In the Interest of H.J.C., H.B.H., and K.C., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 16, 2025
• Docket: 04-24-00781-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-24-00781-CV

IN THE INTEREST OF H.J.C., H.B.H., and K.C., Children

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2023PA00756 Honorable Tina Torres, Judge Presiding 1

Opinion by: Lori Massey Brissette, Justice

Sitting: Lori Massey Brissette, Justice Adrian A. Spears II, Justice H. Todd McCray, Justice

Delivered and Filed: April 16, 2025

AFFIRMED

This case involves the termination of parental rights relating to three children, H.B.H.,

H.J.C., and K.C. 2 Mother and Father both assert that there is insufficient evidence demonstrating

that termination of their rights is in the best interests of the children. Because no post-trial motions

were filed to preserve sufficiency challenges, both parents assert ineffective assistance of counsel.

1 On July 11, 2024, Cause Number 2024-PA-00059 was consolidated into Cause Number 2023-PA-00756 so that the parental rights of both Mother and Father to all three children could be adjudicated in one trial. The action was docketed in the 57th District Court but was ultimately tried before District Judge Tina Torres of the 407th District Court. 2 To protect the identity of the minor children, we will refer to appellants as “Mother” and “Father” and to the children by their initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8. 04-24-00781-CV

BACKGROUND

On May 18, 2023, the Department of Family and Protective Services filed its Original

Petition for Protection of a Child, for Conservatorship, and for Termination in a Suit Affecting the

Parent-Child Relationship. The first petition involved only H.J.C., then ten months old, as she was

the only child in the home at the time. A week later, the Department amended its petition to include

reference to H.B.H., then three years old, as she was found living at a friend of her father’s. 3 Later,

almost a year after Mother gave birth to K.C. and a separate action was filed, the two causes were

consolidated.

The trial court granted the Department temporary managing conservatorship and ordered

the removal of the children. H.B.H. was allowed to remain with the family friend, G.M., who had

been taking care of her for eight months prior to the Department’s involvement. H.J.C. and K.C.

were placed together in a foster home. The parents were provided a Family Service Plan which set

out steps they needed to take to demonstrate the ability to meet the needs of their children and to

regain custody. The original trial setting in April 2024 was reset to provide the parents a six-month

extension—additional time to work the services as required by the plan. In October 2024, a five-

day jury trial was held and, based on the jury’s verdict, an Order of Termination was signed and

entered by the court on November 12, 2024.

Termination was rendered pursuant to Texas Family Code section 161.001(b)(1)(D),

161.001(b)(1)(E) and 161.001(b)(1)(O). The court also found that termination was in the best

interest of the children pursuant to Texas Family Code section 161.001(b)(2). No post-trial motions

were filed, but a notice of appeal followed. On appeal, both parents assert that the evidence was

insufficient to support termination of their parental rights.

3 H.B.H.’s father voluntarily relinquished his parental rights during the trial. The Father referenced herein is the biological father of H.J.C. and K.C.

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INEFFECTIVE ASSISTANCE OF COUNSEL

First, we must address whether the parents may challenge the sufficiency of evidence on

appeal. After a jury trial, a party is required to preserve the argument that the evidence is legally

insufficient by objecting before the case is submitted to the jury, making a motion for directed

verdict, or through post-trial motions. TEX. R. CIV. P. 324(b)(2); TEX. R. APP. P. 33.1(a); In re D.T.,

625 S.W.3d 62, 75 n.8 (Tex. 2021). A factual sufficiency challenge can be preserved through a

motion for new trial. TEX. R. CIV. P. 324(b)(2). Neither parent, here, took the necessary actions to

preserve a sufficiency challenge. See In re E.M.E., No. 04-22-00273-CV, 2022 WL 17660991, at

*2 (Tex. App.—San Antonio Dec. 14, 2022, no pet.) (overruling mother’s challenge to sufficiency

of best-interest finding because it was not preserved). Both parents, however, assert that the failure

to so preserve is due to the ineffective assistance of counsel.

There is a “presumption that our preservation rules comport with due process,” including

in cases involving the potential termination of parental rights. In re B.L.D., 113 S.W.3d 340, 354

(Tex. 2003); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Furthermore, we are mindful that

“allowing appellate review of unpreserved error would undermine the Legislature’s intent that

cases terminating parental rights be expeditiously resolved, thus ‘[p]romot[ing] the child’s best

interest in a final decision and thus placement in a safe and stable home.’” In re L.M.I., 119 S.W.3d

707, 711 (Tex. 2003) (quoting B.L.D., 113 S.W.3d at 353). When a sufficiency challenge “was not

preserved for review as otherwise required by our rules of procedure, we consider this issue in

conjunction with [an appellant’s] complaint that her appointed counsel was ineffective.” In re M.S.,

115 S.W.3d 534, 536 (Tex. 2003). This is because the procedural rules governing sufficient

preservation do not “give way to constitutional due process considerations” unless counsel’s

failure to preserve a sufficiency challenge “rises to the level of ineffective assistance.” Id. at 549.

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Therefore, here we “must engage in a review using the established Strickland standards.” Id.

(referencing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To successfully assert an ineffective assistance of counsel claim, a parent must satisfy the

two-prong test articulated in Strickland. 466 U.S. 668 at 687; In re D.T., 625 S.W.3d 62, 73 (Tex.

2021). Strickland requires the parent appealing the termination to show (1) trial counsel’s

performance fell below an objective standard of reasonableness, and (2) the parent 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 applying the Strickland test, we

will review all circumstances surrounding the case to determine whether counsel provided

reasonable professional assistance. In re J.M.O., 459 S.W.3d 90, 93 (Tex. App.—San Antonio

2014, no pet.). We will provide great deference to counsel’s performance, indulging a strong

presumption that counsel’s conduct is reasonable and that his or her actions were strategic in

nature. Id. Because the “record” requirement established in Strickland applies to parental

termination cases, “allegations of ineffective assistance of counsel in a parental-rights termination

proceeding must be firmly founded in the record, and the record must affirmatively demonstrate

the alleged ineffectiveness.” In re A.L., No. 04-17-00620-CV, 2018 WL 987484, at *8 (Tex. App.—

San Antonio Feb. 21, 2018, no pet.). We will “not speculate to find trial counsel ineffective when

the record is silent regarding counsel’s reasons for his actions.” In re F.L.H., IV, No. 04-17-00425-

CV, 2017 WL 6597829, at *15 (Tex. App.—San Antonio Dec. 27, 2017, pet. denied) (quoting

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied). “It is only when the conduct was so outrageous that no competent

attorney would have engaged in it,’ that the challenged conduct will constitute ineffective

assistance.” M.S., 115 S.W.3d at 545 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

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App. 2001)). Further, “to 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.” J.M.O., 459 S.W.3d at 94 (cleaned up); see also Strickland, 466 U.S. at 694.

ANALYSIS

The removal of these children occurred after numerous referrals (between November 2022

and the end of January 2023) giving rise to concerns relating to ongoing domestic violence between

the parents in the presence of the children, the use of illegal drugs in the presence of the children,

and Mother’s mental health and its impact on the children. 4 Mother has a criminal history involving

three prior incidents of assault family violence and has had her parental rights terminated to six

children before the three involved in this matter. Another child of Mother’s, the seventh in age

among the ten, is in the sole managing custody of his father. Father, too, has been investigated by

the Department relating to drug use while another child, not the subject of this suit, was in his care.

Father has served over twenty years for an assault that led to a person’s death and was incarcerated

during the pendency of this matter for a terroristic threat made to a previous partner.

Both Mother and Father were active on Facebook Live, demonstrating at times the use of

drugs and the handling of weapons while the children were present. At other times, Mother would

post videos of her screaming at people in the street, demonstrating a mental health crisis. When

4 In December 2022, Mother was arrested on an active warrant for assault and bodily injury after the police intervened in a physical argument between Mother and Father. In January, a referral was made because Mother punched Father in the face, busting his lip and requiring police intervention. At the time, Father was alleged to be using drugs while the children were in his care and Mother’s mental health caused her to be hospitalized. The next referral, in the same month, alleged the physical abuse of another child, not made the subject of this suit, with him showing cuts, marks and bruises. That child was placed with his father. The third referral arose out of a welfare check because Father alleged Mother was shaking the two-year-old child and threatening to hurt her. Mother was placed on an emergency detention by police due to her mental health. In March 2023, a referral was made by the father of H.B.H. because Mother called him threatening to put H.B.H. in the oven if he didn’t pick her up. Another time, Mother went on Facebook Live with her daughter and stated that if someone didn’t “come get this bitch,” she’d put her in the microwave and burn her. Finally, also in March 2023, a referral was made because Father was using methamphetamines and alcohol and having a mental health episode while children were in his care.

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Mother testified at trial, she had a hard time detailing the birthdates of her children and stated she

does not believe she needs to be on medication for her diagnosed mental health disorders.

The oldest child, H.B.H., was placed with a friend of her father’s, G.M. G.M. testified that

Mother gave her the child with no expectation of a return without knowing her full name, where

she lived or where she worked. “The conversation was that she just wanted [H.B.H.] to be happy,

that she had been in foster care, and she had been through some things and that she was still going

through some things.” G.M. had H.B.H. for over eight months prior to the Department seeking to

ensure removal and, after the Department assessed her and her home, she was determined to be an

appropriate placement. 5 When she came to G.M., H.B.H. had nodules on her arms that were

infected, toenails that were overgrown, bad diaper rash, and a yeasty smell in her mouth due to

sucking her finger. She would shake and cling to a teddy bear and run to hide if someone knocked

on the door. After visits with Mother, G.M. stated that H.B.H. would pee herself on the ride home,

was quiet and would suck her finger. Now, G.M testified that H.B.H. has been attending therapy,

has stopped sucking her finger, has stopped bed wetting, is very confident, loves to cook, enjoys

school, seeks the certainty of a schedule and loves to have her hair combed and to get dressed up.

The other two children, H.J.C. and K.C., were placed in a foster home that is now wishing

to adopt them. H.J.C. is now in dance classes and K.C. is walking, eating solid foods, and getting

physical therapy for low muscle tone.

Both Mother and Father were given an opportunity to work towards reunification through

the Family Violence Prevention Program, a program that provides a faster, more intensive program

5 Notably, during her care of H.B.H., G.M. was attacked at a gas station and the incident was not only videotaped by Mother and Father wherein they could be heard egging on the fight, but they posted it to the internet.

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and a dedicated team focused on supporting them and providing all necessary services. But,

because of positive drug tests and missed classes, they were discharged from that program.

Further, there was testimony about concerns during the child visits, specifically about the

failure to parent appropriately and a lack of engagement. For example, while the children stepped

on the baby, no redirection took place. Mother was focused on her phone during the visits. When

one of the little girls asked her for a hug, Mother gave her a toy to play with instead. Mother even

took a nap at one point during a visit. Mother and Father missed almost half of the visits provided

to them.

Neither parent has a stable home or employment. While they engaged in classes, they were

asked to repeat classes because, despite completing them, their behaviors did not change. Neither

followed through on recommendations to address their mental health issues. Father refused to take

drug tests asked of him. And, both had positive drug tests during the pendency of the case.

CONCLUSION

It is evident from the record before us that the jury’s verdict is supported by more than

ample evidence and that counsel may have reasonably chosen not to assert a sufficiency challenge

for that reason. See J.M.O., 459 S.W.3d at 93; M.S., 115 S.W.3d at 545. Further, given the trial

record, appellants cannot demonstrate prejudice as a result of their counsel’s failure to advance

such an argument. See A.L., 2018 WL 987484, at *8; J.M.O., 459 S.W.3d at 94. Given the

overwhelming proof in support of the jury’s finding that termination was in the best interests of

the children, we cannot find that the counsel for Mother or Father acted unreasonably in failing to

preserve a sufficiency challenge. See J.A.B., 562 S.W.3d at 729. For that reason, we affirm the trial

court’s judgment.

Lori Massey Brissette, Justice

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