Opinion filed July 17, 2018




                                               In The


            Eleventh Court of Appeals
                                           __________

                                     No. 11-18-00010-CV
                                         __________

      IN THE INTEREST OF Z.A., A.A., AND R.L., CHILDREN


                          On Appeal from the 35th District Court
                                  Brown County, Texas
                           Trial Court Cause No. CV 16-09-346


                          MEMORANDUM OPINION
        This is an appeal from an order in which the trial court terminated the parental
rights of the mother of Z.A., A.A., and R.L. and also terminated the parental rights
of the father of R.L.1 Both of these parents appeal. On appeal, the mother presents
two issues for review and the father presents four. We affirm.
                                         I. Issues Presented
        The mother asserts in her first issue that her constitutional rights were violated
because she did not have the opportunity to complete her family service plan. In her


        1
        We note that the father of Z.A. and A.A. is deceased and was not a party to the proceedings below.
Therefore, for ease of reference, we refer to the father of R.L. as “the father” in this opinion.
second issue, she contends that she received ineffective assistance of counsel. In all
four of the father’s issues, he challenges the legal and factual sufficiency of the
evidence in support of the trial court’s findings.
                               II. Termination Findings
      The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). 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. Id.
      In this case, the trial court found that the mother had committed four of the
acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), (P), and
(Q). Specifically, the trial court found that the mother 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 the mother 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, that the
mother had used a controlled substance in a manner that endangered the children and
either failed to complete a substance abuse treatment program or abused drugs after
completing such a program, and that the mother knowingly engaged in criminal
conduct that resulted in her conviction and confinement and inability to care for the
children for not less than two years from the date of filing the petition.
      The trial court found that the father had 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 the father had knowingly placed or knowingly allowed his
child to remain in conditions or surroundings that endangered the child’s physical or
emotional well-being; that the father had engaged in conduct or knowingly placed
his child with persons who engaged in conduct that endangered the child’s physical
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or emotional well-being; and that the father had failed to comply with the provisions
of a court order that specifically established the actions necessary for him to obtain
the return of his child, 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 the child’s removal from the parent for abuse or neglect. The trial court
also found, pursuant to Section 161.001(b)(2), that termination of both parents’
parental rights would be in the best interest of the children.
                           III. Analysis of Mother’s Issues
      In her first issue, the mother asserts that her rights to due process and equal
protection were violated when the trial court terminated her parental rights without
giving her an opportunity to complete her family service plan. The record reflects
that, upon removal, the trial court ordered each parent to complete various services
in order to obtain the return of the children. The mother, who had an extensive
criminal history, did not complete her service plan because she was incarcerated.
      The trial court did not find that the mother 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. See FAM. § 161.001(b)(1)(O). Because the mother’s
parental rights were not terminated based upon her failure to complete her service
plan, any failure on the part of the trial court to give the mother more time to
complete her service plan was not a violation of the mother’s rights to due process
or equal protection. We overrule the mother’s first issue.
      In her second issue, the mother contends that she received ineffective
assistance of counsel at trial because trial counsel (1) failed to properly prepare for
trial, (2) compelled the mother—by duress and coercion—to waive her right to a
jury, and (3) failed to assist her in working her service plan. We have reviewed the
record and have found nothing therein to support the allegations made by the mother
with respect to the conduct of trial counsel. First, nothing in the record indicates that
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trial counsel was unprepared for trial. Second, the record reflects that, after a jury
was selected, seated, and sworn, the mother voluntarily waived her right to a jury
trial. Third, the mother testified that the reason she did not complete her service plan
was that she was incarcerated while this case was pending.
      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). In the present case, the mother has failed to satisfy either
prong of the Strickland test. Thus, we overrule her second issue on appeal.
                               IV. Analysis of Father’s Issues
      In four issues, the father challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings. In his first and second issues, he
appears to challenge the findings made by the trial court pursuant to subsections (D)
and (E) of Section 161.001(b)(1). In the third issue, he challenges the finding made
pursuant to subsection (O). In his final issue, he challenges the best interest finding.
      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).


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      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 illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
      The record in this case reflects that the Department had been involved with
both parents prior to the removal of the children in this cause. The mother had an
extensive history that involved both drugs and crime. She testified that the father
was aware that she was “a recovering addict,” and the father testified that he knew
the mother had a history of methamphetamine use. Despite the father’s awareness
that the mother continued to use drugs, he left R.L. with the mother and moved away
when R.L. was an infant. The mother was pregnant again when the father moved
out. The father testified that he had had no contact with R.L. from May, when the
father moved out and left the mother, until September, when the father was notified
that the mother was in the hospital. The mother abused methamphetamine while
pregnant, and the couple’s baby died at the hospital shortly after birth.            An
investigator for the Department went to the hospital “[b]ecause a baby had passed
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away due to the mother’s drug use.” After the investigator arrived at the hospital,
the father left with R.L. and immediately thereafter returned R.L. to the mother and
the mother’s grandmother.
       The father testified that he initially worked his service plan in an attempt to
get R.L. back and that he was doing well with visitation and his service plan until
the “incident” with his girlfriend. The “incident” to which the father referred was a
physical altercation that occurred while this parental termination case was pending.
As a result of that incident, the father was arrested for assault family violence against
his girlfriend.
       The father only partially complied with the terms of his service plan. He
began, but did not complete, individual counseling. He failed to maintain stable
housing. And, while this case was pending, he tested positive for marihuana and
engaged in domestic violence. At the time of the final hearing, the father testified
that he was not yet ready to take custody of R.L.
       We hold that the evidence at trial supported the trial court’s finding under
subsection (O). There was clear and convincing evidence that the father failed to
comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of his child.
       Furthermore, the record reflects that, at the time of the final hearing, R.L. had
been in the Department’s care for well over nine months and that he had been
removed from the parents’ care due to abuse or neglect. The Texas Supreme Court
has held that the language “abuse or neglect of the child” as used in subsection (O)
“necessarily includes the risks or threats of the environment in which the child is
placed.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). In E.C.R., the court
determined that “placing the child’s physical health or safety at substantial risk” is
sufficient to support a finding of “abuse or neglect.” Id. at 240. Evidence of the
mother’s use of methamphetamine—and the father’s awareness of such drug use—
                                           6
while R.L. was in the mother’s care and while the mother was pregnant with another
child constituted sufficient evidence from which the trial court could have
determined by clear and convincing evidence that R.L. had been removed because
of a substantial risk of abuse or neglect. We uphold the trial court’s finding under
subsection (O) and, therefore, need not address the father’s first and second issues,
which relate to the findings under subsections (D) and (E). See TEX. R. APP. P. 47.1.
We overrule the father’s third issue.
      In the father’s fourth issue, he challenges the legal and factual sufficiency of
the evidence to support the trial court’s best interest finding. Although the father did
not want his parental rights to be terminated, the trial court found that R.L.’s best
interest would be served by termination.
      The record reflects that the father had a history of drug use, that he left R.L.
with someone whom he knew used methamphetamine, that he did not have stable
housing, and that he was not ready to take custody of R.L. at the time of the final
hearing. The child’s guardian ad litem and the Department’s conservatorship
caseworker both believed that termination of the father’s parental rights would be in
R.L.’s best interest.
      The record also reflects that, at the time of the final hearing, R.L. was placed
with his paternal grandmother and her husband in an appropriate home. They are
protective of R.L., and they have been approved and certified to adopt the father’s
two children from a previous relationship. Based upon the evidence presented in
this case, we defer to the trial court’s findings. See C.H., 89 S.W.3d at 27.
      We hold that, based on the evidence presented at trial and the Holley factors,
the trier of fact could reasonably have formed a firm belief or conviction that
termination of the father’s parental rights would be in the best interest of his child.
See Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to the
emotional and physical needs of R.L. now and in the future, the emotional and
                                           7
physical danger to R.L. now and in the future, the parental abilities of the father, the
plans for the child by the Department, the instability of the father’s home, the father’s
use of drugs, and the stability of the child’s placement, we hold that the evidence is
sufficient to support the finding that termination of the father’s parental rights is in
the best interest of R.L. See id. We cannot hold that the finding as to best interest
is not supported by clear and convincing evidence. We overrule the father’s fourth
issue.
                                       V. This Court’s Ruling
         We affirm the trial court’s order of termination.




                                                                   MIKE WILLSON
                                                                   JUSTICE


July 17, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




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