Opinion issued October 15, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00388-CV
———————————
IN THE INTEREST OF M.A.B., IV, A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2014-00044J
MEMORANDUM OPINION
In this accelerated appeal, appellant M.A.B., Jr. (“M.A.B.”) challenges the
trial court’s decree terminating his parental rights to his minor child, M.A.B., IV.
In seven issues, M.A.B. argues that (1) the decree was not a final judgment; (2) the
evidence was legally and factually insufficient to support the termination of his
rights under Texas Family Code sections 161.001(1)(N), (O), or (Q); (3) the
evidence was legally and factually insufficient to support the finding that
termination of M.A.B.’s rights was in the best interest of the child under Texas
Family Code section 161.001(2); (4) the decree should be reversed because his trial
counsel was ineffective; and (5) the trial court’s findings of fact and conclusions of
law entered at the abatement hearing on M.A.B.’s ineffective assistance claim are
unsupported. We affirm.
Background
Removal and pre-trial proceedings
Both M.A.B. and the child’s mother were incarcerated when the child was
born in November 2013. M.A.B. was serving a three-year sentence for felony
cocaine possession and evading arrest. The child was released to the care of his
paternal grandmother, Phylecia Holiday. A week after the child was born, Holiday
took him to the Women, Infants, and Children Program (WIC) Office. While
there, the child twice fell out of his car seat and concerned WIC staff contacted the
Department of Family and Protective Services. The Department initiated an
investigation and learned that Holiday had a criminal history and history with the
Department involving allegations of neglect and drug use. During the
investigation, the Department asked Holiday to submit to a drug test, but she
refused and later admitted that she would test positive for marijuana and
prescription drugs. A review of the Department’s records also revealed that two
2
years before, it had conducted an investigation regarding a malnourished two-year-
old stepchild of M.A.B. and had concluded that there was reason to believe that
domestic violence, drug use, and the selling of drugs was occurring in the home.
In January 2014, the Department sought emergency removal of the child and
termination of the parents’ rights, naming his parents and Holiday as respondents.
The trial court granted the emergency removal request and appointed the
Department sole temporary managing conservator of the child until a full
adversarial hearing could be held. The trial court appointed lawyers for each of the
parents, who appeared at the subsequent hearing on behalf of their clients; Holiday
appeared on her own behalf. After the hearing, the trial court continued the
Department’s appointment as temporary managing conservator and ordered the
parents and Holiday to comply with the Department’s family service plans as a
condition of reunification.
In February 2014, the Department’s family service plans for the parents and
Holiday were filed. Among other things, M.A.B.’s plan required him to provide
the Department with “a list of people that he would like the child to possibly live
with.” It also required him to “enroll and finish the Changing Habits and
Achieving New Goals to Empower Success (CHANGES) reintegration program
provided by the TDCJ state prison system” and to provide proof of completion to
3
the Department. The Department sent a copy of the family service plan to M.A.B.
and he returned a signed copy of the signature page.
In March 2014, a status hearing was conducted at which the family service
plans were incorporated into the court’s order. In June 2014, the trial court held a
permanency hearing that was continued to July 2014. Holiday did not appear at
these two hearings and the trial court therefore entered an order that she “did not
appear and wholly made default.” A third permanency hearing was held in
September 2014. M.A.B.’s trial counsel appeared at each of these hearings on his
behalf.
Trial was set for December 9, 2014. However, M.A.B.’s trial counsel
requested a continuance so that M.A.B. could participate in the trial because she
had “overlooked bench warranting him.” The trial court permitted trial to
commence. After the Department’s caseworker briefly testified that the
Department’s goal in the case was unrelated adoption and that the child was
currently in a foster home (testimony which spanned less than one page of the
reporter’s record), the Department agreed to the continuance request and trial was
recessed until February 3, 2015.
Trial and related proceedings
The child’s mother did not appear for trial. At trial, the Department’s
caseworker Sharlina Boyd testified that M.A.B. was incarcerated when the child
4
was born and would not be released until 2016. Boyd testified that M.A.B. signed
and returned the signature page on his family service plan, but did not complete the
CHANGES program or contact the Department to provide any of the information
required by the plan. Boyd testified that, other than returning the signature page,
M.A.B. had no contact with the Department.
Boyd contacted other relatives in an effort to find a placement for the child.
At least six possible placements suggested by family members were considered
and ruled out for various reasons. In addition to these suggested placements, the
Department also considered placing the child with his paternal grandfather,
M.A.B., Sr., but M.A.B., Sr. tested positive for marijuana and did not complete
services that could have made him eligible for placement. Finally, the Department
conducted a home study of Jacklyn Ross, the child’s great-great-aunt, and
approved the study. However, Boyd testified that Child Advocates and the child’s
ad litem attorney objected to placement with Ross.
Terri Morgan, a representative for Child Advocates, testified that Child
Advocates had concerns regarding the safety and stability of the possible
placement with Ross. Specifically, Morgan testified that Ross and her husband
were separated and the cause of the separation was Ross’s son, who regularly came
to the house, broke things, and did not fix them. She testified that her concern
regarding the separation was that Ross “can cover the bills but that’s it” and that
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Ross’s husband was giving her $800 per month “to help with the stability of the
home but it is not Court ordered.” On cross-examination by M.A.B.’s lawyer,
Morgan admitted that Ross has stable employment, that her home was appropriate
for the child, and that Ross’s son does not live in the home. Morgan also admitted
that although the child had bonded with his foster mother, given the opportunity,
he could also bond with Ross.
M.A.B.’s trial counsel called Ross, who testified that she came forward to
volunteer for placement “at the wishes of the parents.” She testified that she has
two master’s degrees and had just recently resigned her position as a professor
after 14 years. She testified that her husband had not moved out, but instead that
they owned two homes, one a rental property, and her husband had moved into the
rental property to repair it. She testified that she and her husband would raise the
baby and she intended to adopt him.
M.A.B.’s trial counsel also called him to the stand, and he testified that he
was asking the court to place his child with Ross because she was part of his
family. He also asked the court not to terminate his parental rights. He testified
that he had started taking CHANGES classes, but had not completed the program
because he was “currently in a secure facility that makes it difficult.”
M.A.B.’s trial counsel also called Brenda Brooks, the child’s great-
grandmother. Brooks had been considered as a placement by the Department, but
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ruled out because she had Department history. M.A.B.’s trial counsel adduced
testimony from Brooks that her Department history was 39 years old, that the child
had been returned to her and was a successful member of the community, and that
she was not at fault for the removal. Brooks asked to be considered as a
placement.
The foster mother testified that she had been the caregiver for the child for
over a year and that he was “doing exceptionally well” and had “no issues.” She
testified that she would “definitely” adopt him.
The Department, the mother, M.A.B., and the child’s ad litem attorney
presented closing arguments. The trial court then requested additional testimony
from Morgan. In response to the trial court’s question regarding why she was
recommending termination, Morgan testified that neither parent had put forth
sufficient effort to complete services under the family service plans. The trial
court asked several questions regarding why non-family placement with the foster
mother was being recommended over placement with a family member. Morgan
testified that there were conflicting stories about Ross’s income, that Ross had
come forward late in the process, and that Morgan had some concern that Ross
volunteered based upon family pressure. The trial court requested Ross’s home
study to consider whether the child would stay in his current placement or be
placed with Ross.
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On March 17, 2015, the parties returned to court for an additional hearing
related to whether the child would continue in his foster placement or be placed
with Ross.1 M.A.B.’s trial counsel appeared on his behalf. The Department
presented additional evidence related to the child’s placement. Specifically, Boyd
testified that the child’s mother told her that she had been threatened by M.A.B.’s
family, which is why she was in hiding and had not appeared for trial. The mother
told Boyd that M.A.B. had physically abused her in the past while she was
pregnant with another child and caused a miscarriage and that while Ross was a
decent person, the mother believed that Ross would eventually give the child back
to M.A.B. The mother told Boyd that she did not want him to be raised in an
environment where physical abuse of women was accepted and that she believed it
was in the child’s best interest to remain with his foster mother. At the conclusion
of the hearing, the trial court determined that the child would continue in his foster
placement and named the Department sole managing conservator.
The trial court entered a written order which found the following grounds for
termination of M.A.B.’s parental rights:
[M.A.B.] constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the Department
. . . for not less than six months and: (1) the Department . . . has made
1
In a subsequent abatement hearing, the trial court stated that, it had determined
that both parents’ rights should be terminated before the March 2014 hearing, and
the only purpose of the March hearing was to decide whether the child should
continue in his foster placement or be placed with Ross.
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reasonable efforts to return the child to [him]; (2) the father has not
regularly visited or maintained significant contact with the child; and
(3) the father has demonstrated an inability to provide the child with a
safe environment, pursuant to § 161.001(1)(N), Texas Family Code;
[M.A.B.] failed to comply with the provisions of a court order that
specifically established the actions necessary for [him] to obtain the
return of the child who has been in the permanent or temporary
managing conservatorship of the Department . . . 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, pursuant to
§ 161.001(1)(O), Texas Family Code;
[M.A.B.] knowingly engaged in criminal conduct that has resulted in
[his] 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, pursuant to § 161.001(1)(Q), Texas Family
Code[.]
The trial court also found the Department had proved by clear and convincing
evidence that termination of M.A.B.’s parental rights was in the child’s best
interest.
Appeal and abatement hearing regarding ineffective assistance claim
M.A.B. appealed. After the appeal was filed, we abated this appeal at
M.A.B.’s request to permit the trial court to hold a hearing on M.A.B.’s claim that
his trial counsel was ineffective. Among other things, M.A.B. claimed that he did
not know he had an appointed lawyer until he appeared for trial because his lawyer
never spoke with him before trial. At the hearing, the trial court heard the
testimony of M.A.B.’s trial counsel, Brooks, Ross, M.A.B., Sr., and M.A.B. The
trial court found, among other things, that M.A.B. had not met his burden under
9
Strickland’s second prong to show that there was a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s allegedly
unprofessional errors.
Jurisdiction
In his seventh issue, M.A.B. argues that the decree may be interlocutory
because it does not dispose of a purported pro se intervention for visitation and
possession filed by Holiday. We consider this threshold issue before addressing
the merits of M.A.B.’s appeal.
A. Standard of Review and Applicable Law
We consider de novo the legal question of whether we have jurisdiction over
an appeal. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
Generally, appellate courts have jurisdiction only over appeals from final
judgments, unless the appeal is authorized by statute. See Lehmann v. Har–Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001).
“Because the law does not require that a final judgment be in any particular
form, whether a judicial decree is a final judgment must be determined from its
language and the record in the case.” Id. A judgment is final if it disposes of all
pending parties and claims, but “a trial court’s judgment need not expressly
dispose of all issues and claims in order to be final.” Vaughn v. Drennon, 324
S.W.3d 560, 562 (Tex. 2010); see Lehmann, 39 S.W.3d at 195. “If there is any
10
doubt as to the judgment’s finality, then finality must be resolved by a
determination of the intention of the court as gathered from the language of the
decree and the record as a whole, aided on occasion by the conduct of the parties.”
Vaughn, 324 S.W.3d at 563 (internal citation and quotation marks omitted). A
judgment rendered following trial on the merits is presumed to be final. Id. at 562
(“We have long recognized a presumption of finality for judgments that follow a
conventional trial on the merits.”).
B. Analysis
M.A.B. contends that we may lack jurisdiction over the appeal because
Holiday filed a pro se intervention in May 2014 and the final judgment does not
expressly address the relief requested therein. In May 2014, Holiday filed several
documents, including one entitled, “Affidavit of Inability to Pay Costs.” A second
handwritten document was entitled, “Grandparent Visitation Rights.” That
document stated that there were different types of grandparent access statutes and
stated: “I hope you consider whether the proposed child visitation arrangement is
in the best interest of the child,” and “I want to get visit right to see him why he’s
in CPS custody please. I have not seen him but one time since he been with CPS
please help me[.] I would like to visit him every week please.” Accompanying
that document was a form standard possession order for co-parents with Holiday’s
name filled in in place of a parent’s name and the handwritten statement, “I want
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all of this!” across the top. M.A.B. characterizes these documents as a pro se
intervention. The Department argues that these documents are not properly
characterized as a pro se intervention.
Assuming without deciding that Holiday’s filing constitutes an affirmative
claim for relief, see TEX. FAM. CODE ANN. § 153.432 (West 2014) (“Suit for
Possession or Access by Grandparent”), we conclude that the judgment disposed of
it by denying relief after a conventional trial on the merits, and that the decree is a
final judgment incorporating that decision. Because the decree was rendered after
a trial on the merits, we must presume that the decree is final. See Vaughn 324
S.W.3d at 562.
The language of the decree supports the presumption of finality. The decree
states that “[e]xcept as otherwise provided in this order . . . any parties claiming a
court-ordered relationship with the child are DISMISSED from this suit.” This
encompasses Holiday’s requests for visitation and possession. The decree also
contains a “Mother Hubbard” clause stating that “all relief requested in this case
and not expressly granted is denied.” Finally, under the heading “Appeal of Final
Order,” the decree states that “a party affected by this order has the right to
appeal.” Thus, the language of the decree supports the presumption of finality.
See Vaughn, 324 S.W.3d at 563 (if any doubt regarding judgment’s finality,
12
language of decree should be considered to determine trial court’s intent); Lehman,
39 S.W.3d at 203 (same).
The record as a whole also supports the presumption of finality. See
Vaughn, 324 S.W.3d at 563 (if any doubt regarding judgment’s finality, record as a
whole should be considered to determine trial court’s intent); Lehman, 39 S.W.3d
at 203 (same). The child required emergency removal after just a few days in
Holiday’s care and Holiday was named as a respondent in the termination
proceeding. She filed her documents May 2, 2014, while she was still a respondent
to the suit. Holiday later failed to appear at two permanency hearings, and the trial
court entered an order stating that Holiday “although duly and properly notified,
did not appear and wholly made default.” The evidence at trial showed that
Holiday did not cooperate with the Department and admitted that she would test
positive for marijuana and prescription drugs, and the trial court approved
placement of the child with someone other than Holiday. Nothing in the record
rebuts the presumption of finality. Thus, the record as a whole supports the
presumption of finality.
In sum, the decree, entered after trial on the merits, is presumptively final,
and nothing in the record rebuts that presumption. Accordingly, we hold that the
decree is final and that we have jurisdiction over this appeal. See Lehman, 39
13
S.W.3d at 195 (appellate courts have jurisdiction over appeals from final
judgments).
We overrule M.A.B.’s seventh issue.
Sufficiency of the Evidence
In his third, fourth, fifth, and sixth issues, M.A.B. contends that the evidence
supporting the trial court’s termination of his parental rights is legally and factually
insufficient.
A. Standard of Review
In a case to terminate parental rights by the Department under section
161.001 of the Family Code, the Department must establish, by clear and
convincing evidence, that (1) the parent committed one or more of the enumerated
acts or omissions justifying termination and (2) termination is in the best interest of
the child. TEX. FAM. CODE ANN. § 161.001 (West 2014). 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); In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002). “Only one predicate finding under section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is
in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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In a legal sufficiency review in a parental-rights-termination case, the
appellate 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. In re J.F.C., 96 S.W.3d at 266. We
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so, disregarding all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id. If, after
conducting a legal sufficiency review of the record, we determine that no
reasonable factfinder could form a firm belief or conviction that the matter that
must be proven is true, then we must conclude that the evidence is legally
insufficient. Id.
In a factual sufficiency review, the appellate standard for reviewing
termination findings is whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether a
reasonable factfinder could form a firm conviction or belief, the appellate court
maintains the required deference for the factfinder’s role. Id. at 26. “An appellate
court’s review must not be so rigorous that the only factfindings that could
withstand review are those established beyond a reasonable doubt.” Id. We should
consider whether disputed evidence is such that a reasonable factfinder could not
15
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.
B. Termination under section 161.001(1)(O)
In his fourth issue, M.A.B. argues that the evidence is legally and factually
insufficient to support termination of his parental rights under section
161.001(1)(O). Under subsection O, a parent’s rights may be terminated when 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 ANN. § 161.001(1)(O).
M.A.B. does not dispute that the child has been in the permanent or
temporary managing conservatorship of the Department for not less than nine
months as a result of removal under Chapter 262 for abuse or neglect. And M.A.B
acknowledges on appeal that he “had a relatively simple and straightforward
Family Service Plan,” and that “[t]here was only one direct requirement placed
upon [him] to be completed while he was in custody”—completion of the
16
CHANGES program. At trial, M.A.B. conceded that he had not completed the
CHANGES program. He testified that he had started the program, but that he was
currently in a secure facility that made it “difficult” to complete. M.A.B.
acknowledges that substantial compliance with a court-ordered family service plan
is insufficient to avoid termination, and challenges termination under subsection O
on only one basis—that his failure to complete the CHANGES program or to
negotiate a family service plan that did not include the requirement to complete the
CHANGES program was due to ineffective assistance by his trial counsel. See In
re T.T., 228 S.W.3d 312, 319–20 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied) (noting Texas courts have uniformly found substantial compliance with
provisions of court orders inadequate to avoid termination findings under
subsection O). Essentially, M.A.B. argues that his failure to complete the
CHANGES program as ordered should be excused by trial counsel’s alleged
ineffectiveness.2
However, “any excuse for failing to complete a family services plan goes
only to the best interest determination,” and not to whether sufficient evidence
supports a predicate finding under subsection O. See In re M.C.G., 329 S.W.3d
674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“any excuse for
failing to complete a family services plan goes only to the best interest
2
We consider the merits of M.A.B.’s ineffective assistance claim separately below.
17
determination,” not to predicate finding); In re T.N.F., 205 S.W.3d 625, 631 (Tex.
App.—Waco 2006, pet. denied) (rejecting argument that parental excuse for
noncompliance with family service plan may preclude finding under section
161.001(1)(O)); see also Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976)
(parent’s excuse for failing to adequately support child “can be considered by the
trial court only as one of the factors in determining the best interest of the child,”
and not in determining whether parent failed to support child) (emphasis added).
The evidence conclusively established that M.A.B. did not complete the
requirements of his court-ordered family service plan. Accordingly, we hold that
legally and factually sufficient evidence supports the trial court’s finding under
subsection O. See, e.g., In re M.C.G., 329 S.W.3d at 675 (appellant’s failure to
complete one requirement in family service plan supported predicate finding for
termination); see also In re T.T., 228 S.W.3d at 319 (evidence that appellants
substantially complied with family service plan was insufficient to avoid
termination finding under section 161.001(1)(O) because they did not comply with
all requirements).
We overrule M.A.B.’s fourth issue. Because sufficient evidence of only one
predicate finding is necessary to support termination, we need not address
M.A.B.’s third and fifth issues challenging the predicate findings for termination
under subsections 161.001(1)(N) and (Q).
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C. Best Interest of the Child
In his sixth issue, M.A.B. argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental
rights was in the child’s best interest.
1. Applicable Law
A strong presumption exists that a child’s best interest is served by
maintaining the parent-child relationship. In re A.A.A., 265 S.W.3d 507, 516 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). In Holley v. Adams, 544 S.W.2d
367 (Tex. 1976), the Texas Supreme Court provided a nonexclusive list of factors
that the factfinder in a termination case may use in determining the best interest of
the child. Id. at 371–72. These factors include: (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. These factors are not exhaustive, and the
Department need not prove all factors as a condition precedent to parental
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termination. In re C.H., 89 S.W.3d at 27; Adams v. Tex. Dep’t of Family &
Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no
pet.).
“[T]he prompt and permanent placement of the child in a safe environment
is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)
(West 2014). Evidence establishing one of the predicate acts under section
161.001(1) also may be relevant to determining the best interest of the child. See
In re C.H., 89 S.W.3d at 28.
2. Analysis
We conclude that the evidence is legally and factually sufficient to support
the trial court’s finding that termination of M.A.B.’s parental rights was in the
child’s best interest.
Reviewing the Holley factors, we first consider evidence of the child’s
desires. The child was less than two years old when the termination decree was
entered, and M.A.B. and the Department agree that he did not testify about his
desires.
Under the second and fourth Holley factors, we consider the evidence of the
child’s present and future emotional and physical needs, and the evidence
regarding the abilities of those seeking custody to parent and provide for his needs.
The Department’s caseworker testified that the child was doing well with his foster
20
mother, was healthy and had no developmental issues or special medical needs.
She testified that he was bonded with his foster mother and that his needs were
being met in the placement. M.A.B. concedes with respect to his ability to parent
that he was incarcerated from the time that his son was born and would not be
released until March 2016. He argues, however, that the evidence shows that Ross
could have provided for the child’s needs because she was an approved relative,
the Department’s policy is to place a child with relatives, and Ross testified that
she volunteered to care for the child at the wishes of the parents.
With respect to the third Holley factor, evidence of the emotional and
physical danger to the child now and in the future, the evidence showed that since
2005, M.A.B. has been convicted three times of possession with intent to deliver
cocaine, convicted once each of evading arrest and criminal mischief, and charged
with a number of other crimes. M.A.B. argues that although he has a history of
repeated criminal behavior and drug offenses, he committed those crimes before
knowing that the child’s mother was pregnant with the child. But a parent’s past
criminal conduct may be considered when determining whether a child will be
exposed to emotional or physical danger in the future. See In re S.M.L., 171
S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (observing that
incarcerated parent’s absence from child’s daily life, inability to support child, and
parent’s commission of criminal acts subjecting him to possibility of incarceration
21
can negatively impact child’s emotional well-being and are factors supporting
termination); see, e.g., In re C.A.Y., No. 04-05-00302-CV, 2006 WL 228714, at *4
(Tex. App.—San Antonio Feb. 1, 2006, pet. denied) (mem. op.) (incarcerated
parent’s past criminal conduct was evidence demonstrating child would be exposed
to emotional and physical danger if parent were to care for child); see also
Castorena v. Tex. Dep’t of Protective and Regulatory Servs., No. 03-02-00653-
CV, 2004 WL 903906, at *11 (Tex. App.—Austin Apr. 29, 2004, no pet.) (mem.
op.) (trial court is not bound to accept truth of parent’s testimony as to past actions
or future intentions). The evidence also showed that a past Department
investigation of M.A.B.’s malnourished stepchild had determined that there was
reason to believe that domestic violence, drug use, and the selling of drugs was
occurring in the home. Evidence of past parental misconduct or neglect can be
used to measure a parent’s future conduct. See In re A.M., 385 S.W.3d 74, 82
(Tex. App.—Waco 2012, pet. denied); Williams v. Williams, 150 S.W.3d 436, 451
(Tex. App.—Austin 2004, pet. denied).
There is no evidence in the record regarding the fifth Holley factor,
programs available to assist the individuals seeking custody in promoting the best
interest of the child.
Concerning Holley factors six and seven, in which we examine the plans for
the child by the individual and by the agency seeking custody and the stability of
22
the home or proposed placement, the record reflects that the child has been thriving
in his placement with his foster mother and that she intends to adopt him. M.A.B.
was incarcerated and the evidence showed that prior to incarceration, the
Department had concluded that there was reason to believe that there was domestic
violence, drug use, and the selling of drugs occurring in his home.
With regard to the eighth and ninth Holley factors, evidence of acts or
omissions that indicate that the existing parent-child relationship is not a proper
one and any excuse for the acts or omissions, the evidence shows that M.A.B. has
never met his child because he was born while M.A.B. was incarcerated, and that
M.A.B. would be incarcerated for the first few years of his child’s life. With
respect to excuses for any act or omission, M.A.B. testified at the termination
hearing that, although his family service plan required him to complete only one
program as a condition of reunification—the CHANGES program—it was difficult
for him to complete that program in a secure unit. He argues that but for trial
counsel’s ineffective assistance, he would have demonstrated that it was
impossible for him to complete the program and obtained a modification with
different requirements.
After considering the entire record, including the fact that M.A.B. was
incarcerated for the first few years of his child’s life because of his criminal
activity, M.A.B.’s history of criminal activity, the Department’s conclusions in a
23
previous investigation involving M.A.B., and the evidence regarding the child’s
foster placement, we conclude that a reasonable factfinder considering all the
evidence could have formed a firm belief or conviction that termination of
M.A.B.’s parental rights was in the child’s best interest. See In re J.F.C., 96
S.W.3d at 266; In re C.H., 89 S.W.3d at 28. Accordingly, we hold that legally and
factually sufficient evidence supports the trial court’s finding that termination of
M.A.B.’s parental rights was in the child’s best interest.
We overrule M.A.B.’s sixth issue.
Ineffective Assistance
In his first issue, M.A.B. contends that the decree should be reversed
because his trial counsel was ineffective and in his sixth issue, he contends that the
trial court’s findings of fact and conclusions of law entered after the abatement
hearing on his ineffective assistance claim are unsupported.
A. Standard of Review and Applicable Law
“In Texas, there is a statutory right to counsel for indigent persons in
parental-rights termination cases.” P.W. v. Dep’t of Fam. & Protective Servs., 403
S.W.3d 471, 475 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.) (first
quoting In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); and then citing TEX. FAM.
CODE ANN. § 107.013(a)(1) (West 2014)). “The supreme court has held this right
to counsel ‘embodies the right to effective counsel.’” Id. (quoting In re M.S., 115
24
S.W.3d at 544). “To evaluate claims of ineffective assistance in parental-rights
termination cases, the supreme court adopted the ineffective assistance standard
applied in criminal cases, the test of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L.Ed.2d 674 (1984).” Id. (citing In re M.S., 115 S.W.3d at 545).
“To show ineffective assistance of counsel under Strickland, the defendant has the
burden to show both that counsel’s performance was deficient and that counsel’s
deficient performance caused harm.” P.W., 403 S.W.3d at 475 (citing In re M.S.,
115 S.W.3d at 545).
Under the first prong of the Strickland inquiry, “we must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance, including the possibility that counsel’s actions are
strategic.” Id. (internal quotation marks omitted). Under the second prong of the
Strickland inquiry, we review the record to determine whether counsel’s deficient
performance harmed the defendant. Id. (citing In re M.S., 115 S.W.3d at 549–50).
“A defendant is harmed when ‘there is a reasonable probability that, but for
counsel’s unprofessional error(s), the result of the proceeding would have been
different.’” Id. (quoting In re M.S., 115 S.W.3d at 550). “A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the outcome of
the proceeding.” Id. (quoting In re V.V., 349 S.W.3d 548, 559 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied)).
25
B. Analysis
1. Cronic does not apply.
M.A.B. complains that his trial counsel’s performance was so deficient that
we should presume harm under United States v. Cronic, 466 U.S. 648, 104 S. Ct.
2039 (1984). M.A.B. argues that this is appropriate because his trial counsel failed
to comply with the duties imposed upon appointed attorneys in parental-rights
termination cases by section 107.0131 of the Family Code. See TEX. FAM. CODE
ANN. § 107.0131 (West 2014) (“Powers and Duties of Attorney ad Litem for
Parent”). The Department responds that M.A.B. failed to meet either the first or
second prong of Strickland and that Cronic should not apply because even if
M.A.B.’s trial counsel’s performance was not error-free, the evidence shows that
trial counsel did make efforts on his behalf.
We have previously recognized that “for Cronic to apply, counsel’s failure
to test the prosecution’s case ‘must be complete.’” P.W., 403 S.W.3d at 477 (first
quoting Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 1851 (2002); and then
citing Cannon v. State, 252 S.W.3d 342, 350 (Tex. Crim. App. 2008) (applying
Cronic where defense counsel “entirely failed” to test State’s case)). “This is
because ‘bad lawyering, regardless of how bad, does not support the [Cronic]
presumption; more is required.’” P.W., 403 S.W.3d at 477 (quoting McInerney v.
Puckett, 919 F.2d 350, 353 (5th Cir. 1990) (emphasis in original)); see also In re
26
V.V., 349 S.W.3d at 560 (refusing to apply Cronic in case where counsel had not
“entirely failed” to subject Department’s case to adversarial testing).
M.A.B.’s trial counsel appeared at all pre-trial hearings on M.A.B.’s behalf.
At trial, M.A.B.’s counsel objected to the admission of exhibits and evidence by
the Department, cross-examined the Department’s caseworker and objected to
questions posed the caseworker, cross-examined the witness who testified
regarding M.A.B., Sr.’s drug test results, cross-examined the Child Advocates
representative and objected to questions posed to the representative, called and
conducted direct examination of Ross, M.A.B., and Brooks, and presented
argument at the close of evidence. M.A.B.’s argument is not that his counsel
entirely failed to oppose the Department throughout the termination proceeding,
but rather, that counsel’s failure to perform certain actions, including some that
were required by section 107.0131 of the Family Code, was so unreasonable that it
amounted to no representation by counsel. This is not an argument that counsel
“entirely failed” to test the Department’s case; rather, it is an argument that
counsel’s actions fell below an objective standard of reasonableness as defined,
among other things, by section 107.0131 of the Family Code. Therefore, we
conclude that M.A.B.’s claim of ineffectiveness falls squarely within the type of
claim governed by Strickland, and Cronic does not apply. See P.W., 403 S.W.3d at
478 (substance of appellant’s argument challenged certain aspects of counsel’s
27
performance and not complete failure and therefore did not support application of
Cronic presumption); see also TEX. FAM. CODE ANN. § 107.0133 (West 2014)
(consequence for counsel’s failure to meet requirements of section 107.0131 is that
counsel may be subject to discipline under Subchapter E, Chapter 81, Government
Code). Accordingly, we reject M.A.B.’s contention that we should presume harm
under Cronic and analyze M.A.B.’s claim under Strickland. P.W., 40 S.W.3d at
478; see also In re V.V., 349 S.W.3d at 560.
2. M.A.B. failed to meet his burden under Strickland.
Even if we assume that M.A.B. met his burden under the first prong of
Strickland to show that counsel’s performance was deficient, we conclude that
M.A.B. failed to carry his burden on Strickland’s second prong. See Ex parte
Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011) (court need not address
first prong of Strickland if claim fails under second prong). M.A.B. first raised his
ineffective assistance claim in a motion to abate the appeal to permit the trial court
to hold an evidentiary hearing on the matter. We granted that motion and directed
the trial court to hold a hearing and make findings of fact and conclusions of law
regarding M.A.B.’s ineffective assistance claim.
At the abatement hearing, M.A.B. argued that his trial counsel was
ineffective because
• She did not communicate with him before trial, and her failure to
communicate:
28
o Prevented him from designating alternative caregivers as
placement options for his child;
o Resulted in him missing the first day of trial;
o Meant that she was unaware that it was impossible for him to
complete the CHANGES program, and as a result she failed to
request a modification to the family service plan omitting the
requirement that he complete the CHANGES program;
• She did not inform him that he could elect a jury trial, and he would
have elected a jury trial if he had known it was an option; and
• She incorrectly advised Brooks and Ross about their eligibility for
placement and did not object to testimony regarding placement with
Ross at the March 2015 hearing.
M.A.B. testified that he did not learn that he had an appointed lawyer until a
year after his child was removed by the Department. He testified that they only
spoke for about 30 minutes on the day of trial, and that if he had spoken with her
sooner, he could have “come up with some other people that could have maybe
possibly gotten my son.” M.A.B. testified that he would have liked an unidentified
“friend of the family” without Department or criminal history to be considered for
placement. He also testified that counsel did not tell him that he had the right to a
jury trial, and that he would have chosen a jury if he had known he had a choice.
M.A.B. also testified that the CHANGES program was not available to him
in his unit. This testimony conflicts with his testimony at trial, where he testified
that he had started the CHANGES program, but that it was “difficult” to complete
29
the CHANGES program in the unit to which he was currently assigned. M.A.B.
testified that if he had known he had an appointed lawyer in the months leading up
to trial, he would have told her that it was not feasible to complete.
Several family members also testified at the hearing. Ross and Brooks each
testified at the abatement hearing that M.A.B.’s trial counsel told them they were
not eligible for placement. M.A.B. also proffered evidence regarding Ross’s
financial situation. M.A.B., Sr. testified that he did not know that M.A.B. had a
lawyer and that she did not do anything to help him figure out what he needed to
do to get placement of his grandson.
M.A.B.’s trial counsel testified at the abatement hearing. Her testimony
conflicted with that of M.A.B and his family. She testified that before trial, she
communicated with M.A.B. through his family. She also testified that on the day
of trial, she spent the entire morning with M.A.B. talking about the case. She
testified that she interviewed all of M.A.B.’s family members who appeared at the
various pre-trial hearings, that she advocated for the nine relatives that the
Department considered for placement, and that she called Brooks and Ross at trial
because they were each requesting placement. She testified that she did not tell
Ross that she could not be considered for placement. She also testified that she
adduced evidence from M.A.B., Sr. at trial that his positive drug test was likely the
30
result exposure at his job and not due to his lifestyle, but that the child was not
ultimately placed with M.A.B., Sr. because he failed to complete required services.
With respect to M.A.B.’s presence at trial, trial counsel testified that she
requested a continuance of the trial date so that M.A.B. could be present and that
the trial was reset. She testified that trial concluded in February 2015 and that the
March 2015 hearing was merely for the purpose of rendition and for the court’s
final decision regarding placement of the child, and therefore M.A.B.’s presence
was not required. She testified that she did not specifically recall whether she
discussed the availability of a jury trial with M.A.B., but that they did discuss trial
strategy and that the question of whether the trial should be to the bench or to a
jury is an important thing to discuss with a client. When asked why she did not ask
for a modification of the family service plan, she testified that the requirements of
the plan were “minimal.” She testified that she did not think the requirements of
the plan were too onerous because M.A.B. was only asked to complete the
CHANGES program, and the program was available to him. She testified that
when she spoke with M.A.B. he did not tell her that the program was not available
to him and instead told her that he had begun the program but had not completed it
because it was “difficult” to do so.
The trial court is the sole judge of the credibility of the witnesses at a
hearing to consider a claim of ineffective assistance, and the trial court is within its
31
right to disbelieve any of the assertions upon which the appellant’s claims of
ineffective assistance are based so long as the basis for that disbelief is supported
by at least one reasonable view of the record. See Odelugo v. State, 443 S.W.3d
131, 137 (Tex. Crim. App. 2014). Here, the trial court was not required to believe
M.A.B.’s testimony at the abatement hearing that it was impossible for him to
complete the CHANGES program, particularly in light of his previous admission
that he had begun the program but later found it difficult to complete. The trial
court alone must resolve any conflicts in the evidence and is the sole arbiter of the
credibility of the witnesses, and we defer to the trial court’s findings in this regard.
See In re H.R.M., 209 S.W.3d 105, 108–09 (Tex. 2006) (factfinder is sole arbiter of
credibility of witnesses and appellate court cannot substitute own judgment); In re
G.C., No. 01-12-00935-CV, 2013 WL 816440, at *7 (Tex. App.—Houston [1st
Dist.] March 5, 2013, pet. denied) (mem. op.) (trial court may credit testimony of
one witness and discredit testimony of other).
M.A.B. contends on appeal that he could have presented favorable evidence
regarding the Holley best interest factors at trial if trial counsel had not been
ineffective. In particular, he argues that effective counsel could have helped him
achieve placement of his child with Ross or some other person designated by
M.A.B. With respect to Ross, the record reflects that the trial court did consider
her and ultimately concluded that a different placement was in the best interest of
32
the child, and also concluded that the evidence adduced at the abatement hearing
would not have altered that decision. To the extent that M.A.B. and Ross’s
testimony regarding placement conflicted with his trial counsel’s, these conflicts
were within the purview of the trial court to resolve. 3 See In re H.R.M., 209
S.W.3d at 108–09; In re G.C., 2013 WL 816440, at *7.
With respect to other placements, M.A.B. testified at the abatement hearing
that he would have liked a “friend of the family” to be considered for placement.
However, M.A.B. presented no evidence regarding the identity of that person,
whether that person was a qualified and appropriate caregiver, or whether that
person had actually agreed to assume M.A.B.’s parental responsibilities. In order
to meet his burden to show that the result of the termination proceeding would
have been different, M.A.B. could not state merely that he would have introduced
evidence that could have changed the outcome of the proceeding—he was required
to actually adduce that evidence. See, e.g., Walker v. Dep’t of Family and
Protective Servs., 312 S.W.3d 608, 625 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (where appellant claims ineffective assistance prevented introduction of
favorable evidence, appellant bears burden to adduce unproduced favorable
evidence in order to show outcome of proceeding would have been different).
3
We note also that the child’s placement is a separate issue from the determination
regarding whether M.A.B.’s parental rights should have been terminated.
33
With respect to M.A.B.’s presence at the first day of trial, the record reflects
that his trial counsel requested a continuance so that he could be present at trial and
that trial was reset after a few lines of testimony were elicited from the
Department’s caseworker stating that the child was currently in foster care and the
Department’s goal in the case was unrelated adoption. There was no evidence
adduced regarding M.A.B. until the February 2015 reset trial date, and M.A.B.
does not argue that the minimal testimony presented by the caseworker was in any
way objectionable. Thus, M.A.B. did not show that the outcome of the termination
proceeding would have been different save for trial counsel’s behavior with respect
to this issue.
M.A.B. also testified at the abatement hearing that he would have elected a
jury trial, and not a bench trial, if he had known that he had the option of a jury
trial. He argues that trial counsel was ineffective because she did not inform him
of his right to a jury trial. His trial counsel testified that she could not specifically
recall discussing a bench trial versus a jury trial with M.A.B., but that she did
specifically recall that they discussed trial strategy, that he did not request a jury
trial, and that she believes that discussing whether a client wants a bench or jury
trial is important. Thus, the trial court could have discredited M.A.B.’s testimony
that he did not know that he could elect a jury trial and would have elected a jury if
34
he had known. See In re H.R.M., 209 S.W.3d at 108–09; In re G.C., 2013 WL
816440, at *7.
Moreover, on appeal, M.A.B. does not argue that a jury trial probably would
have had a different result than a bench trial. At the abatement hearing, M.A.B.
presented nothing “beyond the mere assertion that he would have chosen a jury
trial, that the result of the trial would have been different” had he elected a jury
trial. See Nelloms v. State, 63 S.W.3d 887, 892 (Tex. App.—Fort Worth 2001, pet.
ref’d) (analyzing prejudice with respect to waiver of right to jury trial before
disclosure of impeachment evidence). Accordingly, even if the trial court found
M.A.B.’s testimony that he would have elected a jury credible, M.A.B. did not
argue or show that there was a reasonable probability that the result of the
termination proceeding would have been different if tried to a jury. See id.; see
also In re M.S., 115 S.W.3d at 550 (to meet second prong, appellant must show
reasonable probability that result of proceeding would have been different).
The trial court found that nothing trial counsel could have done “could have
changed the result in this case” and concluded that M.A.B. “did not establish that
deficient performance by his appointed trial attorney prejudiced his defense in this
case” and that “[t]here was nothing [M.A.B.’s] trial counsel could have done . . .
35
which would have changed the outcome of the case.” 4 M.A.B. challenges the trial
court’s findings and conclusions as unsupported by the evidence, but a reasonable
view of the record supports these findings and we defer to the trial court’s express
and implied credibility determinations and resolution of the conflicts in the
evidence.5 See In re H.R.M., 209 S.W.3d at 108–09; In re G.C., 2013 WL 816440,
at *7; see also Odelugo, 443 S.W.3d at 137.
M.A.B. did not identify or adduce any evidence trial counsel could have
introduced at trial that would have altered the outcome of the termination
proceeding and the record supports the trial court’s finding that M.A.B. did not
show that the outcome of the proceeding would have been different but for
counsel’s performance. Accordingly, we conclude that M.A.B. has not met his
burden under Strickland’s second prong. See P.W., 403 S.W.3d at 478 (parent
failed to meet burden under Strickland’s second prong when they did not identify
favorable evidence that could have been admitted but was not).
We overrule M.A.B.’s first and second issues.
4
Although these last two findings appear in the trial court’s conclusions of law,
they are fact findings, and we treat them as such because such a designation is not
controlling on appeal. See Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607,
608 n.1 (Tex. 1979).
5
M.A.B. conceded at the abatement hearing that “[t]here is evidence that would
support a finding on . . . [subsection] Q,” and the trial court entered such a finding.
M.A.B. now argues in his second issue that the evidence was insufficient to
support a finding under subsection Q and attacks many of the trial court’s findings
and conclusions on that basis. Regardless, we have determined that the record
supports the trial court’s findings and conclusions that we rely upon here.
36
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
37