Opinion filed October 24, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-19-00166-CV
                                     __________

                 IN THE INTEREST OF J.E.D., A CHILD


                     On Appeal from the 29th District Court
                           Palo Pinto County, Texas
                         Trial Court Cause No. C48299


                      MEMORANDUM OPINION
      Based upon a petition filed by the mother of J.E.D., the trial court terminated
the parental rights of J.E.D.’s father and granted the mother’s request to change the
child’s name. The father filed a pro se notice of appeal. We affirm.
      At the outset, we note that Appellant failed to adhere to the briefing standards
required by the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.1.
Although Appellant’s brief does not meet all of the requirements of Rule 38.1, we
will construe the briefing rules liberally and attempt to address the issues raised in
Appellant’s brief. See TEX. R. APP. P. 38.9. Based upon our review of Appellant’s
brief and his supplemental filings, we believe that Appellant has asserted the
following issues: (1) a challenge to the sufficiency of the evidence, (2) a complaint
that his rights were violated by the failure of the trial court to appoint an attorney to
represent Appellant, (3) a complaint that the trial judge should not have presided
over this civil matter, and (4) a request for this case to remain open for five years.
                         Termination Findings and Standards
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
      In this case, the trial court found that Appellant had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (E), (L), and (Q).
Specifically, the trial court found that Appellant had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being, that Appellant had been convicted or
placed on community supervision for being criminally responsible for the death or
serious injury of a child, and that Appellant had knowingly engaged in criminal
conduct that resulted in his conviction and confinement and inability to care for the
child for not less than two years from the date that the petition was filed. See id.
§ 161.001(b)(1)(E), (L), (Q).         The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights would be in
the best interest of the child. See id. § 161.001(b)(2).
      To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient in a parental termination case, we
give due deference to the finding and determine whether, on the entire record, a
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factfinder could reasonably form a firm belief or conviction about the truth of the
allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We
note that the trier of fact is the sole judge of the credibility of the witnesses at trial
and that we are not at liberty to disturb the determinations of the trier of fact as long
as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573.
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
                                Evidence and Analysis
      With respect to Appellant’s contention that there is no evidence to support the
trial court’s findings, we begin with evidence related to Appellant’s conviction for
injury to a child. To support a finding under subsection (Q), the record must show
that the parent will be incarcerated or confined and unable to care for the child for at
least two years from the date the petition for termination was filed.                  Id.
§ 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006). The petition
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to terminate Appellant’s parental rights was filed on May 14, 2018. Thus, the two-
year period required by subsection (Q) would end in May 2020. At the final hearing
on termination, the trial court admitted into evidence, as Exhibit No. 1, a certified
copy of a judgment of conviction. The exhibit reflects that Appellant entered an
open plea and was convicted of the offense of “INJURY CHILD/
ELDERLY/DISABLE W/INT BODILY INJ.” The judgment also indicates that
Appellant was sentenced on April 16, 2014, to a term of confinement for eight years.
Appellant’s projected release date is September 23, 2021, a date that is well after the
two-year period required by subsection (Q).
      Furthermore, the testimony from the final hearing in this cause reflects that
the above judgment of conviction stemmed from charges in which Appellant injured
J.E.D. J.E.D.’s mother testified that Appellant hurt J.E.D. when J.E.D. was almost
four years old. According to the mother, Appellant “picked [J.E.D.] up by his penis,”
which resulted in a “cut” at the top part of J.E.D.’s penis from Appellant’s thumbnail
and a “very bad cut on . . . the base of the penis.” After Head Start contacted CPS,
law enforcement investigated and charged Appellant with injury to a child.
Appellant admitted that he had hurt J.E.D. and pleaded guilty to the charge.
Appellant remained incarcerated for that offense and appeared via telephone at the
final hearing on termination.
      The record also reflects that Appellant’s actions caused emotional trauma to
J.E.D., that J.E.D. still has nightmares and depression, that J.E.D. is scared of
Appellant, and that J.E.D. says he “hates” Appellant and does not want Appellant to
come home.
      We hold that the trial court could reasonably have formed a firm belief or
conviction, based on the clear and convincing evidence presented at trial, as to the
truth of the findings made by the trial court pursuant to subsection (E)—that
Appellant had engaged in conduct that endangered the child’s physical or emotional
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well-being; subsection (L)—that Appellant had been convicted or placed on
community supervision for being criminally responsible for the serious injury of a
child; and subsection (Q)—as explained above. We also hold that the trial court
could reasonably have formed a firm belief or conviction, based on the clear and
convincing evidence presented at trial and the Holley factors, that termination of
Appellant’s parental rights was in the child’s best interest. See Holley, 544 S.W.2d
at 371–72. The evidence is legally and factually sufficient to support the trial court’s
findings.
      Next, Appellant contends that his rights were violated by the failure of the
trial court to appoint an attorney to represent Appellant in the parental termination
proceeding. The record reflects that, after he was served with the citation in this
cause, Appellant requested that the trial court appoint legal counsel to represent
Appellant in this matter. The trial court denied Appellant’s request, noting that
Appellant had no absolute right to court-appointed counsel because this was a private
suit that did not involve “the Department or CPS.”
      In a termination suit brought against a parent “by a governmental entity,” a
trial court “shall appoint an attorney ad litem to represent the interests” of an indigent
parent. FAM. § 107.013(a)(1) (West 2019). Although a trial court may appoint an
attorney ad litem to represent an indigent parent in a termination proceeding that is
brought by a party other than a governmental entity, no statutory mandate exists
when the suit is brought by a private party rather than a governmental entity. See id.
§ 107.021; In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet.
denied) (noting permissive appointment of attorney ad litem for parent in private
termination suit). Because this suit was brought by a private party rather than a
governmental entity, the trial court was vested with discretion in determining
whether to appoint counsel for Appellant.


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       Even though not mandated by statute, the appointment of counsel may be
required by due process. The United States Supreme Court has held that due process
does not require the appointment of counsel in every parental termination proceeding
and that the decision is best left to the trial court but that the trial court’s decision is
subject to appellate review. Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C.,
452 U.S. 18, 31–32 (1981); see U.S. CONST. amend. XIV. On appeal, we look to
the facts and circumstances of the case to determine whether the trial court’s failure
to appoint counsel deprived the parent of due process. Lassiter, 452 U.S. at 32. The
facts and circumstances of the present case do not indicate that Appellant was denied
due process by the failure of the trial court to appoint an attorney to represent his
interests.
       We cannot hold that the trial court abused its discretion in failing to appoint
an attorney ad litem for Appellant or that the trial court’s failure to appoint an
attorney to represent Appellant violated his constitutional rights. The presence of
counsel for Appellant in the present case would not have made a “determinative
difference.” See id. at 33. Furthermore, the petition contained no allegations against
Appellant upon which criminal charges could be based; the case presented no
troublesome points of law; and no expert witnesses testified. See id. at 32.
       Next, we address Appellant’s assertion that the trial judge should not have
presided over the parental termination proceeding because that judge had also
presided over the criminal proceeding in which Appellant pleaded guilty and was
convicted of injuring J.E.D. We disagree.
       Appellant does not allege that the judge was constitutionally disqualified to
serve but, rather, that he was “biased.” Our review of the record indicates no
suggestion of improper action by the trial court. If Appellant had been concerned
about the judge’s ability to fairly and impartially consider his case, Appellant had
the opportunity to file a motion for recusal pursuant to Rules 18a and 18b(b) of the
                                             6
Texas Rules of Civil Procedure. Appellant did not do so, nor did he object to the
judge’s presence or request a jury trial. Consequently, Appellant did not preserve
his complaint for appellate review.                  See TEX. R. CIV. P. 18a(b)(1); TEX. R.
APP. P. 33.1.
        Finally, Appellant requests that this court keep this case open for five years.
We decline Appellant’s request. We note that, in an appeal from an order in which
a parent’s parental rights are terminated, “appellate courts should, so far as
reasonably possible, ensure that the appeal is brought to final disposition” within
180 days of the date that the notice of appeal was filed. TEX. R. JUD. ADMIN. 6.2(a),
reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app. (West 2013 & Supp. 2018).
        We have considered each of the contentions made by Appellant in this appeal,
and we overrule all of those contentions.
                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE
October 24, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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