                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00100-CV




 IN THE INTEREST OF K.O., A.O., AND O.O., CHILDREN




         On Appeal from the 307th District Court
                  Gregg County, Texas
             Trial Court No. 2014-1026-DR




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                                  OPINION
            The Texas Department of Family and Protective Services (the Department) filed a petition

to terminate Janna Bravo’s and Matthew Osler’s parental rights to their children, seven-year-old

Kendrick, and eighteen-month-old twins, Anna and Ophelia.1 The trial court terminated Janna’s

and Matthew’s parental rights after finding that (1) they engaged in conduct or knowingly placed

the children with persons who engaged in conduct which endangered their physical or emotional

well-being, (2) they failed to comply with the provisions of a court order that established the

actions necessary for them to obtain the return of the children after they were left in

conservatorship of the Department for not less than nine months as a result of their removal for

abuse or neglect, and (3) termination of their parental rights was in the children’s best interests.

See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (O), (2) (West Supp. 2015).2

            In her first and second points of error on appeal, Janna, who was incarcerated at the time

of trial, argues that the trial court erred when it held, in her absence, the final hearing and hearing

on a motion for new trial. She also argues that her counsel rendered ineffective assistance in failing

to secure her presence for trial. Matthew argues that the evidence was legally and factually

insufficient to support the trial court’s findings that grounds for terminating his parental rights had

been met. While Matthew challenges only the factual sufficiency of the evidence supporting the




1
 To protect the confidentiality of the children involved, this Court will refer to all involved parties by fictitious names.
See TEX. R. APP. P. 9.8(b)(1), (2).
2
    Janna’s parental rights were also terminated on other grounds.

                                                             2
best-interest finding, Janna argues that the evidence was both factually and legally insufficient to

support that finding.

        We find that Janna failed to preserve her complaints that the trial court erred in conducting

the trial and holding a hearing on her motion for new trial in her absence and that she has failed to

demonstrate ineffective assistance of counsel. We further find that termination of Janna’s and

Matthew’s parental rights was supported by legally and factually sufficient evidence.

Accordingly, we affirm the trial court’s judgment.

I.      Janna Did Not Timely Raise Her First Two Complaints on Appeal

        During the pendency of this case, Janna was incarcerated in the Gregg County Jail. She

was transferred to the Galveston County Jail on the eve of trial, in order to give birth to another

child. As a result, notice of the date of trial reached Janna later than her counsel anticipated and

resulted in her absence at trial. Without a motion for a bench warrant, Janna’s counsel announced

ready for trial.

        Following the trial court’s termination of Janna’s parental rights, Janna’s counsel filed a

motion for new trial arguing that the evidence was legally and factually insufficient to support the

court’s ruling. In a single sentence, the motion also stated, “Furthermore, because of Movant’s

health conditions at the time of trial, she was unable to attend the final hearing to present testimony

on her behalf.” Yet, the motion did not complain that any error resulted from Janna’s absence.

        The trial court held a brief hearing on the motion for new trial, which comprised less than

eight pages of transcript. At that hearing, counsel stated, “I will rest on the contents of my motion

for new trial and the text there.” After explaining the difficulty that he had in communicating with

                                                  3
Janna because she was in a different facility, counsel stated, “But we had already received an

extension in this case, we were up against the drop dead date for going to trial. With that, I’ll rest.”

Counsel did not argue that trying the case in Janna’s absence was error. Further, he did not attempt

to ask the court to consider any additional evidence that Janna might have provided. The trial

court denied the motion for new trial on December 4, 2015, and Janna appealed.

        Thereafter, Janna filed a bill of exception. Her appellate complaints that the trial court

violated her due process rights by trying the case and hearing the motion for new trial in her

absence were first raised in a memorandum of law in support of the bill of exception filed on

January 5, 2016. The bill of exception included an affidavit signed by Janna explaining the

circumstances of her transfer to a different facility, which left her only a few days to communicate

with counsel. Her affidavit stated, “I did not know at the time that there was also available the

option of the court appearance by telephone . . . . I would have liked to appear telephonically if the

bench warrant was not possible. However, a telephonic appearance was not offered to me; so I

was not able to appear using that telephonic means.” Janna swore that she would have testified

about the services that she completed. With respect to the best-interest finding, Janna stated, “I

would have also testified that I love my children and believed that it was in their best interests to

be re-united with me, and that it would not be in their best interests for termination of the parental

bond between us.”

        The trial court held a hearing on the bill of exception. Because the memorandum

supporting the bill and Janna’s affidavit were all created after the motion for new trial was denied,

the Department argued that the bill of exception was being used to create new evidence. Following

                                                   4
this argument, the court noted that the issues raised in the bill of exception were novel issues, not

previously brought to the trial court’s attention. The court also reminded counsel that it never

received a request for a bench warrant and was never asked to secure Janna’s presence by

telephone. The trial court added that “[t]here was no evidence presented at all at the motion for

new trial. There [were] no affidavits presented. . . . There was no evidence whatsoever presented

to this Court that his client was -- had any type of health issue that prevented her from being here,

that he had ever asked the Court to have her here, or anything of the like.”

       Nevertheless, the trial court found and approved a bill of exception that stated (1) that Janna

was incarcerated at the time of trial in Galveston County, (2) that Janna’s counsel was unaware

that she was giving birth to a child in a facility different than the one to which he had sent

correspondence, (3) that Janna did not receive counsel’s correspondence until a week before trial,

(4) and that Janna’s reply did not reach him until a few days before trial, “perhaps upward of a

week before trial, thereby lending him little time to communicate with her.” The court also took

judicial notice of the availability of telephonic hearing.

       “[T]he rules governing error preservation must be followed in cases involving termination

of parental rights, as in other cases in which a complaint is based on constitutional error.” In re

K.A.F., 160 S.W.3d 923, 928 (Tex. 2005). Janna relies on the bill of exception to preserve her first

two complaints on appeal. “The purpose of a bill of exceptions is to allow a party to make a record

for appellate review of matters that do not otherwise appear in the record, such as evidence that

was excluded.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (citing TEX. R.

APP. P. 33.2; TEX. R. EVID. 103(a)(2)); see Clamon v. DeLong, 477 S.W.3d 823, 826 (Tex. App.—

                                                  5
Fort Worth 2015, no pet.); Diggs v. Diggs, No. 14-11-00854-CV, 2013 WL 3580424, at *8 n.13

(Tex. App.—Houston [14th Dist.] July 11, 2013, no pet.) (mem. op.) (“Generally, to preserve error

in the exclusion of evidence, a party must attempt during the evidentiary portion of the trial to

introduce the evidence.”). The bill of exception does not excuse the requirement for an appellant

to timely raise issues before the trial court “[a]s a prerequisite to presenting a complaint for

appellate review.” TEX. R. APP. P. 33.1(a)(1).

         Janna could not circumvent the requirement to preserve her complaints by making them to

the trial court in a timely manner. Because Janna waited until after the notice of appeal was filed

to raise novel issues in her bill of exception, we conclude that she failed to preserve for our review

her complaints that the trial court violated her due process rights by conducting a trial and holding

a hearing in her absence. Accordingly, we overrule these points of error.3

II.      Janna Cannot Demonstrate that Counsel Rendered Ineffective Assistance

         “In parental-rights termination cases in Texas . . . brought by the Department[,] an indigent

person has a statutory right to counsel.” In re J.M.A.E.W., No. 06-14-00087-CV, 2015 WL

1119761, at *3 (Tex. App.—Texarkana Mar. 13, 2015, no pet.) (mem. op.) (citing TEX. FAM.

CODE. ANN. § 107.013(a) (West 2014); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003)). “This

statutory right to counsel also embodies the right to effective counsel.” Id. (citing M.S., 115

S.W.3d at 544). “The standard used for parental-rights termination cases is the same as that used

in criminal cases and is set forth in Strickland.” Id. (citing Strickland v. Washington, 466 U.S. 668


3
 In her brief, Janna also argues that the trial court erred by failing to secure her presence sua sponte. Again, this issue
was not timely preserved. Furthermore, the Texas Supreme Court has ruled that “an inmate does not have an absolute
right to appear in person in every court proceeding.” In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003).
                                                            6
(1984)). “The right to effective assistance of counsel does not guarantee, however, ‘errorless or

perfect counsel whose competency of representation is to be judged by hindsight.’” Id. (quoting

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).

       “To prevail on [her] ineffective assistance claim, [Janna] must prove by a preponderance

of the evidence that (1) [her] counsel’s performance was deficient, that is, that it fell below an

objective standard of reasonableness; and (2) it is reasonably probable that, except for [her]

counsel’s unprofessional errors, the outcome of the proceeding would have been different.” Id. at

*4 (citing Strickland, 466 U.S. at 687–88, 694). “Failure to satisfy either prong of the Strickland

test is fatal.” Id. (citing Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006);

Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston

[1st Dist.] 2009, pet. denied)).

       “To support a finding that [Janna]’s trial counsel was ineffective, the trial record must

affirmatively demonstrate his deficiency.” Id. (citing Bermea v. Tex. Dep’t of Family & Protective

Servs., 265 S.W.3d 34, 43 (Tex. App.—Houston [1st Dist.] 2008), pet. denied, 264 S.W.3d 742

(Tex. 2008) (per curiam)). “In reviewing trial counsel’s performance, we take into account the

circumstances surrounding the case and focus primarily on whether the manner of his performance

was reasonably effective.” Id. (citing In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (per curiam);

M.S., 115 S.W.3d at 545). “We give great deference to trial counsel’s performance and indulge a

strong presumption that his conduct falls within the wide range of reasonably professional

assistance.” Id. (citing H.R.M., 209 S.W.3d at 111; M.S., 115 S.W.3d at 545). “This includes the

possibility that his actions were strategic.” Id. (citing H.R.M., 209 S.W.3d at 111; M.S., 115

                                                7
S.W.3d at 545). “We only find ineffective assistance if the conduct is ‘so outrageous that no

competent attorney would have engaged in it.’” Id. (quoting H.R.M., 209 S.W.3d at 111).

        Here, although there was ample opportunity to arrange for a bench warrant or telephonic

appearance, none was ever requested. Janna argues that the failure to make these requests

constituted ineffective assistance of counsel. However, the record is unclear on counsel’s

reasoning for failing to secure Janna’s presence for trial. The bill of exception proved that

counsel’s notice of the date of trial reached Janna in time for her to send a response to her counsel

and that her counsel received Janna’s response prior to trial. We are free to presume that Janna’s

letter to counsel did not contain her desire to be present at trial. Further, as explained below, Janna

had a history of drug use, crime, and Child Protective Services Division (CPS) involvement. Thus,

we may also presume that counsel determined that it would be against Janna’s best interests to be

subjected to cross-examination or that she would not make a good witness at trial.

        The record does not firmly establish counsel’s deficiency, and we can determine strategic

reasons for counsel’s failure to secure Janna’s presence at trial. Thus, we conclude that Janna has

failed to demonstrate that her counsel’s representation constituted ineffective assistance. See In re

K.M.H., 181 S.W.3d 1, 13 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We overrule Janna’s

third point of error.

III.    Sufficient Evidence Supports Termination of Matthew’s and Janna’s Parental Rights

        A.      Standard of Review

        We strictly scrutinize termination proceedings in favor of the parent. In re S.K.A., 236

S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing Holick v. Smith, 685 S.W.2d

                                                  8
18, 20 (Tex. 1985)). To terminate an individual’s parental rights to her child, clear and convincing

evidence must show: (1) that the parent has engaged in one of the statutory grounds for

termination; and (2) that termination is in the child’s best interest. TEX. FAM. CODE ANN.

§ 161.001(b) (West Supp. 2015); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012); In re C.H., 89

S.W.3d 17, 23 (Tex. 2002). The clear and convincing burden of proof has been defined as “that

measure or degree of proof which 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.” C.H., 89 S.W.3d at 23; see

TEX. FAM. CODE ANN. § 101.007 (West 2014). Due process demands this heightened standard.

E.N.C., 384 S.W.3d at 802 (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). Thus, in

reviewing termination findings, we determine whether the evidence is such that a jury could

reasonably form a firm belief or conviction about the truth of CPS’s allegations. C.H., 89 S.W.3d

at 25.

         In a legal sufficiency review, termination findings are given appropriate deference. See

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Smith v. Tex. Dep’t of Protective & Regulatory

Servs., 160 S.W.3d 673, 679 (Tex. App.—Austin 2005, no pet.). In such cases, we consider all

the evidence in the light most favorable to the findings to determine whether the jury could

reasonably have formed a firm belief or conviction that the grounds for termination were proven.

E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); In re J.P.B., 180 S.W.3d 570, 573

(Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no

pet.). We assume that the jury resolved disputed facts in favor of the findings if a reasonable jury

could do so. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at

                                                 9
573. Conversely, we disregard evidence that the jury may have reasonably disbelieved or

testimony from witnesses whose credibility may reasonably be doubted. E.N.C., 384 S.W.3d at

802 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573.

        “In our review of factual sufficiency, we give due consideration to evidence the trial court

could have reasonably found to be clear and convincing.” In re L.E.S., 471 S.W.3d 915, 920 (Tex.

App.—Texarkana 2015, no pet.) (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006)

(per curiam)). “We consider only that evidence the fact-finder reasonably could have found to be

clear and convincing and determine ‘“whether the evidence is such that a fact[-]finder could

reasonably form a firm belief or conviction about the truth of the . . . allegations.”’” Id. (alteration

and omission in original) (quoting H.R.M., 209 S.W.3d at 109). “If, in light of the entire record,

the disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding

is so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction,

then the evidence is factually insufficient.” Id. (quoting J.F.C., 96 S.W.3d at 266). “‘[I]n making

this determination,’ we must undertake ‘“an exacting review of the entire record with a healthy

regard for the constitutional interests at stake.”’” Id. (alteration in original) (quoting In re A.B.,

437 S.W.3d 498, 503 (Tex. 2014).

        B.      The Evidence at Trial

        The investigation in this case began on May 10, 2014, when Kevin M. Rankin, an officer

with the Longview Police Department, responded to a domestic disturbance call involving

Matthew and Janna. Rankin’s testimony established that Matthew had committed acts of domestic

violence against Janna in the children’s presence. According to Rankin, Janna reported that

                                                  10
Matthew had slapped her across her face, grabbed her neck, and choked her. He testified that

Janna said she was going to pass out and honestly believed that Matthew was going to kill her.

Rankin thought that Janna was concerned for the safety of her children because she told him that

she left “the window open in case she needed to grab the kids and have a quick escape.” Rankin

noticed injuries on Janna that supported her account. He added that Janna claimed that Matthew

had taken steroids before and had anger issues. Rankin arrested Matthew for assault family

violence and referred the case to CPS. Additionally, a protective order was entered preventing

Matthew from communicating with or going near Janna and the children.

        Ashley Moore, a former investigator with CPS, interviewed Kendrick, who explained the

reason for the domestic disturbance. Moore testified, “He said that his dad got home from work

. . . [and] found something that was weird, which looked like a pen with stuff on it. He said his

dad had thought it was a needle, and from what he told me, you know, dad and mom engaged in

physical altercation with each other.” Moore discovered that Janna had a criminal history

involving possession of controlled substances. Her conversation with Janna led to Janna’s

admission that she used methamphetamine while the children were at home on May 1, 2014, and

opiate pills ten days later. Janna signed an acknowledgment of substance abuse form and agreed

to take a drug test.

        Moore’s investigation uncovered the extent of Janna’s history of drug use. She testified

that one of Janna’s older children, not the subject of this case, tested positive for drugs on the day

he was born and that Janna admitted in a previous CPS investigation to smoking “one or two joints

a week while pregnant” with that child. Kelsey Drennan, an investigator with CPS, testified that

                                                 11
she previously investigated Janna on allegations that she was using drugs and was not providing

proper nutrition to Kendrick. Drennan was concerned about the possibility that Kendrick was

present at a time when Janna was using methamphetamine. She drug tested Kendrick, who tested

positive for methamphetamine. In the course of her investigation, Drennan found that Janna “had

many previous CPS cases . . . regarding some older children that she had.” According to Drennan,

“in those cases [Janna] was found to be using drugs, whether it was marijuana or

methamphetamines.” Drennan testified that Janna completed a drug treatment program, but

“continued to use drugs, and then just became uncooperative.” As a result, Janna’s grandmother

obtained custody of the two older children.

       Janna also had a criminal history. Whitney Williams, a Department caseworker, testified

that Janna had been in and out of jail during the children’s lives. In 2011, Janna was placed on

community supervision for theft. After violating the terms and conditions of her community

supervision by ingesting methamphetamine, Janna’s community supervision was revoked in 2013,

and she was sentenced to twelve months’ confinement in state jail. On January 22, 2014, shortly

after Anna and Ophelia were born, Janna committed another theft offense. She was convicted of

theft with two or more prior convictions and sentenced to fifteen months’ confinement in state jail

during the pendency of this case.

       Matthew also had a criminal history. Drennan testified that Matthew was in prison at the

time of her previous investigation involving Kendrick. In 2010, Matthew was convicted of the

federal offense of possession with intent to distribute at least 200 grams but less than 350 grams

of methamphetamine. He was imprisoned for forty-eight months. Laura Palafax, a U.S. Probation

                                                12
and Pretrial Services officer in the Eastern District of Texas, testified that following his

imprisonment, Matthew was placed on a four-year term of supervised release, subject to certain

terms and conditions. Palafax testified that Matthew was receiving mental health and substance

abuse treatment, but admitted that he used illegal drugs in September 2013 and October 2015.

Specifically, Matthew had a positive drug test in the same month that the termination trial was held

and admitted to using methamphetamine at that time. Palafax testified that Matthew’s admissions

of drug use would be used to revoke his supervised release. She also added that his pending

misdemeanor charge of violating a protective order and his assault family violence charge would

trigger the report that Matthew violated the conditions of his supervised release.

       The trial court ordered Matthew and Janna to comply with each requirement set out in the

Department’s family service plans. Williams testified that Matthew did not complete drug

treatment, did not comply with random drug testing requirements, and failed to maintain

employment or keep in contact with CPS. Due to Matthew’s failure to cooperate, Williams

testified that CPS could not complete a home study and that Matthew failed to demonstrate that he

could provide safe and appropriate housing for his children. According to Williams, Matthew did

not attend the Department’s drug treatment or counseling program and had not spoken to the

caseworker about plans for the children’s future. Also, Matthew did not complete the batterers’

intervention program and violated a protective order by communicating with Janna. Williams

opined that Matthew could not provide for the security and safety of the children.

       Williams also testified that Janna failed to complete her family service plan, although she

completed “the peer educator health training program parenting skills class.” Williams clarified

                                                13
that Janna was not incarcerated between June and November 2014 and January through March

2015 and could have made progress towards completing her plan during these times. Due to her

pattern of drug use and incarceration, Williams testified that Janna could not meet the physical or

emotional needs of the children. She added that Janna had not communicated her plans to establish

a home for the children.

       Williams testified that the children were doing well in their current placement. She stated

that Kendrick loved his foster parents and had grown attached to them. According to Williams,

Kendrick’s foster mother reported that Kendrick was feeling nervous and afraid before visitations

with Matthew and tended to lash out after the visits. Williams stated that Kendrick was in

counseling and would need to continue those sessions. She stated that the Department’s goal was

for all three children to be placed for adoption.

       Amy Smith, a second grade teacher, testified that she and her husband were fostering

Kendrick, Anna, Ophelia, and the baby born to Janna while she was in jail. Smith testified that

Anna and Ophelia were “developmentally behind.” The eighteen-month-old twins were not

talking or walking. Conversely, Smith stated that Kendrick was very advanced. Smith said that

the twins had flourished and that Kendrick was doing well in school and was making straight As

since the placement. Smith added that Kendrick was reading at an “end-of-the-year third grade

level” and was referred to the gifted and talented program. However, Smith testified that Kendrick

suffered from emotional issues and would get very anxious before visits with Matthew. After

visits, Kendrick would fight in school, cut his hair, and cut holes in his clothing. Smith stated that

Matthew had telephone contact with Kendrick, but that Kendrick was not keen on speaking with

                                                    14
him at times. She stated that Janna had no contact with the children for several months. Smith

stated that the twins called Smith and her husband “Mom” and “Dad” and stated that Kendrick had

also become attached to them. Smith testified, “If things went the way that we would hope, we

would love to apply for adoption if the Court allowed.”

       Matthew testified that he completed parenting and psychological services and took an

anger management class, but could not complete it due to his work schedule. Matthew told the

court that he wanted to finish the anger management courses and did not want to lose his children.

Matthew testified that he was employed by Trinity Industries until August 2015 and that since

then, he had been self-employed “laying floors.” Matthew testified that he had a three bedroom,

two bathroom trailer where the children could reside with him. Matthew stated that if he and Janna

were both incarcerated, the children could live with Janna’s sister. If he was incarcerated but Janna

was free, Matthew wanted the children to live with Janna “if she proved herself worthy.”

       Matthew admitted that the children witnessed his arrest and that Janna used

methamphetamine on some occasions since she had been out of prison. Matthew claimed that he

missed a previously scheduled drug test because CPS referred him to a lady who was not present

at the drug-testing facility at the time he went to be tested. He admitted that he tested positive for

drugs during the month of the termination hearing, but suggested that his drug use was excused

because he was stressed out about losing his children. Matthew had a total of eight children and

had child support arrearage for at least one of the children not involved in this termination case.

Matthew testified that he did not know whether the court-ordered child support payment for

Kendrick’s, Anna’s, and Ophelia’s benefits had been made in this case because it was supposed to

                                                 15
be coming out of his check from Trinity Industries. He clarified that he had no proof he had paid

child support during the pendency of this case.

         After all the evidence was presented, the trial court decided to terminate Matthew’s and

Janna’s parental rights.

         C.       Sufficient Evidence Supported Predicate Finding Against Matthew Under
                  Section 161.001(b)(1)(O)

         Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment

of termination when there is also a finding that termination is in the children’s best interests. In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana

2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). “If

multiple predicate grounds are found by the trial court, we will affirm based on any one ground

because only one is necessary for termination of parental rights.” K.W., 335 S.W.3d at 769

(quoting In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.).

         Ground O requires the Department to prove that a parent has

         failed to comply with the provisions of a court order that specifically established
         the actions necessary for the parent to obtain the return of the child who has been
         in the permanent or temporary managing conservatorship of the Department of
         Family and Protective Services for not less than nine months as a result of the
         child’s removal from the parent under Chapter 262 for the abuse or neglect of the
         child.

TEX. FAM. CODE ANN. § 161.001(b)(1)(O).4




4
 The fact that the children were in the Department’s care for not less than nine months as a result of their removal for
the abuse or neglect is uncontested.
                                                          16
       Here, the Department met its burden under Ground O. The evidence at trial established

that Matthew was under court order to comply with all requirements of the Department’s family

service plan. Under that plan, Matthew was required to maintain contact with the caseworker on

a monthly basis, maintain stable housing, complete a twenty-eight week anger management course,

and submit to random drug tests. Williams testified that Matthew failed to maintain contact with

her and that he failed to demonstrate that he was maintaining stable housing. Williams said that

Matthew was moving about and was living “pillar to post” until later on in the case.

       Matthew admitted that he failed to complete the Department’s anger management course.

The Department proved that Matthew did not submit to random drug tests, and Matthew admitted

that he tested positive for methamphetamine in the month of the termination trial. We find the

evidence legally and factually sufficient to support the trial court’s finding under Ground O.

Accordingly, we overrule Matthew’s first point of error.

       D.        Sufficient Evidence Supported the Best-Interest Findings

       “There is a strong presumption that keeping a child with a parent is in the child’s best

interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus

Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)

(per curiam)).    “Termination ‘can never be justified without the most solid and substantial

reasons.’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting

Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).

       In determining the best interest of the child, courts consider the following Holley factors:

       (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
                                                17
       future, (4) the parental abilities of the individuals seeking custody, (5) the programs
       available to assist these individuals, (6) the plans for the child by these individuals,
       (7) the stability of the home, (8) the acts or omissions of the parent that may indicate
       the existing parent-child relationship is not a proper one, and (9) any excuse for the
       acts or omissions of the parent.

Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see E.N.C., 384

S.W.3d at 807; see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2015).

               1.     Legally and Factually Sufficient Evidence Supported the Trial Court’s
                      Findings that Termination of Janna’s Parental Rights Was in Each
                      Child’s Best Interest

       The first Holley factor involves the desires of the children. Anna and Ophelia were too

young to verbalize their desires. However, Janna was incarcerated shortly after the twins were

born, and Smith said that the children had not seen Janna for months. The Department introduced

evidence that the twins were bonded to their foster parents and referred to them as “Mom” and

“Dad.” From this evidence establishing the twins’ limited contact with Janna during their

lifetimes, the trial court could infer that the twins would prefer to remain in the foster parents’

stable, loving environment. See In re J.K.V., No. 06-15-00063-CV, 2016 WL 269134, at *4 (Tex.

App.—Texarkana Jan. 22, 2016, no pet. h.). With respect to Anna and Ophelia, we find that the

first Holley factor weighs in favor of terminating Janna’s parental rights. However, while the

evidence shows that Kendrick was attached to his foster parents, the evidence did not demonstrate

that Kendrick, who was old enough to verbalize his desires, wished to remain apart from Janna.

Accordingly, we find the first Holley factor neutral with respect to Kendrick.

       As for the second and third Holley factors, the evidence showed that Janna could not meet

the emotional and physical needs of the children and that she posed a danger to the children. The

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evidence also established that Janna had poor parenting skills under the fourth Holley factor. Janna

had a history of methamphetamine abuse.5 Her drug use led to the removal of her older children

and caused Kendrick to test positive for methamphetamine. Janna admitted that she used drugs in

the home while Kendrick, Anna, and Ophelia were present. She also had a history of incarceration

and demonstrated an inability to remain out of jail due to her drug use and poor choices. Smith

testified that as a result of Janna’s parenting, Anna and Ophelia were behind developmentally and

that Kendrick required special counseling as a result of his emotional issues. Williams testified

that Janna would be unable to take care of the children’s needs. The trial court found that Janna

engaged in conduct or knowingly placed the children with persons who engaged in conduct which

endangered their physical or emotional well-being. Janna did not challenge this finding. She

appeared to support herself and the children by committing acts of theft. From this evidence, the

trial court could find that Janna could not adequately provide for the children’s needs, that her

failure to remain drug free in the children’s presence presented a danger to them, and that she

lacked the parenting skills and stability to take care of the children. See id. (citing In re C.A.J.,

122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (“lack of parenting skills, income,

and home, and unstable lifestyle considered in determining parent’s ability to provide for child’s

physical and emotional needs”); J.O.A., 283 S.W.3d at 346 (“considering parent’s history of

irresponsible choices in best interest determination”)).




5
 “A parent’s drug abuse, which reflects poor judgment, is also a factor that may be considered when determining the
child’s best interest.” In re A.T., No. 06-14-00091-CV, 2015 WL 733275, at *5 (Tex. App.—Texarkana Feb. 18,
2015, no pet.) (mem. op.).
                                                        19
        The Department had several programs to assist Janna. Although Janna completed a

parenting class, Williams’ testimony showed that Janna did not take advantage of all of the

Department’s services and that she failed to complete her family service plan. We find that the

sixth Holley factor weighs in favor of terminating Janna’s parental rights.

        As for the last three Holley factors, Janna, a drug addict who was incarcerated at the time

of trial, had no discernible plan for the children, according to Williams. If she were freed from

incarceration, Janna would presumably have the kids live with her in her home. However, Janna

admitted to using methamphetamine in that home, thereby contaminating it. There was also

evidence suggesting that Janna would continue to subject the children to her volatile relationship

with Matthew, should the children be returned to her. In spite of the domestic violence and the

protective order entered against Matthew, Matthew testified that Janna had chosen to continue a

relationship with him and that the two lived with each other when Janna was not in jail. In contrast,

the Department established that Smith wanted to adopt the children and that her home was loving

and stable. Janna offered no excuse for her acts or omissions. We find that the seventh, eighth,

and ninth Holley factors weigh in favor of terminating Janna’s parental rights.

        In light of a full evaluation of Janna’s circumstances, the reasons for terminating Janna’s

parental rights, and a balancing of the Holley factors, we find that the evidence was both legally

and factually sufficient to support the trial court’s best-interest findings. Accordingly, we overrule

Janna’s last point of error.




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       2.      Factually Sufficient Evidence Supported the Trial Court’s Findings that
               Termination of Matthew’s Parental Rights Was in Each Child’s Best Interest

       Likewise, we find the evidence factually sufficient to support the best-interest findings

against Matthew.

       Under the first Holley factor, CPS introduced evidence (1) that Kendrick was often

unhappy about his obligation to speak with Matthew over the telephone and lashed out after visits

with him and (2) that Anna and Ophelia had limited contact with Matthew. In light of the evidence

showing the nature of the children’s bond with the foster parents, we find that the first Holley

factor weighs in favor of terminating Matthew’s parental rights with respect to all three children.

       Next, “the amount of contact between the parent and child[, and] the parent’s failure to

provide financial and emotional support, continuing criminal history, and past performance as a

parent are all relevant in determining the child’s best interest.” A.T., 2015 WL 733275, at *5.

Williams testified that Matthew regularly missed visitations with his children. According to Smith,

Kendrick communicated with Matthew over the telephone for short periods of time, while the

twins had little contact with Matthew. Matthew had a total of eight children and was under an

obligation to pay child support for those children. The evidence demonstrated that Matthew failed

to support his children, including Kendrick, Anna, and Ophelia. Through Palafax’ testimony about

Matthew’s criminal history and her explanation of the likelihood that he would soon be

incarcerated for violating conditions of his supervised release, CPS established, and Williams

testified, that Matthew would soon be unable to meet the children’s physical and emotional needs.

We find that the second Holley factor weighs in favor of terminating Matthew’s parental rights.


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       The remaining Holley factors also weigh against Matthew. Matthew committed acts of

domestic violence against Janna. According to Rankin, Janna stated that Matthew had anger issues

as a result of his use of steroids. Rankin also testified that Janna left a window open during the

altercation so that the children could escape, indicating that she feared for her children’s safety

due to Matthew’s demeanor. Matthew failed to complete anger management classes, and he

violated a protective order to maintain his volatile relationship with Janna. He testified that he

knew that Janna was using drugs in the home where the children lived. Yet, he left the children

under Janna’s care and told the court that his plan was for the children to live with Janna should

he be incarcerated and she be free. Further, Matthew continued to use drugs during the pendency

of the case, suggesting that he would do so if the children were returned to him. Although Matthew

had the opportunity to complete the family service plan, he failed to do so. According to Williams,

Matthew did not have a stable home until very late in the case. “A parent’s drug use, inability to

provide a stable home, and failure to comply with a family service plan support a finding that

termination is in the best interest of the child.” In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort

Worth 2007, no pet.). We find that the third through eighth Holley factors weigh in favor of

terminating Matthew’s parental rights.

       Matthew offered some excuses for his acts and omissions. He claimed that he failed to

report for a drug test because CPS’s contact was not present at a drug-testing facility. The trial

court, as the fact-finder, was free to disbelieve this testimony, in light of Matthew’s positive drug

test in October 2015. Matthew also claimed that he was uncertain about whether child-support

payments were being made because the payments were supposed to be taken from his Trinity

                                                 22
Industries check, but he did nothing to ensure that his obligations were being met. Surprisingly,

Matthew indicated that he used drugs in the month of the termination hearing because he was

stressed out, indicating that the existing parent-child relationship was not an appropriate one. We

find that the ninth Holley factor weighs in favor of terminating Matthew’s parental rights.

        After reviewing the evidence in balancing the Holley factors, we conclude that the trial

court’s findings that termination of Matthew’s parental rights was in the best interests of the

children were supported by factually sufficient evidence. Therefore, we overrule Matthew’s last

point of error.

IV.     Conclusion

        We affirm the trial court’s judgment.




                                                Bailey C. Moseley
                                                Justice

Date Submitted:        March 29, 2016
Date Decided:          April 14, 2016




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