in the Interest of L.M. and E.M.

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00243-CV ____________________

IN THE INTEREST OF L.M. AND E.M.

_______________________________________________________ ______________

On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV1205676 ________________________________________________________ _____________

MEMORANDUM OPINION

The trial court terminated the parental rights of B.M. and T.M. to their two

children, who were born in 2010 and 2011. On appeal, B.M. and T.M. challenge

the legal and factual sufficiency of the evidence to support terminating the parental

rights of the children’s father, T.M., and appellants also contend they should

receive a new trial because their appointed counsel failed to obtain discovery from

the State. We affirm the trial court’s judgment.

1 Legal and Factual Sufficiency

The decision to terminate parental rights must be supported by clear and

convincing evidence. In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). Clear

and convincing evidence is “the measure or degree of proof that 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.” Tex. Fam. Code Ann. § 101.007 (West 2008). A

judgment will be affirmed if a parent committed one or more predicate acts or

omissions and termination is in the child’s best interest. See Tex. Fam. Code Ann.

§ 161.001 (West Supp. 2012); see also J.L., 163 S.W.3d at 84.

In reviewing the evidence for legal sufficiency, we consider all of the

evidence in the light most favorable to the termination finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true. J.L., 163 S.W.3d at 84–85. We assume the factfinder

resolved any disputed facts in favor of its finding, if a reasonable factfinder could

do so, and disregard all evidence that a reasonable factfinder could have

disbelieved. Id. at 85 (quoting In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex.

2002)).

2 When we review a termination of parental rights for factual sufficiency, we

give “due consideration” to any evidence that the factfinder could reasonably have

found to be clear and convincing. J.F.C., 96 S.W.3d at 266; In the Interest of C.H.,

89 S.W.3d 17, 25 (Tex. 2002). We consider the disputed evidence and determine

whether a reasonable factfinder could have resolved that evidence in favor of the

finding. J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient if the

disputed evidence that does not reasonably support the finding is so significant that

a factfinder could not have reasonably formed a firm belief or conviction that the

fact at issue was true. Id.

Factual Background

The trial court found that B.M. and T.M. (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; and (3) failed to comply with the provisions of a

court order that specifically established the actions necessary to obtain return of the

children in Department care for not less than nine months as a result of a removal

for abuse or neglect. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), and (O). The

appellants challenge only the findings that apply to T.M.

3 B.M. testified that she had been abusing Soma and Xanax and passed out in

her car while L.M. was in his car seat outside of the car. The incident resulted in

her conviction for endangering a child. Child Protective Services temporarily

removed the child. L.M. was reunited with the family and the case was dismissed,

but the following week B.M. was arrested for driving while intoxicated while the

children were in the vehicle with her. That incident resulted in a conviction and the

filing of the termination proceeding now under appellate review.

T.M. admitted he was aware of his wife’s alcohol and drug abuse. He was

aware of the circumstances surrounding the incident that resulted in B.M.’s

conviction for endangering a child. Although he was aware of the facts, he did not

take precautions to prevent B.M. from driving with the children in the car. T.M.

explained that he was at work and B.M. had not said or done anything to make him

believe she might be drinking alcohol or using drugs on that occasion. According

to T.M., B.M. was bringing the children to visit with T.M. during his work break

when she was arrested. When the CPS investigator visited their home the following

day T.M. told the investigator that B.M. was driving into town with the children.

The trial court heard evidence that T.M. was aware that his wife had a

substance abuse problem and that she drove with the children. T.M. suggested his

efforts to protect his children from B.M.’s endangering behavior included

4 restricting her access to transportation. He claimed he drove their only vehicle to

work, and claimed he provided transportation for the family, but he could not

explain how B.M. was arrested for driving while intoxicated. On further

examination T.M. explained that he had been using a borrowed truck, which meant

T.M. did allow B.M. to have access to a car while he was at work and the children

were alone with her.

A parent’s abuse of drugs and alcohol may support a finding of child

endangerment. See In the Interest of R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort

Worth 2004, pet. denied). Knowing that his wife was abusing drugs and alcohol,

and knowing that she would drive with the children in the car, T.M. left the

children in her care. The trial court could rationally form a firm conviction or

belief that T.M. knowingly placed the children with a person who engaged in

conduct which endangers the children’s physical or emotional well-being. See Tex.

Fam. Code Ann. § 161.001(1)(E). Accordingly, we need not address the

sufficiency of the evidence to support a violation of section 161.001(1)(D) and (O).

See In the Interest of C.A.C., No. 09–10–00477–CV, 2011 WL 1744139, at *1

(Tex. App.—Beaumont May 5, 2011, no pet.) (mem. op.).

Regarding the children’s best interest, we consider a non-exhaustive list of

factors: (1) desires of the children; (2) emotional and physical needs of the children

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

in the future; (4) parental abilities of the individuals seeking custody; (5) programs

available to assist these individuals to promote the best interest of the children; (6)

plans for the children by these individuals or by the agency seeking custody; (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 also Tex. Fam. Code. Ann. § 263.307(b) (West

2008).

The children were doing well in their current placement with a relative. The

Department’s goal was “related adoption.” T.M. testified that he had prepared

bedrooms and a play area in their home for the children’s return. Their landlord

testified that they kept the house clean and the lawn mowed. T.M. testified that he

works full time. He wants his wife to stay sober, but he stated that he cannot stop

her if he is at work.

At the time of the trial, B.M.’s drug and alcohol treatment was still a work in

progress. While she was on community supervision B.M. was unsuccessfully

discharged from an outpatient alcohol and drug abuse treatment program. She

subsequently entered an inpatient treatment facility. B.M. claims to have

6 successfully completed an in-patient rehabilitation program after her arrest for

driving while intoxicated, but admits to repeated relapses. B.M. was arrested again

at a transitional facility; T.M. told the caseworker that B.M. had been drinking that

night and engaged in an altercation. She was discharged because she failed to

remain sober. As a condition of probation, B.M. was ordered to participate in an

out-patient treatment program. B.M. was in a new in-patient program, but she

experienced some problems with compliance, and she had not completed the

program at the time of trial.

The evidence of endangering conduct is probative of the best interest

determination. C.H., 89 S.W.3d at 28. In determining whether termination of

T.M.’s parental rights would be in the best interest of the two children, the trial

court could consider that B.M. would be the children’s caretaker if they were

returned to T.M. The trial court could rationally conclude that B.M. had not

conquered her drug and alcohol dependence, that her drug and alcohol abuse had

endangered the children in the past and could again in the future, and that T.M. had

not protected the children from B.M.’s endangering conduct during her lapses from

sobriety and would fail to protect them if B.M. relapsed while the children were

with her. The record shows clear and convincing support for the trial court’s best-

interest finding.

7 The trial court heard testimony from B.M. and from a counselor that B.M.

had made progress in her treatment. She was on the fourth step of a twelve-step

plan. She completed an anger management packet. She wrote “a goodbye letter to

alcohol.” The counselor stated that her progress was acceptable. T.M. attended

support meetings, and he would help with the housework and watch the children if

she needed time to relax. B.M. testified that T.M. is better educated about her

disease now, and he would take the children and divorce her if she relapsed. The

evidence that does not reasonably support the finding shows that T.M. made an

effort to reunite his family and has good intentions motivated by love for his

children and his spouse, but the evidence is not so significant that the trial court

could not have reasonably formed a firm belief or conviction that termination of

T.M.’s parental rights is in the best interest of the children. See J.F.C., 96 S.W.3d

at 266. We overrule issue one.

Ineffective Assistance of Counsel

To establish ineffective assistance, the appellate record must show that

counsel’s performance was deficient and the deficient performance so prejudiced

the defense that the appellants were deprived of a fair trial. In the Interest of M.S.,

115 S.W.3d 534, 545 (Tex. 2003). We apply an objective standard of

reasonableness, presuming that counsel’s conduct falls within the wide range of

8 reasonable professional assistance, including the possibility that counsel’s actions

or omissions may have been based on strategy or a belief that a particular action

was not warranted. Id. at 549. We consider all circumstances surrounding the case

and primarily focus on whether counsel performed in a reasonably effective

manner. Id. at 545.

B.M. and T.M. argue the record shows absolutely no discovery was

conducted in the case. During cross-examination of a witness from Child

Protective Services, counsel asked if the witness had documentation regarding

efforts taken to get B.M. into a successful inpatient facility. When the witness

replied that she did not have it, counsel asked, “Isn’t that pretty important to have

documentation of something that went on during my client’s case? Wouldn’t you

need to provide that to the Court?” Counsel for the Department objected, adding

“[t]his is not the time for discovery. [Counsel] did not do discovery in this case. If

she wanted the documentation, she could have gotten it.”

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

trial counsel’s actions. 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.”). The record does not show whether any formal

9 or informal discovery was conducted, nor does the record reveal what evidence

counsel failed to discover. In the Interest of K.M.H., 181 S.W.3d 1, 9 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). It is possible that counsel had seen the

document referred to, or knew the witness could not produce the document, and

asked the witness about it as a matter of trial strategy to challenge the credibility of

the witness. Moreover, because we do not know what evidence was known to

counsel or what documents counsel may have been unaware of before trial, B.M.

and T.M. cannot demonstrate that, but for the alleged errors by counsel, the result

of the termination proceeding would have been different. See In the Interest of

A.B., 372 S.W.3d 273, 276 (Tex. App.—Fort Worth 2012, no pet.). We overrule

issue two and affirm the trial court’s judgment.

AFFIRMED.

________________________________ STEVE McKEITHEN Chief Justice

Submitted on October 18, 2013 Opinion Delivered November 7, 2013 Before McKeithen, C.J., Kreger and Horton, JJ.