In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00365-CV
IN THE INTEREST OF L.G. AND S.G., CHILDREN
On Appeal from the 84th District Court Hansford County, Texas Trial Court No. CVO5210, Honorable William D. Smith, Presiding
March 26, 2015
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
X.M.G. and J.G., mother and father, respectively, of L.G. and S.G. (twin girls),
appeal from a judgment terminating their parental rights to those children. The suit was
initiated by the Texas Department of Family and Protective Services (the Department).
X.M.G. contends that the evidence was legally and factually insufficient to support the
jury findings that several statutory grounds for termination existed and termination was
in the best interests of the children. J.G. does not contest the sufficiency of the
evidence. Instead, he simply argues that he was denied the effective assistance of
counsel. We affirm. The evidence of record illustrated that 1) both parents used drugs (cocaine,
marijuana, and/or methamphetamine), 2) drugs were discovered in the house, 3) both
X.M.G. and J.G. engaged in domestic violence, 4) X.M.G. engaged in violence upon
third parties (via the use of a bat on one occasion), 5) the two six-year-old children
served as X.M.G’s caretaker (as opposed to vice versa), 6) the two children were
diagnosed as suffering from “adjustment disorder” and “appeared to come from a
neglectful and chaotic environment,” 7) the two children “displayed emotional and
behavioral problems” relating to their environment, 8) the two children were continually
worried about the safety of their mother, 9) the two children “did not know how to follow
rules or listen to discipline or teaching because they were used to taking care of
themselves and following their own rules,” 10) the two children slept poorly, had
nightmares, were anxious and worried about domestic issues between their parents, 11)
X.M.G lacked “the ability to provide adequate care for her children based on the
significant instability and lack of continuity” present in the household, 12) X.M.G held
approximately twelve different jobs during the year before trial, 13) X.M.G. and J.G.
were unable to place the needs of their children “above their own,” 14) children exposed
to domestic violence, such as the two here, “struggle with sleep disturbance, emotional
disturbance, social disturbance [and] educational disturbance,” 15) the two children
were removed from the household and placed with foster parents, 16) the two children
would not be in a safe and stable environment if returned to X.M.G and J.G., 17) J.G.
missed numerous counselling sessions ordered by the court purportedly because of his
work schedule, 18) the counseling sessions in which X.M.G. and J.G. engaged resulted
in “minimal progress,” 19) the police investigated numerous reports of domestic violence
2 at the home of X.M.G. and J.G. wherein J.G. purportedly assaulted X.M.G. and the
latter would not cooperate in the investigations, 20) X.M.G. and J.G. occasionally failed
their drug tests after being ordered to submit to and pass same, 21) J.G. failed to pay
child and medical support as ordered by the court, 22) J.G. had an alcohol dependency
and failed to stop drinking and attend Alcoholics Anonymous meetings as ordered by
the court, 23) J.G. periodically failed to appear at scheduled times to undergo drug
testing, 24) J.G. threatened to take the children to Mexico so they could live with his
parents, 25) X.M.G. was undergoing criminal prosecution for drug possession and theft,
26) J.G. had been arrested for engaging in domestic violence, 27) J.G. failed to attend
batterer’s intervention counseling, 28) X.M.G. allowed J.G. to be in the presence of the
two children even though she was ordered to prohibit that, 29) X.M.G. and J.G. lacked a
support system, 30) the two children are adapting, happy, and doing well in their new
environment, 31) the children no longer ask about X.M.G. or J.G., 32) the foster parents
want to adopt the children, 33) neither of the children care to return to their biological
parents, and 34) the male foster parent (a legal resident as opposed to a United States
citizen) knows of and was threatened by J.G.
A trial was had before a jury. Ten members of that jury found that the parental
rights of X.M.G. and J.G. should be terminated. That resulted in the trial court entering
judgment terminating their rights because termination was in the best interests of the
children and J.G. and X.M.G. 1) knowingly placed or knowingly allowed the children to
remain in conditions or surroundings endangering the physical or emotional well-being
of the children, pursuant to § 161.001(1)(D) of the Texas Family Code, 2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct
3 endangering the physical or emotional well-being of the children pursuant to
§ 161.001(1)(E) of the Texas Family Code, and 3) failed to comply with the provisions
of a court order that specifically established the actions necessary for them to obtain the
return of the children who have been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a result of the
children's removal from the parents for abuse or neglect per § 161.001(I)(O) of the
same code.
X.M.G.’s Appeal
As previously mentioned, X.M.G. contends (through several issues) that both
legally and factually insufficient evidence supports termination. We overrule the issues.
Because the case was submitted to the jury in broad form, we need to only find
the evidence sufficient to support a single statutory ground for termination and that the
best interests of the children are served through termination. In the Interest of J.H.M.,
No. 07-07-0109-CV, 2009 Tex. App. LEXIS 9886, at *21-22 (Tex. App.—Amarillo
December 29, 2009, no pet.) (mem. op.). Whether such evidence exists is determined
through application of the standard of review we described in In re C.C., No. 07-12-
00500-CV, 2013 Tex. App. LEXIS 5704 (Tex. App.—Amarillo May 8, 2013, no pet.); see
also In the Interest of D.N., 405 S.W.3d 863, 872 (Tex. App.—Amarillo 2013, no pet.)
(discussing the pertinent standard of review). In In re C.C., we wrote that due process
required the application of the clear and convincing standard of proof. In re C.C., 2013
Tex. App. LEXIS 5704, at *7. Evidence is of such ilk if it will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established. Id. In applying that standard, we must defer to the fact finder; that is, we
4 must defer to the jury's role as fact finder by assuming it resolved evidentiary conflicts in
favor of its finding when reasonable to do so and by disregarding evidence that it
reasonably could have disbelieved. Id. at *7-8. So too must we look at all the evidence
in the light most favorable to the finding when conducting the legal sufficiency analysis.
Id. at *8.
When reviewing the factual sufficiency of the evidence, however, we consider
whether the disputed evidence is such that a reasonable fact finder could not have
resolved the disputed evidence in favor of its finding. Id. at *8-9. Stated differently, “‘[i]f,
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 256 (Tex. 2002). With this said, we
turn to the record before us.
Next, § 161.001(1)(O) of the Texas Family Code allows the trial court to
terminate the parent-child relationship if it finds by clear and convincing evidence that
the parent “failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child who
has been in the permanent or temporary managing conservatorship of the Department
of Family and Protective Services 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.” TEX.
FAM. CODE ANN. §161.001(1)(O) (West 2014). X.M.G. concedes that the two children
had been removed for not less than nine months for abuse or neglect and that they had
been in the permanent or temporary managing conservatorship of the Department. She
5 denies, however, that the Department proved she violated a provision of a court order
establishing the actions necessary to secure the return of the children. We disagree.
The service plan ordered by the court directed X.M.G. to not only take drug tests
but it also mandated that she “will test ‘negative’ during these random drug screens.”
The evidence illustrates that not all of her tests were negative. So too was she ordered
to “enroll and complete an intensive inpatient substance abuse program”; that she did
not do. The court also ordered her to have housing that was appropriate and safe for
her children. That housing needed to be free of anything harmful to her children. Yet,
the evidence disclosed that X.M.G. continued to use and maintain drugs in the abode.
Other evidence revealed that X.M.G. also allowed J.G. to be in the house even though
the safety plan ordered by the court prohibited it.
Generally, Texas courts take a strict approach when applying § 161.001(1)(O) of
the Family Code. In the Interest of D.N., 405 S.W.3d at 877. The focus lies upon a
parent’s failure to comply with a court order; the reasons for non-compliance or the
degree of compliance generally are irrelevant. Id. The statute does not make a
provision for excuses. Id.; In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006,
pet. denied). Given the evidence we described above, the fact finder could have formed
a firm conviction and belief that X.M.G. failed to comply with the provisions of a court
order specifying the actions necessary for her to obtain the return of her children. So
too could the jury have resolved the disputed evidence in favor of its finding.
Simply put, the record contains both legally and factually sufficient evidence to
support at least one statutory ground warranting termination of the parental relationship.
6 Consequently, we need not address whether the other statutory grounds have such
support.
As for evidence establishing that termination was in the best interests of the
children, we peruse the record with an eye upon what are known as the Holley factors.
See Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include, among other
things, 1) the desires of the children, 2) the emotional and physical needs of the children
now and in the future, 3) the emotional and physical danger to the children now and in
the future, 4) the parental abilities of the individuals seeking custody, 5) the programs
available to assist those individuals to promote the best interests of the children, 6) the
plans for the children by those individuals or by the agency seeking custody, 7) the
stability of the home, 8) the acts or omissions of the parent indicating that the existing
parent-child relationship is not a proper one, and 9) any excuse for the acts or
omissions of the parent. In the Interest of L.L., No. 07-14-00395-CV, 2015 Tex. App.
LEXIS 1080, at *5-6 (Tex. App.—Amarillo February 4, 2015, no pet. h.) (mem. op.); In re
P.E.W., 105 S.W.3d 771, 779-80 (Tex. App.—Amarillo 2003, no pet.). It is not
necessary that each factor favors termination, and the list is not exclusive. In re P.E.W.,
105 S.W.3d, 779-80. Furthermore, the same evidence supporting the presence of a
statutory ground for termination is often relevant when assessing the child’s best
interest. . In the Interest of L.L 2015 Tex. App. LEXIS 1080, at *5-6.
Here, the evidence of record illustrates that a bond exists between X.M.G. and
the children, and that she attempted to care for them and abide by the court’s safety
plan. Yet, the thirty-four instances of evidence we itemized above coupled with her
failure to comply with the court-ordered safety plan allowed the fact finder to form a firm
7 conviction and belief that the best interests of the children warranted termination of the
parental relationship. So too a reasonable fact finder could have resolved the disputed
evidence in favor of its finding.
The children are happy at their present placement and wish to remain there.
Their emotional and physical needs are now being met. Their anxiety, inability to sleep,
and nightmares have diminished. Their foster parents provide a safe and permanent
environment for the children and wish to adopt the children. They are no longer in an
environment of domestic violence and drug abuse. Rather, their environment is stable.
We cannot agree with X.M.G.’s proposition that the jury acted unreasonably when
concluding that termination furthered the children’s best interests.
In sum, the evidence supporting the decision to terminate the parental
relationship is legally and factually sufficient. The trial court did not err in doing so, and
we overrule the issues asserting otherwise.
J.G.’s Appeal
As previously mentioned, J.G. does not question the sufficiency of the evidence
illustrating that termination was warranted under any of the statutory grounds or that the
best interests of the children did not warrant termination. Instead, he complains about
the effectiveness of his legal counsel. The latter allegedly was ineffective because he
failed to object to 1) questioning by the Department regarding violence observed by the
children, 2) the admission of notes from the children’s counselor purportedly containing
hearsay statements from the children, and 3) the same counselor reiterating hearsay
statements made by the children. The purported hearsay statements involved the
children witnessing J.G. assault X.M.G. We overrule the issue.
8 That an indigent parent subject to a termination proceeding instituted by the
State is entitled to effective, appointed legal counsel is well-established. In the Interest
of M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (so holding); accord, In re J.O.A., 262
S.W.3d 7, 18 (Tex. App.—Amarillo 2008), aff'd as modified and remanded, 283 S.W.3d
336 (Tex. 2009). The standard used to determine whether a parent was afforded a
counsel is that set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. It requires the
complaining party to prove not only that counsel's performance was deficient but also
that the deficiency prejudiced him. In re M.S., 115 S.W.3d at 545; In re J.O.A., 262
S.W.3d at 18.
With respect to the first element, we take into account all of the circumstances
surrounding the proceeding and primarily focus on whether counsel performed in a
reasonably effective manner. In re M.S, 115 S.W.3d at 545. Moreover, that
performance must be so grossly deficient as to render the proceeding fundamentally
unfair. Id.; accord, In the Interest of B.G., 317 S.W.3d 250, 256 (Tex. 2010) (explaining
that a claim of ineffective assistance requires more than merely showing that appointed
counsel was ineffective. The complainant must show a deficient performance by
counsel so serious as to deny the defendant a fair and reliable trial). In other words, the
conduct must be so outrageous that no competent attorney would have engaged in it.
In re M.S., 115 S.W.3d at 545. Most importantly, though, we indulge in a strong
presumption that counsel’s actions fell within the wide range of reasonable professional
assistance and presume, until rebutted, that they were strategic. Id.
9 As for the element of prejudice, the complaining party has the duty to illustrate
that but for the attorney's supposedly unprofessional conduct, there is a reasonable
probability that the outcome of the proceeding would have been different. Id. at 550; In
the Interest of K.D.L., No. 09-14-00348-CV, 2014 Tex. App. LEXIS 12127, at *3 (Tex.
App.—Beaumont November 6, 2014, no pet.) (mem. op.). Satisfying this prong requires
more than simple conclusions. Ipse dixit is not enough. Rather, the issue requires the
presentation of analysis on the part of the complainant.
Having discussed the pertinent standard, we turn to the complaints at bar and
immediately note the rather limited nature of J.G.’s attack upon the performance of his
trial attorney. No effort was made to assess trial counsel’s overall performance. The
trial was rather extensive and involved the presentation and examination of numerous
witnesses and exhibits, as depicted by the seven volumes of the reporter’s record.
However, nothing is said about the quality of counsel’s performance during jury
selection, jury argument, cross-examination of all the government’s witnesses, or the
like. Instead, J.G. complains about his attorney’s failure to exclude evidence pertaining
to whether the children personally saw J.G. assault X.M.G. This curtailed focus
hampers the viability of his ineffective assistance claim since “all of the circumstances
surrounding the case” must be taken into account. In re M.S., 115 S.W.3d at 545. One
is not entitled to perfect counsel, only reasonably effective counsel. And, being
reasonably effective encompasses overall performance. Rare are the instances when
one or two mistakes equate to outrageous conduct denying one a fair trial.
J.G. believes his attorney should have objected when 1) X.M.G. was asked “If
the little girls said, ‘Daddy hit Mommy and made her nose bleed,’ would they be lying or
10 1 telling the truth?”; 2) a counselor testified that the children told her they saw their
father assault their mother; and 3) notes of the counselor memorializing those
statements were proffered into evidence. The question to X.M.G. allegedly interjected
evidence not of record while the other instances allegedly interjected hearsay into the
record. Yet, it was not the fact of hearsay or assumed facts being interjected that
seems to bother J.G. Rather, his concern involves the impact of the particular hearsay
and assumed facts upon the jury. This is revealed in his quip about “[s]omething that
might be unwholesome when done in front of children is much less egregious when
engaged in where no children can see or hear the matter” and that is “why ratings exist
so that children may not watch certain movies that might be harmful to them.” To this we
make several observations.
First, the argument fails to explain how excluding the evidence would create a
reasonable probability that the outcome of the proceeding would have differed. Indeed,
J.G. does not dispute that the State presented sufficient evidence to prove three
statutory grounds for termination or that termination was in the best interests of his
children. And, at least one of the statutory grounds had little to do with the children
seeing domestic violence; § 161.001(1)(O) focused on J.G.’s non-compliance with a
court order as opposed to his assaulting X.M.G. So, we are merely left to wonder why
exclusion of the evidence in question (had counsel objected) would have made the jury
less likely to find that J.G. failed to comply with that court order.
Second, our review of the record discloses that even if the evidence was
excluded, the jury remained able to reasonably infer that the children experienced the
1 Interestingly, X.M.G. did not answer the question by saying whether her children would be truthful or not. Instead, she said she did not know because the children were placed in a different room when X.M.G. and J.G. fought. 11 assaults. X.M.G. admitted to the occurrence of “ongoing domestic violence” while other
witnesses testified to seeing her bruised and scratched. Thus, she carried the evidence
of J.G.’s attacks on her body, and there is no evidence that the children were blind or
otherwise unable to see them. Nor is there evidence that the children could not hear
what was occurring even if placed in another room. To that we add a counselor’s
testimony describing how the six-year-old siblings not only worried about and focused
upon the safety of their mother but also became her caretaker. Considered together,
such evidence permitted a fact finder to reasonably infer that the children knew J.G.
periodically beat X.M.G. In other words, the jury could have justifiably inferred that the
children witnessed the “unwholesome conduct” of J.G. even if trial counsel had objected
in the manner J.G. now suggests. So, we again are left to wonder how J.G. was
prejudiced in the manner contemplated by In re M.S.
Finally, we add to the mix the absence of any record memorializing why trial
counsel did not object. That circumstance prevents us from concluding that the
presumption of competent performance was rebutted or that the silence was not
founded upon some reasonable strategy. See In the Interest of K.L.L.H., No. 06-09-
00067-CV, 2010 Tex. App. LEXIS 154, at *17-18 (Tex. App—Texarkana January 12,
2010, pet. denied) (mem. op.) (stating that “[w]here . . . the record is silent as to the
reason that counsel failed to lodge certain objections or take certain actions, we assume
it was due to any strategic motivation that can be imagined”). And, one strategic basis
would be to forego objecting to some purportedly inadmissible evidence of domestic
violence when other admitted evidence appears of record proving the same thing.
Counsel need not object to everything to be effective, especially when the objection
12 may exclude little more than redundant evidence. In sum, J.G. failed to prove counsel’s
conduct denied him a fair trial.
Having overruled all issues before us, we affirm the judgment of the trial court.
Brian Quinn Chief Justice