In the Interest of I.S. and X.S. AKA X.R., Children v. Department of Family and Protective Services

Reversed and Remanded and Majority and Dissenting Opinions filed July 11,
2024.

In The

Fourteenth Court of Appeals

NO. 14-24-00055-CV

IN THE INTEREST OF I.S. AND X.S. A/K/A X.R., CHILDREN

On Appeal from the 507th District Court
Harris County, Texas
Trial Court Cause No. 2022-32359

MAJORITY OPINION
The trial court signed a final decree of termination on January 12, 2024,
terminating Mother’s parental rights with respect to her ten-year-old son, I.S.
(“Isaac”), and her two-year-old son, X.S. a/k/a X.R. (“Xander”).1 Mother appeals
the order and raises seven issues, challenging the manner in which trial was
conducted and the sufficiency of the evidence supporting the jury’s findings.
Because we conclude that Mother was denied procedural due process in the

1
We refer to the children using pseudonyms. See Tex. Fam. Code Ann. § 109.002(d).
underlying proceedings and was harmed by that denial, we reverse the trial court’s
final decree and remand the case for further proceedings.

BACKGROUND

On May 28, 2022, Mother was suffering from a mental health crisis and called
911. Mother was transported to the psychiatric unit at Ben Taub hospital in Houston.
According to Mother, she underwent a 12-hour psychiatric evaluation before she
was released. Isaac and Xander were placed in foster care while Mother was
hospitalized.

Three days later, the Department filed an “Original Petition for Protection of
a Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship.” The Department sought termination of Mother’s parental rights with
respect to Isaac and Xander. The Department included with its original petition an
affidavit from Department caseworker Jerteria Harper, which discussed Mother’s
mental health crisis and her subsequent admission to Ben Taub. In its conclusion,
the affidavit states:

Due to concerns of [Mother’s] lack of mental health compliance and
past mental health incidents the [Department] is requesting to be named
Temporary Managing Conservator of [Isaac and Xander]. The
Department believes that placing [Isaac and Xander] back into
[Mother’s] care would be contrary to [their] well-being and safety due
to [Mother’s] underlying mental health issues.
The trial court signed emergency orders appointing the Department as Isaac’s and
Xander’s temporary sole managing conservator.

The parties proceeded to a jury trial in November 2023. Seven parties
participated in the trial: the Department, Mother, Isaac’s Father (“Jed”), Isaac’s
paternal grandmother (“Grandmother”), Xander’s father (“Omar”), Xander’s
attorney ad litem, and the State’s Attorney General. At the pre-trial conference, the

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trial court informed the parties that the three days allocated for trial “gets divided by
y’all” with each party receiving “about three and a half hours total.”

The jury heard testimony from 12 witnesses. In sum, the witnesses’ testimony
focused on the following points to show that Mother was unable to effectively parent
Isaac and Xander:

• Mother’s mental health (including the May 2022 incident that resulted
in her hospitalization in Ben Taub’s psychiatric unit): Mother testified
that she previously had been diagnosed with anxiety, depression,
bipolar disorder, post-traumatic stress disorder, and attention deficit
hyperactivity disorder. Mother said she currently was on several
medications, including Adderall, Aripiprazole, and Diazepam. Mother
testified that she takes her medications regularly and has been in
therapy. Several witnesses testified that Mother had a proclivity for
calling 911 and once called 911 approximately 26 times in a single day.

• The events surrounding the birth of Mother’s fifth child, Nadine:2
Nadine’s birth was difficult because, according to Mother, she did not
want to undergo a c-section and instead chose to “get a natural birth
with a midwife.” Mother returned to the hospital at 44 weeks pregnant,
when she was in the early stages of labor and her midwife “was an hour
away.” Nadine was born without any amniotic fluid but was not
expected to suffer any long-term consequences.

Two days after Nadine’s birth, Mother returned to the hospital and
attempted to take Nadine home. Hospital police followed Mother to
her vehicle, where she had placed Nadine in a car seat. The hospital
police prevented Mother from leaving the premises.
• A prior domestic abuse incident: Mother said she broke up with her ex-
boyfriend after the incident.

During the witnesses’ testimony, the trial court repeatedly enforced a 3.25-hour time
limit for each party. From each party’s allotted time, the trial court deducted not
only time spent on direct examination but also time spent cross-examining witnesses

2
Nadine is not a party to the underlying proceedings.

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and lodging objections. Mother’s counsel repeatedly objected to the time limit and
requested more time to put on Mother’s case.

The trial court permitted Mother’s counsel to make an offer of proof with
respect to three witnesses she could not question since she had run out of her allotted
time. The trial court subsequently gave Mother’s counsel an additional 15 minutes
for each of the three witnesses. After the jury heard testimony from these witnesses
as well as two additional witnesses, the parties rested. Mother’s counsel again
objected that she did not have enough time to put on Mother’s case.

The jury retired to deliberate and the charge asked the jury whether Mother’s
parental rights with respect to Isaac and Xander should be terminated under three
predicate grounds. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) (endangerment by
environment), (E) (endangerment by conduct), (O) (failure to comply with family-
based safety services plan). The jury found that Mother’s parental rights should be
terminated on all three grounds with respect to both Isaac and Xander; the jury also
found that termination of Mother’s parental rights was in the boys’ best interests.
The jury found that (1) Grandmother should be named as Isaac’s sole managing
conservator, (2) Jed should be named as Isaac’s possessory conservator, and
(3) Omar should be named as Xander’s sole managing conservator.

The trial court signed a final decree on January 12, 2024, incorporating the
jury’s findings and terminating Mother’s parental rights with respect to Isaac and
Xander. Mother timely appealed.

ANALYSIS

Mother raises the following seven issues on appeal:

1. Mother’s procedural due process rights were violated by the trial
court’s imposition of time limits;
2. the evidence is insufficient to support termination under Texas Family
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Code section 161.001(b)(1)(D) (endangerment by environment) and
(E) (endangerment by conduct);
3. the evidence is insufficient to support termination under Texas Family
Code section 161.001(b)(1)(O) (failure to comply with a family-based
safety services plan);
4. the evidence is insufficient to show that termination of Mother’s
parental rights is in Isaac’s and Xander’s best interests;
5. the trial court committed error by excluding certain evidence;
6. the evidence is insufficient to support the conservatorship
appointments; and
7. the relief granted in the final decree constitutes an abuse of discretion.
Because we sustain Mother’s first issue, we need not address the other issues she
raises on appeal.

I. Mother’s Procedural Due Process Rights

In her first issue, Mother contends that she was denied procedural due process
of law. See U.S. Const. amend. XIV, § 1 (providing that no State shall “deprive any
person of life, liberty, or property without due process of law); Tex. Const. art. I,
§ 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges
or immunities, or in any manner disenfranchised, except by the due course of the
law of the land.”).3 Specifically, Mother asserts that the trial court’s timekeeping
decisions prevented her from fully presenting her case and inhibited her ability to
effectively cross-examine the witnesses.

A. Governing Law

To analyze a claim alleging the deprivation of procedural due process, we
apply a two-part test: (1) whether the complaining party has a liberty or property

3
The Supreme Court of Texas has found no meaningful distinction between Texas’s due-
course-of-law protection and the federal constitution’s due process guarantee. See Univ. of Tex.
Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995).

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interest entitled to protection, and (2) if so, what process is due. Logan v.
Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Univ. of Tex. Med. Sch. v. Than,
901 S.W.2d 926, 929 (Tex. 1995). “[D]ue process requires, at a minimum, that
absent a countervailing state interest of overriding significance, persons forced to
settle their claims of right and duty through the judicial process must be given a
meaningful opportunity to be heard.” Boddie v. Connecticut, 401 U.S. 371, 377
(1971); see also In re J.R., 652 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.]
2022, pet. denied) (stating “[d]ue process requires notice and an opportunity to be
heard at a meaningful time and in a meaningful manner”).

Parents have a fundamental liberty interest “in the care, custody, and
management of their child.” Santosky v. Kramer, 455 U.S. 745, 753 (1982); see also
In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (“One of the most
fundamental liberty interests recognized is the interest of parents in the care, custody,
and control of their children.”). This fundamental liberty interest “does not
evaporate simply because they have not been model parents or have lost temporary
custody of their child to the State.” Santosky, 455 U.S. at 753.

The constitutional process due in a given situation is measured by a flexible
standard that depends on the circumstances’ practical requirements. See Mathews v.
Eldridge, 424 U.S. 319, 333 (1976); see also, e.g., In re N.G., 577 S.W.3d at 236-
37. Eldridge directs courts to balance three factors to determine what procedural
safeguards are required: (1) the private interest affected by the proceeding or official
action, (2) the countervailing governmental interest supporting use of the challenged
proceeding, and (3) the risk of an erroneous deprivation of the private interest due
to the procedures used. Eldridge, 424 U.S. at 335. Courts must weigh these factors
to determine whether the fundamental requirements of due process have been met
by affording an “‘opportunity to be heard’ at a meaningful time and in a meaningful

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manner” under the circumstances of the case. See City of L.A. v. David, 538 U.S.
715, 717 (2003) (per curiam) (quoting Eldridge, 424 U.S. at 333).

B. Preservation

On appeal, the State asserts that Mother did not preserve her procedural due
process complaint. We disagree.

Texas Rule of Appellate Procedure 33.1 requires that a party present its
complaint to the trial court in a manner that states “the grounds for the ruling . . .
with sufficient specificity to make the trial court aware of the complaint, unless the
specific grounds [are] apparent from the context.” Tex. R. App. P. 33.1(a)(1).
Courts, including this one, have held that a party must present due process arguments
to the trial court in order to pursue them on appeal. See, e.g., In re L.M.I., 119
S.W.3d 707, 710-11 (Tex. 2003); Lee v. City of Houston, No. 14-05-00366-CV, 2006
WL 2254401, at *3 (Tex. App.—Houston [14th Dist.] Aug. 8, 2006, pet. denied)
(mem. op.).

The first mention of time limits came during the parties’ pre-trial conference,
during which the trial court had the following exchange with the attorneys:

Trial Court: And I’m going to split the time of the jury, and so I’ll be
having — how many — how many clocks going on? And
— yeah. And so somehow I get to — when you — if you’re
objecting or whatever, that’s okay. Feel free to object and
feel free to talk all you want, but it’s going to count on your
time. So I’ll take the time that we have left over, divide it
by all of y’all and say, “you have x-number of hours,” and
I will put it on timers.
Mother’s Are you talking about for voir dire only?
Counsel:

Attorney So what’s the total?
Ad Litem:

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Mother’s Is that what you’re talking about?
Counsel:
Trial Court: The voir dire — you get to be timed on the voir dire, and
then the remaining time of the three days gets divided by
y’all. And I’ll do timers for those days, too.
* * *

Trial Court: Hang on. Let me see. Where’s my calculator? How many
attorneys do I have?
Omar’s Five, Your Honor.
Counsel:

Trial Judge: You each get about three and a half hours total.
Omar’s Three and a half hours?
Counsel:
Trial Judge: Total. That’s not counting Tuesday. If y’all have — if y’all
narrow down your voir dire, you may have a little bit more
time that afternoon. But other than that, each one seems to
have about three and a half hours. That’s without breaks.

Before the parties began their opening statements, the trial court stated that
“whatever time” each party took for their opening statement would be deducted from
“your three hours and 15 minutes.”

The State began presenting its witnesses, starting with Mother. After
Mother’s testimony, the trial court recapped everyone’s remaining time; Mother had
“two hours, 45 minutes and 51 seconds” remaining. The trial court again recapped
everyone’s remaining time after the State examined its second witness, telling
Mother she had “two hours, 20 minutes and 44 seconds” remaining.

On the second day of trial, the State was examining its seventh witness when
the trial court recapped the parties’ remaining time. After stating that Mother had
“42 minutes and 49 seconds remaining,” Mother’s counsel had the following

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exchange with the trial judge:

Mother’s And, Judge, just for the record, we haven’t put on our case.
Counsel:

Trial Court: You have 45 minutes to put it on, ma’am. So it’s entirely
up to you.
Mother’s We would like to let the Court know that we don’t believe
Counsel: we can do it in that short of time.
Trial Court: Well, ma’am —

Mother’s If there’s any way, we can get more time, we would request
Counsel: it at this time.

Trial Court: The court doesn’t have any more time. Y’all announced
that that was the time that was required by all of y’all. The
Court allocated the time accordingly. If y’all recall at the
very beginning, even back when we did the pretrial, this is
what — hang on, Ms. Young. This is what y’all told me.
And I said, okay, this is the hours in the day. As a matter
of fact, I’ve added an extra hour by releasing the jury an
hour later yesterday, okay, to be able to allocate enough
time for all of y’all. Mr. Jones [counsel for the State
Attorney General] is not using his time, only a few minutes
here and there. So that’s how it’s being allotted amongst
everyone with the same amount of time.
Mother’s I’m sorry, Judge.
Counsel:

Trial Court: It was three hours and 15 minutes per side. That’s what it
was allotted for everyone.
Mother’s Yeah. I understand, Judge, that that was the time that the
Counsel: Court gave us. I didn’t realize that that was the time that
we were agreeing to.
Trial Court: That’s what y’all agreed to.

Mother’s And my understanding is that that’s the time the Court gave
Counsel: us, not that we could just do it in three hours.

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Trial Court: No, ma’am. Y’all said, I can try this case in four days
including the jury. And this is four days including the jury.
And the Court allocated that time.
Mother’s Well, we just object to not having enough time to put on our
Counsel: case.
Trial Court: Okay. Ms. Young, your objected is noted. Y’all agreed to
this. And the Court is moving forward with this. And I’ve
been giving y’all the time throughout the entire time.

At the conclusion of the second day’s proceedings, the trial court gave each party
their remaining time; Mother had “24 minutes” remaining.

At the beginning of the third day of trial, Mother’s counsel asked for
additional time to present Mother’s case-in-chief. Denying the request, the trial
court reasoned that the parties could not extend beyond the original time projected
for trial because “that’s my vacation time.” Mother’s counsel stated that she was
under the impression that three hours were allocated for her case-in-chief and that
she did not know that any objections also would count against it. The trial court
gave Mother an additional 15 minutes to present her case-in-chief.

During counsel’s direct examination of Mother, the trial court ended the
questioning and stated “[h]er time is up.” Counsel for Jed proceeded to present his
case-in-chief. Jed presented testimony from two witnesses; when Mother’s counsel
tried to cross-examine the witnesses, the trial court told her she was out of time.
After Jed rested his case, Mother’s counsel and the trial court had another exchange
regarding the time limits. Mother’s counsel told the trial court:

I thought I was getting three hours to put on my case in chief. To say
that it was an agreement, that’s not something that I could have ever
agreed to knowing there’s five lawyers, and all of these people get to
object. We don’t know. It’s impossible to comply with something that
you don’t know with what is going to happen. I do know, though, that
her right as a parent is in jeopardy. And for me not to be able to put on

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her entire case is prejudicial to her. It violates ADA. It’s
unconstitutional. It violates her due process rights.
(emphasis added).

The trial court permitted Mother’s counsel to make an offer of proof with
respect to three witnesses she could not question since she had run out of her allotted
time. After the offer of proof, the trial court subsequently gave Mother’s counsel an
additional 15 minutes for each of three witnesses: Mother, Grandmother, and Jed.

At the conclusion of trial, Mother’s counsel again asserted an objection to the
trial court’s time limits. Acknowledging the objection, the trial court stated that
Mother “ran out of time . . . I don’t know, gazillions of years ago.”

We conclude that this chain of events is sufficient to inform the trial court of
Mother’s objection, namely, that the imposed time limit violated Mother’s
procedural due process rights. See Tex. R. App. P. 33.1(a)(1). Mother’s counsel
timely and specifically objected to the trial court’s deduction of time spent on
objections and cross-examinations when the nature and extent of those deductions
became clear. Mother’s counsel reasserted this objection when the time limit
prevented her from presenting her case as she saw fit, specifically stating that the
limit was “unconstitutional” and violated Mother’s “due process rights.” These
objections were sufficient to inform the trial court of the specific grounds for
Mother’s complaint. See id.

Arguing that Mother waived her due-process complaint, the State cites In re
Harrison, 557 S.W.3d 99 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
While Marriage of Harrison examined and approved a trial court’s imposition of
time limitations, it is readily distinguished. First, the appellant there was unable to
identify any part of the record “where she objected to the trial court’s imposition of
time limits.” See id. at 127. Second, we examined the trial court’s time limitation

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with respect to the trial court’s “authority to control the presentation of evidence” —
not as a procedural due process complaint. See id. (citing Tex. R. Evid. 611(a)).
Third, Marriage of Harrison did not involve a parental termination and did not
involve the State seeking to sever a parent’s fundamental constitutional right to
parent their child. See Santosky, 455 U.S. at 759; see also Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985) (recognizing parental rights as “essential,” “a basic civil
right of man,” and “far more precious than property rights”) (internal quotations
omitted). Given these differences, Marriage of Harrison does not compel the
conclusion that Mother waived her due process complaint.

C. Error

Turning to the substantive issue on appeal, we apply the Eldridge factors to
determine whether Mother’s procedural due process rights were violated.

Private Interests Affected by the Proceeding

Parental rights are “far more precious than any property right” and, when the
State initiates a termination proceeding, “it seeks not merely to infringe that
fundamental liberty interest, but to end it.” Santosky, 455 U.S. at 759. Thus, a
parent’s interest in maintaining custody of and raising his or her child is paramount.
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). For this reason, a parent’s interest in
the accuracy and justice of the decision to terminate his or her parental status is a
commanding one. Id. The private interests of the child also must be considered as
“[b]oth the parent and the child have a substantial interest in the accuracy and justice
of a decision.” Id.

The private interests involved in this case — namely, Mother’s fundamental
liberty interest in maintaining custody and control of Isaac and Xander, the risk of
permanent loss of the parent-child relationships between them, and Mother’s,

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Isaac’s, and Xander’s interests in a just and accurate decision — weigh heavily in
favor of finding Mother was denied adequate constitutional safeguards via arbitrary
time limitations imposed in an arbitrary manner. See Santosky, 455 U.S. at 759; In
re M.S., 115 S.W.3d at 547; cf. Tex. R. Civ. P. 1 (“The proper objective of rules of
civil procedure is to obtain a just, fair, equitable and impartial adjudication of the
rights of litigants under established principles of substantive law.”).

The State’s Interest in the Challenged Proceeding

The State’s interest in the proceeding includes protecting the best interest of
the child, an interest which is “served by procedures that promote an accurate
determination of whether the natural parents can and will provide a normal home.”
In re M.S., 115 S.W.3d at 548-49; see also In re B.L.D., 113 S.W.3d 340, 353 (Tex.
2003) (noting that the State’s “parens patriae interest in promoting the welfare of
the child” aligns with the parent’s interest in a just and accurate decision). The State
also has an interest in an accelerated timetable and a final decision that is not “unduly
prolonged” with negative psychological effects on the children left in limbo. See In
re M.S., 115 S.W.3d at 548; see also In re B.L.D., 113 S.W.3d at 353. As has been
recognized,

[the] Family Code’s entire statutory scheme for protecting children’s
welfare focuses on the child’s best interest. See, e.g., Tex. Fam. Code
Ann. §§ 51.11(b); 153.001; 153.002; 161.001(2); 161.101. And, like
their parents, children have an interest in an accurate resolution and just
decision in termination cases. But children also have a strong interest
in a final decision on termination so that adoption to a stable home or
return to the parents is not unduly prolonged.

In re J.F.C., 96 S.W.3d 256, 304 (Tex. 2002) (Schneider, J., dissenting).

Here, although the trial court’s time limitations may have served the State’s
interest in an accelerated timetable and a decision that was not “unduly prolonged,”
the record does not indicate that the limitations served the most important
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overarching interest: the accuracy of the jury’s decision with respect to the
termination of Mother’s parental rights. See In re M.S., 115 S.W.3d at 548-49.
Seven parties participated in the trial: the Department, Mother, Jed, Omar,
Grandmother, Xander’s attorney ad litem, and the State’s Attorney General.
Although only Mother’s parental rights were at risk of termination, all the parties
were allotted the same amount of time for their representations. Therefore, Mother
— who was defending against allegations that her parental rights with respect to
Isaac and Xander should be terminated — had the same amount of time as Jed, who
merely was seeking a conservatorship with respect to Isaac. This is not an equitable
division of time with respect to the issues before the jury and we disagree with the
trial court’s finding that Mother agreed to the conditions it imposed.

Moreover, the record is not clear as to what inspired these strict time limits.
The record does not show that the parties proactively sought them; instead, they were
announced by the trial court during the pretrial conference. The only indication in
the record as to the need for these time limits was the trial judge’s reference to her
upcoming vacation. Moreover, as laid out above, the trial court’s implementation of
the 3.25-hour time limit was not the model of clarity. The trial court initially
informed the parties that they “each get about three and a half hours total.” The trial
court did not clearly state that the time limit would include, in addition to their cases-
in-chief, their cross-examinations of other parties’ witnesses and their evidentiary
objections. Under the circumstances, this was a material condition that contributed
to the erroneous deprivation of Mother’s rights to due process and due course of law.

Finally, the trial court’s repeated enforcement of these time limits over
Mother’s timely and specific objections prevented Mother’s counsel from
effectively presenting Mother’s case. As discussed above, Mother’s counsel was
conducting her direct examination of Mother when the trial court ended the

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questioning and stated “[h]er time is up.” The trial court cited to the time limits to
prevent Mother’s counsel from cross-examining two witnesses offered during Jed’s
case-in-chief. Although Mother was permitted additional time to question three
witnesses, the record shows she was not given enough time to elicit the evidence she
referenced in her offers of proof.

Based on this record, Mother did not have a sufficient opportunity to present
her case or to be heard by the factfinder in a meaningful manner. The record also
does not show that giving Mother additional time for the presentation of her case
would have greatly harmed the State’s interest in an efficient and economic
resolution of this matter or in protecting the children’s best interests. Accordingly,
this factor weighs in favor of the finding that the trial court deprived Mother of due
process. See Eldridge, 424 U.S. at 335; In re M.S., 115 S.W.3d at 548-49; In re
B.L.D., 113 S.W.3d at 353.

Risk of Erroneous Deprivation of Parent-Child Relationship

The third Eldridge factor analyzes the risk of erroneously depriving Mother
of her private interest via the procedures at issue. Eldridge, 424 U.S. at 335. The
Supreme Court of Texas has concluded:

The parent’s, child’s, and government’s interest in a just and accurate
decision dovetails with the third Eldridge factor — that of the risk of
erroneous deprivation. Termination of parental rights is traumatic,
permanent, and irrevocable. This fact has been pivotal for the United
States Supreme Court. And it is to us. For this reason, any significant
risk of erroneous deprivation is unacceptable.

In re M.S., 115 S.W.3d at 549.

As our discussion of the record has shown, the trial court’s arbitrary and
unclear time limitations posed a significant risk of erroneously depriving Mother of
her parental rights. This significant risk is further underscored by our harm analysis

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below. This risk is “unacceptable.” Id. Accordingly, this factor weighs in favor of
finding the procedures utilized by the trial court did not comport with due process.
See Eldridge, 424 U.S. at 335; In re M.S., 115 S.W.3d at 549.

Balancing the Eldridge factors, we conclude Mother was denied a meaningful
opportunity to participate in the proceedings and, therefore, was denied procedural
due process. See Eldridge, 424 U.S. 335; Boddie, 401 U.S. at 377.

D. Harm

We now turn to whether the denial of Mother’s procedural due process rights
constituted harmful error. To obtain reversal of a judgment based on trial court error,
an appellant must show that the error probably caused the rendition of an improper
judgment or probably prevented the appellant from properly presenting her case to
the appellate court. See Tex. R. App. P. 44.1(a); see also, e.g., In re D.W., 498
S.W.3d 100, 118 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

Parental rights can be terminated upon proof by clear and convincing evidence
that (1) the parent has committed an act prohibited by Texas Family Code section
161.001(b)(1), and (2) termination is in the child’s best interest. See Tex. Fam. Code
Ann. § 161.001(b)(1), (2). The best-interest analysis is “child-centered and focuses
on the child’s well-being, safety, and development.” In re A.C., 560 S.W.3d 624,
631-32 (Tex. 2018). In determining whether the evidence is sufficient to prove that
termination is in the child’s best interest, courts may consider several non-exclusive
factors including (1) the child’s desires, (2) the child’s present and future emotional
and physical needs, (3) any present or future emotional and physical danger to the
child, (4) the parental abilities of the individuals seeking custody, (5) the programs
available to assist the individuals seeking custody to promote the child’s best
interest, (6) the plans for the child by the individuals or agency seeking custody,
(7) the stability of the home or proposed placement, (8) the parent’s acts or
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omissions which may indicate that the existing parent-child relationship is improper,
and (9) any excuses for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).

As stated above, the trial court halted counsel’s questioning of Mother on
direct examination because “[h]er time is up.” The trial court permitted Mother’s
counsel to make an offer of proof with respect to the testimony she expected to elicit
if she had additional time to question Mother. Mother’s counsel stated:

I would ask my client about the community supports that she has since,
you know, most of her family doesn’t live in this state, where the
community supports were. I would go down the list of best interest for
her to, you know, be able to present in an appropriate way, you know,
the best interest standard, the desires, what she knows to be the desires
of her children.

In response, the trial court stated: “Okay. We’ve already gone, the best interest.
I’m not going to go down each one. What else besides best interest?” After the
conclusion of the offer of proof, the trial court gave Mother’s counsel an additional
15 minutes to question Mother.

During the additional 15 minutes allocated for Mother’s testimony, Mother’s
counsel did not have the opportunity to address the best interest factors before the
trial court ended her questioning. Specifically, and despite announcing her intention
to “go down the list of best interests,” Mother’s counsel did not elicit testimony
regarding (1) Isaac’s and Xander’s present and future emotional and physical needs,
and whether Mother had met those needs and was capable of doing so in the future,
(2) Mother’s parental abilities with respect to Isaac and Xander, (3) Mother’s plans
for Isaac and Xander, including schooling and daycare arrangements, and (4) the
stability of Mother’s home for Isaac and Xander. See id. These factors regarding
the children’s current living arrangements and Mother’s plans for their futures are

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central to the best interest analysis. See id. Counsel’s inability to elicit testimony
on these points prevented Mother from properly presenting her case on appeal. See
Tex. R. App. P. 44.1(a).

Moreover, the importance of this testimony is magnified when considered in
conjunction with the evidence pertaining to Isaac’s and Xander’s other living
arrangements. With respect to Isaac, the jury found that Grandmother should be
named as sole managing conservator and Jed should be named as possessory
conservator. Grandmother testified at trial and said, when she previously had been
given custody of Isaac, she “returned him back into foster care” because she “was
extremely disabled.” Grandmother also represented herself pro se in the trial court
proceedings and, at some points, seemed confused about the type of relief she was
seeking with respect to Isaac. Although Grandmother expressed that Mother’s
parental rights should be terminated, she also testified that Isaac should “maintain
contact” with Mother and that Mother should “continue to be in his life.”

Jed testified at trial and said he recently completed a four-year prison
sentence. Jed agreed that he has “a history of violent crime” including aggravated
robbery, driving while intoxicated, criminal trespass, and unlawful possession of a
firearm. Jed explained that he also had a history of “drinking and drugging” but that
he had changed his behavior since leaving prison. Jed said he currently works in
west Texas; his schedule is 21 days of work and seven days off, during which he can
return to Houston. Jed said he did not want Mother’s parental rights terminated and
asked that she and he be appointed as Isaac’s joint managing conservators.

With respect to Xander, the jury found that Omar should be named as sole
managing conservator. Testifying at trial, Omar said he originally was approached
by a Department caseworker in 2022 “about participating in the case.” Omar said
he told the caseworker he “would think about it” but did not get back to the

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caseworker for “[s]ix months.” Omar acknowledged it was a “mistake” to leave his
child in the Department’s care for six months. Omar acknowledged having two other
children but said he did not provide any type of support for their care.

Against this backdrop, it would have benefited the jury to hear additional
evidence regarding the care Mother had been providing Isaac and Xander and the
care she planned to provide them in the future. This evidence would have permitted
the jury to fully evaluate the living arrangements available to Isaac and Xander and
determine which arrangements best served the boys’ best interests. See Holley, 544
S.W.2d at 371-72. But due to the trial court’s imposition of time limits, Mother’s
counsel was prevented from eliciting testimony on these points. This constitutes
harmful error. See Tex. R. App. P. 44.1(a).

We sustain Mother’s first issue on appeal and conclude she was denied
procedural due process of law and due course of law in the underlying proceedings.
Due to our disposition of this issue, we need not consider Mother’s other issues on
appeal.

CONCLUSION

We reverse the trial court’s January 12, 2024 final decree with respect to the
termination of Mother’s parent-child relationships with Isaac and Xander and
remand those issues to the trial court for further proceedings.

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/s/ Meagan Hassan
Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan (Jewell, J., dissenting).

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