J. T. v. Texas Department of Family and Protective Services, 03-21-00070-CV

Background

In Nov. 2017 the Texas Department of Family and Protective Services filed to take custody of S.T. (born Oct. 2012) after reports of neglectful supervision, domestic violence, and possible sexual abuse; the Department became temporary managing conservator and placed S.T. with a foster caregiver (Roby).
Father had earlier removed S.T. from Mother and placed her with Steve and Linda (church acquaintances); the Department later removed S.T. from that home after concerns including a child outcry referencing an "Old Daddy."
The final hearing began Oct. 31, 2018. Mid-hearing the trial court sua sponte ordered a psychosexual evaluation of Father; Father resisted and did not complete it until June 2020, delaying resumption of the hearing.
Two of Father’s appointed attorneys moved to withdraw after the hearing commenced; new counsel were appointed. Father did not object to the withdrawals or to the delay in appointing successors in the trial court.
Evidence at trial: S.T. was developmentally delayed when removed but made substantial progress with Roby; testimony (caregiver, GAL, therapist) described sexualized/acting-out behaviors by S.T., caregiver’s belief Father sexually abused the child, Father’s continued marijuana use, failure to complete services, and extensive travel for work. Trial court terminated Father’s parental rights under Tex. Fam. Code § 161.001(b)(1)(D), (E), (O) and found termination was in the child’s best interest.
On appeal Father challenged (1) the psychosexual-evaluation order/delay, (2) counsel withdrawals and resulting gap in representation, (3) the multi-year delay in concluding the final hearing, and (4) sufficiency of evidence for statutory grounds and best interest. The court affirmed.

Issues

Issue	Father’s Argument	Department’s Argument	Held
Trial court’s sua sponte order requiring psychosexual evaluation and resulting delay	Court improperly ordered eval mid-trial, causing more than two-year delay and prejudice	Father failed to object at trial; delay largely due to Father’s refusal to arrange/complete the exam	No preserved error; even on merits delay attributable to Father’s refusal to comply; no reversible error
Withdrawal of counsel after final hearing began; gap in representation	Withdrawals left Father without counsel during a critical stage and prejudice should be presumed	Father did not object in trial court; he had counsel for hearings and has not shown deficient performance or prejudice	No preserved error; no showing of abuse of discretion or prejudice; Strickland standard not met
Alleged indefinite/lengthy pendency of final hearing (2+ years)	Delay allowed Department to change permanency goal and led to termination that otherwise would not have occurred	Father did not object; delay primarily caused by Father’s noncompliance with psychosexual order	Not preserved; delay attributable to Father’s failure to complete ordered evaluation; no reversible error
Sufficiency of evidence to terminate (§161.001(D),(E),(O)) and best interest	Evidence insufficient to show Father knowingly placed/allowed child in dangerous surroundings or that termination was in child’s best interest	Testimony showed Father placed child with persons he didn’t know, child’s sexualized behavior and caregiver/therapist concerns, Father’s noncompliance and instability; evidence met clear-and-convincing standard	Evidence sufficient to support statutory ground (D) and that termination was in child’s best interest; termination affirmed

Key Cases Cited

In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (preservation rule in parental-termination appeals)
In re B.L.D., 113 S.W.3d 340 (Tex. 2003) (preservation and appellate review in termination proceedings)
A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689 (Tex. App.—Austin 2019) (procedural preservation and harmless-error principles in termination appeals)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
In re E.N.C., 384 S.W.3d 796 (Tex. 2012) (statutory grounds do not require conduct be directed at the child or proof of actual injury)
In re C.H., 89 S.W.3d 17 (Tex. 2002) (Holley factors and when best-interest finding may be supported despite gaps in evidence)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (factors for evaluating child’s best interest)
Leithold v. Plass, 413 S.W.2d 698 (Tex. 1967) (technical pleading rules are of limited importance in child-custody determinations)