                                        NO. 07-09-0280-CV

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL C

                                         MARCH 30, 2010

                             _____________________________

                     In the Interest of L.T., L.M.R., and L.M.L., Children

                             _____________________________

               FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                 NO. 34913; HON. PHIL N. VANDERPOOL, PRESIDING

                             _____________________________

                                     Memorandum Opinion

                             _____________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Evelyn Turrentine appeals from a final order terminating her parental rights to

L.T., L.M.R., and L.M.L., her minor children. Sammy Laury also appeals from an order

terminating his parental rights to L.M.L.1 We affirm.

      Issues Raised by Laury

      Laury filed a statement of points he intended to raise on appeal. It contains

many topics that go unmentioned in his appellate brief; so we address only those issues

actually mentioned and briefed per Texas Rule of Appellate Procedure 38.1.



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       The fathers of L.T. and L.M.R. did not appeal from the termination of their parental rights.
       Legal and Factual Sufficiency of the Evidence

       The first complaints we address involve the legal and factual sufficiency of the

evidence underlying the trial court’s decision to terminate the parent/child relationship.

Upon doing so, we immediately note that the trial court found three statutory grounds

warranting termination.    They involved placing or allowing the child to remain in

conditions which endangered the child’s physical or emotional well-being, engaging in

conduct or placing the child with people who engaged in conduct that endangered the

child, and failing to comply with a court order establishing prerequisites for the return of

the child. Only the first two grounds were addressed by Laury at bar, however. He did

not attack the sufficiency of the evidence supporting the last one. This is problematic

because the decision to terminate need only be based on or supported by one statutory

ground, so long as termination remains in the child’s best interest. In re K.C.B., 280

S.W.3d 888, 894-95 (Tex. App.–Amarillo 2009, pet. denied). And, since Laury failed to

challenge one of the three grounds, we need not decide whether the evidence was

sufficient to warrant termination on the grounds he did address.

       As for Laury’s attack upon the finding that termination was in the child’s best

interest, the record contains evidence that 1) he had a history of drug use, 2) he had

been unable to maintain a job, 3) he lied about jobs he had purportedly held in the past,

4) he had not paid child support for this child, 5) he voluntarily terminated his rights to

two of his other children after being jailed for failing to financially support them, 6) he

has had unstable housing, 7) personnel from the Department of Family and Protective

Services (Department) smelled marijuana when they visited his home, 8) he had a

charge for possession of marijuana pending against him, 9) a psychologist testified that



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Laury lacked a strong sense of responsibility, lacked the ability to maintain direction and

goals, had “questionable motivation to change,” did not make maintaining relationships

with his children a high priority in his life, had “a lackadaisical approach to the whole

issue of parenting responsibility,” had “a pattern of trying not to be very clear in his

thinking” so he could be less responsible, and presented a “serious concern that he

would be at risk to place children in a neglectful situation in the future,” 10) the child was

removed at birth and, at the time of trial, was between one and two years old, 11) the

child was adoptable, and 12) it was hoped that the child could be adopted into a home

with the other two children who were also the subject of this termination proceeding and

with whom he lived in foster care. Considering this evidence within the framework

established in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), we conclude that clear

and convincing evidence existed to support the finding that termination was in L.M.L.’s

best interest.

       That other evidence appeared of record suggesting Laury improved his lot in life

and his potential for being an acceptable father is acknowledged.            Yet, the focus

remains on the best interest of the child, not of Laury. And, the factfinder need not

place the child at risk simply to afford a parent one more chance to do that which he

should have done all along. Having determined that a statutory ground for termination

existed and that clear and convincing evidence supported the finding that termination

was in the child’s best interest, we overrule Laury’s legal and factual sufficiency issues.

       Constitutional Right to Maintain Relationship

       Through his final issue, Laury suggests that the United States Constitution

entitles a parent “who [has] gotten on the right track” to keep his child. The particular



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constitutional provision allegedly mandating same went unmentioned though, as did all

other legal authority supporting the contention. Thus, we cannot say that the topic was

adequately briefed. See Ratsavong v. Menevilay, 176 S.W.3d 661, 666 (Tex. App.–El

Paso 2005, pet. denied) (requiring the citation of legal authority in support of one’s

argument).

       Nor do we know of any constitutional proviso that subordinates the best interest

of the child to a parental desire to maintain the parent/child relationship merely because

the parent may be “on the right track.” So too are we unaware of any constitutional

mandate requiring the trial court to ignore the historical conduct of a parent when

deciding whether to terminate parental rights. Indeed, authority has recognized that the

quality and character of one’s past actions is often indicative of his future demeanor.

See e.g. Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.–Austin 2004, pet.

denied). Moreover, if Laury had “gotten on the right track” as suggested, one is left to

wonder why he continued to eschew one of the most basic legal obligations due a child,

that obligation being the provision of economic support.             TEX. FAM. CODE ANN.

§151.001(a)(3) (Vernon 2008) (mandating that a parent financially support his child).

This continued default could lead a reasonable factfinder to rationally doubt the

suggestion that Laury is actually “on the right track.”

       In sum, possibly being “on the right track” does not mean that Laury arrived at

the requisite destination, and under the circumstances before us, the Constitution

requires neither the trial court nor this court to so infer. The issue is overruled.




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       Issues Raised by Turrentine

       Turrentine also questions the legal and factual sufficiency of the evidence

supporting the trial court’s decision. She further labels as unconstitutional the statutory

provision obligating her to tender potential issues for appeal within 15 days of the

execution of the trial court’s final judgment.     Various of the trial court’s decisions

regarding the admission of evidence were also erroneous, in her view.       We, however,

find no substance in any of her contentions.

       Legal and Factual Sufficiency

       Like Laury, Turrentine attacked less than all of the statutory findings upon which

termination was based. Indeed, she failed to address the same one that Laury failed to

discuss, i.e. the failure to comply with obligations contained in a court order.

Consequently, we overrule her contention that the evidence was legally and factually

insufficient to prove the existence of one or more statutory conditions to termination.

       As for the allegation encompassing the child’s best interest, we find the following

evidence of record. Turrentine 1) had a long history of using cocaine and marijuana, 2)

used drugs while pregnant with L.M.L., which resulted in the child testing positive for

drugs at birth, 3) did not feel she needed help to stop using drugs, 4) continued to use

drugs during the pendency of the case even after completing an in-patient drug

treatment program, 5) did not complete her counseling sessions, 6) had an unstable

work history, 7) lacked stable housing during the pendency of the case, 8) failed to

notify the Department when she moved, 9) sporadically visited her children, 10) had her

visitation suspended at one time due to her drug use, 11) told her children she would

not see them again prior to the final hearing which comment seriously upset one of the



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children, 12) had several of her children express fear about returning to live with her,

13) had been incarcerated for forgery, and 14) had failed to pay all her child support.

Other evidence illustrated that all three children are adoptable and her older children

believed she has lied to them. Furthermore, the psychologist who examined Turrentine

opined that she did not show a strong sensitivity to her children’s needs, exercised

erratic judgment, had a pattern of “weak and questionable judgment in her care of the

children,” had a pattern of placing the children in “risky . . . situations, around risky

persons,” and illustrated little motivation for change.        Turrentine also admitted to

returning to drugs at one point because she thought the “case was over.” In toto, the

foregoing is clear and convincing evidence upon which a trial court could conclude that

termination of the parental relationship was in the best interest of the children.

       That Turrentine recently secured employment, found an apartment, and bought

gifts for the children also appeared in the record. Nonetheless, the latter evidence does

not overwhelm that described above or otherwise impugn the trial court’s finding. The

issue is overruled.

       Constitutionality of the Filing Period

       Turrentine     next   argues    that   §263.405(b)(2)   of   the   Family     Code   is

unconstitutional. That section requires one appealing from a termination order to file a

statement of points upon which he intends to appeal.                TEX. FAM. CODE ANN.

§263.405(b)(2) (Vernon 2008).         Furthermore, that statement must be filed within 15

days of the date the final order was signed. Id. §263.405(b). Because of the rather

short time limit involved, Turrentine believed that it prevented her from receiving the




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effective assistance of trial counsel and, therefore, due process.     We disagree and

overrule the issue.

      Before it can be said that one has been denied the effective assistance of

counsel, the claimant must prove that counsel’s performance was both unreasonably

deficient and harmful. In re J.P.B., 180 S.W.3d 579, 574 (Tex. 2005). And, before it

can be said that the time period in question somehow prevented counsel from being

effective, it would be logical for Turrentine to prove that her counsel was prevented from

doing something. Indeed, one cannot legitimately claim foul in being denied the time to

do something if he never thought about or intended to do it. And, what, if anything,

Turrentine or her counsel would have done at bar but for the 15-day time period went

unmentioned. Rather, the number of topics included in her statement of points (i.e. 13)

indicates that the provision stood as no impediment to her ability to attack the final

judgment.   So, we cannot say that she proved that she was denied effective counsel

and, therefore, due process because of §263.405(b) of the Family Code.

      Admission of Hearsay

      Turrentine finally contends that the trial court erred in allowing the admission of

evidence regarding drug tests she and L.M.L. underwent and the results of same. The

specific evidence was contained in records maintained by the Department but which

allegedly failed to qualify as business records. Thus, the statements therein about drug

use and drug testing purportedly were hearsay and their consideration allegedly denied

her due process. We overrule the issue.

      Assuming arguendo that the reports were inadmissible hearsay, we nonetheless

find their admission to be harmless. This is so because like evidence was admitted



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elsewhere without objection.     See In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.–

Houston [14th Dist.] 2006, pet. denied) (holding that error in the admission of evidence is

harmless when like evidence comes in elsewhere without objection). For instance, one

expert testified that Turrentine admitted to him that between 2002 and 2007 she

smoked marijuana daily and ingested cocaine twice a week, except for the time she was

in prison. That five-year time span encompassed the months during which she was

pregnant with L.M.L., who was born in April of 2007. She also admitted to this expert

that she was seeing him because she failed various drug tests administered to her.

Turrentine further admitted to the witness that she did not stop taking drugs until

September of 2007, or some five months after L.M.L. was born. The witness also

testified, without objection, to being told either by Turrentine or a caseworker that L.M.L.

had tested positive for drugs at his birth. So, as can be seen, the evidence about which

Turrentine now complains was actually redundant of other evidence about which she

uttered no complaint below or here.

       Having overruled each issue, we affirm the judgment of the trial court.




                                                 Brian Quinn
                                                 Chief Justice




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