in the Interest of M.J.A.G.

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00143-CV

In the Interest of M.J.A.G., A.T.L.G. and D.R.G., Children

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2014-PA-00911 Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Jason Pulliam, Justice

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Jason Pulliam, Justice

Delivered and Filed: August 12, 2015

AFFIRMED

Appellant J.S. (Mother) appeals from a judgment terminating her parental rights to her

children M.J.A.G., A.T.L.G. and D.R.G. 1 On appeal, Mother challenges the trial court’s judgment

on the basis she received ineffective assistance of trial counsel. We affirm the trial court’s

judgment.

BACKGROUND

On January 8, 2014, the Texas Department of Family and Protective Services (the

Department) received a referral based upon neglectful supervision of A.T.L.G. and D.R.G. This

referral resulted from several incidents in which police responded to domestic disputes involving

1 To protect the identity of the minor children, we refer to the children and the children’s parents by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). 04-15-00143-CV

Mother and her boyfriend. In one such instance Mother stabbed her boyfriend with a knife. The

referral alleged Mother drank alcohol daily, used cocaine and smoked marijuana in front of the

children. In addition, the referral alleged the children were unbathed and ungroomed and were

seen with dirty diapers and wearing inappropriate clothing in winter. Based on the referral, the

Department began an investigation.

The Department’s investigation revealed that in 2002, Mother relinquished custody of her

three-month old twin daughters to her mother, Rosa J., who was appointed as their permanent

managing conservator. Shortly after Mother relinquished custody of her daughters, she gave birth

to M.J.A.G. Mother placed M.J.A.G. in Rosa J.’s care pursuant to a “notarized custody agreement”

shortly after his birth. Since that time M.J.A.G. has lived with Rosa J. and has never been in

Mother’s primary care.

On April 16, 2014, a Department caseworker conducted an interview with Mother. Mother

admitted to having no permanent residence. Mother resided with a friend at the time of the

interview, but ordinarily “drifted from place to place.” Mother admitted to drinking alcohol daily

and using cocaine. Mother explained to the caseworker that A.T.L.G. had been diagnosed with

Noonan’s Disease which required Mother to administer medication and feed him through a

gastronomy tube. Mother admitted she had difficulty caring for A.T.L.G., and he spent the

majority of his time in the care of a nurse. Although A.T.L.G. was only scheduled to be with the

nurse from 8 a.m. to 5 p.m. six days a week, because of Mother’s difficulty caring for A.T.L.G.,

he often spent nights and weekends with the nurse.

Following this interview, the Department removed A.T.L.G. and D.R.G. from Mother’s

custody, and on April 17, 2014, filed a petition to terminate Mother’s parental rights to M.J.A.G.,

A.T.L.G. and D.R.G. On the same day the petition was filed, the trial court appointed an attorney

ad litem to represent Mother. -2- 04-15-00143-CV

The trial court held an adversarial hearing on April 30, 2014. Following the hearing, the

trial court appointed the Department as the temporary managing conservator and Mother as

temporary possessory conservator of M.J.A.G., A.T.L.G. and D.R.G. The trial court left M.J.A.G.

with Rosa J., placed A.T.L.G. in the custody of a foster family, and placed D.R.G. with her paternal

grandmother. A Family Service Plan was created for Mother which required her to complete a

substance abuse assessment, attend outpatient treatment and submit to random drug testing, among

other things. The Department submitted status reports to the trial court, and the trial court held

hearings on those reports.

Ultimately, the trial court held a termination hearing on February 17, 2015. After the

hearing the trial court ordered Mother’s parental rights be terminated based upon the following

statutory grounds: (1) Mother knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endangered the physical or emotion well-being of the children,

pursuant to Texas Family Code 161.001(1)(D); (2) Mother engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered the physical and

emotional well-being of the children, pursuant to Texas Family Code 161.001(1)(E); (3) Mother

constructively abandoned the children who were in possession of the Department for not less than

six months, and the Department made reasonable efforts to return the children, Mother did not

regularly visit or maintain significant contact with the children, and Mother demonstrated an

inability to provide the children with a safe environment, pursuant to Texas Family Code

161.001(1)(N); (4) Mother failed to comply with the provisions of a court order that specifically

established the actions necessary for Mother to obtain the return of the children, pursuant to Texas

Family Code 161.001(1)(O); and (5) Mother used a controlled substance in a manner that

endangered the health or safety of the children, and: (a) failed to complete a court-ordered

substance abuse treatment program, or (b) after completion of a court-ordered substance abuse -3- 04-15-00143-CV

treatment program, continued to abuse a controlled substance, pursuant to Texas Family Code

161.001(1)(P). See TEX. FAM. CODE ANN. § 161.001(1) (West 2014). The trial court also found

termination of Mother’s parental rights would be in the best interest of the children, pursuant to

Texas Family Code Section 161.001(2). See TEX. FAM. CODE ANN. § 161.001(2). Subsequently,

Mother perfected this appeal.

ANALYSIS

In a single issue, Mother argues she received ineffective assistance from her trial counsel.

Mother alleges trial counsel’s performance was deficient because trial counsel failed to object to

the admission of improper opinion evidence, hearsay evidence, self-incriminating evidence and to

an improper closing argument. Mother contends trial counsel’s purported deficiencies allowed the

introduction of improper evidence and damaged her credibility, which “unduly influenced the

termination of her parental rights.”

Standard of Review

The statutory right to counsel in parental-rights termination cases includes a guarantee that

counsel will perform effectively. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM.

CODE ANN. § 107.013(a)(1) (West 2014). In analyzing the effectiveness of counsel in a parental-

rights termination case, Texas courts follow the standard established in Strickland v. Washington.

In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under

the Strickland standard, the appellant has the burden to show (1) counsel’s performance was

deficient; and (2) the deficiency prejudiced the appellant’s defense. Strickland, 466 U.S. at 687;

In re M.S., 115 S.W.3d at 545. An appellant’s failure to satisfy either prong of the Strickland test

will defeat an ineffective-assistance claim. Strickland, 466 U.S. at 700; In re K.A.S., 399 S.W.3d

259, 264 (Tex. App.—San Antonio 2012, no pet.).

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Under the first prong, trial counsel’s performance must be shown to have fallen below an

objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Only when “the conduct

was so outrageous that no competent attorney would have engaged in it” will the challenged

conduct constitute deficient performance. In re M.S., 115 S.W.3d at 545 (quoting Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Judicial scrutiny of trial counsel’s performance must

be highly deferential and every effort must be made to eliminate the distorting effects of hindsight.

Strickland, 466 U.S. at 689. For that reason, reviewing courts indulge a strong presumption that

trial counsel’s conduct falls within the wide range of reasonable, professional assistance and was

motivated by sound trial strategy. Id.; In re M.S., 115 S.W.3d at 545. The appellant bears the

burden to overcome the presumption that, under the circumstances, the challenged conduct might

be considered sound trial strategy. Strickland, 466 U.S. at 689.

Under the second prong of Strickland, an appellant must show there is a reasonable

probability that, but for counsel’s error, the result of the proceeding would have been different. In

re M.S., 115 S.W.3d at 550. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694.

In addition, the “record” requirement established in Strickland also applies to parental-

rights termination cases. See In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.).

Under this standard, allegations of ineffective assistance of counsel in a parental-rights termination

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

the alleged ineffectiveness. Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,

622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). When the record is silent as to the

reasons for counsel’s conduct, an appellate court may not speculate to find the representation

ineffective. P.W. v. Dep’t of Family & Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—

Houston [1st Dist.] 2013, pet. dism’d w.o.j.); Walker, 312 S.W.3d at 623. -5- 04-15-00143-CV

Application

With regard to the first Strickland prong, the record before this court is silent as to trial

counsel’s strategy regarding the challenged conduct. Mother did not file a motion for new trial

from which she could have elicited testimony from trial counsel, nor did she provide an affidavit

in which trial counsel could explain the challenged conduct. Because the record is silent as to the

reasons for trial counsel’s conduct, this court may not speculate to the reasons behind counsel’s

actions or omissions to find counsel counsel’s performance deficient. See P.W., 403 S.W.3d at

476; Walker, 312 S.W.3d at 623. We have thoroughly reviewed the record and conclude Mother

failed to overcome the presumption that trial counsel’s representation fell within the wide range of

reasonable, professional assistance and might be considered sound trial strategy. See In re M.S.,

115 S.W.3d at 545. Further, nothing in the record indicates trial counsel’s failure to object in the

cited instances was so outrageous that no competent attorney would have engaged in it. See

Walker, 312 S.W.3d at 622-23. For these reasons, Mother failed to satisfy the first prong of

Strickland.

Texas courts have recognized the inequities created by the “record” requirement in

parental-rights termination cases. See In re K.K., 180 S.W.3d at 685 n.3; In re M.R.E., No. 14-01-

00525-CV, 2002 WL 246404, at *1 n. 5 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (not

designated for publication). Unlike criminal cases, parental-rights termination cases have no

habeas remedy in which to develop the necessary record. See In re K.K., 180 S.W.3d at 686. In

many cases, based upon the procedural posture, parents may not have a meaningful opportunity to

develop a post-trial record to support an ineffective assistance of counsel claim. See e.g., In re

M.E.-M.N., 342 S.W.3d 254, 258 (Tex. App.—Fort Worth 2011, pet. denied); In re K.K., 180

S.W.3d at 686. Thus, some courts have held the appropriate remedy to this inequity is to abate the

appeal and remand to the trial court for a hearing at which a parent may be provided such an -6- 04-15-00143-CV

opportunity. See In re M.E.-M.N., 342 S.W.3d at 258; In re K.K., 180 S.W.3d at 688. However,

“whether abatement is appropriate will depend on the facts of each termination case and the

specific allegation of ineffective assistance.” In re K.K., 180 S.W.3d at 688; see In re M.A., No.

04-05-00112-CV, 2005 WL 3115796, at *3 (Tex. App.—San Antonio 2005, pet. denied) (mem.

op.).

As in In re M.A., we hold abatement unnecessary in this case because Mother would be

unable to show any of the challenged deficiencies prejudiced her defense. Even assuming trial

counsel’s performance was deficient based on the cited failures to object, Mother cannot show a

reasonable probability that but for trial counsel’s deficiencies the outcome of the proceeding would

have been different. The evidence demonstrated Mother’s history of drug use before and during

the termination proceedings, and this drug use is undisputed. The evidence demonstrated Mother’s

drug use impaired her ability to provide care for her children. Mother testified she would have

Rosa J. babysit the children when she used drugs. Mother also admitted she exposed A.T.L.G.

and D.R.G. to domestic violence. This evidence is sufficient to support the statutory grounds of

the trial court’s termination of Mother’s parental rights. See In re J.T.G., 121 S.W.3d 117, 125

(Tex. App.—Fort Worth 2003, no pet.) (holding evidence of children’s exposure to abusive or

violent conduct by a parent or other resident of the child’s home, as well as illegal drug use and

criminal activity support a conclusion the child’s surroundings endanger his physical or emotional

well-being); In re M.R., 243 S.W.3d 807, 818-19 (Tex. App.—Fort Worth 2007, no pet.) (same);

see also TEX. FAM. CODE ANN. § 161.001(1)(D).

Further, the evidence presented at trial supports the trial court’s finding that termination of

Mother’s parental rights is in the children’s best interest. Factors relevant to whether termination

is in the best interest of the children include: the emotional and physical danger to the children

now and in the future; the parental abilities of the individuals seeking custody, the programs -7- 04-15-00143-CV

available to assist these individuals to promote the best interest of the child; the plans for the child

by these individuals or by the agency seeking custody; the stability of the home or proposed

placement; and the acts or omission of the parent which may indicate that the existing parent-child

relationship is not a proper one. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The Texas

Family Code provides further factors to be considered in determining the best interest of a child.

TEX. FAM. CODE ANN. § 263.307 (West 2014).

To begin, the evidence presented which supports the statutory grounds for removal is

probative in determining the best interest of the children. See In re C.H., 89 S.W.3d 17, 28 (Tex.

2002). The evidence of Mother’s drug use supports a finding that termination of parental rights is

in the best interest of the children. See In re M.R., 243 S.W.3d at 820; see also TEX. FAM. CODE

ANN. § 263.307(b)(8) (holding history of drug abuse by child’s family is a factor in determining

the best interest of a child). The factfinder can give “great weight” to the “significant factor” of

drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). Mother

continued using cocaine despite the Family Service Plan which conditions the return of the

children on her remaining sober and participating in treatment. Moreover, Mother failed to

participate in court-ordered drug treatment and did not comply with requirements within the

Family Service Plan. See In re M.R., 243 S.W.3d at 821 (holding evidence of parent’s drug use

and failure to comply with Family Service Plan supports a finding that termination is in the best

interest of the child). Additionally, the evidence establishing A.T.L.G. and D.R.G. were exposed

to domestic violence also supports the finding that termination of Mother’s parental rights is in the

children’s best interest. See In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.]

2003, no pet.) (holding evidence of abusive or violent conduct can produce a home environment

that endangers a child’s well-being); see also TEX. FAM. CODE ANN. § 263.307(b)(7) (history of

abusive or assaultive conduct by child’s family or persons with access to child’s home is a factor -8- 04-15-00143-CV

in determining the best interest of the children). This evidence is sufficient to support the trial

court’s finding that termination of Mother’s parental rights is in the children’s best interest. See

In re M.R., 243 S.W.3d at 820; In re S.B., 207 S.W.3d 877, 886-87 (Tex. App.—Fort Worth 2006,

no pet.).

Mother does not dispute this evidence or contend that it was admitted due to her trial

counsel’s deficient performance. Because the record contains sufficient unchallenged evidence to

support the trial court’s termination of her parental rights, Mother cannot establish any deficient

performance of counsel prejudiced her defense. See In re M.A., 2005 WL 3115796, at *3.

Accordingly, Mother has not satisfied her burden to demonstrate ineffective assistance of counsel.

Therefore, Mother’s point of issue is overruled.

Jason Pulliam, Justice

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