in the Interest of R.M.R. and A.L.R., Children

IN THE
TENTH COURT OF APPEALS
No. 10-14-00057-CV
IN THE INTEREST OF R.M.R. AND A.L.R., CHILDREN
From the 249th District Court
Somervell County, Texas
Trial Court No. D04777
MEMORANDUM OPINION
Miguel R. appeals from a judgment that terminated his parental rights to his
children, R.M.R. and A.L.R. TEX. FAM. CODE ANN. § 161.001, et. seq. (West 2008).
Miguel complains that the evidence was legally and factually insufficient to support the
trial court's finding that he failed to support his children, contumaciously refused to
submit to a lawful court order, used a controlled substance in a manner that
endangered the children, failed to comply with the provisions of a court order to obtain
the return of the children, and that the termination was in the children's best interest.
Miguel also complains that he received ineffective assistance of counsel and that the
trial court abused its discretion by not allowing one of Miguel's witnesses to testify.
Because we find no reversible error, we affirm the judgment of the trial court.
The procedural history of this proceeding has been lengthy and somewhat
complex. In early 2010, the children were removed by the Department of Family and
Protective Services from Miguel and Crystal, Miguel's wife, because Crystal tested
positive for methamphetamines at the birth of A.L.R. During the investigation, Miguel
and Crystal each signed a written acknowledgment that they had used
methamphetamines very recently. Initially, the children were placed with a relative
pursuant to a family safety plan; however, that placement ended after approximately
one month when Miguel and Crystal violated the agreement to not be around the
children. The children were then placed in foster care, and they remain with the same
foster parents, the Blevins.
The trial court entered various orders during the pendency of the case that
contained various requirements of Miguel and Crystal for them to have the children
returned to them. The first order entered was a temporary order entered in February of
2010, which required them in part to begin counseling within thirty days, complete a
drug assessment and participate in random drug screens, complete parenting classes,
pay child support, and to participate in the Department's Service Plan throughout the
pendency of the case. Each service plan prepared for Miguel contained provisions that
he abstain from the use of illegal drugs and from being around individuals who use
illegal drugs. Crystal tested positive for methamphetamines multiple times during the
pendency of the case. Miguel admitted to the use of marijuana. Crystal and Miguel
continued residing together during this time. Additionally, Miguel did not remain
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current on his child support throughout the pendency of the case.
In December of 2010, the parties entered into a mediated settlement agreement
which gave several specific requirements for Miguel to complete in order for the
children to be returned to him. The agreement provided for the case to be extended for
six months and required Miguel in part to not live with or associate with Crystal or any
other known drug users. Less than a week after the agreement was reached, an
unannounced visit was made to Miguel's home. Crystal and her mother were seen
running out the back door. Crystal did not have pants on when she left the house.
Miguel stated that Crystal and her mother had just arrived in order to get the rest of her
belongings from the residence; however, there was no evidence of any packing in the
residence. Crystal and Miguel were both arrested for interference with public duties.
An immigration hold was placed on Miguel at that time, and ultimately Miguel was
deported back to Mexico.
During the pendency of the case Crystal signed an affidavit of voluntary
relinquishment of her parental rights and her rights were terminated. In August of
2011, a final order was entered naming the Department the sole managing conservator
of the children and Miguel was named a possessory conservator. At the first placement
hearing in October of 2011, the Department decided that it was going to recommend
placing the children with Miguel in Mexico based on a home study that had been
conducted on his home and the home of his parents. The trial court entered an order
approving the placement of the children in Mexico in October of 2011; however, the
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children were not sent to Mexico at that time. In March of 2012, the Department filed a
petition to modify seeking to have Miguel and his mother named joint managing
conservators of the children. The Blevins's filed a petition in intervention and sought a
restraining order to prevent the children from being taken out of the country, which
was denied by the trial court after a hearing in early April of 2012.
The Blevins's filed a petition for a writ of mandamus with this Court on April 27,
2012 which was denied on August 2, 2012. See In re Melissa Blevins, No. 10-12-00136-CV,
2012 Tex. App. LEXIS 6422 (Tex. App.—Waco August 2, 2012). The Blevins's then filed
a petition for a writ of mandamus with the Texas Supreme Court on August 3, 2012
which was abated and sent to the trial court for reconsideration on November 1, 2013.
See In re Melissa Blevins, No. 12-0636, 2013 Tex. LEXIS 901 (Tex. November 1, 2013).
During the abatement from the Supreme Court, the trial court conducted the
final hearing on the Blevins's petition in intervention to terminate the parent-child
relationship between Miguel and the children. The Department abandoned its petition
to modify the parent-child relationship and declared that it was "neutral" in the
proceedings as it related to termination, but was not in support of the children being
returned to Mexico at that time. After a hearing before the bench, the trial court granted
the petition to terminate the parent-child relationship between Miguel and the children
based on three statutory grounds in section 161.001, subsections (F), (I), & (P). TEX.
FAM. CODE ANN. § 161.001 (F), (I), & (P) (West 2008). This appeal followed. The petition
before the Supreme Court was reinstated and dismissed as moot on April 4, 2014. See In
In the Interest of R.M.R. and A.L.R., Children Page 4
re Melissa Blevins, No. 12-00636, 2014 Tex. LEXIS 283 (Tex. April 4, 2014).
Sufficiency of the Evidence in Termination Proceedings
Due process requires application of the clear and convincing standard of proof in
cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof
which 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. See TEX. FAM. CODE ANN. § 101.007
(West 2008). See also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). Evidence is clear and
convincing if it "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 (West 2008).
We review the legal and factual sufficiency of the evidence for a predicate
ground and best interest pursuant to the well-established standards of review set by the
Texas Supreme Court. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) and In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) and In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).
The Family Code permits a court to order termination of parental rights if the
petitioner establishes one or more acts or omissions enumerated under subsection (1) of
section 161.001 and also proves that termination of the parent-child relationship is in the
best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West 2008); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976).
In the Interest of R.M.R. and A.L.R., Children Page 5
Section 161.001(1)(P)
Section 161.001(1)(P) provides that the court may order termination of the
parent-child relationship if the court finds by clear and convincing evidence that the
parent has used a controlled substance, as defined by Chapter 481, Health and Safety
Code, in a manner that endangered the health or safety of the child, and failed to
complete a court-ordered substance abuse treatment program.
Miguel argues that the evidence was legally and factually insufficient to establish
that he used a controlled substance. At the time of the birth of A.L.R., Miguel and
Crystal signed acknowledgments that they had each used methamphetamines the
previous day. The Department, Miguel, and Crystal entered into a safety plan and the
children were placed with relatives. Approximately one month later, Miguel and
Crystal were caught in violation of the safety plan by being around the children and the
children were removed from the relatives. At that time, there was testimony that
Miguel had tested positive for methamphetamines and had signed another
acknowledgment that he had used methamphetamines several days prior to that date.
The acknowledgments were not admitted into evidence during the final hearing;
however, both the CPS supervisor and the CASA supervisor testified that Miguel had
signed the acknowledgment that admitted to methamphetamine use.
Miguel complains that the acknowledgments were not properly before the trial
court because they were not admitted and were not properly the subject of judicial
notice by the trial court. Early in the final hearing, the trial court took judicial notice of
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the record in this cause. We agree with Miguel that while a trial court may properly
take judicial notice of its records, it may not take judicial notice of the truth of the
allegations within those records. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.
App.—Austin 1994, no writ). However, the testimony of the Department supervisor
and the CASA supervisor constitute evidence independent of the trial court's taking of
judicial notice.
After the initial positive test, Miguel was drug tested several times throughout
the pendency of the case and was negative each time for illegal substances. Miguel
denied using methamphetamines and claimed that he did not understand the
acknowledgment because it was in English and he does not read or speak English well.
Miguel did admit to using marijuana; however, although it is illegal, marijuana is not a
controlled substance as defined by chapter 481 of the Health and Safety Code. The trial
court was called upon to determine which testimony it chose to believe, and the trial
court found that the testimony that Miguel did admit to using methamphetamines and
tested positive for methamphetamines was true.
Viewing the evidence with the appropriate standards for legal and factual
sufficiency of the evidence, we find that the evidence was legally and factually
sufficient for the trial court to have found that Miguel used a controlled substance.
Miguel does not challenge the sufficiency of the evidence as to the other elements of
section 161.001(1)(P) relating to endangerment and his failure to complete a court-
ordered substance abuse treatment program. Because the evidence was legally and
In the Interest of R.M.R. and A.L.R., Children Page 7
factually sufficient, we overrule issue three. Because we have found the evidence
sufficient to support one ground of termination, we do not reach issues one or two.
Best Interest of the Children
In his fourth issue, Miguel complains that the evidence was legally and factually
insufficient for the trial court to have found that termination of his parental rights was
in the best interest of the children. In determining whether termination of Miguel's
parental rights was in the children's best interest, we consider the well-established
Holley factors. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). There is no
requirement that all of these factors must be proved as a condition precedent to parental
termination, and the absence of evidence about some factors does not preclude a
factfinder from reasonably forming a strong conviction that termination is in the
children's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence
establishing one of the predicate grounds under section 161.001(1) also may be relevant
to determining the best interest of the children. See In re C.H., 89 S.W.3d at 27-28.
Miguel argues that the only evidence relating to the best interest of the children
was merely "self-serving testimony from the Blevins family" but that he testified to
many of the Holley factors. The Department officially maintained a "neutral" stance
relating to termination of Miguel's parental rights; however, there were several
concerns relating to Miguel's residence in Mexico and family support. Miguel did not
complete his service plan prior to his incarceration and continued to have a relationship
with Crystal even when it was specifically required for him not to do so in order to have
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the children returned to him. Miguel's mother was supportive of the children coming
to Mexico; however, Miguel's father was not. There were questions regarding Miguel's
drinking and Miguel admitted to marijuana use. His plan for child care consisted of
taking a common law wife to care for the children or having his mother or sisters to care
for them.
Miguel was illegally in the United States and had been deported three times at
the time of the final hearing. Although he knew it would be a felony offense for him to
attempt to return, he consistently threatened to return to the United States to take the
children if they were not returned to him. No witness testified in favor of the children
returning to Mexico other than Miguel even if the termination was not granted. The
CASA supervisor testified that she believed that termination of Miguel's parental rights
was in the best interest of the children. The attorney ad litem for the children was
uncertain as to whether termination was in the children's best interest but felt strongly
that the children should remain with the Blevins's regardless of whether Miguel's
parental rights were terminated or not.
Conversely, the Blevins's have taken R.M.R. and A.L.R. into their home and
consider them to be their children. The Blevins's have had two biological children since
R.M.R. and A.L.R. were placed with them and all of the children are very bonded to
each other. The Blevins's have taken both children to speech therapy when needed and
have met the children's medical needs. R.M.R. has been diagnosed with ADHD and
prescribed medication, and there was concern that his treatment would not continue in
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Mexico. When he was placed with the Blevins's, R.M.R. exhibited symptoms of anger
which resolved over time. The Blevins's have also ensured that the children are
receiving some type of instruction in the Spanish language.
When asked, four-year-old A.L.R. would state that she wanted to live with
Miguel; however, A.L.R. had not seen Miguel since she was eleven months old. While
Miguel argues that this is because of Miguel's incarceration due to an immigration hold,
we note that Miguel was arrested for interfering with public duties and was in this
country illegally. There is no one more responsible for Miguel's incarceration than
Miguel himself.
Miguel paid child support very sporadically, both prior to the final hearing in
August of 2011 and in the time leading up to the final hearing. Miguel did not pay
child support even while he was not incarcerated and did not send letters, Christmas or
birthday gifts, or attempt to have a relationship with the children other than telephone
calls arranged by the Department whether he was or was not incarcerated.
On July 1, 2013, Miguel was ordered to take a drug test and to submit the results
to the trial court by July 31, 2013. Miguel did not take a drug test until the week before
the final hearing in early February of 2014.
Miguel testified that he had recently gotten better employment in order to make
more money and had fixed up his residence for the children. He testified that he did
not ever use methamphetamines. Miguel was seeking the return of the children to him
in Mexico so that they would understand their Mexican heritage and to be with their
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family.
Viewing the evidence using the appropriate standards for legal and factual
sufficiency of the evidence, using the Holley standards as a guide, we find that the
evidence was legally and factually sufficient for the trial court to have found that
termination of Miguel's parental rights was in the best interest of R.M.R. and A.L.R. We
overrule issue four.
Section 161.001(1)(O)
In his fifth issue, Miguel argues that the evidence was legally and factually
insufficient for the trial court to have found that he failed to complete a court order that
set forth requirements for him to have the children returned to him. However, the trial
court did not include this predicate act in its final judgment; therefore, it is not
necessary to address this issue.
Ineffective Assistance of Counsel
In his sixth issue, Miguel complains that he did not receive effective assistance of
counsel because he failed to file an answer or assert any affirmative defenses relating to
his inability to pay child support or to visit the children due to his incarceration due to
an immigration hold, failed to respond to the Blevins' request for disclosure, failed to
ensure that his witnesses from the legal department of the Mexican consulate remained
outside of the courtroom after the Rule had been invoked, failed to object to the trial
court taking judicial notice of the file, failed to obtain a business records affidavit or a
sponsoring witness to ensure the admissibility of a drug test taken by Miguel in Mexico
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shortly before the final hearing, failed to obtain a business records affidavit or
sponsoring witness in order to properly admit the home study on Miguel's home in
Mexico, and failed to file a motion to modify temporary orders relating to child support.
The statutory right to counsel in parental rights termination cases includes a
guarantee that counsel will perform effectively. In re B.G., 317 S.W.3d 250, 253-54 (Tex.
2010). In parental rights termination cases, the Texas Supreme Court has adopted the
Strickland test that establishes the standards for effective assistance in criminal cases.
See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). "Under the well-established Strickland test,
proving ineffective assistance of counsel requires a showing that (1) counsel made
errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth
Amendment, and (2) the deficient performance prejudiced the defense, which 'requires
showing that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.'" In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting
M.S., 115 S.W.3d at 545). If both prongs of the Strickland test are not met, an appellant's
ineffective assistance of counsel claim fails. See In re M.S., 115 S.W.3d at 545; see also
Strickland, 466 U.S. at 700.
Under the first prong, the appellant must establish that trial counsel's
performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at
687-88. Trial counsel's conduct constitutes ineffective assistance only if the challenged
conduct is so outrageous that no competent attorney would have engaged in it. See In re
In the Interest of R.M.R. and A.L.R., Children Page 12
M.S., 115 S.W.3d at 545; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Under the second prong, an appellant must establish that there is a reasonable
probability that but for his attorney's deficient performance, the outcome of his case
would have been different. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.
"Reasonable probability" is that which is "sufficient to undermine confidence in the
outcome." Strickland, 466 U.S. at 694; Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.
App. 1998).
In evaluating trial counsel's performance, we must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable, professional assistance
and was motivated by sound trial strategy. In re M.S., 115 S.W.3d at 545. An appellant
bears the burden to overcome the presumption that, under the circumstances, the
challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689.
When the record is silent concerning the reasons for trial counsel's actions, we do not
engage in speculation to find ineffective assistance of counsel. Walker v. Tex. Dep't of
Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App. — Houston [1st Dist.] 2009,
pet. denied) (citing Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. — Houston [1st Dist.]
1996, no pet.)). Accordingly, ineffective assistance claims must be firmly founded in the
record, and the record must affirmatively show the alleged ineffectiveness. Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (quoting Thompson, 9 S.W.3d at 814).
Miguel did not file a motion for new trial, and his trial counsel was not afforded
an opportunity to respond to the allegations of ineffective assistance of counsel. Thus,
In the Interest of R.M.R. and A.L.R., Children Page 13
no explanation as to any potential trial strategy has been given. We have reviewed the
record and, even if we were to assume that Miguel met the first prong of Strickland, we
do not find that Miguel has met the second prong of Strickland, which requires that
there is a reasonable probability that the result would have been different.
The record does not establish that Miguel was denied the opportunity to present
any witnesses or evidence due to his failure to respond to discovery other than the drug
test he took of his own volition the week prior to the final hearing. We have
determined that there was sufficient evidence for the trial court to have found that
Miguel used a controlled substance in early 2010, and none of Miguel's complaints
regarding ineffective assistance would have been relevant to that determination. There
was testimony as to some of the substance of the home study which was not excluded
and that he had taken a drug test the week before trial in February of 2014, rather than
in July of 2013 when it was ordered.
Additionally, Miguel's failure to complete services, his repeated contact with
Crystal even in violation of the mediated settlement agreement, his admitted marijuana
use, and his threats of illegally returning to the United States to take the children, when
taken with the current placement of the children, more than sufficiently support the
trial court's finding that termination of Miguel's parental rights was in the best interest
of the children. None of Miguel's complaints of ineffective assistance were caused by or
affected by this evidence. Because Miguel has not met his burden under Strickland, we
overrule issue six.
In the Interest of R.M.R. and A.L.R., Children Page 14
Exclusion of Witness Testimony
In his seventh issue, Miguel complains that the trial court abused its discretion
by refusing to allow a representative from the Mexican consulate to testify at the final
hearing. At the start of the final hearing, the Blevins's invoked the Rule. See TEX. R.
EVID. 614. Two of Miguel's witnesses appeared at trial after the testimony was
underway, and the trial court asked Miguel's trial counsel if he wanted the witnesses
put under the Rule. Miguel stated that he did not, and the parties all affirmatively
stated that they had no objection to the witnesses remaining in the courtroom.
During Miguel's case-in-chief, he attempted to call one of the representatives to
testify regarding communications between the consulate and the Department and
between the consulate and Miguel relating to a drug test. In addition, Miguel sought to
have the witness testify that Miguel had indeed taken a drug test the week before trial.
Even if we assume without deciding that the trial court erred by excluding the
witness because of a violation of the Rule, in order to constitute reversible error we
must determine that the error probably caused the rendition of an improper judgment.
See TEX. R. APP. P. 44.1(a)(1). Miguel has not set forth any argument that the Mexican
consulate was required to be notified of the drug test and had a duty to notify Miguel of
the trial court's order to take a drug test, or that the witness from the Mexican consulate
would be able to authenticate the drug test results from the prior week's test. We do not
find that the harm in excluding the witness, if any, probably caused the rendition of an
improper judgment. We overrule issue seven.
In the Interest of R.M.R. and A.L.R., Children Page 15
Conclusion
Having found no reversible error, we affirm the judgment of the trial court.1
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 9, 2014
[CV06]
1
In this proceeding the appellant was determined to be indigent and allowed to proceed without the
advance payment of cost. See TEX. R. APP. P. 20.1. The ability to proceed without the advance payment of
cost does not, however, mean that the cost is not owed by an unsuccessful appellant. See In re McGowan,
No. 10-10-00208-CV, 2010 Tex. App. LEXIS 5046 (Tex. App.—Waco June 30, 2010, orig. proceeding) (mem.
op.). Because we have affirmed the judgment of the trial court, and thus ruled against the appellant in
this appeal, the judgment of the Court will award the appellee the appellate cost paid by the appellee, if
any, and all unpaid cost of the appeal will be taxed against the appellant. The Clerk of this Court is
hereby ordered to write off all unpaid filing fees for this proceeding from the accounts receivable of the
Court. The write off, however, in no way eliminates or reduces the fees owed by the appellant pursuant
to the Court’s judgment.
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