R. F. v. Texas Department of Family and Protective Services

• Court: Texas Court of Appeals, 3rd District (Austin)
• Decided: March 20, 2026
• Docket: 03-25-00736-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00736-CV

R. F., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-23-008592 THE HONORABLE AURORA MARTINEZ-JONES, JUDGE PRESIDING

MEMORANDUM OPINION

R.F. (Mother) appeals the termination of her parental rights, contending that the

evidence was insufficient to support termination and that her counsel rendered ineffective

assistance. We will affirm the judgment.

BACKGROUND

In November 2023, Mother and her child (Child) tested positive for

methamphetamines and amphetamines at his birth. On November 21, 2023, the Texas

Department of Family and Protective Services filed a petition for an order requiring Mother to

participate in services intended to alleviate the effects or risks of abuse or neglect and reduce a

continuing danger to the child’s physical health or safety. The case became a conservatorship

proceeding in June 2024, and the Department finalized a service plan in July 2024. Child has remained with Aunt Kelly, Mother’s sister, since removal. The service plan required Mother to

obtain employment, maintain a safe and appropriate home, complete a parenting-skills class, and

complete an inpatient drug/substance treatment program at a rehabilitation facility.

The trial court held pretrial hearings on May 30, 2025, and June 9, 2025, and a

trial on the merits on August 11-12, 2025. By order dated September 2, 2025, the trial court

terminated Mother’s parental rights to Child. The court found clear and convincing evidence of

several grounds for termination. See former Tex. Fam. Code § 161.001(b)(1)(E), (N), (O), (P).

(R). 1 The court also found that the Department made reasonable efforts to reunify Mother and

Child and that termination of parental rights was in Child’s best interest. 2

DISCUSSION

Mother contends that the evidence is legally insufficient to support a finding by

clear and convincing evidence that the Department made reasonable efforts to reunite Mother

with her child, that any of the grounds for termination exist, or that termination of parental rights

was in Child’s best interest. She also contends that her attorney rendered ineffective assistance,

1 We note that the Legislature amended section 161.001 twice in the 2025 regular session. The amendment in relevant part deleted ground for termination (O) and relettered grounds (P) and (R) as grounds (O) and (Q), respectively. See Act of May 14, 2025, 89th Leg., R.S., Ch. 211, § 2, 2025 Tex. Gen. Laws ___, ___ (eff. Sept. 1, 2025) (amending Tex. Fam. Code § 161.001(b)(1)); see also Act of May 14, 2025, 89th Leg., R.S., Ch. 211, § 2, 2025 Tex. Gen. Laws ___, ___ (eff. Sept. 1, 2025) (amending Tex. Fam. Code § 161.001(c)). The amendments were effective on September 1, 2025, and applied to “suits affecting the parent-child relationship that [were] pending in a trial court” on September 1, 2025. For consistency with the record, we will refer to the statutory grounds as they were codified in the statute applicable at the time of the petition and trial. We will not base our opinion on former ground (O). 2 The alleged father, J.W., does not appeal the termination of his parental rights to Child. 2 chiefly by failing to request a recess or continuance to allow Mother to testify in the termination

hearing and by his inaction in defending Mother’s interest during trial.

I. The evidence is sufficient to support the final decree of termination.

A. The standard of review

We review the legal sufficiency of the evidence supporting a trial court’s

termination decree under well-established standards. The Department must prove by clear and

convincing evidence that at least one statutory ground for termination exists and that termination

is in the child’s best interest. See Tex. Fam. Code § 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.” Id. § 101.007. In

reviewing legal sufficiency, we view the evidence in the light most favorable to the factfinder’s

determination, including undisputed contrary evidence, and assume the factfinder resolved

disputed facts in favor of its finding. In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). An

appellate court must “provide due deference to the decisions of the factfinder, who, having full

opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the

credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re

J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Reviewing courts must defer to the factfinder’s

judgment as to the credibility of the witnesses and the weight to give their testimony, including

reasonable and logical inferences from the evidence. In re R.R.A., 687 S.W.3d 269, 279 n.50

(Tex. 2024).

3 B. Grounds for termination

1. Ground (E)

Mother contends that the evidence supporting termination under Ground (E) is

insufficient because it consists solely of testimony and a report that she and Child tested positive

for amphetamines and methamphetamines at Child’s birth.

The Family Code authorizes termination of parental rights if the parent “engaged

in conduct or knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E).

“‘Endanger’ means ‘to expose to loss or injury; to jeopardize.’” Texas Dep’t of Hum. Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “Endangerment does not have to be established as an

independent proposition, but can be inferred from parental misconduct alone.” Pruitt v. Texas

Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861 at *4 (Tex. App.—

Austin Dec. 23, 2010, no pet.) (mem. op.). A parent’s endangering conduct need not be directed

at the child, nor must the child actually suffer injury. In re R.R.A., 687 S.W.3d at 277. “Instead,

endangerment encompasses a larger array of conduct that exposes a child to loss or injury or

jeopardizes the child.” Id. (cleaned up). A factfinder may infer endangerment from a course of

conduct that presents substantial risks to the child’s physical or emotional well-being. Id. The

conduct does not have to occur in the presence of the child, and courts may look to conduct

“before the child’s birth and both before and after the child has been removed by the

Department.” Pruitt, 2010 WL 5463861 at *4; see In re C.E., 687 S.W.3d 304, 310 (Tex. 2024)

(stating that (D) and (E) grounds “do not require that endangering ‘conduct be directed at the

child’ or that the child ‘actually suffer[] injury’” (quoting In re J.W., 645 S.W.3d 726, 748 (Tex.

4 2022))). “Conduct that subjects a child to a life of uncertainty and instability endangers the

child’s physical and emotional well-being.” Pruitt, 2010 WL 5463861, at *4.

The relevant inquiry under subsection (E) is whether evidence exists that the

endangerment of the child’s well-being “was the direct result of Appellant’s conduct, including

acts, omissions, or failures to act.” In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort

Worth 2011, pet denied); see In re C.E., 687 S.W.3d at 310 (stating that subsection (E) “requires

that a parent’s conduct endanger the child’s physical or emotional well-being” but that “[p]roof

that a parent specifically caused an injury is not necessary”). “Additionally, termination under

subsection (E) must be based on more than a single act or omission; the statute requires a

voluntary, deliberate, and conscious course of conduct by the parent.” In re M.E.-M.N.,

342 S.W.3d at 262. The relevant time period for Texas Family Code § 161.001(b)(1)(E) includes

parental conduct occurring “both before and after the child has been removed by the

Department.” D.N.-B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00092-CV,

2020 WL 4462327, at *2 (Tex. App.—Austin July 24, 2020, pet. denied) (mem. op.).

Although a finding of endangerment based on drug use alone is not automatic, a

parent’s positive tests during the pendency of a termination case support a finding that the

parent’s illegal drug use is an ongoing habit that created an endangering environment for the

child. D.H. v. Texas Dep’t of Fam. & Protective Servs., 652 S.W.3d 54, 61 (Tex. App.—Austin

2021, no pet.). A parent’s ongoing drug use jeopardizes the parent-child relationship and

subjects the child to a life of uncertainty and instability. Id. at 62. Pervasive drug use can cause

a reasonable inference that the drug use is endangering even in the absence of evidence that drug

use caused an endangering activity or that it occurred while the children were in the parent’s

direct care. Id. at 61.

5 Mother contends that the evidence is insufficient to support termination based on

subsection (E) because it consists solely of the investigator’s testimony and report that Mother

and Child tested positive for amphetamine and methamphetamine at birth and that the referral to

the Department included a statement that Mother admitted drug use; the report also stated that

Child was not showing signs of withdrawal after birth. Mother contends this record is deficient

without medical records or statements from medical personnel or anyone other than Department

employees or the court-appointed special advocate.

The evidence of Mother’s drug use during pregnancy is sufficient to support the

trial court’s finding that Ground (E) exists. “A mother’s use of drugs during pregnancy may

amount to conduct that endangers the physical and emotional well-being of the child. In re

J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Though there are no test

results or medical-professional testimony in the record, the evidence is undisputed that Mother

used methamphetamine and amphetamine during her pregnancy such that she and Child tested

positive for those drugs at his birth. Even without signs of withdrawal at birth, the use of

amphetamines during pregnancy can cause long-term side effects such as learning defects,

failure to thrive, and damage to the neural system. See id. at 127. In addition to the testimony at

trial, the Plan of Service report prepared when Child was eight months old states that Mother

“has admitted to substance/abuse. She has stated that her drug of choice is methamphetamine,

amphetamines, and marijuana. She engaged in substance use while caring for her child.” The

report further stated that, at eight months old, Child had a 57% delay in social-emotional skills, a

14% delay in fine motor skills, and a 14% delay in cognitive skills. Child’s caregiver,

Aunt Kelly, testified that she was not comfortable with Mother sharing conservatorship because

Mother was “still using.”

6 We conclude that the record contains legally sufficient evidence for the court to

find that clear and convincing evidence supports a finding that Mother engaged in conduct that

endangered Child’s physical or emotional well-being.

2. Remaining grounds

Only one predicate finding under section 161.001 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 355, 362 (Tex. 2003). We need not review the challenge to the

sufficiency of the evidence supporting the other predicate grounds. See Tex. R. App. P. 47.1.

C. Best interest of the child

We review a factfinder’s best-interest finding in light of the non-exhaustive list of

considerations set out in Holley v. Adams, which include the child’s wishes, the child’s

emotional and physical needs now and in the future, emotional or physical danger to the child

now and in the future, the parenting abilities of the parties seeking custody, programs available

to help those parties, plans for the child by the parties seeking custody, the stability of the

proposed placement, the parent’s acts or omissions indicating that the parent-child relationship is

improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 (Tex. 1976); see

A.C., 560 S.W.3d at 631. The Holley factors are not exhaustive, not all factors must be proved,

and a lack of evidence about some of the factors does not “preclude a factfinder from reasonably

forming a strong conviction or belief that termination is in the child’s best interest, particularly if

the evidence [was] undisputed that the parental relationship endangered the safety of the child.”

In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Although a parent’s behavior may reasonably

suggest that a child would be better off with a new family, the best-interest standard does not

7 permit termination merely because a child might be better off living elsewhere. In re A.H.,

414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.). “We must consider ‘the totality

of the circumstances in light of the Holley factors’ to determine whether sufficient evidence

supports” the best-interest finding. In re J.M.G., 608 S.W.3d 51, 54 (Tex. App.—San Antonio

2020, pet. denied) (quoting In re B.F., No. 02-07-00334-CV, 2008 WL 902790, at *11 (Tex.

App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op.)).

Mother testified in a pretrial hearing that Child was her “little love bug” and

would always know her. Department witnesses testified that visits between Mother and Child

that occurred went well. She attempted to arrange drug treatment, engaged in therapy, and

periodically maintained sobriety despite some “slipups.” Though Mother did not appear at trial

until after the court had announced termination of Mother’s parental rights, Mother said on the

record that she was willing to take a drug test. Mother had endured losses arising from a

July 2024 fire that killed several family members including her mother, whose body remained in

the morgue or funeral home for months until Mother obtained funds to pay for cremation.

Evidence concerning Mother’s continued drug use and the disruptions in her life

contrasted with the stability of Child’s placement supported the finding that Child’s best interests

were served by termination of Mother’s parental rights on several of the Holley factors. Because

Mother and Child tested positive for drug use at his birth, Mother had sole possession of Child

for less than two weeks of his life. In response to the trial court’s question in May 2025 about

whether she was still struggling with methamphetamine use, Mother conceded that she still had

“slight slipups” and needed drug-abuse treatment even while several months pregnant with

another child. Mother’s participation at that hearing was interrupted by phone calls while she

was talking with the court. At the outset of the August trial, the court described Mother’s

8 previous presentation at the hearing as “chaotic.” CASA Madison Lozano testified that

Mother attended maybe one-third of available visits with Child. Lozano testified that Mother did

not complete drug treatment, have stable employment, or stable housing. Mother said at the

May 30 hearing that she had a job and could take leave while in drug treatment. Lozano said that

Mother did not focus on the substance abuse that brought Child into care and fixated on

complaints about other people. Department caseworker Crystal Sanchez testified that Mother

did not drug test regularly, was unstable in terms of housing, and did not have a consistent phone

number. Sanchez testified that Mother attended a medical appointment with Child and verbally

authorized some immunizations, then said she had to go to the restroom and never returned.

When Sanchez made a phone call after a court hearing to set up in-patient drug treatment,

Mother became agitated and left. Department caseworker supervisor Isela Ortiz testified that she

was concerned with Mother’s lack of consistency in making parent-child visits and her failure to

successfully complete drug treatment. Child’s Aunt Kelly testified that she initially supervised

Mother’s visits but that scheduling and communications issues caused her to ask for Department

supervision; she said that when the Department took over, there were no incidents “other than

lots of visits were cut short.” She said Mother visited Child on his November 2024 birthday,

then not again until February 2025, then not again until June 2025.

These concerns contrasted with the evidence concerning the placement with

Child’s Aunt Kelly. Lozano testified that Child was very comfortable and happy in that

placement, seemed very bonded with the cousins who lived there, and was comforted by his

Aunt Kelly, her fiancé, and her mother. Ortiz testified that Child was thriving and bonded with

his caregivers. She said that termination and possible adoption would allow him safety and

stability that he would need and would allow him “to live as normal a life as possible.” Child’s

9 Aunt Kelly testified that her children, aged one and four, played well with Child, aged almost

two. She testified that she wanted to adopt Child and that “[h]e’s part of our family already.”

The evidence supports a finding that Mother lacks the ability to provide for

Child’s emotional and physical needs now and in the future. She did not maintain consistent

employment, housing, or phone numbers. She left a Department caseworker attempting to obtain

drug treatment for her and left Child’s medical appointment without notice. She demonstrated

parenting abilities during successful visits with Child but attended only one-third of the available

visits and left some early. While there are programs that could help Mother, her use of offered

programs was incomplete. The loss of family members and long-lasting disruptions arising

therefrom explain some of her struggles, and the challenges of getting insurance to pay for an

available treatment facility while she was pregnant with another child explain some of the failure

to complete drug treatment. But Mother’s drug use was a consistent theme, predating Child’s

birth and persisting through a stint in treatment, the fire, and Child’s life—including her

pregnancy with a new sibling. Viewed most favorably to the judgment, we conclude that the

record supports a finding by clear and convincing evidence that termination of Mother’s parental

rights is in Child’s best interest

D. Reasonable attempt at reunification

Mother contends that the record does not support the trial court’s recitation that

the Department actually engaged in reasonable efforts to reunify her with Child. A court may

not terminate parental rights unless it finds by clear and convincing evidence and describes in

writing with specificity that the Department made reasonable efforts to return the child to the

10 parent before trial and that, despite those efforts, a continuing danger remains in the home that

prevents the return of the child to the parent. Tex. Fam. Code § 161.001(f).

“Generally, implementation of a family service plan by [the Department] is

considered a reasonable effort to return the child to the parent.” A.D. v. Texas Dep’t of Fam. &

Protective Servs., 673 S.W.3d 704, 714 (Tex. App.—Austin 2023, no pet.) (quoting In re A.L.H.,

468 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.)); see also D.F. v. Texas

Dep’t of Family & Protective Servs., No. 03-25-00738-CV, 2026 WL 482451, at *8 (Tex.

App.—Austin Feb. 20, 2026, no pet. h.) (holding courts examining issues under Tex. Fam. Code

section 161.001(f) can look to jurisprudence about reunification attempts under section

161.001(b)(1)(N)). There is no dispute that the Department developed a plan of services for

Mother dated July 26, 2024, after this case converted to conservatorship.

Mother argues, however, that the Department did not prove it worked to

implement the plan. She contends that insufficient evidence supports the trial court’s findings.

We will consider the findings in turn.

1. The Department worked with Respondent Mother for admission into the Travis County Drug Court and parenting-in-recovery program.

The Department’s Freeman testified that Mother did not go to drug court and

CASA Lozano testified that she started on the case “once drug court was no longer an option.”

Neither witness explained the Department’s efforts to get her into drug court and no witness

mentioned the parenting-in-recovery program for the Travis County Drug Court. Sanchez by

affidavit averred that, at the November 9, 2023 Family Team meeting, the parenting-in-recovery

service manager Michelle Kimbrough explained the Drug Court Program to Mother and said that

Mother appeared to be a great fit for the program; Mother declined to participate in the program

11 because she wanted to find treatment on her own. In her affidavit, Freeman stated that, on

November 10, 2023, Mother said she was thinking about drug court; Freeman referred her to

Kimbrough for questions about drug court and the treatment facilities available. Freeman

averred that on November 13, 2023, Mother said she did not want to participate in the Drug

Court Program, which included the parenting-in-recovery services.

Sufficient evidence supports the finding, though the amount of work was brief

because Mother opted against the programs within five days.

2. The Department offered Respondent Mother drug treatment options multiple times, including assisting her with phone calls and discussing different types of treatment options.

Freeman, by testimony and affidavit, said that the Department initially offered

treatment options available through the Drug Court Program, but Mother chose to attend a

program in Houston that she left after two weeks. When caseworker Sanchez was asked if the

Department offered Mother options for further drug treatment during her time on the case,

Sanchez responded, “Yes.” She testified that, after the case turned to conservatorship in

June 2024, she discussed the difference between and pros and cons of in-patient versus

outpatient treatment. Sanchez testified, “We attempted to call a few times. And I believe at least

one, she walked away from me before we could complete that. . . . She became agitated and

left.” Sanchez stated later that she “was referring more to just talking to her about it” than

making actual calls. Viewed most favorably to the decree, the record contains sufficient

evidence to support the finding.

12 3. The Department worked with Respondent Mother to obtain a safe placement of the child.

Mother does not dispute that Child was in a safe placement with Aunt Kelly or

that the Department took steps to ensure the safety of that placement. Mother contends that this

finding does not show steps toward reunification. However, this Court has held that the

Department’s placement of child with a family member is evidence of an attempt at

reunification. See A.D., 673 S.W.3d at 714 (citing In re L.C.M., 645 S.W.3d 914, 922 (Tex.

App.—El Paso 2022, no pet.) (“T]he Department’s efforts to place the child with relatives

constitutes legally and factually sufficient evidence that reunification was attempted.”)).

Sufficient evidence supports this finding.

4. The Department offered visits to Respondent Mother, including moving their times and locations to accommodate her schedule.

Visits were undisputedly offered. Sanchez testified that an HST 3 transported

Mother to Lockhart for visits. CASA Lozano testified that Mother made one or two visits in

June 2025 and that “[t]hey had the visits moved to Austin per [Mother’s] request.” Mother

acknowledges that in the May 30 hearing she said she had requested that visits be moved to

Austin due to her pregnancy and transportation difficulties but had not at that time heard back

from the Department. These assertions are consistent with the Department moving the visits

after the May 30 hearing.

Mother points to discrepancies between Ortiz’s testimony that Mother attended

nine visits and Mother’s attorney’s statement that she made twenty visits as showing weakness in

3 The Department’s website explains that a “Human Services Technician helps staff and

supervisors by providing certain services to CPS clients” including transporting clients. See https://www.dfps.texas.gov/Jobs/CPS/human_services_tech.asp (last visited March 18, 2026). 13 the evidence. The complained-of discrepancy regarding the number of visits does not bear on

the finding regarding the availability and moving of visits.

5. The Department offered a Court Ordered Services case to avoid immediate danger to the child and the need to take conservatorship of the child.

The finding that the case began as a Court Ordered Services case is undisputed, as

is the fact that the Department did not seek conservatorship until after offering services. The

reasonableness of other efforts at reunification is outside the scope of this finding.

6. The Department provided Respondent Mother referrals and payment for services such as therapy and psychological evaluations.

Mother concedes that the report from Mother’s psychological evaluation states

that the CPS caseworker referred Mother for the evaluation. In her affidavit, Sanchez recounts

that she and Mother discussed “her services and referrals” on January 24, 2024, which included a

discussion of her therapy. Sanchez averred that in February 2024, she and Mother called to find

funding options for treatment, but they were unable to reach someone to talk with.

Mother asserts that there is no evidence regarding the Department providing

payment for services, and the Department did not respond by pointing to any such evidence in

the record.

Sufficient evidence supports the finding regarding referrals, but not as

to payment.

14 7. The Department offered Family Team Meetings.

In her Affidavit in Support of Extraordinary Relief, Sanchez averred that Family

Team Meetings occurred on November 9, 2023, and March 8, 2024. No evidence contradicts

that statement. Sufficient evidence supports the finding.

8. The Department offered Respondent Mother transportation to drug testing, visits, and drug treatment programs.

Sanchez testified that she discussed transportation struggles with Mother and

offered transportation to an in-patient rehabilitation facility, that she provided bus passes, and

that an HST was offered for many, if not all, drug tests as well as parent-child visits.

Mother contrasts this testimony with only two mentions in Sanchez’s affidavit of

transportation being provided as a ‘discrepancy” that fatally undermines the testimony. It does

not. We must defer to the factfinder’s assessment of credibility and the weight given to

evidence. See R.R.A., 687 S.W.3d at 279 n.50. Sufficient evidence supports the finding.

9. Summary

The decree does not stand or fall on the sufficiency of the evidence supporting

any of these individual findings. Our review of these individual findings is in service to the

overarching inquiry regarding whether the record supports a finding that the Department made

reasonable efforts to return Child to Mother and that despite those reasonable efforts, a

continuing danger remains in the home that prevents the return of the child to the parent. See

Tex. Fam. Code § 161.001(f)(1).

We conclude that the record contains legally sufficient evidence to support the

trial court’s finding that the record contains clear and convincing evidence of such reasonable

efforts. The record showed a danger to the child from Mother’s continued use of 15 methamphetamine during the pendency of this case and her pregnancy with Child’s sibling. See

In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (illegal

drug use can endanger child by “expos[ing] the child to the possibility that the parent may be

impaired or imprisoned”). The Department undisputedly developed a plan of services intended

to reunify Mother and Child, which is considered a reasonable effort to return the child to the

parent. See A.D., 673 S.W.3d at 714. The plan included parent-child visits, and evidence

showed that the Department facilitated some by providing transportation and changing

schedules. The Department placed Child with a family member who initially supervised

Mother’s visits until she requested Department supervision because of scheduling and

communication issues with Mother. Department employees discussed treatment options with

Mother, and Mother sought her own providers.

Viewed most favorably to the decree, the record contains sufficient evidence from

which the trial court could find clear and convincing evidence that the Department made

reasonable efforts to reunite Mother and Child.

II. The record does not show that Mother’s counsel provided ineffective assistance.

Mother contends that her counsel was ineffective chiefly by failing to request a

recess or continuance so that she could testify during the trial and by his inaction in defending

her interests at trial.

A. The right to counsel and the standard of review for counsel’s effectiveness

The statutory right to counsel in parental-rights termination cases includes, as a

matter of due process, the right to effective counsel. C.S.F. v. Texas Dep’t of Fam. & Protective

Servs., 505 S.W.3d 618, 619 (Tex. 2016). Proving ineffective assistance of counsel requires

16 showing: (1) commission of errors so serious that counsel was not functioning as “counsel”

guaranteed by the Sixth Amendment, and (2) counsel’s deficient performance prejudiced the

defense—i.e., “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (quoting Strickland

v. Washington, 466 U.S. 668, 687 (1984)). We must determine “whether counsel’s defective

performance caused harm; in other words, whether ‘there is a reasonable probability that, but for

counsel’s unprofessional error(s), the result of the proceeding would have been different.’” Id. at

549–50 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “Thus, an

ineffective assistance of counsel claim requires a showing of a deficient performance by counsel

so serious as to deny the defendant a fair and reliable trial.” In re J.O.A., 283 S.W.3d 336, 342

(Tex. 2009). An assertion of ineffective assistance will be sustained only if the record

affirmatively supports such a claim. A.D., 673 S.W.3d at 719–20. The parent has the burden to

prove by a preponderance of the evidence that counsel was ineffective. A.C. v. Texas Dep’t of

Fam. & Protective Servs., 577 S.W.3d 689, 707 (Tex. App.—Austin 2019, pet. denied).

“With respect to whether counsel’s performance in a particular case is deficient,

we must take into account all of the circumstances surrounding the case, and must primarily

focus on whether counsel performed in a ‘reasonably effective’ manner.” In re M.S.,

115 S.W.3d at 545. “[C]ounsel’s performance falls below acceptable levels of performance

when the ‘representation is so grossly deficient as to render proceedings fundamentally

unfair[.]’” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim App. 1983)). “In this

process, we must give great deference to counsel’s performance, indulging ‘a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance,’

including the possibility that counsel’s actions are strategic.” Id. (quoting Strickland, 466 U.S. at

17 689). “The challenged conduct will constitute ineffective assistance only when ‘the conduct was

so outrageous that no competent attorney would have engaged in it.’” In re D.T., 625 S.W.3d 62,

74 (Tex. 2021) (quoting In re M.S., 115 S.W.3d at 545). “Ordinarily, counsel should not be

condemned as unprofessional or incompetent without an opportunity to explain the challenged

actions.” In re S.L., 188 S.W.3d 388, 395 (Tex. App.—Dallas 2006, no pet.). “In a

parental-rights termination case where the parent asserts on appeal the ineffective assistance of

trial counsel, but nothing in the record indicates trial counsel’s reasons or strategies for the

complained-of conduct, the lack of a record is practically always fatal to the parent’s

appellate issue.” In re K.K., No. 10-04-00303-CV, 2006 WL 561820, at *3 (Tex. App.—Waco

Mar. 8, 2006, no pet.) (mem. op.).

The standard of review is more deferential to counsel’s actions when the claim is

made for the first time on appeal because the reasonableness of counsel’s choices typically

involves facts not appearing in the appellate record. In re J.J., 647 S.W.3d 524, 530 (Tex.

App.—Texarkana 2022, no pet.). “When the record is silent regarding trial counsel’s reasons for

his actions, we may not speculate to determine whether trial counsel is ineffective.”

In re L.D.L.H., No. 04-15-00146-CV, 2015 WL 6507834, at *4 (Tex. App.—San Antonio

Oct. 28, 2015, pet. struck) (mem. op.). “Thus, when the record is silent regarding counsel’s

reasons for his conduct,” as it is here, “we defer to counsel’s decision if there is at least the

possibility that the conduct could have been legitimate trial strategy.” In re S.L., 188 S.W.3d at

395. Stated another way, if counsel “may have acted in accordance with a plausible strategy,”

we will not find counsel’s conduct deficient. See In re L.G.R., 498 S.W.3d 195, 209 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied).

18 A. Counsel’s performance

1. Failing to request a delay of trial

Mother acknowledges that her attorney orally requested a continuance on the first

day of trial at the outset and obtained a recess after the Department closed so that she might

appear the next day, but she faults him for not requesting an additional recess after the trial

resumed. She was the only witness he intended to call, and she did not arrive until after the trial

court ruled.

On the first day of trial, counsel reported that Mother was at the hospital

experiencing Braxton Hicks contractions in the eighth month of pregnancy. He said that she

wanted a short extension so that she could proceed on her own and that she wanted a jury. The

trial court said that it had previously delayed trial to allow Mother to obtain treatment that she

did not complete and that it wanted proof that she was hospitalized before it would delay trial

further. The court denied the oral motions for continuance, to withdraw counsel, and for a jury.

The court said that if it received some formal documentation from a hospital about Mother’s

circumstances it would consider resuming the trial at another time, but that in light of the

previous extension, it did not find it prudent for the court or in Child’s best interest to delay the

trial further without better proof of Mother’s condition.

The Department proceeded with its case. After the fifth witness testified, the

Department rested after saying that it would have called Mother had she appeared; the

Department opined that Mother’s testimony would have been similar to the facts before the

court. Mother’s attorney then requested and received a recess until the next day so that Mother

could testify. The court requested that Mother bring documentation from the hospital to explain

Mother’s circumstances. The court set the trial to resume at 10:30 a.m. the next day.

19 On the second day, trial started over ten minutes past the scheduled start time;

Mother’s counsel reported that she had “texted several times this morning, indicated that she was

going to bring the hospital records, but has since ceased” communications an hour prior to the

resumption of trial. He asked and received the opportunity to check the hallway again and the

court sent staff to another floor to look for Mother; he also said he called Mother and got no

answer. After an unsuccessful search during the recess, counsel closed without calling a witness.

The trial court announced its decision. As the court concluded, Mother came into the courtroom

claiming she had car trouble. When the court instructed her to talk to her attorney, Mother said,

“I don’t want a lawyer. I don’t want a lawyer. I want to be able to represent myself. And I want

to be able to be heard on this. I can pee clean right now.” The court instead ended

the proceeding. There is no indication of whether Mother brought any hospital records.

In light of the court’s recitation of its history with this case and with Mother, it is

not clear what additional request counsel could have made of the court. He brought the issue of

Mother’s absence to the court’s attention, and the court granted limited leeway, then proceeded

to its decision.

2. Inaction at trial

Mother complains that her attorney made only one objection and engaged in

limited cross-examination (only eighteen pages of the reporter’s record). She complains that he

did not cross-examine CASA volunteer Lozano on her testimony that Mother had openly

admitted use of methamphetamine multiple times throughout the case and has admitted to drug

use during the case after Child was removed. Mother asserts that this testimony “provided

evidence that was not revealed elsewhere during trial.”

20 Mother’s complaints do not show deficient performance. Counsel’s one objection

to the Department’s counsel leading the witness was sustained. His eighteen pages of

cross-examination during trial were more than one-quarter of the sixty-seven pages of witness

examination by four attorneys. Counsel likely was guided in his decision on cross-examining

Lozano by the court’s statements about Mother’s quest for addiction treatment. Before evidence

opened in August 2025, the court discussed how it had delayed trial so that Mother could obtain

treatment for addiction. The court’s statement related to its discussion with Mother at the

May 30, 2025 hearing concerning Mother’s attempt to obtain drug treatment. The court asked,

“[Mother], if you are still struggling with substance use, is it still methamphetamines?” Mother

responded, “I’m not going to sit here and try to candy coat things. I do have slight slipups. I will

say I’m not proud of it. But that is why I’m willing to go straight to [a drug treatment facility].”

Also, before the CASA witness testified, CPS investigator Freeman testified that Mother said

“she had used meth the entire pregnancy” with Child.

In light of the court’s expressed knowledge of the case including Mother’s quest

for treatment eighteen months after Child’s birth, Mother’s counsel may have made a reasonable

strategic decision not to focus on Lozano’s assertion that Mother had admitted continued

drug use.

3. General representation

Mother points to counsel’s statement at trial as proof that his concern that she

did not want his representation made him ineffective. Mother stated on the record at the

May 30, 2025 hearing that she wanted to represent herself; however, when asked at the

June 9, 2025 hearing if she wanted an attorney to represent her, she said, “At this current

21 moment, yes. But if it does go further and it’s not decided on an extension, I would like to go

ahead and represent myself. Just because I know ins and outs that another lawyer doesn’t

know.” At trial, after the court denied counsel’s oral motion to withdraw but before testimony

began, counsel said, “I’m hesitant to say anything on anybody’s behalf because I think it’s

asking for [an] appeal.”

The record does not show any particular decision that this vaguely-worded

hesitance caused counsel to make or not make. It does not show objections withheld or why they

were avoided, questions un-asked, or witnesses not called other than Mother herself. Counsel

may have chosen not to object more often to evidence for any number of reasons between the

fact that it was not objectionable to avoiding annoying the judge by making borderline objections

to admissible evidence. On the second day of trial, he attempted to contact Mother and looked

for her in the courthouse during a recess of the trial. Additionally, Mother’s counsel had

represented her at pretrial hearings and tried helping her find treatment during the May hearing.

In the absence of a record showing what actions were not taken and why, we cannot say that

counsel’s representation fell below the wide range of reasonable representation. See S.L.,

188 S.W.3d at, 395.

B. Harm from counsel’s errors

Even had we found that counsel’s representation was deficient, we would not find

that it harmed Mother. An ineffective assistance of counsel claim requires a showing of a

deficient performance by counsel so serious as to deny the defendant a fair and reliable trial. See

J.O.A., 283 S.W.3d at 342.

22 Mother asserts that had counsel requested more time to allow her to get to the

courthouse, she could have testified and rebutted the Department’s claims. But the record shows

that counsel sought and obtained additional time for Mother to appear at trial; that she did not

make it within the time the trial court allotted was not within counsel’s control. Mother asserts

that counsel’s failure to present witnesses or cross-examine witnesses regarding vital testimony

allowed the Department to meet its burden. But Mother has not presented a record showing that

the chief underlying basis for termination—her recurrent drug use—would have been overcome

by any cross-examination or additional evidence.

Even had Mother tested negative after arriving at the courthouse during trial and

testified, there is no showing that the one test and her testimony would have outweighed her

history of “slipups” in using methamphetamine during a second pregnancy while a termination

case regarding Child was pending. See N.J.H., 575 S.W.3d at 832 (noting that parent’s decision

to use illegal drugs during pendency of termination suit when parent risks losing child may

support finding that parent engaged in conduct that endangered child’s physical or emotional

well-being).

We conclude that the record does not support Mother’s claim that her counsel

provided representation that was so ineffective that it denied her a fair and reliable trial.

CONCLUSION

Having found no merit in the issues presented on appeal, we affirm the decree

of termination.

23 __________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Theofanis and Crump

Affirmed

Filed: March 20, 2026