In the Interest of T.S., L.S., and D.S., Children v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00311-CV

IN THE INTEREST OF
T.S., L.S., AND D.S., CHILDREN

From the 52nd District Court
Coryell County, Texas
Trial Court No. DC-20-51857

MEMORANDUM OPINION

On March 21, 2024, we issued an opinion and judgment in this cause. Appellant

Mother filed a motion for rehearing. We deny Mother’s motion for rehearing, vacate and

withdraw our opinion and judgment dated March 21, 2024, and issue this opinion and

accompanying judgment in their stead.

After a jury trial, Mother appealed the order terminating her parental rights to T.S.,

L.S., and D.S., and Father appealed the order terminating his parental rights to D.S.1 The

parents raise issues concerning the trial court’s jurisdiction, ineffective assistance of

1Father’s parental rights to T.S. and L.S. were terminated in a prior termination case in which he signed a
voluntary relinquishment of his rights to both children. Any references to Father’s parental rights in this
opinion will pertain only to his rights to D.S. unless otherwise noted.
counsel of the children’s attorney ad litem, dismissal of appointed counsel, sufficiency of

the evidence to terminate Father’s parental rights, and the trial court’s ruling permitting

the Intervenors to intervene in the suit.2 We affirm the judgment of the trial court.

Background

On December 12, 2020, the Department of Family and Protective Services (“the

Department”) received a report alleging Mother had left four-year-old T.S. in the care of

a registered sex offender and that T.S. wandered unsupervised across the street to a

neighbor’s house. As part of the Department’s investigation, Mother and all three

children submitted to hair drug tests. Mother and D.S. both tested positive for

methamphetamine and amphetamine and L.S. tested positive for methamphetamine.

On December 29, 2020, the Department filed its original petition seeking

conservatorship of T.S., L.S., and D.S. and seeking termination of Mother and Father’s

parental rights. The trial court entered an order on the same day naming the Department

as temporary sole managing conservator of the children. Mother and Father were

appointed counsel, and an attorney ad litem and guardian ad litem were appointed for

the children. All three children were eventually placed in a foster home with R.A. and

2Mother and Father’s issues, as presented in this appeal, are arguably multifarious. See In re S.K.A., 236
S.W.3d 875, 894 (Tex. App.—Texarkana 2007, pet. denied) (observing that a multifarious issue or point of
error is one that raises more than one specific ground of error). Courts may disregard any assignment of
error that is multifarious. Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008, no pet.). However, a
reviewing court may consider a multifarious issue if it can determine, with reasonable certainty, the error
about which the appellant wants to complain. Id. We will therefore address those issues about which we
have determined with reasonable certainty the appellants want to complain.

In the Interest of T.S., L.S., and D.S. Page 2
M.A. (“Intervenors”), who had previously served as a foster placement for T.S. and L.S.

in a prior termination case against Mother and Father.

Intervenors filed their petition in intervention on March 3, 2022. Shortly before

the Department’s statutory deadline expired, the Department requested a temporary

orders hearing seeking to be dismissed from the case and requesting the trial court to

appoint Intervenors as temporary managing conservators of the children. After a three-

day hearing, the Department was dismissed and Intervenors were named temporary

managing conservators of the children. The trial court discharged Mother and Father’s

court-appointed counsel as well as the court-appointed attorney ad litem and guardian

ad litem for the children.3 Shortly thereafter, Mother and Father each retained their own

counsel; however, the parents’ retained attorneys requested to withdraw from

representation prior to trial. Because Mother and Father consented to their attorneys’

withdrawal requests, the trial court granted the attorneys’ motions to withdraw, and both

Mother and Father proceeded to jury trial pro se.

After a three-day jury trial, the jury unanimously voted to terminate Mother’s

parental rights to all three children and unanimously voted to terminate Father’s parental

3 The record does not contain a separate written order releasing the court-appointed attorneys. In the
record before us, our only written indication that the court-appointed attorneys were dismissed is in the
order from the temporary hearing that concluded on June 23, 2022, which was entered on July 12, 2022. In
the order, there were typed provisions stating that each of the court-appointed attorneys would continue
their representation; however, each of these provisions were struck through and initialed, presumably, by
the trial court. Nonetheless, the parties agree that the court-appointed attorneys for the parents and the
children were released once the Department was dismissed from the suit.

In the Interest of T.S., L.S., and D.S. Page 3
rights to D.S. The trial court approved and incorporated the jury’s findings into its Order

of Termination, and appointed Intervenors as managing conservators of the children.

Mother and Father timely filed their joint notice of appeal.

Intervenors’ Petition in Intervention

In her fourth issue, Mother contends that Intervenors did not establish standing to

intervene in the Department’s termination proceeding. She also claims that their

intervention petition was untimely filed.4 Mother raised both claims in her Motion to

Strike Petition in Intervention in the trial court. We disagree.

Standing

Because Intervenors’ lack of standing would be dispositive in this case, we address

this issue first.

STANDARD OF REVIEW

Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives

the court of subject matter jurisdiction and renders subsequent trial court action void. In

re Smith, 260 S.W.3d 568, 572 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding).

Whether a trial court has subject matter jurisdiction is a question of law, which we review

4 Father does not list Intervenors’ standing or the timeliness of Intervenors’ petition as issues on appeal;
however, he occasionally disputes these issues in his brief and raised them in his Motion to Strike Petition
in Intervention in the trial court. To the extent that Father has raised these issues, we address his arguments
and reach the same conclusion as we do herein for Mother’s contentions.

In the Interest of T.S., L.S., and D.S. Page 4
de novo. In Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018). In our review of standing,

we must take as true all evidence favorable to the challenged party, indulge every

reasonable inference, and resolve any doubts in the challenged party's favor. See Tex.

Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). When a statute

specifically confers standing, the statute itself serves as the proper framework for a

standing analysis. In re K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2014,

no pet.).

APPLICABLE LAW

A party's standing to file an original suit affecting a parent-child relationship is

governed by Texas Family Code Sections 102.003 and 102.004(a). See TEX. FAM. CODE

ANN. §§ 102.003 (general standing), 102.004(a) (standing for a grandparent or other

relative of the child). However, Section 102.004(b) of the Family Code provides a relaxed

standing rule by which parties who would not have standing to file an original suit may

nonetheless intervene in a pending suit. See Whitworth v. Whitworth, 222 S.W.3d 616, 621

(Tex. App.—Houston [1st Dist.] 2007, no pet.). This subsection gives the trial court

permission, within its discretion, to grant a person who has had

substantial past contact with the child leave to intervene in a pending suit
filed by a person authorized to do so under this chapter if there is
satisfactory proof to the court that appointment of a parent as a sole
managing conservator or both parents as joint managing conservators
would significantly impair the child’s physical health or emotional
development.

In the Interest of T.S., L.S., and D.S. Page 5
TEX. FAM. CODE ANN. § 102.004(b). If the person seeking leave to intervene is a foster

parent of the child, standing under this subsection is granted only when the person is the

“foster parent of a child placed by [the Department] in the person’s home for at least 12

months ending not more than 90 days preceding the date of the filing of the petition.”

TEX. FAM. CODE ANN. §§ 102.004(b-1), 102.003(a)(12).

To make the required showing under subsection 102.004(b), the party seeking to

intervene must offer evidence of specific acts or omissions of the parent that demonstrate

an award of custody to the parent would result in physical or emotional harm to the child.

Interest of K.J., 676 S.W.3d 186, 191 (Tex. App.—Tyler 2023, no pet.). The evidence

presented must support a logical inference that the specific, identifiable behavior or

conduct will probably result in the child being physically harmed or emotionally

impaired. Mauldin v. Clements, 428 S.W.3d 247, 264 (Tex. App.—Houston [1st Dist.] 2014,

no pet.). Evidence that merely raises a surmise or speculation of possible harm is

insufficient to establish that inference. Id.

DISCUSSION

Mother argues that Intervenors failed to establish that, at the time the intervention

petition was filed, appointing either of the parents as managing conservators would have

significantly impaired the physical health or emotional development of the children.

Although the trial court apparently conducted a hearing on Intervenors’ petition and the

parents’ motions to strike, we do not have a transcript of the hearing. Further, the trial

In the Interest of T.S., L.S., and D.S. Page 6
court did not make express findings of fact or conclusions of law regarding standing.

When the trial court does not make separate findings of fact and conclusions of law

regarding standing, we imply the findings necessary to support the judgment and we

review the entire record to determine if the trial court's implied findings are supported

by any evidence. Id. at 262–63. In granting Intervenors’ petition to intervene and denying

the parents’ motions to strike, the court impliedly found that appointing Mother or Father

as a managing conservator would significantly impair the children’s physical health or

emotional development.5 We will thus review the entire record to determine if the trial

court’s implied findings are supported by any evidence. See In re K.J., 676 S.W.3d at 192.

In this context, “satisfactory proof” means “proof established by a preponderance

of the evidence as the facts existed at the time the suit or intervention was filed.” Compton

v. Pfannenstiel, 428 S.W.3d 881, 885 (Tex. App.—Houston [1st Dist.] 2014, no pet). In

determining whether a parent’s acts or omissions constitute significant impairment,

courts have considered factors such as “physical abuse, severe neglect, abandonment,

drug or alcohol abuse, or immoral behavior on the part of the parent” and “parental

irresponsibility, a history of mental disorders and suicidal thoughts, frequent moves, bad

judgment, child abandonment, and an unstable, disorganized, and chaotic lifestyle that

5
The trial court also implicitly found that the children had been placed in Intervenors’ home by the
Department for at least 12 months ending not more than 90 days preceding the date of the filing of the
petition. The parties agree that Intervenors met this element of standing under Texas Family Code Section
102.004(b), and the record supports the determination that this element has been met. See TEX. FAM. CODE
ANN. § 102.004(b-1).

In the Interest of T.S., L.S., and D.S. Page 7
has put and will continue to put the child at risk.” Thomas v. Thomas, 852 S.W.2d 31, 35

(Tex. App.—Waco 1993, no writ); In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth

2015, no pet.). Although evidence of past misconduct, standing alone, may not be

sufficient to demonstrate present circumstances forecasting substantial impairment, “a

factfinder may infer the present fitness of a parent to be managing conservator from the

parent's recent, deliberate past misconduct.” In re Mitchell, 585 S.W.3d 38, 48 (Tex. App.—

Texarkana 2019, no pet.).

At the time the intervention petition was filed, the record shows that Mother and

Father had not demonstrated an ability to consistently maintain a stable, safe, and drug-

free environment for the children. Mother’s history with the Department shows a pattern

of neglect and drug use that resulted in her parental rights to her two oldest children

being terminated in 2016 and in removal of T.S. and L.S. in 2018 when L.S. tested positive

for methamphetamine. T.S. and L.S. had only been returned to Mother’s care for

approximately seven months when the current case was initiated. A few days later,

Mother tested positive for methamphetamine at a level of 100,473 ng/ml and for

amphetamine at a level of 11,036 ng/ml. Hair samples taken from the children after their

removal from Mother’s care revealed that L.S. was positive for methamphetamine for the

second time under Mother’s care, and D.S. was positive for methamphetamine and for

amphetamine. A few months later, Mother also tested positive for cocaine and admitted

In the Interest of T.S., L.S., and D.S. Page 8
to consuming “large amounts of alcohol” to cope with the consequences of her positive

drug test on her visitation rights with her children.

The record also indicates that Father was absent for the majority of D.S.’s life and

had only seen D.S. once or twice before the Department’s removal proceedings. He left

D.S. in the care and responsibility of Mother while he repeatedly abused

methamphetamine and demonstrated a pattern of attaining short-term sobriety followed

by relapse. Regarding these specific removal proceedings, Father attributed his delay in

contacting the Department to going “on a binge” of using methamphetamine to cope with

his grief over his mother’s death. Father further testified at the temporary orders hearing

that he may have used methamphetamine as recently as two weeks before he contacted

the Department to get involved in the case.

In the absence of findings of fact and conclusions of law, and because the trial court

is charged with making credibility determinations, we find that the implied findings

necessary to support the trial court’s determination that appointment of either of the

parents as a managing conservator would significantly impair the children’s physical

health or emotional well-being were supported by the evidence. Therefore, Intervenors

established standing to intervene. See TEX. FAM. CODE ANN. § 102.004(b).

Untimeliness of Intervention

Mother asserts that the trial court abused its discretion by denying her Motion to

Strike Petition in Intervention because Intervenors’ petition was untimely filed.

In the Interest of T.S., L.S., and D.S. Page 9
STANDARD OF REVIEW AND APPLICABLE LAW

We review a denial of a motion to strike under an abuse of discretion standard. In

re N.L.G., 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.). A trial court abuses

its discretion when its action was arbitrary or unreasonable. Id. Furthermore, generally,

an intervention is timely at any time before a final judgment. See Tex. Mut. Ins. Co. v.

Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008); Hisaw & Assocs. Gen. Contractors, Inc. v. Cornerstone

Concrete Sys., Inc., 115 S.W.3d 16, 21 (Tex. App.—Fort Worth 2003, pet. denied).

DISCUSSION

Mother argues that Intervenors’ petition was untimely because it was filed after

the parents had been granted unsupervised visitation with the children. Neither of the

cases cited by Mother stand for the proposition that a trial court abuses its discretion by

permitting an otherwise qualified person to intervene because the parents have been

granted unsupervised visitation with the children. See In re C.A.L., 02-05-00308-CV (Tex.

App.—Fort Worth Feb. 15, 2007, no pet.) (mem. op); L.J. v. Tex. Dept. of Fam. & Protective

Servs., No. 03-11-00435-CV, 2012 WL 3155760 (Tex. App.—Austin Aug. 1, 2012, no pet.)

(mem. op.). We note that the issue of whether unsupervised visitation was in the best

interest of the children was contested by the parties to the suit. Intervention by foster

parents may enhance the trial court's ability to adjudicate what is in the best interest of

children involved in a parental termination suit. See In re N.L.G., 238 S.W.3d 828, 830

(Tex. App.—Fort Worth 2007, no pet.). “Given that the family code grants standing to

In the Interest of T.S., L.S., and D.S. Page 10
foster parents to intervene in a suit affecting the parent-child relationship, that the trial

court was charged with determining the children's best interest in this case, and that

Intervenor filed written pleadings to intervene prior to trial,” we cannot find that the trial

court’s denial of Mother’s motion to strike was arbitrary and unreasonable. See In re

C.C.W., No. 02-07-00384-CV, 2009 WL 51032 (Tex. App.—Fort Worth Jan. 8, 2009, pet.

ref’d) (mem. op.). The trial court did not abuse its discretion in denying Mother’s Motion

to Strike Petition in Intervention. Accordingly, we overrule Mother’s fourth issue.

The Trial Court’s Jurisdiction

In their first issue, Mother and Father assert that the trial court’s order terminating

their parental rights and appointing Intervenors as managing conservators of the

children is void because a trial on the merits did not begin on or before the Department’s

statutory deadline of July 2, 2022. We disagree.

STANDARD OF REVIEW AND APPLICABLE LAW

Whether a trial court has subject matter jurisdiction is a question of law that we

review de novo. In Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018). In a parental rights

termination case brought by the Department, the trial on the merits must commence by

the first Monday after the first anniversary of the date the court renders a temporary

order appointing the Department as temporary managing conservator of the child. TEX.

FAM. CODE ANN. § 263.401(a). However, the trial court may grant an extension and retain

the suit on the court’s docket for a period not to exceed 180 days after the one-year

In the Interest of T.S., L.S., and D.S. Page 11
dismissal date if extraordinary circumstances necessitate the child remaining in the

temporary managing conservatorship of the Department and continuing the

Department’s appointment as temporary managing conservator is in the best interest of

the child. TEX. FAM. CODE ANN. § 263.401(b). If the court grants the extension, the court

must render an order that schedules the new mandatory dismissal date, makes further

temporary orders for the safety and welfare of the child, and sets the trial on the merits

on a date not later than the 180th day after the original statutory dismissal date. Id. If the

trial court does not commence the trial on the merits before the new dismissal date, the

court's jurisdiction over the Department’s suit is terminated and the suit is automatically

dismissed without a court order. TEX. FAM. CODE ANN. § 263.401(c).

Although the deadlines outlined in the Family Code are jurisdictional in cases

brought by the Department, the same is not true for individuals who have intervened in

a suit brought by the Department and seek affirmative relief. Interest of A.W., 623 S.W.3d

519, 522 (Tex. App.—Waco 2021, no pet.). Any party may intervene in a suit by filing a

pleading, subject to being stricken by the court for sufficient cause on a motion of any

party. TEX. R. CIV. P. 60; Brook v. Brook, 865 S.W.2d 166, 172 (Tex. App.—Corpus Christi

1993), aff'd, 881 S.W.2d 297 (Tex. 1994). Upon filing of the petition, an intervenor becomes

a party to the suit for all purposes. Brook, 865 S.W.2d at 172. If a party is nonsuited or

dismissed, an opposing party’s right to be heard on a pending claim for affirmative relief

may not be prejudiced. See In re D.D.M., 116 S.W.3d 224, 231-32 (Tex. App.—Fort Worth

In the Interest of T.S., L.S., and D.S. Page 12
2003, no pet.). The trial court retains jurisdiction over a pending claim for relief if the trial

court initially had subject matter jurisdiction. Williams v. Nat'l Mortgage Co., 903 S.W.2d

398, 403 (Tex. App.—Dallas 1995, writ denied).

DISCUSSION

The Department filed an original petition seeking termination of Mother’s and

Father’s parental rights on December 29, 2020. The trial court rendered an order naming

the Department as temporary sole managing conservator of the children on the same date

and calculated the initial mandatory dismissal date as January 3, 2022. Prior to the

mandatory dismissal date, Mother’s attorney filed a Motion to Extend Dismissal Date

based on extraordinary circumstances. The trial court granted the motion and extended

the dismissal deadline by 180 days to July 2, 2022. Meanwhile, Intervenors timely filed

their Petition in Intervention in Suit Affecting the Parent-Child Relationship on March 3,

2022, requesting that Mother and Father’s parental rights be terminated and that they be

appointed managing conservators of the children. This constitutes a request for

affirmative relief independent of the Department’s cause of action. See In re D.D.M., 116

S.W.3d at 232 (“A claim for affirmative relief is a pleading that states facts showing a

cause of action independent of the plaintiff’s claim. This would allow the party to recover

benefits, compensation, or relief despite plaintiff’s abandonment or failure to establish a

claim.”)(internal citations omitted).

In the Interest of T.S., L.S., and D.S. Page 13
The Department’s suit was dismissed July 2, 2022.6 Because the trial court initially

had subject matter jurisdiction over the Department’s suit, Intervenors’ pending

independent claims for affirmative relief survived the Department’s dismissal. See

Interest of A.W., 623 S.W.3d at 522. As Intervenors are private individuals, the statutory

jurisdictional deadline applicable to government-initiated termination cases did not

apply to Intervenors’ claims. Interest of A.W., 623 S.W.3d 519, 522 (Tex. App.—Waco 2021,

no pet.). Therefore, the trial court had jurisdiction to order the termination of Mother and

Father’s parental rights and appoint Intervenors as managing conservators of the

children on September 20, 2023.7 We overrule Mother and Father’s first issue.

6 The parents argue that the Department did not properly dismiss its case. At the conclusion of the
temporary orders hearing on June 23, 2022, the trial court announced its intention to dismiss the
Department as a party to the suit once the written order was prepared and signed. The written order,
signed July 12, 2022, reflects that the Department was removed as managing conservator of the children
and “released from any further duties or responsibilities,” rather than a clear statement of dismissal of the
Department’s suit. Regardless, the Department’s suit was automatically dismissed without court order
upon expiration of its July 2, 2022 statutory deadline. See TEX. FAM. CODE ANN. § 263.401(c).

7 We note here that, though not listed as an issue presented, Mother raises a jurisdictional claim that the
suit from Comal County, in which the 207th District Court had entered an Order of Termination regarding
T.S. and L.S. in 2020 and acquired continuing, exclusive jurisdiction over T.S. and L.S., was not properly
transferred to this suit in Coryell County. Her claim is based on the motion to transfer in the present case
not containing a certification that all other parties were informed of the filing of the motion. She cites Texas
Family Code Section 155.204(a) in support of her argument, which applies to transfer motions filed under
Section 155.201(a) (transfer of a suit for dissolution of marriage) or Section 155.201(a-1) (transfer of an
adoption suit). Mother’s argument is misplaced, as the motion to transfer in this case was filed under
Section 155.201(d) (transfer of a court with continuing exclusive jurisdiction under Chapter 262), which
contains no such certification requirement. TEX. FAM. CODE ANN. § 155.201(d).

In the Interest of T.S., L.S., and D.S. Page 14
Dismissal of Court-Appointed Attorneys

In their third issue, Mother and Father assert that the trial court’s denial of their

requests to keep their court-appointed counsel after the Department was dismissed from

the suit violated Texas Family Code Section 107.016, was an abuse of discretion, and

denied them due process of law. See TEX. FAM. CODE ANN. § 107.016; TEX. CONST. ART. I,

§ 19. Mother also claims that the trial court abused its discretion in releasing the attorney

ad litem for the children after the Department was dismissed from the suit. We disagree.

STANDARD OF REVIEW AND APPLICABLE LAW

In a parental rights termination suit filed by a governmental entity, indigent

parents who oppose termination are entitled to a court-appointed attorney ad litem. TEX.

FAM. CODE ANN. § 107.013(a)(1). The appointed attorney ad litem for the parent continues

to serve in that capacity until the earliest of:

(A) the date the suit affecting the parent-child relationship is dismissed;
(B) the date all appeals in relation to any final order terminating parental
rights are exhausted or waived; or
(C) the date the attorney is relieved of the attorney’s duties or replaced by
another attorney after a finding of good cause is rendered by the court on
the record.

Id. at § 107.016(2). In a government-initiated termination suit, the trial court must also

appoint an attorney ad litem to represent the interests of the child and a guardian ad litem

to represent the best interests of the child, or one attorney to serve in a dual role. Id. at §§

107.011, 107.012, 107.0125. For as long as the child remains in the conservatorship of the

Department, the trial court is required to continue the appointment of either the attorney
In the Interest of T.S., L.S., and D.S. Page 15
ad litem or the guardian ad litem, and may, in its discretion, continue the appointment

of both. Id. at § 107.016(1).

In a private termination suit, appointment of counsel to indigent parents may

occur in the trial court’s discretion but is not statutorily mandated. Id. at § 107.021; In re

J.C., 250 S.W.3d 486, 487 (Tex. App.—Fort Worth 2008, pet. denied). Unless the court

finds that the interests of the child will be represented adequately by a party to the suit

whose interests are not in conflict with the child’s interests, the trial court must appoint

an amicus attorney or an attorney ad litem for the child in a private termination suit. TEX.

FAM. CODE ANN. § 107.021(a-1). However, in making this determination, the trial court

“may make an appointment only if the trial court finds that the appointment is necessary

to ensure the determination of the best interest of the child, unless the appointment is

otherwise required by [the Family Code]”. Id. at § 107.021(b)(2). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). An abuse of discretion does not occur if some evidence of substantive and

probative character exists to support the trial court's decision. In re M.M.M., 307 S.W.3d

846, 852 (Tex. App.—Fort Worth 2010, no pet.).

In the Interest of T.S., L.S., and D.S. Page 16
DISCUSSION

Dismissal of the Parents’ Court-Appointed Attorneys

Section 107.013 of the Texas Family Code only applies to termination suits that are

government-initiated. TEX. FAM. CODE ANN. § 107.013. The trial court appointed counsel

to represent Mother and Father on the same date the Department filed its original

termination petition. Section 107.016 of the Texas Family Code allows the trial court to

release a parent’s court-appointed attorney ad litem when the government’s suit affecting

the parent-child relationship is dismissed. Id. at § 107.016. Here, the trial court did not

release the parents’ court-appointed attorneys until the Department was dismissed and

removed as conservator of the children. Both parents were represented by court-

appointed counsel for the duration of the Department’s suit. Once the Department was

dismissed, this case proceeded as a private termination suit based on Intervenors’

pleadings, and the parents possessed no mandatory statutory right to appointed counsel.

See id. at § 107.016(2)(A); see also In re J.C., 250 S.W.3d 486 (Tex. App.—Fort Worth 2008,

pet. denied). The trial court’s dismissal of the parents’ court-appointed attorneys did not

violate Texas Family Code Section 107.016. See TEX. FAM. CODE ANN. § 107.016.

We next consider whether the trial court abused its discretion and violated the

parents’ due process rights in refusing to appoint counsel for the parents in the private

In the Interest of T.S., L.S., and D.S. Page 17
termination suit.8 See TEX. FAM. CODE ANN. § 107.021(a); see also Lassiter v. Dept. of Social

Svcs., 452 U.S. 18, 31-32 (1981) (holding the due process clause does not require

appointment of counsel in every parental termination proceeding, and the decision of

whether due process calls for appointment of counsel is best left to the discretion of the

trial court, subject to appellate review). “The phrase ‘due process,’ although incapable of

precise definition, expresses the requirement of fundamental fairness,” which must be

determined on a case-by-case basis. In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (internal

citations omitted); see Lassiter, 452 U.S. at 27-32.

Here, Mother and Father both filed motions requesting to keep their court-

appointed counsel after the Department was dismissed from the suit. After a hearing, at

which all parties agreed the continued appointment of counsel for the parents was

discretionary, the trial court denied the motions. Within a few weeks of the trial court’s

order, Father retained the services of the same attorney who had previously been

appointed to him, and Mother retained new counsel of her choice. The retained attorneys

represented the parents for approximately one year before filing motions to withdraw as

counsel, citing as good cause that the parents could “no longer comply with the terms of

8In our original opinion, we disposed of the parents’ due process claim through a waiver analysis. “Even
a complaint that a party's due process rights have been denied must be preserved by a proper objection or
request.” In re R.L.L., No. 04-18-00240-CV, 2018 WL 6069866, at *3 (Tex. App.—San Antonio Nov. 21, 2018,
pet. denied) (mem. op.); see TEX. R. APP. P. 33.1. The record does not show that Mother or Father raised a
due process complaint with the trial court. However, assuming without deciding that their due process
complaint was preserved for our review, we vacate and withdraw our original opinion and issue this new
opinion to address the merits of their due process complaint.

In the Interest of T.S., L.S., and D.S. Page 18
[the] Contract for Legal Services.” Both motions to withdraw noted that the parents had

not consented to the attorneys’ requests to withdraw.

However, a few weeks before trial, the trial court held a hearing on the motions to

withdraw at which both parents appeared. Despite the trial court expressing concern

over permitting the retained attorneys to withdraw so close to the jury trial setting, both

parents consented to their attorneys’ withdrawals from representation. When the trial

court asked whether new counsel would be retained, Mother responded, “[W]e really do

not have the money to hire other counsel. So[,] we are just going to show up, and, you

know, do the best that we can.” Further, the trial court asked Mother, “You understand

that this case is set for jury trial on September 18th?...And you’re telling the Court that

you’re going to be prepared to go, and you’re going to show up, and you’re not going to

try to continue the case if [retained counsel] gets out?” Mother responded, “Correct.”

The trial court also asked Father, “Are you prepared to go ahead with the trial if [retained

counsel] withdraws?” Father responded, “Yes, I am.” Neither parent requested that the

court consider appointing them counsel.

Further, the record does not reflect that the lack of counsel resulted in a

fundamentally unfair trial. Both parents effectively urged their positions and actively

participated in the trial. Mother filed pre-trial motions, lodged numerous objections and

successfully prevented certain pieces of evidence from admission, requested and

obtained limiting instructions, and offered her own exhibits into evidence. Both parents

In the Interest of T.S., L.S., and D.S. Page 19
cross-examined several of Intervenors’ witnesses. Notably, during trial, Mother

informed the court that she believed all parties had an adequate amount of time to

prepare for trial. Additionally, the legal issues in this case were not complex, and we

cannot say that appointed counsel would have made a determinative difference. See

Lassiter, 452 U.S. at 32-33. The Intervenors pursued each parents’ termination under

Ground D and Ground E. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E). The

facts supporting termination on these grounds involved the parents’ personal histories

with the Department, continuous drug use, and instability. Appointed counsel would

not have made a determinative difference in the outcome of the case regarding those key

facts. See In re L.F., No. 02-19-00421-CV, 2020 Tex. App. LEXIS 3879, 2020 WL 2201905, at

*34 (Tex. App.—Fort Worth May 7, 2020, no pet.) (mem. op.) (where termination was

based on Subsections D, E, N, and O); cf In re I.M.S., 679 S.W.3d 704 (Tex. App.—Houston

[1st Dist.] 2023, no pet.) (finding, where termination was based on (1) Subsection F and

the petitioner failed to present evidence of the respondent’s ability to support the children

during the relevant twelve-month period, and (2) Subsection Q where the respondent

failed to produce any evidence of how he would provide care for the child during his

period of confinement, that counsel would have made a “determinative difference” and

that the case presented “troublesome points of law”).

Although the Intervenors’ petition alleged statutory grounds that could support

criminal charges against the parents, there is no indication in the record that criminal

In the Interest of T.S., L.S., and D.S. Page 20
charges stemming from the parents’ relationship with the children were pending or

forthcoming during the approximately two and a half years this case was pending. See

TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (P), (R). Additionally, Dr. James Shinder,

a psychologist who administered Father’s psychological evaluation, testified as an expert

witness at trial, and the parents’ psychological evaluation reports were also admitted into

evidence. However, Mother thoroughly cross-examined Dr. Shinder on his methodology

and his potential bias against the parents as a psychologist contracted by the Department.

Finally, although Mother and Father demonstrated a clear desire to contest the

termination proceedings, this alone does not “tip the scales of due process” to entitle the

parents to appointed counsel in this private termination suit. See In re T.L.W., No. 12-10-

00401-CV, 2012 Tex. App. LEXIS 2689, 2012 WL 1142475, at *6 (Tex. App.—Tyler Mar. 30,

2012, no pet.) (mem. op.).

Under the specific facts and circumstances of this case, we do not find that the trial

court abused its discretion or violated the parents’ due process rights by refusing to

appoint counsel for the parents in the Intervenors’ suit.

Dismissal of Children’s Attorney Ad Litem

Mother does not claim that the trial court failed to make the necessary findings

under Texas Family Code Section 107.021; rather, Mother contends that the trial court

could not have properly found the children’s interests were adequately represented by

In the Interest of T.S., L.S., and D.S. Page 21
any party to the suit because the parties were all “litigating their own personal interests.”9

By granting the trial court discretion in a private termination suit to determine whether

to appoint an attorney ad litem, the legislature implicitly decided that there are

circumstances in a private termination suit in which an attorney ad litem is not required

despite the adversarial nature of the proceedings. See Interest of T.M.R., No. 13-21-00144-

CV, 2021 WL 4998438, at *3-4 (Tex. App.—Corpus Christi 2021, no pet.) (mem. op.).

Whether a party has an interest in the ligation does not end the inquiry of whether the

trial court abused its discretion in failing to appoint an attorney ad litem for the children.

See In re B.W., No. 02-19-00009-CV, 2019 WL 2041808, at *7 (Tex. App.—Fort Worth May

9, 2019, no pet.) (mem. op.); In re C.A.P., No. 04-12-00553-CV, 2013 WL 749825, at *2 (Tex.

9Although Mother listed the dismissal of the children’s court-appointed attorney ad litem as an issue
presented in her original brief, her argument addressed only the dismissal of the parents’ court-appointed
counsel. Mother briefly mentions the trial court’s failure to appoint an ad litem for the children in the
private termination suit in her reply brief.

The complaint that a party raises on appeal must match the complaint the party presented to the trial court.
In re J.C., 594 S.W.3d 466, 473 (Tex. App.—Fort Worth 2019, no pet.). We note that appellate courts have
reached different conclusions as to whether the failure to appoint an attorney ad litem for the children in a
private termination suit may be raised for the first time on appeal. Compare Interest of A.E.J., 05-20-00340-
CV, 2020 WL 5107293, at *11 (Tex. App.—Dallas Aug. 31, 2020, no pet.) (mem. op.) (concluding that failure
to raise a timely objection to the trial court’s refusal to appoint an attorney ad litem waives the issue for
appellate review and that enforcing our preservation rules in this circumstance does not violate due
process); with In re D.M.O., No. 04-17-00290-CV, 2018 WL 1402030, at *2 (Tex. App.—San Antonio Mar. 21,
2018, no pet.) (mem. op) (concluding that a complaining party may raise a trial court’s failure to appoint
an attorney ad litem in a private termination suit for the first time on appeal due to the serious nature of
parental termination proceedings); In re K.M.M., 326 S.W.2d 714, 715 (Tex. App.—Amarillo 2010, no pet.)
(same). Mother’s Motion to Retain Court-Appointed Counsel and the subsequent hearing on the motion
addressed only the proposed retention of her own court-appointed counsel after the Department’s
dismissal. Mother does not point us to, nor do we find, any evidence in the record that Mother objected to
the trial court’s decision not to appoint an attorney ad litem for the children in the private termination suit.

In the Interest of T.S., L.S., and D.S. Page 22
App.—San Antonio Feb. 27, 2013, pet. denied) (mem. op.); In re R.J.C., No. 04-09-00106-

CV, 2010 WL 816188, at *3 (Tex. App.—San Antonio Mar. 10, 2010, no pet.) (mem. op.).

Based upon our review of the record, we determine that there is some evidence of

substantive and probative character that indicates a party to the suit would adequately

represent the children’s interests and that their interests were not adverse to the

children’s interests. See Interest of T.M.R., No. 13-21-00144-CV, 2021 WL 4998438, at *4-5

(Tex. App.—Corpus Christi 2021, no pet.)(mem. op.).

The record reflects that Intervenors sought termination of the parents’ rights and

adoption of the children primarily because they believed these actions to be in the best

interest of the children. After T.S. and L.S. were returned to Mother’s care following the

2018 removal, Intervenors terminated their foster license. They reinstated their license

only after the Department requested they serve as the foster family again for T.S., L.S.,

and D.S. The foster father specifically noted his concern that Mother had completed all

of her services in the prior removal case, yet the children had to be returned to foster care

again due to neglect and exposure to illegal drugs. He emphasized the importance of

permanency for the children, said the children consider Intervenors’ home to be their

home, and testified that the children had not indicated that they wanted to live with their

parents. We find there was some evidence of substantive and probative character to

support the trial court’s decision in this case not to appoint an attorney ad litem for the

children after the Department was dismissed from the suit. In re M.M.M., 307 S.W.3d

In the Interest of T.S., L.S., and D.S. Page 23
846, 852 (Tex. App.—Fort Worth 2010, no pet.). Accordingly, we overrule Mother and

Father’s third issue.

Insufficiency of the Evidence

In his second issue, Father contends that the predicate findings under subsections

161.001(b)(1)(D) and (b)(1)(E) of the Texas Family Code, as well as the best interest

finding, are not supported by legally and factually sufficient evidence. See TEX. FAM.

CODE ANN. §§ 161.001 (b)(1)(D), (b)(1)(E), (b)(2). We find that Father did not preserve

these complaints for appellate review. See Interest of L.P., No. 10-23-00147-CV, 2023 WL

6633015, at *1 (Tex. App.—Waco Oct. 12, 2023, no pet.) (mem. op.).

PRESERVATION OF LEGAL AND FACTUAL SUFFICIENCY COMPLAINTS IN JURY PROCEEDINGS

To preserve a complaint of legal sufficiency of the evidence for appellate review

in a jury trial, a parent must raise the legal sufficiency challenge with the trial court in

one of five ways: (1) move for an instructed verdict; (2) object to the submission of a jury

question; (3) move for a judgment notwithstanding the verdict; (4) move to disregard the

jury's answer to a vital fact question; or (5) move for a new trial. In re D.T., 625 S.W.3d

62, 75 n.8 (Tex. 2021) (citing Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822

(Tex. 1985)). Furthermore, preservation of a factual-sufficiency challenge requires a

motion for new trial. Id.; TEX. R. CIV. P. 324(b)(2). In this case, Father failed to challenge

the legal sufficiency of the evidence by any of the means specified above and did not file

a motion for new trial to challenge the factual sufficiency of the evidence. As a result,

In the Interest of T.S., L.S., and D.S. Page 24
Father has failed to preserve his legal and factual sufficiency challenges for appeal.10 See

id. We overrule Father’s second issue.

Ineffective Assistance of Counsel of Attorney Ad Litem

In her second issue, Mother claims that the children’s court-appointed attorney ad

litem provided ineffective assistance of counsel to the children. Intervenors assert that

Mother lacks standing to make this complaint on appeal. We agree that Mother does not

have standing on appeal to complain on the children’s behalf about the performance of

the attorney ad litem. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex.

1982) (“An appealing party ‘may not complain of errors which do not injuriously affect

him or which merely affect the rights of others.’”).11 We overrule Mother’s second issue.

10 We note that the Texas Supreme Court has held that due process demands that we review the evidence
supporting findings under Grounds D or E when they are challenged on appeal even if we were to find
that the evidence to support one of the other statutory grounds for termination was sufficient because
termination of parental rights under these grounds “may have implications for ... parental rights to other
children.” In re N.G., 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). Nevertheless, this ruling presupposes
that Father has preserved the legal and factual issues for appeal in the first instance. See id. (“When a parent
has presented the issue on appeal, an appellate court that denies review of a section 161.001(b)(1)(D) or (E)
finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a
finding that will be binding as to parental rights to other children.”). Thus, the ruling in N.G. does not
eliminate the long-established requirement of error preservation of legal and factual sufficiency issues in
parental-rights termination cases decided by a jury. In re S.C., No. 02-18-00422-CV, 2019 WL 2455612, at *4
n.2 (Tex. App.—Fort Worth June 13, 2019, pet. denied) (mem. op.).

11Father briefly states that the attorney ad litem’s failure to communicate with the parents “restricted my
abilities as a father to have my son…returned to me.” To the extent that Father intended to claim ineffective
assistance of counsel against the children’s attorney ad litem with this statement, we find that he also does
not have standing to complain of this alleged error on appeal. See Interest of L.P., No. 09-19-00421-CV, 2020
WL 7062328 at 11* (Tex. App.—Texarkana Dec. 3, 2020, pet. denied) (mem. op.) (finding that the parent did
not have standing to complain about ineffective assistance of counsel when the complaint concerned the
children’s attorney ad litem, with whom the parent did not have an attorney-client relationship).

In the Interest of T.S., L.S., and D.S. Page 25
Conclusion

Having overruled all issues raised by Mother and Father, we affirm the judgment

of the trial court.12

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed July 11, 2024
[CV06]

12 All pending motions are dismissed as moot.

In the Interest of T.S., L.S., and D.S. Page 26