Opinion filed September 20, 2018




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-18-00092-CV
                                  __________

                IN THE INTEREST OF J.B.O., A CHILD


                    On Appeal from the 106th District Court
                            Dawson County, Texas
                      Trial Court Cause No. 17-02-19956


                      MEMORANDUM OPINION
      J.B.O.’s father appeals from an order in which the trial court terminated his
parental rights. On appeal, the father presents five issues for review; he challenges
the legal and factual sufficiency of the evidence and the effectiveness of trial
counsel. We affirm.
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). 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
may also constitute evidence that termination is in the child’s best interest. C.J.O.,
325 S.W.3d at 266.
      After a trial de novo, the trial court found that J.B.O.’s father had committed
three of the acts listed in Section 161.001(b)(1)—namely, those located in


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subsections (E), (N), and (Q)—and that termination was in the best interest of the
child. The father challenges each of these findings.
      The record reflects that the Department of Family and Protective Services
became involved with J.B.O. when he tested positive for marihuana and
methamphetamine shortly after he was born. A safety plan was put into place, but
it quickly failed. J.B.O. was removed and placed in foster care. J.B.O.’s mother
voluntarily relinquished her parental rights.
      Appellant, who has an extensive criminal history, was arrested approximately
one month after J.B.O. was born. Appellant was incarcerated during much of the
time that this case was pending below. On February 2, 2018, one month before the
trial de novo, Appellant was sentenced to a term of confinement for four years for
the offense of assault family violence, with previous convictions.
      Appellant did not want his parental rights to be terminated and believed that
he would be a good father to J.B.O. However, the caseworker, the child’s guardian
ad litem, and the child’s attorney ad litem believed that termination of Appellant’s
rights would be in the best interest of J.B.O.         The caseworker testified that
Appellant’s proclivity for criminal conduct endangered J.B.O. Based on information
that the Department had received from J.B.O.’s mother, the caseworker also had
concerns about Appellant’s use of drugs and domestic violence between Appellant
and J.B.O.’s mother.
      J.B.O. had been placed in foster care and remained in the same foster home at
the time of the trial de novo. The Department’s plan for J.B.O. was adoption by that
placement, with whom J.B.O. was very bonded. The foster mother testified that she
loved J.B.O. and “[d]efinitely” wished to adopt him. The record reflects that all of
J.B.O.’s needs, including treatment for a lifelong medical condition, were being met
by the placement family.


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      In Appellant’s third issue, he argues that the evidence is legally and factually
insufficient to support the trial court’s finding as to subsection (Q). To support a
finding under subsection (Q), the record must show that the parent will be
imprisoned or confined and unable to care for the child for at least two years from
the date the termination petition was filed. FAM. § 161.001(b)(1)(Q); In re H.R.M.,
209 S.W.3d 105, 110 (Tex. 2006). Once the Department has established that a
parent’s knowing criminal conduct resulted in his confinement for more than two
years, the burden shifts to the parent to produce some evidence as to how he will
arrange to provide care for the child during that period. Hampton v. Tex. Dep’t of
Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004,
no pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet.
denied); see H.R.M., 209 S.W.3d at 110. When that burden of production is met, the
Department then has the burden of persuasion that the arrangement would not satisfy
the parent’s duty to the child. Hampton, 138 S.W.3d at 567; In re Caballero, 53
S.W.3d at 396.
      Here, the Department established that Appellant had been sentenced to a four-
year term of confinement, during which Appellant would be unable to care for the
child. The Department met its burden to show that Appellant would be imprisoned
or confined and unable to care for J.B.O. for at least two years from the date the
petition was filed. In response, Appellant testified that he had credit for “back time”
and that he was already eligible for parole. Evidence of the availability of parole is
relevant to determine whether the parent will be released within two years. In re
H.R.M., 209 S.W.3d at 109. However, because parole decisions are inherently
speculative and rest entirely within the parole board’s discretion, the introduction of
parole-related evidence does not prevent a factfinder from forming a firm conviction
or belief that the parent will remain incarcerated for at least two years. Id.


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      Appellant also testified that, while he was incarcerated, his mother would take
care of J.B.O. for him. Appellant’s mother, however, had been rejected by the
Department as a caregiver for J.B.O. According to the caseworker, Appellant’s
mother’s home was an inappropriate placement due to her criminal history or her
paramour’s criminal history. The trial court could have formed a firm belief or
conviction that, due to his incarceration, Appellant would be unable to care for
J.B.O. for at least two years from the date of the petition. Thus, the evidence was
legally and factually sufficient to support the trial court’s finding under subsection
(Q). We uphold the trial court’s finding under subsection (Q) and, therefore, need
not address the father’s first and second issues, which relate to the findings under
subsections (E) and (N). See FAM. § 161.001(b)(1); see also TEX. R. APP. P. 47.1.
We overrule Appellant’s third issue.
      With respect to Appellant’s fourth issue, we hold that, based upon the Holley
factors and the evidence in the record, the trial court’s best interest finding was
supported by clear and convincing evidence. See Holley, 544 S.W.2d at 371–72.
The evidence indicated that the instability of Appellant and his continued criminal
conduct were things that would prevent him from meeting both the physical and
emotional needs of J.B.O. now and in the future. Appellant’s conduct, including
domestic violence against a family member, was such as would endanger a child.
We note that, although J.B.O. is not old enough to express his desires, he has bonded
with his foster mother and shows great affection toward her. The foster mother is
able to provide a safe, stable home for J.B.O. and wants to adopt him. We conclude
that 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 J.B.O. We
overrule Appellant fourth issue.
      In his final issue, Appellant contends that he received ineffective assistance
of counsel at trial because trial counsel (1) failed to properly advise Appellant
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regarding the procedure of the case and to ensure that Appellant received due process
through an adversary hearing, (2) failed to object to various evidence admitted at
trial, and (3) failed to call corroborating witnesses or offer corroborating documents
into evidence. A parent in a 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. In re 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).
      Based upon this court’s review of the entire record, we conclude that
Appellant has not shown that trial counsel was ineffective. First, nothing in the
record indicates that trial counsel failed to properly advise Appellant or that
Appellant’s due process rights were violated in any way. Second, as for trial
counsel’s alleged failure to lodge evidentiary objections, we note that none of the
alleged failures relate to the finding made by the trial court under
Section 161.001(b)(1)(Q), which this court has upheld on appeal—that Appellant
had knowingly engaged in criminal conduct that has resulted in conviction of an
offense and confinement or imprisonment and inability to care for the child for not
less than two years from the date of filing the petition. See In re E.M.H., No. 11-16-
00254-CV, 2017 WL 922406, at *3 (Tex. App.—Eastland Mar. 3, 2017, pet. denied)
(mem. op.). Furthermore, we cannot hold that trial counsel’s failure to lodge the
various evidentiary objections pointed out in Appellant’s brief constituted deficient
performance that was so serious as to deny Appellant a fair and reliable trial. Third,
the record reflects that trial counsel cross-examined the Department’s witnesses and
also called witnesses to testify on Appellant’s behalf. Appellant has not shown that
his trial counsel’s failure to call other witnesses or offer documentary evidence fell
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outside the range of reasonably professional assistance. Nothing in the record shows
that these other witnesses were available to testify or what their testimony would
have been. Appellant has failed to satisfy the Strickland test. Thus, we overrule his
fifth issue on appeal.
        We affirm the order of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


September 20, 2018
Panel consists of: Bailey, C.J.;
Gray, C.J., 10th Court of Appeals 1;
and Wright, S.C.J.2

Willson, J., not participating.




        1
         Tom Gray, Chief Justice, Court of Appeals, 10th District of Texas at Waco, sitting by assignment
to the 11th Court of Appeals.
        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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