COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-15-00300-CV 

IN THE INTEREST OF I.C., N.C., 

A.C., AND D.C., CHILDREN 

 

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FROM COUNTY COURT AT LAW NO. 1 OF PARKER COUNTY 

TRIAL COURT NO. CIV14-0275 

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MEMORANDUM OPINION1

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After a trial, a jury found by clear and convincing evidence that the parentchild relationships between Appellant C.R. (Mother) and children I.C., N.C., A.C., 

and D.C. and between Appellant D.C. (Father) and each of the four children 

should be terminated. The trial court found by clear and convincing evidence 

that Mother and Father had knowingly placed or knowingly allowed the four 

 1See Tex. R. App. P. 47.4. 
2 

children to remain in conditions or surroundings which endangered their physical 

or emotional well-being; had engaged in conduct or knowingly placed their 

children with persons who engaged in conduct which endangered the children’s 

physical or emotional well-being; and had failed to comply with the provisions of 

a court order that specifically established the actions necessary for the return of 

the children, who had been in the permanent or temporary managing 

conservatorship of the Texas Department of Family and Protective Services 

(TDFPS) for not less than nine months as a result of the children’s removal from 

Mother and Father under chapter 262 for the abuse or neglect of the children.2 

The jury implicitly found and the trial court explicitly found by clear and 

convincing evidence that termination of the parent-child relationships between 

the children and Mother and Father was in the children’s best interest.3 The trial 

court terminated the parent-child relationships between the children and Mother 

and Father, and Mother and Father timely appealed. 

In five issues, Mother contends that the evidence is legally and factually 

insufficient to support termination; that the trial court abused its discretion by 

improperly commenting on Father’s credibility and the weight of the alleged 

hearsay offered through the play therapist; that the trial court erred by denying 

 2See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O) (West Supp. 

2015). 

3See id. § 161.001(b)(2). 
3 

Mother’s motion to strike and motion for mistrial regarding said alleged hearsay; 

and that her trial counsel was ineffective by failing to properly object to the trial 

court’s improper comments, certain inadmissible hearsay, and improper 

argument. Father adopts those five issues by reference4 and also raises eight 

other issues challenging the legal and factual sufficiency of the evidence 

supporting the termination of his parental rights, the trial court’s admission of 

alleged hearsay, the jury charge, and the number of jurors on the jury and 

contending that the trial court violated his rights to a fair trial and due process by 

sua sponte compelling a demonstration by Father and commenting on the 

evidence, his credibility, Father’s counsel’s performance and ethics, and the 

weight of the evidence offered against Father. Because we hold that the 

evidence is sufficient to support termination, that the trial court did not reversibly 

err, and that Mother did not prove that her trial counsel committed ineffective 

assistance of counsel at trial, we affirm the trial court’s judgment terminating both 

parents’ parental rights. 

I. Sufficiency of the Evidence to Support Termination 

In her first two issues, Mother challenges the endangerment findings 

against her, the no-compliance finding against her, and the best interest finding 

against her. In his first three issues, Father challenges the endangerment, nocompliance, and best interest findings against him. 

 4See Tex. R. App. P. 9.7. 
4 

A. Standard of Review 

In a termination case, the State seeks not just to limit parental rights but to 

erase them permanently—to divest the parent and child of all legal rights, 

privileges, duties, and powers normally existing between them, except the child’s 

right to inherit.5 Consequently, “[w]hen the State seeks to sever permanently the 

relationship between a parent and a child, it must first observe fundamentally fair 

procedures.”6 We strictly scrutinize termination proceedings and strictly construe 

involuntary termination statutes in favor of the parent.7

Termination decisions must be supported by clear and convincing 

evidence.8 “[C]onjecture is not enough.”9 Due process demands this heightened 

standard because “[a] parental rights termination proceeding encumbers a value 

‘far more precious than any property right.’”10 Evidence is clear and convincing if 

 5Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685 

S.W.2d 18, 20 (Tex. 1985). 

6In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 

455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). 

7In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–

55; Holick, 685 S.W.2d at 20–21. 

8See Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 802; see 

also Tex. Fam. Code Ann. § 161.206(a) (West 2014).

9E.N.C., 384 S.W.3d at 810. 

10E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 

S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 

384 S.W.3d at 802. 
5 

it “will produce in the mind of the trier of fact a firm belief or conviction as to the 

truth of the allegations sought to be established.”11

For a trial court to terminate a parent-child relationship, TDFPS must 

establish by clear and convincing evidence that the parent’s actions satisfy one 

ground listed in family code section 161.001(b)(1) and that termination is in the 

best interest of the child.12 Both elements must be established; termination may 

not be based solely on the best interest of the child as determined by the trier of 

fact.13

In evaluating the evidence for legal sufficiency in parental termination 

cases, we determine whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction that the challenged ground for 

termination was proven.14 In this case, then, we determine whether the evidence 

is such that the jury could reasonably form a firm belief or conviction that TDFPS 

proved the subsection (D), (E), or (O) termination ground and that termination of 

 11Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d at 

802. 

12Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re 

J.L., 163 S.W.3d 79, 84 (Tex. 2005). 

13Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); 

In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.). 

14In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). 
6 

the parent-child relationships between both parents and the four children is in the 

children’s best interest.15

We review all the evidence in the light most favorable to the finding and 

judgment.16 We resolve any disputed facts in favor of the finding if a reasonable 

factfinder could have done so.17 We disregard all evidence that a reasonable 

factfinder could have disbelieved.18 We consider undisputed evidence even if it 

is contrary to the finding.19 That is, we consider evidence favorable to 

termination if a reasonable factfinder could, and we disregard contrary evidence 

unless a reasonable factfinder could not.20 “A lack of evidence does not 

constitute clear and convincing evidence.”21

We cannot weigh witness credibility issues that depend on the appearance 

and demeanor of the witnesses because that is the factfinder’s province.22 And 

 15See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2). 

16J.P.B., 180 S.W.3d at 573. 

17Id.

18Id.

19Id.

20See id.

21E.N.C., 384 S.W.3d at 808. 

22J.P.B., 180 S.W.3d at 573–74. 
7 

even when credibility issues appear in the appellate record, we defer to the 

factfinder’s determinations as long as they are not unreasonable.23

We are required to perform “an exacting review of the entire record” in 

determining whether the evidence is factually sufficient to support the termination 

of a parent-child relationship.24 In reviewing the evidence for factual sufficiency, 

we give due deference to the factfinder’s findings and do not supplant the verdict 

with our own.25 We determine whether, on the entire record, a factfinder could 

reasonably form a firm conviction or belief that the parent violated subsection (D), 

(E), or (O) of section 161.001(b)(1) and that termination was in the children’s best 

interest.26 If, in light of the entire record, the disputed evidence that a reasonable 

factfinder could not have credited in favor of the finding is so significant that a 

factfinder could not reasonably have formed a firm belief or conviction in the truth 

of its finding, then the evidence is factually insufficient.27

 23Id. at 573. 

24In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). 

25In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 

26See Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 

(Tex. 2002). 

27H.R.M., 209 S.W.3d at 108. 
8 

B. Endangerment Findings: Law and Application to Facts 

TDFPS’s Exhibit 7, the family service plan, was admitted into evidence at 

trial without objection or limitation while TDFPS was questioning Father. The 

exhibit includes the following language, 

On March 26, 2014 [TDFPS] received a priority 1 intake 

alleging physical abuse of [the four children] by [Mother] and [Father] 

and physical abuse of [A.C.] by [Uncle D]. It was alleged that [A.C.] 

was seen with a fist bruise on the left side of his head and that the 

injury was not consistent with [F]ather’s explanation. [A.C.] 

complained of pain at the site of the injury but was not taken to the 

doctor. It was also alleged that [A.C.] sustained a quarter sized red 

cut on the top of his head. While [F]ather stated that the injury 

occurred after a jewelry box fell on [A.C.’s] head, [A.C.] and [N.C.] 

stated that [F]ather hit [A.C.] in the head with a hammer, causing the 

injury. [D.C.] II has 3 green dots tattooed on his right wrist. It was 

alleged that [N.C.] had a fist sized bruise on her back. [Mother] and 

[Father] claimed that the injury was sustained when the children 

were fighting; however, [N.C.] stated that she was struck in the back 

by [Father]. [A.C.] has a scar on his back that looks like he was 

branded with the top piece of a lighter. [A.C.] stated that this was 

done by Uncle D. It is unknown if the children have old injuries; 

however, [D.C.] II, [A.C.], and [N.C.] have several scars, especially 

[A.C]. . . . 

 . . . . 

 The level of concern for child vulnerability is extreme because 

of the following reasons: The children are under the age of five and 

are[,] therefore, unable to protect themselves. The children also 

appear to fear retribution from [Father]. 

The level of concern for caregiver capability is extreme 

because of the following reasons: [Father] and [Mother] appear to 

lack knowledge of child development and significantly lack the 

parenting skills needed to meet the children’s behavioral and 

developmental needs. The discipline practices of [Father are] 

violent, out of control, and disproportionately harsh compared to the 

misbehavior, as he hit [A.C.] in the head with a hammer after he 
9 

defecated in the closet. [Father] was also recently arrested for 

assault causing bodily injury to a family member. 

The level of concern for quality of care is extreme because of 

the following reasons: [Mother] lacks empathy towards the children 

by believing [Father’s] story over what the children tell her. The 

children have been left with an inappropriate caregiver, [Father], 

after [he] assaulted [Mother]. [A.C.] did not receive medical 

treatment either time he received a head injury. . . . 

The level of concern for maltreatment pattern is extreme 

because of the following reasons: [A.C.] has received harm that is 

inflicted (non-accidental) and was serious. Hitting the children in the 

head and putting them in the dryer is bizarre maltreatment. 

[Father]’s and [Mother]’s explanation[s] of [A.C.]’s injuries are 

inconsistent with the . . . injuries. Originally, the only concern was 

that [A.C.] had been hit in the head with a hammer; however, it was 

later discovered that the children were being put in the dryer and the 

dryer was being turned on while they were in there. 

The level of concern for the home and social environment is 

considerable because of the following reasons: . . . [Father]’s violent 

behaviors expose the children to danger. [Mother] has been a victim 

of family violence. [Father] currently faces criminal charges for 

assault causing bodily injury to a family member. 

The level of concern for response to intervention is 

considerable for the following reasons: [Father] and [Mother] take 

the allegations less serious than D.F.P.S. Both [Father] and 

[Mother] also offered implausible explanations, in an attempt to 

deliberately mislead C.P.S. 

The level of concern for protective capacities is extreme for 

the following reasons: [Mother] appears unwilling to protect the 

children from [Father]. There is a lack of support network that could 

help ensure the safety of the children and provide adequate 

supervision of the children. [Mother] rejects necessary protective 

interventions, as she allowed [Father] to supervise the children 

despite a protective order that stated she was not to do this. 

Father’s cousin L.G. testified that one summer day in 2012, 2013, or 2014, 

she saw a welt on Mother’s arm. Mother told L.G. that Father had hit her with a 
10 

metal chain, causing the welt. Later that day, L.G. witnessed an altercation 

between Mother and Father. They argued, and then Father hit Mother’s head 

multiple times with a steel-toed boot. L.G.’s disabled brother and mentally ill 

younger brother saw the assault; L.G. testified that Mother and Father’s children 

were also in the room during the assault but that she believed they were asleep. 

L.G. testified that the next day, Mother’s face was so swollen and her right eye 

was so bloody that she looked like the character E.T. L.G. testified that Mother 

had also told her of a time when Father had slapped Mother in Azle. 

L.G. testified that she believed the children were disciplined “[a] little much, 

but not as bad as what happened . . . with [A.C].” 

K.C., Father’s sister, testified that in August 2012, after Mother was struck 

in the head with a boot by Father, Mother called to tell K.C. K.C. drove from her 

home in Weatherford to Mother’s home in Granbury and insisted that Mother go 

to the hospital. But Mother “said that she wanted to go to Weatherford so that it 

could be as if she [had been] with [K.C.]” K.C. complied with Mother’s wishes 

and drove her to the Weatherford hospital. K.C. heard Mother tell hospital 

personnel that she had fallen while helping K.C. move things in her Weatherford 

home. Mother was diagnosed with a concussion and received six staples to 

close her head wound. When K.C. drove Mother back to her Granbury home, 

K.C. saw that I.C. appeared scared and withdrawn, which was not his usual 

demeanor, and she took him home with her. 
11 

S.K., Father’s cousin, testified that she went to the family’s home a couple 

of days later and saw Mother and the four children in the living room. Mother’s 

face was badly bruised, and one of her eyes was very red and contained clotting 

blood. Mother told S.K. that she and Father had argued, she had thrown a shoe 

at him, and then he had beaten her with a steel-toed boot. Mother told S.K. that 

the children and L.G. had witnessed the assault. S.K. saw that a long cut on 

Mother’s head had been mended with staples. S.K. also testified that Mother 

had told her that Father had hit her with a metal dog chain during the same 

incident. 

S.K. testified that Mother had admitted that she had asked another relative 

to take her to the Weatherford hospital, where she made up a story to avoid 

incriminating Father, who was already on probation. S.K. asked why Mother did 

not leave Father, and Mother told her that she could not leave the children 

without a father. S.K. also testified that “pretty much everybody in the family 

offered [Mother] somewhere to stay if she left [Father].” 

S.K. testified about another incident in which she heard Mother and Father 

fighting behind a locked door. When the door opened, Mother was crying and 

stated that Father had just choked her. S.K. saw red marks around Mother’s 

neck. 

S.K. testified that Mother had told her that Father had a tattoo gun and 

gave then one-year-old I.C. the tattoo of three green dots on his finger. S.K. 

additionally testified that Father and Mother told her that Father had made the 
12 

tattoo gun. Father testified that he thought a roommate had given the child a 

tattoo when Father went outside to smoke a cigarette. 

S.K. also testified that I.C. told S.K.’s mother that Father had hit A.C. on 

the head with a hammer. S.K.’s mother told S.K., and she reported the incident 

to CPS. CPS removed the children from the home the following day, March 26, 

2014, and the parents voluntarily placed them with S.K. and her husband. A.C.’s 

story to S.K. regarding the cause of the mark on his head was consistent with 

S.K.’s mother’s story. None of the children ever told S.K. anything different about 

the cause of the injury. Father told S.K. that a wooden box fell on A.C.’s head 

when he was trying to climb up a dresser to retrieve “a DVD or something like 

that.” Mother testified that A.C. told her a similar story the night of the incident, 

but she admitted that she never questioned him alone. 

On February 21, 2014, Mother had told the police in writing that Father had 

hit her with a toy and his hand. He was then arrested for assault with bodily 

injury to a family member. Mother testified that she lied to the police about the 

assault because she was mad at Father, whose brother had told her that Father 

was cheating on her while she was at work. A magistrate entered an emergency 

protective order against Father. Mother did not honor the protective order, 

inviting Father back to the home after a couple of weeks. Both Mother and 

Father testified that the reason Father moved back home was that she needed 

help with the children. 
13 

Mother and Father both denied that Father had ever been abusive with 

her, and Mother denied that she had ever told anyone that he had hit her except 

the police in the incident described above. Mother also testified that she knew 

that the children had accused Father of hitting them but that she did not believe 

they were telling the truth. Father likewise denied allegations that he had abused 

the children. 

The children’s play therapist, Cheryl Bullock, testified that she began 

treating the children about three months after they were removed from their 

parents. Bullock testified that on July 7, 2014, which she believed was their 

second therapy session, N.C. and A.C. each separately reported “[b]eing put in a 

dryer and [it] being turned on.” A.C. “said [that he] was put in [a] dryer and 

banged around.” A week later, “[h]e said [A]unt said we [are] going back to 

[D]ad. . . . He put me in dryer. Aunt said . . . [D]ad can’t hit me.” On August 4, 

2014, when A.C. was three years old, he saw the toy hammer and nails in a 

therapy session “and kind of stared at it and then he told [Bullock] about the 

hammer.” Specifically, “He said my daddy hit me with a hammer. My head [was] 

bleeding and I was scared. Police took [D]addy and [the] hammer. I don’t want 

to go back.” On August 25, 2014, N.C. told Bullock that “Dad hit [A.C.] with [the] 

hammer. His head was bleeding.” That same day, I.C. told Bullock, “[D]addy put 

me in the dryer. He shut the door and turned it on. I was bad so [D]addy put me 

in there.” On October 13, 2014, N.C. told Bullock that she “was put in [the] dryer 

with [her] brothers” and that it “hurt [her] knees and brothers’ knees.” N.C. also 
14 

told Bullock that she had told Mother what Father had done and that Mother “told 

[D]addy not to do that. He got mad and hurt her.” On October 27 or 28, 2014, 

I.C. told Bullock that “his dad[] hit [A.C.], his brother, on the back several times.” 

On December 29, 2014, A.C. told Bullock that “Dad hit [M]ommy and she cried. I 

was scared.” 

On June 8, 2015, A.C. told Bullock, “I’m mad at [D]addy. I don’t love 

[M]ommy.” Bullock testified that on June 22, 2015, 

[N.C.] was not wanting to play with her toys. She was scared of all 

of them, I think, except of her Elsa doll. And she had watched a 

movie of Chucky, and it’s a doll that comes to life. I think he’s—

might be, I don’t know what you call it, but anyway a serial killer 

embodied him and he kills people. 

Bullock testified that the other children basically said “that they watched it 

for disciplinary reasons.” N.C. told Bullock, “[W]e watched it at [D]addy’s and he 

ma[d]e us watch it. I don’t like it. I [am] scared my dolls will get me. I only play 

with [my] Elsa doll.” 

Bullock testified that the children had never told her that Mother hurt them 

in any way, that in therapy sessions immediately following an overnight visit with 

parents, she never saw any visible injury, and that the children stated many times 

that they loved Mother. 

The jury also heard evidence of Father’s many run-ins with the law, 

including periods of confinement. 

As this court has often discussed, 
15 

Endangerment means to expose to loss or injury, to jeopardize. The 

trial court may order termination of the parent-child relationship if it 

finds by clear and convincing evidence that the parent has knowingly 

placed or knowingly allowed the child to remain in conditions or 

surroundings that endanger the physical or emotional well-being of 

the child. Under subsection (D), it is necessary to examine evidence 

related to the environment of the child to determine if the 

environment was the source of endangerment to the child’s physical 

or emotional well-being. Conduct of a parent in the home can create 

an environment that endangers the physical and emotional wellbeing of a child. 

. . . . Under subsection (E), the relevant inquiry is whether 

evidence exists that the endangerment of the child’s physical or 

emotional well-being was the direct result of the parent’s conduct, 

including acts, omissions, and failures to act . . . . 

To support a finding of endangerment, the parent’s conduct 

does not necessarily have to be directed at the child, and the child is 

not required to suffer injury. The specific danger to the child’s 

wellbeing may be inferred from parental misconduct alone . . . . As a 

general rule, conduct that subjects a child to a life of uncertainty and 

instability endangers the child’s physical and emotional well-being. 

 . . . . 

We have also stated that abusive or violent conduct by a 

parent may produce an environment that endangers the child’s 

physical or emotional well-being.28

Further, “even though imprisonment alone does not prove that a parent engaged 

in a continuing course of conduct that endangered the physical or emotional well-

 28In re M.N., No. 02-14-00404-CV, 2015 WL 3458315, at *1 (Tex. App.—

Fort Worth May 28, 2015, no pet.) (mem. op.) (internal quotations marks omitted) 

(quoting In re S.G., No. 02–14–00245–CV, 2015 WL 392772, at *5 (Tex. App.—

Fort Worth Jan. 29, 2015, no. pet.) (mem. op.), and ln re L.E.M., No. 02–11–

00505–CV, 2012 WL 4936607, at *2 (Tex. App.—Fort Worth Oct. 18, 2012, no 

pet.) (mem. op.)). 
16 

being of his child, it is nevertheless a factor that we may properly consider on the 

issue of endangerment.”29

While they also heard Father’s and Mother’s denials of any domestic 

violence, the jury heard evidence that Father had abused Mother and the 

children on multiple occasions and that Mother alternately reported and 

minimized his treatment of her to others but did nothing to protect her children 

from his known propensity for violence. The jury also heard about the multiple 

occasions that Father was absent from the home because of his incarceration. 

The jury is the sole judge of the credibility of the evidence.30 We therefore hold 

that the evidence is legally and factually sufficient to support the endangerment 

findings under subsections (D) and (E) against both Mother and Father.

C. Best Interest Findings 

1. The Law 

There is a strong presumption that keeping a child with a parent is in 

the child’s best interest.31 We review the entire record to determine the 

child’s best interest.32 The same evidence may be probative of both the 

 29In re G.H., No. 02-14-00310-CV, 2015 WL 1262627, at *2 (Tex. App.—

Fort Worth Mar. 19, 2015, no pet.) (mem. op.) (citation and internal quotation 

marks omitted). 

30See J.P.B., 180 S.W.3d at 573. 

31In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 

32In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). 
17 

subsection (1) ground and best interest.33 Nonexclusive factors that the 

trier of fact in a termination case may also use in determining the best 

interest of the child include: 

(A) the desires of the child; 

(B) the emotional and physical needs of the child now and in the 

future; 

(C) the emotional and physical danger to the child now and in the 

future; 

(D) the parental abilities of the individuals seeking custody; 

(E) the programs available to assist these individuals to promote 

the best interest of the child; 

(F) the plans for the child by these individuals or by the agency 

seeking custody; 

(G) the stability of the home or proposed placement; 

(H) the acts or omissions of the parent which may indicate that the 

existing parent-child relationship is not a proper one; and 

(I) any excuse for the acts or omissions of the parent.34

These factors are not exhaustive; some listed factors may be inapplicable 

to some cases.35 Furthermore, undisputed evidence of just one factor may be 

 33Id. at 249; C.H., 89 S.W.3d at 28. 

34Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations 

omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest 

finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384 

S.W.3d at 807. 

35C.H., 89 S.W.3d at 27. 
18 

sufficient in a particular case to support a finding that termination is in the best 

interest of the child.36 On the other hand, the presence of scant evidence 

relevant to each factor will not support such a finding.37 That is, “[a] lack of 

evidence does not constitute clear and convincing evidence.”38

2. Application to the Facts 

At trial, the children were ages six, five, four, and three years. It was clear 

from Mother’s testimony that she was bonded to each of her children. Bullock 

testified that the children loved their parents and that the children stated many 

times that they loved Mother. 

The children lived with Father’s cousin S.K. and her husband for several 

months after the removal. S.K. testified that the children told her that they loved 

their parents and wanted to go home. N.C. accused S.K.’s husband of 

inappropriate discipline. N.C. told Bullock that she lied about S.K.’s husband 

hitting her so she could go home. 

The CPS conservatorship worker, Amanda Rodriguez, who had been the 

family’s only conservatorship worker, testified that she believed that the parents 

and children loved each other. She further testified that during visits, the children 

 36Id.

37Id.

38E.N.C., 384 S.W.3d at 808. 
19 

showed their affection physically and the parents showed their love by bringing 

the children toys and food and positively interacting with them. 

Rodriguez also testified that based on her communications with the 

children and her observations of them, they were ready for a permanent 

resolution in the case. She admitted that termination would have a “significant 

impact on these children” because they loved their parents and “want[ed] their 

parents to be their parents[.]” Rodriguez testified that the children could 

overcome that hurdle with “a supportive, loving family,” continued therapy, and “a 

really good support system.” 

Bullock testified that she saw significant progress in the children over the 

fourteen months of therapy before trial. She believed that I.C. and N.C. made 

the most progress. She stated that I.C., who had been very reserved, opened up 

enough to laugh after accidentally flicking paint on her. D.C. became more 

verbal. 

Rodriguez agreed that sixteen months after the children originally came 

into care, I.C. was less fearful, more open, and more talkative. She also said that 

he did not like the tattoo and that TDFPS intended to have it removed if the 

parents’ rights were terminated. Rodriguez testified that A.C. and N.C. were 

“always . . . pretty verbal” and “willing to speak their mind” so had not “changed 

as much.” She stated that D.C. “ha[d] definitely become more verbal and more 

active.” Rodriguez stated that the children thrived in school, were very eager to 

learn, and therefore needed someone who would encourage them in school and 
20 

support them. She also stated that the children needed love, nurturing, respect, 

and safety in addition to having their basic needs met and that those needs 

would be at risk of not being met if the children were returned to the parents. 

Rodriguez testified that some of the children had eczema but no other special 

needs. 

Rodriguez testified to having concerns because neither parent ever 

acknowledged domestic abuse, other than Mother’s repudiated statement to the 

police, nor did they acknowledge child abuse. Rodriguez testified that while 

Father told her that he completed anger management, he did not provide proof of 

completion before trial. Father did provide evidence of completion at trial. 

Rodriguez also testified that the parents finished counseling but did not address 

the key issues. She testified, “[I]f the parents indicate that there are no issues to 

be addressed, then it’s very difficult, often impossible, for the provider to help 

them make progress on something they are told doesn’t exist.” Rodriguez 

testified that she had indicated when she made the counseling referral that she 

wanted Father and Mother to work on domestic violence issues, appropriate 

parenting, and “any kind of interpersonal relationships that [could] be affecting 

their ability to safely parent their children.” Rodriguez testified that TDFPS never 

felt like the children would be safe being returned to the parents full-time. She 

also testified that she believed the children would be in danger if they were 

returned to their parents. She identified Father’s hitting A.C. in the head with a 
21 

hammer and putting the children in the dryer as “the biggest concern[s] in this 

case.” 

Rodriguez testified that during CPS-supervised visits, neither parent was 

attentive enough to a potty-training child or a child in diapers. She also testified 

that the children, who were normally “very lively and active,” and “[e]ven 

rambunctious at times,” “would sit very still” in visits with Father. “They were very 

quiet.” It seemed to Rodriguez that “they were afraid.” On the other hand, 

Rodriguez testified that in Mother’s visits with the children, the children were 

more themselves, but Mother “appeared to be very overwhelmed” when they 

were excited or misbehaved and would end up giving up on her attempts to 

discipline and just ignore the behavior. Rodriguez saw no increase in Mother’s 

ability to apply skills she should have learned in her parenting class. 

Bullock testified that the children regressed some as access between the 

parents and children increased, with the most regression occurring when the 

overnight or weekend visits occurred, culminating in Bullock making a report to 

CPS at the end of October 2014 based on I.C. telling her that Father hit A.C. on 

the back several times during their weekend visit with the parents. 

Rodriguez testified that TDFPS’s ongoing concern about Father was “that 

he [was] unable to take responsibility for his role in the removal” and “that it d[id] 

not appear that he ha[d] gained protective capacities . . . to safely parent his 

children.” 
22 

Rodriguez testified that even though the children were in two separate 

foster homes at trial, TDFPS’s plan was relative adoption in one home. She 

stated that two families were interested in being considered for placement upon 

termination of the parents’ rights: Father’s cousin S.K. and her husband, who 

had taken the children into their home for more than a year after CPS initially got 

involved, and the B. family, Father’s aunt’s family. Rodriguez admitted that she 

had heard S.K. testify that she did not wish to adopt the children and that 

originally, the B. family had indicated that it could not take all the children. 

Rodriguez maintained that TDFPS had no wish to have permanent 

conservatorship of the children forever and would continue to focus on finding the 

children a single home. 

The jury could have properly concluded from the evidence that if the 

children were returned to their parents, Father would continue to abuse the 

children, unchecked by Mother, whom the jury could have also properly 

concluded was a victim of domestic violence who chose to remain with Father, 

despite their brief separation beginning shortly before trial. Given the children’s 

young ages and lack of significant needs or special issues, the jury could also 

have properly concluded that they were readily adoptable. Applying the 

appropriate standards of review, we hold that the evidence is legally and factually 

sufficient to support the best interest findings. 
23 

D. Conclusion on Sufficiency Issues 

We overrule Mother’s first two issues as to the endangerment and best 

interest findings and Father’s first and second issues as to those findings. 

Because the case was submitted to the jury in broad form, we need only find the 

evidence sufficient to support a single statutory ground for termination that was 

submitted to the jury and to support the best interest findings to uphold the 

termination judgment.39 We therefore do not reach the remainder of Mother’s 

first two issues or Father’s third issue challenging the trial court’s findings that the 

parents failed to comply with a court order.40

As to Father’s adoption of Mother’s first two issues, even if he could 

properly attack the termination findings against Mother, which we do not hold,41

he failed to challenge the sufficiency of the evidence supporting the jury findings 

against Mother in his amended motion for new trial and therefore did not 

preserve error.42 We therefore also overrule Mother’s first two issues as adopted 

by Father. 

 39See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.N., 405 S.W.3d 

863, 872 (Tex. App.—Amarillo 2013, no pet.). 

40See Tex. R. App. 47.1. 

41See In re T.N., 142 S.W.3d 522, 524–25 (Tex. App.—Fort Worth 2004, 

no pet.). 

42See Tex. R. App. P. 33.1(a); Citigroup Glob. Mkts. Realty Corp. v. 

Stewart Title Guar. Co., 417 S.W.3d 592, 594 n.1 (Tex. App.—Houston [14th 

Dist.] 2013, no pet.). 
24 

II. Evidentiary Issues 

Mother complains in her fourth issue and Father complains in his first, 

second, and fifth issues about the admission of play therapist Bullock’s testimony 

and notes about the children’s statements of abuse by Father, and Father also 

complains in his fourth issue about the admission of Mother’s statements to 

family members about his abuse of her. 

A. Bullock’s Testimony Repeating Children’s Comments 

1. Section 104.006 hearing 

Within his first two issues, Father complains that the trial court erred by not 

conducting a family code section 104.006 hearing regarding the children’s 

comments repeated by Bullock in her testimony.43 But Father did not object to or 

seek to limit the admissibility of TDFPS’s Exhibit 7, which contained the same or 

similar information as that derived from the children’s statements—Father hit 

A.C. on the side of his head, causing a bruise and pain; Father hit A.C. in the 

head with a hammer, causing a quarter-size cut; Father hit N.C. in the back, 

causing a fist-sized bruise; Father put children in the dryer and turned it on. 

“[U]nobjected-to hearsay is, as a matter of law, probative evidence.”44 Further, 

when evidence that is identical or similar to the objected-to evidence is admitted 

 43See Tex. Fam. Code Ann. § 104.006 (West 2014). 

44Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 516 (Tex. 

1999); see Tex. R. Evid. 802 (“Inadmissible hearsay admitted without objection 

may not be denied probative value merely because it is hearsay.”); City of Keller 

v. Wilson, 168 S.W.3d 802, 812 n.29 (Tex. 2005). 
25 

elsewhere without objection, there is no harm.45 We therefore overrule the 

remainder of Father’s first and second issues. 

2. Rule 803(4) 

In his fifth issue, Father contends that the children’s out-of-court 

statements reported by Bullock do not qualify as a hearsay exception under rule 

of evidence 803(4).46 Again, the same or similar information was admitted 

without objection or limitation in TDFPS’s Exhibit 7. Thus, even if the trial court 

abused its discretion by admitting Bullock’s testimony and notes containing the 

children’s statements, a holding we do not reach, Father can show no harm.47 

We overrule his fifth issue. 

3. Mother’s Motion to Strike and Motion for Mistrial 

In her fourth issue, Mother contends that the trial court abused its 

discretion by denying her motion to strike and motion for mistrial based on 

Bullock’s testimony about the statements that the children made to her. Mother 

did not object on the first day of Bullock’s testimony. On the second day, when 

 45In re W.J.H., 111 S.W.3d 707, 714 (Tex. App.—Fort Worth 2003, pet. 

denied); see Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 

(Tex. 2008). 

46See Tex. R. Evid. 803(4). 

47See Reliance Steel & Aluminum Co., 267 S.W.3d at 873; W.J.H., 111 

S.W.3d at 714; see also Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 

231, 235 (Tex. 2007); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 

(Tex. 2004). 
26 

Bullock’s notes were introduced, Mother objected to the lack of proper foundation 

to TDFPS’s Exhibits 20 and 21 but withdrew her objection to at least Exhibit 21 

and possibly to both exhibits after TDFPS provided more predicate evidence; the 

record is unclear. Regardless, Mother made no other objections regarding the 

testimony about the children’s statements. 

On the day following the completion of Bullock’s testimony, Father filed a 

motion for reconsideration challenging the admissibility of her testimony 

regarding the children’s statements. During the arguments on that motion, 

Mother’s attorney stated, 

Your Honor, it is my recollection that a 104.006 hearing was 

requested and—or offered, one or the other, and denied by the 

court. And therefore I understood that there was an implicit finding 

of reliability in the children’s statements. And based on my research 

of the case law I determined that based on that implicit ruling, in my 

mind, anyway, and the case law on 702, 703, I did not make an 

objection; however, I was also not in possession of the Taylor case. 

I was given a copy of the Taylor case at the close of the 

testimony, I have now had a chance to review that case, and I 

believe that it is probable that an appellate court could overturn and 

send us back to a new trial on the admission of that evidence. So I’d 

ask the court to, at the very least, grant a[n] instruction to the jury 

that they not consider the hearsay statement evidence. But I would 

prefer a mistrial. 

In the interest of justice, we will treat this as Mother’s motion to strike and 

motion for mistrial. The trial court did not explicitly rule on Mother’s oral requests. 

Ultimately, the trial court denied Father’s motion, which we will treat as an implicit 

denial of Mother’s oral motion. 
27 

Mother did not object at all when the testimony was admitted, and she 

cannot rely on Father’s objection.48 Urged only after all Bullock’s testimony about 

the children’s statements had been admitted with no objection by Mother, 

Mother’s motion to strike or for mistrial regarding the testimony was untimely and 

did not preserve error.49 Additionally, as to her entire issue, because TDFPS’s 

Exhibit 7 was admitted without objection or limitation and contains the same 

damaging information about the abuse of the children as Bullock’s testimony and 

notes, any error would be harmless.50 We overrule this issue and, because of 

the admission of TDFPS’s Exhibit 7 with no objection or limitation, Father’s 

adoption thereof. 

B. Mother’s Out-of-Court Admission 

In his fourth issue, Father contends that the trial court abused its discretion 

by admitting Mother’s statements made to third parties against him over his 

objection and by denying his request that the jury be admonished that they could 

not consider such evidence against him. But Father does not direct us to any 

 48See, e.g., In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at *7 (Tex. 

App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.); Howard v. Phillips, 728 

S.W.2d 448, 451 (Tex. App.—Fort Worth 1987, no writ). 

49See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1); In re A.B.G., No. 09-

11-00545-CV, 2013 WL 257311, at *5 (Tex. App.—Beaumont Jan. 24, 2013, no 

pet.) (mem. op.); Farm Servs. Inc. v. Gonzales, 756 S.W.2d 747, 750 (Tex. 

App.—Corpus Christi 1988, writ denied). 

50See Bay Area Healthcare Grp., Ltd., 239 S.W.3d at 235; Volkswagen of 

Am., Inc., 159 S.W.3d at 907. 
28 

place or places in the record where he so objected or requested. We therefore 

overrule this issue as inadequately briefed.51

III. Improper Comments by Trial Court 

In her third issue, Mother contends that the trial court erred by improperly 

commenting on Father’s credibility and “the weight of the hearsay offered 

through” Bullock. Mother complains about two particular instances. One 

instance occurred as Father was testifying about the tattoo that evidence showed 

I.C. received either when he was one year old or when he was about three years 

old: 

Q. So you think the tattoo—those three circles on your 

son’s wrist, you think that just took a couple of seconds? 

A. I mean, I’m guessing that. 

Q. [Father], based on your experience getting tattoos don’t 

you think it took longer than that? 

A. No. 

Q. How old was your son when that happened to him? 

A. He was about three. 

Q. Do you think that hurt him? 

A. I asked him. But, I mean, he didn’t really talk about it. 

[Ad litem]: Objection. Nonresponsive. 

 51See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 

284–85 (Tex. 1994); Hall v. Stephenson, 919 S.W.2d 454, 466–67 (Tex. App.—

Fort Worth 1996, writ denied); see also Tello v. Bank One, N.A., 218 S.W.3d 109, 

116 (Tex. App.—Houston [14th Dist.] 2007, no pet.). 
29 

Q. . . . Do you think that hurt him? 

A. Yes. 

THE COURT: Can you hold your breath for three seconds? 

[A.]: Yes. 

THE COURT: Let’s see you hold your breath for as long as it 

takes to put three circles on somebody’s fingers with tattoos. Take a 

big deep breath and hold it while we put the tattoo on. 

[A.]: I was only out less than five minutes. 

THE COURT: No, you said it takes less than three seconds to 

put the tattoo on your son’s hand. I want to see if you can hold your 

breath long enough to put a tattoo on. You can’t do it, can you? 

[A.]: I can hold my breath, but I’m not sure what you’re 

asking. 

THE COURT: Yeah, you are. Go ahead. 

The other instance occurred as Father’s trial counsel objected to the 

admission of the children’s statements through their play therapist: 

Q. So I’m going to ask you again, when did [A.C.] talk 

about the hammer? 

A. It was August the 4th, 2014. 

Q. What did he say? 

[Father’s counsel]: Again, Your Honor, I would object. Calls 

for hearsay. I don’t think there’s been a predicate laid as to [A.C.] as 

a credible source at that particular time. And the validity and 

reliability of the statement, I don’t think, has been satisfied. I think 

the court is required to have a special hearing on that. 

THE COURT: Don’t forget to say it’s very prejudicial to your 

client. 

[Father’s counsel]: I’m sorry? 
30 

THE COURT: Don’t forget to say it’s very prejudicial to your 

client. Overruled. 

[Father’s counsel]: Your Honor, may we approach? 

THE COURT: No. 

[Father’s counsel]: Your Honor, I respectfully move for a 

mistrial. Court’s last comment is unique in my 46 years of practicing 

law, and I think it’s inappropriate and I can’t allow my client to let that 

go. So I would move for a mistrial at this time. 

THE COURT: Denied. 

Mother did not timely object to either comment. “[O]bjection to a trial 

court’s alleged improper conduct or comment must be made when it occurs if a 

party is to preserve error for appellate review, unless the conduct or comment 

cannot be rendered harmless by proper instruction.”52 While Mother argues that 

the trial court’s comments were incurable by instruction and required no 

objection, she does not “explain how any comments made by the trial judge were 

incurable or would excuse [her] failure to preserve error.”53 Additionally, her 

motion to recuse the judge and motion for mistrial, filed the next day, were not 

timely to preserve this complaint about the comments.54 We note that Mother 

does not complain about the denial of her motion to recuse. We overrule 

Mother’s third issue. 

 52Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); see Tex. R. 

App. P. 33.1. 

53See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241. 

54See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241. 
31 

Father has adopted by reference Mother’s briefing of her third issue, but he 

did not object that the trial court improperly commented on the tattoo evidence. 

He therefore did not preserve that complaint.55 Father did, however, preserve his 

complaint in the second exchange quoted above. Father’s trial counsel stated 

his often repeated objection to Bullock’s testimony: 

Again, Your Honor, I would object. Calls for hearsay. I don’t 

think there’s been a predicate laid as to [A.C.] as a credible source 

at that particular time. And the validity and reliability of the 

statement, I don’t think, has been satisfied. I think the court is 

required to have a special hearing on that. 

The trial court stated, “Don’t forget to say it’s very prejudicial to your client.” 

Father’s counsel queried, “I’m sorry?” and the trial court repeated, “Don’t forget to 

say it’s very prejudicial to your client. Overruled.” Father’s counsel then moved 

for a mistrial based on the comment, and the trial court denied the motion. 

As the Supreme Court of Texas has explained, 

The United States Supreme Court, when presented with similar 

allegations of judicial bias, has determined that judicial rulings alone 

almost never constitute a valid basis for a bias or partiality motion, 

and opinions the judge forms during a trial do not necessitate 

recusal unless they display a deep-seated favoritism or antagonism 

that would make fair judgment impossible. Thus, judicial remarks 

during the course of a trial that are critical or disapproving of, or even 

hostile to, counsel, the parties, or their cases, ordinarily do not 

support a bias or partiality challenge. Further, not establishing bias 

or partiality are expressions of impatience, dissatisfaction, 

annoyance, and even anger. A judge’s ordinary efforts at courtroom 

administration—even a stern and short-tempered judge’s ordinary 

efforts at courtroom administration—remain immune. In short, a trial 

 55See Tex. R. App. P. 33.1; Dow Chem. Co., 46 S.W.3d at 241. 
32 

court has the inherent power to control the disposition of cases with 

economy of time and effort for itself, for counsel, and for litigants. 

Similarly, Texas courts have held that the discretion vested in 

the trial court over the conduct of a trial is great. A trial court has the 

authority to express itself in exercising this broad discretion. Further, 

a trial court may properly intervene to maintain control in the 

courtroom, to expedite the trial, and to prevent what it considers to 

be a waste of time.56

Mother’s argument, as adopted by Father, is that the trial court’s 

comments were a comment on the weight of the evidence because the trial court 

indicated an opinion on the truthfulness of the evidence. As the State points out 

in its response to Mother’s brief, however, it is just as likely that the trial court 

was sarcastically commenting on trial counsel’s wordiness. Regardless, given 

the totality of the evidence against Father, we hold that Father has not shown 

that this comment of the trial court probably caused the rendition of an improper 

judgment against Father.57 We therefore overrule Father’s adopted third issue. 

In his sixth issue, Father contends that he “did not receive a fair trial and 

due process of law because of the Trial Court’s comments on evidence and 

 56Dow Chem. Co., 46 S.W.3d at 240–41 (citations, internal quotation 

marks, and internal quotation alteration marks omitted).

57See Tex. R. App. P. 44.1(a); In re M.R.J.M., 280 S.W.3d 494, 501 n.7 

(Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g); Metzger v. Sebek, 892 

S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994, writ denied). 
33 

display of animosity toward Father and his Counsel.” Father cites no legal 

authority for his contentions. We therefore overrule his sixth issue.58

IV. Jury Charge 

In his seventh issue, Father contends that the trial court committed jury 

charge error by defining “direct evidence,” instructing the jurors on the 

preponderance-of-the-evidence burden of proof, and omitting the phrase “strong 

presumption” concerning the rights of parents and children. We review a jury 

charge for an abuse of discretion.59 A trial court abuses its discretion if the court 

acts without reference to any guiding rules or principles, that is, if the act is 

arbitrary or unreasonable.60 An appellate court cannot conclude that a trial court 

abused its discretion merely because the appellate court would have ruled 

differently in the same circumstances.61

A. Direct Evidence Instruction 

Father objected to part of the following instruction: 

 58See Tex. R. App. P. 38.1(i); Hall, 919 S.W.2d at 467; see also Fredonia 

State Bank, 881 S.W.2d at 284–85. 

59Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) 

(op. on reh’g); see In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). 

60Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 

S.W.3d 835, 838–39 (Tex. 2004). 

61E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 

1995); see also Low, 221 S.W.3d at 620. 
34 

A fact may be established by direct evidence or by circumstantial 

evidence or both. A fact is established by direct evidence when 

proved by documentary evidence or by witnesses who saw the act 

done or heard the words spoken. A fact is established by 

circumstantial evidence when it may be fairly and reasonably 

inferred from other facts proved. 

Father’s objection was: 

[T]here is a definition given in this proposed jury instruction that 

doesn’t seem right to me. It’s a definition of what is direct evidence. 

And it says direct evidence is evidence that’s proved by a document. 

And I tried—I saw that or at least recognized it for the first time this 

morning. Spent an hour and a half trying to find a good definition for 

what is direct evidence. And I’ve asked the court reporter if she had 

something that defined that, and she wasn’t able to find it. 

I was not looking through the pattern jury instructions for CPS. 

I have all the ones for criminal law and couldn’t find it there. Not to 

say it’s not there, I just couldn’t find it. 

And—but in this case it would be in my opinion error to instruct 

the jury that a document is, if I may— 

. . . . 

. . . . I don’t have the final product. But it says if acts 

established by direct evidence have been proved by documentary 

evidence or by witnesses who saw the act done or heard the word 

spoken. I don’t think just because something is in a document 

makes it direct evidence. 

And particularly in this case the court admitted into evidence 

copies of notes taken by Ms. Bullock that included statements made 

outside the court, obviously in her session, by one or several of the 

children at various times. 

So my objection was hearsay and hearsay on hearsay. But to 

call it direct evidence of anything, I think, is misapplication of my 

understanding of direct evidence. Direct evidence, I would think, 

would be that is provided by witnesses who were percipient to what 

was happening. And anything else is circumstantial evidence. 
35 

Father cites no legal authority for his contention that the trial court erred by 

giving the instruction; we therefore overrule this complaint as inadequately 

briefed.62 We note, however, that the instruction is the pattern jury charge 

instruction for circumstantial evidence.63

B. Proof by a Preponderance of Evidence 

Referencing only Santosky and “Due Process,” Father also complains of 

the managing conservatorship questions, contending that they reference the 

wrong burden of proof. The jury did not reach these questions. Father has 

therefore shown no harm.64 In the interest of justice, we note that the questions 

reflect the proper burden of proof for issues of conservatorship.65

C. Omission of Instruction on Strong Presumption 

Finally, Father complains that the trial court failed to instruct the jury that 

there is a “[s]trong presumption that the best interest of the child is served by 

keeping a child with a parent.” While he cites the case that line is taken from,66

 62See Tex. R. App. P. 38.1(i) (providing that a brief must contain 

appropriate citations to authorities); Hall, 919 S.W.2d at 467; see also Fredonia 

State Bank, 881 S.W.2d at 284–85. 

63See, e.g., Comm. on Pattern Jury Charges, State Bar of Tex., Texas 

Pattern Jury Charges: Family & Probate PJC 200.8 (2016). 

64See Tex. R. App. P. 44.1(a). 

65See Tex. Fam. Code Ann. § 105.005 (West 2014); In re J.A.J., 243 

S.W.3d 611, 616 (Tex. 2007). 

66See R.R., 209 S.W.3d at 116. 
36 

he cites no authority for the proposition that excluding the statement from the jury 

charge is an abuse of discretion.67 We overrule Father’s seventh issue. 

V. Jury Size 

In his eighth issue, Father contends that the trial court reversibly erred by 

denying his request for a twelve-person jury, violating his constitutional rights to 

equal protection and due process. Father did not raise an equal protection 

complaint in the trial court. He has therefore forfeited that part of his issue,68 and 

this court has already rejected a due process challenge to the government code’s 

provision allowing a termination case in Parker County to be heard by a jury of 

six members.69 We overrule Father’s eighth issue. 

VI. Ineffective Assistance of Mother’s Counsel at Trial 

In her fifth issue, Mother contends that her trial counsel provided 

ineffective assistance of counsel by failing to object to (1) the two alleged 

improper comments that the trial court made when Father was testifying and 

when Father’s counsel was objecting, as discussed in her third issue; (2) 

Bullock’s alleged hearsay testimony discussed in Mother’s fourth issue as well as 

 67See Tex. R. App. P. 38.1(i); Hall, 919 S.W.2d at 467; see also Fredonia 

State Bank, 881 S.W.2d at 284–85. 

68See Tex. R. App. P. 33.1(a), (b); Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex. 

2002); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). 

69See In re G.C., 66 S.W.3d 517, 524–27 (Tex. App.—Fort Worth 2002, no 

pet.). 
37 

the cumulative evidence offered through other witnesses of the children’s out-ofcourt statements; and (3) TDFPS’s closing argument allegedly stating that 

Mother had testified that she would reunite with Father if her parental rights were 

not terminated and that there was no reason that she should not. To prove 

ineffective assistance, Mother must show that her trial counsel’s performance 

was so deficient that it denied her a fair trial whose result was reliable.70

A. Alleged Improper Comments 

We have held that given the totality of the evidence against Father, Father 

has not shown that the comment of the trial court, “Don’t forget to say it’s very 

prejudicial to your client,” probably caused the rendition of an improper judgment 

against Father.71 We therefore also hold that Mother’s trial counsel’s failure to 

object to it likewise did not harm Mother’s case.72 As to the trial court’s comment 

regarding Father’s testimony about the tattoo, Mother cannot show that that 

comment, in light of the evidence of all the other abuse that she and her children 

suffered at Father’s hands, harmed her case or deprived her of a fair trial.73

 70See In re J.O.A., 283 S.W.3d 336, 341–42 (Tex. 2009) In re M.S., 115 

S.W.3d 534, 545 (Tex. 2003); see also Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064 (1984).

71See Tex. R. App. P. 44.1(a); M.R.J.M., 280 S.W.3d at 501 n.7; Metzger, 

892 S.W.3d at 39. 

72See Tex. R. App. P. 44.1(a). 

73See M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 687, 104 

S. Ct. at 2064. 
38 

B. Evidence of the Children’s Out-of-Court Statements 

Mother complains that her trial counsel was ineffective for failing to 

properly object to the testimony of several witnesses, including Bullock, regarding 

the children’s out-of-court statements recounting abuse. Mother does not 

complain of her trial counsel’s failure to object to TDFPS’s Exhibit 7, which 

contains the brunt of the damaging information relayed in the children’s out-ofcourt statements to Bullock and other witnesses. That exhibit was admitted 

without objection during Father’s testimony and before all the other witnesses 

testified. Because the damaging evidence was already admitted through Exhibit 

7 and because Mother does not complain of the admission of that exhibit, we 

cannot say that the later admission of the same or similar evidence from other 

sources harmed her case.74 Accordingly, we conclude and hold that Mother has 

not shown ineffective assistance—that she was deprived of a fair trial with a 

reliable result—because she has not shown any prejudice to her defense from 

the alleged failures of her trial counsel to object to identified testimony and 

evidence.75

 74See Tex. R. App. P. 44.1(a); Bay Area Healthcare Grp., Ltd., 239 S.W.3d 

at 235; Volkswagen of Am., Inc., 159 S.W.3d at 907. 

75See M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 687, 104 

S. Ct. at 2064. 
39 

C. Closing Argument 

Mother testified that she asked Father to move back home a couple of 

weeks after a magistrate issued an emergency protective order against him 

because she needed help with their children. Mother also testified, 

Q. . . . . If these children are returned to your care are you 

going to reside with [Father]? 

A. If—if the court doesn’t want me to I won’t. 

[Ad litem]: Objection, Your Honor. Nonresponsive. 

Q. . . . What is your plan if these children are returned to 

you? Do you intend to live with [Father]? 

A. No. 

Q. When did he move out? 

A. A few weeks ago. 

Q. How long have your children been in care? 

A. Since April of 2014. 

Q. What are your plans for the children if they’re returned 

to your care as far as living arrangements? Where do 

you intend to live with them? 

A. In the apartment? 

Q. You and [Father] in the same apartment? 

A. I’m sorry? 

Q. You and [Father] with them in the same apartment? 

A. He already moved out. 

. . . . 

[Q.] (BY [TDFPS Counsel]) Why are you separated now? 
40 

A. Well, I guess we see how the case is going so we need 

to separate. We’re trying to do this together. 

Q. So in the last few weeks you decided it might be better if 

you split up? 

A. Yes. 

Father testified that he had left the couple’s home “maybe two[ or] three 

weeks” before trial and that he and Mother were “basically doing everything [they 

could] to get the kids back.” He stated that if he “ha[d] to move out so she [could] 

get them, at least they[ would] be with her.” “It’s something that [Father and 

Mother] just came up with.” 

In TDFPS’s closing argument, counsel argued, 

These children are in foster care due to the abuse and the 

neglect of the parents. The abuse by [D]ad, and the neglect, 

neglectful supervision by [M]om by leaving the kids with [D]ad. And 

not doing anything when the kids say hey, [D]ad puts us in the dryer. 

Don’t do that. 

Who did she choose? Who has she chosen in this case? She 

chooses [Father]. 

Could I have left at any time? I could have. Fifteen months 

later, all right. I guess we’re going to separate. Why are you going 

to separate 15 months later? What’s the point? You don’t admit 

anything happened, why would you separate? Why would you live 

in separate houses? Why would he go somewhere else? Fifteen 

months later, September 1st, he moves out. 

What are you going to do if the kids come back you to, 

[Mother]? I’m going to get back with [Father]. There’s no reason I 

shouldn’t. 
41 

Control of counsel’s conduct during jury argument rests in the sound 

discretion of the trial court.76 The test for improper jury argument is whether the 

argument could have persuaded a juror of ordinary intelligence to agree to a 

verdict contrary to that to which he would have agreed but for the argument.77 

Reasonable inferences and deductions from the evidence are allowed in closing 

argument, as is hyperbole.78 Reversal is required only when the entire record 

shows that the jury argument was improper, uninvited and unprovoked, 

preserved by a timely objection, and incurable by instruction, withdrawal, or trial 

court reprimand.79 Further, an appellant must show that the argument 

constituted harmful error by its nature, degree, and extent.80

Given the evidence of Father’s multiple instances of abuse of Mother, of 

Mother’s knowledge of his abuse of the children, and of Mother’s remaining with 

Father until separating strategically only right before trial, we hold that TDFPS’s 

 76Richmond Condos. v. Skipworth Commercial Plumbing, Inc., 245 S.W.3d 

646, 667–68 (Tex. App.—Fort Worth 2008, pet. denied) (op. on reh’g); Wells v. 

HCA Health Servs. of Tex., Inc., 806 S.W.2d 850, 854 (Tex. App.—Fort Worth 

1990, writ denied); see also Tex. R. Civ. P. 269. 

77See Richmond Condos., 245 S.W.3d at 667–68. 

78See Walls v. Klein, No. 04-13-00565-CV, 2014 WL 3339791, at *1 (Tex. 

App.—San Antonio July 9, 2014, pet. denied) (mem. op.). 

79See id. at 668; see also Standard Fire Ins. Co. v. Reese, 584 S.W.2d 

835, 839 (Tex. 1979). 

80Standard Fire, 584 S.W.2d at 839; Richmond Condos., 245 S.W.3d at 

668; see Tex. R. App. P. 44.1(a). 
42 

argument that Mother would return to Father should the children be returned to 

her was a reasonable inference from the evidence and not improper.81 Mother’s 

trial counsel therefore properly did not object to it. 

D. No Ineffective Assistance Proved 

Because Mother did not prove ineffective assistance of counsel at trial in 

any of the three categories she identified, we overrule her fifth issue. Because 

Father has demonstrated no standing to complain that Mother’s trial counsel was 

ineffective, we overrule his adoption of Mother’s fifth issue.82

VII. Conclusion 

Having overruled Mother’s dispositive issues, Father’s dispositive issues, 

and Mother’s issues adopted by Father, we affirm the trial court’s judgment 

terminating the parent-child relationships between Mother and each child and 

between Father and each child. 

PER CURIAM 

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ. 

DELIVERED: April 7, 2016 

 81See Walls, 2014 WL 3339791, at *1. 

82See Buckholts ISD v. Glaser, 632 S.W.2d 146, 149–50 (Tex. 1982); In re 

D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.).