IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF TEXAS
 
════════════
No. 08-0379
════════════
 
In the Interest of J.O.A., 
T.J.A.M., T.J.M., and
C.T.M., Children, 
Petitioners
 
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of 
Texas
════════════════════════════════════════════════════
 
 
Argued October 14, 
2008
 
 
            
Justice Medina delivered 
the opinion of the Court.
 
            
Justice Willett filed a 
concurring opinion.
 
 
            
The Texas Family Code requires that a statement of points on which a 
party intends to appeal be presented to the trial court within fifteen days 
after the signing of a final order terminating parental rights. Tex. Fam. Code § 263.405(b). The Code 
further provides that an appellate court is to consider only those issues 
presented to the trial court in a timely filed statement of points. Id. § 
263.405(i). The issue in this parental rights 
termination case is whether the failure to follow these procedural rules in the 
Family Code precludes appellate review of an ineffective assistance of counsel 
claim.
            
Here, the indigent parents did not file a statement of points, but the 
court of appeals nevertheless reached the merits of the parents’ ineffective 
assistance of counsel claim. 262 S.W.3d 7. We conclude, 
like the court of appeals, that an ineffective assistance of counsel claim can 
be raised on appeal despite the failure to include it in a statement of points. 
We also agree with the court of appeals that section 263.405(i) is unconstitutional as applied when it precludes a parent 
from raising a meritorious complaint about the insufficiency of the evidence 
supporting the termination order.
            
The court of appeals reversed the parental termination order in part, 
concluding that the evidence was both legally and factually insufficient to 
terminate the parental rights of the father in this case, and remanded the case 
to the trial court for further proceedings on the issue of custody. Although we 
disagree that the evidence was legally insufficient to support the termination 
of the father’s parental rights, we agree that the cause must be remanded and 
accordingly modify the court of appeals’ judgment to remand the cause for a new 
trial on the issue of the father’s parental rights.
I
            
This case concerns the parental rights of Timothy and Trena M. The parents have three children: T.J.A.M., born in 
1996, and twins, T.J.M. and C.T.M., born in 2005.[1] At the time of the twins’ premature 
birth, Trena and the twins tested positive for 
cocaine. Trena also tested positive for barbiturates. 
Timothy and Trena have separated several times, 
including during some of the pregnancy, but reconciled before the twins’ 
birth.
            
Learning of Trena’s drug use, the Department of 
Family and Protective Services (“Department”) intervened, removing the twins 
from their parents’ custody and placing them with foster parents. The older 
child, T.J.A.M., was placed with her maternal grandmother where she had lived 
while Trena was previously incarcerated. The trial 
court appointed the Department temporary sole managing conservator of the 
children, and the Department implemented a Family Service Plan to improve 
Timothy’s and Trena’s parenting skills and reunify the 
family.
            
The plan, however, failed, and the case proceeded to a bench trial that 
resulted in the involuntary termination of the parents’ parental rights to the 
twins, and the appointment of the Department as managing conservator. The trial 
court did not terminate parental rights to the couple’s oldest child, T.J.A.M, 
but appointed Trena’s mother as managing conservator. 
The trial court’s final order was signed February 16, 2007.
            
Five days later, on February 21st, Trena’s 
trial counsel filed a notice of appeal and a motion to withdraw. Timothy’s trial 
counsel did the same on February 22nd. Although the trial court never ruled on 
the motions to withdraw, it did subsequently appoint appellate counsel for 
Timothy and Trena but too late for either to meet the 
Family Code’s fifteen-day deadline for filing a statement of points. Tex. Fam. Code § 263.405(b).
            
Even though they had not filed a statement of points, the parents 
appealed the trial court’s termination and custody order, challenging the 
sufficiency of the evidence, the ineffectiveness of their trial counsel, and the 
constitutionality of section 263.405. The court of appeals concluded that 
Timothy’s and Trena’s trial counsel were both 
ineffective for failing to file a statement of points but that the failure 
ultimately deprived only Timothy of due process. 262 S.W.3d at 
19-24. The court accordingly affirmed the termination order as to Trena, but reversed as to Timothy, concluding that the 
evidence was legally and factually insufficient to support the termination of 
his parental rights to the twins. The court of appeals remanded the issue of 
Timothy’s custody rights to the twins for further proceedings, affirming the 
remainder of the trial court’s order. Id. at 24-25. Only the Department 
perfected an appeal to this Court.
II
            
The Family Code provides that in parental termination cases a statement 
of points, detailing what the party intends to appeal, must be filed with the 
trial court within fifteen days of the termination order.[2] This statement may be combined with a 
motion for new trial. Tex. Fam. Code § 
263.405(b). The trial court must hold a hearing within 
thirty days of the termination order to consider any motion for new trial or 
issue of indigence. Id. § 
263.405(d). The Family Code bars an appellate court from considering any 
issue not presented to the trial court in a timely filed statement of points. 
Id. § 
263.405(i).
            
The Department complains that the court of appeals should not have 
reviewed the termination order in this case because neither Timothy nor Trena filed a statement of points in the trial court as the 
Family Code requires. Despite this alleged error, the Department prevailed in 
the court of appeals as to Trena; the court affirmed 
termination of her parental rights to the twins, and she has not filed a 
petition for review. Thus, the court of appeals’ judgment affirming the 
termination of Trena’s parental rights is final, and 
only Timothy’s parental rights to the twins remain at issue here.
            
The Department does not squarely address the constitutional concerns 
raised in the court of appeals. Instead, the Department submits that the right 
to appeal a termination order is a statutory right, not a constitutional one, 
and that the Legislature clearly has the power to restrict, limit, or even deny 
that right. The Department further submits that the procedural requirements of 
the statute here are clear and unambiguous, providing for no exceptions. The 
Department concedes, as it must,[3] that indigent parents are entitled to 
counsel but argues that counsel need not be competent because the procedural 
scheme makes no provision for incompetence. The argument ignores our holding in 
In re M.S. “that the statutory right to 
counsel in parental-rights termination cases embodies the right to effective 
counsel.” 115 S.W.3d 534, 544 (Tex. 2003). In fact, the Department 
generally ignores our decision in this case altogether.
            
In M.S., the indigent parent complained that her attorney failed 
to provide competent representation in violation of her due process rights. 
Id. at 
543. Specifically, the parent argued, as in this case, that her attorney 
was ineffective for not following the appropriate procedure to preserve her 
complaint regarding the factual sufficiency of the evidence. Id. at 
543-44, 546. After recognizing the indigent parent’s right to competent 
counsel, we turned to the question of what constitutes ineffective assistance. 
In answering that question, we followed the two-pronged analysis of the United 
States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 
(1984):
 
First, the 
defendant must show that counsel’s performance was deficient. This requires 
showing that counsel made errors so serious that counsel was not functioning as 
the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the 
defendant must show that the deficient performance prejudiced the defense. This 
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 M.S., 115 S.W.3d. at 545. Thus, an ineffective 
assistance of counsel claim requires a showing of a deficient performance by 
counsel so serious as to deny the defendant a fair and reliable trial.
            
We further concluded in M.S. that due process considerations 
should control our review of a rule governing preservation of a factual 
sufficiency complaint in parental rights termination cases. Id. at 
547. Although we recognized that a right of appeal might not be 
constitutionally required, once granted, the right could not be unreasonably 
withdrawn. Id. (quoting M.L.B. v. 
S.L.J., 519 U.S. 102, 111 (1996) (“once 
established, these avenues must be kept free of unreasoned distinctions that can 
only impede open and equal access to the courts”)). And, because error 
preservation in the trial court is the “threshold to appellate review,” we 
concluded that it should be reviewed under the procedural due process analysis 
established by the United States Supreme Court in Mathews v. Eldridge, 
424 U.S. 319, 335 (1976). In re M.S., 115 S.W.3d at 
547.
            
Under the Eldridge analysis, a court must “weigh three factors – 
the private interests at stake, the government’s interest in the proceeding, and 
the risk of erroneous deprivation of parental rights – and balance the net 
result against the presumption that our procedural rule comports with 
constitutional due process requirements.” Id. (footnote omitted). When weighing 
these factors in M.S., we concluded that “the parent’s fundamental 
liberty interest in maintaining custody and control of his or her child, the 
risk of permanent loss of the parent-child relationship, and the parent’s and 
child’s interest in a just and accurate decision” weighed heavily in favor of 
permitting appellate review of the sufficiency of the evidence despite counsel’s 
unjustifiable failure to preserve error. Id. at 548. We likewise noted the State’s fundamental interest 
in protecting the child’s best interests, interests that are not antagonistic to 
those aforementioned. Id. We also noted the associated 
interests of the State and the child in an efficient and speedy resolution of 
the matter so as not to compound harm to the child through inaction or delay, 
but concluded that the State’s interests in economy and efficiency paled in 
comparison to the private interests at stake. Id.
            
We concluded that the State, the parent, and the child shared an interest 
in an expeditious and final decision but that the State’s interest in protecting 
the child’s welfare must begin “by working toward preserving the familial 
bond, rather than severing it.” Id. 
(citing Santosky v. Kramer, 455 
U.S. 745, 766-67 (1982)). We said 
that “[o]nce it is clear that the parent cannot or 
will not provide a safe, stable family environment, then the State’s interest in 
protecting the welfare of the child shifts to establishing that safe, stable, 
and permanent environment for the child elsewhere.” In re M.S., 115 
S.W.3d at 548-49 (citing Santosky, 455 
U.S. at 767). Thus, we concluded that 
the State’s goal of ensuring the child’s safety and stability was served by 
procedures promoting an accurate determination of whether the natural parent 
could provide a normal home and disserved by procedures that did not. In re M.S., 115 S.W.3d at 549.
            
Finally, we concluded that the fundamental liberty interests at issue 
were too dear and the risk of erroneous deprivation too significant to 
countenance the waiver of a parent’s appellate rights through procedural neglect 
under these circumstances. Instead, we held that “if counsel’s failure to 
preserve a factual sufficiency complaint is unjustified, then counsel’s incompetency in failing to preserve the complaint raises the 
risk of erroneous deprivation too high, and our procedural rule governing 
factual sufficiency preservation must give way to constitutional due process 
considerations.” Id. Although the procedural 
preservation rule at issue in M.S. was a civil court-made rule requiring 
a motion for new trial as a predicate for appellate review of a factual 
sufficiency issue, and the procedural rule here is a statute to the same effect, 
the due process clause applies equally to both situations. U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 
19.
            
We cautioned in M.S., however, that not every failure to preserve 
factual sufficiency issues would rise to the level of ineffective assistance. 
In re M.S., 115 S.W.3d at 549. The presumption 
is that “‘counsel’s conduct falls within the wide range of reasonable 
professional assistance,’ including the possibility that counsel’s decision not 
to challenge factual sufficiency was based on strategy, or even because counsel, 
in his professional opinion, believed the evidence factually sufficient such 
that a motion for new trial was not warranted.” Id. (quoting 
Strickland, 466 U.S. at 689). The parent’s 
burden is to show that “‘counsel’s performance fell below an objective standard 
of reasonableness.’” In re M.S., 115 S.W.3d at 549 (quoting Garcia v. 
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)); 
Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). We agree with the court of appeals that 
Timothy met that burden here.
            
The failure of Timothy’s trial counsel to file a statement of points on 
his behalf was neither strategic nor a concession to any lack of perceived 
merit. His trial counsel filed a notice of appeal, but did so simultaneously 
with his motion to withdraw and did nothing further. There the matter rested 
until the trial court appointed appellate counsel some days after the statement 
was due. Timothy was still represented by his trial counsel when the fifteen-day 
deadline to file the statement of points passed. Tex. R. Civ. P. 10. Trial counsel’s 
failure to follow through with his representation until relieved of that duty 
was tantamount to abandoning his client at a critical stage of the proceeding. 
See Rogers v. Clinton, 794 S.W.2d 9, 10 n.1 (Tex. 1990) (stating 
attorney must satisfy the requirements of Rule 10 of the Texas Rules of Civil 
Procedure to withdraw). We accordingly agree with the court of appeals that 
Timothy was entitled to effective assistance of counsel through the deadline 
date for filing a statement of points and that trial counsel’s performance 
during this period was seriously deficient.
            
Part of the problem here may be resolved by better communication between 
trial court and counsel. Often in these cases, there is a transition from trial 
to appellate counsel after rendition. Because of the accelerated appellate 
timetable and the critical fifteen-day deadline for the statement of points, and 
because trial and appellate counsel are often different people, there can be 
misunderstandings as to which attorney is responsible for filing a motion for 
new trial, a statement of points on appeal, and a notice of appeal.
            
Given the accelerated timetable, the burden should logically fall on 
trial counsel, and in this case necessarily so because 
Timothy’s appellate counsel was not appointed until after the fifteen-day period 
had run. See, e.g., In re H.R., 87 S.W.3d 691, 703 
(Tex. App.—San Antonio 2002, no pet.) (concluding that practical effect of accelerated appellate 
timetable is to burden trial counsel with responsibility of preserving client’s 
appellate rights). As one court of appeals has noted, the fifteen-day deadline 
is a trap for the unwary. In re R.J.S., 219 S.W.3d 623, 627 (Tex. 
App.—Dallas 2007, pet. denied). That court of appeals has further suggested that 
trial courts should alert parents to the requirements of section 263.405 at the 
end of the final order terminating parental rights. Id. We agree and 
suggest further that the best way to avoid ineffective assistance of counsel 
claims in the future is for the trial courts to take a proactive approach, 
assuring that indigent parents do not inadvertently waive their appellate rights 
under the Family Code. Because of the accelerated nature of these cases, trial 
courts must act expeditiously when appointing new counsel for the appeal.
III
            
An ineffective assistance of counsel claim, however, requires more than 
merely showing that appointed counsel was ineffective. There are two elements to 
the Strickland standard, and, under the second, the defendant must show 
that counsel’s “deficient performance prejudiced the defense . . . that 
counsel’s errors were so serious as to deprive the 
defendant of a fair trial, a trial whose result is reliable.” Strickland, 
466 U.S. at 687. The court of appeals 
concluded that the second element had been met in this case because, but for 
counsel’s unprofessional error, the result of the proceeding would have been 
different; specifically, had counsel properly preserved error by filing the 
statement of points, the court of appeals would have reversed the termination 
order because the evidence was insufficient to support the relevant grounds for 
termination of Timothy’s parental rights. 262 S.W.3d at 19, 
24.
            
Proceedings to terminate parental rights under the Family Code require 
proof by clear and convincing evidence. Tex. Fam. Code § 161.001(1). Clear and 
convincing evidence is “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.” Id. § 101.007; In re 
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). When the legal sufficiency 
of the evidence is challenged:
 
[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 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. If, after conducting its legal sufficiency review of the 
record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the 
matter that must be proven is true, then that court must conclude that the 
evidence is legally insufficient.
 
In re J.F.C., 96 S.W.3d at 266.
            
When the factual sufficiency of the evidence is challenged, only then is 
disputed or conflicting evidence under review. As we said in J.F.C.: “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. The court of appeals should further 
explain in its opinion “why it has concluded that a reasonable factfinder could not have credited disputed evidence in 
favor of the finding.” Id. at 
267.
            
The court of appeals here found the evidence to be both legally and 
factually insufficient to support the trial court’s grounds for terminating 
Timothy’s parental rights. Those grounds included the trial court’s 
determination that Timothy had (1) knowingly placed or knowingly allowed the 
children to remain in conditions or surroundings which endanger the physical or 
emotional well-being of the children; and (2) engaged in conduct or knowingly 
placed the children with persons who engaged in conduct which endangers the 
physical or emotional well-being of the children. Tex. Fam. Code § 161.001(1)(D), (E). The court of appeals concluded that there was no 
evidence to support the first ground because the twins had been removed from 
Timothy at birth. 262 S.W.3d at 24. The twins had 
therefore always been in “‘conditions or surroundings’ dictated by the 
Department, not Timothy.” Id.
            
As to the second ground, the court concluded that while there was 
evidence calling Timothy’s parenting skills into question recent improvements in 
Timothy’s parenting skills, life choices, and living situation prevented a 
reasonable factfinder from forming a firm belief or 
conviction that Timothy engaged in conduct exposing the twins to loss or injury 
or to emotional or physical jeopardy. See id. (“insufficient evidence of Timothy’s continued drug use, 
subsequent incarceration, or other anti-social behavior” prevented firm 
conviction of endangerment). The court noted, however, that a child need not 
suffer actual injury to have been endangered and that a parent’s drug use and 
its effects might establish an endangering course of conduct. Id.
            
We have previously said that endangering conduct is not limited to 
actions directed towards the child. Tex. Dep’t of Human Servs. v. 
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It necessarily follows that the 
endangering conduct may include the parent’s actions before the child’s birth, 
while the parent had custody of older children, including evidence of drug 
usage. See id. (stating that although endanger means more than a threat 
of metaphysical injury or the possible ill effects of a less-than-ideal family 
environment, it is not necessary that the parent’s conduct be directed at the 
child or that the child actually suffers injury); see also In re 
M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied) 
(holding that courts may look to parental conduct both before and after child’s 
birth to determine whether termination is appropriate). We accordingly agree 
that a parent’s use of narcotics and its effect on his or her ability to parent 
may qualify as an endangering course of conduct.[4]
            
Timothy admitted to daily marijuana use before the twins were born, 
although he testified that he never used drugs in his older daughter’s presence. 
Timothy and Trena also had a history of domestic 
violence. Timothy’s mother testified that there had been two or three incidents 
of domestic violence. Trena’s drug use was the cause 
of many of the problems in the marriage. Timothy testified about forcing Trena to leave their home “quite a few times” because of her 
drug use. On the majority of these occasions, he permitted Trena to leave with their daughter although he presumably 
knew this was not in their daughter’s best interests.
            
After the removal of the children, Timothy was allowed supervised 
visitation and was given a copy of his service plan. Part of the service plan 
required Timothy to submit to drug tests, two of which he missed. A few months 
after the twins were removed, Timothy was incarcerated 
on domestic violence charges, filed by Trena in 2004, 
which she later recanted. Upon his release from jail, Timothy was advised to 
attend parenting classes and take a drug screening test. He did not complete the 
drug screen and subsequently moved to California where he attended a substance abuse 
program and parenting classes. After returning to Texas, Timothy obtained 
steady employment, improved housing, and reliable transportation for his 
children. He also attended parenting classes, exercised regular visitation, and 
passed three successive drug tests. However, Timothy testified that he tested 
positive for marijuana shortly before the final hearing commenced in this case. 
He also remained delinquent in his child support.
            
Focusing on Timothy’s positive improvement as a parent, the court of 
appeals concluded that the evidence was both “legally and factually insufficient 
to support the predicate finding of conduct endangering the children.” 262 S.W.3d at 24. We disagree regarding the legal sufficiency 
of the evidence. While the recent improvements made by Timothy are significant, 
evidence of improved conduct, especially of short-duration, does not 
conclusively negate the probative value of a long history of drug use and 
irresponsible choices. Viewing all the evidence in the light most favorable to 
the trial court’s judgment and recognizing that the factfinder, not the appellate court, is the sole arbiter of 
the witnesses’ credibility and demeanor, we conclude that there was some 
evidence of endangerment on which a reasonable factfinder could have formed a firm belief or conviction of 
endangerment. Tex. Fam. Code § 
161.001(1)(E); In re J.F.C., 96 S.W.3d at 
266.
            
The court of appeals’ analysis here instead suggests a comparison of 
Timothy’s conduct over time, attributing greater weight to his recent 
improvements and less to his past challenges. While we do not question the 
court’s logic, we do reject its use here as part of the legal sufficiency 
review. See In re L.M.I., 119 S.W.3d 707, 712 
(Tex. 2003) 
(“Even under the standard we articulated in In re J.F.C., this reweighing of the evidence 
is improper.”). Weighing conflicting evidence and inferences to determine 
whether a verdict should be vacated as manifestly unjust is appropriately a part 
only of the reviewing court’s factual sufficiency review, a matter committed 
under the Texas Constitution to the courts of appeals and not to this Court. 
Tex. Const. art. V, § 
6.
* 
* *
            
In sum, we agree that Timothy’s ineffective assistance of counsel claim 
raises due process concerns and that section 263.405(i) of the Family Code is unconstitutional to the extent it 
prevents a court from considering those claims. We do not agree with the court 
of appeals, however, that there was no clear and convincing evidence to support 
termination of Timothy’s parental rights on the ground of endangerment. But even 
though the court of appeals found no evidence to support this ground, it 
nevertheless remanded the cause to the trial court for further proceedings on 
the issue of custody. Because a remand is also the appropriate judgment when 
evidence is found to have been factually insufficient, we modify the court’s 
judgment to remand the cause to the trial court for a new trial on the issue of 
Timothy’s parental rights.
 
 
            
_________________________________________
            
David M. Medina
            
Justice
 
OPINION ISSUED: May 1, 2009







[1] 
When this case began, the parental rights to a fourth child, J.O.A., were at 
issue. J.O.A. is Trena’s child from a previous 
relationship and has lived with his maternal grandmother since the age of four. 
The trial court did not terminate Trena’s parental 
rights to J.O.A. but appointed the child’s maternal grandmother permanent 
managing conservator. J.O.A., who was born in 1989, is now an adult.

[2] 
Section 263.405(b) of the Family Code was amended in 2007, after the 
commencement of this parental termination proceeding. The amendment made no 
apparent substantive change to the statement of points 
requirement. The former provision, applicable here, provided:
 
Not later than the 15th day after the date a final order 
is signed by the trial judge, a party intending to appeal the order must file 
with the trial court a statement of the point or points on which the party 
intends to appeal. The statement may be combined with a motion for new 
trial.
 
Act of May 22, 2001, 77th Leg., R.S., 
ch. 1090, § 9, 2001 Tex. Gen. Laws 2397 (amended 2007) 
(current version at Tex. Fam. Code 
§ 263.405(b)).

[3] 
Texas Family Code section 107.013(a)(1) guarantees 
indigent persons a right to counsel in government initiated parental rights 
termination cases.

[4]
In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (“Evidence of 
illegal drug use or alcohol abuse by a parent is often cited as conduct which 
will support an affirmative finding that the parent has engaged in a course of 
conduct which has the effect of endangering the child.”); Toliver v. Tex. Dep’t of Family and Protective 
Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st 
Dist.] 2006, no pet.) (“Evidence of narcotics use and its effect on a parent’s 
life and her ability to parent may establish that the parent has engaged in an 
‘endangering course of conduct.’”); In re R.W., 129 S.W.3d 732, 739 (Tex. 
App.—Fort Worth 2004, pet. denied) (“As a general rule, conduct that subjects a 
child to a life of uncertainty and instability endangers the physical and 
emotional well-being of a child. Drug use and its effect on a parent’s life and 
his ability to parent may establish an endangering course of conduct.”) (citation omitted).