In the Interest of D. J. R., D.J.O. and I.L.A., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 29, 2023
• Docket: 04-23-00568-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-23-00568-CV

IN THE INTEREST OF D.J.R., D.J.O. and I.L.A.

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-01589 Honorable Raul Perales, Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice

Delivered and Filed: November 29, 2023

AFFIRMED

Jessica R. and Daniel O. 1 appeal the trial court’s order terminating their parental rights. We

affirm.

BACKGROUND

On September 10, 2021, the Department of Family and Protective Services (“the

Department”) filed the underlying suit to terminate Jessica R.’s and Daniel O.’s parental rights,

along with an affidavit in support of emergency removal of then six-year-old D.J.R., four-year-old

D.J.O., and three-year-old I.L.A. The children were removed and placed under the care of the

Department. After a bench trial, the trial court terminated Jessica R.’s parental rights pursuant to

1 To protect the identity of the minor children, we refer to the parties by fictitious names, initials, or aliases. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-23-00568-CV

section 161.001(b)(1)(D), (E), (N), and (O) of the Texas Family Code. The trial court also found

that termination of her parental rights was in the best interest of the children. The trial court also

terminated Daniel O.’s parental rights pursuant to section 161.001(b)(1)(N) and (O), and found

that termination of his parental rights was in the best interest of his son D.J.O. 2 On appeal, Jessica

R. argues the evidence is legally and factually insufficient to support the trial court’s predicate (D)

and (E) findings. Similarly, Daniel O. argues the evidence is legally and factually insufficient to

support the trial court’s predicate (N) and (O) findings. Both Jessica R. and Daniel O. argue the

evidence is legally and factually insufficient to support the trial court’s best-interest findings.

Finally, Daniel O. argues (1) the trial court abused its discretion in making the Department the

permanent managing conservator of his son D.J.O., and (2) he was denied effective assistance of

counsel.

SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the

Department has the burden to prove by clear and convincing evidence that parental rights should

be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that

termination of parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b)(1),

(2). In reviewing the legal sufficiency of the evidence to support these findings, we look “at all the

evidence in the light most favorable to the finding to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true.” In re J.O.A., 283 S.W.3d

336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In reviewing the

factually sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. “If,

2 The fathers of D.J.R. and I.L.A. did not appeal the termination of their parental rights.

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in light of the entire record, the disputed evidence that a reasonable factfinder could not have

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

a firm belief or conviction, then the evidence is factually insufficient.” Id. (quoting In re J.F.C.,

96 S.W.3d at 266). Under these standards, the factfinder is the sole judge of the weight and

credibility of the evidence. Id.

B. Jessica R.

Jessica R.’s parental rights were terminated pursuant to multiple predicate grounds.

However, in her brief, Jessica R. challenges only the trial court’s findings under subsections (D)

and (E); she does not challenge the trial court’s findings under subsections (N) and (O). If, as here,

the trial court terminates the parent-child relationship on multiple grounds under section

161.001(1), we may affirm on any one ground because, in addition to finding that termination is

in the child’s best interest, only one predicate violation under section 161.001(1) is necessary to

support a termination decree. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.J.H., 381

S.W.3d 606, 611-12 (Tex. App.—San Antonio 2012, no pet.). Thus, because Jessica R. has not

challenged the trial court’s findings under subsections (N) and (O), the trial court’s order

terminating her parental rights may be affirmed on those grounds so long as we determine under

Jessica R.’s second issue that there is legally and factually sufficient evidence to support the trial

court’s best-interest finding.

However, even though the trial court’s unchallenged findings under subsections (N) and

(O) may support its termination order, we must still consider Jessica R.’s issues relating to the

sufficiency of the evidence to support the trial court’s findings under subsections (D) and (E).

Because termination findings under subsections (D) and (E) may serve as the basis for a future

termination of parental rights proceeding, the supreme court has explained that due process

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requires that we address any appellate issue regarding the sufficiency of the evidence of a trial

court’s finding under either (D) or (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019).

1. Subsection (D) Predicate Ground

Subsection (D) allows termination of parental rights if, along with a best-interest finding,

the factfinder finds by clear and convincing evidence that the parent “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger the physical

or emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D). “A child is endangered

when the environment creates a potential for danger that the parent is aware of but consciously

disregards.” In re C.J.G., No. 04-19-00237-CV, 2019 WL 5580253, at *2 (Tex. App.—San

Antonio Oct. 30, 2019, no pet.) (mem. op.) (quoting In re S.R., 452 S.W.3d 351, 360 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied)). “Endanger” means “to expose a child to loss or injury,

or to jeopardize a child’s emotional or mental health.” Id. at *3 (citing In re M.C., 917 S.W.2d

268, 269 (Tex. 1996)). “[A] parent need not know for certain that the child is in an endangering

environment, awareness of such a potential is sufficient.” Id. at *2 (quoting In re R.S.-T., 522

S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.)). “‘[I]n evaluating endangerment under

subsection D, we consider the child’s environment before the Department obtained custody of the

child.’” Id. (quoting In re S.R., 452 S.W.3d at 360).

Under subsection (D), the trial court examines “evidence related to the environment of the

children to determine if the environment was the source of endangerment to the children’s physical

or emotional well-being.” In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no

pet.). “Conduct of a parent in the home can create an environment that endangers the physical and

emotional well-being of a child.” Id. “For example, abusive or violent conduct by a parent or other

resident of a child’s home may produce an environment that endangers the physical or emotional

well-being of a child.” Id. “Parental and caregiver illegal drug use and drug-related criminal

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activity likewise supports the conclusion that the children’s surroundings endanger their physical

or emotional well-being.” Id.

At trial, there was evidence the Department became involved in this case when three-year-

old I.L.A. needed medical intervention to remove a feeding tube and there was no responsible adult

to consent to the procedure. Jessica R. and Daniel O. were both incarcerated at that time. Jessica

R. had left the children with a woman named Heidi who had no authority to consent to medical

care. In her brief, Jessica R. argues that because she was in jail at the time the children were

removed, there is legally and factually insufficient evidence to support termination under

subsection (D) grounds. However, in doing so, Jessica R. does not mention other evidence in the

record to support endangerment of the children before their removal, including a pattern of

domestic violence and use of illegal substances.

At trial, the caseworker testified that the Department began investigating this case “[d]ue

to [Jessica R.] being incarcerated,” “substance abuse,” and “domestic violence.” The caseworker

testified about Jessica R.’s history with the Department. In 2012, Jessica R. was referred to family-

based services, which ultimately resulted in those children being removed and her parental rights

terminated. In 2016, Jessica R. was incarcerated for endangering a child, which also triggered a

case with the Department. The referral in the instant case originated on February 11, 2021, at which

time Jessica R. was incarcerated. Because of her incarceration, Jessica R. was not present to

consent to necessary medical treatment for I.L.A., and she had not given the authority to consent

to another responsible adult.

There was evidence that Jessica R. had been involved in incidents of domestic violence

with Daniel O. during their six-year, on-and-off, relationship and with previous boyfriends,

including I.L.A.’s father. There was also evidence admitted at trial that six-year-old D.J.R. said

she had been exposed to multiple incidents of domestic violence, causing her to feel unsafe and

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scared at her home. Four-year-old D.J.O. also reported being exposed to domestic violence and

feeling unsafe in his home. He talked to the licensed professional counselor about “somebody

having a gun” and “hiding in a closet.” In addition to domestic violence, there was also evidence

that Jessica R. used illegal substances before the removal of the children. Daniel O. admitted at

trial that both he and Jessica R. used illegal substances and such use was “always” part of their

relationship.

Further, there was evidence of the impact of Jessica R.’s conduct on the children. A

licensed professional counselor, who is D.J.R.’s and I.L.A.’s therapist, testified that D.J.R. has

post-traumatic stress disorder and is learning that she does not need “to parent her little sister, that

she can trust the adults that are in her world to do that in a healthy and safe manner.” She testified

neither D.J.R. nor I.L.A. wish to return to the care of Jessica R. because they did not feel safe at

home. The counselor also testified that she had six sessions with D.J.O., and while he did not

specifically say he did not want to return home, he did say he did not feel safe living with Jessica

R. Thus, in looking at all the evidence in the light most favorable to the trial court’s finding, we

conclude a reasonable trier of fact could have formed a firm belief or conviction that Jessica R.’s

pattern of domestic violence, her criminal conduct, and her illegal drug use produced an

environment that endangered the physical or emotional well-being of the children. See In re J.T.G.,

121 S.W.3d at 125. Further, even in considering the disputed evidence, we conclude a trier of fact

could have reasonably formed a firm belief or conviction that Jessica R. produced an environment

that endangered the physical or emotional well-being of the children. Therefore, we hold the

evidence is legally and factually sufficient to support the trial court’s finding under subsection (D).

2. Subsection (E) Predicate Ground

Subsection (E) allows termination of parental rights if the trial court finds by clear and

convincing evidence that the parent “engaged in conduct or knowingly placed the child with

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persons who engaged in conduct which endangers the physical or emotional well-being of the

child.” TEX. FAM. CODE § 161.001(b)(1)(E). Under subsection (E), the trial court must determine

“whether there is evidence that a parent’s acts, omissions, or failures to act endangered the child’s

physical or emotional well-being.” In re C.J.G., 2019 WL 5580253, at *2. Under both subsection

(D) and (E), “endanger” means “to expose a child to loss or injury, or to jeopardize a child’s

emotional or mental health.” In re C.J.G., 2019 WL 5580253, at *3 (citing In re M.C., 917 S.W.2d

at 269). “However, there are some distinctions in the application of subsections (D) and (E).” Id.

(citation omitted). Termination under subsection D may be based upon a single act or omission.

Id. at *3 (citing In re R.S.-T., 522 S.W.3d at 109). In contrast, termination under subsection E “may

not rest on a single act or omission; it must be ‘a voluntary, deliberate, and conscious course of

conduct.’” Id. (quoting Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied)). Additionally, “[i]n evaluating endangerment under subsection D, we consider

the child’s environment before the Department obtained custody of the child.’” Id. (quoting In re

S.R., 452 S.W.3d at360) (emphasis added). “‘Under subsection E, however, courts may consider

conduct both before and after the Department removed the child from the home.’” Id. (quoting In

re S.R., 452 S.W.3d at 360) (emphasis added).

“An endangerment finding often involves physical endangerment, but the statute does not

require that the parent’s conduct be directed at the child or that the child suffer actual injury.” In

re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *5 (Tex. App.—San Antonio Aug. 21,

2019, pet. denied) (mem. op.). “Rather, the specific danger to the child’s well-being may be

inferred from the parent’s misconduct alone.” Id. (citation omitted). “Conduct that subjects a child

to a life of uncertainty and instability endangers the physical and emotional well-being of a child.”

Id. “Thus, evidence of illegal drug use by a parent and its effect on a parent’s life and her ability

to parent may establish an endangering course of conduct under subsection (E).” Id.; see In re

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J.O.A., 283 S.W.3d at 346 (holding evidence sufficient to support finding of endangerment even

though father had made significant recent improvements because “evidence of improved conduct,

especially of short-duration, does not conclusively negate the probative value of a long history of

drug use and irresponsible choices”); In re K-A.B.M., 551 S.W.3d 275, 287 (Tex. App.—El Paso

2018, no pet.) (“A parent’s use of drugs and its effect on his or her ability to parent may qualify as

an endangering course of conduct.”); Walker v. Tex. Dep’t of Fam. & Protective Servs., 312

S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“Because it exposes the child

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

termination under section 161.001(1)(E).”).

Here, the same evidence of Jessica R.’s pattern of domestic violence, her illegal drug use,

and the ramifications noted in the children as testified to by the counselor support termination

pursuant to subsection (E). In addition to this evidence of Jessica R.’s conduct before removal,

there was also evidence related to her conduct after removal. While Jessica R. was not incarcerated

at the time of trial, the caseworker testified Jessica R. had a pending “assault charge” related to her

niece from an incident in November 2021. The caseworker further testified that Jessica R.

continued to use illegal substances after removal. Jessica R. “show[ed] up to visits with her

children with red eyes and slurred speech” and “[did] not test on a regular basis with the

Department.” See In re T.N.J.J., No. 04-19-00228-CV, 2019 WL 6333470, at *5 (Tex. App.—San

Antonio Nov. 27, 2019, no pet.) (explaining that the factfinder can reasonably infer from parent’s

failure to appear for drug testing that he was avoiding testing because he was using illegal drugs).

Further, in February 2023, right before the underlying trial began, Jessica R. submitted to a

urinalysis and tested positive for tetrahydrocannabinol.

Additionally, the caseworker testified about an incident that occurred a month before trial.

The caseworker was present while Jessica R. was visiting the children. D.J.R. did not want to speak

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with Jessica R. and instead played with toys. Jessica R. attempted to take a picture with the

children, but D.J.R. did not cooperate. Jessica R. then said to D.J.R., “Well, then fine. You cannot

come home, and I’ll take the other two children home.” D.J.R. responded by leaving the area.

I.L.A. began taking pictures of Jessica R. and D.J.O., and then decided to also take a picture of

D.J.R. In response, D.J.R. yelled at I.L.A. “to tell [Jessica R.] to go away and then kicked in” the

direction of Jessica R. Jessica R. saw D.J.R.’s gesture and “got very aggressive and started yelling

at [D.J.R.],” telling her not to kick, “and then picked up [D.J.R.] by her elbows and dragged her to

the visitation room across the way.” The caseworker testified D.J.R. was kicking and screaming

for Jessica R. to let go of her, but Jessica R. would not “allow[] her to have her space.” Jessica R.

blocked D.J.R. from leaving the room and then grabbed D.J.R. “very aggressively and tried to

restrain” D.J.R. “She gripped [D.J.R.] with her arms around and forced her to stay in one position

on the ground.” The caseworker intervened and attempted to deescalate the situation, telling

Jessica R. to give D.J.R. some space until she “cools down.” According to the caseworker, Jessica

R. became more aggressive and picked up D.J.R., saying “I’m her mom. I can do whatever I want

to do.” The caseworker testified she again tried to redirect Jessica R. During the incident, Jessica

R. hit and pushed the caseworker’s co-worker. The police were called, and Jessica R. was arrested.

The caseworker testified that her co-worker was pressing charges.

When asked about this incident on the witness stand, Jessica R. invoked her right not to

incriminate herself under the Fifth Amendment. In a civil case, a factfinder may “draw reasonable

inferences from a party’s assertion of the privilege against self-incrimination.” Lozano v. Lozano,

52 S.W.3d 141, 150 (Tex. 2001). Although parental rights are constitutional in nature, a

termination proceeding is a civil proceeding for purposes of the privilege against self-

incrimination. Murray v. Texas Dep’t of Fam. & Protective Servs., 294 S.W.3d 360, 367 (Tex.

App.—Austin 2009, no pet.); In re C.J.F., 134 S.W.3d 343, 352–53 (Tex. App.—El Paso 2003,

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pet. denied). This is true even if there are pending criminal charges arising out of the same conduct.

Murray, 294 S.W.3d at 367. Therefore, the trial court was free to draw a negative inference from

Jessica R.’s refusal to answer questions about the incident described above involving D.J.R. and

the caseworker.

Thus, in looking at all the evidence in the light most favorable to the trial court’s finding,

we conclude a reasonable trier of fact could have formed a firm belief or conviction that Jessica

R. engaged in conduct that endangered the physical or emotional well-being of the children.

Further, even in considering the disputed evidence, we conclude a trier of fact could have

reasonably formed a firm belief or conviction that Jessica R. engaged in conduct that endangered

the physical or emotional well-being of the children. Therefore, we hold the evidence is legally

and factually sufficient to support the trial court’s finding under subsection (E).

3. Best Interest of the Children

Jessica R. also argues the evidence is legally and factually insufficient to support the trial

court’s finding that termination of her parental rights is in the children’s best interest. See TEX.

FAM. CODE § 161.001(b)(2); In re J.O.A., 283 S.W.3d at 344 (explaining legal and factual

sufficiency standard). There is a strong presumption that the best interest of a child is served by

keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining

whether the child’s parent is willing and able to provide the child with a safe environment, the trial

court should consider the relevant factors set out in section 263.307. See TEX. FAM. CODE

§ 263.307(b). 3 In addition to these statutory factors, in considering the best interest of the child, a

3 These factors include (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out- of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the

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factfinder may also consider the nonexclusive list of factors set forth by the Texas Supreme Court

in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). 4 The Holley factors are neither all-

encompassing nor does a court need to find evidence of each factor before terminating the parent-

child relationship. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); see In re E.A.R., 672 S.W.3d 716,

722 (Tex. App.—San Antonio 2023, pet. denied) (noting that a best-interest finding does not

require proof of any particular factor). “Evidence of a single factor may be sufficient for a

factfinder to form a reasonable belief or conviction that termination is in the child’s best interest.”

In re E.A.R., 672 S.W.3d at 722 (quoting In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208,

at *3 (Tex. App.—San Antonio July 25, 2018, pet. denied)). Finally, in determining whether

termination of the parent-child relationship is in the best interest of a child, a factfinder may also

judge a parent’s future conduct by her past conduct. In re E.A.R., 672 S.W.3d at 722; In re E.D.,

419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). The predicate grounds for

child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b). 4 These factors include, but are not limited to, the following: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the child’s best interest; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions that may indicate the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013) (citing Holley, 544 S.W.2d at 371-72).

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termination may also be probative of best interest. In re C.H., 89 S.W.3d at 28; In re E.A.R., 672

S.W.3d at 722.

Jessica R. argues that “[t]here is no evidence [she] is unable or unwilling to meet the

children’s physical and emotional needs or provide the child[ren] with a safe and stable home.”

She argues that she is employed at a restaurant and has housing for the children. She further

emphasizes that her home is “safe and appropriate.” However, as noted previously, there is

evidence that Jessica R. has a pattern of criminal activity, domestic violence, and illegal substance

abuse. As noted, there was also evidence of how Jessica R.’s conduct has negatively impacted the

children. The children do not feel safe with their mother and do not desire to return to her. Further,

from the evidence presented of the incident between Jessica R., D.J.R., and the caseworker, a

rational factfinder could conclude that Jessica R. has not learned how to control her anger. There

was also evidence that the children have bonded with their placements, who are meeting their

needs. Finally, the caseworker testified that Jessica R. had not sufficiently changed the behaviors

that led to the removal of the children. In looking at all the evidence in the light most favorable to

the trial court’s finding, we conclude a reasonable trier of fact could have formed a firm belief or

conviction that the termination of Jessica R.’s parental rights was in the children’s best interest.

Further, while Jessica R. points to her testimony that she has completed many services, has

employment and housing, and believes she has changed her conduct, a rational trier of fact could

have found her testimony not credible and determined termination of her rights was in the best

interest of the children. Therefore, we hold the evidence is legally and factually sufficient to

support the trial court’s best-interest finding.

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C. Daniel O.

1. Predicate Grounds

Daniel O.’s parental rights were terminated pursuant to subsections (N) and (O).

Subsection (N) allows termination of parental rights if a parent has constructively abandoned the

child who has been in the permanent or temporary managing conservatorship of the Department

for not less than six months and: (1) the Department made reasonable efforts to return the child to

the parent; (2) the parent has not regularly visited or maintained significant contact with the child;

and (3) the parent has demonstrated an inability to provide the child with a safe environment. See

TEX. FAM. CODE § 161.001(b)(1)(N). Subsection (O) allows termination of parental rights if the

parent fails 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 who has been in the permanent or

temporary managing conservatorship of the Department for not less than nine months as a result

of the child’s removal from the parent under chapter 262 for the abuse or neglect of the child. See

id. § 161.001(b)(1)(O). On appeal, Daniel O. argues the evidence is legally and factually

insufficient to support termination on either subsection (N) or subsection (O) grounds.

a. Subsection (N)

At the time of trial, Daniel O. was incarcerated for having committed the offense of being

a felon in possession of a firearm and is serving a three-year sentence. He testified that he would

be eligible for parole in January 2024 and that his discharge date is October 2024. He argues there

is no evidence the Department made reasonable efforts to return his son D.J.O. to him under

subsection (N) because he was never served with a service plan. Daniel O. does not challenge the

other two requirements under subsection (N). Thus, we will address only whether there is legally

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and factually sufficient evidence that the Department made reasonable efforts to return D.J.O. to

Daniel O. under subsection (N).

“A family service plan is designed to reunify a parent with a child who has been removed

by the Department.” In re A.Q.W., 395 S.W.3d 285, 288 (Tex. App.—San Antonio 2013, no pet.),

overruled on other grounds by In re J.M.T., 617 S.W.3d 604 (Tex. App.—San Antonio 2020, no

pet.). “Implementation of a family service plan by the Department is considered a reasonable effort

to return a child to its parent if the parent has been given a reasonable opportunity to comply with

the terms of the plan.” Id. at 289. Daniel O. argues that because there is no service plan related to

him in the record and because there is no evidence he was served with such a service plan, the

evidence is legally and factually insufficient to show that the Department made reasonable efforts

to return his son to his care. However, implementation of a family service plan is not the only

manner in which the Department can show that it made reasonable efforts. See In re L.C.M., 645

S.W.3d 914, 921 (Tex. App.—El Paso 2022, no pet.) (rejecting appellant’s argument that the

absence of a properly executed service plan in the record equated to the Department not making

reasonable efforts to return the child to the parent). The “Department’s undertaking of reasonable

reunification efforts ‘does not necessarily mean the child must be physically delivered to the

incarcerated parent.’” Id. (quoting In re J.G.S., 550 S.W.3d 698, 704 (Tex. App.—El Paso 2018,

no pet.)). Instead, “proof the Department made ‘efforts to place the child with relatives may

constitute legally and factually sufficient evidence to support the trial court’s finding that the

Department made reasonable efforts.’” Id. (quoting In re J.G.S., 550 S.W.3d at 705).

Here, Daniel O. admitted during his testimony he had contact with the Department about

the underlying case. Although Daniel O. was incarcerated for much of the pendency of the

underlying case, he testified that when he was arrested for being a felon in possession of a firearm,

he was able to “bond out” and learned about the underlying case from his mother. Daniel O. was

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asked at trial: “So when you were out, was it made clear to you that there were things that you

needed to do for this case?” Daniel O. replied, “I mean, yes, of course. That’s proper procedure

for any CPS case.” The caseworker also testified that she made contact with Daniel O. and that

Daniel O. gave her information so that she could locate his brother and study him as a possible

placement for D.J.O. According to the caseworker, the Department attempted to conduct a home

study of Daniel O.’s brother, but was unable to get in contact with him so the study was denied.

The caseworker testified she attempted multiple times to contact Daniel O.’s brother.

In looking at all the evidence in the light most favorable to the trial court’s finding, we

conclude a reasonable trier of fact could have formed a firm belief or conviction that the

Department made reasonable efforts to return D.J.O. to Daniel O. Further, we hold in looking at

the disputed evidence, the trial court could have reasonably determined the Department made

reasonable efforts. Therefore, we hold the evidence is legally and factually sufficient to show that

the Department made reasonable efforts to return D.J.O. to Daniel O. See In re L.C.M., 645 S.W.3d

at 922 (explaining that “the Department’s efforts to place the child with relatives constitutes legally

and factually sufficient evidence that reunification was attempted”).

Having held the evidence is legally and factually sufficient to support termination under

subsection (N), we need not reach Daniel O.’s issue relating to the sufficiency of the evidence to

support termination on subsection (O) grounds. See In re D.J.H., 381 S.W.3d at 611-12 (explaining

that when the trial court terminates the parent-child relationship on multiple grounds, the court of

appeals may affirm on any one ground because, in addition to finding that termination is in the

child’s best interest, only one predicate violation under section 161.001(1) is necessary to support

a termination decree).

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2. Best Interest of J.M.O.

Daniel O. argues the evidence is legally and factually insufficient to support the trial court’s

finding that termination of his parental rights is in D.J.O.’s best interest. He points to evidence that

he was close to all the children, including his son D.J.O. He emphasizes that he was in a

relationship with Jessica R. for six or seven years and that he has known all three children since

they were born “and was there for everything.” While he admits in his brief that he and Jessica R.

both used illegal drugs, he argues that “he tried to clean himself up and better himself by checking

himself into rehab when Jessica R. was pregnant with D.J.R.” He also recognizes that there is

evidence D.J.R. made an outcry of sexual abuse against him, but points to his own testimony where

he testified the accusation was false and Jessica R. “was under the influence and was very high

when she made the allegations.”

As described above, there was evidence in this case of domestic violence between Daniel

O. and Jessica R. There was also evidence that Daniel O. and Jessica R. used illegal substances

and that Daniel O. has been incarcerated multiple times, including being incarcerated at the time

of trial. And, while Daniel O. argues the evidence of D.J.R.’s outcry of sexual abuse against him

was false, the trial court was the factfinder and the judge of credibility issues in this case. See In

re J.O.A., 283 S.W.3d at 345. The trial court could have reasonably believed Daniel O. was not

being truthful in his denials. See id.

Additionally, D.J.O. was only six years old at the time of trial and had not seen Daniel O.

in over two years. There was evidence D.J.O. had anger management issues and his past behaviors

resulted in him being placed separately from his sisters. The licensed professional counselor

testified that “there was a consensus that if [D.J.O.] could get more individualized attention that it

might be easier to stabilize his behaviors.” The counselor testified she supported D.J.O. being

placed separately because he “was having a lot of issues that—and as was [D.J.R.]—but [D.J.O.]

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especially when they were all three in the home together.” “And it just seemed like [D.J.O.] might

have a better chance of getting the help that he needed, the support that he needed if he was able

to get more intensive and individualized and specialized attention.” According to the counselor,

D.J.O. felt safe with his foster placement, who was meeting his needs. We hold the evidence is

legally sufficient to support the trial court’s best-interest finding.

While Daniel O. points to his own testimony that he had a close relationship with his son

and that his brother may be a possible placement for D.J.O., when we look at the entire record, we

conclude the evidence is factually sufficient to support the trial court’s best-interest finding. We

thus conclude the trial court did not err in terminating Daniel O.’s parental rights.

3. Conservatorship finding

Daniel O. further argues the trial court abused its discretion in appointing the Department

as D.O.’s managing conservator. However, as we have determined the trial court did not err in

terminating Daniel O.’s parental rights, his argument has no merit. See In re C.J.Y., No. 04-20-

00009-CV, 2020 WL 3441248, at *7 (Tex. App.—San Antonio June 24, 2020, pet. denied); see

also In re M.R.D., No. 04-19-00524-CV, 2020 WL 806656, at *9 (Tex. App.—San Antonio Feb.

19, 2020, pet. denied) (holding that because the trial court did not err in terminating appellant’s

rights, appellant no longer had any legal rights to her children and could not challenge the portion

of the termination order that related to the appointment of conservators); In re L.T.P., No. 04-17-

00094-CV, 2017 WL 3430894, at *6 (Tex. App.—San Antonio 2017, pet. denied) (same).

4. Ineffective Assistance of Counsel

Finally, Daniel O. argues that he received ineffective assistance of counsel because (1)

Petitioner’s Exhibit 2 was not the exhibit the Department purported it to be and was admitted

without objection; and (2) his trial counsel had no contact with him before trial. To successfully

raise an ineffective assistance of counsel claim in a parental-termination case, an appellant must

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meet the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under

Strickland, a parent appealing a termination order must show by a preponderance of the evidence

her “trial counsel’s performance fell below an objective standard of reasonableness” and he was

“prejudiced by trial counsel’s defective performance.” In re J.A.B., 562 S.W.3d 726, 729 (Tex.

App.—San Antonio 2018, pet. denied) (citing Strickland, 466 U.S. at 687).

In determining whether trial counsel’s performance fell below an objective standard of

reasonableness, we “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.” In re J.M.O., 459 S.W.3d

90, 93 (Tex. App.—San Antonio 2014, no pet.). An appellant bears the burden to overcome the

presumption that, under the circumstances, the challenged conduct might be considered sound trial

strategy. Strickland, 466 U.S. at 689. “We will not speculate to find trial counsel ineffective when

the record is silent on counsel’s reasoning or strategy.” In re J.R.R., No. 04-22-00076-CV, 2022

WL 3047099, at *2 (Tex. App.—San Antonio Aug. 3, 2022, no pet.) (quoting In re K.L.L.H., No.

06-09-00067-CV, 2010 WL 87043, at *6 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied)).

Accordingly, ineffective assistance of counsel claims must be firmly founded in the record, and

the record must affirmatively show the alleged ineffectiveness. In re D.H.G., No. 04-21-00183-

CV, 2021 WL 5088738, at *3 (Tex. App.—San Antonio Nov. 3, 2021, pet. denied); In re L.C.W.,

411 S.W.3d 116, 127 (Tex. App.—El Paso 2013, no pet.).

“[T]o show prejudice, an appellant must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.” In

re J.M.O., 459 S.W.3d at 93 (internal quotation marks omitted). “‘Reasonable probability’ is that

which is ‘sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S.

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at 694). A failure to establish either prong of the Strickland test is fatal to an ineffective assistance

claim. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003).

The record before us is silent as to trial counsel’s strategy at trial. Daniel O. did not file a

motion for new trial where his trial counsel was called as a witness to explain his actions. See In

re L.C.W., 411 S.W.3d at 128-29 (explaining that trial court should be afforded an opportunity to

explain his actions before being “denounced as ineffective”). Thus, the record does not reflect why

trial counsel, or any other attorney present (including Jessica R.’s appointed counsel), failed to

object to the admission of Petitioner’s Exhibit 2. As the record is silent on counsel’s reasoning or

strategy, we cannot “speculate to find trial counsel ineffective.” In re J.R.R., 2022 WL 3047099,

at *2. Moreover, even if we were to conclude that trial counsel was ineffective by failing to object

a single time to one exhibit, we note that Daniel O. has not shown prejudice in this case. Much of

the evidence discussed in State’s Exhibit 2 was cumulative of other evidence admitted. See In re

R.L.A., No. 12-12-00317-CV, 2013 WL 1092210, at *11 (Tex. App.—Tyler Mar. 15, 2013, no

pet.) (explaining that admission of the challenged evidence is harmless if the evidence was

cumulative).

With regard to Daniel O.’s second assertion of ineffectiveness, the record reflects that when

trial began on March 3, 2023, his trial counsel announced, “not ready,” and stated that he had not

had contact with Daniel O. since the inception of the proceedings. Although the record does not

reflect that counsel requested a continuance, after trial began, the Department called the

caseworker to testify only briefly before trial was recessed until a later date. Trial resumed on April

17, 2023, recessed a second time, and resumed for a final time on May 23, 2023, at which time

Daniel O. was present, and his trial counsel announced, “ready.”

The record is silent as to what efforts counsel made to contact Daniel O. before trial. On a

silent record, we cannot presume his efforts were unreasonable. See In re J.R.R., 2022 WL

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3047099, at *2. Additionally, Daniel O. has failed to prove he was prejudiced by counsel’s actions.

On the first day of trial the caseworker gave very brief testimony and was recalled on the third day

of trial at which time Daniel O. was present and had ample opportunity to cross examine the

caseworker. Thus, we cannot conclude Daniel O. has shown he was prejudiced by his counsel’s

actions. We hold Daniel has not met his burden of showing he was denied effective assistance of

CONCLUSION

For the reasons stated above, we affirm the trial court’s order terminating Jessica R.’s and

Daniel O.’s parental rights.

Liza A. Rodriguez, Justice

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