Court of Appeals of Texas, Second District, Fort Worth
IN THE INTEREST OF L.M. AND L.M., CHILDREN
THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO.
PITTMAN, J.; SUDDERTH, C.J.; and BIRDWELL, J.
MEMORANDUM OPINION 
bench trial, the trial court terminated the parental-child
relationships of J.P.M. (Mother) and Appellant R.S. (Father)
with their children, fraternal twins L.M. and L.M. (the
twins). The trial court found that Mother had executed an
unrevoked or irrevocable affidavit of relinquishment of her
parental rights and that termination of the parental rights
of both parents was in the children's best interests.
See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2)
(West Supp. 2017). The trial court also found that Father
• knowingly placed or knowingly allowed the [twins] to
remain in conditions or surroundings which endanger[ed their]
physical or emotional well-being;
• engaged in conduct or knowingly placed the [twins]
with persons who engaged in conduct which endanger[ed their]
physical or emotional well-being; [and]
• failed to comply with the provisions of a court order
that specifically established the actions necessary for [him]
to obtain the return of the [twins] who ha[d] been in the . .
. temporary managing conservatorship of the Department of
Family and Protective Services [(TDFPS)] for not less than
nine months as a result of [their] removal from the parent .
. . for . . . abuse or neglect.
Id. § 161.001(b)(1)(D), (E), (O). Only Father
appealed. He does not challenge the sufficiency of the
evidence to support termination. Instead, in two issues he
contends that (1) the trial court abused its discretion by
"specifically prohibiting [his] counsel from seeking an
extension of the dismissal deadline, preventing a request for
continuance and/or jury trial" and (2) his trial counsel
was ineffective by failing "to request a continuance,
extension, or jury trial following her late
appointment." Because we hold that Father did not
preserve his first issue and did not satisfy his burden to
prove ineffective assistance of trial counsel, we affirm the
trial court's judgment.
The Twins Tested Positive for Methamphetamine at
prematurely in early September 2016, the twins tested
positive for methamphetamine. Mother admitted to TDFPS
Investigator Tricilla Ceballos that she had used
methamphetamine during her pregnancy but claimed that she
stopped in March 2016 when she found out she was pregnant.
Mother also admitted to Ceballos that she had been around
Father while he used methamphetamine as recently as the day
before her delivery. Finally, Mother alleged that Father had
been violent with her during the pregnancy.
TDFPS Filed a Petition to Terminate Mother's and
Father's Parental Rights, and Father Missed the First
September 12, 2016, TDFPS filed a petition for termination
and secured an ex parte emergency order for protection of the
twins. Father did not attend the adversary hearing held
September 22, 2016, but went to the trial court that same day
and obtained a one-week reset of the adversary hearing
pertaining to him.
Father Retained Counsel Who Quickly Withdrew.
record shows that retained counsel filed an answer on
Father's behalf on September 26, 2016 but then withdrew
pursuant to a motion and agreed order on September 29, 2016,
and Father was given another one-week reset of the adversary
hearing because he indicated that he wanted to retain new
Father Missed the Hearings in October and November 2016 but
Knew by October 2016 that He Had a Right to Counsel and Had
Been Ordered to Complete Services.
did not attend the October 5, 2016 adversary hearing or the
November 10, 2016 status hearing but admitted at trial that
he received a copy of the October 2016 temporary order in
October. That order included the following provisions
regarding Father's right to counsel:
5. Appointment of Counsel for Parents or
5.1. The Court defers its finding regarding an attorney
ad litem for [FATHER] because [he] has not appeared
in opposition to this suit or has not established indigency.
. . . .
22. Duty to Provide Information
. . . .
22.8. "YOU HAVE THE RIGHT UNDER
§262.102(d), TEXAS FAMILY CODE, TO BE REPRESENTED BY AN
ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN
ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN
ATTORNEY BY CONTACTING THE COURT AT 16th JUDICIAL DISTRICT
COURT OF DENTON COUNTY, 1450 E MCKINNEY ST, DENTON, TEXAS
76209, (940) 349-2310. IF YOU APPEAR IN OPPOSITION TO THE
SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN
ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF
INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU
ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND
ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL
APPOINT AN ATTORNEY TO REPRESENT YOU."
temporary order also contained global provisions about the
court-ordered service plan:
12. Finding and Notice
THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT
EACH OF THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO
OBTAIN THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY
COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR
TERMINATION OF PARENTAL RIGHTS.
. . . .
20. Compliance with Service Plan
20.1. [FATHER] is ORDERED,
pursuant to 263.106 Texas Family Code, to comply with each
requirement set out in the Department's original, or any
amended, service plan during the pendency of this suit.
those two global provisions, the order set out detailed
services that Father was ordered to engage in and complete,
including a psychological or psychiatric evaluation,
counseling, parenting classes, domestic violence
intervention, and drug and alcohol assessments and testing;
statuses he was ordered to attain, including stable housing
and employment; and activities he was ordered to not engage
in, including all criminal activities and unsupervised
contact with children under sixteen years of age.
The Trial Court Told Father at the First Hearing He
Attended-the February 9, 2017 Permanency Hearing-that He
Should Apply for Appointed Counsel and Begin His
first hearing that Father attended was the February 9, 2017
permanency hearing held almost five months after the
twins' removal. Father testified that he did not have a
lawyer. TDFPS's counsel asked, "And you understand
that you have the right to apply to the Court, if you qualify
as indigent, for a Court appointed attorney? Have you been
through that process?" Father replied, "No."
After TDFPS's counsel and the twins' attorney ad
litem finished examining Father, the following discussion
occurred between Father and the trial court:
THE COURT: All right. And [Father], is this your first time
to attend a court hearing in this case?
[FATHER]: Yes, ma'am. . . . I didn't know anything
was going on for eleven days after the[ twins] got taken by
CPS. . . . [A]ll my calls were ignored by the initial CPS
worker. So the day before my first court appearance I was
told by an outside source. And I showed up with a lawyer. I
had to quickly get a lawyer to postpone it for a week. And
then financial issues came up that second week, and she had
to basically take her name off as being my lawyer.
They reset for a week, and I was told a week. And it was
apparently six days. And I just got the date wrong. So I came
in the third day, and that was after everything had gotten
taken care of.
THE COURT: Have you tried to hire a lawyer since then?
[FATHER]: Not since then, no. I kind of went into a financial
depression, if you will.
THE COURT: Okay. So before you leave here today, I want you
to complete a form and let me review it and determine whether
or not you qualify for a Court appointed attorney.
[FATHER]: Okay. Thank you.
THE COURT: All right. And so let me just follow up with that
and ask you, have you signed up to do any services?
[FATHER]: No. I lost my vehicle . . . about three weeks after
the final court appearance. That was the third week that I
came in when I was a day late. And everything basically got
taken, you know, there was no hearing for me. About three
weeks later I got my car repo'd because I lost my job and
everything. Well, I didn't lose my job. I kind of just
THE COURT: Okay.
[FATHER]: And so I just kind of lost everything. So I was
trying to figure out what to do.
THE COURT: So you're here today. Caseworker is here
today. So I'm going to tell you that you need to talk to
her today if you intend to do anything about getting started
on your services.
[FATHER]: I got my car yesterday. I talked to some guy today,
but it doesn't start until March.
THE COURT: Okay, well, nonetheless-
[FATHER]: My stuff got transferred to Tarrant County.
THE COURT: Nonetheless, this case has been pending for just a
little over five months. These cases are supposed to be
concluded within twelve. So we're almost
halfway-we're getting close to the halfway mark, and you
haven't done anything at this point. So you need to get
moving if you're going to do something.
Do you understand?
[FATHER]: Yes, ma'am.
Before the hearing ended, the trial court reminded the
[T]he CPS plan is a very important document. Its purpose is
to provide you with skills and knowledge that you need in
order to become better parents to your children. The Court is
going to review, at each hearing, whether or not you've
made progress under your service plan. The review will
include whether you've acquired or learned any specific
skills or knowledge as stated in the plan.
If you are unwilling or unable to provide your children with
a safe environment, your parental and custodial duties and
rights may be restricted or terminated or your children may
not be returned to you. Do you understand that, [Father]?
replied, "Yes, ma'am."
By May 11, 2017, About Eight Months After the Twins'
Removal, Father Had Not Begun the Court-Ordered
months later at the May 11, 2017 permanency hearing, Father
testified as follows in TDFPS's counsel's direct
Q. [Father], have you received a copy of your service plan?
Q. What services have you started?
Q. Are you currently employed?
Q. Where are you employed?
Q. Doing what?
A. Doing like product placement.
Q. How often do you work?
A. Pretty much anytime I can when-I've had major car
problems, vehicle problems in the past two months.
. . . .
Q. In the last six months, what has hindered you from
starting your services?
A. Pretty much car trouble.
Q. Have you asked [TDFPS] to look into assisting with
A. I live an hour and fifteen minutes away.
Q. So have you asked [TDFPS] to assist you-
Q. Have you asked [TDFPS] to establish services closer to
where you live?
A. Yes. Some of them have been.
Q. And you still haven't gone?
. . . .
Q. Do you understand what is contained within your service
plan, as far as what you need to do?
In the May 11, 2017 Hearing, Father Questioned the
Requirement that He Have No Unsupervised Contact with a Minor
Younger than Sixteen Years Old.
Mother testified, TDFPS's counsel recalled Father to the
Q. [FATHER], how old is your son [B.]?
. . . .
A. . . . . He just turned nine.
. . . .
Q. Who is he ...