Document Info

DocketNumber: 14-21-00430-CV

Filed Date: 3/31/2022

Status: Precedential

Modified Date: 4/4/2022

  • Affirmed and Memorandum Opinion filed March 31, 2022.
    In The
    Fourteenth Court of Appeals
    NO. 14-21-00430-CV
    IN THE INTEREST OF L.A.V. AND S.H.V.
    On Appeal from the 314th District Court
    Harris County, Texas
    Trial Court Cause No. 2019-03748J
    MEMORANDUM OPINION
    Mother and Father separately appeal the final order terminating their
    parental rights to their infant twin daughters, L.A.V. (“Ludmila”) and S.H.V.
    (“Serafina”).1 In two issues, Father first asserts that the trial court lost jurisdiction
    over the suit before entering the termination order (rendering the order void), and
    second that he was denied his due process right to a fair and impartial trial. In
    Mother’s sole issue, she challenges the legal and factual sufficiency to support the
    trial court’s finding that termination of her parental rights was in the best interest
    1
    We use pseudonyms to refer to appellants, the children, and other family members. See 
    Tex. Fam. Code Ann. § 109.002
    (d); Tex. R. App. P. 9.8.
    of Ludmila and Serafina.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    According to Mother and Father, they needed a break from the constant
    visitors following the birth of their daughters and Father’s father needed a sterile
    environment for the night while in town for cancer treatment. So, Mother and
    Father checked into a local hotel with their seven-week old twin daughters.
    The Department’s Investigation,2 Emergency Removal, Family Placement, and the
    Commencement of Termination Suit
    Mother and Father’s hotel stay quickly became a matter of public concern.
    Prior to the Department’s3 involvement, law enforcement had been called to the
    hotel twice, had removed Father from the hotel, issued him a criminal trespass
    warning, and had returned to check on the family. The Department received
    multiple intakes “alleging that both parents were hiding in a La Quinta Inn hotel in
    the Humble area.” At least one intake reportedly alleged that “[Father] is on a
    drinking binge and he hid his wife and twin girls at the hotel.”
    The Department’s investigator, Jennifer McGee, went to the hotel and
    knocked on the room door multiple times without answer. McGee called the
    Sheriff’s Office for assistance. When the Officer knocked on the door, Mother
    opened the door and began to yell for law enforcement to remove Father from the
    hotel room. Father became belligerent and was placed in handcuffs away from
    Mother. McGee reported that both parents had dilated pupils about the size of a
    dime. At some point the Officer called for backup because Mother and Father
    2
    Facts described in this section pertaining to the initial investigation and removal are
    significantly taken from the affidavit supporting the petition for termination.
    3
    We use “the Department” to refer to appellee, the Department of Family and Protective
    Services.
    2
    were so combative.
    The hotel room was in disarray and the room reeked of alcohol. Scattered
    about the room were multiple large bottles of vodka, some empty, some partially
    full, used baby bottles and formula bottles with spoiled milk, prescription bottles,
    amphetamines, and opioids.
    McGee reported that she could not see or hear the twins until pulling up the
    hotel bed’s sheet, blanket and bedspreads under which they were found. The bed
    they were lying in had urine and feces on it, there were no clean diapers or wipes
    left in the hotel room, and no formula to feed the babies. One of the twins had a
    diaper rash, but both were otherwise discovered to be healthy.
    Mother and Father were too intoxicated to consent to a Parental Child Safety
    Placement, so McGee provided Mother and Father emergency notice of removal.
    After a preliminary study, Ludmila and Serafina were placed with their maternal
    grandparents.
    On October 11, 2019, the Department filed suit to Terminate the Parental
    Rights of Mother and Father based on the risks to the children’s welfare associated
    with alcohol and substance abuse and domestic violence. That same day, the court
    issued an emergency order removing children, and the Department was appointed
    Temporary Managing Conservator (“TMC”) of Ludmila and Serafina.
    On October 12, 2019, Mother and Father admitted themselves into a
    California rehab facility for alcohol abuse treatment. It was Mother’s fourth
    inpatient rehab admission in three years and Father’ third in two years. The court
    created a family service plan (“FSP”) for both Mother and Father. Each of their
    family service plans required the following:
    (1) submit to random drug testing,
    3
    (2) maintain a safe and stable home free of drug and alcohol use for a
    period of no less than six months,
    (3) maintain stable income through employment or other sources and
    provide the Department with “proof of income documentation” (ex.
    pay stubs),
    (4) complete parenting classes,
    (5) refrain from all illegal activity and consumption of alcohol,
    (6) attend all meetings, court hearings, permanency conferences, and
    family visits,
    (7) participate in the services described in his/her FSP and
    demonstrate her ability to apply what she has learned,
    (9) participate in and successfully complete a drug/alcohol assessment
    and follow all recommendations,
    (10) maintain a drug/alcohol free lifestyle and cultivate a circle of
    support away from drug/alcohol users, and
    (11) participate in and successfully complete a psycho-social
    evaluation and follow all recommendations made from the evaluation.
    Although Mother and Father’s service plans were the same in virtually all
    respects, item “8” of Mother’s service plan required Mother to “successfully
    complete a domestic violence assessment and follow all recommendations from the
    assessment”, and item “8” in Father’s service plan required Father to “attend,
    actively participate in, and successfully complete a BIPP [“Battering Intervention
    & Prevention Program”] assessment and follow all recommendations from the
    assessment”.
    Mother’s Testimony and Mother’s Performance under the Plan
    At trial the Department put forth evidence that Mother failed to perform
    under the FSP. Mother completed parenting classes and completed her required
    psychosocial evaluation. She missed some random drug tests, and several tests
    4
    indicated that she failed to avoid consumption of alcohol,4 and thus failed to
    maintain a drug/alcohol free lifestyle. Video evidence was admitted at trial through
    the testimony of Mother’s landlord depicting Mother walking and stumbling about
    the property in what could have reasonably been perceived to be an impaired state.
    Mother testified that she worked for her father for a month in August 2020, but
    otherwise was unemployed. The Department’s caseworker testified that Mother
    failed to “maintain a safe and stable home free of drug and alcohol use for a period
    of no less than six months”. Mother ultimately conceded in her brief that the
    evidence demonstrated she failed to adhere to the terms of the FSP.
    Father’s Performance Under the Plan
    At trial the Department put forth evidence that Father failed to perform
    under the FSP. Father completed a portion of the services in his FSP. He secured
    stable housing although his and Mother’s lease was co-signed by Karen, Father’s
    mother. Father also completed his parenting classes, anger management classes,
    and his individual psychotherapy sessions and provided documentation of
    completion to the Department. At the time of trial, in March 2021, Father
    confirmed he made approximately $8,000 per month and would work as a contract
    project manager at least through November 2021. But Father was unemployed
    between February 27, 2020 and January 2021. In this respect there was some
    evidence Father did not maintain stable employment as required in his FSP. Father
    admitted that he provided no financial support to Hazel and Cal to support his
    4
    Between July 2020 and April 2021, Mother’s hair tested negative for drugs in
    September 2020, twice in January 2021, and once in April 2021. Mother’s urine was tested for
    ethyl glucuronide 16 times between July 2020 and April 2021, (indicating Mother was
    continuing to consume alcohol). Three tests were positive – in December 2020, January 2021,
    and March 2021. One test was invalid and 12 were negative. Mother tested positive for
    amphetamines in every random urine drug test between July 2020 and April 2021 (15 tests in
    all); she produced proof of a proscription for Adderall for one month.
    5
    children.
    Caseworker Gomez testified regarding Father’s efforts with respect to
    domestic violence. Father was first referred to a BIPP provider in January 2020,
    but he missed his scheduled appointments and in March 2020, requested a referral
    to a provider closer to where he was then living (in the Beaumont area). Gomez
    was able to identify and schedule Father with the new provider, but she continued
    to receive notifications that Father missed appointments. Father completed his
    BIPP assessment in August 2020 but missed the first three BIPP classes and was
    discharged by the provider. According to Gomez, Father put no effort into
    completing his BIPP program nor did he “show any change in behavior when it
    came to domestic violence.” Father denied being “violent” or having a “violence
    problem” but agreed “no child should be in an environment [where there is
    domestic violence].”
    Father failed to show up for all of his random drug tests. For those that he
    did take, he consistently tested negative for alcohol consumption but tested
    positive for drugs.5 Father provided the Department with some proof that he had
    been prescribed Adderall and Alprazolam, which would explain at least some of
    the positive amphetamine and benzodiazepine results. The Department was not
    5
    Father submitted seven urine samples which tested for ethyl glucuronide between December
    2019 and July 2020; all seven were negative. Father submitted hair samples in December 2019,
    February 2020, and July 2020 and these, too, were negative. Father submitted nine urine samples
    for drug testing: three were negative (one in December 2019 and two in June 2020) and six were
    positive for amphetamines (three in January 2020, two in March 2020, and one in July 2020).
    The sample submitted at the end of January 2020 was also positive for alprazolam.
    Between July 2020 and April 2021, Father’ hair tested negative for drugs in October 2020, twice
    in January 2021, and in April 2021. Father’ urine was tested for ethyl glucuronide 15 times
    between July 2020 and April 2021 and each time the result was negative. Father tested positive
    for amphetamines in all but two random urine drug tests between July 2020 and April 2021 (14
    tests in all).
    6
    satisfied that he provided proof sufficient to address all positive test results. Father
    testified that a physician had prescribed him Alprazolam in January 2020, and
    testified that he had been prescribed Adderall since he was diagnosed with ADD
    when he was 12 years old.
    Ms. Games, the Department’s caseworker, reported that Father did not
    refrain from criminal activity during the pendency of the case. Although Father had
    no convictions, he had charges pending at the time of trial for acts of family
    violence. Several witnesses testified in detail about facts supporting allegations of
    violence toward Mother.
    Placement, Visitation, the Twins’ Development
    On January 15, 2020, Ludmila and Serafina were placed with Cal and Hazel,
    Father’s brother and sister-in law, and have remained with them. Mother and
    Father had supervised visits with Ludmila and Serafina for 30 minutes every
    morning of every day when visits were conducted virtually (during COVID). In-
    person visits occurred once a week for one hour and 45 minutes. Hazel supervised
    the virtual visits, Cal supervised the in-person visits, and Department caseworker
    Jessica supervised both virtual and in person visits. Father believed visits should be
    more frequent and longer than the allotted time because Ludmila and Serafina were
    living with family.
    Cal testified that both Ludmila and Serafina “are just so happy and thriving
    and they fit in with our family very well. We have an older daughter and an older
    son and it’s joy. It’s love. It’s peace. It’s been a blessing to have them in our
    home.” Cal wants to adopt Ludmila and Serafina “because I want the full legal
    duty, right, obligation, authority, to take care of the girls’ welfare to the best of my
    ability.” Ms. Games, the Department caseworker, testified that “[Ludmila and
    Serafina] are thriving.     They are growing. They are reaching all of their
    7
    developmental milestones. They are very happy.” She testified about the strength
    of Ludmila’s and Serafina’s bond with Hazel, Cal, and their two children, stating,
    “I see that [Ludmila and Serafina] really love [Hazel and Cal]. [Ludmila and
    Serafina] get along well with [Hazel’s and Cal’s] children, and they always appear
    to be very comfortable in the home.”
    Domestic Violence: Allegations, Testimony, Findings
    In September 2020, Father was charged with and arrested for “continuous
    family violence” against Mother. Mother texted her parents telling them “[Father]
    had been physically abusive again.”       Mother’s parents called the police for
    assistance. The police and an ambulance came to Mother’s and Father’ home.
    Mother reported Father slapped her with an open hand which caused pain, and then
    Father punched Mother’s head and nose with a closed fist which caused bleeding
    and pain. Mother reported Father had been drinking all day, called her names, and
    started an argument without any provocation and that Father had been physically
    abusive to her for “some time.”
    A month earlier, Mother had called police and reported Father had been
    drinking all day and “started to get into [her] face.” Father became irate and then
    “hit,” “slapped,” “punched,” and “pushed” her, causing her to fall and to feel pain.
    Before the two were married police were called out to investigate reports of
    Father abusing Mother. In November 2018, Maria (after receiving a call from
    Karen) called police and reported Mother and Father had been abusing alcohol and
    fighting, that Maria had entered their apartment the day before where she found
    Mother injured, that Maria attempted to convince Mother (unsuccessfully) to leave
    the apartment, and today, asked police to check on Mother.
    At trial, Mother flatly denied any history of domestic violence between her
    8
    and Father. Father also denied any domestic abuse but acknowledged the
    protective order signed September 24, 2020 that protected Mother from Father for
    61 days. Father claimed Mother’s bruises result from her falling when she is
    intoxicated. Father claimed he never placed his hands over Mother’s face hard
    enough to cause her nose to bleed; Mother just occasionally gets a bloody nose.
    Father claimed when Karen took pictures of his bruises he told her he received
    them from Mother, but the bruises were actually caused when he fell moving
    furniture.
    Order Terminating Parental Rights
    After argument, the trial court advised the parties it would issue a ruling the
    following morning. The next morning, the trial court terminated Mother’s parental
    rights based on Section 161.001(b)(1) (D), (E), (O), and (P) of the Texas Family
    Code and a finding that termination was in Ludmila’s and Serafina’s best interest.
    The trial court found “by a preponderance of the evidence that [Father] committed
    acts of family violence against [Mother]” and also terminated Father’s parental
    rights based on Section 161.001(b)(1) (D), (E), (O), and (P) of the Texas Family
    Code and a finding that termination was in Ludmila’s and Serafina’s best interest.
    The Department was appointed Ludmila’s and Serafina’s Sole Managing
    Conservator.
    II. JURISDICTION
    In his first issue, Father argues that the termination order is void because the
    trial court’s jurisdiction ended prior to the start of trial pursuant to Texas Family
    Code section 263.401. Under section 263.401, unless trial on the merits has
    commenced or an extension is granted within the time period proscribed by the
    statute, the trial court’s jurisdiction terminates on the dismissal date and the suit is
    9
    automatically dismissed without a court order. Interest of Z.S., 
    631 S.W.3d 313
    ,
    315 (Tex. App.—Houston [14th Dist.] 2020, no pet.). We address this issue first
    because, if Father’s contention that the judgment is void is correct, then we, like
    the trial court, would lack subject-matter jurisdiction over this case. See Freedom
    Commc’ns, Inc. v. Coronado, 
    372 S.W.3d 621
    , 624 (Tex. 2012) (per curiam).
    A. Standard of Review
    Whether a court has subject-matter jurisdiction is a question of law that we
    review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 
    133 S.W.3d 217
    , 226
    (Tex. 2004). When a trial court’s void judgment is appealed, we lack jurisdiction to
    address the merits of the appeal and have jurisdiction only to declare the judgment
    void and dismiss the underlying case. Freedom Commc’ns, Inc. v. Coronado, 
    372 S.W.3d 621
    , 623 (Tex. 2012); Interest of A.F.R., No. 01-20-00355-CV, 
    2020 WL 6140181
    , at *4 (Tex. App.—Houston [1st Dist.] Oct. 20, 2020, pet. denied).
    B. Is the judgment void? Did the trial court have jurisdiction to terminate
    appellants’ parental rights?
    Father’s argument relies on the operation of the so-called “self-executing
    dismissal” statute, which provides:
    Unless the court has commenced the trial on the merits or granted an
    extension under Subsection (b) or (b–1), on the first Monday after the
    first anniversary of the date the court rendered a temporary order
    appointing the department as temporary managing conservator, the
    court’s jurisdiction over the suit affecting the parent-child relationship
    filed by the department that requests termination of the parent-child
    relationship or requests that the department be named conservator of
    the child is terminated and the suit is automatically dismissed without
    a court order. Not later than the 60th day before the day the suit is
    automatically dismissed, the court shall notify all parties to the suit of
    the automatic dismissal date.
    Tex. Fam. Code § 263.401(a); Interest of G.X.H., 
    627 S.W.3d 288
    , 296 (Tex.
    10
    2021)(describing the provision as the “self-executing dismissal”). Subsection (b)
    explains the requirements for a trial court to extend the timeline for the “self-
    executing dismissal” to take effect. Subsection (b) states:
    Unless the court has commenced the trial on the merits, the court may
    not retain the suit on the court’s docket after the time described by
    Subsection (a) unless the court finds that extraordinary circumstances
    necessitate the child remaining in the temporary managing
    conservatorship of the department and that continuing the
    appointment of the department as temporary managing conservator is
    in the best interest of the child. If the court makes those findings, the
    court may retain the suit on the court’s docket for a period not to
    exceed 180 days after the time described by Subsection (a). If the
    court retains the suit on the court’s docket, the court shall render an
    order in which the court:
    (1) schedules the new date on which the suit will be
    automatically dismissed if the trial on the merits has not
    commenced, which date must be not later than the 180th day
    after the time described by Subsection (a);
    (2) makes further temporary orders for the safety and welfare of
    the child as necessary to avoid further delay in resolving the
    suit; and
    (3) sets the trial on the merits on a date not later than the date
    specified under Subdivision (1).
    Tex. Fam. Code § 263.401(b).
    In this case, the trial court awarded the Department temporary managing
    conservator in an order signed on October 11, 2019. The first Monday after the
    first anniversary of that date is October 12, 2020. Thus, unless the trial court either
    (1) “commenced the trial on the merits,” or (2) “granted an extension under
    Subsection (b) or (b–1),” the court’s jurisdiction over the department’s case
    terminated on October 12, 2020, the suit would be “automatically dismissed
    without a court order”, and any orders after that date would be void. See Dikeman
    v. Snell, 
    490 S.W.2d 183
    , 186–87 (Tex. 1973) (holding an order entered after the
    11
    trial court loses jurisdiction is facially void). Trial commenced on March 2, 2021,
    well after the original commencement deadline. Thus, because the trial court did
    not commence trial on the merits by October 12, 2020, we look to whether a
    subsection-(b) extension had been granted. At the time Father filed his brief, our
    record only contained a docket sheet entry which states:
    9/30/2020 | Mtn for continuance by parents. Branson for Mom (appeared),
    Jereb for Intervenor PGP (appeared), Jennifer Smith for Intervenor aunt and
    uncle (did not appear), Jeff Marsh for dad (appeared), Ledoux for children.
    State did not request the full 6 mths. EDD 12/14/21. Mediation prior to trial.
    Trial 12/3/20 at 1:30p and 12/4/20 9:30a.
    After requesting supplementation of the clerk’s record, we discovered that on
    October 1, 2019, the trial court also issued a written order entitled “Order
    Retaining Suit on Court’s Docket and Setting Hearing Dates” (“Retention Order”).
    The Retention order states:
    the Court finds that that [sic] extraordinary circumstances necessitate
    the children remaining in the temporary managing conservatorship of
    the Department and that continuing the appointment of the
    Department as temporary managing conservator is in the best interest
    of the children.
    Consistent with the docket entry that was already in our record, the written
    order further confirmed a trial date of December 3, 2020. The order also scheduled
    an automatic dismissal date of December 14, 2020, a date which matches the
    docket entry’s notation, “EDD 12/14/21”.     180 days after November 9, 2020 is
    May 8, 2021, which represents the furthest automatic dismissal date that could be
    set under the statute. Thus, the Retention Order sets an automatic dismissal date
    within the 180-day period, and sets out the required statutory findings under
    263.401(b).
    12
    At oral argument, Father conceded that the trial court validly extended the
    dismissal deadline in its Retention Order. The dispute in this case relates to
    whether the automatic dismissal date was validly extended a second time. Several
    events followed relevant to this inquiry.
    First, on November 11, 2020, the Texas Supreme Court’s Twenty-Ninth
    Emergency Order Regarding the COVID-19 State of Disaster (“Twenty-Ninth
    Emergency Order”) includes provisions affecting the application of section
    263.401 in parental termination proceedings. Second, on December 1, 2020, two
    motions seeking to extend deadlines were filed in the trial court: Mother filed a
    motion to continue the trial based on her counsel’s failing health, and the
    Department filed a motion to set a new dismissal date in the case pursuant to the
    Twenty-Ninth Emergency Order. The Department’s motion requested that the trial
    extend the automatic dismissal deadline to March 22, 2021, and states:
    This County is currently under a state of disaster, the Courts have
    been affected by the disaster, and the [trial] Court is incapable of
    commencing trial by the dismissal deadline. Pursuant to the Supreme
    Court Order, the Department asserts that good cause exists to modify
    or suspend the dismissal deadline in this case.
    The record contains no written order granting (or denying) the Department’s
    December 1, 2020 motion to extend the dismissal deadline, and no written order
    granting or denying Mother’s motion for continuance.          However, our record
    contains a docket sheet that indicates the court granted these motions:
    12/2/2020 | EDD and Continuance. ACA Ieshia Champs, CW did not
    appear, Jennifer Smith for Intervenor caregivers (did not appear),
    Ledoux for children, Chris Branson for Mom (appeared), Mike Craig
    for Intervenor PGM Kathy Van Velson (appeared), Ted Jereb for
    Intervenor MGM Marian Ballard (appeared). EDD-3/22/2021. Trial
    1/19/21-1/22/21.
    The day before oral argument in our Court, at Father’s request, we were provided
    13
    the reporter’s record from the December trial court hearing hearing reflected in the
    docket entry.    The transcript reveals that both motions to extend trial had been
    filed and were considered in the trial court at the hearing. The record clearly
    indicates the hearing pertained to the motion seeking an extension based on
    Mother’s counsel’s health and the Department’s motion seeking an extension
    pursuant to the Supreme Court’s Twenty-Ninth Emergency Order. The record also
    clearly indicates that no party opposed the requested extension or any of the
    particular reasons sought for the extension, that the court granted the extension,
    that the court reset the automatic dismissal deadline to March 22, 2021, and that
    the court made no findings remotely resembling the required statutory findings in
    section 263.401.    Accordingly, it is Father’s position that in the absence of such
    findings, the extension order was void.
    Father correctly points out that this case is not like Interest of G.X.H. where
    the court was able to rely on the implied findings of the trial court in the absence of
    a record. Here, we were provided a record, and the record indicates that no
    statutory findings were made to support the extension.
    Without disputing these procedural circumstances, the Department advanced
    at least three arguments why the termination order in this case nonetheless remains
    valid, asserting that (1) Father failed to preserve an objection to the omitted
    findings to support the second extension order, (2) that the court’s second order
    extending the dismissal date was based on a provision of the Twenty-Ninth
    Emergency Order that implicitly excuses the subsection-(b) requirements, and (3)
    that the court never lost jurisdiction of the termination suit filed by the intervenors.
    We start with the argument that would obviate the need for the trial court to
    make the ordinarily required statutory findings. The Twenty-Ninth Emergency
    Order Regarding the Covid-19 State of Disaster, provides in relevant part:
    14
    3. [A]ll courts in Texas may in any case, civil or criminal—and must
    to avoid risk to court staff, parties, attorneys, jurors, and the public—
    without a participant’s consent:
    a. except as provided in paragraph (b), modify or suspend any and all
    deadlines and procedures, whether prescribed by statute, rule, or order, for a
    stated period ending no later than February 1, 2021;
    b. in all proceedings under Subtitle E, Title 5 of the Family Code:
    (i)    extend the initial dismissal date as calculated under Section
    263.401(a) only as provided by Section 263.401(b) or (b-1);
    (ii)   for any case previously retained on the court’s docket pursuant
    to Section 263.401(b) or (b-1), or for any case whose dismissal
    date was previously modified under an Emergency Order of this
    Court related to COVID-19, extend the dismissal for an
    additional period not to exceed 180 days from the date of this
    Order;
    Our plain reading of the Twenty-Ninth Emergency Order compels us to consider
    the distinction the Supreme Court makes between subsection (b)(i) and (ii), which
    both apply to orders extending the statutory deadline.      Subsection (i) applies to
    initial extension orders and — by the language “only as provided by Section
    263.401(b) or (b-1)” — maintains the Family Code’s requirements imposed by that
    subsection, e.g. that a trial court must make statutory findings to support an initial
    extension order. Subsection (ii) on the other hand, applies to subsequent extension
    orders and for such orders implicitly suspends the requirements imposed by
    Section 263.401(b) or (b-1), such that a trial court having already entered an
    extension order complying with Section 263.401(b) or (b-1) may enter a
    subsequent order extending the dismissal date for up to 180 days after the date of
    the Emergency Order, or in this instance May 10, 2021, without otherwise
    complying with Section 263.401(b) or (b-1).       In this case, because an extension
    15
    order had already been granted under 263.401(b), section 3.b.(ii) of the Twenty-
    Ninth Emergency Order operated to allow the trial court to grant another extension
    without again making findings under 263.401(b). Because the court was not
    required to make 263.401(b) findings when granting the second motion to extend,
    the trial order is not void. See Twenty-Ninth Emergency Order 3.b.(ii).
    Accordingly, we overrule Father’s first issue.
    IV. MOTHER’S LEGAL AND FACTUAL SUFFICIENCY FINDING
    A court may terminate the parent-child relationship if the court finds by
    clear and convincing evidence that (1) the parent has engaged in at least one
    statutory predicate act and (2) termination is in the best interest of the child. See In
    re N.G., 
    577 S.W.3d 230
    , 230 (Tex. 2019); In re L.C.L., 
    599 S.W.3d 79
    , 83 (Tex.
    App.—Houston [14th Dist.] 2020) (en banc), pet denied, 
    629 S.W.3d 909
     (Tex.
    2021); see also Tex. Fam. Code § 161.001(b). In her sole issue, Mother challenges
    the legal and factual sufficiency of the evidence to support the trial court’s finding
    that termination of her parental rights is in the best interest of the children. See
    
    Tex. Fam. Code Ann. § 161.001
    (b)(2).
    A. Standard of Review
    Termination of the parent-child relationship is a drastic remedy and is of
    such weight and gravity that due process requires the state to justify termination by
    clear and convincing evidence. In re C.H., 
    89 S.W.3d 17
    , 23 (Tex. 2002); see also
    In re L.G.R., 
    498 S.W.3d 195
    , 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
    denied). Clear and convincing evidence is 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. This
    heightened burden of proof results in a heightened standard of review when
    16
    evaluating the sufficiency of the evidence. In re L.G.R., 
    498 S.W.3d at 202
    .
    Under a legal sufficiency review, we look at all the evidence in the light
    most favorable to the finding to determine whether a reasonable factfinder could
    have formed a firm belief or conviction that the finding was true. In re J.F.C., 
    96 S.W.3d 256
    , 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
    favor of its finding if a reasonable factfinder could do so. 
    Id.
     We disregard all
    evidence that a reasonable factfinder could have disbelieved or found to have been
    incredible, but we do not disregard undisputed facts. 
    Id.
    Evidence is factually insufficient if, in light of the entire record, “the
    disputed evidence that a reasonable factfinder could not have credited in favor of
    the finding is so significant that a factfinder could not reasonably have formed a
    firm belief or conviction.” 
    Id.
     We assume that the factfinder resolved disputed
    evidence in favor of its findings if a reasonable factfinder could do so, but we do
    not disregard disputed evidence. See In re Commitment of Stoddard, 
    619 S.W.3d 665
    , 674 (Tex. 2020).
    In this case, neither Father nor Mother has challenged any of the predicate
    grounds for termination on appeal. Mother and Father both conceded the trial
    court’s findings under subsection (O). The record supports the finding that neither
    Mother nor Father complied with multiple components of their respective family
    service plans. Upon our review of the record and applying the applicable standards
    of review, we conclude the record evidence is legally and factually sufficient to
    support the trial court’s finding under subsection (O).
    B. Is the trial court’s order terminating Mother’s parental rights supported
    by legally and factually sufficient evidence to support the trial court’s finding
    that termination is the best interest of the Ludmila and Serafina?
    There is a strong presumption that the best interest of the children is served
    17
    by keeping the children with their natural parents. In re R.R., 
    209 S.W.3d 112
    , 116
    (Tex. 2006) (per curiam) (citing 
    Tex. Fam. Code Ann. § 153.131
    (b)); In re D.R.A.,
    
    374 S.W.3d 528
    , 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However,
    prompt and permanent placement of the children in a safe environment is also
    presumed to be in the children’s best interest. In re S.R., 452 S.W.3d at 366 (citing
    
    Tex. Fam. Code Ann. § 263.307
    (a)). Proof of acts or omissions under section
    161.001(b)(1) is probative of the issue of the children’s best interest. See 
    id.
     The
    considerations that the factfinder may use to determine the best interest of the
    children, known as the Holley factors, include:
    (1) the desires of the child;
    (2) the present and future physical and emotional needs of the child;
    (3) the present and future physical and emotional danger to the child;
    (4) the parental abilities of the person seeking custody;
    (5) the programs available to assist the person seeking custody in
    promoting the best interest of the children;
    (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 that may indicate the existing
    parent-child relationship is not appropriate; and
    (9) any excuse for the parent’s acts or omissions.
    See Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976) (interpreting former
    Tex. Fam. Code § 15.02 (since amended)); see also 
    Tex. Fam. Code Ann. § 263.307
    (b) (listing factors to be considered in evaluating “whether the child’s
    parents are willing and able to provide the child with a safe environment”). A best-
    interest finding does not require proof of any unique set of factors or limit proof to
    any specific factors. See Holley, 544 S.W.2d at 371–72
    1. The children’s desires or evidence of bonding
    18
    Mother acknowledges that this is a case where the children at issue are too
    young to testify or verbally express their desires. Ludmila and Serafina were
    removed from Mother and Father when they were 7 weeks old. They lived for a
    few months with their maternal grandparents before being placed with Cal and
    Hazel, when they were about five months old. They have lived with Cal and Hazel
    since then. Under such circumstances the factfinder may consider that the child
    has bonded with the foster family, is well cared for by the foster family, and has
    spent minimal time with the parent. In re L.G.R., 
    498 S.W.3d 195
    , 205 (Tex.
    App.—Houston [14th Dist.] 2016, pet. denied).
    After meeting virtually and in person with Cal and Hazel and their family
    approximately 40 times, Ms. Schriber, the Child Advocate volunteer, testified that
    Ludmila and Serafina are “very bonded” with Cal and Hazel; that Ludmila and
    Serafina are “happy and very comfortable.” Ms. Games, Ludmila and Serafina’s
    current caseworker, echoed Schriber’s comments. According to Ms. Games,
    “[Ludmila and Serafina] have a bond with [Hazel and Cal]. I see that they really
    love them. They get along well with [Cal and Hazel’s] children, and they always
    appear to be very comfortable in the home.” Hazel testified about Ludmila and
    Serafina’s favorable relationship and healthy interaction with their older children.
    Cal testified about a positive bond Ludmila and Serafina’s beyond their home, with
    their community.
    Ludmila and Serafina’s maternal grandmother testified that the twins were
    fully integrated into and part of Cal and Hazel’s family and that they were treated
    no differently than Cal and Hazel’s own biological children.
    Mother agreed Ludmila and Serafina are bonded with Cal and Hazel. No
    witness testified that Ludmila and Serafina were bonded with Mother or Father.
    Mother contends that she did not have the opportunity to bond with the children.
    19
    The testimony established that during COVID, Mother and Father would
    visit via video conference daily at times, and weekly in person. Schriber testified
    that two visits she supervised “went well”.   However, Ms. Gomez, Hazel and Cal,
    who supervised visits, reported some improper conduct during the visits, including
    an incident where Father called Cal and/or Hazel a “fucking cunt”. Mother points
    to Hazel’s testimony that Mother’s visits have been largely appropriate, that
    inappropriate behavior occurring during visits was attributable to Father and that
    she would follow-up by apologizing for his behavior.
    On the balance, this factor is slightly supportive of the conclusion that
    termination of Mother’s parental rights is in the best interest of Ludmila and
    Serafina.
    2. The children’s physical and emotional needs, now and in the future
    Regarding the second Holly factor, we note that the need for permanence is a
    paramount consideration for the child’s present and future physical and emotional
    needs. In re D.R.A., 
    374 S.W.3d 528
    , 533 (Tex. App.—Houston [14th Dist.] 2012,
    no pet.). The goal of establishing a stable, permanent home for a child is a
    compelling government interest. 
    Id.
     A parent who lacks stability, income, and a
    home is unable to provide for a child’s emotional and physical needs. In re J.T.G.,
    No. 14-10-00972-CV, 
    2012 WL 171012
    , at *17 (Tex. App.—Houston [14th Dist.]
    Jan. 19, 2012, pet. denied). A factfinder may infer from a parent’s past inability to
    meet the child’s physical and emotional needs the parent’s inability or
    unwillingness to meet the child’s needs in the future. Interest of D.M.M., No. 14-
    18-00750-CV, 
    2019 WL 546029
    , at *8 (Tex. App.—Houston [14th Dist.] Feb. 12,
    2019, pet. denied).
    At the time of trial, Mother remained dependent on Father for housing and
    financial support. Mother did not have a job and the only reason she was looking
    20
    for one was because her FSP required that she seek employment. Mother moved
    back and forth from the apartment and the house she shared with Father, she
    briefly lived with Father at his mother’s (“Karen”) home, and she lived at her
    parents’ home for short periods of time during the pendency of the case. She fixed
    up a room for the twins, which the Department’s caseworker agreed was suitable in
    certain respects.
    A factfinder could reasonably conclude that Mother’s past foreshadows a
    number of likely events that prevent her from being able to care for the children if
    they are returned to her. Based on the history of Mother and Father it is reasonably
    foreseeable to a fact finder that Father injures Mother such that she is unable to
    care for the twins, that Mother returns to rehab, and cannot perform regular
    parenting duties, or that Mother becomes so intoxicated she is unable to perform
    the physical tasks or emotional support essential to caring for the children.
    This factor weighs in favor of terminating Mother’s parental rights.
    3. The emotional and physical danger to the children, now and in the future
    A parent’s drug use supports a positive finding on the third Holly factor that
    termination is in the best interest of the child. Interest of D.M.M., No. 14-18-
    00750-CV, 
    2019 WL 546029
    , at *8 (Tex. App.—Houston [14th Dist.] Feb. 12,
    2019, pet. denied). 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.); see also, In re J.J.W., No. 14-18-00985-CV, 
    2019 WL 1827591
    , at
    *6 (Tex. App. Houston [14th Dist. 2019, pet. denied) (“Drug abuse and its effect
    on the ability to parent can present an endangering course of conduct.”).
    Mother claims she has been sober since September 23, 2020 but tested
    positive for ethyl glucuronide three times after that date; Mother admits having a
    21
    problem with alcohol. Both Mother’s mother, Maria, and Mother’s mother-in-law,
    name, believe Mother is addicted to alcohol. As the factfinder, the judge was free
    to weigh with skepticism Mother’s explanation that her falling down and
    seemingly intoxicated behavior is attributable to her seizure disorder.
    Additionally, a factfinder may infer from the parent’s past conduct
    endangering the child’s well-being that similar conduct will recur in the future. See
    Interest of E.C.S., No. 14-19-00039-CV, 
    2019 WL 2589943
    , at *7, *8 (Tex.
    App.—Houston [14th Dist.] June 25, 2019, no pet.) (mem. op.); Interest of
    D.M.M., No. 14-18-00750-CV, 
    2019 WL 546029
    , at *14 (Tex. App.—Houston
    [14th Dist.] Feb. 12, 2019, pet. denied) (mem. op.). In the face of overwhelming
    evidence and contrary to her own outcries, on multiple occasions and despite
    evidence of such, Mother denied Father committed family violence against her,
    refused to acknowledge she was a victim of domestic abuse, and continued to live
    with Father. Ludmila and Serafina were removed because they were not safe in the
    hotel room with their intoxicated parents who were unable to care for them; the
    first thing Mother asked when the police arrived was for Father to be removed.
    Because of the hostile atmosphere the officer had to call for backup.
    The trial court reasonably could have weighed this Holly factor in favor of
    finding terminating Mother’s parental rights was in the best interest of the children.
    4. The parental ability of the individuals seeking custody
    The Department’s placement with Cal and Hazel, and Cal and Hazel’s
    parenting abilities remains uncontested.      Although Cal and Hazel indicated a
    willingness to adopt Ludmila and Serafina, the option remained available to the
    court to keep them with Cal and Hazel without terminating Mother’s rights.
    Thus, Mother contends that just because she is not currently in a position to
    22
    full-time parent a child, it does not follow that termination is in Ludmila and
    Serafina’s best interest. But even if we consider Mother’s parenting abilities
    relevant to the custodial relationship she seeks, this factor still does not weigh in
    her favor. Testimony was adduced that Mother already had another child of whom
    she no longer has possessory custody, and has visitation rights, but Mother failed
    to demonstrate her efforts, if any, toward nurturing that relationship. Mother
    testified that she saw the older child approximately 2 months before trial, but
    before that time, had not seen her for almost one year because Mother refused to
    undergo SoberLink testing. The trial court could have reasonably concluded that
    Mother had not demonstrated any significant parenting abilities under the same
    circumstances she desires to participate in Ludmila and Serafina’s lives. The trial
    court reasonably could have weighed this factor in favor of finding that terminating
    Mother’s parental rights was in the best interest of the children.
    5. Programs available to assist the person seeking custody in promoting the best
    interest of the children
    The Department provided Mother with a practical plan aimed at promoting
    the best interest of Ludmila and Serafina. Yet, Mother concedes she did not
    complete her FSP.       After attending “more than six” inpatient and outpatient
    rehabilitation programs in seven years, Mother achieved continuing periods of
    sobriety only twice for a total of approximately 15 months.6 The programs have not
    yet proven fully effective, but the trial court could reasonably infer these programs
    remained available to assist Mother. This factor slightly favors a finding that
    6
    By reference to these numbers, we only intend to illustrate the statistical challenge of a
    recovery on pace with Ludmila and Serafina’s childhood. We acknowledge and do not belittle
    Mother’s tireless efforts, trying and failing and trying again, and again. We admire her
    commitment in the past, and even efforts she has shown during the pendency of the case, and
    implore her to utilize all the resources available to her.
    23
    terminating Mother’s parental rights is in the best interest of the children.
    6 & 7. The plans for the child by the individuals or agency seeking custody, and
    the stability of the home or proposed placement
    When asked about her plans for Ludmila and Serafina, Mother focuses on
    her plans for herself; that she wants only the chance to prove to the twins that she
    loves them and can be a good parent. Cal and Hazel offered testimony of plans
    more closely connected with Ludmila and Serafina’s well-being, desiring to offer
    them a safe, peaceful, happy stress-free home. The trial court reasonably could
    have weighed this factor in favor of terminating Mother’s parental rights.
    Ms. Schriber agreed the home and room that Mother had set up for the twins
    was “nice,” but that it did not measure up to the “safe, stable, happy home” she
    envisioned for the girls. She explained more that would be necessary than a
    dwelling and furniture.       Testimony offered about conduct during visitations,
    evidence of threats Father made to Cal and Hazel, Mother’s unwillingness to
    recognize and separate from her violent relationship with Father, are relevant
    considerations.
    This factor slightly favors a finding that terminating Mother’s parental rights
    is in the best interest of the children.
    8 & 9. Acts, omissions, and excuses of existing parent-child relationship:
    Noncompliance with subsection (O) and Excuses for Noncompliance
    Evidence supporting termination under the grounds listed in section
    161.001(b)(1) also can be considered in support of a finding that termination is in
    the child’s best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence
    may be probative of both section 161.001(b)(1) grounds and best interest). In
    determining the best interest of the child in proceedings for termination of parental
    rights, the trial court properly may consider that the parent did not comply with the
    24
    court-ordered service plan for reunification with the child. See In re E.C.R., 
    402 S.W.3d 239
    , 249 (Tex. 2013).
    Mother tested positive for both ethyl glucuronide and amphetamines during
    the pendency of the case and failed to provide an explanation to justify her
    continuing alcohol problems through the term of her service plan. Though she
    admits to having an alcohol problem generally, she cannot account for her
    continued use of alcohol during the period in which her parental rights could be
    won or lost.
    Similarly, after the Department involved itself in her life regarding domestic
    violence, she was given an opportunity to enroll in programs to help her face these
    issues. Mother failed to respond to providers who called her to set appointments.
    She failed to “start the domestic violence victim program that [s]he was
    recommended to complete.”
    This factor favors a finding that terminating Mother’s parental rights is in
    the best interest of the children.
    Concluding Analysis of Holly factors
    Applying the applicable Holley factors to the evidence, we conclude that
    legally and factually sufficient evidence supports the trial court’s finding that
    termination of Mother’s parental rights is in Ludmila and Serafina’s best interests.
    See In re S.B., 
    207 S.W.3d 877
    , 887–88 (Tex. App.–Fort Worth 2006, no pet.)
    (considering the parent’s drug use, inability to provide a stable home, and failure to
    comply with a family-service plan in holding the evidence supported the best-
    interest finding). Based on the evidence presented, the trial court reasonably could
    have formed a firm belief or conviction that terminating Mother’s rights served
    Ludmila and Serafina’s best interests so that they quickly could achieve
    25
    permanency through adoption. See In re T.G.R.–M., 
    404 S.W.3d 7
    , 17 (Tex. App.–
    Houston [1st Dist.] 2013, no pet.); M.G.D., 108 S.W.3d at 513–14.
    Accordingly, we overrule Mother’s sole issue.
    IV. FATHER’S CHALLENGE BASED ON THE TRIAL COURT’S UNOBJECTED-TO
    REMARKS
    In his second issue, Father states that “the trial judge made numerous
    comments during trial that exhibited clear bias and prevented Father from
    receiving a fair trial.”     Father argues in the alternative that his counsel was
    ineffective for failing to object.
    A. Standards of Review
    1. Impartial trial.
    All parties have a right to a fair and impartial trial before a neutral judge. See
    Markowitz v. Markowitz, 
    118 S.W.3d 82
    , 86 (Tex. App.--Houston [14th Dist.]
    2003, pet. denied). When a claim of judicial bias is raised, we review the record to
    determine whether it shows the judge’s bias or prejudice denied the defendant due
    process. See Abdygapparova v. State, 
    243 S.W.3d 191
    , 198 (Tex. App.—San
    Antonio 2007, pet. ref’d).
    It is only in the rarest circumstances, however, that judicial rulings
    demonstrate the degree of favoritism or antagonism necessary to show that a fair
    and impartial trial was not possible. Markowitz, 
    118 S.W.3d at 87
    . Rulings with
    which a party disagrees are best brought as grounds for appeal rather than evidence
    of judicial bias. 
    Id.
     Unfavorable rulings do not alone show judicial bias or
    prejudice. Leleo v. State, No. 01-20-00034-CR, 
    2022 WL 243917
    , at *42 (Tex.
    App.—Houston [1st Dist.] Jan. 27, 2022, no pet. h.). Instead, the judicial ruling
    must “connote a favorable or unfavorable disposition or opinion that is somehow
    26
    wrongful or inappropriate, either because it is undeserved, or because it rests upon
    knowledge that the subject ought not to possess ... or because it is excessive in
    degree.” 
    Id.
     (quoting Liteky v. United States, 
    510 U.S. 540
    , 550 (1994)); see also
    Avilez v. State, 
    333 S.W.3d 661
    , 675 (Tex. App.—Houston [1st Dist.] 2010, pet.
    ref’d).
    2. Ineffective assistance.
    With respect to complaints of ineffective assistance, we apply the Strickland
    test in parental-termination proceedings. Interest of M.T.R., 
    579 S.W.3d 548
    , 573–
    74 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) referring to Strickland v.
    Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
     (1984). Strickland
    imposes a two-pronged standard to establish an ineffective-assistance claim. First,
    the parent must show that counsel’s performance was deficient. This requires
    showing that counsel made errors so serious that counsel was not functioning as
    the “counsel” guaranteed by the Sixth Amendment. Second, the parent must show
    that the deficient performance prejudiced the case. This requires showing that
    counsel’s errors were so serious as to deprive the party of a fair trial—a trial whose
    result is reliable. Strickland, 
    466 U.S. at 687
    , 
    104 S.Ct. 2052
    . In other words, a
    parent must show that (1) counsel’s performance was deficient, and (2) the
    deficient performance prejudiced the parent’s case. M.S., 115 S.W.3d at 545.
    To determine whether representation was deficient, we must consider all of
    the circumstances surrounding the case and determine whether counsel was
    “reasonably effective.” Id. In doing so, we afford great deference to counsel’s
    performance, indulging “a strong presumption that counsel’s conduct falls within
    the wide range of reasonable professional assistance.” Id. (quoting Strickland, 
    466 U.S. at 689
    , 
    104 S. Ct. 2052
    ). Only if counsel’s conduct is “so outrageous that no
    competent attorney would have engaged in it” will we find such performance
    27
    deficient. 
    Id.
     (quoting Garcia v. State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App.
    2001)).
    In conducting the harm analysis under the second prong of Strickland,
    reviewing courts must determine whether there is a reasonable probability that, but
    for the deficient performance, the result of the proceeding would have been
    different. M.S., 115 S.W.3d at 550. In this context, “[a] reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” Strickland, 
    466 U.S. at 694
    , 
    104 S.Ct. 2052
    . Thus, the parent must also show that “counsel’s
    deficient performance prejudiced the defense.” In re J.O.A., 
    283 S.W.3d 336
    , 344
    (Tex. 2009) (quoting Strickland, 
    466 U.S. at 687
    , 
    104 S.Ct. 2052
    ).
    B. Is Father entitled to a new trial based on remarks made by the trial court
    to which his counsel did not object?
    Father refers us to three comments, and contends that the “totality” of these
    three comments made by the trial court “sufficiently illustrate [the trial court’s]
    implicit bias towards [Father] and favoritism towards the caregiver, [Cal]”. Below
    we first analyze each of the three comments, as framed in Father’s complete
    complaint to each comment in his brief:
    Complaint that the judge’s comment made during Cal’s testimony illustrates bias
    in favor of Cal
    First the judge made the following statement during the caregiver,
    [Cal’s] testimony, which indicates bias in favor of the caregiver:
    [S]o what I sense if that you’re testifying to what you believe is
    genuine[,] Ms. Smith will follow up with anything that she feels
    that she needs to be followed up on or if there needs to provide
    more explanation. So at this point, just answer Mr. Shireman’s
    question, and trust that Ms. Smith will do her job when it gets
    back around her to re-questioning you.
    28
    Father provides little context to support his argument. The record shows that
    the judge’s comment was not made spuriously, as if immediately following an
    answer Cal provided. Rather, the excerpted comment followed an exchange
    between    counsel   that   began    with        the   cross   examiner’s   (Shireman’s)
    “nonresponsive”-objection to Cal’s answer, which was followed by another
    attorney’s (Smith’s) objection that the cross-examiner was “interrupting witnesses
    testimony” – Smith then remarked on the cross-examiner’s professionalism, which
    prompted Shireman to object as a “sidebar.” It was following this sequence—first,
    Cal’s testimony, Shireman’s “non-responsive” objection, Smith’s objection to
    Shireman’s objection then Smith’s own remark, and Shireman’s objection to
    Smith’s remark—that the court inserted itself as it did.
    Trial courts are encouraged to exercise reasonable control over the mode of
    examining witnesses and presenting evidence so as to avoid wasting time and to
    protect witnesses from harassment or undue embarrassment. Tex. R. Evid. 611(2),
    (3). Taken in context, it would seem the court was just exercising reasonable
    control over the proceeding. See Metzger v. Sebek, 
    892 S.W.2d 20
    , 38 (Tex.
    App.—Houston [1st Dist.] 1994, writ denied). It is common practice for trial
    judges seeking to curb objections that disrupt a witness’s testimony to remind
    counsel of their opportunity to further examine the witness. We conclude the
    judge’s comment did not amount to a demonstration of bias or prejudice in favor of
    Cal or against Father.
    Complaint as to judge’s comment made during Mother’s testimony that Mother’s
    testimony was responsive to Father’s nonverbal cues
    Next, during [Mother’s] testimony, the trial judge stated:
    So, no. I’ve been watching this. Every time you say something
    that [Father] doesn’t like then you want to go back to that
    question and correct your answer. So I guarantee you, what
    29
    you’re wanting the question to be repeated was, who has
    primary custody. When Mr. Shireman asked that question,
    [Father] raised his eyebrow. So no, no, you cannot change your
    answer.
    On the record before us, we cannot ascertain that the judge’s comment was
    inappropriate. If in fact the judge had observed Father nonverbally communicating
    to Mother during her testimony (whether or not she also observed the witness
    modify her answers), then the judge was within her discretion to address and curb
    the inappropriate conduct.     Likewise, if the judge in fact observed the witness
    modify her answers, the judge was within her discretion to address the witness’s
    conduct in the manner described. To the extent, if any, the trial court was incorrect
    about Mother’s motivation for her request to repeat the previous question, neither
    Mother’s attorney nor Father’s attorney objected to the trial court’s statement.
    This was a fair expression for the court to assert in the course of managing the trial.
    Metzger, at 38. To the extent the judge’s comment is characterized as an opinion,
    on its face, her opinion about Mother’s motivation for asking the question was
    based on what she “heard and saw during the trial,” which was not improper, and
    does not show bias. See Barrientos v. Nava, 
    94 S.W.3d 270
    , 291-92 (Tex. App.—
    Houston [14th Dist.] 2002, no pet.).
    Complaint of comment made during Father’s testimony that the court was
    “articulating feelings” about Father’s testimony
    [D]uring [Father’s] testimony, [Father] answered a question related to
    how he plans to show he has changed as follows:
    To show that we are remaining sober; to show that we’re
    instilling our core values and morales [sic]; to – to show how
    we can support the girls’ every needs and more; to do anything
    and everything; and to give them the things that they need to
    have a great life and to be able to provide that. And so allowing
    us to – with the joint management [sic] conservatorship will
    give us time, because we haven’t had time to spend with the
    30
    girls this entire time. That would give us the time to show to
    people that, hey you know, these guys have changed and they
    can be great parents to their children, and their children deserve
    for them to be great parents. And so this would give us the
    chance to prove that.
    In response to an objection as nonresponsive, the trial judge
    articulated her feelings about his testimony:
    It’s a lot of words that – I don’t know if he’s saying much. It is
    a lot of words.
    As with the previous comments, this third comment by the judge makes
    more sense in context. The question asked of Father was: “Tell the Court what
    specifically — tell the Court what specifically you think you need to work on so
    you can become the parent you described for these girls.” This ultimately yielded
    Father’s 133-word answer, to which the ad litem attorney (who had asked the
    question) objected to as non-responsive. The objection was not sustained, there
    was no adverse ruling, and shortly after the judge’s remark the ad litem stated
    “And I agree. He named the specifics”. The testimony was not stricken.
    At worst, the comment illustrated the judge’s impatience, annoyance or
    dissatisfaction. Liteky v. United States, 
    510 U.S. 540
    , 555–56, 
    114 S. Ct. 1147
    ,
    1157, 
    127 L. Ed. 2d 474
     (1994)(“Not establishing bias or partiality, however, are
    expressions of impatience, dissatisfaction, annoyance, and even anger, that are
    within the bounds of what imperfect men and women. . .sometimes display”).
    Whether the totality of the record demonstrates a deprivation of Father’s due
    process rights to a fair trial
    Even if we presume the complained-of comments are of the rare sort that
    require our review in the absence of an objection, upon our review of the three
    comments and the entire record, we cannot conclude that record demonstrates a
    deprivation of Father’s due process rights to a fair trial. See Markowitz, 118
    31
    S.W.3d at 88 (concluding the cumulative effect of roughly thirty rulings we
    conclude that the trial judge did not exhibit deep-seated favoritism or antagonism
    that would make fair judgment impossible); Dow Chem. Co. v. Francis, 
    46 S.W.3d 237
    , 240 (Tex. 2001)(reversing court of appeals, concluding trial court’s seven
    comments toward employee’s counsel were insufficient to support a finding of
    judicial bias or misconduct); Metzger v. Sebek, 
    892 S.W.2d 20
    , 39 (Tex. App.—
    Houston [1st Dist.] 1994, writ denied)(concluding the cumulative effect of over
    150 incidents pointed out by appellant during trial that lasted over a month,
    including some incidents where jurors could reasonably perceive that the judge had
    been impatient, agitated, and angry at appellant’s counsel did not show partiality or
    bias).
    B. Is Father entitled to a new trial based on his claim that his trial counsel was
    ineffective?
    Father has not attempted to show how his counsel’s failure to object to these
    comments meets either prong of the Strickland test for ineffective assistance.
    Because we find that none of the comments cited by Father amounted to a due
    process violation illustrating bias, we likewise find that his failure to object to the
    complained-of comments on those grounds would not and did not result in
    ineffective assistance of counsel. Taking into account all of the circumstances
    surrounding the case, Father’s counsel’s performed in a reasonably effective
    manner. See Strickland, 
    466 U.S. at 545
    . We cannot conclude that Father’s
    counsel’s representation was so grossly deficient so as to render the proceeding
    fundamentally unfair. 
    Id.
    Accordingly, we overrule Father’s second issue.
    V. CONCLUSION
    Having overruled each of the issues presented, we affirm the judgment of the
    32
    trial court.
    /s/    Randy Wilson
    Justice
    Panel consists of Justice Wise, Poissant and Wilson.
    33