## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 18

- 00129

- CV

___________________________

On Appeal from County Court at Law No. 1

Parker County, Texas Trial Court No. CIV

- 17

- 0037
Before Sudderth, C.J.; Meier and Birdwell, JJ. Memorandum Opinion by Justice Meier 

### I N THE 

### I NTEREST OF 

### A.C., A 

### C HILD2 MEMORANDUM OPINION Appellants A.L.C. (Mother) and A.S.S. (Father) appeal a final order terminating their parent al rights to the ir child A.C. Mother raises seven issues. Father raises two.
We will affirm.
I. B ACKGROUND Mother and Father marrie d in N ovember 2014

. At the time of the February
2018 final trial, Mother was thirty

- nine years old and F ather was fifty

- seven y ears old. 1
B orn in January 2016 , A.C. was two years old at the time of trial

. Mother and Father lived together on several occasions but were separated at the time of trial

. 2 On July 1, 2016, when A.C. was five

- and

- one

- half

- months old, Appellee Texas Department of Family and Protective Services (TDFPS) visited Mother’s residence to investigate concerns that Mother was co
- sleeping with A.C. after drinking excessively
and was driving while under the influence with A.C. in the car. Mother admitted to

co
- sleeping with A.C. while under the influence an d made a number of statements

t hat confirmed TDFPS’s concerns about her mental health. TD FPS conclude d that

1 Father has been married four times and has five adult children.

2 Fa ther sued Mother for divorce in Hood County in December 2016. As explained below, the cause was later transferred t o Parker County , where this termination action was filed

.3

Mother’s residence was n ot a safe environment for A.C., and Mother voluntarily placed A.C. with S.S., Mother’s great

- aunt. 3
Mother and Father agreed to work s ervices through Family Based Safety Services (FBSS), but in January 2017, TDFP S fi led its original petition for protection of A.C., for conservatorship, and for termination of the parent

- child relationship due to lingering concerns about Mother’s mental health and both parents’ failure to follow
service

- plan recommendations

. TDFPS again prepared service plans for Mother and Father, but they were not successfully comp lete d

. After a lengthy jury trial , t he trial court signed a final order on the jury’s verdict terminating Mother ’s and Father ’s parental rights to A.C. , finding by clear and convincing evidence as to both parents that termination was (i) appropriate under subsections (D) , (E), and (O) of family code section 161.001(b)(1) and under family
code section 161.003 and (ii) in the child’s best interest

. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (b)(2) , 161.003 (West Supp. 2018 ).
II. J URISDICTION In her first issue, Mother argues that the trial court lacked jurisdiction to enter the final termination order. Mother’s argument is premised upon the misconception
that f amily code section 103.001 is jurisdictional.

3 This was TDFPS’s second investigation involving A.C. The first occurred when , ag ainst medical advice, Mother took newborn A.C. to a different hospital because Mother did not think that A.C. was receiving appropriate treatment.4

Entitled “Venue for Original Suit,” f amily code section 103.001 provides that “an original suit shall be filed in the county where the child resides, unless” “(1) another court has continuing exclusive jurisdic tion under Chapter 155” or “(2) venue is fixed in a suit for dissolution of a marriage under Subchapter D, Chapter
6.” Id. § 103.001(a)(1), (2) (West Supp. 2018 ) (footnote deleted) . Referencing both section 103.001’s general provision and its subsection (2), Mother argues that the trial court lacked jurisdiction because when the Department filed its original petition in Parker County, A.C. resided in Comanche County and Father had a pending divorce action in Hood County. But “[s]ection 103.001 is not jur isdictional”

— it “is a venue statute that determines the proper county to bring a suit affecting the parent

- child relationship.” Gutierrez v. Gutierrez , No. 05

- 14

- 00803

- CV, 2016 WL 1242193, at *1 (Tex. App.

— Dallas Mar. 30, 2016, no pet.) (mem. op.); see Te x. Fam. Code Ann. § 103.002 (West 2014

) (providing that suit shall be transferred on timely motion if brought in improper county). Jurisdiction and venue are not synonymous. Subject

matter jurisdiction refers to the court’s power to hear a particular typ e of suit, while venue pertains to where

— or in which county

— a suit may be brought. Scott v. Gallagher , 209 S.W.3d 262, 264 (Tex. App.

— Houston [1 st Dist.] 2006, no pet.) (“Because it may be waived, venue is not ‘jurisdictional.’”). Contrary to Mother’s

ar gument, family code chapter 103 does not govern the jurisdictional inquiry; chapters
152 and 155 do.5

A trial court may acquire continuing, exclusive jurisdiction over the parties and subject matter of a suit affecting the parent

- child relationship. See Te x. Fam. Code Ann. § 155.001 (West Supp. 2018 ). During the existence of this continuing, exclusive jurisdiction, “no other court of this state has jurisdiction of a suit with regard to that child except as provided by [Chapters 155 and 262 of the family co de].” Id. § 155.001(c); In re G.R.M. , 45 S.W.3d 764, 766

‒ 67 (Tex. App.

— Fort Worth 2001, no pet.). But a trial court acquires continuing, exclusive jurisdiction only “on the rendition of a final order.” Tex. Fam. Code Ann. § 155.001(a). When no court has continuing, exclusive jurisdiction, “a court of this st ate has jurisdiction to make an initial child custody determination” if “this state is the home state of the child on the date of the commencement of the proceeding.” Id. § 152.201(a)(1) (West 2014 ). Here, no final order was entered in the Hood County la wsuit, nor was a final order ever entered in a suit affecting the parent

- child relationship filed by the Attorney General in Erath County in May 2016. Thus, no court had continuing, exclusive jurisdiction, and the Parker County Court at Law, which is obvi ously located in Texas, had jurisdiction over the Department’s lawsuit upon its filing. See id.
To the extent that Mother’s argument can liberally be construed to also challenge venue as it is correctly understood, although venue was originally proper in Hood County, see id. § 103.001(a)(2), on Father’s motion, the Hood County Court at Law transferred the divorce action to Parker County (where Mother resides) four days6

after the Department filed its original petition there. 4 Venue was thus proper in
Park er County. See id. We overrule Mother’s first issue.

I I I
. E NDANGERMENT AND B EST I NTEREST F INDINGS Mother argues in her second issue and Father argues in his first issue that the
evidence is both legally and factually insufficient to support each of the jury’s termination findings. We limit our analysis to the subsection 161.001(b)(1)(D) and (E) and best interest findings. See In re J.G.S. , 550 S.W.3d 698, 703 (Tex. App.

— El Paso 2018, no pet.) (stating that only one predicate finding under section
161.0 01(b)(1) is necessary when there is also an affirmative best interest finding).
A. Burden of proof and standard of review For a trial court to terminate a parent

- child relationship, the party seeking termination must establish by clear and convincing evide nce that the parent’s actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C. , 384 S.W.3d 796, 80 3 (Tex. 2012); I n re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C. , 384 S. W.3d at 802.

4 Also, t he Erath County district court transferred the Attorney General’s suit to Parker County six days afte r the Department filed its petition.7

In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that TDFPS proved the challenged ground for terminati on. In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. Id. We dis regard all
evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disr egard contrary evidence unless a reasonable factfinder could not. See i d. We are required to perform “an exacting review of the entire record” in determining whether the evidence is factually sufficient to support the termination of
a parent

- child relatio nship. In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder ’ s findings and do not supplant the verdict with our own. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). We de termine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated subsections (D) and (E) of section 161.001(b)(1) and that termination of the parent

- child relationship
would be in the best inter est of the child

. Tex. Fam. Code Ann. § 161.001(b); In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is8

so significant that a f

actfinder could not reasonably have formed a firm belief or conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M. , 209 S.W.3d at 108.
B. Subsection 161.001(b)(1)(D) and (E) The trial court may order termination of the parent

- child relationship if it finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical
or emotional well

- being of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(D). Under subsection (D), it is necessary to examine evidence related to the environment of the child to determine if the environment was the source of endangerment to the child’s physical or emotional well

- being. In re D.T. , 34 S.W.3d 625, 632 (Tex. App.

— Fort Worth 2000, pet. denied). A child is endangered when the environment creates a potential for danger that the parent is aware of but consciously disregards. See In re S.R. , 452 S.W.3d 351, 360 (Tex. App.

— Houston [14th Dist .] 2014, pet. denied). The trial court may also order termination of the parent

- child relationship if it finds by clear and convincing evidence that the parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well

- being of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(E). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child’s physical or emotional well

- being was the
direc t result of the parent’s conduct, including acts, omissions, and failures to act.9

In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.). Termination under subsection (E) must be based on more than a single act or omission; a voluntary, d eliberate, and conscious course of conduct by the parent is required. Id. Subsection (E) does not require that conduct be directed at a child or that the child actually suffers injury; rather, the specific danger to the child’s well

being may be inferred from the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). Endangerment

— meaning to expose to loss or injury, to jeopardize

— can take many forms. J.T.G. , 121 S.W.3d at 125

– 26

. Although m ental illness alone is not a ground for terminating the parent

- child relationship, untreated mental illness can expose a child to endangerment. S.R. , 452 S.W.3d at 363. Excessive alcohol consumption is relevant in determining whether a parent engaged in endangering
conduct

. In re S.N. , 272 S.W.3d 45, 52 (Tex. App.

— Waco 2008, no pet.). Parental illegal drug use supports a conclusion that the child’s surroundings endanger his physical or emotional well

- being. J.T.G. , 121 S.W.3d at 125. Domestic violence may
be considered evi dence of endangerment. S.R. , 452 S.W.3d at 361. Criminal conduct is relevant to a review of whether a parent has engaged in a course of conduct that endangered the well

- being of the child. A.S. v. Tex. Dep’t of Fam ily & Protective Servs. , 394 S.W.3d 703 , 712

‒ 13 (Tex . App.

— El Paso 2012, no pet.). A parent’s failure to complete a service plan may be considered as part of an endangerment analysis under subsection 161.001(b)(1)(E). In re P.H. , 544 S.W.3d 850, 858 (Tex. App.

— El Paso10

2017, no pet.). And a f

actfinder may permissibly infer from past conduct endangering
the well

- being of the child that similar conduct will recur if the child is returned to the
parent. In re A.N.D. , No. 02

- 12

- 00394

- CV, 2013 WL 362753, at *2 (Tex. App.

— Fort
Worth Jan. 31, 2013, no pet.) (mem. op.). Because the evidence pertaining to subsections 161.001(b)(1)(D) and (E) is interrelated, we conduct a consolidated review. See J.T.G. , 121 S.W.3d at 126.
C. Mother ’s Endangerment Finding
1. Mental Health
Both at trial and on appeal, Mother has repeatedly argued that TDFPS believes
that she is mentally ill

— and should have her parental rights to A.C. terminated

— solely on account of her unconventional religious beliefs

. 5 But t his trial theory was impliedly rejected by the jury and misc haracterizes the evidence . V iewed objectively,
the record contains an abundance of evidence that TDFPS sought to terminate Mother’s parental rights not on account of her religious beliefs but instead because
she suffers from untreated and unacknowledged m ental health issues that endanger
A.C.’s physical or emotional well

- being.

5 Among other things, Mother believes that “[w]hen you rapture to heaven, either you have the mark of the beast and you will finish transforming into the goat or the sheep. And then you will eat each other. That’s what the last supper is”; that every egg she ovulated beginning at age thirteen that di d not result in a live birth was two miscarried children; that A.C. is the reincarnation of Cain and the placenta from his birth is Abel; that Father is Satan; and that she is Daughter Zion

. When questioned about her religious beliefs and Facebook postings , Mother proclaimed, “It’s freedom of speech. Freedom of press. Freedom of religion.”11

Specifically, Mother was involuntarily committed to North Texas State Hospital (NTSH) for eight days in 201 0 . She had been smoking methamphetamine, and she broke a van’s window wi th a horseshoe and commented that she thought people were cutting off heads. NTSH diagnosed Mother as bipolar with psychotic features and prescribed her medication , which Mother took while she was admitted but not after being discharged. At trial, Mother claimed that NTSH had only “evaluated” her but
had never “admitted” her. She claimed that noth ing was wrong with her, that she had been misdiagnosed as bipolar, and that she was not currently bipolar. Dr. Parnell Ryan , a psychologist who evaluated Mothe r, opined that bipolar disorder is never completely cured

. He also opined that a person can be very spiritual and still have psychosis. Mother testified that FEMA has 800 concentration camps located across the
United States (

including one in Fort Worth) that it us es for homeless people ; that
FEMA has 500,000 coffins, 120,000 shackles, and over 30,000 guillotines “to chop people’s heads off with”; and that martial law will be going into effect at some point

. Dr. Donald Lane , a licensed marriage and family therapist who worked with Mother,
testified that she never exhibited any symptoms of bipolar disorder when he was working with her, but h e admitted that Mother had not told him any of her opinions involving FEMA and that if she had, he r statements “defini tely could have had some influence on my opinion, as far as psychosis goes.” Similarly, Dr. Ryan diagnosed Mother as having unspecified bipolar and related disorder in full remission, but he12

conceded that had Mother disclosed her thoughts about concentrat ion camps and
FEMA , then his diagnosis would have change d because “ that’s a little bit out of reality so there’s a form of psychosis.” In 2016, Mother notified the Sheriff’s Office that she heard voices all the time, that they threaten ed her, and that the y told her that Father was cheating on her. On the day that TDFPS removed A.C., Mother stated that there were spies, that she could hear voices through her home’ s vents, that A.C. had a twin who had been kidnapped by the CIA , and that she sees a double na med Jessie who stands behind her and wears
blue clothes

. A t a meeting following A.C.’s removal, Mother again claimed that she
had heard voices coming from the vents in the house. Mother thought the auditory
hallucinations were those of an organized crime group that had run her over with a
truck years earlier and were stalking her and seeking revenge against her because she had reported insurance fraud. At one point during the case , Father said that Mother

was schizophrenic , bipolar, or both

. At some poi nt, Mother removed all of the e lectric appliances from her hom e because they were making a humming sound. Mother could not recall how many
times she had made police reports about “wire tapping and stuff ,” but it was probably
“a lot.” And finally, Mother once claimed that she could commu nicate telepathically
with A.C.13

Despite all of the above, M other belligerently denied that she suffers from any
mental health illness and needs medication: “I don’t take medication

. . . . I don’t
need medication. I’m no t

-- there’s nothing wrong with me.”
2. Alcohol and Illegal Drug Use
Mother has convictions for DWI and public intoxication , and S.S. testified that Mother drank heavily and became intoxicated at annual Thanksgiving gatherings.
Father once said that “th ere’s been times where you could classify [Mother] as a binge
drinker.” TDFPS initiated the underlying case to investigate concerns that Mother was

co
- sleeping with A.C. after drinking excessively and was driving while under the
influence with A.C. in the car. Mother admitted to drinking five to six beers at a time
and to co

- sleeping with A.C. after consuming alcohol

. Mother continued drinking and driving during the pendency of the case. Two of Mother’s neighbors testified that she showe d up at their home s intoxicated and
that a beer can fell out of her car when she opened the door. Just as she had denied having any mental illness, a t trial, Mother denied having any problem with alcohol

. During an MHMR assessment, Mother told a nurse that she had smoked

m arijuana from age twelve to age twenty

- three. Mother used m ethamphetamine before being admitted to NTSH , and she has at least one conviction for possessing a
controlled substance

.14

3. Anger/ Domestic Violence/Physical Altercations /Arrests
Mother has a hi story of domestic violence , physical altercations , and arrests

. While pregnant with A.C., Mother and Father got into a fight during which Father strangled Mother , causing her injuries, and the glass on a cabinet door was broken

. 6
Mother has also been inv olved in a number of physical altercations with other women, including her sister. 7 Mother even had physical altercations with he r own

m other while living with her. Mother has been arrested approximately fourteen times, including for assault, possessing drugs, or some type of alcohol

- related offense.
4. Service Plan Conservatorship worker Samantha Perez testified that Mother did not successfully complete her service plan. Mother was asked to complete an MHMR

assessment , among other things . Weatherford MHMR recommended medication management and ongoing treatment for Mother , but at the time of trial , Mother was not taking medication and had indicated “that she will not take medicine for bipolar.”
Perez reviewed notes from Dr. Lane and “felt like there w asn’t truthful discussions as far as any assault charges or anger problems or anything about her mental health. I
felt like she

. . . hasn’t ever thought that there was a problem.” Perez opined that

6 Father claimed that the altercation began when Mother shook an iron skill e t at him.

7 Mother testified that the fight with her sister caused Mot her to miscarry.15

Mother had not alleviated the risks to A.C. associated with Mother’s mental health
and domestic violence issues.
5. Holding Viewing the evidence under the appropriate standards of review, the jury could have formed a firm belief or conviction that Mother engaged in endangering conduct and exposed A.C. to end angering conditions. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); J.P.B. , 180 S.W.3d at 573

– 74 . The evidence is legally and factually sufficient to support the jury’s affirmative termination finding based on
subsection 161.001(b)(1) (D) and (E). We o verrule this part of Mother’s second issue.
D. Father’s Endangerment Finding Father is bipolar, was diagnosed with depression, has experienced suicidal
ideations , and was once involuntarily com mitted to a state hospital for five days

. Unlike Mother, Fath er does not outright deny being bipolar, but h e has taken his
medication inconsistently, telling CASA volunteer Shirly Baker only four months before trial that he was not taking his medication

. Father has been arrested se ven times, including for assault

- b odily injury and for DWI. Father was arrested for assault family violence by choking following the incident with Mother while she was pregnant. Even though by Father’s own account he “roughed up [Mother] pretty good”

— Father told a police officer that he had “choked [Mother] to the ground , ” and the officer observed blood spatter and loose
strands of hair on the floor

— Mother was ultimately uncooperative with authorities16

and declined to prosecut e . Father’s mother has observed Father drink excessively
since A.C. was born. Father engaged in endangering conduct with A.C. during the pendency of the
case that concerned both TDFPS and S.S. S.S. recalled one incident in which Father returned A.C. after a visit, and A.C.

— looking fearful and pointing to his head

— sai d
“dada hit head.” S.S. , who thought that Father had intentionally struck A.C., took A.C. to the emergency room

. On another occasion, A.C.’s clothes were wet when Father returned him after a visit on a cold day. Father had taken A.C. to the lake and
let him walk around in the water , something that S.S. thought was inappropriate to do on a fifty

- degree day

. At another return, Father was driving with A.C . on his lap. 8 S.S. testified that she would be concerned for A.C.’s safety if Father’s parental right s were not terminated. Sometime around late June 2017, Father indicated that he wanted to relinquish his parental rights to A.C. Father “felt like he wasn’t stable enough to care for [A.C.],” the cost of his medication was increasing, his mother was kicki ng him out of her house, and “he just wasn’t in a place to raise a child.” Perez first heard that Father
wanted to retain his parental rights w hen he testified at trial in February 2018

. Father’s vacillating between wanting to relinquish his rights and w anting to reta in
them concerned S.S.

8 Father claimed he only drove i n the parking lot.17

Significantly, TDFPS expressed concern that Father would not be protective of A.C. if Mother’s parental rights were terminated but his were not. A ccording to counselor Rita Benson, Mother and Father argued constantly

— B enson could not separate the two when they argued during counseling

— but would probably maintain a relationship even after their marriage was dissolved despite the volatility

. 9 At an earlier hearing , Father said that Mother was mentally unstable and would never be
able to care for A.C. , but he changed his tune at trial and repeatedly qualified his prior negative comments about Mother. Father left A.C. in Mother’s care d espite harboring
serious concerns about her mental health

. Father has a history of movin g from place to p lace, and at the time of trial,

concerns existed whether the house in which he was living and renovating was safe
for a two

- year

- old child. 10 And like Mother, Father failed to successfully complete his service plan. Perez expressed concer n about “the overall safety of the child and the mental health of both of the parents.” Viewing the evidence under the appropriate standards of review, the jury could
have formed a firm belief or conviction that Father engaged in endangering conduct
and ex posed A.C. to endangering conditions. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); J.P.B. , 180 S.W.3d at 573

– 74 . The evidence is legally and

9 Father’s mother likened his relationship with Mother to oil and water.

10 Perez described the property as a construction site.18

factually sufficient to support the jury’s affirmative termination finding based on
subsection 161.001(b)(1)(

D) and (E). We overrule this part of Father ’s first issue.
E. Best Interest Finding s W e review the entire record to determine the child’s best interest. In re E. C .R. , 402 S.W.3d 239, 250 (Tex. 2013). Nonexclusive factors that the trier of fact in a

term ination case may also use in determining the best interest of the child include (a) the desires of the child; (b) the emotional and physical needs of the child now and in the future; (c) the emotional and physical danger to the child now and in the future; (d) the parental abilities of the individuals seeking custody; (e) the programs available to assist these individuals to promote the best interest of the child; (f) the plans for the child by these individuals or by the agency seeking custody; (g) the sta bility of the home or proposed placement; (h) the acts or omissions of the parent which may indicate that the existing parent

- child relationship is not a proper one; and (i) any excuse for the acts or omissions of the parent. Holley v. Adams , 544 S.W.2d 3 67, 371

– 72 (Tex. 1976); see E.C.R. , 402 S.W.3d at 249 (stating that in reviewing a best interest finding, “we consider, among other evidence, the Holley factors”); In re E.N.C. , 384 S.W.3d 796, 807 (Tex. 2012). These factors are not exhaustive, and some l isted factors may be inapplicable to some cases. C.H

. , 89 S.W.3d at 27. Regarding Mother, t he evidence that supports the subsection (D) and (E) findings

— untreated severe mental illness , domestic violence, excessive alcohol use , other erratic and concernin g behavior, and incomplete service plan

— is probative of19

the best interest finding. See E. C .R. , 402 S.W.3d at 250

. Further, Mother is unemployed , relies on disability for financial support , and lives in a house owned by
someone else

. As to Father, t he evi dence that supports the subsection (D) and (E) findings

— inconsistently treated mental illness , domestic violence, alcohol use , miscellaneous concerning behavior, and incomplete service plan

— is likewise probative of the best interest finding. See Id. Fath er is also on disability for a mental

- health issue

— although he periodically works in construction

— and has a history of unstable housing. By contrast, S.S. lives on a family property , is emplo yed as a substitute teacher, can support A.C. financially , and w ants to adopt him

. Under S.S.’s care (since July 1, 2016) , A.C. has “made a lot of progress, developmentally” and continues to grow and
to thrive. Several people opined that it is in A.C.’s best interest for Mother’s and Father’s parental rights to be te rminated. Considering the relevant Holley factors, the jury could reasonably have formed a
firm belief or conviction that termination of both Mother’s and Father’s parental rights to A.C. is in A.C.’s best interest. See J.P.B. , 180 S.W.3d at 573; Holley , 544
S.W.2d at 371

– 72. Th e evidence is legally and factually sufficient to support the jury’s
best int erest finding s . We overrule the remainder of Mother’s second issue and the
remainder of Father’s first issue

. We need not reach any of their other argum ents in
those issues

. See Tex. R. App. P. 47.1.20 IV
. R EMAINING I SSUES
A. Religious Freedom and Constitutionality of Section 161.003 In her interrelated third and fourth issues, Mother argues (i) that TDPFS violated her right to religious freedom by “t[ak ing] away her baby based on [her] religious beliefs” and (ii) that family code section 161.003 is unconstitutional as applied to her “ because [ her ] religious beliefs were used against her as a mental
illness.” However, as we thoroughly explained above, th e record objectively
demonstrates that TDFPS did not remove A.C. or seek to terminate Mother’s parental rights on account of her religious beliefs but because she had engaged in endangering conduct and exposed A.C. to endangering conditions unrelated to he r religion. Insofar a s TDFPS elicited testimony of Mother’s religious beliefs during trial, context reveals that TDFPS did so to show that Mother’s beliefs were p otentially
harmful to A.C. 11 See Maltos v. Tex

. Dep’t of Protective & Regulatory Servs. , 937 S.W.2d 560, 564 (Tex. App.

— San Antonio 1996, no writ) (approving jury instruction that “[a] parent’s religious beliefs, teachings, and practice, in and of themselves, are not grounds for terminating the parental rights of the parents to the child, unless t he

11 Mother testified, “I hate this planet. I want to go back to where we belong and that’s heaven, okay, where things are perfect and we don’t have to put up with Satanized people and crap like that.

. . . So if I had to marry a man in order to have t hat child in order to end it, then that’s what I did.” Asked how her religious beliefs would affect her raising A.C., Mother denied that it would affect A.C. but also that “if he has another God besides the God, it will cost him his life.” Mother later e xplained that A.C. was i n no real harm, but the jury could have disbelieved her testimony.21

teachings and practices of the beliefs are illegal, immoral, or demonstrably harmful to the child ” ) (emphasis added)).
As for Mother’s constitutional c hallenge to section 161.003, not only can we locate no such objection at trial, see Tex. R. App. P. 33 .1(a) , but the issue is moot
because we concluded that legally and factually sufficient evidence supported the jury’s termination findings based on subsec tions 161.001(b)(1) (D) and (E) , not on section 161.003 . We overrule Mother’s third and fourth issues

. B. Expert Witness D isclosures
In her fifth issue , Mother argues that the trial court abused its discretion by permitting counselor Rita Benson and police officer Dustin Paulsen to testify because instead of fully disclosing their opinions at least ninet y days before trial, TDFPS only partially disclose d their opinions eighty

- four days before trial

. See Tex. R. Civ. P. 194.2(f) (providing that party may request disclosure of, among other things, the subject matter on which the expert will testify and the general substance of an expert’s mental impressions and opinions), 195.2 (a) (requiring information to be furnished under rule 194.2(f) ninety days before discovery’s end). A party who fails to make, amend, or supplement a discovery response in a timely m anner may not introduce in evidence the material or information that was not timely disclosed, unless the court finds that (1) there was good cause for the failure to timely disclose or (2) the failure will not unfairly surprise or prejudice the other
part ies. Tex. R. Civ. P. 193.6(a). “The salutatory purpose of [this rule] is to require22

complete responses to discovery so as to promote responsible assessment of settlement and prevent trial by ambush.” Alvarado v. Farah Mfg. Co. , 830 S.W.2d 911, 914 (Tex. 1992) (op. on reh’g) (applying predecessor rule). A finding of good cause or the lack of unfair surprise or unfair prejudice must be supported by the record. Tex. R. Civ. P. 193.6(b). We review a trial court’s decision to admit or exclude evidence for
an abuse of discretion. J.P.B. , 180 S.W.3d at 575.
The trial court ruled that TDFPS’s witnesses could testify after clarifying that the disclosures were, at most, six days late (or eighty

- four days before trial) and after
TDFPS ’s counsel explained that M other knew what the witness would testify about

. On this record, the trial court could have reas onably concluded that TDFPS met its
burden to show that Mother sustained no unfair surprise or prejudice. See Tex. R.
Civ. P. 193.6 (a) (2), (b); Spurck v. Tex. Dep’t of Family & Protective Servs. , 396 S.W.3d 205,
214

‒ 1 7 (Tex. App.

—

Austin 2013, no pet

. ) ( observing that trial court could have implicitly made rule 193.6(a) findings based on record). And in any event, any error in permitting the witnesses to testify w as harmless because the ir testimony was largely
cumula tive of other evidence admitted at trial. See Owens

- Corning Fiberglas Corp. v.
Malone , 916 S.W.2d 551, 557 (Tex. App.

— Houston [1 st Dist.] 1996), aff’d , 972 S.W.2d 35 (Tex. 1998). We overrule Mother’s fifth issue.
C. Ineffective Assistance Mother argues in her sixth issue that her trial counsel was ineffective for failing to seek relief under the Texas Religious Freedom Restoration Act and for failing to23

assert a violation of her right to religious freedom under both the First Amendment and article I, sec tion 6 of the Texas constitution. See U.S. Const. amend. I; Tex. Const. art I, § 6; Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001

‒ .012 (West 2011 ). To establish ineffective assistance of counsel, an appellant must show by a preponderance of the evidence tha t her counsel’s representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State , 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). The prejudice prong require s a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result.
Strickland , 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must show there is a reasonable probab ility that, without the deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; Nava , 415
S.W.3d at 308. Mother is incapable of making a showing of prejudice because , regardless of
any objection premi sed upon religious freedom, sufficient evidence otherwise supports the jury’s subsections 161.001(b)(1) (D) and (E) and best interest findings

. We overrule Mother’s sixth issue.
D. Pretrial Mediation In Mother’s seventh issue and in Father’s second issue, they argue that the trial court erred by failing to abide by the local rules and send the case to mediation before
trial. Local rule 3. 2 provides in relevant part that “[e]xcept for good cause shown,24

mediation shall be completed prior to the pre

- trial co nference or, at the latest , prior to trial.” Parker County District Courts and County Courts at Law Loc. R. 3.2. The same trial judge who presided over the trial also presided over numerous pretrial hearings in this cause . Familiar with the parties and the nature of the disputed issues,
the trial court could have reasonably concluded that good cause existed to proceed to trial without first ordering mediation. We overrule Mother’s seventh issue and
Father’s second issue.
V. C ONCLUSION Having overruled all of Mother’s and Father’s issues, we affirm the trial court’s final order terminating Mother’s and Father’s parental rights to A.C.

/s/ Bill Meier Bill Meier Justice
Delivered: October 2 4 , 2018