## 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

---------- FROM COUNTY COURT AT LA W NO. 1 OF PARKER COUNTY TRIAL COURT NO. CIV14-0275

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### MEMORANDUM OPINION 1

---------- After a trial, a jury found by clear an d convincing evidence that the parentchild relationships between Appellant C.R. (Mother) and children I.C., N.C., A.C., and D.C. and between Appe llant D.C. (Father) and each of the four children should be terminated. The trial court fo und by clear and co nvincing evidence that Mother and Father had knowingly placed or knowingly allowed the four

1 See Tex. R. App. P. 47.4.2 children to remain in conditions or su rroundings which endangered their physical or emotional well-being; had engaged in conduct or knowin gly placed their children with persons who engaged in conduc t which endangered the children’s physical or emotional well-being; and had fail ed to comply with the provisions of a court order that specifical ly established the actions ne cessary 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 ch ildren’s removal from Mother and Father under ch apter 262 for the abuse or neglect of the children. 2 The jury implicitly found and the tria l court explicitly found by clear and convincing evidence that termination ofthe parent-child relationships between the children and Mother and Father wa s in the children’ s best interest. 3 The trial court terminated the parent-child relati onships between the children and Mother and Father, and Mother and Father timely appealed. In five issues, Mother contends that the evidence is le gally and factually insufficient to support termination; that the trial court abused its discretion by improperly commenting on Father’s credibility and th e weight of the alleged hearsay offered through the play therapis t; that the trial court erred by denying

2 See Tex. Fam. Code Ann. § 161.0 01(b)(1)(D), (E), (O) (West Supp. 2015).

3 See id. § 161.001(b)(2).3 Mother’s motion to strike and motion for mistrial rega rding 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 thos e five issues by reference 4 and also raises eight other issues challenging the legal an d 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 cour t violated his rights to a fa ir trial and due process by sua sponte compelling a demonstration by Father and commenting on the evidence, his credibility, Father’s counsel’s perform ance and ethics, and the weight of the evidence offered agains t Father. Because we hold that the evidence is sufficient to sup port termination, that the tr ial court did not reversibly err, and that Mother did not prove thather trial counsel committed ineffective assistance of counsel at tria l, we affirm the trial court’ s judgment terminating both parents’ parental rights. I. Sufficiency of the Eviden ce to Support Termination In her first two issues, Mother chal lenges the endangerment findings against her, the no-compliance finding agai nst her, and the best interest finding against her. In his firs t three issues, Father chal lenges the endangerment, nocompliance, and best interest findings against him.

4 See Tex. R. App. P. 9.7.4 A. Standard of Review In a termination case, the State seeks no t just to limit parental rights but to erase them permanently—to divest the pa rent and child of all legal rights, privileges, duties, and powers normally ex isting between them, except the child’s right to inherit. 5 Consequently, “[w]hen the Stat e seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures.” 6 We strictly scrutiniz e termination proceeding s and strictly construe involuntary termination statutes in favor of the parent. 7 Termination decisions must be s upported by clear and convincing evidence. 8 “[C]onjecture is not enough.” 9 Due process demand s this heightened standard because “[a] paren tal rights termination proceeding encumbers a value ‘far more precious th an any property right.’” 10 Evidence is clea r and convincing if

5 Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985).

6 In 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)).

7 In 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.

8 See 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).

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

10 E.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 ofthe trier of fact a firm be lief or convicti on as to the truth of the allegations so ught to be established.” 11 For a trial court to term inate a parent-child re lationship, TDFPS must establish by clear and convin cing evidence that the pa rent’s actions satisfy one ground listed in family code section 161.001(b)(1) and th at 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 fi rm belief or conviction that the challenged ground for termination was proven. 14 In this case, then, we de termine whether the evidence is such that the jury could reasonably fo rm a firm belief or co nviction that TDFPS proved the subsection (D), (E), or (O) te rmination ground and that termination of

11 Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C. , 384 S.W.3d at 802.

12 Tex. Fam. Code An n. § 161.001(b); E.N.C. , 384 S.W.3d at 803; In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005).

13 Tex. 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.).

14 In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005).6 the parent-child relationship s between both parents and th e four children is in the children’s best interest. 15 We review all the evidence in the lig ht 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 evid ence that a reasonable factfinder could have disbelieved. 18 We consider undisput ed 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 de pend on the appearance and demeanor of the witnesses becaus e that is the factfinder’s province. 22 And

15 See Tex. Fam. Code Ann. § 161. 001(b)(1)(D), (E), (O), (2).

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

17 Id.

18 Id.

19 Id.

20 See id.

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

22 J.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 factua lly sufficient to sup port the termination of a parent-child relationship. 24 In reviewing the evidence for factual sufficiency, we give due deferenc e to the factfinder’s findings and do not supplant the verdict with our own. 25 We determine whether, on the en tire record, a factfinder could reasonably form a firm convic tion or belief that the parent violated subsection (D), (E), or (O) of section 161.001(b)(1) and th at termination was in the children’s best interest. 26 If, in light of the entire record, th e disputed evidence that a reasonable factfinder could not have cr edited in favor of the findin g is so significant that a factfinder could not reasonably have formed a firm belief or conv iction in the truth of its finding, then the eviden ce is factually insufficient. 27

23 Id. at 573.

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

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

26 See Tex. Fam. Code Ann. § 161.001(b); In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002).

27 H.R.M. , 209 S.W.3d at 108.8 B. Endangerment Findings: Law and Application to Facts TDFPS’s Exhibit 7, the fa mily service plan, was ad mitted into evidence at trial without objection or limitation whil e TDFPS was questioning Father. The exhibit includes th e following language, On March 26, 2014 [TDFPS] re ceived 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 br uise on the left side ofhis 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 a lleged that [A.C.] sustai ned 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 br uise on her back. [Mother] and [Father] claimed that the injurywas 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 piec e of a lighter. [A.C.] stated that this was done by Uncle D. It is unknown ifthe children have old injuries; however, [D.C.] II, [A.C .], and [N.C.] have severa l scars, especially [A.C]. . . .

. . . . The level of concern for child vulnerability is extreme because of the following reasons: The child ren are under the age of five and are[,] therefore, unable to protec t themselves. The children also appear to fear retribution from [Father]. The level of concern for care giver capability is extreme because of the following reasons: [Father] and [Mother] appear to lack knowledge of ch ild development and si gnificantly lack the parenting skills needed to meet the children’s be havioral and developmental needs. The discip line practices of [Father are] violent, out of control, and dispro portionately harsh compared to the misbehavior, as he hit [A.C.] in the head with a hammer after he9 defecated in the closet. [Father] was also recently arrested for assault causing bodily inju ry to a family member. The level of concern for quality of care is extreme because of the following reasons: [Mother] la cks empathy towards the children by believing [Father’s] story over what the children tell her. The children have been left with an inap propriate caregiver, [Father], after [he] assaulted [Mother]. [A.C.] did not receive medical treatment either time he rece ived a head injury. . . . The level of concern for malt reatment pattern is extreme because of the following reasons: [A.C.] has received harm that is inflicted (non-accidental) and was se rious. Hitting the children in the head and putting them in the dryer is bizarre maltreatment. [Father]’s and [Mother]’s explanat ion[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 we re being put in the dryer and the dryer was being turned on wh ile they were in there. The level of concern for the ho me and social environment is considerable because of the following reasons: . . . [Father]’s violent behaviors expose the chil dren to danger. [Mothe r] has been a victim of family violence. [Father] cu rrently faces criminal charges for assault causing bodily inju ry to a family member. The level of concern for response to intervention is considerable for the following reas ons: [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 protecti ve 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 th e children and provide adequate supervision of the children. [Mother] rejects necessary protective interventions, as she allowed [F ather] to supervise the children despite a protective order that stated she was not to do this. Father’s cousin L.G. test ified that one summer day in 2012, 2013, or 2014, she saw a welt on Mother’s ar m. Mother told L.G. that Father had hit her with a10 metal chain, causing the we lt. Later that day, L.G. witnessed an altercation between Mother and Father. They argu ed, and then Father hit Mother’s head multiple times with a stee l-toed boot. L.G.’s disabl ed brother and mentally ill younger brother saw the ass ault; L.G. testified that Mo ther and Father’s children were also in the room during the assault but that she believed they were asleep. L.G. testified that the nextday, Mother’s face was so swollen and her right eye was so bloody that she look ed like the character E.T. L.G. testified that Mother had also told her of a time when Fa ther had slapped Mother in Azle. L.G. testified that she believed the chil dren were disciplined “[a] little much, but not as bad as what ha ppened . . . 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 sh e 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 diagnose d with a concussion and received six staples to close her head wound. When K.C. drov e Mother back to her Granbury home, K.C. saw that I.C. appear ed scared and withdrawn, which was not his usual demeanor, and she took him home with her.11 S.K., Father’s cousin, testified that sh e went to the family ’s home a couple of days later and saw Mo ther 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 ar gued, she had thrown a shoe at him, and then he had beat en her with a steel-toed boo t. Mother told S.K. that the children and L.G. had witnessed the as sault. 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 admitte d that she had aske d another relative to take her to the Weatherford hospital , where she made up a story to avoid incriminating Father, who was already on pr obation. S.K. a sked why Mother did not leave Father, and Mother told her that she could not leave the children without a father. S.K. also testified th at “pretty much everybody in the family offered [Mother] somewhere to stay if she left [Father].” S.K. testified aboutanother incident in which she heard Mother and Father fighting behind a locked do or. When the door opened , Mother was crying and stated that Father had justchoked 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 Mo ther told her that Father had made the12 tattoo gun. Father testified that he thought a roommate ha d given the child a tattoo when Father went ou tside 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., an d she reported the incident to CPS. CPS remo ved 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. No ne of the children ever told S.K. anything different about the cause of the injury. Fa ther told S.K. th at a wooden box fell on A.C.’s head when he was trying to climb up a dresser to retrie ve “a DVD or something like that.” Mother testified that A.C. told her a similar story the night of the incident, but she admitted thatshe never questioned him alone. On February 21, 2014, Mot her had told the police in writing that Father had hit her with a toy and his hand. He was then arrested for as sault with bodily injury to a family member. Mother testified that she lied to the police about the assault because she was mad at Father, wh ose brother had told her that Father was cheating on her while s he was at work. A magistra te entered an emergency protective order against Father. Motherdid 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 mo ved 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 s he had ever told anyone th at he had hit her except the police in the incident described above. Mother also testif ied that she knew that the children had accused Father of hi tting them but that she did not believe they were telling the truth. Father likewise denied all egations 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 re ported “[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 late r, “[h]e said [A]unt said we [are] going back to [D]ad. . . . He put me in dryer. Aunt sa id . . . [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 ofstared at it and then he told [Bullock] about the hammer.” Specifically, “He said my daddyhit me with a hammer. My head [was] bleeding and I was scared. Police took [D]addy and [t he] 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 bleedi ng.” 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, 20 14, 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. also14 told Bullock that she had to ld Mother what Father had done and that Mother “told [D]addy not to do that. He got mad and hu rt her.” On October 27 or 28, 2014, I.C. told Bullock that “his dad[] hit [A.C.], his brother, on the ba ck 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 th at comes to life. I think he’s— might be, I don’t know what you call it, but an yway a serial killer embodied him and he kills people. Bullock testified that the other children basically said “tha t they watched it for disciplinary reasons.” N.C. told Bull ock, “[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 do lls 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 therapysessions immediately following an overnight visit with parents, she never saw any visi ble injury, and that the ch ildren stated many times that they loved Mother. The jury also heard evidence of Fath er’s many run-ins with the law, including periods of confinement. As this court has often discussed,15 Endangerment means to expose to lo ss 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 a llowed the child to rema in in conditions or surroundings that endanger the phys ical 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 enda ngerment to the child’s physical or emotional well-being. Conduct ofa parent in the home can create an environment that endangers the physical and emotional wellbeing of a child. . . . . Under subsecti on (E), the relevantinquiry is whether evidence exists that the endanger ment 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 endang erment, the parent’s conduct does not necessarily have to be dire cted at the child, and the child is not required to suffer injury. T he specific danger to the child’s wellbeing may be inferred from parent al 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 ab usive or violent conduct by a parent may produce an environmen t that endangers the child’s physical or emotional well-being. 28 Further, “even though imprisonment alon e does not prove that a parent engaged in a continuing course of conduct that endangered the physical or emotional well-

28 In 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 fact or that we may proper ly 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 t he home because of hi s incarceration. The jury is the sole judge of the credibility of the evidence. 30 We therefore hold that the evidence is legally and factua lly sufficient to sup port 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 ke eping 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

29 In 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).

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

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

32 In 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 termi nation case may also use in determining the best interest of the child include: (A) the desires of the child; (B) the emotional and physical need s of the child now and in the future; (C) the emotional and physical dang er to the child now and in the future; (D) the parental abilities of th e individuals se eking custody; (E) the programs available to assi st these individuals to promote the best interest of the child; (F) the plans for the child by th ese individuals or by the agency seeking custody; (G) the stability ofthe home or proposed placement; (H) the acts or omissions of the pa rent which may indicate that the existing parent-child relationsh ip is not a proper one; and (I) any excuse for the acts or omissions of the parent. 34 These factors are not exha ustive; some listed factors may be inapplicable to some cases. 35 Furthermore, undisputed eviden ce of just one factor may be

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

34 Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R. , 402 S.W.3d at 249 (stating thatin reviewing a best interest finding, “we consider, am ong other evidence, the Holley factors”); E.N.C. , 384 S.W.3d at 807.

35 C.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 pr esence of scant evidence relevant to each factor w ill not support such a finding. 37 That is, “[a] lack of evidence does not co nstitute clear and co nvincing 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 thatshe was bonded to each of her children. Bullock testified that the children loved their pa rents and that the ch ildren stated many times that they loved Mother. The children lived with Father’s cous in 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. accu sed S.K.’s husband of inappropriate discipline. N.C. told Bu llock that she lied about S.K.’s husband hitting her so she could go home. The CPS conservatorship worker, Aman da Rodriguez, who had been the family’s only conservatorship worker, test ified that she believed that the parents and children loved each other. She further testified that during visits, the children

36 Id.

37 Id.

38 E.N.C. , 384 S.W.3d at 808.19 showed their affection physically and th e parents showed their love by bringing the children toys and food and posi tively interacting with them. Rodriguez also testified that bas ed on her communications with the children and her observations of t hem, they were re ady for a permanent resolution in the case. Sh e 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[.]” Rodrig uez testified that the children could overcome that hurdle with “a supportive, lo ving family,” contin ued 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 believe d that I.C. and N.C. made the most progress. She st ated that I.C., who had been very reserved, opened up enough to laugh after accide ntally 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 fearfu l, more open, and more talkat ive. She also said that he did not like the tattoo and that TDFPS intended to have it removed if the parents’ rights were terminated. Rodrigue z 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 t hat the children thrived in school, were very eager to learn, and therefore needed someone wh o would encourage th em in school and20 support them. She also stat ed 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 bein g met if the children were returned to the parents. Rodriguez testified that so me of the children had ec zema but no other special needs. Rodriguez testified to having conc erns because neither parent ever acknowledged domestic abuse, other than Mother’s repudiated statement to the police, nor did they acknowledge child ab use. Rodriguez testified that while Father told her that he co mpleted anger management, he did not provide proof of completion before trial. Father did provide evidence of completion at trial. Rodriguez also testified that the parent s finished counseling but did not address the key issues. She testifie d, “[I]f the parents indicate th at there are no issues to be addressed, then it’s very difficult, ofte n impossible, for the provider to help them make progress on something they are told doesn’t exist.” Rodriguez testified that she had indi cated when she made the co unseling referral that she wanted Father and Mother to work on domestic violence issues, appropriate parenting, and “any kind of interpersonal relationships that [c ould] be affecting their ability to safely parent their children .” Rodriguez testif ied that TDFPS never felt like the children would be safe being returned to the parents full-time. She also testified that she be lieved the children would be in danger if they were returned to their parents. She identified Father’s hitting A.C. in the head with a21 hammer and putting the children in the drye r as “the biggest concern[s] in this case.” Rodriguez testified that during CPS-su pervised visits, neither parent was attentive enough to a potty-tra ining child or a child in di apers. 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. “Theywere very quiet.” It seemed to Rodr iguez that “they were afra id.” 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 sa w no increase in Mother’s ability to apply skills she should have learned in her parenting class. Bullock testified that the children r egressed some as access between the parents and children increased, with the most regression occurring when the overnight or weekend visits occurred, culm inating in Bullock ma king a report to CPS at the end of October 2014 based on I.C. telling he r that Father hit A.C. on the back several times during thei r 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, TD FPS’s plan was relative ad option in one home. She stated that two families were interested in being considered for placement upon termination of the parents’ rights: Fath er’s cousin S.K. and her husband, who had taken the children into their home fo r more than a year a fter CPS initially got involved, and the B. family, Father’s aun t’s family. Rodrigue z admitted that she had heard S.K. testify thatshe did not wish to ad opt the children and that originally, the B. family h ad indicated that it could no t take all the children. Rodriguez maintained that TDFPS had no wish to have permanent conservatorship of the childr en forever and would contin ue to focus on finding the children a single home. The jury could have properly concl uded from the evidence that if the children were returned to their parents, Father woul d continue to abuse the children, unchecked by Mother, whom the jury could have also properly concluded was a victim of domestic viol ence who chose to remain with Father, despite their brief separation beginning sh ortly 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 th at the evidence is legally and factually sufficient to support the best interest findings.23 D. Conclusion on Su fficiency Issues We overrule Mother’s fi rst two issues as to th e endangerment and best interest findings and Father’s first and second issues as to those findings. Because the case was submitted to the juryin broad form, we need only find the evidence sufficient to support a single st atutory 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 reac h the remainder of Mother’s first two issues or Father’s third issue challengin g the trial court’s findings that the parents failed to complywith a court order. 40 As to Father’s adoption of Mother’s first two issues, even if he could properly attack the termin ation findings against Mother , which we do not hold, 41 he failed to challenge the sufficiency of th e 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 Mot her’s first two issues as adopted by Father.

39 See In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003); In re D.N. , 405 S.W.3d 863, 872 (Tex. App.—Ama rillo 2013, no pet.).

40 See Tex. R. App. 47.1.

41 See In re T.N. , 142 S.W.3d 522, 524–25 (Tex. App.—Fort Worth 2004, no pet.).

42 See 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 iss ue and Father complains in his first, second, and fifth issues about the admiss ion of play therapis t 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 Re peating Children’s Comments 1. Section 104.006 hearing Within his first two issues , Father complains that t he trial court erred by not conducting a family code section 104 .006 hearing regarding the children’s comments repeated by Bu llock in her testimony. 43 But Father did not object to or seek to limit the admissibilit y of TDFPS’s Exhibit 7, which contained the same or similar information as that derived fr om the children’s statements—Father hit A.C. on the side of his he ad, causing a bruise and pain ; Father hit A.C. in the head with a hammer, causin g 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 identic al or similar to the object ed-to evidence is admitted

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

44 Tex. 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 prob ative value merely bec ause it is hearsay.”); City of Keller v. Wilson , 168 S.W.3d 802, 81 2 n.29 (Tex. 2005).25 elsewhere without objectio n, there is no harm. 45 We therefore overrule the remainder of Father’s fi rst and second issues. 2. Rule 803(4) In his fifth issue, Fath er contends that the children’s out-of-court statements reported by Bullock do not qu alify as a hearsay ex ception under rule of evidence 803(4). 46 Again, the same or similar information was admitted without objection or limitation in TDFPS’s Ex hibit 7. Thus, even if the trial court abused its discretion by admitting Bulloc k’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 mo tion to strike and motion for mistrial based on Bullock’s testimony ab out the statements that the ch ildren made to her. Mother did not object on the first dayof Bullock’s testimony. On the second day, when

45 In 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).

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

47 See 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 ob jected to the lack ofproper foundation to TDFPS’s Exhibits 20 and 21 but withdrew her objectio n to at least Exhibit 21 and possibly to both exhibits after TDFP S provided more predicate evidence; the record is unclear. Regard less, Mother made no othe r objections regarding the testimony about the ch ildren’s statements. On the day following the completion ofBullock’s testimon y, Father filed a motion for reconsideratio n challenging the admiss ibility of her testimony regarding the children’s stat ements. During the argu ments on that motion, Mother’s attorney stated, Your Honor, it is my recollec tion that a 104.006 hearing was requested and—or offered, one orthe other, and denied by the court. And therefore I understood th at there was an implicit finding of reliability in the child ren’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, 70 3, 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 tr ial on the admission of that evidence. So I’d ask the court to, at the very least, grant a[n] in struction to the jury that they not consider the hearsay statement evidence. But I would prefer a mistrial. In the interest of justice, we will trea t this as Mother’s motion to strike and motion for mistrial. The trial court did not ex plicitly rule on Moth er’s oral requests. Ultimately, the trial court deni ed 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 admi tted with no objection by Mother, Mother’s motion to strike or for mistri al regarding the testimony was untimely and did not preserve error. 49 Additionally, as to her entire issue, be cause TDFPS’s Exhibit 7 was admitted without objection or limitation and contains the same damaging information about th e abuse of the children as Bullock’s testimony and notes, any error wo uld 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

48 See, e.g. , In re T.H. , No. 02-07-00464-CV, 2008 WL 4831374, at *7 (Tex. App.—Fort Worth Nov. 6, 20 08, no pet.) (mem. op.); Howard v. Phillips , 728 S.W.2d 448, 451 (Tex. App.—F ort Worth 1987, no writ).

49 See Tex. R. App. P. 33.1; Te x. R. Evid. 103(a)(1); In re A.B.G. , No. 09- 11-00545-CV, 2013 WL 2573 11, 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).

50 See 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 reco rd 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 cr edibility and “the weight of the hearsay offered through” Bullock. Mother complains about two part icular 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 wh en 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.

51 See 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 [14t h 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 yo ur breath for as long as it takes to put three circle s 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 y ou can hold your breath long enough to put a tatto o 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 statemen ts 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 be en a predicate laid as to [A.C.] as a credible source at that partic ular time. And the validity and reliability of the statement, I don’t th ink, has been sati sfied. 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 counse l]: 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 Hono r, I respectfullymove for a mistrial. Court’s last comment is unique in my 46 years of practicing law, and I think it’s inap propriate 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 eith er comment. “[O]bjection to a trial court’s alleged improper cond uct 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 inst ruction and required no objection, she does not “explain how any comments made by the trial judge were incurable or would ex cuse [her] failure to preserve error.” 53 Additionally, her motion to recuse the judge and motion for mistrial, file d the next day, were not timely to preserve this co mplaint about the comments. 54 We note that Mother does not complain about t he denial of her motion to recuse. We overrule Mother’s third issue.

52 Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001); see Tex. R. App. P. 33.1.

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

54 See Tex. R. App. P. 33.1; Dow Chem. Co. , 46 S.W.3d at 241.31 Father has adopted by refe rence Mother’s briefing ofher third issue, but he did not object that the trial court improp erly commented on the tattoo evidence. He therefore did not preserve that complaint. 55 Father did, howe ver, 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 t he 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 fo rget to say it’s very prej udicial 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 coun sel then moved for a mistrial based on the comment, an d the trial court denied the motion. As the Supreme Court ofTexas has explained, The United States Su preme Court, when pres ented with similar allegations of judicial bias, has de termined that judicial rulings alone almost never constitute a valid basi s for a bias or partiality motion, and opinions the judge forms dur ing a trial do not necessitate recusal unless they display a deep -seated favoritism or antagonism that would make fair judgment im possible. 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 challeng e. Further, not establishing bias or partiality are expr essions of impatience , dissatisfaction, annoyance, and even anger. A judg e’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

55 See Tex. R. App. P. 33.1; Dow Chem. Co. , 46 S.W.3d at 241.32 court has the inherent power to cont rol the disposition of cases with economy of time and effort for itse lf, for counsel, and for litigants. Similarly, Texas courts have held that the discretion vested in the trial court over the co nduct of a trial is great. A trial court has the authority to express itself in exercisi ng this broad discretion. Further, a trial court may properly interv ene to maintain control in the courtroom, to expedite the trial, an d 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 ofthe evidence because the trial court indicated an opinion on the trut hfulness 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 wordin ess. Regardless, given the totality of the evidence against Fath er, we hold that Father has not shown that this comment of the tr ial court probably caused the rendition of an improper judgment against Father. 57 We therefore overrule Fa ther’s adopted third issue. In his sixth issue, Father contends that he “did no t receive a fair trial and due process of law because of the Trial Court’s comments on evidence and

56 Dow Chem. Co. , 46 S.W.3d at 240–41 (cit ations, internal quotation marks, and internal quotatio n alteration marks omitted).

57 See 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 eviden ce,” instructing the jurors on the preponderance-of-the-evidence burden of proof, and omi tting the phrase “strong presumption” concerning the rights of pa rents and children. We review a jury charge for an abuse of discretion. 59 A trial court abuses it s discretion if the court acts without reference to any guiding rule s 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 ofthe following instruction:

58 See 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.

59 Tex. 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).

60 Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings , 134 S.W.3d 835, 838–39 (Tex. 2004).

61 E.I. du Pont de Nemour s & 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 es tablished 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 itmay be fairlyand reasonably inferred from other facts proved. Father’s objection was: [T]here is a definition given in th is proposed jury instruction that doesn’t seem right to me. It’s a defini tion of what is direct evidence. And it says direct evidence is evid ence that’s proved by a document. And I tried—I saw that or at least re cognized 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 an d 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 ha ve been proved by documentary evidence or by witnesses who sa w the act done or heard the word spoken. I don’t think just becaus e 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. Bullockthat included statements made outside the court, obviously in her se ssion, 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 witnes ses who were percipient to what was happening. And anything else is circumstan tial evidence.35 Father cites no legal author ity for his contention that the trial court erred by giving the instruction; we therefore ov errule this complain t as inadequately briefed. 62 We note, however, that the inst ruction is the pattern jury charge instruction for circumstantial evidence. 63 B. Proof by a Preponderance of Evidence Referencing only Santosky and “Due Process,” Fath er also complains of the managing conservatorship questions, contending that they reference the wrong burden of proof. The jury did no t 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 proo f for issues of conservatorship. 65 C. Omission of Instruct ion on Strong Presumption Finally, Father complains that the trial court failed to instru ct 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

62 See Tex. R. App. P. 38.1(i) (provi ding 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.

63 See, e.g. , Comm. on Pattern Jury Char ges, State Bar of Tex., Texas Pattern Jury Charges: Family & Probate PJC 200.8 (2016).

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

65 See Tex. Fam. Code Ann. § 105.005 (West 2014); In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007).

66 See R.R. , 209 S.W.3d at 116.36 he cites no authority for the proposition that excluding th e statement from the jury charge is an abuse of discretion. 67 We overrule Fat her’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. Fa ther did not raise an equal protection complaint in the trial court. He has therefore forfei ted that part of his issue, 68 and this court has already reje cted a due process challenge to the government code’s provision allowing a termination case in Pa rker County to be heard by a jury of six members. 69 We overrule Fath er’s eighth issue. VI. Ineffective Assistance ofMother’s Coun sel at Trial In her fifth issue, Mother conte nds that her trial counsel provided ineffective assistance of counsel by fa iling to object to (1) the two alleged improper comments that th e 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 test imony discussed in Mother’s fourth issue as well as

67 See 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.

68 See 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).

69 See 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 ar gument allegedly stating that Mother had testified that sh e would reunite with Father if her parental rights were not terminated and that there was no re ason that she should not. To prove ineffective assistance, Mother must showthat 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 ofthe evidence against Father, Father has not shown that the comment of the tria l 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 Mo ther’s trial coun sel’s failure to object to it likewise did not harm Mother’s case. 72 As to the tria l court’s comment regarding Father’s testimony about the ta ttoo, Mother cannot show that that comment, in light of the evid ence of all the other abus e that she and her children suffered at Father’s hands, harmed her case or depr ived her of a fair trial. 73

70 See 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).

71 See 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.

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

73 See 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 Childre n’s Out-of-Court Statements Mother complains that her trial co unsel was ineffective for failing to properly object to the test imony of several witnesses, including Bullock, regarding the children’s out-of-court statements re counting 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 info rmation relayed in the children’s out-ofcourt statements to Bullock and other witnesses. Th at exhibit was admitted without objection during Fa ther’s testimony and before all the other witnesses testified. Because the damaging evidence was alread y admitted through Exhibit 7 and because Mother does not complain of the admission of that exhibit, we cannot say that the later adm ission of the same or si milar evidence from other sources harmed her case. 74 Accordingly, we conclude and hold that Mother has not shown ineffective assistance—that sh e was deprived of a fair trial with a reliable result—because sh e has not shown any prejudice to her defense from the alleged failures of her trial counsel to object to identified testimony and evidence. 75

74 See 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.

75 See 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 Fath er to move back home a couple of weeks after a magistrate issued an em ergency 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 ifthese children ar e 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 th e 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 th em in the same apartment? A. He already moved out.

. . . . [Q.] (BY [TDFPS Counsel]) Wh y are you separated now?40 A. Well, I guess we see how t he case is goin g so we need to separate. We’re tryi ng to do this together. Q. So in the last few weeks yo u decided it migh t 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 argu ment, counsel argued, These children are in foster ca re due to the abuse and the neglect of the parents. The abus e by [D]ad, and the neglect, neglectful supervision by [M]om by le aving the kids with [D]ad. And not doing anything when th e 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 goin g to separate. Why are you going to separate 15 months later? What’s the point? You don’t admit anything happened, why would yo u separate? Why would you live in separate houses? Why would he go so mewhere else? Fifteen months later, September 1st, he moves out. What are you going to do ifthe kids come back you to, [Mother]? I’m going to get back wi th [Father]. There’s no reason I shouldn’t.41 Control of counsel’s conduct during jury argument re sts in the sound discretion of the trial court. 76 The test for improper ju ry argument is whether the argument could have persu aded a juror of ordinary in telligence 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 evid ence are allowed in closing argument, as is hyperbole. 78 Reversal is required only when the entire record shows that the jury ar gument was improper, uni nvited and unprovoked, preserved by a timely objection, and incur able by instruction, withdrawal, or trial court reprimand. 79 Further, an appellant must show that the argument constituted harmful error by it s nature, degree, and extent. 80 Given the evidence of Father’s multip le instances of abuse of Mother, of Mother’s knowledge of his ab use of the children, and ofMother’s remaining with Father until separating strategically only ri ght before trial, we hold that TDFPS’s

76 Richmond Condos. v. Skipworth Commercial Plumbing, Inc. , 245 S.W.3d 646, 667–68 (Tex. App.—F ort 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.

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

78 See Walls v. Klein , No. 04-13-00565-CV, 2014 WL 3339791, at *1 (Tex. App.—San Antonio July 9, 2014, pet. denied) (mem. op.).

79 See id. at 668; see also Standard Fire Ins. Co. v. Reese , 584 S.W.2d 835, 839 (Tex. 1979).

80 Standard 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 Fa ther should the child ren be returned to her was a reasonable in ference from the evidence and not improper. 81 Mother’s trial counsel therefore proper ly did not object to it. D. No Ineffective Assistance Proved Because Mother did not prove ineffective assistan ce of counsel at trial in any of the three categories she identified , we overrule her fi fth issue. Because Father has demonstrated no standing to co mplain that Mother’s trial counsel was ineffective, we overrule his ad option of Mother’s fifth issue. 82 VII. Conclusion Having overruled Mother’s dispositive issues, Father’s dispositive issues, and Mother’s issues adopt ed by Father, we affirm th e trial court’s judgment terminating the parent-child relationsh ips between Mother and each child and between Father and each child.

PER CURIAM PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ. DELIVERED: April 7, 2016

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

82 See Buckholts ISD v. Glaser , 632 S.W.2d 146, 149–50 (Tex. 1982); In re D.C. , 128 S.W.3d 707, 717 (Tex. Ap p.—Fort Worth 2004, no pet.).