AFFIRMED; Opinion Filed August 27, 2015.




                                                                      In The
                                              Court of Appeals
                                       Fifth District of Texas at Dallas
                                                           No. 05-15-00493-CV

                            IN THE INTEREST OF J.R.W. AND J.L.W, CHILDREN

                                   On Appeal from the 330th Judicial District Court
                                                Dallas County, Texas
                                         Trial Court Cause No. 13-09740-Y

                                             MEMORANDUM OPINION
                                          Before Justices Fillmore, Myers, and Evans
                                                  Opinion by Justice Myers
             R.L.W., Father, appeals the trial court’s judgment terminating the parent-child

relationship between him and his children, J.R.W. and J.L.W.1 Father brings six issues on appeal

contending (a) the evidence is legally and factually insufficient to support termination of the

parent-child relationship under section 161.001(1)(O) of the Texas Family Code and that

termination of the parent-child relationship is in the best interest of the children;2 (b) he received

ineffective assistance of counsel; and (c) the evidence is legally and factually insufficient to




     1
         The trial court also terminated the parent-child relationship between Mother and the children, but Mother is not a party to this appeal.
      2
        See TEX. FAM. CODE ANN. § 161.001(1)(O), (2) (West 2014). Effective April 2, 2015, the Texas Legislature amended section 161.001.
See Act of Mar. 26, 2015, 84th Leg., R.S., ch. 1, § 1.078, 2015 Tex. Sess. Law Serv. 1, 18. The amendment added a definition for “born addicted
to alcohol or a controlled substance” and numbered it paragraph (a). The provisions containing the requirements for terminating the parent-child
relationship were placed in paragraph (b). Thus, what was previously section 161.001(1) and (2) is now section 161.001(b)(1) and (2). We will
refer to the prior numbering system, which was in effect at the time of the mediated settlement agreement and the trial court’s judgment.
support the appointment of CPS as the managing conservator. We affirm the trial court’s

judgment.

                                         BACKGROUND

       The Dallas County Child Protective Services Unit of the Texas Department of Family

and Protective Services (“the Department”) took possession of the children after an incident

where Mother was drunk on a transit system train and her five-year-old child was wandering the

train asking for help. See TEX. FAM. CODE ANN. § 262.104 (West 2014) (Department may take

possession of child without court order if there is immediate danger to child’s physical health or

safety). The trial court appointed the Department as temporary managing conservator of the

children and entered an order detailing the services Father and Mother needed to complete to

obtain the return of the children. As of the date of the trial, Father and Mother had not

completed those services. At the trial, the Department presented evidence that Father and

Mother had signed a mediated settlement agreement in which they agreed to have their rights

terminated under section 161.001(1)(O). Under the agreement, the Department would be the

permanent managing conservator of the children and would facilitate their adoption by W.H., a

relative. The agreement also provided that Father and Mother could have supervised visitation

with the children as arranged and agreed to by W.H. The agreement also stated that all parties,

which included Father and Mother, agreed that the agreement was in the best interest of the

children. Father testified at the trial that he agreed to all the provisions of the agreement, that he

understood everything he was consenting to in the agreement, that he was represented by counsel

during the mediation session, that he had the opportunity to ask questions and request

clarifications, and that he believed the agreement was in the best interest of the children. The

trial court entered judgment in accordance with the agreement.




                                                 –2–
                  TERMINATION OF PARENT-CHILD RELATIONSHIP

       Section 161.001 of the Texas Family Code authorizes a court to order termination of the

parent-child relationship if two elements are established by clear and convincing evidence. See

TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014). First, the court must find the parent

engaged in one of the acts or omissions itemized in subsection (1). Second, the court must find

that termination of the parent-child relationship is in the best interest of the child. Id. Clear and

convincing evidence is “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.” Id.

§ 101.007 (West 2014).

                                   STANDARD OF REVIEW

       In reviewing the legal sufficiency of the evidence in a parental termination case,

       a court should look at all the evidence in the light most favorable to the finding to
       determine whether a reasonable trier of fact could have formed a firm belief or
       conviction that its finding was true. To give appropriate deference to the
       factfinder’s conclusions and the role of a court conducting a legal sufficiency
       review, looking at the evidence in the light most favorable to the judgment means
       that a reviewing court must assume that the factfinder resolved disputed facts in
       favor of its finding if a reasonable factfinder could do so. A corollary to this
       requirement is that a court should disregard all evidence that a reasonable
       factfinder could have disbelieved or found to have been incredible. This does not
       mean that a court must disregard all evidence that does not support the finding.
       Disregarding undisputed facts that do not support the finding could skew the
       analysis of whether there is clear and convincing evidence.

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing the factual sufficiency of the

evidence, we “give due consideration to evidence the factfinder could reasonably have found to

be clear and convincing.” Id. “[T]he inquiry must be ‘whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the truth of the State’s

allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “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

                                                –3–
conviction, then the evidence is factually insufficient.” In re J.O.A., 283 S.W.3d 336, 345

(quoting In re J.F.C., 96 S.W.3d at 267).

                      STATUTORY GROUND FOR TERMINATION

       One of the statutory grounds for termination is:

       that the 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(1)(O). In his first and second issues, Father contends the

evidence is legally and factually insufficient to support termination under paragraph (O) because,

he contends, there is no evidence the children were removed from him.

       Father asserts the children were removed from Mother and not from him. At trial, a

caseworker for the Department testified that the Department removed the children but did not

specify whether the children were removed from Father, Mother, or both. Father also cites to the

affidavit attached to the Department’s motion for conservatorship and termination. The affidavit

was not evidence before the court. However, even if it were considered, the only relevant

statement in the affidavit concerning this issue is the statement that when the children were

removed from her care, Father was not in the home because Mother had prohibited Father from

being in the home due to his physical abuse toward her. When the Department took possession

of the children under section 262.104 and became their temporary managing conservator, the

Department necessarily “removed” them from both parents, not just Mother. The fact that Father

was not residing in the residence with the children at the time does not mean the children were

not removed from his care and his right of custody. Furthermore, Father agreed to termination of

his rights under paragraph (O).



                                               –4–
       We conclude the evidence is legally and factually sufficient to support termination of

Father’s rights under paragraph (O). We overrule Father’s first and second issues.

                                       BEST INTEREST

       In his third and fourth issues, Father contends the evidence is legally and factually

insufficient to support the trial court’s finding that termination of the parent-child relationship

between Father and the children is in the best interest of the children. Before the court may

terminate the parent-child relationship, the court must find by clear and convincing evidence that

termination is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(2). In making

this determination, the court considers the factors listed in Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976). See In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012). Those factors are,

       (1) the child’s desires;

       (2) the child’s emotional and physical needs now and in the future;

       (3) any 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 the individuals seeking custody to promote 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) the parent’s acts or omissions which may indicate that the existing
       parent-child relationship is improper; and

       (9) any excuse for the parent’s acts or omissions.

Holley, 544 S.W.2d at 371–72; see E.N.C., 384 S.W.3d at 807. The Department does not have to

present evidence of all the factors to prove termination is in the child’s best interest. See C.H.,

89 S.W.3d at 27.

       In this case, the mediated settlement agreement set out the Department’s plans for the

children—facilitating their adoption by W.H. The caseworker testified that the Department did a

                                                –5–
“home study” on W.H. and then placed the children with her. The trial court could infer from

this evidence that W.H.’s home was stable and that her parenting skills were adequate. The court

could infer that Father’s parenting abilities were lacking from his agreeing that termination was

in the children’s best interest. Father’s agreement and his testimony that termination under the

terms of the mediated settlement agreement was in the children’s best interest was an act clearly

indicating that the existing parent-child relationship was improper. We conclude the evidence

was legally and factually sufficient for the trial court to find by clear and convincing evidence

that termination of the parental relationship between Father and the children was in the children’s

best interest.

        We overrule Father’s third and fourth issues.

                        INEFFECTIVE ASSISTANCE OF COUNSEL

        In his fifth issue, Father contends he did not have effective assistance of counsel in the

trial court. In a suit filed by a governmental entity requesting termination of the parent-child

relationship or the appointment of a conservator, an indigent person has a statutory right to

counsel.    In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM. CODE ANN. §

107.013(a)(1) (West 2014). The supreme court has held that this statutory right necessarily

includes the right to effective assistance of counsel. In re M.S., 115 S.W.3d at 544.

        The appropriate standard for determining whether counsel is effective is the Strickland

standard applied in criminal cases. Id. at 544–45. First, the appellant must show that counsel’s

performance was deficient.     Id. at 545.   We must take into account all the circumstances

surrounding the case and must focus primarily on whether counsel performed in a reasonably

effective manner. Id. Counsel’s performance falls below acceptable levels of performance when

the representation is so grossly deficient as to render proceedings fundamentally unfair. Id. We

must give great deference to counsel’s performance, indulging a strong presumption that


                                               –6–
counsel’s conduct falls within the wide range of reasonable assistance. Id. In addition to

showing counsel’s performance was deficient, the appellant must show that the deficient

performance prejudiced the defense. Id. In other words, the appellant must show there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. at 550; In re L.C.W., 411 S.W.3d 116, 129 (Tex. App.—El Paso

2013, no pet.).

       Father asserts his counsel was ineffective during the mediation because she failed to

advise him that termination under section 161.001(1)(O) required the Department to prove the

children were removed from him and she failed to advise him that the children had not been

removed from him. The record contains no evidence of what advice Father’s counsel gave him

during the mediation session. However, regardless of what she advised him, Father’s argument

that the children were not removed from him is incorrect—when the Department took possession

of the children and became their temporary managing conservator, it removed the children from

both Father and Mother. Father has not shown that any advice given by his counsel during

mediation was erroneous.

       Father also asserts his trial counsel was ineffective because she did not comply with the

trial court’s pretrial order requiring the parties to submit exhibit lists, witness lists, and copies of

all exhibits by a particular date. The trial court ordered that Father could not present any

witnesses other than his own testimony and that he could not present any exhibits. Father asserts

that after this ruling, the court ordered the parties to mediate, and Father then agreed in the

mediation session to the settlement agreement terminating the parent-child relationship.

       Even if counsel was ineffective for failing to comply timely with the pretrial order, we

cannot reverse the judgment unless Father has shown that failure prejudiced him, that is, whether

but for counsel’s errors, the result of the proceeding would have been different. In this case, the

                                                  –7–
result of the proceeding was that Father’s parental rights were terminated. In an affidavit

attached to his motion for new trial, Father states he loves the children, that he was lied to during

the mediation, that he agreed to termination because he felt pressured, and that the trial court

should have let him have a trial. The trial court did not hold a hearing on the motion for new

trial, and the motion was overruled by operation of law. See TEX. R. CIV. P. 329b(c). An

affidavit in support of a motion for new trial is not evidence. See Hagood v. Fishborn, Inc., No.

05-07-00690-CV, 2009 WL 264627, at *2 (Tex. App.—Dallas Feb. 5, 2009, pet. denied) (mem.

op.); Downing v. Uniroyal, Inc., 451 S.W.2d 279, 284 (Tex. Civ. App.—Dallas 1970, no writ);

see also Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004, pet. ref’d) (“An

affidavit attached to the motion [for new trial], however, is merely ‘a pleading that authorizes the

introduction of supporting evidence’ and is not evidence itself.” (quoting Stephenson v. State,

494 S.W.2d 900, 909–10 (Tex. Crim. App. 1973)). To constitute evidence, the affidavit must be

introduced as evidence at the hearing on the motion. Jackson, 139 S.W.3d at 20. Because there

was no hearing on the motion for new trial, the affidavit never became evidence. However, even

if we considered the affidavit, it does not show that but for counsel’s errors, the outcome of the

trial would have been different, that is, that the parent-child relationship would not have been

terminated. Father presented no evidence of what witnesses he would have called, what their

testimony would have been, or what exhibits he would have introduced. We conclude Father has

failed to show that but for his counsel’s errors, the result of the proceeding would have been

different.

        We overrule Father’s fifth issue.

      APPOINTMENT OF THE DEPARTMENT AS MANAGING CONSERVATOR

        In his sixth issue, Father contends the evidence is legally and factually insufficient to

support the appointment of the Department as the managing conservator of the children. This


                                                –8–
issue is dependent upon our reversing the trial court’s order terminating the parent-child

relationship between Father and the children. Because we do not reverse that order, we do not

address this issue.

                                       CONCLUSION

       We affirm the trial court’s judgment.




                                                     /Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE

150493F.P05




                                               –9–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

In the Interest of J.R.W. and J.L.W.,                On Appeal from the 330th Judicial District
Children                                             Court, Dallas County, Texas
                                                     Trial Court Cause No. 13-09740-Y.
No. 05-15-00493-CV                                   Opinion delivered by Justice Myers. Justices
                                                     Fillmore and Evans participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellee Dallas County Child Protective Services Unit of the Texas
Department of Family and Protective Services recover its costs of this appeal from appellant Roy
Lee Weathered, Jr.


Judgment entered this 27th day of August, 2015.




                                              –10–
