in the Interest of V.E.B. and C.B., Children

Opinion

Affirm and Opinion Filed September 2, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00426-CV

IN THE INTEREST OF V.E.B. AND C.B., CHILDREN

On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-21-0463

MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Myers The children’s Mother appeals the trial court’s judgment terminating the

parent–child relationship between her and the children. Mother brings two issues on

appeal contending (1) her appointed counsel was ineffective for failing to request an

extension of the mandatory dismissal date under section 263.401 of the Family

Code; and (2) the evidence was insufficient to prove by clear and convincing

evidence that termination of the parent–child relationship between Mother and her

children was in the children’s best interest. We affirm the trial court’s judgment.

BACKGROUND This case began in Tarrant County as one for neglectful supervision by Mother

of her two young children, V. and C. The Tarrant County branch of the Texas Department of Family and Protective Services had a safety plan requiring that

Mother not be left alone with the children and that the maternal grandmother

supervise Mother’s contact with the children. The Tarrant County report showed

the Department had concerns about Mother’s mental health issues. The case was

transferred to Grayson County on February 12, 2021.

In April 2021, the Department received a report that Mother was doing drugs

and leaving the children alone for long periods of time. There was also a report of

an incident where Mother hit Grandmother and Grandmother’s friend who was at

the house. Mother then left without telling Grandmother, leaving the children alone.

Grandmother told the Department she was not sure she could keep the children safe.

The Department removed the children and placed them in foster care and filed suit

to terminate Mother’s parental rights.

On June 3, 2021, the Department filed a court-ordered service plan for Mother

to complete. Mother did not begin any of the services. Mother refused to take most

of the random drug tests. Mother took one hair strand test, and she tested positive

for methamphetamine. Mother did not participate in any of the scheduled visitations

with the children.

When the case began, Mother was on parole for possession of

methamphetamine. She had been sentenced to sixteen years’ imprisonment and had

served four years before she was released on parole. Her conditions of parole

included wearing an ankle monitor, complying with the electronic monitoring

–2– program, and obtaining mental-health treatment. Mother did not obtain any mental-

health treatment. The parole office also required Mother to take drug tests. Mother

tested positive for methamphetamine in April and May 2021.

Mother was arrested on June 21, 2021, for a parole violation. She was

transferred to an intermediate sanction facility on December 2, 2021, and she was

scheduled to be released sixty days after the trial. The trial was on March 28, 2022,

so Mother’s release date was scheduled to be on or about May 27, 2022. However,

her parole officer testified she would not be released if she did not have a plan of

where she would live.

At the trial, the Department’s caseworkers testified about Mother’s failed drug

tests, her lack of cooperation with the Department, her failure to begin any of the

services before being arrested, and her failure to complete any of the service

materials the Department sent her while she was incarcerated for the parole

violation. They also testified that V., who was about two years old when removed

from Mother’s and Grandmother’s care, required speech therapy. They also testified

that the children were thriving in their foster home. V. now speaks well thanks to

the speech therapy and the foster parents’ care. The foster parents plan to be the

“forever home” for the children.

After the parties rested and closed, the trial court found the Department had

proved by clear and convincing evidence the facts of section 161.001(b)(1)(D), (E),

(N), (O), and (P), and that termination of the parent–child relationship between

–3– Mother and the children was in the best interest of the children. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (E), (N), (O), (P); id. § 161.001(b)(2).

SUFFICIENCY OF THE EVIDENCE In her second issue, Mother contends the evidence is insufficient to support

the trial court’s determination that termination of the parent–child relationship

between Mother and the children was in the best interest of the children. See id.

§ 161.001(b)(2).

Because the fundamental liberty interest of parents in the care, custody, and

control of their children is of constitutional dimensions, involuntary parental

terminations must be strictly scrutinized. Troxel v. Granville, 530 U.S. 57, 65–66

(2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In such cases, due process

requires the petitioner to justify termination by clear and convincing evidence. FAM.

§ 161.001(b); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). “Clear and convincing

evidence” is that “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.” FAM. § 101.007; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per

curiam); In re N.T., 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.).

Our standard of review reflects the elevated burden at trial. In re A.B., 437

S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex. App.—Dallas

2013, pet. denied). Under both legal and factual sufficiency standards, we consider

all the evidence, defer to the factfinder’s credibility determinations, and determine

–4– whether the factfinder could reasonably form a firm belief or conviction that the

grounds for termination were proven. In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.

2002); In re N.T., 474 S.W.3d at 475. “The distinction between legal and factual

sufficiency lies in the extent to which disputed evidence contrary to a finding may

be considered.” In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).

In conducting a legal sufficiency review of an order terminating parental

rights, the reviewing court cannot ignore undisputed evidence contrary to the finding

but must otherwise assume the factfinder resolved disputed facts in favor of the

finding. Id. We “consider all the evidence, not just that which favors the verdict,”

and we assume the factfinder resolved disputed facts in favor of its finding if a

reasonable factfinder could do so. In re N.T., 474 S.W.3d at 475. We disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a

termination finding, we ask whether, in light of the entire record, the evidence is

such that a factfinder could reasonably form a firm conviction about the truth of the

allegations against the parent. Id.; In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.—

Dallas 2014, no pet.). We must consider whether the disputed evidence is such that

a reasonable factfinder could not have reconciled that disputed evidence in favor of

its finding. In re N.T., 474 S.W.3d at 475. If the disputed evidence is so significant

–5– that a factfinder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient. Id.

The supreme court has identified a nonexclusive list of factors that may be

relevant to a best-interest determination: (1) the child’s desires, (2) the child’s

current and future emotional and physical needs, (3) current and future emotional

and physical dangers to the child, (4) the parental abilities of those seeking custody,

(5) the programs available to help those individuals promote the child’s best interest,

(6) those individuals’ plans for the child, (7) the home’s or proposed placement’s

stability, (8) the parent’s acts or omissions indicating that the existing parent–child

relationship is not a proper one, and (9) any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The legislature has also set

out a similar list of factors for determining whether the child’s parents are willing

and able to provide the child with a safe environment. See FAM. § 263.307(b).1

1 The factors under section 263.307(b) are: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;

–6– The Holley factors and the statutory factors focus on the best interest of the

child, not the best interest of the parent, and are not exhaustive. Dupree v. Tex. Dep’t

of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no

writ); see In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). A best interest finding need not

be supported by evidence of every Holley factor. See In re C.H., 89 S.W.3d at 27.

Although there is a strong presumption that maintaining the parent–child

relationship serves the child’s best interest, there is also a presumption that promptly

and permanently placing the child in a safe environment is in the child’s best interest.

In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied); see also

FAM. § 153.131(b).

(9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. FAM. § 263.307(b). –7– The children, at the time of trial, were three years old and fifteen months old.

They could not care for themselves and were dependent on others for their physical

and emotional health and safety. The Department was contacted because of the

children being neglected, including Mother’s using drugs and leaving the children

alone for long periods of time. Mother tested positive for methamphetamine three

times, and she refused to be tested on other occasions. Mother testified she had been

diagnosed as bipolar and depressed. Mother testified that while she had been

incarcerated, she had received injections to help with her bipolar symptoms.

However, she also testified that before she was arrested, she had missed some mental

health care appointments because she did not have transportation. Mother’s parole

officer testified that she was unaware of Mother receiving any mental health

treatment while incarcerated.

Mother also failed to take a required parenting program and other services.

When Mother was incarcerated, the Department sent her packets for her to complete

the services while incarcerated. Mother was required to read through the

information in the packets, complete the assignments, and mail them to the

Department. Mother did not mail any of the assignments to the Department.

In the past, Mother showed an inability to provide the children with a safe,

supportive home environment. Mother left the children alone for long periods of

time. Mother would yell at V. for having a dirty diaper and would tell her she was

disgusting. Mother testified she “got in a fight” with Grandmother, who was

–8– supposed to be monitoring Mother’s possession of the children, but Mother denied

hitting Grandmother. Grandmother told the Department “it might be difficult for her

to ensure the children’s safety going forward.” Mother’s parole officer testified that

Grandmother is uncertain if she will let Mother live with her after Mother is released.

An investigator and a caseworker for the Department testified they did not think the

children could be kept safe in the care of their Mother.

Mother used methamphetamine. She served four years of a sixteen-year

sentence before she had the children. She continued to use methamphetamine after

she was released. She tested positive for methamphetamine in March and April

2021. Despite her history of drug use, Mother questioned why she needed to have a

substance-abuse evaluation, and she did not undergo the evaluation. Despite not

undergoing any substance-abuse evaluation or therapy, Mother testified she believed

she had solved her drug problem while incarcerated, and she stated she no longer

used drugs.2 She testified that in the past she had felt overwhelmed because she had

just moved and had to unpack boxes and care for the children while her mother had

2 Mother asserts on appeal that she completed substance-abuse treatment while incarcerated in the intermediate sanction facility for the parole violation. However, no evidence was admitted at trial showing the intermediate sanction facility provided substance-abuse treatment. Mother’s parole officer testified that the facility did not provide substance-abuse treatment. Mother also asserts in her brief that she began some of the services before she was arrested and incarcerated on June 21, 2021, citing reports in the clerk’s record that were not admitted into evidence at trial. We have reviewed the reports Mother cites, and they show Mother had not begun any of the services before she was incarcerated. –9– to be at work sometimes. She stated she now feels better that she is not on drugs

and believes she is capable of caring for the children.

Mother testified her plan when she is released from incarceration is to move

back in with her mother, get a job at the nearby Dollar General store until she can

afford a car, and then get a better job. Mother testified she does not know what she

will do if Grandmother does not allow her to move in with her. The caseworker

testified Mother does not have stable housing.

The Department presented evidence that its plan for the children is to leave

them with their current foster family, which the Department hopes will be the

children’s forever home. That foster home is “a long term adoption motivated

home.” The children, who are sisters, have bonded with each other and with the

foster parents. V., the older child, required speech therapy. When V. came into the

Department’s care, she could hardly talk and mostly mumbled. The foster family

worked with V. on her speech therapy, and now she talks “very well.” The

Department’s caseworker testified she has no concerns about the children remaining

in their current placement “as their potential forever home.”

From this evidence the trial court could conclude that due to her largely

untreated mental-health and substance-abuse issues, Mother is unable to properly

care for the children and provide them a safe environment. Mother’s past care of the

children showed an inability to properly care for them, and Mother failed to take

required parenting courses. She did not demonstrate nurturing for the children but

–10– in fact did the opposite by telling V. she was disgusting for having soiled her diaper.

She did not demonstrate an understanding of the children’s needs but instead left

them alone for long periods of time. Mother testified she wanted the children back

in her care, but she did not explain how she would get the mental-health and

substance-abuse treatment that she needed to be able to properly care for the

children. The children are now in a safe, stable environment in their foster-family

placement where they are well cared for.

Mother argues on appeal that if the trial had been delayed for six months, then

Mother would have been released from incarceration and “would have had ample

time to complete her court-ordered services and begin having regular and productive

visits with her children toward re-establishing a relationship with them in their best

interest.” However, Mother did not begin the services before she was incarcerated.

She explained she was not able to get to the services because she did not have a car.

Mother did not explain how she would be able to get to the services or visitation

with the children after she is released. Her testimony shows she will not have access

to a car after her release because she testified she was going to work at a nearby store

until she could afford a car. Thus, it is not clear how Mother will be able to complete

the services between her release and a later trial date.

Applying the Holley and statutory factors, the evidence was legally and

factually sufficient for the trial court to find by clear and convincing evidence that

–11– termination of the parent–child relationship between Mother and the children was in

the children’s best interest.

We overrule Mother’s second issue.

INEFFECTIVE ASSISTANCE OF COUNSEL In her first issue, Mother contends she did not receive effective assistance of

counsel because her attorney did not request an extension of the mandatory dismissal

date and of the trial pursuant to section 263.401(b) of the Family Code. See FAM. §

263.401(b).

An indigent parent has a statutory right to appointed counsel in a

parental-rights termination case. Id. § 107.013(a)(1); In re M.S., 115 S.W.3d 534,

544 (Tex. 2003). The right “embodies the right to effective counsel.” In re M.S.,

115 S.W.3d at 544. We evaluate an ineffective assistance of counsel claim under

the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 544–

45. A parent claiming ineffective assistance must show both that counsel’s

performance was deficient and the deficient performance prejudiced the case. Id. at

545.

To determine if counsel’s performance is deficient, we consider all the

circumstances surrounding a particular case and focus primarily on whether counsel

performed in a reasonably effective manner. Id. (citing Strickland, 466 U.S. at 687);

see also In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). “[C]ounsel’s performance

falls below acceptable levels of performance when the ‘representation is so grossly

–12– deficient as to render proceedings fundamentally unfair.’” In re M.S., 115 S.W.3d

at 545 (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). We

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance. Id. Conduct constitutes ineffective assistance of

counsel only if it is “so outrageous that no competent attorney would have engaged

in it.” Id.

To show counsel’s performance prejudiced a parent’s case, the parent must

show 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 of the proceeding.” 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.).

The record must affirmatively support a claim that trial counsel provided

ineffective assistance. In re L.G.R., 498 S.W.3d 195, 209 (Tex. App.—Houston

[14th Dist.] 2016, pet. denied). When the record is silent as to the reasons for trial

counsel’s actions, we may not engage in speculation to find ineffective assistance of

counsel. P.W., 403 S.W.3d at 476.

Under section 263.401, subsection (a) provides that the trial court’s

jurisdiction over the Department’s suit is terminated on the first Monday following

the first anniversary of the Department’s appointment as temporary managing

–13– conservator. See FAM. § 263.401(a). If the trial does not commence on or before

that date, then the suit is automatically dismissed. Id.

Subsection (b) provides that the dismissal date may be extended up to 180

days if the trial court finds “that extraordinary circumstances necessitate the child

remaining in the temporary managing conservatorship of the department and that

continuing the appointment of the department as temporary managing conservator

is in the best interest of the child.” Id. § 263.401(b).

The trial court appointed the Department temporary managing conservator on

April 12, 2021. The original dismissal date was the first Monday following one year

after April 12, 2021, which was April 18, 2022. The trial was on March 28, 2022.

If the trial court had made the findings necessary for extension of the dismissal date,

the trial of the case could have been delayed up to October 15, 2022. Mother and

her parole officer testified Mother was likely to be released sixty days after the trial,

which would have been May 27, 2022. Mother argues she could then have

completed the required services before a trial in October, retain her parental rights,

and regain custody of her children.

There is no evidence of the reasons why Mother’s attorney did not request an

extension of the dismissal date. Mother did not file a motion for new trial seeking

the testimony of her attorney. Mother had the burden of showing no competent

attorney in this situation would have failed to request an extension of the dismissal

date. See In re M.S., 115 S.W.3d at 545. We conclude she has made no such

–14– showing. Nor has Mother shown a reasonable probability that but for counsel’s

failure to request an extension of the dismissal date, the outcome of this case would

have been different, i.e., that the trial court would have granted the motion to extend

the dismissal date and that the parent–child relationship between Mother and the

children would not have been terminated. See In re M.S., 115 S.W.3d at 550.

Concerning whether the trial court would have granted the motion to extend

the dismissal date, Mother points out that paragraph (b-2) of section 263.401

provides:

When considering under Subsection (b) whether to find that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department for a case in which the court orders a parent to complete a substance abuse treatment program, the court shall consider whether the parent made a good faith effort to successfully complete the program.

Id. § 263.401(b-2). Mother asserts on appeal that “she did in fact make ‘a good faith

effort to successfully complete” a substance-abuse program. We disagree. The

record shows Mother did not receive any substance-abuse treatment before she was

arrested on her parole violation, and her parole officer testified she did not receive

substance-abuse treatment while incarcerated. The record does not show a

reasonable probability that the trial court would have found Mother made a

good-faith effort to successfully complete a substance-abuse treatment program, or

that the trial court would otherwise have found extraordinary circumstances in this

case.

–15– Nor does the record show a reasonable probability that Mother’s parental

rights would not be terminated. The record does not show Mother would have

engaged in and completed her services following her release and before the dismissal

date. Mother testified she believed she had solved her drug problem while

incarcerated. She testified she did not engage in the court-ordered services before

her arrest because she lacked transportation. Mother’s testimony shows she will not

have access to a vehicle for transportation until she can save enough money from

working at Dollar General to purchase a vehicle. There is no evidence in the record

that Dollar General would hire her nor of how long it would take her to purchase a

car. Thus, aside from Mother’s statement that she planned to complete services after

her release, there is no evidence she would be able to do that before trial following

an extension of the dismissal date.

We conclude Mother has not shown she received ineffective assistance of

counsel at trial because her attorney did not request an extension of the dismissal

date and of the trial. We overrule Mother’s first issue.

CONCLUSION We affirm the trial court’s judgment.

/Lana Myers// 220426f.p05 LANA MYERS JUSTICE

–16– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF V.E.B. AND On Appeal from the 397th Judicial C.B., CHILDREN District Court, Grayson County, Texas No. 05-22-00426-CV Trial Court Cause No. FA-21-0463. Opinion delivered by Justice Myers. Justices Carlyle and Goldstein participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 2nd day of September, 2022.

–17–