AFFIRMED; Opinion Filed April 10, 2014.




                                                S
                                    Court of Appeals
                                                     In The


                             Fifth District of Texas at Dallas
                                             No. 05-13-01674-CV


                      IN THE INTEREST OF A.W. AND D.W., CHILDREN

                          On Appeal from the 422nd Judicial District Court
                                     Kaufman County, Texas
                                Trial Court Cause No. 86044-422

                                  MEMORANDUM OPINION
                               Before Justices Moseley, Bridges, and Evans
                                        Opinion by Justice Evans
        A.P. 1(Mother) appeals from a judgment terminating her parental rights to A.W. and D.W.

In two issues, Mother contends: (1) she received ineffective assistance of counsel at trial, and

(2) the evidence was insufficient to establish that termination was in the children’s best interest.

For the reasons that follow, we affirm.

                                               BACKGROUND

        The Texas Department of Family and Protective Services received a report on January

22, 2012 that the children, six-year-old A.W. and five-year-old D.W., were currently living at

Mother’s grandparents’ home because Mother was using drugs and unable to care for them.

There was also an allegation that family members were aware that A.W. may have been sexually

abused, but failed to address or report it. During her initial interview with the Department in
    1
     To protect the privacy of the parties, we identify the children and their relatives by their initials. See TEX.
FAM. CODE ANN. § 109.002(d) (West 2014); see also TEX. R. APP. P. 9.8.
February 2012, Mother denied the allegations of sexual abuse and also denied using drugs or

having an addiction despite testing positive on two separate occasions for methamphetamines

and amphetamines. Erica Larry, an investigator with the Department testified that Mother’s

maternal grandparents were inappropriate caregivers for the children because, among other

things, they were enabling Mother. She also noted that the grandparents’ son, a registered sex

offender, was living with them. 2 Although the Department explored the possibility of a long-

term placement of the children with other relatives, they were unsuccessful.

           On June 1, 2012, the Department filed a petition for temporary managing conservatorship

of the children citing Mother’s drug use, her unstable residence, and her lack of motivation to

complete services recommended by the Department. At that time, the Department pursued a

dual track approach to the case providing services in aid of possible reunification, but also

reserving its alternative right to seek termination of parental rights. Mother signed a family

service plan on June 27, 2012 that, among other things, required her to participate and complete

a drug treatment program, comply with random drug tests, refrain from any criminal activity, as

well as obtain and maintain stable and appropriate housing. Of the eight drug tests performed on

Mother after she signed the service plan, six tested positive for methamphetamines and

amphetamines. 3 At the permanency conference on October 23, 2012, the Department decided to

proceed with termination of Mother’s parental rights due to her failure to progress with services

and lack of a stable home. 4 Mother continued to test positive on subsequent drug tests and also

admitted to using methamphetamines on March 17, 2013. 5 After a jury trial in November 2013,

    2
        The allegations of sexual abuse do not involve the registered sex offender.
    3
     The tests were performed in July, August, and September of 2012. Two of the drug tests performed in August
were negative for all drugs tested.
    4
        The children’s father was incarcerated at the time the Department sought their removal in June 2012. Prior to
trial, father voluntarily relinquished his parental rights.
    5
        From November 12 through March 19, 2013, Mother tested positive seven of the eleven times tested.


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the trial court rendered a judgment terminating Mother’s parental rights to both children. Mother

then filed this appeal.

                                           ANALYSIS

I.      Ineffective Assistance

        In her first issue, Mother contends she received ineffective assistance of counsel at trial

because her attorney failed to file affirmative pleadings allowing her to submit a jury question

on the issue of whether or not Mother should be appointed a possessory conservator as an

alternative to termination.      To succeed on her ineffective assistance claim, Mother must

demonstrate not only that her counsel’s performance was deficient, but also show that the

claimed deficiency prejudiced her case. See In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003).

Here, Mother’s ineffective assistance claim is based on the absence of a jury submission seeking

her appointment as a possessory conservator. Accordingly, to prevail on this issue, Mother must

demonstrate she would have been entitled to the jury submission if the issue had been properly

pleaded and the question properly requested.

        We review a trial court’s jury charge submission for an abuse of discretion. See Tex.

Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh’g). In the context

of a parental termination case, the controlling question is whether a parent’s rights should be

terminated. Id.; see also In re J.T.G., 121 S.W.3d 117, 129 (Tex. App.—Fort Worth 2003, no

pet.). Consequently, the trial court does not abuse its discretion in refusing to submit to the jury

a question concerning conservatorship even when the issue is properly pleaded or tried by

consent. See In re C.G., III, No. 05-13-01552-CV, 2014 WL 1022323 at *1 (Tex. App.—Dallas

March 11, 2014, no pet. h.) (mem. op.); J.A.B. v. Tex. Dept. of Family and Protective Servs., No.

03-13-00273-CV, 2013 WL 4487513 at *2 (Tex. App.—Austin Aug. 14, 2013, pet. denied)

(mem. op.); Ayala v. Tex. Dept. of Family and Regulatory Servs., No. 03-09-00121-CV, 2010


                                                –3–
WL 3672351 at *4 (Tex. App.—Austin Sept. 16, 2010, no pet.) (mem. op.). Because Mother has

not established she would have been entitled to a jury question on conservatorship even if the

issue had been pleaded and the question requested, her ineffective assistance claim necessarily

fails. We resolve Mother’s first issue against her.

II.    Best Interest of the Children

       In her second issue, Mother challenges the legal and factual sufficiency of the evidence to

show that that it was in the children’s best interest to terminate her parental rights. When

analyzing a factual sufficiency complaint, we review the entire record to determine whether the

evidence is such that a fact finder could reasonably form a firm belief or conviction about the

truth of the State’s allegations. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (citing In re C.H.

89 S.W.3d 17, 25 (Tex. 2002)). For a legal sufficiency review, we look at all the evidence in the

light most favorable to the jury finding to determine whether a reasonable trier of fact could have

formed a firm belief that its finding was true. Id. at 266.

       When reviewing the sufficiency of a best interest finding, we consider, among other

evidence, the Holley factors which include the children’s desire, the children’s current and future

emotional and physical needs, the current and future emotional and physical danger to the

children, Mother’s parenting abilities, any available programs to assist Mother to promote the

children’s best interest, plans for the children by Mother or the Department, the stability of the

home or proposed placement, Mother’s acts or omissions suggesting the existing parent-child

relationship is not a proper one, and any excuse for the parent’s acts or omissions. See In re

E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). Lack of evidence of one or more of these factors does not preclude a finding that

termination is in the best interest of the children. See C.H., 89 S.W.3d at 27. Conversely,

evidence of a single factor may be adequate in a particular case to support a finding that


                                                –4–
termination is in the children’s best interest. In re A.T., 406 S.W.3d 365, 370–71 (Tex. App.—

Dallas 2013, pet. denied). Nevertheless, scant evidence of each factor will not support such a

finding. Id.

       Mother argues her parental rights were improperly terminated because the evidence

merely showed that her failure to provide a more desirable degree of care and support for her

children was due solely to misfortune or her lack of intelligence or training rather than

indifference or malice. She contends there was no evidence that the children did not want to be

with her and the recording shown to the jury of one of her visits with the children suggested the

contrary. She further asserts there was no evidence the children had any specialized emotional or

physical needs and the only potential future dangers involved the children’s exposure “to drug

usage or an unfit relative should [Mother] relapse.”

       Mother contends evidence that she had been sober since July 2013, and that local services

and programs were available to prevent her from relapsing “and thus improve her parenting

skills” were factors that weighed in her favor. She also asserts that, because the Department had

not yet identified a permanent home for the children and they were thriving in their current

placement, she was not prevented from continuing with her programs so that she could

eventually be reunified with her children. Additionally, Mother argues there was no evidence

that when she left the children in her grandparents’ care, she was aware the children might be

sexually abused. Finally, Mother asserts there was no evidence that she used drugs in her

children’s presence in a way that endangered them.

       At the time of trial, Mother was twenty-eight and admitted that she had been using

methamphetamines since she was twenty-six. She also admitted that she had used drugs when




                                               –5–
the children were in the house. 6 Despite the Department’s involvement with her children from

January 2012 through July of 2013, Mother continued to use drugs and there was evidence that

she was under the influence during drug counseling sessions and visitations with her children.

Mother had only been sober for about 120 days at the time of trial. Psychologist Mark Foster

testified that his July 2012 evaluation of Mother revealed she had borderline intellectual

functioning with an IQ of 72 and poorly developed common sense reasoning and decision

making skills. She also had little awareness of what constitutes age appropriate behavior in

children. According to Foster, ninety-two percent of people with amphetamine use will relapse

after seven years of sobriety. He further testified that if she regained custody of her children,

Mother would need a great deal of support from high functioning persons to assist her co-parent

her children. He opined Mother would need a very structured environment and a fairly dramatic

change in the persons that were her friends when she using versus those that would support her

in her recovery.

          Betty Cannon, a licensed professional counselor, testified that the Department referred

Mother to her for counseling services in August 2012. She saw Mother for six to eight sessions.

Cannon indicated that Mother appeared tired, unfocused, and frustrated during most of her

sessions and couldn’t understand how her drug use could affect her children when she never used

drugs in their presence. Cannon tried to make Mother aware that when a child under eighteen is

in a person’s care, using drugs could affect that person’s thinking and ability to respond to

certain things.      Mother did not take responsibility for her actions and did not achieve an

awareness of how using drugs would affect her ability to parent her children. Cannon also stated

she was unable to help Mother gain awareness of her role as a parent in child development

because Mother did not seem interested. Cannon testified that based on her last contact with

   6
       Mother denied that the children saw her using drugs in the home.


                                                        –6–
Mother in October 2012, she would recommend not returning the children to Mother. Cannon

stated Mother could never admit she did anything wrong to cause the Department to come to the

family.

          Jen Smith, a mental health counselor, testified that Mother was in her outpatient group

from December 2012 through April 2013. She indicated that Mother completed all eighteen

sessions of her intensive outpatient treatment (IOP).      Additionally, Mother participated in

eighteen out of the twenty sessions of supportive outpatient treatment (SOP). Smith was also in

contact with Mother during her inpatient treatment at Nexus Recovery for two week starting on

July 19, 2013. Smith testified that Mother was very motivated for treatment and continued to

take action, even though she seemed to struggle.

          Marti Koenig, a substance abuse counselor with Lakes Regional MHMR testified that she

had been seeing Mother since August 12, 2013 for outpatient group and individual counseling.

Koenig indicated that Mother was motivated not to relapse, and her relapse plan included talking

to her grandmother and her sponsor. Koenig noted that she anticipated that Mother would stay

sober because she has been doing things that could keep her sober like completing IOP, almost

completing SOP, and attending a twelve step program. Koening opined that Mother understands

what was going on in group counseling and had more insight into her drug addiction and

intelligence than people gave her credit for. She agreed that Mother appeared to be genuine in

her desire to be sober.

          Erica Larry testified about the Department’s investigation. According to Larry, Mother

endangered the children by her drug use, leaving them in a home where there was a registered

sex offender, and failing to address possible allegations of sexual abuse of the children. The

children were removed after Mother had two positive drug tests out of three during the

investigation while she continued to deny her drug use and had not completed any recommended

                                                –7–
services. Mother’s failure to progress with the services offered caused the Department to seek

removal of the children.

       Pamela Martinez-Tovar testified that she works in the conservatorship unit of the

Department and received this case in June 2012. By August 2012, Mother had her psychological

assessment with Foster, completed parenting classes, and began counseling with Cannon.

However, Mother was still testing positive for drugs in September 2012. In October, Mother

requested a home visit of her apartment which was performed in November 2012. Martinez-

Tovar testified that when she arrived at the home, Mother stated she was moving temporarily to

her grandmother’s home.     Martinez-Tovar testified the home she visited was not safe or

appropriate for children. In November, Mother admitted she was still using methamphetamines.

In January 2013, Mother lacked a stable home and although she was continuing with outpatient

drug treatment, continued to test positive. Although Mother completed her IOP in February, the

following month it was reported that Mother was not attending the second phase of her drug

treatment and continued to test positive for drugs in March and April. In May, the court ceased

Mother’s visits with the children. In June, Mother acknowledged she was continuing to use

methamphetamines and had been throughout the duration of the case. Of the 32 drug tests

Martinez-Tovar gave to Mother, two thirds or more were positive for methamphetamines and

amphetamines.

       In July 2013, Mother went to inpatient drug treatment and by August she was living with

her grandparents and continuing her IOP. In September, Mother was arrested for outstanding

warrants after the police responded to a domestic disturbance complaint at her grandparents’

home involving Mother and her sister. According to Martinez-Tovar, Mother is not able to put

the children’s needs above her own needs and that she is “just now learning to take care of

herself” and “still needs the assistance of her grandmother to take care of herself.” Martinez-

                                             –8–
Tovar also expressed doubt about Mother’s ability to protect the children from those that might

endanger them. She explained that although Mother had over one hundred days of sobriety, she

is not ready to parent.

         Mary Myers testified that she is a CASA 7 volunteer/guardian ad litem for the children.

She indicated that during the last six months, she has seen an overall improvement in the

children’s social skills and their education levels. Myers believes that Mother has not put her

children’s interests ahead of her own interests and has left the children in a dangerous

environment. She further stated that she believes the improvements Mother has made to this

point are not enough to warrant the return of her children.

         Reviewing the record before us under the applicable standards set forth above, we

conclude that the evidence is legally and factually sufficient to support a finding that termination

of Mother’s parental rights was in the best interest of the children. Although Mother testified she

had been sober for the four months preceding the trial and two of her counselors testified that she

was very motivated to continue treatment, her ability to stay sober long term was far from certain

at the time of trial. And even assuming Mother was able to maintain her sobriety, there was

evidence Mother needed considerable support to help her parent. Despite the parenting classes

she attended, witnesses doubted Mother’s ability to protect the children and put their needs

above her own.         She also had a pending charge for possession of less than a gram of

methamphetamine. Mother’s visitations with the children were terminated in April 2013 and the

children were doing very well in their current foster home. At the time of trial, Mother was

living with the grandparents with whom the children were living when the Department first

became involved in the case. The Department was seeking termination of Mother’s rights so that

the children could be adopted and have a stable and permanent home. Having concluded that the

   7
       Court Appointed Special Advocate


                                                –9–
evidence was legally and factually sufficient to support the best interest finding, we resolve

Mother’s second issue against her. We affirm the trial court’s judgment.




                                                  DAVID EVANS
                                                  JUSTICE

131674F.P05




                                             –10–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE INTEREST OF: A.W. AND D.W.,                    On Appeal from the 422nd Judicial District
CHILDREN                                              Court, Kaufman County, Texas
                                                      Trial Court Cause No. 86044-422.
No. 05-13-01674-CV                                    Opinion delivered by Justice Evans,
                                                      Justices Moseley and Bridges participating.


      In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
      It is ORDERED that appellee Texas Department of Family and Protective Services
recover its costs of this appeal from appellant Amanda Pickeral.


Judgment entered this 10th day of April, 2014.




                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE




                                               –11–
