Opinion filed July 25, 2013

In The

Eleventh Court of Appeals __________

No. 11-13-00029-CV

__________

IN THE INTEREST OF M.R., A CHILD

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-2980-PC

M E M O R A N D U M O P I N I O N

This is an appeal from orders terminating the parental rights of M.R.’s mother 

and father. The father’s parental rights were terminated after a de novo hearing in 

the district court. The mother’s request for a de novo hearing was denied. Both 

parents appeal. We affirm as to the father and reverse and remand as to the mother.

I. Issues

M.R.’s father presents six issues for review, and M.R.’s mother presents 

thirteen. In his first issue, the father challenges the trial court’s denial of his 

motion for directed verdict. In the second issue, the father complains that the trial

court erred by not reviewing the record from the earlier hearing before the 
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associate judge until after the parties had rested. In the third issue, the father 

contends that the trial court erred in permitting the Department of Family and 

Protective Services to proceed on its first amended petition instead of its second 

amended petition. The father contends in his fourth issue that the trial court erred 

in naming the Department as the managing conservator. In his fifth issue, the 

father contends that the trial court “abused its discretion . . . concerning the legal 

and factual sufficiency of evidence regarding involuntary termination of parental 

rights.” In his final issue, the father contends that the trial court “erred in not using 

the proper legal standards in determining conservatorship.”

The mother asserts in her first issue that the trial court erred in denying her 

request for a de novo hearing. In her second issue, the mother contends that she 

was denied effective assistance of counsel. In the third and fourth issues, she 

contends that her motion for new trial should have been granted based upon her 

claim of ineffective assistance of counsel and upon newly discovered evidence. In 

the fifth issue, she complains of the trial court’s failure to enter findings of fact and 

conclusions of law. In her sixth, eighth, tenth, and twelfth issues, the mother 

challenges the legal sufficiency of the evidence to support the termination of her 

rights. In the remaining issues, she challenges the factual sufficiency of the 

evidence. 

II. The Father’s Appeal

In his first issue, the father challenges the denial of his motion for directed 

verdict. The record shows that the father moved for a directed verdict after the 

Department rested but that he then presented evidence and did not later renew his 

motion for a directed verdict. The Department asserts that the father waived this 

issue by failing to renew his motion for directed verdict after he presented 

additional evidence. The Department’s contention is supported by case law. See 

Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex. App.—El Paso 2005, pet. 
3

denied) (citing numerous authorities for this proposition); Tex. Animal Heath 

Comm’n v. Miller, 850 S.W.2d 254, 255–56 (Tex. App.—Eastland 1993, writ 

denied). Therefore, it does not appear that the father preserved this issue. 

Moreover, the father’s argument in this issue is without merit. The father 

argues that, at the time the Department rested, the only evidence before the trial 

court at the de novo hearing was the testimony of Michelle Wyatt, the 

Department’s conservatorship supervisor, and that Wyatt’s testimony was 

insufficient to carry the Department’s burden of proof. The record shows, 

however, that Wyatt’s testimony was not the only evidence that had been admitted 

at the time the Department rested. Three exhibits had been offered and admitted 

into evidence. The first exhibit was a copy of the reporter’s record from the

hearing before the associate judge at which five witnesses testified. The second 

and third exhibits were copies of judgments showing that the father had recently 

been convicted of evading arrest or detention with a prior conviction and of

aggravated assault with a deadly weapon. Because evidence other than Wyatt’s 

testimony had been admitted into evidence, the father’s contention in his first issue 

is without merit. We overrule the father’s first issue.

In his second issue, the father asserts that the trial court erred or abused its 

discretion when it waited until after the parties had rested to review the exhibit 

containing the reporter’s record from the hearing that was held by the associate 

judge. The father also argues that the admission of that exhibit violated his right to 

due process because he had not received proper notice of the Department’s intent 

to introduce it. The Family Code provides: “In the de novo hearing before the 

referring court, the parties may present witnesses on the issues specified in the 

request for hearing. The referring court may also consider the record from the 

hearing before the associate judge, including the charge to and verdict returned by 

a jury.” TEX. FAM. CODE ANN. § 201.015(c) (West Supp. 2012). Not only does the 
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statute permit a referring court in a de novo hearing to review the record from the 

earlier hearing held by the associate judge, but the record from the earlier hearing 

was admitted into evidence as an exhibit in this case. We are not aware of any 

provision that requires a trier of fact to review exhibits before the parties rest or 

that prohibits a trier of fact from reviewing exhibits after the parties have rested, 

and the father has cited no authority for that proposition. Furthermore, the day 

before the de novo hearing, the Department filed a motion requesting the trial court 

to consider the record from the hearing held by the associate judge. The father and 

his attorney were both present at the earlier hearing; the father had an opportunity 

to cross-examine witnesses and to present evidence at that hearing. Thus, the 

contents of the exhibit offered no surprise to the father. We hold that the trial court 

was authorized by Section 201.015(c) to consider the record from the hearing held 

by the associate judge, that the trial court did not abuse its discretion in admitting 

the record from that hearing into evidence as an exhibit even though the father’s 

attorney had not been provided with a copy prior to the de novo hearing, and that 

the trial court did not err in reviewing the exhibit after the parties had rested. The 

father’s second issue is overruled. 

In his next issue, the father complains that the trial court erred by allowing 

the Department to proceed at the de novo hearing on its first amended petition 

instead of its second amended petition. At the de novo hearing when the 

Department announced its intent to abandon the second amended petition and 

proceed on the first amended petition, the father objected to the lack of notice and 

to the violation of procedural rules. Generally, a pleading that has been substituted 

by an amended pleading is no longer regarded as a pleading in a case. TEX. R. CIV.

P. 65. However, a trial court “shall” permit a party to amend their pleadings at any 

time “unless there is a showing that such filing will operate as a surprise to the 

opposite party.” TEX. R. CIV. P. 63. In this case, the father has shown no surprise. 
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The first and second amended petitions were similar; they alleged the same 

grounds for termination of the father’s parental rights except that the second 

amended petition contained one extra ground that was not in the first amended 

petition. Proceeding upon the first amended petition had the effect of abandoning 

one of the grounds upon which the father’s parental rights could be terminated. No 

new grounds for termination were included in the petition upon which the 

Department proceeded. Because the first amended petition did not operate as a 

surprise to the father, the trial court did not err in permitting the Department to 

proceed upon that petition. The father’s third issue is overruled. 

In his next issue, the father argues that the trial court acted contrary to state 

and federal law when it named the Department, rather than the father, as the 

managing conservator of M.R. We disagree. The trial court did not act contrary to 

law. The findings necessary to appoint a nonparent as sole managing conservator 

need only be established by a preponderance of the evidence. In re J.A.J., 243 

S.W.3d 611, 616 (Tex. 2007). Consequently, we review a trial court’s 

conservatorship decision under a less stringent standard of review than the standard 

for termination. Id. A conservatorship determination is subject to review for an 

abuse of discretion and may be reversed only if that determination was arbitrary 

and unreasonable. Id. The record shows that the Department’s goal for M.R. was 

adoption, that his current foster parent wanted to adopt him, that he was very 

happy and was thriving in the care of the foster parent, and that neither the mother 

nor the father had offered any suitable alternatives for placement. Furthermore, 

family reunification was not successful in this case because both parents were 

incarcerated and because no suitable relatives were available to care for M.R. The 

father’s assertion that it would have been in M.R.’s best interest for the father, who 

was incarcerated at the time of removal and remained incarcerated at the time of 
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the de novo hearing, to be named as a managing conservator is not supported by 

the record. The father’s fourth issue is overruled.

In his fifth issue, the father challenges the legal and factual sufficiency of the 

evidence. The termination of parental rights must be supported by clear and 

convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). To 

determine if the evidence is legally sufficient in a parental termination case, we 

review all of the evidence in the light most favorable to the finding and determine 

whether a rational trier of fact could have formed a firm belief or conviction that its 

finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if 

the evidence is factually sufficient, we give due deference to the finding and 

determine whether, on the entire record, a factfinder could reasonably form a firm 

belief or conviction about the truth of the allegations against the parent. In re C.H., 

89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown 

by clear and convincing evidence that the parent has committed one of the acts 

listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of 

the child. FAM. § 161.001.

The trial court found that the father committed five of the acts listed in 

Section 161.001(1). One of those was a finding made pursuant to Section 

161.001(1)(Q) that the father had “knowingly engaged in criminal conduct that has 

resulted in the father’s conviction of an offense and confinement or imprisonment 

and inability to care for the child for not less than two years from the date [of] 

filing the petition.” The father does not dispute this finding in his brief, and it is 

supported by the record. Because a finding that a parent committed one of the acts 

listed in Section 161.001(1)(A)–(T) is all that is required under that statute, we 

need not address the father’s arguments regarding the sufficiency of the evidence 

to support the trial court’s other findings under Section 161.001(1). See TEX. R.

APP. P. 47.1. 
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In this issue, the father also challenges the sufficiency of the evidence in 

support of the trial court’s finding that termination of his parental rights is in 

M.R.’s best interest. With respect to the best interest of a child, no unique set of 

factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 

2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape 

their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These 

include, but are not limited to, (1) the desires of the child, (2) the emotional and 

physical needs of the child now and in the future, (3) the emotional and physical 

danger to the child now and in the future, (4) the parental abilities of the 

individuals seeking custody, (5) the programs available to assist these individuals 

to promote the best interest of the child, (6) the plans for the child by these 

individuals or by the agency seeking custody, (7) the stability of the home or 

proposed placement, (8) the acts or omissions of the parent that may indicate that 

the existing parent-child relationship is not a proper one, and (9) any excuse for the 

acts or omissions of the parent. Id. Additionally, evidence that proves one or more 

statutory grounds for termination may also constitute evidence illustrating that 

termination is in the child’s best interest. C.J.O., 325 S.W.3d at 266. 

The record shows that M.R. was nineteen months old at the time of removal

and that, at the time of the de novo hearing, the father had not seen him for almost 

three years. The father was in jail at the time of removal. He had recently been 

arrested for stabbing a man in the back five or six times and severely injuring the 

man. While this termination case was pending, the father pleaded guilty to the 

offense of aggravated assault with a deadly weapon and, pursuant to a plea bargain 

agreement, received a sentence of confinement for eight years. The father had 

previously assaulted the mother while M.R. was at home, and he had two 

convictions for evading arrest or detention and one conviction for assault on a 
8

peace officer. The father could not provide M.R. with a stable home and had 

offered no suitable relative placement for M.R. 

The record also shows that M.R. had been placed with his current foster 

parent, D.W., for twenty-seven months and that D.W. wanted to adopt M.R. In 

terms of parenting, Wyatt rated D.W. as a “ten” on a scale of one to ten. D.W. 

wants to provide a permanent home for M.R., and M.R. is happy and thriving in 

his placement with D.W. Wyatt believed that it would be in M.R.’s best interest to 

remain with D.W. in a loving and stable home and for D.W. to be allowed to adopt 

M.R.

Based on the evidence presented at trial, the trial court could reasonably 

have formed a firm belief or conviction that termination of the father’s parental 

rights would be in the best interest of M.R. We cannot hold that the finding as to 

best interest is not supported by clear and convincing evidence. The evidence is 

both legally and factually sufficient to support the finding that termination of the 

father’s parental rights is in the best interest of M.R. The father’s fifth issue is 

overruled.

In his final issue, the father contends that the trial court erred by failing to 

use the proper legal standards in determining the conservatorship of the child. In 

his brief, the father states that he wishes to preserve his challenge to D.W.’s 

“further conservatorship.” The father again urges that he should have been named 

a conservator. The trial court did not apply improper legal standards in determining 

M.R.’s conservatorship. Because the father’s parental rights were terminated, the 

father appropriately was not named a conservator for M.R. The father’s sixth issue 

is overruled. 

III. The Mother’s Appeal

The mother presents thirteen issues for review. We will start by addressing 

her challenges to the legal sufficiency of the evidence as asserted in her sixth, 
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eighth, tenth, and twelfth issues. In these issues, the mother contends that the 

evidence is legally insufficient to support the termination of her rights under 

Section 161.001(1)(D), (E), and (O) and to support the best interest finding under 

Section 161.001(2). 

To terminate parental rights, it must be shown by clear and convincing 

evidence that the parent has committed one of the acts listed in 

Section 161.001(1)(A)–(T) and that termination is in the best interest of the child. 

FAM. § 161.001. The trial court found that the mother committed three of the acts 

listed in Section 161.001(1): that she knowingly placed or knowingly allowed the 

child to remain in conditions or surroundings that endangered the physical or 

emotional well-being of the child, that she engaged in conduct or knowingly placed 

the child with persons who engaged in conduct that endangered the physical or 

emotional well-being of the child, and that she failed to comply with the provisions 

of a court order that specifically established the actions necessary for her to obtain 

the return of the child who had been in the conservatorship of the Department for 

more than nine months and had been removed due to abuse or neglect. See FAM.

§ 161.001(1)(D), (E), (O).

The record shows that the mother’s husband, M.R.’s father, committed 

violent acts and that he physically abused the mother while M.R. was in their care. 

In May 2010, the mother and father got into a fight while M.R. was in their care.

As a result of that fight, the mother’s face was “beaten up a little bit”; her eye was 

swollen; and she had “marks on her face, on her throat, stuff like that.” The father

was arrested later, and sometime after the father’s arrest, the mother moved in with 

Daniel McAfee. One night in August 2010 while M.R. was in her care, the mother

got intoxicated and engaged in an altercation with Daniel McAfee. McAfee 

testified that, when he came home after drinking and hanging out with some 

friends, the mother “went crazy,” screamed and yelled, threw a lamp, and bit 
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McAfee. M.R. was in another room of the apartment at the time the mother 

assaulted McAfee. McAfee kicked the mother and M.R. out of his apartment. He

called the police because the mother would not leave; she continued yelling and 

screaming and beating on the door. The police came and arrested the mother. The 

mother left M.R. with a girl named Blane Decker. The next day, Decker returned

to McAfee’s apartment with M.R. and asked McAfee what to do with M.R. 

McAfee called the police and “CPS.” Based on McAfee’s call, the Department 

eventually took custody of M.R. The mother provided the Department the name of 

one person with whom to place M.R.; however, the Department determined that 

that person was not an appropriate placement. M.R. was removed and placed in a 

foster home. The mother subsequently suggested another placement that was also 

determined by the Department to be inappropriate. The mother remained 

incarcerated at the time of the final hearing in this case and participated by 

telephone.

The mother had a 2008 felony conviction for assaulting a peace officer, for 

which she was originally placed on community supervision. On October 28, 2010, 

her community supervision was revoked. Upon revocation, the mother was 

sentenced to confinement for two years in the Institutional Division of the Texas 

Department of Criminal Justice. There was also some evidence that the mother 

had been imprisoned for possessing a controlled substance with the intent to 

distribute it.

At the time of the final hearing before the associate judge, M.R. was two 

years and seven months old and had been in the Department’s care for a year. 

M.R. came into the Department’s care soon after the mother was arrested. M.R. 

was nineteen months old at the time.

After M.R.’s removal, the trial court ordered the parents to participate in 

various services, including counseling, parenting classes, a psychological or 
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psychiatric evaluation, drug testing, and a drug and alcohol assessment. These 

provisions were contained in the trial court’s “Temporary Order Following 

Adversarial Hearing.” As stated in that order, compliance with each provision was 

necessary for M.R.’s return. The mother completed some of the services while 

incarcerated, and she sent cards to M.R. monthly. The Department’s conservatorship worker in this case, Samantha Sanchez, testified that, although the 

mother completed some of the court-ordered services, the mother failed to comply 

with the trial court’s order. She did not attend counseling or get a drug and alcohol 

assessment. Sanchez acknowledged that the mother may have “tried to do as much 

as she could” while she was incarcerated and agreed that some of the services, such 

as the drug and alcohol assessment and the psychological evaluation, could not be 

completed because of the mother’s incarceration.

We hold that there was clear and convincing evidence from which the trial 

court could reasonably have formed a firm belief that the mother engaged in 

conduct or knowingly placed the child with persons who engaged in conduct that 

endangered the physical or emotional well-being of the child. To support 

termination under Section 161.001(1)(E), the offending conduct does not need to 

be directed at the child, nor does the child actually have to suffer an injury. In re 

J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Drug use and domestic violence may 

constitute evidence of endangerment. Id.; C.J.O., 325 S.W.3d at 265. Subjecting a 

child to a life of uncertainty and instability may also endanger the child’s physical 

and emotional well-being. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort 

Worth 2004, pet. denied). The evidence is legally sufficient to support the trial 

court’s finding under Section 161.001(1)(E). The mother’s eighth issue is 

overruled. 

Furthermore, there was also clear and convincing evidence that the mother 

failed to comply with the provisions of a court order that specifically established 
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the actions necessary for her to obtain the return of the child who had been in the 

conservatorship of the Department for more than nine months and had been 

removed due to abuse or neglect. Section 161.001(1)(O) does not “make a 

provision for excuses” for the parent’s failure to comply with the court-ordered 

services. In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)

(quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied)); 

see In re D.N., No. 07-12-00508-CV, 2013 WL 1964813, at *11 (Tex. App.—

Amarillo May 9, 2013, no pet. h.). The burden of complying with a court order is 

on the parent, even if the parent is incarcerated. In re D.N., 2013 WL 1964813, at 

*11. The mother’s failure to comply with the court’s order is not excused by her 

incarceration. Consequently, the evidence is legally sufficient to support the trial 

court’s finding under Section 161.001(1)(O). The mother’s tenth issue is overruled. 

Because the evidence is legally sufficient under subsections (E) and (O), we need 

not address the finding made pursuant to subsection (D). See TEX. R. APP. P. 47.1. 

With respect to the best interest of the child, we hold that there was also 

clear and convincing evidence that termination of the mother’s parental rights 

would be in the best interest of M.R. In reaching this conclusion, we applied the 

best-interest standard set out above in our discussion of the father’s fifth issue and 

considered the evidence presented at trial in light of the Holley factors. See Holley, 

544 S.W.2d at 371–72. The record shows that, at the time of the final hearing 

before the associate judge, M.R. had been in the Department’s care for one year 

and had been in his current placement with D.W. for ten months—since 

October 21, 2010. According to Sanchez, M.R. and D.W., who is a youth minister, 

are “very bonded, very attached.” D.W. is the person that M.R. runs to when he is 

scared, when he is happy, and when he wants a hug. M.R. calls D.W. “Daddy,” 

and M.R.’s favorite book is “Daddy and Me.” Sanchez testified that D.W. is 
13

interested in adopting M.R. and that the Department supports the proposed 

adoption. M.R. is thriving in D.W.’s care.

M.R. was removed because of his parents’ incarcerations and their inability 

to provide an appropriate placement for M.R. Not only did the mother commit 

criminal acts that caused her to be incarcerated and unable to care for M.R., but she 

maintained a relationship with M.R.’s father, a violent and abusive man. Sanchez 

testified that she did not believe that the mother had demonstrated that she is able 

to provide a safe and appropriate home environment for M.R. Sanchez believed 

that the termination of both parents’ rights would be in M.R.’s best interest. The 

evidence is legally sufficient to support the trial court’s finding that termination of 

the mother’s parental rights is in M.R.’s best interest. The mother’s twelfth issue is 

overruled. 

We next address the mother’s second issue. In that issue, she asserts that her 

trial counsel rendered ineffective assistance of counsel. A parent in a termination 

case has the right to “effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex. 

2003). To prevail on a claim of ineffective assistance of counsel, a parent must 

generally show that trial counsel’s performance was deficient and that the deficient 

performance was so serious as to deny the parent a fair and reliable trial. J.O.A., 

283 S.W.3d at 341–42 (following the two-pronged analysis of Strickland v. 

Washington, 466 U.S. 668 (1984)). However, when an indigent parent is altogether 

denied counsel at a critical stage of the litigation, prejudice is presumed. 

Strickland, 466 U.S. at 692; United States v. Cronic, 466 U.S. 648, 659 (1984); see 

also Penson v. Ohio, 488 U.S. 75 (1988) (presumption of prejudice extends to the 

denial of counsel on appeal); Lockwood v. Tex. Dep’t of Family & Protective Servs., 

No. 03-12-00062-CV, 2012 WL 2383781 (Tex. App.—Austin June 26, 2012, no 

pet.) (mem. op.). 
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At the end of the final hearing held by the associate judge, the associate 

judge did not issue a ruling because she had not had time to go through all of the 

exhibits. The associate judge announced that she would enter a ruling later that 

day—Friday, August 19, 2011—if possible but not later than “Monday at 5 p.m.” 

However, the associate judge did not issue any ruling in this case for sixteen 

months. She issued a letter ruling on December 14, 2012, and signed the order of 

termination on January 11, 2013. The record from a hearing held by the district 

judge on the mother’s motion for new trial in this case shows that her appointed 

trial counsel retired in 2011. When he represented the mother at the termination 

hearing, he had quit taking new cases. Trial counsel thought he had withdrawn

from this case after that hearing but, apparently, “missed this case.” Although he 

had not withdrawn from this case, trial counsel retired and shut down his office.

During the sixteen-month interval between the associate judge’s hearing and 

her ruling, the mother attempted unsuccessfully to contact trial counsel to inquire 

about the case and to find out what she needed to do to prevent her rights from 

being terminated. The mother was released from prison in March 2012, seven 

months after the hearing. The record shows that the mother filed a pro se motion, 

in which she requested that an attorney be appointed, and that she sent letters to the 

associate judge requesting that new counsel be appointed. In a June 2012 letter,

she explained that she had “no attorney” representing her but that she was out of 

prison and would like to reopen the case so that a homestudy could be performed.

In response, the court administrator wrote the mother and informed her that her 

letter constituted an improper ex parte communication, that no action would be 

taken in response to the letter, and that she should contact her attorney.

We note that the parties have filed in this case a second joint motion to 

render judgment effectuating an agreement of the parties. The parties agree that 

the portion of the judgment below terminating the mother’s parental rights to M.R. 
15

should be reversed and the matter should be remanded for a de novo trial before 

the referring court. In the motion, the Department concedes that the mother 

received ineffective assistance from her trial counsel and that reversible error 

occurred. M.R.’s attorney ad litem joins the motion. Having considered the facts 

of this case and the authorities cited above, we agree. The mother was denied 

counsel altogether at a critical stage of the case, and we must presume prejudice 

under these circumstances. See Cronic, 466 U.S. at 659. The mother’s second 

issue is sustained, and the second joint motion to render judgment effectuating the 

agreement of the parties is granted. We need not address the remainder of the 

mother’s issues as they are not dispositive of this appeal. See TEX. R. APP. P. 47.1. 

We affirm the trial court’s order terminating the father’s parental rights. 

We reverse the trial court’s order with respect to the mother insofar as it 

terminated the mother’s parental rights, and we remand this cause to the district

court for further proceedings regarding the mother’s parental rights. Any 

proceeding on remand must be commenced within 180 days of this court’s 

mandate. TEX.R. APP. P. 28.4.

MIKE WILLSON

JUSTICE

July 25, 2013

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.