A. C. v. Texas Department of Family and Protective Services

577 S.W.3d 689

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00818-CV

A. C., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY NO. C170123CPS, THE HONORABLE GARY L. BANKS, JUDGE PRESIDING

OPINION

This is an appeal from a final order, following a bench trial, terminating the

parental rights of appellant A.C. (the father) to his infant daughter, K.W. (the child). In eight

issues on appeal, the father asserts that: (1)-(2) the district court lacked subject-matter

jurisdiction over the case because the claims against the father were not “ripe” at the time the

case was filed; (3) the evidence is legally and factually insufficient to support the district court’s

termination findings; (4) the father received ineffective assistance of counsel at trial; and (5)-(8)

the termination proceedings violated various provisions of the United States and Texas

Constitutions. We will affirm the district court’s order.

BACKGROUND

Four days after the child was born, she tested positive for methamphetamines on

December 11, 2017. On that same date, the Texas Department of Family and Protective Services (the Department) filed an “Original Petition for Protection of a Child, for Conservatorship, and

for Termination in Suit Affecting the Parent-Child Relationship.” The parties to the suit were

A.W. (the mother) and the father, who was listed in the petition as the “alleged father.” Brandy

Walker, the Child Protective Services (CPS) investigator assigned to the case, filed an affidavit

explaining that the father was listed as an “alleged father” because the Department had been

unable to establish the identity of the child’s father when suit was filed. However,

approximately two months after suit was filed, DNA testing confirmed that the father was the

child’s biological father, and the district court entered an order establishing the parent-child

relationship between the father and the child on February 26, 2018.

While the case was pending, the mother signed an affidavit voluntarily

relinquishing her parental rights to the child. See Tex. Fam. Code § 161.001(b)(1)(K). The case

proceeded to a bench trial on October 25, 2018. Three witnesses testified at trial: the father;

Kristen Laskiewicz, the conservatorship caseworker assigned to the case; and L.H., the father’s

mother (the grandmother). We will discuss their testimony below when reviewing the

sufficiency of the evidence.

At the conclusion of trial, the district court took the matter under advisement and

later entered an order terminating the parental rights of the father and the mother to the child.

The district court found that termination of their parental rights was in the best interest of the

child, that the mother had relinquished her parental rights to the child, and that the father had

committed several statutory grounds for termination. See id. § 161.001(b)(1)(D), (E), (N), (O),

(2). The father subsequently filed a motion for new trial, which the district court denied. This

appeal by the father followed.

2 ANALYSIS

Subject matter jurisdiction

While his motion for new trial was pending, the father filed a plea to the

jurisdiction, asserting for the first time that the district court lacked subject-matter jurisdiction

over the case because the Department’s claims against the father were not “ripe” when the

termination suit was filed. The district court denied the plea. In his first and second issues, the

father maintains that the district court lacked subject-matter jurisdiction over the case.

We will treat the father’s ripeness complaint as challenging the trial court’s

subject-matter jurisdiction. See Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.

1998) (“Ripeness, like standing, is a threshold issue that implicates subject matter jurisdiction,

and like standing, emphasizes the need for a concrete injury for a justiciable claim to be

presented.”). The basis of the father’s argument is that, at the time the Department filed suit, the

father’s legal status was merely that of an “alleged father.” Thus, in the father’s view, “the only

timely, legitimate statutory cause of action [the Department] had against [the father] was a suit to

establish his paternity under Chapter 160 of the Texas Family Code.” See Tex. Fam. Code

§ 160.201(b). Moreover, the father contends that because he was an alleged father, a termination

suit could have been brought against him only under the authority of Section 161.002 of the

Texas Family Code, which sets out the exclusive grounds for termination of the rights of an

“alleged father.” See id. § 161.002. According to the father, because of various timing and

citation requirements contained within Section 161.002, he could not have committed any of

those statutory grounds for termination at the time the Department’s suit was filed. See id.

§ 161.002(b)(1) (providing for termination if, “after being served with citation, [the alleged

father] does not respond by timely filing an admission of paternity or a counterclaim for

3 paternity under Chapter 160”), (2) (providing for termination if, among other requirements, “the

child is over one year of age at the time the petition for termination of the parent-child

relationship or for adoption is filed”), (3) (providing for termination if “the child is under one

year of age at the time the petition for termination of the parent-child relationship or for adoption

is filed and he has not,” within 31 days following the child’s birth, “registered with the paternity

registry under Chapter 160”), (4) (providing for termination if alleged father “has 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, despite the due diligence of the petitioner”).

However, this was more than a suit to terminate parental rights. This was a suit

by the Department for the protection of a child brought under Chapter 262 of the Texas Family

Code. See id. §§ 262.001–.353. Multiple issues were to be determined in the case, including

termination, paternity, and conservatorship. It is undisputed that when the suit began and the

father was merely an “alleged father,” the father believed himself to be the child’s biological

father and intended to care for the child. 1 At the same time, the Department was seeking

temporary custody of the child, determination of paternity, and, if the father was determined to

be the biological father of the child, termination of the father’s parental rights. Thus, in filing the

suit, the Department was not asking the court to decide hypothetical or “abstract questions of law

without binding the parties.” See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440,

444 (Tex. 1993). Instead, the Department was asking the court to decide a “real controversy

between the parties” that would be “actually resolved by the judicial relief sought.” See Save

1 In fact, in his brief, the father acknowledges that he was “present at the birth of the child” and considered himself to be “ready, willing and able to assume his role as the parent of the child.”

4 Our Springs Alliance v. City of Austin, 149 S.W.3d 674, 683 (Tex. App.—Austin 2004, no pet.).

Moreover, the suit was brought regarding not only the child’s father, but also the child’s mother.

In the affidavit attached to its petition, the Department alleged that the child had tested positive

for methamphetamines at birth. Therefore, when the Department’s suit was filed, the “threat of

harm” to the child was “more than conjectural, hypothetical, or remote.” See Patel v. Texas

Dep’t of Licensing & Regulation, 469 S.W.3d 69, 78 (Tex. 2015). The harm to the child had

already occurred—the child had been exposed to methamphetamines in utero.

To the extent that the father is arguing that he could not have been responsible for

that or any other injury to the child due to his being an “alleged father” and therefore not a

proper party to the termination suit, or that the Department should have filed its claim for

termination of the father’s parental rights in a separate lawsuit, after his identity as the child’s

biological father had been established, the father is conflating the doctrines of ripeness and

joinder. Ripeness focuses on whether an injury alleged in a lawsuit “has occurred or is likely to

occur,” see Patterson, 971 S.W.2d at 442, whereas joinder focuses on whether the lawsuit

includes the proper parties and / or claims, see Attorney Gen. of Tex. v. Lavan, 833 S.W.2d 952,

954 (Tex. 1992); Cooper v. Texas Gulf Indus., Inc., 513 S.W.2d 200, 204 (Tex. 1974); In re

D.L.B., 943 S.W.2d 175, 180 (Tex. App—San Antonio 1997, no writ). The father’s arguments—

which concern whether he, as an alleged father, should have been joined as a party to the action

and, if so, whether the Department’s claim for termination of the father’s parental rights should

have been joined to its claim to adjudicate parentage—implicate joinder.

Complaints regarding joinder are not jurisdictional in nature and must be raised

prior to trial or they are waived. See, e.g., In re J.W.M., 153 S.W.3d 541, 546 (Tex. App.—

Amarillo 2004, pet. denied); Rosales v. H. E. Butt Grocery Co., 905 S.W.2d 745, 751 (Tex.

5 App.—San Antonio 1995, writ denied); University of Tex. at Austin v. Hinton, 822 S.W.2d 197,

200 (Tex. App.—Austin 1991, no writ); see also Tex. R. Civ. P. 41 (“Misjoinder of parties is not

ground for dismissal of an action.”); Houston N. S. R. Co. v. Tyrrell, 98 S.W.2d 786, 796 (Tex.

1936) (“If there were misjoinder, it would not deprive the trial court of jurisdiction and would

not warrant dismissal of the entire proceeding. The question is properly raised by special

exception or by plea in abatement; and the improper joinder of parties is not a ground for

dismissal of the suit as to those properly joined.”); Scarbrough v. Purser, No. 03-13-00025-CV,

2016 Tex. App. LEXIS 13863, at *64–65 (Tex. App.—Austin Dec. 30, 2016, pet. denied) (mem.

op.) (“[M]isjoinder of actions is a procedural, not jurisdictional matter.”). Because the father

failed to raise his complaints until after the trial had concluded, they are waived. See Tex. R.

App. P. 33.1(a). Moreover, even if the father’s arguments had been preserved, the Texas Family

Code and the Texas Rules of Civil Procedure contain broad joinder provisions. See, e.g., Tex.

Fam. Code §§ 102.001(b) (“One or more matters covered by this title may be determined in the

suit [affecting the parent-child relationship].”); 160.603(2) (providing that “a man whose

paternity of the child is to be adjudicated” “must be joined as [a party] in a proceeding to

adjudicate parentage”); 160.610(a) (“[A] proceeding to adjudicate parentage may be joined with

a proceeding for adoption, termination of parental rights, possession of or access to a child, child

support, divorce, annulment, or probate or administration of an estate or another appropriate

proceeding.”); Tex. R. Civ. P. 39(a) (“A person who is subject to service of process shall be

joined as a party in the action if . . . he claims an interest relating to the subject of the action and

is so situated that the disposition of the action in his absence may . . . as a practical matter impair

or impede his ability to protect that interest.”), 40(a) (providing for permissive joinder of

defendants “if there is asserted against them jointly, severally, or in the alternative any right to

6 relief in respect of or arising out of the same transaction, occurrence, or series of transactions or

occurrences and if any question of law or fact common to all of them will arise in the action”),

51 (providing for joinder of claims and remedies), 174(a) (“When actions involving a common

question of law or fact are pending before the court, it may order a joint hearing or trial of any or

all the matters in issue in the actions.”). We cannot conclude that the district court abused its

discretion in joining the parties and claims in this case pursuant to those provisions.

We overrule the father’s first and second issues.

Evidentiary sufficiency

In his third issue, the father argues that the evidence is legally and factually

insufficient to justify terminating his parental rights. A trial court may order termination of the

parent-child relationship if the Department proves by clear and convincing evidence that (1) the

parent has committed one of several statutory grounds for termination and (2) termination is in

the best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17,

23 (Tex. 2002). The father contends that the evidence is legally and factually insufficient to

prove either requirement.

Standard of review

“Proceedings to terminate the parent-child relationship implicate rights of

constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d

624, 626 (Tex. 2018). “Involuntary severance of parental rights thus requires ‘clear and

convincing evidence’ that termination is warranted and in the child’s best interest.” Id.

“Because termination of parental rights ‘is complete, final, irrevocable and divests for all time’

the natural and legal rights between parent and child, a court cannot involuntarily sever that

7 relationship absent evidence sufficient to ‘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.’” Id. at 630 (quoting Tex.

Fam. Code § 101.007; Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “This heightened proof

standard carries the weight and gravity due process requires to protect the fundamental rights at

stake.” Id.

“The distinction between legal and factual sufficiency lies in the extent to which

disputed evidence contrary to a finding may be considered.” Id. “In conducting a legal-

sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the

finding, but must otherwise assume the factfinder resolved disputed facts in favor of the finding.”

Id. at 630–31. “Evidence is legally sufficient if, viewing all the evidence in the light most

favorable to the fact-finding and considering undisputed contrary evidence, a reasonable

factfinder could form a firm belief or conviction that the finding was true.” Id. at 631.

“Factual sufficiency, in comparison, requires weighing disputed evidence

contrary to the finding against all the evidence favoring the finding.” Id. “In a factual-

sufficiency review, the appellate court must consider whether disputed evidence is such that a

reasonable factfinder could not have resolved it in favor of the finding.” Id. “Evidence is

factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder

could not have credited in favor of a finding is so significant that the factfinder could not have

formed a firm belief or conviction that the finding was true.” Id.

Statutory grounds for termination

The Department alleged and the district court found that the father had:

(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; (2) engaged in conduct or

8 knowingly placed the child with persons who engaged in conduct which endangers the physical

or emotional well-being of the child; (3) constructively abandoned the child who has been in the

permanent or temporary managing conservatorship of the Department of Family and Protective

Services for not less than six months; and (4) 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. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). “[C]lear and convincing proof of

any one ground will support a judgment terminating parental rights, if similar proof also exists

that termination is in the child’s best interest.” In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014).

Therefore, when multiple statutory grounds for termination are found to have been committed,

we must uphold the judgment if there is sufficient evidence of any one of those grounds. Spurck

v. Texas Dep’t of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no

pet.) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)). 2

In this case, we conclude that there is legally and factually sufficient evidence to

support a finding that the father “engaged in conduct or knowingly placed the child with persons

2 We note that the Texas Supreme Court has recently held that when a trial court bases its decision to terminate parental rights on the statutory grounds specified in section 161.001(b)(1)(D) or (E) of the Family Code, the appellate court is required to ensure that the evidence is sufficient to support at least one of those grounds. In re N.G., No. 18-0508, 2019 Tex. LEXIS 465, at *13 (Tex. May 17, 2019). This is because a finding under either (D) or (E) could be used in future proceedings to terminate a parent’s rights to other children. See Tex. Fam. Code § 161.001(b)(1)(M) (“The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has 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).”); N.G., 2019 Tex. LEXIS 465 at *14 n.1 (“We recognize that this holding may mean that appellate courts will review findings under section 161.001(b)(1)(D) or (E) without reviewing other grounds. Because those other grounds carry no weight for parental rights to other children under section 161.001(b)(1)(M), due process demands no more.”); see also In re C.M.-L.G., No. 14-16-00921-CV, 2017 Tex. App. LEXIS 3956 (Tex. App.—Houston [14th Dist.] May 2, 2017, pet. denied) (mem. op.) (concluding that because evidence was sufficient to support trial court’s finding under subsection (E), appellate court did not need to review sufficiency of evidence to support finding under subsection (D)).

9 who engaged in conduct which endangers the physical or emotional well-being of the child.”

Tex. Fam. Code § 161.001(b)(1)(E). Subsection (E) requires proof of child endangerment, i.e.,

exposing a child to loss or injury or jeopardizing a child’s emotional or physical well-being.

Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endangerment does

not need to be established as an independent proposition but may be inferred from parental

misconduct. Id. “Although ‘“endanger” means more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be

directed at the child or that the child actually suffers injury.’” In re M.C., 917 S.W.2d 268, 269

(Tex. 1996) (per curiam) (quoting Boyd, 727 S.W.2d at 533); see also In re E.N.C., 384 S.W.3d

796, 803 (Tex. 2012). “Under subsection (E), the relevant inquiry is whether evidence exists that

the endangerment of the child’s physical and emotional well-being was the result of the parent’s

conduct, including acts and omissions or failures to act.” Asjes v. Texas Dep’t of Protective &

Regulatory Servs., 142 S.W.3d 363, 370 (Tex. App.—El Paso 2004, no pet.) (citing In re R.D.,

955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied); Dupree v. Texas Dep’t of

Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ)).

“The conduct to be examined includes what the parents did both before and after the child was

born.” Id. (citing In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.);

Dupree, 907 S.W.2d at 84).

A parent’s illegal drug use may constitute endangerment under subsection (E).

See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[A] parent’s use of narcotics and its effect

on his or her ability to parent may qualify as an endangering course of conduct.”); In re M.C.,

482 S.W.3d 675, 685 (Tex. App.—Texarkana 2016, pet. denied) (“Because it exposes the child

to the possibility that the parent may be impaired or imprisoned, illegal drug use may support

10 termination under [subsection (E)].”) (internal quotation marks omitted); T.M. v. Texas Dep’t of

Family & Protective Servs., No. 03-14-00784-CV, 2015 Tex. App. LEXIS 5150, at *6 (Tex.

App.—Austin May 21, 2015, no pet.) (mem. op.) (“It is well-established that a parent’s illegal

drug use may constitute endangerment.”); In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco

2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as

conduct which will support an affirmative finding that the parent has engaged in a course of

conduct which has the effect of endangering the child.”); Vasquez v. Texas Dep’t of Protective &

Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)

(concluding that evidence was factually sufficient to support finding of endangerment even

though there was no direct evidence that parent’s drug use injured child). Further, “[c]onduct

that subjects a child to [a] life of uncertainty and instability endangers the child’s physical and

emotional well-being.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied); see In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El Paso 2012, no pet.)

(“The endangerment to the child’s well-being may be inferred from parental misconduct,

including conduct that subjects the child to a life of uncertainty and instability.”). Therefore,

“[e]vidence of criminal conduct, convictions, and imprisonment and its effect on a parent’s life

and ability to parent may establish an endangering course of conduct.” In re B.C.S., 479 S.W.3d

918, 926 (Tex. App.—El Paso 2015, no pet.).

In this case, the father testified that he was arrested for delivery of a controlled

substance, methamphetamine, on February 7, 2018, while the case was ongoing. According to

the father, that charge was still pending. Kristen Laskiewicz, the Department caseworker

assigned to the case, testified that when she had visited the father in jail following his arrest, he

explained to her that police had found “a pipe and a small bag of meth on him,” but he claimed

11 that the methamphetamine did not belong to him and instead belonged to the mother. However,

the father acknowledged in his testimony that both he and the mother had used

methamphetamines in February 2018 while they were living together in the mother’s apartment.

Moreover, contrary to the father’s assertion on appeal, his methamphetamine use did not appear

to be an “isolated incident.” The father testified that when the child was born, he was already on

probation for possession of methamphetamine. Additionally, according to Laskiewicz, when she

had visited the father and the mother in March 2018, the mother claimed that they were

continuing to use methamphetamine, although the father denied that he was “under the

influence” at that time and was instead “coming down” from prior methamphetamine use.

In summary, the Department presented evidence that the father had: (1) used

methamphetamine in the past; (2) was currently on probation for using methamphetamine;

(3) had used methamphetamine while the case was ongoing and while he was still on probation

for prior methamphetamine use; and (4) had been arrested for delivery of methamphetamine and

that those charges were still pending. Viewing the evidence in the light most favorable to the

district court’s finding, we conclude that the evidence is legally sufficient for the district court to

have formed a firm belief or conviction that the father engaged in conduct that endangered the

physical or emotional well-being of the child. Moreover, the father presented no contrary

evidence tending to show that he had not used methamphetamine both before the child was born

and while the case was ongoing. Accordingly, when considering the Department’s evidence in

light of the entire record, the evidence is also factually sufficient to support the district court’s

finding that the father had endangered the child. See J.OA., 283 S.W.3d at 345 (explaining that

because endangering conduct “is not limited to actions directed towards the child,” it “may

include the parent’s actions before the child’s birth . . . including evidence of drug usage”); M.C.,

12 482 S.W.3d at 686 (concluding that parent’s continued use of illegal drugs provided legally and

factually sufficient evidence that parent endangered children’s well-being); In re S.M.L.D., 150

S.W.3d 754, 758–59 (Tex. App.—Amarillo 2004, no pet.) (concluding that evidence was legally

and factually sufficient to prove endangerment when parents used cocaine prior to child’s birth

and continued to use cocaine following child’s birth).

Best interest of the child

“The second termination prong—best interest—is child-centered and focuses on

the child’s well-being, safety, and development.” A.C., 560 S.W.3d at 631. “A best-interest

determination is thus guided by several non-exclusive factors, including: (1) the child’s

emotional and physical needs; (2) the emotional and physical danger to the child now and in the

future; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by

those individuals and the stability of the home; (5) the plans for the child by the agency seeking

custody and the stability of the proposed placement; (6) the parent’s acts or omissions that may

indicate the existing parent-child relationship is improper; and (7) any excuse for the parent’s

acts or omissions.” Id. (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see also

Tex. Fam. Code § 236.307(b) (listing additional best-interest factors that are probative in

“determining whether the child’s parents are willing and able to provide the child with a safe

environment”). “The absence of evidence about some of these considerations would not

preclude a factfinder from reasonably forming a strong conviction or belief that termination is in

the child’s best interest,” C.H., 89 S.W.3d at 27, but the best-interest finding “must be supported

by clear and convincing evidence in the record,” E.N.C., 384 S.W.3d at 808.

“[T]here is a strong presumption that the best interest of a child is served by

keeping the child with a parent” and in “maintaining the parent-child relationship,” In re R.R.,

13 209 S.W.3d 112, 116 (Tex. 2006); In re G.M., 596 S.W.2d 846, 847 (Tex. 1980), and the

Department carries the burden of proof to overcome that presumption with “clear and convincing

evidence,” G.M., 596 S.W.2d at 847; In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston

[14th Dist.] 2003, pet. denied). This “heightened” burden of proof at trial results in a

“correspondingly searching standard of appellate review.” A.C., 560 S.W.3d at 630. “As a

matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed

on appeal the same as one that may be sustained on a mere preponderance.” C.H., 89 S.W.3d at

25. With these considerations in mind, we turn to the evidence presented in this case.

The child’s emotional and physical needs

The child was approximately eleven months old at the time of trial. There is no

evidence in the record indicating that the child has any special needs. Laskiewicz testified that

the child has “the basic needs” of an infant, including to “eat regularly,” be on a schedule, and

“be nurtured.” Laskiewicz also agreed with the Department’s characterization of the child as an

“active child” who is in need of “constant supervision” because she is now crawling.

Laskiewicz did not believe that either the father or the grandmother, who had

been identified by the father as a possible caregiver for the child, were capable of meeting the

child’s basic needs. She based her belief on her observations of the father and the grandmother

during their visits with the child. Laskiewicz testified that the grandmother “did not bring basic

need items” for the child during her visits, such as diapers, wipes, and food. According to

Laskiewicz, the failure to bring those items demonstrated to the Department “that she’s not

putting that extra effort that she is wanting to care for [the child].” Laskiewicz also testified that

she did not believe that the grandmother would put the child’s needs ahead of the father’s needs.

14 As for the father’s visits, Laskiewicz testified that the father had visited the child

a “handful” of times when she was placed with relatives but that he would be late for the visits or

“fall asleep on the couch” during the visits. Laskiewicz also testified that between March and

June 2018, the father made none of his scheduled visits with the child and that between June and

September 2018, the father made only three visits. When asked why she believed that it was in

the child’s best interest for the father’s parental rights to be terminated, Laskiewicz testified, “He

has not shown that he can provide stability for [the child]. He has not shown that he has grown a

bond with [the child], as he has not made visits. He has not shown that he can properly provide

for [the child], just providing the basic need items that she needs.”

The emotional and physical danger to the child now and in the future

As discussed above, there is evidence tending to show that the father had used

methamphetamine in February 2018 and possibly in early March 2018, but there is no evidence

that the father was currently using methamphetamine or any other drugs. In fact, when

Laskiewicz was asked if the father had “been testing negative” for methamphetamine “over the

last few months,” she answered that he had.

There is also no evidence that the father is currently associating with other drug

users, including the child’s mother. The father testified that when he moved to Stanton, where

he currently lives, he did not stay in touch with the mother or her friends who had been using

drugs with them. He explained, “Since I left San Angelo, I stopped using, because when I was

here, I hung around with the wrong people and the wrong crowd, and they say if you hang out

with the wrong crowd you become that crowd, but if you leave that crowd, you become

something better in life.”

15 Other than the father’s prior methamphetamine use, the only other evidence

tending to show that the father might pose a danger to the child is a Facebook post by the father

from May 2018, in which the father mentioned “giving up” and “disappearing from the world.” 3

The Department interpreted this post as a suicide threat. However, the father denied that he had

wanted to end his life. Instead, he claimed that he meant that he “wanted to stay away from the

world for a while and stay out of trouble, not hurt myself.” In response to this post, the

Department had initiated a wellness check on the father. According to the father, when the

police arrived “to see if everything was okay,” “[he] was doing okay.” Laskiewicz testified that

since that time, the father had not made any similar posts on Facebook.

The parental abilities of the individuals seeking custody and the plans for the child by those individuals and the stability of the home

The father testified that he currently lives in Stanton, Texas, in a trailer home that

was given to him by his mother. The father explained that although he does not pay rent for the

trailer, he pays a fee of approximately $500 per month for the lot on which the home is located.

The father also testified that he pays his water bill, electric bill, cable bill, and phone bill, in

addition to paying his probation fees of approximately $500 per month. The father claimed that

his probation would be completed in approximately four months, after he had paid his remaining

probation fees. The father also explained that child support for the child is taken out of his

paycheck in the amount of $135.00 every two weeks.

The father testified that he works as a field technician for an oil company and that

he earns between $990 and $1300 every two weeks, depending on the number of hours that he

works. According to the father, he works Monday through Friday and usually goes to work at

3 The Facebook post itself was not admitted into evidence. Thus, the record does not reflect exactly what the father wrote.

16 6:30 a.m. and leaves work at 5:00 p.m. The father began his employment at the oil company in

September 2018. Prior to that, the father worked at a Chick-fil-A for three months, and he

acknowledged that before he began working at Chick-fil-A, when he was living in San Angelo,

he was unemployed.

The child is the father’s first child. As part of his service plan with the

Department, the father was required to complete parenting classes. However, he acknowledged

that he “only did about three or four classes” and did not obtain a certificate of completion.

When asked why he had not visited the child more often, the father explained that it was difficult

to schedule visits “when you work in the oil field and get called out to rigs” in other cities.

Similarly, the father claimed that when he worked for Chick-fil-A, it was difficult to visit the

child because “they were so shorthanded, they always called me in for work.” The Department

then asked the father if he “chose to go to work versus go visit [his] daughter.” The father

answered, “I chose to go to work instead of visit my daughter because I wanted to make more

money” and “wanted [the child] to have a better life than I ever could give.” He added, “I want

her to have a better life than me, and I want to work for her and sweat blood and tears for my

daughter.” The father also testified that when he was unemployed and living in San Angelo, he

had difficulty visiting the child in Stanton because he did not have a car and, when his mother

was working, he “wouldn’t have a ride to go see my daughter.” The father also claimed that he

had been denied visitation on at least one occasion when he had arrived late, although

Laskiewicz denied this.

The father testified that he did not want his parental rights terminated and that he

was “asking for [the child] to come home and live with my mom until I get back on my feet.”

When asked how long it would take him to “get on [his] feet,” the father testified, “It won’t take

17 me that long. Right now—I’m just remodeling my house right now. So, it will probably take me

about—let’s say about three months.” When asked to describe his remodel of the trailer, the

father explained that he was “putting a new floor in the trailer house” to make it safe for the child

to be inside the trailer. When asked why he believed that the child should live with his mother

while he was renovating the trailer, he explained, “Because my mom, she’s been around kids.

She’s been around my niece and nephew. She’s a good person. She knows a lot about kids.

She’s got integrity, loyalty, respect, and she’s got honesty.”

The grandmother also testified at the hearing. The grandmother explained that

she and her husband own the trailer in which the father currently resides. When asked if the

father paid them rent to live in the trailer, the grandmother explained, “He was paying in the

beginning because we wanted to see that he was responsible; but here recently, about a month

ago, we told him not to pay no more, and we gave it to him because we can see that he’s gotten

more responsible and he’s fixing it.” The grandmother also expressed her belief that the father

had become more stable and responsible since moving back home. When asked why she

believed this, she explained, “Because he’s working on his house. He’s staying with this job,

and he’s on time at work, because—and the way he’s acting now, and he’s dressing up more,

things that I’ve noticed [are] better for him. It’s like his self-esteem has gotten stronger.”

The grandmother testified that she lives in Stanton with her husband, her

daughter, and her daughter’s two children, a four-year-old girl and a three-year-old boy. They

live in a four-bedroom, two-bathroom house, with one of the bedrooms having been made into a

baby room for the child. When asked to explain why she had not visited the child earlier in the

case, the grandmother claimed that Laskiewicz had discouraged her from visiting the child

because Laskiewicz believed that the father was “the one that needed to be on top of this,” not

18 the grandmother. However, the grandmother had visited the child later in the case, in September

and October 2018.

The grandmother further testified that she believed that she could provide a safe

home for the child. She explained that she had raised babies before and that she has young

children in her home right now who are first cousins to the child. When asked why she believed

that it would be in the child’s best interest to be placed in her home, the grandmother testified,

“Because she would have the love and support of a family.” When asked what would happen “if

it came down to [her] having to protect [the child] or having to favor [the father],” the

grandmother testified, “[the child] would come first” and that this would include sending the

father away to rehabilitation so that he could “get some help away from the family.”

The plans for the child by the agency seeking custody and the stability of the proposed placement

The record reflects that the child had been placed in multiple homes while the

case was ongoing. Laskiewicz testified that the child first came into the Department’s care on

December 12, 2017, and she was originally placed with a maternal aunt. Following the

adversary hearing on December 21, 2017, the child was placed with the mother and the father on

a “monitored return” until March 6, 2018, when the district court revoked the placement

following the father’s arrest. Laskiewicz testified that the child is currently residing at a foster

placement in San Angelo. According to Laskiewicz, the child had been in that placement on two

separate occasions, from April 17 until June 4, 2018, and from September 17, 2018, to the

present. She explained that the child had been removed from that placement in June 2018

because the Department had found “parental relatives” of the father, the grandmother’s brother

and his wife, who had wanted to care for the child. However, in September 2018, the wife called

19 Laskiewicz and informed her that she and her husband were getting a divorce and that

“financially she could not care for [the child] anymore.” At that time, the child was returned to

the foster placement.

Laskiewicz further testified that the Department was currently looking to place

the child with relatives but that if no suitable relative could be found, the Department’s

permanency plan was non-relative adoption. According to Laskiewicz, the current foster

caregivers, identified as D.H. and S.H., “would be willing to adopt” the child. That was the

extent of the Department’s evidence regarding the proposed placement. No evidence was

presented as to the conditions of the proposed placement or the parental qualifications of the

proposed caregivers.

The parent’s acts or omissions that may indicate the existing parent-child relationship is improper and any excuse for the parent’s acts or omissions

“Proof of acts or omissions providing grounds for termination under section

161.001(b)(1) does not relieve the petitioner from proving the best-interest element, but the same

evidence may be probative of both.” A.C., 560 S.W. at 631–32 (citing C.H., 89 S.W.3d at 28).

As we have already explained, the father had used methamphetamine on prior occasions, but

there was no evidence that he was currently using methamphetamine and, according to

Laskiewicz, his most recent drug tests were negative. Additionally, the father testified that he

was no longer associating with the individuals with whom he had been using methamphetamine,

and the Department provided no contrary evidence on this point.

Laskiewicz testified that the father had also failed to comply substantially with the

terms of the Department’s service plan by failing to complete his parenting classes and to visit

regularly the child. However, as discussed above, there was some evidence tending to show that

20 these failures could be explained, at least in part, by the father’s lack of transportation when he

was living in San Angelo and his employment once he moved to Stanton.

Finally, the attorney ad litem for the child recommended that termination of the

father’s parental rights was in the best interest of the child. He reiterated that the foster parents

have “expressed an interest in adopting her,” and he emphasized that the child has spent more

time with them than she has spent elsewhere.

Conclusions regarding sufficiency

In summary, the Department presented evidence that the father had used

methamphetamine both before and after the child’s birth, that he had been arrested for a

methamphetamine offense while the case was ongoing, and that he faced an uncertain future,

including the possibility of imprisonment, because that charge remained pending. Additionally,

the father had failed to visit regularly the child and failed to complete his parenting classes as

required by the Department. Some evidence was presented that the father might have

contemplated suicide at one point during the case. Moreover, the father’s proposed immediate

placement for the child, the grandmother, did not visit the child until later in the case, was late to

those visits, and, according to Laskiewicz, failed to bring “basic need items” for the child during

her visits. Meanwhile, the Department’s plan for the child was placement with relatives or, if no

suitable relative could be found, placement with foster parents who had previously cared for the

child on two separate occasions and who were “willing to adopt” the child. Viewing this

evidence in the light most favorable to the district court’s finding, we conclude that a reasonable

factfinder could form “a firm belief or conviction” that termination of the father’s parental rights

is in the best interest of the child.

21 We reach the same conclusion regarding the factual sufficiency of the evidence.

Although there is some evidence that termination of the father’s parental rights may not be in the

best interest of the child, we are unable to conclude that it is “so significant that the factfinder

could not have formed a firm belief or conviction” that termination was appropriate here. A

factfinder is entitled to give “great weight” to a parent’s drug-related conduct, as it is considered

a “significant factor” supporting termination. See In re E.R.W., 528 S.W.3d 251, 266–67 (Tex.

App.—Houston [14th Dist.] 2017, no pet.); In re K.C., 219 S.W.3d 924, 927–29 (Tex. App.—

Dallas 2007, no pet.); Dupree, 907 S.W.2d at 86–87; see also E.B. v. Texas Dep’t of Family &

Protective Servs., No. 03-18-00427-CV, 2018 Tex. App. LEXIS 9423, at *8–11 (Tex. App.—

Austin Nov. 20, 2018, no pet.). Here, there was undisputed evidence that the father had used

methamphetamine while the case was ongoing and while he had access to the child during the

monitored-return period. Even though the father might have stopped using methamphetamine

later in the case, the district court could have reasonably inferred that the father’s past conduct

could recur in the future if the child were to be returned to the father. See In re A.R.O., 556

S.W.3d 903, 912 (Tex. App.—El Paso 2018, no pet.). The district court also could have inferred

that the positive changes that the father had made in the “few months” prior to trial occurred too

late in the case to demonstrate that the father could provide the child with the long-term safety

and stability that the child would need over the course of her childhood. See In re Z.C., 280

S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied); In re M.G.D., 108 S.W.3d 508,

513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

The record also includes evidence tending to show that: (1) the father did not

comply with the terms of his service plan and failed to complete his parenting classes; (2) when

the child was initially placed with a maternal aunt, the father visited the child a “handful” of

22 times but “did not engage or interact with the child” during those visits; (3) from March to June

2018, the father failed to visit the child on any occasion, despite the caseworker attempting to

arrange visits around the father’s work schedule; and (4) from June to September 2018, when the

child was placed with the father’s relatives, the father visited the child on only three occasions,

despite living in the same town where the child lived. Based on the father’s failure to complete

his parenting classes and his failure to visit the child on a consistent, regular basis, the district

court could have reasonably inferred that the father, despite his claims to the contrary, was not

ready, willing, or able to be a parent to the child. See In re S.N., 287 S.W.3d 183, 193 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (concluding that father’s inconsistent and missed

visits and failure to complete parenting classes supported trial court’s best-interest

determination).

Additionally, the Department’s primary plan for the child was placement with

relatives. Thus, the evidence summarized above tending to show that the grandmother might be

a suitable placement for the child, including that she has a “stable home,” prior experience

raising children, and the ability to financially support the child, could be used in future

proceedings to determine the child’s permanent placement. 4

We also observe that if the Department’s plans for relative placement do not come

to fruition, the Department presented evidence that it already has foster parents available who are

willing to adopt the child and who had previously cared for the child on two separate occasions

for approximately four months, which was significantly more time than the father had spent with

the child. Further, the Department’s lack of evidence as to definitive plans for permanent

4 Although Laskiewicz testified that the Department “would not plan” to place the child with the grandmother, she also suggested that if the grandmother addressed the issues raised in the home study, she could speak with her supervisor “to see if we could do another home study.”

23 placement and adoption is not dispositive of the best-interest inquiry. See C.H., 89 S.W.3d at 28.

“Instead, the inquiry is whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent’s rights would be in the child’s best interest—

even if the agency is unable to identify with precision the child’s future home environment.” Id.

In light of the entire record in this case, we conclude that a factfinder could reasonably form such

a belief. Accordingly, the evidence is factually sufficient to support the district court’s best-

interest determination.

We overrule the father’s third issue.

Ineffective assistance of counsel

In his fourth issue, the father asserts that he received ineffective assistance of

counsel during trial. Specifically, he claims that counsel was ineffective by: (1) failing to

demand a “trial de novo”; (2) permitting the father to testify to matters relating to his pending

criminal case; (3) failing to conduct discovery or challenge the admissibility of Department

evidence prior to trial; (4) failing to seek dismissal of the suit on jurisdictional grounds prior to

trial; (5) failing to seek a bifurcated trial separate from the mother’s trial; and (6) failing to

adequately prepare the father for trial.

The statutory right to counsel in parental-rights termination cases includes, as a

matter of due process, the right to effective counsel. C.S.F. v. Texas Dep’t of Family &

Protective Servs., 505 S.W.3d 618, 619 (Tex. 2016) (citing In re M.S., 115 S.W.3d 534, 544

(Tex. 2003)). The Texas Supreme Court has held that in termination cases, “the appropriate

standard for determining whether counsel is effective should be the same as the standard applied

in criminal cases.” M.S., 115 S.W.3d at 544. Accordingly, we are to apply the familiar two-

pronged standard set forth by the United States Supreme Court in Strickland v. Washington:

24 First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. 668, 687 (1984). “Thus, an ineffective assistance of counsel claim requires a showing

of a deficient performance by counsel so serious as to deny the defendant a fair and reliable

trial.” In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009). The parent has the burden to prove by a

preponderance of the evidence that counsel was ineffective. In re P.M.W., 559 S.W.3d 215, 218

(Tex. App.—Texarkana 2018, pet. denied).

“With respect to whether counsel’s performance in a particular case is deficient,

we must take into account all of the circumstances surrounding the case, and must primarily

focus on whether counsel performed in a ‘reasonably effective’ manner.” M.S., 115 S.W.3d at

545. “[C]ounsel’s performance falls below acceptable levels of performance when the

‘representation is so grossly deficient as to render proceedings fundamentally unfair . . . .’” Id.

(quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim App. 1983)). “In this process, we

must give great deference to counsel’s performance, indulging ‘a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance,’ including

the possibility that counsel’s actions are strategic.” Id. (quoting Strickland, 466 U.S. at 689). “It

is only when ‘the conduct was so outrageous that no competent attorney would have engaged in

it,’ that the challenged conduct will constitute ineffective assistance.” Id. (quoting Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812-13

(Tex. Crim. App. 1999)). “Ordinarily, counsel should not be condemned as unprofessional or

incompetent without an opportunity to explain the challenged actions.” In re S.L., 188 S.W.3d

25 388, 395 (Tex. App.—Dallas 2006, no pet.) (citing Bone v. State, 77 S.W.3d 828, 836 (Tex.

Crim. App. 2002)). “Thus, when the record is silent regarding counsel’s reasons for his

conduct,” as it is here, “we defer to counsel’s decision if there is at least the possibility that the

conduct could have been legitimate trial strategy.” Id. (citing Ortiz v. State, 93 S.W.3d 79, 88-89

(Tex. Crim. App. 2002)). Stated another way, if counsel “may have acted in accordance with a

plausible strategy,” we will not find counsel’s conduct deficient. In re L.G.R., 498 S.W.3d 195,

209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

Here, none of counsel’s challenged actions rise to the level of ineffective

assistance. Counsel was under no obligation to request a de novo hearing and could have

strategically decided that he would have a better chance of challenging the sufficiency of the

evidence on appeal if the Department was not given another opportunity, at a de novo hearing, to

strengthen its case for termination with additional evidence. Counsel also could have decided, as

a matter of strategy, that the father had a better chance of retaining his parental rights if, instead

of invoking his Fifth Amendment privilege not to testify as to matters concerning his pending

criminal case (which would risk the district court drawing an adverse inference from the

invocation), he accepted responsibility for his arrest and explained how his conduct had

improved in the months following his arrest. Moreover, even if counsel had sought to

“bifurcate” the case (which he was under no obligation to do), the rules for joinder of parties and

claims in suits affecting the parent-child relationship are expansive, as previously discussed, and

the father has failed to demonstrate that there is a reasonable probability that the district court

would have agreed to bifurcate the proceedings upon request. Counsel further could have made

a strategic choice not to seek bifurcation of the mother’s trial because evidence of the mother’s

26 conduct and drug use was important to his case—it tended to show that the father had been

negatively influenced by the mother in the past and that he was now free from that influence.

We also cannot conclude that counsel was deficient by failing to file a pretrial

plea to the jurisdiction or a pretrial motion to exclude the Department’s evidence. As we earlier

explained, the district court had jurisdiction here and therefore any plea to the jurisdiction filed

prior to trial would have been denied. Similarly, the father has failed to demonstrate that the

Department’s evidence was inadmissible and that the district court would have abused its

discretion in refusing to exclude it. Counsel cannot be deficient for failing to file futile motions

that the district court would have denied or that would not have changed the outcome of the

proceeding. See In re A.L.W., 2015 Tex. App. LEXIS 7220, at *43–44 (Tex. App.—Houston

[1st Dist.] 2015, no pet.) (mem. op.) (citing Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim.

App. 1991)); see also Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin 2007, no pet.)

(explaining that to demonstrate ineffectiveness from counsel’s failure to file pretrial motion to

exclude evidence, appellant must prove that motion “would have been granted and that the

remaining evidence would have been insufficient” to support judgment). The father has also

failed to demonstrate that he was prejudiced by any failure of counsel to conduct formal

discovery in this case or that counsel had failed to adequately prepare the father to testify. See In

re K.S., 420 S.W.3d 852, 856–57 (Tex. App.—Texarkana 2014, no pet.) (rejecting contention

that counsel was ineffective for failing to request written discovery when there was “no evidence

that such written discovery would have produced any fruits or that there was a necessity for it”

and that record reflected that “counsel was familiar with all the individuals involved and had a

strong understanding of the situation and the parties involved”); see also Lynch v. State, No. 08-

15-00180-CR, 2018 Tex. App. LEXIS 4884, at *13 (Tex. App.—El Paso June 29, 2018, no pet.)

27 (op.) (rejecting claim that testimony of appellant and his mother demonstrated counsel’s “failure

to adequately prepare the witnesses” and concluding that “imperfect answers of witnesses do not

affirmatively demonstrate ineffective assistance”); Romero v. State, 2008 Tex. App. LEXIS

9376, at *17–18 (Tex. App.—Houston [14th Dist.] Dec. 18, 2008, no pet.) (mem. op.)

(concluding that “[w]ithout a record to show the extent of counsel’s preparation” of appellant to

testify, court could not conclude that “counsel’s conduct was so outrageous that no competent

attorney would have engaged in it”). On this record, we cannot conclude that the father proved

by a preponderance of the evidence that he received ineffective assistance of counsel.

We overrule the father’s fourth issue.

Constitutional violations

In his fifth, sixth, seventh, and eighth issues, the father asserts that the termination

proceedings violated his constitutional rights in various ways. In his fifth issue, the father claims

that he was “compelled to be a witness against himself.” In his sixth issue, the father asserts that

involuntary termination of his parental rights amounted to “cruel and unusual punishment.” In

his seventh issue, the father contends that the statutes that provide for termination of parental

rights are facially unconstitutional. In his eighth issue, the father claims that the termination

statutes are unconstitutional as applied to him. However, the father failed to raise any of these

contentions in the court below, either before or during trial or in his motion for new trial.

Accordingly, these complaints have been waived. See Tex. R. App. P. 33.1(a); In re K.A.F.,

160 S.W.3d 923, 928 (Tex. 2005) (“[T]he rules governing error preservation must be followed in

cases involving termination of parental rights, as in other cases in which a complaint is based on

constitutional error.”); In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (observing that in parental-

termination cases, “adhering to our preservation rules isn’t a mere technical nicety; the interests

28 at stake are too important to relax rules that serve a critical purpose”); In re B.L.D., 113 S.W.3d

340, 353 (Tex. 2003) (“In termination cases, judicial economy is not just a policy—it is a

statutory mandate. . . . Appellate review of potentially reversible error never presented to a trial

court would undermine the Legislature’s dual intent to ensure finality in these cases and expedite

their resolution.”); Texas Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861

(Tex. 2001) (refusing to consider merits of constitutional claims that were not asserted in court

below). Moreover, even if these issues had been preserved in the court below, the father has

failed to address adequately the merits of the alleged constitutional violations in his brief on

appeal. See Tex. R. App. P. 38.1(i).

We overrule the father’s fifth, sixth, seventh, and eighth issues.

CONCLUSION

We affirm the district court’s termination order.

__________________________________________ Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: June 6, 2019