                               NUMBER 13-11-00613-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


                        IN THE INTEREST OF B.R.C., A CHILD


                       On appeal from the 430th District Court
                             of Hidalgo County, Texas.


                               MEMORANDUM OPINION

                    Before Justices Rodriguez, Garza, and Vela
                    Memorandum Opinion by Justice Rodriguez
        Appellant R.L. challenges the termination of his parental rights to B.R.C., a child.1

By two issues, R.L. argues that his trial counsel was ineffective for failing to preserve a

legal and factual sufficiency of the evidence issue for appeal and that due process

requires this Court to address the evidentiary issue even if not preserved. We affirm.



        1
        We use the initials of the involved parties to protect the identity of the the minor child. See TEX.
FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8.
                                            I. Background

       On November 30, 2009, the Department of Family and Protective Services (the

Department) filed its original petition for protection of a child, for conservatorship, and for

termination of the parent-child relationship between B.R.C. and her mother, M.C., and

alleged father, R.L.2 B.R.C. had come into the Department's custody on November 25,

2009, after being left alone in her stroller at a bakery in Weslaco, Texas. B.R.C. was

approximately two and a half months old at the time.

       Temporary orders entered in January 2010 placed B.R.C. in foster care pending

final resolution of the Department's petition. Throughout the various events in 2010

related to B.R.C.'s custody, R.L. was incarcerated for abandoning B.R.C. at the bakery.

See TEX. PENAL CODE ANN. § 22.041(b) (West 2011) (providing that a person commits an

offense if he "intentionally abandons [a] child in any place under circumstances that

expose the child to an unreasonable risk of harm"). In December 2010, a Hidalgo

County associate judge terminated the parent-child relationship between B.R.C. and

M.C. and R.L. R.L. appealed the associate judge's order, requesting a trial de novo on

the Department's termination petition.3

       The Department's termination petition was tried to the bench in Hidalgo County

district court on June 23, 2011. The trial court issued its final termination order on

September 14, 2011. This appeal followed.

                              II. Ineffective Assistance of Counsel

       By his first issue, R.L. argues that his trial counsel was ineffective for failing to

       2
           R.L. was eventually adjudicated the biological father of B.R.C.
       3
           M.C. initially appealed the associate judge's termination order, but later abandoned her appeal.
                                                      2
object to the sufficiency of the evidence supporting the trial court's termination order.

R.L. argues that counsel's failure to file a statement of appellate points or motion for new

trial incorporating those appellate points, which he contends is required by section

263.405 of the family code, did not preserve the sufficiency issue for appeal and therefore

prejudiced the outcome of R.L.'s case.

       In a suit filed by a governmental entity in which termination of the parent-child

relationship is requested, indigent parents who respond in opposition to the termination

are entitled to the appointment of counsel to represent their interests. See TEX. FAM.

CODE ANN. § 107.013(a)(1) (West Supp. 2011). This statutory right to the appointment of

counsel necessarily embodies the right to effective assistance of counsel at every critical

stage of the proceeding. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).

       In a parental termination suit, the appropriate standard of review for effective

assistance of counsel is the same standard set forth by the United States Supreme Court

in Strickland v. Washington, 466 U.S. 668 (1984). In re M.S., 115 S.W.3d at 545. The

Strickland standard is well-established, fairly straightforward, and places a high burden

on the movant to establish that: (1) counsel's performance was deficient, and (2) the

deficient performance prejudiced the complaining party. Strickland, 466 U.S. at 687; In

re M.S., 115 S.W.3d at 545.

       With respect to whether counsel's performance was deficient, we take into account

all of the circumstances surrounding the case and primarily focus on whether counsel

performed in a "reasonably effective" manner—that is, whether the errors made by

counsel were so serious that counsel was not functioning as the "counsel" guaranteed by

the Sixth Amendment. In re M.S., 115 S.W.3d at 545, (quoting Strickland, 466 U.S. at
                                             3
687). In making this determination, we give great deference to counsel's performance,

and we find ineffective assistance of counsel only in those situations where the

challenged conduct was "so outrageous that no competent attorney would have engaged

in it."    Id. (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).            If

deficiency is found, we will find that the complaining party was prejudiced only if there is a

reasonable probability that but for counsel's deficient performance, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694.

          The version of section 263.405 relied on by R.L. provides that in the appeal of a

termination order

                  [t]he appellate court may not consider any issue that was not
          specifically presented to the trial court in a timely filed statement of points on
          which the party intends to appeal or in a statement combined with a motion
          for new trial. For purposes of this subsection, a claim that a judicial
          decision is contrary to the evidence or that the evidence is factually and
          legally insufficient is not sufficiently specific to preserve an issue for appeal.

Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 TEX. SESS. LAW SERV. 332, 332

(West) (codified at TEX. FAM. CODE ANN. § 263.405(i)), repealed by Act of May 5, 2011,

82nd Leg., R.S., ch. 75, § 5, 2011 TEX. SESS. LAW SERV. 349, 349. It is undisputed that

counsel for R.L. filed no such statement of points or motion for new trial. However, this

version of section 263.405 was repealed in 2011, and the version of the statute applicable

to the September 14, 2011 termination order in this case does not require the statement

of points required by the repealed version. See Act of Act of May 5, 2011, 82nd Leg.,

R.S., ch. 75, §§ 4, 5, 2011 TEX. SESS. LAW SERV. 349, 349 (current version at TEX. FAM.

CODE ANN. § 263.405 (West Supp. 2011)); see also In re S.R., No. 02-11-00153-CV, 2012

WL 3038508, at *15 n.10 (Tex. App.—Fort Worth July 26, 2012, no pet.) (mem. op.)

                                                  4
("Litigants whose parental rights are terminated by final orders rendered on or after

[September 1, 2011] need no longer file statements of points."). Rather, the legal and

factual sufficiency of the evidence may be raised for the first time in an appeal of a

non-jury trial. See TEX. R. APP. P. 33.1(d).

        Because R.L.'s trial counsel was not required to file a statement of points in order

to preserve his evidentiary sufficiency issue, we cannot agree with R.L.'s contention on

appeal that counsel's performance was deficient for failing to do so. See id.; TEX. FAM.

CODE ANN. § 263.405; In re M.S., 115 S.W.3d at 545. Moreover, because we conclude

below that the evidence at trial was, in fact, sufficient to support the trial court's

termination order, R.L. would not have been prejudiced by his counsel's failure to

preserve the sufficiency issue even if the old statute applied. See Strickland, 466 U.S. at

694; see also In re S.M.T., 241 S.W.3d 650, 654 (Tex. App.—Beaumont 2007, no pet.)

(applying pre-2011 version of section 263.405 and finding no prejudice in counsel's failure

to file statement of points where the evidence at trial was sufficient to support

termination). R.L.'s first issue is overruled.4

                                III. Sufficiency of the Evidence

        Although R.L. does not bring a separate issue challenging the sufficiency of the

evidence supporting the trial court's best-interests determination in the termination order,

we believe he adequately raised a sufficiency issue through various arguments made in

his ineffective assistance and due process issues. See TEX. R. APP. P. 38.1(f). And

        4
           By his second issue, R.L. argues that his substantive due process rights would be violated if we
failed to address his unpreserved evidentiary sufficiency issue. See Matthews v. Eldridge, 424 U.S. 319,
334-35 (1976); see also Lassiter v. Dep't of Social Servs. of Durham County, N.C., 452 U.S. 18, 27 (1981).
But having concluded that it was unnecessary to preserve this issue, we further conclude that the due
process rights invoked by R.L. are not implicated in this case. We overrule his second issue.
                                                    5
having determined that it was unnecessary for R.L.'s trial counsel to preserve any

evidentiary sufficiency issue in the trial court for us to reach it on appeal, we now address

R.L.'s sufficiency arguments.

       Involuntary termination of parental rights involves fundamental constitutional rights

and divests the parent and child of all legal rights, privileges, duties, and powers normally

existing between them, except for the child's right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.

App.—Corpus Christi 2006, no pet.). "Consequently, termination proceedings must be

strictly scrutinized, and 'involuntary termination statutes are strictly construed in favor of

the parent.'" In re D.S.P., 210 S.W.3d at 778 (quoting Holick, 685 S.W.2d at 20)).

       Due process requires that termination be supported by clear and convincing

evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.) (citing In

re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)); In re D.S.P., 210 S.W.3d at 778; see TEX.

FAM. CODE. ANN. § 161.001 (West Supp. 2011).              This intermediate standard falls

between the preponderance of the evidence standard of civil proceedings and the

reasonable doubt standard of criminal proceedings. In re E.M.E., 234 S.W.3d at 73. It

is defined as 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).

       In reviewing the legal sufficiency of the evidence supporting parental termination,

we 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 about the truth of

the matter on which the movant in a termination proceeding bore the burden of proof." In
                                              6
re D.S.P., 210 S.W.3d at 778 (citing In re J.F.C., 96 S.W.3d at 266). We assume that the

fact finder resolved disputed facts in favor of its finding if it was reasonable to do so and

disregard all evidence that a reasonable fact finder could have disbelieved or found to be

incredible. Id.; In re E.M.E., 234 S.W.3d at 73.

       In reviewing the evidence for factual sufficiency, we give due deference to the fact

finder's findings and do not supplant its judgment with our own. In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a fact finder

could reasonably form a firm conviction or belief about the truth of the matter on which the

movant bore the burden of proof. In re C.H., 89 S.W.3d 17, 28 (Tex. 2005); In re T.B.D.,

223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no pet.).

       Before terminating parental rights, the trial court must find (1) that the parent

committed an act prohibited by section 161.001(1) of the family code, and (2) that

termination is in the best interests of the child. TEX. FAM. CODE ANN. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Here, R.L. challenges only the best-interests finding.

Although it is true that keeping a child with a parent is often in the child's best interest, see

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), it is also presumed that prompt and

permanent placement of the child in a safe environment is in the child's best interest.

TEX. FAM. CODE ANN. § 263.307(a) (West 2008). When considering whether parental

termination is in the child's best interests, we consider the following non-exhaustive list of

factors: (1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the future;

(4) the parenting abilities of the parties seeking custody; (5) the programs available to

assist the parties seeking custody; (6) the plans for the child by the parties seeking
                                               7
custody; (7) the stability of the home or proposed placement; (8) the acts or omissions

committed by the parent which may indicate that the existing parent child relationship is

not proper; and (9) any excuse for the acts or omissions committed by the parent. Holley

v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking parental termination is

not required to prove all nine factors. See In re C.H., 89 S.W.3d at 27 (stating that these

considerations are not exhaustive or "that all such considerations must be proved as a

condition precedent to parental termination"). Moreover, in some cases, undisputed

evidence of just one factor may be sufficient to support a finding that termination is in the

best interest of the child. Id.

       R.L. argues that there was no evidence at trial that: R.L. suffered from mental

disease or defect rendering him incapable of making sound judgments on B.R.C.'s behalf;

R.L. had an extensive criminal record demonstrating that he posed a risk to B.R.C.; R.L.

physically or emotionally abused B.R.C.; or B.R.C. was in need of medical attention when

taken into the Department's custody in November 2009. R.L. also points to evidence

admitted at trial that, at the time of the June 2011 trial de novo, he lived in a nice house

that was suitable for a child to reside in.

       But the absence of evidence referenced by R.L. does not diminish the effect of the

ample evidence admitted by the Department showing that termination was in B.R.C.'s

best interests. There was evidence at trial that it was R.L. who abandoned B.R.C. at the

bakery in Weslaco in November 2009 when she was less than three months old. At the

time of the June 2011 trial, B.R.C. was less than two years old. The evidence at trial

established that R.L. had been incarcerated in either county jail or a state prison for

approximately eleven months of B.R.C.'s life.         The testimony of the Department
                                              8
caseworker in charge of B.R.C.'s case established that, during the time that R.L. was not

incarcerated and B.R.C. was in the Department's custody, R.L. made no efforts to visit or

otherwise have contact with B.R.C. The caseworker testified that R.L. did not submit to

the drug screenings or complete the substance abuse and psychological counseling

ordered by the court as part of his service plan to regain custody of B.R.C.          The

caseworker testified that he went to R.L.'s home in an attempt to communicate with him

about B.R.C. and about compliance with the service plan but was never able to make

contact with R.L. The caseworker testified that the Department's plan for B.R.C. was

adoption by a family that could provide a stable home environment. R.L. offered no

testimony or other evidence to contradict the caseworker's testimony.

      We believe the evidence admitted at trial shows that R.L. posed both an emotional

and physical danger to B.R.C. and that he does not have the parenting abilities to

adequately care for her. See Holley, 544 S.W.2d at 372. He abandoned an infant in a

public place; did not comply with the aspects of his service plan imposed to improve his

parenting abilities; and made no effort to establish a bond with B.R.C. through visits or

other contacts while she was in the Department's custody.        In fact, we believe the

undisputed evidence of R.L.'s failure to make any efforts to establish a relationship with

B.R.C. was enough to support the trial court's best-interests determination. See In re

C.H., 89 S.W.3d at 27. The Department's plan for the adoption of B.R.C. by a family that

can provide a stable home environment is but a further factor supporting the trial court's

best-interests determination. See Holley, 544 S.W.2d at 372; see also In re C.H., 89

S.W.3d at 27.

      The only excuse offered by R.L. for any of the foregoing is that he was incarcerated
                                            9
for a substantial part of the time period of this case. But we cannot agree with R.L. that

his incarceration is an adequate excuse. Rather, the fact that R.L. was separated from

B.R.C. for eleven months of her first two years because of his incarceration is but another

factor that weighs in favor of termination. See In re C.H., 89 S.W.3d at 27. It was

reasonable for the trial court to disregard the evidence offered by R.L. about his house in

light of the ample evidence that R.L. does not possess the parenting abilities to

adequately care for B.R.C. See In re E.M.E., 234 S.W.3d at 73. In sum, we will not

disturb the trial court's findings as to B.R.C.'s best interests as it was reasonable for the

court to credit the evidence admitted in favor of termination. See id.; In re H.R.M., 209

S.W.3d at 108.

       Having viewed the foregoing in both the light most favorable to the trial court's

finding and as an entire record, we conclude that a reasonable fact finder could have

formed a firm belief or conviction that termination of R.L.'s parental rights was in B.R.C.'s

best interests. See In re D.S.P., 210 S.W.3d at 778; see also In re H.R.M., 209 S.W.3d

at 108. We therefore conclude that the evidence was both legally and factually sufficient

to support the termination order in this case. R.L.'s sufficiency issue is overruled.

                                     IV. Conclusion

       We affirm the judgment of the trial court.


                                                                NELDA V. RODRIGUEZ
                                                                Justice


Delivered and filed the 11th
day of October, 2012.


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