                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00116-CV



         IN THE INTEREST OF K.S., A CHILD



         On Appeal from the 307th District Court
                  Gregg County, Texas
             Trial Court No. 2012-1065-DR




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Moseley
                                              OPINION
        Doug S., 1 the father of K.S., appeals from an order terminating his parental rights to the

child, raising two issues: (1) Doug argues that the evidence was insufficient to support the

necessary finding that it was in the best interest of K.S. to terminate his parental rights, and

(2) Doug maintains that he received ineffective assistance of counsel in contesting the

termination proceeding. We find the contentions to be without merit and affirm the judgment of

termination.

        The record shows that K.S. was born in May 2012 and that within a month of that time,

her mother (whose parental rights were likewise terminated in the same proceeding though she

has not appealed) was incarcerated on drug-related charges. At the time of the child’s birth,

Doug was also incarcerated on charges relating to illicit drugs but was anticipating that he would

be released on community supervision about ten months later. As a result, K.S. was taken into

the custody of the Texas Department of Family and Protective Services (DFPS) and placed in

foster care. Over the ensuing months, several hearings were conducted, and it became clear that

there were family members of K.S.’s who were interested in adopting the child, with the

apparent strongest contenders being an aunt and uncle residing in Mississippi. A permanency

hearing was conducted March 13, 2013. The mother had been released from jail in November

and thereafter could not be found. In the meantime, Doug completed his nine-month drug




1
We use a pseudonym for the father’s name in order to assist in protection of the identity of the minor. See TEX. R.
APP. P. 9.8.




                                                        2
rehabilitation program at the D.E.A.R. unit 2 where he had been required to reside during his

court-ordered drug rehabilitation program and was released March 12. Doug contacted DFPS

representatives immediately to set up a plan. The problem confronting them was the short time

frame remaining pursuant to the statute before the matter had to be resolved. See TEX. FAM.

CODE ANN. § 263.401 (West 2008). A caseworker with the DFPS confirmed that the drug

rehabilitation entity at which Doug had been required to reside as part of his drug treatment

program had not permitted Doug to be involved with any of the service plan requirements.

Based upon these circumstances, the trial court found that extraordinary circumstances existed

and extended the final hearing on the case by 180 days. See TEX. FAM. CODE ANN. § 263.401(b).

            At a subsequent hearing in May, it was determined that a potential placement family

residing in White Oak had declined to be considered as a placement home for the child. It was

then further discovered that although Doug had commenced with some of the services prescribed

by the DFPS, he had then tested positive for present use of methamphetamines on two random

drug screens during the six weeks that intervened between his release from the D.E.A.R. unit and

the date of the hearing. The court thus ordered K.S. placed with a related couple in Mississippi

(with Doug having some rights of visitation), and another hearing date was set.

            A final permanency hearing was held July 10, 2013. At that time, Doug had tested

positive for methamphetamine use and had been re-incarcerated. At that hearing, the court

corrected some ambiguities in the timetable and corrected the dismissal date to comply with the




2
    A residential substance abuse recovery center located in White Oak, Texas.
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statute (which would have been November 23, 2013, this being 180 days from the original

dismissal date) and set a new trial date for October 16, 2013.

       At the time of the October 16 trial, Doug was imprisoned, having been adjudicated guilty

of possession of a controlled substance and sentenced to five years’ imprisonment. A trial to the

bench ensued. The court ultimately found that statutory grounds for termination existed, found

that termination was in the best interest of the child, and adjudged the termination of the parent-

child relationship.

       Doug first contends that the evidence is insufficient to support the finding that

termination was in the best interest of K.S.

       There is a strong presumption that a child’s interest is best served by preserving the

conservatorship of the parents; however, that presumption can be overcome when presented with

clear and convincing evidence to the contrary. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per

curiam); In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.).                   In

determining the best interests of the child, a number of factors have been considered, including

(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,

(6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or

omissions of the parent that may indicate the existing parent-child relationship is not a proper

one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976).

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       The list is not exhaustive, but simply indicates considerations that have been or could be

pertinent. Id. at 372. The analysis of evidence relating to one single factor may be adequate in a

particular situation to support a finding that termination is in the best interests of the child. In re

J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.).                 Evidence supporting the

termination of parental rights is also probative of best interest. C.H., 89 S.W.3d at 28. A

parent’s inability to provide adequate care for a child, lack of parenting skills, and poor judgment

may be considered when looking at the child’s best interests. In re C.A.J., 122 S.W.3d 888, 893

(Tex. App.—Fort Worth 2003, no pet.). Parental drug abuse is obviously reflective of poor

judgment and is also a factor to be considered in determining a child’s best interests. In re M.R.,

243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). Also, evidence offered to prove

grounds for termination, the amount of contact between the natural parent and child, the natural

parent’s ability to provide financial support, and the quality of care rendered by a child’s

caregiver are all relevant to determine if termination is in the best interest of the child. In re

C.H., 89 S.W.3d 17, 28 (Tex. 2002). It is unnecessary to prove all of these factors as a condition

precedent to parental termination. Id. at 27; In re N.L.D., 412 S.W.3d 810, 819 (Tex. App.—

Texarkana 2013, no pet. h.).

       In this case, the child (who was seventeen months old by the date of termination) had no

real relationship with Doug, who had been incarcerated, imprisoned, or in residential drug

rehabilitation facilities for all but about two months of the child’s life. It is apparent that Doug

suffered from a continuing drug addiction problem that was not even partially resolved by penal

incarceration and intensive rehabilitation efforts. He failed to appear for scheduled counseling

                                                  5
sessions during his brief release from the rehabilitation facility and tested positive for the use of

(and admitted to the use of) methamphetamine and marihuana on two occasions during his brief

sojourn outside confinement. Through his own choices, he had no connection with the child and

could have no real relationship possible until after his eventual release from prison. The choices

Doug made demonstrate a lack of resolve to take action showing a potential for actually

parenting the child, as opposed to simply saying that he wanted to do so. If one assumes that

past is prologue, there is a great likelihood that his conduct would continue into the future.

Actions speak louder than words.

       In contrast, the family unit from Mississippi reflects the opposite. The couple own and

operate a business (a restaurant) in a small town and had already raised two sons, one of whom

was in college and the other employed. The DFPS worker who transported K.S. to Mississippi

also testified that the couple and their children had good reputations in the community. The

family (relatives of K.S.) wants to adopt the child.

       The question in this case is whether the evidence adequately shows that termination of

Doug’s parental rights was in the best interest of K.S. Of the nine factors set out by Holley, only

the first one does not substantively cut in favor of termination—at the child’s tender age, its

wishes are not available for consideration. All of the other factors support termination and the

finding that termination was in the best interest of the child. Under this state of the evidence, we

cannot conclude that the trial court’s finding was made in error. The contention of error is

overruled.




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       In the remaining issue, Doug argues that he received ineffective assistance of counsel in

the termination proceeding. “A parent’s interest in the accuracy and justice of the decision to

terminate his or her parental status is . . . a commanding one.” Lassiter v. Dep’t of Soc. Servs. of

Durham Cnty., N.C., 452 U.S. 18, 27 (1981). An indigent parent in a parental-rights termination

case has the right to effective assistance of counsel, and the two-prong test of Strickland v.

Washington, 466 U.S. 668, 687 (1984), originally formulated in the criminal law context, has

been adopted as the appropriate standard for evaluating ineffective assistance claims in

termination cases. In re J.O.A., 283 S.W.3d 336, 341–42 (Tex. 2009); In re M.S., 115 S.W.3d

534, 544–45 (Tex. 2003). To prevail on an ineffective assistance claim, an appellant must prove

both Strickland prongs, establishing that counsel’s performance was deficient and that counsel’s

errors prejudiced the appellant by depriving him of a fair trial with reliable results. M.S., 115

S.W.3d at 545; In re K.A.S., 399 S.W.3d 259, 264 (Tex. App.—San Antonio 2012, no pet.).

       Doug contends that trial counsel was ineffective because he did not file a general denial

for Doug until the date of the final hearing and because the record has no evidence of pretrial

discovery efforts or any other pretrial motions.        Doug also points out that he appeared

telephonically at trial, but during the lunch break, although being told by his counsel to stay on

the line, the connection was broken, and his trial counsel failed to request a continuance until the

connection could be restored. Doug cites each of these as instances of ineffective assistance.

       Although a motion for new trial was filed by appellate counsel, the only matters raised

were contentions that the evidence was insufficient to support termination, and no hearing on

that motion was conducted. Although the record contains no evidence that any written discovery

                                                 7
was propounded, there is likewise no evidence that such written discovery would have produced

any fruits or that there was a necessity for it. Counsel was appointed nearly a year before the

final hearing and appeared at numerous hearings to represent Doug before the final hearing was

conducted. It is clear from the record of those hearings that counsel was familiar with all the

individuals involved and had a strong understanding of the situation and the parties involved.

Based upon this record, we cannot conclude that counsel was ineffective for failing to file formal

discovery or other pretrial motions.

       The absence of communications with Doug during the afternoon portion of the trial is

more problematic. The State rested before lunch, and when they reconvened, Doug was no

longer on the line despite being told to remain on the line. Not a great deal of the trial occurred

after the termination of the telephone connection with Doug.          Doug’s grandmother (who

unsuccessfully sought placement of K.S. with her) testified and said nothing either beneficial or

detrimental to Doug’s cause. Doug suggests that it was (1) error not to request a continuance and

(2) harmful because he had no opportunity to present his position.

       Although one could speculate that counsel might have been able to present testimony

through Doug that would have been beneficial to his efforts to avoid termination, one could also

speculate that an attorney who had previously visited with Doug (as had trial counsel) might

have concluded that testimony by Doug (with his record concerning drug use) would be more

damaging to his case than beneficial. In other words, there may have been some trial strategy on

the part of trial counsel in not re-establishing the telephonic connection with Doug and having

him testify. Since there was no testimony elicited from trial counsel at a motion for new trial or

                                                8
otherwise, one cannot determine whether there was any trial strategy involved in his failure to

reconnect with Doug and have him testify.

       Doug does not argue that he had a right to appear at trial. Rather, he argues that error is

shown because he would have testified; thus, he contends trial counsel’s assistance was

ineffective because he failed to reestablish a telephonic connection. However, there is nothing in

this record to support that argument beyond speculation.

       There is also nothing in the record to suggest that if Doug had been called to testify on his

own behalf, any positive result would have been served. It is also not apparent from this record

whether the connection was broken, or whether he decided to disconnect the telephone and

return to his cell. Under this state of the record, we cannot conclude that error has been shown,

and even if error were shown, there is no evidence of harm.

       We affirm the judgment of the trial court.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       January 21, 2014
Date Decided:         January 23, 2014




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