In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00041-CV
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IN THE INTEREST OF K.S., J.H., K.M.S., M.S., B.C.S. AND A.S.
__________________________________________________________________
On Appeal from County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 19-10-14600-CV
__________________________________________________________________
MEMORANDUM OPINION
Following a trial by jury, the trial court signed an order terminating
Mother’s and Father’s parent-child relationships with Kurt, James, Kara,
Miles, Bridget, and Adrian. 1 The jury found that terminating the
relationships to be in the best interest of each child.
1To protect the identities of the minors, we use pseudonyms to refer
to them. See Tex. R. App. P. 9.8(b)(2). The trial court’s order reflects the
jury found Mother’s and Father’s parental rights to their children should
be terminated on various grounds, which we do not address since Mother
and Father have not challenged the jury’s findings on the grounds the
trial court terminated them in the appeal.
1
After the trial court rendered judgment on the jury’s verdict,
Mother and Father filed appeals. After that, they filed separate but
identical briefs. Mother and Father raise two issues in their briefs. In
issue one, they argue the trial court abused its discretion when, on its
own motion, it found extraordinary circumstances required the children
to remain in the temporary managing conservatorship of the Department
of Family and Protective Services (the Department), which allowed the
trial court to avoid automatically dismissing the Department’s suit under
the mandatory dismissal deadline imposed by section 263.401 of the
Texas Family Code. 2
In issue two, Mother and Father complain about an order
consolidating Trial Court Cause Number 21-03-03100-CV (the suit
involving Adrian) into Trial Court Cause Number 19-10-14600-CV (the
suit involving Kurt, James, Kara, Miles, and Bridget). Mother and
Father argue the consolidation was prejudicial because it resulted in the
attorneys who represented them in the trial court rendering ineffective
assistance of counsel when they failed to object when the trial court
2See Tex. Fam. Code Ann. § 263.401.
2
announced it was consolidating the cases, which resulted in the case
involving Adrian being tried along with the earlier filed case involving
Mother’s and Father’s five other children in the trial that began in
November 2021. We conclude Mother’s and Father’s arguments were
either not properly preserved or that they lack merit, so we affirm.
Background
In October 2019, the Department filed a petition asking the trial
court to sign an order allowing the Department to remove Kurt, James,
Kara, and Miles from their home and to name the Department as their
temporary managing conservator. The next day, the trial court signed an
order authorizing the Department to remove the four children named in
the Department’ petition from Mother’s and Father’s home after finding
an immediate danger existed to their health. The trial court named the
Department as their temporary sole managing conservator. In due
course, the trial court appointed separate attorneys to represent Mother
and Father in the case involving Kurt, James, Kara, and Miles.
Later that same month, Mother had a fifth child, Bridget. Shortly
after that, the Department amended its petition and asked the trial court
to terminate Mother’s and Father’s rights to Bridget too. In a
3
supplemental order, the trial court named the Department as Bridget’s
temporary sole managing conservator.
Eight months later, Mother and Father demanded a trial by jury.
In July 2020, the judge of the 418th District Court transferred the case
“out of the 418th District Court and into County Court at Law Number 3
(Transferee Court) for purposes of docket equalization.”
On October 30, 2020, the judge of the County Court at Law Number
3 conducted a permanency hearing. During the hearing, the trial court
advised the attorneys that the court, “on my own motion,” was “going to
grant a general extension” and “finding extraordinary circumstances”
based on “a combination . . . but not limited to the follow[ing]:”
1. “the case was transferred to this court from the original court
very late in the case, almost eight - - well, actually almost ten
months into it.”
2. “We also have a jury demand that requires special consideration
during this COVID period. . . I already have two or three juries that
have to be scheduled before the end of the year. So I would not
logistically be able to do that.”
3. “[W]e have multiple potential caregivers for these children. We
have a pending ICPC home study out of the state of New
Hampshire, and I think that the parties have not had an
opportunity to fully mediate this case and address all possible
outcomes.”
4
During the same hearing—which we note the court conducted one
year and two days after the trial court appointed the Department as
temporary sole managing conservator of Mother’s and Father’s
children—the judge found “extraordinary circumstances” required the
children to remain “in the temporary managing conservatorship of the
[Department] and that continuing the appointment of the Department as
temporary managing conservator is in the best interest of the children.”
In the same order, the trial court set the trial for April 2021. The trial
court also established a new date on which the case would be dismissed
by operation of law if it was not tried.
In March 2021, Mother gave birth to her sixth child, Adrian.
Shortly after Mother had that child, the Department filed a petition in
the County Court at Law Number 3 seeking to terminate Mother’s and
Father’s parent-child relationship with Adrian. That same day, the trial
court, by emergency order, named the Department as Adrian’s temporary
sole managing conservator.
Between March and September 2021, the trial court conducted
additional permanency hearings. In these hearings, the trial court signed
orders continuing the Department’s appointment as the temporary
5
managing conservator of the children, set a new trial date for November
15, 2021, and established a December 1, 2021, as the new date on which
the case would be automatically dismissed by operation of law if not tried.
The parties tried the case to a jury beginning in November 2021.
When the trial ended, the jury answered several issues in favor of the
Department’s allegations claiming there were grounds that justified
terminating Mother’s and Father’s parent-child relationship with each
child subject to the consolidated suit. Following the trial, the trial court
signed an order terminating Mother’s and Father’s parental rights to
their children, Kurt, James, Kara, Miles, Bridget, and Adrian.
Analysis
Did the trial court abuse its discretion
by extending the dismissal deadline?
Section 263.401 of the Texas Family Code creates an automatic
dismissal deadline that generally requires trial courts to dismiss
parental rights termination cases within a year (more or less) of the date
the trial court authorized the Department to remove from a child from a
parent’s home. 3 The reason we refer to the period as a year (more or less)
3Id. § 263.401.
6
is that the automatic dismissal date allows the trial court to retain the
suit on its docket until a defined statutory deadline that ends on the first
Monday after the first anniversary of the date the trial court rendered
the temporary order appointing the Department as child’s temporary
managing conservator. 4 Then, subsection (b) of the automatic dismissal
statute provides that unless the trial has started by the statutory
deadline, the trial court
may not retain the suit on the court’s docket after the [date
the trial was scheduled to have commenced] unless the court
finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the
department and that continuing the appointment of the
department as temporary managing conservator is in the best
interest of the child. (emphasis added). 5
In this case, the trial court conducted a permanency hearing in the
consolidated case involving Mother’s and Father’s six children on October
22, 2020. During the hearing, the trial court found that extraordinary
circumstances existed to retain Trial Court Cause Number 19-10-14600-
CV on the court’s docket. The court ordered the Department to remain as
the temporary managing conservator of Mother’s and Father’s children,
4Id. § 263.401(a).
5Id. § 263.401(b).
7
and it found that leaving the Department as their temporary managing
conservator to be in the children’s best interest.
Turning to our analysis of Mother’s and Father’s arguments, we
note the automatic dismissal statute, section 263.401, provides courts
and parties with little to no guidance about what procedures parties are
to follow when they need extensions that result from circumstances that
may arise over the life of a case. 6 For example, no definition exists in
section 263.401 for the term extraordinary circumstances. 7 Yet since the
extensions mentioned in section 263.401 are much like continuances, we
will apply an abuse of discretion standard to the ruling that Mother and
Father challenge in their appeal to the extension the trial court granted
here. 8
“The test for abuse of discretion is not whether, in the opinion of the
reviewing court, the facts present an appropriate case for the trial court’s
action. Rather, it is a question of whether the court acted without
§ 263.401.
6Id.
7As commonly understood, the term means “more than ordinary :
not of the ordinary order or pattern or norm.” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 807 (2002).
8In re D.W., 249 S.W.3d 625, 647 (Tex. App.―Fort Worth 2008, pet.
denied).
8
reference to any guiding rules and principles.” 9 “The mere fact that a trial
judge may decide a matter within [their] discretionary authority in a
different manner than an appellate judge in a similar circumstance does
not demonstrate that an abuse of discretion has occurred.” 10
In our opinion, the circumstances the led the trial court to grant the
extension fall within the ordinary meaning of the word extraordinary
since the circumstances shown in the record were certainly not within
the ordinary order, pattern, or norm. During the hearing, the trial court
articulated problems it was having obtaining juries because of the Covid-
19 pandemic complicated further by the fact that other juries were
already scheduled ahead of the Mother’s and Father’s case that were on
the court’s docket. The problems in scheduling jury trials during the
Covid-19 pandemic were complicated by the fact that two of the children
involved in the case were involved in home studies being conducted in
another state, studies that had reportedly resulted in their own delays.
9Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
10Id. at 242.
9
Mother and Father suggest the trial court abused its discretion in
failing to focus on the needs of their children during the permanency
hearing when it decided to grant the extension and focused instead on
the needs of the court. Certainly, the discussion that occurred in the
hearing reflect the trial court was concerned about when it could schedule
the case for trial given the problems associated with getting jurors during
a pandemic, but the scheduling problems associated with the need for
jurors is a problem linked to Mother’s and Father’s demand to have a jury
resolve the dispute, not a demand made by the court. And while the trial
court never specifically discussed its thoughts about the children’s needs,
there is testimony the trial court heard during the hearing about the
children’s needs and their progress while the children were in the
Department’s care. 11 Mother and Father also never asked the trial court
11During the hearing, the Department’s attorney told the court that
the Department was awaiting paperwork from studies of homes involving
relatives of the children, some of whom were in other states. According
to the Department’s caseworker, who was present during the hearing,
the Department was waiting on “everything to come back from [another]
state.” She also described the Department’s current goals and alternative
goals for the children, explaining that three of the four children have
special needs, needs the caseworker described. The caseworker testified
that in her opinion, it was in the best interest of the children for the court
10
to make specific findings beyond those the trial court orally stated in the
hearing to explain why it was finding extraordinary circumstances
existed to justify retaining the case on its docket beyond the statutory
deadline. 12
Mother’s and Father’s attorneys cross-examined the caseworker in
the hearing, but they called no witnesses of their own. In their briefs, the
appellants point to no testimony in the record to support any claim that
the trial court ignored any of the testimony before it in the hearing (or in
any of the proceedings before the hearing occurred) that addressed the
children’s needs.
In addition to criticizing the trial court for not focusing on the
children’s needs, Mother and Father argue the trial court abused its
discretion by failing to make the specific findings required by section
263.401(b) to support its extraordinary circumstances finding. While we
disagree the trial court did not make the findings that are required by
to continue the Department’s appointment as the children’s temporary
managing conservator.
12See Tex. R. Civ. P. 299 (Omitted Findings). Mother and Father
filed the suit to terminate Kurt, James, Kara, and Miles on October 28,
2019.
11
263.401(b), the omitted findings Mother and Father argue the trial court
should have made—a finding focusing on the needs of the children rather
than the needs of the court—concern complaints raised for the first time
on appeal that Mother and Father failed to properly preserve for our
review. 13 As to Mother’s and Father’s argument that the trial court
omitted necessary findings in its order, the Texas Supreme Court has
explained: “[C]omplaints regarding the trial court’s compliance with the
requirements in subsection (b) must be preserved for appellate review.”14
We conclude Mother and Father failed to preserve any complaint that the
trial court failed to provide them with specific findings addressing the
children’s needs as related to why extraordinary circumstances justified
an extension of the dismissal deadline assuming without deciding that
such findings, if specifically requested, are required.
Even were we to liberally construe Mother’s and Father’s
complaints as an argument that the evidence is insufficient to support a
finding of extraordinary circumstances or a finding that it was in the
children’s best interest to continue the Department’s appointment as the
13Tex. R. App. P. 33.1.
14Interest of G.X.H., 627 S.W.3d 288, 301 (Tex. 2021).
12
children’s temporary managing conservator, those arguments would also
fail. The caseworker’s testimony supports the trial court’s best-interest
finding about continuing the Department’s appointment as the children’s
temporary managing conservator pending the trial. And we have already
explained why we agree with the trial court that this case does not fit the
ordinary pattern or norm. Because Mother’s and Father’s arguments
were either not properly preserved or if they were they lack merit, the
issue is overruled.
Did the appellants preserve their complaint about the ruling
consolidating Trial Court Cause Number 21-03-03100-CV
with Cause Number 19-10-14600-CV?
In issue two, Mother and Father raise two separate arguments.
First, they complain the trial court erred by ordering the case involving
Adrian, a case the Department filed in March 2021, consolidated into the
case the Department filed earlier to terminate their rights to Kurt,
James, Kara, Miles, and Bridget. Around five months before the trial
occurred in November 2021, the trial court signed the order consolidating
the two causes, which then allowed the cases to be tried before the same
jury.
13
Here, the appellants suggest they suffered prejudice when the trial
court consolidated the suit the Department filed that involved five of
their children with the suit the Department filed to address the rights to
Adrian because in Adrian’s case they did not have “the full opportunity
to fulfill the requirement[s]” of their service plans. Specifically, they
complain that had the cases not been consolidated, they would have
benefitted by having been able to participate in additional therapy
sessions given the testimony of their therapist that additional therapy
might have been beneficial in resolving anger issues their therapist
noticed that Mother and Father experienced during the therapy sessions
conducted over the four-to-five-month period in which they were in
therapy before the trial. 15 Even so, Mother and Father concede on appeal
that the attorneys who represented them in the trial court “failed to
15The psychotherapist who treated Mother and Father for a four-to-
five-month period before the trial expressed there was anger and signs of
domestic violence present in the home, although Mother and Father
denied that Father hit Mother even though the therapist noted Mother
had bruises near her elbow. Father admitted he had problems drinking
in the past but denied having problems currently or during the time he
was meeting with the therapist. As to recommendations for additional
therapy for their anger issues, the psychotherapist testified that he
thought additional therapy would be beneficial if Mother and Father
“were willing to address it.”
14
object” when the trial court ordered Trial Court Cause Number 21-03-
03100-CV consolidated into Trial Court Cause Number 19-10-14600-
CV. 16
The general rule of error preservation requires parties to preserve
error through a timely request, objection, or motion in the trial court to
give the trial court a fair opportunity to rule on the party’s complaint.17
Here, Mother and Father acknowledge the trial court never ruled on any
objection and the attorneys who represented them in the trial court
lodged no objections to the Department’s motion or to the trial court’s
order consolidating the cases for trial. By failing to object, Mother and
Father failed to preserve their complaint about the trial court’s ruling
consolidating the cases for trial. 18
Alternatively, Mother and Father argue they received ineffective
assistance of counsel because their attorneys failed to object to the trial
court’s order consolidating the two causes for trial. According to the
appellants, they were prejudiced by their respective attorney’s failure to
16The
attorneys who filed Mother’s and Father’s briefs are not the
attorneys who represented them in the trial.
17See Tex. R. App. P. 33.1(a).
18Id.
15
object because the consolidation of the two cases interfered with Mother’s
and Father’s ability to complete the tasks in their family service plans.
In parental-rights termination cases, Texas courts follow the test
established in Strickland v. Washington, 466 U.S. 668, 687 (1984) to
measure a parent’s allegation that the parent received constitutionally
ineffective assistance of counsel. 19 To prove an ineffective assistance
claim, the party asserting the claim must establish that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced
the defense. 20 Under Strickland, the parent must “successfully show both
prongs of the inquiry.” 21 The parent who is claiming ineffective assistance
has the burden of proof on the claim. 22
In considering claims alleging ineffective assistance, we “take into
account all of the circumstances surrounding the case, focusing on
whether counsel performed in a ‘reasonably effective’ manner.” 23 Our
review of the record is deferential, and we presume counsel’s conduct fell
19In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).
20See Strickland v. Washington, 466 U.S. 668, 687 (1984); In re
J.P.B., 180 S.W.3d 570, 574 (Tex. 2005).
21See Strickland, 466 U.S. at 688, 694; M.S., 115 S.W.3d at 545.
22M.S., 115 S.W.3d at 545.
23Id. (citing Strickland, 466 U.S. at 687).
16
within the range of reasonable professional assistance since we must
consider “the possibility that counsel’s actions [were] strategic.”24
Importantly, allegations “of ineffective assistance must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” 25 So when the decision criticized in the appeal concerns
matters of trial strategy, complaints alleging ineffective assistance are
not generally firmly founded on the record unless the strategy that
counsel followed in conducting the trial was one that was so outrageous
“no competent attorney would have engaged in it[.]” 26
We cannot say no competent attorney would have allowed the cases
to be consolidated under the circumstances that exist under the record
that is before us here. Perhaps Mother’s and Father’s attorneys
considered it to the parents’ advantage to allow Adrian’s case, Trial Court
Cause Number 21-03-03100-CV, to be consolidated into the earlier cause
on the theory that the Department had less proof in Adrian’s case than
in the others, believing that the weakness of the Department’s case in
24Id.
25Walker v.Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (cleaned up).
26M.S., 115 S.W.3d at 545 (cleaned up).
17
the more recently filed case weakened the Department’s case overall.
Simply put, without a record explaining the trial counsel’s strategy, we
cannot know that no competent attorney would not have objected to
consolidating the two causes, which is what occurred here on a record
that is silent about the reasons for trial counsels’ strategy.
Mother and Father suggest that had they had more time with their
therapist, their anger issues might have improved and their chances at
avoiding having their relationship with Adrian terminated would have
likewise improved. But the psychotherapist who testified never said he
thought Mother’s and Father’s anger issues would resolve or improve by
March 2022, the one-year anniversary of the date the Department filed
the petition to terminate the parent-child relationship between Mother,
Father, and their child Adrian. He also never said their anger issues were
likely to improve, only that with more therapy and if Mother and Father
were willing to address the problems, the problems possibly could
improve.
After reviewing the record, we find Mother’s and Father’s claims of
ineffectiveness of counsel are not firmly founded or supported by the
18
record. We overrule their ineffective assistance of counsel argument
because the arguments they rely on to support it lack merit. 27
Conclusion
For the reasons explained above, the trial court’s judgment is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on June 6, 2022
Opinion Delivered July 14, 2022
Before Kreger, Horton and Johnson, JJ.
27See In re A.S., No. 09-21-00142-CV, 2021 Tex. App. LEXIS 8988,
at *34 (Tex. App.—Beaumont Nov. 4, 2021, pet. denied) (mem. op.) (“An
allegation of ineffective assistance of counsel in a termination proceeding
must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness and the resulting harm.”); In re
S.M.T., 241 S.W.3d 650, 653 (Tex. App.—Beaumont 2007, no pet.) (“Any
claim of ineffective assistance must be firmly founded in the record and
the record must affirmatively demonstrate the ineffectiveness.”).
19