IN THE INTEREST OF R.W. AND G.W., CHILDREN

Fort Worth, Texas – Family Law lawyer represented Appellant and Appellant with a order terminating their respective parental rights.

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Appellant L.A. (Mother) and Appellant D.W. (Father) appeal the trial court's

order terminating their respective parental rights to R.W. and G.W. (the children). In

seven issues, Mother contends that the evidence is legally and factually insufficient1 to

support the termination of her parental rights to the children under Family Code

Subsections 161.001(b)(1)(D), (E), (N), (O), and (P), that she was denied her right to a

jury trial due to ineffective assistance of counsel and trial-court error, and that the trial

court erred in overruling her motion for extension of the dismissal date. Father

similarly contends that the evidence is legally and factually insufficient to support the

termination of his parental rights to R.W. under Family Code Subsections

161.001(b)(1)(D), (E), (N), (O), and (P) and that he received ineffective assistance of

counsel because his trial counsel failed to advise Father of his right to a jury trial and

to request a jury trial on Father's behalf. Father also argues that the trial court erred by

terminating Father's parental rights to G.W. under Section 161.002 of the Family

Code and by admitting evidence of Father's drug test results through a witness that

was not properly qualified.

As to Mother's and Father's respective issues related to termination under

Family Code Section 161.001(b), we will hold that the evidence was legally and

1

Mother's issues on appeal appear to challenge only the factual sufficiency of

the evidence. However, her argument incorporates both factual- and legal-sufficiency

standards, and she combines her discussion of Family Code Subsections

161.001(b)(1)(D) and (E). In the interest of justice, we will review the evidence under

both legal- and factual-sufficiency standards.

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factually sufficient to support the termination of Mother's parental rights to the

children and of Father's parental rights to R.W. under Subsections 161.001(b)(1)(D)

and (E). We will sustain Father's issue related to the termination of his parental rights

to G.W. and hold that the trial court erred by terminating Father's parental rights

under Family Code Section 161.002 and that the error was harmful, but we will affirm

the trial court's conservatorship appointment. With respect to Mother's complaint of

ineffective assistance of counsel, we will hold that Mother failed to prove that she was

prejudiced by her trial counsel's representation. With respect to Father's complaint of

ineffective assistance of counsel, we will hold that Father failed to prove that his trial

counsel's representation was deficient. We will thus overrule Mother's and Father's

respective ineffective assistance of counsel claims. On Father's issue related to the

admission of evidence of Father's drug test results, we will hold that the evidence was

cumulative and was therefore harmless. On Mother's issue related to her motion for

extension, we will hold that the trial court did not abuse its discretion by denying

Mother's motion. Accordingly, we affirm in part and reverse and remand in part for a

new trial.

I. Background

The Texas Department of Family and Protective Services (TDFPS) began

investigating Mother and Father after receiving several reports involving domestic

violence and drug abuse in the home and physical abuse. In May 2021 alone, Child

Protective Services (CPS) received several reports involving Mother and Father. The

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children were ultimately removed in May 2021; R.W. was approximately twenty-one

months old and G.W. was less than one month old. After a bench trial, the trial court

signed its order terminating Mother's and Father's parental rights to the children and

appointing TDFPS permanent managing conservator of the children.

A. The Children's Removal and G.W.'s Fractured Ribs

On May 9, 2021, CPS immediately responded to a new report because G.W.

had sustained four rib fractures and was taken to the hospital in an ambulance. When

CPS investigator, Latasha Koku, arrived at the hospital, the only family member there

was paternal grandmother—Mother and Father were not present. Koku tried to call

both parents but was able to reach only maternal grandmother, who provided excuses

for why Mother could not be at the hospital with the injured child.2 Regarding how

the child's ribs had been fractured, paternal grandmother indicated to Koku that

Mother had thrown G.W. in his car seat. After Koku spoke with G.W.'s doctors at the

hospital, she became concerned that G.W. had previously sustained similar injuries.

Amber Maloney, a TDFPS investigation supervisor on the children's case, also

expressed concerns related to the cause of G.W.'s rib fractures, stating that they likely

would not have happened from being thrown in a car seat or even during childbirth.

2

Mother testified that she had been at a behavioral health hospital when she

was notified that G.W. was in the hospital. When asked why Mother did not go to the

hospital to be with G.W., Mother testified that she was afraid of "not really knowing

everything that happened.”

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Specifically, she was concerned that G.W.'s injuries were not accidental but were

trauma induced.

At trial, Father testified that the children had been in paternal grandmother's

care3 and that he had not seen the children in the two days before G.W. went to the

hospital. According to Father, G.W.'s ribs had been fractured while he was in the care

of paternal grandmother. Father claimed that paternal grandmother had instructed

Father to blame Mother for G.W.'s injuries.

Mother's testimony does not align with Father's version of events. Mother

testified that on May 9, 2021—the day G.W. was taken to the hospital—Mother and

Father were at paternal grandmother's house with the children and had gotten into an

argument with paternal grandmother. Sometime around noon, they left the children

with paternal grandmother, and Mother claimed that both children were in good

condition when Mother and Father left paternal grandmother's house. Mother

testified that when she fed G.W. and changed his diaper earlier that day, he did not

show any discomfort or pain and did not have any bruises or other injuries. But later

that day, G.W. was in the hospital with rib fractures that were already in the process

of healing.

3

Mother and Father often left the children with paternal grandmother and

paternal grandmother's boyfriend, E.W. Mother and Father both testified that E.W.

was physically abusive, that he had sexually assaulted Mother and Father, and that he

had threatened Mother and Father. Father also alleged that there had been domestic

violence between paternal grandmother and E.W.

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After investigating the incident, TDFPS determined that the children needed to

be brought into TDFPS care. Maloney testified that regardless of who had inflicted

G.W.'s injuries, TDFPS would have been concerned about Mother's and Father's

failure to protect the children. Moreover, even discounting G.W.'s fractured ribs,

TDFPS still would have sought removal.

B. Evidence of Domestic Violence

TDFPS initially became involved with Mother and Father because the children

had been exposed to domestic violence in the home. Less than a year before trial

began, Mother claimed that Father had tried to kill her. Mother testified that her

attempted murder had been the last incident of domestic violence, though she later

claimed that she was persuaded to make those allegations. Mother acknowledged that

she had "repeatedly” reported to law enforcement that Father had been physically

abusive and that there was domestic violence between her and Father. But in the same

line of questioning, Mother denied any domestic violence.

Notwithstanding Mother's self-contradicting testimony, Father's criminal

history shows a propensity for domestic violence, including several charges for familyviolence assault and aggravated assault. When TDFPS received their initial intake

involving the children, Father was being investigated for a family-violence assault

against Mother. He was eventually incarcerated in February 2022 for a domesticviolence offense against Mother, which Father stated had been "bumped up” to a

higher charge due to his criminal history. When questioned about this domestic-

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violence charge, Father testified that the allegations were false and that he was being

targeting by his and Mother's families. Specifically, Father testified that Mother had

been manipulated into reporting the abuse.

In addition to Father's criminal history, Mother's and Father's prior CPS

histories also reflected a trend of domestic violence. Specifically, Mother had reported

that she did not feel safe with Father in the home, and she had accused Father of

abuse. Despite Mother's domestic-violence denials at trial, Maloney testified that even

when a domestic-violence case is ruled out by CPS, TDFPS must take such allegations

into consideration when meeting with families.

C. Evidence of Mother's and Father's Drug Use

Both Mother and Father had ongoing problems with drug use. Mother

submitted to a drug test in May 2021, which resulted positive for methamphetamines

and amphetamines. The results concerned TDFPS because Mother had been

breastfeeding G.W. at the time. Mother submitted to another drug test in February

2022, which also returned positive for methamphetamines and amphetamines. Mother

testified that her last drug use had been in December 2021, though she did not know

how much she had used then or who had given it to her. She stated she did not have

an excuse for why she used. The day before trial began, Mother failed to submit to a

drug test that TDFPS had requested from her. Mother conceded that she had used

drugs during the termination case.

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TDFPS was concerned about the effects of Mother's drug use on her ability to

parent the children. Specifically, a parent that abuses illegal drugs may be extremely

violent or may "pass out for hours on end,” leaving children to care for themselves,

which is especially concerning when the children are as young as R.W. and G.W. were

at the time of trial. Mother agreed with TDFPS's contentions that her drug use was

unsafe for the children.

In May 2021, Father submitted to a drug test that came back positive for

methamphetamines, amphetamines, and marijuana. Father reported that his last drug

use had been in early 2021, which he claimed he had been forced to use by several

criminal gangs that had been harassing and threatening to kill him and his family.

When asked about his use of methamphetamines, Father testified that he was not a

drug user but was only "partaking with the gang members who were stalking [his]

family.” However, Father's criminal history shows a propensity for illegal drug use

beginning in 2006, including charges for possession of a controlled substance,

possession of a dangerous drug, possession of marijuana, and driving while

intoxicated. TDFPS was concerned about Father's drug abuse after seeing "up and

down behaviors” and aggressiveness.

D. Mother's Untreated Mental Health Issues

In addition to domestic violence and illegal drug use in the home, TDFPS had

developed concerns related to Mother's mental health. Mother reported that she had

been diagnosed with PTSD and bipolar disorder. She testified that she had frequent

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panic attacks and was dealing with trauma related to being sexually assaulted as a

child. Father testified that there were times in which Mother would stay awake for up

to twenty hours at a time, and he described her behavior as "extremely hyperactive.”

Father also testified that because of Mother's PTSD, he would always take the

children to paternal grandmother's house or with him when he would leave Mother.

Mother had also purportedly experienced psychotic episodes.

Despite the effects of Mother's mental illnesses, she had not been following up

with treatment and was refusing to take her medications. This concerned TDFPS

because Mother had not been on any medication for over a year and no longer had a

primary care physician.

E. Mother's and Father's Services

Mother and Father initially received their service plans shortly after removal in

June 2021. Monica Villegas, a permanency specialist with Our Community Our Kids

(OCOK), was assigned to the case in September 2021. Part of Villegas's role in the

case was to ensure that Mother and Father had their service plans and to help them

complete their services. To ensure that they had their service plans, Villegas

confirmed Mother and Father's contact information and emailed them a copy of their

service plans. She then met with Mother and Father in person and provided them

with a hard copy. Villegas maintained contact with Mother and Father for one to two

months before losing contact with them.

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Mother and Father had reported that they moved to Austin sometime in

August 2021. While they were in Austin, Villegas attempted to set up their services

but was unable to because Mother and Father would not provide an address or a

location in Austin where they were staying. After she lost contact with Mother and

Father, Villegas hired a special investigator to try to locate them. However, the special

investigator was not successful. Villegas eventually found an updated phone number

for Mother and Father, but not until January 2022.

Villegas testified that her contact information did not change during her

involvement with the case and that there was no reason that Mother and Father

would not have been able to reach her. When Villegas did occasionally hear from

Mother and Father, they would ask how the children were doing, though they had not

visited the children since June 2021, shortly after removal.4 Villegas testified that she

made every effort to try to get Mother and Father to engage in their services, but

Mother and Father did not cooperate. Indeed, they did not even start their services

until the month before trial began.

4

Mother's and Father's visitations with the children were stopped in June 2021,

almost immediately after removal. Villegas testified that TDFPS had received a report

that Mother stole a gun from paternal grandmother's home, which had also been

reported to the police. Both Mother and Father then allegedly threatened to shoot and

kill everyone involved in the case. Father denied all allegations in the report. Father

maintains that he is merely "a victim of bad circumstances.”

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1. Mother's Service Plan

Mother's required services were FOCUS for Mothers, Batterer's Intervention

and Prevention Program (BIPP), psychosocial, psychiatric evaluation, proof of

financial stability, and proof of housing stability. Villegas testified that Mother had not

been engaged in her service plan, she had not addressed the concerns that brought the

children into care, she was not stable and did not have a stable home environment for

the children, and she had not addressed her mental health or substance abuse issues.

Mother testified that she understood that she was required to complete her

services to get her children back. But the only service she completed in the almostyear between removal and trial was the psychiatric evaluation, which she had

completed only the month before trial began. Mother did not enroll in FOCUS for

Mothers until March 2022 for classes that would begin the week of trial, so that

service was incomplete. Mother did not reach out to the BIPP provider until the week

that trial began in April 2022, so that service had not been started. Although Mother

had scheduled an appointment to complete her psychosocial service in March 2022,

she did not show up for the appointment.

Villegas testified that Mother did not provide proof of financial stability or

other evidence of employment. To the contrary, Mother had told Villegas that she

was unemployed. Mother testified that she received $800 per month as disability

income but did not provide a budget or otherwise explain how she planned to care for

the children, or herself, financially. Mother also failed to provide proof of stable

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housing. Rather, Mother testified that she had been homeless during the case. She had

been evicted while pregnant with G.W. and then lived in hotel rooms after G.W. was

born. Mother and Father had also periodically lived with paternal grandmother or

stayed on friends' couches.

Villegas expressed concerns about Mother's housing and financial situation and

her ability to safely care for and provide for the children. Mother testified that, were

the children returned to her, she would not have a home to take them to and would

not be able to provide health care, food, or transportation.

2. Father's Service Plan

Father's required services were FOCUS for Fathers, BIPP, psychiatric

evaluation, submitting to drug testing, proof of financial stability, and proof of

housing stability. Father did not complete any of his services.

Father did not enroll in FOCUS for Fathers until the month before trial began.

He did not attend his first session, was late to his second session, and had just

attended his third session the day before trial began. At the time of trial, Father's

BIPP referral was still pending because Father had reached out to the provider only

the week before trial. Although Father had scheduled his psychiatric evaluation, the

date on which it was scheduled would have been after trial had concluded. Father also

failed to submit to further drug testing. His service plan indicated that the failure to

submit to a drug test is a presumed positive for drug use.

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Father did not provide proof of financial stability. Father reported to Villegas

that he was employed, but Villegas was unable to contact his purported employer to

confirm his employment. And when asked about his income, Father testified that he

had not received any income since May 2021. Father did not provide proof of housing

stability. To the contrary, Father reported to Villegas—and testified at trial—that he

was homeless. While in Austin, Mother and Father had been homeless and living on

the street.

When asked how he intended to care for the children if they were returned,

Father responded, "I would ask that you not do that.” He stated that he needed the

court's help. Father testified that without help from the state, he could not keep the

children safe from the gangs he claimed were after him and his family.

F. The Children's Foster Placement

At the time of trial, the children had been in their foster home for almost a

year. Villegas testified that the children were doing very well in their foster placement,

adding that they were thriving and were very active. For example, R.W. had difficulties

with his speech at the time of removal that had since improved drastically.

Villegas testified that the children did not have a bond with Mother and Father

and that R.W.—the only verbal child—had not asked about them. However, the

children's foster family had expressed interest in adopting the children, which Villegas

indicated would be in the children's best interest.

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II. Discussion

At the close of trial, the trial court terminated Mother's and Father's parental

rights to the children and signed its Order of Termination. In its ruling, the trial court

stated that it did not find Mother and Father to be credible witnesses.

A. Termination under Subsections 161.001(b)(1)(D) and (E)

Mother and Father each argue that the evidence is legally and factually

insufficient to support termination of their respective parental rights under Family

Code Subsections 161.001(b)(1)(D) and (E). We disagree.

1. Standard of Review

For a trial court to terminate a parent–child relationship, TDFPS must prove

two elements by clear and convincing evidence: (1) that the parent's actions satisfy

one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in

the child's best interest.5 Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d

541, 545 (Tex. 2020). Evidence is clear and convincing if it "will produce in the mind

of the trier of fact a firm belief or conviction as to the truth of the allegations sought

to be established.” Tex. Fam. Code Ann. § 101.007; Z.N., 602 S.W.3d at 545.

To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable factfinder could form a firm belief or conviction

5

In its termination order, the trial court found that termination of Mother's and

Father's parental rights was in the best interest of the children. However, Mother and

Father do not challenge the trial court's best-interest finding on appeal.

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that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,

but they must be reasonable and logical. Id. We assume that the factfinder settled any

evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved,

and we consider undisputed evidence even if it is contrary to the finding. Id.; In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the

finding if a reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The

factfinder is the sole judge of the witnesses' credibility and demeanor. In re J.O.A.,

283 S.W.3d 336, 346 (Tex. 2009).

We must perform "an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder's findings and do not supplant them with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that TDFPS

proved the specific grounds for termination under Family Code Subsections

161.001(b)(1)(D) and (E). Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d

17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or

belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.

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2. Applicable Law

Under Subsections (D) and (E), the trial court may terminate a parent's rights if

it finds by clear and convincing evidence that the parent has

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

conditions or surroundings which endanger the physical or

emotional well-being of the child; [or]

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

who engaged in conduct which endangers the physical or

emotional well-being of the child[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).

"'[E]ndanger' means to expose to loss or injury” or "to jeopardize.” In re

J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Tex. Dep't of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987)). Under Subsection (D), it is necessary to examine

the evidence related to the environment of the child to determine if the environment

was the source of the endangerment to the child's physical or emotional well-being.

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

of a parent in the home can create an environment that endangers the physical and

emotional well-being of a child. Id. For example, "abusive or violent conduct by a

parent or other resident of a child's home may produce an environment that

endangers the physical or emotional well-being of a child.” Id. Illegal drug use or drugrelated criminal activity by the parent "likewise supports the conclusion that the

child[]'s surroundings endanger [his] physical or emotional well-being.” Id.

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Under Subsection (E), the relevant inquiry is whether evidence exists that the

endangerment of the child's physical well-being was the direct result of the parent's

conduct, including acts, omissions, or failures to act. See id.; see also Tex. Fam. Code

Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be based on more

than a single act or omission; a voluntary, deliberate, and conscious course of conduct

by the parent is required. J.T.G., 121 S.W.3d at 125. The endangering conduct need

not be directed at the child, nor must the child actually suffer injury. J.F.-G., 627

S.W.3d at 312 (citing Boyd, 727 S.W.2d at 533). The specific danger to a child's wellbeing may be inferred from parental misconduct standing alone. See In re R.W., 129

S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied) ("As a general rule,

conduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child.”). Illegal drug use and its effect on the

parent's life and her ability to parent may establish an endangering course of conduct.

Id. Criminal activity that exposes the parent to incarceration may also endanger a

child. In re I.L., No. 02-18-00206-CV, 2018 WL 5668813, at *5 (Tex. App.—Fort

Worth Nov. 1, 2018, no pet.) (mem. op.); In re A.N.D., No. 02-12-00394-CV, 2013

WL 362753, at *2 (Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.).

Because the evidence pertaining to Subsections (D) and (E) is interrelated, we

conduct a consolidated review of those subsections. See In re S.H., No. 02-17-00188-

CV, 2017 WL 4542859, at *10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem.

op.); In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).

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3. Analysis as to Mother

Here, the record reflects that the children were exposed to domestic violence in

the home. Mother "repeatedly” reported to law enforcement that Father had been

physically abusive and that there was domestic violence between her and Father.

Notably, Mother reported to TDFPS that she did not feel safe with Father in the

home. Although Mother later denied domestic violence at trial, Father's pending

family-violence-assault charge and incarceration contradicted Mother's denials.

Despite knowing of Father's propensity for domestic violence and even fearing for

her own safety in the home, Mother allowed the children to remain in that home and

failed to take any action to remove them from that environment. Additionally, Mother

often allowed the children to remain under the the care of paternal grandmother and

E.W., despite knowing that E.W. had a history of domestic violence, physical abuse,

and sexual assault.

The record also shows that Mother failed to protect the children from physical

abuse—either by placing the children in the care of a physically abusive person or by

her own conduct. Mother denied any knowledge or fault related to the cause of

G.W.'s fractured ribs. But the trial court heard conflicting testimony from Mother and

other witnesses, and it is unclear from the record exactly how G.W. sustained his

injuries. Regardless, even if Mother had not been the physical abuser herself, she likely

would have been responsible for placing the children with and allowing them to

remain under the care of G.W.'s physical abuser.

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Further, Mother had problems with illegal drug use. Mother's drug test from

May 2021 showed that she had been using methamphetamines and amphetamines at

or near the time of removal and while she was breastfeeding G.W. After a second

methamphetamine-positive drug test in February 2022, Mother admitted that her

most recent drug use had been in December 2021—seven months after removal.

Mother's illegal drug use affected her mental health and overall ability to parent the

children. Indeed, Mother acknowledged that her drug use was unsafe for the children.

And both Mother's and Father's drug use in the home likely created a dangerous

environment for the children, which Mother allowed to continue when she failed to

remove the children from that environment.

The record shows that Mother's untreated mental illnesses affected the safety

of the children's environment. Although she had suffered from bipolar disorder and

PTSD, Mother failed to consistently seek mental health treatment and refused to take

any medication. Mother's untreated panic attacks, psychotic episodes, and

hyperactivity likely subjected the children to uncertainty and instability in the home.

Indeed, Mother's PTSD concerned Father to the point that he would take the

children to paternal grandmother's house.

Mother failed to take the necessary steps to have the children returned. Mother

had not been engaged in her service plan, she had not addressed the concerns that

brought the children into care, she was not financially stable, and she did not provide

a stable home environment for the children. In fact, Mother admitted that she did not

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have a home for the children and was not capable of providing the children with

health care, food, or transportation.

Viewing all the evidence in the light most favorable to the trial court's

judgment and recognizing that the factfinder is the sole arbiter of the witnesses'

credibility and demeanor, we hold that there is some evidence of an endangering

environment on which a reasonable factfinder could have formed a firm belief or

conviction that Mother had knowingly placed or had knowingly allowed R.W. and

G.W. to remain in conditions or surroundings that endangered their emotional or

physical well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). And we hold that

there is some evidence of endangering conduct on which a reasonable factfinder

could have formed a firm belief or conviction that Mother had engaged in conduct

that endangered their physical or emotional well-being. See id. § 161.001(b)(1)(E).

Giving due deference to the factfinder's endangering-environment and

endangering-conduct findings, without supplanting the factfinder's judgment with our

own, and after reviewing the entire record, we hold that a factfinder could reasonably

form a firm conviction or belief that Mother had knowingly placed or had knowingly

allowed R.W. and G.W. to remain in conditions or surroundings that endangered their

emotional or physical well-being and that Mother had engaged in conduct that

endangered their physical or emotional well-being. See id. § 161.001(b)(1)(D), (E).

Accordingly, we overrule Mother's issues regarding termination under Subsections

(D) and (E). See id. Because a finding of only one ground alleged under Section

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161.001(b)(1) is sufficient to support termination, In re A.V., 113 S.W.3d 355, 362

(Tex. 2003), we need not reach Mother's issues regarding termination under

Subsections (N), (O), and (P).

4. Analysis as to Father

The record reflects that Father committed several acts of domestic violence in

the home. Mother made numerous allegations of domestic violence against Father,

including his attempt to kill Mother. Father testified that he was a felon and that his

pending family-violence-assault charge had been enhanced because of his criminal

history. Although Father denied the domestic-violence allegations and attempted to

blame others for their origination, his criminal history demonstrates Father's

propensity for domestic violence.

Additionally, Father alleged that there had been domestic violence between

paternal grandmother and E.W. Despite his knowledge of the domestic violence and

of E.W.'s history of physical abuse and sexual assault, Father often left the children in

the care of paternal grandmother and E.W.

Like Mother, Father is likely responsible for G.W.'s rib fractures. The trial

court heard conflicting testimony regarding Father's and the children's whereabouts

during the two days before G.W.'s hospitalization and regarding the cause of G.W.'s

injuries. Nevertheless, Father failed to protect the children when he allowed them to

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be placed with and remain under the care of G.W.'s physical abuser—whether

Mother, paternal grandmother, or E.W.

6

Father had an ongoing problem with illegal drug use. Although Father was

required to submit to drug testing as part of his service plan, Father submitted to only

one drug test in May 2021, which resulted positive for methamphetamines,

amphetamines, and marijuana. Father's failure to submit to further drug testing meant

he was presumed positive. Father's illegal drug use affected his life and his ability to

parent: his up-and-down behavior and aggressiveness, his extensive criminal history,

and his risk of further incarceration. Additionally, Father admitted to using drugs

"with the gang members who were stalking [his] family”—the same gang members

that had purportedly threatened to kill Father and his family. Father's use of

methamphetamines with dangerous criminal gangs is likely not conducive to a safe

environment for the children.

Father failed to take the necessary steps for the return of the children.

Specifically, Father did not complete any of his required services, he was not

financially stable, and he did not have housing for himself or the children. Moreover,

Father asked that the trial court not return the children to his care. He even admitted

that he could not keep the children safe.

Viewing all the evidence in the light most favorable to the trial court's

judgment and recognizing that the factfinder is the sole arbiter of the witnesses'

6

The factfinder could have made any of these attributions.

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credibility and demeanor, we hold that there is some evidence of an endangering

environment on which a reasonable factfinder could have formed a firm belief or

conviction that Father had knowingly placed or had knowingly allowed R.W. to

remain in conditions or surroundings that endangered his emotional or physical wellbeing. See id. § 161.001(b)(1)(D). And we hold that there is some evidence of

endangering conduct on which a reasonable factfinder could have formed a firm

belief or conviction that Father had engaged in conduct that endangered R.W.'s

physical or emotional well-being. See id. § 161.001(b)(1)(E).

Giving due deference to the factfinder's endangering-environment and

endangering-conduct findings, without supplanting the factfinder's judgment with our

own, and after reviewing the entire record, we hold that a factfinder could reasonably

form a firm conviction or belief that Father had knowingly placed or had knowingly

allowed R.W. to remain in conditions or surroundings that endangered his emotional

or physical well-being and that Father had engaged in conduct that endangered R.W.'s

physical or emotional well-being. See id. § 161.001(b)(1)(D), (E). Accordingly, we

overrule Father's issues regarding termination of his parental rights to R.W. under

Subsections (D) and (E). See id. Because a finding of only one ground alleged under

Section 161.001(b)(1) is sufficient to support termination, A.V., 113 S.W.3d at 362,

we need not reach Father's issues regarding termination as to R.W. under Subsections

(N), (O), and (P).

24

B. Termination of Father's Parental Rights to G.W. under Section 161.002

The trial court terminated Father's parental rights to G.W. under Section

161.002(b)(1) of the Family Code. In its termination order, the trial court referred to

Father as G.W.'s "alleged” father7 and found by clear and convincing evidence that

Father did not timely file an admission of paternity or file a counterclaim for paternity,

pursuant to Section 161.002(b)(1) of the Family Code, and that termination was in

G.W.'s best interest. Father contends that the trial court erred by terminating Father's

parental rights to G.W. under Section 161.002 of the Family Code. We agree.

1. Family Code Section 161.002(b)(1)

Under Section 161.002(b)(1), "[t]he rights of an alleged father may be

terminated if . . . after being served with citation, he does not respond by timely filing

an admission of paternity or a counterclaim for paternity.” Tex. Fam. Code Ann.

§ 161.002(b)(1). However, if the alleged father files an admission of paternity, TDFPS

must then prove one of the grounds for termination under Section 161.001(b)(1)

before his parental rights can be terminated. In re J.L.A., No. 04-13-00857-CV, 2014

WL 1831097, at *2 (Tex. App.—San Antonio May 7, 2014, no pet.) (mem. op.); Toliver

7

TDFPS did not plead that Father was G.W.'s alleged father in its original

petition or request termination under Section 161.002 of the Family Code. Rather,

TDFPS identified Father as "[t]he father of the children [R.W.] and [G.W.]” and

requested termination pursuant to grounds listed in Section 161.001(b)(1). TDFPS

never amended its petition or otherwise pled that Father was an alleged father, and

nothing in the record shows that TDFPS sought termination as to G.W. based on

Father's alleged paternity. In fact, the first mention in the record of Father's "alleged”

paternity as to G.W. is from the trial court's temporary order following the June 1,

2021 Adversary Hearing identifying Father's appearance at the hearing.

25

v. Tex. Dep't of Fam. & Protective Servs., 217 S.W.3d 85, 104 (Tex. App.—Houston [1st

Dist.] 2006, no pet.); In re K.W., 138 S.W.3d 420, 430 (Tex. App.—Fort Worth 2004,

pet. denied); Phillips v. Tex. Dep't of Protective & Regul. Servs., 25 S.W.3d 348, 357 (Tex.

App.—Austin 2000, no pet.). If the trial court erroneously terminates an alleged

father's parental rights after he sufficiently admits paternity, reversal and remand for a

new trial to require TDFPS to meet its burden of proof under Section 161.001 is the

appropriate remedy. See In re E.O., 595 S.W.3d 858, 865 (Tex. App.—El Paso 2020,

no pet.) (citing In re C.M.C., 273 S.W.3d 862, 883 (Tex. App.—Houston [14th Dist.]

2008, no pet.) (op. on reh'g)); Phillips, 25 S.W.3d at 357.

2. Did Father file an admission of paternity?

Father did not file a counterclaim for paternity. See Tex. Fam. Code Ann.

§ 161.002(b)(1). However, Father contends that he admitted paternity as to G.W.

Soon after TDFPS filed its petition, Father filed an affidavit of indigency and

application for appointed counsel listing both R.W. and G.W. as his dependents and

identifying himself as their father. Father then filed Respondent Father's Original

Answer entering a general denial of allegations and asking the trial court to deny

TDFPS's request to terminate his parental rights. At trial, Father testified that Mother

was his wife and the mother of their children, that G.W. was his son, and that he

loved his children—referring to "[R.W.] and [G.W.] both”—and he requested that his

parental rights to his children not be terminated. Indeed, Father referred to both R.W.

and G.W. as his children throughout his testimony.

26

Subsection 161.002(b)(1) allows the trial court to "summarily terminate” the

rights of an alleged father that fails to file an admission of paternity. Toliver, 217

S.W.3d at 104; Phillips, 25 S.W.3d at 357. However, the statute does not prescribe any

formalities that must be observed when "filing” an admission of paternity or for such

admission to be effective. J.L.A., 2014 WL 1831097, at *2 (conceding that alleged

father's appearance and participation in the trial court was sufficient admission of

paternity); In re K.E.S., No. 02-11-00420-CV, 2012 WL 4121127, at *3 (Tex. App.—

Fort Worth Sept. 20, 2012, pet. denied) (mem. op. on reh'g) (finding admission of

paternity when alleged father signed his name as "Respondent Parent” and responded

to a TDFPS letter acknowledging that he believed the child was his); Toliver, 217

S.W.3d at 105 (appearing at trial and admitting paternity triggered alleged father's right

to require TDFPS to prove one of the conduct grounds under Section 161.001(b)(1)

of the Family Code); K.W., 138 S.W.3d at 429–30 (holding alleged father's letters to

the trial court and to TDFPS stating that he was the biological father constituted

admissions of paternity); Estes v. Dall. Cnty. Child Welfare Unit of Tex. Dep't of Hum.

Servs., 773 S.W.2d 800, 801–02 (Tex. App.—Dallas 1989, writ denied) (concluding

alleged father's pro se answer alleging he was "an indigent parent” was a specific

admission of paternity).

Here, although Father did not formally file a particular document admitting

paternity with the trial court clerk, he filed an affidavit of indigency and application

for appointed counsel identifying himself at G.W.'s father, responded to TDFPS's

27

petition, appeared and testified at trial prior to the court's termination of his parental

rights, unequivocally asserted that he was G.W.'s father, and requested that his

parental rights not be terminated. Accordingly, we hold that Father admitted paternity

as to G.W. sufficient to trigger his right to require TDFPS to prove that he engaged in

one of the conduct grounds listed in Section 161.001(b)(1) of the Family Code before

his parental rights could be terminated. Because we conclude that Father's actions

constituted admission of paternity, we hold that the trial court erred by terminating

Father's parental rights to G.W. under Section 161.002(b)(1).

TDFPS argues that any error regarding the trial court's finding pursuant to

Family Code Section 161.002(b) is harmless because there is "ample evidence” to

terminate Father's paternal rights to both children under Section 161.001(b). But the

trial court did not terminate Father's parental rights to G.W. based on one of the

conduct grounds listed in Section 161.001(b)(1). Rather, the trial court erred when it

summarily terminated Father's rights to G.W. pursuant to Section 161.002. Father's

parental rights to G.W. were therefore terminated specifically because of the trial

court's error. Accordingly, the error is harmful. See Tex. R. App. P. 44.1(a); Romero v.

KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).

We sustain Father's issue related to the termination of his parental rights to

G.W. pursuant to Section 161.002 of the Family Code and reverse and remand for a

new trial.

28

We note that Father does not challenge the trial court's appointment of TDFPS

as G.W.'s permanent managing conservator. See In re J.A.J., 243 S.W.3d 611, 616–17

(Tex. 2007) (concluding that a challenge to the trial court's appointment of a

managing conservator is not subsumed in a parent's challenge to the trial court's

termination order). Accordingly, we affirm the trial court's conservatorship

appointment. See id. (holding that absent an independent challenge, the reversal of a

termination order does not affect the trial court's conservatorship appointment when

the trial court finds that appointing a parent as conservator would significantly impair

the child's physical health or emotional development and that appointment of TDFPS

is in the child's best interest); In re B.C., No. 02-15-00175-CV, 2015 WL 6081452, at

*3 (Tex. App.—Fort Worth Oct. 15, 2015, no pet.) (mem. op.) (reversing the trial

court's termination order but affirming the trial court's conservatorship appointment).

C. Ineffective Assistance of Counsel Claims

In her second issue, Mother contends she was denied her right to a jury trial

due to the ineffective assistance of her trial counsel in not advising Mother of her

right to a jury trial and because the trial court failed to admonish Mother of her right

to a jury trial.

8 Father similarly contends he received ineffective assistance of counsel

because his trial counsel failed to advise Father of his right to a jury trial or request a

jury trial on Father's behalf.

8

Although Mother summarily contends that the trial court erred by failing to

admonish her regarding her right to a jury trial, Mother does not brief or otherwise

argue the issue.

29

1. Standard of Review and Applicable Law

Parents have the right to effective assistance of counsel in termination cases.

J.O.A., 283 S.W.3d at 341, 343; In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). A parent

who responds in opposition to a government-initiated parental-rights-termination suit

may assert a claim for ineffective assistance of counsel. In re D.T., 625 S.W.3d 62, 73

(Tex. 2021). We analyze the effectiveness of counsel in parental-rights-termination

cases under the same two-prong test utilized in the criminal context. See Strickland v.

Washington, 466 U.S. 668, 688–93, 104 S. Ct. 2052, 2064–68 (1984); M.S., 115 S.W.3d

at 545. Under Strickland, an appellant must prove by a preponderance of the evidence

that (1) his or her counsel's representation was deficient and (2) the deficiency

prejudiced his or her defense. 466 U.S. at 687, 104 S. Ct. at 2064; M.S., 115 S.W.3d at

545.

In evaluating counsel's effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all the

circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307

(Tex. Crim. App. 2013); M.S., 115 S.W.3d at 545. Our review of counsel's

representation is highly deferential, and we indulge a strong presumption that

counsel's conduct was not deficient. M.S., 115 S.W.3d at 545.

30

Strickland's prejudice prong requires a showing that counsel's errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must

show a reasonable probability that the proceeding would have turned out differently

without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at

308. A "reasonable probability” is a probability sufficient to undermine confidence in

the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308.

We must ultimately focus on examining the fundamental fairness of the proceeding in

which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.

2. Analysis as to Mother

Lacy Kimball was appointed to represent Mother. Mother argues that she did

not know she was entitled to a jury trial and that Kimball never discussed the option

of a jury trial. Mother's brief does not allege error on the part of the trial court but

specifically presents the issue as "whether [Kimball's] performance was deficient in

not addressing this constitutionally fundamental right with her client.” She then

analyzes the two-prong test set forth in Strickland. Without deciding whether

Kimball's performance was deficient,9 we will hold that Mother has failed to show

that she was prejudiced by Kimball's actions. See id. at 694, 104 S. Ct. at 2068.

9

We need not address both prongs of the Strickland test if the appellant makes

an insufficient showing on one component, nor must we address them in any

particular order. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

31

Implicitly addressing how she was prejudiced by Kimball's alleged failure to

inform Mother of her right to a jury trial, Mother vaguely asserts that "[a] denial of

that right is a very serious matter.” See Bell Helicopter Textron v. Abbott, 863 S.W.2d 139,

141 (Tex. App.—Texarkana 1993, writ denied). Mother conflates portions of the

record to suggest that the trial court was biased against her after learning of threats of

violence involving firearms that posed a risk of harm to the judiciary—though Mother

was not present when the alleged threats were made and only heard about them later.

Mother also highlights obscure statements in the record—that the trial court made in

a relevancy context—to suggest prejudice.

In the context of the waiver of a jury proceeding, the proper measure of

prejudice for an attorney's deficient performance is "whether there is a reasonable

likelihood that the defendant would have opted for the proceeding if his attorney had

performed adequately.” Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018)

(op. on reh'g) (citing Lee v. United States, 137 S. Ct. 1958, 1965 (2017)). Here, then, we

must determine whether Mother has shown that a reasonable likelihood existed that

she would have requested a jury trial had Kimball timely informed her of her right to

elect one. Mother herself never testified that she would have requested a jury trial. At

the hearing on her motion for new trial, Mother stated that she had only recently

developed concerns regarding the court systems, the judge, and "things like that” but

that she did not feel any of those concerns at any time previously in the case. And it

32

was not until "[h]ere recently” that Mother became concerned about alleged bias in

the court system in Parker County. Thus, our analysis turns on other record evidence.

To the extent that Mother complains of Kimball's failure to communicate to

Mother that she had a right to a jury trial, Mother was "out of pocket” and did not

have access to a phone; thus, she made herself unavailable to Kimball while Mother

and Father were in Austin. Mother also testified that she had notified only her family

and the caseworker supervisor that she was moving to Austin.

Additionally, Mother refused to be by G.W.'s side while he was in the hospital

with fractured ribs, refused to leave Father after reporting that he had committed

several acts of domestic violence against Mother, tested positive for using

methamphetamines on two drug tests in May 2021 and February 2022, failed to

submit to further drug testing before trial, refused to follow up with her mental health

treatment, refused to take any medication for her mental illnesses, did not complete

her required services, and did not obtain financial stability or stable housing.

Given Mother's lack of engagement in the case, we are not persuaded that it

was reasonably likely that Mother would have requested a jury trial even had Kimball

timely informed her of the existence of that right. See In re L.H., No. 02-21-00260-CV,

2022 WL 246868, at *6 (Tex. App.—Fort Worth Jan. 27, 2022, no pet.) (mem. op.)

(citing Miller v. State, No. 05-14-01065-CR, 2018 WL 4579788, at *3 (Tex. App.—

Dallas Sept. 25, 2018, pet. denied) (mem. op., not designated for publication)).

Accordingly, we overrule Mother's issue regarding ineffective assistance of counsel.

33

3. Analysis as to Father

Kathleen Wise was appointed to represent Father. Father asserts that he was

not aware of his right to a jury trial, that Wise did not discuss his right to a jury trial

with him until after the trial, that he was prejudiced by Wise's deficiency, and that he

would have requested a jury trial but for his lack of knowledge. TDFPS argues that

the entire record shows that Wise's assistance of counsel was effective and that Father

has not shown how having a jury trial would have resulted in a different outcome.

Before trial began, Wise filed a motion to withdraw asserting that Father's

conduct had rendered counsel unable to communicate with him in a manner

conducive to good attorney–client relations. At the motion for new trial hearing,

Father testified that he had met with Wise three times in person and two to four times

by phone. Father alleged that Wise never "properly sat down” and explained to him

his right to a jury trial. Wise, however, testified that on May 28, 2021, specifically, she

described to Father his right to a jury trial during a phone conversation with him.

According to Wise, Father was unresponsive to communications, he did not show up

for the first hearing, and he refused to attend an in-person meeting at the

commencement of the case. Wise also testified that she had had multiple phone

conversations with Father at the commencement of the case but that he then stopped

communicating with her, and she did not hear from him again until she visited him in

jail while he was incarcerated in February 2022.

34

At the beginning of trial, Father explained that he and Wise had not "been in

the best contact” but that the communication issues were not "all on [Wise's] part.”

The trial court then gave Father the option to either agree with Wise that she remain

on his case or to have Wise appointed as a stand-by attorney. He requested that Wise

continue to represent him, which she did. Father later declared that he had no

complaints about Wise's representation, "not whatsoever.”

Reviewing the totality of the representation and the particular circumstances of

the case, we hold that Wise provided reasonable assistance under all the circumstances

and prevailing professional norms. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at

2065. The record reflects that throughout trial, Wise zealously advocated on Father's

behalf. She made numerous objections and provided the trial court with legal

arguments. Additionally, Wise cross-examined TDFPS's witnesses, raised questions

about their evidence, and pleaded Father's case in closing arguments. Wise's

representation was therefore not deficient. Because Father made an insufficient

showing on the deficient-performance prong, we need not address the prejudice

prong. See id. at 697, 104 S. Ct. at 2069. Accordingly, we overrule Father's issue

regarding ineffective assistance of counsel.

D. Admission of Evidence of Father's Drug Test Results

Father argues that the trial court erred by admitting evidence of Father's

purported drug test results because the witness did not have the requisite training,

35

education, experience, skill, or knowledge in a field that would qualify her to interpret

and convey the purported drug testing results.

Whether to admit or exclude evidence is within the trial court's sound

discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on

reh'g). While Father cites to general authority applicable to testimony by purported

experts, see Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996), he cites no authority that

requires expert testimony to interpret or explain drug test results in parental

termination cases. Nevertheless, without deciding whether the trial court abused its

discretion, we hold that any error in admitting the testimony was harmless.

1. Harmless Error

We will not reverse a trial court's judgment because of an erroneous evidentiary

ruling unless the ruling probably, though not necessarily, caused the rendition of an

improper judgment. Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018); U-Haul Int'l, Inc.

v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). The complaining party must usually show

that the whole case turned on the evidence at issue. Interstate Northborough P'ship, 66

S.W.3d at 220. Thus, an erroneous admission of evidence is harmless if it is merely

cumulative. In re K.R.G., No. 02-12-00384-CV, 2013 WL 3179498, at *3 (Tex. App.—

Fort Worth Mar. 21, 2013, pets. denied) (mem. op.) (citing In re C.R., 263 S.W.3d 368,

370–71 (Tex. App.—Dallas 2008, no pet.)).

36

2. Analysis

Maloney testified that Father's drug test in May 2021 resulted positive for

methamphetamines, amphetamines, and marijuana. Other evidence in the record

shows that Father himself admitted at trial that he had tested positive for

methamphetamine and marijuana on a drug test at the beginning of the case, that his

last drug use prior to that drug test would have been anywhere from one week to one

month prior, and that he had ingested those drugs sometime before the drug test in

May 2021. Additionally, Villegas testified—without any objection from Father—that

Father had reported to TDFPS that the last time he used drugs was in early 2021.

The complained-of testimony is cumulative of evidence in the record that

supported Father's drug use in or before May 2021. Therefore, any error in the

admission of this evidence was harmless. See C.R., 263 S.W.3d at 370–71 (overruling

appellant's complaint about the admission of her drug test results when there was

extensive other evidence that appellant used illegal drugs such that the drug test

results were cumulative, rendering the error, if any, harmless). Accordingly, we

overrule Father's issue regarding the admission of evidence of Father's drug test

results.

E. Denial of Mother's Motion for Extension

Mother contends that the trial court erred by denying her Motion to Extend.

TDFPS argues that the trial court did not abuse its discretion by denying the continuance

because Mother, through her own choices, failed to comply with her service plan.

37

1. Standard of Review and Applicable Law

Section 263.401 of the Family Code provides a one-year dismissal deadline for

a suit affecting the parent–child relationship filed by TDFPS that requests

termination. Tex. Fam. Code Ann. § 263.401(a). However, if the trial court finds that

"extraordinary circumstances” necessitate the child remaining in the temporary

managing conservatorship of TDFPS and that continuing the appointment of TDFPS

as temporary managing conservator is in the best interest of the child, the trial court

may retain the suit on the court's docket for up to 180 days. Id. § 263.401(b). The

focus in granting or denying an extension of the statutory dismissal date is on the

needs of the child—not of the parent. In re D.R., 631 S.W.3d 826, 836 (Tex. App.—

Texarkana 2021, no pet.); In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth

2012, pet. denied) (en banc op. on reh'g).

We review the denial of a motion to extend the dismissal date under an abuse

of discretion standard. In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth), pet.

denied, 260 S.W.3d 462 (Tex. 2008). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles—that is, if its act is arbitrary or

unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134

S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court

abused its discretion merely because the appellate court would have ruled differently

in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,

558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

38

A trial court also abuses its discretion by ruling without supporting evidence.

Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But no abuse of discretion

occurs when the trial court decides based on conflicting evidence, so long as some

substantive and probative evidence supports its decision. Unifund CCR Partners v. Villa,

299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.

2002) (op. on reh'g).

2. Analysis

Mother filed her motion for extension requesting more time to complete her

services and requesting additional time for TDFPS to review a recent possible kinship

placement with her brother. To explain why she had not completed her services,

Mother testified that she had experienced a lot of trauma related to domestic violence

and to a recent sexual assault by E.W., which had inhibited her ability to start her

services sooner. On appeal, Mother recognizes that this may not rise to the level of

extraordinary circumstances. Regardless, Mother argues that TDFPS's failure to fulfill

its statutory duty related to seeking kinship placement prior to trial does constitute

extraordinary circumstances. We hold that the trial court did not abuse its discretion.

The trial court heard testimony that Mother's own choices led to her failure to

comply with her required service plan. Actions that are considered to be the parents'

fault will generally not constitute extraordinary circumstances, such as the failure to

comply with a service plan. In re M.K.V., 648 S.W.3d 478, 483 (Tex. App.—San

Antonio 2021, no pet.); D.R., 631 S.W.3d at 837; In re J.S.S., 594 S.W.3d 493, 501

39

(Tex. App.—Waco 2019, pet. denied) (mem. op.). We therefore cannot say that the

trial court abused its discretion by failing to find extraordinary circumstances under

these facts.

Likewise, we cannot say that the trial court abused its discretion by failing to

find that the recently identified possible kinship placement constituted extraordinary

circumstances. Mother argues that the one-year deadline imposed on a parent in

Family Code Section 263.401(b)—to be fully prepared for trial—should be equally

imposed on TDFPS to seek possible kinship placement. However, Mother provides

no authority, and we have found none, that supports Mother's argument or otherwise

suggests that TDFPS has a statutorily imposed duty to make a kinship placement

before proceeding to trial.

10

At trial, Villegas testified that TDFPS would continue looking into possible

kinship placement for the children even after termination. However, the

determination of where a child will be placed is a factor in evaluating the child's best

interest. In re C.C., No. 2-04-206-CV, 2005 WL 1244672, at *6–7 (Tex. App.—Fort

Worth May 26, 2005, no pet.) (per curiam) (mem. op.). It is not a bar to termination

proceedings that placement plans are not final. See id. Indeed, "a trial court does not

abuse its discretion in determining that it would be against the children's best interest

10The authority Mother does cite is not applicable because, unlike the potential

issue addressed by the Texas Supreme Court, our record contains no evidence that

TDFPS had dismissed Mother's brother or any other possible kinship placement

options. See In re J.W., 645 S.W.3d 726, 748 (Tex. 2022).

40

to delay the suit to evaluate a relative, risking dismissal of the case.” In re G.B. II, 357

S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.) (citing In re Northrop, 305 S.W.3d

172, 177–78 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding) (op. on reh'g);

C.C., 2005 WL 1244672, at *6–7).

Accordingly, we hold that the trial court did not abuse its discretion by denying

Mother's motion for extension. We overrule Mother's issue regarding the denial of

her motion for extension.

Having overruled Mother’s and Father’s respective issues related to termination

under Family Code Section 161.001(b), Mother’s and Father’s respective issues related

to ineffective assistance of counsel, Father’s evidentiary issue, and Mother’s issue

related to her motion for extension, we affirm that portion of the judgment

terminating Mother’s parental rights as to R.W. and G.W. and terminating Father’s

parental rights as to R.W. However, we reverse that portion of the judgment

terminating Father’s parental rights to G.W. and remand the cause to the trial court

for a new trial related to Father’s rights to G.W., and we affirm the trial court’s

conservatorship appointment.