Affirmed and Memorandum Opinion filed December 10, 2013.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00640-CV

          IN THE INTEREST OF R.E.T.R AND D.D.R, JR., CHILDREN


                   On Appeal from the 314th District Court
                            Harris County, Texas
                     Trial Court Cause No. 2012-04492J


               MEMORANDUM                       OPINION
      Appellant, C.J., appeals from the trial court’s judgment terminating her
parental rights to her two children. In two issues, appellant challenges the
sufficiency of the evidence to support the trial court’s predicate termination
findings, and she asserts that she received ineffective assistance of counsel. We
affirm.

              I. FACTUAL AND PROCEDURAL BACKGROUND

      Appellant’s daughter, R.E.T.R., was born January 9, 2011. D.D.R., Jr.,
appellant’s son, was born July 8, 2012. On July 9, 2012, the Texas Department of
Family and Protective Services received two referrals concerning the children. The
first referral alleged appellant physically abused D.D.R., Jr. because appellant
tested positive for cocaine and marijuana when he was born. See Tex. Fam. Code §
261.001(1)(I) (defining “abuse” as including a parent’s current use of a controlled
substance). In addition, the referral alleged the baby’s urine tested positive for
drugs at birth. The second referral alleged neglectful supervision of the older child,
R.E.T.R.

       On July 23, 2012, the Department filed a petition for protection of the
children, and appellant and the children’s alleged father, D.D.R., were personally
served.1 The trial court entered emergency temporary orders and scheduled an
adversary hearing. Appellant and the alleged father submitted to drug testing, and
both tested positive for cocaine. After the adversary hearing, the court appointed
the Department temporary managing conservator of the children, signed further
temporary orders, and made findings, including a finding of:

       sufficient evidence to satisfy a person of ordinary prudence and
       caution that: (1) there was a danger to the physical health or safety of
       the children which was caused by an act or failure to act of the person
       entitled to possession and for the children to remain in the home is
       contrary to the welfare of the children; (2) the urgent need for
       protection required the immediate removal of the children and makes
       efforts to eliminate or prevent the children’s removal impossible or
       unreasonable; and (3) notwithstanding reasonable efforts to eliminate
       the need for the children’s removal and enable the children to return
       home, there is a substantial risk of a continuing danger if the children

1
  The Department also requested adjudication of the father’s parentage and termination of his
parental rights, both of which the trial court granted. The father has separately appealed the
termination decree. See In re R.E.T.R. & D.D.R., Jr., No. 14-13-00698-CV (Tex. App.—Houston
[14th Dist.]). The father’s appointed counsel filed a brief concluding the appeal is wholly
frivolous and without merit, pursuant to Anders v. California, 396 U.S. 738, 77 S.Ct. 1396
(1967). See In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(applying Anders procedures to termination cases). Therefore, we will not address issues
concerning the father’s termination in this appeal.


                                              2
        are returned home.

        On September 25, 2012, the trial court signed a Status Hearing Order,
adopting and approving the statutorily required family service plan for appellant to
regain custody of the children. See Tex. Fam. Code §§ 263.101–.106. The court’s
order expressly advised appellant that her progress under the service plan would be
reviewed at all subsequent hearings. The order also included the following express
admonition:

        THIS COURT ADVISES THAT THE FAMILY SERVICE PLANS,
        APPROVED AND INCORPORATED BY THIS ORDER AS SET
        FORTH ABOVE, SPECIFICALLY ESTABLISH THE ACTIONS
        NECESSARY FOR THE PARENTS TO OBTAIN RETURN OF
        THE CHILDREN WHO ARE IN THE TEMPORARY MANAGING
        CONSERVATORSHIP OF THE DEPARTMENT, AND THIS
        COURT FURTHER ADVISES THE PARENTS THAT FAILURE
        TO COMPLY MAY RESULT IN THE RESTRICTION OR
        TERMINATION OF HIS OR HER PARENTAL RIGHTS.
The court also signed a separate order that the parents were required to “[r]emain
drug free,” “[r]efrain from engaging in criminal activity,” maintain stable housing
and stable employment, and “[c]omplete all services” in the court-approved family
service plan.

        After a bench trial almost a year after the proceedings were initiated, the
court found by clear and convincing evidence that termination of appellant’s
parental rights is in the best interest of both children. The court also found clear
and convincing evidence that appellant engaged in the following conduct as
grounds for termination, as set out in its decree of termination signed July 16,
2013:
        1. 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), Texas Family
        Code;

                                         3
      2. 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), Texas Family
      Code;
      3. constructively abandoned the children who have been in the
      permanent or temporary managing conservatorship of the Department
      of Family and Protective Services or an authorized agency for not less
      than six months, and: (1) the department or authorized agency has
      made reasonable efforts to return the children to the mother; (2) the
      mother has not regularly visited or maintained significant contact with
      the children; and (3) the mother has demonstrated an inability to
      provide the children with a safe environment, pursuant to §
      161.001(1)(N), Texas Family Code;
      4. failed to comply with the provisions of a court order that
      specifically established the actions necessary for the mother to obtain
      the return of the children who have 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
      children’s removal from the parent under Chapter 262 for the abuse or
      neglect of the child, pursuant to § 161.001(1)(O), Texas Family Code;
      5. used a controlled substance, as defined by Chapter 481, Health and
      Safety Code, in a manner that endangered the health or safety of the
      children, and: (1) failed to complete a court-ordered substance abuse
      treatment program; or (2) after completion of a court-ordered
      substance abuse treatment program, continued to abuse a controlled
      substance, pursuant to § 161.001(1)(P), Texas Family Code; and
      6. been the cause of the children being born addicted to alcohol or a
      controlled substance, other than a controlled substance legally
      obtained by prescription, as defined by § 261.001(7), Texas Family
      Code pursuant to § 161.001(1)(R), Texas Family Code.
See Tex. Fam. Code § 161.001(1)(D), (E), (N), (O), (P), & (R).

      Appellant filed a timely motion for new trial, which was overruled by
operation of law, and a timely notice of appeal. Appellant raises two issues in this
appeal, challenging the sufficiency of the evidence and the effectiveness of her
counsel’s representation. We first address appellant’s challenge to the sufficiency


                                         4
of the evidence supporting termination of her parental rights.

         II. LEGAL AND FACTUAL SUFFICIENCY CHALLENGE

      Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Due to the severity and permanency of the termination of parental rights, the
burden of proof at trial is heightened to the clear and convincing standard. See Tex.
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “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 § 101.007; accord In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).

      When determining legal sufficiency, we review “all the evidence in the light
most favorable to the court’s finding to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.” In re
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s
conclusions, we must assume that the factfinder resolved disputed facts in favor of
its finding if a reasonable factfinder could do so. Id. We disregard all evidence that
a reasonable factfinder could have disbelieved or found to have been incredible. Id.
However, this does not mean that we must disregard all evidence that does not
support the finding. Id. Because of the heightened standard, we must also be
mindful of any undisputed evidence contrary to the finding and consider that
evidence in our analysis. Id.

      When reviewing a factual sufficiency challenge under the clear and

                                          5
convincing burden, the analysis is somewhat different in that we must consider all
of the evidence equally, both disputed and undisputed. Id. We must consider
whether the evidence is sufficient to produce in the mind of the factfinder a firm
belief or conviction as to the truth of the allegation sought to be established. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002). We consider whether disputed evidence is
such that a reasonable factfinder could not have resolved that disputed evidence in
favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire record,
the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction, then the evidence is factually insufficient.” Id.

      In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, the petitioner must establish, by clear
and convincing evidence, one or more acts or omissions enumerated under
subsection (1) of section 161.001 and that termination is in the best interest of the
child under subsection (2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). We need only determine if the evidence is legally and factually
sufficient to support a single ground for termination and the trial court’s finding
that the termination is in the best interest of the children. See Tex. Fam. Code §
161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re A.L., 389 S.W.3d 896,
900 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      Thus, we need not address all of the grounds for termination alleged in the
Department’s petition and found by the trial court. While the Department was
required to establish only a single ground listed in subsection (1) of section
161.001, we will address both endangerment and failure to comply with the court-
ordered family service plan.




                                           6
A. ENDANGERING CONDUCT

      Subsection (E) of section 161.001 permits termination of parental rights
when the parent has either personally engaged in conduct that endangers the child
or knowingly placed the child with another person who engaged in dangerous
conduct. Tex. Fam. Code § 161.001(1)(E). As used in this statute, “endanger”
means to “expose to loss or injury; to jeopardize.” In re M.C., 917 S.W.2d 268,
269 (Tex. 1996) (per curiam) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987)). Although “‘endanger’ means more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
environment, it is not necessary that the conduct be directed at the child or that the
child actually suffers injury.” Id. (quoting Boyd, 727 S.W.2d at 533). Rather, it is
sufficient if the parent’s conduct endangers the emotional well-being of the child.
In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). In considering endangerment, courts may look to parental conduct both
before and after the child’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort
Worth 2001, no pet.).

      The Department is required to prove that the parent engaged in a “voluntary,
deliberate, and conscious course of conduct” that endangers the child. See Ruiz v.
Tex. Dep’t of Family and Protective Servs., 212 S.W.3d 804, 815 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Conduct that subjects a child to a life of
uncertainty and instability also endangers the physical and emotional well-being of
a child. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.
denied). In considering whether a relevant course of conduct has been established,
a court properly may consider evidence establishing that a parent continued to
engage in endangering conduct after the child’s removal by the Department or after
the child no longer was in the parent’s care. Id.


                                          7
       Endangerment under subsection (E) may include evidence of drug use and
its effect on a parent’s life and ability to perform the duties of a parent. See In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“It necessarily follows that the
endangering conduct may include . . . evidence of drug usage.”); see also In re
U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

       The Department’s caseworker testified at trial. Both the mother and the
younger child, D.D.R., Jr., tested positive for cocaine when he was born
prematurely. At that time, appellant admitted to using cocaine and marijuana two
to three times per month. Appellant claimed she had been unaware she was
pregnant until she went into labor. Appellant continued to test positive for
marijuana and cocaine during the pendency of the case. Despite testimony that
appellant was eight months pregnant at the time of trial, appellant had tested
positive for cocaine three months earlier. The results from appellant’s drug tests
were admitted into evidence. 2

       Appellant argues that even though the younger child testified positive for
drugs at birth, there is no evidence to show appellant engaged in voluntary,
deliberate or conscious conduct. Appellant testified that the last time she used
drugs was when the younger child was born. Appellant acknowledged that the hair
follicle tests were positive for cocaine, but she contended that these positive tests
were due to “residue” from prior use. The April 2013 positive test showed the level
of cocaine had increased since the January 2013 test, however.3

       The caseworker testified that the mother obtained no prenatal care during her
pregnancy with the younger child and that, during the pendency of this case, the
2
 The reports reflect that on July 23, 2012, appellant tested positive for cocaine and marijuana,
and on January 17, 2013, and April 18, 2013, she tested positive for cocaine.
3
 The cocaine measured 1040 pg/mg [picograms per milligram] on April 18, 2013, when it had
been 969 pg/mg on January 17, 2013.


                                               8
police were called when the mother and father got into a fight at their home.
Domestic violence may be considered as evidence of endangerment. In re J.I.T.P.,
99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

      The Department provided evidence of the mother’s two convictions for
possession and delivery of cocaine in 2007 and 2010, respectively, and a
conviction for prostitution in 2006. Even though the mother’s offenses occurred
before the children were born, they may still be considered as part of a voluntary,
deliberate, and conscious course of conduct that had the effect of endangering the
children. See In re R.W., 129 S.W.3d at 738; see also In re C.A.B., 289 S.W.3d at
885 (holding prior convictions for possession of illegal drugs and a positive drug
test established clear and convincing proof of a voluntary, deliberate, and
conscious course of conduct that endangered the child’s well-being). Evidence of
improved conduct, especially of short duration, does not conclusively negate the
probative value of a long history of drug use and irresponsible choices. In re
J.O.A., 283 S.W.3d at 346. In addition, conduct that subjects a child to the
probability that the child will be left alone because a parent is jailed endangers
both the physical and emotional well-being of the child. See In re S.D., 980 S.W.2d
758, 763 (Tex. App.—San Antonio 1998, pet. denied).

      The caseworker testified that appellant’s positive drug tests and criminal
history demonstrate that appellant has endangered the physical and emotional
development of the children and termination is in their best interest. A
representative of Child Advocates, Inc., also recommended termination based upon
the parents’ lack of stability and their continued positive drug tests.

      In an attempt to explain her drug use, appellant contends that she did not
know she was pregnant until she went into labor before D.D.R., Jr.’s birth.
Appellant also asserts that the older child was with the maternal grandmother


                                           9
during that time. There is evidence in the record that the older child had been
living in the maternal grandmother’s home until she was removed from the
grandmother’s care. Appellant had provided her mother’s name as a relative to be
considered for placement, in accordance with the requirements of her service plan.
The Department caseworker testified that appellant’s mother had an “extensive
CPS history” and she was ruled out as a placement option. The parents agreed on a
voluntary placement of the older child with a paternal aunt, but they soon removed
the child and took her back to the maternal grandmother’s home. The Department
alleged that the child was placed at risk for abuse and neglect when the parents
violated the safety plan. Appellant denied that her mother had a history with the
Department.

      After reviewing all of the evidence in the light most favorable to the trial
court’s finding that appellant engaged in a continuing course of conduct that
endangered the well-being of the children, we conclude that a reasonable trier of
fact could have formed a firm belief or conviction that its finding is true. See In re
J.F.C., 96 S.W.3d at 266. The factfinder is the sole arbiter of the witnesses’
credibility and the weight to give their testimony. Jordan v. Dossey, 325 S.W.3d
700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing City of Keller
v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)). We conclude that the disputed
evidence, such as appellant’s denial of drug use despite positive drug tests, is not
so significant that a reasonable factfinder could not have resolved the disputed
evidence to form a firm belief or conviction in favor of the finding of endangering
conduct. See In re C.J.S., 383 S.W.3d at 690; In re C.A.B., 289 S.W.3d at 885.

      After applying the appropriate standards of review, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that
appellant engaged in conduct under subsection (E) that endangered the physical


                                         10
and emotional well-being of her children. See Tex. Fam. Code § 161.001(1)(E); In
re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 26.

B. FAILURE TO COMPLY WITH SERVICE PLAN

      To terminate parental rights based on Section 161.001(1)(O), a trial court
must find by clear and convincing evidence that the parent:

      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 § 161.001(1)(O).

      Appellant’s court-ordered family service plan required her to: acquire and
maintain appropriate housing; participate and complete parenting classes; attend all
court hearings and meetings with the agency; complete a psychological evaluation
and/or psycho-social assessment and follow all recommendations; maintain stable,
legal employment and provide proof in the form of a paycheck stub to the
caseworker monthly; submit to random urinalysis drug testing which must be
negative at all times; refrain from engaging in any criminal activities; comply with
the Department and attend all court hearings, visitations, and appointments with
the caseworker; cooperate with the Department by providing information on the
father and his relatives; complete an alcohol/substance abuse assessment and
follow all of the assessment’s recommendations; attend NA/AA [Narcotics
Anonymous/Alcoholics Anonymous] meetings at least two days per week and
provide the name of the group and obtain signatures from verified sponsors;
provide child support while her children are in the Department’s care; complete 90
days inpatient drug treatment; and maintain contact with her children during one



                                        11
hour visits two times a month at the CPS office.

      There is no dispute that, at the time of trial, the children had been in the
temporary managing conservatorship of the Department for more than nine months
as a result of their removal, as required in subsection 161.001(1)(O). See In re
C.M.C., 273 S.W.3d 862, 874 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
The record also demonstrates that the children were removed due to abuse or
neglect. See In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013) (considering the
Department’s affidavit and trial court’s findings in support of removal of children).
In support of her contention that the evidence is insufficient to support a finding
under subsection (O), appellant cites In re S.A.P., 169 S.W.3d 685, 705-06 (Tex.
App.—Waco 2005, no pet.), to argue that the Department failed to prove the
children were removed due to abuse or neglect. This reliance is misplaced.

      In considering the termination of parental rights based on a failure by the
parent to comply with provisions of a court order necessary for the return of a child
pursuant to subsection 161.001(1)(O), the Texas Supreme Court has construed the
words “abuse” and “neglect” broadly to include the risks or threats of the
environment in which the child is placed. In re E.C.R., 402 S.W.3d at 248. The
court determined the trial court must find that the child has been removed as a
result of actual or threatened abuse or neglect, which includes consideration of the
child’s environment and the harm suffered or the danger faced by other children
under mother’s care. Id. at 245–49. The court abrogated In re S.A.P., cited by
appellant, and the line of cases holding that parental rights could not be terminated
under subsection (O) where a child was removed due only to the risk of abuse
based on the parents’ prior history. The supreme court held that the affidavit and
subsequent finding by the trial court authorizing the child’s removal were
sufficient evidence to establish, as a matter of law, that the child had been removed


                                         12
for abuse or neglect. Id. at 249. The court found the evidence in the affidavit and
the trial court’s findings authorizing removal sufficient to support the finding that
the child had been removed for abuse of neglect, even where the allegations in the
affidavit involved the abuse of a sibling. Id. at 248.

      The case worker’s affidavit filed with the Department’s petition in this case
stated appellant tested positive for cocaine and marijuana at D.D.R., Jr.’s birth and
the baby had cocaine in his urine. According to the affidavit, the Department
received a previous referral alleging neglectful supervision of the older child in
2011. According to the referral, both parents were using crack cocaine, and they
left the child in the care of a 13-year-old cousin for three days. The child was dirty
and had severe diaper rash. After appellant tested negative for drugs, the case
ultimately was not pursued. The later allegations of neglectful supervision refer to
the parents’ placement of the older child with the maternal grandmother, who was
rejected for placement by the Department because of her history with CPS. We
conclude that the affidavit, together with the trial court’s findings in its temporary
order removing the children from appellant’s care, are sufficient to support a
finding of abuse or neglect as to both children based on the risk posed by their
environment. See In re E.C.R., 402 S.W.3d at 248–49.

      Having determined that the Department’s affidavit, followed by the trial
court’s order for removal, are sufficient evidence of that the children were removed
as a result of actual or threatened abuse or neglect, we now review the evidence
produced at trial to demonstrate that appellant has not complied with several
components of her service plan. The Department’s caseworker testified that the
mother had only recently begun to comply with her service plan and she had not
completed the court-ordered services. Although the mother completed her required
parenting class and underwent a psychological assessment, she did not follow the


                                           13
recommendations in the assessment, including that she complete her inpatient
therapy through the court-ordered substance abuse program. Appellant checked
herself out of the hospital against medical advice after fewer than thirty days. The
Department’s caseworker acknowledged that the mother is making progress with
her out-patient therapy, but she “still has a ways to go.” Appellant’s drug tests were
negative for the three months immediately preceding trial.

      A social worker from the facility where appellant had treatment for her drug
problem also testified. He acknowledged that appellant had left inpatient treatment
after only twenty-three days, against medical advice, in October 2012. The social
worker also testified that appellant began outpatient treatment three months before
trial. She attended the “vast majority” of the out-patient classes and appears to
have made progress.

      The Department’s caseworker testified appellant failed to provide any
information to the Department about her employment. Both parents were on social
security disability, but appellant worked at times. The caseworker testified that
each parent receives $710 per month in disability payments, but neither parent pays
child support. Although appellant does not provide financial support for the
children, she helps supply diapers, clothing, and milk for the children.

      Appellant failed to comply with the service plan’s requirement to maintain
regular visits with the children. In January of 2013, the parents’ visits to the
children were stopped for three months because they were verbally abusive to the
caseworker and foster parents. The parents repeatedly expressed hostility to the
caseworker. The case worker testified the older child was upset by these visits.

      Appellant testified at trial and conceded that she did not complete the family
service plan ordered by the court. She acknowledged that she did not complete her
inpatient therapy. Appellant was pregnant again at the time of trial. She claimed

                                         14
that the failure to complete the plan’s requirements was due to complications from
this subsequent pregnancy. Appellant testified that she has been undergoing
weekly testing due to her pregnancy, and the time required to travel for testing and
treatment has interfered with completion of her services. The statute’s requirement
for compliance with the court-ordered service plan does not make a provision for
excuses, however. See In re C.M.C., 273 S.W.3d at 875. In addition, the
Department’s caseworker testified appellant had not informed the Department of
any complications from the latest pregnancy.

      Appellant argues that she substantially complied with the service plan. Texas
courts, including this court, have held that substantial compliance is not enough to
avoid a termination finding under section 161.001(O). See In re T.T., 228 S.W.3d
312, 319 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (noting Texas courts
have uniformly found substantial compliance with the provisions of a court order
are inadequate to avoid termination finding under subsection (O)).

      After reviewing the evidence under the appropriate standards, we conclude
the evidence is legally and factually sufficient to support a finding that appellant
failed to comply with the provisions of the court order establishing the actions
necessary for her to obtain the return of the children, as set out in subsection
161.001(1)(O).

C. BEST INTEREST

      There is a strong presumption that the best interest of a child is served by
keeping the child with his or her natural parent, and the burden is on the
Department to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). The same evidence of acts or omissions
used to establish grounds for termination under section 161.001(1) may be
probative in determining the best interest of the child. Id. In reviewing the

                                        15
sufficiency of the evidence to support the second prong, a court examines several
factors, including (1) the desires of the child, (2) the present and future physical
and emotional needs of the child, (3) the present and future emotional and physical
danger to the child, (4) the parental abilities of the persons seeking custody, (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child, (6) the plans for the child by the individuals or agency seeking
custody, (7) the stability of the home or proposed placement, (8) acts or omissions
of the parent which may indicate the existing parent-child relationship is not
appropriate, and (9) any excuse for the parent’s acts or omissions. Holley v. Adams,
544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive, and evidence is not
required on all nine factors to support a finding terminating a parent’s rights. Id.; In
re D.R.A., 374 S.W.3d at 533. With these considerations in mind, we review the
evidence below.

      The children were very young at the time of trial; they were two and a half
years old and one year old. Thus, there was no evidence of the desires of the
children. Testimony revealed that the older child lived with her grandmother at
times and with her great aunt at other times before she was placed in foster care.
There was no evidence that the older child lived with appellant before this
proceeding was initiated. The younger child was removed from his parents’ care at
birth. There was almost no evidence of any attachment with the children, other
than testimony that the children seemed glad to see the parents when they visited.

      The record contains evidence that appellant is not able to provide for the
present and future physical and emotional needs of her children and she continues
to pose a present and future emotional and physical danger to the children due to
her instability and drug use. The evidence of endangering conduct recited above is
probative in determining the best interest of the children. See In re D.R.A., 374


                                          16
S.W.3d at 533. In reviewing a parent’s ability to satisfy her children’s present and
future emotional and physical needs, we note that the need for permanence is a
paramount consideration. Id. at 532–33. There is no evidence that appellant can
provide a stable home or has stable employment. Appellant has at least three
convictions for drugs and prostitution and has spent time in jail. Appellant has not
completed her court-ordered service plan for reunification with her children.
Appellant did not always cooperate with the Department, and her visitation was
temporarily suspended because of her disruptive and argumentative attitude, which
upset the older child.

        The caseworker testified that the children are doing very well in their current
placement and have adapted to that environment. The caseworker stated that the
children did not have any special needs and their placement was meeting all of
their physical and emotional needs. The ad litem agreed. The ad litem had
evaluated the foster parent’s home and was of the opinion that the foster parents
are “capable of providing a stable, loving and suitable home for these kids going
forward.” The children are placed together, and the foster parents plan to adopt
them.

        In sum, considering the relevant factors under the appropriate standards of
review, we hold that the evidence that was presented at trial and is summarized
above is legally and factually sufficient to reasonably establish a firm belief or
conviction that termination of appellant’s parental rights is in the children’s best
interest. See Tex. Fam. Code § 106.001(2); Holley, 544 S.W.2d at 371–72; see also
In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A
parent’s drug use, inability to provide a stable home, and failure to comply with his
family service plan support a finding that termination is in the best interest of the
child.”).


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       Having found that the evidence is legally and factually sufficient to support
a finding of at least one subsection of section 161.001(1) and that termination is in
the best interest of the children pursuant to section 161.001(2), we overrule
appellant’s first issue.

                           III. INEFFECTIVE ASSISTANCE

       The statutory right to counsel for indigent persons in parental-rights
termination cases in Texas embodies the right to effective counsel. In re M.S., 115
S.W.3d 534, 544 (Tex. 2003). We apply the well-established Strickland test in
parental-rights termination proceedings. Id. at 545 (citing Strickland v. Washington
466 U.S. 668, 104 S.Ct. 205 (1984)). Under Strickland, to establish an ineffective
assistance claim, an appellant must show the following:

       First, the [appellant] must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious
       that counsel was not functioning as the “counsel” guaranteed the
       defendant by the Sixth Amendment. Second, the [appellant] must
       show that the deficient performance prejudiced the defense. This
       requires showing that counsel’s errors were so serious as to deprive
       the [appellant] of a fair trial, a trial whose result is reliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In other words, a parent must show
that counsel’s performance was deficient and that this deficient performance
prejudiced the parent’s case. In re M.S., 115 S.W.3d at 545.

       To determine whether representation was deficient, we must consider all
circumstances surrounding the case and determine whether counsel was
“reasonably effective.” Id. In doing so, we afford great deference to counsel’s
performance, indulging “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. Only if counsel’s
conduct is “so outrageous that no competent attorney would have engaged in it”
will we find such performance deficient. Id.

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       In conducting the harm analysis under the second prong of Strickland,
reviewing courts must determine whether there is a reasonable probability that, but
for the deficient performance, the result of the proceeding would have been
different. Id. at 550. In this context, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S.Ct. at 2068. Thus, the parent must also show that “counsel’s deficient
performance prejudiced the defense.” In re J.O.A., 283 S.W.3d at 344 (quoting
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).

       Appellant alleges that her appointed trial counsel was ineffective because
she failed to object properly to leading questions posed to the Department’s
witnesses, file answers and/or counter-petitions, and properly and/or adequately
prepare appellant for trial. Appellant also complains that counsel failed to engage
in discovery, which she claims would have helped her prepare her case. Appellant
has not cited any authority that these alleged deficiencies amount to ineffective
assistance of counsel.4

       Moreover, appellant makes only general allegations. Appellant did not
identify the questions that she claims required objections. Appellant has not
alleged what claim or claims should have been asserted in a counter-petition.
Contrary to appellant’s allegation, the record reflects that appellant’s appointed
counsel filed an answer on appellant’s behalf. Appellant also has not explained
what type of information she would have sought to obtain through discovery. The
record reflects that appellant’s counsel appeared at the regular status hearings and

4
  In support of her ineffective assistance claim, appellant cited Valencia v. Texas Department of
Family & Protective Services, No. 01-08-00345-CV, 2010 WL 1240988 (Tex. App.—Houston
[1st Dist.] Mar. 25, 2010), withdrawn and superseded by In re V.V., 349 S.W.3d 548 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). In In re V.V., the court of appeals rejected an
ineffective assistance claim, finding that the father made no attempt to demonstrate that
counsel’s inadequacy caused the trial court to make the wrong decision. Id. at 559–61.


                                               19
had access to the information available to the Department.

      Our review of the record reflects that appellant’s counsel made numerous
objections and actively participated at trial. She cross-examined the Department’s
caseworker, who conceded that appellant had completed some of her required
services, including completing her parenting class. On cross-examination, the
caseworker acknowledged that appellant was doing very well in her out-patient
treatment and was making progress addressing her substance abuse issues. The
caseworker conceded that appellant’s criminal convictions occurred before the
children were born. Appellant’s counsel also cross-examined the ad litem, who
conceded that the children were happy to see the parents during their visits.
Appellant’s counsel also elicited testimony from appellant that attempted to
explain the positive drug tests. Counsel filed a timely motion for new trial and a
timely notice of appeal.

      An allegation of ineffective assistance in a termination proceeding must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness and the resulting harm. Walker v. Texas Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 622–23 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). Ineffective assistance of counsel was not raised in appellant’s motion
for new trial, and she failed to produce any evidence to support her claim. We may
not speculate to find trial counsel ineffective when the record is silent regarding
counsel’s reasons for her actions. Id. at 623. Appellant’s allegations do not rise to
the level of “outrageous” conduct. Moreover, the record simply does not
affirmatively show a reasonable probability that, but for the conduct of appellant’s
counsel, “the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S.Ct. at 2068. We overrule appellant’s second issue.




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                               IV. CONCLUSION

      Having overruled appellant’s issues, we order the judgment of the trial court
affirmed.




                                      /s/    Martha Hill Jamison
                                             Justice




Panel consists of Chief Justice Frost and Justices Boyce and Jamison.




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