relief independent of the Department’s cause of action. See In re D.D.M., 116
S.W.3d at 232 (“A claim for affirmative relief is a pleading that states facts showing a
cause of action independent of the plaintiff’s claim. This would allow the party to recover
benefits, compensation, or relief despite plaintiff’s abandonment or failure to establish a
claim.”)(internal citations omitted).
In the Interest of T.S., L.S., and D.S., Children Page 13
The Department’s suit was dismissed July 2, 2022.6 Because the trial court initially
had subject matter jurisdiction over the Department’s suit, Intervenors’ pending
independent claims for affirmative relief survived the Department’s dismissal. See
Interest of A.W., 623 S.W.3d at 522. As Intervenors are private individuals, the statutory
jurisdictional deadline applicable to government-initiated termination cases did not
apply to Intervenors’ claims. Id. Therefore, the trial court had jurisdiction to order the
termination of Mother and Father’s parental rights and appoint Intervenors as managing
conservators of the children on September 20, 2023.7 We overrule Mother and Father’s
first issue.
Dismissal of Court-Appointed Attorneys
In their third issue, Mother and Father assert that the trial court violated Texas
Family Code Section 107.016 and abused its discretion by denying their requests to keep
6 The parents argue that the Department did not properly dismiss its case. At the conclusion of the
temporary orders hearing on June 23, 2022, the trial court announced its intention to dismiss the
Department as a party to the suit once the written order was prepared and signed. The written order,
signed July 12, 2022, reflects that the Department was removed as managing conservator of the children
and “released from any further duties or responsibilities,” rather than a clear statement of dismissal of the
Department’s suit. Regardless, the Department’s suit was automatically dismissed without court order
upon expiration of its July 2, 2022 statutory deadline. See TEX. FAM. CODE ANN. § 263.401(c).
7 We note here that, though not listed as an issue presented, Mother raises a jurisdictional claim that the
suit from Comal County, in which the 207th District Court had entered an Order of Termination regarding
T.S. and L.S. in 2020 and acquired continuing, exclusive jurisdiction over T.S. and L.S., was not properly
transferred to this suit in Coryell County. Her claim is based on the motion to transfer in the present case
not containing a certification that all other parties were informed of the filing of the motion. She cites Texas
Family Code Section 155.204(a) in support of her argument, which applies to transfer motions filed under
Section 155.201(a) (transfer of a suit for dissolution of marriage) or Section 155.201(a-1) (transfer of an
adoption suit). Mother’s argument is misplaced, as the motion to transfer in this case was filed under
Section 155.201(d) (transfer from a court with continuing exclusive jurisdiction under Chapter 262), which
contains no such certification requirement. TEX. FAM. CODE ANN. § 155.201(d).
In the Interest of T.S., L.S., and D.S., Children Page 14
their court-appointed counsel after the Department was dismissed from the case. Mother
also claims that the trial court abused its discretion in releasing the attorney ad litem for
the children after the Department was dismissed from the case. We disagree.
STANDARD OF REVIEW AND APPLICABLE LAW
In a parental rights termination suit filed by a governmental entity, indigent
parents who oppose termination are entitled to a court-appointed attorney ad litem. TEX.
FAM. CODE ANN. § 107.013(a)(1). The appointed attorney ad litem for the parent continues
to serve in that capacity until the earliest of:
(A) the date the suit affecting the parent-child relationship is dismissed;
(B) the date all appeals in relation to any final order terminating parental
rights are exhausted or waived; or
(C) the date the attorney is relieved of the attorney’s duties or replaced by
another attorney after a finding of good cause is rendered by the court on
the record.
Id. § 107.016(2). In a government-initiated termination suit, the trial court must also
appoint an attorney ad litem to represent the interests of the child and a guardian ad litem
to represent the best interests of the child, or one attorney to serve in a dual role. Id. §§
107.011, 107.012, 107.0125. For as long as the child remains in the conservatorship of the
Department, the trial court is required to continue the appointment of either the attorney
ad litem or the guardian ad litem, and may, in its discretion, continue the appointment
of both. Id. § 107.016(1).
In a private termination suit, appointment of counsel to indigent parents may
occur in the trial court’s discretion but is not statutorily mandated. Id. § 107.021. Unless
In the Interest of T.S., L.S., and D.S., Children Page 15
the court finds that the interests of the child will be represented adequately by a party to
the suit whose interests are not in conflict with the child’s interests, the trial court must
appoint an amicus attorney or an attorney ad litem for the child in a private termination
suit. Id. § 107.021(a-1). However, in making this determination, the trial court “may make
an appointment only if the trial court finds that the appointment is necessary to ensure
the determination of the best interest of the child, unless the appointment is otherwise
required by [the Family Code]”. Id. § 107.021(b)(2). A trial court abuses its discretion if
it acts in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). An
abuse of discretion does not occur if some evidence of substantive and probative
character exists to support the trial court's decision. In re M.M.M., 307 S.W.3d 846, 852
(Tex. App.—Fort Worth 2010, no pet.).
DISCUSSION
Dismissal of the Parents’ Court-Appointed Attorneys
Section 107.013 of the Texas Family Code only applies to termination suits that are
government-initiated. TEX. FAM. CODE ANN. § 107.013. The trial court appointed counsel
to represent Mother and Father on the same date the Department filed its original
termination petition. Section 107.016 of the Texas Family Code allows the trial court to
release a parent’s court-appointed attorney ad litem when the government’s suit affecting
the parent-child relationship is dismissed. TEX. FAM. CODE ANN. § 107.016. Here, the
In the Interest of T.S., L.S., and D.S., Children Page 16
trial court did not release the parents’ court-appointed attorneys until the Department
was dismissed and removed as conservator of the children. Both parents were
represented by court-appointed counsel for the duration of the Department’s suit. Once
the Department was dismissed, this case proceeded as a private termination suit based
on Intervenors’ pleadings, and the parents possessed no mandatory statutory right to
appointed counsel. See TEX. FAM. CODE ANN. § 107.016(2)(A); See In re J.C., 250 S.W.3d
486 (Tex. App.—Fort Worth 2008, pet. denied). The trial court’s dismissal of the parents’
court-appointed attorneys did not violate Texas Family Code Section 107.016.
Mother and Father both generally state, “Actions during this suit are in violation
of…The Texas Constitution,” and then reference the due process clause in the Texas
Constitution. See TEX. CONST. ART. I, § 19. Even though appointment of counsel for an
indigent parent in a private termination suit is not statutorily mandated, due process may
require it. See Lassiter v. Dept. of Social Svcs., 452 U.S. 18 (1981). However, the due process
clause does not require appointment of counsel in every parental termination proceeding,
and the decision of whether due process calls for appointment of counsel is best left to
the trial court. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet.
denied). Further, “even a complaint that a party's due process rights have been denied
must be preserved by a proper objection or request.” In re R.L.L., No. 04-18-00240-CV,
2018 WL 6069866, at *3 (Tex. App.—San Antonio Nov. 21, 2018, pet. denied) (mem. op.);
see TEX. R. APP. P. 33.1.
In the Interest of T.S., L.S., and D.S., Children Page 17
The record does not show that Mother or Father raised a due process complaint in
any pleading or at the trial on the merits. Additionally, Mother and Father each retained
counsel within a few weeks of the trial court dismissing their court-appointed attorneys.
The retained attorneys represented the parents for over one year before requesting to
withdraw. At the hearing on the motions to withdraw just a few weeks before trial, both
Mother and Father appeared and consented to their attorneys’ withdrawal from
representation. Neither Mother nor Father requested the court to appoint an attorney to
represent them at trial. Rather, both parents announced “ready” to proceed to trial pro
se and informed the court they would not be seeking a continuance of the jury trial
setting. To the extent that the parents may be attempting to raise a due process claim on
appeal regarding their lack of court-appointed representation in a private termination
suit, we find they waived the issue. Further, based on the circumstances of this case, we
conclude that the trial court did not abuse its discretion by refusing to appoint counsel
for the parents in the private termination suit. See TEX. FAM. CODE ANN. § 107.021.
Dismissal of Children’s Attorney Ad Litem
Mother does not claim that the trial court failed to make the necessary findings
under Texas Family Code Section 107.021; rather, Mother contends that the trial court
could not have properly found the children’s interests were adequately represented by
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any party to the suit because the parties were all “litigating their own personal interests.”8
By granting the trial court discretion in a private termination suit to determine whether
to appoint an attorney ad litem, the legislature implicitly decided that there are
circumstances in a private termination suit in which an attorney ad litem is not required
despite the adversarial nature of the proceedings. See Interest of T.M.R., No. 13-21-00144-
CV, 2021 WL 4998438, at *3-4 (Tex. App.—Corpus Christi 2021, no pet.) (mem. op.).
Whether a party has an interest in the ligation does not end the inquiry of whether the
trial court abused its discretion in failing to appoint an attorney ad litem for the children.
See In re B.W., No. 02-19-00009-CV, 2019 WL 2041808, at *7 (Tex. App.—Fort Worth May
9, 2019, no pet.) (mem. op.); In re C.A.P., No. 04-12-00553-CV, 2013 WL 749825, at *2 (Tex.
8 Although Mother listed the dismissal of the children’s court-appointed attorney ad litem as an issue
presented in her original brief, her argument addressed only the dismissal of the parents’ court-appointed
counsel. Mother briefly mentions the trial court’s failure to appoint an ad litem for the children in the
private termination suit in her reply brief.
The complaint that a party raises on appeal must match the complaint the party presented to the trial court.
In re J.C., 594 S.W.3d 466, 473 (Tex. App.—Fort Worth 2019, no pet.). We note that appellate courts have
reached different conclusions as to whether the failure to appoint an attorney ad litem for the children in a
private termination suit may be raised for the first time on appeal. Compare Interest of A.E.J., 05-20-00340-
CV, 2020 WL 5107293, at *11 (Tex. App.—Dallas Aug. 31, 2020, no pet.) (mem. op.) (concluding that failure
to raise a timely objection to the trial court’s refusal to appoint an attorney ad litem waives the issue for
appellate review and that enforcing our preservation rules in this circumstance does not violate due
process); with In re D.M.O., No. 04-17-00290-CV, 2018 WL 1402030, at *2 (Tex. App.—San Antonio Mar. 21,
2018, no pet.) (mem. op) (concluding that a complaining party may raise a trial court’s failure to appoint
an attorney ad litem in a private termination suit for the first time on appeal due to the serious nature of
parental termination proceedings); In re K.M.M., 326 S.W.3d 714, 715 (Tex. App.—Amarillo 2010, no pet.)
(same). Mother’s Motion to Retain Court-Appointed Counsel and the subsequent hearing on the motion
addressed only the proposed retention of her own court-appointed counsel after the Department’s
dismissal. Mother does not point us to, nor do we find, any evidence in the record that Mother objected to
the trial court’s decision not to appoint an attorney ad litem for the children in the private termination suit.
In the Interest of T.S., L.S., and D.S., Children Page 19
App.—San Antonio Feb. 27, 2013, pet. denied) (mem. op.); In re R.J.C., No. 04-09-00106-
CV, 2010 WL 816188, at *3 (Tex. App.—San Antonio Mar. 10, 2010, no pet.) (mem. op.).
Based upon our review of the record, we determine that there is some evidence of
substantive and probative character that indicates a party to the suit could adequately
represent the children’s interests and that their interests were not adverse to the
children’s interests. See Interest of T.M.R., No. 13-21-00144-CV, 2021 WL 4998438, at *4-5
(Tex. App.—Corpus Christi 2021, no pet.)(mem. op.).
The record reflects that Intervenors sought termination of the parents’ rights and
adoption of the children primarily because they believed these actions to be in the best
interest of the children. After T.S. and L.S. were returned to Mother’s care following the
2018 removal, Intervenors terminated their foster license. They reinstated their license
only after the Department requested they serve as the foster family again for T.S., L.S.,
and D.S. The foster father specifically noted his concern that Mother had completed all
of her services in the prior removal case, yet the children had to be returned to foster care
again due to neglect and exposure to illegal drugs. He emphasized the importance of
permanency for the children, said the children consider Intervenors’ home to be their
home, and testified that the children had not indicated that they wanted to live with their
parents. We find there was some evidence of substantive and probative character to
support the trial court’s decision in this case not to appoint an attorney ad litem for the
In the Interest of T.S., L.S., and D.S., Children Page 20
children after the Department was dismissed from the suit. See In re M.M.M., 307 S.W.3d
at 846, 852. Accordingly, we overrule Mother and Father’s third issue.
Insufficiency of the Evidence
In his second issue, Father contends that the predicate findings under subsections
161.001(b)(1)(D) and (b)(1)(E) of the Texas Family Code, as well as the best interest
finding, are not supported by legally and factually sufficient evidence. See TEX. FAM.
CODE ANN. §§ 161.001 (b)(1)(D), (b)(1)(E), (b)(2). We find that Father did not preserve
these complaints for appellate review. See Interest of L.P., No. 10-23-00147-CV, 2023 WL
6633015, at *1 (Tex. App.—Waco Oct. 12, 2023, no pet.) (mem. op.).
PRESERVATION OF LEGAL AND FACTUAL SUFFICIENCY COMPLAINTS IN JURY PROCEEDINGS
To preserve a complaint of legal sufficiency of the evidence for appellate review
in a jury trial, a parent must raise the legal sufficiency challenge with the trial court in
one of five ways: (1) move for an instructed verdict; (2) object to the submission of a jury
question; (3) move for a judgment notwithstanding the verdict; (4) move to disregard the
jury's answer to a vital fact question; or (5) move for a new trial. In re D.T., 625 S.W.3d
62, 75 n.8 (Tex. 2021) (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822
(Tex. 1985)). Furthermore, preservation of a factual-sufficiency challenge requires a
motion for new trial. Id.; TEX. R. CIV. P. 324(b)(2). In this case, Father failed to challenge
the legal sufficiency of the evidence by any of the means specified above and did not file
a motion for new trial to challenge the factual sufficiency of the evidence. As a result,
In the Interest of T.S., L.S., and D.S., Children Page 21
Father has failed to preserve his legal and factual sufficiency challenges for appeal. 9 See
Id. We overrule Father’s second issue.
Ineffective Assistance of Counsel of Attorney Ad Litem
In her second issue, Mother claims that the children’s court-appointed attorney ad
litem provided ineffective assistance of counsel to the children. Intervenors assert that
Mother lacks standing to make this complaint on appeal. We agree that Mother does not
have standing on appeal to complain on the children’s behalf about the performance of
the attorney ad litem. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.
1982) (“An appealing party may not complain of errors which do not injuriously affect
him or which merely affect the rights of others.”)(internal citations omitted).10 We
overrule Mother’s second issue.
9 We note that the Texas Supreme Court has held that due process demands that we review the evidence
supporting findings under Grounds D or E when they are challenged on appeal even if we were to find
that the evidence to support one of the other statutory grounds for termination was sufficient because
termination of parental rights under these grounds “may have implications for ... parental rights to other
children.” In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). Nevertheless, this ruling presupposes
that Father has preserved the legal and factual issues for appeal in the first instance. See Id. at 235 (“When
a parent has presented the issue on appeal, an appellate court that denies review of a section
161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only
chance for review of a finding that will be binding as to parental rights to other children.”). Thus, the ruling
in N.G. does not eliminate the long-established requirement of error preservation of legal and factual
sufficiency issues in parental-rights termination cases decided by a jury. In re S.C., No. 02-18-00422-CV,
2019 WL 2455612, at *4 n.2 (Tex. App.—Fort Worth June 13, 2019, pet. denied) (mem. op.).
10 Father briefly states that the attorney ad litem’s alleged failure to communicate with the parents
“restricted my abilities as a father to have my son…returned to me.” To the extent that Father intended to
claim ineffective assistance of counsel against the children’s attorney ad litem with this statement, we find
that he also does not have standing to complain of this alleged error on appeal. See Interest of L.P., No. 09-
19-00421-CV, 2020 WL 7062328 at *11 (Tex. App.—Beaumont Dec. 3, 2020, pet. denied) (mem. op.) (finding
that the parent did not have standing to complain about ineffective assistance of counsel when the
In the Interest of T.S., L.S., and D.S., Children Page 22
Conclusion
Having overruled all issues raised by Mother and Father, we affirm the judgment
of the trial court.11
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed March 21, 2024
[CV06]
complaint concerned the children’s attorney ad litem, with whom the parent did not have an attorney-
client relationship).
11 All pending motions are dismissed as moot.
In the Interest of T.S., L.S., and D.S., Children Page 23