COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00421-CV

IN THE INTEREST OF L.M. AND 

L.M., CHILDREN

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 16-07353-16

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MEMORANDUM OPINION1

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After a bench trial, the trial court terminated the parental-child relationships 

of J.P.M. (Mother) and Appellant R.S. (Father) with their children, fraternal twins 

L.M. and L.M. (the twins). The trial court found that Mother had executed an 

unrevoked or irrevocable affidavit of relinquishment of her parental rights and that 

termination of the parental rights of both parents was in the children’s best 

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

interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2) (West Supp. 2017). 

The trial court also found that Father

• knowingly placed or knowingly allowed the [twins] to remain in 

conditions or surroundings which endanger[ed their] physical 

or emotional well-being;

• engaged in conduct or knowingly placed the [twins] with 

persons who engaged in conduct which endanger[ed their] 

physical or emotional well-being; [and]

• failed to comply with the provisions of a court order that 

specifically established the actions necessary for [him] to 

obtain the return of the [twins] who ha[d] been in the . . . 

temporary managing conservatorship of the Department of 

Family and Protective Services [(TDFPS)] for not less than 

nine months as a result of [their] removal from the parent . . . 

for . . . abuse or neglect.

Id. § 161.001(b)(1)(D), (E), (O). Only Father appealed. He does not challenge 

the sufficiency of the evidence to support termination. Instead, in two issues he 

contends that (1) the trial court abused its discretion by “specifically prohibiting 

[his] counsel from seeking an extension of the dismissal deadline, preventing a 

request for continuance and/or jury trial” and (2) his trial counsel was ineffective 

by failing “to request a continuance, extension, or jury trial following her late 

appointment.” Because we hold that Father did not preserve his first issue and 

did not satisfy his burden to prove ineffective assistance of trial counsel, we 

affirm the trial court’s judgment.

I. BACKGROUND FACTS

A. The Twins Tested Positive for Methamphetamine at Birth.

Born prematurely in early September 2016, the twins tested positive for 
3

methamphetamine. Mother admitted to TDFPS Investigator Tricilla Ceballos that 

she had used methamphetamine during her pregnancy but claimed that she 

stopped in March 2016 when she found out she was pregnant. Mother also 

admitted to Ceballos that she had been around Father while he used 

methamphetamine as recently as the day before her delivery. Finally, Mother 

alleged that Father had been violent with her during the pregnancy.

B. TDFPS Filed a Petition to Terminate Mother’s and Father’s Parental 

Rights, and Father Missed the First Hearing.

On September 12, 2016, TDFPS filed a petition for termination and 

secured an ex parte emergency order for protection of the twins. Father did not 

attend the adversary hearing held September 22, 2016, but went to the trial court

that same day and obtained a one-week reset of the adversary hearing 

pertaining to him.

C. Father Retained Counsel Who Quickly Withdrew.

The record shows that retained counsel filed an answer on Father’s behalf 

on September 26, 2016 but then withdrew pursuant to a motion and agreed order 

on September 29, 2016, and Father was given another one-week reset of the 

adversary hearing because he indicated that he wanted to retain new counsel.

D. Father Missed the Hearings in October and November 2016 but Knew 

by October 2016 that He Had a Right to Counsel and Had Been 

Ordered to Complete Services.

Father did not attend the October 5, 2016 adversary hearing or the 

November 10, 2016 status hearing but admitted at trial that he received a copy of 
4

the October 2016 temporary order in October. That order included the following 

provisions regarding Father’s right to counsel:

5. Appointment of Counsel for Parents or Parties

5.1. The Court defers its finding regarding an attorney ad litem for 

[FATHER] because [he] has not appeared in opposition to this 

suit or has not established indigency.

. . . .

22. Duty to Provide Information

. . . .

22.8. “YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS 

FAMILY CODE, TO BE REPRESENTED BY AN 

ATTORNEY. IF YOU ARE INDIGENT AND UNABLE 

TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT

TO REQUEST THE APPOINTMENT OF AN 

ATTORNEY BY CONTACTING THE COURT AT 16th 

JUDICIAL DISTRICT COURT OF DENTON COUNTY, 

1450 E MCKINNEY ST, DENTON, TEXAS 76209,

(940) 349-2310. IF YOU APPEAR IN OPPOSITION TO 

THE SUIT, CLAIM INDIGENCE, AND REQUEST THE 

APPOINTMENT OF AN ATTORNEY, THE COURT 

WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF 

INDIGENCE AND THE COURT MAY HEAR

EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. 

IF THE COURT DETERMINES YOU ARE INDIGENT 

AND ELIGIBLE FOR APPOINTMENT OF AN 

ATTORNEY, THE COURT WILL APPOINT AN

ATTORNEY TO REPRESENT YOU.”

The temporary order also contained global provisions about the courtordered service plan:

12. Finding and Notice

THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS 

THAT EACH OF THE ACTIONS REQUIRED OF THEM BELOW 

ARE NECESSARY TO OBTAIN THE RETURN OF THE 
5

CHILDREN, AND FAILURE TO FULLY COMPLY WITH THESE 

ORDERS MAY RESULT IN THE RESTRICTION OR

TERMINATION OF PARENTAL RIGHTS.

. . . .

20. Compliance with Service Plan

20.1. [FATHER] is ORDERED, pursuant to 263.106 Texas 

Family Code, to comply with each requirement set out in 

the Department’s original, or any amended, service plan 

during the pendency of this suit.

Between those two global provisions, the order set out detailed services 

that Father was ordered to engage in and complete, including a psychological or 

psychiatric evaluation, counseling, parenting classes, domestic violence 

intervention, and drug and alcohol assessments and testing; statuses he was 

ordered to attain, including stable housing and employment; and activities he was 

ordered to not engage in, including all criminal activities and unsupervised 

contact with children under sixteen years of age.

E. The Trial Court Told Father at the First Hearing He Attended—the 

February 9, 2017 Permanency Hearing—that He Should Apply for 

Appointed Counsel and Begin His Court-Ordered Services.

The first hearing that Father attended was the February 9, 

2017 permanency hearing held almost five months after the twins’ removal. 

Father testified that he did not have a lawyer. TDFPS’s counsel asked, “And you 

understand that you have the right to apply to the Court, if you qualify as indigent, 

for a Court appointed attorney? Have you been through that process?” Father 

replied, “No.” After TDFPS’s counsel and the twins’ attorney ad litem finished 
6

examining Father, the following discussion occurred between Father and the trial 

court:

THE COURT: All right. And [Father], is this your first time to 

attend a court hearing in this case?

[FATHER]: Yes, ma’am. . . . I didn’t know anything was 

going on for eleven days after the[ twins] got 

taken by CPS. . . . [A]ll my calls were ignored by 

the initial CPS worker. So the day before my first 

court appearance I was told by an outside source.

And I showed up with a lawyer. I had to quickly 

get a lawyer to postpone it for a week. And then 

financial issues came up that second week, and 

she had to basically take her name off as being 

my lawyer.

They reset for a week, and I was told a

week. And it was apparently six days. And I just 

got the date wrong. So I came in the third day, 

and that was after everything had gotten taken 

care of.

THE COURT: Have you tried to hire a lawyer since then?

[FATHER]: Not since then, no. I kind of went into a financial 

depression, if you will.

THE COURT: Okay. So before you leave here today, I want 

you to complete a form and let me review it and 

determine whether or not you qualify for a Court

appointed attorney.

[FATHER]: Okay. Thank you.

THE COURT: All right. And so let me just follow up with that 

and ask you, have you signed up to do any 

services?

[FATHER]: No. I lost my vehicle . . . about three weeks after 

the final court appearance. That was the third 

week that I came in when I was a day late. And 

everything basically got taken, you know, there 
7

was no hearing for me. About three weeks later I 

got my car repo’d because I lost my job and 

everything. Well, I didn’t lose my job. I kind of

just wasn’t working.

THE COURT: Okay.

[FATHER]: And so I just kind of lost everything. So I was 

trying to figure out what to do.

THE COURT: So you’re here today. Caseworker is here today.

So I’m going to tell you that you need to talk to 

her today if you intend to do anything about 

getting started on your services.

[FATHER]: I got my car yesterday. I talked to some guy 

today, but it doesn’t start until March.

THE COURT: Okay, well, nonetheless—

[FATHER]: My stuff got transferred to Tarrant County.

THE COURT: Nonetheless, this case has been pending for just 

a little over five months. These cases are 

supposed to be concluded within twelve. So 

we’re almost halfway—we’re getting close to the 

halfway mark, and you haven’t done anything at 

this point. So you need to get moving if you’re 

going to do something.

Do you understand?

[FATHER]: Yes, ma’am.

Before the hearing ended, the trial court reminded the parents,

[T]he CPS plan is a very important document. Its purpose is to 

provide you with skills and knowledge that you need in order to 

become better parents to your children. The Court is going to 

review, at each hearing, whether or not you’ve made progress under 

your service plan. The review will include whether you’ve acquired 

or learned any specific skills or knowledge as stated in the plan.

If you are unwilling or unable to provide your children with a 

safe environment, your parental and custodial duties and rights may 
8

be restricted or terminated or your children may not be returned to 

you. Do you understand that, [Father]?

Father replied, “Yes, ma’am.”

F. By May 11, 2017, About Eight Months After the Twins’ Removal,

Father Had Not Begun the Court-Ordered Services.

Three months later at the May 11, 2017 permanency hearing, Father 

testified as follows in TDFPS’s counsel’s direct examination:

Q. [Father], have you received a copy of your service 

plan?

A. Yes.

Q. What services have you started?

A. None.

Q. Are you currently employed?

A. Yes.

Q. Where are you employed?

A. Self-employed.

Q. Doing what?

A. Doing like product placement.

Q. How often do you work?

A. Pretty much anytime I can when—I’ve had major

car problems, vehicle problems in the past two

months.

. . . .

Q. In the last six months, what has hindered you

from starting your services?

A. Pretty much car trouble.

Q. Have you asked [TDFPS] to look into assisting 

with transportation?
9

A. I live an hour and fifteen minutes away.

Q. So have you asked [TDFPS] to assist you—

A. Nope.

Q. Have you asked [TDFPS] to establish services 

closer to where you live?

A. Yes. Some of them have been.

Q. And you still haven’t gone?

A. Nope.

. . . .

Q. Do you understand what is contained within your

service plan, as far as what you need to do?

A. Yeah.

G. In the May 11, 2017 Hearing, Father Questioned the Requirement that 

He Have No Unsupervised Contact with a Minor Younger than Sixteen 

Years Old.

After Mother testified, TDFPS’s counsel recalled Father to the stand:

Q. [FATHER], how old is your son [B.]?

. . . .

A. . . . . He just turned nine.

. . . .

Q. Who is he with?

A. His mother.

Q. Do you recall the temporary orders in this case?

A. Yep.

Q. And do you recall part of those temporary

orders—

THE COURT: The answer is, “yes,” sir. We don’t say, “yep,” in 

here. Yes or no.
10

[FATHER]: Yes, I do.

Q. (By [TDFPS]) And do you recall that part of the temporary 

orders that you’re not to have any unsupervised 

contact with any child under the age of sixteen?

A. Yes, I do.

Q. Did you tell your child’s mother that?

A. No. I told my caseworker who said, that’s okay, 

there’s nothing on him.

Q. But you understand what is in this Court[’s] 

orders, correct?

A. Sure.

Q. Are there any Court orders regarding B[.]?

A. No.

. . . .

Q. Do you think this is funny?

A. Am I laughing? I’m just talking.

THE COURT: Yeah, I’ll note for the record that you have been 

laughing and smirking throughout the entire 

hearing.

[FATHER]: I laughed at some of the comments that I heard, 

yes. But I didn’t say anything else.

THE COURT: I didn’t ask for a response.

[FATHER]: Okay.

THE COURT: I noted for the record your demeanor in the 

courtroom.

[FATHER]: Okay.

Q. (By [TDFPS]) Do you understand that you’re not to have any 

unsupervised contact with B[.], and you’re being 

told that today in court?
11

A. Really, like, may I ask why? That’s my son, and 

he has nothing to do with this case.

[TDFPS]: Your Honor, I would object—

[FATHER]: I’m asking why because I don’t understand it.

Because I asked my CPS caseworker a long time 

ago.

THE COURT: [Father], you signed a service plan in this case 

that said . . . you are not allowed to have 

unsupervised contact with children under the age 

of sixteen years of age—

[FATHER]: What’s unsupervised?

THE COURT: Unsupervised. You and a child and I don’t care 

what child that is.

[FATHER]: Okay.

THE COURT: If it’s your child or if it’s somebody else’s child, 

you signed a service plan agreeing that . . . you 

were going to be governed by that. And the Court 

entered an order saying that, so you’re in violation 

of the Court order.

[FATHER]: Okay. I’m sorry.

When Caseworker Christina Ross was recalled to the stand, she denied telling 

Father that he could have unsupervised contact with B.

At the end of the hearing, the trial court reiterated the importance of the 

service plan, stated that the parents’ progress under the service plan would be 

reviewed at all later hearings, and warned the parents that if they would not or 

could not provide the twins with a safe environment, their parental rights could be 

terminated. The trial court confirmed that Mother understood the service plan 

information, and then the following occurred,

THE COURT: Do you understand that, [Father]?
12

[FATHER]: No, ma’am.

THE COURT: You do not understand that?

[FATHER]: Yes, ma’am.

THE COURT: And I would further direct [TDFPS], even though it 

would appear that this child . . . , [B.], is not in this 

Court’s jurisdiction, to please do what you need to 

do to investigate whether or not that child is safe.

H. Appellant Did Not Retain New Counsel or Apply for Appointed 

Counsel by the May 11, 2016 Hearing.

When the trial court announced which parties and attorneys were present 

for the record, the following dialogue occurred:

THE COURT: [Father], do you have an attorney?

[FATHER]: No.

THE COURT: You had one at one time, right?

[FATHER]: The very beginning.

THE COURT: Okay. All right.

After Father’s testimony indicating he was violating the trial court’s order 

regarding unsupervised access to a minor, and Caseworker Ross’s testimony 

denying that she had approved the violation, the other parties declined to 

question her. The following then occurred:

[FATHER]: I want to talk. Can I talk?

THE COURT: I’m going to ask you some questions in a minute—-

[FATHER]: Go ahead. Go right ahead.

THE COURT: You’ll have an opportunity.
13

[FATHER]: Okay.2

After the trial court received updates from the CASA volunteer and Mother 

about progress on the case, the trial court spoke to Mother:

And the last thing you’ve got time to do is be messing with him

[Father], okay? He’s trouble. And so you don’t need to be wasting 

any of your energy or time on him. His problems are his problems. 

Let him deal with his own stuff, okay? Because you’ve got plenty to 

take care of on your own, understood?

The trial court then addressed Father again:

THE COURT: All right. [Father]?

[FATHER]: Ma’am.

THE COURT: Okay. . . . I’m not really sure why you’re here, 

honestly.

[FATHER]: I’m trouble.

THE COURT: You haven’t done anything from the very 

beginning that you got here. You didn’t show up 

the first day. You got a lawyer—

[FATHER]: What first day?

THE COURT: I am not asking you to talk to me. I am telling you 

to listen right now.

[FATHER]: You should tell me to listen. I am very sorry 

though.

THE COURT: Don’t say another word until I tell you that it’s your 

turn to talk, okay? You had a lawyer when you 

got here. And within two or three weeks, that 

lawyer withdrew from representing you. When

you were here in February, I ordered you to sit 

down and fill out an application for an attorney so 

 2While the reporter’s record uses “THE WITNESS” to refer to the speaker 

in this section, it is clear from the context that the witness in this quotation is 

Father, not Caseworker Ross.
14

that we can see if you qualified for an attorney 

because you need one in the worst possible way.

If you care anything about your children, if 

you care anything about having any type of

relationship with them, you need a lawyer to be 

giving you some advice to get you straightened 

out—and I will let the record reflect that [Father] is 

yawning as I am talking to him right now. You 

need someone to give you some advice to help 

you figure out what to do about getting your 

children back if there’s any possibility whatsoever.

And I’m telling you right now, that is a pretty 

slim possibility because as I told [Mother], we are 

two-thirds of the way through this case. And 

she’s at least started doing some things. You’ve

done nothing except come in this court and smirk 

and be disrespectful. That’s the only thing I’ve 

seen you do anytime that you’ve ever been here.

So as we stand here today, four months 

away of the twelve-month mark on this case, you 

are not represented by an attorney because you, 

A, won’t hire one, or B, won’t even bother to fill 

out a form to ask the Court to see if you would 

qualify for an attorney even though you’ve been 

told to do that. And you’re doing basically nothing 

on your service plan and have represented to the 

Court here today that you’re directly violating one 

of the orders in the service plan.

So I don’t know what else to say to you, sir.

[FATHER]: Okay.

I. Father Finally Completed an Application for Appointed Counsel on 

the Day Before the August 11, 2017 Docket Call, Eleven Months After 

the Removal.

At the August 11, 2017 docket call, the following dialogue between the trial 

court and Father took place:
15

THE COURT: All right. You are here this morning without counsel as 

you have been throughout this case, correct?

[FATHER]: I filled out the paperwork.

THE COURT: That’s not the question. You’re here without a 

lawyer, right?

[FATHER]: Yes, ma’am.

THE COURT: And just about every time you’ve been in my 

Court for the last year, I’ve asked you what you 

were doing about a lawyer; isn’t that true?

[FATHER]: Yes, ma’am.

THE COURT: And for a very short while, you had a lawyer; is 

that true?

[FATHER]: One week.

THE COURT: One week. Okay. But for the balance of the 

case, you haven’t had one. And each time you’ve 

been in here, I have invited you to apply for a

lawyer so that you would have someone to 

represent you in this case; isn’t that true?

[FATHER]: Yes, ma’am.

THE COURT: And you haven’t done that; isn’t that true?

[FATHER]: I did that yesterday, ma’am.

THE COURT: You did that yesterday?

[FATHER]: I tried to save up the money, so I wasn’t having to 

charge—I was trying to sa[v]e up the money. I 

couldn’t do it.

THE COURT: Okay. Well, I don’t care what your reason is.

Your parental rights were at stake throughout this

case, and each and every time you were in here, I 

told you that; isn’t that true?

[FATHER]: Yes, ma’am.
16

THE COURT: And now you’ve waited until the eve of trial to 

apply for a lawyer. I don’t know what your 

motivation is, if you think that’s going to delay

things, then you’re quite wrong. We are going to 

get this case resolved by the twelve-month 

period. Do you understand?

[FATHER]: Yes, ma’am.

THE COURT: And you’ve heard me say this morning that that is 

September the 12th. So this case is going to be 

tried. I will review your application. Do not leave 

until I have done that. Do you understand that?

[FATHER]: Yes, ma’am.

J. The Trial Court Reset the Trial Date from August 21, 2017 to 

September 11, 2017.

The trial court then stated on the record that the case would be reset to 

September 11, 2017 because a visiting judge would be sitting for the trial court 

on the original trial date. She further clarified that the trial would be a bench trial 

because Mother had waived a jury trial in her affidavit of relinquishment. Father 

did not object to the absence of a jury trial. He had not previously requested a 

jury trial and did not do so at this hearing or at any time in the trial court.

K. The Trial Court Appointed Trial Counsel for Father.

While resetting the trial date, the trial court stated,

And I am going to have to appoint him a lawyer, most likely, even 

though it is at the last minute. I am not granting an extension on this 

case. So whoever gets it is going to have to get their trial britches 

out and ironed and ready to go.

The trial court then questioned Father about his income, expenses, and 

debts on the record, and the following dialogue occurred,
17

THE COURT: Well, like I told you a while ago, I mean, this . . .

creates a problem that you’ve waited so long to 

apply for a lawyer.

[FATHER]: Yes, ma’am. I understand. I tried to talk to them.

THE COURT: . . . [T]he Courts take the position that you’re 

entitled to have a lawyer. The law says you’re 

entitled to have a lawyer if you qualify for one as 

being indigent. You’re kind of on the cusp, but 

the Court doesn’t want to take any chances that 

your parental rights could be terminated without

you being properly represented by an attorney.

So—

The trial court then introduced trial counsel and Father and stated that the case 

had been set for August 21 but was now going to be reset to September 11. 

Father’s new trial counsel responded, “Okay.” The trial court went on:

The dismissal date on it, I believe, is about September 12th. 

So we are kind of at the very end of that. And I will just say that

[Father] and I have had extensive discussions prior to today and 

today in which I have asked him almost every time he’s been 

here . . . what his intentions were with regards to getting a lawyer. 

He had a lawyer that he had hired for a very short while. He told me 

a week. And then he hasn’t had one.

I have encouraged him many times to apply for an attorney.

He has not done that until yesterday. So having said that, I told him 

that the Court is not going to extend this case for his lack of asking 

for an attorney.

However, [I] certainly don’t want him to be prejudiced unduly 

by not having one, so I am going to appoint you to represent him. 

And it is set for a bench trial on September 11th. I understand that 

is asking a lot of you to come into a case at this particular juncture, 

but you know as well as I do what the position of the Courts [is] with 

regard to parents being represented. So we want to make sure that 

he is.
18

The trial court next announced that the docket call would be at 8:30 a.m. 

on September 1, 2017—approving Father’s trial counsel sending a substitute 

because she had already planned to be out of town that day—and repeated that 

the trial would begin on September 11.

L. About Ten Months After the Services Were Ordered, Father Began 

Actively Engaging in Some of Them.

Four days after the docket call, Father’s trial counsel filed an amended

answer in which she also asked the trial court to “[a]llow sufficient time for 

[Father] to complete any court ordered counseling, parenting classes, and anger 

management classes as is proved necessary by the competent evidence,” but 

the record contains no indication that the request was presented to the trial court.

Six days after the docket call, on August 17, 2017, the trial court held a 

permanency hearing. The evidence showed that Father lacked two weeks of

parenting classes, had begun counseling, and had scheduled his psychological 

evaluation and Batterers’ Intervention and Prevention Program (BIPP) classes. 

Father testified that he waited so long to begin his services because he had been 

depressed and homeless. He also testified that since April 2017 he had been 

living in Benbrook with a roommate and her two children. The following 

exchange occurred between Father and the trial court:

THE COURT: You understand part of your service plan is that 

you not be around children under the age of 

sixteen years of age?

[FATHER]: Unsupervised, yes.
19

THE COURT: And you’re telling the Court that this roommate 

that you have is always there when the children 

are there?

[FATHER]: No. She takes them with her when she leaves.

THE COURT: And—

[FATHER]: I’m not jeopardizing anything else.

THE COURT: When you say, “roommate,” are you talking about 

someone you share expenses with, or do you 

have a personal, intimate relationship with this

person?

[FATHER]: It’s kind of half and half.

. . . .

THE COURT: . . . . [Father’s trial counsel] was actually 

appointed [August 11, 2017]. As the Court noted 

on the record that day and I have every other time

we’ve been here, [Father] did not have a lawyer 

and had not—despite the Court’s urging on 

numerous occasions—applied for an attorney 

until that day or actually the day before that, I 

believe, he left off an application. The Court 

reviewed it and appointed [counsel] to represent 

him.

I can see that [Father’s trial counsel] has 

been earning her pay because she’s encouraged 

[Father] to get involved in services, which he 

should have been involved in all this time. So we 

are set for a bench trial on September 11th[.]

The CASA volunteer and Caseworker Ross then testified that Father had sent 

threatening texts to Mother and Ross after the last permanency hearing (when 

the trial court suggested that TDFPS do something about his older son), and 

Father denied it, claiming that Mother had set him up. The trial court concluded 

the hearing by stating that the service plan was important, that the court would 
20

review Father’s progress on the plan at all subsequent hearings, and that his 

rights could be terminated if he could not or would not provide the twins with a 

safe environment.

Father signed the family service plan on September 7, 2017.

M. The Bench Trial Began on September 11, 2017, with Father’s Direct 

Examination by TDFPS.

Father testified that:

• He knew Mother was using drugs during the pregnancy;

• He used methamphetamine with her during the pregnancy, even 

though they both knew at the time that she was pregnant;

• He “[p]robably” told his caseworker that he had nothing to lose;

• He denied that he had played any part in the twins’ removal;

• In 2008, when he was “[t]wenty-eight or something,” he was placed 

on probation for enticing a sixteen-year-old child;

• He was present at the first temporary orders hearing but told the trial 

court that he was going to retain counsel;

• He did not appear at the October 5 temporary orders hearing 

because he mixed up the dates and “showed up the next morning”;

• He received a copy of the temporary orders in October 2016;

• He waited “[a]bout six months” to start services “[b]ecause [he] was 

in denial” and “didn’t have any kind of means to get to any of [his] 

services even though [he] was trying and . . . was struggling to get to 

[his] visits”;

• His address was “pending”;

• He had been staying with a friend in Fort Worth for nine or ten days;

• He had left the Benbrook address “[b]ecause the Court[] open[ed] up 

a CPS case down there [in Tarrant County] because [of] the 
21

unsupervised visit that was part of [his] services. And so [he] got 

done with that case. [He] decided to not put the roommate in 

jeopardy anymore and left”;

• At the end of September 2017, he would move into a house with a 

roommate and no children;

• He had completed First Steps, his parenting classes, a psychological 

examination, and two “evaluation type things”;

• He was still in counseling and BIPP;

• He did not begin BIPP in October 2016 because he “was in defiance 

of what happened”;

• He had not yet attended NA or AA, which he was required to attend 

twice a week, because he “was just told about” that requirement the 

week before trial began, but he admitted that Caseworker Arianna 

Hughes had “suggested” AA/NA in October 2016;

• He had not begun outpatient drug treatment yet;

• He did not submit to requested drug tests on three or four occasions;

• He did not need drug treatment; and

• He had visited with his children consistently since March or April of 

2017 and had missed earlier visits because he did not have 

transportation.

Father denied:

• ever hitting or pushing Mother;

• threatening her in a text message; and

• all responsibility for the twins’ removal.

After TDFPS finished its direct examination of Father, the trial court reset the 

case to 9:00 a.m. on November 7, 2017. Father’s trial counsel then invoked the 

Rule as to Mother and Caseworker Hughes.
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N. The Trial Did Not Resume Until Two Months Later.

The second day of trial began on November 13, 2017, a little more than 

two months after the first day of trial, allowing Father two more months to 

complete services and giving his counsel two extra months to prepare for trial.

O. The Trial Focused on Father’s Conduct Before and After the Twins’

Removal.

On cross-examination by his trial counsel, Father admitted that:

• He had supplied Mother with methamphetamine during her 

pregnancy but denied that he had used any illegal substances “while 

the kids were coming”;

• He had used methamphetamine in April 2017—while the case was 

pending—but denied being an addict;

• In October 2017, he had moved back to Benbrook to live with the 

woman and children with whom he had lived before while the case 

was pending and had told TDFPS but not CASA about the move.

Father also testified:

• He had taken Mother to the hospital for the twins’ delivery and had 

stayed at the hospital with them for three days;

• Father saw his infant son once in September 2016 after the baby 

was discharged from the hospital;

• Visits were postponed from late September until early November 

2016 because of the twins’ fragile health, but even after November 

2016, Father saw them only sporadically until May 2017;

• During the two or three months after the twins’ birth, he “was in such 

a depression” and “basically fighting against everything that 

happened”; he “hadn’t accepted it yet”;

• He “kind of lost everything, as far as vehicles, confidence and job, 

well, not [his] job[, b]ut [he] wasn’t able to go to [his] job because of 

the vehicle situation” and because he “wasn’t able to mentally go to 

the jobs”;
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• He lost his home;

• He could not get to the visits with the twins (when they resumed), 

which were one and a half hours away from his home, much less to 

the drug tests;

• Things got better in April 2017 when he leased a car and realized 

that he needed “to do this by [him]self”;

• He completed his ten-week parenting class in August 2017;

• He completed his psychological examination on September 6, 2017;

• He completed counseling;

• He had been attending NA/AA meetings for a few months, twice a 

week;

• He had started BIPP again but still did not see himself as a batterer;

and

• The services had always been available in Tarrant County, but he 

just had not become “serious about them.”

On cross-examination by the twins’ attorney ad litem, Father testified that:

• He was familiar with the 12-step program, was on Step 1, did not 

know what it was because “[he had not] completed the . . . program 

[but was] just attending the classes like ordered”; and

• He did not have a sponsor because he did not “need to talk to 

someone about drugs when [he] had no desire to use them.”

On redirect examination by TDFPS, Father admitted:

• His September 2017 drug test was positive for marihuana; and

• On October 3, 2017, he had become angry at First Steps, the 

location of his outpatient drug treatment, during his intake session, 

cursing and “flip[ing] off” personnel.

TDFPS next called Marvin Furdge, a drug and alcohol counselor at First 

Steps. Furdge testified that he had assessed Father as having a cannabis use 
24

disorder, had determined that Father had poor insight and judgment, and had 

recommended supportive outpatient treatment, attendance of a support group 

meeting at least twice a week, working with a sponsor, and individual counseling.

Furdge also testified that Father minimized his role in the twins’ removal.

Caseworker Adriana Hughes testified:

• Mother told her Father used drugs and was violent with Mother

during the pregnancy;

• Father was “verbally aggressive” with her and with the observer of 

his visits with the twins;

• “[Father] did not take direction very well. And he just continued to 

shift the blame elsewhere”;

• She did not tell Father that he could have unsupervised contact with 

B.;

• Father never asked for help with his depression; and

• She did not see Father make any changes to his life or his approach 

to the case during her five months on the case.

Caseworker Ross also testified that she had not observed any changes to 

Father’s life in her seven months on the case. But she admitted on crossexamination that Father had tested negative for drugs on September 22, 

2017 and again on October 5, 2017.

During the trial, Appellant’s trial counsel actively participated—objecting 

successfully, cross-examining TDFPS’s witnesses, calling her own witness

(Father’s mother), and offering several exhibits.
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P. The Trial Court Summarized Her Interactions with Father Regarding 

His Obtaining Counsel.

After the trial but before rendering the judgment, the trial court stated,

I think I could best characterize my interactions with [Father] to be

from not only ordering him, to begging him to ask for a lawyer to get 

assistance in trying to work his services to get people to help him. 

He waited until the Thursday literally before this case was set to go 

to trial in September to come to this Court and ask for an attorney. 

And the Court immediately appointed [Father’s trial counsel] to the

case.

And I would say that I will give her a lot of credit for having 

done what she should have done as a lawyer in helping [Father]

understand the importance of getting working on his services, albeit 

at such a late date.

II. DISCUSSION

A. Father Did Not Preserve His First Issue.

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

by “specifically prohibiting” his trial counsel from “seeking an extension of the 

dismissal deadline for a continuance of the trial setting,” “violating his due 

process rights to a fair trial” and “restrict[ing him] from exercising his 

constitutional right to a jury trial.” Father did not raise this complaint in the trial 

court, and the request for more time to complete certain services, embedded in 

his second answer to the petition, was not presented to the trial court for a ruling.

To preserve a complaint for appellate review, a party must have presented 

to the trial court a timely request, objection, or motion that states the specific 

grounds for the desired ruling, if they are not apparent from the context of the 

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 
26

103(a)(1). If a party fails to do this, error is not preserved, and the complaint is 

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

Because Father neither gave the trial court an opportunity to rule on a motion to 

extend the dismissal deadline or a motion for continuance nor asked the trial 

court for or complained about the lack of a jury trial, he failed to preserve this 

issue. We overrule Father’s first issue.

B. Father Did Not Prove That His Trial Counsel Was Ineffective.

In his second issue, Father contends that his trial counsel was ineffective 

by failing “to request a continuance, extension, or jury trial following her late 

appointment.” Indigent parents have a statutory right to counsel in TDFPS-filed 

parental termination cases. Tex. Fam. Code Ann. § 107.013(a) (West Supp. 

2017). That right to counsel includes the right to effective assistance of counsel. 

In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). To satisfy his burden of proving 

that his trial counsel was ineffective, Father must show (1) that she failed to 

perform in a reasonably effective manner and (2) that “the deficient performance 

prejudiced the defense, which requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 

In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (internal quotation marks and 

citation omitted); see Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984). Father cannot meet his burden.

First, the record contains no indication that Father wanted a jury trial and 

no objection to the bench trial. We therefore cannot conclude that his trial 
27

counsel was ineffective for not requesting a jury trial. See In re K.M.H., 

181 S.W.3d 1, 9, 16 (Tex. App.—Houston [14th Dist.] no pet.) (op. and supp. op. 

on reh’g).

Second, during the trial, Appellant’s trial counsel vigorously crossexamined most of TDFPS’s witnesses, offered Father’s mother as a witness, 

offered exhibits into evidence, objected to other evidence, and delivered an 

appropriate closing argument focused on Father’s recent progress and the twins’

best interests. The record therefore contains no indication, and we cannot 

conclude, that Father’s trial counsel was hampered by not engaging in formal 

discovery or that she did not adequately prepare for or perform in trial. See, e.g., 

In re J.P.B., 180 S.W.3d 570, 574–75 (Tex. 2005).

Third, Father focuses on the proposition that with more time from a 

continuance or extension, he could have completed his services. Yet, by the 

time the trial concluded, he had had thirteen months to complete his services and 

had not done so. More to the point, he had continued to (1) minimize his 

responsibility for the twins’ removal as well as his drug issues and (2) violate the 

trial court’s order that he have no unsupervised contact with children under the 

age of sixteen. Whether the trial court would have granted a motion for 

continuance or a motion for extension given the opportunity is an open question, 

but taking the trial judge at her word, she would not have, decisions we would 

have reviewed only for an abuse of discretion. See, e.g., In re L.S., No. 02-16-

00197-CV, 2016 WL 4699199, at *8 (Tex. App.—Fort Worth Sept. 8, 2016, no 
28

pet.) (mem. op.) (“Given Mother’s ten-month delay in addressing her drug 

addiction and her failure to keep in contact with the Department, it was entirely 

within the trial court’s discretion to determine that [she] had failed to present any 

extraordinary circumstances [supporting an extension].”); In re K.P., No. 2-09-

028-CV, 2009 WL 2462564, at *4 (Tex. App.—Fort Worth Aug. 13, 2009, no pet.)

(mem. op.) (“[W]hen a parent, through his . . . own choices, fails to comply with a 

service plan and then at the time of the . . . trial requests a continuance or an 

extension of the . . . dismissal deadline . . . to complete the plan, the trial court 

does not abuse its discretion by denying the continuance or extension.”).

Finally, Father cannot show a reasonable probability that the outcome of 

the trial would have been different even if his trial counsel had requested and the 

trial court had granted a continuance, an extension, or both. See M.S., 

115 S.W.3d at 550. A continuance or extension would not have reduced the 

evidence supporting the endangerment and best-interest findings unchallenged 

by Father on appeal, especially the damning evidence that Father endangered 

the twins by supplying Mother with methamphetamine when he knew she was

pregnant and that he continued to endanger them and subject them to a life of 

instability by using drugs during the pendency of the case. We therefore overrule 

his second issue.

III. CONCLUSION

Having overruled both of Father’s issues, we affirm the trial court’s 

judgment.
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PER CURIAM

PANEL: PITTMAN, J.; SUDDERTH, C.J.; and BIRDWELL, J.

DELIVERED: May 3, 2018