
                           NO. 07-10-0261-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL B

                            JANUARY 7, 2011




                   In the Interest of J.T.B., a Child
                     _____________________________

         FROM THE COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;

          NO. 6867-L2; HONORABLE RONALD WALKER JR., PRESIDING



                           Memorandum Opinion



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
      Sherri Dawn Drake appeals the termination of her parental  rights
to her two-year-old  daughter  J.T.B.  by  challenging  the  legal  and
factual sufficiency of the evidence to support  the  statutory  grounds
found by the court, as well as the finding that termination is  in  the
best interest of the child.  She also contends the trial  court  failed
to terminate her rights within  the  statutorily  mandated  period  and
that her counsel was ineffective for failing to object to the  default.
 We affirm the order.
      Standard of Review
      The standard by which we review the sufficiency of  the  evidence
in a termination case is discussed in In re J.F.C., 96 S.W.3d 256, 266-
67 (Tex. 2002) and In re C.H., 89 S.W.3d 17, 25 (Tex.  2002)  to  which
we refer the  parties.   Moreover,  we  need  only  find  the  evidence
sufficient to support termination under one statutory ground  and  that
termination is in the best interest of the child to  affirm  the  trial
court’s  order.   In  re  K.C.B.,  280   S.W.3d   888,   894-95   (Tex.
App.–Amarillo 2009, pet. denied).
      Statutory Grounds
      The trial court found  three  statutory  grounds  upon  which  to
terminate the parental rights of Sherri.   They  include  grounds  that
Sherri 1) knowingly placed or knowingly allowed the child to remain  in
conditions or surroundings which endangered the physical  or  emotional
well-being of the child, 2) engaged in conduct or knowingly placed  the
child  with  persons  who  engaged  in  conduct  which  endangered  the
physical or emotional well-being of the child, and 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  child  who  had
been in the managing conservatorship of the Department  of  Family  and
Protective Services (the Department) for not less than nine  months  as
a result of removal from the parent for the abuse  or  neglect  of  the
child.
      In support of these findings, there was evidence  in  the  record
of the following:  1) Sherri, who was eighteen at  the  time  she  gave
birth, had used drugs and smoked  during  her  pregnancy,  even  though
Sherri acknowledged that she knew smoking could be detrimental  to  her
child and cause a premature birth, 2) the child  was  born  prematurely
and stayed in the hospital for the first three months of her  life,  3)
the child weighed one pound, six ounces at birth  and  had  significant
health problems including cerebral palsy,  acid  reflux,  sleep  apnea,
chronic lung disease, undeveloped vision, and a brain bleed, 4)  Sherri
and her mother, with whom Sherri lived at the time of the  commencement
of  this  proceeding,  were  repeatedly  told  by  medical   personnel,
counselors, and Department workers that the child could not  be  around
any second or third-hand  smoke  but  neither  one  of  them  had  quit
smoking at the time of trial,[1] 5) during the  time  that  Sherri  had
custody of the child,  she  was  brought  in  with  brain  and  retinal
hemorrhages  which  the  treating  doctors  believed  was   caused   by
intentional blunt force trauma to the head,[2] 6) the child,  who  only
weighed sixteen pounds at the time of trial,  lost  weight  during  the
time that Sherri had extended unsupervised visitation  with  the  child
and her pediatrician recommended that  such  visits  cease,[3]  7)  the
child needs breathing treatments  every  three  hours,  attends  speech
therapy, occupational therapy, and Head Start training on language  and
motor skills, and has numerous  doctor  appointments,  8)  Sherri  only
attended six of  the  twenty-four  doctor’s  appointments  despite  the
requirements of her service plan and excused her absences  by  alleging
that she could not obtain the  date  of  the  appointments,  9)  Sherri
attended only six of thirteen visitations arranged by  CASA,  10)  both
Department workers and counselors testified that Sherri  did  not  seem
to recognize the seriousness  of  her  child’s  medical  problems,  11)
Sherri would show up late or fail to come at the time the hospital  had
arranged for her to give medications to her child, 12) Sherri  and  her
mother were on probation for hindering the apprehension of  a  fugitive
(the father of the child) after he escaped from jail  and  despite  his
being considered by law enforcement authorities to be dangerous due  to
his criminal record, 13) Sherri had a history  of  self-mutilation  and
overdosing on medication, 14) a psychological evaluation revealed  that
Sherri did not show appropriate sensitivity for the “medically  fragile
circumstances” of her child, was dismissive of any  weaknesses  in  her
parenting skills, and lacked good social  adjustment  which  would  put
her child at risk,  15) a counselor stated that while  Sherri  attended
eight required sessions with her, Sherri  did  not  see  the  need  for
additional  therapy,  despite  it  being  free,  16)  from  a   bonding
assessment, it was determined that Sherri  scored  below  the  average,
while a parent of a child needing continuing medical care should  score
better than average, 17) Sherri displayed  fatigue  during  visitations
with the child, sometimes failed to interact with the child,  left  the
child to play by herself, and had to be reminded to change the  child’s
diaper, 18) the child fell during  a  visit  with  her  mother  because
Sherri was using her cell phone,  19)  in  March  2010,  Sherri  had  a
cabinet full of empty liquor bottles  in  an  apartment  that  she  was
vacating, 20) on April 22, 2010, two packs of cigarettes  and  an  open
bottle of alcohol were found in the back seat of Sherri’s car, and  21)
Sherri lacked stable living arrangements,  worked  for  minimum  wages,
and lacked any clear plan for her future.
      Other evidence indicated that Sherri had held a job  during  most
of this proceeding, received a driver’s license, completed most of  her
prescribed services, was not then in danger  of  having  her  probation
revoked, and was more attentive to  her  child  before  the  Department
decided to seek  termination  of  the  parent/child  relationship  than
after.  Sherri’s current supervisor also testified favorably for her.
           Given the child’s special needs,  the  likelihood  that  she
will need medical  care  for  the  rest  of  her  life,  the  seriously
detrimental  effect  that  cigarette  smoke  had  on  the  child,   the
unwillingness or inability of Sherri and her mother  to  stop  smoking,
the evidence that Sherri missed appointments made to  provide  for  the
medical needs of the child, and  the  instability  of  her  home  life,
there was sufficient evidence for a factfinder to form  a  firm  belief
or conviction that Sherri had knowingly allowed the child to remain  in
conditions or surroundings which endangered the physical well-being  of
the child and engaged in conduct or knowingly  placed  the  child  with
persons who engaged in conduct endangering the physical  well-being  of
the child.  See In re W.E.C.,  110  S.W.3d  231,  238  (Tex.  App.–Fort
Worth 2003, no pet.) (noting  that  the  child’s  respiratory  problems
requiring daily breathing treatments,  the  mother’s  failure  to  stop
smoking and to prevent others from smoking around the  child,  and  the
presence of missed speech and cognitive therapy  appointments  for  the
child were factors supporting termination). Having so  found,  we  need
not address whether there existed evidence sufficiently supporting  the
third statutory ground upon which termination was founded.
      Best Interest of the Child
      Next, when  determining  the  best  interest  of  the  child,  we
consider what have become known as the Holley factors.   They  include,
among other things, 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 those individuals to promote the best  interest  of
the child, 6) the plans for the child by those individuals  or  by  the
agency seeking custody, 7) the stability of the home, 8)  the  acts  or
omissions of the  parent  indicating  that  the  existing  parent/child
relationship is not a proper one, and 9) any excuse  for  the  acts  or
omissions of the parent.  In re P.E.W., 105 S.W.3d  771,  779-80  (Tex.
App.–Amarillo 2003, no pet.).  It is not  necessary  that  each  factor
favor termination, id. at 780, and the list is not  exclusive.   In  re
C.J.F., 134 S.W.3d 343, 354 (Tex.  App.–Amarillo  2003,  pet.  denied).
Furthermore, the same evidence illustrating the presence  of  statutory
grounds for termination may also  be  probative  of  the  child’s  best
interest.  In re C.H., 89 S.W.3d at 28.
      In addition to the evidence  listed  above,  there  was  evidence
that 1) the child’s foster mother diligently  took  the  child  to  her
medical  and  therapy  appointments,  2)  the  child  made  significant
progress in her therapy, 3) the foster family accepted the  suggestions
of the child’s  therapists,  4)   the  child’s  medical  condition  was
improving although she remained on an  intensive  medical  regimen,  5)
since being placed in a foster home,  the  child  was  active,  6)  the
child was considered adoptable despite her health problems, and 7)  the
foster  family  was  assessing  the  possibility  of  adopting  her.[4]
Considering all  of  the  evidence,  there  was  clear  and  convincing
evidence to support the decision that termination was  in  the  child’s
best interest.  See In re D.L.N., 958 S.W.2d 934, 941  (Tex.  App.–Waco
1997, pet. denied), overruled  in  part  on  other  grounds  by  In  re
J.F.C., 96 S.W.3d 256 (Tex. 2002) (stating  that  it  may  be  inferred
that past conduct endangering the well-being of a child  may  recur  in
the future).  Consequently, we overrule  appellant’s  claims  of  legal
and factual insufficiency.
      Statutory Deadline
      Next, under  circumstances  like  those  at  bar,  an  action  to
terminate parental rights  must  be  dismissed  if  the  trial  is  not
commenced on the first Monday after the first anniversary of  the  date
the  court  rendered  a  temporary  order  appointing  the   Department
temporary  managing  conservator.   Tex.  Fam.  Code  Ann.  §263.401(a)
(Vernon  2008).   This  is  not  so  if  the  trial  court  finds  that
extraordinary circumstances necessitate  the  child  remaining  in  the
temporary  managing  conservatorship  of  the   Department   and   that
continuing the appointment of  the  Department  as  temporary  managing
conservator is in the best interest of  the  child.   Id.  §263.401(b).
Should that happen, then trial may be delayed  for  an  additional  180
days.  All conceded that the foregoing deadlines  were  not  met  here.
However, Sherri did not raise the default until  after  the  completion
of the trial.  Furthermore, the matter was raised via a motion for  new
trial.
      According to statute,  a  party  who  fails  to  timely  move  to
dismiss  the  suit  waives  the  right  to  object.   Id.  §263.402(b).
Additionally, a motion to dismiss is timely if  made  before  trial  on
the merits commences.  Id.; see also In re J.B.W., 99 S.W.3d  218,  222
(Tex. App.–Fort Worth 2003, pet. denied).  Having waited until the  end
of her trial to raise the court’s failure to  abide  by  the  statutory
timeline, Sherri’s motion  was  untimely;  therefore,  she  waived  her
complaint.
      Nevertheless, she also contends that because her attorney  failed
to timely raise the default, she  received  ineffective  counsel.   One
claiming  that  counsel  was  ineffective   must  show  both  that  his
performance was deficient and that the deficiency was prejudicial.   In
re J.P.B., 180 S.W.3d 570, 574 (Tex. 2005).  Furthermore, prejudice  is
shown  when  there  exists  a  reasonable  probability  that,  but  for
counsel’s  error,  the  result  of  the  proceeding  would  have   been
different.  In re D.B., 153 S.W.3d 575, 577 (Tex.  App.–Amarillo  2004,
no pet.).  It is also true that claims of ineffective  assistance  must
be firmly founded in the record.  In  re  K.K.,  180  S.W.3d  681,  685
(Tex. App.–Waco 2005, no pet.).  This is important  since  the  failure
to request a dismissal is not ineffective assistance per se but may  be
the result of trial strategy.  See  In  re  K.K.,  No.  10-04-00303-CV,
2006 Tex. App. Lexis 1819, at *11-12 (Tex. App.–Waco  March  28,  2006,
no pet.).  For instance, counsel may have believed that the chances  of
success at trial were high, as was the situation in K.K.   Id.
      Here, nothing of record illustrated why counsel did not  move  to
dismiss the action before trial commenced.   Instead,  Sherri  asserted
that “appellate counsel was  unable  to  provide  further  evidence  to
demonstrate whether  counsel  could  have  had  a  trial  strategy  for
failing to request a dismissal because of the trial court’s  denial  of
a timely filed motion for new trial.”   Yet, she does not  explain  why
the reasons, if any, underlying her trial counsel’s  action  could  not
have been obtained and included, via affidavit, in her motion  for  new
trial.  Nor does she attempt to illustrate that  the  State  would  not
have sought termination through a second action or that such an  action
would have met with defeat.  The absence of evidence touching upon  the
latter were factors considered by the K.K.  panel  when  rejecting  the
claim of ineffective counsel there raised.  See id. at *12.
      In sum, Sherri failed to carry  her  burden  of  proof.   So,  we
overrule her claim of ineffective counsel.  The  order  of  termination
is affirmed.

                                        Brian Quinn
                                        Chief Justice

-----------------------
      [1]Sherri testified at trial that she had not smoked in the six
days prior to trial.

      [2]Sherri claimed she had left the  child  in  the  care  of  her
sister while she went to  a  party.   Neither  Sherri  nor  her  mother
believed that anyone in the family had hurt the child,  and  there  was
no evidence to prove how the injury occurred.

      [3]When the child is exposed to smoke, her  lungs  have  to  work
harder to allow her to breathe.

      [4]The foster family has concerns about adopting  because  Sherri
was able to pull up a picture of their house  on  her  cell  phone  and
asked the foster mother “if she felt it was dangerous to  be  a  foster
parent knowing that she could be so easily looked up.”



