
In The


Court of Appeals


Ninth District of Texas at Beaumont


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NO. 09-01-037 CV

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IN THE INTEREST OF M.S., E.S., D.S., S.S., AND N.S., MINOR CHILDREN




On Appeal from the 317th District Court
Jefferson County, Texas

Trial Cause No. C-152,901-A




OPINION
 Shana Strickland appealed the termination of her parental relationship with her five
children, M.S., E.S., D.S., S.S., and N.S.  We affirmed the judgment on original
submission.  In the Interest of M.S., 73 S.W.3d 537, 542 (Tex. App.--Beaumont 2002). 
The Supreme Court reversed our judgment and remanded the case with instructions to
"determine whether counsel's failure to preserve the factual sufficiency issue was not
objectively reasonable, and whether this error deprived Strickland of a fair trial."  In the
Interest of M.S., 115 S.W.3d 534, 550 (Tex. 2003). 
	To paraphrase the standard articulated by the Supreme Court, we must indulge in
the strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance, including the possibility that counsel's decision not to challenge
factual sufficiency was based on strategy, or even because counsel, in his professional
opinion, believed the evidence factually sufficient such that a motion for new trial was not
warranted.  Id. at 549.  The rebuttable presumption is that it was considered by the
appellant and rejected.  It is the appellant's burden to establish that counsel's performance
fell below an objective standard of reasonableness.  Id.  If we determine that counsel's
performance was deficient, we must determine whether there is a reasonable probability
that, but for counsel's failure to preserve error, the result of the proceeding would have
been different.  Id. at 550. Such a review calls upon us to determine harm as if factual
sufficiency had been preserved, under our established factual sufficiency standard in
parental-rights termination cases, understanding that the evidentiary burden in such cases
is "clear and convincing."  Id.  If counsel's failure to preserve a factual sufficiency
complaint was unjustified and fell below being objectively reasonable, then it must hold
that counsel's failure to preserve the factual sufficiency complaint by a motion for new trial
constituted ineffective assistance of counsel, and we must reverse the trial court's
judgment, and remand the case for a new trial.  Id. 
	In assessing the prejudice prong of the appellant's claim of ineffective assistance of
counsel, we must determine whether, on the entire record, the jury could reasonably form
a firm conviction or belief that Strickland violated one of the alleged conduct predicates
of Section 161.001(1) and that the termination of her parental rights would be in the best
interest of the children.  In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002).  If we find
the evidence is factually insufficient, we must detail the evidence relevant to the issue of
parental termination and clearly state why the evidence is insufficient to support a
termination finding by clear and convincing evidence.  Id. at 19.  "Clear and convincing
evidence" means 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. 
Id. at 25.  The jury considered five predicate acts as grounds for termination: (1)
endangerment by conditions or surroundings; (2) conduct endangerment; (3) failure to
submit to a court order; (4) constructive abandonment; and (5) failure to comply with a
court order.  Tex. Fam. Code Ann. § 161.001(1)(D),(E),(I),(N), and (O) (Vernon 2002). 
Only one finding of a statutory ground is required to terminate parental rights.  See In the
Interest of R.D., 955 S.W.2d 364, 367 (Tex. App.--San Antonio 1997, writ denied).  The
jury was also asked to consider the best interest of the children.  Tex. Fam. Code Ann.
§ 161.001(2) (Vernon 2002).  Neither the appellant nor the appellee isolate any of the
evidence affecting any one child apart from the others, nor do they argue that the facts call
for a different analysis as to any of Strickland's offspring.  Therefore, we will address
these elements as they relate to all five children.  
	"Endanger" means to expose to loss or injury; to jeopardize; it consists of conduct
that is more than a threat of metaphysical injury or the possible ill effects of a less than
ideal family environment, but the children need not suffer actual physical injury to
constitute endangerment.  Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987).  Endangerment can occur through both the acts and omissions of the parent. 
R.D., 955 S.W.2d at 367.  The Texas Department of Protective and Regulatory Services (1)
argues that Strickland neglected the children and failed to secure a safe environment for
them.  The Department's first contact with the Strickland family occurred in 1994.  More
referrals followed, in 1995, 1997, 1998, and 1999, before the Department obtained an
order for emergency removal in June 1999.  The Department maintained a goal of
reunification until a few weeks before the December 2000 trial, when Strickland's failure
to secure suitable living quarters and employment in the face of the impending dismissal
date compelled the Department to abandon its efforts to reunite the family.  At the outset
of her testimony, Strickland admitted, "I neglected them in a lot of ways."  
	First, there was evidence of their exposure to violence.  At the time of removal
Strickland and her boys were living with Strickland's mother, Louetta LeBouf, and
Louetta's teenaged son.  At trial, Strickland admitted that her teen-aged brother had hurt
her boys and that the boys were afraid of him.  During her psychological evaluation, she
admitted that her brother severely physically abused the children, but stated, "I don't try
to stir things up" and reported that she felt if she tried to protect her children she would
be asked to leave and would have no place to live.  Strickland's brother broke the growth
plate in E.S.'s knee, dislocated E.S.'s elbow while chasing him around the house and
"hollering" at him, pulled a muscle in M.S.'s neck, and dislocated M.S.'s shoulder. 
LeBouf testified that she did not believe her son was a threat to the children, and
characterized the injuries as "play."  In her brief, Strickland argues, "[The evidence in this
case] shows that boys will be boys and horseplay is a part of life."  The jury, however,
could reasonably discern a pattern of abuse from the evidence of frequent significant
injuries.   
	Second, the children had to fend for themselves.  A caseworker testified that the
1998 intervention occurred because the boys were riding their Big Wheels in the street
unsupervised.  The jury heard testimony about separate incidents in which two of the
children received serious burns while performing household chores.  M.S. burned his
fingers while cleaning the stove unsupervised.  A few weeks later, four-year-old S.S.
sustained extensive burns to his chest and arm while cooking spaghetti in the microwave
unsupervised.  As an indication of the sort of nutrition they received, the day care operator
testified that she supplied formula for N.S. in his infancy because Strickland sent him to
day care with Kool-Aid in his bottles.  The day care operator also testified that she felt the
boys missed excessive amounts of school.  When she inquired about their absence, the
older boys explained that they needed to clean the house.  On cross-examination,
Strickland admitted that she sometimes would not wake the children up for school.  The
boys' hygiene was poor, and the day care operator would frequently give N.S. a bath at
the day care.  She would take the boys home herself at 6:30 pm, because if she did not,
Strickland would leave the children at the day care until 8:00 pm. 
	Third, the jury heard evidence of physical, emotional, and medical neglect.  S.S.'s
burn was not treated by a physician, nor was a burn sustained on the following day when
five-year-old D.S. was somehow burned by a light bulb.  N.S. suffered from what the day
care operator terms the worst diaper rash she had ever seen.  He also had fungus on his
genitals.  Although topical medication has been prescribed for these conditions, Strickland
misplaced it and failed to treat the child.  In addition to being illiterate at age nine, E.S.
defecated on himself.  S.S. had behavior and speech problems, including an incident where
he took a knife to school.  Strickland admitted that she did nothing about their emotional
problems. 
	Fourth, the jury heard evidence that Strickland failed to comply with the trial court's
orders.  The Department caseworker testified that their main concern was the appellant's
lack of a stable income and stable housing.  The Department developed a series of service
plans with the goal of reuniting the family.  Each service plan became part of the court
orders in the case.  Strickland was receiving child support for one of the children; she was
ordered to pay the $200 in monthly child support to the Department, but never did so. 
Ordered to find employment, Strickland obtained and lost a series of jobs, usually due to
tardiness within days of employment.  She was unemployed on the trial date.  
	The evidence indicates that Strickland failed to form mature relationships.  She
maintained no contact with any of the five fathers of her children, who were identified by
the Department in spite of Strickland's failure to comply with the paternity testing order. 
The thirty-year-old appellant formed friendships with teenagers, who were often in the
house and who distracted her from her own children.  At the time of trial, she was sharing
an apartment with an eighteen-year-old female. 
	Finally, the jury heard testimony about drug addiction.  Strickland admitted she
occasionally used drugs before the children were removed from the home, but claimed that
the serious drug abuse occurred after removal.  The jury could reasonably conclude,
however, that Strickland abused drugs while the children were in her custody.  For one,
she admitted that she used drugs while the children were in the home.  She also explained
that she did not pick up her children at day care because she was "spending time with
people I shouldn't have been, and I was doing things I shouldn't have been doing."  At
trial, she admitted that she and two friends spent $500 per day on cocaine.  She admitted
that she purchased drugs with some of the $3,000 she received in child support, even after
the trial court ordered her to pay the child support to the Department. 
	The jury heard evidence concerning rehabilitation, too.  Strickland successfully
completed two levels of a drug treatment program, in January and March 2000, and
reported that she had been drug-free for a year.  She also attended perhaps half of the
required counseling sessions and took parenting classes.  Strickland admitted, however,
that she had made only one visit to the children in the four months prior to trial.  She
claimed she was looking into returning to college, but had not applied; that she had
checked on child care, but secured none; and that she had located a house, but it did not
pass inspection.  In the eighteen months the children were in Department custody,
Strickland failed to secure adequate housing or obtain the financial means to maintain
adequate housing.  Asked if she could provide for her children "right now today," the
appellant replied, "Not today.  But I will in a few weeks." 
	The evidence of violence against the children, neglect, and illegal drug use supply
ample evidence to produce in the jury a firm belief or conviction as to the truth of the
allegations of condition endangerment and conduct endangerment.  Likewise, the jury
could form a firm belief or conviction regarding the truth of the allegations of failure to
submit to a court order and failure to comply with a court order from the evidence of the
appellant's noncompliance regarding court-ordered paternity testing and her failure to
secure stable housing and employment.  Finally, a finding of constructive abandonment is
supported by evidence from which the jury could form a firm belief that the children were
in Department custody for more than six months, that the Department made reasonable
efforts to return the children to their mother, that Strickland did not regularly visit or
maintain significant contact with the children, and that she demonstrated an inability to
provide the children with a safe environment.   
	In addition to presenting sufficient evidence under at least one of the five pertinent
termination predicates of Section 161.001(1), the termination of the parent-child
relationship must also be supported by evidence to show that it is in the best interest of the
children.  Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002).  Nonexclusive factors that
the jury may consider in determining the best interest of the children include: (1) the
desires of the children; (2) the emotional and physical needs of the children now and in the
future; (3) the emotional and physical danger to the children 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 children; (6) the plans for the children
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 which 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.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 
	The testimony in this case reveals a pervasive pattern of instability in the appellant's
life, both with personal relationships and finances.  She displayed reckless disregard for
the safety of her sons and consistent irresponsibility in conducting her personal life.  At
the time of trial she was unprepared for employment, transportation, housing, and child
care.  The Department provided services to the family both before and after removal. 
Strickland did benefit from drug treatment, but she demonstrated no appreciable
improvement in her parenting skills.  The children did not want to be separated from their
mother, but at least two of the children have significant emotional and developmental needs
that must be addressed.  All five boys need domestic stability that their mother never
provided.  From the evidence of past conduct and present conditions, the jury could have
reasonably determined that she would never provide adequate care, and that it would be
in the best interest of the children to terminate Strickland's parental rights so that the
Department could move forward with its plan for adoption.
	The evidence in this case was factually sufficient to support the jury's verdict.  As
a result, we cannot conclude that there is a reasonable probability that, but for counsel's
failure to preserve the factual sufficiency issue for appellate review, the result of the
proceedings would have been different.  In the exercise of his professional judgment, trial
counsel could reasonably have decided not to challenge factual sufficiency.  Therefore,
Strickland was not deprived of effective assistance of counsel due to counsel's failure to
preserve the sufficiency issue by filing a motion for new trial. 
	We overrule the issue presented in this appeal.  The judgment is affirmed.
	AFFIRMED.

							_________________________
							     STEVE MCKEITHEN
								   Chief Justice

Submitted on April 29, 2004
Opinion Delivered July 1, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.
1. The Department has since been re-named the Texas Department of Family and
Protective Services.
