## In the Court of Appeals Se cond Appell ate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00256

- CV

___________________________

On Appeal from the 97th District Court Montague County, Texas Trial Court No. 2021

- 0086M

- CV
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice W alke r 

### I N THE 

### I NTEREST OF 

### B.C. AND 

### Z.C., C HILDREN2 MEMORANDUM OPI NION
In t wo issues with various sub issues , Appellant Father appeals the trial court ’s judgment terminating his parental rights to his children, B.C. and Z.C. 1 Father
contends that the trial court erred by depriving him of (1) his ri ght to appointed

cou nsel and (2 ) his privil e ge against self

- incrimination. We will affirm.
I. BACKG ROUND
A. P ROCEDURAL B ACK GROUND
Ba sed on concerns that Mother , Father, Paternal Grandmother , and Paternal
Grandmother ’ s boyfriend were using illegal drugs in the home with the children , and because of concerns that boyf riend might have engaged in sexual misconduct with
B.C. , t he T e xas Depart ment of Family and Protective Services (Department) filed its
March 24, 2021 petition seeking termination of Father ’s p arental rights to B.C. and
Z.C. 2 Th e only alleged conduct g round was that F ather had “ knowingly placed or knowingly allowed the child [ ren ] to rema in in conditions or surroundings which endanger[ed] ” their physical or em otional well

- being. See Tex. Fam. C o de Ann. § 161.001(b )(1)(D). That same da y, the trial court entered its ex parte emergency

1 W e refer to the child ren using t h ei r initials and to ot her family m em be rs by their r e la tionship to th e chil d

. S e e Te x . F am. Code Ann. § 109 .0 0 2 (d) ; Tex

. R. App. P. 9.8(b )(2)

.

2 The Departmen t also sough t and obtained t ermination of Mother ’ s parental ri ghts to the c hildren upo n the grounds that she had filed a n unrevoked or irrevocable affidavit of relinquishment

. S ee Tex. Fam. Code Ann. § 161 .001(b)(1)( K). Mother is not a pa rty to this appeal.3

order naming the Department as temp orary managin g c onser vator of the children

. The order also info rmed the parents that they ma y be e ntitled to appointed counsel:
YOU HAVE T H E RIGHT UNDER §262.102 ( d ), TEXAS FAMILY CODE, TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UN ABLE TO AFFOR D A N ATT ORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN AT TORNEY BY CONTACTING THE C OURT AT 97TH JUDICIAL DISTRICT COURT OF MONTAGUE COUNTY, 900 7TH STREET, ROOM 401, WICHITA FALLS, TEXAS 76 301, (940) 716

- 8624. IF YOU APPEAR IN OPP OSITION TO TH E S UIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORN EY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDI G ENCE AND T HE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT . IF THE COURT D ETERMINES YOU ARE INDIGENT AND E LIGIBLE FOR A PPO INTME NT OF AN ATTORNEY, THE COURT WILL APPOINT AN A TTORNEY TO REPRESENT YOU. [ 3 ]
O n April 16, 2021, a n adversary hearin g was held at which Fat her appear ed via
Zoom without an att orney . See id

. § 262.201

. Aft e r thi s heari ng, the trial court
entered temporary orders that contained a notice

— identical to the one referenced
above

— to the parents of their right to appointed cou nsel

. O n May 2 0, 2021, a status hearing was held at which Father did not ap pear. See
id. § 263.201. On Septe mber 1 6 , 2021, a n initial perman ency hearing was held at
which Father did not appear. See i d

. § 26 3.304

. An d o n January 5, 2022, a subsequent
per man enc y hearing was held at which F ath er appeared f rom jail via Zoom and

3 This order also appointed an attorney for Moth er but not for Father.4

w ithout an at torney
. 4 See id. § 263.305. T he trial court ordered that Father be provided that same day with an indigency affida vit form to determine whe t her he was eligible to r eceive app ointed counsel. On Januar y 6, 2022, b ased on the information
Father had provided i n this affidavit , the trial cour t appointed attorney Tiffany Fowler

t o rep resent him

. Citing the need f or m o re time to prepare for trial, Fowler moved
for an e xte nsion of t he case dismissal de adline , which the trial court granted.
On May 26, 2022

—

less than a week befor e the start of trial

— Fowler file d a
written motion to with draw as counsel for Father on the g rounds that Father “ no l onge r wishe[d] to be represen ted by Tif fany F o wler and wishe [ d] to represent himself
or be appointed new counsel

. ” At the commencement of the trial on Ju ne 1, 2 022, Fowler orally moved for a continuance and p resented her motion to wi t hdraw as
counsel , citing Father ’ s displeasur e with their “ in ability to effectively communicate. ”
Fow ler explained to the trial court that she had attempted to meet with Father befor e trial at the jail where he w as incarcerated but that Father had refused to speak with her

a nd instead asked her to f ile th e motio n t o withdraw. The trial court den ied both
motions. Before testimony started on the second day of tri al on June 24, 2022 , Fowler

re

- urg ed her motion to withdraw as counsel for Father , sta ting that it was her

4 The order s entered after the May 20, September 1 6 , and January 5 hearings d id not contain a notice to the p arents of their righ t to appointed counsel. There is no transc r ipt of these hearing s in the appella te record

.5

understandi ng that Fathe r wished to re present hi mself

. In response t o questions from

t he trial court, Father said that he had never told Fo wler that he wanted to represent
himsel f , only that he “ would rather represent himself than have [ Fowler] represent [h im]

. ” T his was because he had asked Fowler to “ file a m otion ” for him to have
vi rtual visitation with the children from jail t hat Fowler had declined to file. He told
the trial cou r t that he had met with Fowler three times regarding t he case and t hat he

was aw are that Fowler had arranged f or wit ness e s to appear at trial on Fath er ’ s behalf

. When asked if he h ad another attorney lined up to represent him , Father answer ed ,

“ No. That ’ s their job to appoint one to me. ”
Fowler ack nowledged tha t she did not file a formal m otion for v i rtual
vis itation , c iting a trial court policy regarding children visiti ng incarcerated parents

. However, she did make the request directly to the Department which was denied.
Th e tr i a l court again denied the motion to withdraw

. After a bench trial , the trial co urt found by clear and convincing e vidence that
Father had violated ground ( D ) and that termination was in th e best interest of the

c hildren. See id. § 161.001(b )(1)(D) , (2)

. B
. T RIAL E VIDENCE
1. James Gibbs ’ s T estimony
Gibb s, an investi gator for the Departmen t, testified th at the Department
became involved with B.C. and Z. C. in March 2021 after receiving a n eglect ful supervisi on intake related to allege d illegal drug use in the home

. Gibbs went to6

Paternal Grandmother ’ s residence, where she lived wi th her boy frien d, Mother, Father, and the children

. Father was in t he front yard with B.C. and Mother when
Gib bs arrived

. Father to ld Gib bs that Paternal Grandmother ’ s boyfriend may hav e engaged “ in some type of inappropriate behavior with the children. ” Gibbs in formed
Father that there had been alle gations of dr ug use in the home and asked Father to submit to a drug test. Fat her told Gibbs that he would fail a drug test because he had
been “ living the bachelor lifestyle. ” B ased on concerns about drug use in the home
and the allega tions o f the boyfrien d ’ s sexual misconduct with the children, the Dep artment re moved the children from the home.
2
. Father ’ s Testim ony

a. Removal
Father , testifying from jail, denied that he told Gibbs that he w ould test
p os itive i f he wa s drug tested

. He admitted that he knew that Paternal Grandmother and her boyfriend were using meth a mp hetamines while Father, M o ther, and the
children lived in Paternal Grandmother ’ s ho me. Though he invoked the priv ilege against self

- inc rimination when as ked about his drug use at the time of removal,
F a ther also acknowledged that he had “ a history of s u bst ance abuse problem s ” and

“ an ad dicted [sic] personality. ”
Father stated that he was concerned that Paternal Gran dmother ’ s boyfriend
h a d sexuall y abused B. C. because of s uspicious behavior Father had observed one

n ight while B. C. was aslee p and be cause of “ the way [boyfriend] carried himself7

ar ound [B.C.]

. ” Father also conceded that Z. C., who wa s born in October 2020, had

ne ver b een t ak en to the doctor between his birth and the children ’ s removal in
March 2021.
For mos t of the case

— about nine months

— F a ther had been incarcerated in multiple counties for charg es including assault of a police officer, attempt to take a
weapon, felony evad ing arrest with a vehicle , burglary of a habitation , three
misdemeanor resist

ing arres ts, and failure to identify

. 5 Due m ainly to these
incarcerations , Fathe r had visited with his children only four times since the ir
removal

. 6 While in carcerated, Father underwent a mental health assessment and was diagno sed as being bipolar, but he characterized this d iagnosis as merely “ one
person ’ s opinion , ” which h e “ did not follow. ” Father di d not know wher e he would
live after relea se from incarceration but testifie d that he desired to go to rehab and
had applied for acceptance into a one

- year treatment program.
b. Appointment of Counsel
F ather testified th at he first req uested a cou rt

- appointed attorney at the April 16, 202 1 adversary hearing

. However, he was n ot appoint ed an attorn ey until

5 Father ’ s criminal history also included felony convictions for burglary of a building, unauthori zed use of a veh icle, and posses sion of methamph etamine. These
conv ictions a ll occurred between 2 011 and 2015, before the births of his ch ildren

.
6 Father also explained that he had decided to stop attending the visitations af ter o bserving the distress place d upon B.C. when she was forced to leave him at the end of the v isit s .8

January 6, 202 2

. He estimated tha t, during the pendency of the case, he ha d made at
least a d ozen requests for a court

- appointed atto rney, either by asking his caseworker

or the trial court directly

. 7 At one point , Father ’ s caseworke r had e xplained to Father
that the tr ial cour t had initially determined that F a ther was ineligible for a n appointed

att orney based on Father ’ s self

- reported in come.

c. Fifth Amendment
Father invoked his privilege against self

- incrimi nation to a number of questions, including:
1. Had he e ver pushed, shoved , or hit Mother or t hrown anything at her ?
2. Was he actively using meth amphetamines at the time of the removal of the children in March 2021?
3. Was Mother actively usin g meth amphetami nes in Mar ch 2021?
4. Did B.C. test positi ve for meth amphetamines ? 8
T he State o bjec ted to Father ’ s assertion of th e pr ivilege in response to question
three , a rguing that Mother ’ s drug use did n ot incriminate Father. F ather ’ s attor ney argued that his answer to that question could be dee med incriminating if Father was
ch arge d with “ injury to a child or so meth ing like that if the chi ldren were [] in his

7 A ccording to Father, he also submitt ed “ mul tiple paperworks [sic] ” requesting
a court

- appointed attorney for which he never received a respons e.

8 The clerk ’ s record contains a drug test result that appears to show that B.C

. had tested pos itiv e for methamphetami nes after bein g tested on March 30, 2021. Direct e vidence of these test results, howe ver, w as not admitted a s evidence at trial.9

care. ” 9 The trial court ordered Father to answer t he question and Father tes tified that
Mother had be en using m eth amphetamines in March 2021. Father was not ordered

to answer questions one, two, a nd fo ur. 3 . Tony Gillilan d ’ s Tes tim ony Gil liland was Father ’ s caseworker and testified that Fath er was “ angry throughout most of th [ e] case

. ” C ommunica ting with Fathe r was difficult because
Father w ould often respo nd a ngrily and because the De partment often did not know
his whereabo uts
. Also, at visitations F ather would somet imes arrive late , leave early,
and scream and cuss at the Department ’ s staff.
Gill iland agre ed that Father had asked hi m several times for a court

- app ointed
attorney and that he had explaine d t o Father that the tria l court had determined that
he was inel igible for an attorney ba sed on the wages Father had reported at the adversary heari ng . But G illiland also explained to Father that he cou ld “ rea pply ” for appointed counsel

— w hich Fath er did after the tr i al court ordered that he be p r ovided
with an ind i gency form in January 202 2

.

9 The record d oes not show that Father had ever faced a cri minal charge of injury to a c hild, but it does sh ow that he had been arrested for abandoning and
e ndangering a child wit h criminal negligence on June 24, 2021 , apparently for the
same al leged actions u nderlying th is case . The Depa rtment reported that this charge had been dismissed , bu t there is no indica tion whether the dismissal was with o r without pre judice

.10 4
. Nora Nevarez ’ s Testimony
Nevarez , who worked as a pe rmanency s upervisor for the Depart ment , t estifie d
that she met with F a ther on May 12, 2021, and asked him if he would like to apply for

a co u r t

- ap pointed attorney. Father declin ed the application , explaining to Nevarez
that he and M other were a couple and that he w as satisfied with how the ca se was being handled by her appoi nted counsel. According to Nevarez, the trial co u r t asked unrepresented parents at every court app earance whether they were okay proceeding
without a court

- appointed attorney. Nevar ez al so witn essed Fathe r ’ s anger and had to

“ often ” ca lm him down when he would become disruptive at the Dep artm e nt offices.
5
. Brian Evans ’ s Testimony
E vans testified as a witness for Fa ther. He said that he was F a ther ’ s forme r employer at a whe el

- repa i r busines s and described Fathe r as a “ ve ry hard worker ” and

a “ good parent. ” Evans explai n ed that he started having concerns about Father ’ s drug use when Father moved into Pate rnal Grandmother ’ s house:

“ Th at ’ s wh en [F ather] started using. It ’ s a cycle f or [Father ]. Whenev er [Father ] moves back to his mom ’ s and h is mom gets involved in [Fathe r ’ s] life

— I mean, I ’ ve explain [ ed] it to [Father] several times. It ’ s a cycle for [Fat her]. ”
The last time tha t Eva ns had seen Father with the children was “ two or three
d a ys bef ore ” the children were removed in March 202 1

. Evans c o uld tell that Father was using drugs and told Father that “ he needed to get himself cl ean and get awa y from his mom. ”11 6
. Frankie Pair ’ s Test imony
Pair also testified as a wi tness for Father

. He stated that Father had worked for
him and de s cribed Father as a “ hard worker. ” A lso, Pair ha d been friends with
Paternal Grandmother , and the tw o use d to do drugs together when Father was a baby. According to Pair, h e had not seen Father in “ some t ime ” be cause Pai r, as a

reco v er ing addict, did not allow himself to be around “ anybody that ’ s using. ”
II. DISCUSSION
A. R IGHT TO C OUNSEL In his first issue, Father argu es that the trial court violated his due process rights in three ways: ( 1 ) by faili ng to appoint an a ttorney for him for the majority of the litigation, (2 ) by failing to info rm him of his right to legal represen tatio n, and (3) by failing to consider appoi nting him a differ ent attorney once a co nflict arose
between F a ther and F owler

.

1
. T he Trial Court ’ s Appo intment Was Timely Father argues that the trial court violated his due process rig hts b y failing to

a ppoint him with counsel “ for the fi rst 9.5 months of the litigati on. ” However, t he
record shows

— and Father concede s in his appel lat e brief

— that Father did not file an
affid avit of indigency until after the January 5, 202 2 hea ring. This is fatal to Father ’ s compla int.
There is n o doubt that an in dige nt parent is entitled to appointed counsel when the government ini t

iate s a suit t o terminate his parental rights. See Tex. Fam. Code12

Ann. § 107.013(a); In re B.C. , 592 S.W.3d 133, 134 (Tex. 2019). W hen a parent claims indigence, the tri a l court must appoint him with counsel if the trial court determines
that he is in f

a ct i ndigent

. B.C. , 592 S. W.3d at 134

. However, the trial court may not make this determination until the pa rent has filed a n affidavit of ind igence in
accordance with th e Texas R ules of C ivil P roce dure

. Id

. (citing Tex. Fam. Code

. Ann. § 107.013(d) ; Te x . R. Civ. P. 1 45(b)) ; see Tex. Fam. Code Ann. § 263.0061 (b)

. H e r e , t h e r e i s n o d i s p u t e t h a t F a t h e r a p p e a r e d a t t h e A p r i l 1 6 , 2 0 2 1 a d v e r s a r y h e a r i n g , t h a t h e requested a ppointed counsel witho ut fili ng an affidavit of indigency ,

a n d t h a t t h e t r i a l c o u r t d e nied his reque st ba sed on Father ’ s reported income.
L ikewise , it is undi sputed that Father d id not appear before the trial court aga in un til

t he January 5, 2022 perma nency hearing on the eve of the initial trial setting . At this hearing, Father again request ed appoint ed coun sel and was promptly provided with a copy of the indigency affidavit, which he completed and returned

. T he trial court
app ointe d him with counsel the next day and soon after grant ed Father a trial
continuance and exte n ded the dismissal da te so that his attorney could prepare for
trial

. T hus , the record is clear that the trial court was not presente d with a valid indigency affi davit until January 5, 202 2

. I t had no authority to appoint Father an attorney until that time. See B.C. , 592 S. W.3d at 134

. Accordingly, we hold that the
trial court did not err by not appointing Father counsel until January 6, 202 2

.13

2. The Tr ial C ourt Adequately In fo rm ed Father of His R ight to Lega l Counsel Next, Father contends that the trial court failed to provid e him with adequate statutory noti ce of his right to appointed counsel as required by Section 263.0061(a)
of the Texas Family Code

. Because it is so brief, we will reprod uce th e entire ty of
Father ’ s appellat e argument on this point:
No sta tutory warnings appear to have been given to the unrepresented Father. See Tex . Fam . Code Ann. § 263.0061(a); [ record cite ] (Statu s Hea ring Order

) , [record cite] (Initial Permane nc y Order) , [r ecord cite] ( Subsequent Perman e n cy Hearing Order). [ 10 ] Thus, Father appears to argue that the tr ia l court viol ated S e ction 263.0061(a) ’ s notice requirements simply because the written order s entered a fte r the status, initial permanency, and su bsequent per ma nency hearings d id not contai n a notice informing the parents of th eir right to appointed counsel

. We disagree.
Section 263.0061 requires trial courts to , “ [ a ] t the statu s hearing

. . . an d at each
perm anency hearing, ” inform unrepresented pa re nts of “ (1 ) the right t o be represented b y an attorney; and (2) if a parent i s indigent a nd appears in op position to the suit, the right to a court

- appointed attorney. ” Tex. Fam. Code Ann. § 263.006 1(a).
It is t rue that none of the t hr ee referenced or ders contain a notice of the parent s ’ right

t o appointed counsel

. It is also tr ue, however, that Section 263.0061 says nothing

10 Though Father flirts with waiving this c omplaint through inadequate briefing,
see Cra a ybeek v. Cr

a aybeek , N o . 02

- 2 0

- 00080

- CV, 2021 W L 18 0 3 652, at * 5 (Tex. App.

— Fort Worth May 6, 2021, pet. denied ) (mem. op.) , we will consider it in light of ou r dir ective to liberally construe the briefing rules

. T e x . R

. A p p
. P

. 3 8

. 9

.14

about what notices must be contained in the trial court ’ s w ritten hearing orders , and
Fa ther point s to no such a uthority

. Instead, Section 263 .0061 requir es a trial court t o
p rovi de said notice to the parent s “ at ” the h earing s in question. On this point , Father do es not co mplain that the trial court failed to give him
notice at the adv ersa ry and subsequ ent permanency hearings

— the only two hea ri ng s at which he appeared. A n d it is difficult to envision how t he trial cou rt could have
admoni shed Father of his rights at the hearing s at which he failed to appea r . Further, even if Father had ra is ed such a complaint, nothing in the record
bef ore us

— which does not contain any tr a nscripts of the pre trial hearings

— s hows
that th e trial court failed to give him notice at the hearings

. Instead , the re cord
indicates that Father likely did receive adequate no tice because Father sought to
invoke his right to appointed coun sel at e ach of the two hearings at which he was
pr esent
. Also , Nevarez testified that the trial co urt h ad inquired into the status of the
parents ’ l egal representation at “ every court hea r in g . ” For these reasons, we hold that Father has not shown that the t r ial court fail ed

to inform him of his right to appointe d cou nsel.

3. No Abuse of Discretion in Denying Motion to Withdraw Father argue s that the tria l court violated his due process rights by denying
Fowler ’ s requests to with draw

. These denials, Father says, deprived him of his right

to effectiv e assistance of counsel at trial , particularly because he w as not given the15

opportunity to explain t o th e tria l court the reasons why he and Fowler we re not effectively communicating. Again, we d i sagree with Father.
We rev iew trial court ruling s on the w i thdrawal or substitution of appointed
counsel for an abuse of discretion. In re C.F. , 565 S.W.3 d 832, 843 (Tex. App.

— Houston [14th Dist .] 2018, pet. denied) ; see Burgess v. State , 816 S.W.2d 424 , 428 (Tex. Crim. App. 1991)

. 11 A trial court abuses its dis c retion if i t acts in an arbitrary or unreasonable manner, without reference to any guidi ng rul es or principles. Walker v. Gutierrez , 11 1 S.W.3d 56, 62 (Tex. 2003)

. A trial court is not required to search for counsel agreeable to the indigent party , and “ personality conflicts and disagreements concerning trial st rategy are typically not valid groun ds f or withd raw al. ” King v. State , 29 S .W .3d 556, 566 (Te x. Crim. App. 2000)

. Further, the right t o counsel may not be used to obstruct the j udicial process o r to interfe re with the efficient , prompt administration of justice. Id

. ; see Carroll v. S tate , 176 S.W.3d 249, 256 (Tex. App.

— Houston [ 1s t Dist.] 2004, pet. ref’d)

.

11 Though civil i n nature, Texas courts often seek g uidance from cri mina l ca ses w hen analyz ing issues related to appointed counsel in parental

- righ ts

- t ermination
cases . See , e.g., In re D.T. , 625 S.W. 3d 62, 73

– 75 (Tex. 2021) ; In re M.S. , 11 5 S.W.3d 534 , 5 4 9

– 50 (Te x. 2003) ; In re Howell , No. 14

- 19

- 00 611

- CR, 2019 WL 3795999, at *2 (Tex. App.

— Houston [14th Dist.] Aug. 13, 2019, orig. proc eeding ) (mem. op. , not d esignated for publication ) (per curi a m) ; In re G.H. , No. 02

- 14

- 0 0 261

- CV, 2015 WL 38 27 7 0 3, at *1 7

– 18 (Tex. App.

— Fort Worth June 18, 2015, no pet.) ( mem. op. on reh ’ g ); Walker v. Dep ’

t of Fam

. & P rotective S er

v s. , 312 S.W.3d 608, 6 24

– 25 (Tex. App

. — Houston [1st Dist .] 2009 , pet . de nied)

.16

The trial court ’ s de n ial s of Fow ler ’ s motions to withdraw were not arbitrary or

unreas o nable. The first evidence in the record of any disagreement between Father
and Fowl er cam e by way of Fowler ’ s written motion to wi thdraw filed less than a
week b efore the commen cement of t r ial. At that point , the trial court had already granted F ather a continuance and new dismissal date for the case

. It would not have
b een unr e asonable , under these circumstances, for t he trial court to have concluded
that Father ’ s ele venth

- hour request for new counsel was a delay tactic

. See Elder v. Tex. Dep ’ t of Fam

. & Protecti

ve Serv s . , No. 03

- 10

- 00876

- CV, 2011 WL 4424299, at *3 (Tex. Ap p.

—

Austin Sept. 20, 2011, no pet.) (mem. op). Beyond t his, the record shows that Fathe r was generally diff i cult to
communicate with. Fowler info rmed the trial court that she had tri e d to meet w ith Father at the jail on the eve of tria l but was unsucce ssf ul because Father refused to speak with h er. Gilliland testified that he , too , had had difficulti e s communicating
with Father and that such attempts were often met with anger. And N e varez

co nfi rmed that F ather often became upse t and ne eded to be calmed down du r ing his supervised visitations with the children

. Thus, it w ould have b een reasonable for the
tria l court to conclude that the appointment of a new attorney to recti fy Father ’ s communicat

ion issues with Fowler would have been futi le given Fa ther ’ s persist e nt inability to communicate effectively with others in his case. Fin a lly, when the motion to withdraw was re

- urged before the second day of testimony began , Father told the t ri al court that h e wanted new representation17

because F owler had d eclined to fil e a motion to allow F a ther to have v irtual visitation
with his children from jail. But Father points to no actual deficiency in Fowler ’ s representation at trial and agreed tha t he had met with her three times prior to trial , that Fowler had s c heduled for witnesses to testify on Father ’ s behal f , and that he had

no su b stitute counsel available despite his desire not to represent h imself

. T he record
also shows that , upon her appo i ntment , Fow ler was present a t all scheduled hearings,
filed vario us motions, attended mediation, cross

- exam ined witnesses, and logged
reasonable objections during the first day of trial

. For th ese reasons, the trial court
could have rea sonably concl uded t hat F ather ’ s issues with Fowler were a mere conflict of per sonalities rat h er than a ny deficiency in representation that would have preju diced Father at trial

. See Cavaness v. State , No. 04

- 17

- 00517

- CR, 2018 WL 3747809, at *5 (Tex. App.

— San Antonio Aug. 8 , 2018, pe t. ref’d ) (mem. op., not designated f

or publication)

. Accord i ngly, we conclude that th e trial court did not abuse its discretion when
it denied Fowler ’ s motions to withdraw. We overrule Fa ther ’ s first issue.

B. P RIV I LEGE A GAINST S ELF - I NCRIMIN A TION
In h is second issue, Father argues that the trial court violated his Fifth
Amend m ent rights by o rdering h i m to answ er , over his invocation of the privilege,
whether Mother had been using drug s a t the time of the children ’ s removal

. 12

12 I n his appellate brief, Fathe r also summarily argues t h at the trial court inadequately exp lained to him his right against self

- incrimination. We overrule this18

Specifically, h e contend s that this answer could incriminate hi m if he were to be prosecuted for the off

e nse of abandoning or e nda ngering a child. We overrule this issue because, even though the trial court erred by requiring Father to answer this question , such e rror w as not re versible

. See Tex. R. A pp . P. 44.1 (a)

. 1. The Trial C ourt Erred
A witness may invoke his privilege against self

- incrimination in civil cases
whenever an answer might tend to subject him to criminal responsibility

. In re Speer , 965 S.W.2d 41, 4 5 (Tex. A pp.

— Fort Worth 1998, or i g. proceeding ) ; see In re A. H. , No. 02

- 17

- 00222

- CV, 2017 WL 5180785, at *4 (Tex. App.

— Fort Worth Nov. 9, 2017, pet. denied) (per curiam ) (mem . op.) ( stating that a “ termination trial is a civil proceeding for purposes of t h e privile ge against self

- incrimi n ation ” )

. When a witness
in vokes the privilege, the trial cour t must determine whether the invocation appears
to be made in good faith and is justifi able under all of the circumstances. Speer , 965 S.W.2d at 45. “ The inqu i ry by the court is necessarily l i mited because the witness need only show that a response is likely to be hazardous to him. ” Id

. Before requiring a witness to answer, the trial court must be “ ‘ perfectly clear, from a careful
consideration of all the cir c umstances in the case, that the w itness is mistaken, and argument for two reas on s. First , Father waived this argument through inadequate b ri efing because he provides no autho rity or argument on th e issue

. Tex. R. App. P. 38.1(i)

. Second, the trial court did adequately inform Father on the record that he had the right t o not testi fy concerning anythi ng that would incriminate him and that, if Father did so, the trial court had the r ight to ma k e negative inferences from those invocations.19

tha t the a nswer (s) canno t possibly have such tend ency ’ to i ncriminat e. ” Ex parte
Butler , 522 S.W. 2d 196, 198 (Tex. 1975 ) (quoting Hoffman v. United S tates , 341 U.S. 479 , 488, 71 S. Ct. 814, 819 (19 5 1) )

. How ever, t he factfinder in a civil trial may draw negative in ferences based up on a witness ’ s assertio n of the privilege

. Speer , 965 S.W.2d at 46 (citing Baxter v. Palmigiano , 425 U.S. 308, 318, 96 S. Ct. 1551, 1558 (1976)).
Under the circumstanc e s of this case, it was reasonabl e for Father to fear that answering the question a bout Mo ther ’ s drug use was likely to be hazardous to him
and could tend to be incriminat ing

. Father was arr ested for abandoning and

en dangering a child b ased on the same ne x us of fac ts under lying his termi n ation

case
— that Father had allowed the children to remain in th e care of peo ple who were using methamphe ta min es . Section 22.041 o f the Texas Penal Code provides that (b) A person commits an offense [of abandoning or endan g e r ing a c hild] if, having custody, care, or control of a child yo unger t han 15 years, he i ntentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm. (c) A person commits an offense [of abandoni n g or enda ngering a child] if he intentionally, knowingly, reckles sly, or with criminal neg ligen ce, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairmen t
. (c

- 1) For purposes of Subsection (c), it is presumed that a pe rson enga ged in conduct t hat pl aces a child in imminent danger of death, bodily injury, or physical or mental impairment if:

. . . .20 (2) the person ’ s conduct related to the proximity or a c cessib i li ty of the controlled substance methamphetamine to the child a nd an ana lysis of a speci men of the child ’ s blood, urine, or other bodily substance indicates the presence of methamphetamine in the child ’ s body

. . . . Tex. Pen al Code Ann. § 22.041.
If F a th er knew that Mother was using methamphe t a mine s and he still allow ed
the ch ildren to remain in her care , a s trong argume nt could be made that Father
violated S ubsection (b). See id . 22.041(b). Further more , the Department had filed
documentation w

ith th e t r ial court showing that B.C. had tested positive for methamphetamines. Because o f this, Father could have also reasonably feared prosecution under S ubsection (c

- 1)(2)

. See id . § 22.041(c

- 1)(2).
The Department argues that “ it was reas o nable for the trial court to have
concluded that [Father] ’ s answer would not likely incriminate him ” b ecause Father ’ s endangerm en t charge w as dismissed and because Father did not present specific evidence to the trial court regard ing th at charge

. Th ese arguments a r e unav ail ing

. First, there is no indication that the charge w as dismissed with prejudice and,
there for e , the State could have re filed it anytime within the applicable statute of
limitations

— this time bolstered by Father ’ s state m ents made under oath

. Se e Tex.
Cod e Crim. Pro c . Ann. art. 12.01 (4)(D) (providing a five

- year s tat ute of limitations for
ab and oning or endan gering a child). Second, docu m ent s in the c lerk ’ s record strongly suggest that the trial court knew that Father ha d been arrested for abando n ing or

en dangering a child and that B.C. had tested positive for methampheta mines. See In re21

J.E.H. , 384 S.W.3d 864, 869 (Tex. App.

— San Antonio 2012 , no p et. ) ( explaining that

“ a trial court is presumed to judicial l y know what has prev

iously taken place i n the

cas e tried before it ” ) (internal quotations omitted).
F or these reasons, w e conclude that the trial court err ed by making Father

answer whether Mother was using drugs in March 2021 because Father was justif i ed
in believ ing that his answer could te n d to incr iminate him

.

2. The Error Is Not Reversible Our inquiry does not end , though, with the conclu sion that the tr ial court erred ;

w e must also determine whether the error was reversible

. See Tex. R. App. P

. 44.1(a).
In civil cases , an e rror is r e versible only if it “ (1) probably caused the rendition of an improper judgment ” or “ (2) probably prevented the appellant from pr operly presenting the c ase to the court of appeals. ” Id

. This rule applies to all er r ors that

occur in civil cases

. G & H To w ing Co. v . Magee , 347 S.W.3d 293, 297 (Tex. 2011)

. Because the error did not pre vent Fat her from presenting the c ase on appeal, w e will focus our inquiry on whether it probably caused the rendition of an impr oper j udgment . We con clude that it did not. 13

13 We note that Father has likely waived this issue by failing to address how this error led to an improper judgme nt
. See Mullendore v. Muehlstein , 441 S.W.3d 426, 430 (Tex. App.

— El Paso 2014, pet. de n ied) (explaining that the civil appellant bears the burden of showing harm and waives the issue by f ailing to do so); In re K.C.R.T. , No. 02

- 10

- 00425

- CV, 2011 WL 3426258, at *7 (Tex . App.

— Fort Worth Aug. 4, 2011, no pet.) (mem. op.) (same). B ut given the w eighty nature of the issue as one that touches up on both parental and constitutional rights, we will perform a harm analysis.22

The tri al court found by clear and convincing evidence that Father had

“ knowingly placed or knowingly allowed the child [ ren ] to remain in conditions or surroundings which endanger[ed] ” their physical or em otional well

- bein g 14 and that
termination was in t heir best inter est
. 15 See Tex. Fam. Co de Ann. § 161.001(b )(1)(D) , (2)

. There was ample evidence

— s epar ate from Father a nswering affirmative ly that
Mother had been u sing methamphe tamines at the time of removal

— to support the se findings :

• Father told Gibbs on the day of removal that Father would fail a drug test that day;

• Father admitted to knowing that Paternal Grandmot her and her boyfriend were using meth amphe tamines while the children lived in the home;

• Father admitted that Z. C. did not see a doctor for the first five mont hs of Z.C. ’ s life;

• Father ac knowledged having a history o f su bstance abuse problems ;

• Father had been concerned that Paternal Grandmother ’ s boyfriend had sexuall y abused B.C., but B.C. was still present at the home with boyfriend als o present on the day that Gibbs arrived to investigate;

14 T he follow

ing action s by a parent or oth er person in the home can suppor t a finding of en dangerment under ground (D) : i nappr o priate , abus ive, or unlawful conduct , In re P.N.T. , 580 S.W.3d 331, 355 (Tex. App.

— Houston [14th Di st.] 2019, pet. denied) ; drug use , In re B.M.S. , 58 1 S.W.3d 911, 917 (T ex. App.

— El Paso 2019, no pet.) ; and a parent ’s prolonged absence due to incarcerati o n , Walker , 312 S.W.3d at 617

.
15 Courts must co nsider the well

- kn own H olley fac tors when making a best

intere st determi nation. See Holley v. Adams , 544 S.W.2d 367 , 372 (Tex. 1 976).23

• Father had been incarcera ted for nine of the fifteen mo nths leading up to trial and was still incarcerated at t he time of trial ;

• Father visited with the children only four times between removal an d trial;

• Father de clin ed to follow t he recommendations of a m ental health professional who had diagnosed him with bipolar disorder ;

• E v ans testified that he could tell that Father was using drugs two or three days prior to the children ’ s removal and tha t living in the hous e with Paternal Grandmot her exac erbated F a ther ’ s problems with substance abus e ;

• Pa ir testified that h e had used drugs with Paterna l Grandm other and that he had not seen Father in “ some time ” because Pair did not allow himself to be
ar o und people wh o were activel y using dru gs ; and

• F a ther did not know where he would live upon being release d from custody and indicated a desire to enter a long

- term rehabilitation facility. Additionally, the trial court was free to dr aw negative inf er e nces fr om Father ’ s assertions of his Fi fth A m endment privileg e in response to questions ab o ut whether
Father had ever physically assaulted Mother, whether Father had been using methamp hetamines at the time of re moval, and whether B.C. had tested positiv e f or methamphetamines

. See Speer , 9 65 S.W.2d at 46. Thus, even if the trial c ourt had not required Father to answer the question
about Mother ’ s drug use, there would have been ample evidence to support the trial

court ’ s Section (

D) and best interest find i ngs . For these rea sons , we canno t say that
the trial court ’ s error probably c aused the re ndition of an improper judgment
terminat ing Father ’ s pare ntal rights to the children

. See In re C.E.M. , 64 S.W.3d 425,
429

– 30 (Tex. App.

— Houston [1st Dist.] 2000 , n o pet.) (holding in a termination case24

that any potential e rror by the trial c o urt in admitting certain evidence did not result in an improper judgment because other evidence supported the judgment). We overrule
Father ’ s second issue.
III. CONCLUSION
H a ving overruled Fath er ’ s two issues , we a ffirm the judgment of the trial court

.
/s/ Brian W a lker
B rian Walker J ustice
Delivered: November 23 , 2022