IN THE

TENTH COURT OF APPEALS

No. 10-21-00022-CV

IN THE INTEREST OF R.A. AND S.A., CHILDREN

From the County Court at Law

Bosque County, Texas

Trial Court No. CV20-045

MEMORANDUM OPINION

Anna A. and Robert A. appeal from a judgment that terminated their parental 

rights to their children, R.A. and S.A. In three issues, Anna complains that the evidence 

was legally and factually insufficient for the trial court to have found that she committed 

the predicate acts in Section 161.001(b)(1)(D), (E), and (O) of the Family Code and that 

termination was in the best interest of the children. In four issues, Robert complains that 

his due process rights were violated because he was not properly served with citation, 

that the trial court erred by failing to appoint counsel timely and by denying his oral 

request for an extension at the final trial, and that the evidence was legally and factually 

insufficient for the trial court to have found that he committed the predicate acts in 
In the Interest of R.A. and S.A., Children Page 2

Section 161.001(O) and (D). Because we find no reversible error, we affirm the judgment 

of the trial court.

SUFFICIENCY OF THE EVIDENCE STANDARD OF REVIEW

The standards of review for legal and factual sufficiency in termination cases are 

well established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re 

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency 

of the evidence, we view all of the evidence in the light most favorable to the finding to 

determine whether a trier of fact could reasonably have formed a firm belief or conviction 

about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005); 

J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does 

not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of 

the evidence, we must give due consideration to evidence that the factfinder could 

reasonably have found to be clear and convincing. Id. We must consider the disputed 

evidence and determine whether a reasonable factfinder could have resolved that 

evidence in favor of the finding. Id. If the disputed evidence is so significant that a 

factfinder could not reasonably have formed a firm belief or conviction, the evidence is 

factually insufficient. Id. If the evidence is sufficient as to one ground, it is generally not 

necessary to address the other predicate grounds because sufficient evidence as to only 

one ground in addition to the best interest finding is necessary to affirm a termination 

judgment. In re N.G., 577 S.W.3d 230, 232-33 (Tex. 2019).
In the Interest of R.A. and S.A., Children Page 3

ANNA

FAMILY CODE SECTION 161.001(b)(1)(D) & (E)

Because our analysis will not overlap between the parents' issues, we will address 

them separately. In her first issue, Anna complains that the evidence was legally and 

factually insufficient for the trial court to have found that she "knowingly placed or 

knowingly allowed the child[ren] to remain in conditions or surroundings which 

endanger the physical or emotional well-being of the child[ren]" or "engaged in conduct 

or knowingly placed the child[ren] with persons who engaged in conduct which 

endangers the physical or emotional well-being of the child[ren].” See TEX. FAM. CODE 

ANN. § 161.001(b)(1)(D) & (E).1 "'[E]ndanger' means to expose to loss or injury; to 

jeopardize." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (citation 

omitted). To endanger a child, "it is not necessary that the conduct be directed at the child 

or that the child actually suffers injury." Id. (citations omitted). 

Under Section 161.001(b)(1)(D), parental rights may be terminated based on a 

single act or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—

Texarkana 2015, no pet.). Section 161.001(b)(1)(D) requires the endangerment to the 

children to be the direct result of the children's environment. See In re K.P., No. 09-13-

00404-CV, 2014 Tex. App. LEXIS 9263, at *38 (Tex. App.—Beaumont Aug. 21, 2014, no 

pet.) (mem. op.). In evaluating endangerment under Section 161.001(b)(1)(D), we only 

1 Anna discusses the sufficiency of the evidence as to both grounds together in one issue.
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consider the children's environment before the Department obtained custody of the 

children. See In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. 

denied). It is not necessary that the parent know for certain that the children are in an 

endangering environment; rather, awareness of the potential for danger and a disregard 

of the risk is enough to show endangering conduct. See In re S.M.L., 171 S.W.3d 472, 477 

(Tex. App.—Houston [14th Dist.] 2005, no pet.). 

The Department received a referral that the children, ages 6 and 8, were living in 

a shed with no running water, heat, or air conditioning on property that was suspected 

to be involved with the manufacture and distribution of methamphetamine. The 

investigator found the children in the shed who said that they were alone and unable to 

get out of the shed. After the Department was able to enter the shed, Anna came from 

behind a curtain in the shed. The children were both dirty and appeared malnourished. 

The Department also had concerns that Anna was using drugs and was involved in 

prostitution and that sex trafficking had been taking place on the property. The children 

had only attended a total of six months of school and were significantly educationally 

delayed as well as behind in medical and dental treatment at the time of their removal 

from Anna's custody. The children had been emotionally harmed by being left alone for 

long periods of time by Anna and Robert after Anna and Robert's separation, which 

required therapy to address after their removal.
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Anna argues that the evidence was legally and factually insufficient because the 

Department did not present more specific evidence of the condition of the shed or 

whether or not food was available in the shed. Anna also contends that the evidence that 

the children appeared malnourished and had gained weight was insufficient to show 

endangerment prior to their removal. Anna further argues that the Department failed to 

present evidence regarding the suspicions of methamphetamine manufacture and 

distribution or sex trafficking at the residence. Anna contends that these failures rendered 

the evidence legally and factually insufficient for a reasonable factfinder to have formed 

a firm belief of an endangering environment pursuant to Section 161.001(b)(1)(D). While 

undoubtedly the Department could have presented more substantial evidence of the 

environment of the children at the time of their removal, there was no evidence presented 

to dispute the Department's allegations. The condition of the shed, the lack of care of the 

children's needs, and the demonstrated emotional harm that had been inflicted on the 

children renders the evidence legally and factually sufficient for the trial court to have 

found that Anna "knowingly placed or knowingly allowed the child[ren] to remain in 

conditions or surroundings which endanger the physical or emotional well-being of the 

child[ren]." We overrule Anna's first issue as it relates to Section 161.001(b)(1)(D). Because 

we have addressed the sufficiency of the evidence as to Section 161.001(b)(1)(D), it is not 

necessary to address the evidence pursuant to Section 161.001(b)(1)(E). We overrule 

Anna's first issue.
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FAMILY CODE SECTION 161.001(b)(1)(O)

In her second issue, Anna complains that the evidence was legally and factually 

insufficient for the trial court to have found that she failed to complete her service plan 

pursuant to Section 161.001(b)(1)(O). However, because only one predicate act under 

Section 161.001(b)(1) is necessary to support a judgment of termination in addition to the 

required finding that termination is in the child's best interest, it is not necessary to 

consider this issue pursuant to Section 161.001(b)(1)(O). In re A.V., 113 S.W.3d 355, 362 

(Tex. 2003). We overrule Anna's issue two.

BEST INTEREST

In her third issue, Anna complains that the evidence was legally and factually 

insufficient for the trial court to have found that termination was in the best interest of 

the children. In determining the best interest of a child, a number of factors have been 

consistently considered which were set out in the Texas Supreme Court's opinion, Holley 

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply 

indicates factors that have been or could be pertinent in the best interest determination. 

Id. There is no requirement that all of these factors must be proved as a condition 

precedent to parental termination, and the absence of evidence about some factors does 

not preclude a factfinder from reasonably forming a strong conviction that termination is 

in the child's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence 

establishing one of the predicate grounds under section 161.001(b)(1) also may be 
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relevant to determining the best interest of the child. See C.H., 89 S.W.3d at 27-28.

Anna argues that the lack of evidence regarding the initial removal of the children 

and the fact that the children's aunt testified that the children miss their father and the 

Department and the children's aunt testified that the children are doing well placed with 

their paternal grandfather is insufficient to overcome the presumption that it is in the 

children's best interest for the parent to retain custody. On appeal, Anna acknowledges 

that the evidence showed that the children are doing well in their current placement and 

that their grandfather wants to adopt them. However, Anna did not testify at the trial or 

controvert any of the Department's allegations, explain her failure to participate in 

services, or present any evidence against termination by presenting witnesses on her 

behalf. Anna did not complete any of her services other than an initial drug evaluation 

that recommended intensive outpatient drug treatment which she did not attempt to 

initiate, she did not maintain housing or a job, and she did not maintain regular visitation 

with the children. Instead, Anna was arrested twice for drug-related offenses after the 

children's removal, refused to participate in drug testing other than one test from Ohio 

where she had moved, and refused to meet with the caseworker. Basically, Anna did 

nothing to address the reasons for the children's removal during the pendency of the 

proceedings without explanation or excuse. We find that the evidence was legally and 

factually sufficient to support the trial court's finding that termination was in the best 

interest of the children. We overrule Anna's issue three.
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ROBERT

IMPROPER CITATION

In his first issue, Robert complains that his due process rights were violated 

because he was not properly served with citation in this proceeding. The trial court signed 

an order allowing for citation by posting at the beginning of the proceedings based on an 

affidavit signed by the caseworker that Robert's whereabouts were unknown. It appears 

from the record that the Department was aware of Robert's location at different times 

throughout the proceedings as he was incarcerated for kidnapping the children from his 

father and for other offenses.

Establishing personal jurisdiction over a defendant requires valid service of 

process. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) ("Personal jurisdiction, a vital 

component of a valid judgment, is dependent 'upon citation issued and served in a 

manner provided for by law.'"). "If service is invalid, it is 'of no effect' and cannot establish 

the trial court's jurisdiction over a party." In re E.R., 385 S.W.3d at 563. A complete failure 

of service deprives a litigant of due process and deprives the trial court of personal 

jurisdiction; any resulting judgment is void and may be challenged at any time. In re E.R., 

385 S.W.3d at 566. At a minimum, "due process requires 'notice and an opportunity to be 

heard.'" In re P. RJ E., 499 S.W.3d 571, 575 (Tex. App.—Houston [1st Dist.] 2016, pet. 

denied).

However, complaints regarding service of process can be waived: a party waives 
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a complaint regarding service of process if he makes a general appearance. In re D.M.B., 

467 S.W.3d 100, 103 (Tex. App.—San Antonio 2015, pet. denied); see TEX. R. CIV. P. 120a 

(setting out procedure for making special appearance, providing that special appearance 

"shall be made by sworn motion filed prior to motion to transfer venue or any other plea, 

pleading or motion," and stating that "[e]very appearance, prior to judgment, not in 

compliance with this rule is a general appearance"). A party enters a general appearance 

when he (1) invokes the judgment of the court on any question other than the court's 

jurisdiction, (2) recognizes by his acts that an action is properly pending, or (3) seeks 

affirmative action from the court. In re D.M.B., 467 S.W.3d at 103 (quoting Exito Elecs. Co. 

v. Trejo, 142 S.W.3d 302, 304-05 (Tex. 2004) (per curiam)); TEX. R. CIV. P. 120 (providing 

that defendant may, in person or by attorney, enter appearance in open court and this 

appearance "shall have the same force and effect as if the citation had been duly issued 

and served as provided by law").

In determining whether a general appearance has occurred, the emphasis is on 

affirmative action by the party, not on whether the party seeks affirmative relief. In re 

D.M.B., 467 S.W.3d at 104. "[A] party's request for affirmative action constitutes a general 

appearance because such a request recognizes a court's jurisdiction over the parties, 

whereas the mere presence by a party or his attorney does not constitute a general 

appearance." Id. at 103. 

In this proceeding, Robert's appointed counsel filed an answer on his behalf 
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without complaining about the method of the service of citation, participated in the final 

trial, and did not object at any time to the improper citation. We find that this complaint 

was waived. We overrule Robert's first issue.

LATE APPOINTMENT OF COUNSEL AND FAILURE TO GRANT EXTENSION

In his second issue, Robert complains that the trial court erred by failing to appoint 

counsel to represent him until approximately three months before the final trial in this 

proceeding and by failing to grant an extension so that he could be located and participate 

in the proceedings. This proceeding commenced in February of 2020, and the trial court 

approved service by publication at that time. Counsel for Robert was appointed in late 

October of 2020. The final trial took place in late January of 2021. At the time of the 

appointment of counsel, it was believed that Robert was incarcerated in McLennan 

County; however, it was later determined that he had been released from McLennan 

County at approximately the same time his counsel had been appointed. Prior to that 

time, it was believed that he was in Mexico. The Department testified that their 

understanding was that Robert was incarcerated in Parker County at the time of the final 

trial. Robert did not personally appear at any hearing in this proceeding, including the 

final trial.

We recognize that Texas courts, including this one, have routinely held that the 

appointment of counsel for an indigent parent later in the proceedings does not violate 

the parent's due-process rights. See In the Interest of A.D., No. 10-19-00411-CV, 2020 Tex. 
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App. LEXIS 6292, 2020 WL 4691657, at *5 (Tex. App.—Waco Aug. 10, 2020, pet. filed) 

(mem. op.) (concluding that appellant was not harmed by the failure to appoint counsel 

five months after the proceedings were instituted by the Department); see also In re 

M.J.M.L., 31 S.W.3d 347, 353-54 (Tex. App.—San Antonio 2000, pet. denied) (concluding 

that the appointment of counsel six months after the Department filed its termination 

petition did not violate section 107.013 of the Family Code, especially considering counsel 

was appointed over a year before the trial date); In re M.M., No. 05-18-00901-CV, 2019 

Tex. App. LEXIS 368, at **4-5 (Tex. App.—Dallas Jan. 22, 2019, no pet.) (mem. op.) 

(concluding that the trial court did not abuse its discretion by appointing an indigent 

parent counsel six months into the case, after the removal hearing and a subsequent status 

hearing); In re B.K., No. 10-12-00311-CV, 2012 Tex. App. LEXIS 10730, at **5-6 (Tex. 

App.—Waco Dec. 27, 2012, no pet.) (mem. op.) (holding that the appointment of counsel 

fifteen months after the child's removal and slightly less than five months before trial did 

not violate the parent's due-process rights); In re C.R., No. 09-11-00619-CV, 2012 Tex. App. 

LEXIS 4303, at **9-11 (Tex. App.—Beaumont 2012, no pet.) (mem. op.) (concluding that 

the trial court did not abuse its discretion by appointing counsel for a parent three months 

prior to trial); In re C.Y.S., No. 04-11-00308-CV, 2011 Tex. App. LEXIS 9355, at **9-15 (Tex. 

App.—San Antonio Nov. 30, 2011, no pet.) (mem. op.) (concluding that the trial court did 

not abuse its discretion by appointing counsel ten months after the termination petition 

was filed and four months before trial).
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However, we also recognize that this Court has held that the failure to appoint 

counsel for one-third of the time the case was pending constituted harmful error that 

"probably caused the rendition of an improper judgment." In the Interest of S.R., 2019 Tex. 

App. LEXIS 11277, at *5 (Tex. App.—Waco Dec. 31, 2019, pet. denied) (mem. op.) (citing

TEX. R. APP. P. 44.1(a)(1); In re B.C., 592 S.W.3d 133, 137-38 (Tex. 2019)). During this time, 

appellants "were deprived of the appointment of counsel prior to the adversary hearing, 

and were subsequently without counsel at the status hearing, the dismissal hearing, and 

the first permanency hearing conducted by the trial court." Id. The error in that case, 

however, was not the trial court's failure to appoint counsel but the trial court's failure to 

properly admonish the parents of their right to counsel, which is not at issue in this 

proceeding. See In re S.R., 2019 Tex. App. LEXIS 11277, at *5. Moreover the harm of not 

timely admonishing about the right to counsel and therefore not having counsel timely 

appointed was exacerbated by using evidence obtained at hearings held without counsel 

in the termination trial.

In this proceeding, it is unclear as to whether Robert's location was known until 

the summer of 2020, when he kidnapped the children from his father's residence. Robert 

was found with the children in Fort Worth and was arrested. Further, he has not 

challenged the sufficiency of the evidence regarding the predicate act that he engaged in 

conduct or placed the children with persons who engaged in conduct which endangered 

the children pursuant to Section 161.001(b)(1)(E) and we agree that the evidence was 
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sufficient pursuant to that ground. It is reasonable to imply that at least as of the summer 

of 2020 when he kidnapped the children, Robert knew of the Department's involvement 

with the children, yet even then he did not attempt to get involved in the proceedings. 

Because of this, he cannot show that any error in the failure to appoint counsel earlier in 

the proceedings so that he could participate in the proceedings was harmful, that is, that 

any error "probably caused the rendition of an improper judgment." See TEX. R. APP. P. 

44.1(a)(1); In re B.C., 592 S.W.3d at 137-38; see also In re S.R., 2019 Tex. App. LEXIS 11277, 

at **5-6. 

Robert also argues in his second issue that the trial court erred by denying his 

request for an extension of the court's jurisdiction. Trial counsel for Robert orally 

requested an extension during her closing argument at the end of the trial. The granting 

or denial of a request for extension of the court's jurisdiction is within the discretion of 

the trial court. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet. denied). 

In order to grant an extension of the trial court's jurisdiction, there are two prerequisites 

that must be shown: the trial court must find that (1) extraordinary circumstances 

necessitate the children remaining in the Department's temporary managing 

conservatorship, and (2) continuing the appointment of the Department as temporary 

managing conservator is in the children's best interest. TEX. FAM. CODE ANN. § 263.401(b); 

see also In the Interest of G.X.H., No. 19-0959, 2021 Tex. LEXIS 345 at *14, 2021 WL 1704234 

(Apr. 30, 2021). The burden is on the movant to provide evidence supporting a 
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determination that the trial court abused its discretion by denying the motion for an 

extension. See In re M.S., 602 S.W.3d 676, 679-80 (Tex. App.—Texarkana 2020, no pet.) 

(holding that trial court did not abuse its discretion in denying parent's motion in part 

because motion failed to focus on child's needs). In his brief to this Court, Robert does not 

address the findings that would have been required for the trial court to have granted an 

extension. Our review of the record establishes that there was no evidence presented to 

the trial court that continuing the appointment of the Department as the temporary 

managing conservator would be in the children's best interest. Because of this, Robert has 

not shown that the trial court abused its discretion by denying his request for an 

extension. We overrule Robert's second issue.

SUFFICIENCY OF THE EVIDENCE

In his third issue, Robert complains that the evidence was legally and factually 

insufficient for the trial court to have found that he failed to complete his service plan 

pursuant to Section 161.001(b)(1)(O). In his fourth issue, Robert complains that the 

evidence was legally and factually insufficient for the trial court to have found that he 

"knowingly placed or knowingly allowed the child[ren] to remain in conditions or 

surroundings which endanger the physical or emotional well-being of the child[ren]" 

pursuant to Section 161.001(b)(1)(D). Robert does not challenge the sufficiency of the 

evidence as to Section 161.001(b)(1)(E), the third predicate act upon which the trial court 

granted the termination of his parental rights or that termination was in the best interest 
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of the children.

In general, because only one predicate ground under Section 161.001(b)(1) is 

sufficient to support a judgment of termination, in order to be successful on appeal it is 

necessary to challenge all the predicate grounds upon which a trial court based its 

termination order. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re S.J.R.-Z., 537 S.W.3d 

677, 682 (Tex. App.—San Antonio 2017, pet. denied). When all the grounds that may 

support an order of termination are not challenged on appeal, historically we have not 

addressed the sufficiency of the evidence of any of the predicate grounds for termination 

but accepted the validity of the unchallenged grounds and affirmed the termination 

order. See In re A.V., 113 S.W.3d at 361-62.

However, we are now mandated to address at least one of the issues challenging 

a trial court's findings under Section 161.001(b(1)(D) or (E) because termination under 

Section 161.001(b)(1)(D) or (E) may have implications for a parent's parental rights to 

other children. In re N.G., 577 S.W.3d 230, 236-37 (Tex. 2019). In this proceeding, however, 

Robert does not challenge the sufficiency of the evidence to support the trial court's 

finding pursuant to Section 161.001(b)(1)(E), which requires us to accept the validity of 

that ground. Because one of the two grounds that we would be required to address was 

not challenged, it is not necessary for us to address the sufficiency of the evidence as to 

Section 161.001(b)(1)(D) or (O). We overrule Robert's issues three and four.
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CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Neill, and

Justice Johnson

Affirmed

Opinion delivered and filed May 27, 2021

[CV06]