in the Interest of S.R., S.R. and B.R.S., Children

Affirmed and Opinion filed November 13, 2014.

In The

Fourteenth Court of Appeals

NO. 14-14-00393-CV

NO. 14-14-00416-CV

IN THE INTEREST OF S.R., S.R. AND B.R.S., CHILDREN

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 70722

OPINION

In these consolidated appeals, both D.R. (the Father) and D.S. (the Mother)

appeal from the decree terminating their parental rights to three children, S.R.

(Scott), S.R. (Sally), and B.R.S. (the Baby) (collectively, the Children).1 The

Father raises three issues challenging the sufficiency of the evidence supporting the

trial court’s termination findings and the failure to appoint counsel for him until

after the first adversary hearing. The Mother raises a single broad issue challenging

the sufficiency of the evidence supporting termination. We affirm.

1

To protect the identities of the minors, we have not used the actual names of the

Children, parents, or other family members. See Tex. R. App. P. 9.8.

I. BACKGROUND

The record reflects that the Mother and Father were married in early 2009,

but they separated in January 2012. The Children were very young during these

proceedings: Scott was born in March 2010, Sally was born in January 2011, and

the Baby was born in July 2012.

In 2011 and early 2012, before the youngest child was born, the Department

of Family and Protective Services (the Department) became involved with the

parents after receiving several referrals alleging drug use, unsanitary living

conditions, physical abuse, sexual abuse, and neglect. Although the Department’s

investigation later ruled out physical and sexual abuse of the Children, the

Department was concerned about the parents’ acknowledged untreated mental

illnesses and instances of domestic violence in front of the Children. The parents

were offered family-based safety services for protection of the Children, and in

May 2012, they signed the first of several safety plans outlining services for the

safety and protection of the Children.

Shortly thereafter, it was alleged that the Mother left Scott and Sally alone

with her father (the Grandfather). The safety plan had specified the Children were

not to be left alone with the Grandfather because of his health problems and history

of marijuana use. At that time, the two older children were living with the Father

and his girlfriend, and the Mother had supervised visits.

In July 2012, shortly after the Baby was born, the Department’s caseworker

visited the Mother and instructed her in safe care of the Baby. The Mother signed

another safety plan to include protection of the Baby. Later that same month, the

Father was arrested and charged with assaulting the Mother. After the Father was

arrested, all three Children were placed in the Mother’s care, with her mother (the

Grandmother) supervising her contact with the Children.

2

At a visit in September, the caseworker found the Children at the Father’s

home unsupervised, and she was concerned for their safety. The Department also

alleged the parents did not comply with the safety plans, particularly those services

addressing domestic violence issues. On September 20, 2012, the parents signed an

agreement for Parental Child Safety Placement voluntarily placing the Children

with a friend, Melissa Green. The parents were permitted supervised visits with the

Children until their service plans were completed. In November, the Father was

arrested for possession of drug paraphernalia. In early December, the Department

became concerned about other individuals who were staying in Green’s home, and

the Mother had also moved into the home.

On December 3, 2012, Green advised the caseworker that the Mother took

the Children away from her home unsupervised and their whereabouts were

unknown. The Department then petitioned for protection of the Children, seeking

custody and termination of the parents’ parental rights. After an emergency

hearing, the court found an immediate danger to the health or safety of the

Children and named the Department temporary managing conservator of the

Children. The Children were missing for two days before the parents returned them

to the Children’s Protective Services (CPS) offices. By this time, the Father was no

longer living with his girlfriend.

A full adversary hearing was set for December 13, 2012. The record reflects

the Father was present at the adversary hearing, but the Mother was not. The court

found there was a danger to the physical health and safety of the Children and

signed an order naming the Department temporary managing conservator of the

Children. The Children were placed in foster care, and the parents each were

granted supervised visits at the CPS office.

On January 17, 2013, the court appointed CASA, an acronym for Court

Appointed Special Advocates, as guardian ad litem for the Children. See Tex. Fam.

3

Code § 107.031. A status hearing was held January 31, 2013. The Mother was

present, but the Father was not. He was represented by counsel, however. The

initial permanency hearing was held May 30, 2013. The Father was present, but the

Mother was not. A permanency hearing was held on October 17, 2013. The parents

were not present. Another permanency hearing was held January 30, 2014, and

both parents were present.

The case was tried to the court on May 6–8, 2014. The Mother was not

present at trial and her whereabouts were unknown. Two of the Department’s

caseworkers, the CASA volunteer, a mental health professional, a mental health

caseworker, a police officer, and the Father testified at trial. At the conclusion of

the trial, the court granted the Department’s request for termination of both

parents’ parental rights. On May 16, 2014, the court signed a judgment reciting

that both parents’ parental rights were terminated based on findings that

termination is in each of the Children’s best interest and that the parents committed

acts establishing the predicate termination grounds set out in subsections D, E, and

O of Texas Family Code Section 161.001(1). Tex. Fam. Code §§ 161.001(1)(D),

(E) & (O); 161.001(2). The Department was appointed sole managing conservator

of the Children. Both parents filed notices of appeal.2

II. BURDEN OF PROOF AND STANDARDS OF REVIEW

Involuntary termination of parental rights is a serious matter implicating

fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);

In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no

pet.). Although parental rights are of constitutional magnitude, they are not

absolute. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is

2

The Father’s appeal was docketed under case number 14-14-00393-CV, and the

Mother’s appeal was docketed under case number 14-14-00416-CV. The appeals were ordered

consolidated.

4

imperative for courts to recognize the constitutional underpinnings of the parent-

child relationship, it is also essential that emotional and physical interests of the

child not be sacrificed merely to preserve that right.”).

Due to the severity and permanency of the termination of parental rights, the

burden of proof is heightened to the clear and convincing evidence standard. See

Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).

“Clear and convincing evidence” means “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Tex. Fam. Code § 101.007; accord In re

J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened

standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th

Dist.] 2008, no pet.).

Parental rights can be terminated upon proof by clear and convincing

evidence that (1) the parent has committed an act prohibited by section 161.001(1)

of the Family Code; and (2) termination is in the best interest of the child. Tex.

Fam. Code §§ 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

Only one predicate finding under section 161.001 is necessary to support a

judgment of termination when there is also a finding that termination is in the

child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

In reviewing the legal sufficiency of the evidence in a parental-rights

termination case, we must consider all the evidence in the light most favorable to

the finding to determine whether a reasonable factfinder could have formed a firm

belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re

J.F.C., 96 S.W.3d at 266. We assume that the factfinder resolved disputed facts in

favor of its finding if a reasonable fact finder could do so, and we disregard all

evidence that a reasonable factfinder could have disbelieved. In re J.O.A., 283

S.W.3d at 244; In re J.F.C., 96 S.W.3d at 266.

5

In reviewing termination findings for factual sufficiency of the evidence, we

consider and weigh all of the evidence including disputed or conflicting evidence.

In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding

is so significant that a fact finder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id. We give due deference

to the factfinder’s findings and we cannot substitute our own judgment for that of

the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is

the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at

109. We are not to “second-guess the trial court’s resolution of a factual dispute by

relying on evidence that is either disputed, or that the court could easily have

rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003)

(explaining that in a parental-rights termination case, an appellate court should not

reweigh disputed evidence or evidence that depends on a witness’s credibility).

III. ISSUES ON APPEAL

In his first issue, the Father argues that the trial court reversibly erred in

failing to appoint an attorney to represent him until after the adversary hearing had

been completed. In his second issue, the Father asserts that the evidence is legally

and factually insufficient to support the trial court’s finding that the Children were

removed from him due to abuse or neglect, as required by the predicate termination

ground in section 161.001(1)(O). The Father alleges in his third issue that the

evidence is legally and factually insufficient to support the trial court’s

endangerment findings in section 161.001(1)(D), (E). The Father’s third issue

includes a challenge to the legal and factual sufficiency of the evidence supporting

the trial court’s finding that termination of his parental rights is in the Children’s

best interest. See Tex. Fam. Code § 161.001(2).

The Mother has alleged a single broad issue challenging the sufficiency of

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the evidence to support the trial court’s termination findings.3 Although the

Mother’s issue is broadly worded, she has not argued or cited authority that the

evidence is insufficient to support the trial court’s best-interest finding. See Tex.

Fam. Code § 161.001(2).

If disposition of an issue would result in a rendition of judgment, an

appellate court should consider that issue before addressing any issues that would

only result in a remand for a new trial. See Natural Gas Pipeline Co. of Am. v.

Pool, 124 S.W.3d 188, 201 (Tex. 2003); see also In re K.W., 138 S.W.3d 420, 428

(Tex. App.—Fort Worth 2004, pet. denied) (applying this rule in a termination of

parental rights appeal and first addressing legal sufficiency challenges).

Accordingly, we first consider the challenges to the legal sufficiency of the

evidence, followed by a review for factual sufficiency.

IV. PREDICATE TERMINATION GROUNDS

Both parents challenge the legal and factual sufficiency of the evidence to

support the predicate termination grounds. The trial court found three predicate

grounds for termination: subsections D, E, and O of section 161.001(1). See Tex.

Fam. Code § 161.001(1)(D), (E) & (O). Relevant to this proceeding, section

161.001(1) provides in relevant part that termination of parental rights is warranted

if the trial court finds by clear and convincing evidence, in addition to the best

3

Included in the Mother’s issue is an argument challenging the appointment of the

Department as the sole managing conservator of the Children When parental-rights termination

is sought, appointment of a managing conservator is governed by section 161.207, which

provides that if a court terminates the parent-child relationship of both parents, “the court shall

appoint a suitable, competent adult, [the Department], a licensed child-placing agency, or an

authorized agency as managing conservator of the child.” Tex. Fam. Code § 161.207(a). A trial

court does not abuse its discretion in appointing the Department as conservator of the children

where the evidence is sufficient to support termination of parental rights. In re C.N.S., No. 14-

14-00301-CV, 2014 WL 3887722, *13 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014, no pet.)

(mem. op.). As discussed herein, the evidence in this case is sufficient to support termination of

the parents’ parental rights. Accordingly, we hold the court did not abuse its discretion by

appointing the Department as the Children’s managing conservator.

7

interest finding, that the parent has:

(D) knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional

well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons

who engaged in conduct which endangers the physical or emotional

well-being of the child;

...

(O) failed to comply with the provisions of a court order that

specifically established the actions necessary for the parent to obtain

the return of the child who has been in the permanent or temporary

managing conservatorship of the Department of Family and Protective

Services for not less than nine months as a result of the child’s

removal from the parent under Chapter 262 for the abuse or neglect of

the child;

Tex. Fam. Code § 161.001(1)(D),(E) & (O).

Because subsections D and E both concern endangerment and the evidence

on each may overlap in some respects, we address both of these predicate findings

together.

V. ENDANGERMENT

Both subsections D and E of section 161.001(1) use the term “endanger.”

“To endanger” means to expose a child to loss or injury or to jeopardize a child’s

emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996);

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).

Endangerment under subsection D may be established by evidence related to

the child’s environment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th

Dist.] 2008, pet. denied). “Environment” refers to the acceptability of living

conditions, as well as a parent’s conduct in the home. In re W.S., 899 S.W.2d 772,

776 (Tex. App.—Fort Worth 1995, no writ). A child is endangered when the

8

environment creates a potential for danger that the parent is aware of but

consciously disregards. See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort

Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston

[14th Dist.] 2005, no pet.). Inappropriate, abusive, or unlawful conduct by a parent

or other persons who live in the child’s home can create an environment that

endangers the physical and emotional well-being of a child as required for

termination under subsection D. In re M.R.J.M., 280 S.W.3d at 502.

Under subsection E, the evidence must show the endangerment was the

result of the parent’s conduct, including acts, omissions, or failure to act. In re

J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination

under subsection E must be based on more than a single act or omission; the statute

requires a voluntary, deliberate, and conscious course of conduct by the parent. Id.

A court properly may consider actions and inactions occurring both before and

after a child’s birth to establish a “course of conduct.” In re S.M., 389 S.W.3d 483,

491–92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves

physical endangerment, the statute does not require that conduct be directed at a

child or that the child actually suffers injury; rather, the specific danger to the

child’s well-being may be inferred from parents’ misconduct alone. Tex. Dep’t of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d

732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that

subjects a child to a life of uncertainty and instability endangers the child’s

physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—

Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex. 2014).

In evaluating endangerment under subsection D, we consider the child’s

environment before the Department obtained custody of the child. See In re J.R.,

171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Under

subsection E, however, courts may consider conduct both before and after the

9

Department removed the child from the home. See Avery v. State, 963 S.W.2d 550,

553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (considering persistence of

endangering conduct up to time of trial); In re A.R.M., No. 14-13-01039-CV, 2014

WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem.

op.) (considering pattern of criminal behavior and imprisonment through trial).

Because the inquiry under both subsections D and E includes the conduct of

the parent, evidence of criminal conduct, convictions, or imprisonment is relevant

to a review of whether a parent engaged in a course of conduct that endangered the

well-being of the child. A.S. v. Tex. Dep’t of Family & Protective Servs., 394

S.W.3d 703, 712-13 (Tex. App.—El Paso 2012, no pet.). Evidence of the parents’

criminal histories was presented at trial. The Father received deferred adjudication

probation for theft by check on September 24, 2009. He testified the probation was

later revoked and he spent about thirty days in jail. The Father was arrested for

assaulting the Mother in July 2012. He was also arrested for possession of drug

paraphernalia in November 2012. The Father was arrested and jailed for theft at the

time of the January 2014 permanency hearing. In addition, he was arrested for

possession of a drug detection device in April 2014.

The Mother was convicted of theft on August 22, 2013, and she was

sentenced to sixty-eight days in county jail. At the same time, she was convicted of

assault causing bodily injury and sentenced to a concurrent sixty-eight days in

county jail. On January 23, 2014, the Mother was convicted of another assault

causing bodily injury to a family member, the Grandfather, and she was sentenced

to 100 days in county jail. In January 2014, the Mother acknowledged she had

been arrested for assault three times in the last year and a half.

In addition, “[d]omestic violence, want of self-control, and propensity for

violence may be considered as evidence of endangerment.” In re J.I.T.P., 99

S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). The

10

Department’s Family-Based Safety Services (FBSS) caseworker, Donzell Bellow,

testified at trial about her involvement with the family from June 4, 2012 until

December 2012. Bellow testified she was concerned about the domestic violence

around the Children and stated the Children were not safe with their parents.

Bellow testified the parents admitted to domestic violence in front of the children.

At trial, however, the Father denied ever hitting the Mother. Bellow testified that

the Mother received a broken nose in one incident, and that the Father was arrested

for another assault in July 2012. The Father told Bellow that when he took the

Children to visit their Mother, “she wouldn’t get out of the car” and “started

fighting him, trying to stay in the car. He took off with her and then he threw her

out of the car” while the Children were in the car.

Bellow also testified to another incident in December 2012, when she was

concerned for the Children’s safety. The Mother removed the Children from the

voluntary placement, and the Children were missing for two days. The Department

obtained an emergency order to take custody of the Children. Although the Father

at first denied knowing where the Mother and Children were, he located them and

with the Grandmother’s help, convinced the Mother to return the Children. Bellow

and another caseworker were following the parents, who had the Children in the

car, to ensure they returned the Children to the CPS office. The co-worker

observed the Father hitting the Mother. The police were notified about the assault,

and officers were at the CPS office when the parents arrived. The officers

questioned the Mother about the assault, but she denied it. Bellow testified that in

her opinion, these incidents of domestic violence were conditions that endanger the

physical and emotional well-being of the Children.

A parent’s drug use can also qualify as a voluntary, deliberate, and

conscious course of conduct endangering the child’s well-being. See In re C.A.B.,

289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Continued

11

illegal drug use after a child’s removal is conduct that jeopardizes parental rights

and may be considered as establishing an endangering course of conduct.

Cervantes–Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244,

253–54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).

Bellow testified about the Mother’s drug use. Early in the case, the Mother

had tested positive for marijuana, despite her denial that she used marijuana. As a

result of the positive drug test, the Mother was asked to participate in a drug

assessment, but she left the facility without completing the assessment. The Mother

testified at the January 2014 hearing that she had last used illegal drugs, namely

“speed,” the previous July. Bellow testified she was also concerned about the

Mother’s appearance as indicative of drug use. She appeared to lack proper

hygiene: she was dirty, had sores all over her face and body, and her teeth were

decayed.

As for the Father, Bellow was concerned about his possible drug use. Bellow

had a strong belief that the Father was using drugs, and she was aware of his arrest

for possession of drug paraphernalia. The Father told Bellow the drugs found in the

car at that time belonged to his friend. Bellow explained that the Department did

not routinely test for “K2,” synthetic marijuana, and special tests were required.

She testified that parental drug use around children endangers them.

At trial, the Father denied drug use. On cross-examination, he admitted that

he had smoked K2, resulting in a positive drug test, because of the stress of the

CPS case. He claimed that the drug use resulting in the positive test was an isolated

incident, and he stated the Children were not present. The Department’s

caseworker acknowledged at trial that the Father’s drug tests during the last year

were negative.4 The Father had missed some scheduled tests, however. In addition,

4

Although the record contains the parents’ drug tests that were positive for “K2,” or

synthetic marijuana, the reports were not authenticated and were admitted for only limited

12

Officer Joshua Rowland testified about the Father’s arrest for possession of a drug

test falsification device called “Safeguard U Pass Synthetic Urine” on April 4,

2014. The Father admitted to the officer that the device was his property. At trial,

however, the Father claimed that the device was not his and he never used it.

The Department’s caseworkers also testified about their concerns that the

parents were not participating in the court-ordered services. A parent’s efforts to

improve or enhance parenting skills are relevant in determining whether a parent’s

conduct results in endangerment under subsection E. See In re D.T., 34 S.W.3d

625, 640 (Tex. App.—Fort Worth 2000, pet. denied). Failure to maintain stability

endangers the child’s physical and emotional well-being. See In re A.B., 412

S.W.3d at 599.

In her testimony at the January 2014 hearing, the Mother agreed she had not

done a good job in completing her services over the past year. Bellow testified she

was concerned about the Mother’s instability. There was evidence that the Mother

had no safe home and no employment. Caseworker Schrelle Atkinson, who was

assigned the case in September 2013 after the previous caseworker left the

Department’s employ, testified that until the Mother was incarcerated in January

2014, she had trouble locating her. After the Mother’s release from jail in early

2014, she was not employed and was living with her uncles in Bay City.

Caseworker Atkinson testified that at the time of the permanency hearing in

January 2014, the Father was in jail on a theft charge. The caseworker testified that

as a result of the Father’s incarceration, he was not able to be employed, support

his family, or visit the Children. The Father admitted he was not employed before

he was arrested. He testified he lost one plumbing job because the company

purposes related to the parents’ service plans, not as evidence of drug use. See Tex. R. Evid. 105.

Therefore, we do not consider the results of the positive drug tests as evidence of drug use for

purposes of the sufficiency analysis.

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downsized and he lost another because he took off work to visit the Mother when

she was hospitalized. The Father explained that his failure to attend therapy and

complete his other services was due to a lack of transportation. He testified he had

a car, but lacked funds to buy gas. He also complained that the Department

changed his therapist. The caseworker explained that another therapist had been

added to the Father’s service plan because that therapist was qualified to provide

behavior therapy to treat the Father’s bipolar condition.

The record also contains evidence related to the parents’ mental health and

their failure to participate in services related to treatment. Mental illness alone is

not grounds for terminating the parent-child relationship. Maxwell v. Tex. Dep’t of

Family & Protective Servs., No. 03–11–00242–CV, 2012 WL 987787, at *9 (Tex.

App.—Austin Mar. 23, 2012, no pet.) (mem. op.). Untreated mental illness can

expose a child to endangerment, however, and is a factor the court may consider.

See id. at *10; In re L.L.F., No. 02–11–00485–CV, 2012 WL 2923291, at *15

(Tex. App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (considering a parent’s

failure to take medication to treat mental health issues as a factor in creating an

environment that endangers the child’s emotional or physical well-being); In re

J.I.T.P., 99 S.W.3d at 845 (considering a parent’s mental health and non-

compliance with her medication schedule as factors in endangering the child).

Caseworker Bellow was concerned that the parents violated the safety plans

and failed to comply with the court-ordered services related to treatment for their

mental health. She testified, “we did not feel the home was stable enough for the

kids to reside in because the parents were not cooperating with services to get the

help that was needed.” Both parents acknowledged that they failed to comply with

the recommendations for therapy. The Father admitted he did not take medications

recommended to treat his conditions, and he testified he did not believe he needed

medication any more.

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Venette C. Westhoven, Ph.D., a clinical psychologist, testified at trial about

the psychological evaluations she performed on the parents in July 2012. She

diagnosed the Father with bipolar disorder and borderline personality disorder. The

Father told her that he had been diagnosed with borderline personality disorder in

2011 when he was in the military. Westhoven described bipolar disorder as a mood

disorder that involves a combination of manic episodes and depressive symptoms.

An individual in a depressive episode has “difficulty motivating, getting things

done. In a manic episode, a [person] has difficulty concentrating.” She testified not

only does a parent with this untreated condition have difficulty meeting the

parent’s own needs, the parent finds it difficult to meet a child’s needs. With

borderline personality disorder, a person has traits including perceived

abandonment and rejection, an unstable, volatile, and intense pattern of

relationships, unstable self-image, impulsivity, reactive mood, irritability, anxiety,

chronic feelings of emptiness, feelings of isolation and paranoid ideation that can

include self-harm and harm to others, suicidality, moodiness, irritability, and

difficulty controlling anger. Westhoven added that the component of difficulty

controlling anger puts a person at risk for hurting someone else. The instability,

irritability, difficulty controlling anger, and intense volatile relationships can

negatively impact a child. Westhoven was concerned about the Father’s lack of

emotional stability and the personality characteristics described above making it

difficult for him to implement effective parenting strategies. Westhoven testified

she would be concerned if the Father failed to take medication for bipolar disorder

and failed to undergo treatment for borderline personality disorder.

At the time of her evaluations, Westhoven found no indications that the

Children were in danger at that point, but based on her diagnoses, she

recommended that the Department monitor and supervise closely the Father’s

home environment. She had concerns about the Father’s parenting ability. She

15

recommended counseling to address the Father’s personality characteristics,

specifically individual or group Dialectical Behavioral Therapy. She discussed

domestic violence with the Father. He told her that he tries to remain nonphysical,

but the Mother hits him and that he has to defend himself by restraining her.

Westhoven diagnosed the Mother with adjustment disorder, anxiety, and

depression. She explained that with depression, a person lacks motivation and has

difficulty finding the energy to take care of one’s children. The Mother also

admitted using marijuana, but she told Westhoven she last used it in September

2011. The Mother later acknowledged that she had a positive drug test in May

2012. Westhoven testified drug use “impairs functioning, which then would impair

parenting.” Westhoven recommended the mother participate in individual

counseling and also recommended the Mother, who was pregnant at the time, be

reevaluated after the birth of the Baby so that a medication evaluation could be

made. Westhoven also recommended the Mother complete a drug treatment

program, follow up with a support group, participate in parenting classes, and

attend family therapy with the Children.

Westhoven acknowledged that neither parent had participated in treatment

with her since her July 2012 evaluations. The parents also acknowledged they did

not engage in therapy. Additionally, the Father admitted that he did not regularly

take his recommended medication. The Father later testified, however, that he had

been in therapy with CPS-selected therapists from 2012 until trial.

The Department also presented testimony from Crystal Carpenter, a former

crisis case manager for the Gulf Coast Center of Galveston County MHMR

(Mental Health and Mental Retardation). She explained that as a crisis case

manager, she worked to assist people with psychiatric needs who are in crisis.

Either from referrals or through the crisis hotline, she responded to “people with

suicidal thoughts or hearing voices or just having a really bad time, to assist with

16

them not going into inpatient hospitalization.” Carpenter described her duties to

perform an initial crisis assessment and work to alleviate the crisis so the patients

could be referred to the adult clinic, avoiding hospitalization. Her office arranged

for “telemedicine” to provide medication for the patients. She explained that in

telemedicine, a patient at the Angleton clinic, which has special video equipment,

can be evaluated by a psychiatrist in a remote location “over the TV,” and the

patient can receive access to medication in emergency situations.

Carpenter testified she completed a crisis assessment on the Father on

January 7, 2013. The Father told her he was depressed about the CPS case, and he

was having suicidal thoughts. He acknowledged he had experienced suicidal

thoughts in the past. Carpenter set up an appointment for telemedicine and

provided the Father transportation to the clinic. She testified the Father was

prescribed medication—Effexor XR, Depakote ER, Hydroxyzine, and Elavil.

Carpenter again provided the Father transportation to the follow-up visit to

evaluate the Father’s medication. She stressed to the Father the importance of

taking his medication. Carpenter testified that the Father also called her on January

30, 2013, and told her he had a fight with his roommate and “[h]e was feeling like

he wanted to hurt him.” She called a mental health deputy to transport the Father to

a hospital. The Father acknowledged he spent two to four weeks at St. Joseph’s

psychiatric ward in February 2013, after stating he felt homicidal. After that

incident, the Father was scheduled to be evaluated at the adult clinic in Angleton,

but he was a “no-show.” Carpenter then scheduled the Father an appointment with

Dr. Aviles, a psychiatrist in Alvin, and she provided transportation to that

appointment on March 21, 2013. The Father was supposed to have another follow-

up visit in four to six weeks, but he did not attend any further appointments.

This evidence of the parents’ failure to comply with services to improve

their mental health is a factor that the trial court could have considered in finding

17

that the parents engaged in a course of conduct that endangered the physical and

emotional well-being of the Children. See In re J.I.T.P., 99 S.W.3d at 845 (finding

mother’s suicidal thoughts and history of noncompliance with medication schedule

relevant to endangerment analysis).

Reviewing all the evidence—including the evidence summarized above—in

the light most favorable to the termination findings under subsections D and E, we

conclude that a reasonable factfinder could have formed a firm belief or conviction

as to the truth of the finding that the parents engaged in endangering conduct and

left the Children in endangering conditions. See In re J.O.A., 283 S.W.3d at 344. In

light of the entire record, the disputed evidence that a reasonable factfinder could

not have credited in favor of these termination findings is not so significant that a

factfinder could not reasonably have formed a firm belief or conviction as to the

truth of these termination findings. See In re H.R.M., 209 S.W.3d at 108. As the

finder of fact and sole judge of the credibility of the witnesses, the trial court was

free to disregard any or all of the parents’ self-serving testimony. See In re S.A.H.,

420 S.W.3d 911, 927 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We hold

the evidence is legally and factually sufficient to support the predicate termination

findings under subsections D and E.

Having determined that the evidence is sufficient to support the trial court’s

finding on these statutory grounds, we need not consider whether the evidence

would support subsection O—the other ground for termination challenged in the

Father’s second issue. See In re A.V., 113 S.W.3d at 362 (affirming termination

decree based on one predicate without reaching second predicate found by the trier

of fact and challenged by the parent); In re B.K.D., 131 S.W.3d 10, 16 (Tex.

App.—Fort Worth 2003, pet. denied). We overrule the Mother’s sole issue and the

main component of the Father’s third issue concerning the endangerment predicate

grounds.

18

VI. BEST INTEREST

We next address the remainder of the Father’s third issue, in which he

contends the evidence does not support the trial court’s finding that termination of

his parental rights is in the best interest of the Children. Before terminating a

parent’s rights, the factfinder also must find that terminating the parent’s rights is

in the child’s best interest. Tex. Fam. Code § 161.001(2); see also In re A.V., 113

S.W.3d at 362 (noting that the primary focus of parental-rights termination

proceedings is protecting the best interest of the child). We review the entire record

in deciding a challenge to the court’s best-interest finding. In re E.C.R., 402

S.W.3d 239, 250 (Tex. 2013).

There is a strong presumption that the best interest of a child is served by

keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

2012, no pet.). Prompt and permanent placement of the child in a safe environment

is also presumed to be in the child’s best interest. Tex. Fam. Code § 263.307(a).

Courts may consider the following nonexclusive factors in reviewing the

sufficiency of the evidence to support the best-interest finding: the desires of the

child; the present and future physical and emotional needs of the child; the present

and future emotional and physical danger to the child; the parental abilities of the

persons seeking custody; the programs available to assist those persons seeking

custody in promoting the best interest of the child; the plans for the child by the

individuals or agency seeking custody; the stability of the home or proposed

placement; acts or omissions of the parent which may indicate the existing parent-

child relationship is not appropriate; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). As noted, this list

of factors is not exhaustive, and evidence is not required on all of the factors to

support a finding that terminating a parent’s parental rights is in the child’s best

19

interest. Id.; In re D.R.A., 374 S.W.3d at 533.

In addition, the Texas Family Code sets out factors to be considered in

evaluating the parent’s willingness and ability to provide the child with a safe

environment, including: the child’s age and physical and mental vulnerabilities; the

willingness and ability of the child’s family to seek out, accept, and complete

counseling services and to cooperate with and facilitate an appropriate agency’s

close supervision; the willingness and ability of the child’s family to effect positive

environmental and personal changes within a reasonable period of time; and

whether the child’s family demonstrates adequate parenting skills, including

providing the child with minimally adequate health and nutritional care, a safe

physical home environment, and an understanding of the child’s needs and

capabilities. Tex. Fam. Code § 263.307(b); R.R., 209 S.W.3d at 116.

Criminal Activity, Including Domestic Violence

We begin our analysis by noting that evidence supporting termination under

one of the grounds listed in section 161.001(1) also can be considered in support of

a finding that termination is in the best interest of the Children. See In re C.H., 89

S.W.3d at 27 (holding the same evidence may be probative of both section

161.001(1) grounds and best interest). Thus, it is appropriate to consider at the

outset the evidence recited above relevant to endangerment. The Father’s criminal

activity, especially the history of domestic violence in front of the Children,

supports the trial court’s best-interest finding. The trial court reasonably could

have considered that the Father’s repeated acts of violence would continue in the

future. See Walker, 312 S.W.3d at 617. The factfinder may infer from past conduct

endangering the child’s well-being that similar conduct will recur if the child is

returned to the parent. In re M.R.J.M., 280 S.W.3d at 502.

20

Stability and Compliance with Services

Evidence that the Father did not comply with the court-ordered service plan

for reunification with the Children also supports the trial court’s best-interest

determination. See In re E.C.R., 402 S.W.3d at 249. The parents’ family service

plans were admitted in evidence. The tasks in the Father’s service plan included

that he engage in domestic violence counselling, complete parenting education

classes, complete anger management classes, participate in individual counseling

including a psychological evaluation and compliance with any recommendations

therefrom, remain drug and alcohol free and submit to random drug tests, obtain

and maintain safe and stable housing, and attend all court hearings and visitations

with the Children. The Father acknowledged at trial that the Department’s

caseworker explained to him that his failure to complete the prescribed services

could result in his parental rights being restricted or terminated. He testified he

understood the requirements of the plan, but he acknowledged he had not

completed it.

Caseworker Atkinson testified at trial about the Father’s failure to complete

the court-ordered services that were designed to help him parent the Children

safely. Atkinson testified that this failure was one reason the Department sought

termination of his parental rights and that returning the Children to the Father was

not in their best interest. The Father had not refrained from criminal activity,

including domestic violence, as recited above. The Father also used drugs and did

not comply with all of the court-ordered urinalyses; Atkinson testified he missed

approximately four appointments. Atkinson also testified the Father did not

complete domestic violence counseling or anger management classes. He did not

comply with all the recommendations from the original psychological evaluation.

The Father did not continue his medication, so he was required to complete an

additional psychological evaluation. The evidence at trial reflected that the Father

21

failed to appreciate the need for treatment to combat his history of mental

instability. Therefore, the factfinder could infer that the Father’s mental health

issues likely would recur and further jeopardize the Children’s well-being. See In

re R.W., 129 S.W.3d at 741.

Evidence of a parent’s unstable lifestyle also can support a factfinder’s

conclusion that termination of parental rights is in the child’s best interest. In re

S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of

stability, including a stable home, supports a finding that the parent is unable to

provide for a child’s emotional and physical needs. See In re G.M.G., ___ S.W.3d

___, 2014 WL 2826363, at *12 (Tex. App.—Houston [14th Dist.] June 19, 2014,

no pet.); see also Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d

390, 398 (Tex. App.—El Paso 2000, pet. denied) (holding that a parent’s failure to

provide a stable home and provide for a child’s needs contributes to a finding that

termination of parental rights is in the child’s best interest).

The record reflects the Father has not maintained stable employment. He

was unemployed for most of the year and a half that these proceedings were

pending. He testified at trial that he had been employed at Admiral Glass and

Mirror for about three months. In addition, the Father had not maintained stable

housing. The Department’s caseworker testified that the Father had moved often

and not notified the Department about the moves. He sometimes stayed with

friends, he resided in a Salvation Army shelter at one point, and stayed in a motel

for a short period. In July of 2013, the Father rented a mobile home and lived there

about three months. There was some evidence from the CASA volunteer that the

previous caseworker found the home was clean and appropriate for children.

Photographs of the home were offered, but not admitted, in evidence. The Father

already had been evicted from this residence when the new caseworker Atkinson

had an opportunity to visit. When she saw the residence, there were no working

22

utilities, and the home was very dirty. After the eviction, Atkinson said the Father

was “transient from location to location.” The Father testified at trial that he

recently had obtained a new residence. Neither the Department nor the CASA

volunteer had had an opportunity to evaluate the residence. Caseworker Atkinson

testified that she was informed the Father was residing with a friend in Houston,

but he was not there when she visited. She also testified the Father provided no

lease agreement to establish his residence. Even if the Father’s new home had been

determined to be appropriate, the factfinder may conclude that a parent’s changes

shortly before trial are too late to have an impact on the best-interest determination.

See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)

(explaining that a father’s “efforts to improve his ability to effectively parent on

the eve of trial [were] not enough to overcome a decade of poor parenting and

neglect” in evaluating the best interest of the children).

The factfinder reasonably could have concluded the Father’s lack of stability

supported the finding that termination is in the Children’s best interest. See L.Z. v.

Texas Dep’t of Family & Protective Servs., No. 03–12–00113–CV, 2012 WL

3629435, at *10–11 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.)

(holding the best-interest finding was supported where the father had a history of

instability, domestic violence, and criminal activity, and Department planned to

have the child’s foster family adopt him); see also In re A.D., 203 S.W.3d 407,

411–12 (Tex. App.—El Paso 2006, pet. denied) (affirming termination of parental

rights because mother failed to meet family service plan’s material requirements

including drug assessment, finding a job, and providing a safe home).

Parenting Abilities

The factfinder may consider a parent’s parenting skills in a best interest

analysis. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no

pet.). The Father testified that before the Children were removed from the parents’

23

care, he had been a “stay-at-home parent.” He testified he fed and bathed the

Children, put them to bed and played with them. He testified he provided only non-

physical discipline and used positive reinforcement. The Father testified that the

Children had seen their doctor regularly and they had all their immunizations.

While the Mother usually took the Children to the doctor, if they were very sick he

took them to the doctor or emergency room. The Father also testified that he had

completed a parenting class. While the Father was in the Army in the fall of 2011,

Sally had to be hospitalized with an “abscess.” The Father testified that he returned

from Fort Hood to be with her and take care of his family. He later admitted he

was absent without leave, and he received an “other than honorable” discharge

from the Army.

Evidence was also presented, however, that the parents had not provided

sufficient care for the Children before they were removed from the home.

Caseworker Bellow testified that when the Department became involved in the

case, there was concern about the condition of the home and that the Children were

unclean. When the Children came into the Department’s care, they were seen by a

physician. The Baby was underweight and the Department was concerned about

her failure to gain weight. Sally needed dental care; her front teeth were “rotten.”

In addition, Scott needed surgery for a hernia, and the parents had not made any

arrangements for the surgery. Bellow conceded, however, that the Children

appeared properly fed and clothed and had no bruises.

The Father had not attended all of his scheduled visits with the Children. He

explained that his visits were sometimes scheduled during work hours and he could

not attend. The Father’s visits were then moved to the Women’s Center to

accommodate his schedule, and the Grandmother attended the visits with him. The

Father had four visits with the Children at the Women’s Center, but the Center did

not permit the CASA volunteer or the Department’s caseworker to observe the

24

visits. The CASA volunteer reported that after the Children’s visits were moved

back to the Department’s office, the Father stopped attending the visits. Thus, the

CASA volunteer, who had been assigned the case for over a year, had been able to

observe the Father with the Children only one time. The Children appeared happy

to see their Father, and there was no indication the relationship was improper.

While there is some evidence that the Father had the ability to parent the

Children, the factfinder reasonably could have determined that this factor does not

outweigh the other factors supporting the trial court’s best interest finding.

Children’s Desires, Needs, and Proposed Placement

The Children were very young at the time of trial and there is no evidence of

the Children’s desires. When children are too young to express their desires, the

factfinder may consider whether the children have bonded with the foster family,

are well-cared for by them, and have spent minimal time with a parent. In re J.D.,

436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A child’s

need for permanence through the establishment of a “stable, permanent home” has

sometimes been recognized as the paramount consideration in a best-interest

determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no

pet.). Therefore, evidence about the present and future placement of the Children is

relevant to the best-interest determination. See C.H., 89 S.W.3d at 28.

The evidence shows the Children had bonded with the foster parents and

were well-cared for by them. See In re J.M., 156 S.W.3d 696, 706 (Tex. App.—

Dallas 2005, no pet.). The CASA volunteer testified at the January 2014

permanency hearing about how well the Children were doing in their placement.5

At first, the Children had been behind in their emotional and social development,

5

The Children’s first foster home was determined to be unsatisfactory and the Children

were moved to the current placement in May 2013, a year before trial.

25

but at the time of the hearing, they were “on target” for their ages. She explained,

“They’re speaking well. They have developed nice manners. They no longer hit,

bite, and pull hair. They were exhibiting some real violence toward each other at

times early on in the case.” In recommending termination of both parents’ rights,

she testified, “They’ve been in and out of jail. They haven’t stayed in any one

place for any particular period of time.”

At trial, the CASA volunteer testified that she was concerned that the parents

had not complied with their court-ordered services. She stated, “I believe that the

parents need to make a lot of changes in their lives, even to take care of

themselves. And in order to take care of children, they have to be able to stabilize

themselves and be able to support themselves. And I don’t see this happening.” In

requesting that the parents’ rights be terminated, she explained, “I believe that

children deserve and need parents who can meet their needs. I believe that these

parents are basically unable to meet their own needs and take care of themselves,

and I don’t believe that adding three children to the mix would help the parents or

the children. I don’t believe that they would be able to offer the stability and the —

just the basic needs of guidance and care that children require. These are three very

active little children who require a great deal of attention and effort.” The CASA

volunteer also was concerned that the Father was not taking medication for his

mental health issues. She stated, “I believe that his mental health issues need to be

addressed. And he told me himself about his mental health issues; so, I know that

he’s aware of them.” She also added that neither parent had answered her questions

about their plans to provide and care for the Children. There was no evidence apart

from his testimony that the Father had the ability to care for three small children on

his own.

The CASA volunteer also described the Children’s foster home, which she

had visited many times. She testified, “They’re in a home with a married couple

26

who have a son who is, I believe, nine. They are very happy. The girls share a

bedroom, and [Scott] shares a bedroom with their son. He’s very proud of it.

They—the [foster parents’] son is just delighted with the younger children. He

loves being the big brother. They seem to be extremely happy and well-adjusted.

They’re doing really, really well.” She also stated that the Children were “in a very

good daycare that has really helped them grow intellectually and socially.” She

testified that in her opinion, termination of the parents’ parental rights is in the best

interest of the Children. See Tex. Fam. Code § 107.002(e) (setting out the guardian

ad litem’s duty to testify regarding her recommendations relating to the best

interests of the child and the reasons for the recommendations). This evidence

supports the trial court’s best-interest finding.

In sum, the record contains sufficient evidence to support the best-interest

finding based on the Father’s lack of stable housing, lack of stable employment,

noncompliance with services, pattern of domestic violence, and other criminal

behavior that resulted in periods of incarceration, even while these proceedings

were pending. Viewing all the evidence in the light most favorable to the

judgment, we conclude that a factfinder could have formed a firm belief or

conviction that termination of the Father’s parental rights is in the Children’s best

interest. See J.F.C., 96 S.W.3d at 265–66. In light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the best-

interest finding is not so significant that a fact finder could not reasonably have

formed a firm belief or conviction that termination of the Father’s parental rights is

in the Children’s best interest. See In re H.R.M., 209 S.W.3d at 108. After

considering the relevant factors under the appropriate standards of review, we hold

the evidence is legally and factually sufficient to support the trial court’s finding

that termination of the parent-child relationship is in the Children’s best interest.

We therefore overrule the best-interest challenge in the Father’s third issue.

27

VII. APPOINTMENT OF COUNSEL

In his first issue, the Father asserts that the trial court reversibly erred in

failing to appoint an attorney to represent him until after the adversary hearing. See

Tex. Fam. Code § 262.201(a) (requiring the trial court to conduct a full adversary

hearing within fourteen days after the children are removed from parental custody

by a governmental agency).6 He asserts that it is apparent from the record that he

appeared in opposition to the termination proceedings and that he was indigent.

The record reflects that on the day of the adversary hearing on December 13, 2012,

the Father signed a Request for Appointment of Counsel, certifying he was without

means to employ counsel. He also completed a questionnaire about his financial

resources, stating he was unemployed and had no assets. The trial court signed an

order that day finding the Father indigent and appointing counsel to represent the

Father’s interests.

The clerk’s record does indicate that the Father was unrepresented at the

time of the adversary hearing, but the clerk’s record does not reflect whether he

filed the request for counsel before or after the adversary hearing. There is no

reporter’s record from the adversary hearing. The Father testified at trial that when

he arrived for the adversary hearing, he informed the Department caseworker that

he wanted an attorney. He stated he was told by the associate judge that he would

have to “wait.” Because there is no record of the adversary hearing itself, we do

not know whether appellant requested counsel before the hearing and was told to

“wait” by the associate judge.

6

This statute was amended effective September 1, 2013, to add sections (a-1), (a-2) and

(a-3), requiring that the court, before the adversary hearing, admonish unrepresented parents of

the right to a court-appointed attorney, direct the completion of an affidavit of indigence by a

parent claiming indigence, and appoint an attorney if the court determines the parent is indigent.

See Act eff. Sept. 1, 2013, 83rd Leg., R.S., ch. 810, § 9, 2013 Tex. Gen Laws 2026, 2029

(codified at Tex. Fam. Code § 262.201(a-1)–(a-3). “The changes in law made by this Act apply

only to a suit affecting the parent-child relationship filed on or after the effective date of this

Act.” Id. at § 12. Thus, these amendments do not apply to this case, which was filed in 2012.

28

Texas has adopted a statutory scheme for providing counsel to assist

indigent parents, mandating the appointment of an attorney ad litem to represent

the interests of an indigent parent who responds in opposition to the termination of

the parent-child relationship in a suit filed by a governmental entity. See Tex. Fam.

Code § 107.013(a)(1); see also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)

(recognizing indigent parents are entitled to appointed counsel in parental rights

termination cases). Specifically, the Family Code provides that in suits filed by a

governmental entity the trial court “shall appoint an attorney ad litem to represent

the interests of: (1) an indigent parent of the child who responds in opposition to

the termination . . . .” Tex. Fam. Code § 107.013(a)(1).

Section 107.013(d) provides that a “parent who claims indigence under

Subsection (a) must file an affidavit of indigence in accordance with Rule 145(b)

of the Texas Rules of Civil Procedure before the court can conduct a hearing to

determine the parent’s indigence under this section.” Id. § 107.013(d). Thus, a

parent’s filing of an affidavit of indigence “trigger[s] the process for mandatory

appointment of an attorney ad litem.” In re V.L.B., ___ S.W.3d ____, No. 01-14-

00201-CV, 2014 WL 4373567, at * 3 (Tex. App.—Houston [1st Dist.] Sept. 4,

2014, no pet.) (quoting In re K.L.L.H., No. 06-09-00067-CV, 2010 WL 87043, at

*5 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.)). After a parent

has filed an affidavit of indigence, the court may, but is not required to, conduct a

hearing to determine whether the parent is indigent. See Tex. Fam. Code

§263.0061(b).

Unlike section 107.012 requiring appointment of an attorney ad litem for a

child, section 107.013 contains no specific timetable for appointing an attorney ad

litem to represent the parent’s interests. See In re M.J.M.L., 31 S.W.3d 347, 354

(Tex. App.—San Antonio 2000, pet. denied). Courts have found that the complete

failure of a trial court to appoint counsel to represent the interests of indigent

29

parents constitutes reversible error. See, e.g., In re V.L.B., ___ S.W.3d ____, No.

01-14-00201-CV, 2014 WL 4373567, at * 5 (citing In re C.D.S., 172 S.W.3d 179,

185–86 (Tex. App.—Fort Worth 2005, no pet.)). In this case, we are asked to

determine whether the appointment of counsel was untimely.

The Father cites In re J.M., 361 S.W.3d 734 (Tex. App.—Amarillo 2012, no

pet.), in which the court stated it was apparent from the record that the indigent

mother was “responding in opposition to the termination,” requiring appointment

of counsel under section 107.013. Id. at 737. The court in J.M. stated that “when a

parent files an answer contesting the termination and requests appointment of

counsel, the trial court must, at a minimum, conduct an inquiry into whether the

parent is indigent and, if the court finds that the parent is indigent, must appoint

counsel.” Id. In today’s case, the Father did not file an answer contesting the

termination before requesting appointment of an attorney ad litem to represent his

interests. In J.M., the mother proceeded to trial without an attorney. Thus, J.M.

does not support the Father’s contention that the trial court erred in this case.

Section 107.013(d) requires that a parent who claims indigence under

section 107.013(a) must file an affidavit of indigence before the court can conduct

a hearing to determine the parent’s indigence. Tex. Fam. Code § 107.013(d). Here,

the Father signed a written request for appointment of counsel, with information

supporting his indigence claim, on December 13, 2012. Counsel was appointed the

same day. Assuming the Father’s documents were sufficient to trigger the process

for mandatory appointment of an attorney ad litem,7 the trial court completed that

process promptly upon receiving the Father’s documents. We hold the trial court

7

The document addressing indigence was not sworn or notarized. Therefore, it was not

an “affidavit of indigence,” as required by section 107.013(d). See Tex. Gov’t Code § 312.011(1)

(defining “affidavit” to include the requirement that it is sworn before a notary or other official).

Nonetheless, the trial court determined the Father was indigent and appointed an attorney ad

litem to represent his interests.

30

did not err in appointing counsel for the Father after the adversary hearing. See In

re K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *13 n.3 (Tex. App.—

Beaumont Aug. 21, 2014, no pet.) (mem. op.) (holding no abuse of discretion when

court appointed counsel at next status hearing after adversary hearing, which

occurred over fifteen months prior to trial); In re C.Y.S., No. 04-11-00308-CV,

2011 WL 5971068, at *4–5 (Tex. App.—San Antonio Nov. 30, 2011, no pet.)

(mem. op.) (holding no abuse of discretion where at hearing on temporary orders,

trial court expressly deferred ruling on appointment of counsel for mother because

it found mother had not “appeared in opposition to this suit or has not established

indigency” as required by statute, and counsel was subsequently appointed the

same day the affidavit of indigence was filed).

In addition, trial did not commence for almost a year and a half after the

attorney ad litem was appointed. We note the Father’s attorney ad litem was

appointed in time to move—and did move—to set aside the temporary order

signed at the adversary hearing that named the Department temporary managing

conservator of the children. Accordingly, the record does not reflect that any error

in the timing of counsel’s appointment probably led to the rendition of an improper

judgment. Tex. R. App. P. 44.1(a)(1). The Father’s first issue is overruled.

VIII. CONCLUSION

We have concluded that legally and factually sufficient evidence supports

the trial court’s finding of at least one predicate ground under section 161.001(1)

as to both the Mother and Father, and that termination of the Father’s parental

rights is in the best interest of the Children. We have also held that the trial court

did not err in waiting to appoint an attorney ad litem to represent the Father’s

interests until after the adversary hearing.

31

Having overruled the parents’ issues, we affirm the trial court’s judgment.

/s/ J. Brett Busby

Justice

Panel consists of Chief Justice Frost and Justices Christopher and Busby.

32