in the Interest of G.S., a Child

Affirmed and Memorandum Opinion filed September 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00477-CV
IN THE INTEREST OF G.S., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2012-74334
MEMORANDUM OPINION
Appellant G.B.C. (the Father) appeals from the decree terminating his
parental rights to a daughter, G.S. (the Child). The Father brings four issues
arguing that (1) the trial court erred in denying his motion for new trial; (2) the
evidence is insufficient to support termination; (3) the Texas Department of Family
and Protective Services (the Department) failed to make reasonable efforts to
reunite him with the Child; and (4) the trial court erred in ordering reimbursement
for his court-appointed counsel’s fees. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 17, 2012, the Department received a referral alleging physical
abuse of the Child shortly after her birth. The referral alleged that at the time of the
Child’s birth, M.C.S. (the Mother) tested positive for amphetamines and
methamphetamines and the Child tested positive for amphetamines and
methadone. On December 19, 2012, the Department filed suit for protection of the
Child, naming the Father as the Child’s alleged father. The following day, the trial
court issued emergency temporary orders granting the Department temporary
managing conservatorship, and the Child was placed in foster care.
The record reflects that the Father was a party in a previous suit for
termination of the Mother’s child, A.D.S. (the Brother), who was born in 2008.
The Father was alleged to be the Brother’s biological father. The Brother was
placed in the Department’s custody after it was learned that the Mother drank
while pregnant and the Brother suffered from Fetal Alcohol Syndrome. In 2009,
both the Mother’s rights and any rights the Father had to the Brother were
terminated. The decree, which was admitted in evidence at trial in this proceeding,
recited that the Father was duly cited, but failed to appear or answer and his rights
were terminated pursuant to Family Code Section 161.002. See Tex. Fam. Code §
161.002.1 The Brother was placed in the care of his maternal grandmother (the
Grandmother), who later formally adopted him.
The trial court conducted an adversary hearing in the underlying proceeding
on January 3, 2013. The record reflects the Father was present at the hearing and
1
Section 161.002 provides:
(b) The rights of an alleged father may be terminated if:
(1) after being served with citation, he does not respond by timely filing an admission of
paternity or a counterclaim for paternity under Chapter 160.
Tex. Fam. Code § 161.002(b)(1). By filing an admission or counterclaim for paternity, the
alleged father is given the right to require the State to prove by clear and convincing evidence
that he engaged in one of the types of conduct listed in section 161.001(1) and that termination is
in the best interest of the child. See Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 25
S.W.3d 348, 357 (Tex. App.—Austin 2000, no pet.).
2
was personally served with process. The court signed an order finding, among
other matters, that the Father was not indigent. The court ordered the Father to
comply with each requirement set out in the Department’s service plan, which was
filed with the court February 4, 2013. The plan required the Father to submit to
DNA testing to confirm his parentage and to random drug testing. In addition, the
Father was ordered to pay child support, complete domestic violence, anger
management, and parenting classes, among other tasks.
On February 14, 2014, a status hearing was held. At that time, the Father
signed an affidavit of indigence, claiming he was paid $998 in his last paycheck,
he paid $700 per month in rent, he had $500 in his bank account, and he paid
$2,600 per month to an attorney. The parties agree that Susan Solis was appointed
as attorney ad litem to represent the Father at the conclusion of the hearing, but our
record does not contain a written order appointing her. On June 13, 2013, Solis
filed an answer on behalf of the Father denying the allegations in the Department’s
petition. The record reflects Solis appeared on behalf of the Father at the
permanency hearings held June 27, 2013 and October 3, 2013.
At the hearing held October 3, 2013, the Father acknowledged that he had
completed DNA testing that confirmed he is the Child’s biological father. The
Father also testified about completion of some of his required services and testified
he had been employed for three years. On cross-examination, the Father admitted
that he had been working as an engineer for the past three years, he made $70,000
per year, he had been living with his sister since January, he did not pay anything
for rent, and he had not paid any child support. At the conclusion of the hearing,
the court removed the Father’s appointed counsel and urged the Father to retain
counsel before the trial setting in December. There is no written order discharging
Solis.
At the same hearing, the trial court signed an order permitting the Child’s
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maternal grandparents (the Grandparents) to have unsupervised visits with the
Child. The Grandparents later filed a petition in intervention seeking
conservatorship of the Child.2
The court conducted a permanency hearing on December 12, 2013, when the
case was originally set for trial. The record reflects the Father appeared with
retained counsel, David Rushing. At the request of the Attorney Ad Litem for the
Child, the court granted an extension of the statutory dismissal date and reset trial
to January 23, 2014.
New counsel for the Father, Jerry Acosta, was granted leave to substitute for
Rushing on January 23, 2014, the first day of trial. Acosta then made an oral
request for a continuance, which was denied. Trial to the court briefly commenced.
Acosta was assisted during the trial by co-counsel, James Pons. Trial resumed
February 27 and 28, 2014, and concluded on March 6, 2014. The trial court signed
a final judgment on March 27, 2014, adjudicating the Father’s parentage,
terminating his parental rights to the Child, and appointing the Grandparents as the
Child’s sole managing conservators. The judgment recited the trial court’s findings
that parental termination is in the Child’s best interest and that the Father
committed acts establishing the predicate termination grounds set out in
subsections E, N, and O of Texas Family Code Section 161.001(1). Tex. Fam.
Code §§ 161.001(1)(E), (N) & (O); 161.001(2).3 The decree also recited that
appointment of a parent as conservator would not be in the Child’s best interest
because the appointment would significantly impair the Child’s physical health or
emotional development. See Tex. Fam. Code § 153.131. The trial court’s judgment
2
Another party who knew the Mother when she resided in California had intervened
earlier in the case, seeking conservatorship of the Child. This intervention was non-suited before
trial.
3
The Mother’s parental rights were also terminated, but she did not contest the
termination and has not appealed.
4
also recited that the Father is not indigent and ordered the Father to reimburse
Harris County for the appointed ad litem attorney’s fees in the amount of $2,750
and to pay $4,500 in attorney’s fees to the Grandparents’ attorney. The Father filed
a timely motion for new trial, which was denied after a hearing on May 6, 2014.
The Father also filed a timely notice of appeal.
II. ISSUES ON APPEAL
In his first issue, the Father claims the trial court should have granted him a
new trial because his appointed counsel was wrongfully released close to trial and
the court erred in denying his subsequent continuance requests. In his motion for
new trial, he alleged he was entitled to appointed counsel, his appointed counsel
was improperly released, and his appointed counsel provided ineffective assistance
of counsel, depriving him of a fair trial. In his second issue, the Father generally
challenges the legal and factual sufficiency of the evidence to support parental
termination. He specifically challenges both the predicate finding under Family
Code section 161.001(1)(N) and the trial court’s best interest finding. In the
Father’s third issue, he alleges that the Department failed to make reasonable
efforts to return the Child to him. In his fourth issue, the Father claims the trial
court erred in ordering him to reimburse the county for the fees owed to his court-
appointed attorney because he was entitled to appointed counsel.
If disposition of an issue would result in a rendition of judgment, an
appellate court should consider that issue before addressing any issues that would
only result in a remand for a new trial. See Natural Gas Pipeline Co. of Am. v.
Pool, 124 S.W.3d 188, 201 (Tex. 2003); see also In re K.W., 138 S.W.3d 420, 428
(Tex. App.—Fort Worth 2004, pet. denied) (applying this rule in a termination
appeal and first addressing legal sufficiency challenges). Accordingly, we will first
consider the Father’s challenges to the legal sufficiency of the evidence, followed
by a review for factual sufficiency.
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III. BURDEN OF PROOF AND STANDARD OF REVIEW
Due to the severity and permanency of the termination of parental rights, the
burden of proof at trial is heightened to the clear and convincing standard. See Tex.
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “Clear and
convincing evidence” means “the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Tex. Fam. Code § 101.007; accord In re
J.F.C., 96 S.W.3d at 264. While proof by clear and convincing evidence must be
more than merely the greater weight of the credible evidence, there is no
requirement that the evidence be unequivocal or undisputed. See R.H. v. Tex. Dep’t
of Family & Protective Servs., ____ S.W.3d ____, 2013 WL 1281775, at *5 (Tex.
App.—El Paso 2013, no pet.). This heightened burden of proof results in a
heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so, and we disregard all evidence
that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at
244; In re J.F.C., 96 S.W.3d at 266.
In our review of termination findings for factual sufficiency of the evidence,
we consider and weigh all of the evidence including disputed or conflicting
evidence. In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the
disputed evidence that a reasonable fact finder could not have credited in favor of
the finding is so significant that a fact finder could not reasonably have formed a
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firm belief or conviction, then the evidence is factually insufficient.” Id. We give
due deference to the fact finder’s findings and we cannot substitute our own
judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. Id. at 109. We are not to “second-guess the trial court’s
resolution of a factual dispute by relying on evidence that is either disputed, or that
the court could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003) (explaining that in a termination case, an appellate court should
not reweigh disputed evidence or evidence that depends on a witness’s credibility).
IV. ANALYSIS
A. Sufficiency of the Evidence to Support Termination
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
Fam. Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only
one predicate finding under section 161.001 is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
1. Predicate Termination Grounds under Section 161.001(1)
The trial court found three predicate grounds for termination: subsections E,
N, and O of section 161.001(1). See Tex. Fam. Code §§ 161.001(1)(E), (N) & (O).
On appeal, the Father raises a broad issue challenging the legal and factual
sufficiency of the evidence. He specifically asserts the Department failed to prove
termination was in the Child’s best interest, and that the record does not support
constructive abandonment, which is described in subsection N. The Father has not
specifically challenged the finding under subsection E, which provides a ground
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for termination when the parent engaged in conduct, or knowingly placed the child
with persons who engaged in conduct, that endangers the physical or emotional
well-being of the child. See Tex. Fam. Code § 161.001(1)(E). He also did not
specifically challenge the finding under subsection O, which provides a ground for
termination when the parent failed to comply with a court order establishing the
actions necessary for return of the child. See Tex. Fam. Code § 161.001(1)(O).
In his reply brief, the Father argues that we should construe his broad issue
to encompass a challenge to all the court’s termination findings. Rule 38.1(f) of the
Rules of Appellate Procedure states that courts will treat the statement of an issue
or point “as covering every subsidiary question that is fairly included.” Tex. R.
App. P. 38.1(f); see In re M.N., 262 S.W.3d 799, 801 (Tex. 2008) (construing
complaint that the intermediate court erred in holding mother waived her points for
appeal as a challenge to the holding that the trial court could not grant her motion
to extend time to file her statement of points on appeal); see also Fletcher v. Dep’t
of Family & Protective Servs., 277 S.W.3d 58, 63 (Tex. App.—Houston [1st Dist.]
2009, no pet.) (construing the father’s issue to include a challenge to predicate
findings not listed in statement of points).
A court may construe a broadly phrased issue that does not specifically
reference any of the trial court’s findings when it is clear from the substance of the
brief that the appellant is challenging the legal and factual sufficiency of the
evidence to support the trial court’s determination that the Department established
each of the predicate grounds for termination. In re A.W., 2-03-349-CV, 2004 WL
1799893 (Tex. App.—Fort Worth Aug. 12, 2004, no pet.) (mem. op.); see also
Zagorski v. Zagorski, 116 S.W.3d 309, 315 n. 2 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (rejecting contention that appellant waived her appellate
complaint due to the failure of her points to expressly challenge specific findings
of fact or conclusions of law because her argument addressed the findings and
8
conclusions).
Rule 38.1(i) of the Texas Rules of Appellate Procedure provides that a brief
must contain clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(i). It is
well-established that failure to cite authority or provide substantive analysis waives
an issue on appeal. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex.
1997); King v. Tex. Dep’t of Protective & Regulatory Serv., No. 08-03-00100-CV,
2004 WL 1505703, at *5 (Tex. App.—El Paso July 2, 2004, no pet.) (mem. op.).
In this case, we may not construe the Father’s broadly worded issue to
encompass a challenge to all of the trial court’s termination findings because the
Father made no argument or analysis and cited no authority relevant to the findings
under sections E and O. With regard to section O, the Father did not dispute that he
did not complete individual therapy required under his service plan, but instead
offered an excuse for his non-compliance by blaming the Department for the delay
in setting up appointments for his required services. He also did not dispute he
failed to pay child support as ordered. The Father testified he did not believe he
should have to pay child support, even though he had been determined to be the
Child’s father. The Father also acknowledged that he had moved into his own
apartment shortly before trial, much less time than required by the Department to
establish and maintain stable housing for six months.
To succeed on appeal from a termination decree, an appellant must establish
that the findings on all of the termination grounds found by the trial court are
unsupported by the evidence. In re A.V., 113 S.W.3d at 361 (holding that father’s
failure to challenge sufficiency of evidence to support finding under one subsection
of section 161.001(1) made it unnecessary to address father’s challenges to other
grounds for termination); see also In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—
Fort 2003, pet. denied) (holding that because the jury found four grounds for
9
termination under section 161.001(1) and the father challenged only three of those
grounds, appellate court was not required to address his argument that the evidence
was insufficient on the three challenged grounds). In Fletcher, despite recognizing
that issues may be construed broadly, the court ultimately determined it could not
address father’s issue because he had not properly challenged all predicate
grounds. Fletcher, 277 S.W.3d at 63.
Unchallenged findings of fact are binding unless the contrary is established
as a matter of law or there is no evidence to support the finding. See In re E.C.R.,
402 S.W.3d 239, 249 (Tex. 2013) (holding parental conduct under subsection O
was conclusively established where the parent did not dispute she failed to comply
with numerous provisions in court orders specifying compliance was necessary to
avoid termination). The record contains evidence supporting subsection O.
Therefore, the trial court’s finding that appellant failed to comply with subsection
O is binding.
The only specific challenge the Father has raised is to an element of section
161.001(1)(N), which provides that a person’s parental rights may be terminated if
he:
(N) constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of
Protective and Regulatory Services or an authorized agency for not
less than six months, and:
(i) the department or authorized agency has made reasonable efforts to
return the child to the parent;
(ii) the parent has not regularly visited or maintained significant
contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with
a safe environment.
Tex. Fam. Code § 161.001(1)(N). In his third issue, the Father alleged the
Department failed to make reasonable efforts to return the Child to him. Because
10
the Father raised this specific challenge in his third issue, we will address it in the
interest of justice.
A family service plan is designed to reunify a parent with a child who has
been removed by the Department. Liu v. Dep’t of Family & Protective Servs., 273
S.W.3d 785, 795 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Implementation
of a family service plan by the Department is ordinarily considered a reasonable
effort to return a child to its parent. In re N.R.T., 338 S.W.3d 667, 674 (Tex.
App.—Amarillo 2011, no pet.); see also In re M.R.J.M., 280 S.W.3d 494, 505
(Tex. App.—Fort Worth 2009, no pet.) (holding that the State made reasonable
efforts to return the child to the parent under section 161.001(1)(N) when it
prepared several service plans for the parent and made special arrangements for
him to attend parenting classes near his home and to transport him to his
psychological assessment); In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort
Worth 2002, no pet.) (holding the State showed that it made reasonable efforts to
return the child to the parent when it prepared service plans and made efforts to
work with the parent on the service plans).
On February 4, 2013, the Department filed its family service plan for the
Father with the court. See Tex. Fam. Code. § 263.101 (requiring the Department to
file a service plan within 45 days after the trial court appoints the Department as
the temporary managing conservator). The Department also filed a status report
with the court confirming the Father had received and signed his family service
plan. A copy of the plan bearing the Father’s signature was admitted in evidence at
trial. The Father’s service plan detailed the actions the Father was required to
complete in order to be reunited with the Child, and it included contact information
to schedule appointments for evaluations and classes. In addition, the trial court
signed a permanency order after the status hearing adopting the service plan
requirements.
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Specifically, to be reunited with the Child, the Father was required to:
participate and successfully complete domestic violence classes and
will be able to discuss learned behaviors with the caseworker. The
Father] may contact [Battering Intervention and Prevention Program]
BIPP Client Registrar at 713-224-9911 for an appointment. The fees
for these services will be paid by [the Father].
successfully participate and complete anger management classes. [The
Father] will provide a certificate of completion to the caseworker no
later than 30 days from the last class. [The Father] will be able to
demonstrate learned behaviors through actions and or discussions with
the caseworker. [The Father] may contact the United Way at 713-957-
4357 for providers in their area. [The Father] may also contact Center
Point Counseling Services at 713-528-7007, Counsel of Alcohol and
Drug Abuse at 713-942-4100 extension 113, Wholistic Counseling
Services at 281-403-0838 . . . .
participate in DNA testing to determine if he is the father to the
child/children. This testing may be done by National Screening or by
the Attorney General. The parent will be notified as to the location for
the testing by the court or caseworker.
provide child support while [his] child is in the care of the agency.
This child support is to be determined by the court based on minimum
wage. This support is to continue while the case is ongoing. Child
support may also include the purchase of new clothes, shoes, gifts for
the child.
acquire and maintain a working telephone whether it is a residence or
cell in order for the caseworker and or service providers to be able to
make contact with him. [The Father] will provide the caseworker with
updated numbers at all times.
acquire and maintain housing that is stable for more than 6 months.
This housing is to be safe, clean and free of hazards to ensure the
child’s well-being. All the utilities in the home such as electricity,
water, and gas must be operational and he must apply basic
homemaking skills in his daily chores such as sweeping, dusting,
mopping, washing dishes and doing laundry. [The Father] is to
provide a copy of the lease agreement or mortgage in his name to the
caseworker 10 days after signing this Family Plan of Service.
Caseworker will make unannounced home visits to his residence to
document progress in this area. [The Father] is to contact the
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caseworker by phone or in person within five days of changing
residents and provide the change in address.
maintain contact with [the Child] during one hour visits, two times a
month at the CPS [Children’s Protective Services] office located at
9333 Bryant St Houston, TX 77075; these visits will be scheduled
when the parent makes contact with the agency to set up his visits.
[The Father] must be on time for each visit. If [the Father] is late 15
minutes or more the visit will be canceled. [The Father] must notify
the caseworker 24 hours in advance if not able to make the visit.
Canceled visits by [the Father] will not be re-scheduled. Visits will be
re-scheduled if [the Child] is sick or have appointments to attend.
[The Father] may bring nutritious snacks to the visit.
attend all court hearings, permanency conference meetings and family
visits. [The Father] will be responsible for his own transportation to
all appointments. [The Father] will maintain contact with [his]
caseworker at 9333 Bryant Street Houston, TX 7705 via telephone or
in person at least once a week.
participate in parenting classes in person and may not participate via
the Internet. [The Father] will attend, participate in, and successfully
complete parenting classes and provide the caseworker with a
certificate of completion no more than 30 days after the last class date.
[The Father] must be able to demonstrate learned behaviors during
family visits with [the Child] and through discussions with the
caseworker. [The Father] will be responsible for contacting one of the
providers listed below. [The Father] must pay any and all fees
associated with the parenting classes. DFPS will not pay for these
classes. [The Father] must complete the classes within four months of
signing the [Family Plan of Service].
submit to random urinalysis drug testing and must test negative at all
times. [The Father] will be contacted by the caseworker the morning
the UA is to be taken. [The Father] will have until 3 PM of that day to
submit to the drug testing. A no show will be taken as a positive drug
test. This service will be funded by CPS. Should [the Father] fail to
present [himself] for 2 scheduled appointments, [the Father] will be
responsible for any fees associated with this service.
participate fully in a drug and alcohol assessment administered by
Kinghaven Counseling Group located at 9100 Southwest Freeway
Houston, TX (713-457-4372), Turning Point located at 10175 Harwin
Dr. Houston, TX (713-773-3280). [The Father] will follow all the
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recommendations including inpatient and or outpatient drug treatment,
individual, group and or family therapy, and or random urine analysis.
[The Father] will be contacted by the services provider to schedule the
appointment. If after 2 weeks from the date the referral was submitted
and the provider has not contacted [the Father] then [the Father]
should contact the provider to schedule the appointment. The
evaluation is to be completed by 02/28/2013.
participate fully in a psycho-social assessment to address his
emotional or mental needs. The assessment may be administered by
Newsom Psychological located at 2626 South Loop West, Suite #181,
Houston TX (855-640-1700). [The Father] will be contacted by the
service provider to schedule the appointment. If after 2 weeks from
the date the referral was submitted the provider has not contacted [the
Father], he should contact the provider to schedule the appointment.
The fee associated with this service will be paid for by the agency. If
[the Father] misses two (2) scheduled appointments, he will then be
responsible for any fees associated with this service. The evaluation is
to be completed by 02/28/2013. [The Father] will follow all
recommendations from the evaluation that may include a
psychological and or psychiatric evaluation, individual therapy,
family therapy, and or group therapy.
The Department filed a progress report with the court on May 7, 2013. The
report does not reflect that the Father had completed any of the required tasks, and
it repeated the above list of required tasks. The deadline for completing the
required evaluations was extended to July 1, 2013. On June 23, 2013, the trial
court conducted a permanency hearing. In the order signed June 27, 2013, the court
again expressly approved and adopted the service plan as set out in the permanency
progress report, specifying the actions the Father must perform to regain custody of
the Child. On September 11, 2013, the Department filed another progress report,
which again did not reflect the Father had completed any of the required tasks. The
Department’s next progress report was filed November 7, 2013, and the report
again provided notice that the Father had not completed his service requirements.
On appeal, the Father complains that the record does not show that the
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Department’s caseworker went over the service plan with him, pointing out that the
caseworker signed the plan before the date of the Father’s signature. The record
does not show that the Father made this complaint in the court below, and he has
waived it. See Tex. R. App. P. 33.1(a). Moreover, the record does not support this
contention. Not only does the record reflect the Father signed the plan, it appears
that the caseworker discussed aspects of the plan with the Father based on the
recitations in the plan. The plan recited that the Father “hopes to have [the Child]
placed back under his care and raise her. [The Father] wishes the best for her, and
to provide her with the best support so that she can become whatever she wants to
be later in life. [The Father] also said that he wishes that she grows up being a
positive person in life.” In his trial testimony, the Father acknowledged that he had
contact with the Department caseworker when he signed his service plan.
The Father also asserts that the Department’s delay in scheduling his
services resulted in his inability to complete the required individual therapy before
trial. The record reflects caseworker Dana Lora Charles provided the Father the
information to schedule his psychosocial evaluation in October of 2013. After first
completing a questionnaire, the Father submitted it to the counselor a few weeks
later and met with the counselor on November 13, 2013. The counselor’s report,
which recommended additional individual therapy, was filed December 11, 2013,
the day before the first trial setting. The Father complains on appeal that the
previous caseworker, Daisy Cantu, did not schedule his appointments or return his
calls. The Father acknowledged at trial that at some point after he signed his
service plan, he lost contact with Cantu. He admitted that he was not “working” on
his services during that time. He stated Cantu did not set up these services, but he
did not ask her to. The Father agreed that after Cantu was replaced by Charles as
caseworker, Charles returned his calls, helped him set up visitation with the Child,
and gave him a phone number to set up his psychosocial evaluation.
15
The Father’s service plan provided detailed contact information to arrange
for completion of the required services. The Father acknowledged he did not alert
the trial court that he was unable to schedule these services without the
Department’s assistance. The Father signed his service plan on February 5, 2013,
and trial did not commence until January 23, 2014. The record clearly
demonstrates the Father had almost a full year to complete his required services,
and he did not start the process until close to trial. Cf. In re A.Q.W., 395 S.W.3d
285, 288 (Tex. App.—San Antonio 2013, no pet.) (holding the evidence was
insufficient to support a finding the Department made reasonable efforts to return
child to father where he received Department’s service plan 34 days before the
termination hearing and father did not have a reasonable opportunity to complete
any requirements of the service plan due to his incarceration).
The Father cites In re K.G., 350 S.W.3d 338 (Tex. App.—Fort Worth 2011,
pet. denied). In K.G., the court held the evidence was legally and factually
sufficient to establish that the Department made reasonable efforts to return the
child to the mother, as required for termination of the mother’s parental rights
based on constructive abandonment. Id. at 354. The caseworker testified that she
had tried to facilitate reunification by providing services to the mother,
encouraging the mother to seek help for her mental health problems, and making
efforts to ensure that the mother and child had good visits. Id. This case likewise
has evidence that caseworker Charles assisted the Father by arranging for his
services and arranging visits with the Child. Although the Father alleged at trial
that his first caseworker did not return his calls, the record contains no evidence the
Father brought any complaints before trial about the lack of assistance from his
previous caseworker. In addition, when the service plan was first implemented in
February of 2013, the Department provided very detailed information in the
service plan to facilitate the Father’s ability to complete his services. The record
16
demonstrated that the Father was intelligent and well-educated. The factfinder
could reasonably have determined the Father had the ability to schedule services,
even without additional assistance from a caseworker.
Reviewing all the evidence in the light most favorable to the termination
findings under subsection N, we conclude that a reasonable fact finder could have
formed a firm belief or conviction as to the truth of the finding that the Department
made reasonable efforts to return the Child to him. See In re M.R.J.M., 280 S.W.3d
at 505. In light of the entire record, the disputed evidence that a reasonable fact
finder could not have credited in favor of the termination finding that the
Department made reasonable efforts to return the Child is not so significant that a
fact finder could not reasonably have formed a firm belief or conviction as to the
truth of this termination finding. See In re H.R.M., 209 S.W.3d at 108. We overrule
the Father’s third issue.
2. Best Interest under Section 161.001(2)
There is a strong presumption that the best interest of a child is served by
keeping the child with his or her natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a).
The following factors, among others, should be considered in evaluating the
parent’s willingness and ability to provide the child with a safe environment: the
child’s age and physical and mental vulnerabilities; the willingness and ability of
the child’s family to seek out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency’s close supervision; the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; and whether the child’s
17
family demonstrates adequate parenting skills, including providing the child with
minimally adequate health and nutritional care, a safe physical home environment,
and an understanding of the child’s needs and capabilities. Tex. Fam. Code §
263.307(b); R.R., 209 S.W.3d at 116.
In addition, courts may consider other nonexclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding, a court examines
several factors, including (1) the desires of the child, (2) the present and future
physical and emotional needs of the child, (3) the present and future emotional and
physical danger to the child, (4) the parental abilities of the persons seeking
custody, (5) the programs available to assist those persons seeking custody in
promoting the best interest of the child, (6) the plans for the child by the
individuals or agency seeking custody, (7) the stability of the home or proposed
placement, (8) acts or omissions of the parent which may indicate the existing
parent-child relationship is not appropriate, and (9) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not
exhaustive, and evidence is not required on all of the factors to support a finding
terminating a parent’s rights. Id.; In re D.R.A., 374 S.W.3d at 533.
a. The Child’s Needs and Desires
The Child was only slightly over one year old when trial began. Because of
her young age, the Child was completely dependent on her caregiver. The Father
acknowledged that he has not paid child support during the pendency of these
proceedings. There was evidence that the Father provided some support for the
Child by bringing formula, diapers, and wipes to one visit.
The Child was also unable to communicate her desires because of her young
age. When children are too young to articulate their wishes, courts may consider
their bond with the parents and foster parents. See E.F. v. Tex. Dep’t Family &
18
Protective Servs., No. 03-11-00325-CV, 2011 WL 6938496, at *3 (Tex. App.—
Austin Dec. 30, 2011, no pet.) (mem. op.).
The Grandmother testified that the Child has bonded with the foster parents.
The record reflects the Father had not bonded with the Child. The Father testified
about his visits with the Child, acknowledging that he was “required to visit two
hours within a month” and he had “been doing what they required.” He testified he
had been visiting the Child “since the beginning” of these proceedings, but then
acknowledged the Child, who was taken into the Department’s custody a few days
after her birth, was “a few months old” when he first visited her. The Father almost
never identified the Child by her name, but instead referred to her as “the kid.”
Caseworker Charles testified that the Father had a total of four or five visits with
the Child during the over one-year period that she was in the Department’s care,
and only two of those visits were before trial. She testified that she observed the
Father’s visits with the Child. At the first visit, the child tried to walk away from
the Father. She described the Child as “fussy” and “crying reaching out for [her] to
take her away” for the first ten to fifteen minutes of each visit. She acknowledged
on cross-examination that the Child later played with the Father. Charles testified
that the Father did not comply with the foster parent’s written request that he feed
the Child during one two-hour visit. At the Father’s most recent visit during trial,
the Child was fussy and cried for an hour and a half, and the Father then fed her.
She testified to her belief that the Child does not know the Father. Charles also
testified she found it odd that the Father wore glasses with dark lenses during his
visits. The Father later explained that he wore the glasses because he had an
unspecified medical condition. The Father testified that he had inquired about what
size clothing the Child wore, but he did not ask how much she weighed. He
explained that the diapers he purchased for her that were the incorrect size were
based on her age, according to the package. He acknowledged he does not know
19
what the Child eats on a daily basis and has not asked.
This evidence showing the Child has not bonded with the Father supports
the court’s best-interest finding.
b. Endangerment, Including Criminal History and Drug Use
The unchallenged predicate findings under section 161.001(1)(E),
endangering conduct, are binding and may be considered as evidence related to the
court’s best interest finding. See In re K.L.G., No. 14-09-00403-CV, 2009 WL
3295018, at *2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (mem. op.)
(because the predicate and best interest findings were not challenged, they were
binding on the appellate court); see also In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)
(holding that the same evidence may be probative of both section 161.001(1)
predicate grounds and best interest).
Not only is the finding that the Father engaged in endangering conduct or
knowingly left the Child with persons who engaged in endangering conduct
unchallenged, the record contains ample evidence of this ground that the trial court
could reasonably have considered in making its best interest determination. The
Father’s criminal records were admitted at trial, and these included several violent
offenses. See Tex. Dep’t Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)
(holding that a parent’s repeated criminal acts may constitute sufficient evidence of
conduct that endangers the well-being of a child); In re D.J.H., 381 S.W.3d 606,
613 (Tex. App.—San Antonio 2012, no pet.) (recognizing that a fact-finder may
infer from past endangering conduct that similar conduct will recur if the child is
returned to the parent).
In 1997, the Father pled no contest to a misdemeanor assault charge alleging
domestic violence, and he was placed on deferred adjudication probation. The
victim of this offense was not identified, but it was not asserted that the assault was
20
against the Mother. One of the terms of the Father’s probation required that he
attend anger management classes.
On May 20, 2007, the Father was convicted of misdemeanor assault against
the Mother, and he was again placed on deferred adjudication probation. The
Father was charged a second time with assaulting the Mother in November 2007,
and the record contains an order prohibiting him from having any contact with the
Mother as a condition of his bail. The plea documents in the record show the
Father pled guilty to assaulting the Mother by choking her until she lost
consciousness and punching her in the head several times. The record reflects that
the Mother gave birth to the Brother about four months after the assault. On
February 1, 2010, the Father was sentenced to 180 days in jail for the November
2007 assault. As part of his plea bargain, the State agreed to reduce the charge
from a third degree felony to a Class A misdemeanor, and it abandoned the
enhancement.
On April 11, 2012, the Father was charged as a second offender with
assaulting the Mother. The Mother’s complaint stated the Father grabbed her face
so hard that it caused her to bite her tongue and he struck her in the head with his
fist with such force that it left a bruise on the right side of her forehead. The Father
introduced in evidence an order signed August 29, 2013, dismissing the 2012 case
with a notation that the Father had “completed BIPP,” which is the Battering
Intervention and Prevention Program.
The Grandmother also testified about acts of violence that the Father
committed against her daughter. She first observed the Mother with bruises and a
black eye in 2007. The Mother indicated to her that the Father caused the injuries.
Later in 2007, when the Mother was pregnant with the Brother, the Mother was
hospitalized when her intestines ruptured. The Grandmother testified her daughter
told her the Father sexually assaulted her with an object, causing the injuries.
21
When questioned about this incident at trial, the Father invoked his Fifth
Amendment right not to answer.4 The Grandmother also observed bruising on the
Mother’s neck and a cut across her face that her daughter told her had been caused
by the Father. In addition, the Grandmother testified to her daughter’s head injury
from a vehicle accident, which she claimed was caused when the Father tried to
run the Mother off the road. Caseworker Charles testified the Mother told her she
did not want the Child to be with the Father because of all the physical violence in
the parents’ relationship. Despite this evidence, the Father denied he “beat” the
Mother.
The Grandmother testified her daughter suffered from depression and was
bipolar. She was aware that the Mother drank heavily. The Grandmother also
described her daughter’s drug use, stating the Mother used methamphetamines and
party drugs. The Grandmother believed her daughter had been a chronic drug user
since 2006.
The Father denied knowing the Mother used drugs or that she was described
as a “chronic” drug user. Although the Father denied recreational drug use, the
Grandmother testified that her daughter told her she often did drugs with the
Father, including when she was pregnant with the Child. The Father later
acknowledged that he knew the Mother used drugs and he knew drug use during
pregnancy endangers a child. The record contains the Father’s drug test report
dated January 15, 2014, which was negative for ingestion of narcotics during the
previous ninety days. The Father testified that he had completed a “drug
assessment” as part of his services, and the drug counselor told him she would
notify the caseworker. He stated it was his understanding that the counselor would
4
In a civil case, the factfinder may draw an adverse inference with respect to a party’s
claim of the privilege against self-incrimination. See Tex. R. Evid. 513(c); Wil-Roye Inv. Co. II v.
Washington Mut. Bank, FA, 142 S.W.3d 393, 404 (Tex. App.—El Paso 2004, no pet.).
22
advise the caseworker whether or not it would be necessary for him to take a drug
test. The Father later acknowledged that he was aware the court had ordered a drug
test on the first court date, and he did not submit to testing at that time. He
explained that he had only a half day off from work that day and it was too late for
him to stay and undergo testing.
The Father’s repeated acts of violence, primarily against the Child’s Mother,
support a finding that termination of the Father’s parental rights is in the best
interest of the Child. The trial court reasonably could have considered that the
Father’s repeated acts of violence would continue in the future. See Walker v. Tex.
Dep’t Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). Caseworker Charles also testified that the Father had not
demonstrated an ability to be protective of the Child.
In addition, the evidence that the Father joined the Mother in her drug use,
even while she was pregnant, supports a finding that termination is in the Child’s
best interest. A parent’s drug use supports a finding that termination is in the best
interest of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.). Parental drug use during pregnancy weighs against the parent in the
best interests analysis. Robinson v. Tex. Dep’t of Protective & Regulatory Servs.,
89 S.W.3d 679, 688 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The Father
acknowledged he was aware the Mother used drugs during her pregnancy and he
took no steps to protect the unborn child. The factfinder can give “great weight” to
the “significant factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927
(Tex. App.—Dallas 2007, no pet.).
c. Failure to Comply with Service Plan and Reasons for the Failure
As noted above, the Father has not challenged the finding that he failed to
comply with his service plan, and that finding is binding. See In re K.L.G., No. 14-
23
09-00403-CV, 2009 WL 3295018, at *2. The failure to comply with a service plan
can support the trial court’s best-interest finding. In re E.C.R., 402 S.W.3d at 249.
In connection with this factor, we also may consider the Father’s willingness and
ability to seek out, accept, and complete counseling services and to effect positive
changes. See Tex. Fam. Code § 263.307(b).
We first consider the report of the Father’s psychosocial assessment that was
admitted in evidence. The Father did not submit to the assessment until the case
had been on file for almost a year. Before attending the session with the counselor,
Thomas Whitehead, the Father completed a questionnaire, and he acknowledged
he did not return the questionnaire for several weeks. In response to a question
about how he became involved with Children’s Protective Services (CPS), the
Father answered with question marks, suggesting he had no idea. In his report,
Whitehead noted that the Father “appeared to be minimizing his role in the CPS
case” and “playing dumb.” The Father answered all questions about his parenting
“in an unrealistically positive manner,” presenting himself as the “perfect” parent.
The evaluator assessed that the Father had a pattern of “talking the talk,” without
necessarily “walking the walk.” Whitehead opined that the Father “may tend to
focus on appearances more than consistently following through with
requirements.”
The Father acknowledged in his psychosocial evaluation that he had a
conviction for assault. The Father denied to the counselor that he knew the Mother
used drugs, and stated he first learned about her drug use when the Child was born
and both the Mother and Child tested positive for drugs. He claimed that he did not
know until the Child’s birth that the Mother had also tested positive when the
Brother was born. Contradicting his previous denial of knowledge of the Mother’s
drug use, he explained the assault conviction by stating that his “girlfriend is
histrionic, and she was doing drugs.” When questioned about whether he had been
24
incarcerated, he acknowledged he was in jail for about five months for a domestic
violence conviction. The Father explained that he did not hit the Mother and the
case was based on false allegations. He did not admit that there had been a series of
convictions.
Whitehead, the counselor, recommended the following for the Father:
“referral to a domestic violence class, cautions concerning possible manipulation,
and referral for goal directed individual counseling.” It is undisputed the Father did
not complete individual counseling as recommended in his psychosocial
evaluation. Caseworker Charles testified on December 12, 2013, that the Father
had that day provided her documents to show completion of services, with the
exception of his individual therapy. She had not been able to verify completion of
the required services with the providers, however. At trial, Charles confirmed that
the Father provided documentation that he had completed the domestic violence
program, BIPP, and an anger management class. She also confirmed he had
completed a parenting class and a drug assessment. Charles was unable to confirm
the Father’s housing situation because the phone number on the copy of the
apartment lease that the Father provided was incorrect. The Father also admitted he
had not supported the Child during the pendency of this case other than to provide
formula, diapers, and wipes at one of his visits. The Father admitted he had spent
over $30,000 in attorney’s fees in criminal cases.
The Father primarily exercised his visitation rights when the trial date was
near. Caseworker Charles testified that before the trial commenced, the Father had
only two visits with the Child, and he did not request a visit until she had been on
the case for three months, which was in November of 2013. She stated there was
no evidence in her records that the Father had been prevented from seeing the
Child. The Father argued that his failure to make regular visits and maintain
significant contacts with the Child was the Department’s fault for failing to
25
schedule the visits. The Father’s service plan expressly provided, however, that his
visits with the Child were to “be scheduled when the parent makes contact with the
agency to set up his visits.”
The Father blamed his early failure to visit the Child and late compliance
with his service plan on the first caseworker, Cantu, who is no longer employed by
the Department. He complained that she did not return his calls and did not make
arrangements for his classes, evaluations, or visits. He acknowledged that he never
brought up the caseworker’s alleged non-responsiveness at hearings in January,
February, or June, before a new caseworker was assigned in August 2013. He
asserted his appointed counsel brought the matter up once, but he did not know the
date. The Father had no complaints about the new caseworker, Charles. Charles
explained that she attempted to contact the Father to assist him in completing his
services in August when she was first assigned the case. The phone number for the
Father in the Department’s system was not his current number and she did not
obtain the correct number until October. The Father’s service plan required him to
“provide the caseworker with updated numbers at all times.”
The Father did not present any evidence to demonstrate he had learned from
his services how to control his violent behavior. The Father attended the Batterers
Intervention Prevention Program (BIPP) once a week for eighteen weeks. When
asked the reason, he stated, “because it was part of my Service Plan.” He later
acknowledged his attendance at BIPP was also a requirement imposed by the
criminal court. However, despite the eighteen-week class, the Father could not
articulate any behavior, character trait, or pattern that led him to violent behavior.
When asked what his triggers were that led to domestic violence, the Father made
reference to his “emotions” without further explanation. When asked to explain, he
answered, “Well if we were talking — if we were referencing the will then it’s the
same people react to emotions. So it will be no different from anybody reacting to
26
certain emotions like if you are happy you smile. You giggle or laugh. Those kind
of triggers.” Further inquiry produced no clarification.
The Father testified he attended a domestic violence class both because of
the recent assault charge and also because of his service plan. He also testified he
completed a parenting class. The Father’s partial, or even substantial, compliance
with service requirements set out in a court order is not enough to avoid a
termination finding. See In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.—
Houston [14th Dist.] 2010, pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). In sum, the factfinder could have
reasonably determined the evidence supports a finding that the Father was not
willing to seek out, accept, and complete counseling services and to effect positive
changes to his behavior, and that termination is in the Child’s best interest.
d. Parenting Abilities, including Other Children
The record demonstrated that the Father was intelligent. Whitehead, the
counselor, noted that the Father’s strengths were his above-average intelligence,
stable employment, and his stated desire to fulfill his parental obligations to the
Child. The Father stated in his evaluation that he has a bachelor’s degree in
mechanical engineering. He stated he had been employed full time as an engineer
by the same company for about three years. Whitehead acknowledged that the
Father was more intelligent than many of the parents he evaluates for CPS, and he
appeared to know more about parenting than the average CPS client.
The Father never made an effort to learn about his Child’s diet and feeding
regimen and he did not learn her diaper size until trial. There was no evidence of
his ability to care for the Child. Caseworker Charles testified the Father had not
demonstrated an ability to properly parent the Child.
The Father’s rights to the Mother’s five-year old son, the Brother, were
27
terminated. He acknowledged he had received the termination documents, but he
did not appear at the termination proceedings or otherwise contest the termination.
He later admitted he did not read the documents. The Father claimed at trial that he
sought to have DNA testing done to confirm his parentage to the Brother, but the
Grandparents never responded to his request. The Grandmother denied that the
Father ever asked to have DNA testing done. The Father acknowledged he never
provided any support for the Brother. The record showed the Father assaulted the
Mother when she was pregnant with the Brother. When asked why he never helped
the Grandparents with the Brother, he replied, “I haven’t had a DNA test of my
five-year-old child.” The Father admitted in his interview with the counselor that
he is the father of the Mother’s five-year old son. He told the counselor the Brother
lived with his grandparents and denied that there was a previous CPS case. He also
acknowledged his parentage of the Brother several times during these termination
proceedings. The Father had not seen the Brother since “early going of the kid.”
He did not know the Grandparents had raised the Brother since shortly after his
birth or that the Brother and the Child had a relationship.
The Grandmother testified that she and her husband contacted CPS about the
Mother’s neglect of the Brother, leading to the termination proceedings. The
Grandmother had raised the Brother since shortly after his birth. She rushed to the
hospital after the Child was born and the Mother notified her CPS planned to take
custody. She testified none of the Father’s family came forward seeking to care for
the Child. The Grandmother had attended every hearing in this case.
The Grandmother also testified that the Mother again became pregnant after
the Brother’s birth, and the Father asked her to terminate that pregnancy. The
Mother was pregnant again during these proceedings, and the Father acknowledged
that it was possible he was the biological father of the unborn child. He expressed
little interest, but stated he would pursue custody “after the DNA test.”
28
e. Plans for the Child and Support Systems
The Father described few definite plans or preparations for taking custody of
the Child. The Father had not shown the Department that any family support was
available to him until the trial, and the Department had not had an opportunity to
interact with the Father’s family. Even during trial, when asked about his support
system, the Father answered, “there’s no need I can — I got the means to do it on
my own.” The Father then testified that if the need arose, his two sisters would
help him if he were awarded custody of the Child. One sister had two children, and
the Father testified that if he were granted custody he would get advice from that
sister, and she could take care of the Child while he was at work. He testified that
he had a car seat for the Child. The Father also testified that he had his own two-
bedroom apartment and could get a crib and other items for the Child from his
sister.
His other sister (the Aunt) lived with his parents and cared for his disabled
mother. She had no children. She had no contact with the Child or the Brother.
There was evidence the Aunt also has violent tendencies. On April 10, 2013, police
responded to a family violence report at the Father’s family residence. 5 The
Father’s mother told police that her daughter, the Aunt, hit her with a metal pipe on
the left side of her body and she was afraid of further attacks. The officer observed
bruising, and filed a charge of assault on a family member against the Aunt. The
assault charge against the Aunt was later dismissed. At trial, the Aunt denied the
assault. The Father claimed that he was not aware of the assault. He acknowledged,
however, that he knew there had been a criminal case.
The Grandmother testified at the December hearing that she was entering the
5
At trial, the Father testified that he lived with his mother, father and sister. He then said
he moved out of that home in November of 2013. He later acknowledged that the house was
jointly held in his and his parents’ names.
29
case to ensure the Child has a safe environment. Her goal in intervening in the case
was to prevent the Father from obtaining custody. She testified that after the
previous termination proceeding, she adopted the Brother, who was born to her
daughter and the Father. The Grandmother testified that in her opinion both
parents’ rights to the Child should be terminated.
The Grandmother reported that the Child’s foster parents were very
supportive of her and her husband’s efforts to establish a relationship with the
Child. They have met many times at each other’s homes. The Grandparents and the
foster parents believe it is important for the Child to have a relationship with her
Brother. If the foster parents were not granted custody of the Child, the
Grandmother and her husband requested custody. She testified she would maintain
a relationship with the caregivers, and that the Child would be able to continue her
relationship with her Brother.
In sum, the record contains sufficient evidence to support the best interest
finding based on the Father’s criminal history of domestic violence, his failure to
fully comply with the court-ordered services for reunification, his continued
relationship with the drug-using Mother, his limited interactions with the Child,
and his failure to support her or bond with her. Viewing all the evidence in the
light most favorable to the judgment, we conclude that a fact finder could have
formed a firm belief or conviction that termination of the Father’s parental rights is
in the Child’s best interest. See J.F.C., 96 S.W.3d at 265–66. In light of the entire
record, the disputed evidence that a reasonable fact finder could not have credited
in favor of the best-interest finding is not so significant that a fact finder could not
reasonably have formed a firm belief or conviction that termination of the Father’s
parental rights is in the Child’s best interest. See In re H.R.M., 209 S.W.3d at 108.
Based on the numerous inconsistencies in the Father’s testimony, the factfinder
was entitled to discredit the Father’s self-serving statements that he did not assault
30
the Mother, he did not use drugs, and he was not aware the Mother used drugs.
After considering the relevant factors under the appropriate standards of review,
we hold the evidence is legally and factually sufficient to support the trial court’s
finding that termination of the parent-child relationship is in the Child’s best
interest. Therefore, we overrule the Father’s second issue.
B. Motion for New Trial
In his first issue, the Father argues the trial court erred in denying his motion
for new trial, in which he alleged ineffective assistance of counsel, improper
dismissal of his appointed counsel, and abuse of discretion in denying his motion
for continuance.6 The Father first asserts his appointed counsel was wrongfully
released, claiming he was indigent and entitled to appointed counsel. The Father
claims his appointed counsel failed to conduct discovery during the eight moths
she represented him, rendering ineffective assistance of counsel. After the
allegedly improper release of his appointed counsel, the Father claims it was too
late for his new counsel to conduct discovery, depriving him of a fair trial. He also
claims the trial court denied his requests for a continuance. We first address
whether the Father’s appointed counsel was improperly dismissed.
1. Appointed Counsel
Texas has adopted a statutory scheme for providing counsel to assist
indigent parents, mandating the appointment of an attorney ad litem for an indigent
parent who opposes the termination of the parent-child relationship in a suit filed
by a governmental entity. Tex. Fam. Code § 107.013(a)(1) (emphasis supplied);
see In re E.A.F., 424 S.W.3d 742, 747 (Tex. App.—Houston [14th Dist.] 2014, pet.
6
The Father also alleged in his motion for new trial that the six-month extension of the
dismissal deadline was unlawfully granted outside section 263.401. See Tex. Fam. Code §
263.401 (permitting retention of case beyond one-year anniversary of the Department’s
conservatorship if the court finds extraordinary circumstances necessitate that the child remain in
the Department’s temporary custody). He has not carried this complaint forward on appeal.
31
filed). Specifically, the Family Code provides that in suits filed by a governmental
entity the trial court “shall appoint an attorney ad litem to represent the interests of:
(1) an indigent parent of the child who responds in opposition to the termination . .
. .” Tex. Fam. Code Ann. § 107.013(a)(1) (emphasis supplied); see also In re
C.D.S., 172 S.W.3d 179, 186 (Tex. App.—Fort Worth 2005, no pet.) (holding the
trial court was required to appoint an attorney ad litem to represent an indigent
parent in a government-initiated termination proceeding, and the failure to do so
constituted reversible error).
The appointment of an attorney ad litem is required whether or not the
indigent parent requests an attorney. See In re J.M., 361 S.W.3d 734, 739 (Tex.
App.—Amarillo 2012, no pet.) (holding the trial court committed reversible error
by proceeding without appointing an attorney ad litem, even though indigent
mother did not request an attorney). A parent’s filing of an affidavit of indigency
“trigger[s] the process for mandatory appointment of an attorney ad litem.” In re
V.L.B., ___ S.W.3d ____, No. 01-14-00201-CV, 2014 WL 4373567, at * 3 (Tex.
App.—Houston [1st Dist.] Sept. 4, 2014, no pet. h.) (quoting In re K.L.L.H., No.
06-09-00067-CV, 2010 WL 87043, at *5 (Tex. App.—Texarkana Jan. 12, 2010,
pet. denied) (mem. op.)). After a parent has filed an affidavit of indigence, the
court may, but is not required to, conduct a hearing to determine whether the
parent is indigent. See Tex. Fam. Code § 263.061(b).
On February 14, 2013, the Father completed a pre-printed form “Indigency
Affidavit,” in which he asked the court to appoint an attorney to represent him in
the termination proceeding. The Father acknowledged in the affidavit that he was
employed as an engineer and worked 40 hours per week. He left blank the space
for his hourly, weekly, or monthly salary. He acknowledged that he had received a
paycheck in the amount of $998 the week before and expected to receive another
paycheck the next day. The form does not identify whether the $998 amount was
32
gross or net, weekly or monthly. The Father swore that he paid $700 per month in
“rent/house payment.” He also stated he had about $500 in his checking account,
and he owned a 1998 automobile with a fair market value of $2,500. He also
modified the form to include a payment of $2,500 per month in legal fees. No
reporter’s record of a hearing to determine indigence is included in our record.
The parties agree that the trial court appointed counsel to represent appellant
shortly thereafter. Months later, on October 3, 2013, while testifying at a status
hearing, the Father acknowledged his salary was $70,000 per year and that his net
monthly salary was about $3,500. He acknowledged that he paid no rent and had
been living with his sister since January, before the affidavit of indigence was
signed. He did not claim that he continued to pay $2,500 monthly in legal fees, as
his criminal case had been dismissed after completion of BIPP. He confirmed he
had no debts and was not “poor.”
The Department then requested that the court remove appointed counsel
because the Father is not indigent. The court informed the Father “your testimony,
sir, does not match your Affidavit. Your Affidavit shows that you make less than
half of what you just testified that you earn.”7 The court then found that the Father
is not indigent. The court granted appointed counsel’s request to be excused. The
trial court informed appellant that he represented himself until he hired an attorney,
and the court strongly recommended that the Father hire an attorney before the trial
setting on December 12, 2013.
The Father argues on appeal that the record does not rebut the presumption
that he remained indigent throughout the proceedings. We disagree. See In re P.E.,
No. 05-12-00944-CV, 2012 WL 5378250, at * 2 (Tex. App.—Dallas Nov. 1, 2012,
7
The trial court’s statement indicates that court had considered the $998 paycheck shown
on the Father’s affidavit as covering a two-week pay period, when he apparently was paid
weekly.
33
no pet.) (mem. op.) (finding no abuse of discretion in trial court’s order sustaining
contest to indigence based on discrepancies between the father’s affidavit and his
testimony). The Father’s testimony is sufficient for the trial court to have
determined he was not indigent.
The Father also frames his complaint as an allegation that the trial court
abused its discretion by “the forced discharge of counsel.” The record reflects that
the court did not “discharge” appointed counsel, but rather, the court reconsidered
the Father’s claim of indigence. The Father also complains there is no written
motion for the removal of appointed counsel, but he has cited no authority that a
written motion is required under the facts presented here. The Department’s oral
request was sufficient. See Tex. Fam. Code § 107.013(e) (permitting the court to
reconsider indigence “on the motion of the parent, the attorney ad litem for the
parent, or the attorney representing the governmental entity”); cf. Tex. R. Civ. P.
12 (requiring “sworn, written motion” to show authority).
We review the trial court’s determination of indigency in a parental
termination case under an abuse of discretion standard. In re C.D.S., 172 S.W.3d
179, 184 (Tex. App.—Fort Worth 2005, no pet.). We will conclude the trial court
abused its discretion if it acted without reference to any guiding rules or principles
or in an arbitrary and unreasonable manner. Id. (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)). As the fact-finder, the trial
court is the sole judge of the credibility of the witnesses and evidence. In re A.R.,
236 S.W.3d 460, 471 (Tex. App.—Dallas 2007, no pet.). We may not reverse the
trial court’s decision simply because we might have reached a different result. See
Downer, 701 S.W.2d at 242.
Generally, the test for indigency requires the claimant to prove, by a
preponderance of the evidence, that he would be unable to pay the costs if he really
wanted and made a good faith effort to do so. Few v. Few, 271 S.W.3d 341, 345
34
(Tex. App.—El Paso 2008, pet. denied). Family Code Section 107.013 does not
define “indigent.” One court has defined “indigent” in section 107.013(a)(1) as “a
person who does not have the resources, nor is able to obtain the resources, to hire
and retain an attorney for representation in the termination case.” See In re C.D.S.,
172 S.W.3d at 185. The burden of proof rests on the individual seeking to establish
indigent status to prove that he could not pay attorney’s fees or costs associated
with the suit. In re D.L.W., No. 14-04-00703-CV, 2005 WL 486613, at *1 (Tex.
App.—Houston [14th Dist.] Mar. 3, 2005, no pet.) (mem. op.) (holding appellant
did not meet her burden to establish she was entitled to appointed counsel in a
termination proceeding, citing Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)).
In making an indigence determination, the court can consider the purported
indigent’s income, source of income, assets, property owned, outstanding
obligations, necessary expenses, number and ages of dependents, and spousal
income available to the defendant. In re C.D.S., 172 S.W.3d at 185. Here, the trial
court heard and considered evidence through the Father’s own testimony that the
Father makes over $70,000 per year and has no debts. While the Father asserts he
completed the affidavit truthfully, it is less than clear and is arguably misleading.
The only expenses shown on the affidavit were the payments to an attorney and a
monthly rent expense that appellant later acknowledged he did not pay. The Father
provided no testimony or supporting documentation. 8
The Family Code provides that the appointed attorney ad litem’s duties
8
The record reflects the Father was ordered to provide additional information about his
financial status at the beginning of the case. In the emergency order awarding temporary custody
of the Child to the Department, the court ordered the Father to “furnish to the Department and
the Court information sufficient to accurately identify [his] net resources and ability to pay child
support along with copies of income tax returns for the past two years, any financial statements,
bank statements, and current pay stubs, pursuant to Rule 196, Texas Rules of Civil Procedure
and § 154.063, Texas Family Code.” There is no indication in the record that the Father
complied with this order.
35
continue until the termination proceedings are dismissed or finally concluded
unless the attorney is relieved or replaced “after a finding of good cause is
rendered by the court on the record.” Tex. Fam. Code § 107.016(2). Based on the
evidence recited above, the court determined the Father was not indigent and
therefore was not entitled to appointed counsel. The trial court made findings on
the record showing good cause to remove the appointed attorney ad litem.
Therefore, the court complied with section 107.016(2).
There is no written order removing counsel; the court granted appointed
counsel’s request to be excused at the conclusion of the October 3, 2013, hearing.
The court advised the Father that trial was scheduled in December, and strongly
recommended the Father retain counsel before trial. The Father could have made
arrangements to retain the same counsel, which he claimed he attempted to do. In
his affidavit supporting his motion for new trial, the Father stated that he spoke
with Solis immediately after she was released about remaining on the case as his
retained attorney. She instructed him to call her office, which he stated in the
affidavit he did. Although the Father stated he left messages, he did not hear back
from Solis. He asserted that he saved money for a new attorney’s retainer and was
able to find an attorney he could afford in early December. The Father’s retained
attorney, Rushing, appeared at the December trial setting. Our record contains no
request for a continuance. Nonetheless, trial was postponed until January 27, 2014.
At the beginning of trial on January 27, 2014, new retained counsel, Acosta and
Pons, appeared for the Father, and our record contains no explanation for the
Father’s decision to change attorneys. Trial began briefly but was continued for
another month. On the record before us, the Father has not established that the trial
court’s decision denying his entitlement to an appointed attorney ad litem
prejudiced his ability to prepare for trial. We hold the trial court did not abuse its
discretion.
36
2. Ineffective Assistance of Counsel
As part of his first issue, the Father asserts his appointed counsel provided
ineffective assistance. The Father’s motion for new trial was supported by the
Father’s affidavit in which he stated he learned Solis would no longer represent
him at the October 3, 2013, hearing. He alleged he was not told Solis had not
requested discovery. He further stated, “Had I known that I was up against such a
tight deadline, I would have asked the judge for more time, I also would have had
[sic] made every effort to have obtained a lawyer so that my new lawyer would
have been able to request discovery.”
The statutory right to counsel in parental rights termination cases includes a
guarantee that counsel will perform effectively. In re B.G., 317 S.W.3d 250, 253–
54 (Tex. 2010). In parental rights termination cases, the Supreme Court of Texas
has adopted the Strickland test that establishes the standards for effective
assistance in criminal cases. See In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003)
(citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 74 (1984)). Under
the well-established Strickland test, proving ineffective assistance of counsel
requires a showing that (1) counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment, and (2) the deficient
performance prejudiced the defense, which requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial whose result is reliable. In
re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006).
In adopting the Strickland test for parental termination cases, the Supreme
Court of Texas explained that courts must primarily focus on whether counsel
performed in a reasonably effective manner. In re M.S., 115 S.W.3d at 545.
Reviewing courts must give great deference to counsel’s performance, indulging a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, including the possibility that counsel’s actions
37
are strategic. Id. An appellant bears the burden to overcome this presumption. See
Strickland, 466 U.S. at 689, 104 S. Ct. 2052. When the record is silent concerning
the reasons for trial counsel’s actions, we do not engage in speculation to find
ineffective assistance of counsel. Walker, 312 S.W.3d at 623 (citing Gamble v.
State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.)).
Accordingly, ineffective assistance claims must be firmly found in the record, and
the record must affirmatively show the alleged ineffectiveness. Walker, 312
S.W.3d at 622–23; see also In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—El
Paso 2013, no pet.). Challenged conduct constitutes ineffective assistance only
when it is “so outrageous that no competent attorney would have engaged in it.” In
re H.R.M., 209 S.W.3d at 111 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim. App. 2001)).
Under the second prong of the Strickland test, an appellant must establish
that there is a reasonable probability that but for his attorney’s deficient
performance, the outcome of his case would have been different. See Strickland,
466 U.S. at 694, 104 S. Ct. 2052; In re M.S., 115 S.W.3d at 550. A “reasonable
probability” is one that is “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. 2052; Jackson v. State, 973 S.W.2d 954, 956
(Tex. Crim. App. 1998). If the Strickland test is not met, an appellant’s ineffective
assistance of counsel claim is defeated. See In re M.S., 115 S.W.3d at 545; see also
Strickland, 466 U.S. at 700, 104 S. Ct. 2052.
In this case, the Father complains that his appointed counsel failed to
conduct discovery to determine the status of his compliance with his service plan.
The Father asserts that he was harmed by the lack of discovery because he was not
aware he had not complied with the terms of his service plan, and the failure to
conduct discovery was “structural” error amounting to a complete denial of
38
counsel.9 “Structural” errors are federal constitutional errors so labeled by the
United States Supreme Court. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim.
App. 1997). The total deprivation of counsel to an indigent defendant at trial is
structural error. Johnson v. U.S., 520 U.S. 461, 468–69, 117 S. Ct. 1544, (1997)
(citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963)).
In support of his argument, the Father cites Johnson v. State, 169 S.W.3d
223, 231–32 (Tex. Crim. App. 2005), addressing counsel’s violation of a
defendant’s right to testify. Automatic reversal without a harm analysis applies
only when the trial court has committed structural error. Id. at 232. If the
complained of deprivation is caused by defense counsel, the Strickland analysis
applies. Id.
Here, the Father was not deprived of counsel. He was represented by two
lawyers at trial, and the record reflects these lawyers actively participated in the
trial, making appropriate objections and examining witnesses. The failure to
conduct discovery is not structural error, and courts have found that the failure may
be trial strategy, absent proof to the contrary. See, e.g., Martin v. State, 265 S.W.3d
435, 441 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating counsel may have
failed to request breath test results as strategy to allow the jury to believe the State
had “conveniently lost” exculpatory evidence). In criminal cases, the failure to
investigate will require reversal only if the accused’s only viable defense was not
advanced and there is a reasonable probability that but for this failure, the result
would have been different. Id.
The Father has not alleged how any discovery would have changed the
evidence presented at trial. See In re K.M.H., 181 S.W.3d 1, 9 (Tex. App.—
9
The Father cites Olguin v. Jungman, 931 S.W.2d 607, 611 (Tex. App.—San Antonio
1996, no writ), a probate case addressing failure to disqualify a trustee from serving as the
independent executor. Olguin has no application to the issues here.
39
Houston [14th Dist.] 2005, no pet.) (rejecting ineffective assistance issue where
there was no showing in the record that discovery directed to CPS would have
factually changed any of the proof at trial). The record demonstrates that the Father
had ample means available to determine what actions were required to comply
with the service plan. The Father was aware of the plan’s requirements; he signed
the plan on February 5, 2013. The plan had detailed information about scheduling
services. The plan expressly provides: “For information about the Family Service
Plan or your child(ren), please contact:” the case worker, whose name and phone
number were provided in the plan. The Father was present at regular status
hearings at which his progress in completing the requirements of his service plan
was discussed. The Father did not complain to the court until trial that he had
difficulty scheduling services due to his previous caseworker’s failure to return his
calls.
In addition, the Father did not present his former attorney Solis at the
hearing on his motion for new trial to testify about her actions and the reasons for
those actions. There is nothing in the record before us showing counsel’s trial
strategy or that it was unreasonable. The Father’s original trial counsel was not
presented to advise the court whether she informed appellant about discovery
issues or deadlines. Likewise, the Father’s retained trial attorneys did not testify
about what steps they took to prepare for trial or any difficulties they had in those
preparations. The record reflects the Father was represented by counsel at every
hearing after he was served with the termination suit, and he was represented by
two attorneys at trial.
Although the record contains no evidence that any written discovery was
propounded, there is likewise no evidence that such written discovery would have
produced any fruits or that there was a necessity for it. In re K.S., 420 S.W.3d 852,
856 (Tex. App.—Texarkana 2014, no pet.) (holding trial counsel’s failure to file
40
formal discovery in termination case did not prejudice the father). Without an
explanation from trial counsel for her actions, we may not, in the face of the strong
presumption in favor of reasonable representation, conclude that trial counsel
lacked sound strategic reasons for her conduct. See In re B.M., No. 14-13-00599-
CV, 2013 WL 6506659, at *11 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013,
no pet.) (mem. op.) (citing M.S., 115 S.W.3d at 549).
The Father’s complaint is not firmly established by the record; we may only
speculate about why counsel may not have conducted formal discovery or what
such discovery may have revealed. See In re R.E.T.R., No. 14-13-00640-CV, 2013
WL 6506689, at *11 (Tex. App.—Houston [14th Dist.] Dec. 10, 2013, no pet.)
(mem. op.) (rejecting claim that counsel’s failure to engage in discovery
constituted ineffective assistance). The Father has failed to show counsel’s
performance was deficient in this regard and that the alleged deficient performance
prejudiced his defense. See In re K.M.H., 181 S.W.3d at 9–10.
In sum, the Father has not made the showing required under Strickland and
failed to overcome the strong presumption that counsel’s alleged deficiencies
prejudiced the case, deprived him of a fair trial, or produced an unreliable result.
We hold the Father has not established he received ineffective assistance of
counsel.
3. Denial of Continuance
In his motion for new trial, the Father also alleged the trial court abused its
discretion and deprived him of due process by denying his motion for continuance.
The decision to grant or deny a motion for continuance is within the trial court’s
sound discretion. See Tex. R. Civ. P. 251. The trial court’s action in denying a
continuance will not be disturbed unless the record discloses a clear abuse of
discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988).
41
First, our record contains no written motion for continuance. Appellant’s
first retained counsel, Rushing, appeared at the permanency hearing on December
12, 2014, the date trial had first been scheduled to commence. The record of that
hearing does not reflect Rushing requested a continuance. In fact, at the conclusion
of the hearing, when the trial court set the new trial date for January 23, 2014,
Rushing replied, “That’s fine.”
The Father’s new counsel, Acosta, orally requested a continuance at the start
of trial on January 23, 2014. His stated reasons were that he needed time to
subpoena a witness and review pictures of the Father’s home that he had just
received. He also stated he would “perhaps” do some witness preparation and some
discovery, but he did not specify what he sought to discover. Absent a specific
showing of what additional trial preparation might have been made, no abuse of
discretion in denying a continuance is shown. In re L.D.W., No. 14-11-00438-CV,
2013 WL 2247383, at *10 (Tex. App.—Houston [14th Dist.] May 21, 2013, no
pet.) (mem. op.) (finding no abuse where motion for continuance did not identify
witnesses to be subpoenaed, what testimony was expected to be elicited from them,
or why such testimony was material). All other parties were opposed to the motion.
The Department’s counsel noted that only one witness out of several she planned
to call was scheduled for that day and the Father’s counsel would have ample time
to subpoena any witnesses he might need. The motion was denied. The Department
called the Father as its first witness. The Father asserts his counsel re-urged his
motion for continuance when presented with documents he had not reviewed. The
documents in question were a certified copy of the Father’s 2010 judgment of
conviction for assaulting the Mother and the complaint relating to that judgment.
The Father was certainly aware of the conviction, and the court denied the oral
motion. The Father’s testimony was not concluded that day, and the trial was
continued for over a month until February 27, 2014.
42
The law is well settled that a motion for continuance must be in writing,
state the specific facts supporting the motion, and be verified or supported by
affidavit. See Tex. R. Civ. P. 251, 252; In re E.L.T., 93 S.W.3d 372, 375 (Tex.
App.—Houston [14th Dist.] 2002, no pet.) (citing Villegas v. Carter, 711 S.W.2d
624, 626 (Tex. 1986)). If a motion for continuance is not made in writing and
verified, it is presumed that the trial court did not abuse its discretion in denying it.
E.L.T., 93 S.W.3d at 375 (holding that no abuse of discretion was shown where
appellant did not comply with Rule 251); see also Green v. Tex. Dep’t of
Protective & Regulatory Servs., 25 S.W.3d 213, 218 (Tex. App.—El Paso 2000, no
pet.) (holding the denial of an oral request for a continuance does not constitute an
abuse of discretion).
In Villegas, which the Father cited, the Supreme Court of Texas found that
this presumption did not apply to a lay movant who, without fault, had his attorney
withdraw his representation two days before trial and refuse to turn over the case
file. 711 S.W.2d at 626. The court stated that when the reason for a continuance is
the withdrawal of counsel, the party moving for the continuance must show that his
failure to be represented at trial was not due to his own fault or negligence. Id.
Villegas may be distinguished from this case in several respects. Here, the Father
was not without counsel at trial. In addition, the court did not grant counsel’s
motion to withdraw; the court determined the Father was not entitled to appointed
counsel. Moreover, the trial court clearly determined that removal of appointed
counsel was due to the Father’s fault in misrepresenting his financial status. The
court declared, “he committed a fraud on this court.”
We also find Harrison v. Harrison, 367 S.W.3d 822 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied), cited by the Father, does not control the disposition
of this issue. This court held in Harrison that the trial court abused its discretion in
denying the wife’s motion for continuance after permitting her counsel to withdraw
43
over her objection forty days before trial, based on his unsupported claim that the
wife had not paid all of his fees. Id. at 835. We also found that the wife was not at
fault. Id.at 833–35 (citing Villegas, 711 S.W.2d at 626). The wife testified to her
unsuccessful efforts to find a new attorney, and when her request for a continuance
was denied, she proceeded to trial without counsel. Id. at 831–32.
Here, the Father had time to, and in fact did, retain counsel before trial.
Counsel did not allege or establish any specific trial preparation that required
additional time. In addition, the record supports the trial court’s determination that
the Father was at fault. See Qurashi v. Jabeen, No. 14-12-00858-CV, 2013 WL
2644182, at *5 (Tex. App.—Houston [14th Dist.] June 11, 2013, no pet.) (mem.
op.) (finding no abuse of discretion in denying continuance where appellant failed
to show the lack of representation was not due to his own fault or negligence). We
conclude the trial court did not abuse its discretion in denying the Father’s oral
request for a continuance. Accordingly, we overrule the Father’s first issue.
C. Reimbursement for Attorney’s Fees
Finally, in his fourth issue, the Father asserts that the trial court erred in
ordering him to reimburse the county for the attorney’s fees incurred by his court-
appointed counsel. The Department asserts, and we agree, that the Father has
waived this complaint by failing to bring it to the trial court’s attention. See Tex. R.
App. P. 33.1; Harris Cnty. Children Protective Servs. v. Richker, 2 S.W.3d 741,
743 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that because there
was no claim in any document in the trial court that the judgment should not have
ordered payment of appointed attorney fees without evidence on indigence, the
complaint was waived). Nonetheless, we briefly address the issue.
The Family Code provides that a court-appointed attorney ad litem for a
parent is to be paid by the parents of the child unless the parents are indigent. Tex.
44
Fam. Code § 107.015(a). In its petition, the Department asked that the Father
reimburse the county for fees paid to the attorney ad litem if he had the money to
pay those fees. Section 107.015 clearly authorizes a court to require a parent to
defray the cost of attorneys appointed in the case if the court determines the parent
is “able.” Tex. Fam. Code §107.015(b). Only if indigency of the parents is shown
may the county be ordered to pay fees for an attorney at litem for a parent. Id. at §
107.015(c). “The court may not award attorney ad litem fees under this chapter
against the state, a state agency, or a political subdivision of the state except as
provided by this subchapter.” Id.
The Father argues that having determined he was indigent based on his
affidavit, the trial court’s discretion to reverse that decision was limited. We
disagree. As discussed above, the Father acknowledged he was not “poor,” he
earned $70,000 annually, and he was not in debt. He confirmed, however, that he
requested that the court appoint an attorney for him, and he testified he did not
believe he should have to pay for his court-appointed attorney. The record supports
the trial court’s determination that the Father is not indigent. Accordingly, the
court was required to order the Father to pay the court-appointed attorney ad
litem’s fees. See Tex. Fam. Code § 107.015(c).
We overrule the Father’s fourth issue.
V. CONCLUSION
Having overruled the Father’s issues, we order the judgment of the trial
court affirmed.
/s/ Marc W. Brown
Justice
Panel consists of Justices McCally, Brown, and Wise.
45