Affirm and Opinion Filed June 14, 2013




                                                             S
                                                           In The
                                                     Court of Appeals
                                              Fifth District of Texas at Dallas

                                                        No. 05-12-01582-CV

                    IN THE INTEREST OF K.A.F., D.A.F. AND A.L.F., CHILDREN

                                 On Appeal from the 256th Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. 08-18472-Z

                                      MEMORANDUM OPINION
                        Before Chief Justice Wright and Justices Lang-Miers and Lewis
                                       Opinion by Chief Justice Wright

           This is an appeal from the trial court’s judgment terminating Mother’s parental rights to

her three daughters, K.A.F., D.A.F., and A.L.F.1 In six issues, Mother contends the evidence is

legally and factually insufficient to support the termination, the Texas Department of Family and

Protective Services (TDFPS) denied her fair treatment, and her trial counsel was ineffective.

Finding no reversible error, we affirm.

                                                           BACKGROUND

           Mother and Father met in 1999 and were together until 2008. They had their first child,

K.A.F., in March 2001. D.A.F. was born two years later in May 2003, and A.L.F. was born in

February 2007.




   1
       The trial court’s judgment also terminates Father’s parental rights to the children. However, he does not appeal.
          Between July 2002 and October 2011, TDFPS received eight referrals concerning the

family. The referrals alleged family violence, negligent supervision and sexual abuse of the

children, and drug use. Throughout this nine-year period, TDFPS offered or was ordered to

provide various services to Mother and Father, including counseling, drug assessments, parenting

classes, individual counseling, domestic violence counseling, and a batterer’s intervention and

prevention (BIP) program. Mother and Father sometimes completed services, and at other times,

did not. In March 2012, after Mother and Father failed to complete court-ordered services in

connection with the October 2011 referral, TDFPS decided to seek termination of Mother’s and

Father’s parental rights. TDFPS alleged in its petition for termination that Mother engaged in

eighteen of the twenty courses of conduct listed in the Texas Family Code as grounds for

termination and that termination was in the children’s best interest.2 See TEX. FAM. CODE ANN. §

161.001 (West Supp. 2012).

          The case was tried to the bench in October 2012. Over the two-day trial, the court heard

testimony from fourteen witnesses, including Mother and Father.

          TDFPS supervisor Tamara Hansen testified TDFPS received the first referral in July

2002, when K.A.F. was one year old. According to Hansen, the referral alleged negligent

supervision of K.A.F. An investigation revealed Father sold drugs from the home, used cocaine,

and had been violent towards Mother.                       K.A.F. was removed from the home, and Mother and

Father were offered services with the goal of family reunification. During the next year, Mother

and Father received individual counseling and completed parenting classes.                                             Mother also




     2
       The two statutory grounds TDFPS did not allege were section 161.001(1)(H) concerning abandonment of the Mother during pregnancy
and section 161.001(1)(T) concerning a conviction for murdering the other parent of the child. See TEX. FAM. CODE ANN. § 161.001(1)(H),(T)
(West Supp. 2012).




                                                                  –2–
attended domestic violence counseling, and Father completed a BIP program and drug treatment.

K.A.F. was returned home in July 2003, and the case was closed.

           Hansen testified that TDFPS received a second referral in February 2008 alleging

physical abuse of the three girls by Father and negligent supervision by both Father and Mother.

At the time, K.A.F. was almost seven, D.A.F. was almost five, and A.L.F. was one. The referral

followed Mother’s hospitalization after she was assaulted by Father. The children were moved

to the home of Mother’s sister, and Father was charged with aggravated assault with a deadly

weapon.3 Hansen testified the children were sleeping at the time of the assault, but K.A.F.

learned of the assault from her maternal grandmother and became fearful that Father would harm

her. TDFPS found no evidence the children were being physically abused, but they were

concerned about Father hurting Mother and the risk of harm to the children. According to Nicole

Hawley, another TDFPS supervisor, Father claimed Mother was the aggressor, but there was no

evidence supporting his allegation. Because the children were with their aunt, TDFPS did not

seek an alternative placement for the children, but referred Mother and Father to its “Family

Based Safety Services.” Hansen and Hawley testified that, to help protect Mother and the

children, they requested Mother receive both domestic violence and individual counseling and

requested Father complete a BIP program and drug assessment, submit to random drug testing,

and attend individual counseling. Both Mother and Father were also asked to complete parenting

classes. Additionally, Mother agreed to a service plan that prohibited Father from living in the

same home with the children and allowed him only telephone contact with them. Neither Mother

nor Father completed any services, but they did separate. In February 2009, after determining the

risk to the children had diminished because Father moved, TDFPS closed the case.

     3
       The record reflects Father pleaded guilty and confessed to pushing Mother against the wall, biting her, pulling her hair, choking her, and
using a firearm. In June 2009, he was placed on deferred adjudication community supervision for a period of five years and ordered to have no
contact “in any form” with Mother.



                                                                     –3–
       In April 2009, two months later, TDFPS received a third referral. This referral alleged

physical abuse, negligent supervision, and physical neglect of the children by Mother. Hansen

testified an investigation revealed Mother had been using marijuana and was in another violent

relationship. According to Hansen, the investigation also revealed “a lot of men [were] in and

out of the home” and the home was unsanitary and unsafe for the children. The children were

removed from the home, and Mother was asked to complete parenting classes and domestic

violence counseling. Due to concerns that Mother was not properly supervising the children

because of the marijuana use, TDFPS also asked Mother to complete a drug treatment program.

Mother successfully completed all the services, the children were returned home, and the case

was closed.

       TDFPS received a fourth and fifth referral in 2010. In February 2010, there was an

allegation of possible drug use in the home and negligent supervision by Mother as a result of the

drug use. Hansen testified these allegations were ruled out after Mother tested negative for drugs

on a random test. In December 2010, a fifth referral alleged physical abuse of the girls by

Mother and led to disclosure by K.A.F. that she had been sexually abused by a male babysitter.

Hansen testified that TDFPS was unable to determine the babysitter’s identity; and because the

babysitter did not live with Mother and the girls, the children were not removed and no services

were offered.

       The final three referrals were received between April and October 2011. The first of

these referrals, in April 2011, alleged negligent supervision of the girls by Mother and sexual

abuse of K.A.F. by the male babysitter. At the time the referral came in, however, the children

were living with their maternal grandmother. According to TDFPS investigator Bree Kimball,

Mother had been arrested in February 2011 for “[taking] a knife to [the] throat” of her boyfriend,




                                               –4–
B.D., following an “altercation.”       Because the children were living with the maternal

grandmother, TDFPS did not offer any services and closed the case.

         The last two referrals, received in May and October 2011, alleged sexual abuse of D.A.F.

by B.D. and sexual abuse of K.A.F. by Father, respectively. At the time of these referrals, the

children were living in Fort Worth with Father and his wife as the maternal grandmother could

no longer care for them because of health issues. TDFPS investigator Rebecca Williams testified

that during the investigation of the May referral she learned from K.A.F., who was ten at the

time, that the male babysitter had “fondl[ed] on her chest . . . got undressed and tried to scoot

over her so his bottom brushed up against her.” K.A.F. told Williams she had told this to

Mother, but Mother “whipped” her and “never did anything.” According to K.A.F., Mother

“whipped” them often with a belt “for no reason” and left bruises and marks.          K.A.F. told

Williams Mother used and sold “crack and weed,” and she had witnessed Mother “cut [B.D.’s]

throat.” She also witnessed B.D. hold a gun to Mother’s head.

         D.A.F., who was eight at the time, told Williams of “whippings” by Mother also and of

fights between Mother and B.D that led to the police being called. She also told Williams that,

when she was seven, B.D. touched her “private part” with his hand while he watched them at a

hotel.

         As part of her investigation, Williams also interviewed A.L.F. and Father. In response to

Williams’s question about the identity of A.L.F.’s mom, the four-year-old told Williams her

name was A.F., and described her as Father’s wife. A.L.F. said she felt safe at home with Father

and with “granny and papa.” Father stated he had not seen Mother in three years. He told

Williams that when he and Mother were together, Mother “would always leave the children with

him and take off for days at a time.” Father admitted his relationship with Mother was unhealthy




                                               –5–
and he had been charged twice for assaulting her. He blamed Mother for the violence, though,

and stated he moved to Fort Worth to “get away from [Mother’s] violence.”

       Williams testified she also met with Father’s wife and their four-year-old and one-year

old sons. She had no concerns with Father and his wife, and found their home clean, “adequate,”

and “free from safety and any health hazard[s.]” TDFPS left the children with Father and the

case was closed.

       The October referral was received after Mother tried to withdraw K.A.F. and D.A.F. from

the school in which Father had enrolled them. Janet Prejean, K.A.F.’s fifth grade homeroom

teacher during the 2011-2012 school year, testified Father told her at the beginning of the school

year that Mother could have no contact with the children. While the school principal determined

whether the children could be released to Mother, Prejean sat with K.A.F. and D.A.F. in the

nurse’s office talking. K.A.F. told Prejean that she was afraid to go with Mother because Mother

“had just gotten out of jail . . . [for] cut[ting] her boyfriend [B.D.]. . . from this ear to that ear.”

K.A.F. told Prejean that Mother and B.D. “had very violent fights,” that B.D. broke into their

apartment “all the time,” and that Mother “always let him come back.” K.A.F. also told Prejean

about the male babysitter.     Prejean testified K.A.F. told her she did not feel any safer going

home with Father because he had shown her a pornographic video and also had sexually

assaulted her.

       Kimball, who investigated this referral, testified an additional interview with K.A.F.

confirmed Prejean’s assertions. TDFPS removed the children from Father and placed them with

P.K., Father’s mother, while the allegations were investigated. During the investigation, Kimball

interviewed Mother in the motel room where Mother was living. According to Kimball, the

room smelled “overwhelming[ly]” of marijuana and Mother appeared to be under the influence

of drugs. Mother told Kimball about her February 2011 arrest for stabbing B.D. and stated she

                                                 –6–
spent “a short amount of time” in jail before her parents bonded her out. The girls continued to

live with her parents after she was released from jail, but she cared for them during the day until

May 2011 when she was arrested for assaulting B.D. a second time. Mother told Kimball she

was released from jail in June and found out the children had been taken to live with Father, but

she did not know where Father lived. Kimball testified she did not believe Mother could provide

for the girls at that time. Mother was collecting cans and redeeming them for money to pay for

the motel room and admitted to using marijuana at least three times per week. Mother, however,

was willing to get “help,” specifically domestic violence counseling.

       Kimball also met with P.K. about a week after the girls had been placed with her and

learned that P.K. did not believe Father had assaulted K.A.F. as K.A.F. had reported. After this

meeting, TDFPS sought court approval to place the children in foster care. Following a hearing,

the children were placed in foster care and Mother and Father were ordered to complete services.

Specifically, they were both ordered to complete a drug assessment, submit to random drug

testing and a psychological evaluation, attend individual counseling, and follow through with any

recommendations made by any of the service providers. Additionally, Mother was ordered to

attend domestic violence counseling and complete parenting classes, and Father was ordered to

complete a BIP program.

       TDFPS’s goal was initially reunification, and it provided Mother a service plan that

would help her achieve that goal. In addition to completing the court-ordered services, the

service plan required Mother to “stop participating in criminal acts and accept responsibility for

prior criminal activities,” to “demonstrate an ability to provide basic necessities such as food,

clothing, shelter, medical care, and supervision for the children,” and to “maintain a safe and

appropriate home environment for her children.” In the spring of 2012, when neither Mother nor

Father had completed any services, Mother had failed to follow the service plan, and Father had

                                               –7–
not had any contact with the girls since they were removed from his home, TDFPS decided to

seek termination of Mother’s and Father’s parental rights. Hansen, the supervisor, explained

termination would result in permanency and stability for the children.            In her opinion,

reunification of the girls with Mother was not possible because of her continued drug use, poor

choices in relationships, and poor parenting skills. And, placement with other family members

was not possible because there were no “fit” family members who could take them.               She

explained that Mother’s sister, who had the girls temporarily while Mother was hospitalized and

recovering from the 2008 assault by Father, had an extensive history with TDFPS herself. The

maternal grandparents were unable to take the girls because of health issues and concerns over

inappropriate statements the maternal grandmother made to the girls, and P.K., the paternal

grandmother, was ruled out as an option because she did not believe that Father sexually abused

K.A.F.

          TDFPS caseworker Dorene Fox testified she began working with Mother in August 2012,

a few months after the decision to seek termination was made and two months before trial.4 At

the time she began working with Mother, Mother had completed the psychological evaluation,

but not completed the substance abuse assessment, parenting classes, or domestic violence

counseling. Fox provided Mother the contact information for the domestic violence counseling

and parenting classes’ providers and set up the individual counseling and substance abuse

assessment. Mother completed the substance abuse assessment, but did not participate in the

other services. Fox expressed no personal opinion as to whether Mother’s rights should be

terminated, but testified that she believed the level of interest parents show in “getting their

services . . . demonstrates their passion to be with their child.” According to Fox, Mother visited



   4
       Fox did not work with Father.



                                               –8–
the children consistently “at times” and inconsistently “at other times.” From November 2011 to

the date of trial, Mother visited twenty-seven of forty-two scheduled times.

        At the time of trial, K.A.F. was eleven, D.A.F. was nine, and A.L.F. was five. Fox and

A.H., with whom the girls were placed in October 2011 after they were removed from the house

of paternal grandmother P.K., testified D.A.F. and A.L.F. were “thriving” in foster care. D.A.F.

came into foster care needing counseling for the abuse by B.D.; but, at the time of trial, she had

recently completed counseling and was showing no signs of regression. She was described as

“serious” and “reserved,” but happy and a good student. A.L.F. was described as “happy-go-

lucky” and a “silly” little girl who “loves to play and talk all the time.” The girls expressed an

interest in seeing Mother, but D.A.F. also expressed fear they would “get hit all the time” if they

were returned home. TDFPS’s plan for D.A.F. and A.L.F. was adoption, and two families had

expressed an interest in adopting them.

        A.H. testified K.A.F. initially did well in her home. K.A.F. talked with A.H. about the

abuse by Father and the babysitter and expressed frustration because she felt no one believed her.

About two weeks after being placed in A.H.’s home, K.A.F.’s behavior started changing. She

became defiant, and encouraged her sisters to be defiant. She also became violent and started

“talking about hurting herself.” She was hospitalized for a couple of weeks in December 2011

after having to be restrained because she was “out of control.” According to A.H., she was

“throwing things against the wall,” “talking about hurting herself,” and asking others to “kill

her.”

        After she was released from the hospital, K.A.F. went to a “specialized” placement

center. She remained there for two months before being moved to an “intensive” placement

center, where she was treated for major depressive disorder with recurring or severe psychotic

features, post-traumatic stress disorder (“PTSD”), and oppositional defiant disorder.          She

                                               –9–
remained at this placement for about six months and was then moved to a psychiatric hospital in

San Antonio. After spending two weeks at the hospital, she was placed at “Children’s Hope,” a

residential facility where she remained at trial.

       According to Fox, the caseworker, K.A.F.’s condition improved after being placed at

Children’s Hope. Her medications were reduced from six to three, her grades improved, she

began “opening up” about the sexual abuse, and was working in counseling on “boundaries” and

feelings of guilt. K.A.F. talked to Mother on the telephone while in San Antonio and also wrote

to her, but at the time of trial, her therapist had recommended K.A.F. have no contact with

Mother. K.A.F.’s prognosis was unknown and Hansen testified TDFPS’s plan was to keep her at

Children’s Hope until she was discharged. Upon discharge, TDFPS planned to recruit an

adoptive parent.

       Mother testified she was thirty years old. She attended college, but dropped out after she

met Father and became pregnant with K.A.F. Mother testified her relationship with Father was

violent, and he was arrested for assaulting her not only in 2008, but also in 2005. According to

Mother, Father punched her, pulled her hair, bit her finger, held a gun to her head, hit her with a

cable, and hit her with a computer.

       Mother testified her relationship with B.D. was violent also. Although she did not testify

that B.D. was ever arrested for assaulting her, she admitted she was arrested twice for assaulting

him. Both assaults occurred after he had been violent with her. Mother described the February

2011 assault where she cut his neck as self-defense, occurring while B.D. was “severely

assault[ing]” her in the middle of the street. The second assault happened after he slapped her on

the face. Mother testified that she reacted by throwing food at him, and he called the police.

Mother testified she was charged with aggravated assault following the February incident. The

charges, however, were subsequently reduced to misdemeanor assault, and she was placed on

                                                –10–
deferred adjudication community supervision for one year. She was charged with misdemeanor

assault for the second offense, but the case was subsequently dismissed. Mother testified her

relationship with B.D. began in October 2010 and lasted less than a year.

       Asked about her drug use, Mother testified that she began smoking marijuana when she

was thirteen years old. She stopped smoking when she was eighteen, before K.A.F. was born,

but started again, after she broke up with Father, and to alleviate symptoms of glaucoma. She

testified she had been smoking consistently since 2010, continued to smoke despite being

ordered not to smoke while on probation, and had last smoked three weeks before trial. She did

not think her use of marijuana was “that serious,” but was asking for help. She testified that she

“mainly smoke[s] because of the situation [she is] going through” but believed that once her kids

came home she would be “too busy” making up time to have a “need for that.”

       Asked about K.A.F.’s and D.A.F.’s allegations of sexual abuse, Mother testified she

learned of the incidents from a TDFPS caseworker. She learned of the abuse by Father in

October 2011 and of the abuse by the male babysitter in December 2010. Mother identified the

babysitter as C.J. and stated that she left the girls on July 26, 2010 with C.J.’s wife, who ran a

“babysitting business” in the apartment complex where they lived. At the time Mother dropped

the girls off, C.J. was not there. Mother testified she spoke to K.A.F. after learning of the

incident and believed it occurred, but she did not report the incident to the police because the

caseworker said she would “take care of everything.” Mother learned that B.D. had sexually

abused D.A.F. when she got out of jail following the May 2011 assault on B.D. According to

Mother, she stopped seeing B.D. as soon as she learned about the abuse.

       Mother testified she loved the girls, missed them, and wanted them returned to her. She

testified she “failed” the girls, but could now keep them safe and provide for them. She

acknowledged that the abusive and violent relationships she had with Father and B.D. impacted

                                              –11–
her children and it was not in their best interest to be exposed to violence. She also

acknowledged that she had “whipped” the girls on occasions, leaving bruises, and had been

unable to provide for them. She testified that she gave the girls to her mother in 2010 because

she did not have a place to live and was working only part-time and had to collect cans to

survive. She testified that if she could do things differently, she would have stayed in college

and broken up with Father so that she would not have been around the initial violence.

           Mother testified she had been “working on [her]self” for about two years and had her “act

together” now. She was in counseling with her pastor at church, had maintained stable housing

since November 2011, and had maintained stable employment since July 2012.5 Mother

recognized she needed to break the pattern of abuse. She testified she was in a BIP program as

part of probation, learned she could not leave bruises when disciplining, and had not been in any

relationship for over a year. She believed she would benefit from parenting classes and further

counseling, but acknowledged she had not completed the parenting classes or counseling she was

ordered to complete. Mother explained that she had problems with the caseworker setting up the

counseling and appropriate parenting classes and would seek help on her own if necessary.

           Mother testified she had a “wonderful” relationship with the children and had visited

regularly with D.A.F. and A.L.F. over the past year. The visits she missed, as she explained,

were a result of work or probation conflicts. Mother testified she had not visited K.A.F., but had

received telephone calls and a letter from her.6 She testified that if the girls were returned to her

she would get a bigger apartment. When asked how she would handle K.A.F., she stated she




     5
        Fox, Mother’s last caseworker, disputed Mother’s testimony regarding her employment. According to Fox, Mother had been fired from
her job shortly before trial.
     6
       The letter was mailed shortly after the children were placed in foster care. In the letter, K.A.F. states that it “sucks” to be her and it feels
like Mother “let [them] go.” She also tells Mother she loves her and that Mother should “let go” of B.D.



                                                                       –12–
would “approach[] her with love and acceptance,” would let her know “it was not her fault,” and

would ensure she received the appropriate health care.

        Father testified Mother did not use any drugs when they were together. When he and

Mother were together, Mother “fed [the girls], cleaned, and cooked . . . she did everything. All

the basic things.” He thought she was “okay” as a mother and thinks she became “unfit” when

they broke up. From what he heard from TDFPS caseworkers, Mother’s home was, at one point,

like “Woodstock.”

        Jeff Napier, a licensed psychologist, conducted the court-ordered psychological

evaluation of Mother on November 16, 2011. He testified a concern existed about whether

Mother could properly supervise the children, and he was tasked with assessing Mother’s

emotional capacity for parenting. He testified Mother described relationship issues with her own

mother and with men. Mother stated her mother physically abused her as a child. Mother

attributed her involvement with TDFPS to her mother and complained that “she likes to call CPS

on me.” She described two significant romantic relationships, one with Father and one with

B.D., and characterized them both as hostile and violent. At the time of the evaluation, Mother

was receiving domestic violence counseling.

        Napier testified Mother admitted marijuana use and told him she often smoked marijuana

in the evening to help her sleep. She participated in a drug education class in 2002 at TDFPS’s

recommendation, but found the class only “marginally helpful.”

        Napier also testified that Mother did not report any significant amount of parenting stress

but did state K.A.F. was a “little more active and energetic” and that it was difficult at times to

get her to attend to directions.

        Napier believed Mother was underreporting her problems and/or shortcomings,

particularly with respect to her drug use and ability to parent. He found it “troublesome” that she

                                               –13–
did not take responsibility “in a lot of the problems that she was describing” and that she

attributed “almost all” the TDFPS allegations to her mom. He was unable to conclude that her

“judgment and reliability relative to parenting is adequate” and recommended parenting classes

and individual counseling. He thought the parenting classes could assist her in “developing and

improving her child-management skills” and the counseling could assist her with her relationship

issues. Napier believed it was “endangering” for the girls to be exposed to continued drug use

and domestic violence because it created a “frightening environment” and could contribute to

negligent supervision.

       Karen Stewart, licensed counselor and substance abuse treatment provider, conducted

Mother’s substance abuse assessment in September 2012. Mother reported a history of drug and

alcohol abuse on both sides of her family and admitted she was herself addicted to marijuana.

Stewart testified Mother stated she had last used marijuana two weeks earlier and smoked “due

to the stressors in her life.” Mother talked with her about her issues and showed a lot of

resentment and a co-dependency with abusive men. In Stewart’s opinion, Mother’s actions

reflected low self-esteem. Stewart recommended “[d]rug education, anger management . . .

relapse prevention” and counseling to address “co-dependency, accountability . . . coping skills

and [the] low-self-esteem.”   Stewart testified she wanted to be Mother’s counselor, but she

never got the necessary paperwork from TDFPS.

       Mother’s mother testified that she “approve[d]” of the way Mother had taken care of the

children. She did not want the children to be “in [TDFP’s] custody” and, if the children were

returned home, she and her husband were available to help. She testified she was a special

education teacher and K.A.F. could come to school with her.

       After hearing this and other evidence, the trial court found Mother’s parental rights

should be terminated on four of the eighteen statutory courses of conduct alleged. Specifically,

                                             –14–
the trial court found Mother (1) knowingly placed or allowed the children to remain in conditions

or surroundings which endangered their physical or emotional well-being; (2) engaged in

conduct or knowingly placed the children with persons who engaged in conduct which

endangered their physical and emotional well-being; (3) 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; and (4) used a controlled substance, as defined by Chapter 481 of the Texas Health and

Safety code, in a manner that endangered the health or safety of the children, and after

completion of a court-ordered substance abuse treatment program continued to abuse a

controlled substance. See TEX. FAM. CODE ANN. §161.001(D),(E),(O),(P). The trial court further

concluded termination of Mother’s parental rights was in the children’s best interests. See id. §

161.001(2).

                             SUFFICIENCY OF THE EVIDENCE

       In issues two through five, Mother asserts the evidence is legally and factually

insufficient to support the trial court’s finding that termination was in the children’s best interest

and she (1) knowingly placed, or allowed the children to remain in conditions or surroundings

which endangered their well-being; (2) engaged in conduct that was endangering to the children;

and (3) failed to comply with a court order that established the actions necessary for her to get

the children back. Mother does not challenge the trial court’s finding that she used a controlled

substance after completing a treatment program and in a manner endangering to the children.

Generally, an unchallenged finding is binding on us and we do not need to address any

complaints regarding the sufficiency of the evidence to support the unchallenged predicate

grounds. In re S.N., 272 S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).                However, as a

matter of due process, a parent appealing a termination decree has a right to meaningful appellate

review. Id. at 60 (op. on reh’g). Because an affirmative finding that Mother’s rights should be

                                                –15–
terminated based on her placing the children in dangerous conditions or engaging in endangering

conduct could be used to support termination of her parental rights with respect to any future

child she may have,7 we continue our review. Id. at 60-61.

                                                         Standard of Review

           Because the natural right existing between parents and their children is of constitutional

dimensions, termination proceedings are strictly scrutinized and require the application of the

clear and convincing standard of proof. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

The clear and convincing standard of proof is “the 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.” TEX. FAM. CODE ANN. § 101.007 (West 2008); In re E.N.C., 384 S.W.3d 796,

802 (Tex. 2012).

           A trial court may terminate a parent-child relationship only upon clear and convincing

proof that (1) the parent has committed an act prohibited by section 161.001(1) of the Texas

Family Code and (2) termination is in the child’s best interest. See TEX. FAM. CODE ANN. §

161.001. Though evidence may be relevant to both elements, each element must be proven, and

proof of one does not relieve the burden of proving the other. See In re C.H., 89 S.W.3d 17, 28

(Tex. 2002). While both a statutory ground and best interest of the child must be proven, only

one statutory ground is required to terminate parental rights. See In re A.V., 113 S.W.3d 355,

362 (Tex. 2003).

           In reviewing the legal sufficiency of the evidence in a parental termination case, we must

consider all the evidence in the light most favorable to the finding to determine whether a

reasonable fact finder could have formed a firm belief or conviction that its finding was true.

     7
       See TEX. FAM. CODE ANN. § 161.001(M). That section provides that a trial court may terminate the rights of a parent who “has had his
parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph D or
E or substantially equivalent provisions of the law of another state.” Id.



                                                                     –16–
E.N.C., 384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume

the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do

so, and we disregard all evidence that a reasonable fact finder could have disbelieved. Id.

(quoting J.F.C., 96 S.W.3d at 266).

       In reviewing the factual sufficiency of the evidence in a termination proceeding, we

consider and weigh all the evidence, but give due deference to the fact finder’s resolution of

factual questions. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006). We then determine whether the evidence is such that a fact finder could

reasonably form a belief or conviction about the truth of the allegations against the parent. See

H.R.M., 209 S.W.3d at 108.

       Because only one statutory ground is required to terminate parental rights under section

161.001, when, as here, the termination order contains multiple statutory grounds, we may affirm

the trial court’s order on any one ground and a conclusion that termination is in the child’s best

interest. See In re K.W., 335 S.W.3d 767, 769-70 (Tex. App.-–Texarkana 2011, no pet.).

                                         Endangering Conduct

       In her third issue, Mother contends the evidence is legally and factually insufficient to

show she engaged in endangering conduct. Endangering conduct is defined as conduct that

exposes a child to loss or injury or jeopardizes a child’s emotional or physical health. Robinson

v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.—Houston [1st

Dist.] 2002, no pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987); Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.—

El Paso 2000, pet. denied)).    It is “more than a threat of metaphysical injury or potential ill

effects of a less-than-ideal family environment,” but it does not need to occur in the child’s

presence, be directed at the child, or cause actual injury. See E.N.C., 384 S.W.3d at 803; Boyd,

                                               –17–
727 S.W.2d at 533; Clark v. Clark, 705 S.W.2d 218, 219 (Tex. App.—Dallas 1985, writ dism’d).

Abusive or violent conduct by a parent or other resident of a child’s home as well as conduct that

subjects a child to a life of uncertainty and instability may endanger the physical and emotional

well-being of the child. Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]

2010, pet. denied); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no

pet.).   Drug use and its effects on a parent’s life and ability to parent may also establish an

endangering course of conduct. See Walker v. Tex. Dep’t of Family and Protective Servs., 312

S.W.3d 608, 618 (Tex. App.-–Houston [1st Dist.] 2009, pet. denied).      If the evidence shows a

voluntary, deliberate, and conscious course of conduct that has the effect of endangering the

child’s physical or emotional well-being, then a finding under section 161.001(1)(E) is

supportable. In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.); In re J.C.,

151 S.W.3d 284, 288 (Tex. App.-–Texarkana 2004, no pet.).

         Here, the record shows that, during the ten-year period TDFPS was involved with the

family, TDFPS investigated allegations of negligent supervision and sexual abuse of the

children, domestic violence, and drug use. The domestic violence allegations were recurrent and

continued even after Mother successfully completed domestic violence counseling in 2002 and

2009. The children witnessed the violence and reported the police being called to their home as

a result. Napier, the psychologist who evaluated Mother, testified that it was “endangering” for

the girls to be exposed to domestic violence because it could lead to negligent supervision and it

created a “frightening environment.” Mother, herself, also recognized the violence impacted the

girls. Indeed, the February 2008 referral followed a severe assault of Mother by Father and

K.A.F.’s expression of fear that Father would hurt her.

         Further, allegations of Mother’s drug use began in 2009. Although Mother abstained

from smoking marijuana for an eight year period beginning in 2000, she began smoking again in

                                              –18–
2008 to cope with the break-up with Father and to treat a medical condition. She completed a

drug treatment program in 2009, but “relapsed” and began smoking even more often in 2010.

She told Napier she often smoked in the evening to help her sleep and told Stewart, who

conducted Mother’s substance abuse assessment, that she smoked “due to the stressors in her

life.” Consistent with her statement to Stewart, Mother testified at trial that she “mainly smoked

because of the situation [she is] going through.” Although Mother testified she did not think her

use of marijuana was “that serious,” K.A.F. reported she had seen Mother using “weed” and

Mother candidly admitted she smoked in violation of her terms of probation. The smoking was

also in violation of the requirement in her service plan that she “maintain a safe and appropriate

home environment for her children.” Stewart, who met with Mother just two months before trial,

recommended Mother receive drug education. According to Napier, the drug use, like the

exposure to domestic violence, was “endangering” for the girls because it, too, could lead to

negligent supervision. In fact, the children were removed from the home in 2009 because of

concerns that her drug use impaired her ability to properly supervise the children.

       Mother’s drug use and choice in men affected not just the girls’ physical well-being but

also their emotional well-being.      K.A.F. suffered from post-traumatic stress disorder, was

hospitalized twice during the year leading up to trial, and was then placed in “intensive” care,

where she remained as of the date of trial. D.A.F. required counseling, and though A.L.F.

required no treatment, she told TDFPS investigator Williams that her mom was Father’s wife,

suggesting she had no bond with Mother.

       The girls’ well-being was also affected by Mother’s “whippings.” Although no witness

testified Mother physically abused the children, both K.A.F. and D.A.F. expressed fear of being

returned home to Mother because of the “whippings,” and Mother admitted she had “whipped”

the girls on occasions, leaving bruises.

                                               –19–
       Viewing these facts under the appropriate standard of review, we conclude a reasonable

fact finder could form a firm belief or conviction that Mother’s violent relationships with Father

and B.D., continued marijuana use, and “whippings” resulting in bruises endangered the

children. Although Mother might not have been violent toward Father and might have been

acting in self-defense when she assaulted B.D., as she contends on appeal, Father and B.D. were

both violent toward Mother, and the children witnessed some of the violence. Evidence of

domestic violence may establish evidence of endangerment.             J.I.T.P., 99 S.W.3d at 845.

Moreover, although Mother recognized her relationships with Father and B.D. “were not good

for the children and she want[ed] to change,” she was in a BIP program and had learned she

could not leave bruises when disciplining, and had not been in a relationship in over a year, she

testified at trial that she could benefit from further counseling but failed to complete the domestic

violence counseling that was ordered following the last referral. See J.O.A., 283 S.W.3d at 346

(“evidence of improved conduct, especially of short duration, does not conclusively negate the

probative value of a long history of drug use and irresponsible choices.”).

       With respect to the drug use, although Mother contends she smoked marijuana to treat a

medical condition, the record also reflects she smoked to cope with “life stressors.” Further,

although Mother contends she did not smoke around the children, K.A.F. reported she had seen

Mother smoking. We conclude, contrary to Mother’s contention that her smoking did not harm

the children, that by continuing to smoke, even after completing a drug treatment program in

2009, Mother put herself at risk of being impaired and jailed for violating a term of probation

and subjected her children to a life of uncertainty and instability. See Walker, 312 S.W.3d at 617-

18 (“Because [drug use] exposes the child to the possibility that the parent may be impaired or

imprisoned, illegal drug use may support termination under section 161.001(1)(E).”).




                                               –20–
       We also conclude that Mother’s combined actions–(a) relationships with Father and B.D.,

even after completing domestic violence counseling in 2002 and 2009; (b) continued drug use,

knowing her parental rights were in jeopardy; and (c) “whippings” that left bruises on the girls–

together established a voluntary, deliberate, and conscious course of conduct that harmed the

children physically and emotionally. See In re A.C., 394 S.W.3d 633, 641 (Tex. App.-–Houston

[1st Dist.] 2012, no pet.) (endangerment finding supported by evidence of Mother’s continued

drug use and admission that such use put child at risk); M.R., 243 S.W.3d at 819 (same -

evidence that child exposed to domestic violence); In re C.L.C., 119 S.W.3d 382, 398 (Tex.

App.-–Tyler 2003, no pet.) (same - evidence of abusive or violent conduct by parent); Robinson,

89 S.W.3d at 686-87 (same – evidence that mother’s illegal drug activity violated terms of

community supervision and service plan). We resolve Mother’s third issue against her. Because

we conclude the evidence is legally and factually sufficient to support the trial court’s finding

that Mother’s rights should be terminated under section 161.001(1)(E), we need not address

Mother’s arguments concerning the remaining statutory findings and turn to the best interest

finding. See K.W., 335 S.W.3d at 770.

                                          Best Interest

       In her fifth issue, Mother challenges the trial court’s determination that it was in the

children’s best interest to terminate her parental rights. A strong presumption exists that keeping

a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

At the same time, however, prompt and permanent placement of the child in a safe environment

is also presumed to be in the child’s best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West

2008). In determining whether termination of parental rights is in the child’s best interest, we

may consider the evidence establishing one of the predicate grounds under section 161.001(1),

along with the following factors:

                                              –21–
        1. the child’s desires;

        2. the child’s present and future emotional and physical needs;

        3. the present and future emotional and physical danger to the child;

        4. the parenting abilities of the persons seeking custody;

        5. the programs available to the persons seeking custody to help promote the best
           interest of the child;

        6. the plans for the child by those persons seeking custody;

        7. the stability of the home or proposed placement;

        8. the parent’s acts or omissions that may indicate the existing parent-child relationship
           is not a proper one;

        9. any excuse for the acts or omissions of the parent; and,

        10. the parent’s willingness and ability to provide a safe environment as evidenced by the
            child’s age and vulnerabilities; developmental evaluations of the child’s parents, other
            family members, and others who have access to the child’s home; any history of
            substance abuse by the child’s family or others who have access to the child’s name;
            the willingness and ability of the child’s family to effect positive changes within a
            reasonable period of time; and adequacy of parenting skills.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); A.C., 394 S.W.3d at 641-42 (citing TEX.

FAM. CODE ANN. § 263.307(b)). No requirement exists that TDFPS prove all these factors, and

the lack of evidence of some factors does not preclude a finding of best interest. A.C., 394

S.W.3d at 642.

        In arguing the evidence is insufficient to support the finding that termination is in the

children’s best interest, Mother asserts there is little or no evidence that she was a danger to the

children, of what the children wanted, or of specific plans for the children, but sufficient

evidence exists that K.A.F.’s behavior worsened while in TDFPS’s custody, that Mother had

“cleaned up her act,” and that Mother was regretful of and accepted responsibility for her actions

that led to losing her children.



                                               –22–
       Although Mother disputes evidence exists she was a danger to the children, we have

concluded that her relationships with Father and B.D., continued drug use, and treatment of the

children endangered the children. Additionally, although Mother testified she was regretful of

and accepted responsibility for her actions, she also told the psychologist who evaluated her that

her mother was to blame for her long history with TDFPS. This evidence, along with the

evidence of Mother’s endangering conduct, established Mother was not willing and able to

provide the girls with a safe environment, had not entirely “cleaned up” her act, and lacked

appropriate parenting skills.

       The record also reflects Mother was unable and unwilling to effect positive changes. For

example, although some evidence was presented that she had difficulty obtaining from TDFPS

the services she needed to be reunified with her children, testimony was presented that she could

have set up some services herself because she had been given the necessary information.

However, she failed to do so and failed to complete the services that were offered. Further,

evidence was presented that Mother had “cleaned up her act” after the 2002 and 2009 referrals,

but had “fallen off the wagon” each time. This evidence combined established the children

would be faced with uncertainty and instability if returned to Mother.

       By contrast, testimony established that termination of Mother’s rights provided an

opportunity for the children to have stability and permanency. During their one year stay in

foster care, D.A.F. and A.L.F. thrived. D.A.F. completed counseling and was showing no signs

of regression. The plan for these girls was adoption, and two families expressed an interested in

adopting them.     Although K.A.F. suffered from post-traumatic stress disorder, had been

hospitalized twice, and remained in an intensive treatment center at the time of trial, she had

made steady improvement in the one year she had been in foster care. The plan for her was

adoption once she was discharged from the treatment center.

                                              –23–
       Applying the appropriate legal standard, we conclude that, from this evidence, the trial

court could have formed a firm belief and conviction that termination of Mother’s rights was in

the children’s best interest. See In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011,

no pet.) (best interest finding supported by parents’ “poor judgment” and constant drug use); In

re C.R., 263 S.W.3d 368, 376-77 (Tex. App.—Dallas 2008, no pet.) (same - parent’s failure to

complete parenting classes and unwillingness to stop using drugs where evidence showed child

needed stability and consistency, was doing well in foster care, and would be adopted); In re

S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (same - drug use, inability

to provide stable home, and failure to comply with service plan).      Although Mother correctly

notes that “little or no” evidence was presented regarding the children’s desire, one of the factors

to consider in determining best interest, no requirement exists that TDFPS prove all the factors.

See A.C., 394 S.W.3d at 642. We resolve Mother’s fifth issue against her.

                                 DUE PROCESS VIOLATION

       In her first issue, Mother contends she was deprived of fair treatment and due process by

(1) TDFPS’s “global pleading” in which TDFPS alleged “every possible ground for termination,

even though it had no intention of proving most of such grounds;” and (2) TDFPS’s offer of

services when it “never intended to return the children due to the sexual assault on [K.A.F.] by

[F]ather.” Mother asserts the “global pleading” failed to provide her fair notice of TDFPS’s case

and, had she known earlier that TDFPS intended to terminate her rights, “a total different

strategy would [have been] taken.” Mother, however, makes these arguments for the first time

on appeal. To preserve these arguments for review, Mother needed to bring the issue to the trial

court’s attention by timely request, objection, or motion. See TEX. R. APP. P. 33.1; see also In re

L.M.I., 119 S.W.3d 707, 711 (Tex. 2003). Because she failed to do so, her complaint is waived.

See J.F.C., 96 S.W.3d at 304 (“Texas’s preservation of error rules promote the child’s interest in

                                               –24–
a final decision and thus placement in a safe and stable home, because they preclude appellate

courts from unduly prolonging a decision by appellate review of issues not properly raised in the

trial court.”). We resolve Mother’s first issue against her.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

       In her sixth issue, Mother asserts her trial counsel was ineffective. Specifically, she

asserts counsel was ineffective in failing to (1) file a motion to sever the trial of Father from her

trial and (2) properly object to the admission of “the entire CPS report.”

       An indigent parent in a termination proceeding in Texas has a statutory right to effective

assistance of counsel. See TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp.2012); In re M.S.,

115 S.W.3d 534, 544 (Tex. 2003). Claims of ineffective assistance of counsel are evaluated

under the same standards as those set forth for criminal defense counsel in Strickland v.

Washington, 466 U.S. 668, 681 (1984). M.S., 115 S.W.3d at 544-45. To succeed on an

ineffective assistance claim, a parent must first establish her counsel’s performance was

deficient. Id. at 545. Once deficiency has been established, the parent must show counsel’s

deficient performance prejudiced the case. Id.

       In reviewing counsel’s performance on appeal, we indulge in a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance, including the

possibility that counsel’s actions were strategic. Id. To overcome the presumption that counsel

provided reasonable assistance, the record must be sufficiently developed and fully support the

allegation; a silent record will not overcome the presumption. See In re J.W., 113 S.W.3d 605,

616 (Tex. App.-–Dallas 2003, pet. denied) (citing Thompson v. State, 9 S.W.3d 808, 813-14

(Tex. Crim. App. 1999)). In analyzing whether counsel’s deficient performance prejudiced the

case, we determine whether a reasonable probability exists that, but for counsel’s deficient




                                                –25–
performance, the result of the proceeding would have been different. M.S., 115 S.W.3d at 549-

50.

       The record, here, is silent as to counsel’s strategy. Mother did not file a motion for new

trial and call her trial counsel as a witness to explain his reasons for failing to file a motion to

sever and “properly object” to the admission of “the entire CPS report.” Mother, therefore, has

failed to rebut the presumption that counsel’s conduct fell within the range of reasonable

professional assistance. See J.W., 113 S.W.3d at 616. This failure defeats her ineffectiveness

claim. See id. We resolve Mother’s sixth issue against her.

                                             CONCLUSION

       We affirm the trial court’s judgment.




                                                    /Carolyn Wright/
121582F.P05                                         CAROLYN WRIGHT
                                                    CHIEF JUSTICE




                                               –26–
                                    S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                   JUDGMENT

IN THE INTEREST OF K.A.F., D.A.F.               On Appeal from the 256th Judicial District
AND A.L.F., CHILDREN                            Court, Dallas County, Texas
                                                Trial Court Cause No. 08-18472-Z.
No. 05-12-01582-CV                              Opinion delivered by Chief Justice Wright,
                                                Justices Lang-Miers and Lewis participating.

      In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s
judgment.

.


Judgment entered June 14, 2013




                                             /Carolyn Wright/
                                             CAROLYN WRIGHT
                                             CHIEF JUSTICE




                                         –27–
