      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00164-CV



                                    J. E. and B. K., Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. 2012-1417, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               J.E. (“Jessica”) and B.K. (“Brian”) appeal from the trial court’s order terminating

their parental rights to their minor child, G.K., after the jury found that their rights should be

terminated.1 On appeal, Jessica asserts that (1) the trial court violated her due-process rights by

limiting her time to present her case; (2) the trial court erred in allowing G.K.’s foster parents to

amend their pleadings after the deadline set forth in the discovery control plan; (3) the evidence

is insufficient to prove that a statutory ground for terminating Jessica’s parental rights exists; and

(4) the evidence is insufficient to overcome the presumption in favor of keeping Jessica as G.K.’s

sole managing conservator. Brian argues, among other things, that the trial court erred in failing to

provide him with court-appointed counsel. We affirm the trial court’s judgment terminating Jessica’s




       1
         For the sake of convenience and privacy of the parties, we refer to G.K.’s parents, siblings,
and other adult family members by fictitious names. See Tex. Fam. Code § 109.002(d).
parental rights, reverse the court’s judgment terminating Brian’s parental rights, and remand for

further proceedings.


                                          BACKGROUND

                In February of 2012, Jessica, Brian, and G.K. were living with Jessica’s three older

children, S.V. (“Sarah”), R.Q. (“Robert”), and G.Q. (“Grace”), as well as Jessica and Brian’s infant

son, M.K. (“Mark”). At the time, Sarah was thirteen years old, Robert was nine, Grace was seven,

and G.K. was eighteen months old. Mark was born with a malignant tumor in his stomach and

spent most of his life in the hospital.

                The Texas Department of Family and Protective Services (the Department) became

involved in this case on March 27, 2012. According to an affidavit attached to its Original Petition

for Order to Participate in Services, the Department received a report from a hospital that Mark had

multiple rib fractures, indicating potential abuse. Jessica told the Department that she did not know

how Mark could have fractured his ribs. The Department initially investigated reports that Jessica

was negligently supervising her children, but the allegations of neglect were “ruled out.” Two months

later, Sarah moved in with her father near Dallas and Jessica, Brian, and the other four children

moved in with Brian’s parents in Kyle, Texas.

                On June 11, 2012, Mark died from apparent complications relating to his stomach

cancer.2 Following its investigation into Mark’s death, the Department filed an Original Petition for


        2
           An affidavit attached to the Department’s Original Petition for Order to Participate in
Services states that a subsequent autopsy determined that Mark’s “bowels were twisted,” possibly
as a result of previous surgeries. There was no indication that Mark’s death was the result of abuse
or neglect.

                                                 2
Order to Participate in Services, seeking to compel Jessica and Brian to complete various parenting

classes and psychological evaluations. The following month, the Department filed a “Supplemental

Petition for Protection of Children, For Conservatorship, and for Termination in Suit Affecting the

Parent-Child Relationship.” The Department was named temporary managing conservator of all four

of Jessica’s children. Jessica agreed to have Sarah, Robert, and Grace placed with their respective

fathers, and she and Brian agreed to have G.K. placed with Brian’s sister, M.K. (“Maureen”) and

Maureen’s husband, P.S. (“Phil”).

               The Department ultimately changed its plan for all four children from reunification

to termination. The Department and Jessica settled the cases for Sarah, Robert, and Grace,3 and

the trial court severed those cases from the case involving G.K. A jury trial was conducted on the

Department’s petition to terminate Jessica’s and Brian’s parental rights to G.K.

               At trial, Sarah testified that her life with Jessica, Brian, and her four siblings was

“not a happy or healthy lifestyle.” Sarah stated that she “took most of the responsibilities” of caring

for her siblings since she was at least nine years old. This included making her siblings breakfast,

packing their lunches, getting them ready for school, and changing their diapers. Sarah further

explained that G.K. would remain in a “pack ’n play” in front of the television from the time that

Sarah left for school until she returned home. When Sarah came home, she would take G.K. out of

the pack ’n play, change her diaper usually for the first time since she left for school, and feed her.

According to Sarah, Jessica was in her bedroom most of the time and rarely helped take care of


       3
          Under the terms of these settlements, Jessica agreed to have the father of each child named
the child’s sole managing conservator in exchange for the Department dismissing its suits seeking
to terminate her parental rights.

                                                  3
her children. Sarah also stated that Brian left for work early in the morning and would only help

Sarah get the other children ready when she was having trouble.

               Nancy Pratt, a therapist for a child advocacy center, testified that she treated Jessica’s

oldest son Robert shortly after he was removed from Jessica and Brian’s custody. Pratt explained

that Robert told her that Brian “chronically” abused him both physically and emotionally, often

while Jessica was present. According to Pratt, Robert recalled that Brian “would grab the back of

[Robert’s] neck and squeeze it so hard that his legs would buckle beneath him and he would be

crying on the ground.” Pratt testified that this abuse caused emotional and psychological trauma for

Robert. Furthermore, Pratt asserted that Jessica was an “absentee parent” who left Sarah and Robert

to take care of their younger siblings.

               The Department called Jessica’s psychologist, who testified that she diagnosed Jessica

with “grief; post-traumatic stress disorder, that’s acute; major depressive disorder, recurrent severe

without psychotic-features; [and] parent/child relational problem,” but ruled out other personality

disorders and did not find signs of substance abuse. The psychologist explained that Jessica was “very,

very preoccupied with adversity she had experienced in childhood” which was “still very much

affecting her functioning and suggested to me very intensive . . . longterm [sic] therapeutic needs.”

               Next, the Department called Jessica’s counselor, who testified that Jessica had made

“remarkable progress” throughout her treatment. According to the counselor, Jessica had actively

participated in nearly fifty individual counseling sessions—even continuing treatments beyond those

required by the Department—and had also participated in thirteen couples-counseling sessions

with Brian. The counselor stated that Jessica was open and honest during these sessions; took



                                                   4
responsibility for her previous mistakes as a parent; and confronted the “depth of the depression

that she had, probably for the majority of her life and what to do about it.” Jessica’s counselor

recommended that Jessica and Brian be allowed unsupervised visits with their children throughout

this case, and as a result of their treatments and Jessica’s medication, the counselor believed that

Jessica and Brian were ready to resume care of G.K.

                 The jury heard testimony that G.K.’s life was improving since she began living with

Maureen and Phil. Sarah testified that when she saw G.K. shortly before trial, she was a “perfectly

healthy, beautiful, little girl,” and that G.K. was talking more, was more interactive, and “just seems

happier” after being placed with Maureen and Phil. Maureen and Phil, who are intervenors in

this case, testified that it took approximately three months to get G.K. to be comfortable outside of

the pack ’n play and that she was now sleeping in a crib. Maureen and Phil also explained that they

had to get G.K.’s immunizations up to date so that she could be enrolled in preschool. According

to Phil, G.K. is “excelling” in her new life, and Maureen stated that G.K. is very energetic and happy

in their home.

                 At the conclusion of testimony, the jury found that Jessica and Brian’s parental

rights to G.K. should be terminated. The trial court entered an order terminating their parental

rights. This appeal followed.


                                           DISCUSSION

                 On appeal, Jessica asserts that (1) the trial court violated her due-process rights

by limiting her time to present her case; (2) the court erred in allowing Maureen and Phil to

amend their pleadings after the deadline set forth in the discovery control plan; (3) the evidence is

                                                  5
insufficient to prove that a statutory ground for terminating Jessica’s parental rights exists; and

(4) the evidence is insufficient to overcome the statutory presumption in favor of keeping Jessica as

G.K.’s sole managing conservator. Brian argues, among other things, that the trial court erred in

failing to provide him with court-appointed counsel. We will address each of these issues separately.


Limiting Jessica’s time to present her case

                In her first issue on appeal, Jessica asserts that the trial court abused its discretion in

unreasonably limiting Jessica’s time to present her case. Specifically, Jessica argues that the “court’s

refusal to properly allocate time to the parents prevented them from developing and presenting

evidence important to their case.” Jessica asserts that the “trial court’s mishandling of the time, its

failure to allow [Jessica’s] expert to testify when he was available, and its hurrying along the parents’

cases in chief” deprived her of due process and “likely caused the rendition of an improper judgment.”

                The record reflects that the trial court and the parties anticipated that this trial would

take approximately eight to nine days. Although the trial court initially instructed the Department

to complete its case by the fourth day, the Department did not rest until the morning of the seventh

day. Jessica began her case in chief in the afternoon of the seventh day of trial, called a total of three

witnesses, and rested midway through the morning of the eighth day. By this point, the trial court

did encourage the parties to “move quickly” in their questioning of witnesses and the court sustained

several objections to exclude repetitive testimony.

                However, Jessica never objected to any of the time limitations imposed by the

trial court. For example, Jessica did not object to the trial court’s initial limitation on time for

trial, request additional time to call more witnesses after the Department’s case ran long, or object

                                                    6
to the trial court’s instructions that the parties keep their questioning brief. See State v. Reina,

218 S.W.3d 247, 254 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (noting that State did

not object to trial court allocating only one additional hour to present its case); Schwartz v.

Forest Pharm., Inc., 127 S.W.3d 118, 126–27 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(concluding party failed to preserve error as to court’s time limit because he failed to object when

limit was first imposed). If Jessica had complaints about the trial court’s allocation of time, “it

was incumbent upon [the complaining party] to make its objection known at the time.” Reina,

218 S.W.3d at 254 (citing Tex. R. App. P. 33.1; Schwartz, 127 S.W.3d at 126–27; Miller Paper Co.

v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex. App.—Amarillo 1995, no writ)). Having failed

to object to the time limits at trial, Jessica has failed to preserve this complaint for appellate review.

We overrule Jessica’s first issue on appeal.


Sufficiency of the evidence to terminate Jessica’s rights

                In her second through seventh appellate issues, Jessica asserts that the evidence is

legally and factually insufficient to support termination of her parental rights in several respects.

To terminate a parent-child relationship, there must be clear and convincing evidence that (1) the

parent has engaged in conduct set out as statutory grounds for termination and (2) termination is

in the child’s best interest. See Tex. Fam. Code § 161.001(1)–(2); In re C.H., 89 S.W.3d 17, 23

(Tex. 2002). Jessica does not assert that the evidence is insufficient to establish that terminating

her parental rights was in G.K.’s best interest. See Tex. Fam. Code § 161.001(2). Therefore, we

consider only whether the evidence is sufficient to prove that Jessica engaged in conduct set out as

a statutory ground for terminating her parental rights. See id. § 161.001(1); Hanselman v. Texas

                                                    7
Dep’t of Family and Protective Servs., No. 03-09-00485-CV, 2010 WL 5019549, at *4 (Tex.

App.—Austin Dec. 9, 2010, no pet.) (mem. op.) (noting that appellate court need not review best-

interest finding if not raised in appellant’s brief).


Standard of Review

                “The distinction between legal and factual sufficiency when the burden of proof is

clear and convincing evidence may be a fine one in some cases, but there is a distinction in how

the evidence is reviewed.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In a termination case, we

review the legal sufficiency of the evidence by considering all of the evidence in the light most

favorable to the fact-finder’s determination and will uphold a finding if a reasonable fact-finder

could have formed a firm conviction that its finding was true. Id. To give appropriate deference

to the jury’s conclusions, we must assume that the jury resolved disputed facts in favor of its

finding if it could reasonably do so. Id. An appellate court should disregard evidence a reasonable

fact-finder could have disbelieved or found incredible. Id.

                When reviewing the factual sufficiency of the evidence in a parental termination

case, we view all of the evidence in a neutral light and determine whether a reasonable fact-finder

could form a firm belief or conviction that a given finding was true. C.H., 89 S.W.3d at 18–19.

We assume that the jury resolved disputed facts in favor of its finding if a reasonable fact-finder

could do so, and we disregard evidence that a reasonable fact-finder could have disbelieved or

found incredible. J.F.C., 96 S.W.3d at 266. Evidence is factually insufficient only if a reasonable

fact-finder could not have resolved the disputed evidence in favor of its finding and if that




                                                    8
disputed evidence is so significant that the jury could not reasonably have formed a firm belief or

conviction. Id.


Statutory ground for termination

               In her second through sixth issues on appeal, Jessica argues that the evidence

is insufficient to establish any of the statutory grounds that the Department alleged supported

terminating her parental rights. The Department alleged that Jessica’s parental rights should be

terminated pursuant to subsections (D), (E), (F), (N), and (O) of section 161.001(1) of the Family

Code. Under these sections, the jury must have found clear and convincing evidence that Jessica:


       (D)     knowingly placed or knowingly allowed the child to remain in conditions or
               surroundings which endanger the physical or emotional well-being of the
               child;

       (E)     engaged in conduct or knowingly placed the child with persons who engaged
               in conduct which endangers the physical or emotional well-being of the child;

       (F)     failed to support the child in accordance with the parent’s ability during a
               period of one year ending within six months of the date of the filing of the
               petition;4

       (N)     constructively abandoned the child who has been in the permanent or
               temporary managing conservatorship of the [Department] or an authorized
               agency for not less than six months, and;




       4
          Jessica also asserts that the trial court erred in granting Maureen and Phil leave to amend
their petition in intervention to include ground (F) because the deadline for amending pleadings
established in the court’s discovery control plan had passed. See generally Tex. R. Civ. P. 190.1–190.5
(establishing procedures for creating and modifying discovery control plan by court order). Because
we conclude that other statutory grounds support terminating Jessica’s parental rights, we need not
determine whether the trial court erred in allowing Maureen and Phil to amend their petition after
the deadline established in the discovery control plan.

                                                  9
               (i)     the department or authorized agency has made reasonable efforts to
                       return the child to the parent;

               (ii)    the parent has not regularly visited or maintained significant contact
                       with the child; and

               (iii)   the parent has demonstrated an inability to provide the child with a
                       safe environment; [or]

       (O)     failed to comply with the provision of a court order that specifically established
               the actions necessary for the parent to obtain the return of the child who
               has been in the permanent or temporary managing conservatorship of the
               [Department] for not less than nine months as a result of the child’s removal
               from the parent under Chapter 262 for the abuse and neglect of the child.


See Tex. Fam. Code § 161.001(1)(D)–(F), (N)–(O).

               Only one statutory ground is necessary to support a judgment in a parental-rights-

termination case. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, “we must affirm the

termination order if the evidence is sufficient to support termination on any one of the grounds found

by the district court.” Pruitt v. Texas Dep’t of Family & Protective Servs., No. 03-10-00089-CV,

2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). Thus, we will

consider whether the evidence is sufficient to support the jury’s affirmative finding on subsection

(D)—that Jessica knowingly allowed G.K. to remain in conditions or surroundings which endangered

G.K.’s physical or emotional well-being.

               Both subsections (D) and (E) require proof of child endangerment, i.e., exposing

a child to loss or injury or jeopardizing a child’s emotional or physical well-being. Texas Dep’t

of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment does not need to be

established as an independent proposition, but may be inferred from parental misconduct alone. Id.



                                                  10
Subsection (D) requires proof that the environment in which the parent placed the child endangered

the child’s physical or emotional well-being, while subsection (E) requires proof that the cause of

the endangerment was the parent’s actions or failure to act. Id.

               Sarah testified that even before Mark died, Jessica consistently remained in her

bedroom throughout the day, leaving her thirteen-year-old daughter in charge of G.K. when G.K.

was eighteen months old. G.K. was kept in a pack ’n play in the living room while Sarah was at

school, and Sarah testified that G.K. often needed to be fed and changed as soon Sarah got home,

usually for the first time since Sarah’s departure for school. Also, Robert’s psychiatrist testified

that Jessica allowed Brian to physically and verbally abuse Robert in Jessica’s presence without

defending her child. This behavior is consistent with the psychiatrist’s statement that Jessica was

an absentee mother, possibly as a result of her prolonged chronic depression. Finally, there was

testimony that while G.K. lived in Jessica and Brian’s care, G.K. had not learned to speak and had

only just learned to walk by the time she was two. However, once G.K. was placed with Maureen

and Phil, she was taken out of the pack ’n play, cared for by adults, and soon developed the skills

appropriate for her age and excelled in preschool.

               Jessica’s counselor testified that Jessica has made great strides in recognizing and

addressing the underlying psychological basis for her previous behavior. The record reflects that

Jessica has substantially completed the requirements of her family service plan, and we do not

doubt that her efforts are a clear sign that Jessica loves her daughter. Nevertheless, subsection (D)

is concerned with Jessica’s previously placing G.K. in an environment that endangered her physical

and emotional well-being, not Jessica’s ability to avoid such environments in the future. See In re

A.C.B., 198 S.W.3d 294, 299 (Tex. App.—Amarillo 2006, no pet.) (noting that parent’s willingness

                                                 11
to subsequently clean home does not controvert evidence that parent exposed child to unsanitary

living conditions).

               Considering the evidence in the light most favorable to the jury’s finding, we find

that a jury could reasonably have formed a firm conviction that Jessica knowingly placed G.K.

in an environment which endangered her physical or emotional well-being. See Tex. Fam. Code

§ 161.001(1)(D). Therefore, we conclude that the evidence is legally sufficient to support the jury’s

finding that one of the statutory grounds for termination exists. See A.V., 113 S.W.3d at 362.

Similarly, considering the evidence in a neutral light, we determine that a jury could reasonably have

formed a firm belief or conviction that Jessica knowingly placed G.K. in conditions that endangered

her physical or emotional well-being. Therefore, we conclude that the evidence is factually sufficient

to support the jury’s finding that one of the statutory grounds for termination exists. See J.F.C.,

96 S.W.3d at 266. Having determined that the evidence is sufficient to support the jury’s finding

on one of the statutory grounds, we need not consider whether the evidence would support other

grounds for termination. See In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet.

denied). We overrule Jessica’s second through sixth appellate issues.


Preference for appointing parent as managing conservator

               In her seventh and final issue on appeal, Jessica asserts that the evidence is insufficient

to overcome the strong presumption that it is in a child’s best interest to appoint parents as joint

managing conservators. Specifically, Jessica argues that section 153.131(b) of the Family Code

codifies this strong rebuttable presumption, and that the presumption is only removed if there is a

“finding of a history of family violence involving the parents.” See Tex. Fam. Code § 153.131(b).



                                                  12
According to Jessica, there is no evidence that she has a history of family violence, and thus the

presumption that she should be named G.K.’s sole managing conservator still exists. Furthermore,

Jessica asserts that Maureen and Phil have not overcome this presumption, and thus the evidence is

insufficient to establish that Jessica should not be named G.K.’s managing conservator.

                   The sections of the Family Code upon which Jessica relies are not applicable in

this case. As we recently explained, the statutes cited by Jessica create a statutory preference for

placement with a parent while a parent still retains her parental rights. See Spurck v. Texas Dep’t

of Family & Protective Servs., 396 S.W.3d 205, 219–20 (Tex. App.—Austin 2013, no pet.) (citing

Tex. Fam. Code §§ 262.114(c)(1), 263.306(a)(6), 263.404(a)(2); In re D.O., 338 S.W.3d 29, 38–39

(Tex. App.—Eastland 2011, no pet.)). Given that the Department sought to terminate Jessica’s

parental rights, appointment of a managing conservator for G.K. was governed by section 161.207.

See id. This section provides that if a court terminates the parent-child relationship of both parents,

“the court shall appoint a suitable, competent adult, [the Department], a licensed child-placing

agency, or an authorized agency as managing conservator of the child.” Tex. Fam. Code § 161.207(a).

Unlike section 153.131(b), section 161.207(a) does not, and logically should not, create a presumption

that it is in a child’s best interest to have a parent who has had her parental rights terminated named

the child’s managing conservator. See id.; see also D.O., 338 S.W.3d at 38–39.

                   Thus, Jessica’s assertion that Maureen and Phil were required to overcome a

presumption that Jessica is the preferred managing conservator of G.K. is without merit. See Spurck,

396 S.W.3d at 220. We overrule Jessica’s seventh issue on appeal. Having overruled Jessica’s

other appellate issues, we affirm that portion of the trial court’s order that terminates Jessica’s

parental rights.

                                                  13
Failure to provide Brian with appointed counsel

                On appeal, Brian asserts, among other things, that the trial court erred in failing to

provide him with court-appointed counsel. Specifically, Brian argues that because he was indigent

and opposed the termination of his parental rights, the trial court was required to provide him with

counsel. See Tex. Fam. Code § 107.013(a)(1). Section 107.013(a) of the Family Code states that

“[i]n a suit filed by a governmental entity in which termination of the parent-child relationship is

requested, the court shall appoint an attorney ad litem to represent the interest of: (1) an indigent

parent of the child who responds in opposition of the termination . . . .” See id. (emphasis added).

This section provides indigent parents with a statutory right to be represented by court-appointed

counsel in parental-termination-suits initiated by the Department.

                To be entitled to court-appointed counsel, a “parent who claims indigence under

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

of Civil Procedure before the court can conduct a hearing to determine the parent’s indigence under

this section.” Id. § 107.013(d). As one court explained, a parent’s filing of an affidavit of indigency

is “the act which would trigger the process for mandatory appointment of an attorney ad litem . . . .”

In re K.L.L.H, No. 06-09-00067-CV, 2010 WL 87043, at *5 (Tex. App.—Texarkana Jan. 12, 2010,

pet. denied) (mem. op.). Under Rule 145, “a defendant or the clerk may contest an affidavit [of

indigency] . . . by filing a written contest giving notice to all parties.” See Tex. R. Civ. P. 145(d)

(emphasis added). If the Department or the clerk fails to challenge the parent’s affidavit of indigency,

“[i]t is well settled in Texas that ‘[a]n uncontested affidavit of inability to pay costs is conclusive

as a matter of law.’” Hager v. Apollo Paper Corp., 856 S.W.2d 512, 514 (Tex. App.—Houston



                                                  14
[1st Dist.] 1993, no writ) (quoting Equitable Gen. Ins. Co. of Tex. v. Yates, 684 S.W.2d 669, 671

(Tex. 1984)).

                The record reflects that Brian filed an affidavit of indigency with the trial court on

July 8, 2013—more than six months before the underlying jury trial began. There is nothing in the

record to indicate that the Department or the court clerk contested Brian’s indigency, let alone filed

a written contest as required. See Tex. R. Civ. P. 145(d). Given that Brian’s affidavit of indigency

was not contested, he was indigent as a matter of law, and the trial court was required to provide him

with appointed counsel.5 See Hager, 856 S.W.2d at 514; see also Odoms v. Batts, 791 S.W.2d 677,

679–80 (Tex. App.—San Antonio 1990, no writ) (noting that trial court has mandatory duty to

appoint counsel to indigent parent). Therefore, the trial court erred in failing to provide Brian with

appointed counsel.

                “Termination of parental rights, the total and irrevocable dissolution of the

parent-child relationship, constitutes the ‘death penalty’ of civil cases.” In re K.M.L., __ S.W.3d __,

No. 12-0728, 2014 WL 4252270, at *16 (Tex. Aug. 29, 2014) (Lehrmann, J., concurring). In

recognition of the seriousness of these cases, “the Texas Legislature has afforded indigent parents

in state-initiated termination proceedings the right to counsel.” See id. (internal citations omitted).

“Complete failure of a trial court to appoint counsel for indigent parents constitutes reversible error.”


        5
           The Department asserts that because there is no transcript from the hearing in which the
trial court provided Jessica, but not Brian, with court-appointed counsel, the appellate record does
not provide a basis for determining whether the trial court abused its discretion in failing to appoint
counsel to Brian. This argument is without merit because if either the Department or the court clerk
wished to contest Brian’s indigency, they had to do so in writing. See Tex. R. Civ. P. 145(d). Given
that no one contested Brian’s indigency in writing, Brian was indigent as a matter of law, and the
trial court was required to provide him with counsel.

                                                   15
In re V.L.B., __ S.W.3d __, No. 01-14-00201-CV, 2014 WL 4373567, at *5 (Tex. App.—Houston

[1st Dist.] Sept. 4, 2014, no pet h.) (op. on reh’g) (citing In re C.D.S., 172 S.W.3d 179, 185–86

(Tex. App.—Fort Worth 2005, no pet.); In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.—Corpus Christi

1998, no pet.); Odoms, 791 S.W.2d at 679–80).

               Therefore, we sustain Brian’s first appellate issue, reverse the portion of the trial

court’s order terminating Brian’s parental rights, and remand this case to the trial court for the

appointment of an attorney ad litem consistent with section 107.013 of the Family Code and a

new trial on the Department’s petition to terminate Brian’s parental rights. See C.D.S., 172 S.W.3d

at 186 (adopting same appellate remedy for trial court’s failure to provide indigent parent with

counsel). We need not address Brian’s remaining appellate issues.


                                      CONCLUSION

               Having overruled Jessica’s seven issues on appeal, we affirm the portion of the

trial court’s order terminating her parental rights. Having sustained Brian’s first appellate issue, we

reverse the portion of the trial court’s order terminating his parental rights and remand this case to

the trial court to provide Brian with appointed counsel and for a new trial.



                                               __________________________________________

                                               Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed in Part; Reversed and Remanded in Part

Filed: September 10, 2014

                                                  16
