Opinion issued March 5, 2020 .

In The 

## Court of Appeals For The 

## First District of Texas

—————————

— — — — - ——— NO. 01
- 19
- 00612
- CV

—————

— — — — — — —— — IN THE INTEREST OF A. A. H a / k / a A.H .

———— – ———— — — ———— NO. 01
- 1 9
- 00 7 48
- CV

———— — — — — — — – ———— IN THE INTEREST OF A.M.H
- F., A. L.F., A.C.J.H . - M., A .P.J.H. - M. and A.C.H.
- M.

On Ap p e al from the 310th District Court

Harris County, Texas Trial Court Ca se No . 2018
- 59296 & 2017
- 65076

MEMORANDUM OPINION
K.H. (“ Mother”) and A.J.M. (“Fat h er”) are appealing a final decree terminating th eir parental rights to their infant daughter, A.H. (“ Alexa ” )

. Mother2

also appeals a separate final decree terminating her parental rights to her five older childr en. In several issue s , Mother and Father both argue on appeal that there is legally and fact ua lly insufficient evidence supporting the trial court ’ s fin dings that: (1) t he y committed the requisite predicate acts under sub sections 161.001(b)(1)(D) , (E), and (O) and ( 2 ) t e r mina tio n of their parental rights is in the children ’ s best interests. See T EX
. F AM
. C ODE §§ 161.001(b)(1)(D), (E), (O) & 161.001(b)(2). In

s everal additional i ssues, Mother contends that (1) there was legally and factually insufficient evidence to support the ap po i n tment of the Department of Family and
Prot e ctive Services ( “ The D epart ment ” ) as sole managing conservat or, ( 2 ) she was denied due process and equal protection, ( 3 ) the t rial court lacked jurisdiction because it did not commence trial within the statuto rily requi re d time, ( 4 ) she received ineffective assis ta n ce of counse l , an d ( 5 ) the trial court erred in denying an intervent ion by a potential relative seeking plac ement in violation of the
Fost ering Co nnections Act

. In cause number 2018

- 59296 , we affir m the termination decre e as to Father but reverse and remand as to Mot her. In cause number 2017

- 65076 , we affirm the termination order. I. BACKGROUND Mother has six children. At t he time o f trial, the el dest was nine years old and the youngest was an in fant. A dam Fields, deceased, is the father of the two3

eldes t ch ildren , An na and Bryan. 1 F ather is the father o f the second oldest daughter, Catherine. Johnathan Adams is the fathe r of Deb o rah and Elijah. And,
F ather is also the father of the infant, Al exa. In July 2017, t he family came to the D epartment ’ s attenti o n when it received a referral for medical negl ect; the middle daughter, Catherine, had suffered severe burns caused by boili ng noodles, and Mother had not sought any medical treatment for her. Mother took a drug test on July 17, 2017, in which she test ed p ositi ve f or cocaine in an amount indicating that she was a chr onic user. In October 2017,

w hen Mother continued to t est posi t ive for drugs, the Department was appointed Temporary Managing Co nservator of Anna, Bryan, Cather ine, Deborah , and Eli jah. 2 However, t here is ev i d ence that Mother conce aled the children, and the Department was unable to locate them and take custo dy of th e m until January 26, 2018. The infant, Alexa , w as bo r n August 23 , 2018 . On August 29, 2018 , the Department re ceived a referral allegin g ne glectfu l supervision of Alexa by Mother. Father was in jail at the time of Alexa ’ s birth.

1 For pu rpose s of this Opinion, we w ill refer to the children and parties by pseudo nyms . See T EX
. F AM
. C ODE § 109.002(d); T EX
. R. A PP
. P. 9.8.

2 The Depa rtment ’ s case invo lving Mother and the five el dest children is t rial c ourt number 2017

- 65076, appea l number 01

- 19

- 00748

- CV. Father was also a party t o that suit, but he filed a re linq uishment of par ental rights as to his older dau ghter, Ca t herine , in that case and does not appeal. The Dep artment ’ s case in volving Alexa is t rial c ourt number 2018

- 59296, appeal number 01

- 19

- 00612

- CV

.4

On August 30 , 2 018, Departme n t investigator , Sheryl Ross, went to the apartment where Mot her was staying with her sister and fictive kin , whom she referred to as her grandfat h e r , but Mother said that the baby was not there. The Department was not able to locate Alexa until S eptember 1 1 , 2018, when it was named temporary managing conserv ator. Moth er again tested positive for cocaine

o n that date. A. T RIAL PROCEED INGS 1. April 9, 201 9 Both ca ses

— 2017

- 65076 involving the older children and 2018

- 59296 involving the infant

— w ere c all e d to trial . Father was represented by Michael Craig. The Department was represented by De ’ Anna Carlson. Mother ’ s attorney in the 201 8 case, Ga

ry Smoth e r man, was not prese nt and the record provi des no explanation for his absence. Mother ’ s attorney on th e 2017 case, Jimm ie Brown, Jr., appeared on her behalf. Father ’ s att orney calle d Fat her, who testified that he wish ed to execute a Volu ntary Rel inquishm e n t of Parental Rights as to Mother ’ s third c hild, Catherine. Father testified that he understo od the c onsequences of his action , that it was irrevocable, a nd that it was in Catherine ’ s best interest

. The trial c ourt admitted the document into evi de n c e without objection. Father did not execute a relinquishment as to Alexa

.5

The trial court then recess ed the trial because Mother had alleged that her children might be of Nati ve American descent and that more time was n e eded to comply wi th th e protections provided by the Indian Child Welfare Act of 1978.
See 25 U.S.C. §§ 1901

— 1963 (2001). 2. June 25, 2019

a. The M otion to W ithdraw Trial resumed on June 25, 2019. Again, Gary Smot herm a n was not present for Mother in the 2 0 1 8 case and there i s no explanati on in the record for his ab sence . Jimmie Brown, Jr. appeared o n Mother ’ s behalf in the 2017 case, but he filed a Motion to Withdraw , alleging “ a pretty much unavoidable conflict o f int erest. ” After a brief discussion off t he record, th e tri al court denie d Brown ’ s motion. Brown then stated on the record, Based on wh a t has occurred between my cli ent and m ysel f, Counsel will be basically ineffective. And I think that will render th is pr oceeding pretty much constitut ionally [ infirm]. I don ’ t know of any ot her wa y that I can proceed and not prejudice my cli ent one way o r another. And I don ’ t know how I can do this and be faithful to the rules that I ’ m sworn to uphold. So [,] all I can hones tly tell the Court is that I will be i n effe ctive on th e record. b. Evidence The Department proceed ed by offering numerous exhibits, including the children ’ s bir th certificate s , the parents ’ family service plans, the parents ’ drugs tests, and the pa rents ’ cri minal records.6 i

. Bruce Jefferies ’ s testimon y Th e first witness was Bruce Jeff e r ies, the owner of the National Screening Center s, w h o testifi ed about Mother ’ s and Father ’ s drug tests. The evidence showed that Mother first test ed positive for c ocaine on Jul y 17, 2017, at which time her cocaine levels in d i cated dail y “ chronic ” use. On February 6 , 2018, Mother tested pos itive for a low amount of in g ested marihuana, a chroni c “ daily ” exposure to marihuana, methamphetamine, and coc aine at a chronic usage level

. T his test was after the Department had removed M o t her ’ s older children and Mother was pregn a nt with Alexa at the time. On February 27, 2018, Mother test ed positive for cocaine, PCP, marihuana, and codeine. Her cocain e level had drop ped, her marihuana leve l s were l o w, but she had new positive results for PC P and codeine. Jeffries explained that the codeine could be explained by a pr escription drug. Mother never produced or claimed to have a prescription. On July 17, 2018, Jefferies c ould not take a sample of hair from Mother’s head because it had been shave d and she was wear ing a weave. On July 19, 2018, a little over a month before A lexa ’ s birt h , mother tested positive for cocaine. On September 11, 2018, a few week s after Alexa was born , Moth er tested positive f o r c ocaine again.7

On October 23, 2018, Mother test ed positive for alcohol, methamph e ta mine, cocain e , and PCP. Jefferies no ted that Mother was still testifying positive, even while she was participat ing in a s ubstance

- abuse pr ogram. On November 27, 2018, M o t her again tested positive for cocain e. On F ebruary 20, 2019, just a few weeks bef o re trial, mother tested positive for a low amount of cocaine , daily exposure to marihuana, and a low amount of marihuana in ge stion. Jeffries a lso testified about Mother ’ s drug tests b y Texas Drug and Alcohol Se rvices, which showed that (1) Mother ’ s earlie st drug te s t

— July 17, 2017

— which was bef

ore any of her children were removed, showed chronic or daily us e of cocaine , ( 2) on Aug ust 31, 2018, j ust a few days after Alexa ’ s birth, m other tested positive for cocai ne, and (3) on October 10, 2018, Mother again tested
p o sitive for cocaine

. Jefferies al so testified about Father ’ s drug tests as follows : On March 1, 2018 , Father tested positive for P C P and marihuana , both by exposure and ingestion

. On February 19, 2019 , just a few wee k s b efore trial, Father tested positive for marihuana in gestion at a chronic usage l evel, codeine and mo rph ine, PCP at a chronic usage level, low levels of a lcohol, and methamphetamine at a level indicating us age more than once

.8 i i

. John Fuegar ’ s test imony The next wi tness w as John Fuegar , the Department ’ s case worker in both the 2017 and 2018 cases. Fuegar testified that all six children were currently i n foster

ca r e. The three el des t children

— Anna, Bryan, a nd Catherine

— were in the sa me fost er care place ment . A ll three were in ther a py and were “ doing well. ” The placement was not a pot e nti al adoptive placeme n t

. The next two children

— Deborah and Elijah

— were placed in a foster home toge ther and they too w ere doing well and were attendi ng dayc are regularly . T he placement was no t a potential adoptive placement. Fi nally, the infant, A lexa, was placed in a foster home and was the only sibling placed alone. Her fo ster mother arranged for her to visit her sibl ings. Despite being e xposed t o illeg al d rugs in u tero, Alexa h ad experienced no developmental delays. Alexa ’ s foste r mother was willing to adopt both her a nd Catherine. Fuegar testified about other po tential placements for the children. H e testified that Ada m Field ’ s family was wil ling to tak e Anna an d Bryan, who were their deceased rel ative ’ s children. F uegar also testified that the Dep artment had identified one family who was willing to adopt all si x childre n if the parents ’ rights

were terminated. So, Fuegar concluded that the D epartme nt would be a ble to lo ca t e permanent p lacements for all six of the children

. F u e gar testified that the older9

children currently had some hesitation about being re unite d with the ir younger si blings becaus e they feared they might once a gain be “ in cha rge ” of t he younger children. Regarding Catherine ’ s b urns, which led to the initial D epartment referral, Fuegar testified that the Mother explained that noodles had spilled on the child. Upon initial investigation, t he Department ’ s investigator noted tha t the b urn smell e d a nd was possibl y in f ected. The burn covered the child ’ s lower abdomen,
pe l vic area, and upper legs. M other did not seek any medical treatment for Catherin e, and her scarring is such that she will n eed s kin grafts in the fut ure. Fuegar testifi ed that t he D epartment classif i ed Mother ’ s failure to seek treatment for Catherine as medical negl ect. He also testi fied that Mother told the other childre n that they could not take Catherine to the doctor bec ause the doctor would cut her legs off. Fuega r testified t hat the Department was a p pointed temporary managing conservator of the older ch i ld ren on October 31, 2017 but was not able to take custody of them until January 2018. It was his belief that Mother was hi ding the children. W hen the chil dren we re removed in January 2 018, the apa r tment in which they were staying had no heat or water

. Mother was given, and signed, a family service plan at a February 6, 2018 hearing in the 2017 case. In accordanc e with the plan , Mother attended her10

p sychol ogical assessment, a t which the following r ecommendations were made: participat e in a substance abuse program, maintain sobriety for one year, comply with random drug testing , atte nd counseling, attend par enting classes, maintain fina ncial su pport with em ployment, maintain hous ing, avo id illegal ac t ivities, and maint a in a drug free home. She was also di agnosed with perso n ality disorder. Before Fuegar complete d his te stimony, tr ial was recessed

. 3. July 1, 2019 Trial resumed on July 1, 2019. The Departme nt again noted on the record that Mother ’ s at torney in the 201 8 ca u se number, Gary Smotherman, had been noticed, but di d not appear. Again, no explanation for his absence is found in the record

. Also appea ring for the first time was, Dan ielle Gre en, pro s e. Green had filed an inter ven tion in the proceedings, seek ing to be considered as a placement for Johnathan Adams ’ s children, Deborah and Elijah. Green also had children by Adams, wh o w ere half

- siblings with Deborah and Elijah. Mother indicated a willi ngness to relinquish her par enta l ri ghts to all six chi l d ren to Green.

a. Evidence C ontinued
i. John Fuegar ’ s t estimony The Department resumed questioning of the caseworker, Fue gar . Fuegar testified that Mother failed to complete her family service plan. Specifically, she11

di d no t provide proof of stable hous ing, s he did not refrain fro m illegal activities, and she d id not submit to random drug testi ng over ten times. She also faile d to comply with the recommendations of her psychologica l assessment that she by remain so ber for on e yea r or submit to another substance a b u se assessment

. Fuegar also testified that she never provided the Department with proof of employment or stable housing

. Although Mother successfully completed
out p ati ent treatment f

or dr ug abuse, she c o ntinued to test positive for drug s both before, d uring, and after completion of the program. Fuegar concluded that
Mo ther ’ s continued drug use en dangered her children by exp osing the m to criminal conduct and preventi ng her f r om being availa ble for t he child ren . Specifically, Fuegar stated, “ [ I ]f th e parent goes to jail, th ey ’ re not able to provide a stable environme nt for the child. They ’ re not able to meet the basic ne eds of the child because they are separated fro m the child. ” Fuegar spe cifically n oted t hat Mother tested positive for drugs throu g hout her preg nancy with Alexa. After learning that Alexa had bee n born, Fuegar visited Mother, but M other said the baby w as not there. She c laimed that the baby, wh o wa s just days ol d, was wit h her sist e r, Leslie Hawkin s , and Mother did not know where th e y were. The Department finally located Alexa on S eptember 11, 2018 . Mother test ed positiv e for drugs that day, and the Department was made temporary ma naging conse rvator.12

The Department was concerned that Mother continu e d to test positive for drugs even af

ter Alexa (and the other children ) had been taken into the custody of the Department. Fuegar stated, “ It goes to the ability of the paren t to provide the child

— to pro duce a safe en viron ment for the child in the fut ure. ” Mother was gi ven a family plan on the 2018 case, which she also failed to complete. She never took anger management classe s. She never provided proof of stable, ongoing employme nt , although th ere was eviden ce tha t she had obtained her phlebotomist certification

. S he did not submit to r andom drug testing. She continued to engage in criminal activity , an d she missed court hearings in the case. Mother did attend her supervised vis its with Alexa and beha ved
ap propr i ately dur ing them. Regarding potential placem e nts, Mother suggested her great

- grandmother,
Pame la Gardner

. The Departm ent denied this placement because of c oncerns about Gardner ’ s ability, both physically and financial ly, to care fo r six children. The Departmen t was also concerned that Gardner would allow Mother access to the children. Mother also suggested her sister, Amber Hawkins, but the Department ruled her out beca use she too had a criminal history as well as a history with t he Department. Moth e r ’ s brothe r, Eli jah Hawkins , never returned the D e partment ’ s calls when they sought to perform a ho me study on him. Moth er ’ s uncle , Shawn Hawkin s , was also not considered bec ause he had a criminal history. Finally,13

moth er suggested fictive kin , Ush anda C ollins, wh o was not considered because she was n o t willing to participate in the home

- st udy process. Fuegar noted that the Department had consider ed several family members of the deceased fathe r, Adam Fields , who were in terested in ha ving Anna and B ryan
p laced with them and that a home study had been done but had not yet been approved or denied. Danielle Green, whose chi ldren share a father with Deborah and Elijah, was al so interested in having the children p l ace d with h er , even tho ugh she had never

me t them. Fueg ar testified that the Department wo u l d consider a placement with Green. Fuegar also testified about a po tential placement for all six children. A home study had been done , and the family had been approved as an adoptive placement. The e ld e s t child, An na, had some trepidation about the p o tential
p la ce ment and “ her main concern [was] being embarrassed about not l ooking like her adoptive family. ” She was also conc erned about having to take care of the other childr en if she w ere placed in a fa mi l y with al l six of them. Finally, Fuegar testifi e d that Alexa ’ s current foster mother was willing to adopt both her and C atherine

. Alexa ’ s foster mother would be open to maintaining a relationship with the other sib lings.14

R egarding Fa t her, Fuega r testi fied that Fa ther was in jail fr o m December 2017 until November 22, 20 18. Thus, he was in j ail when the Department took custody of his oldest child, Catheri ne, in January 2018, and when Alexa was born in August 20 18. H e did not see Alexa u ntil she was six or seven mon ths old. Fuegar me t with Father in November 2018, when he was released from jail , at which time, Father was given a family service plan. Fathe r did not complete his family service plan

. 3 He did not go to a psych i a tric assessment ; h e did not s how up for r andom drug testing; he continued to engage in criminal activity by using drugs ; and he did not p rovid e proof of hous ing or employment. Father test ed positive for drugs in February 2019, shortly before trial commen ced. Father attend ed a drug assess ment, bu t he did not comply wi t h the recommendations from that assessment. Specifically, he did not sub mit to random drug testing. The Department was con cerned about Father ’ s drug use and that his continued enga gement in c rim inal act ivity ha d le d him to be absen t from Cather ine ’ s life , as well as the life of his newborn child , Alexa

. Fuegar also e xpressed concerned about Father ’ s extensive crimina l record , not ing that “ [ a] parent who is incarcerated is not able to protect th eir chil d

. They ’ re not able to ensure that their c hild ’ s needs are being met and it takes away

3 The family service plans for F ather were the same in the 2017 case and th e 2018 case.15

all ability for them for bei ng present in their child ’ s life and bein g a caregi ver for them. ” Fuegar noted that Father had made re gular, appropria te , supervi sed visit s with Alexa, though he misse d one appoint m ent when he overslept. Though Father would like to leave permanent manag ing conservatorship of Alexa to the agency or foster parent , the Department wanted her to have permanency . Fathe r had neve r provide d anything for Alexa other than a piec e of hard ca ndy that he brought to one of the supervised visits. Fuegar test ified th at the Department was also concerned about d omestic viol ence in the relationship between Mother and Father. Mothe r had repo rted that she was the victim of domestic violen ce a t Father ’ s hands. This violence was said to have occur red before he went to jail in December 2017 , and it happened on
more t han o ne occasion. Fuegar conc luded that it would be in the best inter est of all six chil d ren if Mother ’ s and Father ’ s parental right s were terminated.

ii. Anabel Gonzalez ’s testimony Anabel Gonzale z te stified that she was the Department ’ s investig ator on the 2017 case involving the five older c hildren. She received a referral for the family
on J u ly 12, 2017, a llegin g drug use and medica l neglect with respect to Catherine. Gonzalez visited the family on July 14 th , 2017, and s aw Catherine ’ s b urns, which16

were hea ling by that time . She asked Mother to take a drug test, Mother did not do so for a co uple of weeks . She f inally took one o n July 17 , 2017 , which showe d ch ronic cocaine use. During this initial investigation, Gonzalez contacted Father on July 13, 2017. Father said that he wa s living in Beaumont with his father. He denied knowing anything abou t the children, inc l udin g tha t Catherine had been burned.
T he Department filed its Origin al P et ition in September 2017, and , at a hearing of October 17, 2017 , was granted emergency custody. The Department was unable to lo cate the children to ob t ain c ustody until January 26, 20 18. G onz a le z testified that she went to the children’s ’ school s and reached out to family members, “ b ut nobody had any information as to where they were [.] ” Gonzalez even went to Mother ’ s criminal cou rt setting to try a n d find her, and the judge in that case o r d ered Mother to produce the chil dren. The Department wa s concer ned about p lacing the children with relatives because there was concern that they were helping Mother h ide the children. Mother ’ s sis ter ’ s children were als o missing, and the sister was even tual l y charged with kidnapping. When the children were f inally l ocated, Gonzalez stated that the y were with a babysitter, and th e home did not have heat or running water , even though it was
Ja nuary . Gonzale z testifie d tha t the apartment was filthy, there wer e clothes17

everywhere, and there was “ dog feces all over the pl ace. ” When they were located, it was during school hours, and, even though two of the children were school

- aged, they were not in sc hool.

iii

. Danielle Gr e en ’ s testimony Green testifi ed th at two of her own children were siblings with Deborah and Elijah because they sh ared the same father, Jonathan Adam s. She testifie d that Adams asked her whether sh e would “ tak e care of the ki ds. ” Green called Mother and t old her that she “ wanted to step in and t ake temporary custody of [her] children until [she] finish [ed] whatever [she] had going on with the court. ” Mother agreed and attem pted to re linquish her children to Gre en. Green agreed to take all si x children. Green t estified that, if the ch ildren were placed with her, she

“ w ouldn ’ t have a relationship with the mother per so. It w ould be more

- so as visits
poss ibly. ”
i v . Father ’ s testimony Father ’ s counsel stated, “ Despite my advice , Yo ur Honor, I ’ m going to call

m y client. ” Father ac k now ledged that he had filed an affidavi t of relinquishment

a s to his older child, Cather ine, b ut he testified that he did not want his parental rights to Alexa to be terminated. He testified that he was w orking and making $12.38 per ho ur and that he coul d pa y support for the child. H e testifie d that he had been living with his mother and visi ting Alexa regularly. He said that he l oved18

the child and that he was askin g the trial court not to terminate his r ights so that he could pay su pp ort and continue to vi s it. Father admitted that he c o mmitted domestic violence against Mother in the past, before invo king his Fifth Amendment rights , and , on advice of counsel,

r efusing to answer furt her qu estions on the issue. Father acknowledge spanking the children, “[w] hen they did stuff that they wasn’t supposed to[.]” Father testified th at he knew t hat Mot h er had smoked “ a little mari juan a , ” but t hat the children were not with her at the time. He believed that Mother took good care of the children ; he did not kno w th a t they went without electricity and
wat er , stating, “ I was in car cera ted

. ” He also claimed that he was in jail when Ca therine was b urned.
F ather admitted using drugs as late as April 2019, w hich was just before trial co mm enced. He said tha t his drug of choice was PCP. He said t h at he did not see Catherine until several months after she was burned, a t which time the wou nds were hea ling, so he did not t ake her to the doctor.

v . Mother ’ s test imony Mother testified, but the questioning was li m ited to th e identity of the eldest chi l dren ’ s deceased father, A dam Fiel ds.19

B. T HE TERMINATION D ECR EE S After trial, the trial court signed order s terminati ng Mother ’ s parental rights to all six children ba s ed on the predicate acts in subsec t i ons (D) (endangering condi tions) , (E) (endangering conduct ) , (N) (constructi ve abandonment) , (O) (failure to comply with cour t or der ) , and (P) (using controlled substances after completion of court

- or dered substance abu s e treatment) of Fa mily C ode section 161.001(b) (1) . The trial court ordered terminatio n of Father ’ s parental rights to Alexa under subsections ( D) (endangering conditi ons) , (E) (endanger ing conduct ) , and (O) ( failure to comply with court order) of Family Code se ct i on 161.001(b) (1)

. The trial court als o found t hat termination of their parental rights w as in the children ’ s b est interest under Family Code section 161.001(b)(2). This app eal followed. Because there are two termination orders , we first address the issu es in 2018 case involv ing th e Mother, the Fa t he r, and Alexa. The n, we will address the issues in t he 2017 case involving Mother and her five eldest children.20 II. CAUSE NO. 201 8
- 59296 A. SUFFI CIENCY OF TH E EVIDEN CE 4
In issue one thr ough four of his appeal , Father a rgues th at the re is legally

an d f actually insufficient evidence supporting the trial court ’ s findings that he committed the predicate ac ts under subsect i on 161.001(b)(1)(D) , ( E) , and (O) and that termina tion of his parental rights is in Alexa ’ s bes t inter e sts. See T EX
. F AM
. C ODE §§ 161 .00 1(b)(1)(D), (E), (O), 161.001(b)(2). In issues four, five, and six of her appeal s , Mother raises the sa me c hal lenges

. 1 . S t andard of Review
Prote ction of the best interest of the child is the primary focus of the termin ation pr o ceeding in th e trial court and our a ppellate review. See In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003). A parent ’ s rights to the “compani ons hip, care,

c u stody, and management” of his or her child is a c onstitutional interest “far more precious than any prop e rty rig ht.” S antosky v. Kra mer , 455 U.S. 745, 758

– 59 (1982); see In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly

4 When a party presents multiple grou nds for reversal, an appellate court should first a ddress those issues that would affor d the party the greatest relief. Bradley ’ s Elec., Inc. v. Cigna Lloyds Ins. Co

. , 995 S.W.2d 675, 677 (Tex. 1999). Because legally i nsufficie nt evidence requires a rendi tion, we ad dress t he part ies ’ sufficiency issues fi rst

.21

scr utinize term i nation proceedings and strictly construe the invo luntary termination statutes in favor of the pa rent. Ho l ick v. Smith , 685 S.W.2d 18 , 2 0 (Tex. 1985). In a case to terminate parental rights under Texas Family Code section 161.001, the Depart men t must estab l ish, by clear and conv incing evidence, that (1)
t he parent committed one or more of the enumerat ed acts o r omiss ions j ustifying term ina tion and (2) termination is in the best interest of the child. T EX
. F AM
. C ODE § 161.001(b). Clear and con vin cing evidenc e is “the measure or de gree of proof that will pro duce in the mind of the trier of fact a firm be lief or c onvicti on

as to the truth o f t he allegations sought to be established.” Id. § 101.007; In re J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002). On ly one predicat e finding under section 161.001(b)(1) is necessary to support a judgment of termination when ther e is als o a find ing t h at termination is in the child ’ s best interest. In re A.V. , 113 S.W.3d at 362. When reviewing the legal sufficiency of the ev idence in a c ase involving terminat ion of parental rights , we determine whether the evidence is such that a f

actfinde r could reaso n ably form a fi rm belief or conviction that there existed grounds for termination under section 161.001(b)(1) and that term ina tion was in t he best interest of th e child. See T EX
. F AM
. C ODE § 161.001(b)(1), (2); In re J.F.C. , 96 S.W.3d at 266. In doing so, w e examine all the

ev idence in the light most favorable to the finding, assuming the “factfinder22

resolved disputed facts in favor of its finding if a reasonabl e factfinder could do so.” I d. We must also disregard all evidence that the fact fi n der could hav e

reas onably dis b elieved or found to be incredible. Id. When conducting a factual sufficiency review, we consider and weig h a ll the evide n ce including disputed or conflicting evidence. In re J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009). “If, in li g ht of the ent ire re cord, the d isputed evidence that a reasonable factfinder could not have credited in favor of the finding is so signi fic ant that a f

a ctfinder could not rea sonably have formed a firm b elief or conviction, then the evidence is factually in s ufficient.” I d. (qu oting In r e J.F.C. , 96 S.W.3d at 266). We give due deference to the factfinder ’ s findings , and we cannot substitute o ur own judgment for that of the factfi nder. In re H.R.M. , 209 S.W. 3d 105, 108 (Tex. 2006). 2 . Section s 161.001(b)(1) ( D ), (E)
In his se cond i ssue, Fat her argues that there is legally and factually insufficient evidence that he committed a predicate act under either subsec t ion 161.001(b)(1) ( D) or (E). In her fourth issue , Mother raises the same argument.

a . Applicable Law Sub section 161.0 01 (b) ( 1) ( D ) r eq uir es the trial court to find by clear and convinci ng evidence that the parent has “ knowingly placed or know ingly allowed
t he child to remain in c onditions or surroundings which endanger the physical or23

emotional well

- being o f t he child. ” T E X
. F AM
. C ODE § 161 .001(b)(1)( D ). Subsection 161.001 (b) (1) (E) r equires the trial court to find by clear and convinci ng evidence that the p a rent has “engaged in co nduct or knowingly placed the child wit h persons who engaged in conduct which e nda ngers the phy sical or emotio nal well

- being of the child[.]” Id. § 161.001(b)(1)(E). Subsections ( D ) and (E) differ in that (D) requires a s h owing that the environm ent or conditions in which the child is placed endangered the child ’ s physical or emotional wel l

- bein g, while sub section (E) requ ires that the cause of the endangerment be the parent ’ s conduct alone , as evidence by either the parent ’ s actions or omissions. Id. § 161.001 (b)(1)(D), (E). However, inappropriate, abus ive, or u nla wful conduct by per sons who liv e in the child ’ s ho me or with whom the child is compelled to associate on a regular basis in his or h er home is part of the “ conditions or surr oundin gs ” of the child ’ s h ome under section ( D ). In re B.R ., 01

- 13

- 00023

- CV, 20 1 3 WL 3243391, a t *5 ( Tex. App.

— Ho uston [1st Dist.] J une 25, 2013, no pet.) ( mem. op.)

. Thus, even though sub section ( D) focus es on the child ’ s living environment , “ parental conduct may produce an endangering env ironment. ” Id. “ Because subsections D and E both

conc ern endangerment and t he evidence on each ma y overlap in some resp ects, we address both of these predicate findings together. ” In re S.R. , 452 S.W.3d 35 1 , 3 59

– 60 (Tex. App.

— Hou ston [14th Dist.] 2014, pe t. denied).24

As used in section 161.001, “ ‘en danger’ m ean s more than a threa t of metaphy sical inju ry or the possible ill effects of a less

- than

- ideal family environment.” Tex. Dep ’ t of Human Servs. v. Boyd , 7 27 S.W.2d 531, 533 (Tex

. 1987). In this c ontext, endanger means to expose a child to loss or injury or to jeopardize a child ’ s emotional or physic al well

- being. Id. ; see In re M.C

. , 917 S.W.2d 268, 269 (Tex. 1996). The Departme nt does not need to establis h that a parent intended to endanger a child to su pport termination based on endangerment

. See In re M. C. , 917 S.W.2d a t 270. Nor is it n ecess ary t o establish that the parent ’ s conduct was directed at the child or caused actual h arm ; rather, it is sufficie n t if the parent ’ s condu ct endangers the child ’ s w ell

- being. See Boyd , 727 S.W.2d at 53 4 ; Walk er v. Tex

. D ep't of Fam. & Prot ective Servs

. , 31 2 S.W .3d 608, 616

– 17 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). Danger to a child ’ s w ell

- being may be inferre d from parental miscondu ct. Boyd , 727 S.W.2d at 53 3. “As a general rule, conduct that subjects a child to a life of uncertain ty and insta bilit y endangers the physical and emotional well

- being of a child.” In re R.W. , 129 S.W.3d 7 32, 739 (Tex. App.

— Fort Wor t h 2004, pet. denied). A parent ’ s past endangerin g conduct may support an inference that pas t conduct may recur and further jeopardize t he chi l d ’ s present or future physical or emotional well

- being. See id.25

T he court ’ s endangermen t analysis also includes c onsideration of a paren t ’ s criminal record and ho w repeated criminal activity adds instabili ty to the chi ld ’ s life with repe ated parenta l inca r ceration and separation. See Boyd , 727 S.W.2d at 533 (stating that “imprisonment is certainly a factor to be considered by the trial court on the issue of end angerment”). While “mere imprisonment will not, stand ing alone, consti tute engaging in conduc t whi ch endangers the emotional or physical well

- being of a child,” “if the evidence, in cluding the imprisonment, shows a course of condu ct which has the effect of endangering the physical or emotional well

- being of the child, a find ing [ under Subsec tion] (E) i s supportable.” Id

. at 533

– 34 ; see In re V.V. , 349 S.W.3d 548, 55 5 (Tex. App.

— Houston [1st Dist.] 2010, pet. denied ) (en banc) (affirming t ermination of father ’ s par ental rights for endan gering conduct, noting his “ex ten sive cr iminal histo ry,” repeate d “c riminal conduct leading to incarceration before and after the child ’ s birth,” “life of crime” that included four fe l onies as well as “assau lt and other crimes agains t the person,” “no effo rt to care for his daughter wh en not inc arcerated,” and “irrespo nsib le choices that deprived this child of a parent”).

b . Analysis as to F ather Father argues that his criminal history and multiple incar cerat ions did not

en danger Alex a . He points out that all incarcerations o cc urred b efor e Alexa ’ s birth and that he had not incurred any new criminal c harges since.26

While endangerment often involves physical endangerment, the statute does
not r equire that conduc t be directed at a child o r that the child actually suffer injury; rather, the spe cific d anger to the child’s wel l

- be ing may be inferred from the parent’s misconduct alone. Boyd , 727 S.W.2d at 533 ; In re R.W. , 12 9 S.W.3d 732, 738

– 39 (Tex. App.

— Fort Worth 2004, pet. denied). A parent’s cond uct that

su bjects a chi ld to a life of uncertainty and instability endangers the ch ild’s physical and emotional well

- being. In re F.E.N ., 542 S.W.3d 752, 7 64 (T ex. App.

— Houston [ 14th Dist.] 2018, no pet.) ; In re A.L.H ., 515 S.W.3d at 92. Among the types of act ions or omissions c onstituting evidence meeting this standard are criminal acti vity, convictions, and incarceration. See In re V.V. , 349 S.W.3d 548, 5 5 4 (Te x. App.

— Houston [1 st Dist.] 2010, pet. denie d). Evidence of criminal conduct, convictions, impri sonm ent, an d their effe cts on a par ent’s life and ability to parent, may establish an endangering course of conduct. In re S.M. , 389 S.W.3d 483, 492 (Tex. App.

— El Paso 2012, no p et.). Routinely subjecting children to the probability that they will be left alon e becau se their par ent is in ja il endangers children’s physical and emotional w ell

- being. See Walker , 31 2 S.W. 3d at 617

. Imprisonment alone is not an enda nger ing cou rse of condu ct but is a fact properly considered on the endangerment issue. Boyd , 727 S.W.2d at 533

– 34. The record contains evidence of 20 crim i nal c onvictions, for wh ich Father has been senten ced to varying terms of confinement. His criminal r ecor d began in27

2005 ; hi s most recen t conviction was in 2018, a few months before the birth of his youngest child, Alexa

. The record shows that , n ot on ly was he confined when Alexa w as born and when Catherine and Alexa were, separately, removed from Mother ’ s care , Fat h er testifie d that he was confined when Cat herine was burned. Fathe r has been sentenced to a period of confinement at least once, every year since 2005, except for 2007, when he was alre a dy in jail , and in 2010, just after completing a s entence that began in 2009. Hi s convictions include theft, t hree unlawful

- weapons c onvictions, five drug

- possession convictions, two evading

arrest convictions, burglary, two trespass conv ictions, two c r iminal misc hief convict ions, and two unauthorized

- use - of

- a - vehicle char ges. 5
More importantly, however, Father h as two convictions for assault of a family member. His second family

- violence conviction was against Mother, and , at trial , Fat her admitted ass a ulting Mothe r. Domestic violence and a propensity for violence are li kewise evide nce of endangerment. “Do mestic violence, want of self

c ontrol, and propensity for violence may be considered as evidence of endangerment.” In re J.I.T.P. , 99 S.W.3d 841, 845 ( Tex. App.

— Ho uston [14th

5 Father argues that his criminal convicti ons and incar cerations occurred befor e Alex a was born. However, courts may look to evidence of parental conduct both befo re and af

ter a child’s birth and be fo re and after a c hild ’s removal f rom the home to d etermine whether termi nation is appropriate. See In re J.O.A ., 283 S.W.3d 336, 345 (Tex. 2009) (ci ting In re M.N.G. , 147 S.W.3d 521, 536 (Tex. App.

— Fort Worth 2004, pet. denied)); Walk er v. Tex . Dep’t of F am. And Protecti ve Servs ., 312 S .W.3 d 608, 617 ( Tex. App.

— Houston [1st Dist.] 2009, pet . denied) (explaining that relevant conduct may occur either b efore or after child ’ s removal from home).28

Dist.] 2003, no pet.); ac cord S.R ., 452 S.W.3 d at 361. Vi olence does not have to be dir ected toward the child or result in a final conviction

— “Texas courts routinely consider evidence of parent

- on - parent physical ab use in terminati o n cases with out specifi cally requiring evidence t hat the conduct resu lted in a cr iminal conviction.”
In r e V.V. , 349 S.W.3d at 556. “Domest ic vio lence, want of self

- contr ol, and propensity for violence may be considered as evidence of enda ngerment.” In re
J.I.T.P ., 99 S.W.3d at 845 ; accord S.R ., 452 S.W.3d at 361. Parents’ criminal conduct that exposes them to the possibilit y of incarceration can n egatively impact a child’s living environment and emoti ona l well

- being. In re S.M. L , 171 S.W.3 d 472, 479 (Tex. Ap p.

— Houston [14th Dist.] 2005, no pet.). Viewing the evidence in the light most favorable to the trial court ’ s finding,
p articularly Father ’ s le ngthy criminal history, re peated incarcerations, and d omes tic

- violence convictions , we c onclud e that the trial c o urt could have formed a firm belief or conviction that Father had knowingly allowed Alexa to remain in conditions which end angered her physical or emotional well

- being a nd that he had engaged in conduc t which endangered Alexa ’ s phy sical o r emotional w ell

- b eing in violation of sub section s 161.001(b)(1) (D), and (E). See In re J. O.A. , 283 S.W.3d at 344 (citing In re J.F.C. , 96 S. W .3d at 266). Further, i n view of the entire recor d, we conclude that the disp uted evidence is not so sign if icant a s to prevent the trial

cou rt f rom forming a firm belief or conviction that Father had knowingly allowed29

Alexa to remain in conditions which e n dangered her physical o r emotional well

being an d that he had eng a ged in cond uct which endangered Alexa ’ s p hysica l or emotional well

- be ing in violation of sub section s 161.001(b)(1) (D ) and (E). See In

re J.O.A. , 283 S.W.3d at 345 (citing In re J.F.C. , 96 S .W.3d at 266).
Because we conclude that the evidence i s legally and factually suffi cient to support the trial cou r t ’ s fi n ding s under section s 1 61.001(b)(1) (D) and (E), we do not address Father ’ s arguments that the evidence is legally and factually insufficient t o s uppo rt the trial cour t ’ s finding s under subsec tion ( O). See In re P.W. , 579 S.W.3d 713, 728 (Tex. App.

— Ho uston [ 14 th Dist.] 2019, no p et.).

c . Analysis as to Mother Mother argues that the evidence is legally and factually insufficient to supports the t r i al court ’s finding that she committed a predicat e act under subsections ( D), or (E), or (O) of Article 15 1. 00 1(b)(1)

. 6

6 We note t hat the trial court’s judgment also foun d that Mothe r committed pred icate acts under sub sections (N) and (P), and Mot her does not challenge those findings on appeal

. Usually , a n appellant must challenge all in dependent bases or grounds that fully support a judgment or appealable order. See Black stone Med., Inc. v. Phoenix Surgicals , L.L.C ., 4 70 S.W.3d 63 6, 650 (Tex. App.

— Dallas 2015, no pet.) ; Britton v. Tex. Dep ’ t of Crimina l Justice , 95 S.W.3d 676, 681 (Te x. App.

— Houston [1st Dist.] 2002, no pet.); se e also In re N.L.D. , 412 S.W.3d 810, 818 (Tex. App.

— Texa rkana 2013, n o pet.) (holding t h at when pa rent failed to ch allenge on appeal gr ound for termination of pa rental r ights, court could affirm on unchallenged ground without examining suf ficiency of evidence to support challenge d grounds) . However, when ra ise d on appeal, app e llate court s must review chal lenges to subsections ( D ) and (E) because of the potential collateral consequences of a findi ng under those subse ctions. See In re N.G ., 5 77 S.W.3d 230, 235 (Tex. 2019).30

A parent’s cont inuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child’s w ell

- being. In re J.O.A. , 283 S.W.3d at 345 ; see In re L.G.R., 4 98 S.W.3d 19 5, 204 (Tex. App.

— Ho us ton [14th Dist.] 2016, pet. d enied). A parent’s drug use exposes the child to the possibility the parent may be impaired or imprisoned and, thus, be un a ble to take care of the child. Walker , 31 2 S.W.3d at 617

– 18 . The fact finder may give “great weight” to the “signi ficant factor” of drug

- related conduct. L.G.R

. , 498 S.W.3d at 204.
A mother’s use of drugs dur ing pregnancy may be cond uct that end angers the child. In r e A.S ., 261 S.W.3d 76, 86 (Te x. App.

— Houston [14th Dist.] 2008, pet. denied); In re J.T.G ., 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.)

. However, termination i s not automatic in such a case. See A.S ., 261 S.W. 3d at 86 (“W hile unquestionably, a n exercise of poor judgment, Veronica ’ s use of marijuana on a single occasion, standing alone, does not rise to the level of a conscious course of c o nduct.”). This C ourt and others have held that a parent’s de cision to engage in illeg al drug use during t he pendency of a termination suit, when the parent is at risk of losing the child, may support a finding to a clear and convincing degree that the parent engaged i n conduct that endanger ed the child ’ s physical o r emotional well

being. S ee In re A.M ., 495 S .W.3d 573, 5 80 (Tex. App.

— Houston [1st Dist .] 2016,31

pet. denied); In re A.H.A ., No. 14

- 12

- 00022

- CV, 2012 WL 1474414, at *7 (Tex. App.

— Houston [14th Dist.] Apr. 26 , 2012, no pet.) (mem. o p.); In re M.E.

- M.N., 342 S.W.3d 254, 263 (Tex. Ap p.

— Fort Wort h 2011, pet. denied)

. Here, Mother has demonstrated no ability to become and remain consistently drug

- free for an y period of time. Every drug test she took from the time t he Department beca me in volved with her older chi ldren up u ntil the time o f trial was positive for illegal d rugs. The drug test evidence in this case showed that Mother first tested positive for ill egal substances on July 7, 2017, three mo nths before the D epa r tment sought
to rem ove the children from her care. At the time, the test showed that she was a chronic cocaine user, which meant th at she used cocaine daily. On February 6,
2 018, mother test ed positive for marihuana at a low leve l, methamphetamine,

c o caine at a leve l indica ting chronic usage, P CP a t a leve l indicating usag e approximately 3 ti mes per week, plus chronic exposure to mari huana as well as low usage. On March 27, 2018, Mother again t ested positive for cocaine, P CP, marihuana, and codeine. There was testimony tha t , becaus e the levels of drugs

were lower in th is test than the previo us test and th e two test s were taken so clos e together, the results of the March 2018 might be showing re sidual usage. Also, the

co deine could be explaine d by a p r escription, but there i s no prescription or evid ence thereof in evidence

. On July 10, 201 8, just six weeks before Alexa was32

born, Mother tested positive once again for cocaine. On September 11, 201 8, shortly after Alexa ’ s birth, Mother again tested positi v e for cocaine. On Oct ob er 23, 2018, Mother teste d positive for a low amo unt of alcohol , meth amphetamine,

c ocaine , and PCP. This test ind icated that sometime be tween July 2018 and October 2018, Mot her again star ted using methamphetamine and PCP, which had

n ot been de tected in her system since February of that year. On No vember 27, 2018 , Mother tes ted positive f or cocaine, and , on February 20 , 2019, she tested positive for cocaine, as well as daily e xpos ure and a low in gestion of marihuana. Mother ’ s contin ued , consistent u se of drug s, even after the Departm ent filed suit to termin ate her parental rig hts , is eviden ce of endangerment and that li ving in her househo ld created an en dangering condition

. Se e In re A.M. , 495 S.W.3d at 580

. Additionally, n eglect of a child ’ s medical needs e ndangers the child. Smith v. Tex. Dep ’ t of Fam. A nd Protective Servs. , No . 01

- 09

- 00 173

- CV. 2009 WL 4359267 , at *7 (Tex. App.

— Houston [1st Dist.] Dec. 3, 2009, no pet.); In re T.M.T. , No. 14

- 18

- 00442

- CV, 2018 WL 6053667, at *11 (Tex. App.

— H o uston [14th Dist.] Nov. 20, 2018, no pet.) (mem. op.). A parent ’ s failur e to provide appropriate medical c are for a child may constitute endangering conduct

. S ee In re H.M.O.L. , No. 01

- 17

- 00775

- CV, 2018 WL 1659981 , at *13 (Tex. App.

— Houston [1st Dist.] Ap r . 6, 2018, pet. denied) (mem. op.).33

Here, there was evidence that, after C atherine wa s burned by spilled

n oodles, Mother refused to seek medical care for her

. She told her other children that , if she did so, the doctor would cut off Catherine ’ s legs. The resu lting scars on Cath erine ’ s torso, groin, and upper legs were “ knotte d ” and “ snarl ed ” and would require skin grafts in the f uture. E ven though the child Mother medically neglected is n ot Alexa, the child involved in this proceeding, it is not necessary that the conduct be dire cted at the child that is the sub ject of the su it or that th at the child actually suffer injury

. See Boyd , 727 S.W.2d at 533

. Viewing the evidence i n the light mo st favorable to the trial court ’ s finding, particularly M other ’ s repeated failure of drug tests and medical n eglect of Catherine , we conclude that the trial court could h ave formed a firm belief or conviction that Mother had knowingly allowed Alexa to rema in in conditions which endangered her physical or emotion al well

- being and that s h e had engaged in conduct wh ich endangered Alexa’ s physical or emotional well

- being in vi olation of subsections 161.001(b)(1)(D), (E). See In re J.O.A. , 283 S.W.3d at 344 (cit ing
In re J.F.C. , 96 S.W.3d at 26 6 ). Further, in view of the entire record, we con clude that the disputed evi dence is not so signi ficant as to prevent the trial court fro m forming a firm belief or conviction that Mother ha d knowingly allowed Alexa to remai n i n conditions which endangered h er physical or emotiona l well

- being, and that s he had engaged in conduct wh ich endangered Alexa’ s physical or emotional34

well

- being in vio lation of subsections 161.001(b)(1)(D) and (E). See In re J.O.A. , 283 S.W.3d at 345 ( citi ng In re J.F.C. , 96 S.W.3d at 2 66). Because we conclud e that the evidence is legally and factuall y sufficient to support the trial court’s finding s under subsections (D) an d (E), we do not address Mother ’s arguments that the evidence is legally and fac tually ins ufficient to support the tria l court’s findings under subsection (O). See In r e P.W. , 579 S .W.3d
at 72 8

. 3 . Best Inte rest
I n his fourth issue, Father argues that the evidence is legally and factually insuffi cient to support the trial co u rt ’ s find ing that termi nation of his parental ri ghts is in Al exa ’ s be st in terests. In her fi ft h and six issue s, Mother raises the same claims

.

a . Applicable Law There is a strong presumption that the best interest of a child is served by keeping the chil d wit h a p arent. In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006); In re D. R.A. , 37 4 S.W.3d 528, 533 (Tex. App.

— Houston [14th Dist.] 2012, n o pet.). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child ’ s best int e rest

. T EX
. F AM
. C ODE § 263.307(a). Courts may co nsider the fo llowing non - e xcl usive factors in r eviewing the sufficiency of the evidenc e to sup port the best interest finding: the desires of the35

child; the present and future phy sical and emotional needs of t he c hild; the present and future emotional and p hysical dange r to the chil d; the parental abili ties of the persons seeking custody; th e progra ms available to assist those persons seeking custody in promoting the best interest of the child; the plans for t h e ch ild b y the indivi duals or agency seeking cus tody; the sta bility o f the ho me or proposed pla cement; acts or omissions of the parent which m ay indicate the existing parent

child relationship is not appropriate; and any excus e for the parent ’ s acts or

om i ssio ns. H

olley v. Ada ms , 544 S.W.2d 367, 371

– 72 (Tex. 1976). This lis t of fac tors is not exhaus tive, however, and evidence is not requ ired on all the factors to support a finding that terminating a parent ’ s rights is in the ch ild ’ s best interest. Id. ; In r e D. R.A. , 374 S.W.3d at 533. In addition, the Te xas Family Co de sets out f act ors to be consider ed in evaluating the parent ’ s willingne ss and a bility to provide the child with a safe environment, including: the child ’ s age and physical and mental vulnerabi l itie s; wh ether there is a history of abusive or assaultive co nduct by the chi ld ’ s family or oth ers who have access to the child ’ s home ; the wi llingness and ability of the child ’ s family to seek out, accept, and complete counse ling services and to cooperat e wit h and facilitate an appropriate agency ’ s clo se supervisio n; the

w illin gne ss and ability of the child ’ s family to effect positive e nvironme ntal and personal changes within a reasonable period of time; whether the child ’ s fa mily36

demonstrates adequate pa r enti ng sk ills, includ ing providing the child wit h minimally a dequate healt h a nd nutritional car e, a safe physical home environment,

an d an und erstanding of the child ’ s needs and capabilities; and whether an adequate social sup port system consisting of an e xten ded f amily and fr iends is available to the c hild. T EX
. F A M
. C ODE § 263 .30 7(b); In re R.R. , 209 S.W.3d at 116. Courts may consider circumst antial evidence, subjective factors, and the totality of the evidence as well as the direct evidence when conduct i ng t he be st interest analysis. See In re E.D. , 4 19 S.W.3d 615 , 620 (T ex. A pp.

— San Antonio 2013, pet. denied). Evidence supporting term ination under one of the predicate grounds listed in section 161.001(b)(1) can also be consi dered in support of a finding that term ination is i n the best interest of the child. See In re C.H. , 89 S.W .3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest). A parent ’ s past conduct is probative of h is future conduct when evalua t ing the c hild ’ s best interest. See In re O.N.H. , 401 S.W.3d 681, 684 (Tex. App.

— San Antonio 2013, no pet. ) ; s ee also Jordan , 325 S.W.3d at 724. A factfinder may also infer th at past conduct endangering the well

being of a child may recur in the future if the child i s returned to the parent when

asse ssing the best in terest of the child. In re D.M. , 452 S.W .3d 462, 471 (Te x.37

App.

— San Antoni o 2014, no pet.) (citing In re B.K.D. , 131 S.W. 3d 10, 17 (Tex. App.

— Fort Worth 2004, pet. denied)).

b . Analysis as to Father Regar ding the child ’ s desires, Alex a , an infant at the t i me of trial, was too
young to express he r desires . However, she had been placed in a foster home, in which she w as doing well, and her needs were being met. In fact, her foster placement was a potential ad optive placement. The trial c o urt could infer from this evidenc e that the chil d wanted to remain with her foster family

. See In re J.D. , 436 S.W.3d 105, 118 (Tex . App.

— Houston [14th Dist.] 2014, no pet.) (“When children are too young to express their des ires, the fact finder may co n sider that the childr en have bo nded with the fos ter family, are well

- cared for by them, and have spent minimal time with a parent.”).
In cont rast, Father was confined in ja il when Alexa was born in August 2018 , and he was not released until No vember of 2 0 18. Father did not me et Alexa until February o r March of 2019

. Even though there was evidence th at Father visited Alexa regularly the reafte r and had “ started to build a bond ” with her, the trial court could have concluded tha t this ne wly developed bond w a s not outweig hed by t he consistent, positive pre sence that Alex a ’ s foster family provided.38

Regard ing Alexa ’ s emotional and physical ne eds now and in the future , and the possible emotion al and physical danger to her now and in the fut ure, the trial court ha d evidence of Father ’ s repeate d crimi nal activity and re sulting incarcerations. See g enerally In r e O.N.H. , 401 S.W.3d at 684 (st ating that past conduct is probative of future conduct when evaluating child ’ s best interest ). T he trial court could have conc l uded that Father ’ s pa ttern of repeat ed incarcera tions show s tha t he “ was not willing and able to prov ide the chi ld with a safe environ ment

— a pri mary consideration in determining the child ’ s best interest. ”
See In re A.C. , 39 4 S.W.3d 633, 642 (Tex. App.

— H o uston [1st Dist.] 201 2, no pet.). I ndeed, the e vidence shows t hat Father was incarcerated both w hen h is eldest daughter, Catherine, w as burned and suffered medical neglect by M other, and when Alexa was born. There was also evidence that Father used drug s , even when his paren tal rights were in jeopardy

. Additionally , Father had admitted that termina tion of parental rights was in the b est interest of his older daughter, Catherine , and he voluntarily relinquished his parental rights to her. F ather admitted to , an d was convicted of, family vio le nce agains t Mother. See Walker , 312 S.W.3d at 619 (conside ring father’s past vio lence in best

- interest assessment and noting that evidence of endangering conduct under Subsection (E) i s also probative o f best

- interest analy sis)

. Finally, Father continu ed using ill egal drugs ,
eve n just a short time before a trial was set to det ermine his parental rights.39

Regarding parental abilit ies, Father had shown no parental abilitie s. He was

never a stable factor in eith er of his children’s liv es. And, although he indicated
t hat he would li ke to pay child support for Alexa , there is no thi n g in the record to sh ow that he had ever done so. Father also admitted that termination would be in the b est in terest of Catherine, t hus indicati ng h is unwillingness to be a pare nt to at least one o f his c hildren

. Fat her had also not comp leted the parenting classes required by his f

amily service plan. In contras t, Alexa was happy, healthy, and thriving in her fost er home , and her foster mother hoped to adopt her, and perhaps Cathe rine , too

. Regarding plans for the chil d , Father offered none other than his willingness
to visit Alexa and p a y child support. He did not provide ev idence of a home or a plan to pro vide A lexa with a home. In contrast, the Department testi fied about

sever al potential permanent home s for Alexa. First, the foster mother was will ing to adopt A lexa. Sec on d, Daniel l e Green, who se childr en shared a father with two of Alexa ’ s siblings, testifie d that she was willing to consider adopting all six

c hil dren. And, finally, the Department had located a f amily that was willing to adopt all six siblings if the parents ’ paren t al rights were termin ated. The trial court could infer fr om this evidence that the Departmen t ’ s plans were more likely to ultimately t o provide Al exa with a stable, safe, an d permanent h ome, which is a40

paramount consider ation in a cou rt ’ s best

- interest de t ermination. See T EX
. F AM
. C O DE § 263.307(a); see also In re K.C. , 219 S.W.3d a t 931. Viewing the evidence in the ligh t most favorable to the trial court ’ s finding, we conclu de that the trial court could have forme d a firm belief or co nviction that termina t ion of Father ’ s paren tal rights is in Ale xa ’ s best interests. See In re J.O .A. , 283 S.W.3d at 3 44 (citing In re J.F.C. , 96 S.W.3d at 2 66 ). Further , in view of the entire rec ord, we conc lude that the disputed evide nce is not so signifi cant as to prevent th e trial court from for ming a firm belief o r conviction that termination of F ath ers parental righ ts is in Alexa ’ s best interests. See In re J.O.A. , 283 S.W.3d at 345 (citing I n re J.F.C. , 96 S.W.3d at 266). Accordin gly, we hold that leg ally and factually su f ficient evidence supp orts the trial court ’ s best interest finding.
We ove rr ule Father ’ s fourth issue.

c . Analysis as to Mother Regardi ng the child ’s desires, Alexa, an infan t at the tim e of trial, was too young to express her desires. However, she had be e n placed in a foster home, in which she was doing well, and her needs were bei ng met. In fact, her foster placement was a potential ado ptive place ment. The trial court could i nfer from this evidence that the child wanted to remain wit h her foster family. S e e In re J.D ., 436 S.W .3d at 118 (“When children are too young to express thei r desire s, the fact41

finder may consider that the children have bonde d with the foster family, a re well

care d for by them, and hav e spent minimal time w ith a parent.”). In contrast, Mother lost custody of her older children before Alexa was born and Alexa , too, wa s removed shortly after her birt h. Although Moth er had bon ded with her older childre n before they were removed and c onti n ued to visit Alexa

ev en after she was removed , the trial court could have concluded that her b ond with Alexa was lacking beca use Alexa was re m oved from her custody as a n i nfant. Regar ding Alexa ’s emotional and physical n eeds now and in the future and the p ossible emotional and physical danger to her now and in the future, the trial court had evidence of Mother ’ s continuing drug abus e . S ee generally In re O.N.H. , 401 S.W.3d at 684 (sta ting that past conduct is probative o f future con duct when evaluating ch i ld's best interest). The trial court could have concluded that Mother ’s pattern of drug abuse shows that s he “was not willing and abl e to provide the child with a safe environment

— a primary co nsideration in determining the child’s best interest.” See In re A.C. , 394 S.W.3d at 642

. The evidence shows that Mother tested positive for illega l drugs before her children were removed from her care and that she continued to test posit ive for drug s up to the time of tri a l , even when her pare ntal rights were in jeopardy

. In deed , s he u sed drugs while pregnant with Alexa. Mother also demonstrated an inab ility to provide for her children ’ s42

emotional and physical needs, and indeed, subjecte d Catherine to danger when she ref u sed to seek medical t reatment for Catherine ’ s burns. Regarding parental abilities, Mother ’ s parental skills were demonstrably lackin g, a s indicated by her refus al to see k medical ca re for her severely burne d child. Moth er , in fact, was willing to turn o v er her parental right s to Danielle Green, a woman whom she did not know , before her children were removed. There

was also evidence t hat Mother hid the children from the De partment , kee ping the

e ldest ones out of school, e ven though th ey were school

- aged. T h e trial court could

a lso have concluded that Mother ’ s parenting skills were compromised by her continuing drug abuse. There was eviden ce that she left the children with a ba bysitter i n an ap art ment with no heat or water in January. B ecause Mother ’ s eldest children were concern ed that, if placed in a home with their sib lings, they would become caregivers again, the trial court could have concluded that , i n the past, Moth er had left the younger ch ildren in the care of the o lder children

. Regarding plans for the child, Mother off ered none , though there was evidence that she would consider relinquishing custody of all six children to Daniell e Green , a woman whom she did not kn ow . Mo ther did not provide

e vidence of a home or a plan to provide A lexa or the other children with a home. In contrast, the Department te s tified about several potential permanent homes for Alexa. First, the foster mother was willing to adopt Alexa. Seco nd, Danielle43

Gree n , whose ch il dren shared a father with two of Alexa ’s siblings, testified that she was willing to consider adopting all s i x children. And, fin ally, the Department had located a family that was willing to adopt all six siblings if the pare nts’ parental rig h ts were te rm inated. The trial court c ould infer fr om this evidence that the Department’s plans were more likely to ultim a tely provide the children with a stable, safe, and permanent home, which is a paramount consideration in a court’s be st

- interest deter mina tion. S ee T EX
. F AM
. C ODE § 263.307 (a); see also In re K.C. , 219 S.W.3d at 931. Vi ewing the evidence in the light most fav o rable to the trial co urt’s finding,

we conc lude that the trial court could ha ve formed a firm belief or convictio n that terminatio n of Mother ’s parental rights is in Al exa ’s best in terests. See In re J.O.A. , 283 S.W .3d at 344 (citing In re J.F.C. , 96 S.W. 3 d at 266). Further, i n view of the entire r ecord, we conclude that the disput ed evidence is not so significant as to prevent the t rial court from forming a fir m belief or conviction that termination of Mother ’ s paren tal rights is in Alexa ’s best interests

. See In re J.O.A. , 28 3 S.W.3d at 345 (citing In re J.F.C. , 96 S.W.3d at 266). Accordingly, we hold that legally a nd factually suff icie nt evid ence supports the trial cou rt ’ s best int erest finding. We overrule Mother ’ s fifth and sixth issue s .44

B. DENIAL OF RIGH T TO COUNSEL In issue three, Mother contends that she did not receive her statutorily protect ed assistance o f counsel at tr ial because he r retained counsel , Gary Sm otherman, II, did not appear on either day of trial

. We agree. As the Texas Supreme Court has recently stated, “ Parents face a comple x and nuanced family

- law system that is challenging to navigate w ithout the guid ance of cou nse l. ” In re B.C. , No. 19

- 306 ,
___ S.W.3d ___, 2019 WL 6972235 , a t * 4 (Tex. Dec. 20, 2019). “ Considering the importance of the fundamental ri ghts at issue, the Legislature has adopted i mportant safeguards in section s 107.013 and 263.0061 [of th e Family Co de ] to help en sure parents wi ll not be depr ived of their parental rights without due process of law. ” Id. Section 107.0 1 3 provides that the t rial court shall appoint an attorney to represent the interests of an indigent part in a termination

- o f

- parental

- ri ghts case filed by a govern mental entity. T EX
. F AM
. C ODE § 107.013(a)(1). In such a case, the trial court shall , at t h e parent ’ s first appe arance in court, inform the parent of the right to be represented by an attorney , and, if the parent i s indigent, t he right to have an attorne y appointed by the court. Id. § 107.013(a

- 1 )(1), (2). A parent is then require d to initia t e the indigency proce ss by filing an affidavi t of indigency, after which, the trial court determine s whethe r the parent is indigent an d entitled to appointed couns el. Id. § 107 .013(d)

.45

Section 263.00 61 provides: (a) At the status hearing under Subchapter C and at each permanenc y hearing under Subchapter D held after the date the court renders a temporary order ap pointing the dep artment as te mporary managing conservato r of a child, the court s hall inform each parent not represented by an attorney of: (1) the ri g ht to be represented by an attorney; and (2) if a parent is indigent and appears in opposition to the suit, the right to a cour t

- appointe d a ttorney. T EX
. F AM
. C ODE § 263.0061( a)(1) , (2).
In In re B.C ., the Texas Supreme Court addressed the protections pro v ided by thes e statute s. 2019 WL 6972235, at * 2

- 4. In that case, the mother , w ho appeared at her first hear ing without couns el, was ad mon ished regarding her right
t o counsel and told that , if she wa s i ndigent and wanted appointed counsel, she would have t o fill out “ some forms

. ” Id. at *1. She then appeared at ev ery permanency hearing thereafter, and proceeded to trial , w ithout c ounsel. I d. On appeal, she c laimed, among other th ings, that she was denied her statutory right to appointed counsel. I

d

. The supreme court f

irst noted that the trial court had proper ly admonished the mother at her initial appearance without cou nsel, an d that mot her had not filed an affida vit of indigen cy. Id. at *3. Thus, under existing case law, the mother was
not ent i tled to the appointme nt of counsel. Id. However, the supreme court further concluded that the mother ’ s “ failure to file an a ffidavit of indige nce is not46

dispositive beca use the trial court failed to properly admonish her as required by section 263.0061. ” Id. In so h olding, the supreme court stated, “ At the status hearing and at each permanency hearing after the Dep artm ent is a ppointed temporary managing conservat or, trial cour ts must inform unrepresented parents

a bout their right to le gal repres e ntation, including th e right to court

- appointed counsel. ” Id. Because the Mother had appeared unrepresented at the perman ency hearing before trial, and then proceeded to trial unrepres ented, at which time “ her relationship with her child was permanently s evered, ” the supreme court conclud ed that “ noncompliance with section 263.0061 was not harmless and reversal [was] require d. ” Id

. We be lieve that the hol ding of In re B.C. applies equall y to this case. The

rec ord shows that Mother was present with her at t orney at hearings on September 11, 2018, and on October 23, 2018. On February 19, 2019, ne ither Mother nor her
attor ney in th e 2018 c ase were present, a lthough he r attorne y in the 2017 case was present. The docket sheet notes that “ [a]ttorney representin g motion in the other action (2018 cause ), Mr. Smotherman, was noticed, but not present per department, mother not presen t

. ” On April 9, 2019, Smotherma n was again not pre sent, but Brown, Mother ’ s attorney in the 2017 cause , was. O n the date of the June 25 , 2019 trial setting, counsel for the Department stated on the record,

“ Your Honor, Mr. G ary Smot h erman is the attorney of record for the mother on the 2018

- 59296 cause. He has been noticed of this trial setting as he has47

f or every other setting. He did appear for the mother. And at the show cause he aring on September 11 th of 2018, and also Octo ber 23 rd of 2018, and he is not present. I asked mother e arlier in the day t o call him and ask him when he would be here. She ’ s not hear d from him is m y understanding. The trial court th en made no further inquiries of Mother, no r did it advise her of her r ight to have counsel present. Instead, the trial court stated, “ Okay, You may proceed

. ” Again, at the July 1, 2018 trial date , the D epartment ’ s counsel noted: I would just ask the Court to tak e judicial notice of our notice of resumption of recess trial setting that was file d on Thursday afternoon that notic es Gary Smotherman in the 201 8 cause. He is mother ’ s attorney of record . He ’ s been noticed. He is not present at this time. ” The trial court responded, “ The Court will take judicial notice of the
6 /27/2019 notice of re s umption of the recessed trial set ting as to Mr. Smot herman is on file[.] ” The trial court did not inquire of Mot her regarding Mr. Smotherman ’ s absence, no r did it ad monish Mother of her right to counsel. We hold that, as in B.C. , th e trial court failed t o comply with the protections
prov ided in section 263 .0061 by failing to properly admonish Mother , who was
unrepr esented at both t he February 2019 hearing , 7 the Ap ril 9, 2019 hearing , and the subsequent June a nd July 2019 trial date s , of her right to cou nse l. See B.C., 2009 6972235, at *3.

7 We acknowledge that the trial court could not have a dmonis hed Mother at the Februa ry 2019 hearing because she, too, was not presen t on that date.48

The Departme nt nevertheless argues that error, if any , was harm le ss beca use

“ K.H. fails to acknowledg e that both [t his case a nd the 2017 case ] were tried together and the same evidence and test i mony was adduced as t o b oth [,] ” and that

“ [h]er attorne y who represented h er in the case involving the five o lder children

was present at each trial proceeding and represented [Mother] th roughout the enti rety of each proceeding. ” However, Mother ’ s atto r ney in the 2017 case mad e it clear that he did not
repr esent Mother in the 2018 case, stating at t he June trial date, “ On [the 2017

ca se] I entered an appearance ; on the [2 018 case] I ’ m n ot the attorney of record. ” Again, at the Ju ly trial date, Mother ’ s attorney in the 2017 cas e appeared, stating,

“ My name i s Jimmie Brown. I represent [Mother] in the 2017 matter, not in the oth er matt er . . . . ” While the same evidence may have been pr esented in both the 2017 and 2018 cases, we cannot say , as a matter o f law, that different is sues could not have been raised in each case. Mr. B rown certainly made it clear to the t rial court tha t he wa s not responsible for the presentation o r defense of the 2018 case.
Becaus e , after her initial appearances with counsel, Mother appeared witho ut counsel at both hearings and at tr ial, and the trial court never again adm onished her of her right to counsel, w e susta in Mother ’ s third issue

.49

C. CONCLUSION IN CAUSE NO. 2018
- 59296 Having found the evidence legally and factuall y su f ficient to support the termination of Fathe r ’ s parental right s to Alexa under Fa mily Code § 161.001(b)(1)( D) and ( E ) and § 161.001 (b)( 2), we affirm the trial court ’ s Final Decree for Termination as to him. However, having overruled Mother ’ s suffic i ency cha llenge s , but havin g determined that Mother was not properly advised of her righ t to counsel under Family Code § 263.006 , we re verse the trial
court ’ s Final Decree for Termination as to her and remand the case for a new trial.
See B.C. , 2019 WL 69 7 2235, at *4. In light of our disposition o f M other ’ s third issue on appeal, we need no t address the remaining issues in this cause number , which wo uld grant her no more relief than that we hav e a lready afforded her

. III. CAUSE NO. 2017
- 65076 A . JURISDICTION In issue t wo, Mother contends that the trial court’s terminati on decree is void f or want of jurisdiction because the trial cou rt did not proceed to trial within the timetable set forth in Famil y Code section 263.401. See T EX
. F AM
. C ODE § 263.401

. We address this is s ue first be cause it raises an issue of subject

- matte r jurisdiction. Se e id. Regarding ti metables for commen cing t rial s in parental

- ter mination case s, the Family Code provides in relevant part:50

(a) Unless the court has commenced the trial on the merits or g r anted an ex tension under Subsection (b) or (b

- 1) on the first Monday af ter the first anniversary of the date the cou rt rendered a tempora ry order appointing the department as te mporary managing conservator, the court ’ s jurisdiction over the suit affectin g the parent

- child relationship filed by the departme nt that requests t e rmination of the parent

- child relationship or requests that the de partment be named conservator of the chi ld is terminated and the suit is automatically dismissed without a court order

. Not later than the 6 0 th day before the da y the sui t is suit is automa tically dismissed, the court shall notify all parties to the suit of the automatic dismissal date. (b) Unless the court has commen ced the trial on the merits, the court may not retain the suit on the court ’ s docke t after the time described by Subsection (a) u nless the court finds that extraordinary circ umstances necessitate the child remaining in the temporary ma naging conservatorship of the department and that continu ing the appointment o f the depart ment as temporary managing conservator is in the best in tere st of the child. If the court makes those fi ndings, the court may retain the suit on the court ’ s docket f

or a period not to exceed 180 days after the time descri bed by Subsection (a)

. . . . Id. § 263.401( a) , (b). The record shows th at the Department w as appointed Temporary Managing Conservator o f the children 8 on Oc tober 17, 2017 . Thus, under the statut e , the initial deadline for commen cement of trial was the first Monday after th e one - year

a nniversary of that date, October 22, 2018

.

8 The record shows that th e Department wa s not mad e T emporary Managing Conserv ator of the baby, Al exa, u ntil Septe mber 11, 2018, less than one ye ar before trial in 2019. Thus, this issue was not addressed in the 2018 cause number

.51

However, the rec ord shows that , on October 9, 201 8, while the trial court had juris diction, it signed an “ Order Retaining S uit o n Court ’ s Docket and Setting Hearing Dates. ” This order found that “ extr a ordinary c ircums tances necessitate the subject child remaining in the t emporary managing conservator ship of the
D epa rtment ” and exten ding the timetable until April 17, 2019, whi ch is wit hin the 180

- day extension period permitted by section 263.401(b). Neverth e less , Mother contends that the hearing on April 9, 2 019, which was with in the requisite timetable, was not a commenc ement of trial , but w as “ a strategy used by [the Department] to justify the failure to adhere to the dismissal deadline . . . . ” This Cou r t has considered wh at constitutes a trial “ commenceme nt ” for purposes of § 263.401

. See In re R.J. , Jr. , 579 S.W.3d 97 (Tex. App.

— Houston [1st Dist.] 2019, pet. deni ed) . In R.J. , Jr. , the case was cal led to trial, the parties made announcements, the witne s ses were sworn, several attor neys announced

“ ready, ” and t h en there was a discussion regarding a late

- filed interven tion. 579 S.W.3d at 109. The trial court then instructed th e Department to call its first witness, which it did. Id. The wit ness, the D e part ment ’ s caseworker, testified briefly before the trial court recesse d. Id. On appeal, the parents argued that t he trial did not comm ence on that date because the y were inst ructed that they did not need to be present; indeed, the intervenors were not i n co urt. Id. at 109

– 10 . This52

Court rej ected the pa rents ’ argument, and “ conclude[d] that the record contains sufficie nt information to est ablish that trial on the merits commence d on [that day]

. ” Id. at 110. In this case, the trial court called the case an d asked the attorneys to state their name and wh o they represented. The Cour t then consider ed several preliminary matters , including a motion to wit hdraw, the fact that the Departmen t had a pending motion to compel, and that Mother had apparently just fil ed a relinq u ishment of her rights to the childre n. Finally, the court consid ered the fact that t here was an allegation th at the Mother , Father, and one of the other father s had cl aim ed that they might be of Cherokee descent. The court and the atto rneys
p resent d isc u ssed wh ether there had been complian ce with the Indian Child Welf are Act of 1978 , which required notice to the tribe. The Department ’ s c ounsel stated : We have sent the n otices to the tribes in the Bureau of the Indian Affairs. I have the regi s tered mail receipts ret urns that show those wer e received on April 4 th

. My understanding of the Federal regulations is t he tribe [has] and the Burea u has a reasonable amount of time to reply. The regs say 15 days. So [,] I don ’ t believe that April 4 th g e ts us to 15 day s today.
* * * * I would suggest to the Court or ask for leave of the Court to commence trial today as to [Fat her ’ s] matter and then

— as h e ’ s waiving his concern [about com pliance with the ICWA as to him only] and then come back at a time ve ry shortly from now in order to give the tribes time to let us know.53

I don ’ t

— bec ause we ’ ve done our diligence, we ’ ve talked t o the relatives in these ca ses when we can; we ’ ve not found a ny evidence that they ’ re actually registered . I don ’ t anticipate thi s will be a pro b le m, b u t I think we have to wait.
A ll attorneys present agreed t hat Father could testify because he was waivi ng his claim of Cherokee he ri tage, but that proceeding fu rthe r would be problematic. Thereafter, Father was called to the stand, s worn in, and te s tified that he was filing an Irrevoc able Affidavit of Voluntary R elin quishment as to his older child, Catherin e. He testified that he un derstood the relinquishm ent and f e lt that it would be in the child ’ s best interest. His affidavit was then admitted i n to evidence. The case was then rece ssed and resume d on June 25, 201 9

. We believe that, as in R.J., Jr. , trial commen ced on April 9, 2019, when the

case wa s called, the parties made their a nnouncements, a witness was s worn, and evidence was received by the trial court. We do not agree with Mother ’ s assertion that the r ecess was “a strategy used by [the Department] to justify the f ailure to adhere to the dis missal deadline .” The reco rd shows that the trial court had legitimate concerns with proceeding with hearing e v idence relating to the parties claiming Cheroke e descent, so, instead, allowed Father to testify and present

e vidence because there was n o issue as to him.54

Under these cir cumst ances, as in R. J., Jr. , there was sufficient informat ion in the record to show t hat the trial cour t commen ced trial on April 9, 2019, which was within the statutory deadline. We overrule Mot her ’ s issue two.
B . SUFFICIENCY OF THE EVIDENCE In issue s fo ur , five , and six, Mother argue s that there is legally and factually insufficient eviden c e supporting t he trial court’s findings tha t s he committed the predicate acts under subsection 161.001(b)( 1)(D), (E), and (O) and that termination of h er parental righ ts is in the children ’ s best interests. See T EX
. F AM
. C ODE §§ 161.001(b)(1)(D), (E), (O), 161.001(b) ( 2).
B ecause both the 2018 and 2017 cause s were tried together, and the same evidence was presente d in both causes, we ove rrule issues four, five, and s ix, for the same reasons given above in the 2018 cause numbe r. C . DUE PROCESS AND EQUAL PROTECTION
In a mult ifarious issue one, Mother co ntends that she was den ied due process and equal protection bec ause (1) the presiding and associate judges should hav e been recused, (2) the ad litem for the children should hav e been disqualified and removed, (3) th e Departmen t violated provisions of the Indian Child Welfare Act, and (4) she was not permitted an op p ortunity to visit her children because the Department did not develop an a ppropriate visitation plan.55

However, to preserve a complaint for appellate rev i ew, the re cord must sho w that the compl aint was made to the trial court, and that the trial court eith er ruled on the complaint or refused to rule and the c o mplaining party objected to the tri al
court ’ s refusal to rul e. See T EX
. R. A PP
. 33.1 . If a party fail s to d o this, error is not
preserve d, and the complaint is waived. See Bushell v. Dea n , 803 S.W.2d 71 1, 712 (Tex. 1991). The reco rd in th is case does not s how any rulings on these complaints ; thus, the issues are waived. 9
We overrule issue one.
D . INEFFECT I VE ASSISTANCE OF COUNSEL In her ni nth issue , Mother contends that she received ineffective assist ance of counsel because her “ atto rney in the 2017 case was forced to represent [her] after filing a motion to w ithdraw. ” At the June 2019 trial date , Mother ’ s counsel, Jimmie Brown, Jr. , filed a Motion to Withdraw, alleging “a pretty much unavoida ble conflict of interest.” After a brief discussion o ff the record, the trial court denied Brown’s motion. Brown then stated on the record,

9 To t he extent that Mother claim s that the docket sheet shows t hat motio ns rais ing th ese issues were denied, we note that “ a docket entry may not take the place of an order or ju dgment. ” Pickell v. Guar. Nat. Life Ins. Co. , 917 S.W.2d 439, 441 (Te x. App.

— H ouston [ 14th Dist .] 1996, no writ). Likewise, a docket sheet is not p art of the record on ap pe al and cannot be relied on to preserve error. Mason v. Ra ndall ’ s Food M arke ts, Inc

. , 01

- 01

- 00199

- CV, 2001 WL 134 4355, at * 1 (Tex. App.

— Houston [ 1 st Dist.] Nov. 1, 2001, no pet.)

.56

Based on what h as occur red between my client and myself, Counsel will be basically ineffective. And I think that will render this proceeding pretty much constitutional ly [infirm]. I don’t know of any other wa y that I can proceed an d not prejudice my client one wa y or a nother. And I don’t know how I c an do this and be faithful to the rules that I’m sworn to uphold. So all I can honestly tell the Court is that I will b e ineffective on the record. Mother contends that, thereafter, B rown was ineffective because he “ faile d to object to any of the evidenc e and exhibits and failed to object to hearsay and calls for specu lation , ” and “ [n] o d efense was mounted for [Mother] in the trials of June 25, and July 1, 2019. ” 1. Standar d of Review and Applicable Law The statutory right t o counsel in parental

- rights term ination cases includes, as a matter of due process, the right to eff ective counsel. C.S.F. v. Texas Dep ’ t of Family & Pr otective Servs. , 505 S.W.3d 618, 619 (Tex. 2016) (citing In re M.S

. , 115 S.W.3d 534, 544 (Tex. 2003)). Proving ineffective assistance of counsel requires showing: (1) commission of errors so serious that counsel was not functioning as “counsel” guaran teed by the Sixth Amendment, and (2) that counsel ’ s deficient performan ce prejudiced the defense

— i.e., “tha t counsel ’ s errors were so serious as to deprive the defendant of a fair trial, a trial whose result i s reliable.” M.S. , 115 S.W.3d at 545 (quoting S trick land v. Washington , 466 U.S. 668, 687 (1984)). We must determine “ whether counsel ’ s defective performa n ce caused harm; in other words, w hether ‘there is a reasonable probability that, but for57

counsel ’ s un professional error(s), the result of the procee ding would have been different.’ ” Id. at 549

– 50 (quoting Garcia v. Stat e , 57 S.W.3d 436, 440 (Tex. Crim. Ap p . 2001)). “Thus, an ineffective a ssistance of counsel claim requires a showing of a deficient perform ance by counsel so serious as to deny the defe ndant a fair and reliable trial.” In re J.O.A ., 283 S.W.3d at 342 . An as sertion of ineffective assistance will be sustained only if the record affirmatively supports such a claim. Lockwood v. Texa s Dep ’ t of Family & Protective Servs. , No. 03

- 12

- 000 62

- CV, 2012 WL 2383781, at *5 (Tex. App.

— Austin June 26, 2012, no pet.) (mem. op .). The parent has the burden to prove by a preponderanc e of the evidence that counsel was ineffective. A.C. v. Texas Dep't of Family & Protective Servs., 577 S.W.3d 689, 707 ( Tex. App.

— Austin 2019, pet. denied); In re P.M.W. , 559 S.W.3d 215, 218 (Tex. App

. — Texarkana 2018, pet. denied). “With respect to whether counsel ’ s performance in a particular case is deficient, we must ta ke into account all of the circumstances surro unding the case and must primarily focus on whether counsel performed in a ‘reasonably effective' manner.” M. S. , 115 S.W.3d at 545. “[C]ounsel ’ s performance falls below acceptable levels of performance when the ‘representation is so grossly deficient as
t o rende r proceedings fundamentally unfair[.]’ ” Id. (quoting Brewer v. State , 649 S.W.2d 628, 630 (Tex. Crim Ap p. 1983)). “In this process, we m ust give great deference to counsel ’ s performance, indulging ‘a stro ng presumption that counsel ’ s58

conduct falls within t he wide range of reasonable professional assistance,’ including the possibility that counsel ’ s action s are strategic.” Id. (quoting
Stri ckland , 466 U.S. at 689). “It is only when ‘the conduct was so outra geous that no competent attorney would have engaged in it,’ that the challenged conduct will constitute ineffective assistance.” Id. (quoting Garcia , 57 S. W.3d at 440); Thompson v. State , 9 S.W.3d 808, 812

– 13 (Tex. Crim. App. 1999). “Ordinarily, counsel sh ould not be condemned as unprofessional or i ncompete nt without an opportunity to explain the challenged actions.” In re S.L ., 188 S. W.3d 388, 395 (Tex. A pp . —

Dallas 2006, no pet.) (citing B one v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)). “Thus, whe n the record is silent regarding counsel ’ s r easons f or his conduct,” as it is here, “we defer to counsel ’ s decision if there is at l east the possibility th at the conduct could have been le gitimate trial strategy.” Id. (citing Ortiz v. State , 93 S.W.3d 79, 88

– 89 (Tex. Crim. App. 2002)). Stated anothe r way, i f counsel “may have acted in accordance with a plausible strategy,” we will not find counsel ’ s conduc t deficient. In re L.G.R. , 498 S.W. 3d 195, 209 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied). 2. Anal ysis Here, there is nothing in the record to show wh y Brown stated to the trial court that h e would be ineffective i f his motion to withdraw w ere not gr a nt ed. The discussion with the tria l court was off the record, and thi s Court will not speculate59

as to the reasons for Brown ’ s statements. W e cannot conclu de that Brown was ineffective merely because he stated that he would be. Instea d, we look at the
to tal ity of his rep resentation to dete rmine whether he was ineffective

. Regarding Mother ’ s claim that Brow n “failed to object to any of the evidence and exhib its ” a nd mounted “ no defen se ” for her, the record does not support this claim. In fact, the record sho ws that Brown objected numerous t imes for hearsay, speculation, leading q uestions, testimony outside the witne ss ’ s expertise, va gueness, and several oth ers. He cross

- examined the Department regarding Mother ’ s criminal record and arg ued that she could not be res ponsible for not maintainin g cont act with her older child ren when she was prohibited by the Co urt from visiting them. Mother does not point to an ything in the record to suggest that Brown did not have a plausible trial strateg y for his objectio ns or any lack of objections or that , had he conducted himself at t rial differently, the result would hav e been different. Mother further claims that Brown w as ineffective because he did not object to the l ack of a timely commencement of trial. However, w e hav e already determined that trial w as timely commenced at the on April 9 , 2019, when Father was called t o the stand, sworn, and presented evidence. Thus, Brown ’ s failure to object to the commencement of trial was not ineffective.60

Fina lly, Mother contends th at Brown was ineffective because he did not object to the associate judge hearing the proceedings or t o alleged violations of the Indian Child W elfare A ct. However, the record does not show any vi olation of the Indi an Child Welfare Act . And, Mother doe s n ot show that hearing the cas e bef ore the associate judge was not a valid trial strategy or that, had t he case been hear d by the presiding judge, the res ult would have been different. We overrule issue nine.
E . DENIAL OF INTERVENTIO N AND VIOLATION OF FO ST ERING CO NNECT IO NS ACT In issue eight, Mother argues that the Department ’ s “ denial of the int ervention and failure to consider relative place ment is a violation of [Mother ’ s] constitutional rights as well as a violation of [ the] Fostering Co nnec tions Act. ” 10
Other tha n a single citation to a dissent in In re B. D.A. , 546 S.W. 3d 376

– 77 (Tex. App.

— Hou s ton [ 1st D ist.] 2018, pet. denied) ( Massengale, J., dissenting) , that mentions the goals of the Fostering Co nnections Act, Mother provides no legal auth ority or analysis to support her claim that the Act was viol ated in this case. See
T EX
. R. A PP
. P. 38.1( i) (appellant ’ s brief must contain clear and c oncise argument for contentions made, with appropriate citations to authorities and to record)

. “Rule 38 requires [a party] to p rovide us with such discussion of the facts and the

10 Presumably, Mother is referencing the federal Fostering Co nnections to Su ccess and Increasing Ad options Act. See Pub. L. No. 110

– 351, 122 Stat. 3 949 (2008) (codified as amended in scatte red sections of Title 42 of the United States Co de).61

authorities relied upon as may be requisite to maintain the point a t issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc. , 106 S.W.3d 118, 128 (Tex. App

. — Houston [ 1st Dist. ] 2002, pet. denied). B ecause issue eight is inadequately briefed, we conclude that it is waiv ed. See Dauz v. Valdez , 571 S.W.3d 795, 805 (Tex

. App.

— Houston [1st Dist.] 2018, no pet.); Izen v. Comm ’ n for Lawyer Discipline , 322 S.W.3d 308, 321

– 22 (Tex. Ap p.

— Houston [1st Dist.] 2 010, pet. denied).
F . APPOINTMENT OF DEPARTMENT AS SOLE MANAGI ING CONSERVATOR In issue seven, Mother contends t hat there is legally and fac tually insufficient evidenc e to support the appointment of the D epartment as sole

mana ging cons ervator o f the children. When the parents ’ rights are terminat ed, the trial court mus t appoint “a suitable, competent adult, the Depa rtment of Family and Protective Services, or a licensed child

- placing agency as managing con servator of the child. ” T EX
. F A M
. C ODE § 161. 207(a); see In re M.M.M. , No. 01

- 16

- 00998

- CV, 20 17 WL 2645435, at *17 ( Tex. App.

— Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.). We review c onservatorship determinations for an abuse of discretion and wi ll revers ed

one on ly if the trial court ’ s dec ision is arbitrary and unreasonable. In re J.A.J. , 243 S.W .3 d 611, 616, (Tex. 2007); see also A.C. , 394 S.W.3d at 644. An order terminating the parent

- child relationship divests the parent of all legal rights an d duties wit h resp ect to the child. T EX
. F AM
. C ODE § 161.206(b).62

Once we overrule a parent ’ s challenge t o a termination order, the trial court ’ s appointment of the Department as sole managing conservator may be considered a “consequence of the termination pursuant to Family Code section 161.207.” In re A.S., 261 S.W.3d 76, 92 (Tex. App.

— Houston [14th Dist.] 2008, pet. denied). Because we have overruled Mother ’ s chall enge s to trial court ’ s order terminating her parental rights in the 2017 case , the order has diveste d Mo ther o f her legal rights and duti es related to Anna, Bryan, Catherine, Deborah, and Eli jah

. See T EX
. F AM
. C ODE § 161.206(b); In re D.K.W., Jr. , No. 01

- 1 7

- 00622

- CV, 2017 WL 6520439, at *5 (Tex. App.

— Houston [ 1st Dist.] Dec. 21, 2017, pet. denied ) (mem. op.) . As a result, Mother does not ha ve standing to challenge the portion of the order appointi ng the Department as permanent managing conservator of the ch ildren because any alleged error could not injuriously affect her rights . D.K.W. , Jr., 2017 WL 65204 39, at *5. We overrule Mother ’ s sixt h issue on appeal.63

G . CONCLUSION IN CAUSE NO. 201 7 - 650 76 Having overruled all of Mother ’ s issues , we affirm the trial c ourt’s Final Decree for Termination in cause number 2017

- 65076.

Sherry Radack Chief Justic e Panel consists of Chief Justic e R adack and Justices Kelly and Goodman.