Court of Appeals of Texas, Third District, Austin
F. R. and J. R., Appellants
Texas Department of Family and Protective Services, Appellee
THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
NO. 13-2094, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING
Justices Puryear, Field, and Bourland
Olson Bourland, Justice
F.R. ("Felix") and J.R. ("Jane") appeal
from the trial court's order terminating their parental
rights regarding two children, J.R. ("Tiffany") and
J.R. ("Erin").Appellants challenge the order claiming
trial-court procedural errors, ineffective assistance of
trial counsel, legal and factual insufficiency of the
evidence, and denial of due process. For the reasons that
follow, we will affirm the trial court's order.
and Jane are Tiffany and Erin's biological parents.
Neither parent reports having any other children. Since
birth, Tiffany has had an intellectual and developmental
disability that her parents refer to as "autism."
According to Jane, Tiffany exhibited delayed speech and motor
skills in infancy and did not begin walking until she was
two-and-a-half years old. Tiffany began acting violently when
agitated when she was a young child by hitting, scratching,
and biting her parents, other caregivers, and Erin. The
parties refer to these episodes as tantrums. The violent
behavior, both directed outwardly and at times
self-injurious, has continued throughout Tiffany's
September 2013, the Texas Department of Family and Protective
Services received four intakes alleging abuse and neglect of
Tiffany and Erin by Felix and Jane. At that time, Tiffany was
ten years old and Erin was four. The first intake, dated
September 6, 2013, reported that Tiffany was observed with
scratches and sores on her legs and buttocks after disrobing
during a tantrum at school. The second intake, made the same
day, reported that with increasing frequency no adult was
present at the residence when Tiffany was dropped off by the
school bus. It also noted concerns related to proper
management of Tiffany's medication. The third intake was
dated September 12, 2013, and reported that Felix became
enraged at a school-bus driver who refused to exit the bus to
aid Felix during one of Tiffany's tantrums. It also
reported that Felix had subsequently called the school and
made statements to the effect that "his life and his
family's lives was going up in flames, " which
school staff understood to be a threat to blow up his home
with his wife and children inside. The same day, the
Department received the fourth intake, which reported that
law enforcement had responded to two incidents that afternoon
in which Tiffany was biting and kicking her father, who was
restraining Tiffany. The intake reported that Jane
video-recorded the second incident instead of helping Felix
Department conducted an investigation that led to it filing
its Original Petition for Protection of Children, for
Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship. The paternal grandmother, R.K.
("Rita"), intervened in the suit. Tiffany and Erin
were removed from their parents' home on September 26,
2013, pursuant to an order for protection of child in an
emergency and writ of attachment. When the Department
attempted to effectuate the order, it learned that Tiffany
had been admitted to Austin State Hospital. Erin was
collected from the home of an unknown individual, where Felix
and Jane had left her, and placed in foster care. An
adversary hearing was conducted on October 29 and 31, 2013,
and the children's placements were continued, as was the
Department's conservatorship. The court also ordered the
parents to complete a Family Plan of Service that included
psychological and psychiatric evaluations. In accordance with
the Family Code in effect at the time, the order also set a
dismissal date of September 29, 2014. See Tex. Fam.
Code § 263.401(a).
a four-day bench trial, on August 21, 2014, an associate
judge terminated the parental rights of Felix and Jane and
appointed the Department as the children's permanent
managing conservator. Felix and Jane timely requested a de
novo trial on August 22, 2014, and filed an amended request
on August 26, 2014. The Department also requested a de novo
trial regarding attorney's fees and child support.
requested de novo trial did not occur until May 2017,
approximately two years and ten months later. The chronology
of events during the interim time period is as
• August 26, 2014 Counsel for Felix and Jane moved to
withdraw as counsel for Jane because a conflict of interest
• September 4, 2014 Motion for withdrawal of Jane's
counsel was granted.
• September 8, 2014 Substitute counsel for Felix and
Jane appeared. Felix and Jane requested the de novo trial be
tried before a jury but failed to submit the required jury
• January 27, 2015 The Department moved to dismiss for
want of prosecution, alleging that Felix and Jane had not set
their request for de novo trial by jury for hearing and had
failed to appear at a hearing on January 26, 2015, that was
set by the Department, despite confirmed receipt of notice of
• January 29, 2015 Felix and Jane filed a second request
for jury trial with proof of payment of the jury fee and
responded to the Department's motion to dismiss,
explaining that a last-minute scheduling conflict had arisen
and counsel had inadvertently failed to notify parties to
this cause and the court. Although a motion to set the de
novo trial for hearing on April 27, 2015, was attached as an
exhibit to the response, the record does not show that it was
• March 25, 2015 The parties filed a Rule 11 Agreement
continuing the trial to August 10, 2015.
• June 23, 2015 One of two attorneys of record for Felix
and Jane moved to withdraw as counsel for Felix, citing an
inability to effectively communicate with Felix in a manner
consistent with good attorney-client communications.
• July 8, 2015 An amended motion for withdrawal of
counsel was filed, requesting that both attorneys of record
be withdrawn as counsel for both Felix and Jane, again citing
inability to effectively communicate.
• August 3, 2015 A second substitute attorney appeared
on behalf of Felix and Jane.
• September 14, 2015 An agreed order on motion for
substitution of counsel was filed, having been signed on
September 9, 2015.
• April 1, 2016 The Department filed a notice of
mediation setting for April 11, 2016.
• April 12, 2016 The parties filed a limited mediated
settlement agreement to set the matter for final jury trial
on August 29, 2016, explaining that the attorney ad litem had
requested a continuance due to a scheduling conflict with
another case attempting to meet its statutory deadline.
• July 27, 2016 The Department filed a motion for
preferential setting, noting that the de novo trial had been
pending for approximately 2 years at that point and that the
parties were originally set for a jury trial on July 30,
2015, but that the "setting [had] been continued and
reset multiple times since that time at the request of
• July 28, 2016 Counsel for intervenor paternal
grandmother Rita moved to withdraw ...