In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00421-CV __________________
IN THE INTEREST OF L.P. AND D.P. __________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18-09-11813-CV __________________________________________________________________
MEMORANDUM OPINION
In this appeal, Father seeks to overturn the trial court’s judgment terminating
his parental rights to his children, Tara and Jason. 1 Father filed a brief raising four
issues, which we have renumbered for convenience. In issues one and two, Father
argues the trial court abused its discretion (1) by resetting the trial date on the case
from August 7 to August 28, 2019, without requiring the Department to file a motion
to continue and (2) by denying his motion for continuance, which he filed on
1To protect the privacy of the parties involved in the appeal, we identify the parents and their children by using pseudonyms. See Tex. Fam. Code Ann. § 109.002(d). 1 September 6, 2019, regarding a later trial setting, which was on September 9, 2019.
In issue three, Father argues the Department failed to produce enough evidence to
support the trial court’s finding that it is in Tara’s and Jason’s best interest to
terminate his parental rights. 2 In Father’s fourth issue, he argues his trial attorney,
whom he retained for the trial, provided him with constitutionally ineffective
assistance of counsel. In the same issue, Father also suggests the attorney ad litem,
whom the trial court appointed to represent his children, breached the same duty.
Because Father’s arguments supporting his issues lack merit, we will affirm.
Background
The parties tried the case in September 2019. At that time, Tara was fifteen
years old and Jason was thirteen. Nine witnesses, including Father, testified in the
trial. The testimony shows that Father and Mother separated in 2008, while living in
the State of New York. When Mother left Father, she left Tara and Jason with
Father.3 Father continued to live, with the children, in New York until 2015, when
he left New York, with his children, and moved to Texas.
2 See id. § 161.001(b) (authorizing courts to order a parent’s relationship with a child terminated upon one of the predicate statutory findings listed in section 161.001(b)(1) of the Texas Family Code when that finding is coupled with another finding that terminating the relationship is in the child’s best interest). 3 The trial court also terminated Mother’s parental rights to the children. See
id. § 161.001(b)(1)(D), (E), (N), (O), (b)(2). Mother did not file an answer in the 2 The evidence in the trial shows Father abused alcohol for at least twenty years.
He acquired five convictions for driving while intoxicated (DWI) before the court
tried the parental termination case at issue in this appeal. In 2002, Father was charged
and convicted in the State of New York on a DWI. He was convicted of a second
DWI in 2007, again in New York. Father received a three-year sentence on his
second DWI, but the court then placed him on probation and ordered that he undergo
outpatient counseling so that he could receive treatment to help him avoid further
problems related to his abuse of alcohol. Father, however, never completed the
outpatient treatment required by his order of probation. Instead, Father chose to serve
his three-year sentence by reporting to jail on weekends. While in jail, Tara’s and
Jason’s grandmother cared for them.
Father received a third DWI in 2010. On the third DWI, a court in the State of
New York sentenced Father to serve a five-year sentence. Once again, the court
probated the sentence and placed Father on probation. And once again, Father chose
to serve his sentence by reporting to jail each weekend rather than going through an
outpatient treatment program designed to help him stop abusing alcohol. While
Father was in jail, Father’s mother-in-law cared for Tara and Jason. In the trial of his
suit, and she also did not file a brief to appeal from the judgment terminating her parental rights. 3 parental termination case, Father agreed that when he was not in jail, he continued
to drink alcoholic beverages even though he had been convicted of committing three
prior DWIs.
In 2015, Father was charged in the State of New York with committing a
fourth DWI. Shortly after he was arrested, Father moved, with the children, to Texas.
Father did not resolve the case arising from his fourth DWI before he moved out of
New York. In the trial of the parental termination case, Father testified he thought
the State of New York would handle the criminal case arising from his fourth DWI
through the mail so he thought he could move out of the state.
In 2015, based on a warrant issued by the State of New York, police arrested
Father at a convenience store in Galveston, Texas. According to Father’s testimony,
a clerk at the convenience store in Galveston called the Galveston Police Department
after she saw Father and thought he was “acting funny.” While Father denied
anything was wrong with him while he was there, the evidence shows that Tara and
Jason were with him when he was arrested. The Department of Family and
Protective Services took Tara and Jason and placed them in foster care. Following
Father’s arrest in Texas, he was returned to New York and jailed. In New York, the
court handling his fourth DWI sentenced him to an indeterminate sentence of one to
three years in jail.
4 Father served eleven months of his sentence on his fourth DWI. While in jail,
Father completed outpatient treatment and received therapy for problems related to
his abuse of alcohol. Father testified he quit drinking. In June 2017, Father
completed his parole in New York and moved back to Texas. By October 2017,
Father completed a family service plan with the Department, and the Department
allowed Tara and Jason to return to Father’s home.
According to Father, in December 2017, he started drinking again. Father,
however, described the frequency with which he drank as “very seldom[,]
[acknowledging that] maybe once” he drank to the point of intoxication. According
to Father, after he started drinking again, he drank two or three beers a day.
On September 4, 2018, in Montgomery County, Texas, police arrested Father
on a fifth DWI. After Father’s arrest, when the Department’s investigator checked
to see whether any other adults were present in Father’s home, the Department found
Tara and Jason there but no adults. On September 5, 2018, the Department sued
Father and obtained a court order, which allowed the Department to remove Tara
and Jason from the home. In the suit, the Department alleged that Father’s parental
rights to Tara and to Jason should be terminated because he had, based on his
conduct, endangered them.
5 Father retained an attorney to represent him against the Department in the suit.
Father hired the same attorney to represent him against the Department as he hired
to represent him on the criminal charge involving his fifth DWI. In October 2018,
Father, along with his attorney, appeared in two preliminary hearings the trial court
conducted on the Department’s suit. In the first hearing, the trial court stated that,
based on the information it had reviewed at that time, it would take “a complete and
utter turnaround for [Father] to not get [his parental rights] terminated in this case[.]”
In the same hearing, the trial court told Father the trial of the Department’s case
would take place “in nine months” so the children would not have to “languish and
wait around for [him] for one more extra day.”
In January 2019, Father’s attorney of record in the suit filed by the Department
filed a motion to withdraw. The motion alleges Father’s attorney did not believe he
could effectively represent Father in both a criminal and a civil case. That said, the
motion offers no further factual allegations explaining why Father’s attorney of
record could not represent Father in both suits. Additionally, the record shows that
(1) Father did not sign the motion to withdraw, (2) the certificate of service
accompanying the motion does not show that Father was ever served with the
motion, and (3) Father’s attorney never obtained a hearing or ruling on the motion
before the trial court in the suit filed by the Department called the case to trial. Even
6 so, after filing the motion, Father’s attorney apparently assumed he had no further
duties to Father and failed to attend any subsequent hearings or the trial.
Consequently, as of January 2019, Father began showing up at hearings the
trial court conducted in the suit filed by the Department without an attorney. While
Father was present in the January and May 2019 status hearings the trial court
conducted on the Department’s case, Father’s attorney did not attend the hearings
with his client. In the hearings, Father advised the trial court that his attorney was
still representing him in the case even though he was not present. The Department’s
attorney advised the trial court that Father was working on completing the
requirements of his family service plan, which required Father to attend meetings
conducted by Alcoholics Anonymous, to complete a drug and alcohol assessment,
and to obtain negative tests for the presence of substances of abuse, which included
alcohol. Father’s family service plan also required that Father complete a program,
offered by a sponsor, designed to prevent Father from having a relapse. In the
January and May status hearings, the Department told the trial court the
Department’s goal was to reunite Father with the children, while its secondary goal
was adoption. At the conclusion of the May 2019 hearing, the trial court scheduled
the case for trial on August 7, 2019, memorializing that ruling in a written order.
7 When the trial court called the case to trial on August 7, 2019, Father’s
attorney of record was not present. Once again, Father advised the trial court that his
attorney of record was still representing him. The court advised Father to contact his
attorney and determine why the attorney was not showing up with Father in
connection with the duties the attorney had to represent Father in the lawsuit. On
August 7, the Department’s attorney told the trial court the Department was still
planning to return Tara and Jason to Father, but that before doing so, Father needed
to secure a safe place for them to live. The Department’s attorney acknowledged that
Father had taken a step toward that goal, as Father had recently leased an apartment
but he had not yet moved in. The Department’s attorney represented to the trial court
that Father needed just a few more days to allow him to secure appropriate housing
for his children given the fact he had a lease on an apartment that would start on
August 18. On its own motion, the trial court chose to allow the parties more time,
continuing the case without requiring any party to file a formal motion for
continuance. The court also instructed that Father make the apartment available to
the Department and to the court appointed special advocate (CASA) for an
inspection on August 22. The court then removed the case from the August 7 docket
and set it for trial on August 28.
8 On August 28, the trial court called the case to trial. Father appeared again
without his attorney. When the Department’s attorney asked Father whether he had
an attorney, Father stated he expected his attorney to appear. The Department also
announced, for the first time, that it was changing its goal in the case from reunifying
the family to terminating Father’s rights. Explaining the decision to change goals,
the Department’s attorney told the trial court the Department had recently developed
concerns about whether Father could provide Tara and Jason with a safe and stable
home. To explain the change in goals, the Department’s attorney stated the
Department had recently learned that Father had falsified his lease by including a
lessee’s name on the lease who was not actually leasing the apartment so that Father
could arrange to have water utility services connected at his apartment. The
Department’s attorney also told the trial court that Jason had expressed the desire to
return home to Father, but that Tara had expressed her desire to continue living with
her foster parents.
Under the circumstances, the trial court chose to remove the case from the
docket and continue it to September 9. Explaining why it did so, the trial court
advised the parties on August 28 that “this is now a very, very serious matter” and
that Father needed to sort out the issues he was having with his attorney. The trial
court also explained why it did not allow the parties more time, stating it set the trial
9 on September 9 because it is the statutory try or dismiss deadline that, under the
Family Code, applied to the suit. 4
On September 6, a new attorney filed a notice to appear as Father’s attorney
of record. On that same day, Father’s new attorney moved to continue the case from
its September 9 trial setting. The attorney verified the motion to continue, asserting
he needed more time to prepare for the impending trial in light of the recent change
in the Department’s goals and the fact he had only recently been hired.
On the morning of September 9, the trial court heard Father’s motion to
continue but denied the motion at the conclusion of the hearing. The trial court found
that Father, during the hearing and in his motion, had not proven there were any
extraordinary circumstances that justified extending the case beyond the try or
dismiss deadline of September 9. 5 While the trial court did not provide the parties
with written findings of fact, the court indicated in the hearing that Father failed to
rectify the problems he was having with his attorney earlier given the problems first
cropped up when the attorney failed to attend the January 2019 status hearing with
4 See id. § 263.401(a) (providing for a mandatory dismissal of termination proceeding after one year if a trial on merits has not started or a proper extension has not been obtained). 5 Id.
10 Father when Father appeared in court in response to the notice of hearing he received
in the case.
After the trial court denied the motion to continue, the trial began. The
Department called just one witness, Alex Garcia, on the first day of the trial. Garcia
answered eight questions before the trial court announced the court would be in
recess. On September 9, Garcia testified that he is Father’s employer, he has known
Father since they were children, and that he could return to court to finish his
testimony on October 16.
On October 16-17, the trial court heard the remaining testimony in the trial.
Father, along with eight other witnesses, testified over the remaining two days of the
trial. Tara and Jason were not called as witnesses in the trial. Even so, the attorneys
for the parties represented to the court that Jason wanted to return home to his father
while Tara did not. Tara’s and Jason’s CASA, James Cain, testified that Jason
wanted to return to Father while Tara did not.
After the parties presented final arguments, the trial court announced that it
was finding that Father had knowingly placed or allowed Tara and Jason to remain
in conditions that endangered their well-being and engaged in conduct or knowingly
placed Tara and Jason with persons who engaged in conduct that endangered their
11 well-being. 6 The trial court also announced that it was terminating Father’s parental
rights and that terminating his rights would be in Tara’s and Jason’s best interest.7
On October 31, 2019, the trial court signed an Order of Termination consistent with
the statements the court made on the last day of the trial.
Standard of Review-Continuances and Extensions
A ruling by a trial court to grant or deny a motion to continue and to grant or
deny a motion to extend the statutory try or dismiss deadline are reviewable for abuse
of discretion. 8 Under the abuse of discretion standard, the court reviewing the ruling
must uphold the trial court’s ruling as long as the ruling was not arbitrary,
unreasonable, or made without reference to the guiding rules and principles that
apply based on the circumstances in the case. 9
Under the Family Code, trial courts must start the trial of parental-rights
termination cases “on the first Monday after the first anniversary of the date the court
6 See id. § 161.001(b)(1)(D), (E). 7 See id. § 161.001(b)(2). 8 Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004)
(reviewing a trial court’s order denying a motion for continuance for an abuse of discretion); In re D.W., 249 S.W.3d 625, 647 (Tex. App.—Fort Worth 2008, pet. denied) (reviewing a motion to extend the dismissal deadline under section 263.401 of the Family Code for an abuse of discretion); see also Tex. Fam. Code Ann. § 263.401(a) (requiring trial courts to start the trial on the first anniversary after the court sings a temporary order appointing the Department as a child’s temporary managing conservator). 9 See In re A.L.M.-F., 593 S.W.3d 271, 282 (Tex. 2019).
12 rendered a temporary order appointing the [D]epartment as temporary managing
conservator[.]”10 Here, the trial court rendered the temporary order naming the
Department as Tara’s and Jason’s temporary managing conservator on September 5,
2018. Thus, based on section 263.401(a) of the Family Code, the trial court had to
start the trial no later than September 9, 2019, to prevent the case from being
automatically dismissed.11
Given the problems created when Father’s attorney failed to discharge the
duties that he owed to Father as his attorney by appearing with him for the trial, the
trial court continued the case from two trial settings, one on August 7 and the second
on August 28. In part, Father complains the trial court did not extend the case past
the September 9 try or dismiss deadline. To be sure, the Family Code provides trial
courts with some discretion to extend try or dismiss deadlines in parental termination
cases for up to 180 days. But courts may do so only if (1) extraordinary
circumstances necessitate the Department remaining as temporary managing
conservators of the children whose rights are involved in the suit and (2) the
circumstances show that continuing the conservatorship beyond the try or dismiss
deadline by no more than 180 more days is in the children’s best interest.12
10 Tex. Fam. Code Ann. § 263.401(a). 11 Id. 12 Id.
13 August 7 Continuance
In issue one, Father argues that because none of the parties asked to continue
the case or filed written motions for continuance, the trial court acted without
authority by resetting the trial from August 7 to August 28. Yet this argument lacks
merit. Under Texas law, trial courts have wide discretion to manage the needs of
their respective dockets, so they have the right to schedule trials in a manner allowing
the cases to be disposed of expeditiously.13 Under the Texas Rules of Civil
Procedure, trial courts are authorized to create deadlines to control the various
phases of the cases on their dockets.14 Even when trial courts sign pretrial orders
scheduling deadlines, they may then modify the deadlines “to prevent manifest
injustice.” 15 Thus, the Rules of Civil Procedure recognize that trial courts have some
rights to change or modify their interlocutory orders until they lose the authority they
have over their final judgments. 16
At the August 7 hearing, the Department informed the trial court that Father
needed more time to obtain his new residence to allow the Department more time to
decide whether to return Tara and Jason to Father’s care. Thus, when the trial court
13 Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982). 14 Tex. R. Civ. P. 166. 15 Id. 16 In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.—Dallas 2008, no
pet.). 14 continued the case from its former setting on August 7, the court exercised its
inherent discretion to manage its docket.17 The continuance also gave Father more
time to address the problems he was having with the attorney he had retained to
represent him in the case. We conclude Father has not shown that the trial court
abused its discretion by continuing the case from the setting of August 7 because the
court’s decision was reasonable under the circumstances based on the needs of the
parties in the case. 18 We overrule Father’s first issue.
Denial of Father’s Motion to Continue the September 9 Setting
In issue two, Father argues the trial court abused its discretion by refusing to
continue the case from its September 9 setting. According to Father, he needed a
continuance from the September 9 setting so the attorney he hired in September
could have the time he needed to prepare for trial. Given that Father decided to retain
another attorney following the August 28 hearing, we assume that Father decided to
change counsel after he learned that the Department was formally changing its stated
goal from reunifying the family to terminating his rights. In addition to needing more
time for his newly retained attorney to prepare for trial, Father argues the trial court
17See Clanton, 639 S.W.2d at 931. 18Jackson v. Jackson, 556 S.W.3d 461, 471 (Tex. App.—Houston [1st Dist.] 2018, no pet.). 15 erred by failing to give him the “warning to parents,” as required by section 263.006
of the Family Code. 19 Stated another way, Father suggests that he would have
obtained another attorney sooner had the trial court given him the warning required
by section 263.006.
The parties do not dispute that the try or dismiss deadline that applies to
Father’s case is September 9, 2019, unless “extraordinary circumstances” existed
that required extending the case beyond that deadline. 20 Father suggests the
Department’s change in goals as of August 28 coupled with the fact he had to replace
his attorney of record required the trial court to find the circumstances sufficient to
justify extending the deadline that applied to the Department’s suit. While the record
certainly shows there are delays associated with Father’s original attorney of record,
the trial court appears to have blamed Father for them, given Father’s knowledge
that his attorney was not attending court with him by at least January 2019.
Generally, when it comes to delaying a trial, courts will not infer that an
“extraordinary circumstance” exists when the fault for the circumstance leading to
19 See Tex. Fam. Code Ann. § 263.006 (requiring, in cases in which the Department takes a child into temporary custody, the trial court to “inform each parent in open court that parental and custodial rights and duties may be subject to restriction or to termination unless the parent or parents are willing and able to provide the child with a safe environment”). 20 Id. § 263.401(b).
16 the delay lies with the party responsible for causing the delay. 21 On this record, we
cannot say the trial court abused its discretion by finding Father at fault for the delays
given that Father knew as early as January 2019 that his attorney of record was not
discharging the duties he owed Father as his attorney of record in the suit. Moreover,
by recessing the case after the Department called its first witness, the trial court
allowed Father’s attorney more than thirty additional days to prepare Father’s
defense.
Father’s argument suggesting the judgment in the trial should be reversed
because the trial court should have blamed the Department for the delays associated
with the decision it announced on August 28 to change its stated goal to termination
is also without merit. The record the Department’s petition alleged that the
Department was seeking a judgment terminating Father’s parental rights. The court
drove the risk home to Father during the October 2019 hearing, warning Father that
“[i]f you are unwilling or unable to demonstrate an ability to provide [Tara and
Jason] with a safe, stable environment, it is possible -- in this case highly likely --
that your parental rights will be permanently restricted or terminated.” The
temporary order has a similar warning, as the order states in bold print:
THE COURT FINDS AND HEREBY NOTIFIES [FATHER] THAT EACH OF THE ACTIONS REQUIRED OF [HIM]
21 In re O.R.F., 417 S.W.3d 24, 42 (Tex. App.—Texarkana 2013, pet. denied). 17 BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR TERMINATION OF PARENTAL RIGHTS.
Father’s signature appears on the temporary order, so he was on notice that his rights
as a parent were at risk. The family services plan, which Father signed in October
2019, contains a similar warning, which states: “IF YOU ARE UNWILLING OR
UNABLE TO PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT,
YOUR PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE
RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT BE
RETURNED TO YOU.”
Father’s argument suggesting he never received the warning to parents
required under section 263.006 of the Texas Family Code is unsupported by the
record. 22 We conclude Father has not shown the trial court abused its discretion by
denying his motion to continue the September 9 trial setting. We overrule Father’s
second issue.
Best-Interest Findings
In Father’s third issue, he argues the evidence admitted during the trial is
insufficient to show that terminating his parental rights is in Tara’s and Jason’s best
22 Tex. Fam. Code Ann. § 263.006. 18 interest. “In determining whether the evidence is legally sufficient to support a best-
interest finding, we consider the evidence that supports a deemed finding regarding
best interest and the undisputed evidence, and ignore evidence a fact-finder could
reasonably disbelieve.”23 Under the Family Code, a “rebuttable presumption [exists]
that the appointment of the parents of a child as joint managing conservators” will
serve the child’s best interest. 24 That said, there is also a rebuttable presumption that
a prompt and permanent placement of a child in a safe environment is in the child’s
best interest.25
In reviewing a trial court’s best-interest findings, we apply the nine factors
described in Holley v. Adams when measuring whether the evidence supports the
trial court’s best-interest findings.26 Of note, the Holley factors are not exclusive, so
23 In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (cleaned up). 24 Tex. Fam. Code Ann. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parents). 25 Tex. Fam. Code Ann. § 263.307(a). 26 In Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), the Texas
Supreme Court applied these factors in its review: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the parties seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; 19 other factors can be considered in deciding whether the evidence supports the trial
court’s best-interest finding. 27 In parental termination cases, the evidence need not
include evidence on each of the Holley factors, particularly when “the evidence [is]
undisputed that the parental relationship endangered the safety of the child.”28
In his appeal, Father has not challenged the trial court’s finding that he
engaged in conduct that endangered Tara’s and Jason’s well-being. While the
evidence in the record does not address all nine Holley factors, the evidence does
address several of them. In reviewing findings in parental termination cases, trial
courts, when acting as the factfinder in the case, have the right to weigh the relative
evidence on each factor differently on some factors than they weigh evidence on
others.29 Thus, no single Holley factor is controlling in our review of an appeal that
argues the evidence is insufficient to support a trial court’s best-interest finding.30
Moreover, sometimes evidence on just one of the factors may offer sufficient
evidence to support the trial court’s finding terminating a parent’s rights. 31
• the parent’s acts or omissions that reveal the existing parent-child relationship is improper; and • any excuse for the parent’s acts or omissions. 27 In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 28 Id. 29 See In re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). 30 Id. 31 Id.
20 As in this case, evidence that a parent engaged in conduct that endangered a
child is relevant to the review of the finding that terminating Father’s parental rights
is in Tara’s and Jason’s best interest.32 The evidence addressing a child’s best interest
may be direct or circumstantial, and may include subjective factors such as the
factfinder’s observations of the parents in court. 33 Often, evidence describing a
parent’s past conduct may have been highly relevant to the trial court’s finding that
terminating the parent’s rights is in the child’s best interest.34 When we review the
evidence the trial court considered, we examine it from the standpoint of the child,
not from that of the child’s parent.35
Here, the testimony established that Father has a long history—nearly twenty
years—showing that he abuses alcohol. The choices Father made to drink and drive
ultimately caused instability in Tara’s and Jason’s home, as the evidence shows they
were cared for by a relative or placed in foster care on multiple occasions. In his
brief, Father acknowledges that he has not provided his children with “stability due
to his incarceration[s] which were the result of his drinking alcohol and driving.” At
32 See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 33 In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.
denied). 34 Id. 35 See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.)
(citing In re S.A.P., 169 S.W.3d 685, 707 (Tex. App.—Waco 2005, no pet.)). 21 trial, Father asked the trial court to discount the history of instability he created in
the home, suggesting he has now turned the corner on recovering from his
dependence on alcohol. According to Father, if given just one more chance, he will
provide his children a safe and stable home. Father points to the evidence showing
that he and Jason have a strong bond, and he suggests that the trial court should have
deferred to Jason’s stated desire to return home in deciding whether terminating his
rights would actually serve the best interests of his children.
We readily agree the record contains evidence that, if the trial court had found
it believable, offers support for Father’s argument he has finally turned the corner
on recovering from his dependence on alcohol. For instance, there is evidence in the
trial showing that Father completed the requirements of his family service plan, a
plan that included a program requiring Father to obtain treatment for his abuse of
alcohol. Father has also not tested positive on any of the tests he took to detect
alcohol or drugs, he completed a drug and alcohol assessment, he has a sponsor from
Alcoholics Anonymous, and he has completed a plan that is designed to reduce his
risk of having a relapse. Father also notes he is currently on probation after pleading
guilty of a fifth DWI, suggesting he would not risk violating the terms of his
probation and risk going back to jail. The probation order on the fifth DWI requires
that Father attend DWI court and an outpatient treatment program. Father points to
22 the evidence showing he has worked consistently for the same employer since he
returned to Texas after completing the requirements of probation on his fourth DWI.
The evidence shows that he earns a sufficient income from his job to allow him to
provide for what his children would need. Finally, Father points to the evidence in
the trial showing that he is currently living in a three-bedroom apartment, space that
would allow Tara and Jason to have their own bedrooms.36
But there is also evidence showing Father has a long history of alcohol abuse,
evidence that allowed the trial court to form a firm belief or conviction that Father
would return to his old patters of drinking, which would then lead to further
instability in Tara’s and Jason’s lives. Boiling it down, Father asks this Court to
weigh the evidence differently from the way the trial court weighed it. But that’s not
this court’s role, given the trial court’s sole right to decide how much weight to give
the testimony adduced on the various Holley factors during a trial. 37 Thus, while
Father promises he will not return to his historical pattern, the trial court could
reasonably have chosen to disagree given Father’s historical inability over the past
two decades to control his need for alcohol. 38 On this record, we cannot say the trial
36 The testimony in the trial shows that Father had water service to the apartment where he was living when the case was tried. 37 See City of Keller v. Wilson, 168 S.W.3d 802, 819-20 (Tex. 2005). 38 See Tex. Fam. Code Ann. § 263.307(a).
23 court abused its discretion by rejecting the evidence Father relied on to claim he has
now turned the corner on his abuse of alcohol so that he can avoid returning to the
patterns that resulted in his children being taken by the Department and placed in
foster care.
There is also other evidence in the record relevant to some of the other Holley
factors that offers additional support for the trial court’s best-interest finding. For
instance, Tara’s and Jason’s foster parents testified in the trial. They testified they
love the children and that both children are thriving in their care. The evidence
allowed the trial court to conclude that the children’s foster parents have provided
and can continue providing Tara and Jason a safe and stable home along with
providing for their needs. Additionally, Tara’s and Jason’s foster parents testified
they wanted to adopt them, so the trial court could have viewed the termination of
Father’s rights as the first step in a plan that would lead to the siblings being able to
stay together. The foster parents also testified that if they were successful in adopting
the children, they would still allow Tara and Jason to maintain a relationship with
their father.
During the trial, Rosalind McCray (the caseworker the Department assigned
to the case) addressed the Department’s desire to place Tara and Jason in a safe,
stable, and permanent home. According to McCray, the Department’s initial goal
24 was to reunify the children with their Father, but the Department’s goal changed
when McCray learned Father had filed a credit application for water service and
misrepresented who was leasing the apartment so that a service provider would
connect the apartment so that it could be serviced with water. McCray learned that
Father falsified the application because he had skipped out on his obligation to pay
another water bill.
The Department also presented evidence challenging Father’s truthfulness
about whether he was complying with the treatment goals required by the
Department’s family service plan. On cross-examination, Father admitted he sent a
text message to Andy Garcia, his employer, stating that he would “do everything
else [the Department] ask[s]. My lawyer said fake the AA to be able to work. So
that’s what I was doing. Now they want actual sign-in sheets. So I have no choice
but to fake them.” In her testimony, McCray testified that Father had not been honest
with her “on things that have been going on.”
To be fair, there is testimony in the trial the court could have, in its discretion,
chosen to weigh differently. James Cain (the CASA) testified he did not believe that
terminating Father’s parental rights was in Jason’s best interest. According to Cain,
Father has done an “amazing” job turning his life around and can now provide for
his children’s needs. Cain explained that while Tara told him she wanted to remain
25 with her foster parents, Jason and Father have a strong bond and he told Cain that he
wants to return to Father’s care. Cain concluded that, in his opinion, terminating
Father’s parental rights is in Tara’s best interest but not in Jason’s. When the trial
court asked the attorney ad litem to express an opinion, she urged the trial court to
name the Department as Tara’s sole managing conservator and allow Jason to return
home to Father.
We acknowledge the record contains conflicting evidence about the factors
relevant to the trial court’s best-interest finding. Even so, it was up to the trial court,
as the trier of fact, to weigh the evidence and decide what, in the future, would serve
each child’s best interest. Based on the evidence, we conclude the trial court did not
abuse it discretion by finding the Department’s plan superior to the plans for the
children proposed by others in the case. 39 The testimony in the trial suggests it could
harm Tara and Jason should they be separated. Thus, the trial court could not have
granted the preferred outcome in the case that each child expressed to the CASA.
And the trial court had the right to weigh the need for a prompt, permanent and safe
placement over Jason’s expressed preference asking that the court return him to his
Father’s care. 40
39 See City of Keller, 168 S.W.3d at 819. 40 See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). 26 Given that the trial court’s role as the factfinder in the trial together with its
right to weigh the evidence, we hold the record contains sufficient evidence to
support the trial court’s best-interest findings. 41 On this record, we cannot say the
trial court abused its discretion by striking the balance in favor of its apparent view
that the children needed a resolution that promoted stability, safety, and permanence
in their lives. We hold the record contains sufficient evidence to allow the trial court,
as the trier of fact, to form a reasonably firm belief or conviction that terminating
Father’s parental rights is in each child’s best interest.
We overrule Father’s third issue.
Ineffective Assistance of Counsel
In issue four, Father complains his trial counsel and the attorney the trial court
appointed to serve as the children’s attorney ad litem provided ineffective assistance
by failing to call Tara and Jason to testify during the trial. Before discussing the
specifics of Father’s argument, we briefly note the standard that applies to our review
of issue four. In parental termination cases, Texas courts follow the test established
in Strickland to measure a parent’s allegations claiming the parent received
constitutionally ineffective assistance of counsel. 42 To prove an ineffective
41 See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re J.L., 163 S.W.3d 79, 85 (Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). 42 In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).
27 assistance claim, the party asserting the claim must establish that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the
defense. 43 Under Strickland, the parent must “successfully show both prongs of the
inquiry.” 44 The parent who is claiming ineffective assistance has the burden of proof
on the claim. 45
In considering a claim of ineffective assistance of counsel, we “must take into
account all of the circumstances surrounding the case, focusing on whether counsel
performed in a ‘reasonably effective’ manner.” 46 Our review of counsel’s
performance is highly deferential, and we presume that counsel’s conduct fell within
the range of reasonable professional assistance, considering “the possibility that
counsel’s actions [were] strategic.” 47 “An allegation of ineffective assistance must
be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness.”48 Since strategy plays a large role when deciding whether
to call a witness to testify in a trial, decisions in trials over whether to call a witness
43See Strickland v. Washington, 466 U.S. 668, 687 (1984); In re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005). 44 See Strickland, 466 U.S. at 688, 694; M.S., 115 S.W.3d at 545. 45 M.S., 115 S.W.3d at 545. 46 Id. (citing Strickland, 466 U.S. at 687). 47 Id. 48 Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 622-
23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (cleaned up). 28 to testify in the trial are not usually sufficient to prove a claim of ineffective
assistance of counsel unless the parent establishes that the failure to call the witness
was “so outrageous that no competent attorney would have engaged in it[.]”49
That said, Strickland and the family law cases we have cited addressing claims
of ineffective assistance of counsel do not involve a complaint by the defendant
against an attorney that did not have an attorney-client relationship with the
defendant in the case. 50 Father cites no cases supporting his argument that he may
complain about ineffective assistance of counsel when the complaint concerns the
conduct of an attorney, in this case the attorney ad litem, with whom he did not have
an attorney-client relationship in the case.
To decide whether Father can assert a claim for ineffective assistance against
someone who was not his lawyer, we must decide whether Father enjoys standing to
complain about the conduct of someone who was not his lawyer. Without standing,
the court has no case or controversy to decide. Under Texas law, to establish
standing, the “plaintiff must allege ‘a concrete injury . . . and real controversy
49 M.S., 115 S.W.3d at 545 (cleaned up). 50 See Strickland, 466 U.S. at 671 (complaint by defendant in a criminal case against the attorney appointed to represent him in the trial); J.P.B, 180 S.W.3d at 574 (complaint by Mother levelled at Mother’s trial counsel); M.S., 115 S.W.3d at 545 (complaints by Mother levelled at Mother’s trial counsel). 29 between the parties that will be resolved by the court.’” 51 The injury must be
threatened or actual, not one that is merely hypothetical. 52
Here, Father failed to prove that he had an attorney-client relationship with
the attorney ad litem. Thus, Father does not have standing to challenge the choices
the attorney ad litem made as to the strategy she followed when she discharged the
duties required based on her appointment to serve as the attorney ad litem for the
children in the trial.
As for Father’s complaint about the attorney he hired to represent him, the
Department argues we should not reach Father’s argument asserting his attorney was
ineffective because the Texas Supreme Court has not yet recognized whether a
parent, who retains an attorney rather than has an attorney appointed for him by the
court, has a claim for constitutionally ineffective assistance of counsel based on the
strategic decisions the attorney made in the trial. But the intermediate courts of
appeals are split on this question. One of our sister courts has recognized that such
51 Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 241 (Tex. 2020) (quoting Heckman v. Williamson Cty., 369 S.W.3d 137, 154 (Tex. 2010)); see also In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004, no pet.). 52 Id.
30 claims are cognizable while another intermediate court of appeals found they are
not. 53
While the dispute is an interesting legal question, we need not resolve it to
resolve Father’s appeal. Instead, we will assume (without deciding) that Father’s
complaints about the attorney who represented him in the trial are cognizable and
review the record to determine whether Father met his burden to prove his attorney
breached the duty he owed Father to provide him with constitutionally effective
assistance in the trial. 54
The record shows Father never filed a motion for new trial and his trial
attorney did not file an affidavit or testify about why he did not call Tara and Jason
as witnesses in the trial. Thus, the record is silent about why the attorney did not call
either child to testify. When the record is silent about trial counsel’s strategy, we
cannot find that the choice the attorney made not to call a witness in the trial is a
choice that no competent attorney would have made. 55
53 See, e.g., In re D.T., 593 S.W.3d 437, 439-40 (Tex. App.—Texarkana 2019, pet. granted) (concluding parents who retain counsel cannot raise an ineffective assistance challenge to the termination order, while citing cases from other courts of appeals that held the same); but see In re E.R.W., 528 S.W.3d 251, 261 (Tex. App.— Houston [14th Dist.] 2017, no pet.) (concluding the right to effective counsel extends to non-indigent parents who have retained counsel). 54 See Strickland, 466 U.S. at 687. 55 Bone v. State, 77 S.W.3d 828, 833-34 (Tex. Crim. App. 2002).
31 Assuming Father can raise an ineffective assistance of counsel claim against
an attorney whom he retained, we conclude Father failed to meet his burden of
proving the attorney failed to discharge his duty to provide constitutionally effective
assistance of counsel. 56 We overrule Father’s fourth issue.
Conclusion
Having considered each of Father’s arguments supporting his issues, we
conclude that Father has not shown that reversible error occurred. For that reason,
the trial court’s Order of Termination is
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on August 11, 2020 Opinion Delivered December 3, 2020
Before McKeithen, C.J., Kreger and Horton, JJ.
56 Walker, 312 S.W.3d at 622-23. 32