Opinion filed April 30, 2020




                                        In The


          Eleventh Court of Appeals
                                    __________

                               No. 11-19-00330-CV
                                   __________

          IN THE INTEREST OF E.F.P. AND A.R., CHILDREN


                      On Appeal from the 446th District Court
                               Ector County, Texas
                        Trial Court Cause No. E-18-004-PC


                       MEMORAND UM OPI NI ON
       This is an appeal from an order in which the trial court, after a de novo hearing,
terminated the parental rights of the mother of E.F.P. and A.R. The mother filed a
notice of appeal, and she presents three issues for this court’s review. First, she
asserts that her trial counsel was ineffective for failing to lodge numerous objections
to the evidence. Then, in the next two issues, she challenges the legal and factual
sufficiency of the evidence to support the trial court’s best interest finding. We
affirm.
                        Termination Standards and Findings
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2019). To determine if
the evidence is legally sufficient in a parental termination case, we review all of the
evidence in the light most favorable to the finding and determine whether a rational
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 (Tex. 2005). To determine if the evidence is
factually sufficient, we give due deference to the finding and determine whether, on
the entire record, a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has            committed     one of     the   acts   listed   in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
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may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
        Here, the trial court found that Appellant committed three of the acts listed in
Section 161.001(b)(1)—those found in subsections (D), (E), and (O). Specifically,
the trial court found that Appellant had knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the children’s
physical or emotional well-being; that Appellant had engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered
the children’s physical or emotional well-being; and that Appellant had failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of the children, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of their removal from Appellant for abuse or neglect.
The trial court also found that termination of Appellant’s parental rights would be in
the best interest of the children. See FAM. § 161.001(b)(2).
                                         Background Facts
        The record reflects that Appellant had five children when the Department
received the intake in this case. 1 The oldest two did not live with Appellant; they
had been living with their maternal grandmother for several years. The other three
children—eleven-year-old A.G., three-year-old E.F.P., and six-week-old A.R.—
lived with Appellant and R.R. (A.R.’s father). The intake in this case originally
stemmed from Appellant’s failure, during a two-year period, to take A.G. to follow-
up medical care.          A.G. had a serious medical condition called Li-Fraumeni
Syndrome, which predisposed her to cancer, and she had previously had renal cancer.


        1
           We note that Appellant’s sixth child was born while this case was pending below. As of the date
of trial, the baby remained in Appellant’s care.

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Although in remission when this case was initiated, A.G.’s cancer returned, and she
passed away while the case was pending below.
      During its involvement with the family, the Department was concerned about
domestic violence between Appellant and R.R., drug and alcohol abuse, and
neglectful supervision of the children. A.G. claimed that she had been physically
abused by Appellant, that she had been sexually abused by one of Appellant’s
previous boyfriends, and that Appellant and R.R. drank a lot and drove under the
influence with the children in the car. E.F.P. volunteered early in the case that
Appellant and R.R. “drank all the time” and that E.F.P. “hate[d]” R.R. because R.R.
“always . . . beat up” Appellant. E.F.P. subsequently made similar statements to his
counselor. In one of the traumatic incidents that E.F.P. told his counselor about,
Appellant was the aggressor: E.F.P. said that he saw Appellant “throw [R.R.] on the
floor.” E.F.P. recalled being scared and crying upon witnessing the domestic
violence between Appellant and R.R. By the time of trial, E.F.P. no longer wanted
to talk about Appellant, and he prayed every night: “[P]lease don’t let me go back,
please, let me stay.”
      According to a Department employee, Appellant admitted that she drank
alcohol daily and that she and R.R. engaged in domestic violence. At trial, however,
Appellant denied that she had an alcohol problem and said that she and R.R. had
never engaged in any physical violence. Appellant also denied that she used drugs—
despite having tested positive twice for cocaine. Appellant completed most of the
services in her service plan, but whether she did so successfully was a source of
contention at trial. The dispute related to Appellant’s failure to disclose to her service
providers that she continued to be in a relationship with R.R. Furthermore, Appellant
missed some of the scheduled visits with her children, and the Department was not
able to verify her employment or housing situation.


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       After the voluntary safety plan failed, the children were removed and placed
with family members. E.F.P. and A.R. were ultimately placed with fictive kin (who
were friends of the family) because the children’s maternal grandmother was
overwhelmed and unable to care for all four of the children that had been placed with
her. Over a year later, E.F.P. and A.R. remained in the home of the fictive kin and
were doing very well there. The fictive kin provided E.F.P. and A.R. with a safe and
appropriate home. A strong bond had developed between the fictive kin and both
children. The fictive kin wished to adopt E.F.P. and A.R., who at the time of the trial
de novo were five years old and two years old, respectively.
       The caseworker testified that termination of Appellant’s parental rights would
be in the children’s best interest. The children’s attorney ad litem believed that
termination of the parents’ rights would be in the best interest of E.F.P. and A.R. The
children’s guardian ad litem, a CASA volunteer, agreed. The fictive kin did not
believe that it would be in the children’s best interest to return them to Appellant.
E.F.P.’s counselor believed that it would be in E.F.P.’s best interest to remain with
the fictive kin and to not be reunited with Appellant. The Department’s goal for
E.F.P. and A.R. was termination of the parents’ parental rights and adoption by the
fictive kin.
                                       Analysis
       In her first issue, Appellant contends that she did not receive effective
assistance of counsel at trial because counsel failed to object to hearsay statements.
Appellant specifically complains of ninety-eight separate instances from the
hearings below. She divides these ninety-eight instances into four categories:
hearsay statements of A.G., E.F.P., and A.R.; hearsay statements about the results of
Appellant’s drug tests; hearsay statements of “various third parties”; and the
continuous incorporation of the above-mentioned hearsay statements throughout the
hearings below.
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      A parent that has a statutory right to counsel in a parental termination case has
the right to “effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). To
prevail on a claim of ineffective assistance of counsel, a parent must generally show
(1) that trial counsel’s performance was deficient and (2) that the deficient
performance was so serious as to deny the parent a fair and reliable trial. J.O.A., 283
S.W.3d 336, 341–42 (Tex. 2009) (following the two-pronged analysis of
Strickland v. Washington, 466 U.S. 668 (1984)); M.S., 115 S.W.3d at 545 (same). In
the present case, Appellant has failed to satisfy the Strickland test.
      For Appellant to successfully argue on appeal that her trial counsel’s failures
to object amounted to ineffective assistance, Appellant must show that the trial court
would have erred by overruling such objections. See Vaughn v. State, 931 S.W.2d
564, 566 (Tex. Crim. App. 1996). Most of the statements about which Appellant
complains on appeal either were not hearsay, see TEX. R. EVID. 801(e)(2) (opposing
party’s statement), or fell into an exception to the hearsay rule, see FAM. § 104.006
(hearsay statement of child abuse victim); TEX. R. EVID. 803(3) (then-existing
mental, emotional, or physical condition), 803(4) (statement made for medical
diagnosis or treatment).     Counsel was not ineffective for failing to object to
admissible evidence.
      One notable exception to the evidence being admissible was the caseworker’s
testimony that she was told by service providers that, even though Appellant had
completed the service, she had not successfully completed the service because she
had not been honest about her continued relationship with R.R. Trial counsel had
previously objected when another employee of the Department attempted to testify
regarding statements made to her by a service provider about Appellant’s
performance in that service. Counsel’s hearsay objection was sustained at that time.
However, trial counsel subsequently failed to object to similar evidence. The record
is silent as to counsel’s rationale. However, we believe that, based on the record
                                           6
before us, trial counsel’s subsequent failure to object may have been trial strategy,
such as an attempt to impeach the caseworker or show her bias. Counsel was keenly
aware that the caseworker’s testimony contained hearsay; counsel pointed that fact
out in his questioning of the caseworker: “And then that makes that unsuccessful
completion hearsay, because it’s something somebody told you outside of court, but
we don’t have any proof of that, right?” Trial counsel was able to show that the
caseworker had no e-mails or other documentary support for her assertions despite
having testified that she had received e-mails from the service providers regarding
Appellant’s unsuccessfulness in the services.
      Despite the hearsay, however, the caseworker testified as to her own opinion
that, even though Appellant had completed several of her services, she had not
successfully done so because she had hidden her relationship with R.R. and because
she had not demonstrated an ability to apply what she had learned in those services.
Appellant admitted during the hearing before the associate judge that, although she
had continued to be in a relationship with R.R., she could not recall informing her
service providers of that fact.
      Another notable exception to the evidence being admissible was the
caseworker’s testimony that Appellant tested positive twice for cocaine.            The
caseworker also testified that Appellant tested negative on one occasion. Appellant
testified the she did not do drugs and that the two positive results were false positives
as shown from the negative results on the re-tests. Regardless of whether counsel
had objected to the testimony about the positive results of the drug tests, other
evidence was properly admitted regarding Appellant’s refusal or failure to submit to
random drug testing on at least twelve occasions and Appellant’s abuse of alcohol.
      On the record before us, we cannot hold that trial counsel rendered deficient
performance. Thus, Appellant has not met the first prong of Strickland. See M.S.,
115 S.W.3d at 545–46. Additionally, we cannot hold that the result of the proceeding
                                           7
would have been different but for trial counsel’s alleged deficiencies; Appellant has
failed to establish that she was denied a reliable trial and, thus, has not met the second
prong of Strickland. See id. at 545. Accordingly, we overrule Appellant’s first issue
on appeal.
      In her second and third issues, Appellant challenges the legal and factual
sufficiency of the evidence to support the finding that termination of her parental
rights would be in the best interest of the children. Appellant specifically points to
the fact that the Department had not removed Appellant’s sixth child from
Appellant’s care—a child that was born to Appellant and R.R. while this case was
pending below. However, the Department’s failure to remove that baby from
Appellant’s care does not control any findings related to the best interest of E.F.P.
and A.R.
      We note that the trier of fact is the sole judge of the credibility of the witnesses
at trial and that we are not at liberty to disturb the determinations of the trier of fact
as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573. We
hold that, based on clear and convincing evidence presented at trial and the Holley
factors, the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in the best interest of both
children. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it
relates to the desires of the children, the emotional and physical needs of the children
now and in the future, the emotional and physical danger to the children now and in
the future, the parental abilities of Appellant and of the fictive kin, the plans for the
children by the Department, Appellant’s inability to provide a safe environment for
the children, the stability of the fictive kin’s home, Appellant’s abuse of alcohol,
Appellant’s failure to submit to numerous drug tests, and the existence of domestic
violence between Appellant and R.R., we hold that the evidence is legally and
factually sufficient to support the finding that termination of Appellant’s parental
                                            8
rights is in the best interest of both children. See id. We overrule Appellant’s second
and third issues.
                                          This Court’s Ruling
        We affirm the trial court’s order of termination.




                                                           KEITH STRETCHER
                                                           JUSTICE


April 30, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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