In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-23-00320-CV
IN THE INTEREST OF M.A.H., A CHILD
On Appeal from the County Court at Law No. 2 Randall County, Texas Trial Court No. 81875L2, Honorable Matthew C. Martindale, Presiding
January 31, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
In this accelerated appeal, appellant, Father, seeks reversal of the trial court’s
judgment terminating his parental rights to M.A.H.1 By his appeal, Father asserts his due
process rights were violated when the trial and de novo hearing proceeded without him,
the evidence is insufficient to support the predicate grounds and best interest findings,
and he received ineffective assistance of counsel. We modify the judgment and affirm as
modified.
1 To protect the privacy of the parties involved, we refer to the child by initials and to the parents of
the child as “Mother” and “Father.” See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). BACKGROUND
The child the subject of this case is nine-year-old M.A.H. He lived primarily with
Mother until her death on August 24, 2019. M.A.H. lived with Father for an undetermined
period of time after Mother’s death. When Father learned he would be incarcerated
because of drug-related crimes, he placed M.A.H. with Samuel Smith and gave Smith the
ability to consent to medical treatment.
The Department became involved with M.A.H. in August of 2022, when Smith
brought M.A.H. to the Department’s office because he was unable to care for him any
longer. According to Smith, M.A.H. was a troubled child who had made many
unsubstantiated allegations of physical abuse against Smith. The latest allegation was
made after M.A.H. was reported as a runaway. M.A.H. told law enforcement that Smith
physically abused him. The Department opened an investigation and ruled out the
allegations of abuse against Smith.
M.A.H. told the Department investigator that he was disciplined by Father and “he
barely spent any time with [Father], because [Father] was always working to make money
to buy drugs.” Father, who was serving a six-year sentence in the penitentiary for
possession of a controlled substance and tampering with evidence, was interviewed by
the investigator. Father gave the Department names for possible caregivers for M.A.H.
but they were unsuitable or unwilling to care for M.A.H. The Department took M.A.H. into
care because there was no one else available to care for him. Father remained
incarcerated for the duration of the underlying proceedings.
2 The Department filed its petition for protection, conservatorship, and termination
of parental rights of Father. Following an adversary hearing, the Department was
appointed temporary managing conservator and M.A.H. was placed in a foster home.
A Department caseworker created a service plan for Father, which required him to
complete specified tasks and services before reunification with M.A.H. could occur. As a
part of the plan, Father was not permitted to have visits with M.A.H. until he had a clean
drug screen. Father admitted to the caseworker that “he had messed up several times,
and let drugs take over” and that “he was sorry for that [for M.A.H.]” Father was provided
workbooks for parenting and substance abuse, but he did not complete either workbook.
The plan described M.A.H. as a healthy nine-year-old boy with no physical limitations,
developmental delays, or emotional or behavioral health issues.
At trial, the caseworker testified that she attempted to contact M.A.H.’s older
siblings for placement, but she did not receive a response. The maternal grandfather, a
registered sex offender, was not suitable for placement, and the maternal grandmother
could not be located. The extent of Father’s contact with M.A.H. during the pendency of
this case was two letters that Father wrote to him.
The Department presented evidence that Father was arrested in the early morning
hours of September 2, 2020, in Cooke County, Texas on felony charges of possession of
a controlled substance (methamphetamine) and tampering with evidence. Father
remained in jail for 149 days while he was awaiting his court date. In January of 2021,
he pleaded guilty to the charges and was placed on community supervision. While on
supervision, Father admitted to using methamphetamine and failed to abide by the terms
3 and conditions of his supervision. In July of 2022, Father’s community supervision was
revoked, and he was sentenced to six years in the Texas Department of Criminal Justice
(TDCJ), with a jail time credit of 241 days. Father was incarcerated and serving his
sentence when the termination trial commenced in August of 2023. His projected release
date is June 14, 2024, and his maximum sentence date is November 20, 2027.
The Department presented evidence that law enforcement conducted a welfare
check on M.A.H. in February of 2014. According to a Randall County deputy sheriff, he
knocked on the door where Mother, Father, and M.A.H. were living, but no one would
answer the door. After the deputy left, he determined that Mother and Father had
outstanding warrants, so he obtained a search warrant and returned to the home with four
additional officers. After knocking on the door with no answer for twenty minutes, officers
forcefully entered the home. Officers found marijuana paraphernalia in the home and
Father was arrested on a warrant for possession of marijuana. According to the deputy,
it was “an inherently dangerous situation” to force entry into a home under these
circumstances.
The Department also presented evidence that Father was convicted of a class “B”
misdemeanor for possession of marijuana on February 26, 2014, and a class “B”
misdemeanor for theft on November 25, 2014.
By the time of trial, M.A.H. was ten years old. He was placed with a foster family
in Lubbock after his removal. He is receiving counseling and is doing very well. M.A.H.
“loves” the placement and wants to stay there until he turns eighteen. The placement is
interested in providing long-term placement for M.A.H.
4 The associate judge held a final hearing via Zoom videoconferencing. Father did
not appear, but he was represented by an attorney. After testimony, the associate judge
terminated Father’s parental rights on the grounds of abandonment and failure to comply
with a court order that established actions necessary to retain custody of M.A.H. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O).2 The court also found that termination
would be in M.A.H.’s best interest. See § 161.001(b)(2). The court appointed the
Department as the managing conservator of M.A.H.
The Department timely filed a request for a de novo hearing before the referring
court. The court considered the record from the final hearing and additional testimony.
The court terminated Father’s parental rights on grounds of endangering conditions,
engaging in criminal conduct resulting in his conviction, imprisonment, and inability to
care for M.A.H. for at least two years from the original petition’s file date, and
abandonment. See § 161.001(b)(1)(D), (N), (Q). The trial court also found that
termination was in the best interest of M.A.H. and appointed the Department as the
managing conservator of M.A.H. See § 161.001(b)(2).
STANDARD OF REVIEW
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
finding “to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To
2 Further references to provisions of the Texas Family Code will be by reference to “section __” or
Ҥ __.
5 give appropriate deference to the factfinder’s conclusions, we must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,
443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we
determine that no reasonable factfinder could have formed a firm belief or conviction that
the matter that must be proven was true, then the evidence is legally insufficient and we
must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, considering
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.
APPLICABLE LAW
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
6 v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). 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.”
§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and
termination may not be based solely on the best interest of the child as determined by the
trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one
predicate finding under section 161.001[(b)](1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best interest.” In
re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both
legally and factually sufficient to support any alleged statutory ground the trial court relied
7 upon in terminating the parental rights if the evidence also establishes that termination is
in the child’s best interest. In re K.C.B., 280 S.W.3d at 894–95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any witness. Id. Where
conflicting evidence is present, the factfinder’s determination on such matters is generally
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no
writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the written
transcript, the appellate court must defer to the factfinder’s determinations, if those
determinations are not themselves unreasonable. Id.
CONSTITUTIONAL COMPLAINT
In his first issue, Father contends that the trial court violated his “constitutional and
fundamental rights to due process” as he was not allowed to appear at the final trial or
the de novo hearing.
8 To preserve a constitutional claim for appellate review, a party must raise the issue
in the trial court. TEX. R. APP. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)
(holding that, to preserve argument for appellate review, including constitutional
arguments, party must present it to trial court by timely request, motion, or objection, state
specific grounds therefor, and obtain ruling). We may not consider a complaint that was
not ruled on by the trial court.
The record shows the trial was originally scheduled to be heard on July 31, 2023.
On June 29, 2023, the associate judge entered an order to participate in the final hearing,
which contained the date and time of trial, information to access the Zoom hearing, and
an order for Father to be present and participate for the hearing. On July 31, trial was
reset to August 14, and another order for Father’s participation was signed. When the
associate judge called the case for trial, Father was not present. Father’s counsel
announced that he was provided “the same notice as all of us,” and that the notice was
sent to the prison where Father was incarcerated. The case proceeded to trial. The
Department’s request for a de novo hearing was scheduled for September 11, and an
order for Father to participate in the hearing with detailed information about the date, time,
and information to access the Zoom hearing was included in the order. The order also
directed that Father be present and participate for the entire hearing. After the trial court
called the case for hearing, Father’s counsel announced “ready” and told the judge that
the order was provided to the prison, “and they did not make him available at the last
hearing, so I’m guessing that they have not made him available at this time.” The judge
proceeded to trial without Father since “he is represented by counsel.” At no time in the
proceedings below did Father’s counsel object to proceeding to trial without Father on
9 constitutional or any other grounds. Accordingly, Father has failed to preserve his alleged
constitutional violations for appellate review. See In re A.G., No. 07-17-00298-CV; 2018
Tex. App. LEXIS 243, at *5 (Tex. App.—Amarillo Jan. 9, 2018, pet. denied) (mem. op.).
We overrule Father’s first issue.
SUFFICIENCY OF THE EVIDENCE
Section 161.001(b)(1)(D)
A parent’s rights may be terminated if there is clear and convincing evidence that
a parent has knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child. §
161.001(b)(1)(D). Subsection (D) requires a showing that the environment in which the
child is placed endangered the child’s physical or emotional health. Doyle v. Tex. Dep’t
of Protective and Regul. Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet.
denied). In this context, the child’s environment refers to the suitability of the child’s living
conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The emphasis is on the
child’s living environment as it existed prior to the child’s removal by the Department. As
such, the relevant timeframe for such endangerment is prior to the child’s removal. In re
C.R., Nos. 07-20-00314-CV, 07-20-00316-CV, 2021 Tex. App. LEXIS 1286, at *6 (Tex.
App.—Amarillo Feb. 23, 2021, pet. denied) (mem. op.). It is not necessary that the child’s
living environment directly threaten the child or that the child be injured, but the parent
must at least be aware of the potential for danger to the child in such an environment and
10 must have disregarded that risk. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston
[14th Dist.] 2005, no pet.).
In his second issue, Father contends there was insufficient evidence to show he
knowingly placed M.A.H. in conditions that endangered his physical or emotional well-
being because he placed M.A.H. in a safe environment with Smith, and “he executed
documents so that Smith could get medical care for [M.A.H.] and enroll him in school.”
The referral to the Department in this case originated in August of 2022, at which
time Father was incarcerated and serving a six-year sentence for possession of a
controlled substance and tampering with evidence. The trial court’s order of emergency
removal was dated August 22, 2022. Consequently, the relevant timeframe under
subsection (D) is that period prior to August 22, 2022. See In re L.E.S., 471 S.W.3d 915,
926 (Tex. App.—Texarkana 2015, no pet.) (“In evaluating termination under ground (D),
however, we are to examine the time prior to [the child’s] removal to determine whether
the environment of the home posed a danger to her physical or emotional well-being.”).
The evidence reflects that M.A.H. resided with Mother until her death on August
24, 2019. Although the record is unclear, at some point, after Mother’s death, M.A.H.
went to live with Father. The record does not establish where M.A.H. was living when
Father was arrested for drug-related crimes in September of 2020 or when Father
admitted to using methamphetamine in May of 2021. The record was undeveloped
concerning any home environment provided by Father, evidence of the suitability of
M.A.H.’s living conditions, or of the conduct of Father in the home. Other than a statement
attributed to M.A.H. that “he barely spent any time with [Father], because [Father] was
11 always working to make money to buy drugs[,]” there was no evidence that Father used
drugs around M.A.H., allowed him to be around the presence of drugs or drug users, or
that Father had ever physically harmed him.3 Because of his incarceration, Father
arranged for M.A.H. to live with Smith and designated Smith to consent to medical
treatment, although the record is not clear when this occurred. There was no testimony
to suggest that Smith was not a responsible adult or appropriate caregiver, and no
evidence that Smith’s residence was a dangerous environment for M.A.H. There was no
indication at the time that M.A.H. was taken into care by the Department that he had been
abused or neglected or that Father was aware that Smith was unable to further care for
M.A.H. On this record, we cannot conclude that a factfinder could form a firm belief or
conviction that Father knowingly placed or knowingly allowed M.A.H. to remain in
conditions or surroundings that endangered his physical or emotional well-being.4 As
such, we sustain Father’s second issue.
3 The Department points to Father’s history of incarceration and an “inherently dangerous situation”
in February of 2014 to support a finding under subsection (D). The incident in 2014 involved a welfare check on one-year-old M.A.H., when law enforcement forced entry into Mother’s and Father’s home. Drug paraphernalia was found in the home and Father was arrested on an outstanding warrant for possession of marijuana. A few weeks later, Father pleaded guilty to a misdemeanor charge of possession of marijuana and served twelve days in jail. Later, in November of 2014, Father pleaded guilty to misdemeanor theft and was sentenced to fifteen days’ confinement in jail. While a parent’s incarceration can negatively impact a child’s living environment and well-being sufficient to show endangerment, this evidence is too remote in time and lacks any connection to M.A.H.’s living environment in August of 2022 to support a finding under subsection (D). 4 Our resolution of this issue should not be interpreted as supporting a conclusion that no inference
can ever be made that a parent’s incarceration can negatively impact a child’s living environment and well- being sufficient to show endangerment under subsection (D). Here, the Department did not present evidence to allow the factfinder to infer how Father endangered the child through his incarceration.
12 Section 161.001(b)(1)(Q)
By his fourth issue, Father asserts the evidence was legally and factually
insufficient to support termination of his parental rights under subsection (Q). Subsection
(Q) provides a basis for termination on a finding that the parent “knowingly engaged in
criminal conduct that has resulted in the parent’s: (i) conviction of an offense; and (ii)
confinement or imprisonment and inability to care for the child for not less than two years
from the date of filing the petition . . . .” § 161.001(b)(1)(Q); In re J.G.S., 574 S.W.3d 101,
118 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Subsection (Q) focuses on a
parent’s future imprisonment and inability to care for the child. “By looking at future
imprisonment and inability to care for the child, subsection Q purports to protect children
whose parents will be incarcerated for periods exceeding two years after termination
proceedings begin.” In re A.V., 113 S.W.3d at 360–61.
Here, the Department filed its petition to terminate Father’s parental rights on
August 18, 2022. As such, the Department was required to prove that Father would be
confined or imprisoned until at least August 18, 2024. It is undisputed that, at the time
the Department filed its petition, Father was incarcerated and serving a six-year sentence
for possession of a controlled substance and tampering with evidence. The trial court
admitted into evidence the judgments from Father’s convictions and a printout from the
Texas Department of Criminal Justice. These documents show that Father’s six-year
confinement began July 19, 2022, with a projected release date of June 14, 2024, and a
maximum sentence date of November 20, 2027. The Department also presented
evidence that his parole was denied on September 21, 2022, his next parole review was
not until September 20, 2023, and it was uncertain whether he would be released then. 13 In his briefing on this issue, Father concedes that the Department produced
evidence that he knowingly engaged in criminal conduct and was convicted and
incarcerated. He does not address his inability to care for M.A.H. during his incarceration.
Father’s challenge focuses on the evidence of whether his incarceration will continue for
at least two years from the date the termination petition was filed, that is, until August 18,
2024. Father points to evidence of his projected parole eligibility date of June 14, 2024,
which is less than two years from the date the petition was filed.
The Texas Supreme Court has determined that parole eligibility and the projected
release date are relevant, but not dispositive evidence of when an incarcerated person
will in fact be released from prison. In re H.R.M., 209 S.W.3d 105, 108–09 (Tex. 2006)
(per curiam). The introduction of parole-related evidence, however, does not prevent a
factfinder from forming a firm conviction or belief that the parent will remain incarcerated
for at least two years. Id. at 109. Here, there is no evidence of the certainty of Father’s
projected release date. Moreover, the trial court had before it evidence that Father’s last
parole decision was denied favorable action because of his criminal history, excessive
substance use involvement, and unsuccessful supervision on his previous probation.
“Parole decisions are inherently speculative, and while all inmates doubtless hope for
early release and can take positive steps to improve their odds, the decision rests entirely
within the parole board’s discretion.” Id. (citations omitted). We conclude the evidence
is legally and factually sufficient to support the finding that Father would remain
incarcerated for two years from the date of the filing of the petition. Id. at 109–10. We
overrule Father’s fourth issue.
14 In light of our conclusion regarding the trial court’s finding on subsection (Q), we
need not address Father’s third issue and the finding under subsection (N). In re A.V.,
113 S.W.3d at 362 (“Only one predicate finding under section 161.001[(b)](1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.”).
Best Interest
In his fifth issue, Father challenges the factual and legal sufficiency of the evidence
to support the best interest finding made under section 161.001(b)(2). A determination of
best interest necessitates a focus on the child, not the parent. In re B.C.S., 479 S.W.3d
918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts examine the entire record
to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex.
2013). There is a strong presumption that it is in the child’s best interest to preserve the
parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976).5 “[T]he State need not prove all of the factors as a condition precedent to parental
termination, ‘particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—
5 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and
physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. Id.
15 Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
Evidence that supports one or more statutory grounds for termination may also constitute
evidence illustrating that termination is in the child’s best interest. See In re E.C.R., 402
S.W.3d at 249. The best interest analysis may consider circumstantial evidence,
subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T.,
338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind
that a child’s need for permanence through the establishment of a stable, permanent
home has been recognized as the paramount consideration in determining best interest.
See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
The evidence showed that M.A.H. lived primarily with Mother until her death in
2019. M.A.H. lived with Father for a year until Father was arrested in September of 2020
for drug-related crimes. There was evidence that M.A.H. did not have a close bond with
Father. According to M.A.H., Father did not spend a lot of time with him because he was
always working to buy drugs. Father admitted he had a substance abuse issue and that
“he had messed up several times, and let drugs take over” and that “he was sorry for that
[for M.A.H.]” Around the time that Father was incarcerated, he made arrangements for
M.A.H. to live with Smith, and Smith was given the ability to consent to medical treatment
and care for M.A.H. After receiving four years’ community supervision in January of 2021
for possession of a controlled substance and tampering with evidence, Father tested
positive for methamphetamine in May of 2021. In July of 2022, Father’s probation was
revoked, and he was sentenced to six years in the penitentiary. Father was incarcerated
in August of 2022, when Smith left M.A.H. to be cared for by the Department. Father
remained incarcerated during the entirety of the underlying proceedings. His continued
16 incarceration subjects M.A.H. to a life of uncertainty and instability. A parent’s
imprisonment is a factor that may be considered in determining a child’s best interest. In
re M.L., No. 07-20-00195-CV, 2020 Tex. App. LEXIS 9483, at *16 (Tex. App.—Amarillo
Dec. 4, 2020, no pet.) (mem. op.). A trial court is permitted to consider a parent’s drug
use and inability to provide a stable home in its best interest determination. In re S.B.,
207 S.W.3d 877, 887−88 (Tex. App.—Fort Worth 2006, no pet.).
Other evidence supports the trial court’s finding that termination of Father’s
parental rights was in M.A.H.’s best interest. At the time of trial, M.A.H. was ten years
old, and he had remained with the same placement since August of 2022. M.A.H.
expressed to the caseworker that he “loves” his current placement. According to the
caseworker, he is doing well and would like to stay in the placement until he turns
eighteen. The foster family is willing to have a long-term placement with M.A.H. The only
contact Father had with M.A.H. after his incarceration was sending two letters to M.A.H.
According to M.A.H., he does not know Father well, but he still loves him. Because of
Father’s continued incarceration, it is likely that his limited interaction with M.A.H. would
continue for the foreseeable future. See In re N.R.T., 338 S.W.3d at 677 (considering
that appellants had “no meaningful contact” with their child as evidence relevant to best
interest determination).
Stability and permanence are paramount in the upbringing of a child. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119−20.
Although Father did not complete any services set out in his plan of service, he maintained 17 contact throughout the case with the caseworker. He desired to have a father-son
relationship with M.A.H. when he is released from prison. In contrast, the Department’s
plan for M.A.H. is a long-term placement with his current foster family. The Department’s
plan would provide permanence and stability for M.A.H.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Father’s parental rights is in the
best interest of M.A.H. We overrule issue five.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In his last issue, Father asserts his counsel was ineffective for failing to request a
continuance once it became clear that he was not made available telephonically to attend
the trial and de novo hearing.
In Texas, there is a statutory right to counsel for indigent persons in parental-rights
termination cases and this right encompasses the right to effective counsel.
§ 107.013(a)(1); In re M.S., 115 S.W.3d at 544. The standard of review to apply in
evaluating claims of ineffective assistance of counsel in termination of parental rights
cases is the same as that set forth by the United States Supreme Court for criminal cases
in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
“Under the well-established Strickland test, proving ineffective assistance of counsel
requires a showing that (1) counsel made errors so serious that counsel was not
functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) the deficient
performance prejudiced the defense, which ‘requires showing that counsel’s errors were
18 so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” In re
H.R.M., 209 S.W.3d at 111 (quoting In re M.S., 115 S.W.3d at 545).
To determine whether representation was deficient, we must consider all of the
circumstances surrounding the case and determine whether counsel was “reasonably
effective.” In re M.S., 115 S.W.3d at 545. In doing so, we afford great deference to
counsel’s performance, indulging “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance . . . .” Id.
In conducting the harm analysis under the second prong of Strickland, reviewing
courts must determine whether there is a reasonable probability that, but for the deficient
performance, the result of the proceeding would have been different. In re M.S., 115
S.W.3d at 549–50.
An allegation of ineffective assistance of counsel in a termination proceeding must
be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness and the resulting harm. Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 622–23 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d).
In considering the record from the final hearing before the associate judge and the
record from the de novo hearing before the referring court, the record does not support
Father’s contention that his trial counsel was ineffective. As we have detailed in the
analysis of Father’s first issue, the record contains an order requiring Father’s
participation in each respective hearing. At the final hearing, Father’s counsel
represented to the court that “we sent the prison notice for [Father] to appear.” Likewise,
at the de novo hearing, Father’s counsel told the court that the order to participate was
19 sent to TDCJ and “they did not make him available at the last hearing, so I’m guessing
that they have not made him available at this time, Your Honor.” The record shows that
Father’s appointed counsel questioned witnesses and proffered argument on his behalf.
There is nothing in the record before us showing the reason that counsel did not
request a continuance or that her actions were unreasonable. Without an explanation
from trial counsel for her actions and in light of the strong presumption in favor of
reasonable representation, the record here does not reflect that trial counsel lacked sound
strategic reasons for her conduct. See In re M.S., 115 S.W.3d at 549. As to the second
prong of the Strickland test, Father has not even attempted to show how counsel’s
requesting a continuance would have resulted in a different outcome or how counsel’s
alleged deficiencies prejudiced the case, deprived him of a fair trial, or produced an
unreliable result. See In re H.R.M., 209 S.W.3d at 111. As such, we conclude that Father
has failed to show that his trial counsel was deficient or that she prejudiced his defense.
We overrule issue six.
CONCLUSION
Having found no evidence to support termination of Father’s parental rights under
subsection (D), we modify the trial court’s judgment to delete this subsection as a ground
for termination. As so modified, we affirm the trial court’s judgment.
Judy C. Parker Justice