Opinion filed July 25, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-13-00029-CV
                                  __________

                  IN THE INTEREST OF M.R., A CHILD

                      On Appeal from the 161st District Court
                               Ector County, Texas
                        Trial Court Cause No. B-2980-PC


                       MEMORAND UM OPI NI ON
       This is an appeal from orders terminating the parental rights of M.R.’s mother
and father. The father’s parental rights were terminated after a de novo hearing in
the district court. The mother’s request for a de novo hearing was denied. Both
parents appeal. We affirm as to the father and reverse and remand as to the mother.
                                      I. Issues
       M.R.’s father presents six issues for review, and M.R.’s mother presents
thirteen. In his first issue, the father challenges the trial court’s denial of his
motion for directed verdict. In the second issue, the father complains that the trial
court erred by not reviewing the record from the earlier hearing before the
associate judge until after the parties had rested. In the third issue, the father
contends that the trial court erred in permitting the Department of Family and
Protective Services to proceed on its first amended petition instead of its second
amended petition. The father contends in his fourth issue that the trial court erred
in naming the Department as the managing conservator. In his fifth issue, the
father contends that the trial court “abused its discretion . . . concerning the legal
and factual sufficiency of evidence regarding involuntary termination of parental
rights.” In his final issue, the father contends that the trial court “erred in not using
the proper legal standards in determining conservatorship.”
          The mother asserts in her first issue that the trial court erred in denying her
request for a de novo hearing. In her second issue, the mother contends that she
was denied effective assistance of counsel. In the third and fourth issues, she
contends that her motion for new trial should have been granted based upon her
claim of ineffective assistance of counsel and upon newly discovered evidence. In
the fifth issue, she complains of the trial court’s failure to enter findings of fact and
conclusions of law. In her sixth, eighth, tenth, and twelfth issues, the mother
challenges the legal sufficiency of the evidence to support the termination of her
rights.     In the remaining issues, she challenges the factual sufficiency of the
evidence.
                                 II. The Father’s Appeal
          In his first issue, the father challenges the denial of his motion for directed
verdict. The record shows that the father moved for a directed verdict after the
Department rested but that he then presented evidence and did not later renew his
motion for a directed verdict. The Department asserts that the father waived this
issue by failing to renew his motion for directed verdict after he presented
additional evidence. The Department’s contention is supported by case law. See
Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex. App.—El Paso 2005, pet.
                                             2
denied) (citing numerous authorities for this proposition); Tex. Animal Heath
Comm’n v. Miller, 850 S.W.2d 254, 255–56 (Tex. App.—Eastland 1993, writ
denied). Therefore, it does not appear that the father preserved this issue.
      Moreover, the father’s argument in this issue is without merit. The father
argues that, at the time the Department rested, the only evidence before the trial
court at the de novo hearing was the testimony of Michelle Wyatt, the
Department’s conservatorship supervisor, and that Wyatt’s testimony was
insufficient to carry the Department’s burden of proof.          The record shows,
however, that Wyatt’s testimony was not the only evidence that had been admitted
at the time the Department rested. Three exhibits had been offered and admitted
into evidence. The first exhibit was a copy of the reporter’s record from the
hearing before the associate judge at which five witnesses testified. The second
and third exhibits were copies of judgments showing that the father had recently
been convicted of evading arrest or detention with a prior conviction and of
aggravated assault with a deadly weapon. Because evidence other than Wyatt’s
testimony had been admitted into evidence, the father’s contention in his first issue
is without merit. We overrule the father’s first issue.
      In his second issue, the father asserts that the trial court erred or abused its
discretion when it waited until after the parties had rested to review the exhibit
containing the reporter’s record from the hearing that was held by the associate
judge. The father also argues that the admission of that exhibit violated his right to
due process because he had not received proper notice of the Department’s intent
to introduce it. The Family Code provides: “In the de novo hearing before the
referring court, the parties may present witnesses on the issues specified in the
request for hearing. The referring court may also consider the record from the
hearing before the associate judge, including the charge to and verdict returned by
a jury.” TEX. FAM. CODE ANN. § 201.015(c) (West Supp. 2012). Not only does the
                                           3
statute permit a referring court in a de novo hearing to review the record from the
earlier hearing held by the associate judge, but the record from the earlier hearing
was admitted into evidence as an exhibit in this case. We are not aware of any
provision that requires a trier of fact to review exhibits before the parties rest or
that prohibits a trier of fact from reviewing exhibits after the parties have rested,
and the father has cited no authority for that proposition. Furthermore, the day
before the de novo hearing, the Department filed a motion requesting the trial court
to consider the record from the hearing held by the associate judge. The father and
his attorney were both present at the earlier hearing; the father had an opportunity
to cross-examine witnesses and to present evidence at that hearing. Thus, the
contents of the exhibit offered no surprise to the father. We hold that the trial court
was authorized by Section 201.015(c) to consider the record from the hearing held
by the associate judge, that the trial court did not abuse its discretion in admitting
the record from that hearing into evidence as an exhibit even though the father’s
attorney had not been provided with a copy prior to the de novo hearing, and that
the trial court did not err in reviewing the exhibit after the parties had rested. The
father’s second issue is overruled.
      In his next issue, the father complains that the trial court erred by allowing
the Department to proceed at the de novo hearing on its first amended petition
instead of its second amended petition. At the de novo hearing when the
Department announced its intent to abandon the second amended petition and
proceed on the first amended petition, the father objected to the lack of notice and
to the violation of procedural rules. Generally, a pleading that has been substituted
by an amended pleading is no longer regarded as a pleading in a case. TEX. R. CIV.
P. 65. However, a trial court “shall” permit a party to amend their pleadings at any
time “unless there is a showing that such filing will operate as a surprise to the
opposite party.” TEX. R. CIV. P. 63. In this case, the father has shown no surprise.
                                          4
The first and second amended petitions were similar; they alleged the same
grounds for termination of the father’s parental rights except that the second
amended petition contained one extra ground that was not in the first amended
petition. Proceeding upon the first amended petition had the effect of abandoning
one of the grounds upon which the father’s parental rights could be terminated. No
new grounds for termination were included in the petition upon which the
Department proceeded. Because the first amended petition did not operate as a
surprise to the father, the trial court did not err in permitting the Department to
proceed upon that petition. The father’s third issue is overruled.
      In his next issue, the father argues that the trial court acted contrary to state
and federal law when it named the Department, rather than the father, as the
managing conservator of M.R. We disagree. The trial court did not act contrary to
law. The findings necessary to appoint a nonparent as sole managing conservator
need only be established by a preponderance of the evidence. In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007).           Consequently, we review a trial court’s
conservatorship decision under a less stringent standard of review than the standard
for termination. Id. A conservatorship determination is subject to review for an
abuse of discretion and may be reversed only if that determination was arbitrary
and unreasonable. Id. The record shows that the Department’s goal for M.R. was
adoption, that his current foster parent wanted to adopt him, that he was very
happy and was thriving in the care of the foster parent, and that neither the mother
nor the father had offered any suitable alternatives for placement. Furthermore,
family reunification was not successful in this case because both parents were
incarcerated and because no suitable relatives were available to care for M.R. The
father’s assertion that it would have been in M.R.’s best interest for the father, who
was incarcerated at the time of removal and remained incarcerated at the time of


                                          5
the de novo hearing, to be named as a managing conservator is not supported by
the record. The father’s fourth issue is overruled.
      In his fifth issue, the father challenges the legal and factual sufficiency of the
evidence. The termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). To
determine if the evidence is legally sufficient in a parental termination case, we
review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if
the evidence is factually sufficient, we give due deference to the finding and
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations against the parent. In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown
by clear and convincing evidence that the parent has committed one of the acts
listed in Section 161.001(1)(A)–(T) and that termination is in the best interest of
the child. FAM. § 161.001.
      The trial court found that the father committed five of the acts listed in
Section 161.001(1).     One of those was a finding made pursuant to Section
161.001(1)(Q) that the father had “knowingly engaged in criminal conduct that has
resulted in the father’s conviction of an offense and confinement or imprisonment
and inability to care for the child for not less than two years from the date [of]
filing the petition.” The father does not dispute this finding in his brief, and it is
supported by the record. Because a finding that a parent committed one of the acts
listed in Section 161.001(1)(A)–(T) is all that is required under that statute, we
need not address the father’s arguments regarding the sufficiency of the evidence
to support the trial court’s other findings under Section 161.001(1). See TEX. R.
APP. P. 47.1.
                                           6
      In this issue, the father also challenges the sufficiency of the evidence in
support of the trial court’s finding that termination of his parental rights is in
M.R.’s best interest. With respect to the best interest of a child, no unique set of
factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland
2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape
their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These
include, but are not limited to, (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
to promote the best interest of the child, (6) the plans for the child by these
individuals or by the agency seeking custody, (7) the stability of the home or
proposed placement, (8) the acts or omissions of the parent that may indicate that
the existing parent-child relationship is not a proper one, and (9) any excuse for the
acts or omissions of the parent. Id. Additionally, evidence that proves one or more
statutory grounds for termination may also constitute evidence illustrating that
termination is in the child’s best interest. C.J.O., 325 S.W.3d at 266.
      The record shows that M.R. was nineteen months old at the time of removal
and that, at the time of the de novo hearing, the father had not seen him for almost
three years. The father was in jail at the time of removal. He had recently been
arrested for stabbing a man in the back five or six times and severely injuring the
man. While this termination case was pending, the father pleaded guilty to the
offense of aggravated assault with a deadly weapon and, pursuant to a plea bargain
agreement, received a sentence of confinement for eight years. The father had
previously assaulted the mother while M.R. was at home, and he had two
convictions for evading arrest or detention and one conviction for assault on a


                                          7
peace officer. The father could not provide M.R. with a stable home and had
offered no suitable relative placement for M.R.
       The record also shows that M.R. had been placed with his current foster
parent, D.W., for twenty-seven months and that D.W. wanted to adopt M.R. In
terms of parenting, Wyatt rated D.W. as a “ten” on a scale of one to ten. D.W.
wants to provide a permanent home for M.R., and M.R. is happy and thriving in
his placement with D.W. Wyatt believed that it would be in M.R.’s best interest to
remain with D.W. in a loving and stable home and for D.W. to be allowed to adopt
M.R.
       Based on the evidence presented at trial, the trial court could reasonably
have formed a firm belief or conviction that termination of the father’s parental
rights would be in the best interest of M.R. We cannot hold that the finding as to
best interest is not supported by clear and convincing evidence. The evidence is
both legally and factually sufficient to support the finding that termination of the
father’s parental rights is in the best interest of M.R. The father’s fifth issue is
overruled.
       In his final issue, the father contends that the trial court erred by failing to
use the proper legal standards in determining the conservatorship of the child. In
his brief, the father states that he wishes to preserve his challenge to D.W.’s
“further conservatorship.” The father again urges that he should have been named
a conservator. The trial court did not apply improper legal standards in determining
M.R.’s conservatorship. Because the father’s parental rights were terminated, the
father appropriately was not named a conservator for M.R. The father’s sixth issue
is overruled.
                              III. The Mother’s Appeal
       The mother presents thirteen issues for review. We will start by addressing
her challenges to the legal sufficiency of the evidence as asserted in her sixth,
                                           8
eighth, tenth, and twelfth issues. In these issues, the mother contends that the
evidence is legally insufficient to support the termination of her rights under
Section 161.001(1)(D), (E), and (O) and to support the best interest finding under
Section 161.001(2).
      To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has          committed     one of     the   acts   listed   in
Section 161.001(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001. The trial court found that the mother committed three of the acts
listed in Section 161.001(1): that she knowingly placed or knowingly allowed the
child to remain in conditions or surroundings that endangered the physical or
emotional well-being of the child, that she engaged in conduct or knowingly placed
the child with persons who engaged in conduct that endangered the physical or
emotional well-being of the child, and that she failed to comply with the provisions
of a court order that specifically established the actions necessary for her to obtain
the return of the child who had been in the conservatorship of the Department for
more than nine months and had been removed due to abuse or neglect. See FAM.
§ 161.001(1)(D), (E), (O).
      The record shows that the mother’s husband, M.R.’s father, committed
violent acts and that he physically abused the mother while M.R. was in their care.
In May 2010, the mother and father got into a fight while M.R. was in their care.
As a result of that fight, the mother’s face was “beaten up a little bit”; her eye was
swollen; and she had “marks on her face, on her throat, stuff like that.” The father
was arrested later, and sometime after the father’s arrest, the mother moved in with
Daniel McAfee. One night in August 2010 while M.R. was in her care, the mother
got intoxicated and engaged in an altercation with Daniel McAfee.            McAfee
testified that, when he came home after drinking and hanging out with some
friends, the mother “went crazy,” screamed and yelled, threw a lamp, and bit
                                          9
McAfee. M.R. was in another room of the apartment at the time the mother
assaulted McAfee. McAfee kicked the mother and M.R. out of his apartment. He
called the police because the mother would not leave; she continued yelling and
screaming and beating on the door. The police came and arrested the mother. The
mother left M.R. with a girl named Blane Decker. The next day, Decker returned
to McAfee’s apartment with M.R. and asked McAfee what to do with M.R.
McAfee called the police and “CPS.” Based on McAfee’s call, the Department
eventually took custody of M.R. The mother provided the Department the name of
one person with whom to place M.R.; however, the Department determined that
that person was not an appropriate placement. M.R. was removed and placed in a
foster home. The mother subsequently suggested another placement that was also
determined by the Department to be inappropriate. The mother remained
incarcerated at the time of the final hearing in this case and participated by
telephone.
       The mother had a 2008 felony conviction for assaulting a peace officer, for
which she was originally placed on community supervision. On October 28, 2010,
her community supervision was revoked. Upon revocation, the mother was
sentenced to confinement for two years in the Institutional Division of the Texas
Department of Criminal Justice. There was also some evidence that the mother
had been imprisoned for possessing a controlled substance with the intent to
distribute it.
       At the time of the final hearing before the associate judge, M.R. was two
years and seven months old and had been in the Department’s care for a year.
M.R. came into the Department’s care soon after the mother was arrested. M.R.
was nineteen months old at the time.
       After M.R.’s removal, the trial court ordered the parents to participate in
various services, including counseling, parenting classes, a psychological or
                                        10
psychiatric evaluation, drug testing, and a drug and alcohol assessment. These
provisions were contained in the trial court’s “Temporary Order Following
Adversarial Hearing.” As stated in that order, compliance with each provision was
necessary for M.R.’s return. The mother completed some of the services while
incarcerated, and she sent cards to M.R. monthly.        The Department’s conser-
vatorship worker in this case, Samantha Sanchez, testified that, although the
mother completed some of the court-ordered services, the mother failed to comply
with the trial court’s order. She did not attend counseling or get a drug and alcohol
assessment. Sanchez acknowledged that the mother may have “tried to do as much
as she could” while she was incarcerated and agreed that some of the services, such
as the drug and alcohol assessment and the psychological evaluation, could not be
completed because of the mother’s incarceration.
      We hold that there was clear and convincing evidence from which the trial
court could reasonably have formed a firm belief that the mother engaged in
conduct or knowingly placed the child with persons who engaged in conduct that
endangered the physical or emotional well-being of the child.            To support
termination under Section 161.001(1)(E), the offending conduct does not need to
be directed at the child, nor does the child actually have to suffer an injury. In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Drug use and domestic violence may
constitute evidence of endangerment. Id.; C.J.O., 325 S.W.3d at 265. Subjecting a
child to a life of uncertainty and instability may also endanger the child’s physical
and emotional well-being. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort
Worth 2004, pet. denied). The evidence is legally sufficient to support the trial
court’s finding under Section 161.001(1)(E).        The mother’s eighth issue is
overruled.
      Furthermore, there was also clear and convincing evidence that the mother
failed to comply with the provisions of a court order that specifically established
                                         11
the actions necessary for her to obtain the return of the child who had been in the
conservatorship of the Department for more than nine months and had been
removed due to abuse or neglect.        Section 161.001(1)(O) does not “make a
provision for excuses” for the parent’s failure to comply with the court-ordered
services. In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)
(quoting In re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied));
see In re D.N., No. 07-12-00508-CV, 2013 WL 1964813, at *11 (Tex. App.—
Amarillo May 9, 2013, no pet. h.). The burden of complying with a court order is
on the parent, even if the parent is incarcerated. In re D.N., 2013 WL 1964813, at
*11. The mother’s failure to comply with the court’s order is not excused by her
incarceration. Consequently, the evidence is legally sufficient to support the trial
court’s finding under Section 161.001(1)(O). The mother’s tenth issue is overruled.
Because the evidence is legally sufficient under subsections (E) and (O), we need
not address the finding made pursuant to subsection (D). See TEX. R. APP. P. 47.1.
      With respect to the best interest of the child, we hold that there was also
clear and convincing evidence that termination of the mother’s parental rights
would be in the best interest of M.R. In reaching this conclusion, we applied the
best-interest standard set out above in our discussion of the father’s fifth issue and
considered the evidence presented at trial in light of the Holley factors. See Holley,
544 S.W.2d at 371–72. The record shows that, at the time of the final hearing
before the associate judge, M.R. had been in the Department’s care for one year
and had been in his current placement with D.W. for ten months—since
October 21, 2010. According to Sanchez, M.R. and D.W., who is a youth minister,
are “very bonded, very attached.” D.W. is the person that M.R. runs to when he is
scared, when he is happy, and when he wants a hug. M.R. calls D.W. “Daddy,”
and M.R.’s favorite book is “Daddy and Me.” Sanchez testified that D.W. is


                                         12
interested in adopting M.R. and that the Department supports the proposed
adoption. M.R. is thriving in D.W.’s care.
      M.R. was removed because of his parents’ incarcerations and their inability
to provide an appropriate placement for M.R. Not only did the mother commit
criminal acts that caused her to be incarcerated and unable to care for M.R., but she
maintained a relationship with M.R.’s father, a violent and abusive man. Sanchez
testified that she did not believe that the mother had demonstrated that she is able
to provide a safe and appropriate home environment for M.R. Sanchez believed
that the termination of both parents’ rights would be in M.R.’s best interest. The
evidence is legally sufficient to support the trial court’s finding that termination of
the mother’s parental rights is in M.R.’s best interest. The mother’s twelfth issue is
overruled.
      We next address the mother’s second issue. In that issue, she asserts that her
trial counsel rendered ineffective assistance of counsel. A parent in a termination
case has the right to “effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex.
2003). To prevail on a claim of ineffective assistance of counsel, a parent must
generally show that trial counsel’s performance was deficient and that the deficient
performance was so serious as to deny the parent a fair and reliable trial. J.O.A.,
283 S.W.3d at 341–42 (following the two-pronged analysis of Strickland v.
Washington, 466 U.S. 668 (1984)). However, when an indigent parent is altogether
denied counsel at a critical stage of the litigation, prejudice is presumed.
Strickland, 466 U.S. at 692; United States v. Cronic, 466 U.S. 648, 659 (1984); see
also Penson v. Ohio, 488 U.S. 75 (1988) (presumption of prejudice extends to the
denial of counsel on appeal); Lockwood v. Tex. Dep’t of Family & Protective Servs.,
No. 03-12-00062-CV, 2012 WL 2383781 (Tex. App.—Austin June 26, 2012, no
pet.) (mem. op.).


                                          13
      At the end of the final hearing held by the associate judge, the associate
judge did not issue a ruling because she had not had time to go through all of the
exhibits. The associate judge announced that she would enter a ruling later that
day—Friday, August 19, 2011—if possible but not later than “Monday at 5 p.m.”
However, the associate judge did not issue any ruling in this case for sixteen
months. She issued a letter ruling on December 14, 2012, and signed the order of
termination on January 11, 2013. The record from a hearing held by the district
judge on the mother’s motion for new trial in this case shows that her appointed
trial counsel retired in 2011. When he represented the mother at the termination
hearing, he had quit taking new cases. Trial counsel thought he had withdrawn
from this case after that hearing but, apparently, “missed this case.” Although he
had not withdrawn from this case, trial counsel retired and shut down his office.
      During the sixteen-month interval between the associate judge’s hearing and
her ruling, the mother attempted unsuccessfully to contact trial counsel to inquire
about the case and to find out what she needed to do to prevent her rights from
being terminated. The mother was released from prison in March 2012, seven
months after the hearing. The record shows that the mother filed a pro se motion,
in which she requested that an attorney be appointed, and that she sent letters to the
associate judge requesting that new counsel be appointed. In a June 2012 letter,
she explained that she had “no attorney” representing her but that she was out of
prison and would like to reopen the case so that a homestudy could be performed.
In response, the court administrator wrote the mother and informed her that her
letter constituted an improper ex parte communication, that no action would be
taken in response to the letter, and that she should contact her attorney.
      We note that the parties have filed in this case a second joint motion to
render judgment effectuating an agreement of the parties. The parties agree that
the portion of the judgment below terminating the mother’s parental rights to M.R.
                                          14
should be reversed and the matter should be remanded for a de novo trial before
the referring court.   In the motion, the Department concedes that the mother
received ineffective assistance from her trial counsel and that reversible error
occurred. M.R.’s attorney ad litem joins the motion. Having considered the facts
of this case and the authorities cited above, we agree. The mother was denied
counsel altogether at a critical stage of the case, and we must presume prejudice
under these circumstances. See Cronic, 466 U.S. at 659. The mother’s second
issue is sustained, and the second joint motion to render judgment effectuating the
agreement of the parties is granted. We need not address the remainder of the
mother’s issues as they are not dispositive of this appeal. See TEX. R. APP. P. 47.1.
       We affirm the trial court’s order terminating the father’s parental rights.
 We reverse the trial court’s order with respect to the mother insofar as it
 terminated the mother’s parental rights, and we remand this cause to the district
 court for further proceedings regarding the mother’s parental rights.           Any
 proceeding on remand must be commenced within 180 days of this court’s
 mandate. TEX. R. APP. P. 28.4.




                                                    MIKE WILLSON
                                                    JUSTICE


July 25, 2013
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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