in the Interest of A.M.R., a Child

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00044-CV

IN THE INTEREST OF A.M.R., A CHILD

From the 21st District Court Burleson County, Texas Trial Court No. 30,068

OPINION

Stephanie and the unknown father of A.M.R. appeal from separate judgments that

terminated their parental rights to A.M.R. Stephanie complains that the evidence was

legally and factually insufficient to support the finding that termination was in the best

interest of A.M.R. or that she "knowingly placed or knowingly allowed the child to

remain in conditions or surroundings which endanger[ed] the physical or emotional

well-being of the child" or "engaged in conduct or knowingly placed the child with

persons who engaged in conduct that endangered the physical or emotional well-being

of the child." The unknown father complains that the evidence was legally insufficient

for the trial court to have terminated his parental rights pursuant to Section 161.002 and that he received ineffective assistance of counsel. Because we find no reversible error, we

affirm the judgments of the trial court.

A jury trial was conducted, in which Stephanie participated in person and through

counsel. The unknown father had an attorney appointed to represent his interests;

however, a different attorney appeared on behalf of the unknown father at the trial. The

attorney participated in the jury trial and cross-examined various witnesses regarding

the unknown father's identity and location.

The jury charge was submitted to the jury with individual questions as to each

predicate act alleged and the best interest of the child relating to the termination of

Stephanie's parental rights. The jury answered "Yes" to each of the questions submitted.

The trial court did not submit any questions and reserved any findings relating to the

unknown father without objection by counsel. The trial court signed a judgment that

terminated Stephanie's parental rights based on each of the three predicate acts that the

jury found to be true and that termination was in the best interest of the child. That

judgment purports to be a final judgment reciting that it disposes of all issues and parties.

Approximately two weeks after entry of the first judgment, the trial court signed

a second judgment terminating the unknown father's parental rights without reference

to the first judgment. Both Stephanie and the unknown father filed motions for new trial.

Because the issues raised by Stephanie and the unknown father are entirely distinct from

each other, we will address each party's issues separately in this opinion.

In the Interest of A.M.R., a Child Page 2 STEPHANIE'S APPEAL

In Stephanie's first issue, Stephanie complains that the evidence was legally and

factually insufficient for the jury to have found that termination was in the best interest

of the child. In Stephanie's second issue, Stephanie complains that the evidence was

legally and factually insufficient for the jury to have found that she "knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which

endanger[ed] the physical or emotional well-being of the child" or "engaged in conduct

or knowingly placed the child with persons who engaged in conduct that endangered the

physical or emotional well-being of the child." See TEX. FAM. CODE ANN. §

161.001(b)(1)(D), (E).

STANDARD OF REVIEW

The standards of review for legal and factual sufficiency in cases involving the

termination of parental rights are well established and will not be repeated here. See In

re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25

(Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).

We give due deference to the factfinder's findings and must not substitute our judgment

for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is

the sole judge "of the credibility of the witnesses and the weight to give their testimony."

Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

If the evidence is sufficient as to one ground, it is not necessary to address the other

In the Interest of A.M.R., a Child Page 3 predicate grounds because sufficient evidence as to only one ground in addition to the

best interest finding is necessary to affirm a termination judgment. In re N.G., 577 S.W.3d

230, 232-33 (Tex. 2019).

The termination judgment reflects that Stephanie's parental rights were

terminated based on three predicate grounds: endangering environment (Subsection

(D)); endangering conduct (Subsection (E)); and failure to comply with a court-ordered

service plan (Subsection (O)). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O).

However, Stephanie's issues on appeal challenge only the endangering environment and

endangering conduct grounds, but not the failure to complete her service plan. By failing

to challenge the finding under Subsection (O), Stephanie has waived any complaint about

the sufficiency of the evidence to support that finding. See id. § 161.001(b) (requiring only

one predicate ground to support termination); In re Z.M.M., 577 S.W.3d 541, 542 (Tex.

2019) (per curiam) (stating that "only one ground is required to terminate parental

rights"). Because of this, if we determine that the evidence was legally sufficient for the

jury to have found that termination was in the best interest of the child, we will affirm

the judgment of termination.

However, we are also required to consider the sufficiency of the evidence pursuant

to Sections 161.001(b)(1)(D) or (E) if challenged even if the termination is proper as to

some other section, therefore, we will also address one of those grounds. In re N.G., 577

S.W.3d 230, 235-36 (Tex. 2019). This is because a finding under either section could be

In the Interest of A.M.R., a Child Page 4 used in a subsequent termination of parental rights proceeding. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(M).

Although Stephanie raises the issue relating to best interest first, because the

evidence as to the predicate act is relevant to our discussion of best interest, we will

address the sufficiency of the evidence as to the predicate act before best interest.

SECTION 161.001(b)(1)(E)

In her second issue, Stephanie argues that the evidence was legally and factually

insufficient for the trial court to have found that she committed the predicate act set forth

in Section 161.001(b)(1)(E) of the Family Code. Section 161.001(b)(1)(E) allows

termination of parental rights if the factfinder finds by clear and convincing evidence that

the parent "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 ANN. § 161.001(b)(1)(E). "Endanger" means "to expose a child to loss or injury, or

to jeopardize a child's emotional or mental health." In re M.C., 917 S.W.2d 268, 269 (Tex.

1996) (per curiam). An endangerment finding often involves physical endangerment, but

it is not necessary to show that the parent's conduct was directed at the child or that the

child suffered actual injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987). "Rather, the specific danger to the children's well-being may be inferred from the

parent's misconduct alone." Id. In our endangerment analysis pursuant to Section

161.001(b)(1)(E), we may consider conduct both before and after the Department

In the Interest of A.M.R., a Child Page 5 removed the child from her parent. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied). In general, a parent's conduct that subjects a child to a life

of uncertainty and instability endangers the physical and emotional well-being of that

child. Boyd, 727 S.W.2d at 531.

In our endangerment analysis, domestic violence and a propensity for violence

may constitute evidence of endangerment. In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—

Eastland 2010, pet. denied). Additionally, drug use may constitute evidence of

endangerment. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Further, a parent's criminal

conduct, convictions, or imprisonment are relevant to the question of whether she

engaged in endangering conduct. In re S.R., 452 S.W.3d at 360-61. Routinely subjecting

a child to the probability that the child will be left alone because a parent is in jail

endangers the child's physical and emotional well-being. See In re S.M., 389 S.W.3d 483,

492 (Tex. App.—El Paso 2012, no pet.). Finally, we may consider Stephanie's failure to

complete her service plan in determining whether her conduct risks endangering the

child. In re M.R., 243 S.W.3d 807, 818 (Tex. App.—Fort Worth 2007, no pet.).

FACTS RELATING TO ENDANGERMENT

A referral was made to the Department of Family and Protective Services

regarding domestic violence in the home of A.M.R. An investigation had been

undertaken by law enforcement relating to a report alleging that Stephanie had assaulted

her boyfriend Daniel, with whom she was living, and that A.M.R. witnessed the assault.

In the Interest of A.M.R., a Child Page 6 Stephanie had fled the scene before law enforcement arrived, but Daniel was observed

with scratches and red marks on his neck and body. Daniel alleged that there was

ongoing domestic violence in the home. Daniel admitted to methamphetamine use two

days before the incident but denied that he used it in A.M.R.'s presence.

Stephanie was arrested two days later and a safety plan was entered placing

A.M.R. with Daniel's mother, who was to supervise all contact between Daniel and

A.M.R. At that time, Daniel was alleged to be A.M.R.'s father. A caseworker for the

department met with Stephanie at the jail more than once. During the first visit,

Stephanie alleged that Daniel was A.M.R.'s father and that this incident was the first

occurrence of domestic violence in the home. Stephanie admitted to using drugs in the

past and expressed concern that Daniel was currently using drugs. At the next visit,

Stephanie alleged that the father of three of her older children was also possibly A.M.R.'s

father and admitted that she also had recently used methamphetamines. After this time,

Daniel and his mother stated their intention to return A.M.R. to Stephanie upon her

release from jail.

A.M.R. was placed in the department's custody. She was two years old at the time

of the removal. A hair test was conducted on A.M.R. which tested positive for

methamphetamines. The test results went back 90 days from the date of the test. When

asked about the positive result, Stephanie initially denied knowing how it had happened

unless it was from smoking methamphetamines when pregnant with A.M.R. Later,

In the Interest of A.M.R., a Child Page 7 Stephanie stated that it must have occurred when A.M.R. was left with Daniel. Stephanie

had been in jail for approximately two weeks before A.M.R.'s removal by the department.

Stephanie was jailed for approximately 90 days and pled guilty to abandoning or

endangering a child, A.M.R. Stephanie was placed on three years of community

supervision and testified that she thought the assault with bodily injury-family violence

charge had been dismissed when she pled guilty to the felony offense.

A family service plan was ordered by the trial court to be completed by Stephanie

in order to have A.M.R. returned to her. She completed a psychological evaluation in

November of 2020, which the evaluator was unable to score accurately because of

significant deception and Stephanie's refusal to discuss her drug use. She did not

regularly attend parenting classes or counseling until after a mediated settlement

agreement in September of 2021 and had not completed either at the time of the trial.

Stephanie was discharged from therapy for non-attendance, even in virtual therapy

programs, more than once. She claimed to have completed services but with different

providers than those listed in the service plan and did not provide documentation of

completion. Stephanie did not complete drug treatment counseling. She refused to sign

a release for an MHMR assessment that she had taken.

Stephanie's counselors and service providers testified that Stephanie refused to

address her issues with anger, domestic violence, drug use, and grief. Each testified that

Stephanie had not made progress in her therapy and classes, which could be dangerous

In the Interest of A.M.R., a Child Page 8 for A.M.R.'s safety and well-being.

A.M.R. exhibited a lack of attachment to Stephanie and was almost non-verbal

when she was placed in foster care. She was easily frightened, especially by men, and

would say "No, momma" when she was scared. A.M.R.'s play therapist opined that

A.M.R. had been traumatized in her home prior to her removal.

APPLICATION

Viewing the evidence with the appropriate standards, we find that the evidence

was legally and factually sufficient for the jury to have found that Stephanie "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 ANN. §

161.001(b)(1)(E). Because we have found the evidence sufficient regarding Section

161.001(b)(1)(E), we do not address Section 161.001(b)(1)(D). In the Interest of H.H., No.

10-21-00040-CV, 2021 Tex. App. LEXIS 4225 *1, n.1, 2021 WL 2252707 (Tex. App.—Waco

May 27, 2021 pet. denied) (mem. op.). We overrule issue two.

BEST INTEREST

In her first issue, Stephanie complains that the evidence was legally and factually

insufficient for the jury to have found that termination was in the best interest of A.M.R.

In determining the best interest of a child, a number of factors have been consistently

considered which were set out in the Texas Supreme Court's opinion, Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply indicates factors

In the Interest of A.M.R., a Child Page 9 that have been or could be pertinent in the best interest determination. Id. There is no

requirement that all of these factors must be proved as a condition precedent to parental

termination, and the absence of evidence about some factors does not preclude a

factfinder from reasonably forming a strong conviction that termination is in the child's

best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence establishing the

predicate grounds under section 161.001(b)(1) also may be, and in this proceeding is,

relevant to determining the best interest of the child. See In re C.H., 89 S.W.3d at 27-28.

Stephanie contends that the evidence was legally and factually insufficient as to

best interest because the department had agreed to not move forward to a final hearing

if she started engaging more substantially in therapy and parenting classes as well as

maintaining a stable, safe residence a few months before the final hearing. Although

Stephanie acknowledges that she did not complete her service plan and had to leave the

residence she was fixing up and move to another residence that was not suitable for

A.M.R. shortly after the agreement, she contends that the only reason the department

wanted to terminate at that time was because the foster parents wanted their relative to

adopt A.M.R.

FACTS RELATING TO BEST INTEREST

A.M.R. was four years old at the time of the trial and had been in the same foster

home for the entire time. She was bonded with the family, and always indicated a desire

to return home with the foster mother after visits with Stephanie. The foster mother

In the Interest of A.M.R., a Child Page 10 testified that her brother and sister-in-law were interested in adopting A.M.R. The foster

mother testified that she believed that A.M.R. would do better in a home with no other

children, and the foster parents had multiple other children in the home and wanted to

continue having foster children placed with them in the future. Her brother and sister-

in-law had no children and would not have any other than by adoption. The foster

mother's brother and sister-in-law were certified babysitters of A.M.R. and were working

to become licensed foster parents so that A.M.R. could be placed with them permanently

with a hope of adopting her. A.M.R. had spent time with and was fond of the other

family. However, the foster mother testified that if it was determined to be better for

A.M.R. for her current foster parents to adopt her that they would do so.

While in the care of the foster parents, A.M.R. had tremendously improved

emotionally and they had provided for her medical and physical needs. Prior to her first

doctor's visit after being removed by the department, records of only one doctor's visit

were found. That visit was from when A.M.R. turned one year old. A.M.R. did not

appear to have received any medical care other than that one visit during her lifetime.

A.M.R.'s issues regarding speech and her fear of men had improved greatly while with

the foster parents and in play therapy. A.M.R.'s therapist testified that A.M.R. showed a

"real disconnect" between A.M.R. and Stephanie and that she did not want to talk to the

therapist about her mom but loved talking about her foster family. A.M.R. would need

continuing counseling, but Stephanie did not present any evidence as to her plans to meet

In the Interest of A.M.R., a Child Page 11 A.M.R.'s emotional needs if the termination was not granted.

On appeal, Stephanie argues that the only reason for the removal was that she was

incarcerated; however, she does not acknowledge that it was her violent behavior in the

presence of her child that led to her arrest and incarceration. Stephanie admitted to past

methamphetamine use and told the caseworker that a reason that A.M.R. tested positive

for methamphetamines might be from Stephanie smoking it while pregnant with A.M.R.

Upon her release from jail after A.M.R.'s removal, Stephanie was placed on community

supervision for a felony offense where A.M.R. was the victim. Stephanie failed to address

any of the issues for A.M.R.'s removal, including her anger issues, violent tendencies,

poor relationship choices, past drug use, and instability in homes and employment.

Although Stephanie and her sister testified that she had a strong support system in place

at the time of the jury trial, that support system had by all appearances done little to assist

her during the pendency of the proceedings. Stephanie acknowledges that she did not

complete her service plan but blames the department and the service providers for that

failure.

Stephanie had multiple providers for therapy throughout the case and had been

discharged and reinstated more than once due to her non-attendance. Stephanie blames

the pandemic for her inability to complete services, but the providers and the caseworker

testified that the providers were willing to meet with her virtually. Stephanie did not

really maintain contact or make a significant effort to participate in services until well

In the Interest of A.M.R., a Child Page 12 over a year after A.M.R.'s removal and very late in the proceedings. At that time, when

Stephanie did attend therapy and her other classes, she did not address her issues and

made little to no progress, even though she knew that the failure to do so would result in

the department setting this proceeding for a final trial where they would seek termination

of Stephanie's parental rights.

Reviewing the record using the appropriate standards, we find that the evidence

was legally and factually sufficient for the jury to have found that termination was in the

best interest of the child. We overrule issue one.

We affirm the judgment of termination of Stephanie's parental rights to A.M.R.

UNKNOWN FATHER'S APPEAL

The unknown father appeals from a judgment entitled "Order Determining No

Father was Identified and Termination of Parental Rights of Unknown Father" after a

hearing was conducted by the trial court approximately two weeks after the conclusion

of the jury trial and entry of the first judgment as to Stephanie. On appeal, the unknown

father argues that the evidence was legally insufficient to support the judgment of

termination and that the unknown father received ineffective assistance of counsel. The

department argues that the appeal as to the unknown father should be dismissed because

his trial counsel did not have authority to file an appeal without the client's knowledge

or consent.

In the Interest of A.M.R., a Child Page 13 Generally, the procedure to terminate the parental rights of an unknown father are

set forth in Section 161.002(b)(2)(A) of the Family Code. See TEX. FAM. CODE ANN. §

161.002(b)(2)(A). Section 161.002(b)(2)(A) allows for the termination of parental rights of

an alleged father if the child is over the age of one, the alleged father has not registered

with the paternity registry, and his identity and location are unknown after the exercise

of due diligence by the department. See TEX. FAM. CODE ANN. §161.002(b)(2)(A). Further,

a certificate from the paternity registry is required from any state in which the child may

have been conceived or born, if any. TEX. FAM. CODE ANN. §160.421(b).

PROCEDURAL AND BACKGROUND HISTORY RELATING TO THE UNKNOWN FATHER

When A.M.R. was removed, it was first believed that Daniel was her father.

Stephanie subsequently stated that the father of three of her older children could be

A.M.R.'s father. There was no father named on A.M.R.'s Mississippi birth certificate.

During the pendency of the case, both Daniel and the father of three of Stephanie's older

children were excluded by DNA testing as being A.M.R.'s father. Thereafter, Stephanie

refused to divulge the identity of A.M.R.'s father, other than giving the name of a man

who allegedly resided in Louisiana. The department checked into the name but could

not locate the person. Stephanie stated that the man named was white and based on that

description the caseworker concluded that the man could not be A.M.R.'s biological

father. Stephanie also stated that she did not know the identity of A.M.R.'s father.

The department filed a motion for substituted service by publication on the

In the Interest of A.M.R., a Child Page 14 unknown father which the trial court granted. The trial court appointed counsel to

represent the interests of the unknown father approximately eleven months before the

jury trial. Appointed counsel participated in permanency hearings and questioned

witnesses about the unknown father's identity and potential whereabouts.

A different attorney appeared in person to represent the unknown father at the

jury trial and for the rest of the trial court proceedings. That attorney questioned

witnesses and participated in the jury trial relating to the potential identity and location

of the unknown father; however, the trial court reserved any issues relating to the

termination of the unknown father's parental rights to be determined at a later date rather

than submitting any issues relating to the unknown father to the jury because no report

had been filed as to the attorney's efforts to identify or locate the unknown father.

Approximately two weeks after the conclusion of the jury trial, the trial court

conducted a hearing at which the appointed attorney also did not appear. The attorney

who appeared at the jury trial did appear and argued against the termination at that

hearing. The parties discussed the necessity of the certificate from the paternity registry

and the trial court stated that it would consider the certificate when filed. See TEX. FAM.

CODE ANN. §160.422(c). The Texas certificate was filed with the clerk the day of the

hearing. Mississippi does not have a paternity registry, so no certificate from a paternity

In the Interest of A.M.R., a Child Page 15 registry in that state where A.M.R. was born could be obtained. 1 See TEX. FAM. CODE ANN.

§ 160.421(b). The trial court later signed a judgment that terminated the unknown father's

parental rights for failure to register with the paternity registry pursuant to Family Code

Section 161.002(b)(2)(A). See TEX. FAM. CODE ANN. § 161.002(b)(2)(A).

After the hearing, but prior to the signing of the judgment as to the unknown

father, counsel that appeared at the jury trial and the hearing for the unknown father filed

a motion for new trial, notice of appeal, and a motion to withdraw. Two days later, the

trial court signed the judgment, discharged that attorney from his duties, and granted the

motion to withdraw but did not appoint a new attorney to represent the unknown father

on appeal. Five days later, the department filed a motion to bar the attorney from

appearing on behalf of the unknown father and to strike his pleadings due to a lack of

"authority." Eleven days later, the trial court entered an order that granted the

department's motion, denied the motion for new trial and appeal, and stated that his

counsel was precluded from any additional filings since the withdrawal had previously

been granted. Because the trial court does not have jurisdiction to dismiss the appeal that

was prematurely, but timely filed, the appeal remained. In order to proceed with the

appeal, this Court abated the proceeding for the appointment of counsel to prosecute the

1 We have found no statutory paternity registry authority in Mississippi. Rather, the only method for an alleged father to assert paternity outside of a court proceeding is set forth in Mississippi Code Annotated Section 93-9-28 (Rev. 2013), which requires a mother and alleged father to sign a voluntary acknowledgement of paternity while at the hospital within 24 hours after the birth of the child, and the signing and notarizing of the form results in the addition of the father to the birth certificate of the child. See Prout v. Williams, 55 So. 3d 195 (Miss. App. 2011). No father is listed on the birth certificate of A.M.R. In the Interest of A.M.R., a Child Page 16 appeal on behalf of the unknown father, and counsel was duly appointed.

DISMISSAL

The department argues that the appeal relating to the unknown father should be

dismissed as unauthorized because the unknown father is an unknown person and could

not have authorized the appeal. Neither party has provided this Court with any

authority relating to the authority of an attorney appointed to represent an unknown

father's ability to file an appeal on the unknown father's behalf. 2 The notice of appeal was

filed prematurely in that it was filed prior to the signing of the judgment relating to the

unknown father. That judgment also included a provision that removed the attorney

from representing the unknown father. However, at the time the notice of appeal was

filed, counsel was still properly representing the unknown father, notwithstanding that

at the time the notice of appeal became effective, counsel had been removed. See TEX. R.

APP. P. 27.1(a).

While we recognize that the unknown father did not personally authorize the

appeal, that does not mean that an attorney that is appointed to represent that person is

required to stand by and allow an improper termination judgment to be rendered while

they are still representing that party. Indeed, that would potentially be ineffective

2Substantively there is little difference between this situation and an appeal by an appointed attorney that has lost contact with the parent but nevertheless pursues an appeal on that person's behalf. In the Interest of C.P., No. 10-19-00108-CV, 2019 Tex. App. LEXIS 6301, 2019 WL 3331118 (Tex. App.—Waco July 24, 2019 no pet.) (mem. op.). In the Interest of A.M.R., a Child Page 17 assistance on that attorney's part. The role of the attorney ad litem is to ensure that the

department and the trial court comply with the relevant laws and due process to ensure

that the unknown father's rights are not ignored or violated. Because of that, if an

attorney charged with representing a party believes that the trial court has improperly

granted the termination of the unknown father's parental rights at a time when that

attorney is still charged with the duty of representing that party, then that attorney has

the right, if not the duty or obligation, to seek whatever legal remedies are available to

challenge those errors. See TEX. FAM. CODE ANN. §107.016(2).

Generally, an attorney is appointed to represent an unknown father pursuant to

Family Code Section 107.013(a)(3) and that attorney's duties are set forth in Section

107.014(a). See TEX. FAM. CODE ANN. §§ 107.013(a)(3); 107.014(a). Counsel appointed to

represent the interest of a parent whose identity or location is unknown is "only" required

to:

(1) conduct an investigation regarding the petitioner's due diligence in locating the parent; (2) interview any party or other person who has significant knowledge of the case who may have information relating to the identity or location of the parent; and (3) conduct an independent investigation to identify or locate the parent, as applicable.

TEX. FAM. CODE ANN. §107.014(a). If the attorney is unable to identify or locate the

unknown parent, that attorney "shall submit to the court a written summary of the

attorney ad litem's efforts to identify or locate the parent with a statement that the

In the Interest of A.M.R., a Child Page 18 attorney was unable to identify or locate the parent" and upon receipt of that "required"

summary, the trial court "shall discharge the attorney from the appointment." TEX. FAM.

CODE ANN. §107.014(e).

However, the attorney appointed to represent the unknown father who appeared

at each hearing prior to the jury trial did not comply with the requirements of the statute

by filing a written summary. If he had done so, the trial court would have been within

its authority to discharge the attorney and the attorney would have been without the

authority to pursue any further remedies. However, since no written report was filed

that led to the discharge of the attorney, the attorney was required to proceed until

relieved of his obligations, which he did, including filing a notice of appeal to correct

what he presumably perceived to be the erroneous termination of the parental rights of

the unknown father, which was based at least in part upon his own failure to comply

with the statute. Because of this, we will address the contentions raised by counsel

appointed to represent the unknown father on appeal.

SUFFICIENCY OF THE EVIDENCE

The unknown father argues that the evidence was legally insufficient for the trial

court to have terminated the parental rights of the unknown father because no certificate

of a search of the paternity registry was filed with the trial court. A supplemental clerk's

record filed with this Court after the filing of the unknown father's brief shows that the

Texas certificate was filed with the trial court on the same day as the hearing conducted

In the Interest of A.M.R., a Child Page 19 by the trial court, and several days before the judgment terminating the rights of the

unknown father was signed. See TEX. FAM. CODE ANN. §160.422(c).

Section 161.002(b)(2)(A) allows for the termination of parental rights of an alleged

father of a child over the age of one who has not registered with the paternity registry

whose identity and location are unknown after the exercise of due diligence by the

department. See TEX. FAM. CODE ANN. §161.002(b)(2)(A). The unknown father does not

contend that the department did not exercise due diligence in attempting to locate the

unknown father. Rather, counsel argues that the failure to file the certificate renders the

evidence legally insufficient.

Because there was a certificate from Texas, and no certificate could be procured

from Mississippi because they do not have a registry, we find that the evidence was

legally sufficient for the trial court to have terminated the rights of the unknown father

pursuant to Section 161.002(b)(2). 3 We overrule unknown father's issue one.

INEFFECTIVE ASSISTANCE OF COUNSEL

The unknown father's second issue alleges that the unknown father received

ineffective assistance of counsel because neither his initial counsel nor the attorney who

appeared at trial filed the written report required by Section 107.014(e). Parents and

3The unknown father discusses Louisiana and a man whose name Stephanie had given as a potential father who resided in Louisiana; however, we have found no evidence that A.M.R. was potentially conceived in Louisiana. Because of this, no paternity registry search from Louisiana was required. See TEX. FAM. CODE ANN. §160.421(b). In the Interest of A.M.R., a Child Page 20 children, as parties to a government-initiated suit to terminate their parental rights have

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

Claims of ineffective assistance of counsel in parental-termination cases, as in criminal

cases, are governed by the two-prong test articulated by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re

D.T., 625 S.W.3d 62, 73 (Tex. 2021). "First, the [parent] must show that counsel's

performance was deficient." Strickland, 466 U.S. at 687. "Second, the [parent] must show

that the deficient performance prejudiced the defense." Id. A party claiming ineffective

assistance of counsel must satisfy both prongs of the Strickland test to succeed. Id.

In order to prevail on the second prong of Strickland, in showing that the alleged

error prejudiced the defense, it was necessary for the unknown father to show that, but

for the alleged error on the part of the unknown father's counsel, the result of the

proceeding would have been different. However, the unknown father's appointed

counsel and the attorney who appeared at trial each participated diligently in the

hearings and the trial, questioning witnesses regarding the identity and location of any

potential father. The record is silent as to any searches the attorneys may have made

outside of trial; however, it was the obligation of the unknown father to prove that the

result of the proceeding would have been different. Indeed, had the attorneys filed the

written report, their participation in the further proceedings might not have taken place

because the trial court could have discharged them from their representation. We find

In the Interest of A.M.R., a Child Page 21 that the unknown father did not prove the second prong of Strickland, and thus, the

ineffective assistance of counsel issue cannot be sustained. Because we have found that

the second prong was not established, we need not address whether the failure of counsel

to file the mandatory written summary pursuant to Family Code Section 107.014(e) is

sufficient to meet the first prong of Strickland. We overrule issue two.

Having found no reversible error as to the unknown father, we affirm the

judgment of the trial court relating to the termination of the parental rights of the

unknown father.

CONCLUSION

Having overruled each of the issues of Stephanie and the unknown father, we

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed July 20, 2022 [CV06]

In the Interest of A.M.R., a Child Page 22