in the Interest of C.A. and D.D.

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00105-CV ____________________

IN THE INTEREST OF C.A. AND D.D.

_________________________________________________________ _

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV 1205472 _________________________________________________________ _

MEMORANDUM OPINION

The Texas Department of Family and Protective Services (“the

Department”) filed a petition to terminate J.A.’s parental rights to C.A. and D.D.

D.A. and T.A., the children’s maternal grandparents, intervened. After a bench

trial, the trial court terminated J.A.’s parental rights. In four appellate issues, J.A.

challenges the termination of her parental rights. We affirm the trial court’s

judgment.

1 Factual Background

At trial, D.D. testified that she felt afraid when living with J.A. because J.A.

hit her with objects like a hanger or a belt, yelled, stated that she hated D.D., called

D.D. dumb, and pulled D.D.’s hair. C.A. testified that she too felt afraid when

living with J.A., never felt safe at home with J.A., and that J.A. was mean, hit her

on the arms, pulled her hair, cursed, and called her a “horrible daughter.” C.A. and

D.D. testified that J.A. once held a knife to C.A.’s neck and had threatened to burn

the house down with the children inside. C.A. testified that she did not feel safe

when J.A. was driving a vehicle because J.A. drove fast and threatened to hit the

brakes so that C.A. would “fly[] through the window.” C.A. wanted to live with

her grandmother, not J.A., and did not even want to visit J.A.

J.D., D.D.’s father, testified that J.A. was violent toward him on four or five

occasions, threatened him with a knife several times, and slashed his tires. He

believed that J.A.’s behavior endangered the children. D.A. testified that she was

afraid for the children when they were alone with J.A. She had seen J.A. pull

C.A.’s hair, and she testified that J.A. constantly screamed and cursed at the

children. D.A. testified that the children are afraid of J.A., that C.A. never asks

about J.A., and that D.D. asks if she will see J.A. again, but does not actually ask to

visit J.A.

2 Shannon Sanders, a Family Based Safety Services worker, testified that C.A.

told her that J.A. was mean and yelled, grabbed D.D.’s hair, and threatened to burn

the house down. The children told Sanders that J.A. threatened to hit a tree while

driving so the children would “fly through the windshield and smash into the tree.”

Sanders also learned of instances when J.A. threw D.D.’s homework across the

yard and threatened to harm herself with a knife. Believing the children’s physical

and emotional well-being to be in danger, Sanders pursued an emergency order of

removal. J.A. told Sanders that the children’s allegations were untrue and Sanders

testified that J.A. was yelling, cursing, irate, and belligerent.

Caseworker Marcella Pena testified that J.A. did not participate in services

and claimed that she did not have time to participate in services. Pena testified that

before the first scheduled visitation, J.A. became upset and stormed out when

discussing her service plan. Pena testified that D.D. was excited to see J.A., missed

J.A., and asked when she could go home. At the end of the visit, D.D. was

emotional, upset, and stated she would miss J.A. During the second visit, J.A.

became upset and wanted to take photographs when she noticed that the children

were sunburned. When Pena intervened, J.A. began yelling at Pena and stated that

the children were being abused and neglected. Pena testified that J.A. began

cursing and stormed out when an investigator opined that the slight sunburns were

3 normal. J.A. called Pena a “Mexican slut.” Pena testified that the children were

“hysterical” during this episode.

Caseworker Angela Killian testified to two other visits, one of which was

cancelled because J.A. was late and another that was shortened by J.A. Killian also

testified that J.A. never completed required services. According to Killian, C.A.

has anger issues, D.D. has anxiety, and both children have adjustment disorder.

She testified that the children began improving after they stopped visiting with J.A.

and that they had not asked to see J.A.

Supervisor Chris Vien testified that during a previous court hearing, J.A.

cursed at D.A. and had to be placed in handcuffs. Vien stated that J.A. was not

capable of maintaining stability and rationality. Pena testified that she has never

had an interaction with J.A. in which J.A. remained rational and stable. Sanders

testified that J.A. never acted normal during her interactions with Sanders.

J.A. denied cutting herself or threatening to kill herself. J.A. further denied

placing a knife to her child’s throat, pulling her child’s hair, telling the children

that she would burn the house down with them inside, or telling the children that

she would hit the brakes so they would be thrown through the car windshield. She

did not believe she had been verbally abusive to the children, and she testified that

4 her daughter was untruthful when she said that J.A. had called her bad names. J.A.

believed that she is able to care for her children and is mentally stable.

J.D. and D.A. testified that it is in the children’s best interest that J.A.’s

parental rights be terminated. D.A. believed that J.A.’s behavior had endangered

the children’s emotional and physical well-being, and she opined that the

children’s physical health would be endangered if the children were parented by

J.A. Pena did not believe that the children would be safe in J.A.’s care, and she

opined that J.A.’s rights needed to be terminated. Sanders opined that J.A. is not

stable, the children are afraid of J.A., and termination of J.A.’s parental rights is in

the children’s best interest.

Sufficiency of the Evidence

In issue one, J.A. challenges the legal and factual sufficiency of the evidence

to support termination of her parental rights. In its order of termination, the trial

court found, by clear and convincing evidence, that J.A.: (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which

endanger their physical or emotional well-being; (2) engaged in conduct or

knowingly placed the children with persons who engaged in conduct which

endangers the children’s physical or emotional well-being; (3) failed to support the

children in accordance with her ability; (4) contumaciously refused to submit to a

5 reasonable and lawful court order; (5) constructively abandoned the children; (6)

failed to comply with the provisions of a court order that specifically established

the actions necessary for J.A. to obtain return of the children; and (7) used a

controlled substance in a manner that endangered the children’s health or safety.

See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (F), (I), (N), (O), (P) (West Supp.

2012). On appeal, J.A. only challenges termination grounds (D), (E), (F), (I), and

(O). For this reason, she has waived any complaint concerning the sufficiency of

the evidence to support termination grounds (N) and (P). See In the Interest of

C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.).

J.A. also challenges the legal and factual sufficiency of the evidence to

support the trial court’s best interest finding. To challenge the factual sufficiency

of the evidence, the appealing party must have first asserted the point in a motion

for new trial. Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534,

547 (Tex. 2003). To preserve a legal sufficiency challenge for appeal, the

appealing party must have asserted the point by (1) a motion for instructed verdict,

(2) a motion for judgment notwithstanding the verdict, (3) an objection to the

submission of the issue to the jury, (4) a motion to disregard the jury’s answer to a

vital fact issue, or (5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-

11 (Tex. 1991). The record does not indicate that J.A. filed a proper motion or

6 lodged a proper objection raising her sufficiency challenges. See Tex. R. Civ. P.

324(b)(2); see also M.S., 115 S.W.3d at 547; Cecil, 804 S.W.2d at 510-11.

Appointed counsel’s unexcused failure to preserve a valid sufficiency point

for appeal may constitute ineffective assistance of counsel in a termination case.

In the Interest of C.T., No. 09-11-00694-CV, 2012 Tex. App. LEXIS 2485, at *3

(Tex. App.—Beaumont Mar. 29, 2012, no pet.) (mem. op.) (addressing sufficiency

issues in a termination case when issues were not preserved and no ineffective

assistance claim was raised). J.A. does not argue ineffective assistance of counsel

on this basis and counsel is not automatically ineffective for failing to preserve the

issues. See id. If counsel could have reasonably believed the evidence to be

sufficient, counsel’s performance does not fall below an objective standard of

reasonableness merely because the verdict was not challenged. See id.; see In the

Interest of S.J.T.B., No. 09-12-00098-CV, 2012 Tex. App. LEXIS 9445, at **17-

25 (Tex. App.—Beaumont Nov. 15, 2012, no pet.) (mem. op.) (addressing

sufficiency issues in the context of ineffective assistance). Accordingly, we will

address J.A.’s sufficiency complaint regarding the trial court’s best interest finding

and, in doing so, will consider the following non-exhaustive list of factors: (1) the

children’s desires; (2) emotional and physical needs of the children now and in the

future; (3) emotional and physical danger to the children now and in the future; (4)

7 parental abilities of the individual seeking custody; (5) programs available to assist

the individual to promote the children’s best interest; (6) the individual’s plans for

the children; (7) stability of the home or proposed placement; (8) acts or omissions

of the parent which may indicate that the existing parent-child relationship is not

proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976); see Tex. Fam. Code. Ann. § 263.307(b)

(West 2008).

In this case, the trial court heard J.A. deny harming or threatening her

children or being verbally abusive. J.A. testified that she is able to care for her

children and is mentally stable to do so. She explained that she is in school, has an

apartment, receives child support, and has a job. However, D.A. testified that she

and her husband have had to help J.A. pay her bills on numerous occasions and

that J.A. often said she could not care for her children. D.A. testified that J.A. had

not provided food, clothing, or the money she received in child support to the

children. The Department presented evidence that J.A. had not participated in

required services.

The trial court also heard evidence that J.A. struck her children, pulled their

hair, threatened to burn the house down with the children inside, cursed and yelled

at the children, called the children names, threatened C.A. with a knife, threatened

8 to cause the children to be thrown through the car windshield while driving,

threatened to harm herself, and behaved violently toward D.D.’s father. The trial

court heard evidence of J.A.’s unstable and irrational interactions with others. C.A.

and D.D. both testified to feeling afraid when living with J.A., C.A. testified that

she wanted to live with D.A., and D.D. testified that it is “good” living with her

grandparents. D.A. testified that C.A. never asks about J.A. and D.D. does not ask

to visit J.A. C.A. testified that she feels safe at her grandmother’s home, but not

with J.A. Pena testified that, after J.A.’s outburst at the second visitation, the

children no longer wanted to stay with J.A. Killian testified that C.A. has anger

issues, D.D. has anxiety, and both children have adjustment disorder, but that the

children began to improve after they stopped visiting with J.A. The trial court

heard evidence that the children are doing well in their grandparents’ home, that

D.A.’s home would be a suitable placement for the children, and that the

Department was seeking placement of the children with their grandparents.

Witnesses testified that J.A. had endangered the children’s physical and emotional

well-being and that her parental rights should be terminated.

“[T]he prompt and permanent placement of the child in a safe environment

is presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a)

(West 2008). The trial court could reasonably conclude that J.A. was unable to

9 provide a safe environment for the children. The trial court could reasonably have

formed a firm belief or conviction that termination of J.A.’s parental rights was in

the children’s best interest. See id. §§ 161.001(2) (West Supp. 2012), 263.307(b);

see also In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Holley, 544

S.W.2d at 371-72. We overrule issue one.

Ineffective Assistance

In issue two, J.A. contends that trial counsel rendered ineffective assistance

by failing to present an appropriate defense, present witnesses on J.A.’s behalf,

cross-examine more witnesses on J.A.’s behalf, and fully argue the need for a

continuance. J.A. complains that trial counsel agreed to the admission of exhibits

that contained hearsay and hearsay within hearsay and allowed prejudicial and

irrelevant evidence to be presented to the trial court.

To establish ineffective assistance, a client must show that: (1) counsel’s

performance was deficient; and (2) the deficient performance prejudiced the client,

such that the client was deprived of a fair trial. Strickland v. Washington, 466 U.S.

668, 687 (1984). The client must show that counsel’s representation fell below an

objective standard of reasonableness and there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 688, 694. Our review of counsel’s performance is highly

10 deferential and we presume that counsel’s conduct falls within the range of

reasonable professional assistance, including that of strategy or professional

opinion. Id. at 689; M.S., 115 S.W.3d at 549. We consider all circumstances

surrounding the case and primarily focus on whether counsel performed in a

“reasonably effective” manner. M.S., 115 S.W.3d at 545.

The record in this case is silent regarding the reasons or strategies behind the

actions of J.A.’s trial counsel. See Walker v. Tex. Dep’t of Family & Protective

Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)

(“We may not speculate to find trial counsel ineffective when the record is silent

regarding counsel’s reasons for his actions.”). Moreover, J.A. cannot demonstrate

that, but for the alleged errors by her counsel, the result of the termination

proceeding would have been different. See Strickland, 466 U.S. at 694. The record

contains sufficient evidence of endangerment to support the trial court’s judgment.

See In the Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth

2009, no pet.); see also In the Interest of E.A.G., 373 S.W.3d 129, 143 (Tex.

App.—San Antonio 2012, pet. denied); In the Interest of J.T.G., 121 S.W.3d 117,

125 (Tex. App.—Fort Worth 2003, no pet.). Under these circumstances, J.A.

cannot satisfy both Strickland prongs; therefore, we overrule issue two.

11 Denial of Motion for Continuance

In issue three, J.A. challenges the denial of her motion for continuance. We

review a trial court’s denial of a motion for continuance for an abuse of discretion.

In the Interest of K.S., No. 09-12-00425-CV, 2013 Tex. App. LEXIS 2694, at *7

(Tex. App.—Beaumont Mar. 14, 2013, no pet.) (mem. op.). The trial court cannot

grant a motion for continuance absent sufficient cause supported by affidavit, by

consent of the parties, or by operation of law. Id.; Tex. R. Civ. P. 251.

On the day of trial, J.A. filed a motion for continuance, in which she alleged

that she is pregnant and had been hospitalized due to complications and could not

travel. Trial counsel argued for a continuance until J.A. delivered her baby and

could “be present to actively participate in this proceeding.” The trial court denied

the motion, but granted trial counsel’s request to allow J.A. to participate via

telephone. During J.A.’s testimony, the trial court stopped J.A. on several

occasions to admonish J.A. to answer the questions posed to her. The trial court

explained that if counsel’s questions and J.A.’s answers were not limited to

relevant, material topics, J.A.’s testimony would not continue. The trial court

eventually ended the testimony as a result of J.A.’s nonresponsive answers. On

appeal, J.A. argues that the trial court abused its discretion by denying her motion

12 for continuance when she had been hospitalized and could not be present at trial.

J.A. further complains of the trial court’s decision to end her testimony.

A trial court has the authority to exercise reasonable control over the

testimony of the witnesses and presentation of the evidence and has broad

discretion over the conduct of the proceedings. In the Interest of Z.C.J., No. 04-12-

00010-CV, 2012 Tex. App. LEXIS 6937, at *8 (Tex. App.—San Antonio Aug. 22,

2012, pet. denied) (mem. op.); In the Interest of D.S., 333 S.W.3d 379, 388 (Tex.

App.—Amarillo 2011, no pet.). The trial court granted J.A.’s request to testify via

telephone and J.A. was represented by counsel during the proceedings. We

conclude that the trial court did not abuse its discretion by denying J.A.’s motion

for continuance. See generally D.S., 333 S.W.3d at 387-88 (Because father was

allowed to testify via telephone and was represented by counsel, the trial court did

not abuse its discretion by denying father’s request for a bench warrant.). We

overrule issue three.

Notice of Trial

In issue four, J.A. argues that she did not receive a proper notice of the trial

setting. Texas Rule of Civil Procedure 245 states, in pertinent part:

The Court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has 13 been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties.

Tex. R. Civ. P. 245. In August 2012, the trial court signed a permanency hearing

order setting trial for January 18, 2013. In December 2012, the trial court granted a

motion to withdraw filed by J.A.’s attorney. The order stated that trial was

scheduled for January 17, 2013. On December 28, 2012, the Department faxed

notice of the trial setting to J.A.’s former attorney.

On appeal, J.A. contends that the notice was provided too late for proper

preparation for trial. The record does not indicate that J.A. presented this

contention in her motion for continuance or at any other time before trial. See In

the Interest of A.H., No. 2-06-211-CV, 2006 Tex. App. LEXIS 10249, at **3-4

(Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem. op.) (A party must object

to insufficiency of notice under rule 245 before trial; otherwise, the error is

waived.). Moreover, J.A. received more than forty-five days’ notice of the first trial

setting. See Tex. R. Civ. P. 245; see also In the Interest of B.W.F., No. 07-11-

00511-CV, 2012 Tex. App. LEXIS 5269, at **5-6 (Tex. App.—Amarillo June 29,

2012, no pet.) (mem. op.). Nor has J.A. demonstrated that the preparation time she

received probably caused the rendition of an improper judgment or prevented her

14 from presenting her case to this Court. See B.W.F., 2012 Tex. App. LEXIS 5269, at

**6-9. We overrule issue four and affirm the trial court’s judgment.

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on July 30, 2013 Opinion Delivered August 28, 2013 Before McKeithen, C.J., Kreger and Horton, JJ.