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

Affirm and Opinion Filed September 2, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00426-CV
IN THE INTEREST OF V.E.B. AND C.B., CHILDREN
On Appeal from the 397th Judicial District Court
Grayson County, Texas
Trial Court Cause No. FA-21-0463
MEMORANDUM OPINION
Before Justices Myers, Carlyle, and Goldstein
Opinion by Justice Myers
The children’s Mother appeals the trial court’s judgment terminating the
parent–child relationship between her and the children. Mother brings two issues on
appeal contending (1) her appointed counsel was ineffective for failing to request an
extension of the mandatory dismissal date under section 263.401 of the Family
Code; and (2) the evidence was insufficient to prove by clear and convincing
evidence that termination of the parent–child relationship between Mother and her
children was in the children’s best interest. We affirm the trial court’s judgment.
BACKGROUND
This case began in Tarrant County as one for neglectful supervision by Mother
of her two young children, V. and C. The Tarrant County branch of the Texas
Department of Family and Protective Services had a safety plan requiring that
Mother not be left alone with the children and that the maternal grandmother
supervise Mother’s contact with the children. The Tarrant County report showed
the Department had concerns about Mother’s mental health issues. The case was
transferred to Grayson County on February 12, 2021.
In April 2021, the Department received a report that Mother was doing drugs
and leaving the children alone for long periods of time. There was also a report of
an incident where Mother hit Grandmother and Grandmother’s friend who was at
the house. Mother then left without telling Grandmother, leaving the children alone.
Grandmother told the Department she was not sure she could keep the children safe.
The Department removed the children and placed them in foster care and filed suit
to terminate Mother’s parental rights.
On June 3, 2021, the Department filed a court-ordered service plan for Mother
to complete. Mother did not begin any of the services. Mother refused to take most
of the random drug tests. Mother took one hair strand test, and she tested positive
for methamphetamine. Mother did not participate in any of the scheduled visitations
with the children.
When the case began, Mother was on parole for possession of
methamphetamine. She had been sentenced to sixteen years’ imprisonment and had
served four years before she was released on parole. Her conditions of parole
included wearing an ankle monitor, complying with the electronic monitoring
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program, and obtaining mental-health treatment. Mother did not obtain any mental-
health treatment. The parole office also required Mother to take drug tests. Mother
tested positive for methamphetamine in April and May 2021.
Mother was arrested on June 21, 2021, for a parole violation. She was
transferred to an intermediate sanction facility on December 2, 2021, and she was
scheduled to be released sixty days after the trial. The trial was on March 28, 2022,
so Mother’s release date was scheduled to be on or about May 27, 2022. However,
her parole officer testified she would not be released if she did not have a plan of
where she would live.
At the trial, the Department’s caseworkers testified about Mother’s failed drug
tests, her lack of cooperation with the Department, her failure to begin any of the
services before being arrested, and her failure to complete any of the service
materials the Department sent her while she was incarcerated for the parole
violation. They also testified that V., who was about two years old when removed
from Mother’s and Grandmother’s care, required speech therapy. They also testified
that the children were thriving in their foster home. V. now speaks well thanks to
the speech therapy and the foster parents’ care. The foster parents plan to be the
“forever home” for the children.
After the parties rested and closed, the trial court found the Department had
proved by clear and convincing evidence the facts of section 161.001(b)(1)(D), (E),
(N), (O), and (P), and that termination of the parent–child relationship between
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Mother and the children was in the best interest of the children. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E), (N), (O), (P); id. § 161.001(b)(2).
SUFFICIENCY OF THE EVIDENCE
In her second issue, Mother contends the evidence is insufficient to support
the trial court’s determination that termination of the parent–child relationship
between Mother and the children was in the best interest of the children. See id.
§ 161.001(b)(2).
Because the fundamental liberty interest of parents in the care, custody, and
control of their children is of constitutional dimensions, involuntary parental
terminations must be strictly scrutinized. Troxel v. Granville, 530 U.S. 57, 65–66
(2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In such cases, due process
requires the petitioner to justify termination by clear and convincing evidence. FAM.
§ 161.001(b); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). “Clear and convincing
evidence” is that “measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” FAM. § 101.007; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per
curiam); In re N.T., 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.).
Our standard of review reflects the elevated burden at trial. In re A.B., 437
S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex. App.—Dallas
2013, pet. denied). Under both legal and factual sufficiency standards, we consider
all the evidence, defer to the factfinder’s credibility determinations, and determine
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whether the factfinder could reasonably form a firm belief or conviction that the
grounds for termination were proven. In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.
2002); In re N.T., 474 S.W.3d at 475. “The distinction between legal and factual
sufficiency lies in the extent to which disputed evidence contrary to a finding may
be considered.” In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
In conducting a legal sufficiency review of an order terminating parental
rights, the reviewing court cannot ignore undisputed evidence contrary to the finding
but must otherwise assume the factfinder resolved disputed facts in favor of the
finding. Id. We “consider all the evidence, not just that which favors the verdict,”
and we assume the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. In re N.T., 474 S.W.3d at 475. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a
termination finding, we ask whether, in light of the entire record, the evidence is
such that a factfinder could reasonably form a firm conviction about the truth of the
allegations against the parent. Id.; In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.—
Dallas 2014, no pet.). We must consider whether the disputed evidence is such that
a reasonable factfinder could not have reconciled that disputed evidence in favor of
its finding. In re N.T., 474 S.W.3d at 475. If the disputed evidence is so significant
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that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient. Id.
The supreme court has identified a nonexclusive list of factors that may be
relevant to a best-interest determination: (1) the child’s desires, (2) the child’s
current and future emotional and physical needs, (3) current and future emotional
and physical dangers to the child, (4) the parental abilities of those seeking custody,
(5) the programs available to help those individuals promote the child’s best interest,
(6) those individuals’ plans for the child, (7) the home’s or proposed placement’s
stability, (8) the parent’s acts or omissions indicating that the existing parent–child
relationship is not a proper one, and (9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The legislature has also set
out a similar list of factors for determining whether the child’s parents are willing
and able to provide the child with a safe environment. See FAM. § 263.307(b).1
1
The factors under section 263.307(b) are:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and
intervention by the department;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the
child’s parents, other family members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others
who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others who have
access to the child’s home;
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The Holley factors and the statutory factors focus on the best interest of the
child, not the best interest of the parent, and are not exhaustive. Dupree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ); see In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). A best interest finding need not
be supported by evidence of every Holley factor. See In re C.H., 89 S.W.3d at 27.
Although there is a strong presumption that maintaining the parent–child
relationship serves the child’s best interest, there is also a presumption that promptly
and permanently placing the child in a safe environment is in the child’s best interest.
In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied); see also
FAM. § 153.131(b).
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s close
supervision;
(11) the willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including providing
the child and other children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child’s physical and
psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be
directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and
friends is available to the child.
FAM. § 263.307(b).
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The children, at the time of trial, were three years old and fifteen months old.
They could not care for themselves and were dependent on others for their physical
and emotional health and safety. The Department was contacted because of the
children being neglected, including Mother’s using drugs and leaving the children
alone for long periods of time. Mother tested positive for methamphetamine three
times, and she refused to be tested on other occasions. Mother testified she had been
diagnosed as bipolar and depressed. Mother testified that while she had been
incarcerated, she had received injections to help with her bipolar symptoms.
However, she also testified that before she was arrested, she had missed some mental
health care appointments because she did not have transportation. Mother’s parole
officer testified that she was unaware of Mother receiving any mental health
treatment while incarcerated.
Mother also failed to take a required parenting program and other services.
When Mother was incarcerated, the Department sent her packets for her to complete
the services while incarcerated. Mother was required to read through the
information in the packets, complete the assignments, and mail them to the
Department. Mother did not mail any of the assignments to the Department.
In the past, Mother showed an inability to provide the children with a safe,
supportive home environment. Mother left the children alone for long periods of
time. Mother would yell at V. for having a dirty diaper and would tell her she was
disgusting. Mother testified she “got in a fight” with Grandmother, who was
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supposed to be monitoring Mother’s possession of the children, but Mother denied
hitting Grandmother. Grandmother told the Department “it might be difficult for her
to ensure the children’s safety going forward.” Mother’s parole officer testified that
Grandmother is uncertain if she will let Mother live with her after Mother is released.
An investigator and a caseworker for the Department testified they did not think the
children could be kept safe in the care of their Mother.
Mother used methamphetamine. She served four years of a sixteen-year
sentence before she had the children. She continued to use methamphetamine after
she was released. She tested positive for methamphetamine in March and April
2021. Despite her history of drug use, Mother questioned why she needed to have a
substance-abuse evaluation, and she did not undergo the evaluation. Despite not
undergoing any substance-abuse evaluation or therapy, Mother testified she believed
she had solved her drug problem while incarcerated, and she stated she no longer
used drugs.2 She testified that in the past she had felt overwhelmed because she had
just moved and had to unpack boxes and care for the children while her mother had
2
Mother asserts on appeal that she completed substance-abuse treatment while incarcerated in the
intermediate sanction facility for the parole violation. However, no evidence was admitted at trial showing
the intermediate sanction facility provided substance-abuse treatment. Mother’s parole officer testified that
the facility did not provide substance-abuse treatment.
Mother also asserts in her brief that she began some of the services before she was arrested and
incarcerated on June 21, 2021, citing reports in the clerk’s record that were not admitted into evidence at
trial. We have reviewed the reports Mother cites, and they show Mother had not begun any of the services
before she was incarcerated.
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to be at work sometimes. She stated she now feels better that she is not on drugs
and believes she is capable of caring for the children.
Mother testified her plan when she is released from incarceration is to move
back in with her mother, get a job at the nearby Dollar General store until she can
afford a car, and then get a better job. Mother testified she does not know what she
will do if Grandmother does not allow her to move in with her. The caseworker
testified Mother does not have stable housing.
The Department presented evidence that its plan for the children is to leave
them with their current foster family, which the Department hopes will be the
children’s forever home. That foster home is “a long term adoption motivated
home.” The children, who are sisters, have bonded with each other and with the
foster parents. V., the older child, required speech therapy. When V. came into the
Department’s care, she could hardly talk and mostly mumbled. The foster family
worked with V. on her speech therapy, and now she talks “very well.” The
Department’s caseworker testified she has no concerns about the children remaining
in their current placement “as their potential forever home.”
From this evidence the trial court could conclude that due to her largely
untreated mental-health and substance-abuse issues, Mother is unable to properly
care for the children and provide them a safe environment. Mother’s past care of the
children showed an inability to properly care for them, and Mother failed to take
required parenting courses. She did not demonstrate nurturing for the children but
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in fact did the opposite by telling V. she was disgusting for having soiled her diaper.
She did not demonstrate an understanding of the children’s needs but instead left
them alone for long periods of time. Mother testified she wanted the children back
in her care, but she did not explain how she would get the mental-health and
substance-abuse treatment that she needed to be able to properly care for the
children. The children are now in a safe, stable environment in their foster-family
placement where they are well cared for.
Mother argues on appeal that if the trial had been delayed for six months, then
Mother would have been released from incarceration and “would have had ample
time to complete her court-ordered services and begin having regular and productive
visits with her children toward re-establishing a relationship with them in their best
interest.” However, Mother did not begin the services before she was incarcerated.
She explained she was not able to get to the services because she did not have a car.
Mother did not explain how she would be able to get to the services or visitation
with the children after she is released. Her testimony shows she will not have access
to a car after her release because she testified she was going to work at a nearby store
until she could afford a car. Thus, it is not clear how Mother will be able to complete
the services between her release and a later trial date.
Applying the Holley and statutory factors, the evidence was legally and
factually sufficient for the trial court to find by clear and convincing evidence that
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termination of the parent–child relationship between Mother and the children was in
the children’s best interest.
We overrule Mother’s second issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her first issue, Mother contends she did not receive effective assistance of
counsel because her attorney did not request an extension of the mandatory dismissal
date and of the trial pursuant to section 263.401(b) of the Family Code. See FAM. §
263.401(b).
An indigent parent has a statutory right to appointed counsel in a
parental-rights termination case. Id. § 107.013(a)(1); In re M.S., 115 S.W.3d 534,
544 (Tex. 2003). The right “embodies the right to effective counsel.” In re M.S.,
115 S.W.3d at 544. We evaluate an ineffective assistance of counsel claim under
the standard set out in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 544–
45. A parent claiming ineffective assistance must show both that counsel’s
performance was deficient and the deficient performance prejudiced the case. Id. at
545.
To determine if counsel’s performance is deficient, we consider all the
circumstances surrounding a particular case and focus primarily on whether counsel
performed in a reasonably effective manner. Id. (citing Strickland, 466 U.S. at 687);
see also In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). “[C]ounsel’s performance
falls below acceptable levels of performance when the ‘representation is so grossly
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deficient as to render proceedings fundamentally unfair.’” In re M.S., 115 S.W.3d
at 545 (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). We
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance. Id. Conduct constitutes ineffective assistance of
counsel only if it is “so outrageous that no competent attorney would have engaged
in it.” Id.To show counsel’s performance prejudiced a parent’s case, the parent must
show a reasonable probability that, but for counsel’s error, the “result of the
proceeding would have been different.” In re M.S., 115 S.W.3d at 550. “A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome of the proceeding.” P.W. v. Dep’t of Family & Protective Servs., 403
S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.).
The record must affirmatively support a claim that trial counsel provided
ineffective assistance. In re L.G.R., 498 S.W.3d 195, 209 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied). When the record is silent as to the reasons for trial
counsel’s actions, we may not engage in speculation to find ineffective assistance of
counsel. P.W., 403 S.W.3d at 476.
Under section 263.401, subsection (a) provides that the trial court’s
jurisdiction over the Department’s suit is terminated on the first Monday following
the first anniversary of the Department’s appointment as temporary managing
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conservator. See FAM. § 263.401(a). If the trial does not commence on or before
that date, then the suit is automatically dismissed. Id.
Subsection (b) provides that the dismissal date may be extended up to 180
days if the trial court finds “that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing conservator
is in the best interest of the child.” Id. § 263.401(b).
The trial court appointed the Department temporary managing conservator on
April 12, 2021. The original dismissal date was the first Monday following one year
after April 12, 2021, which was April 18, 2022. The trial was on March 28, 2022.
If the trial court had made the findings necessary for extension of the dismissal date,
the trial of the case could have been delayed up to October 15, 2022. Mother and
her parole officer testified Mother was likely to be released sixty days after the trial,
which would have been May 27, 2022. Mother argues she could then have
completed the required services before a trial in October, retain her parental rights,
and regain custody of her children.
There is no evidence of the reasons why Mother’s attorney did not request an
extension of the dismissal date. Mother did not file a motion for new trial seeking
the testimony of her attorney. Mother had the burden of showing no competent
attorney in this situation would have failed to request an extension of the dismissal
date. See In re M.S., 115 S.W.3d at 545. We conclude she has made no such
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showing. Nor has Mother shown a reasonable probability that but for counsel’s
failure to request an extension of the dismissal date, the outcome of this case would
have been different, i.e., that the trial court would have granted the motion to extend
the dismissal date and that the parent–child relationship between Mother and the
children would not have been terminated. See In re M.S., 115 S.W.3d at 550.
Concerning whether the trial court would have granted the motion to extend
the dismissal date, Mother points out that paragraph (b-2) of section 263.401
provides:
When considering under Subsection (b) whether to find that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department for a case in
which the court orders a parent to complete a substance abuse treatment
program, the court shall consider whether the parent made a good faith
effort to successfully complete the program.
Id. § 263.401(b-2). Mother asserts on appeal that “she did in fact make ‘a good faith
effort to successfully complete” a substance-abuse program. We disagree. The
record shows Mother did not receive any substance-abuse treatment before she was
arrested on her parole violation, and her parole officer testified she did not receive
substance-abuse treatment while incarcerated. The record does not show a
reasonable probability that the trial court would have found Mother made a
good-faith effort to successfully complete a substance-abuse treatment program, or
that the trial court would otherwise have found extraordinary circumstances in this
case.
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Nor does the record show a reasonable probability that Mother’s parental
rights would not be terminated. The record does not show Mother would have
engaged in and completed her services following her release and before the dismissal
date. Mother testified she believed she had solved her drug problem while
incarcerated. She testified she did not engage in the court-ordered services before
her arrest because she lacked transportation. Mother’s testimony shows she will not
have access to a vehicle for transportation until she can save enough money from
working at Dollar General to purchase a vehicle. There is no evidence in the record
that Dollar General would hire her nor of how long it would take her to purchase a
car. Thus, aside from Mother’s statement that she planned to complete services after
her release, there is no evidence she would be able to do that before trial following
an extension of the dismissal date.
We conclude Mother has not shown she received ineffective assistance of
counsel at trial because her attorney did not request an extension of the dismissal
date and of the trial. We overrule Mother’s first issue.
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers//
220426f.p05 LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF V.E.B. AND On Appeal from the 397th Judicial
C.B., CHILDREN District Court, Grayson County,
Texas
No. 05-22-00426-CV Trial Court Cause No. FA-21-0463.
Opinion delivered by Justice Myers.
Justices Carlyle and Goldstein
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 2nd day of September, 2022.
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