in the Interest of R.H., M.D.J. and M.K. Children v. Department of Family and Protective Services

ACCEPTED
01-14-00874-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/1/2015 3:26:22 PM
CHRISTOPHER PRINE
CLERK

NO. 01-14-00874-CV

IN THE COURT OF APPEALS FILED IN
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON
1st COURT OF APPEALS
HOUSTON, TEXAS
5/1/2015 3:26:22 PM
CHRISTOPHER A. PRINE
IN THE INTEREST OF R.R.H., M.D.J., AND M.K., CHILDRENClerk

D.K.,
APPELLANT

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
APPELLEE

On appeal from the 300th Judicial District Court
Brazoria County, Texas | No. 74587

APPELLANT’S BRIEF (AMENDED)

Respectfully submitted,
LAW OFFICE OF JANICE L. BERG
Janice L. Berg
State Bar No. 24064888
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
(t) 713-993-9100 | (f) 713-225-0099
Service email: service@janiceberglaw.com
Non-service email: janice@janiceberglaw.com
ATTORNEY FOR APPELLANT D.K.

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

Appellant/Respondent (mother of the child)
D.K.

Representing Appellant on Appeal:
Janice L. Berg
State Bar No. 24064888
LAW OFFICE OF JANICE L. BERG
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Tel: (713) 993-9100 | Fax: (713) 225-0099
Service email: service@janiceberglaw.com
Non-service email: janice@janiceberglaw.com

Representing Appellant at Trial:
Ricardo Ramos
State Bar No. 24027648
RICCARDO L. RAMOS, PLLC
440 Louisiana, Suite 1450
Houston, Texas 77002
Tel: (713) 227-7383

Toni Hays Kersey
State Bar No. 24068542
126 N. Velasco
Angleton, Texas 77515
Tel: (979) 849-6464

Blair Parker
State Bar No. 24075829
SCOTT M. BROWN & ASSOCIATES
9330 Broadway, Ste. B308
Pearland, Texas 77584
Tel: (832) 554-1283 | Fax: (832) 548-9119
Email: blair@smbattorney.com

i
Appellee/Intervenor:
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES

Representing Appellee at Trial:
Kenyata Rico
State Bar No. 24074665
111 E. Locust, Suite 408-A
Angleton, Texas 77515
Tel: (979) 864-1859 | Fax: (979) 849-8914
Email:

Representing Appellee on Appeal:
Trey Picard
State Bar No. 24027742
BRAZORIA COUNTY CHILDREN’S PROTECTIVE SERVICES UNIT,
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
111 East Locust Street, Suite 513A
Angleton, Texas 77515
Tel: (979) 864-1233 | Fax: (979) 864-1712
Email: treyp@brazoria-county.com

ii
 TABLE OF CONTENTS

Identity of Parties and Counsel .................................................................................. i

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................. vi

Statement of the Case................................................................................................ x

Statement on Oral Argument .................................................................................... x

Issues Presented For Review ................................................................................... xi

Issue 1:
  Whether counsel was improperly dismissed in violation of a
statutory requirement for an ad litem attorney. .................................. xi

Issue 2:
  Whether the trial court erred by failing to appoint another
attorney for Appellant after he promised to do so and she
requested that he do so. ...................................................................... xi

Issue 3:
  Whether the trial court erred by granting the contest to
affidavit of indigence. ........................................................................ xi

Issue 4:
  Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(D)............................................. xi

Issue 5:
  Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(E). ............................................ xi

Issue 6:
  Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(O)............................................. xi

Issue 7:
  Whether there was sufficient evidence to support the finding
that termination was in the children’s best interest. ........................... xi

Issue 8:
  Whether there was sufficient evidence to support the naming
of the Department as permanent managing conservator of the
children............................................................................................... xi

Statement of Facts ..................................................................................................... 1

iii
 A.
  Factual background................................................................................ 1

B.
  Trial court releases D.K.’s attorney ad litem after trial has already
commenced ........................................................................................ 4

C.
  Evidence at trial ..................................................................................... 8

D.
  Trial court retroactively nullifies all prior findings of indigence ........ 10

Summary of the Argument...................................................................................... 12

Argument ................................................................................................................ 13

I.
  Standard of Review in Termination Cases ................................................ 13

II.
  Issues 1-3: Denial of counsel and nullified presumption of indigence .... 16

A.
  Issue 1: The trial court reversibly erred when it released D.K.’s
attorney ad litem in the middle of trial. ........................................... 17

i.
  Applicable law ................................................................................... 17

ii.
  Application of law to facts ............................................................... 20

B.
  Issue 2: The trial court should have appointed new counsel for
D.K. when she requested a lawyer mid-trial. ................................... 22

C.
  Issue 3: The trial court erred by granting the untimely contest to
the affidavit ...................................................................................... 22

D.
  She was harmed by the error (structural, but anyway, she was
harmed. ............................................................................................ 23

III.
  Issue 4: The evidence at trial was legally and factually insufficient
to support termination under 161.001(1)—that D.K. knowingly
allowed the child to remain in dangerous conditions or
surroundings. .......................................................................................... 24

A.
  Applicable law: .................................................................................... 24

B.
  Application of law to facts: .................................................................. 25

iv
 IV.
  Issue 5: The evidence at trial was legally and factually insufficient
to support termination under 161.001(1)—that D.K. engaged in a
continuing course of conduct that endangered the child ........................ 27

A.
  Applicable law: .................................................................................... 27

B.
  Application of law to facts ................................................................... 28

V.
  Issue 6: The evidence at trial was legally and factually insufficient to
support termination under § 161.001(1)(O)—failure to comply with
a family service plan when child is taken as a result of abuse or
neglect of that child. ............................................................................... 29

A.
  Applicable Law: Section 161.001(1)(O) ............................................. 29

B.
  There is legally and factually insufficient evidence that D.K.
failed to comply with that family service plan. ............................... 31

VI.
  Issue 7: The evidence at trial was legally and factually insufficient
to support a finding that termination was in the children’s best
interest. ................................................................................................... 31

A.
  Applicable Law: There is a presumption that it is in the best
interest of the child to have a natural parent as managing
conservator. ...................................................................................... 31

B.
  Application of the Holley factors and parental presumption to the
case at hand. ..................................................................................... 33

VII.
  Issue 8: If this Court finds that the judgment terminating Appellant’s
parental rights should be reversed, whether the appointment of the
Department as the sole managing conservator of the child should
also be reversed. ..................................................................................... 36

Prayer ...................................................................................................................... 39

Certificate of Word Count Compliance .................................................................. 39

Certificate of Service .............................................................................................. 40

v
 INDEX OF AUTHORITIES

Cases

Allred v. Lowry, 597 S.W.2d 353 (Tex. 1980) ........................................................ 19

B.J.M. v. State, 997 S.W.2d 626 (Tex. App. Dallas 1998, no pet) ......................... 19

Clark v. Dearen, 715 S.W.2d 364 (Tex. App.—Houston [1st Dist.] 1987, no writ)

............................................................................................................................. 32

Davis v. State, 228 S.W.3d 917 (Tex. App.—Waco 2007, no pet.) ....................... 24

Doyle v. Texas Dep’t of Protective and Reg. Servs., 16 S.W.3d 390 (Tex. App.—El

Paso 2000, pet. denied) ....................................................................................... 28

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) ................................................ 14, 32

Hollick v. Smith, 685 S.W.2d 18 (Tex. 1985) ................................................... 13, 14

In Interest of G.M., 596 S.W.2d 846 (Tex. 1980) ................................................... 14

In re A.H.L., III, 214 S.W.3d 45 (Tex. App.—El Paso 2006, pet. denied) ............. 19

In re B.A.C., 4 S.W.3d 322 (Tex. App.—Houston [1st Dist.] 1999, pet. dism’d) .. 18

In re C.D.E., 391 S.W.3d 287 (Tex. App.—Fort Worth 2012, no pet.) ................. 25

In re C.E.K., 214 S.W.3d 492 (Tex. App.—Dallas 2006, no pet.) ......................... 27

In re C.H., 89 S.W.3d 17 (Tex. 2002) .................................................................... 14

In re D.M.D., 363 S.W.3d 916 (Tex. App.—Houston [14th Dist.] 2012, no pet.) . 13

In re D.T., 34 S.W.3d 625 (Tex. App.—Fort Worth 2000, pet. denied)................. 28

vi
In re E.A.F., 424 S.W.3d 742 (Tex. App.—Houston [14th Dist.] 2014, pet. denied

Feb. 27, 2015) ............................................................................................... 19, 20

In re E.C.R., 402 S.W.3d 239 (Tex. 2013) ............................................................. 15

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) .......................................................... 14, 15

In re J.M., 361 S.W.3d 734 (Tex. App.—Amarillo 2012, no pet.) ......................... 17

In re J.R., 171 S.W.3d 558 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ....... 28

In re K.C.A., 36 S.W.3d 501 (Tex. 2000) ............................................................... 18

In re K.M.L., 443 S.W.3d 101 (Tex. 2014) ....................................................... 13, 17

In re M.A.N.M., 75 S.W.3d 73 (Tex. App.—San Antonio 2002, no pet.) .............. 33

In re M.C., 917 S.W.2d 268 (Tex. 1996) .......................................................... 25, 27

In re M.M.F., No. 2-08-014-CV, 2008 WL 5265033 (Tex. App.—Fort Worth

2008, no pet.) (mem. op.) .................................................................................... 28

In re M.S., 115 S.W.3d 534 (Tex. 2003). ................................................................ 19

In re N.H., 122 S.W.3d 391 (Tex. App.—Texarkana 2003, pet. denied) ............... 25

In re N.R., 101 S.W.3d 771 (Tex. App.—Texarkana 2003, no pet.) ...................... 26

In re P.E.W., 105 S.W.3d 771 (Tex. App.—Amarillo 2003, no pet.)..................... 28

In re Rodriguez, 940 S.W.2d 265 (Tex. App.—San Antonio 1997, writ denied) .. 37

In re S.A.P., 169 S.W.3d 685 (Tex. App.—Waco 2005, no pet.) ........................... 30

In the Interest of J.A.J., 243 S.W.3d 611 (Tex. 2007) ............................................ 36

vii
Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990) ............................................ 32

Lide v. Lide, 116 S.W.3d 147 (Tex. App.—El Paso 2003, no pet.) ........................ 37

S.H.R. v. Dep’t of Family and Protective Servs., No 01-10-00999-CV, 2012 WL

1441397 (Tex. App.—Houston [1st Dist.] Apr. 20, 2012, judgment set aside, not

vacated Jun. 14, 2012) ........................................................................................ 16

S.H.R. v. Dep’t of Family and Protective Servs., No. 01-10-00999-CV, 2012 WL

1441398 (Tex. App.—Houston [1st Dist.] Apr. 20, 2012, rehearing granted but

opinion not vacated, Jun. 14, 2012) .................................................................... 14

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982) ........ 13

Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987) ..................... 28

Ybarra v. Texas Dep’t of Human Servs., 869 S.W.2d 574 (Tex. App.—Corpus

Christi 1993, no writ) .......................................................................................... 32

Statutes

Act eff. Sept. 1, 2013, 83rd Leg., R.S., ch. 810, § 9, 2013 Tex. Gen. Laws 2026,

2029..................................................................................................................... 16

Tex. Fam. Code § 101.007 ...................................................................................... 13

Tex. Fam. Code § 107.013 ...................................................................................... 20

Tex. Fam. Code § 107.013(d) ................................................................................. 16

Tex. Fam. Code § 107.013(e) ................................................................................. 17

viii
Tex. Fam. Code § 153.131(a) ................................................................................. 35

Tex. Fam. Code § 161.001 ................................................................................ 13, 15

Tex. Fam. Code § 161.001(1) ................................................................................. 13

Tex. Fam. Code § 161.001(1)(D)............................................................................ 24

Tex. Fam. Code § 161.001(1)(E) ...................................................................... 26, 27

Tex. Fam. Code § 161.001(1)(O)............................................................................ 28

Tex. Fam. Code § 161.001(2) ................................................................................. 13

Rules

Tex. R. App. P. 20.1(a)(3) ...................................................................................... 18

Tex. R. App. P. 20.1(e) ........................................................................................... 18

Tex. R. App. P. 20.1(e)(2) ...................................................................................... 18

Tex. R. App. P. 20.1(g)(2) ...................................................................................... 18

Tex. R. App. P. 20.1(i)(2) ....................................................................................... 18

Tex. R. App. P. 20.1(i)(4) ....................................................................................... 18

Tex. R. App. P. 20.1(l) ............................................................................................ 17

Tex. R. App. P. 44.1.......................................................................................... 24, 39

Tex. R. Civ. P. 145(b) ............................................................................................. 17

Tex. R. Civ. P. 145(d) ............................................................................................. 19

ix
 STATEMENT OF THE CASE

Nature of the case: This appeal arises from a suit for termination of the parent-
child relationship filed by a governmental entity.

Course of After trial had commenced, the trial court released indigent
Proceedings: mother’s attorney ad litem. (RR 9) After a bench trial, the
trial court terminated mother’s rights and named DFPS
permanent managing conservator of the oldest and youngest
child. (CR 1033-1096). The trial court established the parent-
child relationship between the middle child and his alleged
father and awarded the father managing conservatorship over
that child. (CR 1033-1096). Mother filed a motion for new
trial, which was denied. (CR 1050). Mother requested for the
appointment of appellate counsel, which was also denied.
(CR 1058, CR Supp. 27). The trial court then signed an order
sustaining a contest to indigence, stating that any prior orders
finding mother indigent were “void.” (CR Supp. 47).

Trial court The trial court rendered judgment on October 17, 2014. (CR
disposition: 1033).

STATEMENT ON ORAL ARGUMENT

Appellant, D.K., respectfully requests the opportunity to present oral

argument. Oral argument would significantly aid the Court in deciding this case by

providing additional explanation of the facts and issues presented. See Tex. R.

App. P. 39.1(c).

x
 ISSUES PRESENTED FOR REVIEW

Issue 1: Whether counsel was improperly dismissed in violation of a
statutory requirement for an ad litem attorney.

Issue 2: Whether the trial court erred by failing to appoint another
attorney for Appellant after he promised to do so and she
requested that he do so.

Issue 3: Whether the trial court erred by granting the contest to affidavit
of indigence.

Issue 4: Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(D).

Issue 5: Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(E).

Issue 6: Whether there was sufficient evidence to support termination
under Tex. Fam. Code § 161.001(1)(O).

Issue 7: Whether there was sufficient evidence to support the finding that
termination was in the children’s best interest.

Issue 8: Whether there was sufficient evidence to support the naming of
the Department as permanent managing conservator of R.R.H.
and M.K.

Issue 9: Whether there was sufficient evidence to support the naming of
Michael Jones as permanent managing conservator of M.D.J.

xi
 Appellant, D.K., submits the following Appellant’s Brief. D.K. seeks relief

from an order terminating her parental rights. In support, Appellant offers as

follows:

STATEMENT OF FACTS

A. Factual background

Appellant, D.K., is the mother of the children the subject of this suit: R.R.H.

(age 13 at time of trial), M.D.J. (age 9 at the time of trial), and M.K. (age 3 at the

time of trial). (CR 33). Until 2011, D.K. lived and raised her children in her

parents’ home. (RR 131). When both of her parents died unexpectedly in 2011,

D.K. became depressed and began using drugs. (RR 131-32).

In 2012, the Office of the Attorney General conducted a child support

review regarding M.D.J. (CR 62). That case was pending in the 246th Judicial

District Court in cause number 2012-67745.

By January 2013, D.K. was in dire financial circumstances. She was

searching for work and moving between hotels and the homes of family or friends.

(RR 72). She had a few outstanding warrants for minor offenses. On January 27,

2013, realizing that she would be required to appear at court to sit out her warrants

in the coming days, D.K. called a friend who had helped her out with her children

in the past, Trenese Myers. (RR 36-44). Myers was D.K.’s oldest son’s teacher. Id.

1
She was the person D.K. felt was best able to take good care of her children over

the 45 days that she expected to be in jail. Id.

On January 27, 2013, Myers met D.K. in a parking lot in Katy to exchange

possession of the children. (RR 38). At the parking lot, Myers told D.K. that

although she would take the two older boys, she could not care for the baby

because she and her husband worked during the day; but Myers brought her friend,

Alexis Caesar-White who said that she could and would be willing to care for the

baby. (CR 392). D.K. executed documents necessary for Myers to make decisions

for the children while she was in jail. (RR Exh. 1). The record reflects that Alexis

notarized the statement of guardianship. Id.

On January 29, 2013, a referral was made to CPS alleging that D.K. had left

her children with strangers. (CR 392). The Department visited D.K. in jail, who

explained she had only left them with Myers temporarily while she sat out her

warrants. (Id.).

Just days later, on February 4, 2013, the Department filed an Intervention for

Protection of a Child for Conservatorship, and for Termination in Suit Affecting

Parent-Child Relationship. (CR 166). That same day, the trial court found D.K. to

be indigent and appointed Ricardo Ramos as attorney ad litem to represent her.

(CR 69). The dismissal date was set for February 10, 2014. (CR 72).

On March 14, 2013, the court signed a family service plans. (CR 10).
2
 On October 22, 2013, the trial court signed an order transferring the case to

Brazoria County, where this case was ultimately tried. (CR 88).

On November 21, 2013, Ramos filed a motion to withdraw as counsel for

D.K. citing as the reason for withdrawal that the case had been transferred to

Brazoria County. (CR 218).

On December 12, 2013, D.K. appeared in the Brazoria County trial court

and signed a statement indicating her continued inability to pay costs and

requesting counsel. (CR 226). Finding her indigent, the trial court granted D.K’s

request for counsel and appointed Toni Hays Kersey as attorney ad litem. (CR

226).

On January 9, 2014, the trial court signed an order retaining the case on the

docket. The dismissal date was moved back to August 11, 2014. (CR 237).

On June 4, 2014, the Department filed a second amended petition for

termination. (CR 379).

On July 16, 2014, the parties attended mediation, which was unsuccessful.

(CR 452).

On July 17, 2014, a docket entry indicates that the case was called to trial

and witnesses were sworn. The case was then extended to September 29, 2014.

(CR 1090).

3
 On August 18, 2014, the Department filed a Third Amended Petition for

Protection of a Child. (CR 454). No motion for leave to file this amendment

appears in the record.

Between August 22, 2014 and September 9, 2014, multiple business records

affidavits were filed. (CR 486, 578, 704, 713, 719, 729). No objections were made

to the fact that these business records affidavits were filed well after trial had

commenced.

B. Trial court releases D.K.’s attorney ad litem after trial has already
commenced

On September 29, 2014, the case was called again. (CR 1093). A docket

entry notes that the case was estimated to last for three days. (CR 1093). The trial

court asked D.K.’s attorney if she wanted to put something on the record. (RR 9).

The following exchange occurred:

THE COURT: Okay. All right. Ms. Kersey, you informed the Court of
a matter that you need to put on the record.

MS. KERSEY: Yes, sir.

THE COURT: I'm going to let you do that, and then I'll follow up with
some questions.

MS. KERSEY: I'd call my client, [D.K.], to the stand.

THE COURT: Ms. [D.K.], if you'll just come right up in front of the
Bench, please.

MS. KERSEY: Do you want me to come up there?
4
 THE COURT: Yes, please.

MS. KERSEY: As I informed the Court, Your Honor, my client, Ms.
[D.K.], has decided she would like to represent herself. She feels that
she is the only one that can best put forth her case to you. I have advised
her on numerous occasions of settlement offers that were, in my
professional opinion, in her best interest; and she has declined those. She
has insisted on going forward with the trial on her behalf, representing
herself.

(RR 9).

The trail judge then took D.K. on voir dire and asked her about her

education level and whether she understood the risks of letting her attorney off the

case. (RR 10). The trial court then promised to appoint another attorney for D.K. if

she decided she wanted one during the trial:

THE COURT: Do you understand that you have the right to have an
attorney appointed to represent you prior to any of these questions?

MS. [D.K.]: Yes, sir.

THE COURT: You have an attorney today --

MS. [D.K.]: Yes, sir.

THE COURT: -- that you want me to cut loose. Do you understand that
if I cut Ms. Kersey loose and allow you to represent yourself, if you get
to the point where you believe that there's an answer that might
incriminate you, you can stop these proceedings and I'll appoint another
attorney to come advise you with regard to that matter? I know Ms.
Kersey. I know she's here on my criminal docket, as well as my family
docket, so I know she knows criminal law. But I'll appoint another
attorney. Do you understand that?

MS. [D.K.]: Yes, sir.
5
 THE COURT: If you can't afford an attorney, I will appoint one; but if
you can afford one, you'll need to hire one. Do you understand that?

MS. [D.K.]: Yes, sir.

THE COURT: Ms. Kersey is appointed to represent you in this case,
correct --

MS. [D.K.]: Yes, sir.

THE COURT: -- as a result of my previous finding that you were
indigent?

MS. [D.K.]: Yes, sir.

THE COURT: All right. Has anything changed with regard to your
indigency status or financial status where you could hire an attorney?

MS. [D.K.]: No, sir.

THE COURT: All right. …

(RR 10).

The court then ruled that he would grant D.K.’s request that her attorney be

released:

THE COURT: Ms. Kersey --

MS. KERSEY: Yes, Your Honor.

THE COURT: -- I will grant her request and release you.

(RR 23).

6
 There was no statement or any finding that there was good cause for

Kersey’s release. Nor was a statement of good cause requested by Kersey. No

written order granting Kersey’s release appears in the record.

Mid-way through the trial, D.K. asked that her attorney be brought back.

(RR 112). The trial court refused:

THE COURT: All right. Ms. [D.K.], come on back up. I understand
you had a question or something you want to ask me before we proceed.

MS. [D.K.]: I wanted to see if I could get that lawyer.

THE COURT: Ma'am?

MS. [D.K.]: If I can get that lawyer back.

THE COURT: You just let yours go.

MS. [D.K.]: I know.

THE COURT: I'm not bringing her back. We've already started.

MS. [D.K.]: I know.

THE COURT: That's why I went through all those questions with you.

MS. [D.K.]: I know. We can just -- I guess I'm -- it's okay.

THE COURT: Do you want to talk to these folks again and see where
they're at?

MS. [D.K.]: What do you mean?

THE COURT: I don't know if there are any proposals out there,
settlement offers or anything of that sort. I don't know. But if you want
7
 to talk to them again, we can; and if you don't, we'll go ahead.

MS. [D.K.]: We can go ahead.

(RR 112-113).

C. Evidence at trial

Testimony was heard from only three witnesses regarding D.K.’s

termination: D.K., Trisha West (a caseworker), and the guardian ad litem.

D.K. admitted at trial that she became addicted to methamphetamine and

marijuana just before January 2013, when she turned her children over to Myers.

(RR 50). She acknowledged that she tested positive for cocaine and meth in March

of 2013, just after the Department’s intervention. (RR 54). While the case was

pending, D.K. relapsed and called her casework for help. (RR 58). On the day of

trial, however, she had been clean for more than six months (since April 2014).

(RR 34-35).

At the time D.K. asked Myers for help with the children, D.K. and the

children had been living with her boyfriend at a Motel 6. (RR 38). She also had a

history of unstable housing prior to living in the Motel 6. (RR 42). For example,

she had tried living with her brother in Yorktown, but that did not work out

because she did not end up getting the job she had moved there for. (RR 43).

8
 D.K. admitted that it was probably a mistake to leave her children with

Myers because, although she thought she could trust her, “[s]he called CPS and

told them I abandoned my kids.” (RR 36).

At the time of trial, D.K. was living at Perpetual Help Home, a Christian-

based transitional home for women. (RR 66). She was employed as an intern at the

Center for Peace in Victoria, Texas earning $500 per month. (RR 65). Evidence

suggested that Perpetual Help Home does not permit children over the age of 13 to

live there, but D.K. explained that a support group at the home had offered to help

her find a place for the children to stay overnight if they were returned to her. (RR

66).

The affidavit does not indicate that the children suffered any harm with

Myers or Caesar-White, or that they were in any way harmed when CPS was called

in. (CR 392).

D.K. testified that at the time of trial she had completed her service plan.

(RR 59). She did admit that she missed one urinalysis screening. (RR 67).

With regard to M.D.J., Michael Jones testified at trial that he was asking to

be named the father of M.D.J. and for M.D.J. to be placed with him in his home.

(RR 191). He testified that this was in the child’s best interest. (RR 191). He also

testified that he believed it was in the child’s best interest for D.K.’s rights to him

to be terminated. (RR 191). He also testified that he and his wife “intend to adopt”
9
him. (RR 192). The guardian ad litem stated that he had “every reason to believe

that the father’s family will take care of [M.D.J.]” but he offered no specifics. (RR

190). D.K. attempted to cross-examine Michael Jones but nearly all of her

objections were sustained. (RR 192-197).

On October 17, 2014, the court signed a final order terminating D.K.’s

parental rights to all three children. (CR 1033). The Department was named

managing conservator of R.R.H. and M.K. (CR 1033). The trial court named

Michael Jones the managing conservator of M.D.J. (CR 1033).

D. Trial court retroactively nullifies all prior findings of indigence

On October 22, 2014, Blair Parker filed a notice of appearance on behalf of

D.K. (CR Supp. 5). Parker indicated that she was hired by a “Good Samaritan” to

represent D.K. (CR Supp. 15).

On October 28, 2014, Parker filed a notice of appeal and a motion for new

trial on D.K.’s behalf. (CR 1048). The motion for new trial was denied on

December 18, 2014.

On November 6, 2014, D.K. filed a request for court appointed attorney on

appeal, together with an affidavit of indigency. (CR 1058). She also put the court

reporter on notice that she was requesting the reporter’s record on appeal. (CR

Supp. 13).

10
 On November 7, 2014, the court reporter filed a contest to indigence. (CR

Supp. 20).

On November 10, 2014, the Department filed a response, arguing that D.K.

was no longer indigent because she had hired Parker to represent her. (CR Supp.

22).

On November 13, 2014, D.K. filed an amended request for a court-appointed

appellate counsel (CR Supp. 27) and an objection to the court reporter’s contest

based on the fact that it was not timely filed within 3 days of the day she filed her

notice of appeal. (CR Supp. 32).

On Monday, November 17, 2014, the Department filed an answer to D.K.’s

motion for new trial, arguing that there was no error in releasing Kersey because

D.K. was warned by the trial judge. (CR Supp. 41).

On December 18, 2014, the trial court denied the new trial after a hearing.

That same day, the trial court signed an Order Granting Contest to Affidavit of

Indigence, which stated:

“The original order of indigency is deemed a void order under Texas
Family Code § 107.013 based on the fact that there is no affidavit of
indigency of [D.K.] filed in the records of this cause. Therefore, the
presumption of indigency of D.K. is improper and was never
established.”

(CR Supp. 47).

11
 SUMMARY OF THE ARGUMENT

In this case an indigent mother was deprived of the right to fundamental

fairness that Texas law requires in suits to terminate parent-child relationships.

Contrary to the Fourteenth Court’s decision in In re E.A.F., 424 S.W.3d 742 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied Feb. 27, 2015), the trial court

allowed D.K. to release her attorney without a showing of good cause on the

record.

When the trial court released D.K.’s attorney, it promised to stop the

proceedings and get another one appointed for her if she felt like she needed one.

When D.K. requested her attorney be brought back mid-trial, the trial judge

refused. Trial itself was a train wreck for D.K. None of her evidence was admitted.

All of her objections were overruled.

Having been determined indigent at the start of the case, D.K. was entitled to

the presumption of indigence throughout the remainder of the case, including any

appeals, unless the trial court found that her circumstances had changed. A contest

was untimely filed by the court reporter. The trial court sustained the contest and

then improperly ruled that indigence had never been established, essentially

depriving her of the presumption of indigence to which she was entitled.

Even having been deprived of her counsel, evidence at trial was insufficient

to support termination. The children were placed with the Department after D.K.
12
left them with a teacher she thought she could trust. The Department made much of

the fact that D.K. was surrounded by people with criminal convictions, but there

was no evidence that there was anything wrong with the teacher or that the

children were abused or neglected. There also was no evidence that termination

was in the children’s best interest or that conservatorship should have been

awarded to the Department.

ARGUMENT

I. Standard of Review in Termination Cases

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., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring). The natural

right between parents and their children is one of constitutional dimensions.

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed. 2d 599

(1982); see also Hollick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.M.D.,

363 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The Texas

Supreme Court has concluded that a parent’s rights to her children are “essential,”

“a basic civil right of man,” and “far more precious than any property rights.”

Hollick, 685 S.W.2d at 20. As such, termination proceedings are strictly

scrutinized and the termination statutes are strictly construed in favor of the parent.

S.H.R. v. Dep’t of Family and Protective Servs., No. 01-10-00999-CV, 2012 WL
13
1441398, at *18 (Tex. App.—Houston [1st Dist.] Apr. 20, 2012, rehearing granted

but opinion not vacated, Jun. 14, 2012) (Jennings, J. concurring) (citing Hollick,

685 S.W.2d at 20).

A termination decree is complete, final, irrevocable, and divests for all time

that natural right as well as all legal rights, privileges, duties, and powers with

respect to each other except for the child’s right to inherit. Holick, 685 S.W.2d at

20. Due process therefore requires the petitioner to justify termination by clear and

convincing evidence. Tex. Fam. Code § 161.001; In Interest of G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

“Clear and convincing evidence” means the measure or decree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established. Tex. Fam. Code § 101.007; In re

J.F.C., 96 S.W.3d at 264; In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). A trial

court may terminate parental rights only if the petitioner has shown by clear and

convincing evidence that the parent has committed an act set forth in section

161.001(1) and that termination is in the best interest of the child. Tex. Fam. Code

§ 161.001(1), (2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).

The traditional no-evidence standard of review for legal sufficiency does not

afford sufficient protection for the constitutionally protected parent-child

relationship. In re J.F.C., 96 S.W.3d at 265. When considering legal sufficiency of
14
the evidence to support termination, the reviewing court considers all evidence in

the light most favorable to the finding to determine whether a reasonable fact

finder could have formed a firm belief or conviction that its finding was true. Id. at

265-66. The reviewing court assumes that the fact finder resolved disputed facts in

favor of its finding if a reasonable fact finder could do so and disregards all

evidence that a reasonable fact finder could have disbelieved or found incredible.

Id. Evidence of undisputed facts that do not support the finding must also be

considered. Id. The reviewing court need not disregard all of the evidence that does

not support the finding, as doing so could “skew the analysis of whether there is

clear and convincing evidence.” Id. If the reviewing court determines that no

reasonable fact finder could form a firm belief or conviction to support the finding,

then the evidence is legally insufficient, and rendition in favor of the parent is

required. Id.

As in legal sufficiency review, the traditional factual sufficiency analysis

does not afford sufficient protection for the constitutionally protected parent-child

relationship. When reviewing factual sufficiency to support termination, the

reviewing court must determine whether the evidence is such that a fact finder

could reasonably form a firm belief or conviction that the state met both prongs of

section 161.001. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence is

factually insufficient to support termination if, in light of the entire record, the
15
disputed evidence that a reasonable fact finder could not have credited in favor of

its finding is so significant that the fact finder could not reasonably have formed a

firm belief or conviction. Id. This Court has held that it shocks the conscious for

the Department “to suggest that a judgment can be factually sufficient based on

evidence never discussed or argued to the fact finder.” S.H.R. v. Dep’t of Family

and Protective Servs., No 01-10-00999-CV, 2012 WL 1441397, at *17 (Tex.

App.—Houston [1st Dist.] Apr. 20, 2012, judgment set aside, not vacated Jun. 14,

2012).

In this case, the evidence was legally and factually insufficient to support the

trial court’s finding that D.K. had violated sections 161.001(1)(D), (E), (O) and

that termination was in the child’s best interest. Each issue will be taken in turn.

II. Issues 1-3: Denial of counsel and nullified presumption of indigence

The trial court reversibly erred when it released D.K.’s attorney after trial

had already begun and when it failed to appoint additional counsel for D.K. when

she requested it. The trial court also reversibly erred when it nullified prior

findings of indigence and denied her the presumption of indigence to which she

was rightly entitled.

16
 A. Issue 1: The trial court reversibly erred when it released D.K.’s
attorney ad litem in the middle of trial.

i. Applicable law

In a suit filed by a governmental entity to terminate the parent-child

relationship, the trial court shall appoint an attorney ad litem to represent the

interest of an indigent parent who responds in opposition to the termination. Tex.

Fam. Code § 107.013.1 A parent claiming indigence must file an affidavit of

indigence in accordance with Rule 145(b) of the Texas Rules of Civil Procedure

before the trial court can conduct a hearing on indigence. Tex. Fam. Code

§ 107.013(d); Tex. R. Civ. P. 145(b). A trial court errs if it fails to appoint counsel

for an indigent parent even if the parent does not request an attorney. In re J.M.,

361 S.W.3d 734, 736 (Tex. App.—Amarillo 2012, no pet.). If a parent has some

assets or income she can still prove that she is partially indigent. Tex. R. App. P.

20.1(l). A parent can be found to be partially indigent.

A parent who the court has determined is indigent is presumed to remain

indigent for the duration of the suit, including any appeals. Tex. Fam. Code

1
The Legislature enacted changes to the statute in 2013, which strengthened indigent parents’
right to counsel. See e.g., Act eff. Sept. 1, 2013, 83rd Leg., R.S., ch. 810, § 9, 2013 Tex. Gen.
Laws 2026, 2029 (codified at Tex. Fam. Code § 262.201(a-1)-(a-3); but see K.M.L., 443 S.W.3d
at 123 (Lehrmann, J., concurring) (“even before it was amended to do so expressly,” the Texas
Family Code required admonishments about the right to counsel and additional time for
appointed counsel to prepare for the full adversary hearing upon a showing of good cause).

17
§ 107.013(e). Upon a motion by the parent, the attorney ad litem for the parent, or

the attorney representing the governmental entity, the trial court can determine that

the parent is no longer indigent due to a material and substantial change in the

parent’s financial circumstances. Tex. Fam. Code § 107.013(e).

When an indigent parent files a notice of appeal, a court reporter, clerk, or

any party to the suit may file a contest to a presumption of indigence that has been

established under Tex. R. App. P. 20.1(a)(3). Tex. R. App. P. 20.1(e). In re K.C.A.,

36 S.W.3d 501, 503 (Tex. 2000) (regarding 20.1); In re B.A.C., 4 S.W.3d 322, 323

(Tex. App.—Houston [1st Dist.] 1999, pet. dism’d). A contest to a presumption of

indigence must be filed within three days after the notice of appeal is filed. Tex. R.

App. P. 20.1(e)(2). Trial court must have a hearing and rule on the contest within

ten days of the date that the contest was filed. Tex. R. App. P. 20.1(i)(2); Tex. R.

App. P. 20.1(i)(4).

A contest must contain specific facts demonstrating a good faith belief that

the parent is no longer indigent due to a material and substantial change in the

parent’s financial circumstances. Tex. R. App. P. 20.1(e)(2). The person filing the

contest has the burden of proof to contest the presumption of indigence. Tex. R.

App. P. 20.1(g)(2). The person contesting the affidavit must prove that the parent is

no longer indigent due to a material and substantial change in the parent’s financial

circumstances since the most recent finding of indigence. Id. A party who is
18
indigent for purposes of appeal does not need to prove that friends or relatives are

unable to pay for the appeal. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980).

The order sustaining the contest must be in writing. B.J.M. v. State, 997

S.W.2d 626, 627 (Tex. App. Dallas 1998, no pet). If the trial court finds that a

party can pay costs, the court must state reasons in the order. Tex. R. Civ. P.

145(d).

The statutory right to counsel in parental termination cases embodies the

right to effective assistance. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Absent a

finding of good cause, the trial court is not authorized to relieve an indigent

parent’s attorney ad litem of his duties. In re E.A.F., 424 S.W.3d 742, 748-49 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied Feb. 27, 2015); See also In re

A.H.L., III, 214 S.W.3d 45, 52 (Tex. App.—El Paso 2006, pet. denied) (finding

that due process does not require the right to self-representation in a termination

case and upholding trial court’s prohibition against father from proceeding without

an appointed attorney ad litem).

In E.A.F., an indigent father appeared at trial and informed the trial court

that he wanted to represent himself. E.A.F., 424 S.W.3d at 745-46. The attorney ad

litem for the father stated that he was “ready to proceed” and he believed his client

had “a legitimate case” Id. The trial court questioned the father on the issue:

The Court: Okay. So you don’t want a lawyer?
19
 [Appellant]: I want to represent myself.

The Court: Okay. Well you can do that. All right. You’re released.

Mr. Shelton: Thank you.

E.A.F., 424 S.W.3d at 748. Shelton had not filed a motion for withdrawal. The trial

court did not sign an order granting the withdrawal. Id.

The Fourteenth Court of Appeals found that the trial court erred by allowing

appellant to release his court appointed attorney without a showing of good cause

rendered on the record. E.A.F., at 748-49. The Court in E.A.F. nevertheless

affirmed the trial court’s ruling because the appellant had not raised a point of error

about granting the withdrawal or the failure to appoint other counsel. Rather, he

had only complained that he wasn’t given Faretta-type warnings. The court found

that Faretta warnings regarding the dangers of releasing his attorney because the

appellant did not even have the right to release his attorney.

ii. Application of law to facts

This case is on point with E.A.F., and D.K. asks this Court to follow its

sister court in its ruling by finding that the trial court reversibly erred by allowing

Kersey to withdraw without a finding of good cause on the record. The record here

indicates no reason for Kersey’s withdraw other than Kersey’s statement that she

had recommended settlement to D.K. and D.K. had refused to settle. The trial court

was not authorized to grant D.K.’s “request” that her attorney be released. Nor was

20
D.K. authorized to release her attorney. Kersey’s duties to her client under Tex.

Fam. Code § 107.013 should have continued.

Moreover, it was fundamentally unfair to release the attorney in the middle

of trial. Trial was “commenced” on July 17, 2014.2 This came back to bite D.K.

mid-trial when she was being questioned about the stability of her housing. (RR

127). The safety plan indicated that she was supposed to maintain stable housing

for 6 months. At the time trial resumed in September, D.K. had been in the same

transitional home for at least 6 months, but the children’s attorney ad litem

attempted to argue that she had not met this requirement because she had not been

living there for 6 months as of the date trial commenced, July 17, 2014. (RR 127).

The Department will likely attempt to use the trial “commencement” date as both a

sword and a shield: on the one hand, they will argue that D.K. was given warnings

prior to evidence being introduced, but they will attempt to limit the evidence of

D.K.’s recovery and actions between July 17, 2014 and September 29, 2014 to

argue that her rights should be terminated.

The Department will likely point out that the trial court warned D.K. about

the risk involved in releasing her attorney. Indeed, this was the only reasoning

2
This is a procedural slight-of-hand commonly used to avoid the mandatory dismissal deadlines
for termination suits under Tex. Fam. Code § 263.401.

21
behind the Department’s response to D.K.’s motion for new trial. Under E.A.F.,

warnings were arguably not implicated in this case because D.K. was not

authorized to represent herself, anyway.

B. Issue 2: The trial court should have appointed new counsel for D.K.
when she requested a lawyer mid-trial.

The trial court promised D.K. that he would stop the trial and appoint a new

lawyer for her if she asked for one. D.K. tried to invoke this promise when she

asked for her lawyer back. The trial court flatly refused, but did say she was

permitted to talk to the Department further about settlement. Having promised to

get her an attorney if she asked for one later, the trial court erred by refusing the

request.

C. Issue 3: The trial court erred by granting the untimely contest to the
affidavit

The trial court erred by granting the contest to the affidavit because it was

not timely filed. The notice of appeal was filed on October 28, 2014. (CR 1048).

The court reporter did not file her contest until November 7, 2014. (Supp. 20).

Moreover, the contest did not contain required specifics about a good faith belief

that D.K.’s circumstances had materially and substantially changed.

The order granting the contest was further error because it improperly

nullified the presumption of indigence to which D.K. was entitled. It also does not

contain the required finding that a material and substantial change in circumstances

22
had occurred since the last finding of indigence. Rather, it simply nullifies prior

indigence findings. There is no authority for a court to nullify a presumption. The

statutory scheme permits certain persons to challenge the continuing presumption

by showing that a parent is no longer indigent; but there is no authority for the

presumption to be nullified. In this case, the error is even more egregious because

the order sustaining the contest does not even state that D.K. is not currently

indigent. Rather, it states that the prior findings are void because of a lack of

affidavit. Although an affidavit is required to trigger the hearing under 107.013,

there is no authority to support the suggestion that a lack of affidavit will void the

presumption. In this case, there were at least two findings of indigence. First, on

February 4, 2012, the day the case was filed, the Harris County District Court

found D.K. to be indigent and appointed Ricardo Ramos to represent her. That

finding, on its own, created a presumption that D.K. remained indigent throughout

the proceeding, including any appeals. Then, on December 12, 2012, D.K. was

found indigent by the Brazoria County trial court and another attorney was

represented. That finding, too, afforded D.K. a presumption of indigence

throughout the rest of trial and any appeal.

D. Appellant was harmed by the error

The total deprivation of counsel at trial is a structural error, which infects the

trial from beginning to end. Davis v. State, 228 S.W.3d 917, 920 (Tex. App.—

23
Waco 2007, no pet.). Even if this Court finds that this error is subject to a harm

analysis, it is clear that the denial of counsel was harmful to D.K. Id. None of

D.K.’s objections were sustained throughout trial, and most of her testimony was

kept out. There was no objection made to the late-filed business records affidavit.

D.K. asked for a lawyer when she was asked incriminating questions but the trial

court denied her counsel. Because of the denial of counsel, D.K. was deprived of

important opportunities which she would have otherwise had as of right, including

the ability to preserve error for appropriate appellate review. Id. Tex. R. App. P.

44.1.

III. Issue 4: The evidence at trial was legally and factually insufficient to
support termination under 161.001(1)—that D.K. knowingly allowed
the child to remain in dangerous conditions or surroundings.

A. Applicable law

Under section 161.001(1)(D), the trial court may order termination of the

parent-child relationship if it is in the best interest of the child and the court finds

by clear and convincing evidence that the parent has –

“knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the
physical or emotional well-being of the child”

Tex. Fam. Code § 161.001(1)(D).

The court must find that the parent acted knowingly. Id. To determine that

the parent acted “knowingly,” the court must find that the parent was aware of the

24
potential danger to the child and disregarded the risk. In re C.D.E., 391 S.W.3d

287, 297 (Tex. App.—Fort Worth 2012, no pet.).

The court must find that the parent knowingly placed or allowed the child to

remain in the dangerous condition. “Endangerment” means to expose the child to

loss or injury or to jeopardize the child’s physical or emotional well-being. In re

M.C., 917 S.W.2d 268, 269 (Tex. 1996). The environment must pose a real threat

of injury or harm to the child. In re N.H., 122 S.W.3d 391, 402 (Tex. App.—

Texarkana 2003, pet. denied).

B. Application of law to facts

In this case, the children were placed with the Department after Myers called

CPS to report that D.K. had left her children with her. There is no evidence that the

children were at risk at Myers or Caesar-White’s house. The court must find that

the danger was caused by the conditions or surroundings. That was not the case

here. There must be a direct causal connection between the environment where the

child is placed or allowed to remain and the danger to the child’s physical or

emotional wellbeing. The environment itself must cause the danger, not the

parent’s conduct. In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003,

no pet.).

D.K. took affirmative actions to avoid risk to the children by placing them

with a schoolteacher who she knew and could trust. As it turns out, the school

25
teacher was only a risk to the children insofar as she ushered them into the foster

care system. There was no evidence that D.K. knew that this would be the result of

leaving the children with Myers. The Department made much of the fact that the

children were at times allowed to remain in the care of D.K.’s boyfriend at some

point before she gave the children to Myers, but D.K. affirmatively chose NOT to

leave them with her boyfriend when she knew that she would be in jail for 45 days.

She took them to the only person in her life at that time, who she thought she could

trust. Again, there is no evidence that the children were in danger with the teacher

or with Alexis. D.K. had had the children stay with Myers before and there were

no problems.

The Department also made much of the fact that some of D.K.’s family

members had convictions or were serving out time in jail. What went overlooked

by the judge is the fact that D.K. did not try to give her children to any of those

people when she turned herself into jail to serve out her warrant. Rather, she chose

people who she thought she could trust. The affidavit in support of termination

itself indicates that when they received a referral and notice that D.K. had dropped

her children off with Myers and Caesar-White and CPS went to talk to them, they

determined that the children should remain at Myers and Caesar-White’s homes for

the time being. Clearly, there was no danger to the children caused by D.K. The

affidavit also indicates that although Myers guessed that D.K. had been living out
26
of her car, the children denied that was the case. The affidavit also confirms that

the children had stayed with Myers before and that she was well known to them.

IV. Issue 5: The evidence at trial was legally and factually insufficient to
support termination under 161.001(1)—that D.K. engaged in a
continuing course of conduct that endangered the child

A. Applicable law

Under section 161.001(1)(E), the trial court may order termination of the

parent child relationship if it is in the best interest of the child and the court finds

by clear and convincing evidence that the parent has –

“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.”

Tex. Fam. Code § 161.001(1)(E).

The relevant time frame for the court to consider is before the child is

removed from the parent. In re C.E.K., 214 S.W.3d 492, 496-97 (Tex. App.—

Dallas 2006, no pet.). “Endangerment” means more than a threat of metaphysical

injury or potential ill effects of a less-than-ideal family environment. In re M.C.,

917 S.W.2d 268, 269 (Tex. 1996) (citing Texas Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987). The cause of the danger must be the parent’s

conduct alone, whether by action or inaction. Doyle v. Texas Dep’t of Protective

and Reg. Servs., 16 S.W.3d 390, 395 (Tex. App.—El Paso 2000, pet. denied). The

parent must have knowledge of the conduct that endangers the child. Tex. Fam.

27
Code § 161.001(1)(E). The endangerment allegation must be based on more than a

single act or omission. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth

2000, pet. denied). “A voluntary, deliberate, and conscious course of conduct by

the parent is required.” In re M.M.F., No. 2-08-014-CV, 2008 WL 5265033, at *9

(Tex. App.—Fort Worth 2008, no pet.) (mem. op.). For example, continually

unsanitary living conditions have supported termination under subsection (E). See

In re P.E.W., 105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003, no pet.). But

termination cannot be based solely on failure to maintain stable housing. See In re

J.R., 171 S.W.3d 558, 578 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

B. Application of law to facts

There is no evidence that D.K. engaged in a course of conduct that

endangered the children. Rather, the evidence is clear that D.K. took affirmative

steps to protect the children by taking them to a person she could trust for them to

remain safely and someone who would be able to take them to school.

Although there was some evidence presented that D.K. used drugs, there

was no evidence that she ever used drugs around her children. And although there

was some evidence that her boyfriend had used drugs, there was no evidence that

he used drugs around the children. Regardless, D.K. did not leave her children with

her boyfriend when she went to sit out her warrants. Nor did she leave them with

28
her brothers. There is not enough evidence to rise to the level of clear and

convincing evidence that D.K. endangered her children.

V. Issue 6: The evidence at trial was legally and factually insufficient to
support termination under § 161.001(1)(O)—failure to comply with a
family service plan when child is taken as a result of abuse or neglect of
that child.

A. Applicable law

Under section 161.001(1)(O), the trial court may order termination of the

parent child relationship if it is in the best interest of the child and the court finds

by clear and convincing evidence that the parent has –

“failed to comply with the provisions 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 of Family and Protective Services for not
less than nine months as a result of the child’s removal
from the parent under Chapter 262 for the abuse or
neglect of the child.”

Tex. Fam. Code § 161.001(1)(O). There are four distinct elements to this ground

for termination: (1) that the child has been in custody of the Department for at least

9 months; (2) that there was a specific court order enumerating actions necessary to

obtain the return of the child; (3) that the parent failed to complete those actions;

and (4) that the child was removed from the parent because of abuse or neglect of

the child. Id. There is no dispute that the child was in the custody of the

Department for more than 9 months.
29
 There is no evidence that the children were removed from D.K. because of

abuse or neglect. To begin with, the children were not removed from D.K. at all.

Rather, D.K. took her children to Myers, a person known to the children, and

Myers schoolteacher recommended that the baby go with Caesar-White. There is

no evidence that these women were unwilling to care for the children. Moreover,

the evidence is clear that the children were not at any risk when they were found

with Myers and Caesar-White. There is no evidence that the children had been

abused or neglected by D.K. or by Myers or Caesar-White. Although there was

evidence that the children may have had cavities, this is not sufficient evidence of

abuse or neglect.

The question whether a child was removed from a parent as a result of abuse

or neglect by that parent should be determined on a case-by-case basis. Even if this

case determines that the children were at risk when D.K. gave them to Myers and

Caesar-White, risk to a child is not the same as abuse or neglect of a child, and it

cannot support termination under subsection (O). In re S.A.P., 169 S.W.3d 685,

705-06 (Tex. App.—Waco 2005, no pet.).

Examining all of the evidence in the light most favorable to the trial court’s

judgment and disregarding all evidence the fact finder could have reasonably

disbelieved or found incredible, a reasonable fact finder could not have formed a

firm belief or conviction that the children were removed from D.K. as a result of
30
D.K.’s abuse or neglect of any of her children. As such, the evidence is legally and

factually insufficient to support termination of D.K.’s rights under subsection (O).

B. There is legally and factually insufficient evidence that D.K. failed to
comply with that family service plan.

In this case, the Department alleged that D.K. had failed comply with her

Family Service Plan. The Department failed to meet its burden to prove these

allegations by clear and convincing evidence.

Because the evidence at trial was legally and factually insufficient to support

termination under section 161.001(1)(O), the trial court’s judgment should be

reversed and rendered in favor of Appellant or in the alternative the case should be

remanded for a new trial.

VI. Issue 7: The evidence at trial was legally and factually insufficient to
support a finding that termination was in the children’s best interest.

A. Applicable law

There is a presumption that it is in the best interest of the child to have a

natural parent as managing conservator In addition to establishing one of the

statutory grounds for termination enumerated in section 161.001(1), the petitioner

must also prove that termination of the parent child relationship is in the best

interest of the child. Tex. Fam. Code § 161.001(2). Proof of one will not relieve the

petitioner from the burden of proving the other. Holley v. Adams, 544 S.W.2d 367,

370 (Tex. 1976). The best interest of the child must be proven by clear and

31
convincing evidence. Tex. Fam. Code § 161.001(2); Ybarra v. Texas Dep’t of

Human Servs., 869 S.W.2d 574, 579-80 (Tex. App.—Corpus Christi 1993, no

writ).

“The presumption that the best interest of a child is served by awarding

custody to a natural parent is deeply embedded in Texas law.” Lewelling v.

Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). This presumption places a heavy

burden on a non-parent seeking custody. Id. at 167. Termination cannot be justified

where the evidence shows that the parent’s failure to provide a more desirable

environment for a child is due solely to misfortune and not to indifference or

malice. Clark v. Dearen, 715 S.W.2d 364, 367 (Tex. App.—Houston [1st Dist.]

1987, no writ).

A list of factors for the trial court to consider in determining a child’s best

interest is set out by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d at

371-72:

1. The child’s desires;

2. The child’s emotional and physical needs, 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 in promoting the

child’s best interests;

32
 6. The plans for the child by the individual or agency seeking custody;

7. The stability of the home or proposed placement;

8. The parent’s acts or omissions which may indicate the existing parent-

child relationship is not a proper one; and

9. Any excuse for the parent’s acts or omissions.

Id. The Holley factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex.

2002). While undisputed evidence of one factor may be sufficient to support a best

interest finding in a particular case, the presence of scant evidence relevant to each

Holley factor will not support a best interest finding. Id. “[T]he best interest

standard does not permit termination merely because a child might be better off

living elsewhere.” In re M.A.N.M., 75 S.W.3d 73, 79 (Tex. App.—San Antonio

2002, no pet.).

B. Application of the Holley factors and parental presumption to the
case at hand

Using the proper standard of review, the evidence must be viewed in the

light most favorable to the verdict and also must include any undisputed evidence

that does not support the verdict. In re J.F.C, 96 S.W.3d at 266. Under this

framework, the Holley analysis is as follows:

The children did not speak with the judge or testify at court. The only

evidence of the child’s desires regarding placement was the guardian ad litem’s

unsubstantiated statements that the children were generally “afraid” to go back to
33
their mother. (RR 190). Most of D.K.’s testimony was objected to and none of her

documents regarding best interest were admitted. This is insufficient evidence of

the children’s desires.

There was no evidence that the children had any particular physical needs.

With regard to the child’s emotional needs, the evidence showed that the

Department had medicated two of the children for depression. There was no

evidence that D.K. was unable or unwilling to address those issues. In fact, she had

admitted and was in the process of addressing her own issues with depression,

indicating that she would be willing and able to assist her children with any issues

as well.

There was no evidence of immediate emotional or physical danger to the

child at the time of trial.

D.K. attempted to testify about all the work she had done to try to get her

children back and to improve her parenting skills. Most of the objections to her

testimony were sustained, and she was not able to get any of her evidence

admitted.

Once reunified with her children, D.K. had the support of other women in

her shelter.

Although the guardian ad litem indicated that the foster homes were

interested in adopting, there was no evidence at trial that they had made any
34
official request to do so. A reasonable fact finder would have to conclude that

termination would leave the children’s permanency plans uncertain at best.

D.K. testified that she was working on getting more stable for the sake of her

children. Although there was testimony from the guardian ad litem that the foster

homes were meeting the children’s needs, there was no clear evidence that the

foster home would ever become permanent.

D.K. was prevented from offering testimony to support the children’s best

interest because her counsel was released in the middle of trial. Because she was

without counsel to protect her, it offends traditional notions of fair play and

substantial justice to terminate rights under such circumstances.

The Holley factors must be applied to the evidence at hand in the light most

favorable to the verdict as well as any undisputed evidence that does not support

the verdict. Based on the foregoing, no reasonable fact finder could form a firm

belief or conviction from the evidence in this case that termination of Appellant’s

parental rights was in the children’s best interest.

Because the evidence at trial was legally and factually insufficient to support

a finding that termination was in the best interest of the children, the trial court’s

judgment should be reversed and rendered in favor of Appellant or in the

alternative the case should be remanded for a new trial.

35
VII. Issue 8: If this Court finds that the judgment terminating Appellant’s
parental rights should be reversed, whether the appointment of the
Department as the sole managing conservator of the R.R.H. and M.K.
should also be reversed.

If this Court finds that the termination judgment must be reversed, D.K.

requests that the appointment of the Department as the child’s sole managing

conservator also be reversed. See In the Interest of J.A.J, 243 S.W.3d 611 (Tex.

2007). The trial court made findings under Tex. Fam. Code § 153.131(a) that the

appointment of a parent as conservator of the child would significantly impair the

child’s physical health or emotional development and that appointment of the

Department as sole managing conservator was in the child’s best interest. As such,

the appointment of the Department as a sole managing conservator must be

contained in a separate challenge in this appeal. J.A.J., 243 S.W.3d at 613.

There is a presumption that the best interest of the child is served by

appointing a parent as managing conservator. Tex. Fam. Code. § 153.131(a). To

rebut the parental presumption, a nonparent seeking conservatorship must present

evidence that the appointment of the parent would significantly impair the child’s

physical health or emotional development. Id. Once evidence rebutting the parental

presumption is offered, the presumption disappears and is not weighed or treated as

evidence. Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.—El Paso 2003, no pet.).

The evidence is then evaluated as it would be in any other case, and the

36
presumption has no effect on the burden of persuasion. In re Rodriguez, 940

S.W.2d 265, 271 (Tex. App.—San Antonio 1997, writ denied).

There is no evidence that appointment of D.K. as managing conservator of

the children would significantly impair their physical health or emotional

development or that it was in their best interest. There was no allegation that the

children’s physical health was an issue. The evidence was clear that D.K. had was

well on the road to recovery from her addition, had a job and had future goals.

There is no evidence that the Department had any permanent plans for the children.

The foster home where they were living may have talked about adoption, but they

had not requested adoption at the time of trial.

There is no reasonable way that the trial judge could have found by a

preponderance of the evidence that the appointment of D.K. as managing

conservator would significantly impair the child’s physical health or emotional

development or that it was in their best interest. As such, appointment of the

Department as sole managing conservator was an abuse of discretion and judgment

should be rendered in favor of D.K., removing the Department as managing

conservator of the children. In the alternative, this case should be remanded for a

new trial on the issue of conservatorship.

37
VIII. Issue 9: If this Court finds that the judgment terminating Appellant’s
parental rights should be reversed, whether the appointment of Michael
Jones as the sole managing conservator of the M.D.J. should also be
reversed.

There was no evidence presented other than the conclusory statements of the

child advocate that he had no reason to believe that it was in M.D.J.’s best interest

to be placed with his father. Without any evidence of the best interest of the child

regarding conservatorship, the trial court abused its discretion in determining that

Michael Jones should be granted sole managing conservatorship of the child.

Moreover, the trial court’s actions to deprive Appellant of counsel resulted

in her inability to properly cross-examine Michael Jones regarding conservatorship

and best interest of M.D.J. From the record, it is clear there were important issues

for the judge’s consideration that D.K. was unable to properly present. (RR 192-

197). For example, she attempted to elicit testimony regarding possible abuse of

the child by Michael Jones as well as a pattern on the part of Michael Jones of non-

involvement in the child’s life. All counsel made objections to D.K.’s questions

and the trial court sustained nearly all of those objections. D.K. was prevented

from properly presenting her case on appeal and the error probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1.

38
 PRAYER

Appellant, D.K., respectfully prays that the Court will reverse the judgment

of the trial court and render judgment that the children be returned to her. In the

alternative, D.K. prays that this court will reverse the judgment of the trial court

and remand this case for a new trial.

Respectfully submitted,

LAW OFFICE OF JANICE L. BERG

/s/ Janice L. Berg
Janice L. Berg
State Bar No. 24064888
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Tel: (713) 993-9100 | Fax: (713) 225-0099
Service email: service@janiceberglaw.com
Non-service email: janice@janiceberglaw.com
ATTORNEY FOR APPELLANT, D.K.

CERTIFICATE OF WORD COUNT COMPLIANCE

I certify that this document was produced on a computer using Microsoft
Word 2011 and contains 9,009 words as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).

/s/ Janice L. Berg
Janice L. Berg

39
 CERTIFICATE OF SERVICE

I certify that on May 1, 2015, I served a copy of this Amended Appellant’s
Brief on the party listed below by electronic service. My email address for service
of process is service@janiceberglaw.com.

/s/ Janice L. Berg
Janice L. Berg

40
 NO. 01-14-00874-CV

IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT OF TEXAS AT HOUSTON

IN THE INTEREST OF R.R.H., M.D.J., AND M.K., CHILDREN

D.K.,
APPELLANT

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
APPELLEE

On appeal from the 300th Judicial District Court
Brazoria County, Texas | No. 74587

APPENDIX

App. # Title
1 Final Order in Suit Affecting the Parent-Child Relationship, signed
October 17, 2014

2 Order Appointing Counsel for Mother, signed February 4, 2013

3 Statement and Request for Appointment of Counsel and Order
Appointing Counsel, signed December 12, 2013

4 Tex. Fam. Code § 101.007

5 Tex. Fam. Code § 107.013

6 Tex. Fam. Code § 153.131

7 Tex. Fam. Code § 161.001
App. # Title
8 Tex. R. App. P. 20.1

9 Tex. R. Civ. P. 145
 APPENDIX 1
Final Order in Suit Affecting
Parent-Child Relationship,
signed October 17, 2014
'
'

CAUSE NO. 74587

IN THE INTEREST OF §
§
§ BRAZORIA COUNTY, TEXAS
§
A CHILD § 300TH JUDICIAL DISTRICT

FINAL ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP

On September 29, 2014, the Court heard this case.

1. Appearances

1.1. The Department of Family and Protective Services ("the Department") appeared
through TRISHA WEST, caseworker, and by attorney, KENYATA RICO and
announced ready.

1.2. Respondent Mother DESTINYE GWEN KELLEY appeared m person and
announced ready.

1.3. Respondent Adjudicated Father MICHAEL DWAYNE JONES appeared m
person and through attorney of record MARK JONES and announced ready.

1.4. Respondent Alleged Father RICO RONDALE HALL SR. although duly and
properly notified, did not appear and wholly made default.

1.5. Respondent Alleged Father MARQUIS STYLE RAND although duly and
properly notified, did not appear and wholly made default; however, his attorney
of record, LEENA BHASIN, appeared and announced ready.

1.6. Respondent UNKNOWN FATHER appeared through attorney of record
PHILLIP LARMOND and announced ready.

1.7. JULIE KETTERMAN, appointed by the Court as Attorney Ad Litem for the
children the subject of this suit, appeared and announced ready.

1.8. CHRISTIAN LANDRY, appointed by the Court as Guardian Ad Litem for the
children the subject ofthis suit, appeared and announced ready.

2. Findings

2.1. The Court, having examined the record and heard the evidence and argument of
counsel, finds that this Court has jurisdiction of this case and of all the parties and
that no other court has continuing, exclusive jurisdiction of this case.

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 2.2. The Court, having examined the record and heard the evidence and argument of
counsel, finds that the State of Texas has jurisdiction of this case pursuant to
Subchapter C, Chapter 152, Texas Family Code, by virtue of the fact that Texas is
the home state of the children.

2.3. All persons entitled to citation were properly cited.

2.4. The Court finds that MICHAEL DWAYNE JONES is the father of the child

2.5. The Court finds that RICO RONDALE HALL SR. is the father of the child

2.6. The Court finds that this order sufficiently defines the rights and duties of the
parents of the children pursuant to§ 153.603, Texas Family Code, and no further
parenting plan is appropriate or necessary.

3. Jury

A jury was waived, and all questions of fact and of law were submitted to the Court.

4. Record

A record of the proceedings was duly reported by Kim Keeler, 10250 CR 200, Alvin,
Texas, 77511 (281-352-0863).

5. The Children

The Court finds that the following children are the subject of this suit:

5.1. Name:
Sex:
Birth Date:
Social Security Number:
Present Residence:
Driver's License Number:

5.2. Name:
Sex:
Birth Date:
Social Security Number:
Present Residence:
Driver's License Number:

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 5.3. Name:
Sex:
Birth Date:
Social Security Number:
Present Residence:
Driver's License Number:

6. Managing Conservatorship:
6.1. The Court finds that the appointment of a parent or both parents as managing
conservator would not be in the best interest of the child,
because the appointment would significantly impair the child's physical health or
emotional development; and it would not be in the best interest of the child to
appoint a relative of the child or another person as managing conservator.

6.2. IT IS THEREFORE ORDERED that the DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES is appointed Permanent Managing Conservator of
the child with the rights and duties specified in § 153.371,
Texas Family Code; the Court finds this appointment to be in the best interest of
the child.

6.2.1. IT IS ORDERED that, in addition to the rights and duties listed in
§ 153.371, Texas Family Code, the Department is authorized to consent to
the medical care for under § 266.004, Texas Family
Code.

6.3. IT IS ORDERED that each parent, who has not previously done so, provide
information regarding the medical history of the parent and parent's ancestors on
the medical history report form, pursuant to § 161.2021, Texas Family Code.

7. Managing Conservatorship:
7 .1. The Court finds that the appointment of Respondent Mother as managing
conservator would not be in the best interest of the child,
, because the appointment would significantly impair the child's physical
health or emotional development; and it would not be in the best interest of the
child to appoint Respondent Mother as managing conservator.

7.2. IT IS THEREFORE ORDERED that MICHAEL DWAYNE JONES is
appointed Permanent Managing Conservator ofthe child,
with the rights and duties specified in Chapter 153, subchapter B and in
§ 153.132, Texas Family Code; the Court finds this appointment to be in the best
interest of the child.

7.3. IT IS FURTHER ORDERED that as ofthe date ofthe signing ofthisjudgment,
the DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES is
REMOVED as a Managing and/or Possessory Conservator of the child,
in this case and is RELEASED from any
further duties, or responsibilities pursuant to any designation or authority that this

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 court may have granted to the Department during the pendency of this case and
prior to the date of this judgment.

8. Managing Conservatorship:
8.1. The Court finds that the appointment of a parent or both parents as managing
conservator would not be in the best interest of the child
because the appointment would significantly impair the child's physical health or
emotional development; and it would not be in the best interest of the child to
appoint a relative of the child or another person as managing conservator.

8.2. IT IS THEREFORE ORDERED that the DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES is appointed Permanent Managing Conservator of
the child with the rights and duties specified in
§ 153.371, Texas Family Code; the Court finds this appointment to be in the best
interest of the child.

8.2.1. IT IS ORDERED that, in addition to the rights and duties listed in
§ 153.371, Texas Family Code, the Department is authorized to consent to
the medical care for under § 266.004, Texas
Family Code.

8.3. IT IS ORDERED that each parent, who has not previously done so, provide
information regarding the medical history of the parent and parent's ancestors on
the medical history report form, pursuant to § 161.2021, Texas Family Code.

9. Termination of Parental Rights: DESTINYE GWEN KELLEY

9.1 The Court finds by clear and convincing evidence that Respondent Mother
DESTINYE GWEN KELLEY:

9.1.1. knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the children, pursuant to § 161.001 (1 )(D), Texas Family
Code;

9.1.2. engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangers the physical or emotional well-being
of the children, pursuant to § 161.001 (1 )(E), Texas Family Code;

9.1.3. failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of the
children who have been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the children's removal from the
parent under Chapter 262 for the abuse or neglect of the children, pursuant
to§ 161.001(1)(0), Texas Family Code.

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 9.2. IT IS THEREFORE ORDERED that the parent-child relationship between
Respondent Mother DESTINYE GWEN KELLEY, and the children,
is
hereby TERMINATED. The Court finds that such termination ofthe parent-child
relationship is in the best interest of the children.

10. Termination of Parental Rights:

7 .1. The Court finds by clear and convincing evidence that Respondent Father RICO
RONDALE HALL, SR.:

7.1.1. Executed before or after the suit filed an unrevoked or irrevocable
affidavit of relinquishment of parental rights, filed with the court on
September 29, 2014, as provided by Chapter 161, Texas Family Code.

7.2. IT IS THEREFORE ORDERED that the parent-child relationship between the
Respondent Father
hereby TERMINATED. The court finds that such termination of the
parent-child relationship is in the best interest ofthe child.

11. Termination of Parental Rights:

9.1 The Court finds by clear and convincing evidence that Respondent Father
MARQUIS STYLE RAND:

11.1.1. knowingly placed or knowingly allowed the child,
to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child, pursuant to
§ 161.001 (1 )(D), Texas Family Code;

11.1.2. engaged in conduct or knowingly placed the child, MAESEAN
KELLEY, with persons who engaged in conduct which endangers the
physical or emotional well-being ofthe child, pursuant to§ 161.001(l)(E),
Texas Family Code;

11.1.3. failed to comply with the provisions of a court order that specifically
established the actions necessary for the father to obtain the return of the
child, MAESEAN KELLEY, who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the
children's removal from the parent under Chapter 262 for the abuse or
neglect of the child, pursuant to§ 161.001(1)(0), Texas Family Code.

11.2. IT IS THEREFORE ORDERED that the parent-child relationship between
Respondent Father
hereby TERMINATED. The Court finds that such termination of
the parent-child relationship is in the best interest of the child.

Final Order in Suit Affecting Parent-Child Relationship 74587 I 300!11
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12. Termination of Parental Rights- UNKNOWN FATHER

7.1. The Court finds by clear and convincing evidence that Respondent UNKNOWN
FATHER:

7.1.1. after being served with citation, has not responded by timely filing an
admission of paternity or a counterclaim for paternity under Chapter 160;
and

7.1.2. he has not registered with the paternity registry under Chapter 160, Texas
Family Code.

7.2. IT IS THEREFORE ORDERED that the parent-child relationship between the
Respondent UNKNOWN FATHER and the children,
is hereby TERMINATED. The court finds that such
termination of the parent-child relationship is in the best interest of the children.

13. Required Information and Notices Regarding the Parties and Children

13.1. EXCEPT FOR THOSE PERSONS SPECIFICALLY EXEMPTED FROM
SUCH DISCLOSURE BELOW, EACH PERSON WHO IS A PARTY TO
THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE
COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE
PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS,
HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF
EMPLOYMENT, DRIVER'S LICENSE NUMBER AND WORK
TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE
OF AN INTENDED CHANGE IN ANY OF THE REQUIRED
INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE
STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE
THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR
COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME
TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE
NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER
THE DATE THAT THE PARTY KNOWS OF THE CHANGE.

13.2. THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER
PARTY, THE COURT, AND THE STATE CASE REGISTRY
CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS
ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR
ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.

13.3. NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU
MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF
CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER
WHO RELIES ON THE TERMS OF A COURT ORDER AND THE
OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE
IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE,

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 REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN
THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE
TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY
PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN
ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS
AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN
JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $
10,000.

13.4. FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO
PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE
CASE REGISTRY WITH THE CHANGE IN THE REQUIRED
INFORMATION MAY RESULT IN FURTHER LITIGATION TO
ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A
FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN
JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH
VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF
ATTORNEY'S FEES AND COURT COSTS.

13.5. Notice shall be given to the other party by delivering a copy of the notice to the
party by registered or certified mail, return receipt requested. Notice shall be
given to the Court by delivering a copy of the notice either in person to the clerk
of the Court or by registered or certified mail addressed to the clerk. Notice to the
State Case Registry shall not be required until the registry is established and
procedures for notification published by the Title IV -D agency under Chapter
234, Texas Family Code.

13.6. The children's information is provided above; the information required of each
party not exempted from such disclosure is:

13.6.1. Name: DESTINYE GWEN KELLEY
Social Security number: XXX-XX-XXXX
Driver's License: 09856364 TX
Current address: 336 Verde Drive, Clute, TX 77531
Horne telephone number: UNKNOWN
Name of employer: UNKNOWN
Address of employment: UNKNOWN
Work telephone number: UNKNOWN

13.6.2. Name: MICHAEL DWAYNE JONES
Social Security number: XXX-XX-X253
Driver's License: XXXXX705TX
Current address: 309 Nasturtium St, Lake Jackson, TX 77566
Home telephone number: UNKNOWN
Name of employer: ICS, Inc.
Address of employment: 2802 FM 523, Oyster Creek, TX 77541
Work telephone number: UNKNOWN

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 13.6.3. Name: RICO RONDALE HALL SR
Social Security number: XXX-XX-XXXX
Driver's License: 14817449 TX
Current address: 400 Flag Lake Drive, Apt 119, Lake Jackson,
TX 77566
Home telephone number: UNKNOWN
Name of employer: UNKNOWN
Address of employment: UNKNOWN
Work telephone number: UNKNOWN

13.6.4. Name: MARQUIS STYLE RAND
Social Security number: UNKNOWN
Driver's License: UNKNOWN
Current address: 4451 Lakeshore Drive, Shreveport, LA 71109
Home telephone number: UNKNOWN
Name of employer: UNKNOWN
Address of employment: UNKNOWN
Work telephone number: UNKNOWN

14. Warnings to Parties

FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR
POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF
COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY
CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500
FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF
ATTORNEY'S FEES AND COURT COSTS.

FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE
PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY
RESULT IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE
PAYMENT.

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY
DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS
TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR
ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-
ORDERED CHILD SUPPORT TO THAT PARTY.

15. Continuation of Court-Ordered Ad Litem or Advocate

15 .1. The Court finds that the children,
the subject ofthis suit will continue in care, and this Court will continue to review
the placement, progress and welfare of these children.

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001040
Page 8 ASAP 2013
 15.2. IT IS THEREFORE ORDERED that JULIE KETTERMAN, earlier
appointed as Attorney Ad Litem to represent the children, is continued in this
relationship until further order of this Court or final disposition of this suit.

15.3. IT IS THEREFORE ORDERED that CHRISTIAN LANDRY, earlier
appointed as Guardian Ad Litem to represent the children, is continued in this
relationship until further order of this Court or final disposition of this suit.

16. Dismissal of Other Court-Ordered Relationships

Except as otherwise provided in this order, any other existing court-ordered relationships
with the children the subject of this suit are hereby terminated and any parties claiming a
court-ordered relationship with the children are DISMISSED from this suit.

16.1. IT IS FURTHER ORDERED that the Brazoria County Auditor is hereby
authorized to pay LEENA BHASIN, as court appointed attorney for Respondent
Father, MARQUIS STYLE RAND, a sum to be awarded by the Court for her
hours of service to date in this cause.

16.2. IT IS FURTHER ORDERED that LEENA BHASIN is hereby discharged from
any further obligation as attorney for Respondent Father, MARQUIS STYLE
RAND, in this cause.

16.3. IT IS FURTHER ORDERED that the Brazoria County Auditor is hereby
authorized to pay PHILLIP LARMOND, as court appointed attorney for the
Unknown Father, a sum to be awarded by the Court for his hours of service to
date in this cause.

16.4. IT IS FURTHER ORDERED that PHILLIP LARMOND is hereby discharged
from any further obligation as attorney for Respondent Unknown Father, in this
cause.

17. Change of Placement

IT IS ORDERED that the Department shall immediately notify all parties, including all
attorneys and guardians, of its intent to remove the children from their current placement,
unless the removal is based upon an emergency. The notice must provide the reason for
removal, and once a new placement is determined, the Department shall immediately
provide all parties with contact information for the new placement. In the event of an
emergency removal, the Department is ORDERED to notify all parties of the removal
and request a hearing be held no later than the first working day after the date the child is
removed from the current placement.

18. Denial of Other Relief

IT IS ORDERED that all relief requested in this case, and not expressly granted, is
denied.

Final Order in Suit Affecting Parent-Child Relationship 74587 I 300\h
Page 9
001041
ASAP 2013
19. WARNING: APPEAL OF FINAL ORDER, PURSUANT TO§ 263.405, TEXAS
FAMILY CODE

A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN
APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD
RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR
ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF
APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF
APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN
THE DISMISSAL OF THE APPEAL.

20. NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS:

YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF
CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO
RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S
AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY
CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD
FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN
ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD
CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR
ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT
COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT
IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS
$10,000.

SIGNED and ENTERED this _ _ day of OCT 1 7 2014 , 2 1 .

Final Order in Suit Affecting Parent-Child Relationship 74587 I 300th
ASAP 2013
001042
Page 10
APPROVED AS TO FORM:

Attorney for Petitioner
Department of Family and Protective Services

5RL o..'\{a.c.Jud ..
JULIE KETTERMAN
Attorney Ad Litem for the Children

CHRISTIAN LANDRY =
Guardian Ad Litem for the Children

MARK JONES
Attorney for the Respondent Father MICHAEL DWAYNE JONES

Attorney for the Respondent Father MARQUIS STYLE RAND

Attorney for Unknown Father

Final Order in Suit Affecting Parent-Child Relationship 74587 I 300th

001043
Page 11 ASAP 2013
To: Page 2 of 2 2014-10-07 01 :18:00 (GMT) 18009932050 From: Larmond & Wilson, PLLC Attorneys

' ·, Ill 012/012
10/0B/2014 14:22

APPROVED AS TO FORM1

KENYATA RICO
Artorney tor Petitioner
Department of Family and Protective

STEPHANIE SAl\.!MONS
Authorized Representative of Petitioner

JULIE KETTERMAN
Attorney Ad Litem for lhe Children

CHRlSTIAN LANDRY
Guardian Ad Litem for the Children

MICHAEL DWAYNE JONES
Presumed Father of the Child MARQUES DAVEON JONES

MARK JONES
Attorney for tbe Respondent Father MICHAEL DWAYNE JONES

LEENA BHASIN
Attornty for the Respondent Father MARQillS STYLE RAND

AUomey:\:F_

001044
 _
_...,
___.,..............._..

APPROVED AS TO FORM:

KENYATA IUCO
AUorDey for Petitioner
Department of Family and Protective Servicu• _

... _._,
STEPHAN!B SAMMONS
Authorized Representadve of PetJdoncr

JUUi JCE1TERMAN . •.....-,::z,...... , --

· Attomcy Ad Litem for tbe Children

CH1US'I1AN LANDRY
Guardbm Ad them for the Children
:·. .
.......... _-

·- ..
·-···
MARfibNES
AUOmoy for lhe Respondent Father MICHAEL DWAYNE JONES

LEBNA BHASEN
.AUomey ror the Respondent Father MARQUIS STYLE RAND _..... ,.

PfD.LUP LARMOND 0 -·-::;;·-T
Attorney for Unkaown Father ....
..

·.
•ili5"-···

001045
\ ·, .
APPROVED AS TO FORM:

KENYATA RICO
Attorney for Petitioner
Department of Family and Protective Services

Authorized Representative of Petitioner

JULIE KETTERMAN
Attorney Ad Litem for the Children

Guardian Ad Litem for the Children

MICHAEL DWAYNE JONES
Presumed Father ofthe Child MARQUES DAVEON JONES

MARK JONES
Attorney for the Respondent Father MICHAEL DWAYNE JONES

Attorney for the Respondent Father MARQUIS STYLE RAND

Attorney for Unknown Father

Final Order In Sui! AlfecUng Parent-Child Relalionship 74587/300lh
Page 11 ASAP 2013

001046
 APPENDIX 2
Order Appointing Counsel
for Mother, signed
February 4, 2013
 7Lf5't7
CAUSE NO. £io;a.-6Ffl;d f:l _, 0

r-
..,_
on
I\,)
(o)
-,
0
::>o
-o
rt'1
9 ("')
0
c.n ::>o
I\,) 0

Order Appointing Attorney Ad Litem for Parent or Party 2009-43215/246111
Page 1 Amanuensis 4.0

000069 13357
 APPENDIX 3
Statement and Request for
Appointment of Counsel
and Order Appointing
Counsel, signed December
12, 2013
 NO. llf5<6/
.or
IN THE MAfi'ER OF THr: MP...-..'9--.J?JAGE DE;..

JOOTH JUDICIAL DISTRICT

STATEMENT AND REQUEST
....
_,__
FOR
. -
APPOINTMENT
- .. .OF COUNSEL

On this 12 ' '
of I>< c-e&ri0 eo ( . '
I
AD. . . .• I have· been advised
by the Judge of the 300th Judicial Court. of my rigllt t_o representation by counsel in the trial of the
charge ·against me. I I am without employ of 1Jl.Y owri choosing and I
hereby request the Court to appoint counsel for me.

SUBSCRIBED AND SWORN TO before me on the _ _ day of _ _D_EC_·_1_2_20_1_3-..3 _ _ __

ORDER APPOINTING COUNSEL

came on · to be heard the
Request for Appointment of Counsel of , Respondent in the above styled and
appeanng to #le that Respond tis' without means to employ counsel and i.s indigent,
is hereby appointed and assigned to represent Respondent in
the enforcement pending this trial court,.including but not limited to representing Respondent
on trial on the merits and compli3!1ce hearings: This appointment shall remain in effect until further
. '
Order of the Court.· THE CONJElvf.PT/COMPLIANCE. HEARING IS SET.

THE DAy OF DEC 1 2 2013 ' - - -

JUDGE PRESIDING

000226 1159b
 NO. _ _.t;_ __
\ _{..,J

.. ______ 2-. __ ,...,..._ ______ __....._..... .. -·:·- .....
· IN'THE MA TIER OF THE MARR1AGE OF:
. '·
' ,
,.
•i
IN
AND BRAZORIA COUNTY, TEXAS

300ltl JUDICIAL DISTRICT

· QUESTIONNAIRE- FINANCIAL RESO,U,CES .

l. AGE: ;) q MARRIED:
NUMBER OF DEPENDENTS: q
SINGLE:
AGES:
.)"
l:!J) q \ 1 l -?-
DIVORCE:
,=S - -
.. -

2. EMPLOYED: YES ' " WHERE: . , . ,
HOW LONG: · ·· , · HOURLY RATE:
------------------
3. IS SPOUSE EMPLOYED: YES___ NO WHERE:----------
HOW LONG:-...,..........-------:--- HOURLY R A T E : - - - - - - - - - -

4. LIST PROPERTY
..

l.t V.J .,:, I -,l..!l.,;;

5. LIST OF NECESSARY MONTHLY E X P E N S E S : - - - - - - - - - - - - - - - -

\' l ... ' j i
\,
1" ,1 . ·J...
:\ 'I ! ... ,. \ 4

6. LIST OUTSTANDING
!..
OBLIGA:TIONS
"" • £ '• . ·. \! : (
OR DEBTS:.;.......·
-
--------------
I • •' "'(to. ......_. A

,,
7. AREYOUONBOND: YES_
. . __ NO ·-'Vf· . AMOUNT:$ _ _ _ _ _ _ __
WHO POSTED: A311 WHEN: ----::----"-'\-----"--·._ __
. '- i \ ; -.f
·)ri$ 0
{;

'r. ,. •
l • .....

>,/ •
..

I
\ l
··{,r.:..
1,;
'[i
r '

't
;.,[; '
-

J !/ '
I '
...
•

SUBSCRI;BED AND .SWORN "TO me on the ___ d!Jy of _ _ _ _ _ __
I :' •

RHONDA BARCHAK, DISTRICT CLERK
" BRAZORIA COUNTY, TEXAS .
I '
I ', t:. i'
: j BY: .'l. l ... -U
Deputy

000227
 APPENDIX 4
Tex. Fam. Code § 101.007
§ 101.007. Clear and Convincing Evidence, TX FAMILY § 101.007

Vernon's Texas Statutes and Codes Annotated
Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle A. General Provisions
Chapter 101. Definitions

V.T.C.A., Family Code § 101.007

§ 101.007. Clear and Convincing Evidence

Currentness

“Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.

Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.

Notes of Decisions (43)

V. T. C. A., Family Code § 101.007, TX FAMILY § 101.007
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
 APPENDIX 5
Tex. Fam. Code § 107.013
§ 107.013. Mandatory Appointment of Attorney ad Litem for Parent, TX FAMILY § 107.013

Vernon's Texas Statutes and Codes Annotated
Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle A. General Provisions
Chapter 107. Special Appointments and Social Studies (Refs & Annos)
Subchapter B. Appointments in Certain Suits (Refs & Annos)
Part 1. Appointments in Suits by Governmental Entity

V.T.C.A., Family Code § 107.013

§ 107.013. Mandatory Appointment of Attorney ad Litem for Parent

Effective: September 1, 2013
Currentness

(a) In a suit filed by a governmental entity under Subtitle E 1 in which termination of the parent-child relationship or the
appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of:

(1) an indigent parent of the child who responds in opposition to the termination or appointment;

(2) a parent served by citation by publication;

(3) an alleged father who failed to register with the registry under Chapter 160 and whose identity or location is unknown; and

(4) an alleged father who registered with the paternity registry under Chapter 160, but the petitioner's attempt to personally
serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner
has been unsuccessful.

(b) If both parents of the child are entitled to the appointment of an attorney ad litem under this section and the court finds that
the interests of the parents are not in conflict, the court may appoint an attorney ad litem to represent the interests of both parents.

(c) Repealed by Acts 2013, 83rd Leg., ch. 810 (S.B. 1759), § 11.

(d) 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.

(e) A parent who the court has determined is indigent for purposes of this section is presumed to remain indigent for the duration
of the suit and any subsequent appeal unless the court, after reconsideration on the motion of the parent, the attorney ad litem
for the parent, or the attorney representing the governmental entity, determines that the parent is no longer indigent due to a
material and substantial change in the parent's financial circumstances.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 107.013. Mandatory Appointment of Attorney ad Litem for Parent, TX FAMILY § 107.013

Credits
Added by Acts 1995, 74th Leg., ch. 751, § 15, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 561, § 3, eff. Sept.
1, 1997; Acts 2001, 77th Leg., ch. 821, § 2.11, eff. June 14, 2001; Acts 2003, 78th Leg., ch. 262, § 1, eff. Sept. 1, 2003; Acts
2005, 79th Leg., ch. 268, § 1.06, eff. Sept. 1, 2005; Acts 2007, 80th Leg., ch. 526, § 1, eff. June 16, 2007; Acts 2011, 82nd
Leg., ch. 75 (H.B. 906), § 1, eff. Sept. 1, 2011; Acts 2013, 83rd Leg., ch. 810 (S.B. 1759), §§ 2, 11, eff. Sept. 1, 2013.

Notes of Decisions (65)

Footnotes
1 V.T.C.A., Family Code § 261.001 et seq.
V. T. C. A., Family Code § 107.013, TX FAMILY § 107.013
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
 APPENDIX 6
Tex. Fam. Code § 153.131
§ 153.131. Presumption That Parent to be Appointed..., TX FAMILY § 153.131

Vernon's Texas Statutes and Codes Annotated
Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle B. Suits Affecting the Parent-Child Relationship
Chapter 153. Conservatorship, Possession, and Access (Refs & Annos)
Subchapter C. Parent Appointed as Sole or Joint Managing Conservator

V.T.C.A., Family Code § 153.131

§ 153.131. Presumption That Parent to be Appointed Managing Conservator

Currentness

(a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not
be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional
development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing
conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best
interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under
this subsection.

Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 751, § 32, eff. Sept.
1, 1995; Acts 1997, 75th Leg., ch. 1193, § 20, eff. Sept. 1, 1997.

Notes of Decisions (303)

V. T. C. A., Family Code § 153.131, TX FAMILY § 153.131
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
 APPENDIX 7
Tex. Fam. Code § 161.001
§ 161.001. Involuntary Termination of Parent-Child Relationship, TX FAMILY § 161.001

Vernon's Texas Statutes and Codes Annotated
Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle B. Suits Affecting the Parent-Child Relationship
Chapter 161. Termination of the Parent-Child Relationship (Refs & Annos)
Subchapter A. Grounds

V.T.C.A., Family Code § 161.001

§ 161.001. Involuntary Termination of Parent-Child Relationship

Effective: September 1, 2011
Currentness

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:

(1) that the parent has:

(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;

(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return,
without providing for the adequate support of the child, and remained away for a period of at least three months;

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and
remained away for a period of at least six months;

(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;

(G) abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot
be ascertained by the exercise of reasonable diligence;

(H) voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during
her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 161.001. Involuntary Termination of Parent-Child Relationship, TX FAMILY § 161.001

mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to
support the child since the birth;

(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261; 1

(J) been the major cause of:

(i) the failure of the child to be enrolled in school as required by the Education Code; or

(ii) the child's absence from the child's home without the consent of the parents or guardian for a substantial length of
time or without the intent to return;

(K) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as
provided by this chapter;

(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision,
for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or
adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation
of one of the following Penal Code sections:

(i) Section 19.02 (murder);

(ii) Section 19.03 (capital murder);

(iii) Section 19.04 (manslaughter);

(iv) Section 21.11 (indecency with a child);

(v) Section 22.01 (assault);

(vi) Section 22.011 (sexual assault);

(vii) Section 22.02 (aggravated assault);

(viii) Section 22.021 (aggravated sexual assault);

(ix) Section 22.04 (injury to a child, elderly individual, or disabled individual);

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 161.001. Involuntary Termination of Parent-Child Relationship, TX FAMILY § 161.001

(x) Section 22.041 (abandoning or endangering child);

(xi) Section 25.02 (prohibited sexual conduct);

(xii) Section 43.25 (sexual performance by a child);

(xiii) Section 43.26 (possession or promotion of child pornography);

(xiv) Section 21.02 (continuous sexual abuse of young child or children);

(xv) Section 20A.02(a)(7) or (8) (trafficking of persons); and

(xvi) Section 43.05(a)(2) (compelling prostitution);

(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's
conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;

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

(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;

(O) failed to comply with the provisions 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
of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under
Chapter 262 for the abuse or neglect of the child;

(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the
health or safety of the child, and:

(i) failed to complete a court-ordered substance abuse treatment program; or

(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 161.001. Involuntary Termination of Parent-Child Relationship, TX FAMILY § 161.001

(Q) knowingly engaged in criminal conduct that has resulted in the parent's:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing
the petition;

(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance
legally obtained by prescription, as defined by Section 261.001;

(S) voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing
an intent to return for the child; or

(T) been convicted of:

(i) the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another
state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are
substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code;

(ii) criminal attempt under Section 15.01, Penal Code, or under a law of another state, federal law, the law of a foreign
country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of
an offense under Section 15.01, Penal Code, to commit the offense described by Subparagraph (i); or

(iii) criminal solicitation under Section 15.03, Penal Code, or under a law of another state, federal law, the law of a
foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the
elements of an offense under Section 15.03, Penal Code, of the offense described by Subparagraph (i); and

(2) that termination is in the best interest of the child.

Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1995, 74th Leg., ch. 709, § 1, eff. Sept. 1,
1995; Acts 1995, 74th Leg., ch. 751, § 65, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 575, § 9, eff. Sept. 1, 1997; Acts 1997,
75th Leg., ch. 1022, § 60, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1087, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch.
1390, § 18, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 809, § 1, eff. Sept. 1, 2001; Acts 2005, 79th Leg., ch. 508, § 2, eff.
Sept. 1, 2005; Acts 2007, 80th Leg., ch. 593, § 3.30, eff. Sept. 1, 2007; Acts 2009, 81st Leg., ch. 86, § 1, eff. Sept. 1, 2009;
Acts 2011, 82nd Leg., ch. 1 (S.B. 24), § 4.02, eff. Sept. 1, 2011.

Notes of Decisions (1879)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4
§ 161.001. Involuntary Termination of Parent-Child Relationship, TX FAMILY § 161.001

Footnotes
1 V.T.C.A., Family Code § 261.301 et seq.
V. T. C. A., Family Code § 161.001, TX FAMILY § 161.001
Current through the end of the 2013 Third Called Session of the 83rd Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5
 APPENDIX 8
Tex. R. App. P. 20.1
20.1. Civil Cases, TX R APP Rule 20.1

Vernon's Texas Rules Annotated
Texas Rules of Appellate Procedure
Section One. General Provisions
Rule 20. When Party is Indigent (Refs & Annos)

TX Rules App.Proc., Rule 20.1

20.1. Civil Cases

Currentness

(a) Establishing Indigence.

(1) By Certificate. If the appellant proceeded in the trial court without advance payment of costs pursuant to a certificate
under Texas Rule of Civil Procedure 145(c) confirming that the appellant was screened for eligibility to receive free legal
services under income guidelines used by a program funded by Interest on Lawyers Trust Accounts or the Texas Access to
Justice Foundation, an additional certificate may be filed in the appellate court confirming that the appellant was rescreened
after rendition of the trial court's judgment and again found eligible under program guidelines. A party's affidavit of inability
accompanied by the certificate may not be contested.

(2) By Affidavit. A party who cannot pay the costs in an appellate court may proceed without advance payment of costs if:

(A) the party files an affidavit of indigence in compliance with this rule;

(B) the claim of indigence is not contestable, is not contested, or, if contested, the contest is not sustained by written
order; and

(C) the party timely files a notice of appeal.

(3) By Presumption of Indigence. In a suit filed by a governmental entity in which termination of the parent-child relationship
or managing conservatorship is requested, a parent determined by the trial court to be indigent is presumed to remain indigent
for the duration of the suit and any subsequent appeal, as provided by section 107.013 of the Family Code, and may proceed
without advance payment of costs.

(b) Contents of Affidavit. The affidavit of indigence must identify the party filing the affidavit and must state what amount of
costs, if any, the party can pay. The affidavit must also contain complete information about:

(1) the nature and amount of the party's current employment income, government-entitlement income, and other income;

(2) the income of the party's spouse and whether that income is available to the party;

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
20.1. Civil Cases, TX R APP Rule 20.1

(3) real and personal property the party owns;

(4) cash the party holds and amounts on deposit that the party may withdraw;

(5) the party's other assets;

(6) the number and relationship to the party of any dependents;

(7) the nature and amount of the party's debts;

(8) the nature and amount of the party's monthly expenses;

(9) the party's ability to obtain a loan for court costs;

(10) whether an attorney is providing free legal services to the party without a contingent fee;

(11) whether an attorney has agreed to pay or advance court costs; and

(12) if applicable, the party's lack of the skill and access to equipment necessary to prepare the appendix, as required by
Rule 38.5(d).

(c) When and Where Affidavit Filed.

(1) Appeals. An appellant must file the affidavit of indigence in the trial court with or before the notice of appeal. The
prior filing of an affidavit of indigence in the trial court pursuant to Texas Rule of Civil Procedure 145 does not meet the
requirements of this rule, which requires a separate affidavit and proof of current indigence, except in cases in which a
presumption of indigence has been established as provided by Rule 20.1(a)(3). An appellee who is required to pay part of
the cost of preparation of the record under Rule 34.5(b)(3) or 34.6(c)(3) must file an affidavit of indigence in the trial court
within 15 days after the date when the appellee becomes responsible for paying that cost.

(2) Other Proceedings. In any other appellate court proceeding, except in cases in which a presumption of indigence has been
established as provided by Rule 20.1(a)(3), a petitioner must file the affidavit of indigence in the court in which the proceeding
is filed, with or before the document seeking relief. A respondent who requests preparation of a record in connection with
an appellate court proceeding must file an affidavit of indigence in the appellate court within 15 days after the date when
the respondent requests preparation of the record, except in cases in which a presumption of indigence has been established
as provided by Rule 20.1(a)(3).

(3) Extension of Time. The appellate court may extend the time to file an affidavit of indigence if, within 15 days after the
deadline for filing the affidavit, the party files in the appellate court a motion complying with Rule 10.5(b). But the court

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20.1. Civil Cases, TX R APP Rule 20.1

may not dismiss the appeal or affirm the trial court's judgment on the ground that the appellant has failed to file an affidavit
or a sufficient affidavit of indigence unless the court has first provided the appellant notice of the deficiency and a reasonable
time to remedy it.

(d) Duty of Clerk.

(1) Trial Court Clerk. If the affidavit of indigence is filed with the trial court clerk under (c)(1), the clerk must promptly send
a copy of the affidavit to the appropriate court reporter.

(2) Appellate Court Clerk. If the affidavit of indigence is filed with the appellate court clerk and if the filing party is requesting
the preparation of a record, the appellate court clerk must:

(A) send a copy of the affidavit to the trial court clerk and the appropriate court reporter; and

(B) send to the trial court clerk, the court reporter, and all parties, a notice stating the deadline for filing a contest to the
affidavit of indigence.

(e) Contest to Indigence.

(1) If Affidavit Filed. The clerk, the court reporter, the court recorder, or any party may challenge an affidavit that is not
accompanied by a TAJF certificate by filing--in the court in which the affidavit was filed--a contest to the affidavit. The
contest must be filed on or before the date set by the clerk if the affidavit was filed in the appellate court, or within 10 days
after the date when the affidavit was filed if the affidavit was filed in the trial court. The contest need not be sworn.

(2) If Indigence Presumed. The clerk, the court reporter, the court recorder, or any party may challenge a presumption of
indigence that has been established as provided by Rule 20.1(a)(3) by filing a contest in the trial court. The contest must
be filed within three days after a notice of appeal is filed. The contest must state specific facts demonstrating a good faith
belief that the parent is no longer indigent due to a material and substantial change in the parent's financial circumstances.
The contest need not be sworn.

(f) No Contest Filed. Unless a contest is timely filed, no hearing will be conducted, the affidavit's allegations will be deemed
true, and the party will be allowed to proceed without advance payment of costs.

(g) Burden of Proof.

(1) If Affidavit Filed. If a contest is filed, the party who filed the affidavit of indigence must prove the affidavit's allegations.
If the indigent party is incarcerated at the time the hearing on a contest is held, the affidavit must be considered as evidence
and is sufficient to meet the indigent party's burden to present evidence without the indigent party's attending the hearing.

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20.1. Civil Cases, TX R APP Rule 20.1

(2) If Indigence Presumed. If a presumption of indigence has been established as provided by Rule 20.1(a)(3). the party filing
the contest must prove that the parent is no longer indigent due to a material and substantial change in the parent's financial
circumstances since the most recent determination of indigence.

(h) Decision in Appellate Court. If the affidavit of indigence is filed in an appellate court and a contest is filed, the court may:

(1) conduct a hearing and decide the contest;

(2) decide the contest based on the affidavit and any other timely filed documents;

(3) request the written submission of additional evidence and, without conducting a hearing, decide the contest based on
the evidence; or

(4) refer the matter to the trial court with instructions to hear evidence and grant the appropriate relief.

(i) Hearing and Decision in the Trial Court.

(1) Notice Required. If the affidavit of indigence is filed in the trial court or a presumption of indigence has been established
as provided by Rule 20.1(a)(3) and a contest is filed, or if the appellate court refers a contest to the trial court, the trial court
must set a hearing and notify the parties and the appropriate court reporter of the setting.

(2) Time for Hearing. The trial court must either conduct a hearing or sign an order extending the time to conduct a hearing:

(A) within 10 days after the contest was filed, if initially filed in the trial court; or

(B) within 10 days after the trial court received a contest referred from the appellate court.

(3) Extension of Time for Hearing. The time for conducting a hearing on the contest must not be extended for more than
20 days from the date the order is signed.

(4) Time for Written Decision; Effect. Unless--within the period set for the hearing--the trial court signs an order sustaining
the contest, the affidavit's allegations will be deemed true or the presumption of indigence will continue unabated, and the
party will be allowed to proceed without advance payment of costs.

(j) Review of Trial Court's Decision.

(1) Motion. If the trial court sustains a contest, the party claiming indigence may seek review of the court's order by filing a
motion challenging the order with the appellate court without advance payment of costs.

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20.1. Civil Cases, TX R APP Rule 20.1

(2) Time for Filing; Extension. The motion must be filed within 10 days after the order sustaining the contest is signed, or
within 10 days after the notice of appeal is filed, whichever is later. The appellate court may extend the time for filing on
motion complying with Rule 10.5(b).

(3) Record. Within three days after a motion is filed, the trial court clerk and court reporter, respectively, must prepare,
certify, and file the clerk's record and reporter's record of the indigence hearing, if any, and the hearing on the contest. The
record must be provided without advance payment of costs.

(4) Ruling by Operation of Law. If the appellate court does not deny the motion within 10 days after it is filed, the motion
is granted by operation of law

(5) No Review of Order Overruling Contest. An order overruling a contest is not subject to appellate review.

(k) Record to be Prepared Without Prepayment. If a party establishes indigence, the trial court clerk and the court reporter must
prepare the appellate record without prepayment.

(l) Partial Payment of Costs. If the party can pay or give security for some of the costs, the court must order the party, in writing,
to pay or give security, or both, to the extent of the party's ability. The court will allocate the payment among the officials to
whom payment is due.

(m) Later Ability to Pay. If a party who has proceeded in the appellate court without having to pay all the costs is later able to
pay some or all of the costs, the appellate court may order the party to pay costs to the extent of the party's ability.

(n) Costs Defined. As used in this rule, costs means:

(1) a filing fee relating to the case in which the affidavit of inability is filed; and

(2) the charges for preparing the appellate record in that case.

Credits
Eff. Sept. 1, 1997. Amended by Supreme Court March 10, 2008, and Aug. 20, 2008, eff. Sept. 1, 2008. Approved by the Court
of Criminal Appeals Sept. 30, 2008, eff. Sept. 30, 2008. Amended by Supreme Court Aug. 31, 2011, eff. Sept. 1, 2011; Feb.
13, 2012, eff. March 1, 2012.

Editors' Notes

NOTES AND COMMENTS

Comment to 2008 change: Subdivision 20.1(a) is added to provide, as in Texas Rule of Civil Procedure 145, that
an affidavit of indigence accompanied by an IOLTA or other Texas Access to Justice Foundation certificate cannot

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20.1. Civil Cases, TX R APP Rule 20.1

be challenged. Subdivision 20.1(c)(1) is revised to clarify that an affidavit of indigence filed to proceed in the trial
court without advance payment of costs is insufficient to establish indigence on appeal; a separate affidavit must be
filed with or before the notice of appeal. Subdivision 20.1(c)(3) is revised to provide that an appellate court must give
an appellant who fails to file a proper appellate indigence affidavit notice of the defect and an opportunity to cure it
before dismissing the appeal or affirming the judgment on that basis. See Higgins v. Randall County Sheriff's Office,
193 S.W.3d 898 (Tex. 2006). The limiting phrase “under (c)(2)” in Subdivision 20.1(d)(2) is deleted to clarify that
the appellate clerk's duty to forward copies of the affidavit to the trial court clerk and the court reporter, along with a
notice setting a deadline to contest the affidavit, applies to affidavits on appeal erroneously filed in the appellate court,
not only to affidavits in other appellate proceedings properly filed in the appellate court under subdivision 20.1(c)
(2). Although Subdivision 3.1(g) defines “court reporter” to include court recorder, subdivision 20.1(e) is amended
to make clear that a court recorder can contest an affidavit.

Notes of Decisions (208)

Rules App. Proc., Rule 20.1, TX R APP Rule 20.1
Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 6
 APPENDIX 9
Tex. R. Civ. P. 145
Rule 145. Affidavit on Indigency, TX R RCP Rule 145

Vernon's Texas Rules Annotated
Texas Rules of Civil Procedure
Part II. Rules of Practice in District and County Courts
Section 6. Costs and Security Therefor

TX Rules of Civil Procedure, Rule 145

Rule 145. Affidavit on Indigency

Currentness

(a) Affidavit. In lieu of paying or giving security for costs of an original action, a party who is unable to afford costs must file
an affidavit as herein described. A “party who is unable to afford costs” is defined as a person who is presently receiving a
governmental entitlement based on indigency or any other person who has no ability to pay costs.

Upon the filing of the affidavit, the clerk must docket the action, issue citation and provide such other customary services as
are provided any party.

(b) Contents of Affidavit. The affidavit must contain complete information as to the party's identity, nature and amount of
governmental entitlement income, nature and amount of employment income, other income, (interest, dividends, etc.), spouse's
income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and
monthly expenses. The affidavit shall contain the following statements: “I am unable to pay the court costs. I verify that the
statements made in this affidavit are true and correct.” The affidavit shall be sworn before a notary public or other officer
authorized to administer oaths. If the party is represented by an attorney on a contingent fee basis, due to the party's indigency,
the attorney may file a statement to that effect to assist the court in understanding the financial condition of the party.

(c) IOLTA Certificate. If the party is represented by an attorney who is providing free legal services, without contingency,
because of the party's indigency and the attorney is providing services either directly or by referral from a program funded
by the Interest on Lawyers Trust Accounts (IOLTA) program, the attorney may file an IOLTA certificate confirming that the
IOLTA-funded program screened the party for income eligibility under the IOLTA income guidelines. A party's affidavit of
inability accompanied by an attorney's IOLTA certificate may not be contested.

(d) Contest. The defendant or the clerk may contest an affidavit that is not accompanied by an IOLTA certificate by filing a
written contest giving notice to all parties and, in an appeal under Texas Government Code, section 28.052, notice to both the
small claims court and the county clerk. A party's affidavit of inability that attests to receipt of government entitlement based
on indigency may be contested only with respect to the veracity of the attestation. Temporary hearings will not be continued
pending the filing of the contest. If the court finds at the first regular hearing in the course of the action that the party (other
than a party receiving a governmental entitlement based on indigency) is able to afford costs, the party must pay the costs of
the action. Reasons for such a finding must be contained in an order. Except with leave of court, no further steps in the action
will be taken by a party who is found able to afford costs until payment is made. If the party's action results in monetary award,
and the court finds sufficient monetary award to reimburse costs, the party must pay the costs of the action. If the court finds
that another party to the suit can pay the costs of the action, the other party must pay the costs of the action.

(e) Attorney's Fees and Costs. Nothing herein will preclude any existing right to recover attorney's fees, expenses or costs from
any other party.

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Rule 145. Affidavit on Indigency, TX R RCP Rule 145

Credits
Oct. 29, 1940, eff. Sept. 1, 1941. Amended by orders of Dec. 5, 1983, eff. April 1, 1984; July 15, 1987, Jan. 1, 1988; Sept.
19, 2005, eff. Dec. 1, 2005.

Notes of Decisions (59)

Vernon's Ann. Texas Rules Civ. Proc., Rule 145, TX R RCP Rule 145
Current with amendments received through 3/15/2015

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2