                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00421-CV


IN THE INTEREST OF L.M. AND
L.M., CHILDREN




                                      ----------

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                     TRIAL COURT NO. 16-07353-16

                                      ----------

                         MEMORANDUM OPINION 1

                                      ----------

      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



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



                                         2
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



                                       3
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 court-

ordered 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


                                         4
             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




                                          5
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


                                       6
                  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

                                  7
      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?



                                        8
     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.


                                       9
[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?




                                 10
      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]?


                                        11
      [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.



                                         12
      [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

      2
        While 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.


                                        13
                         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:




                                         14
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.



                            15
      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,




                                           16
      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.




                                        17
      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.



                                         18
      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

                                        19
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


                                       20
            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.



                                         21
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”;


                                        22
     •     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



                                       23
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 cross-

examination 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.




                                        24
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.



                                          25
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


                                           26
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 cross-

examined 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


                                        27
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.


                                         28
                                          PER CURIAM

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

DELIVERED: May 3, 2018




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