                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                      No. 07-13-00167-CV


                           IN THE INTEREST OF C.C.L., A CHILD


                          On Appeal from the County Court at Law No. 2
                                      Randall County, Texas
                  Trial Court No. 9188-L2, Honorable Jack M. Graham, Presiding

                                      October 11, 2013

                               MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant, father1 of C.C.L., appeals the trial court’s order terminating his

parental rights to his son and appointing the Texas Department of Family and Protective

Services as managing conservator. The father asserts the evidence was insufficient to

terminate his parental rights and his counsel provided him with ineffective assistance.

We will affirm.




       1
        Pursuant to rule 9.8 of the Texas Rules of Appellate Procedure, we will refer to
appellant as “the father.” See Tex. R. App. P. 9.8.
                                            Background


       C.C.L. was born December 9, 2011. The Department removed C.C.L. from the

hospital on December 12 after a drug test indicated he had methamphetamine in his

system.      The mother admitted to using methamphetamine and marijuana while

pregnant.2    C.C.L. was not left in the father’s care because the father then had a

pending criminal case for possession of a controlled substance. He later plead guilty to

that offense and was sentenced to twenty years in prison.


                                              Analysis


Sufficiency of Evidence to Support Termination of Parental Rights


Standard of Review


       In a case to terminate parental rights brought by the Department under Family

Code § 161.001, the Department must establish, by clear and convincing evidence, that

(1) the parent committed one or more of the enumerated acts or omissions justifying

termination and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.

§ 161.001 (West 2012); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing

evidence 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 J.F.C., 96 S.W.3d 256, 264 (Tex.

2002); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (holding that, because

termination of parental rights is complete, final, irrevocable and divests for all time the

       2
        The mother’s parental rights to C.C.L. also were terminated in the order under
appeal, but she has not appealed the termination of her rights.

                                              2
natural right of a parent, the evidence in support of termination must be clear and

convincing before a court may involuntarily terminate a parent's rights) (citing Santosky

v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92, 71 L. Ed. 2d 599 (1982)).


       In conducting a legal sufficiency review in a parental rights termination case

under section 161.001, we view all the evidence in the light most favorable to the finding

to determine whether the fact finder could reasonably have formed a firm belief or

conviction about the truth of the matter on which the Department bore the burden of

proof. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266. We

"must consider all of the evidence, not just that which favors the verdict." In re J.P.B.,

180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266. We must assume that the fact finder

resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and

we should disregard all evidence that a reasonable fact finder could have disbelieved or

found to have been incredible. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d

at 266.


       We must uphold the trial court’s ruling against a factual sufficiency challenge if

the evidence is such that a reasonable jury could form a firm belief or conviction that

grounds exist for termination under Texas Family Code sections 161.001 and

161.206(a). In re C.H., 89 S.W.3d at 18-19. To reverse a case on insufficiency grounds,

the reviewing court must set forth 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. The Texas Supreme Court has

emphasized that, in applying the clear and convincing evidence standard, the appellate

courts must maintain the respective constitutional roles of juries and appellate courts.

                                             3
Id. at 26. In that regard, “[a]n appellate court's review must not be so rigorous that the

only fact findings that could withstand review are those established beyond a

reasonable doubt. . . . While parental rights are of constitutional magnitude, they are not

absolute. Just as it is imperative for courts to recognize the constitutional underpinnings

of the parent-child relationship, it is also essential that emotional and physical interests

of the child not be sacrificed merely to preserve that right.” Id.


         The Department must establish both elements—that the parent committed one of

the acts or omissions enumerated in section 161.001(1) and that termination is in the

best interest of the child. See Tex. Fam. Code Ann. §161.001; In re C.H., 89 S.W.3d at

23. Termination may not be based solely on the best interest of the child as determined

by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987).


Grounds


         Subsection Q of section 161.001(1) permits termination when clear and

convincing evidence shows that the parent "knowingly engaged in criminal conduct that

has resulted in the parent's: (i) conviction of an offense and (ii) confinement or

imprisonment and inability to care for the child for not less than two years from the date

of filing the petition." Tex. Fam. Code Ann. § 161.001(1)(Q) (West 2007); In re A.V., 113

S.W.3d 355, 360 (Tex. 2003). We apply subsection Q prospectively. Subsection Q thus

“looks at whether the incarcerated parent will be unable to care for the child for two




                                              4
years from the date the termination petition is filed.” Id.; see In re H.R.M., 209 S.W.3d

105, 110 (Tex. 2006) (also applying subsection Q).3


       Establishing incarceration for the requisite period does not, by itself, justify

termination pursuant to subsection Q. In re B.M.R., 84 S.W.3d 814, 818 (Tex.App.—

Houston [1st Dist.] 2002, no pet.); In re Caballero, 53 S.W.3d 391, 395 (Tex.App.—

Amarillo 2001, pet. denied). The evidence must also show the parent's inability to care

for the child for two years from the date of the petition's filing. In re B.M.R., 84 S.W.3d at

818. Thus, as separate requirements, incarceration and an inability to care for the child

must each be established by the evidence to support termination. Id. Because the

parent is incarcerated and unable to care for the child directly, the "care" contemplated

by subsection Q "encompass[es] arranging for care to be provided by another." In re

Caballero, 53 S.W.3d at 396.


       On appeal, the father argues the State failed to prove the subsection Q ground

on which his parental rights were terminated because the “Department’s own evidence,

a certified copy of the Felony Plea Memorandum in Appellant’s criminal case showed

that the conviction did not occur until April 1, 2013, approximately one year and three-


       3
          Two courts of appeals have determined that the phrase “the petition” in
subsection Q’s phrase “the date of filing the petition,” refers to the Department’s original
petition, not an amended pleading alleging violation of subsection Q. In re K.G., No. 11-
12-00130-CV, 2012 Tex.App. Lexis 7409 (Tex.App.—Eastland Aug. 31, 2012, no pet.)
(mem. op.); In re D.J.H., 381 S.W.3d 606, 612-13 (Tex.App.—San Antonio, August 1,
2012, no pet.). The Department’s original petition in this case, filed December 12, 2011,
did not allege the father’s rights were subject to termination under subsection Q; that
allegation was added in amended pleadings filed November 19, 2012. Because of the
length of the sentence of imprisonment assessed against the father, however, it makes
no difference in this case whether we measure the not-less-than-two-year-period from
the date of filing of the original petition or that of the amended petition. We therefore
need not express an opinion which of the dates should be used for that purpose.

                                              5
and-a-half months from the date of the filing of the petition in this matter, and just eight

days before the final hearing terminating his rights.” Thus, he argues, the evidence was

insufficient to show he was both convicted and confined or imprisoned and unable to

care for the child for not less than two years from the date of the filing of the petition.

Rather, he asserts the evidence presented by the Department established “the

complete opposite of the fact ….”


       As we perceive his argument, the father contends that the two-year period

referred to in subsection Q is limited to the precise two-year period beginning with the

filing date of the Department’s petition, so that for subsection Q to be applicable, his

conviction must have occurred before the Department filed its petition. The language

we have quoted from In re A.V. does refer to “two years from the date the termination

petition is filed,” 113 S.W.3d at 360, but, under the facts in that case, the parent had

been convicted before the Department filed its original petition. Id. at 357. The same

was true in the other case in which the Texas Supreme Court has addressed subsection

Q, In re H.R.M., 209 S.W.3d 105. The petition seeking to terminate parental rights there

was filed after the parent’s conviction. Id. at 108.   Neither opinion, however, suggests

application of subsection Q is limited to those circumstances. Nor does the language of

subsection Q contain the requirement that the parent’s conviction occur before the filing

of the petition.   With regard to the two-year period, it simply requires proof of the

parent’s confinement or imprisonment and inability to care for the child “for not less than

two years from the date of filing the petition.” That the father in this case was convicted

after the Department filed its petition does not render the evidence insufficient.




                                             6
      The father also challenges the sufficiency of the evidence of his inability to care

for C.C.L. during his imprisonment. The child has been in foster care since his removal

shortly after his birth. On the father’s guilty plea on April 1, 2013, he was sentenced to

imprisonment for a period of twenty years.


      Evidence shows the father suffers from a heart condition, diabetes and partial

blindness. His girlfriend, Michelle, lives with him and helps care for him. The father has

a criminal history and a significant drug history. He admitted he was selling

methamphetamine at the time of his arrest. Michelle testified she was with the father

the night he was arrested for possession of methamphetamine but denied knowledge of

the drugs in his car.       After cross examination, Michelle did admit she used

methamphetamine in the past and knew the father had sold methamphetamine.


      At trial, the father argued C.C.L. should live with Michelle while he is

incarcerated. The case worker testified C.C.L. cannot be placed with Michelle because

of her history of criminal activity and drug use, and prior child endangerment charges.


      Evidence contrary to the trial court’s finding under section 161.001(1)(Q) included

testimony from Michelle and the father to the effect that he had left $5,500 in an account

for support for C.C.L. Michelle also testified she had a job “lined up” to help support

C.C.L. and lived in the home owned by the father. She testified she made the mortgage

payments on the home and had family that would help her raise C.C.L. The father

testified he also had family members who would “look out” for C.C.L. until he was

released from prison. Both the father and Michelle completed all of the services set forth

in the father’s service plan. The father was present at C.C.L.’s birth and had weekly


                                             7
hour-and-a-half visits with the child. Michelle also testified she “got rid” of “all the

druggies that have been around the house” and that she did not use drugs.


      Because the father produced some evidence how he would arrange care for

C.C.L. during his incarceration, the Department bore the burden of persuasion that the

father’s arrangement would not satisfy his parental duty to the child. In re Caballero, 53

S.W.3d at 396. We find the Department met that burden.            Given the evidence of

Michelle’s close association with the father and her knowledge he was selling

methamphetamine, the trial court had good reason to accept the Department’s

contention and evidence she was not a suitable or legally viable proposed placement for

his child. The court was not obligated to accept Michelle’s testimony in favor of the

placement. See In re J.P.B., 180 S.W.3d at 573 (appellate court must defer to trial court

determinations of witness credibility issues that depend on appearance and demeanor).

In similar circumstances, other courts have sustained subsection Q grounds. See In re

G.C., No. 01-12-00935-CV, 2013 Tex.App. LEXIS 2115 (Tex. App.—Houston [1st Dist.]

Mar. 5, 2013, no pet.) (mem. op.) (finding subsection Q evidence sufficient when father

failed to name another person to care for child after his proposed placement was

rejected by Department). The father’s testimony his family would “look out” for the child

does not render the Department’s evidence insufficient. See In re H.R.M., 209 S.W.3d

at 110 (citing In re Caballero, 53 S.W.3d at 396).


      Having reviewed the record, we conclude the evidence, viewed in the light most

favorable to the section 161.001(1)(Q) finding, was sufficiently clear and convincing that

a reasonable factfinder could have formed a firm belief or conviction that the father

knowingly engaged in criminal conduct that has resulted in his (i) conviction of an

                                            8
offense and (ii) confinement or imprisonment and an inability to care for the child for not

less than two years from the date of the filing of the petition. We further conclude that,

viewed in light of the entire record, any disputed evidence could have been reconciled in

favor of the section 161.001(1)(Q) finding or was not so significant as to prevent the fact

finder reasonably from forming a firm belief or conviction that the elements of

subsection Q were shown. Accordingly, we find the evidence was legally and factually

sufficient to support the section 161.001(1)(Q) finding.


Best Interests


       The father also challenges the trial court’s finding that termination of his parental

rights to C.C.L. was in the child’s best interests. There is a strong presumption that the

best interest of the child will be served by preserving the parent-child relationship. In re

R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child

in a safe environment is also presumed to be in the child's best interest. Tex. Fam.

Code Ann. § 263.307(a) (West 2008). Among others, the following factors should be

considered in evaluating the parent's willingness and ability to provide the child with a

safe environment: the child's age and physical and mental vulnerabilities; the frequency

and nature of out-of-home placements; the willingness and ability of the child's family to

seek out, accept, and complete counseling services and to cooperate with and facilitate

an appropriate agency's close supervision; and whether an adequate social support

system consisting of an extended family and friends is available to the child. Tex. Fam.

Code Ann. § 263.307(b); In re R.R., 209 S.W.3d at 116.




                                             9
       The Texas Supreme Court has set out additional factors that courts can consider

when determining the best interest of the child, 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

individual seeking custody; (5) the programs available to assist the individual to promote

the best interest of the child; (6) the plans for the child by the individual or by the agency

seeking custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent that may indicate that the existing parent-child relationship is

not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This is not an exhaustive list, and a court

need not have evidence on every element listed in order to make a valid finding as to

the child's best interest, especially when there is undisputed evidence that the parental

relationship endangered the child. In re C.H., 89 S.W.3d at 27.


       The evidence supporting the statutory grounds for termination may also be used

to support a finding that the best interest of the child warrants termination of the parent-

child relationship. Id. at 28; In re N.R.T., 338 S.W.3d 667, 677 (Tex.App.—Amarillo

2011, no pet.). Furthermore, the best interest analysis may consider circumstantial

evidence, subjective factors, and the totality of the evidence as well as the direct

evidence. In re N.R.T., 338 S.W.3d at 677. The best interest under consideration is that

of the child, not that of the parent.     Id., citing In re S.A.P., 169 S.W.3d 685, 707

(Tex.App.—Waco 2005, no pet.).




                                             10
       With the foregoing in mind, we review the legal and factual sufficiency of the

evidence to support the trial court's finding that termination was in C.C.L.’s best

interests.


       We have described the evidence of the father’s admitted drug dealing. As a

consequence of the father’s actions, C.C.L. is deprived of an in-person relationship with

his father, for a period of time that cannot be known on this record.


       The evidence further shows the father4 admitted at one time he was aware that

the mother of C.C.L. used drugs while she was pregnant. He later denied making this

statement. When C.C.L. was born, a test showed methamphetamine in his system.

Given this evidence, the trial court reasonably could have determined the father at the

least condoned behavior that led to injurious consequences for the infant. The evidence

of these actions strongly indicates that the existing parent-child relationship is not a

proper one.


       The father’s plan for C.C.L.’s future was his placement with Michelle. Michelle

commendably had completed the family plan requirements with the father, desired to

have the child, had a suitable and well-kept home, visited with the child weekly with the

father and, some evidence showed, had a bond with the child. She and the father

testified to the willingness of other family members to help with the child, although

neither the capabilities of those family members to be of help nor the propriety of their

doing so was explored in testimony. As we have noted, however, there were reasons

for the trial court not to view the father’s plan for the child’s care as feasible. From the

       4
       The record also shows the father has two other children, one placed with
grandparents and another with an open case with the Department.

                                            11
testimony, it is unclear that placement with Michelle ever could be accomplished under

the Family Code. The child, of course, had never been under Michelle’s care, and her

ability to meet his needs in the absence of support from the father is subject to doubt on

this record.


       Just as there were elements of uncertainty in the father’s plan for future care of

the child, the Department’s plan would require changes in the child’s life. C.C.L. was

one year and four months old at the time of the final hearing and was doing well. But

the foster home in which he was living was not a potential adoptive home.              The

caseworker testified the Department’s plan was to place C.C.L. in an adoptive home

after termination of the parental rights. Termination of the father’s parental rights thus

likely will cease the child’s contact with Michelle and shortly with his current foster

family. The child is still very young, however, and the court reasonably could have

reached a firm conviction that the Department’s plan carried the greater likelihood of

stability and permanency for the child.


       Although there was evidence contrary to a finding termination was in the child’s

best interest, there was strong evidence in favor of that finding. We conclude any

evidence that the court could not have credited in favor of its best interest finding was

not so significant as to make its finding unreasonable. See In re J.F.C., 96 S.W.3d at

266 (standard for factual insufficiency). The evidence is legally and factually sufficient

to support the trial court’s finding that termination of the father’s parental rights was in

the best interests of C.C.L. We overrule the father’s second issue.




                                            12
Ineffective Assistance of Counsel


      The father lastly contends his counsel provided ineffective assistance.         The

Texas Family Code requires the appointment of counsel to represent an indigent parent

who opposes the Department’s effort to terminate his parental rights. Tex. Fam. Code

Ann. § 107.013(a)(1) (West 2009). The Texas Supreme Court has held that this

statutory right to counsel "embodies the right to effective counsel." In re M.S., 115

S.W.3d 534, 544 (Tex. 2003).


      According to the father, counsel's performance was so deficient it triggers a

presumption that it changed the outcome of the case. See Strickland v. Washington,

466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674 (1984); United States v.

Cronic, 466 U.S. 648, 654-55, 104 S. Ct. 2039, 2044, 80 L. Ed. 2d 657 (1984). In

evaluating claims of ineffective assistance of counsel in civil parental-rights termination

cases, we begin with the standard set forth by the United States Supreme Court for

criminal cases in Strickland v. Washington. In re M.S., 115 S.W.3d at 544-45 (citing

Strickland, 466 U.S. at 687). Under the Strickland standard, a parent must show both

that (1) his attorney's performance was deficient and fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced his defense. Id. at 545;

Strickland, 466 U.S. at 684-87.


      In its parental rights termination jurisprudence, the Texas Supreme Court has

focused on Strickland's second prong, holding that an ineffective assistance of counsel

claim "requires more than merely showing that appointed counsel was ineffective." In re

J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). The parent must also show that "counsel's


                                            13
deficient performance prejudiced the defense." Id. (quoting Strickland, 466 U.S. at 687).

To show prejudice, the parent "must show that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been

different." Strickland, 466 U.S. at 694. In this context, "[a] reasonable probability is a

probability sufficient to undermine confidence in the outcome." Id.


       The father argues his counsel was ineffective in three respects: she failed to

challenge, at the final hearing, C.C.L.’s initial removal; she failed to point out to the trial

court that the father was not incarcerated or convicted until April 1, 2013, eight days

before the final termination hearing; and she signed the proposed order containing an

incorrect rendition of the trial court’s findings, because the order recited two grounds5

for termination of the father’s rights rather than the one orally pronounced.6 We cannot

agree any of the three instances demonstrate deficient performance by counsel.


       As to the father’s first complaint, he does not explain how his counsel’s failure to

challenge, at the time of the final termination hearing, the Department’s initial removal of

C.C.L. from the hospital constituted deficient performance, or in what manner it

prejudiced his defense of the termination proceeding. See Melton v. Tex. Dep't of

Family & Protective Servs., No. 03-08-00168-CV, 2010 Tex.App. LEXIS 1352

(Tex.App.—Austin Feb. 25, 2010, no pet.) (mem. op.) (in termination appeal, finding

challenges to similar interim orders both unpreserved and ineffective to show reversible




       5
         The judgment contained both the subsection Q ground rendered by the trial
court and an additional ground.
       6
         The father notes additional alleged omissions but acknowledges they probably
did not affect the outcome of the hearing.

                                              14
error). Moreover, given the state of the record, counsel well could have concluded that

any challenge to the removal would have been futile.


       The validity of the father’s second complaint is dependent on his initial argument

in this appeal, by which he contended subsection Q could not apply to him because he

was not convicted until well into the second year following the date the Department filed

its petition. Because we have rejected the father’s contention, we must also conclude

trial counsel was not ineffective for failing to bring the contention to the trial court.


       Lastly, we cannot agree counsel’s mere agreement to the form of an assertedly

improper termination order constitutes ineffective assistance. The record is silent as to

counsel’s reasons for agreeing to the proposed order’s form, and her doing so would

not in any event have changed the outcome of the case because the order correctly set

forth the trial court’s finding as to one predicate ground and as to best interests. Other

errant inclusions would not have changed the case’s outcome.


       For these reasons, we overrule the father’s final issue.


                                          Conclusion


       Having resolved each of the father’s issues against him, we affirm the order of

the trial court terminating the father’s parental rights to his child, C.C.L.




                                            James T. Campbell
                                                Justice




                                               15
