Affirmed and Memorandum Opinion filed March 31 , 2022
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00430

- CV

IN THE INTEREST OF L .A.V. AND S.H.V.

On Appeal from the 314th District Court

Harris County, Texa s Trial Court C ause No. 2019

- 03748J

MEMORAN DUM OPINION
Mother and Father separately appeal the fi nal order terminating their parental rights t o their infan t twin daughters, L.A.V. ( “ Ludmi l a ” ) and S.H. V. ( “ Serafina ” )

. 1 In two issues, Father first asserts that the tria l court lost jurisdic tion

ove r the suit before entering the termination order (rendering the order void), and second that he was denied his due process right to a fair and impartial trial. In Mother ’ s sole issue, she cha llenges the legal and factual suffi ciency to support the trial c ourt ’ s finding that termination of her parental rights was in the best interest

1 We use pseudonyms to refer to appellant s , the child ren , and other family members. See Tex. Fa m. Cod e Ann. § 1 09.002(d); Tex. R. App. P. 9.8

.2

of Ludmi l a and Serafina

.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND According to Mother and Father, they needed a break from the constant visitors f ollo w ing the birth of thei r daught ers and F ather ’ s father needed a sterile environment for the night while in town for cancer treatment. So, Mother and Father checked into a local h otel w ith their seven
- week old twin daug hters

. The Department ’ s In v e stigation , 2 Emergency Removal, Family Placement, and the

Commencement of Termination Suit
Mother and Father ’ s hotel stay quickly became a matter of public concern. P rior to the Department ’ s 3 involvement, law enfor cement had been c al led to the h otel twi ce , had remo ved Father from the h otel , is sued him a criminal trespass warning, and had returned to check on the family. The Department received multiple intakes “alleging that bo th parents were hiding in a La Q uinta Inn hotel in the H um ble area.” At leas t one intake reportedly alleged t hat “[Fa ther] is on a drinking binge and he hid his wife and twin girls at the hotel.” The Department ’ s investigator, Jennifer McGee , went to the hotel and knocked on the room do or multiple times wi thou t answer. McGee call ed the Sher iff ’ s Office for assi stance. When the Officer knocked on the door, Mother opened the door and began to yell for law enforcement to remove Father from the hotel room. Father became belligerent and wa s placed in handc uffs a way from M other. McGe e reported that both parents had dilated pupils about the size of a dime

. At some point t he Officer called for backup because Mother and Father

2 Facts d escribed in this secti o n pe rtaining t o the initial investigat i on and removal are significantly taken from the affidavit supporting the petition for term ination.

3 We use “ the Departm ent ” to refer to ap pel lee, t he D epartment of Family and Protective Servic es

.3

were so combative. The hotel room was in disarray and the ro om reeked of alcohol. Scat te red about the room wer e multiple large bottles of vodk a , some empty , some partially full, used baby bottles and formula bottles with spoiled milk , presc ription bottles , amphetamines , and opioids

. McGee reported that s he could not see or hear the twi ns unti l pulling up the hot el be d ’ s sh eet, blanket and beds pread s u nder which they were found

. The bed they were lying in had urine and feces on it, ther e were no clean diapers or wipes left in the hotel room, and no f ormula to feed the babi es

. O ne of t he twins had a diaper rash, bu t both we re otherwise discover ed to be healthy.
Mother and Father were too intoxicated to consent to a Parental Child Safety Placement, so McGee provided Mother and Father emergency notice of removal

. After a pre liminar y study , Ludmila and Sera fina w ere placed w ith their maternal
gr andparen ts

. On October 1 1 , 2019 , t he Department filed suit to Terminate the Parental Rights of Mother and Father based on the risks to t he child ren ’ s we lfare associated with al cohol an d su bstance abuse and domestic viole nc e

. T h at same day , the court issued an emer gency order removing children , and the Department was appointed Temporary Managing Conservator (“TMC”) of Ludmila and Serafina. On October 12, 2019 , Mother and Father a dmitted them selves into a California rehab f

a cili t y for al cohol abuse treatment . It was Mother ’ s fourth inpatient rehab admission in three years and Father ’ third in two years

. The court created a family service p lan (“FSP”) for both Mother and Father. Each of t heir family service plans required t h e fo l lowi ng : (1) submit to random drug tes ting,4

(2) maintain a safe and stable home free of drug and alcohol use for a period of no less than six months, (3) maintain stable income through employment or other sources and provide the Department with “pro o f o f income d ocumentation ” (ex. pa y stubs) , (4) complete parenting classes, (5) refrain from all illegal activity and consumption of alcohol, (6) attend all meetings, court hearings, permanency conferences, and famil y vi sits, (7) participate in the ser vi ce s describ ed in his/her FSP and demonst rate her ability to apply what she has learn ed, (9) participate in and successfully complete a drug/alcohol assessment and fol low all recommendations, (10) maintain a drug/alc ohol free l ifestyle and cultivate a c irc l e of supp ort away from drug/al cohol us ers, and (11) participate in and successf ully complete a psycho

- social evaluation and follow all recommendations made from the evaluation. A lthough Mother and Father ’ s serv ice plan s were the same in virtually all
resp ects, ite m “ 8 ” of Mother ’ s ser vice pla n required Mother to “ successfully complete a domestic violence assessment and follow all recommendations from the
assessment ” , and item “ 8 ” in Father ’ s service pla n required Father to “ atten d, actively participate in, and succ essfully complete a B IPP [ “Ba ttering Intervention & Prevention Program” ] assessment and follow all recommendations from the

assess ment ”

.
Mother ’ s T

estimony and Mother ’ s Performan ce u nder th e Plan
A t trial the Departmen t put forth evidence th at M other fai led to perform under the FSP. Mother compl ete d parenting classes and completed her required psychosocial evaluatio n . She missed some random drug tests , and several test s5

indicated that s he failed to avoid consumption of alcohol , 4 and thus fa ile d to maint ain a drug/alcohol fr ee lifes tyle

. Video evidence was admitted at trial through the t estimo ny of Mother ’ s landlord dep ict ing Mother wal king and stu m bling about the proper ty in what could have reasona bly bee n perceived to b e an impaired state

. Mo t her testi fied that she worked for her father for a month in August 2020 , but otherwise was un employed. T he Department ’ s caseworker testified that Mother failed to “maintain a safe and stable hom e free of drug and alcohol use for a per iod of no less t han s i x months ”

. Mother ultimately conceded in her brief that the evidence demonstrated she failed to ad here to the terms of the FSP

.

Father ’ s Performance Under the Plan
A t trial the D epartme nt put forth eviden ce that Father failed to perform under t he FSP. Father co mpleted a p ortion of the serv ices in his FSP

. He secured stable housing alth ough his and Mother ’ s lease was co

- signed by Karen , Father ’ s mother

. Father also complete d hi s parenting classes, anger ma nagemen t classes, and hi s individual psy chother a py session s and pro vided docume ntation of completi on to the Department

. At the time of trial , in March 202 1, Father confirmed he made approximately $8,000 per month and would work as a contract project manage r at le ast through Novem ber 202 1. But Fa ther wa s unemploye d between February 27 , 2020 a nd January 2021

. In this respect there w as s ome evidence Father did not maintain stable employment as requi red in his FSP

. Father admi tted that he provide d no financia l suppo rt to Hazel and C al to support hi s

4 Betwe en July 202 0 and April 202 1, Mother ’ s hair tested n egative for drugs in September 2020, twice in January 2021, and once in April 2021. Mother ’ s urin e was tested for ethyl glucuronide 16 times b etween J uly 2020 and April 2021 , ( indi cating Mother w as contin uing to con s ume a lcohol )

. Th ree tests were p ositive

– in December 2020, Janua ry 2 021, and March 2021. One test w as invalid and 12 were negative. Moth er tested positive for amphetamines in every random u rine drug test between July 2020 and April 2021 (15 te sts i n al l) ; she produced pr oof of a proscri ption for Ad derall for one month.6

child r en.
C asewo rker Gomez testified regardin g Fat her ’ s eff orts with respect to domestic violence

. Father was first referred to a BIPP provider in January 2020 , but he missed his sched uled appointments and in March 20 20, req uested a referral to a provid er clos e r to where he was then living ( in the B eaumo nt area). Gomez was able to identify and schedule Father with the new provider, but she continued to receive notifications that Father miss ed appointments. Father comp l eted his BIPP ass essment in August 2020 bu t missed th e first three BIPP cl asses an d was discharged by the provider. According to Gomez , Father put no effort into completing his BIPP program nor did he “show an y ch ange in behav ior when it came to domestic v iolence.” Father denied being “viol ent” or having a “ violence problem” but agreed “no c hild should be in an environment [where there is domestic violence]. ”
Father failed to show up for all of his random drug tes ts. For those th at he did take , he consistent l y tested negati ve for alcohol co nsumpti o n but test ed positive for drugs

. 5 Fa the r provided the Department with some proof that he had been pre scribed Adderall and Al prazolam , which would explain at least some of the positive amphetamin e and benzodiazepine results

. The Department was not

5 F ather submitted seven urine sa m ples which tested for ethyl glucuroni de between December 2019 and July 2020; all s even wer e negative. Father submitted hair samples in December 201 9 , Febru a ry 2020, an d July 2020 and these, too, were negative. Father submitte d nine urine samples for d rug testing: three were negative ( one in D ecember 2019 and two in June 2020) and six we re posit ive for amphetamines (three in January 2020 , two in Ma rch 202 0, a n d one in July 2020 ). The sa mple submitted at the end of January 202 0 was also positive for alprazolam

. Between July 2020 and April 2021, Father ’ hair tested negative for drugs in Oc tober 20 20, twice in January 2021, and in April 2021

. Fat her ’ urine w as t e sted for ethyl glu curonide 15 times between July 2020 and April 202 1 and each time the result was neg a tive. Father tested positive for am phetamines in all but two random urine drug t ests bet ween July 2020 and April 2021 (14 tests in all).7

satisfi e d that he provided proof suffic ient to address al l positive test results . Father testified that a physician had pres c ribed him Alprazolam in January 2020, and testified that he had been prescribed Adderall since he was diagnosed with ADD when he was 12 y e ars old

. Ms. Games, the Depar tment ’ s case worker, reported that Father did not

r efrain from criminal activity during the penden cy of the case. Although Father had

no conv ictions, he had charges pending at the time of trial for acts of family violence. S e v era l witne sses testified in det ail abou t facts supporting allegations of violence toward Mother

.

Placement, Visitation, the Twins ’ Development
O n January 15, 2020 , Ludmila and Serafina were placed with Cal a nd Hazel , Father ’ s brother an d sister

- in law, a n d have rem ained with them

. Moth er and F ather had supervised visi ts with Ludmila and Se rafina for 30 minutes every morning of every day when visits were conducted virtually (during COVID). In

per son visits occur r ed once a week for one ho u r and 45 minutes. H azel super vised the virtual vis its, Cal supervise d the in

- person visits, and Department caseworker Jessica supervise d both virtual and in person visits

. Father believed visits should be

more frequent and lon ger than the allotted time be c ause Ludmila and S e rafina wer e living w it h family.
Cal te stified that both L udmila and Serafina “are just so happy and thriving and they fit in with our family very well. We have an older daughter an d an old er son and it ’ s jo y. It ’ s love. It ’ s peace. It ’ s been a blessing t o have them in our ho m e.” Cal wa nts to a dopt Ludmila and Se rafina “because I want the full legal duty, right, obligation, authority, to take care of the girls ’ welfare to th e best of my abil ity.” Ms. Games, the Department caseworker, t e stified that “ [ Ludm i la and Ser afina ] are thriving. They ar e growing. They are reaching all of their8

developmental milestones. They are very happy.” She tes tified about the strength of Ludmila ’ s and Serafina ’ s bond with Hazel, Cal, and their two children , stating, “I see th a t [Ludmila a nd Seraf i na] really love [H azel and Cal]. [Lud mila and Serafina] get along well with [Hazel ’ s and Cal ’ s] children, and they always appear to be very comfortable in the home.”

Do mestic Violence: A llegations , Testimony, Findin gs In September 202 0 , Father w as charged with and a rrested for “continuous fam ily violence” against Mother. Mother text ed her parents telling them “[ Father ] had been physically abusive again .” Mother ’ s parents called the police fo r assistance. The police and an ambula nce c a me to Moth er ’ s a nd Father ’ home

. Mother reported Father slapped her with an open hand which caused pain, and then Fa ther punched Mother ’ s head an d nose with a closed fist which caused bleeding and pain. Mothe r reported Father had been drinking all day, ca l led her na mes, and started an a rgument without any provocation and that Father had been p hysically abusive to her for “some time.”

A m onth earlier , Mother had called po lice and reported Father had been drinking all day and “started to get into [her] fac e .” Father became irate and the n “hit,” “slapped,” “punched,” and “pushed” her, causing her t o fall and to feel pain.
Before the two were ma rried p olice were called out t o invest igate reports of Fath er abusing Mother . In November 2018, Maria (after receiv i ng a call from Karen ) called po lice and reported Mother and Father had been abusing alcohol a nd f ighting , that Maria had entered their apartment the day before where she found Mother inju red, that Maria attempted to convince Mother (unsuccessfully) to lea v e the apar tment, and today, ask ed polic e to check on Mother

. At trial , Mother fl atly denied any his tory of domestic violence bet ween her9

and Father. Father also denie d an y domestic abuse but acknowledged the protective order signed September 24, 2020 that protected Mother from Father fo r 61 day s. Father claimed Mother ’ s bruises result from her falling w hen she is intoxicated. Fathe r claimed he never placed his hands ov er Mother ’ s face har d enough to cause her nose to bleed ; Mother just occasionally gets a b loody nose

. Father claimed when Karen t ook pictures of his bruises he told her h e received them fro m Mother, but the bruises wer e actually ca used when he fell moving fur niture.

Order Terminating Parent al Rights After argument, the trial court advised the parties it would issue a ruling the fol lowing morning. The next morning, the trial court terminated M other ’ s parental rights based on Section 1 61.001(b)(1) (D), (E), (O ), and (P ) of the Texas Family Code and a finding that termination was in Ludmila ’ s an d Serafina ’ s best interest. The trial co urt found “by a preponderance of the evidenc e that [ Father ] com mitted acts of family violenc e against [ Mo ther ]” and also terminate d Father ’ s pa rental rights based on Section 161.001(b)(1) (D), (E), (O), and (P) of th e Texas Fam ily Code and a findin g that t ermination was in Ludmila ’ s a nd Serafina ’ s b est interest. The D epartment was appointed Ludmi la ’ s and Sera fina ’ s Sole Managing Cons ervator.

II. J URISDICTION
I n his fir st issue, Father argues that the termination orde r is void b ecause the trial cour t ’ s juri sdiction ended prior to the s tart of trial pursu ant to Texas Family Code sect ion 263.401

. Under section 263.401, unless tria l on t he merits has commenced or an extension is granted within the time period proscr ibed b y the
statu te , the trial court ’ s jurisdi ction terminates on the dismissal date and the suit is10

automatically dismissed without a court or der. Interest of Z.S. , 631 S. W.3d 313, 315 (Tex. App.

— Houston [14th Dist.] 2020, no pet.)

. W e address this issue first b ecau se , if Father ’ s contention that the judgment is void is correct , then we , like the trial court , would l ack subjec t

- matter jurisdicti on over this case

. See Free do m Co mmc ’ ns, In c. v. Coronado , 372 S.W.3d 621, 624 (Tex. 2012) (per cu riam).

A. Standard of Review
Whe ther a court has subj ect

- matt er jurisdiction is a question of law that we revi ew de novo. Tex. Dep ’ t of Par ks & Wildlife v. Mi randa , 133 S.W.3d 217, 226 (T ex. 2004). Whe n a trial court ’ s void judgment is appeale d, we lack jurisdiction to address the merits of the appeal and ha ve juris diction only to declare the judgment void and dis miss the underlying case. Fr eedom Commc ’ ns, Inc . v. Coronado , 372 S.W.3d 6 21 , 62 3 (Tex. 20 12) ; Interest of A.F.R. , No. 01

- 20

- 00355

- C V, 2020 WL 6140181, at *4 (Tex. Ap p

. — Houston [1st Dist.] Oct. 20, 2020, pe t. denied)

.
B. Is the judgment void ? Did the trial court have j urisdiction to terminate appellant s ’ parental rights ?
Father ’ s argu ment relies on the operation of the so

- called “ self

- executing dismissal ” statute , whic h provides :
Unless the court ha s commen ced the trial on the merits or granted an extension under Subsection (b) or ( b

– 1), on the first Monday after the fi rst annive rsary of the d ate the court rendered a temporary order appointing the departme nt as tempora r y managing conservator, the
cou rt ’ s jur isdiction over the suit affecting the parent

- child relationship filed by the department that req uests t ermination o f the pare nt

- ch ild relat ionship or requests that the department be named conservator of the child is t erminated and the suit is autom atically dismissed without a court order. Not later than the 60th day before the day the suit is automat ically dismissed, t he court s hall notify al l parties to the suit of the automatic dismissal date. Tex. Fam. Code § 263.4 0 1(a); Inte rest of G.X.H. , 627 S .W.3d 28 8, 296 (Tex.11

2021) (describing the provision as the “self

- executing dismissal” ). Subsection (b)

e xplains the require ments for a tr i al court to extend the timeline for the “ self

executing dismiss al ” to take effect. Su b section (b ) states:
Unless the court h as commenced the trial on the merits, the court may not retain the suit on the court ’ s docket after the t ime descri bed by Subsect i on (a) unless the court finds that extraordinary circumstances necessitate the child r e maining in the temporary managi ng conse rvatorship of the department and that continuing the appointment of the department as tempora ry managing conservato r is in the be s t interest of the child. If the court makes those findings, the court may retain the s u it on the court ’ s docket for a period n ot to exceed 180 days after the time described by Subsection (a). I f the court retains the su it on the co urt ’ s dock et, the court s hall render an order in which the court: (1) schedules the new date on which the suit w ill be aut omatically dismissed if the t rial on the merits has not commenced, which date must be not later than the 180th day after t he time desc ribed by S ubsection (a); (2) makes further temporary orders for the safety and welfare o f the child as necessar y to avoid further delay in reso lving th e suit; and (3) sets the trial on the merits on a date not later th an the date specifi ed unde r Subdivisio n (1). Tex . Fam. Code § 2 63.401(b). In this case, t he trial court awarded the Department temporary managing

con s ervator in an order signed on O ctober 1 1, 2019. T he first Monday after the first anniversary of that date is October 12 , 20 2 0

. Thus , unless the trial cou rt either (1) “ commenced the trial on the merits,” or (2) “granted an extensio n under Subsection (b) o r (b

– 1),” the court ’ s jurisdict ion over the department ’ s case terminate d on October 12 , 20 20 , the sui t would be “automat ically di smissed without a co urt order” , and any orders after that date would be void. Se e Dikeman v. Snell , 490 S.W.2d 183, 186

– 87 (Te x . 1973) (h olding an order e nter ed after the12

trial court loses jurisdiction is facia lly void). Trial c ommenced on March 2, 2021 ,
we ll after the o riginal commencement dea dline. Thus, b ecause the trial court di d not commence trial on the merits by October 1 2, 2020, w e look to whe ther a

s ubsectio n
- (b) extension had been granted

. At the ti me Father filed his brief, o ur record only conta in ed a docket sheet entry which states : 9/30/2020 | Mtn for continuance by pa rents. Branson for Mom (ap peared), Jereb for I n tervenor P GP (appeared), Jennif er Smith for Intervenor aunt and uncle (did not appe ar), Jeff Marsh for dad (app eared), Ledoux for c hildren. State did not request the ful l 6 mths. EDD 12/14/21. Mediation prior to trial. Trial 12/3/20 at 1:30p and 12/4/20 9 : 30a.

Afte r request ing suppleme ntation of the clerk ’ s record, we discovered that on October 1, 2019, t he trial court also issued a written order en titl ed “ Order Retainin g Suit o n Court ’ s Docket a nd Setting Hearing D ates ” (“Retention Order”). The Retentio n order sta tes :
the Court finds that tha t [sic] extraordinary circumstances necessitate the c hildren remaining i n the temporary managing cons ervatorship of the Department and that continuing the appointment of the Departmen t as temporary managing conservat o r is in th e best interest of th e childr en

.
Consistent with the docket entry that was already in our record , the wr itten order further confirm ed a trial date of December 3 , 2020

. The order also schedule d an automatic dismis sal date of December 14, 2020, a date whic h matches the docket entry ’ s notation, “ EDD 12/14/21 ”. 180 days after November 9, 2020 is May 8, 2 021 , which represents the furthest a utomatic dismiss al date that could be
set under the statute. Thus, the Retentio n Order sets an automatic dis m issal date with in the 180

- day p eriod , a nd sets out the required statutory findings under 263. 401 (b)

.13

At oral a rgument, Father con ceded that the trial court v ali dly ext ended the dismissal deadline in its Retention Order

. The dispute in this case rela tes t o whether the automatic dismiss al date was validly extended a second time. Several events follow ed relevant to t h is inquiry

. First, on Novem ber 11 , 2020, the Texas Sup reme Court ’ s Twen ty

- Ninth E mergency Order Regarding the COVID

- 19 State of Disaster ( “ T w enty

- Ninth E mergency Order ” ) in cludes p rovisions affectin g the application of section 263.401 in parental termina tion proceedings. Second, on December 1, 2020, two motio ns seeking to extend dea dlines were filed in the trial court : Mother filed a motion to c ontinue t he trial based on her counsel ’ s failing healt h , and the Department filed a motion t o set a new dismissa l date in the case pursuant t o the Twenty

- Ninth E mergenc y Order . The Department ’ s motion requested that the trial extend the automat ic di smis s al deadlin e to March 22, 2021 , and stat es: This County is currently under a state of dis aster, the Courts have b een affected by the disaster, and the [trial] Court is i ncapabl e of commencing trial by the dismissal deadline. Pursuant to the Supre me Court O rder, the Department asserts th at good cause exists to modify or suspend the dismissal de adline in this case

. The record contains n o written o rd er granting (or denying) the Dep artment ’ s December 1, 2020 motion to extend the dismissal deadline , an d no writ t en order
g ranting or denying Mo ther ’ s m otion for continuance . However, our record contain s a docket sheet tha t indicates the court granted these motions : 12/2/2020 | EDD and Continuance. ACA Ieshia Champs, CW did not appear, Jennifer Smith for Interven o r caregive rs (did not appear), Ledoux f or children, Chris Branson for Mom (appeared), Mike Craig for Interveno r PGM Kathy Van Velson (appea red), Ted Jereb for Intervenor MGM Marian Ballard (appeared). EDD

- 3/22/2021. Trial 1/19/21

- 1/22/21. T he day before o r al argumen t in our Court , at Fa ther ’ s r equest , we were provided14

t he reporter ’ s rec ord from the December trial court hearing hearing reflected in the docket entry

. The tra nscript reveals that both moti ons to extend trial had been filed and were considere d in the tr ial court at the hear ing

. Th e record clearly indicate s the hearing pertained to the motio n seeking an extension based on Mother ’ s counsel ’ s health and the Dep artment ’ s motion seeking an extension pursuant to the Supreme Court ’ s Twenty

- Ninth Emergency O r de r . The record also

c learly i ndic ates that no party opposed the req uested extension or any o f the particular reasons sought for the extension , that the cou rt granted t he extension , tha t the court re set the automati c dismissal deadline to March 22, 2021 , an d that the court made no find ings remotely resembling the required statutory findings in

sec tion 2 63.401

. Accordingly, it is Father ’ s position that in th e absence of such findings, t he extension order was void. Father correctly points out that this c as e is not like Interes t of G.X .H. where the court was able to rely on the implied findings of the trial court in the absence of a record. Here, we were provided a reco rd, and the record indicat es that no

s tatutory findings were made to support the exten s io n

. Without disputin g t hese procedural circumstances, the D epartment advanced
at least t hree arguments why the termination order in this case non etheless remains vali d , asser ting that (1) Father failed to preserve an objection to the omitted findings t o s upport the second ext ens ion o rder , (2) that the court ’ s seco nd order extending th e dismis sal date was based on a provision of the Twenty

- Ninth Eme rgency Order that imp licitly excuses the subsection

- (b) req uirements , and (3) that the court never lost jur i sd iction of the termina tio n sui t filed by the intervenors.
W e start with the argume nt that would obviat e the nee d for the trial court to make the ordinarily required statutory findings. T he Twenty

- Ninth Emergency Orde r Regarding the Co vid

- 19 State of Di s as ter , provides in rele vant par t :15

3. [A]ll courts in Texas may in any ca se, civil or crimina l

— and mus t to avoid risk to court staff , parties, attorneys, jurors, and the public

— without a participant ’ s consen t: a. except as provided in paragraph (b), modif y o r sus pend any and all deadlin es and procedures, whether prescribed by s tatute, rule, or ord er, for a stated period ending no later than February 1, 2021;
b. in all proceedings under Subtitle E, Title 5 o f the Family Code:
(i) extend th e initial dismissa l d ate a s calcula ted und er Secti on 263.401(a) only as provided by Section 263.401(b) or (b

- 1);
(ii) for an y case previously retained on the court ’ s docket pursuant to Section 263.401(b) or (b

- 1), or for any case whose dismissal date was prev iously modified un d er an E mergency Order o f this C ourt related to COVID

- 19, extend the dismi ssal for an addition al period not to exceed 180 days from t he date of this Order;

Our plain reading of the Twenty

- Ninth Emergency Ord er compels us to consider the disti nction the Su p re me Co urt makes betwee n subsec tion ( b) (i) and (ii) , which both apply to orders extending the statutor y deadline. Subsection (i) a pplies to initial extension order s and

— by the language “ only as provided by Section 263.401(b) or (b

- 1) ”

— maintains the F am ily C ode ’ s req uiremen t s impos ed by that subsection , e.g. that a trial court must make stat utory fin dings to support an initial extension order. Subsection (ii) on the other hand, applies to subsequent extension orders and for such orders implicitly su s pe nds the requ irements imposed by Section 263.401(b) or (b

- 1) , such tha t a trial court having alread y entered an extension order c omplying with Section 263.401(b ) or (b

- 1) may enter a subsequent order exte nding the dismissal date for up to 180 days after t he date of the Emergenc y Order, or in this instance May 10, 202 1 , without other wise compl ying with Section 263.401(b ) or (b

- 1). In this case, beca use an extension16

order had already been granted under 263.401(b ) , section 3 .b.(ii) of the Twenty

Ninth Emer g en cy Order ope rated to allow th e trial court to grant another extension without again mak ing findings under 263.401(b )

. Because the court was not

r equired to make 263.401(b ) findings when gran ting the second motion to ext e nd , the trial order is not void

. Se e Twenty

- Ninth Emerge ncy Ord e r 3 .b.(ii)

. A ccordingl y, we overrule Father ’ s first issue.

I V
. M OTHER ’ S L EGAL AND F ACTUAL S UFFICIENCY F IND ING A court may termi nate the parent

- child relationship if the court finds by clear and convincing eviden ce tha t (1) the parent has engag ed in at least one statutory predicate act and (2) termination is i n the best intere st of the child. See In re N.G. , 57 7 S.W.3d 230, 230 (Te x. 2019); In re L.C.L. , 599 S.W.3d 79, 83 (Tex. App.

— Houston [14th Dist.] 2020) (en banc), p et deni ed , 629 S.W.3d 90 9 (Tex. 2021); see also Tex. Fam. Code § 161.001(b). In her s ole issue, Mother chall enges the legal and f

actual suffici ency of the evidence to suppor t the trial court ’ s f inding that termination of her parental rights is in t he bes t int erest of th e children . See Te x. Fam. Code Ann. § 161.001(b)(2).
A. Standard of Review
Termination of the parent

- child relationship is a dras tic remedy and is of such weig ht and gravity that due process requires the state to justify termination b y clea r and convincing evid ence. In re C .H. , 89 S.W.3d 17, 23 (Tex. 2002); see also In re L.G.R. , 498 S.W.3d 19 5, 20 1 (Tex . App.

— Houston [14th Dist.] 2 016, pet. denied). Clear and c onv incing evidence is the measure or degree of proof that will produce in t he min d of the trier o f fac t a f irm beli ef or conviction as to the truth of the allegations sought to be establ ished . Tex. Fam. Code § 101.007. This he ightened burden of proof resul ts in a heightened standard of review when17

evaluating the sufficiency of th e evid en ce. In re L.G. R. , 4 98 S. W.3d at 202. Under a legal sufficiency review, we look at all the evidence i n the li ght

mo st favorable to the finding t o determine whether a reasonab le factfinder could have formed a firm belief or conviction that the findin g was tr ue. In re J.F. C. , 9 6 S.W .3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts i n favor of its finding if a reasonable fact finder could do so. Id. We dis reg ard all evidence that a reasonable factfinder could have disbelieved or found to ha ve been inc redib le, b ut we do not disregard undisputed facts. Id. Evidence is factually insuffici ent if, in lig ht of the entire record, “the disputed evidence that a reas ona ble factfinder could not have credited in favor of the finding is so sig nifica nt th at a factfi nder could not rea sonably have formed a firm belief or conviction.” Id. We assume that the fac tfinde r resolved disputed evidence in favor of its findings if a rea sonable factfinder could do so, but we do not disregard disputed evidenc e. See I n r e Commitmen t of Stodd ard , 619 S.W.3d 665, 674 (Tex. 2020)

. In this case, neither Father nor Mother has challe nged any of the predicate
gro unds for termination on appeal

. Mother and Fath er both conceded the trial
court ’ s findings under subsection (O ). T he record supports th e findin g that neither Mother nor Father complied with multiple components of their respective family

serv ice plans. Upon our revi ew of the record and ap plying the applicable standards of review , we conclude th e record evidence i s leg ally and fa ctually su fficient to support the trial court ’ s finding under subsection (O)

.
B. Is t he tria l court ’ s order termin ating Mother ’ s parental r ights supported by legally and factually sufficient evidence to support the tria l court ’ s finding t ha t t ermination is the bes t intere st of the Ludmila and Se r afina? There is a strong presumption that th e best interest of the ch ildr en is served18

by keeping t he children with their natural paren ts. In re R.R. , 209 S.W.3d 112, 116 (Tex. 20 06) (per curiam) (c it ing Tex. Fam. Code Ann. § 153.1 3 1(b)); In re D.R.A. , 374 S.W.3d 528, 533 (Tex. App.

— Houston [14th Dis t.] 201 2, no pet.). Howev er, prompt and permanent plac ement of the children in a safe envi ronment is also presumed to be in the childr en ’ s best interes t. I n r e S.R. , 452 S.W.3d at 366 (c i ting Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions un der sec tion 161.001(b)(1) is probative of the issue of the children ’ s best interest. See i d . The considerations that the factfinder ma y use to determin e th e b est interest of the

c hildren , known as the Holley factors, include: (1) the desires of the child; (2) the present and futur e ph ysical and emotional need s of the child; (3) the present and future physical and emotional danger to the child; (4) the pa re nt al abilities of the pers on seek i ng custody; (5) the programs available to assist the person seeking c ustody in promoting the b est interest of the children; (6) the plans for the child by the individuals or agency seeking custody; (7) t he stability of t he h ome or proposed placemen t; (8) a cts or omissions of the parent that may indicate the existing parent

- child r elationship is not app ropriate; and (9) any exc use for the parent ’ s acts or omissio ns. See Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976) ( in te rpr eting former Tex. Fam . Code § 15.02 (since amended)); see also Tex. Fam. Code Ann. § 263.307(b) (l isting factors to be cons ider ed in evaluating “whether the child ’ s parents are willing and able to provide the child with a safe envir onment”). A best

in te res t finding does not re quire p r oof of any unique set of factors or limit proof to any specific facto rs. See Holley , 544 S.W.2 d at 371

– 72

1. The children ’ s desires or evidence of bonding19

Moth er acknowledges that this is a case wher e the children at issue a re too young to testify or verba lly express their desires. Ludmila and Serafina were

r emoved from Mother and Father when they were 7 weeks old. T hey lived for a few months with thei r maternal grandparents before being placed with Cal and Hazel, when th ey we re about five months old. Th ey have lived with Cal and Hazel since then. Under suc h circ umstances the factfinder may consider that the child h as bonded with the foster family, is well cared for by the foster family, and ha s sp ent minimal time with t he pa rent. In re L.G.R. , 4 98 S.W.3 d 195, 205 (Tex. App.

— Houston [14th Dist.] 2016, pet. d enied)

. After meeting virtually an d in person with Cal and Hazel and their fam ily approximately 40 times, Ms. Schriber , the Child Advocate vol unteer , testified that L ud mil a and Serafina are “v ery bond ed” with Cal and Hazel ; that Ludmila and Serafina are “ happy a nd very comfortable.” Ms. Gam es, Ludmila and Serafina ’ s current caseworker , echoed Schribe r ’ s comments. According to Ms. Games, “[Ludm il a and Serafina] have a b on d w ith [Hazel and Cal]. I see th at they really love them. They get along well with [Cal and Ha zel ’ s] children, and they alw ays appear to be very com fortable in the home .” Hazel testif ied about Ludmila and Serafina ’ s favorable r el ationship and healthy in te rac tion with their older childre n. Cal testified about a positive bond Ludmila and Ser afina ’ s beyond their home , with the ir community.
Ludmila a nd Serafina ’ s maternal grandm other t estified that the twins were fully integra te d into and part of Cal and Ha zel ’ s family and that th ey were treated no differen tly than Cal and Hazel ’ s own biologi cal ch ildren. Mother agreed Ludmi la and Serafina are bonde d with Cal and Hazel. No witness testified that Ludmila and Serafina were bon de d with Mother or Father. M ot her contends that sh e di d not ha ve the opportunity to bond with the children

.20

The tes timony established that during COVI D, Mother and Father would visit v ia video co nference daily at times, and weekly in person. S c hriber t estified that two visits she s up erv ised “went well”. Howeve r, M s. Gomez, Hazel and Cal, who supervised visits , repor ted some improper conduct during the visits, including

an incident wher e Father called Cal and / or Hazel a “fucking cunt”. Mother poin ts
t o Hazel ’ s testimony that Moth er ’ s visits have been larg ely appr opr iate, that inappropriate behavior occurring during v isit s was attributable to Father and that she would follow

- up by apolog izing for his behavi or.
On the balance, this factor is sl ightly sup portive of the conclusion th at termination of Mother ’ s paren tal rights is i n the best interest of Ludmila and Seraf ina.

2. The children ’ s physical a nd emotional needs, now a nd in the future Regardin g the second Holly factor, we note that the need for perma nence is a paramount consi de rat ion for the child ’ s p resent a nd future physical and emot ional needs. In re D.R.A. , 3 74 S .W.3d 528, 533 (Tex. App.

— Hou ston [14th Dist.] 2012,

n o pet.). The goal of esta blishing a stable, permanent home for a child is a compell ing government interest. I d

. A parent who lacks stab ility, i ncome, and a home is unable to provide for a child ’ s em otio nal and physical needs. In r e J.T.G. , No. 14

- 10

- 00972

- CV, 2012 WL 171012, at * 17 (Tex. App.

— Houston [14th Dist.] Jan. 19, 2012 , pet. den ied)

. A factfinder may in fe r f rom a parent ’ s past i nability to meet the child ’ s physi cal and emotional needs the p aren t ’ s inability or unwillingnes s to meet the child ’ s nee ds in the future. Interes t of D.M.M. , No. 14

- 18

- 00750

- CV, 2019 W L 546029, at *8 (Te x. App.

— Houston [14th Dist .] Fe b. 12, 2019, pet. den ied).
At the time of trial, Mother remain ed depende nt on Father for housing and financial suppor t. Mother did not have a job and the only reason she was looking21

for one was because her FSP requi red that s he seek empl oyment . Mothe r mov ed back and forth fro m the ap artment and the house she shared with Father, she brief ly lived with F ather at his mother ’ s (“Karen ”) home, and she lived at her parents ’ home for short periods of time during the pe ndency of the case . She f ixed
up a room f

or the twins , which the Departme nt ’ s casework er agreed was suitable in certain respects

. A factfi nder could reasonably conclude th at Mother ’ s past fores hadows a number of likely events that prevent her from being able to care for the child ren if they a re re turned to her . Based on the history of Mother and Father it is reasonably foreseeab le to a fac t finder that Father injur es Mother such that she is un able to care for the twins , that Mother r eturns to re hab, and cannot perform regular parenting duties , or th at Mother becomes s o intoxi cated she is unable to p erform the physical tasks or em otional support essential to caring for the children.
This factor w eigh s in favor of te rminating Mother ’ s parental righ ts.

3

. The emotional and physical danger to t he ch ildr en , now and in th e future A parent ’ s drug use supports a positive finding on the third Holly factor that termination is in the best interest of the c hild. Interest of D. M.M. , No. 14

- 18

- 00750

- CV, 2019 W L 5460 29, at *8 (Tex. App.

— Houston [14th Dist. ] Feb . 12 , 2019, pet. deni ed). The factfinder can give “great weight” to the “significant factor” of drug

- related conduct. In re K.C., 219 S.W.3d 924 , 927 (Te x. App.

– Dallas 2007, no pet.); see also, In re J.J.W

. , No. 14

- 18

- 00985

- CV, 2019 WL 1827591, at *6 (T ex. App . Houston [14th D ist. 201 9, pet. denied) (“Drug abuse and its effect on the abil ity to parent can present an endangering course of conduct.”).
Mother claims she has been so b e r since September 23, 2020 but te ste d positive for ethyl glucuronide thre e tim es a fter that date ; M other ad mits having a22

problem with alcohol. Both Mother ’ s moth er , Maria, and Mother ’ s mother

- in

- law ,
name , b elieve Mother is addicted to alcohol. As the fac t finder , the judge was free
to w eigh with skepticism Mother ’ s explanatio n tha t her falling down an d

see min gly intoxicated behavior is attributable to her seizure disorder. Additionally, a factfinder may infer f rom the parent ’ s past conduc t endangering the chi ld ’ s well

- being that similar conduct will recur in the future. See In te res t of E.C.S ., No. 14

- 1 9

- 00039

- CV, 2019 WL 2589943, at *7, *8 (Tex. App.

— Houston [14th Dist.] June 25, 2019, no pet.) (mem. op.); Inter est of D.M.M. , No. 14

- 18

- 007 5 0

- CV, 2019 WL 546029 , at *14 (Tex. App.

— Houston [ 14th Dist.] Feb. 12, 2019, pet. denied) (m em. op.)

. I n the face of overwhe lming evidence and contrary to her own outcries, on mul tiple occasions and despite

e vidence of such, Mother den ied Father committed fami ly violence against her, refused to a ckn owledge she wa s a vic tim of domestic abuse, an d c on tinue d to live with F ather. Ludmila and Serafina were rem oved because they were not safe in the hotel room with their intoxicate d parents who were unable to care for them ; the first thing Moth er asked when the police arri ved was for Father to be rem o ve d

. Because of the hostil e atmosp here the officer had to call for backup.

T he trial co urt reasonably could have weighed this Holly fac tor in favor of finding terminating Mother ’ s pa rental rights was in the b est interest of the children

.

4. The parental a b il ity of the individual s seekin g custody The Department ’ s p lacement with Cal and Hazel, and Cal and Hazel ’ s parenting abilities remains uncontested. Although Cal and Hazel indica ted a willingnes s to ado pt Lu dmil a and Serafina, the option remained avail ab le to the court to keep them wit h Cal and Hazel without term inating Mother ’ s rights.
Th us, Mother contends that just because she is not currently in a posi tion to23

full

- time parent a child , it doe s not follow that termination is in Ludmila and Serafina ’ s b est interest. But even if we co nsider Mother ’ s parenting ab ilities relevant to the cust odial relationship she seeks , this factor still d oes not weigh in h er fav or. Testimony w as adduced that Mot her already ha d anoth er c hild of whom she no longer has po ss ess ory custody, and has visit ati on rights, but Mother failed
to demonstrate her effo rts , if any, toward nurturing that relationship . Mother testified that she saw the older child approximately 2 m onths before t rial, but before that tim e, had not seen he r for almost one year beca use Moth er refused to undergo SoberLink testing. The trial court could have reasonably concluded that Mother ha d not demonstr ated any significant parenting abilities under the sa m e circumstances sh e desires to p articipate in Ludm il a a nd Serafina ’ s lives. The tri al court reasonably could have weighed this factor i n favor of finding that terminating Mother ’ s parental rights was i n the best interest of the children.

5. P rograms avai lable to assist the person se ekin g custody in promo ti n g the best interest of the chil dren
The Department provided Mother with a practica l plan ai med at promoting the best interest of Ludmila and Sera fina. Yet, Mother concedes she did not complete her FSP. After attending “more than six” inpatient and out pa tie nt rehabilitation pro grams in seven years, Mother achieved continuing periods of sobriety only twice for a total of approximately 15 months. 6 T he programs have not yet proven fully effective, but the tria l court could reasonably infe r th ese p rograms

r em ain ed available to assis t Mother

. T his facto r slightly favors a finding that

6 B y refer ence to these numbers, we only i ntend to illustrate the statistic al chal le nge o f a recovery on pace with Lu dmila and Serafina ’ s childhood. W e acknowledge and do not belittle Mother ’ s ti reless e fforts , trying and failing and trying again, and again

. W e adm ire her commitment in the past, and even efforts she has shown durin g th e pendency of the case, and imp lore her to utilize all the resources available to her

.24

termin ating Mother ’ s parental rights is in the best interest of the children

.
6 & 7. T he plans for the child by the individuals o r a gency seeking custody , and the sta b ility of th e h ome or proposed place ment
Whe n asked about her plans for Ludmila and Serafina, Mo ther foc us es on her plans for herself ; that she wants only th e chance to prove to the twi ns that she loves them and can be a g ood parent. Cal and Hazel offered testimony o f p lans more closely con nected w ith Ludmila and Serafina ’ s well

- being, desiring to o ffer the m a safe, peaceful, happy stress

- free home

. The tria l court reasonably could ha ve weighed this factor in favor of te rmi nating Mother ’ s parental r ights

. M s . S c hri be r a greed the home and ro om that Mother had set up for the twins was “nice,” but that it did not measure up to the “safe, stable, happy home” she

e nvisioned for the girls. She ex plained more that would be neces sar y than a dwelling and furn iture

. T estimo ny of fered about conduct d uring vi sitations, evidence of threats Father made to Cal an d Hazel, Mo ther ’ s unwill ing n ess to recognize and s ep arate from her violent relation ship with Father , are relevant consideration s.
T his facto r slightly favors a finding th at te rminating Mother ’ s pa rental r ights is in the best interest of the children

.
8 & 9

. Acts, o missi ons, and e x cuses of existing parent

- child relat ionship: Noncompliance with subsect ion (O) and Excuses for Noncom pliance Evidence supporting ter mination un de r t he grou nds listed in section 161.001(b)(1) also can be considered in support of a finding that t ermination is in the child ’ s best interest. See C.H. , 89 S.W.3d at 27 (holding the same evidence may be probativ e of both section 161.001(b)(1) grounds a nd b est intere st). In determ ining th e best interest of the child in proceedings for term ination of pare ntal rights, the trial court properly may consi der that the parent did not comply with the25

court

- ordered service plan for reunification with the child. S ee I n r e E.C.R

. , 402 S.W.3d 239, 249 (Tex. 2013). Mother tested positive for both ethyl glucuronide and amphetamines during the pendency of the case a nd failed to provide an explanation to justify her continuing alc ohol problems through the term o f her se r vi ce pl an. Though she admit s to hav ing an alcohol problem generally, she cannot account for her
cont inued use of alcohol during the period in whi ch her parental rights could be won or lost

. Similarly, a fte r the Department involved itself in h er life r egar di ng domestic violence , sh e was gi ven an opportunity to en roll in programs to help her face these issues. M other failed to respond to providers who called her to set appointments

. She faile d t o “start the domestic violence victim program that [s]he was

re co mme nded to complete.”

T his fac to r fa vo rs a finding that terminating Mother ’ s parental ri ghts is in the best interest of the children

.

Concluding Analysis of Holly factors Applying the a ppl icable H olley factors to t he evidence, we conclu d e that l egally a nd factually sufficient evidence suppo rt s the trial court ’ s finding that termination of Mo ther ’ s parental rights is in Ludmila and Serafina ’ s best interests. See In re S.B. , 207 S.W.3d 877 , 8 87

– 88 (T ex. App.

– Fort Wort h 2006, no pet.) (cons i dering t he par en t ’ s drug use, inability to provi de a s ta ble home, and failure to comply with a family

- serv ice plan in holding the evidence supported the best

interest finding). Based on the evidence prese nte d, the t rial court reasona bly could have formed a firm be lief o r con viction that terminat ing Moth er ’ s r ig hts served Ludmila and Serafina ’ s best interests s o that they quickly could achieve26

permanency through adoption. See In re T.G.R.

– M. , 404 S.W.3d 7, 17 (Tex. Ap p.

– Houston [1st Di st.] 2013, no pet.); M

. G.D. , 10 8 S.W. 3d at 513

– 14. Accordingly , we ove rrule Mo ther ’ s sole issue.

I V
. F ATHER ’ S CHALLENGE BASE D O N T HE T RIAL C OURT ’ S U NOBJECTED - TO R EMARKS
In his second issue, Father states that “the trial judge ma de numer ous comments during trial that exhibited clear bi as and p rev ented Father from

rec eiving a fair tr ial.” Father a rgues in the alternative th at his coun sel was ineffective for failin g to object.

A . Sta ndar d s of Review
1. Impartia l trial

. All part i es have a right to a fair and impartial trial befo re a neutral judge

. See Markowitz v. Ma rkowitz, 118 S.W.3d 82, 86 (Tex. A pp.
- - Houston [14th Dist.] 200 3, pet. denied). When a c laim of jud icial bias is raised, we review the record to determine whether it s hows the judge ’ s bias or prejudice denied the defe ndant due
process. See Abdygapparova v. State , 243 S.W.3d 191, 198 (Tex. App.

— San Antonio 2007, pet . r ef ’ d)

. It is only in the r arest cir cumstances, however, that judicial rulings demonstra te the degree o f favoritism or antagonism necessary to show that a fair and impartia l trial was not possi ble. Ma rkowitz, 118 S.W.3d at 87. Rulings with which a part y d isagrees are best brought a s grounds for appeal rather th an evidence of judicial bias. Id. Unfavorabl e rulings do not alone show judicial bias or prejud i ce. Leleo v. Stat e , No. 01

- 20

- 00034

- CR , 2022 W L 243917, at *42 ( Tex. App.

— Houston [1st Dist.] Jan. 27 , 2022, no pet. h.)

. Ins te ad, the j udicial ruling must “ connote a favorable or unfavorable disposition or opinion that is somehow27

wrongful or inappropria te, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess ... or bec ause it i s excessi ve in degree.” Id. (q uoting Liteky v. United States , 510 U.S. 540, 5 50 (1994)); see also Avilez v. State , 333 S.W.3d 6 61, 675 (Tex. App.

— Houston [1st Dist.] 2010, pe t. ref ’ d).
2. Ineffective assistance

. With respect t o c omplaint s of ineffective as sistance, w e apply the Strickland test in parental

- termination p r oceedings. Interest of M.T.R. , 579 S.W.3d 548, 573

– 74 (Tex. App.

— Houston [14th D ist.] 2019, pet. deni ed) refe rring to Strickland v. Washington , 466 U .S. 668, 10 4 S.Ct. 2052, 80 L. Ed.2d 674 (1984)

. Str ickland i mposes a two

- pronged standard to establish an i neffective

- assistance claim. First, the parent mus t show that counsel ’ s performa nce was deficient. Th is requi res showing that counsel made errors so ser ious tha t counsel was not f unctioning as the “co unsel” gu aranteed by the Sixth Amendment. Second, the p a rent must show that the deficient performance prej udiced the case. This requires showing that counsel ’ s error s were so serious as to deprive the part y o f a fair trial

— a trial whos e result i s reliable. Strickla nd , 466 U .S. at 687, 104 S.Ct. 2052. In other w ords, a parent must show that (1) counsel ’ s perfor mance was deficient, and (2) t he deficient performa nce prej udiced the parent ’ s case. M.S. , 115 S.W. 3d at 545.
To determine whethe r represen tation was deficient , we must consider all of the circumstances su r rounding the case and determine whether counsel wa s “reasonably effective.” Id. In doing so, we affor d great deference to counsel ’ s performance, indu lgi ng “a st rong presumption th at counsel ’ s conduct falls wit hin the wide range of reasonable professional a ssistance.” Id. (quoting Strickland , 466 U.S. at 6 89, 104 S. Ct. 2052). Only if counsel ’ s conduct is “so outr ageous that no competent attorney would h ave engaged in it” will we fin d such pe rformance28

d eficient. Id. (quoting Garcia v. State , 57 S.W.3d 436, 4 40 (Tex. Crim. App. 2001))

. In conducting the harm analysis under the s econd pro ng of Strickland ,
rev iewing c ourts must determine whether there is a r eas onable p robability that, bu t for the deficient performanc e, the result of the proceeding would have bee n different. M.S. , 115 S.W.3d at 550. In this cont ext, “[a] reasonable probabili ty is a probability s ufficien t to undermine confidence in the outcome. ” S tricklan d , 466 U.S. at 694, 104 S.Ct . 2052. Thu s, the par ent must also show that “counsel ’ s deficient p erformance prejudiced the defense.” In re J.O.A. , 283 S.W.3d 336, 344 ( Tex. 2009 ) (quoting Strickland , 466 U. S. at 687, 104 S.Ct. 2052).

B. Is F ather ent itled to a new trial based on remark s made b y t he trial c ourt to w hich his counsel did not object ?
Fath er refers us to three comments, and contends th at the “totality ” of these three comments made by the trial co urt “sufficiently illustrate [the trial c our t ’ s] imp licit bias towards [Father] and favorit ism toward s the caregiver, [Cal]”. Below we first analy ze each of the three comments, as framed in Fat her ’ s complete complaint to each comment in his brief : Compl aint that the judge ’

s comment made during Ca l ’ s test imony illustrates bias in fa vor of Cal
First the judge made the following statement during the caregiver, [Cal ’ s] testimony, which i ndicates bias in favor of the caregiver: [S ]o what I sense if th at you ’ r e testifying to what you believe is genui ne [ , ] Ms. Smi th will follow up with any thing that she feels th at she needs to be followed up on or if there needs to provide more explanation. So at this poi nt, just answer Mr. Shireman ’ s question , and trust that Ms . Smith will do her job when it gets back a rou nd her t o re
- questioning y ou.29

Fat her provide s little con text to support his argument

. The record show s that th e judge ’ s comment was not made spuriously , as if immediately follow ing an answer Cal provid ed. Rath er, the excerpted comment fol lowed an exchange between counsel that began w ith t he cro ss ex aminer ’ s (Shireman ’ s) “nonresponsive”

- obj ection to Cal ’ s answer, which was followe d by ano ther attorney ’ s (Smith ’ s) objection that the c ross
- examiner was “in terrupti ng w itnesses testimony”

– Smi th then remarked on the cross

- examiner ’ s profession alism, whi c h prompted Shireman to object as a “sideb ar.” It was fol lowing this sequence

— first, Cal ’ s testimony, Shireman ’ s “ non
- responsive ” object ion, Smith ’ s o bject io n to Shi reman ’ s objection then Smi th ’ s own re mark, and Shireman ’ s objection to Smith ’ s r emark

— that the court inserted itself as it did.

Tr ial courts are e ncouraged to exercise reasonable control over the mode of examining witnesses a nd presenting evidenc e so as to avoid wasting time and to protect witnesses f

rom harassment or undue emb arras sment. Tex . R. Evid. 611(2), (3 ). Taken in c ontext , it would seem the court was just exercising reasonable control over the proceedin g

. Se e Metzg e r v. Sebek , 892 S.W. 2d 20, 3 8 (Tex. App.

— Houston [1st Dist.] 1994, writ denied). It is comm on practice for tria l judge s seeking to curb objections that disrupt a witness ’ s testimony to remind counsel of their opportunity to further examine t he w itness

. W e conclude the judge ’ s commen t did not amount to a demonstration of bias or prejudice in favor of Cal or ag ains t Fathe r. Complaint as to ju dge ’

s comment made during Mother ’ s tes timony that Mother ’ s testimony was responsive to Father ’ s nonverbal cue s
Nex t, during [Mothe r ’ s] testimon y, the trial judge stat ed: So, no. I ’ ve been watching this. Every ti me you say so met hing that [Father] doesn ’ t l ike then you want to go back to that q uestion and correct your answer. So I guarantee you, what30 you ’ re wa ntin g the que stion to be r epeat ed was, who has primary custody . When Mr. Shireman asked that question, [Fat her] raise d h is eyebr ow. So no, no, you cann ot change your
answer. On the record b efore us, we cannot ascertain that the judge ’ s comment was inappropriate

. I f in fact the judge h a d obser ved Father nonverbally commun icat ing
to Mother during her testimony (whether o r not she a lso observed the witness modify her answers), then the judge was w ithin her discretion to address and curb th e inappropriate con duct

. L ikewise, if the judge in fact observed the witness modify her answers, the judge was within her discre tion to address the w itness ’ s conduct in the manner described. To the extent , if any , t he trial court was incorrect about Mother ’ s motivation for her req u est to repeat the pr evious q ues tion , n either Mother ’ s at torney nor Father ’ s attorne y objected to the tria l court ’ s st atement. This was a fair expression for the court to assert in the course of managing the trial. Metzger , at 38. To the extent the j udg e ’ s commen t is ch arac terized as an op inion, on its face, he r opinion about Moth er ’ s motivation for askin g t he question was based on what she “ heard and saw during the trial , ” which was not improper , and doe s not show bias

. See Barrientos v. Nava , 94 S.W. 3d 270, 291

- 92 (Tex. App.

— Hou ston [14th Dist.] 2002, no pet.)

. Compla int of comment made during Father ’ s t estim ony th at the cou rt was “articulating feelings” about Father ’ s testimony [D]uring [Father ’ s] testimony, [Father] answered a que stion related to how he p lans to show he has c hanged as follows: To show that we are re main ing sober; to show that we ’ re i ns tilli ng our core values and morales [sic]; to

– to show how we can support the girls ’ every needs and more; to do anything and every thing; and to giv e them t he t hings tha t they n eed to have a great li fe and to be able t o pr ovide that. And so allowing
us to

– wi th the joint management [sic] conservatorship will give us time, because we haven ’ t had time to spend with the31 girls this entir e time. That woul d give u s th e time to show to people that, hey you know, these guys ha ve c hanged and they can be great pa re nts t o t hei r children, and their children deserve for them to be great parents. And so this would give us the chance to prove that. In response to an objecti on a s nonresp onsive, the trial judge articu lated her feelings abou t his testimony: It ’ s a lot of wo rds t hat

– I don ’ t know if he ’ s saying much. It is a lot of words. A s with the previous comment s , this third comment by the judge ma kes

more sense in contex t. The questi on aske d of Father was: “Tell the Court what
spec ific ally

— tell the Court what spec if ica lly you think you need to work on so you can become the parent you described for these girls.” This ultimately yielded Father ’ s 133

- wo rd answer, to whic h th e ad litem attorne y (who had asked the question) objected t o as non
- responsive. The objection w as not sus t ained, there was no adverse ruling, and shortly after the judge ’ s remark the ad litem stated “And I agree. He named the specif ics”. The testimo ny w as not str icken.
At wors t, t he comment illustrated the judge ’ s impatience , annoyance or dissat isfaction. Liteky v. United States , 510 U.S. 540, 5 55

– 5 6, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994)(“Not establishing b ias or partiality, howe ver, are

e xpressions of impat ience, dissatisfaction, annoyance, and even anger, that are within the bounds of what im p erfect men and women. . .sometimes displ ay”)

. Whether the tota li ty of the record demonstrates a deprivation of Fa th er ’ s due process righ t

s to a fa ir trial

Ev en if we presume the complained

- of comments are of the rare sort that require our revi ew in the a bsence of an objection, u pon our review of the three comments and the entire record, we cannot conclude that record demonstrates a depriva tion of Father ’ s due proces s ri ghts to a fair tria l. See Markowitz , 11832

S.W.3d at 88 ( concluding t he cumul ative effec t of roughly t hi rty rulings we conclude that the trial judge did not exhibit deep

- seated favoritism or antagonism that would make fair jud gment impossible ) ; Do w Chem

. Co . v. Francis , 46 S. W.3d 237, 240 (Tex. 2001) ( reversing court of appe al s , con cluding tri al court ’s sev en comments toward employee ’s counsel we re insufficient to support a finding of judicial bias or misconduct) ; Metzger v. Seb ek , 892 S.W.2d 20, 39 (Tex. A pp

. — Houston [1st Dist .] 1994, writ denied) ( concluding the c umulative e ff ect of over 150 i ncidents point ed out b y appellant during trial that lasted over a month , including some incidents where juror s could reasonably perceive t hat the judge had bee n impa ti en t, agitated, and an gry at appellant ’s counsel did not show partialit y or bia s )

.
B. Is F ather entitled t o a new trial based on his claim that his trial counsel was ineffective ? Father has not attempted to show how his counsel ’ s failure to ob ject t o t hes e

co mments meets either prong of the Strickland test for ineffective assis tance

. Be caus e we find that non e of the comm ents cited by Father amounted to a due process violation illustrating bias, we likewise find that his failure t o object to the compl ained

- of comments on those gr ound s would not and did not result in ineffec tive assista nce of cou n sel. Taking in to account all of the cir cumstances surrounding the case, Fa ther ’ s counsel ’ s performed in a reasonably effective manner. Se e Strickland , 466 U.S . at 545 . We can not conclude tha t Father ’ s counsel ’ s representation was s o grossly de ficient so as t o render t he proceeding fundamental ly unfair. Id

. Accordingly , we overrule Father ’ s second issue.
V
. C ONCLUSION
H av ing overruled eac h of the issues prese nted, w e affirm t he judgment of t he33

trial court.

/s/ Randy Wilson Justice

Panel consis ts of Justice Wise, Poissant an d Wilson.