1

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-21-00325-CV 

________________

IN THE INTEREST OF S.C.

________________________________________________________________________

On Appeal from the County Court at Law

Orange County, Texas

Trial Cause No. C200555-D

________________________________________________________________________

MEMORANDUM OPINION

Father (or “D.C.”) appeals from the judgment of the trial court, which 

terminates both Father’s and Mother’s parental rights to “Sally,” their child.1,2 Father

challenges: (1) the legal and factual sufficiency of the evidence to support a finding 

that he committed the predicate act under Texas Family Code section 

161.001(b)(1)(Q); (2) the legal and factual sufficiency of the evidence to support 

1 We identify children and their family members in parental-rights termination 

cases by using an alias to protect the identity of the children. See Tex. R. App. P. 

9.8(a), (b).

2 Mother is not a party to this appeal.
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that termination was in the child’s best interest; (3) the trial court’s conservatorship 

determination; and, (4) in four issues, asserts the trial court committed multiple 

errors denying him his due process rights and right to counsel. See Tex. Fam. Code 

Ann. § 161.001(b)(1)(Q), (b)(2). 

Additionally, J.S.G. and A.G. (collectively referred to as “Foster Parents”), 

filed a notice of appeal challenging the trial court’s ruling striking their petition in 

intervention for lack of standing. Foster Parents argue the trial court erred by ruling 

they lacked standing to petition for termination and adoption under section 

102.005(3) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.005(3) (“An 

original suit requesting only an adoption or for termination of the parent-child 

relationship joined with a petition for adoption may be filed by . . . an adult who has 

had actual possession and control of the child for not less than two months during 

the three-month period preceding the filing of the petition[.]”).

We reverse the portion of the trial court’s order terminating Father’s rights

and the trial court’s order striking Foster Parents’ petition in intervention and as to 

Father, remand the case for a new trial.

I. Procedural Background

On September 22, 2020, the Texas Department of Family and Protective 

Services (“the Department”) filed Trial Cause Number C200555-D, In the Interest 

of S.C., an Original Petition for Protection of a Child, For Conservatorship, and For 
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Termination in Suit Affecting the Parent-Child Relationship. In the suit, the 

Department named D.C. as the “alleged father.” The Department sought termination 

of the parental rights of Mother and Father and appointment of the Department as 

sole managing conservator of Sally. A supporting affidavit stated that on June 17, 

2020, Mother “was found lying in a ditch under the influence of methamphetamines 

or other substances[]” and that Mother “admitted to not knowing the location of her 

1 year old daughter, [Sally.]” The affidavit further stated that a maternal aunt, K.J., 

located Sally at the home of an individual who was unaware of Sally’s presence, and 

local law enforcement identified the residence as a concern due to suspected drug 

trafficking. According to the affidavit, Sally was released to K.J. The affidavit stated 

that Mother subsequently failed to provide a satisfactory sample for drug testing.

The supporting affidavit further averred that on June 21, 2020, an investigator 

contacted the alleged Father, who was incarcerated at the TDCJ Dalhart Unit. Father 

told the investigator the soonest he would be released was in April 2021, but his 

sentence would not expire until 2024. The affidavit noted: “[Father] stated he does 

not have any family members who Child Protective Services would approve of as 

caregivers because his grandmother is too old. He mentioned a younger brother but 

did not want to give out his personal information until he spoke to him first.”

The supporting affidavit further indicated that Mother continued to use illegal 

drugs and on September 1, 2020, “admitted to relapsing on methamphetamines.” 
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Due to her non-compliance with FBSS, on September 10, 2020, Mother and her 

boyfriend were court ordered to participate in services with the Department. The 

affidavit explained that while Sally was in the parental child safety placement with 

K.J., on September 17, 2020, she was found with a four-year-old at a flea market 

alone a quarter of a mile from the residence. Police transported the children to the 

police department. When Mother arrived at the police department, she had to be 

escorted from the building by law enforcement.

The affidavit also reveals the caseworker contacted another potential 

caregiver. While that caregiver initially took Sally into his care, on September 19, 

2020, the replacement caregiver then advised the Department he could not continue 

to care for Sally but would do so until the Department could make other 

arrangements for her care. The affidavit stated that given the concerns about 

Mother’s history of illicit drug use, previous child’s prior history of being removed 

from her home, and her caregiver being unable to provide the continuity in care Sally 

really required, the Department was concerned for Sally’s safety and well-being, and 

therefore, wanted the trial court to appoint the Department as Sally’s temporary 

managing conservator.

On October 2, 2020, the trial court ordered genetic testing of the alleged 

Father and of the child. The parties were also ordered “to appear at the next 

scheduled Court hearing following completion of genetic testing[.]” Each of the trial 
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court’s status hearing orders from October 2, 2020 to July 23, 2021 noted that D.C., 

the alleged Father, had not yet been served. That said, the Status Reports filed by the 

DFPS with the trial court during that time period indicate that D.C. as the “alleged 

Father” was aware of the proceeding and he was entitled to notice of the hearings, 

and the Department mailed D.C. a copy of the family service plan, and during the 

pendency of the case, D.C. had been in “frequent communication” with the 

caseworker.

Foster Parents filed an Original Petition in Intervention and for Termination 

of Parental Rights in Trial Cause Number C200555-D and on May 14, 2021, Foster 

Parents filed a Trial Brief in Support of Petition in Intervention and for Termination. 

Foster Parents alleged standing as adults who have had actual possession and control 

of the child for not less than two months during the three-month period preceding 

the filing of the petition. See Tex. Fam. Code Ann. § 102.005(3). The Department 

moved to strike and dismiss the plea in intervention. The Department argued that 

Foster Parents cannot maintain standing under section 102.005(3) because Section 

102.003(a)(12) grants standing specifically to foster parents of a child placed in their 

care for at least twelve months ending not more than 90 days before the filing of the 

petition. Compare Tex. Fam. Code. Ann. § 102.005(3), with § 102.003(a)(12). The 

Department further argued that section 102.005 did not apply because the 

Department, not Foster Parents, had actual control of the child through a court-
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ordered temporary managing conservatorship. The Department maintained Section 

102.005 does not apply because the Department is seeking termination and 

conservatorship, not termination and adoption.

On March 4, 2021, the trial court held an initial permanency hearing, for 

review of conservatorship appointment and the placement of the child. The alleged 

Father, D.C., still had not been served and did not appear at the hearing. The trial 

court found at the hearing that D.C. “has demonstrated minimal compliance with the 

service plan.”

The trial court heard Foster Parents’ motion in intervention on May 14, 2021 

in another case involving unrelated children removed from the same home, and the 

trial court noted that the hearing would be instructive in Sally’s case as they involved 

identical issues. Foster Parents admitted that because they had the children for less 

than 12 months, they could not establish standing to file an original suit affecting the 

parent-child relationship under section 102.003(a)(12) of the Texas Family Code. 

They argued they established standing to file a suit for termination and adoption 

under section 102.005(3).

Subsequently, the trial court held a hearing regarding the children’s placement 

following their removal from Foster Parents’ home. The hearing took place over 

three separate days, May 24, 2021, June 9, 2021, and July 8, 2021. The trial court 

determined that Sally, who had since been placed with C.M. and S.M. (the 
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“Moores”), would remain in that placement. The trial court noted that Sally was 

doing well in that placement and would not impose another trauma on Sally by 

moving her again. Father did not attend these hearings, and nothing in the record 

indicates he received notice of these hearings.

On July 8, 2021, the trial court also signed an order striking the intervention 

and dismissing Foster Parents as parties to the case. Foster Parents sought mandamus 

relief in this Court. We denied the petition for a writ of mandamus. See In re J.S.G. 

and A.G., No. 09-21-00252-CV, 2021 WL 4312983 (Tex. App.—Beaumont Sept. 

23, 2021, orig. proceeding) (per curiam) (mem. op.).

The clerk’s record reflects that on September 1, 2021, Father signed a waiver 

of service and general appearance. Trial commenced on September 2, 2021, where 

Father appeared for the first time, requested counsel, and counsel was appointed for 

him during the hearing.3 Father testified that he completed the paperwork for a DNA 

test and wanted the test done. The Department explained that DNA testing had been 

ordered in October 2020, and the Attorney General’s office erroneously scheduled 

it somewhere Father could not go to due to his incarceration, which the Department 

acknowledged was not his fault.

3 On September 7, 2021, the trial court signed an order appointing an attorney 

for Father.
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The trial date was then reset to September 9, 2021, and Father appeared with 

counsel. Father’s attorney noted that Father would like to have an aunt considered 

as a potential caregiver, Father wrote a letter to her and would like a response to that.

Accordingly, the parties agreed to reset the case for September 23, and the 

Department noted the dismissal date of September 27, 2021. The Department noted 

that they could not consider placement with an “alleged father,” and there was a 

lengthy discussion about whether Father still wanted DNA testing or would agree to 

paternity, which would impact placement. At one point Father agreed to paternity 

but mentioned he felt “he didn’t have a choice,” so the trial court refused to 

adjudicate parentage without the DNA test. 

On September 23, 2021, the case was called to trial, and Father appeared with 

counsel. The caseworker again explained that DNA testing was ordered some time 

ago, but that did not happen until very recently and they had not received the results 

but hoped to receive them by the week’s end. The caseworker again testified this 

was not Father’s fault nor due to lack of cooperation on his part. The caseworker 

testified that based on this, they were asking the Court to enter an interlocutory order 

with respect to Mother, then recess the hearing pending Father’s DNA test results 

and return on October 14, 2021 to conclude the hearing, at which time the trial court 

could consider a possible extension. At the conclusion of the September 23 hearing, 

the trial court terminated Mother’s rights, but given the pending DNA test results as 
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to Father, found that extraordinary circumstances warranted an extension of the 

September 27, 2021 dismissal date to March 25, 2022. The trial court also 

admonished Father that his parental and custodial rights were subject to restriction 

or termination unless he is willing to provide his child with a safe environment.

On October 6, 2021, the trial court adjudicated D.C. to be the father of Sally 

by genetic testing. On the same day, the trial court signed its Interlocutory Order of 

Termination of Parental Rights as to Mother. On October 6, 2021, the trial court also 

signed an order extending the dismissal date to March 25, 2022.

On October 14, 2021, the case was called for a continuation of the final 

hearing, but Father’s counsel advised the court that Father had decided to sign an 

affidavit of voluntary relinquishment. Father’s attorney further advised that he 

wanted to go over the affidavit with Father before he signed it. On October 14, 2021, 

Father signed the affidavit, which was filed with the trial court on October 18, 2021. 

On October 21, 2021, Father’s attorney filed a rescission of Father’s voluntary 

relinquishment. Even though Father signed the affidavit relinquishing his parental 

rights, the trial court allowed Father to rescind the affidavit after his attorney advised 

the trial court that his office had filed the affidavit with the court inadvertently. 

Father’s attorney also advised the trial court that he had informed the Department 

Father was unwilling to proceed on the relinquishment ground. Following the 

announcement, the Department did not object to Father’s request. And in its final 
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order, the trial court did not find that Father had voluntarily relinquished his parental 

rights to Sally. The trial court also advised the parties at the beginning of the October 

21 hearing that it would proceed and consider Father’s request to place Sally with 

his relative in the trial.

We note that Father also appeared with counsel during the portions of the trial 

where witnesses testified, which occurred on October 26, 2021. After hearing from 

the witnesses, the trial court terminated Father’s rights finding by clear and 

convincing evidence he was incarcerated for the periods required by Texas Family 

Code section 161.001(b)(1)(Q) and found by clear and convincing evidence that 

terminating his parental right is in Sally’s best interest.4 Father and Foster Parents

appealed.

II. Evidence at Trial

A. Testimony of CPS Caseworker Alexis Penning

During the final hearing, on September 23, 2021, the CPS caseworker 

assigned to the case, Alexis Penning, testified that Sally came into CPS care on June 

17, 2020, when Mother was found lying in a ditch under the influence of 

methamphetamines. Penning explained that at the time, Mother admitted she did not 

know Sally’s whereabouts. She testified that K.J., Sally’s maternal aunt, located 

4 Having had their petition in intervention stricken, Foster Parents did not 

participate in the trial.
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Sally in the home of an individual who did not know Sally was there, and local law 

enforcement indicated it was a “residence of concern due to suspected drug 

trafficking.” Penning stated that “during this time, [Father] was incarcerated at the 

Dalhart Unit and it was expected he would be incarcerated until 2024.”

According to Penning, as part of the Parental Child Safety Plan (PCSP) for 

Sally, she was placed in K.J.’s care; however, Sally was later found at the Vidor Flea 

Market with her four-year-old cousin, while both were unsupervised. Penning 

explained the children were taken to the Vidor Police Department where they 

remained for two hours before Mother and K.J. arrived, and Mother admitted to 

being under the influence, so the Department took Sally “into the care of the State.”5

Penning testified that Sally was removed, placed in Foster Parents’ care, and 

has been moved a couple of times. According to Penning, Sally experienced “a lot 

of anxiety in prior placements[]” and “in the prior placements she was having 

counseling done[.]”

Penning said Sally is currently placed with the Moores in Vidor, whom she 

referred to as “fictive kin.” Penning testified the placement is “going very well[]” 

and Sally “loves her family very much there.” When the trial occurred, Sally had 

been with the Moores for several months, and the family was meeting all Sally’s 

5 Penning further explained that K.J. is doing well, her children were returned 

to her, and she maintains a relationship with the Moores so that her children and 

Sally can continue seeing one another.
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needs. Penning indicated that it appeared to be a permanent placement, and the 

family would love to adopt Sally. She described the bond Sally has with her cousins 

and characterized it as a sibling attachment. Penning explained that the Moores 

ensure that Sally gets to see her cousins regularly. She felt Sally’s current placement 

with the Moores remains in Sally’s best interest, and it would be in Sally’s best 

interest if they could eventually adopt her. Penning explained that Sally sees them 

as her family, loves them, and sees that as “her home.” She also felt it would be in 

Sally’s best interest to terminate Father’s parental rights.

Penning explained she felt terminating Father’s rights was in Sally’s best 

interest, because Father is still incarcerated, and they do not know when he will be 

out of jail. She noted that Father has not been able to secure a bond with Sally, and 

“would go as far as saying that he really doesn’t even know her. [Sally] doesn’t know 

him either.” Penning said that while she does not doubt Father loves Sally, she “is 

in a good, stable environment right now where she can have some contact with her 

family.” Penning believed that if Father is paroled and begins making the right 

choices, the Moores would allow him to have contact with Sally.

Penning testified that Father had a Family Service Plan, which he completed. 

She confirmed Father had been incarcerated while the case was pending. Penning 

“can’t say that [Father’s] had a significant relationship with [Sally]. He’s only 

contacted [Sally] through letters, which is what his ability would allow.” During 
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Father’s incarceration, Sally was left with Mother, who exposed her to danger 

through drug use and in locations where drug trafficking occurred. She confirmed 

that Father’s actions placing him in prison and by not making proper arrangements 

for Sally’s care with someone appropriate, Father placed her with persons who 

engaged in conduct that endangered her physical or emotional well-being. Penning 

explained that Father did not have regular visitation with Sally, and the only contact 

he had with her was through letters. According to Penning, Father had been unable 

to demonstrate he had the ability to provide Sally a safe place to live.

During Penning’s testimony, records of Father’s conviction and guilty plea to 

the third-degree felony of possession of a firearm by a felon were admitted as 

evidence. No one disputes his six-year sentence commenced on May 23, 2019. No 

one disputes he received credit for time served beginning March 9, 2018, which 

means Father will finish serving his sentence in prison in March 2024. But whether 

he will get out prior that that is a fact issue, as Penning testified Father was denied 

parole earlier in the year. Penning also confirmed Father has a lengthy criminal 

history, a history that includes multiple felonies, felonies on which he was sentenced

to prison. 

Penning testified about the efforts CPS made to work with Father on a family 

reunification plan. She explained that Father has known about Sally’s case for some 

time, and that the Department was communicating with him about the case before
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he was actually served. Penning confirmed that DNA testing had been requested, but 

due to scheduling mistakes by the AG’s office, the Department learned only recently 

that Father is Sally’s biological Father based on his DNA, results that it discovered 

just like Father only after the trial began.

Penning agreed that Father had possibly mentioned he had a relative who 

could possibly care for Sally, but the relative he mentioned to her was not the same 

person who was present for the trial. Penning explained that even should the court 

terminate Father’s rights, the Department would nonetheless consider placing Sally 

with someone who is related to her.

On cross-examination, Penning testified that in prison, Father had the right to 

delegate his responsibility to care for Sally to his brother, if his brother could do so. 

Penning noted, however, that she did not recall seeing anything about Father’s 

brother in Father’s correspondence, and she questioned why Father was bringing 

delegating his rights to his brother up now. Penning explained that Father “got 

confirmation that he was the father two weeks ago, but I believe he testified in court 

that he didn’t have any reason to believe he was not the father.” Penning confirmed 

that Father had also provided the Department with the name of an aunt and conceded 

he was trying to make plans to take care of his child. Penning also testified that 

Father and Mother were drug users, and Father had a conviction in 2015 for 
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possessing a controlled substance. Penning did not know whether Father knew 

Mother was using drugs at the time he was incarcerated.6

Penning explained that Father told her in letters he believed so much at the 

beginning of the case that Sally was his child that he named her after his own mother. 

She further agreed that if a parent was that sure at the birth of the child and could 

not take care of the child because they were incarcerated, there would be an active 

effort for anybody in his family to try to get placement of Sally, which did not 

happen. Penning testified that the reason Sally was placed in Foster Parents’ care 

with strangers was because Father failed to give the Department anybody that could 

take the child. Penning also agreed the Department would prefer to place with 

families over fictive kin. She agreed that the Department could look into the 

6 The evidence established that D.C. was sentenced for multiple criminal 

offenses between 2014 and 2020. The record reflects that D.C. had the following 

criminal convictions and probation violations:

• 2014: D.C. was convicted of evading detention with a vehicle and state 

jail felony theft;

• 2014: D.C. was convicted of possession of a controlled substance, a 

second-degree felony;

• 2015: D.C.’s probation was revoked, and he was sent to prison for six 

years;

• 2017: D.C. was released from prison and thereafter convicted of 

possession of a controlled substance, a state jail felony;

• 2019: D.C. was convicted of unlawful possession of a firearm by a felon, 

a third-degree felony; and

• March 2020: D.C. was convicted of DWI and possession of marijuana.
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possibility of placing Sally with Father’s family by a home study, but it would have 

to be approved.

B. Testimony of Child’s Caretaker, S.M.

S.M., with whom Sally was placed at the time of trial, also testified. She 

described how Sally came to be in their care. She also described the bond Sally has 

with her cousins and the effort she goes through to maintain that contact. S.M. 

testified they “would love to adopt” Sally. S.M. also agreed they would be willing 

to accept managing conservatorship. She expressed her desire that Sally not be 

moved around anymore, they want what is best for her, and want her to have a 

relationship with Father. S.M. also agreed that if the court did not terminate Father’s 

rights, she could provide a safe environment for Sally until he gets out. S.M. testified 

that Sally should have a relationship with Father “as long as he does what he’s 

supposed to.”

With respect to Father’s family as placements, S.M. testified that Father told 

her that “he didn’t have any family, that his grandmother was the only family he had, 

and that he felt alone in this world, that he didn’t have anyone to turn to[.]” She again 

confirmed that in her recent discussions with Father, he maintained he did not have 

any other relatives, only his grandmother, who recently passed away. S.M. testified 

that Father never mentioned his brother.
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She explained that Sally knows they are not her biological family but that they 

love her and will not let anything happen to her. Sally goes to daycare while S.M. 

and C.M. are at work, and S.M. explained she has friends there and a relationship 

with her teacher. S.M. testified she felt it was in Sally’s best interest to stay with 

them and that “moving her would cause more damage.” S.M. said she would love 

for Sally to know Father and for him to have something to do with his child.

C. Testimony of Guardian Ad Litem

Dorothy Stanley, the guardian ad litem for Sally, testified at trial. Stanley has 

been involved in the case since Sally came into care. Stanley recommended 

terminating Father’s parental rights to Sally.

When asked why she supported termination, Stanley explained that

[Father] poses a future risk to the child because of his past conduct and 

incarceration. Also, I believe he’s abandoned his child. He - - Not only 

does she carry the mother’s name, she carries his last name, and I 

believe he knew full well that he had a child and that relatives could 

have c[o]me forward long before now.

Stanley testified she knew of no evidence that anyone came forward and was serious 

about placement of Sally.

Stanley testified that in making her recommendations to the court, she looked 

at the best interest of the child and future risks identified for the child in the 

placement along with her emotional wellbeing. Stanley said those factors for best 

interest included current and future emotional and physical needs of the child, 
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current and future emotional and physical danger, parental abilities, programs 

available to assist parents, plans for the child, stability of any proposed placement, 

parental acts or omissions that indicated it was not a proper relationship, and excuses 

for those acts or omissions. 

Stanley testified that since Sally has been with the Moores, she “can see how 

[Sally] has grown; her speech has improved, she’s happy, healthy, and the [Moores] 

love her wholeheartedly.” Stanley confirmed that Sally had grown into a little girl 

who is happy and stable. As to a permanency plan for Sally, Stanley recommended 

termination of parental rights “in order for the [Moore] family to adopt [Sally] so 

she can maintain contact with established family members, which includes her aunt, 

her uncle, and their children[.]” Stanley testified those were people Sally knew 

before coming into care, and though not perfect, they are people who have followed 

her case, progress, communicated with the Department, and shown a desire to be in 

Sally’s life.

D. Testimony of Child’s Maternal Aunt

Sally’s maternal aunt, K.J., testified also. She described the close bond Sally 

had with her own children and confirmed Sally’s placement with the Moores was a 

great opportunity for that bond to continue. She believed the Moores would continue 

to act in Sally’s best interest. K.J. also believed the Moores would allow her to 

continue to have a relationship with Father even if his rights were terminated.
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E. Father’s Testimony

When the trial resumed on October 21, 2021, Father expressed his desire to 

rescind his affidavit of voluntary relinquishment. Father’s attorney advised that his 

office had filed the affidavit inadvertently and prematurely, and the trial court agreed 

to accept Father’s rescission and refused to allow the Department to rely on the 

affidavit of voluntary relinquishment.

Father testified that his projected release date is March 8, 2024. Father 

testified to the circumstances surrounding the offense for which he was incarcerated 

and confirmed the police found multiple loaded weapons in his vehicle. Father 

agreed he pled guilty because he was a convicted felon, knew he possessed those 

weapons, and knew he had broken the law. Father testified he knowingly and 

intentionally committed the crime.

During Father’s testimony, photographs were admitted into evidence showing 

the firearms and other items found in Father’s vehicle. Father admitted officers 

found a methamphetamine pipe in his storage facility and that he lied to officers, and 

he denied “using dope at the time.” Father also testified there was marijuana in his 

vehicle at the time of his arrest and a metal container of marijuana in his storage 

facility. At the time of his arrest, police also found a loaded Ruger 22-caliber 

handgun, an AR-15 rifle, ammunition, handcuffs, and brass knuckles.
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Father said he had been in a romantic relationship with Mother prior to Sally’s 

birth. Father testified that he wrote a letter to the Department stating that he named 

Sally after his mother and that she has his last name. Father testified that he could 

not provide Sally with a safe and stable environment because of his choices leading

to his incarceration. He expressed understanding that because of his and Mother’s 

choices, Sally had been in the Department’s care most of her life, had to move to 

several different homes, and it was traumatic to Sally every time she moved into a 

new home environment with strangers.

Father testified that 

I want it in black and white that when my daughter gets old enough and 

she wants to ask me that question, “Daddy, why didn’t you fight for 

me,” that I fought as hard as I could; I did everything in my power to 

fight for my child, because I want to be a father. I want to raise my 

daughter and my God-given right as a parent, I want every bit of it. 

Father also testified that he wanted his brother to be considered as a possible 

placement. Father said he wanted to place Sally with his brother and sister-in-law

and felt they could provide Sally with a safe environment. He testified that he last 

had contact with them at his grandmother’s funeral in July, but they correspond. He 

agreed he understood he was asking that Sally be moved to another environment 

with strangers because of his and Mother’s choices but Father still considered it to 

be in Sally’s best interest.
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Father testified that he wrote letters to Sally and loved her even though he was 

not 100% sure that she was his child. He explained he kept sending letters but 

received no response. Father testified that he felt he had “significant contact with the 

Department because that’s what was asked of me, and I did as much as I could in the 

circumstances that I’m in.” He said the Department told him what to do, and he did 

it. Father indicated he was willing to let the Court hold its decision in abeyance and 

have a home study done with his brother and sister-in-law. He felt that was the right 

thing since DNA had just confirmed his paternity, and he would be able to tell them 

the child was actually related to them. Father also indicated that his aunt, who he 

previously told the caseworker about, would be willing to help. Father testified he 

was never provided with a Child Resource Form. Father also believed he told the 

Department about his brother as a possible placement. Father explained that he 

wanted the trial court to know the effort he made while incarcerated, which included 

contacting the caseworker, his attorney, his aunt, his brother, and sending letters to 

CPS.

Father testified that based on the conversations he had with everyone, he 

believes that it is in Sally’s best interest to be placed with family. He also testified 

that he felt like he would be denied due process if not given the opportunity to have 

his family considered as a possible placement for Sally.
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Father testified that he believed when Mother was released from jail, she was 

doing well while she was pregnant, and he felt she was not engaging in conduct that 

would harm the child. However, Father also testified that he had asked someone to 

keep an eye on Mother and report any behavior that would not be in Sally’s best 

interest.

Father testified he felt it would be in his child’s best interest not to terminate 

his rights but transfer conservatorship to his brother instead. He agreed there were 

viable options for Sally that did not include termination. He believed he could 

provide Sally a safe environment with his brother.

F. Testimony of Paternal Aunt, K.V.

K.V., the wife of Father’s brother, testified at trial. K.V. confirmed that she 

had her first discussion with Father’s attorney the afternoon before she testified. 

K.V. indicated they had “absolutely no idea[]” about the case prior to that 

conversation. She believed “absolutely 100 percent” they could provide a safe 

environment for Sally. K.V. testified that they did not know about the situation until 

the day before the hearing, she was “in shock” and “it was out of the blue.” She 

explained that D.C. had never contacted them about being a possible placement for 

Sally and before hearing from D.C.’s attorney the day before, they believed Sally 

was with Mother, Mother “basically ran off with her, and [Father] had no idea where 
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she was.” K.V. said they did not know where she was and if they had known sooner, 

they would have taken Sally into their home.

K.V. testified that she works as a nanny and is a Sunday school teacher. K.V. 

testified that if she could not bring Sally to work with her, she would take her to a 

daycare near their home; she had located a dentist, pediatrician, and other medical 

providers as part of her plan for Sally. K.V. testified that she and her husband have 

transportation and are both employed. She explained that her husband could not be 

at the hearing, because he was at work. She believed they had sufficient income to 

care for Sally, they are purchasing their own home and have never missed any 

payments. 

K.V. testified they would not use corporal punishment but a reward system 

instead. When asked about Father being released from prison and seeing Sally, K.V. 

responded that “if he thinks that he can come back and we’re just holding her for 

him, then that’s not the case at all. We want to provide her a safe and loving 

environment with her family[.]” She explained that 

If he does straighten his act up of course he can get a lawyer and file 

for all that, but if he doesn’t, I feel like he only has one chance to make 

this happen and really prove he can do this, and if he doesn’t then we 

will just, you know, adopt her and let her be into this family.

K.V. testified that they do not have criminal records or a CPS history and indicated 

that they “don’t party,” drink, or smoke, and they would require Father to take drug 

tests before he had access to Sally. She testified that if Father gets out of prison and 
24

does not do what he needs to for Sally, K.V. and her husband would be a long-term 

provider. K.V. explained that she is not in favor of terminating Father’s rights now, 

but if he is released and does not do what he should, then she would be in favor of 

termination.

On cross-examination, the Department went through Father’s lengthy list of 

criminal convictions, and K.V. confirmed her awareness of most of the convictions. 

When asked whether Father’s past behavior would be a predictor of future behavior, 

she testified that “this is his test[,]” and if he takes “whatever classes he needs to get 

and then go on to getting a job, getting a house . . . then of course, . . . I feel like he 

could take care of her.” She agreed that Father’s behavior did not change despite 

multiple previous stays in jail. K.V. agreed that while it is important for Sally to have 

consistency and permanency, she felt “family should come first.” She testified that 

Sally should be in one place, in K.V.’s home with her family yet did not know how 

many homes Sally had been in so far.

K.V. testified that before the hearing she knew Father was in prison and that 

he had a child, but she did not know where the child was. She explained they 

believed Mother had Sally, and they did not know her whereabouts, “or anything 

about her until yesterday.” K.V. testified they had been communicating with Father 

through letters and saw him via “face-time” at their grandmother’s funeral, but 

Father never mentioned that Sally was in Foster Parents’ care or that CPS had 
25

custody. Father never asked them prior to the day before the hearing if they would 

be willing to be a placement for Sally.

G. Trial Court’s Ruling

At the conclusion of the trial on October 21, 2021, the trial court found the 

Department met the predicate Q ground. The trial court explanation clearly shows 

the court was concerned about Sally having some stability in her life, given the 

instability she’s faced based on the parenting she’s had in the past. The trial court 

explained it this way: 

I do not find that the fact that the father called his brother and his wife 

yesterday to see about them possibly being willing to provide care for 

this child - - I don’t find that to be an adequate plan. This child has been 

in care for over a year, and for him to be reaching out as late as 

yesterday to try to find a relative placement that would be willing to 

keep this child long term, I don’t find that to be sufficient. I don’t find 

that to be a good plan. I find he has not satisfied - - Well, I feel that [] 

the Department has satisfied the evidence - - with the evidence that he 

does not have the ability to provide care for his child, so that’s - - And 

I also find that it’s not in the child’s best interest at this time to not have 

permanency, and I do find it’s in the child’s best interest to terminate 

the father’s parental rights based on the Q grounds. I find not only that 

they met the ground, I find it’s in the child’s best interest.

The trial court noted that even though it was terminating Father’s rights, the 

Department could still consider his brother’s family for possible placement, and if 

they passed a home study, they could come back and decide at that time. The trial 

court appointed the Department as permanent managing conservator.
26

III. Termination of Father’s Parental Rights

Generally, when a party presents multiple grounds for reversal of a judgment 

on appeal, the appellate court should first address those points that would afford the 

party the greatest relief. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 

S.W.2d 675, 677 (Tex. 1999). Thus, we address the rendition issues raised by 

appellant first, because if sustained the issues would provide greater relief than a 

remand. See id.

A. Standard of Review

Father challenges the legal and factual sufficiency of the evidence to support 

the trial court’s predicate Q finding and that termination was in Sally’s best interest.

The standard of proof required in cases involving termination of parental rights is 

clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 

384 S.W.3d 796, 802 (Tex. 2012) (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 

2002)). Clear and convincing evidence is defined as “the measure or degree of proof 

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

truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007.

When conducting a legal sufficiency review of the termination of parental 

rights, 

a court should look at all the evidence in the light most favorable to the 

finding to determine whether a reasonable trier of fact could have 

formed a firm belief or conviction that its finding was true. To give 

appropriate deference to the factfinder’s conclusions and the role of a 
27

court conducting a legal sufficiency review, looking at the evidence in 

the light most favorable to the judgment means that a reviewing court 

must assume that the factfinder resolved disputed facts in favor of its 

finding if a reasonable factfinder could do so. A corollary to this 

requirement is that a court should disregard all evidence that a 

reasonable factfinder could have disbelieved or found to have been 

incredible. This does not mean that a court must disregard all evidence 

that does not support the finding. Disregarding undisputed facts that do 

not support the finding could skew the analysis of whether there is clear 

and convincing evidence.

In re J.F.C., 96 S.W.3d at 266; see also In re E.N.C., 384 S.W.3d at 802.

In a factual sufficiency review, we “give due consideration to evidence that 

the factfinder could reasonably have found to be clear and convincing.” In re J.F.C., 

96 S.W.3d at 266. We must determine “‘whether the evidence is such that a 

factfinder could reasonably form a firm belief or conviction about the truth of the 

State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in 

light of the entire record, the disputed evidence that a reasonable factfinder could 

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

reasonably have formed a firm belief or conviction, then the evidence is factually 

insufficient.” Id. We defer to the factfinder’s findings, and we cannot substitute our 

judgment for the factfinder’s. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The 

factfinder is the sole arbiter of assessing the witnesses’ credibility and 

demeanor. See id. at 109 (quoting In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
28

B. Issue One: Legal Sufficiency to Support Predicate Finding Q

Coupled with a best interest finding, a trial court may order termination of a 

parent’s rights to a child if it finds by clear and convincing evidence that a parent 

has “knowingly engaged in criminal conduct that has resulted in the parent’s: (i) 

conviction of an offense; and (ii) confinement or imprisonment and inability to care 

for the child for not less than two years from the date of filing the petition[.]” Tex. 

Fam. Code Ann. § 161.001(b)(1)(Q). “Terminating parental rights under subsection 

Q requires that the parent be both incarcerated or confined and unable to care for the 

child for at least two years from the date the termination petition is filed.” In re 

H.R.M., 209 S.W.3d at 109–10 (emphasis original). 

In In re Caballero, the Amarillo Court of Appeals interpreted Q as requiring 

a three-step process: (1) the party seeking termination must establish the parent’s 

knowing criminal conduct resulted in incarceration for more than two years; (2) the 

parent must produce some evidence as to how he would arrange to provide care for 

the child during that period; and (3) the party seeking termination would then have 

the burden of persuasion that the arrangement would not satisfy the parent’s duty. 

See 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied); see also In re 

B.D.A., 546 S.W.3d 346, 358 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).

Father does not dispute that his knowing criminal conduct resulted in his 

conviction and incarceration for more than two years from the date of filing the 
29

petition, rather he disputes the “inability to care for a child” element.7 See Tex. Fam. 

Code Ann. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d at 109–10. Given that the 

two-year incarceration period is undisputed, we turn to whether Father produced 

some evidence as to how he would arrange care to provide for Sally during his 

incarceration. See In re B.D.A., 546 S.W.3d at 358 (noting shifting burden and threestep process); In re Caballero, 53 S.W.3d at 396 (same). Father offered no evidence 

that he provided financial or other support for Sally during his incarceration. Instead, 

Father argues in his brief that “once Appellant identified a caregiver to provide a 

safe and stable home for Sally while he was in prison, the burden then fell on the 

Department to prove that the proposed placement was inappropriate.” Father 

contends the Department failed to meet its burden because his sister-in-law testified 

that she and his brother would care for Sally during his incarceration.

Father cites to In re J.G.S., 574 S.W.3d 101, 118 (Tex. App.—Houston [1st 

Dist.] 2019, pet. denied), to support this proposition. However, in In re J.G.S. the 

Houston Court of Appeals explained “that a parent relying on another’s provision of 

care to avoid termination under Subsection (Q) must demonstrate that the care is 

being provided on behalf of the parent, not out of an existing duty or inclination to 

care for the child.” Id. at 119 (citing In re H.R.M., 209 S.W.3d at 105) (other citations 

7 The record established that the Department filed its petition to terminate 

Mother’s and Father’s parental rights on September 22, 2020. Father has been 

incarcerated since March of 2018, and he is scheduled for release in March of 2024.
30

omitted). Further, our sister court explained that an incarcerated parent does not meet 

his burden by merely producing evidence of an unincarcerated relative who is 

willing and able to care for the child, rather the parent must present evidence that the 

alternative caregiver is providing care on behalf of the parent. See id. (citations 

omitted). While there was some evidence that Father’s brother and his wife agreed 

to care for Sally and may have been appropriate given their lack of criminal and CPS 

history coupled with their financial responsibility, Father must establish that they are 

doing so on behalf of Father, not out of their own, personal obligations to or desires 

for the child. See id. at 121; see also In re H.R.M., 209 S.W.3d at 110; In re D.D., 

No. 07-19-00392-CV, 2020 WL 830988, at *2 (Tex. App.—Amarillo Feb. 19, 2020, 

pet. denied) (mem. op.). Here, Father’s sister-in-law testified that they would not 

permit Father to see Sally upon his release unless he satisfied certain requirements 

and would support termination if he failed to do so. This is no evidence that Father 

arranged for them to care for Sally on his behalf. 

Further, Father argues that the Department failed to investigate whether the 

placement was appropriate. However, Father’s sister-in-law testified that they were 

unaware of Sally’s situation until the night before trial resumed on October 21, 2021. 

She further testified that although they knew Father had a child and communicated 

with him by writing letters, he did not ask them to care for Sally or apprise them of 

the situation. Despite his claims that he did not know for sure he was Sally’s father 
31

until the DNA test, Father testified that he had a romantic relationship with Mother, 

he named Sally after his own mother, she had his last name, and his sister-in-law 

testified that she was aware Father had this child. At one point, Father testified he 

had someone check on the child and Mother’s well-being while in prison. Father was 

in contact with the Department during the case’s pendency, there was evidence he 

communicated with his brother and sister-in-law regularly, yet they did not contact 

the Department about the care and welfare of Sally. Father was also present on 

September 2, 2021, when the case was first called to trial. While we concede (as we 

must) that Father did not have the DNA results until October 2021, he failed to ask 

his brother to care for Sally until October 20, 2021, even though there is evidence 

showing that he knew there was a good chance he was her father. See In re D.L.A., 

No. 04-18-00182-CV, 2018 WL 4412506, at *10–11 (Tex. App.—San Antonio Sept. 

18, 2018, pet. denied) (mem. op.) (concluding that where Father failed to posit a 

suggestion of an alternate caretaker until the trial 18 months after receiving the 

petition, the evidence was insufficient to show he arranged for another to assume his 

parental obligations while incarcerated); Smith v. Dep’t of Family & Protective 

Servs., No. 01-07-00648-CV, 2008 WL 2465795, at *5 (Tex. App.—Houston [1st 

Dist.] June 19, 2008, no pet.) (mem. op.). We conclude that Father failed to meet his 

burden of production to show that he arranged for another to care for Sally on his 

behalf during his incarceration. 
32

Here, Father consistently communicated with the Department. He held a 

strong belief that Sally was his child, as did his relatives. The record shows that he 

made no serious effort to get the Department to place Sally with any of his relatives 

prior to the trial.8 When he did raise his brother and sister-in-law as potential 

caretakers, he produced no evidence that they would be doing so on his behalf rather 

than as a personal obligation to or desire for the child. See In re H.R.M., 209 S.W.3d 

at 110; Interest of D.D., 2020 WL 830988, at *2; In re J.G.S., 574 S.W.3d at 119. 

Viewing the evidence in the light most favorable to the trial court’s finding 

under subsection 161.001(b)(1)(Q), we conclude that the trial court could reasonably 

conclude and form a firm belief or conviction that D.C. knowingly engaged in 

criminal activity that resulted in his conviction of an offense, and confinement or 

imprisonment and inability to care for Sally for not less than two years from the date 

of filing the petition. See Tex. Fam. Code Ann. § 161.001(b)(1)(Q); In re H.R.M., 

209 S.W.3d at 110; In re N.R.T., 338 S.W.3d 667, 675–76 (Tex. App.—Amarillo, 

no pet.). We conclude the evidence was legally sufficient to support the trial court’s 

predicate finding as to subsection Q and overrule Father’s challenge to the legal 

sufficiency of the evidence supporting the predicate finding. Given our resolution of 

8 The affidavit of removal notes Father mentioned his brother as a possibility 

but did not want to provide his contact information until he spoke with his brother. 

His sister-in-law’s testimony made clear that Father did not speak to them about it 

until the night before trial.
33

the due process claims below, we do not address his challenge to the factual 

sufficiency to support the predicate finding, as it would afford him no greater relief. 

See Tex. R. App. P. 47.1.

C. Issue Two: Legal Sufficiency to Support Best Interest Finding

Father next argues that the evidence was legally and factually insufficient to 

support the trial court’s finding that termination was in Sally’s best interest. The 

nonexclusive factors courts consider when determining the best interest of the child 

include:

(A) the desires of the child; (B) the emotional and physical needs of the 

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

the child now and in the future; (D) the parental abilities of the 

individuals seeking custody; (E) the programs available to assist these 

individuals to promote the best interest of the child; (F) the plans for 

the child by these individuals or by the agency seeking custody; (G) the 

stability of the home or proposed placement; (H) the acts or omissions 

of the parent which may indicate that the existing parent-child 

relationship is not a proper one; and (I) any excuse for the acts or 

omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see also

Tex. Fam. Code Ann. § 263.307(b). When conducting a best interest analysis, courts 

may consider circumstantial evidence, subjective factors, and the totality of the 

evidence as well as the direct evidence. In re B.R., 456 S.W.3d 612, 616 (Tex. 

App.—San Antonio 2015, no pet.) (citation omitted). “A trier of fact may measure 

a parent’s future conduct by his past conduct and determine whether termination of 

parental rights is in the child’s best interest.” Id. (citation omitted). The same 
34

evidence proving acts or omissions under section 161.001(b)(1) may be probative of 

the child’s best interest. In re C.H., 89 S.W.3d at 28 (citations omitted). There is a 

strong presumption the child’s best interest is served by keeping the child with their 

natural parents, and the party seeking termination must rebut that presumption. In re 

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

With respect to the best interest finding, the trial court heard testimony from 

the guardian ad litem and S.M. that Sally was doing well in her current placement 

and maintained contact with her maternal cousins, with whom she shared a siblinglike bond. The guardian ad litem testified she felt it would be in Sally’s best interest 

to remain in her current placement and to terminate Father’s parental rights. There 

was evidence that showed Sally considered the Moores to be her family and their 

home to be her home. The Department presented evidence that Sally was involved 

in showing animals and had established friendships in her current placement. The 

trial court also heard testimony regarding Father’s lengthy criminal history involving 

drugs, theft, and firearm convictions. There was evidence that Sally had separation 

anxiety when she came into care, which had improved in her current placement. S.M. 

testified they would be happy to adopt Sally. 

The trial court also heard the caseworker’s testimony that Father did not have 

a significant relationship with Sally and that the actions leading to his incarceration 

endangered Sally’s emotional well-being. The guardian ad litem also testified that 
35

Father’s actions put Sally at risk, and despite knowing he had a child, he failed to 

arrange for her care. During his testimony, Father acknowledged that his choices led 

to his incarceration and inability to provide Sally with a safe and stable environment. 

He further acknowledged that because of his choices and Mother’s choices, Sally 

has been in the Department’s care most of her life and had to be moved between

several different foster homes, which was traumatic for her.9

“[T]he prompt and permanent placement of the child in a safe environment is 

presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a). As 

the sole judge of the credibility of the witnesses and the weight to be given their 

testimony, the trial court could reasonably conclude that termination of D.C.’s 

parental rights was in Sally’s best interest. See id. §§ 161.001(b)(2), 263.307(a); see 

also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371–72 (outlining factors to 

consider in best interest determination). We conclude the evidence was legally 

sufficient to support the trial court’s finding by clear and convincing evidence, that 

termination of D.C.’s parental rights is in Sally’s best interest and overrule Father’s 

9 In his brief, Father cites to our opinion in In re B.C.H. to support that 

termination is not in Sally’s best interest. See In re B.C.H., No. 09-18-00437-CV, 

2019 WL 1940758 (Tex. App.—Beaumont May 2, 2019, no pet.) (mem. op.). We 

find that case inapposite. In that case, the ad litem testified that there was risk of 

significant psychological harm to the child if Mother’s rights were terminated. See 

id. at *12. In this case, there is no such evidence regarding potential harm to the child 

if Father’s rights are terminated, and the Department, the CASA, and the ad litem 

testified that termination of Father’s rights would be in the best interest of the child. 
36

challenge to the legal sufficiency of the evidence supporting the best interest 

finding. See Tex. Fam. Code Ann. § 161.001(b)(2); In re A.V., 113 S.W.3d 355, 362

(Tex. 2003). Given our resolution of the due process claims below, we do not address 

Father’s challenge to the factual sufficiency of the evidence supporting the best 

interest finding, as it would afford him no greater relief. See Tex. R. App. P. 47.1.

D. Issues Three through Six: Right to Counsel and Due Process Violations

In issues three through six, Father contends his due process rights were 

violated, because he was not allowed to meaningfully participate in multiple

hearings, was not timely admonished about his right to counsel, and was not 

appointed counsel until September 2, 2021, the first day of trial. We agree.

1. Law: Notice, Counsel, and Admonishment

Before commencing a full adversary hearing, at each status hearing, and at 

each permanency hearing the court must inform any parent not represented by an 

attorney of the right to be represented by an attorney and if a parent is indigent and 

appears in opposition to the suit, the right to a court-appointed attorney. See Tex. 

Fam. Code Ann. §§ 262.201(a), (c), 263.0061. The trial court must appoint an 

attorney ad litem to represent the interests of an indigent parent who responds in 

opposition to a suit filed by a governmental entity in which the State requests 

termination of the parent-child relationship. Id. § 107.013(a)(1). “There appear to be 

no magic words that are required to be ‘in opposition’ to a request for termination.” 
37

In re J.M., 361 S.W.3d 734, 738 (Tex. App.—Amarillo 2012, no pet.) (citation 

omitted). Section 107.013(d) requires that “[a] parent who claims indigence under 

Subsection (a) to file an affidavit of indigence in accordance with Rule 145(b) of the 

Texas Rules of Civil Procedure before the court may conduct a hearing to determine 

the parent’s indigence under this section.” Tex. Fam. Code Ann. § 

107.013(d); see Tex. R. Civ. P. 145(b) (describing requirements and contents of 

affidavit of indigency).

Section 107.013 contains no specific timetable for appointment of an attorney 

ad litem to represent the parent’s interests. See In re V.L.B., 445 S.W.3d 802, 807 

(Tex. App.—Houston [1st Dist.] 2014, no pet.); see also In re M.J.M.L., 31 S.W.3d 

347, 354 (Tex. App.—San Antonio 2000, pet. denied). Generally, a parent filing an 

affidavit of indigency triggers the trial court’s duty to appoint an attorney ad litem 

for an indigent parent. V.L.B., 445 S.W.3d at 805–06. However, a parent’s failure to 

file an affidavit of indigence is not dispositive where the trial court has failed to 

admonish the parent of the right to counsel. In re B.C., 592 S.W.3d 133, 136–37

(Tex. 2019) (noting a parent’s “failure to file an affidavit of indigence is not 

dispositive because the trial court failed to properly admonish her as required by 

section 263.0061”). To hold otherwise would fault a parent for failing to invoke a 

procedure they were not even aware they had a right to exercise.
38

If a parent claims indigence and requests the appointment of an attorney at a 

status hearing or any permanency hearing held after the date the court renders 

temporary orders, the trial court shall require the parent to complete and file with the 

court an affidavit of indigence. Tex. Fam. Code Ann. § 263.0061(a), (b). With 

respect to the appointment of counsel and admonishments for parents, courts have 

reversed judgments when parents were not properly admonished or afforded counsel 

at key stages of the proceedings. See, e.g., In re B.C., 592 S.W.3d at 137–38; In re 

O.C., No. 09-20-00199-CV, 2021 WL 499062, at *1 (Tex. App.—Beaumont Feb. 

11, 2021, no pet.) (mem. op.); In re A.J., 559 S.W.3d 713 (Tex. App.—Tyler 2018, 

no pet.). 

The Family Code also delineates the powers and duties of a parent’s attorney 

ad litem. Tex. Fam. Code Ann. § 107.0131; In re A.J., 559 S.W.3d at 718. An 

attorney ad litem representing a parent:

(1) shall:

(A) . . . [W]ithin a reasonable time after the appointment, 

interview:

(i) the parent, unless the parent’s location is unknown;

(ii) each person who has significant knowledge of the case; 

and

(iii) the parties to the suit;

(B) investigate the facts of the case;

(C) to ensure competent representation at hearings, mediations, 

pretrial matters, and the trial on the merits:

(i) obtain and review copies of all court files in the suit 

during the attorney ad litem’s course of representation; 

and
39

(ii) when necessary, conduct formal discovery under the 

Texas Rules of Civil Procedure or the discovery control 

plan;

(D) take any action consistent with the parent’s interests that the 

attorney ad litem considers necessary to expedite the 

proceedings;

(E) encourage settlement and the use of alternative forms of 

dispute resolution;

(F) review and sign, or decline to sign, a proposed or agreed order 

affecting the parent;

(G) meet before each court hearing with the parent, unless the 

court:

(i) finds at that hearing that the attorney ad litem has 

shown good cause why the attorney ad litem’s compliance 

is not feasible; or

(ii) on a showing of good cause, authorizes the attorney ad 

litem to comply by conferring with the parent, as 

appropriate, by telephone or video conference;

(H) abide by the parent’s objectives for representation;

(I) become familiar with the American Bar Association’s 

standards of practice for attorneys who represent parents in abuse 

and neglect cases; and

(J) complete at least three hours of continuing legal education 

relating to representing parents in child protection cases as 

described by Subsection (b) as soon as practicable after the 

attorney ad litem is appointed, unless the court finds that the 

attorney ad litem has experience equivalent to that education; and

(2) is entitled to:

(A) request clarification from the court if the role of the attorney 

ad litem is ambiguous;

(B) request a hearing or trial on the merits;

(C) consent or refuse to consent to an interview of the parent by 

another attorney;

(D) receive a copy of each pleading or other paper filed with the 

court;

(E) receive notice of each hearing in the suit;

(F) participate in any case staffing conducted by the Department 

of Family and Protective Services in which the parent is invited 

to participate, including, as appropriate, a case staffing to 

develop a family plan of service, a family group conference, a 
40

permanency conference, a mediation, a case staffing to plan for 

the discharge and return of the child to the parent, and any other 

case staffing that the department determines would be 

appropriate for the parent to attend, but excluding any internal 

department staffing or staffing between the department and the 

department’s legal representative; and

(G) attend all legal proceedings in the suit.

Tex. Fam. Code Ann. § 107.0131(a). These duties are extensive and “commensurate 

with the seriousness of the rights at stake.” In re A.J., 559 S.W.3d at 719 (citing In 

re V.L.B., 445 S.W.3d at 807.

2. Eldridge Analysis

The Fourteenth Amendment governs a state’s attempted termination of the 

parent-child relationship. See Santosky v. Kramer, 455 U.S. 745, 753–54 (1982); see 

also U.S.CONST. amend XIV; Tex. Const. art. I, § 19. The Texas Supreme Court has 

recognized that the involuntary termination of parental rights “‘involves

fundamental constitutional rights.’” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985)

(citation omitted).

Our next question becomes what process is “due” before the attempted 

deprivation of parental rights. In re R.M.T., 352 S.W.3d 12, 17 (Tex. App.—

Texarkana 2011, no pet.). “At a minimum, due process requires notice and an 

opportunity to be heard at a meaningful time and in a meaningful manner.” See id.

(citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)); see also In re L.N.C., 573 

S.W.3d 309, 322 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). The process
41

due in any given situation is measured by a flexible standard that depends on the 

practical requirements of the circumstances. Eldridge, 424 U.S. at 334; Univ. of Tex. 

Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex. 1995). “When the State 

moves to destroy weakened familial bonds, it must provide the parents with 

fundamentally fair procedures.” Santosky, 455 U.S. at 753–54. “[T]he process due 

in parental rights termination proceedings turns on a balancing of the ‘three distinct 

factors’ specified in Eldridge[.]” Id. at 754; In re A.J., 559 S.W.3d at 719–20; In re 

S.K.A., 236 S.W.3d 875, 892 (Tex. App.—Texarkana 2007, pet. denied). “[S]tatus

as a prison inmate does not strip a person of his constitutional right of reasonable 

access to the courts.” In re A.J., 559 S.W.3d at 719 (citing In re T.L.B., No. 07-07-

0349-CV, 2008 WL 5245905, at *2 (Tex. App.—Amarillo Dec. 17, 2008, no 

pet.) (mem. op.)).

To assess what process D.C. was due, we weigh the three Eldridge factors 

enunciated by the United States Supreme Court in Eldridge: (1) the private interest 

affected by the proceeding or official action; (2) the countervailing governmental 

interest supporting use of the challenged proceeding; and (3) the risk of an erroneous 

deprivation of that interest due to the procedures used. In re B.L.D., 113 S.W.3d 340, 

352 (Tex. 2003) (citing Eldridge, 424 U.S. at 335). Courts must weigh these factors

to determine whether the fundamental requirements of due process have been met 

by affording an “‘opportunity to be heard’ at a meaningful time and in a meaningful 
42

manner[]” under the circumstances of the case. See City of L.A. v. David, 538 U.S. 

715, 717 (2003) (quoting Eldridge, 424 U.S. at 333).

a. Private Interests Affected by the Proceeding

Concerning the private interests affected, parental rights are “far more 

precious than any property right[,]” and the State’s initiation of a termination 

proceeding “seeks not merely to infringe that fundamental liberty interest, but to end 

it.” Santosky, 455 U.S. at 758–59. A parent’s interest in maintaining custody of and 

raising his or her child is paramount. In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). 

Therefore, a parent’s interest in the accuracy and justice of the decision to terminate 

his or her parental status is, therefore, a commanding one. Id.

We must also consider the private interests of the child. See id. “Both the 

parent and the child have a substantial interest in the accuracy and justice of a 

decision.” Id. The considerations include D.C.’s fundamental liberty interest in 

maintaining custody and control of Sally, the risk of permanent loss of the parentchild relationship between them, and D.C.’s and Sally’sinterest in a just and accurate 

decision—weigh heavily in favor of providing D.C. with an attorney at a number of 

critical stages before commencement of the termination trial including prior to the 

adversary hearing, placement hearings, and permanency hearings, and an 

admonishment of his right to counsel at the statutorily mandated time. See id. at 548.
43

This factor also weighs heavily in providing Father notice and an opportunity to 

participate at critical stages of the proceeding.

b. The State’s Interest in the Proceeding

The State’s interest in the proceeding includes protecting the best interest of 

the child, an interest which is “‘served by procedures that promote an accurate 

determination of whether the natural parents can and will provide a normal 

home.’” Id. at 548–49 (citations omitted); see also In re B.L.D., 113 S.W.3d at 

353 (noting that the State’s “interest in promoting the welfare of the child” aligns 

with the parent’s interest in a just and accurate decision). The State has an additional 

interest in an accelerated timetable and a final decision that is not “unduly 

prolonged” with negative psychological effects on the child left in limbo. See In re 

M.S., 115 S.W.3d at 548; see also In re B.L.D., 113 S.W.3d at 353. “[T]he Family 

Code’s entire statutory scheme for protecting children’s welfare focuses on the 

child’s best interest.” In re M.S., 115 S.W.3d at 547 (citations omitted). Similar to 

their parents, children have an interest in a just and accurate resolution in termination 

cases. See id. at 548; In re A.J., 559 S.W.3d at 720–21. Children also have a strong 

interest in a final termination decision so adoption to a stable home or return to the 

parents is not unduly prolonged. In re M.S., 115 S.W.3d at 548; In re A.J., 559 

S.W.3d at 720–21.
44

The record shows that the Department was appointed as temporary managing 

conservator of Sally on October 2, 2020, during a full adversary hearing. The 

termination trial did not commence until September 2, 2021. Under the record before 

us, we conclude that advising Father of his statutory right to be represented by 

counsel before commencement of the trial at any number of points during the 

pendency of the proceeding would not have “unduly prolonged” the Family Code’s 

statutory scheme for protecting the child’s welfare. See In re A.J., 559 S.W.3d at 721

(citation omitted). 

c. Risk of Erroneous Deprivation of Parent–Child Relationship

“The parent’s, child’s, and government’s interest in a just and accurate 

decision dovetails with the third Eldridge factor—that of the risk of erroneous 

deprivation” of the parent-child relationship because of the followed procedure. Id. 

at 549; In re A.J., 559 S.W.3d at 721; In re R.M.T., 352 S.W.3d at 22. The 

Department contends Father was appointed an attorney when he requested one, that 

he made no suggestion that his counsel’s representation was inadequate, and that his 

counsel did not seek a continuance. Even though Father was represented by counsel 

in the trial of the case, Father was without representation during the majority of the 

case, a twelve-month period between September 22, 2020 through September 9, 

2021. On September 1 and September 7, 2021, the trial court issued Orders for D.C. 

as an inmate to appear via Zoom, and on September 7th the trial court appointed an 
45

attorney ad litem to represent D.C. While the record before this Court does not 

indicate when the trial court first admonished D.C. of his right to appointed counsel, 

the record does show that alleged Father was not served, and therefore not 

admonished, for more than one year following the filing of the suit, despite his being 

named in the lawsuit as the alleged Father and the Department knew that where he 

was incarcerated. Thus, the trial court failed to admonish D.C. that he was entitled 

to be represented by counsel at all critical stages of the proceedings. See In re A.J., 

559 S.W.3d at 721. Under the third Eldridge factor, there was “a significant risk of 

erroneous deprivation of the parent-child relationship” between Father and Sally. 

See id. Balancing the Eldridge factors, we conclude Father was denied procedural 

due process, as he was denied a meaningful opportunity to participate in the 

proceedings until the time of trial.

3. In re A.J.

In the case of In re A.J., the Tyler Court of Appeals reversed a termination on 

similar facts, concluding Father was denied procedural due process. See id. at 722. 

There, Father was incarcerated throughout the case and he was never statutorily 

admonished of his right to be represented by counsel or timely appointed counsel 

before trial. See id. at 719. The commencement of the trial began and at that time the 

indigent Father was not represented by an attorney. Id. After commencement of the 

trial, the trial court decided to reconvene after appointing an attorney to represent 
46

the indigent Father. The trial was reconvened, and Father was represented by a court 

appointed attorney. The Department argued that Father failed to preserve this error

because he failed to object to the timing of counsel’s appointment. See id. The Tyler 

Court of Appeals pointed to Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) 

and determined that the right to assistance of counsel in parental termination cases 

should not be deemed waived by inaction, and it must be expressly relinquished

plainly, freely, and intelligently, sometimes in writing and always on the record. See 

id. at 717–18 (citing Marin v. State, 851 S.W.2d at 280). In reaching their decision, 

the Tyler Court noted Father “was also denied the right to appointed counsel, did not 

waive his right to counsel, and was effectively denied any method of meaningful 

participation at any of the critical stages of the case or at the beginning of the trial[]” 

and the Tyler court presumed under its facts that the denial was harmful error. See 

id. at 722.

4. Application and Harm

Here, the Department argues Father failed to preserve error on the “due 

process” issues. Generally, in cases involving the involuntary termination of parental 

rights, our rules of error preservation apply. See In re K.A.F., 160 S.W.3d 923, 928 

(Tex. 2005); In re B.L.D., 113 S.W.3d at 350–51; see also Tex. R. App. P. 33.1(a)(1) 

(noting that as a prerequisite to presenting a complaint on appeal, the record must 

show it was presented to the trial court). During trial, Father testified he believed his 
47

due process rights would be violated if the Department failed to consider his 

placement request. Assuming without deciding this was insufficient to preserve 

error, we cannot agree with the Department’s position. The Texas Supreme Court 

has explained that there are certain circumstances where failure to preserve “may 

very well rise to the level of a due process violation because ‘a different calibration 

of the [] Eldridge factors could require a court of appeals to review an unpreserved 

complaint of error to ensure that our procedures comport with due process.’” In re 

M.S., 115 S.W.3d at 546 (quoting In re B.L.D., 56 S.W.3d at 210–12) (discussing 

failure to preserve legal sufficiency complaint in the context of ineffective assistance 

claim). We conclude this is one such situation. Based on our analysis of the Eldridge

factors above, we determine that Father, at a minimum was entitled to notice, an 

opportunity to meaningfully participate in the proceedings prior to trial, and 

admonishments regarding his right to counsel. See In re L.N.C., 573 S.W.3d at 322; 

In re A.J., 559 S.W.3d at 720. The facts before us created a perfect storm that ensured 

Father was unaware of his rights, and even if he had been aware, did not have an 

opportunity to exercise them until the case was called to trial. “[E]rror preservation 

in the trial court, which is a threshold to appellate review, necessarily must be viewed 

through the due process prism.” In re M.S., 115 S.W.3d at 547.

Even if we do not presume harm, the record before us establishes harm. While 

the Order for Protection of a child in an Emergency and Notice of Hearing signed 
48

on September 23, 2020, contained an admonishment about the right to counsel, 

nothing in the record indicates Father received this admonishment prior to signing

the waiver of service on September 1, 2021.

10 The status hearing order did not 

contain an admonishment regarding counsel nor does the record indicate Father 

received notice of the hearing or the order. The record does not reflect that Father 

was served with notice of the initial permanency hearing or order dated March 5, 

2021, and the Department’s permanency report to the Court preceding that hearing 

indicated it knew of Father’s location but had not served him even though the 

Department had changed the permanency goal from family reunification to 

termination. Similarly, the Department’s permanency report to the Court on July 7, 

2021 indicated Father was in frequent communication with the Department and 

noted his location but indicated he had not yet been served. The record does not 

reflect that Father was served with notice of the permanency hearing that took place 

on July 8, 2021 or the order dated July 23, 2021, which again indicates the 

Department’s permanency goal of termination.

10 The waiver of service Father signed acknowledged receipt of the original 

petition for protection of a child, affidavit in support of removal, order for protection

of a child in an emergency, order appointing attorney ad litem, order appointing 

guardian ad litem, scheduling order, and an extra copy of waiver of service and 

general appearance. However, nothing indicates he received any of these documents 

prior to September 1, 2021, when he signed the Waiver of Service and General 

Appearance.
49

Father signed the waiver of service and general appearance before the 

appointment of and absent consultation with counsel. The very next day, on 

September 2, 2021, Father appeared at the first called final hearing, where the trial 

court admonished him of his right to counsel. He expressed his desire for counsel, 

and during the hearing, the trial court appointed counsel to represent him.11

Thereafter, Father appeared with counsel for each final hearing date.

Further, the Department, despite knowing Father’s identity and location and 

communicating with Father during the pendency of the suit, failed to serve him

during the case’s pendency for one year after it filed its original petition. The Family 

Code requires an admonishment of counsel before the initial adversary hearing and 

each subsequent hearing, but there is no indication Father received advanced notice 

of that hearing or any other hearing. There is also no indication he was ever 

admonished of his right to counsel despite letters he sent to the Department inquiring 

about the status of the case, questioning whether the Department was seeking to 

terminate his rights, and asking them not to do so. Because the Department failed to 

use reasonable diligence in having Father served with citation, it denied Father of 

his right to representation and to his right to meaningfully participate at the critical 

stages of the proceedings prior to trial. These critical stages included the status 

11 The trial court did not sign the order appointing counsel until September 7, 

2021.
50

hearing, the adversary hearing, multiple placement hearings, and permanency 

hearings that occurred after the Foster Parents intervened. 

Here, the trial court terminated Father’s right under subsection Q, finding he 

was unable to arrange for substitute care for Sally during his incarceration. From the 

beginning of case the Department’s claim that Father did not have the ability to care 

for Sally was a core issue in the case, as the affidavit of removal demonstrates in 

discussing potential placements for Sally. While the Department used one hand to 

fault Father for being incarcerated and being incapable of caring for Sally, with the 

other it presented testimony in the trial that it would not consider placing Sally with 

any members of Father’s family until his parentage had been adjudicated. At trial, 

the Department told the trial court it “can’t even consider a placement with an 

alleged father[]” when it hinged on the DNA results the Department failed to 

procure.12 But the Department’s logic is flawed, since it is the Department who is 

responsible for procuring the DNA test, when needed, to determine whether a 

putative father (or mother) is the biological parent of the child in the Department’s 

custody. We find the Department’s failure to diligently seek to have citation served 

upon Father and the trial court’s failure to ensure such timely service, deprived 

12Father testified during this hearing that he believed he was the father of Sally 

and that he was asking the Court to adjudicate him as Sally’s father; however, he 

also said, “I don’t have a choice[.]” After that, the trial court refused to adjudicate 

paternity. Father explained that he felt if he had had the DNA test administered 

sooner, he would have more time to “get ahold of [] family to get everything in line.”
51

Father of his right to meaningfully participate at critical stages of the proceedings

and to be represented by counsel to be harmful error. 

Having concluded that Father was denied adequate notice, not permitted to 

meaningfully participate at critical stages during the case’s pendency, the trial court 

failed to properly admonish him of his right to counsel, and that such due process 

violations resulted in harm, we sustain these issues. See Tex. R. App. P. 44.1(a)(1); 

but see In re A.J., 559 S.W.3d at 722 (noting harmless error analysis was 

inappropriate and presuming a parent was prejudiced when denied right to appointed 

counsel and effectively denied any method of meaningful participation at any of the 

critical stages of the case).

E. Issue Seven: Conservatorship

In his last issue, Father contends the trial court erred by appointing the 

Department as Sally’s managing conservator and that there was “ample evidence” 

that appointing Father’s brother and sister-in-law would be in Sally’s best interest. 

Father further contends because there was no evidence to the contrary and argues for 

the application of Texas Family Code section 263.404. We disagree. 

The Texas Supreme Court has determined that section 263.404 applies “only 

when the trial court does not order termination of the parent-child relationship[.]” 

See In re J.A.J., 243 S.W.3d 611, 615 (Tex. 2007) (emphasis original). Because the 

trial court terminated Father’s rights, section 263.404 does not apply. See id.
52

“[T]he quantum of proof required to support a termination decision differs

from the level necessary to support a conservatorship appointment.” Id. at 616. 

Circumstances could exist where the evidence is insufficient to support termination

but still support the determination that appointment of a parent as conservator would 

impair the child’s physical health or emotional development. Id. The level of proof 

is clear and convincing for terminations. Id. (citing Tex. Fam. Code Ann. § 161.001). 

However, the level of proof for conservatorship appointments is a preponderanceof-the-evidence standard. Id. (citing Tex. Fam. Code Ann. § 105.005) (other citation 

omitted). We review a trial court’s decision on conservatorship for an abuse of 

discretion. See id.; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Here, we cannot say the trial court abused its discretion by appointing the 

Department as Sally’s managing conservator. The record established that Sally’s 

mother’s rights had been terminated and Father was incarcerated. The evidence also

established that Sally had no significant relationship with Father’s brother or sisterin-law, and they had not been involved in the case prior to trial. To the extent Father 

contends the evidence was legally insufficient to support the trial court’s 

conservatorship determination, we overrule this issue.

However, given our resolution of Father’s due process issues and his inability 

to meaningfully participate at critical stages of the proceedings, which included 

placement and permanency hearings, and absence of counsel, on remand the trial 
53

court should consider the conservatorship issue, including any potential placements 

offered by Father. See Tex. Fam. Code Ann. §§ 156.001 (permitting trial court to 

modify order), 263.002, 263.501 (requiring the trial court, when the Department is 

named a child’s managing conservator, to hold a hearing to review the 

conservatorship appointment at least once every six months until the child becomes 

an adult); see also In re J.L.V., No. 09-19-00316-CV, 2020 WL 1161098, at *17 

(Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.) (upon reversal of 

trial court’s termination order, remanding for conservatorship determination, among 

other things).

IV. Intervenors’ Standing

Intervenors’ sole issue is whether Foster Parents had standing under Section 

102.005(3) to intervene with a petition for termination and adoption. Foster Parents

testified that the Department placed Sally with them beginning in October 2020

through April 9, 2021. Foster Parents filed a petition in intervention on April 26, 

2021. Because it is undisputed that the child resided with Foster Parents for not less 

than two months during the three-month period preceding the filing of the petition 

in intervention, unless Section 102.005(3) categorically excludes foster parents, 

Foster Parents could establish standing to request termination and adoption if they 

could show that they had actual possession and control of the children. 
54

The Department argues the Legislature did not intend to convey standing to 

foster parents in section 102.005(3). “Standing, like other issues implicating a 

court’s subject matter jurisdiction, is a question of law that we review de novo.” In 

re H.S., 550 S.W.3d 151, 155 (Tex. 2018). “We analyze statutes ‘as a cohesive, 

contextual whole, accepting that lawmaker-authors chose their words carefully, both 

in what they included and in what they excluded.’” Id. (quoting Sommers v. 

Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017)). When we consider 

issues of statutory construction, “our objective is to determine and give effect to the 

Legislature’s intent.” In re D.T., 625 S.W.3d 62, 71 (Tex. 2021) (evaluating Section 

107.013 of the Family Code). “We ascertain that intent from the language the 

Legislature used in the statute.” Id. “If the meaning of the statutory language is 

unambiguous, we adopt the interpretation supported by the plain meaning of the 

statute.” Id. “We read the statute as a whole, giving meaning to the language 

consistent with other provisions in the statute.” Id.

The Department argues that foster-family specific amendments to sections 

102.003 and 102.004 of the Family Code demonstrate the Legislature’s intent to 

exclude foster parents from section 102.005(3). Traditional principles of statutory 

construction require a court to effectuate the Legislature’s intent by giving effect to 

every word, clause and sentence. Hogan v. Zoanni, 627 S.W.3d 163, 169 (Tex. 

2021).
55

The Legislature enacted a statute that confers on certain persons general 

standing to file an original suit affecting the parent-child relationship (“SAPCR”). 

See Tex. Fam. Code Ann. § 102.003. The Legislature first conferred general standing 

to file a SAPCR on foster parents in 1997. Act of May 19, 1997, 75th Leg., R.S., ch.

575, § 3, 1997 Tex. Gen. Laws 2012, 2012-13 (codified at Tex. Fam. Code § 

102.003(a)(12)). Subsection 102.003(a)(12) allowed a SAPCR to be filed by a foster 

parent of a child placed by the Department in the person’s home for at least 18 

months (subsequently shortened to 12 months) ending not more than 90 days 

preceding the filing of the petition. In 1999, the Legislature amended the general 

standing statute to distinguish foster parents from other persons who have had actual 

care, control, and possession of a child. Act of May 30, 1999, 76th Leg., R.S., ch. 

1390, § 2, 1999 Tex. Gen. Laws 4696, 4696-97 (codified at Tex. Fam. Code 

102.003(a)(9), (12)). The Waco Court of Appeals interpreted subsections (9) and 

(12) to require a person to use time exclusive of time as a foster parent to establish 

they “‘actual care, control, and possession of the child’” for six months under 

subsection (9). In re Torres, 614 S.W.3d 798, 803 (Tex. App.—Waco 2020, orig. 

proceeding). That construction gave effect to both subsections if 102.003(a), one that 

expressly conferred general standing to file a SAPCR on foster parents and one that 

expressly excluded them. Id. at 802–03.
56

In 2003, the Legislature amended the general standing statute codified at 

section 102.003 of the Family Code to add subsection (c), which provides:

Notwithstanding the time requirements of Subsection (a)(12), a person 

who is the foster parent of a child may file a suit to adopt a child for 

whom the person is providing foster care at any time after the person 

has been approved to adopt the child. The standing to file suit under 

this subsection applies only to the adoption of a child who is eligible to 

be adopted. 

Act of May 22, 2003, 78th Leg., R.S., ch. 573, § 1, 2003 Tex. Gen. Laws 1943 

(codified at Tex. Fam. Code § 102.003(c)). Thus, a foster parent may file a suit to 

adopt their foster child any time after being approved to adopt a child who is eligible 

for adoption. See id. It should be noted that section (c) is not a specific standing 

section within the general standing to file suit under 102.003, but an exception to 

subsection (12). However, section (c) was not applicable to Foster Parents when they 

filed their petition for intervention, because at that time Foster Parents had not been 

approved to adopt the child nor was the child eligible to be adopted.

A separate section in Chapter 102 allows certain persons to file a suit for 

managing conservatorship and allows a trial court to grant leave to intervene to seek 

possessory or managing conservatorship in a pending SAPCR. See Tex. Fam. Code 

Ann. § 102.004. In 2017, the Legislature amended section 102.004 to limit the trial 

court’s power to allow an intervention by a foster parent only if the foster parent 

meets the standing requirement to file an original suit under section 102.003(a)(12). 
57

See Act of May 19, 2017, 85th Leg., R.S., ch. 341, § 1, 2017 Tex. Sess. Law Serv. 

986 (codified in Tex. Fam. Code § 102.004(b), (b-1)). 

In addition to the statute addressing general standing to file a SAPCR, in the 

1995 recodification of the Texas Family Code, section 102.005 conferred on certain 

persons standing to petition specifically for adoption or for termination and adoption. 

See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws. 113, 125 

(codified at Tex. Fam. Code § 102.005). The Legislature amended section 102.005 

in 2007 to add standing for “an adult who has adopted, or is the foster parent of and 

has petitioned to adopt, a sibling of the child[.]” See Act of May 28, 2007, 80th Leg., 

R.S., ch. 1406, § 3, 2007 Tex. Gen. Laws 4814, 4815. The persons granted standing 

to petition for termination and adoption in the current version of section 102.005 

include:

(1) a stepparent of the child;

(2) an adult who, as the result of a placement for adoption, has had 

actual possession and control of the child at any time during the 30-day 

period preceding the filing of the petition;

(3) an adult who has had actual possession and control of the child for 

not less than two months during the three-month period preceding the 

filing of the petition;

(4) an adult who has adopted, or is the foster parent of and has 

petitioned to adopt, a sibling of the child; or

(5) another adult whom the court determines to have had substantial 

past contact with the child sufficient to warrant standing to do so.

See Tex. Fam. Code. Ann. § 102.005. The Legislature addressed adoption 

placements and foster parents in some subsections of section 102.005, but the 
58

Legislature neither limited subsection (3) to exclude foster parents nor made the 

other subsections exclusive means through which a foster parent could petition for 

termination and adoption. 

In 2009 the Amarillo Court of Appeals held that foster parents could file a 

petition for termination and adoption under section 102.005(3) and that the foster 

parents did not lack the requisite control of the child by virtue of their status as a 

non-adoptive contract placement. In re J.H.M., No. 07-07-0109-CV, 2009 WL 

5174364, at *4 (Tex. App.—Amarillo Dec. 29, 2009, no pet.) (mem. op.). Since that 

case was decided the Legislature has amended section 102.005 to allow a foster 

parent of one child to petition to adopt the foster child’s sibling but has not chosen 

to exclude foster parents from the standing provision of section 102.005(3). 

Since a person’s standing to intervene is generally commensurate with that 

person’s right to file an original lawsuit, a party who has standing to file an original 

suit under Section 102.005 may also file an intervention under that same statute. In 

re Y.J., No. 02-19-00235-CV, 2019 WL 6904728, at *5–6 (Tex. App.—Fort Worth 

Dec. 19, 2019, pet. denied) (mem. op.). Section 102.005(3) allows a person to seek 

termination and adoption if the person is an adult who has had actual possession and 

control of the child for not less than two months during the three-month period 

preceding the filing of the petition. Tex. Fam. Code Ann. § 102.005(3). A person’s 

actual possession and control of a child refers to sharing a principal residence with 
59

the child, providing for the child’s daily physical and psychological needs, and 

exercising guidance, governance, and direction like that typically exercised on a dayto-day basis by parents with their children. H.S., 550 S.W.3d at 160 (interpreting 

“actual care, control, and possession” in section 102.003(a)(9)). 

We sustain Intervenors’ sole issue. Because the appellants established 

standing to petition to adopt Sally, we hold the trial court erred by granting the 

Department’s motion to strike and by dismissing the petition in intervention filed by 

J.S.G. and A.G.

V. Conclusion

Having determined the trial court erroneously granted the Department’s 

motion to strike and dismissed the petition in intervention, we reverse Paragraph 9 

of the Order of Termination of Parental Rights. As to Father, we reverse Paragraph 

7 of the Order of Termination of Parental Rights in trial court Cause No. C200555-

D terminating D.C.’s parental rights to the child, and we remand the case for a new 

trial. As to Mother, the Order of Termination of Parental Rights is affirmed. 

REVERSED AND REMANDED.

_____________________________ 

 CHARLES KREGER 

 Justice

Submitted on February 17, 2022

Opinion Delivered April 7, 2022

Before Kreger, Horton and Johnson, JJ.