in the Interest of M.L.N. and A.S.N., Children

NUMBER 13-10-221-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF M.L.N. AND A.S.N., CHILDREN

On appeal from the 135th District Court
of Victoria County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides and Vela
Memorandum Opinion by Justice Vela

This is an appeal from an order terminating the parental rights of appellant, D.R.N.

to her two children, a son, M.L.N. and a daughter, A.S.N. Appellant argues that the trial

court abused its discretion in finding that she: (1) knowingly placed or allowed the children

to remain in conditions or surroundings that endanger their physical or emotionally well-

being; (2) knowingly placed the children with persons who engaged in conduct that
endangers the physical or emotional well-being of the children; and (3) failed to comply

with the provisions of a court order that specifically established the actions necessary for

appellant to obtain the return of the children. She also claims that the trial court erred in:

(4) finding that termination of her parental rights was in the best interest of the children;

and (5) improperly admitting the testimony of one of the State’s expert witnesses. She

argues by her sixth issue that her trial counsel was ineffective. We affirm.

I. BACKGROUND

The State, through the Texas Department of Family and Protective Services, filed

its original petition on March 26, 2009, seeking managing conservatorship and potential

termination of the parental rights of appellant and the children’s father and her husband,

R.A.N.

Appellant testified that the children had been previously removed from her care in

2004. At the time of the first removal, appellant said that she had a problem with

marijuana, but that she had been “clean for six years.” She stated that she was currently

on multiple medications for depression, anxiety, attention deficit disorder, and symptoms

of menopause.

According to appellant, she and her husband had arguments that the children

witnessed. She described one instance where her husband grabbed her by the chain on

her neck and attempted to choke her. Later, her daughter attempted to do the same thing

to her because she wanted to “be like daddy.” Appellant said that her son saw what had

happened and had a look on his face as if what her husband had done was the “coolest

thing.” Appellant also admitted that she broke a cane and used the severed end in a fight

with her husband. She admitted that she said: ”if I’m not going to see my kids again,

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neither are you. I think I bordered the line of insanity.” According to appellant, her

husband had a way of antagonizing her and that, at the time she attacked him with the

broken cane, she had a shoulder injury and he kept poking at her until she could not stand

it anymore.

She said that at the time the children were removed from the home the second time,

they were both receiving disability benefits and that her son was on nine or ten

prescriptions for bed wetting, attention deficit hyperactivity disorder (ADHD), and

medications to help him concentrate at school. Appellant testified that she and her

husband used to practice Wicca,1 but they do not practice it anymore. She agreed,

however, that she still has an altar that she no longer uses. She said that the household

was not a safe place for their children while she and her husband resided together.

Appellant had been in a psychiatric hospital once, and her husband had been in psychiatric

hospitals on multiple occasions. Appellant testified that she did not want her parental

rights terminated.

Appellant’s husband testified that he had used drugs with his wife and that she had

a past reputation for entertaining young men in her home. Appellant’s husband is

approximately eighteen years younger than appellant. He said that she locked him out of

the bathroom the morning of the termination hearing, she had previously tried to stab him

with a walking cane, and they had been involved in Wicca. He agreed that the home was

unsafe for the children because of the conflicts between his wife and him that get out of

1
W icca is defined as “a com m unity of followers of the W icca religion; the polytheistic nature religion
of m odern witchcraft whose central deity is a m other goddess; claim s origins in pre-Christian pagan religions
of western Europe.” W ordNet Search 3.0, http://wordnetweb.princeton.edu/perl/webwn (last visited Sept. 8,
2010).

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control. He agreed that appellant was the primary caretaker of the children. He also

testified that he receives disability benefits and has been hospitalized several times for

psychological problems, has been arrested for possession of a controlled substance and

criminal mischief, and has an addiction to pills.

Christine Hartley-Harvey, a representative of the homemaker program for the State,

testified that appellant had made strides by having the home in good order, but was not “on

task” with parenting skills. According to Hartley-Harvey, the couple does not communicate

properly with the children, and appellant and her daughter compete for appellant’s

husband’s attention. She ultimately concluded that she did not believe “either one of them

has the capability to parent their children effectively and nurturing—you know, being

nurturing parents. I think they both have the desire but I don’t think they have the

capability.” She felt that neither parent has the ability to teach the children right from

wrong, to resolve conflicts, to teach them how to resolve conflicts, or to show the children

proper affection.

Lucy Holder, a licensed counselor, testified that she began counseling appellant in

2004. She opined that the couple was not prepared to provide a safe physical and

emotional home for the children. According to Holder, neither parent has any foundation

for parenting. She described the parents’ relationship with the children as stiff and

awkward. They do not know how to hug or nurture their children. Holder believed,

however, that both parents love their children.

Karen Smithey, a caseworker for Child Protective Services, testified that neither

parent had performed their respective plan of services in order to have the children

returned to them. She opined that it was in the best interest of the children that appellant

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and her husband’s parental rights be terminated. Smithey testified that she felt like

appellant’s husband was trying to “gas light” appellant, which Smithey described as trying

to make the other person crazy.

At the close of the evidence, the trial court decided to terminate appellant’s parental

rights, but continued a decision in her husband’s case for six months. This appeal ensued.

II. STANDARD OF REVIEW FOR EVIDENTIARY ISSUES

In hearings regarding the termination of parental rights, due process requires that

the State prove its case for termination by clear and convincing evidence. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982); In re G. M., 596 S.W.2d 846, 847 (Tex. 1980)). The clear

and convincing standard 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 (Vernon 2008).

Taking this elevated standard of review into consideration, an appellate court,

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

determine whether a fact-finder could reasonably form a firm belief or conviction that the

grounds for termination were proven. In re J.F.C., 96 S.W.3d at 265-66. All evidence

should be reviewed “in the light most favorable to the judgment.” Id. at 266. This means

that an appellate court must assume that the fact-finder resolved any disputed facts in

favor of its finding if a reasonable fact-finder could have done so. An appellate court must

also disregard all evidence that a reasonable fact-finder could have disbelieved. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “If [an appellate court] determines that

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no reasonable fact-finder could form a firm belief or conviction that the matter that must be

proven is true, then that court must conclude that the evidence is legally insufficient.” In

re J.F.C., 96 S.W.3d at 266.

Similarly, the clear and convincing standard of review in a parental termination

hearing requires a higher level of evidence in order to be factually sufficient. See In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002). The appellate standard for reviewing parental

termination factual findings is whether the evidence is such that a fact-finder could

reasonably form a firm belief or conviction about the truth of the State's allegations. Id.

In reviewing the evidence for factual sufficiency, we must determine whether, on the

entire record, a fact-finder could reasonably form a firm conviction or belief that the parent

violated a provision of section 161.001(1) of the family code and that the termination of the

parent's parental rights would be in the best interest of the child. In re M.C.T., 250 S.W.3d

161, 168 (Tex. App.–Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d at 28). “If, in

light of the entire record, the disputed evidence that a reasonable fact-finder could not have

credited in favor of the finding is so significant that a fact-finder could not have reasonably

formed a firm belief or conviction in the truth of its finding, then the evidence is factually

insufficient.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).

When termination is based on multiple grounds under section 161.001(1), a court

of appeals must affirm the order if the evidence is sufficient to support any one of the

grounds found by the district court. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

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 III. STATUTORY GROUNDS FOR TERMINATION OF PARENTAL RIGHTS

Section 161.001 of the Texas Family Code sets forth the grounds upon which the

court may involuntarily terminate a parent-child relationship. TEX . FAM . CODE ANN . §

161.001 (Vernon Supp. 2009).

The trial court may order termination if it finds by clear and convincing evidence that

the parent has knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child. Id. §

161.001(1)(D). Endangerment is defined as exposing to loss or injury, to jeopardize. In

re J.T.G., 121 S.W.3d 117, 125 (Tex. App.–Fort Worth 2003, no pet.). Under subsection

(D), we examine the evidence related to the environment of the child to determine if the

environment is the source of endangerment to the child’s physical or emotional well-being.

In re D.T., 34 S.W.3d 625, 632 (Tex. App.–Fort Worth 2000, pet denied).

The parent’s conduct does not necessarily have to be directed at the child. See

Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d 189, 195 (Tex.

App.–Houston [1st Dist.] 2005, pet. denied). Conduct that subjects a child to a life of

uncertainty and instability endangers a child’s physical and emotional well-being. See In

re S.D., 980 S.W.2d 758, 763 (Tex. App.–San Antonio 1998, pet. denied). A parent's

mental state may be considered in determining whether a child is endangered if that

mental state allows the parent to engage in conduct that jeopardizes the physical or

emotional well-being of the child. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.–Houston

[14th Dist.] 2003, no pet.); see also In re C.M.B., 204 S.W.3d 886, 895 (Tex. App.–Dallas

2006, pet. denied). Abusive or violent conduct by a parent may produce an environment

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that endangers the physical or emotional well-being of the child. In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.–Fort Worth 2003, no pet.). The requisite endangerment may be found

if the evidence shows a parent's course of conduct that has the effect of endangering the

child's physical or emotional well-being. See Smith v. Sims, 801 S.W.2d 247, 250 (Tex.

App.–Houston [14th Dist.] 1990, no writ).

In this case, the trial court found that appellant had: (1) knowingly placed or allowed

the children to remain in conditions or surroundings which endanger the physical or

emotional well-being of the children; (2) engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangers the physical of emotional

well-being of the children; and (3) failed to comply with the provisions of a court order that

specifically established the actions necessary for the return of the children who have been

in the permanent or temporary managing conservatorship of the Department of Family and

Protective Services for not less than nine months as a result of the children’s removal form

the parent under chapter 262 for the abuse or neglect of the children. Id. § 161.001(1)(D),

(E), (O). The State must also prove that termination is in the best interest of the children.

Id. § 161.001(2).

IV. ANALYSIS

The evidence offered at trial showed a pattern of violent altercations between

appellant and her husband in the children’s presence. Later, one of the children was

mimicking that behavior. There was conflicting evidence with respect to whether appellant

continued to use drugs. Appellant agreed that the home was not a safe place for the

children while she and her husband resided there. The husband agreed that the children

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were not safe while the two of them were at home. Yet, as of the date of the hearing, the

couple still resided in the same home. The husband had previously signed a

relinquishment of parental rights. Later, he returned to the home to live with appellant.

Appellant suffered from depression. The experts who testified all agreed that the parental

rights of both parents should be terminated based on the fact that they had worked with

both of them extensively and saw no progress with respect to parenting skills.

We have carefully reviewed this record. Looking at all of the evidence in the light

most favorable to the trial court’s determination, we hold that a reasonable trier of fact

could reasonably have formed a firm belief or conviction that appellant knowingly placed

or allowed the children to remain in conditions or surroundings that endangered their

physical well-being and that she engaged in conduct or knowingly placed the children with

persons who engaged in conduct that endangered the children’s physical or emotional

well-being. Both legally and factually sufficient evidence support the trial court’s findings

under section 161.001(1)(D) and (E) of the Texas Family Code. TEX . FAM . CODE ANN . §

161.001(1)(D), (E). Thus, we do not need to address appellant’s issue with respect to the

trial court’s decision under section 161.001(1)(O) of the family code. Id. § 161.001(1)(O).

We overrule appellant’s first and second issues and decline to address the third issue as

it is not dispositive. See TEX . R. APP. P. 47.1.

V. BEST INTEREST OF THE CHILDREN

By appellant’s fourth issue, she argues that the trial court erred in finding that

termination was in the best interest of the children. In determining whether termination is

in a child's best interest, the fact-finder may consider the following non-exhaustive list of

factors outlined by the Texas Supreme Court: (1) the desires of the child; (2) the present

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and future physical and emotional needs of the child; (3) the present and future emotional

and physical danger to the child; (4) the parental abilities of the person seeking custody;

(5) the programs available to assist those persons in promoting the best interest of the

child; (6) the plan for the child by those individuals or by the agency seeking custody; (7)

the acts or omissions of the parent that may indicate that the existing parent-child

relationship is not appropriate; (8) the stability of the home or proposed placement; and (9)

any excuse for the acts or omissions of the parents. Holley v. Adams, 544 S.W.2d 367,

371-72 (Tex. 1976); see In re D.M., 58 S.W.3d 801, 814 (Tex. App.–Fort Worth 2001, no

pet.). “‘Best interest’ does not require proof of any unique set of factors, nor does it limit

proof to any specific factors.” In re D.M., 58 S.W.3d at 814. The party seeking termination

need not prove that each of the Holley factors favor termination, and the same evidence

of acts or omissions used under section 161.001(1) of the family code may be probative

in determining the best interests of the child. See In re A.A.A., 265 S.W.3d 507, 516 (Tex.

App.–Houston [1st Dist.] 2008, pet. denied).

There was testimony that the children were doing better in foster care. One of the

children, who had previously taken ten different medications, was now taking only three.

They were doing well at school. The children were doing well emotionally. During visits

with the children, appellant was awkward. For instance, Harvey-Hartley testified that the

family was very disengaged. One of the children was observed as being left out by both

parents, while appellant and her daughter competed for the attention of appellant’s

husband. There was testimony that neither appellant nor her husband had any foundation

for parenting and that when the parents came to see the children, they did not hug them

or kneel down to talk with them. Taking into consideration all of the evidence in the record,

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we hold that a reasonable fact-finder could have formed the belief or conviction that it was

in the best interest of the children to terminate appellant’s parental rights. Thus, the

evidence supporting the trial court’s best interest finding is legally and factually sufficient.

VI. ADMISSION OF EVIDENCE

By appellant’s fifth issue, she argues that the trial court abused its discretion in

admitting the testimony of Lucy Holder, one of the State’s witnesses, because it was

conjectural and speculative and she lacked knowledge regarding the subject matter for

which she was called. Under this issue, appellant cited no authority for her position that

the witness was unqualified. Regardless, Holder testified that she was a clinical social

worker, a licensed professional counselor, a licensed marriage and family therapist and a

licensed chemical dependency counselor with twenty years of experience. She said that

she had been counseling with appellant since 2004, and with appellant’s husband for

several months. Her testimony was based on her opinions from having counseled both

appellant and her husband. There is nothing to suggest that her opinions were based on

speculation or that she was unqualified to render the opinions that she did. We overrule

appellant’s fifth issue.

VII. INEFFECTIVE ASSISTANCE OF COUNSEL

By her sixth issue, appellant urges that trial counsel was ineffective because

counsel failed to subpoena or call medical experts that could have explained appellant’s

medical diagnosis. She thought that counsel should have called various treating

physicians, because they could vouch for her ability to parent. She also thought that there

were lay witnesses that could have attested to her parenting abilities. Further, she argued

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that her attorney could have elicited testimony on cross-examination that would have

shown that she was in compliance with the State’s service plan for the family. Finally, she

argues that counsel’s final argument was not substantive and that her husband’s attorney,

in effect, did a better job, resulting in his case being continued for six months and avoiding

termination of his parental rights.

In evaluating claims of ineffective assistance of counsel in civil parental-rights

termination cases, we begin with the standard set forth by the United States Supreme

Court for criminal cases in Strickland v. Washington. In re H.R.M. 209 S.W.3d 105, 111

(Tex. 2006). Under the Strickland standard, a parent must show both that (1) the

attorney's performance was deficient and fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced her defense. Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984).

The Texas Supreme Court has stated that an ineffective assistance of counsel

claim “requires more than merely showing that appointed counsel was ineffective.” In re

J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). The parent must also show that “counsel's

deficient performance prejudiced the defense.” Id. (quoting Strickland, 466 U.S. at 687).

To show prejudice, the parent “must show that there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. An ineffective assistance claim requires a showing of a

deficient performance by counsel so serious as to deny the defendant a fair and reliable

trial. In re J.O.A., 283 S.W.3d at 342.

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 With respect to the first prong of Strickland, we presume counsel's action fell within

the range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001). To overcome this presumption, allegations of ineffectiveness must

be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. In re K.K., 180 S.W.3d 681, 685 (Tex. App.–Waco 2005, no pet.); see

also In re J.L., No. 13-07-00345-CV, 2010 WL 746702, at *9 (Tex. App.–Corpus Christi

Mar. 4, 2010, no pet.). There is a strong presumption counsel's actions and decisions are

motivated by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005). When the record is silent as to counsel's strategy, we cannot simply speculate his

or her performance was deficient. In re K.M.H.,181 S.W.3d 1,7 n.1 (Tex. App.–Houston

[14th Dist.] 2005, no pet.). Counsel's performance will be sufficient if any strategic motive

can be envisioned and will be considered deficient only if “the conduct was so outrageous

that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98,

101 (Tex. Crim. App. 2005). The standard for reviewing trial counsel's performance “has

never been interpreted to mean that the accused is entitled to errorless or perfect counsel.”

Ex Parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).

Trial counsel should be afforded an opportunity to explain his or her conduct before

being found to have provided ineffective assistance. In re S.L., 188 S.W.3d 388, 395

(Tex. App.–Dallas 2006, no pet.) (citing Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

App. 2002)). Otherwise, it is a rare occasion when a finding of ineffective assistance can

be made from the trial record alone. See M.C.T., 250 S.W.3d161,172 (Tex. App.–Fort

Worth 2008, no pet.). Although appellant filed a motion for new trial, the record does not

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reflect that a hearing on the motion for new trial was held. In the absence of an evidentiary

record, developed at a motion for new trial hearing, it is very difficult to show that counsel’s

performance was deficient. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.–Houston [1st

Dist.] 1999, pet. denied); see also In re T.J.H., No. 13-06-00407-CV, 2009 WL 2624114,

at *21 (Tex. App.–Corpus Christi Aug. 26, 2009, pet. denied) (mem. op.). When there is

no hearing on a motion for new trial, an affidavit from trial counsel becomes almost vital

to the success of an effectiveness of counsel claim. Howard v. State, 894 S.W.2d 104,

107 (Tex. App.–Beaumont 1995, pet. ref’d). Counsel for the State attached to his brief his

own affidavit recounting an interview he had with appellant’s counsel concerning her

decision to refrain from calling certain witnesses. We do not consider his affidavit as it is

not properly part of the record. See TEX . R. APP. P. 34.1; Kubala Pub. Adjusters, Inc., v.

Unauth. Practice of Law Comm., 133 S.W.3d 790, 794 (Tex. App.–Texarkana 2004, no

pet.).

Regardless, appellant has not rebutted the presumption that her trial counsel utilized

reasonable professional judgment in her decision making. We have no evidence before

us with respect to counsel’s reason for not calling certain witnesses that appellant believed

would have assisted in her case. The fact that appellant’s husband did not get his parental

rights terminated does not necessarily reflect that appellant did not receive effective

assistance. It was for the trial court to judge the demeanor of the witnesses as well as their

credibility. We will not speculate about appellant’s counsel’s strategic decisions. Thus, we

cannot find her counsel ineffective on the asserted grounds. We overrule appellant’s sixth

issue.

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 VIII. CONCLUSION

Having overruled all of appellant’s dispositive issues, we affirm the judgment of the

trial court.

ROSE VELA
Justice

Delivered and filed the
16th day of September, 2010.

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