                                       NO. 12-13-00339-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

                                                         §       APPEAL FROM THE
IN THE INTEREST OF
                                                         §       COUNTY COURT AT LAW # 2
J. T. K., A CHILD
                                                         §       ANGELINA COUNTY, TEXAS

                                       MEMORANDUM OPINION
        L.K. appeals the termination of her parental rights to J.T.K. and raises two issues on
appeal.1 We affirm.


                                                BACKGROUND

        L.K. is the mother of J.T.K., who was born on October 27, 2011.2 L.K. had been
incarcerated for three months for the offense of driving while intoxicated with a child passenger
when the Department of Family and Protective Services (the Department or CPS) received an
anonymous report of the abuse or neglect of J.T.K. The report included allegations that the
people keeping J.T.K. during his mother’s incarceration were chronically ill and unable to
continue caring for him.         On September 28, 2012, the Department filed a petition for the
protection of J.T.K., for conservatorship, and for termination in a suit affecting the parent-child
relationship. On October 22, 2012, the trial court appointed the Department temporary managing
conservator of J.T.K. and named L.K. temporary possessory conservator of J.T.K.                               The
Department later filed a motion to proceed under aggravated circumstances alleging that L.K.’s
parental rights to two other children had been involuntarily terminated. The trial court granted
        1
           To protect the identity of the child who is the subject of this suit, we use aliases to identify various
individuals involved. See TEX. R. APP. P. 9.8(b)(2).
        2
         L.K. testified that J.T.K. was born on October 28, 2011, but the court documents show his date of birth as
October 27, 2011.
the Department’s request, waived the requirement that the Department develop a service plan for
L.K., and set the case for trial.3
        The case proceeded to a bench trial on October 23, 2013. Ultimately, the trial court
determined that the parent-child relationship between L.K. and J.T.K. should be terminated.
This appeal followed.


                                  TERMINATION OF PARENTAL RIGHTS
        The involuntary termination of parental rights embodies fundamental constitutional
rights. In re C.L.C., 119 S.W.3d 382, 390 (Tex. App.—Tyler 2003, no pet.); Vela v. Marywood,
17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex.
2001). When the state seeks to terminate one’s parental rights, it seeks not only to infringe one’s
fundamental liberty interest, but to end it. See In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). A
termination decree is “complete, final, irrevocable [and] divests for all time the parent and child
of all legal rights, privileges, duties, and powers with respect to each other except for the child’s
right to inherit.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d
174, 179 (Tex. App.—El Paso 1998, no pet.). Thus, the breaking of bonds between a parent and
child “can never be justified without the most solid and substantial reasons.” Wiley, 543 S.W.2d
at 352; In re Shaw, 966 S.W.2d at 179. Because a termination action “permanently sunders” the
bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley, 543
S.W.2d at 352; In re Shaw, 966 S.W.2d at 179. However, parental rights are not absolute, and it
is vital that the emotional and physical interests of the child not be sacrificed at the expense of
preserving that right. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
        Section 161.001 of the Texas Family Code permits the termination of parental rights if
two elements are met. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2013). First, the parent
must have engaged in any one of the acts or omissions itemized in the first subsection of the
statute. Id. § 161.001(1) (West Supp. 2013); In re C.L.C., 119 S.W.3d at 390. Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West
Supp. 2013); In re C.L.C., 119 S.W.3d at 390. Both elements must be proved by “clear and
convincing evidence,” and proof of one element does not alleviate the petitioner’s burden of

        3
          See TEX. FAM. CODE ANN. § 262.2015(b)(5), (7) (West Supp. 2013) (allowing court to waive service plan
requirement and reasonable efforts to return child to parent when parental rights to another child were terminated
pursuant to Section 161.001(1)(D) or (E) of the family code or involuntarily terminated to two children).


                                                        2
proving the other. TEX. FAM. CODE ANN. § 161.001; In re C.L.C., 119 S.W.3d at 390. “Clear
and convincing evidence” means the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.   TEX. FAM. CODE ANN. § 101.007 (West 2008).             Because there is a strong
presumption that the best interest of the child is usually served by preserving the parent-child
relationship, the burden of proof rests upon the party seeking to deprive the parent of his or her
parental rights. See Wiley, 543 S.W.2d at 352; In re C.L.C., 119 S.W.3d at 391.


                            INEFFECTIVE ASSISTANCE OF COUNSEL
       In her first issue, L.K. contends that she received ineffective assistance of counsel, which
gave the trial court “no other options but to proceed under aggravated circumstances and
terminate” her parental rights. The Department contends there is no evidence that trial counsel’s
conduct fell outside the wide range of reasonable professional assistance.
Standard of Review and Applicable Law
       An indigent parent is entitled to appointed counsel in a termination of parental rights
case, and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d
250, 253-54 (Tex. 2010). Ineffective assistance claims must be firmly founded in the record, and
the record must affirmatively show the alleged ineffectiveness. In re L.C.W., 411 S.W.3d 116,
127 (Tex. App.—El Paso 2013, no pet.) (citations omitted); see also Walker v. Tex. Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (citations omitted). When the record is silent concerning the reasons for counsel’s
actions, the reviewing court will not engage in speculation to find ineffective assistance of
counsel, and the appellant bears the burden of overcoming the presumption that, under the
circumstances, the challenged conduct might be considered sound trial strategy. In re L.C.W.,
411 S.W.3d at 127.
       In reviewing claims of ineffective assistance of counsel, we consider all circumstances
surrounding the case and apply the Supreme Court’s two pronged test used in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re M.S., 115 S.W.3d
534, 545 (Tex. 2003). Under Strickland’s first prong, the parent must show that counsel’s
performance was deficient. See id. at 545 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at
2064). This requires a showing that counsel made errors so serious that counsel was not



                                                3
functioning as the “counsel” guaranteed by the Sixth Amendment. In re J.O.A., 283 S.W.3d
336, 342 (Tex. 2009) (citations omitted). Under the second prong, the parent must show that the
deficient performance prejudiced the defense. See In re M.S., 115 S.W.3d at 545. This requires
a showing that counsel’s errors were so serious as to deprive the parent of a fair trial, a trial
whose result is reliable. See In re J.O.A., 283 S.W.3d at 342 (citations omitted). 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. In re V.V., 349
S.W.3d 548, 559 (Tex. App.—Houston [1st Dist.] 2010, pet. withdrawn) (citations omitted). A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
        In conducting our review, we “must primarily focus on whether counsel performed in a
reasonably effective manner.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (citations
omitted). We give great deference to counsel’s performance, “indulging a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance,
including the possibility that counsel’s actions are strategic.” Id. Challenged conduct constitutes
ineffective assistance only when it is “so outrageous that no competent attorney would have
engaged in it.” Id. (citations omitted). To be successful in her ineffective assistance of counsel
claim, L.K. must show that counsel’s representation fell below an objective standard of
reasonableness. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064; see also In re L.D.G., No.
12-11-00005-CV, 2012 WL 171888, at *2 (Tex. App.—Tyler Jan. 18, 2012, no pet.) (mem. op.)
(citations omitted).      Failure to satisfy Strickland’s requirements defeats an ineffectiveness
challenge. See Walker, 312 S.W.3d at 623.
Discussion
        The record shows that at the time of removal, L.K. had been incarcerated in the Angelina
County Jail for three months. Approximately one month after J.T.K.’s removal, L.K. pleaded
guilty to the felony offense of driving while intoxicated and was placed on “deferred
adjudication” community supervision.4 L.K.’s conditions of community supervision required her
to attend a residential treatment facility for nine months. Because L.K. was in the residential


        4
           The record shows that L.K. was originally arrested for driving while intoxicated with a child passenger
and that J.T.K. was the passenger. It is also worth noting that those who commit offenses for driving while
intoxicated are not eligible for deferred adjudication community supervision. See TEX. CODE CRIM. PROC. ANN. art.
42.12, § 5(d)(1)(A) (West Supp. 2013).


                                                        4
treatment facility, she was not present during the hearing on the Department’s motion to proceed
under aggravated circumstances. L.K. alleges several reasons as support for her contention that
trial counsel was ineffective.
       i. Aggravated Circumstances and Failure to Bench Warrant
       L.K. contends that counsel was ineffective for failing to bench warrant her to the various
pretrial hearings.    She argues that trial counsel was ineffective during the hearing on the
Department’s motion to proceed under aggravated circumstances because she made no
objections and “presented no witnesses or contrary evidence,” which “gave the trial court “no
choice but to grant the [Department’s] motion.”
       Section 262.2015 of the family code authorizes the trial court to waive the requirement of
a service plan and the requirement that the Department make reasonable efforts to return the
child to a parent if the trial court finds that the parent has subjected the child to aggravated
circumstances. See TEX. FAM. CODE ANN. § 262.2015(a), (b) (West Supp. 2013). The court may
find that a parent has subjected a child to aggravated circumstances if


               the parent’s parental rights with regard to another child have been involuntarily
               terminated based on a finding that the parent’s conduct violated Section
               161.001(1)(D) or (E) . . .

               [or]

               the parent’s parental rights with regard to two other children have been
               involuntarily terminated.



See id. § 262.2015(b)(5), (7).
       During the hearing on its motion, the Department introduced a certified copy of a Decree
for Termination in which L.K. is named as the respondent mother of two children, “[Q.R.1. and
Q.R.2.].” The decree states that the trial court found by clear and convincing evidence that L.K.
“knowingly placed or knowingly allowed the children to remain in conditions or surroundings
which endanger the physical or emotional well[]being of the children, pursuant to
§ 161.001(1)(D) of the Texas Family Code.” The decree also states that L.K. “engaged in
conduct or knowingly placed the children with persons who engaged in conduct which endangers
the physical or emotional well[]being of the children, pursuant to §161.001(1)(E) of the Texas
Family Code. . . .”



                                                      5
       At trial, a certified copy of the same termination decree was admitted into evidence and
L.K.’s testimony confirmed that her parental rights to Q.R.1. and Q.R.2. were involuntarily
terminated as set forth in the termination decree. Thus, L.K.’s testimony at trial affirmed the trial
court’s finding of aggravated circumstances, and L.K. does not challenge the sufficiency of the
evidence supporting termination of her parental rights under Section 161.001(1)(M) of the family
code. See TEX. FAM. CODE ANN. § 161.001(1)(M). Furthermore, L.K. admits in her brief that
when she asked whether her absence in court would be “held against me,” the trial court “assured
her” that “it would not count against her.” Consequently, L.K. has failed to show how counsel’s
alleged error in not having her bench warranted to the pretrial hearings prejudiced her defense as
required by the second prong of the Strickland test. See In re M.S., 115 S.W.3d at 545.
       ii. Extraordinary Circumstances
       L.K. next contends that counsel was ineffective because she told the trial court that L.K.
could be in treatment for up to two years when L.K.’s treatment was for nine months. L.K.
argues that “had counsel maintained the position throughout the spring hearings that [L.K.] was
determined to regain custody of J.T.K. and was working voraciously towards that end, the Court
may have granted a six month extension for [L.K.] to demonstrate the skills she learned in
treatment after her homecoming in September.”
       Section 263.401 provides that in cases where the Department has filed a suit affecting the
parent-child relationship, the trial court may retain the case beyond the one year dismissal date if
it 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. See TEX.
FAM. CODE ANN. § 263.401(b) (West 2008). In granting or denying an extension, the focus is on
the needs of the child. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth 2012, pet.
denied). A parent’s involvement in completing conditions of her community supervision is
generally considered to be the parent’s fault and not an extraordinary circumstance. See, e.g. In
re G.P., No. 10-13-00062-CV, 2013 WL 2639243, at *1 (Tex. App.—Waco June 6, 2013, no
pet.) (mem. op.) (“A parent’s incarceration is generally considered to be the parent’s fault and
not an extraordinary circumstance.”) (citing In re A.J.M., 375 S.W.3d at 604; In re M.G.D., 108
S.W.3d 508, 512 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)).




                                                 6
       L.K. argues that an extension would have allowed her to complete her service plan and
demonstrate her progress and ability to parent J.T.K. But there was no requirement that a service
plan be created due to the aggravated circumstances in this case. See TEX. FAM. CODE ANN.
§ 262.2015. L.K.’s parental rights were not terminated due to her failure to comply with a
service plan, and L.K. admits that, at most, counsel’s statement that L.K. could be in treatment
for up to two years “may” have affected the trial court’s decision on whether to grant an
extension. As a result, L.K. has failed to satisfy the prejudice prong of the Strickland test and
also fails to show that counsel’s statement deprived her of a fair trial. See In re J.O.A., 283
S.W.3d at 342; In re M.S., 115 S.W.3d at 545.
       iii. Trial Strategy
       In her last two arguments, L.K. contends that counsel was ineffective because she did not
request a trial by jury and did not list any other witnesses to confirm her progress in the
residential treatment facility. The court entered a standing scheduling and discovery order,
which stated that a request for a jury trial must be received no less than sixty days prior to trial.
In another scheduling order, the trial court set jury selection on the merits of the case for
September 11, 2013. During an August 6, 2013 hearing, L.K.’s counsel informed the trial court
as follows:


               The last I confirmed with my client, Your Honor, she asked for me to request a
               jury trial. I sent another letter to her this past week asking her to confirm that
               that was still—after reviewing the discovery and everything because I sent her a
               copy of all of it, if that was still her intentions and I’ve not heard back from her
               yet, Judge.


The record contains no oral or written request for a jury trial, and is silent on the issue of whether
L.K.’s desire for a jury trial changed upon receiving the discovery that trial counsel sent her
while she was in the treatment facility. Because the record is silent on this point, we will not
engage in speculation to conclude counsel was ineffective for not requesting a jury trial. See In
re L.C.W., 411 S.W.3d at 127.
       L.K. next complains that trial counsel was ineffective because “no employer, no relatives,
no friends, no roommate, [and] no staff from the treatment center” were called to testify to
confirm her progress. The record shows that trial counsel introduced a certificate of completion
verifying that L.K. successfully completed a “Parenting and Family Values” course designed to



                                                        7
change thinking and behavior about parenting.            She also introduced a certificate that
recommended L.K.’s graduation from the Recovery Center of Bowie County.              However, the
record illustrates that counsel’s failure to call additional witnesses, particularly family members,
may have been the result of sound trial strategy. See In re H.R.M., 209 S.W.3d at 111.
       L.K. testified that her family was in Houston, but she explained that she chose not to be
close to her Houston family because “I just wanted a different environment, a change of my
environment. I don’t want to go back to the old places and people and stuff like that. I just want
to do something different.” When asked whether she would be more likely to use drugs if she
went back to the “old places and old people,” L.K. responded, “I feel like I’m just now strong
enough to be around certain things and I just want to distance myself from a lot of negativity that
brought me down. I don’t want to be around it no more.” When L.K. was cross-examined about
her friend and roommate, “Denise,” L.K. could not remember Denise’s last name, and testified
that Denise was not present for the termination trial.
       When claiming ineffective assistance based on trial counsel’s failure to call witnesses, the
challenger must identify the witnesses who were available to testify and also show that the
witnesses’ testimony would have been of some benefit to the defense. See Ex parte Ramirez,
280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (citations omitted). Here, L.K. has not identified
any witnesses who were available to testify at trial that would have proved beneficial to her
defense. L.K. has failed to rebut the presumption that counsel’s failure to call witnesses was the
result of sound trial strategy. As a result, L.K. has not satisfied her burden under either prong of
the Strickland test in addressing her two claims of ineffective assistance of counsel relating to
trial strategy. See In re H.R.M., 209 S.W.3d at 111; In re M.S., 115 S.W.3d at 545.
Conclusion
       Although L.K. makes several arguments that trial counsel’s performance was deficient,
her claims are not firmly founded in the record. See In re L.C.W., 411 S.W.3d at 127. L.K. has
not shown that trial counsel’s representation fell below an objective standard of reasonableness,
nor has she shown that trial counsel’s representation prejudiced her defense. See Strickland, 466
U.S. at 687-88, 104 S. Ct. at 2064; In re M.S., 115 S.W.3d at 545. After considering the
circumstances surrounding this case, and focusing on whether trial counsel performed in a
reasonably effective manner, we conclude that trial counsel’s conduct was not so outrageous that




                                                 8
no competent attorney would have engaged in it. See In re H.R.M., 209 S.W.3d at 111; In re
M.S., 115 S.W.3d at 545. Accordingly, we overrule L.K.’s first issue.


                                  BEST INTEREST OF THE CHILD
        In her second issue, L.K. contends that it is in J.T.K.’s best interest to be reunited with
her. We construe L.K.’s argument as a challenge to the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination of her parental rights is in J.T.K.’s
best interest.
Standard of Review
        When, as here, the burden of proof is clear and convincing evidence, we conduct a legal
sufficiency review by looking at all of the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or conviction that its
finding was true. 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. Id. Thus, it follows
that the reviewing court should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible, but this does not mean that the reviewing court
must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts
that do not support the finding could skew the analysis of whether there is clear and convincing
evidence. Id. If, after conducting our legal sufficiency review, we determine that no reasonable
fact finder could form a firm belief or conviction that the matter which must be proven is true,
then we will conclude that the evidence is legally insufficient. Id.
        When we conduct a factual sufficiency review, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our
inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations.         Id.   We consider whether the
disputed evidence is such that a reasonable fact finder could not have resolved that disputed
evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed
evidence is so significant that a fact finder could not have reasonably formed a firm belief or
conviction, then the evidence is factually insufficient.      Id.      In finding evidence factually
insufficient, the appellate court should detail why it has concluded that a reasonable fact finder
could not have credited disputed evidence in favor of its finding. Id. at 267.



                                                 9
       The standard of review for legal and factual sufficiency challenges maintains a
deferential standard for the fact finder’s role, which means the trier of fact is the exclusive judge
of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d
at 26-27; Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston [1st Dist.] 1997,
pet. denied). Thus, our review must not be so rigorous that the only fact findings that could
withstand review are those established beyond a reasonable doubt. In re C.H., 89 S.W.3d at 26.
Applicable Law
       The party seeking termination must prove by clear and convincing evidence that
termination of a parent’s rights is in the child’s best interest.      See TEX. FAM. CODE ANN.
§ 161.001(2). Parental rights may not be terminated merely because a child might be better off
living elsewhere. In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.). A
parent’s imprisonment does not automatically establish that termination is in the child’s best
interest, but a parent’s criminal history and incarceration are factors that courts may consider in
determining the best interest of a child. See In re S.R.L., 243 S.W.3d 232, 236 (Tex. App.—
Houston [14th Dist.] 2007, no pet.); In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st
Dist.] 2002, pet. denied).     The prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest, and there is a strong presumption that
keeping a child with a parent is in the child’s best interest.        See TEX. FAM. CODE ANN.
§ 263.307(a) (West 2008); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
       In determining the best interest of the child, the courts consider a number of factors
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 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. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976). The family code also provides a list of factors that we will
consider in conjunction with the above-mentioned Holley factors. See TEX. FAM. CODE ANN.
§ 263.307(b) (West 2008). Here, the applicable statutory factors include (1) the child’s age and
physical and mental vulnerabilities, (2) whether there is a history of substance abuse by the




                                                 10
child’s family or others who have access to the child’s home, and (3) whether an adequate social
support system consisting of an extended family and friends is available to the child. See id.
        The Department need not prove all of the statutory or Holley factors to show that
termination of parental rights is in the child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed
evidence of just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex.
App.—Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will
not support such a finding. Id. Evidence supporting termination of parental rights under section
161.001(1) is also probative in determining whether termination is in the best interest of the
child. See In re C.H., 89 S.W.3d at 28-29.
Discussion
        L.K. contends that the evidence is insufficient to show that termination of her parental
rights is in J.T.K.’s best interest because she completed the tasks of the Department’s original
service plan on her own volition, there are multiple problems for J.T.K. at the foster home, and
the foster mother is a single mother with no other help at home.5 We begin our discussion by
first recognizing that compliance with a service plan does not preclude a finding that termination
is in the child’s best interest. See In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo
2006, no pet.).
        At the time of trial, J.T.K. was days away from his second birthday. Due to L.K.’s
incarceration and participation in the residential treatment center, J.T.K. spent more of his
lifetime away from L.K. than with her. J.T.K.’s caseworker, Rachel Moore, testified that J.T.K.
is bonded and interacts “great” with his foster mother, C.P. She described J.T.K.’s demeanor as
“very happy and lovable,” and testified that he appeared comfortable around C.P., even though
he mostly clung to Moore during her last visit. Susan Lucas, a CASA volunteer, testified that




        5
          L.K. contends that among the problems with the foster home is that J.T.K. suffered an unexplained black
eye. L.K.’s argument, however, is based on evidence admitted at the initial permanency hearing and not at trial.
Because our review is one of evidentiary sufficiency, we consider only evidence presented at trial. See, e.g., In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).




                                                        11
J.T.K. has been doing well in his placement with C.P., is happy, well fed, and that his medical
needs are being taken care of.6
         C.P. lives in a three bedroom, two bathroom home with three children—J.T.K., J. (her
daughter), and her son. She adopted J. after L. K. relinquished her parental rights to J. in 2009.
C.P. works at a daycare/head start facility where she is not required to pay for the care of the
three children and makes approximately $1,400.00 each month. C.P.’s family lives in the area,
has met J.T.K., and treats him like family. L.K. confirmed in her testimony that she did not have
any objections to C.P. as a caretaker and that C.P. has taken good care of J.T.K. and J. Since
J.T.K. has been in C.P.’s care, he has gotten along and plays with J., but there are times when the
two siblings fight with each other—arguing and taking toys.                          C.P. wants to keep J.T.K.
permanently, with adoption as her ultimate goal. When asked about a continued relationship
with L.K., C.P. stated that she is willing to allow L.K. supervised visitations with J.T.K. and J.
         L.K. is currently on community supervision, which requires her to, among other things,
attend nine months of “after-care,” and attend “NA” and “AA” meetings. L.K. explained that
she is on a waiting list to attend the after-care classes, which will require attendance twice a
week for two hours each time. L.K. lives in Texarkana with one of her coworkers, Denise, and
Denise’s two children—ages thirteen and eleven.7 L.K. works between thirty-five and forty
hours each week and makes about $1,000.00 a month. L.K. plans to put J.T.K. in daycare while
she works, but at the time of trial, she had not conducted any research of Texarkana daycares.
L.K. testified that if she gained custody of J.T.K., her manager would change her schedule to day
shift and that her coworkers were also willing to help take care of J.T.K. L.K. testified that the
coworkers who had offered to help with J.T.K. did not have any criminal history and that she
knows this because they “communicate” and because “they have custody of kids and they dealt
with a legal situation too. . . .”
         L.K. testified that she started using drugs in 2004 and has been sober for a year and a
half. Her drug of choice was PCP, but she also used alcohol and marijuana. Each of her
children’s removals arose out of circumstances relating to L.K.’s substance abuse. During two
of her five pregnancies, L.K. used drugs, and shortly after J.T.K.’s birth, she relapsed.


         6
         When J.T.K. first came into care, he battled numerous ear infections requiring regular doctor’s visits, but
was doing much better at the time of trial.
         7
             As discussed in the previous section of this opinion, L.K. has no family in Texarkana.


                                                           12
          L.K. has a history of intoxication offenses—one driving while intoxicated charge in
Houston, two driving while intoxicated charges in Lufkin, and one public intoxication incident
that occurred while L.K. was holding one of her children in the middle of an intersection. In one
of the Lufkin offenses, J.T.K. was in the vehicle with L.K.
          L.K. testified that her parental rights were terminated to her four oldest children because
she was “sick” from her drug use. L.K. explained that she “gave [two of her children] up
voluntarily” because “I felt I was still sick and I felt it was best for my daughter to be where she
was because I felt I wouldn’t take care of her at the time.”8
          L.K. testified that unlike the times before, she now has the tools she needs to stay sober,
deal with stressful situations, and parent J.T.K. It is undisputed that L.K. has been sober for a
year and a half and that she successfully graduated from the residential treatment facility.
During her time at the treatment facility, L.K. received grief and drug intervention counseling.
She also took classes on relapse prevention, healthy coping, and self-improvement. At trial, L.K.
testified that her parental rights to J.T.K. should not be terminated because she “just sees things
different now” than she did with her four other children and that she “just want[s] the
opportunity to prove that I can be a good mother to my son and that I can remain clean and
sober.”
          Viewing this evidence, along with the evidence discussed in our review of L.K.’s claim
of ineffective assistance of counsel, in the light most favorable to the finding, we conclude that
the fact finder could reasonably have formed a firm conviction that termination of L.K.’s
parental rights was in J.T.K.’s best interest. See J.F.C., 96 S.W.3d at 266. Viewing the record
as a whole, we conclude that the fact finder could reasonably have formed a firm conviction that
termination of L.K.’s parental rights was in J.T.K.’s best interest. See id. Furthermore, we
conclude that the evidence weighing against termination (L.K.’s sobriety) is not so significant to
conclude that the fact finder’s decision was unreasonable due to the termination of L.K.’s
parental rights to her four oldest children, her history of substance abuse, and her criminal
history involving intoxication offenses. See id. Accordingly, we hold that the evidence of
J.T.K.’s best interest is legally and factually sufficient to support the trial court’s best interest
finding. We overrule L.K.’s second issue.


          8
            These children are identified in the record as “S.” and “J.” J. was adopted by, and currently lives with,
C.P.; S. lives with her aunt in Houston, Texas.


                                                         13
                                                    DISPOSITION

         Having overruled L.K.’s first and second issues, we affirm the judgment of the trial
court.

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered March 19, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



                                                          14
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            MARCH 19, 2014


                                          NO. 12-13-00339-CV


                           IN THE INTEREST OF J. T. K., A CHILD


                              Appeal from the County Court at Law #2
                     of Angelina County, Texas (Tr.Ct.No. CV-01773-12-09)

                       THIS CAUSE came to be heard on the appellate record and briefs filed

herein, and the same being considered, it is the opinion of this court that there was no error in the

judgment.

                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.

                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
