in the Interest of M.S.D., Child

Affirmed and Memorandum Opinion filed February 14, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00801-CV
IN THE INTEREST OF M.S.D., A CHILD
On Appeal from the 387th District Court
Fort Bend County, Texas
Trial Court Cause No. 11-DCV-191748
MEMORANDUM OPINION
In this appeal from a judgment terminating her parental rights, Nicole G.1
asserts that her trial counsel was ineffective and that she was denied due process.
She further contends that the evidence is legally and factually insufficient to
support the trial court‘s judgment terminating her parental rights. We affirm.
1
To protect the privacy of the parties in this case, we identify the child‘s relatives and
other adults by their first name only. See Tex. Fam. Code § 109.002(d).
BACKGROUND
The Texas Department of Family and Protective Services (the
―Department‖) received a referral alleging physical abuse to the child the subject
of this suit, M.S.D., by her mother, Nicole. The referral stated that M.S.D. had
been seen in the past with bruises on her cheeks that appeared to be pinch marks
and bumps on her head and that she had been left by Nicole with her grandmother,
Bonnie, for over a week without contact. Department investigator Karen Preston
began examining the case by interviewing Bonnie. Bonnie told Karen that Nicole
had left M.S.D. with her about a week earlier. According to Bonnie, Nicole said
she would return to pick M.S.D. up in three days, but Bonnie had not heard from
Nicole. Bonnie was unable to provide medical or day care for M.S.D. Preston
next contacted Nicole by phone; Nicole told Preston she was in New York and
would return in about two weeks. Nicole also falsely claimed to Preston that
M.S.D. was with her in New York. The Department developed a safety plan with
Bonnie and left M.S.D. in her care, and Bonnie agreed not to release M.S.D. to
Nicole without contacting the Department.
Bonnie contacted Preston several days later and told her that Nicole and her
boyfriend, Joshua, had returned and had spent the previous night at her home.
Bonnie was able to leave the house with M.S.D. that morning and agreed to find
alternative housing for the night. Bonnie later returned to her home and entered
because she did not see any other vehicles parked at the house. She found Nicole
and Joshua inside. She contacted Preston by phone again, stating that she was
afraid and could not leave. Preston contacted law enforcement. Officers arrived
and arrested Nicole on outstanding traffic violations.
Bonnie bonded Nicole out of jail the next day, and Nicole reported to the
Department‘s offices for an interview. While at the Department, personnel saw
2
Nicole and Joshua arguing in a manner that appeared to be violent. During
Preston‘s interview with Nicole, Preston discovered that Nicole had no permanent
residence: she stayed with various people, including Bonnie, Joshua, and a man
she met on Craigslist, Mike, for whom she did housework and ―organization.‖
Nicole told Preston she planned to take M.S.D. with her to Mike‘s home, but
refused to provide Preston with Mike‘s address because she could not permit the
Department access to his home.
Nicole provided Preston with a letter indicating that she was employed, but
Preston was subsequently contacted by the individual who wrote the letter. This
person stated that Nicole did not work for him, and he did not intend to employ
her. He alleged that Nicole was a prostitute who was using drugs and that Joshua
was a drug dealer. Preston also learned that Nicole had a profile on a website
called ―Sugarbaby or Sugardaddy.com.‖ Nicole told Preston that this was a
website where she could meet older men who were looking for companionship,
who would pay her a ―substantial‖ amount of money for her attention.
Nicole told Preston that Richard, M.S.D.‘s father, was a ―monster.‖ Preston
investigated Richard‘s criminal history and found that he had been arrested for
domestic violence, drug-related offenses, and carrying a weapon. She also
discovered that Joshua had an open Department investigation concerning a child he
had with another women. In May 2011, Joshua had been arrested for assaulting
this child‘s mother.
Preston investigated Nicole‘s history with the Department. She discovered
that Nicole had voluntarily relinquished her parental rights to her first child while
she was pregnant with M.S.D. This first child was under the emergency temporary
conservatorship of the Department at the time. Further, the Department had
already been involved in M.S.D.‘s life shortly after she was born, when she was
3
removed from Nicole‘s care and placed with Bonnie for almost a year. Going back
even further, Preston discovered that Nicole had been investigated by the
Department‘s Adult Protective Services division for assaulting Bonnie in 2006.
After Preston completed her investigation, she concluded that Nicole was
unable to protect M.S.D. based on Nicole‘s unstable lifestyle, her past and perhaps
current drug use, and her involvement with men who had histories of domestic
violence and perhaps drug use. She concluded that Nicole ―placed her own needs‖
above those of her child and believed that there was an immediate and continuing
danger to M.S.D.‘s health or safety. On July 26, 2011, the Department took
possession of M.S.D. under section 262.104 of the Texas Family Code, which
authorizes the Department to take possession of a child on an emergency basis
when there is a reasonable belief that there is an immediate danger to the physical
health or safety of the child. M.S.D. was quickly returned to Bonnie‘s home, but
Nicole was not permitted to be around M.S.D.
The parties entered into an agreed temporary order after mediation, in which
the Department was named M.S.D.‘s temporary managing conservator and Nicole
was named her possessory conservator. This order set July 30, 2012 as the date of
dismissal of the case. As part of these orders, Nicole agreed to undertake several
actions in order to have M.S.D. returned to her, including having a psychological
evaluation, undergoing counseling, having a drug and alcohol assessment and
testing, following any recommendations made after the drug and alcohol
assessment, and demonstrating that she can establish a safe and stable home for
M.S.D. Nicole was also ordered to comply with the Department‘s service plan,
including any amended service plans, during the pendency of the suit.
Several permanency hearings were held and permanency orders were
entered during the pendency of this case. In the permanency orders, the court
4
noted what progress, if any, Nicole had made, and ordered Nicole to comply with
the Department‘s service plans, to continue her counseling, and to complete her
drug and alcohol assessment and treatment. In the January 11, 2012 permanency
hearing order, the trial court set the case for trial on June 13, 2012.
On May 9, 2012, over nine months after M.S.D. was removed from Nicole‘s
care, the trial court conducted its final permanency hearing prior to the trial setting
on the Department‘s original petition. The court incorporated the Department‘s
permanency plan and progress report into the findings in its permanency order. In
this report, the Department noted that the primary permanency goal for M.S.D. was
unrelated adoption and that the concurrent goal was family reunification. This
order established that Nicole had not demonstrated adequate and appropriate
compliance with the service plan to enable the Department to return M.S.D. to her
custody. Nicole was further ordered to, as is relevant here,
Attend, participate in, cooperate with, make progress in, and successfully
complete counseling sessions designated by the Department or any other
provider mutually agreed upon by Nicole and the Department.
Follow any and all recommendations made as a result of the drug and
alcohol assessment, including, if necessary, submitting to and
successfully completing a substance-abuse treatment program. If
recommended, Nicole was ordered to enroll, participate in, and
successfully complete an in-patient drug treatment program.
Demonstrate that she can establish a safe and stable home for M.S.D. free
of abuse, neglect, and anything that would pose a danger of abuse or
neglect to M.S.D., including but not limited to maintaining employment,
arranging for responsible child care during working hours, successfully
completing and demonstrating that progress has been made in all court
ordered services, and obtaining suitable housing providing for M.S.D.‘s
basic necessities.
Comply with each requirement set out in the Department‘s original or
any amended service plan during the pendency of this suit.
5
The trial court ordered the parties to mediation on the Department‘s motion
on June 1, 2012. The record contains a motion for sanctions filed by the
Department on June 6, 2012. In this motion, the Department sought sanctions
against Nicole‘s counsel for the following. On May 30, Nicole‘s counsel advised
the Department‘s counsel by email that she was sending her assistant to the court-
ordered mediation set for June 1. All parties, counsel for the Department and
M.S.D.‘s ad litem, and Nicole‘s counsel‘s assistant appeared for the mediation as
scheduled. The assistant informed the mediator that he was not an attorney and
that he had spoken with Nicole‘s counsel and was told that no mediation agreement
would be reached. The mediation was canceled by the mediator. Despite Nicole‘s
counsel‘s failure to comply with the trial court's order to mediate, there is no
sanctions order in the record.
At the bench trial on the petition to terminate held in the summer of 2012,2
the following relevant evidence was presented. Nicole testified regarding her
employment history from the time of M.S.D.‘s emergency removal to the time of
trial. She stated that she had worked at Kruger Marketing Group in door-to-door
sales for about two months. She said that, after she became pregnant with another
child while M.S.D. was under the Department‘s conservatorship, she was unable to
work because she was ―very ill with pregnancy related issues.‖ Nicole admitted
that she had used marijuana during the time from September of 2011 to January of
2012 to help with her morning sickness during her pregnancy. She testified that
she has since stopped smoking marijuana.
2
The termination proceedings were conducted on June 18, 19, 20, and 28, 2012. The
trial was then recessed until July 5. On the morning of July 5, M.S.D.‘s father, Richard,
appeared unrepresented at the trial. The court appointed counsel to represent Richard and
recessed the trial until August 2011. Trial recommenced on August 15, 2011.
6
Nicole testified that she placed the child with whom she became pregnant
with an adoptive family in California. According to Nicole, this adoptive family
had paid for the apartment she has lived in since January and had provided her with
some ―necessities.‖ Their support was to stop at the end of June. Nicole testified
that she was currently working at a realty firm as an office manager, making
$12.00 an hour and a three percent commission on some property transactions.
She acknowledged that she has not yet made any commissions and had been
working there only two weeks. According to Nicole, she was working towards
getting her real estate license; she had completed the education requirements on
line and was waiting to take the state licensing exam.
Nicole admitted that she had not completed the in-patient drug rehabilitation
plan recommended after the assessment. She testified that at first, she refused to
participate in the program because she thought it was unnecessary. She was
between attorneys when the recommendation was made, and she wanted to talk to
her counsel because she did not agree with it. She acknowledged that the program
she refused to enter was one that would have permitted a child to live with her
while she was in treatment. At the time of trial, however, she stated that she was in
agreement with the recommendation and ―just hadn‘t done it yet.‖ Nicole also
testified that she had attended ―AA and NA‖ meetings, but admitted that she had
used drugs during some of the times she was allegedly attending these meetings.
She also admitted that she had been diagnosed with bipolar disorder, but was not
taking any medications. However, she also testified that she had no current
diagnosis of bipolar disorder.
Regarding her court-ordered counseling, Nicole explained that she had
attended some counseling sessions in November 2011, but had stopped going. She
also acknowledged that she failed to attend her initial assessment, she missed
7
several appointments, and she did not attend any counseling from December 2011
to April 2012. She blamed her lack of attendance on the long waits she had
endured at the initial counseling location because of paperwork problems. She
testified that she preferred a female counselor and that the Department made
arrangements for her to see a female counselor. Nicole started seeing that
counselor in April 2012, but missed several sessions. Nicole testified that her
counselor ultimately suspended her treatment until she submitted to substance-
abuse counseling.
Nicole explained her plans if M.S.D. were returned to her. She stated that
she planned to re-enroll M.S.D. in a day care that she had been enrolled in,
continue working, and spend her time off starting and finishing services to which
the Department had referred her. She explained that she would ―try to be the best
person . . . and the best mother‖ she can be. When asked why she would continue
or even start services, such as in-patient drug treatment, when the Department was
out of the case, she responded that she needed to make changes regardless of the
Department‘s involvement. She also testified that she was no longer involved with
Joshua. She further acknowledged that, although M.S.D. was nearing three years
of age, she had only had ―complete care, custody and control‖ of M.S.D. for
―[m]aybe three months, four months.‖
Bonnie testified that when M.S.D. was about four months old, she lived with
Bonnie ―for about a year‖ until the Department returned her to Nicole. M.S.D.
continued to stay with Bonnie most weekends until May 2011, when Richard
―kicked‖ Nicole and M.S.D. out of his apartment. Following Nicole and Richard‘s
break-up, Nicole and M.S.D. continued to live with Bonnie. Nicole worked at
night and watched M.S.D. during the day, and Bonnie worked during the day and
kept M.S.D. at night. Although Nicole sometimes stayed elsewhere overnight, this
8
general pattern continued until Nicole left for New York and the Department
became involved.
Bonnie testified that during all the times that she has cared for M.S.D.,
Nicole has not provided any food, money, or other resources, other than some
formula that Nicole provided early on. She also related that [Nicole] has been ―in
and out‖ living different places with M.S.D., ―mov[ing] from man to man‖ and
―place to place,‖ and is ―not able to provide a stable home for [M.S.D.].‖ Bonnie
also expressed concerns about some of Nicole‘s relationships in which fighting—
none of which Bonnie described as physical—occurred in M.S.D.‘s presence.
Bonnie stated that she had had to remove M.S.D. from the area when Nicole and
one of her previous boyfriends had been fighting and that a restraining order had
been obtained against this particular boyfriend.
Bonnie described M.S.D. as a happy child, who does not ask for Nicole. She
explained that although Nicole is good with M.S.D. when Nicole has her for a
short time, she does not believe that Nicole can parent ―consistently.‖ Bonnie
testified that she does not believe that Nicole can put M.S.D. first. According to
Bonnie, Nicole has not changed over the course of this case, and Bonnie does not
believe that Nicole is able to support herself or provide a stable home for M.S.D.
Bonnie stated that she believes M.S.D. should remain with her current foster
family rather than being returned to her daughter Nicole.
Two court appointed special services advocates for M.S.D. testified. Both
advocates testified that they had observed visits between Nicole and M.S.D. The
advocates agreed that, although their interactions were ―appropriate,‖ Nicole and
M.S.D. did not appear to have a nurturing mother-daughter bond. One of these
advocates testified that, because of Nicole‘s history of drug use and neglect of
M.S.D., she did not believe that Nicole could provide a safe and stable home for
9
M.S.D. The other advocate testified that she believed it is in M.S.D.‘s best interest
to remain in her current placement with the foster family. The current foster
parents of M.S.D. also testified. They both stated that they love M.S.D., that she
has bonded well with their family, and that they would like to adopt her. They
stated that M.S.D. was happy in their home and doing very well. M.S.D. refers to
them as ―mommy‖ and ―daddy.‖ They testified that they intend to continue allow
Bonnie to contact with M.S.D. and that they are ―open‖ to Nicole‘s having a
relationship with M.S.D. if that relationship is positive and beneficial to M.S.D.
Department caseworker Araby Sticksel was assigned to M.S.D.‘s case in
August 2011. She explained that in December 2011, the permanency plan for
M.S.D. changed from family reunification to unrelated adoption due to Nicole‘s
lack of progress in the family plan and her repeated failure to attend her scheduled
visitation with M.S.D. She stated that Bonnie was unable to take M.S.D. on
permanently because of her age and health. The Department identified and
evaluated a potential adoptive family and placed M.S.D. with that family on a
foster care basis. Bonnie continued to interact with M.S.D. while she was placed
with this family, and the family agreed that Bonnie could remain a part of M.S.D.‘s
life if they adopted her.
Sticksel testified that Nicole tested positive for marijuana after M.S.D. had
been removed from her care. She explained that after Nicole completed her drug
assessment, it was recommended that she be placed in an in-patient treatment
facility. The assessment, along with the entirety of the Department‘s record
regarding Nicole, was admitted into evidence. The assessment indicates that
Nicole reported using marijuana from the age of fifteen, alcohol at the age of
eighteen, and had used both methamphetamines and the prescription drug Xanax.
Nicole further reported that has had ―multiple involvements with the legal system,
10
all of them related to substance abuse.‖ Nicole informed Sticksel that, rather than
submitting to in-patient treatment as recommended by the assessment, she wanted
to have another assessment done. Nicole again tested positive for marijuana in
January 2012.3 Sticksel received no indication that Nicole had arranged another
assessment until July 2012, when she received a fax from another drug treatment
program. This fax indicated that Nicole had scheduled an assessment in June
2012, but Nicole did not attend the scheduled assessment. According to Sticksel,
Nicole told her she had attended one AA meeting before trial, but could offer no
proof to Sticksel that she had done so.
Sticksel confirmed that Nicole was required to attend counseling under the
plan, but had failed to do so. She corroborated Nicole‘s testimony that her
counseling sessions were cancelled due to her non-attendance and the requirement
that she start substance-abuse treatment. Sticksel further related that Nicole missed
numerous scheduled visits with M.S.D. and that the Department moved the
location of the visits because Nicole reported having transportation problems. But
Nicole also missed visits with M.S.D. after the location was moved. Sticksel stated
that she supervised numerous visits that Nicole had with M.S.D. According to
Sticksel, although she observed that the two had a bond, she did not believe it was
a strong bond. Sticksel testified she never saw M.S.D. become upset or anxious
when separating from Nicole.4
Sticksel testified that Nicole‘s willingness to participate in services was
intermittent. She explained that Nicole acknowledged the need to make changes in
her life, but Sticksel did not believe that Nicole had actually made any significant
3
As noted above, Nicole admitted using marijuana while pregnant with her third child to
help with morning sickness during this time period.
4
Nicole testified that M.S.D. cried and clung to her at the end of their visits.
11
changes during the course of the case. Sticksel testified that ―once it looked like
the trial was coming, [Nicole] seemed to think she needed to kick it in high gear‖
but it seemed to come ―a little late.‖
According to Sticksel, Nicole never provided the Department with an
address where she was residing. In September 2011, Sticksel attempted to see
Nicole at Joshua‘s apartment, but Nicole told her they had broken up because
Joshua was ―selling marijuana.‖ In December, Nicole told Sticksel she was living
with a friend but did not provide an address. In January 2012, Nicole reported that
she was living with her biological mother but told Sticksel that this home was not
suitable because her mother used drugs and her mother and grandmother drank
alcohol and got into disagreements. As of the beginning of the termination
proceedings, Sticksel had not seen any of Nicole‘s residences. Sticksel also
testified that Nicole claimed to have had multiple jobs but provided Sticksel with
only one paystub.
Sticksel explained that Nicole has a pattern of associating with men who
have histories of domestic violence and drug use, has a history of drug use herself,
and has not shown any ability to provide a stable and safe environment for M.S.D.
According to Sticksel, Nicole has inadequate parenting skills, and it would not be
in M.S.D.‘s best interest to be returned to her. Sticksel believed that termination of
Nicole‘s parental rights and adoption of M.S.D. by her current foster family is in
M.S.D.‘s best interests because the foster family ―can provide [M.S.D.] with a safe
and stable home, with a family unit she can consistently be with and grow up in,
free from drug use.‖
As noted above, the trial court recessed the trial on July 5, 2012 because
M.S.D.‘s biological father, Richard, had appeared in court. The trial court
appointed counsel to represent him and continued the hearing until August.
12
Nicole‘s counsel moved for a mistrial because of the father‘s late appearance, but
the trial court did not rule on the motion. During the recess, Richard voluntarily
relinquished his parental rights to M.S.D.
On August 15, 2012, when the trial reconvened, Nicole was not present.
Sticksel again took the stand. She testified regarding Richard‘s relinquishment of
his parental rights. She also explained that, during the recess, she had attempted to
make a home visit to Nicole‘s new apartment, but Nicole was not there. She stated
that she observed Joshua, whom Nicole had testified she was no longer seeing,
leaving the apartment complex on Nicole‘s moped. According to Sticksel,
personnel in the leasing office told her that Joshua was ―the guy that‘s not
supposed to be in the apartment complex.‖
Sticksel testified that Nicole was being held in the Brazoria county jail for
the manufacture and delivery of synthetic marijuana. According to the complaint,
which was admitted into evidence over Nicole‘s counsel‘s objection, a Brazoria
County Sherriff‘s investigator arranged to purchase illegal synthetic marijuana
through an ad on Craigslist. On July 19, 2012, he met Nicole and another person
for delivery of the drugs. Nicole and two others were found to be in possession of
38.49 pounds of the drug, and Nicole was arrested and charged with delivery of a
controlled substance. According to Sticksel, when she visited Nicole in jail, Nicole
said she could not pay her $125,000.00 bond, was going to have to wait thirty days
before she could seek a reduction, and would be losing her apartment due to her
incarceration. Sticksel stated that as of the last day of trial, Nicole was without a
stable home, appeared to be doing drugs again, and had no ability to bond herself
out of jail.
Shortly after Sticksel‘s testimony, the Department and M.S.D.‘s attorney ad
litem rested their cases. Without calling any witnesses, Nicole‘s counsel also
13
rested. The trial court announced that it would be entering orders terminating both
parents‘ rights. On August 22, 2012, the trial court filed orders terminating the
parental rights of Nicole and Richard. Nicole‘s counsel filed a notice of
accelerated appeal and requested a ―free appeal‖ based on Nicole‘s indigency.
This appeal timely ensued thereafter.
ANALYSIS
In her first issue, Nicole asserts that her trial counsel was ineffective. In her
second issue, she contends that she was denied due process when the trial court
continued her trial in her absence after the July recess. In her third issue, she
challenges the legal and factual sufficiency of the evidence supporting termination
under Texas Family Code section 161.001(1). Finally, in issue four, she argues
that the evidence is legally and factually insufficient to support the trial court‘s
finding that termination was in M.S.D.‘s best interests.
A. Ineffective Assistance of Counsel
1. Standard of Review
A parent in a parental termination proceeding is entitled to effective
assistance of counsel, a right which is assessed under the same standard as that set
for criminal defense counsel in Strickland v. Washington, 466 U.S. 668, 681
(1984). In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003). To demonstrate
ineffective assistance in a given case, a parent must first show that counsel‘s
performance was deficient. Id. at 545. Once deficiency has been established, the
parent must show that counsel‘s deficient performance prejudiced the parent‘s
case. Id. Concerning whether particular representation was deficient, we must
consider all circumstances surrounding the case and determine whether counsel
was ―reasonably effective.‖ Id. In doing so, we provide great deference to
14
counsel‘s performance, indulging ―a strong presumption that counsel‘s conduct
falls within the wide range of reasonable professional assistance.‖ Id. Only if
counsel‘s conduct is ―so outrageous that no competent attorney would have
engaged in it,‖ will we find such performance deficient. 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. Id. at 550.
Any allegation of ineffective assistance must be fully supported by the record.
Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 572 (Tex.
App.—Houston [1st Dist.] 2007, no pet.).
2. Application
Nicole asserts that her trial counsel‘s performance was deficient because her
counsel failed to: (1) attend court-ordered mediation on June 1, 2012; (2) move for
continuance once she learned that her Nicole could not be present at trial on
August 5, 2012; (3) request a bench warrant to secure Nicole‘s presence at trial; (4)
object to the trial‘s continuing without Nicole‘s presence; and (5) move for a new
trial. She further asserts that these deficiencies effectively deprived her of the right
to counsel, such that prejudice should be presumed. See U.S. v. Cronic, 466 U.S.
648, 659 (―The presumption that counsel‘s assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at a critical stage of
his trial. Similarly, if counsel entirely fails to subject the prosecution‘s case to
meaningful adversarial testing, then there has been a denial of Sixth Amendment
rights that makes the adversary process itself presumptively unreliable.‖). If
prejudice is not presumed, she argues that if not for her counsel‘s unprofessional
errors, the result of this proceeding likely would have been different. Strickland,
460 U.S. at 687.
15
First, we disagree with Nicole‘s assertion that she was effectively deprived
of the right to counsel. Our review of the record indicates that, prior to the final
day of trial when Nicole was not present and had been arrested on a drug-related
charge, her counsel thoroughly cross-examined the Department‘s witnesses, often
questioning them longer than the Department did. She took several witnesses on
voir dire regarding how they had obtained certain knowledge, which resulted in
numerous objections to testimony being sustained. Nicole‘s counsel filed a motion
to dismiss at the conclusion of Preston‘s testimony, asserting that the Department
had failed to establish grounds for M.S.D.‘s emergency removal from Nicole‘s
care. She further made an oral motion for a mistrial when Richard appeared late in
the proceedings and the trial court recessed the trial. Finally, she timely filed a
notice of accelerated appeal and requested a free record due to Nicole‘s indigency.
The Department‘s case was subjected to ―meaningful adversarial testing.‖ Thus,
we will apply the Strickland standard to review Nicole‘s ineffectiveness claim.
Nicole first asserts that her counsel was ineffective for failing to attend the
June 1, 2012 court-ordered mediation. Rather than attending herself, Nicole‘s
counsel notified the Department that she was sending her assistant, whom counsel
indicated was experienced with mediation. Her counsel also informed the
Department that she would be available by phone. Mediation did not occur, and
the Department filed a motion for sanctions against Nicole‘s counsel. In this
motion, the Department stated, ―Brandon [the assistant] stated he had spoken with
[Nicole]‘s counsel and was informed no agreement would be reached.‖ Nothing in
our record reflects that this motion was heard or ruled upon by the trial court, nor
does the record reveal why counsel did not attend the mediation. Further, Nicole
has provided us with no authority indicating that such behavior is ―so
16
unprofessional that no competent attorney would have engaged in it.‖ In re M.S.,
115 S.W.3d at 545.
Nicole next directs us to her counsel‘s failure to object to Nicole‘s absence
on the final day of trial or otherwise ensure her presence by moving for a
continuance or obtaining a bench warrant to secure her presence and her counsel‘s
failure to present a ―case in chief‖ on her behalf. This court has already considered
an ineffective-assistance-of-counsel claim based on a parent‘s absence at a
termination hearing. In re K.M.H., 181 S.W.3d 1 (Tex. App.—Houston [14th
Dist.] 2005, no pet). In K.M.H., the father, an inmate in ―boot camp‖ when his
parental rights were terminated; was not present at all for the termination trial. Id.
at 12–13. On appeal, he complained that his counsel was ineffective for failing to
make arrangements for his presence at trial. Id. at 12. In determining that his
counsel was not ineffective for failing to secure his presence, we stated, ―[The
father] was represented by counsel, and he has not shown he was denied an
opportunity to communicate with counsel. [The father] also has not shown the
substance of any testimony he would have given, or how such testimony would
have affected the trial court‘s decision.‖ Id. at 13. Likewise, here, Nicole has not
established any of these factors.
More important to our determination in K.M.H., however, was the lack of an
explanation in the record as to counsel‘s failure to secure a bench warrant, which
could have been a tactical decision. Id.; see also id. at 15 (Yates, J., concurring)
(―Despite the importance of a parent‘s presence at a termination hearing, a strategic
choice not to appear is possible.‖). Here, as in K.M.H., there is no explanation in
our record for her counsel‘s failure to (a) secure her presence on that day or (b)
present a case on her behalf.5 In reviewing a claim of ineffectiveness of counsel,
5
Nicole testified that drugs would always be an issue in her life and that she hoped she
17
we presume competent performance. In re M.S., 115 S.W.3d at 145; In re K.M.H.,
181 S.W.3d at 15 (Yates, J., concurring). The record here is insufficient to
overcome this presumption. In re K.M.H., 181 S.W.3d at 13; id. at 15 (Yates, J.,
concurring); see also In re K.L.L.H., No. 06–09–0067–CV, 2010 WL 78043, at *7
(Tex. App—Texarkana, Jan 12, 2010, no pet.) (mem. op.) (concluding that counsel
was not ineffective for failing to call witnesses or introduce evidence in case in
chief where record was silent regarding counsel‘s reasoning, and decision not to
put on evidence could have been trial strategy). For the foregoing reasons, we
overrule Nicole‘s first issue.
B. Due Process
For the first time on appeal, Nicole complains that her due-process rights
were violated by the trial court‘s continuing the termination proceeding in her
absence. The record does not indicate that Nicole‘s due-process complaint was
presented to the trial court. Therefore, she has failed to preserve this issue for our
review. See In re L.M.I., 119 S.W.3d 707, 708 (Tex. 2003) (―[A]dhering to our
preservation rules isn‘t a mere technical nicety; the interests at stake are too
important to relax rules that serve a critical purpose.‖); In re A.L.E., 279 S.W.3d
424, 431 (Tex. App.—Houston [14th Dist.] 2009, no pet.). ―Requiring parties to
preserve their complaints in family-law cases furthers the legislative intent that
such cases be resolved expeditiously and with finality.‖ In re A.L.E., 279 S.W.3d
at 431 (citing In re L.M.I., 119 S.W.3d at 711 and In re B.L.D., 113 S.W.3d 340,
354 (Tex.2003)). Accordingly, we overrule Nicole‘s due-process complaint and
turn to her legal and factual sufficiency challenges.
would be able to abstain. She further testified that the only way she could convince the trial
court that she would not use marijuana again was by giving her word and letting her behavior
show her commitment to abstaining. In light of her history of drug use, this testimony, and the
nature of her arrest, her counsel could have determined that having her available for cross-
examination by the Department would have been more harmful than beneficial.
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C. Sufficiency of the Evidence
1. Standard of Review
Parental rights can be terminated only upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Texas Family Code and (2) termination is in the best interest of the child.
Tex. Fam. Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Clear and convincing evidence is ―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.‖ Tex. Fam. Code § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002). Due process demands this heightened standard because ―[a] parental rights
termination proceeding encumbers a value ‗far more precious than any property
right.‘ ‖ In re E.R., —S.W.3d—, —, No. 11-0282, 2012 WL 2617604, at *1
(quoting Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)).
In conducting a legal-sufficiency review in a parental termination case, a
reviewing court looks at all the evidence in the light most favorable to the 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.P.B., 180 S.W.3d 570, 573–74 (Tex.
2005). In reviewing termination findings for factual sufficiency, reviewing courts
must give due deference to the fact-finder‘s resolution of factual questions. In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002). The court then determines whether the
evidence is such that a fact-finder could have reasonably formed a firm belief or
conviction about the truth of the allegations against the parent. Id. at 25.
2. Termination Under Subsection 161.001(1)(O)
In issue three, Nicole challenges the sufficiency of the evidence to support
the trial court‘s findings under Texas Family Code section 161.001(1). Only one
19
basis is required to support termination under subsection 161.001.6 We focus on
the following ground for termination stated in the trial court‘s judgment
terminating Nicole‘s parental rights:
[Nicole] failed to comply with the provisions of a court order that
specifically established the actions necessary for the mother to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child‘s
removal from the parent under Chapter 262 for the abuse or neglect of
the child.
See Tex. Fam. Code § 161.001(1)(O).7
In her brief, Nicole admits that she did not comply with all of the provisions
of the court‘s order establishing the actions she needed to take to have M.S.D.
returned to her:
While it is true that [Nicole] did not successfully complete the
requirements of her court ordered family plan, there‘s evidence to
support the fact that it was not through a refusal to comply. In fact,
[Nicole] completed a number of her required services. [Nicole] took
parenting classes and completed her G.E.D. Further there was
evidence that she attempted to start a number of services, including
drug and psychological counseling, but had difficulty due to the
service providers not meeting her requirements. At trial [Nicole]
testified that she had a difficult pregnancy with many medical issues.
While she was pregnant she had difficulty holding a job, difficulty
maintaining stable housing, and difficulty completing her court-
ordered services. Nicole testified that she never disagreed with her
need for services and the record reflects that she completed a
6
See, e.g., In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (―Only one predicate finding
under section 161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child‘s best interest.‖).
7
As detailed above, M.S.D. was removed from Nicole‘s care under Chapter 262 for
abuse or neglect on July 26, 2011. And, at the time of her trial in July 2012, more than the
requisite nine months had passed. Further, Nicole does not challenge either of these
requirements of subsection 161.001(1)(O).
20
substantial number of them. [Nicole]‘s pregnancy last[ed] nearly the
entire length of the temporary placement, [and] there is substantial
evidence that her failure to comply with the family plan was not
willful. She simply needed more time and service providers that met
her needs.
Regardless of her stated reasons, it is undisputed that Nicole failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of M.S.D. See id.; see also In re M.G., No.
14-09-00136-CV, 2009 WL 3818856, at *9–10 (Tex. App.—Houston [14th Dist.]
Nov. 17, 2009, no pet.) (mem. op.) (holding that failure to comply with order
provided statutory basis for termination under section 161.001(1)). At the time of
the termination proceeding, Nicole admitted she had not completed her substance-
abuse counseling or psychological counseling. Additionally, as discussed above,
Araby Sticksel testified that Nicole had not demonstrated her ability to provide a
safe and stable home for M.S.D. In fact, on the last day of the proceeding, Nicole
had been arrested and told Sticksel that she would not be able to keep her current
apartment.
As discussed supra, the trial court‘s last permanency order specifically
established that Nicole needed to complete these actions to obtain M.S.D.‘s return.
Nicole failed to comply with this order; neither substantial compliance nor excuses
for failing to comply suffice to avoid a termination finding under subsection
161.001(1)(O). See In re T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston
[14th Dist.] 2007, pet. denied) (holding that substantial compliance is not sufficient
to avoid a termination finding under section 161.001(1)(O)); In re T.N.F., 205
S.W.3d 625, 630–31 (Tex. App.—Waco 2006, pet. denied) (indicating that the
parents must comply with every requirement of the court order and holding that
section 161.001(1)(O) does not allow for consideration of excuses as to why
parents failed to comply with all provisions of the court's order); In re D.L.H., No.
21
04–04–00876–CV, 2005 WL 2989329, at *2 (Tex. App.—San Antonio Nov.9,
2005, no pet.) (mem.op.) (rejecting parents‘ arguments that substantial compliance
is sufficient to avoid a finding under section 161.001(1)(O)).
Based on the foregoing evidence, a reasonable factfinder could have formed
a firm belief or conviction that Nicole failed to comply with court orders
establishing actions necessary for the return of M.S.D. from the Department‘s
possession. The evidence was therefore legally and factually sufficient to support
the trial court‘s termination finding under subsection 161.001(1)(O). We overrule
Nicole‘s third issue.
3. M.S.D.’s Best Interest
In her fourth issue, Nicole asserts that the evidence is insufficient to support
the trial court‘s finding that termination of her parental rights is in M.S.D.‘s best
interests. In reviewing the evidence on this termination element, we keep in mind
the strong presumption that a child‘s best interest is served by maintaining the
parent-child relationship. In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston
[14th Dist.] 2003, no pet.) (citing Tex. Fam. Code §§ 153.131(b), 153.191, and
153.252). Additionally, our legislature has determined that the prompt and
permanent placement of the child in a safe environment is presumed to be in her
best interest.8 See Tex. Fam. Code § 263.307(a). In Holley v. Adams, the Texas
8
The following factors should be considered when determining whether the child‘s
parents are willing and able to provide the child with a safe environment: the child‘s age and
physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the
magnitude, frequency, and circumstances of harm to the child; whether the child has been the
victim of repeated harm after the initial report and intervention by the Department; whether the
child is fearful of living in or returning to her home; the results of any psychiatric, psychological,
or developmental evaluations of the child, her parents, her family members, or others who have
access to her home; any history of abusive or assaultive conduct by the child‘s family or others
who have access to the child‘s home; any history of substance abuse by the child‘s family or
others who have access to the child‘s home; whether the perpetrator of any harm to the child has
been identified; the willingness of the child‘s family to seek out, accept, and complete counseling
22
Supreme Court set forth a list of factors that courts have considered in ascertaining
the best interest of a child.9 544 S.W.2d 367, 371–72 (Tex. 1976). These factors
are neither required to be present in any particular case, nor exclusive of other
possible considerations. See id. at 372. We will keep all of the relevant factors in
mind while assessing the evidence concerning best interest.
Nicole has not established that she can provide a stable home for M.S.D.
She had held a permanent job for only two weeks when the trial commenced.
There is nothing in the record to indicate whether this employment will continue
after her arrest. Nicole also admitted to Department caseworker Sticksel that she
would be losing her current residence as a result of her arrest. A parent without
stability, income, or a home is unable to provide for a child‘s physical and
emotional needs. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth
2003, no pet. (determining evidence was sufficient to support best-interest finding
when mother admitted being unable to care for child and having no stable source
of income or permanent home).
Nicole also admitted using marijuana before she had M.S.D. and while she
was pregnant with her third child. See Tex. Fam. Code § 263.307(b)((8); D.O.H. v.
Tex. Dep’t of Family & Protective Servs., No. 14-10-00725-CV, 2011 WL
services and to cooperate with and facilitate the Department‘s close supervision; the willingness
and ability of the child‘s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child‘s family demonstrates adequate parenting skills; and
whether an adequate social support system consisting of an extended family and friends is
available to the child. Tex. Fam. Code § 263.307. These factors overlap with the Holley factors
noted infra in many areas.
9
These factors include: the desires of the child; the emotional and physical needs of the
child now and in the future; the emotional and physical danger to the child now and in the future;
the parenting abilities of the parties seeking custody; the programs available to assist the parties
seeking custody; the plans for the child by the parties seeking custody; the stability of the home
or proposed placement; the acts or omission committed by the parent which may indicate that the
existing parent-child relationship is not a proper one; and any excuse for the acts or omissions
committed by the parent. Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).
23
3684568, at *5 (Tex. App.—Houston [14th Dist.] Aug. 23, 2011, no pet.) (mem.
op.) (noting that a parent‘s use of illicit drugs is a factor supporting a trial court‘s
finding that termination is in a child‘s best interests). Nicole‘s failure to complete
her substance-abuse treatment, as well her failure to complete her court-ordered
counseling sessions,10 also demonstrate that she is unwilling to take advantage of
the services offered to her by the Department. In re W.E.C., 110 S.W.3d 231, 245
(Tex. App.—Fort Worth 2003, no pet.). These facts cast serious doubt on Nicole‘s
parenting abilities,11 despite her testimony that she plans to avail herself of
community services to become a better parent should M.S.D. be returned to her.
Further, Nicole has not effected positive personal changes within a reasonable time
or identified an adequate social support system to assist her in caring for M.S.D.
See Tex. Fam. Code § 263.307(b)(11), (13).
M.S.D.‘s foster parents are providing a stable and appropriate home for her
and are interested in adopting her, providing her the permanence that she needs.
Department workers and the foster parents testified that M.S.D. has bonded with
her foster family and is doing well in her placement. Bonnie also testified that
M.S.D. would be more appropriately cared for in her current placement. Nicole
has not established that she can provide the stability, permanence, and safe
environment needed by a young child such as M.S.D. See Tex. Fam. Code §
263.307(a). The need for permanence is paramount in considering a child‘s
present and future needs. See id.; In re S.J., 14-07-00785-CV, 2009 WL 442485,
at *7 (Tex. App.—Houston [14th Dist.] Feb. 24, 2009, no pet.) (mem. op.) (citing
Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex.
App.—Dallas 1995, no writ)).
10
Nicole completed her court-ordered anger management classes shortly before the
commencement of the termination proceedings.
11
See Tex. Fam. Code § 263.307(b)(8), (10).
24
These facts all support the trial court‘s finding that termination is in
M.S.D.‘s best interest. The trial court had both legally and factually sufficient
evidence to form a firm belief or conviction that termination of Nicole‘s parental
rights was in M.S.D.‘s best interest. Accordingly, we overrule Nicole‘s fourth
issue.
CONCLUSION
Having overruled each of Nicole‘s issues, we affirm the trial court‘s
judgment terminating her parental rights.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Brown and Busby.
25