in the Interest of R.A.E., M.A.E., A.M.E., D.A.S., B.G.S., and B.A.E., Minor Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00121-CV

IN THE INTEREST OF R.A.E.,
M.A.E., A.M.E., D.A.S., B.G.S.,
AND B.A.E., MINOR CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

In four issues, Appellant S.S. (Mother) appeals from the trial court‘s order

terminating her parental rights to her children, R.A.E., M.A.E., A.M.E., D.A.S.,

B.G.S., and B.A.E (collectively, the ―children‖). In one issue, Appellant M.E.

(Father) appeals from the trial court‘s order terminating his parental rights to his

children, R.A.E., B.G.S., and B.A.E. We will affirm both appeals.

1
See Tex. R. App. P. 47.4.
 II. FACTUAL AND PROCEDURAL BACKGROUND

R.A.E. was born in March 2000, M.A.E. was born in March 2003, A.M.E.

was born in May 2004, D.A.S. was born in May 2006, B.G.S. was born in April

2007, and B.A.E. was born in March 2009. At the time of the final termination

trial in March 2010, R.A.E. was ten years old, M.A.E. was seven years old,

A.M.E. was five years old, D.A.S. was three years old, B.G.S. was two years old,

and B.A.E. was almost one year old. Father is the alleged biological father of

only R.A.E., B.G.S., and B.A.E. M.A.E.‘s, A.M.E.‘s, and D.A.S.‘s alleged fathers

are unknown.2

CPS conducted the following investigations involving Mother, Father, some

or all of the children, or all of them:

•July 1, 1999 Report and Investigation. This report concerned sexual

abuse of Mother‘s two other children, ―Billy‖ and ―Jake,‖3 who are not the subject

of this termination suit. The report, which was ―ruled out,‖ stated that Mother and

her ―possible roommate‖ had grabbed the boys‘ genitals.

•September 30, 2000 Report and Investigation. This report concerned

neglectful supervision of R.A.E. by Mother and Father. The report, which was

ruled ―unable to determine,‖ stated that Father had thrown Mother‘s possessions

2
Father and Mother each have several other children that were not the
subject of the termination suit.
3
We use aliases to refer to these two children. See Tex. R. App. P.
9.8(b)(2).

2
out of the house after an argument, that Mother was addicted to drugs, and that

Father had taken her to get drugs.

•March 20, 2001 Report and Investigation. This report concerned

neglectful supervision and physical neglect of R.A.E. and Jake by Mother. The

report, which was ruled ―unable to determine,‖ alleged that Mother had tested

positive for cocaine during a hospitalization for gastroenteritis and that the

children were filthy.

•July 2, 2001 Report and Investigation. This report concerned sexual

abuse of R.A.E. by an unknown person. The report, which was ruled ―unable to

complete‖ because the family had moved, alleged that Mother had called a nurse

hotline and reported that she had found blood and pubic hair in R.A.E.‘s stool.

•May 13, 2004 Report and Investigation. This report, which was ruled

―reason to believe for physical abuse,‖ concerned physical abuse of A.M.E. by

Mother because Mother had tested positive for cocaine when she went to the

hospital to deliver A.M.E. A.M.E. and a sibling were voluntarily placed with their

maternal grandmother.

•May 5, 2006 Report and Investigation. This report concerned physical

abuse of D.A.S. by Mother because both D.A.S. and Mother had tested positive

for cocaine at D.A.S.‘s birth. R.A.E., M.A.E., A.M.E., and D.A.S. were voluntarily

placed with their maternal grandmother. In June 2006, R.A.E., M.A.E., A.M.E.,

and D.A.S. were removed and placed in foster care because the maternal

grandmother had allowed Mother unsupervised contact with several of the

3
children and because D.A.S. had been taken to the emergency room and

admitted to the ICU after being given too much water. The report was ruled

―reason to believe.‖

Jessica Puryear began working with Mother and Father as their

caseworker in June 2006. The service plan required Mother, who admitted that

she had a drug problem with cocaine, to perform drug treatment and both Mother

and Father to take random drug tests, complete individual therapy, complete

parenting classes, take psychological evaluations, and achieve financial stability.

Mother initially visited the children, but she showed up intoxicated or under the

influence of something in June 2006 and did not return for any visits until October

2006, when she told Puryear that she had been out of town with friends, had

moved in with her mother, and was ready to begin her services. Mother

eventually completed individual therapy, parenting classes, anger-management

classes, and outpatient drug rehabilitation; tested negative for drugs in October

and December 2006 and in February and April 2007; was employed by the zoo;

and lived with her mother, an appropriate home. Both Mother and B.G.S. tested

negative for drugs at B.G.S.‘s birth in April 2007. In light of this and several other

things, CPS reunified the children with Mother and Father and closed the case in

September 2007. Puryear informed Mother at that time that this was ―the last

chance for her based on her history and that she really needed to keep her

sobriety and not relapse.‖

4
 •November 7, 2006 Report and Investigation. This report originated during

CPS‘s investigation of the May 5, 2006 report and concerned sexual abuse of

R.A.E. by her brother, Billy, and neglectful supervision of R.A.E. by her maternal

grandmother. The report alleged that then six-year-old R.A.E. outcried that Billy

had sexually abused her and was ruled ―reason to believe‖ for sexual abuse and

for neglectful supervision.4

•April 5, 2007 Report and Investigation. This report also originated during

CPS‘s investigation of the May 5, 2006 report and concerned neglectful

supervision of B.G.S. by Mother. Ultimately ―ruled out,‖ the report alleged that

Mother had not received any prenatal care before going into labor with B.G.S.,

and the hospital‘s records showed that Mother had tested positive for illegal

drugs in May 2004 and May 2006.

•June 27, 2008 Report and Investigation. This report concerned sexual

abuse of R.A.E. by two boys. R.A.E. had outcried that the two boys had touched

her vaginal area. There was also an allegation that Mother was gone for days at

a time. The report was ruled ―reason to believe‖ for one boy and ―ruled out‖ for

the other.

•November 10, 2008 Report and Investigation. This report concerned

neglectful supervision of R.A.E., M.A.E., A.M.E., D.A.S., and B.G.S. by Mother

and sexual abuse of R.A.E. The allegations were that Mother had been

disappearing for two to three days at a time and that R.A.E. was acting out at

4
Billy was sent to TYC for the sexual abuse of R.A.E.

5
school. The neglectful supervision allegation was ―ruled out,‖ and the sexual

abuse allegation was ―closed administratively due to the previous investigation

for the sexual abuse.‖

•March 25, 2009 Report and Investigation. CPS employee Sharla Lawless

received a referral concerning Mother‘s previous drug use and history with CPS.

B.A.E. had just been born, and because both she and Mother had tested

negative for drugs, Lawless had no immediate concerns about Mother using

illegal drugs. Mother told Lawless that she had not used drugs in a year and a

half, and Father said that he was not working but that he sometimes sold goods

from Mexico in the United States. Lawless did not have any concerns at that

point that the children needed to be removed.

•May 11, 2009 Report and Investigation. This report originated because

A.M.E. was not picked up on time from pre-kindergarten. School officials were

unable to contact Mother or any other family members, and school officials told

Mother, who showed up over two hours late, that they would take the child to All

Church Home if she failed to pick him up on time again.

•May 19, 2009 Report and Investigation. This final report originated after

M.A.E. was taken to All Church Home because no one picked him up from

school on May 18, 2009. The person listed as M.A.E.‘s grandmother said that

she was not M.A.E.‘s grandmother and that she would not pick up M.A.E. Father

told school officials that he did not know where Mother was and that he would not

pick up M.A.E.

6
 On May 19, 2009, Lawless went to a house on Jones Street—where

Mother, Father, and the children lived—and met with Mother. Mother initially told

Lawless that she did not pick up M.A.E. from school on May 18, 2009, because

she was at a car title loan business. Mother also denied that she had used illegal

drugs, and she told Lawless that there was a person who had been staying in a

shed in the backyard; that she had cleaned up that area and found cocaine

residue, cocaine baggies, and glass pipes; and that she did not know that the

person had been using illegal drugs until he moved out. Lawless, however, gave

Mother an oral swab drug screen that tested positive for cocaine, and Mother

proceeded to admit to Lawless that she had used cocaine with a friend on May

18, 2009.

Mother gave Lawless permission to view the house. In the front yard,

Lawless observed that part of the house‘s siding was coming off, that a gas can

was accessible to the children, that several dirty diapers were present, and that

several flies and bugs were around the area. In the backyard, Lawless observed

two seemingly aggressive dogs that were tied up and several metal, hazardous

items that she thought were concerning for a small child to be around. In the

living room, Lawless observed that the bed where A.M.E., M.A.E., and B.G.S.

slept appeared to be soiled and had flies on it. Lawless described the condition

of the bedroom where R.A.E. and D.A.S. slept as ―cluttered‖ with clothes

―everywhere‖ and ―hazardous‖ for a small child to walk through. In the hallway,

Lawless saw that the floor could be easily tripped on because parts of it were

7
―up‖ and missing. Lawless did not see a crib for B.A.E., and she was concerned

that the house, which had a strong smell of urine, did not have electricity

because she observed an extension cord running into the house and did not see

light fixtures in any of the rooms. Regarding the kitchen, Lawless testified,

The concern there was there were no actual walls on the inside. It
was just the studs and you could see the live wire and the plug-in
with the wire going up. Also the stove was in there. I didn‘t see a
sink in the kitchen area, but I did see the stove and it had several . . .
different pots and pans with what appeared to be old food. And that
area was covered in flies and there was a significant amount [of]
roaches in that area.

When Lawless expressed her concerns about the house, Mother said that she

and Father were remodeling it.

M.A.E., D.A.S., B.G.S., and B.A.E. were at the house during Lawless‘s visit

and appeared to be ―very dirty‖ and had an odor as if they had not been bathed

recently. B.A.E.‘s ―onesie‖ was ―very dirty‖ and smelled of urine, and she had a

severe diaper rash with blisters on her skin.

Lawless also spoke with Father about M.A.E. being left at school, and

Father said that he thought Mother was using cocaine on May 18, 2009, because

her behavior reflected a pattern of what she did when she used illegal drugs.

Father confirmed that he was not working and that he could not purchase the

materials needed to repair the house.

Lawless expressed her concerns to Mother and Father about the safety of

the children after visiting the house and later met with Mother, Father, and the

children at her office to inquire about finding someone to place the children with.

8
When no one could be located, CPS removed the children from Mother‘s and

Father‘s care. All six children, including B.A.E., had head lice. The children were

taken to a group foster home on May 27, 2009, and were still living there at the

time of the final trial. CPS ruled ―reason to believe‖ for neglectful supervision of

the children by Mother because she had tested positive for cocaine, had admitted

using cocaine, had admitted that she ―used alcohol‖ and was ―under the

influence‖ when she picked up one of the children from school on one occasion,

and had an extensive history with CPS. CPS ruled ―reason to believe‖ for

physical neglect of the children by Father based on the condition of the house

and the children.

CPS employee Oneeka Chilton took over Mother‘s and Father‘s case from

Lawless and developed service plans for both of them. Mother initially visited the

children, kept in contact with Chilton, and set up several services, but she did not

attend and complete all of the services, and Chilton lost contact with her from

July 2009 to October 2009. When Mother made contact with Chilton in October

2009, Mother told Chilton that she had last used illegal drugs in late September

2009 and that she was ready to begin working her service plan. Chilton referred

Mother to Recovery Resource in October 2009, and Mother subsequently

successfully completed a seven-day detox and inpatient drug program there and

then a twenty-eight-day inpatient treatment program at Pine Street.

Recommendations were made that Mother continue aftercare group sessions,

9
attend Narcotics Anonymous (NA) and Alcoholics Anonymous (AA), and get a

sponsor.

In early March 2010, Chilton visited the house on Jones Street, where

Father still lived. She had concerns about the house because there was no

drywall in certain areas (although there was drywall lying on the floor that had not

yet been installed); there was a hole at the top of the bathroom wall above the

toilet; there was debris, trash, junk, and barbed wire in the backyard; there was

only one bed; and there was no carpet.

At trial, Chilton expressed concerns that Mother had not provided her with

documentation that she had a sponsor and that Mother had not continued to

provide her with documentation that she was attending NA and AA, but Mother

testified that she did have a sponsor, that she had been attending NA and AA,

and that she has a large support group. Chilton did not know that Mother had

been arrested within thirty days of entering detox. On January 28, 2010, Mother

took a hair-strand drug test that was positive for high levels of cocaine. Chilton

expressed concern about the results because Mother‘s levels should have been

very low, if any, given that she had reported last using cocaine in late September

2009. Chilton was also concerned because the children kept returning from visits

with Mother with lice, and Chilton had concerns that Mother could relapse if the

children were returned to her care and that Mother could not maintain a safe

house and a stable environment. Chilton testified that the trial court should

terminate Mother‘s parental rights to the children and Father‘s parental rights to

10
R.A.E., B.G.S., and B.A.E. and that termination would be in the children‘s best

interests.

At the time of trial, Mother lived at the Union Gospel Mission, where she

participated in several programs. She claimed that her sobriety date was

December 3, 2009, and that she did not know how the January 2010 drug test

was positive but that ―[t]here was something in my drink.‖ Mother opined that the

children could live with her at the Union Gospel Mission while she finished

several services and secured housing. She acknowledged that she did not ―have

enough clean time to get all six kids back‖ and asked the trial court ―to give [her]

a little bit more time . . . to get [her] housing so [she] can be stable.‖ Mother said

that she was no longer in a relationship with Father and that she did not know

who M.A.E.‘s or A.M.E.‘s father was.5

Father refused to perform his service plan from June 2009 until March

2010, the month of the final trial. He took a hair-strand drug test on March 8,

2010, that was positive for cocaine and another drug test on March 20, 2010, that

was positive for cocaine.

On April 16, 2010, the trial court signed an order terminating Mother‘s

parental rights to the children and Father‘s parental rights to R.A.E., B.G.S., and

B.A.E. The trial court found by clear and convincing evidence that both Mother

and Father had (1) knowingly placed or knowingly allowed the children to remain

in conditions or surroundings that endangered their physical or emotional well-

5
Chilton testified that D.A.S.‘s father is also unknown.

11
being; (2) engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangered their physical or emotional well-being; and

(3) constructively abandoned the children. See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E), (N) (Vernon Supp. 2010). The trial court also found by

clear and convincing evidence that termination of Mother‘s and Father‘s parental

rights was in the children‘s best interests. See id. § 161.001(2). Mother and

Father filed their notices of this appeal.

III. BURDEN OF PROOF AND STANDARD OF REVIEW

A parent‘s rights to ―the companionship, care, custody, and management‖

of his or her children are constitutional interests ―far more precious than any

property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,

1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights

are of constitutional magnitude, they are not absolute. Just as it is imperative for

courts to recognize the constitutional underpinnings of the parent-child

relationship, it is also essential that emotional and physical interests of the child

not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26

(Tex. 2002). In a termination case, the State seeks not just to limit parental rights

but to erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except for the

child‘s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick

v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination

proceedings and strictly construe involuntary termination statutes in favor of the

12
parent. Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, no pet.).

In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon Supp.

2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987).

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2010), §161.206(a)

(Vernon 2008). Evidence is clear and convincing if it ―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 (Vernon 2008). Due process demands this

heightened standard because termination results in permanent, irrevocable

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002);

see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for

termination and modification).

In evaluating the evidence for legal sufficiency in parental termination

cases, we must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the grounds for termination were

13
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding. Id. That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder‘s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder‘s determinations as long as they are not unreasonable. Id. at

573.

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

the factfinder‘s findings and do not supplant the 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 factfinder could reasonably form a firm conviction or belief that the

parent violated the relevant conduct provisions of section 161.001(1) and that the

termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. 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

14
reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

IV. EVIDENTIARY SUFFICIENCY OF ENDANGERMENT FINDINGS

In her first and second issues, Mother argues that the evidence is legally

and factually insufficient to support the trial court‘s family code subsection

161.001(1)(D), (E), and (N) endangerment findings.

Endangerment means to expose to loss or injury, to jeopardize. In re

J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The trial

court may order termination of the parent-child relationship 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 that endanger the physical or

emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(D). Under

subsection (D), it is necessary to examine evidence related to the environment of

the child to determine if the environment was 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). Conduct of a parent in the home can

create an environment that endangers the physical and emotional well-being of a

child. J.T.G., 121 S.W.3d at 125.

The trial court may order termination of the parent-child relationship if it

finds by clear and convincing evidence that the parent has engaged in conduct or

knowingly placed the child with persons who engaged in conduct that endangers

the physical or emotional well-being of the child. Tex. Fam. Code Ann.

15
§ 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence

exists that the endangerment of the child=s physical or emotional well-being was

the direct result of the parent=s conduct, including acts, omissions, and failures to

act. J.T.G., 121 S.W.3d at 125. Termination under subsection (E) must be

based on more than a single act or omission; a voluntary, deliberate, and

conscious course of conduct by the parent is required. Id.; D.T., 34 S.W.3d at

634.

As a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the child=s physical and emotional well-being. In re S.D.,

980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). To support a

finding of endangerment, the parent=s conduct does not necessarily have to be

directed at the child, and the child is not required to suffer injury. Boyd, 727

S.W.2d at 533. The specific danger to the child=s well-being may be inferred

from parental misconduct alone, and to determine whether termination is

necessary, courts may look to parental conduct both before and after the child=s

birth. Id.; In re D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no

pet.). A factfinder may also infer from past conduct endangering the well-being

of the child that similar conduct will recur if the child is returned to the parent.

In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort

Worth Dec. 11, 2008, no pet.) (mem. op.).

Parental and caregiver illegal drug use supports a conclusion that the

child=s surroundings endanger his physical or emotional well-being. J.T.G., 121

16
S.W.3d at 125; S.D., 980 S.W.2d at 763; M.M., 2008 WL 5195353, at *6 (stating

that drug use and its effect on a parent=s life and that parent=s ability to parent

may establish an endangering course of conduct). Evidence of criminal conduct,

convictions, and imprisonment prior to the birth of a child will support a finding

that a parent engaged in a course of conduct that endangered the child=s well-

being. J.T.G., 121 S.W.3d at 133.

Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,

439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126. The

evidence demonstrates that CPS has conducted numerous investigations

involving Mother or some or all of the children, including one investigation in

1999, one investigation in 2000, two investigations in 2001, one investigation in

2004, two investigations in 2006, one investigation in 2007, two investigations in

2008, and three investigations in 2009. The September 2000, March 2000, May

2004, and May 2006 investigations involved allegations that Mother used illegal

drugs, and several exhibits entered into evidence showed that Mother tested

positive for cocaine when both A.M.E. and D.A.S. were born and that cocaine

was ―detected‖ in both A.M.E. and D.A.S when they were born. Mother admitted

using illegal drugs in May 2009 and late September 2009, and she tested

positive for cocaine in January 2010, exhibiting high levels of cocaine just two

months before the final termination trial. One of Mother‘s medical records, dated

October 2009, notes that she reported ―that she used to smoke crack about

17
every other day, but she stopped on her own about 1 month ago,‖ which would

have been in September 2009, well after the children had been removed from

her care. In 2009, although Mother claimed that the items belonged to someone

else, she told Lawless that she had found cocaine residue, cocaine baggies, and

glass pipes in the backyard shed at the Jones Street residence. The children

were living there at the time. Notwithstanding the concerning condition of the

house located on Jones Street, Mother‘s illegal drug use in May 2009—after the

children had already been removed once for her illegal drug use in May 2006—

was a major factor that led CPS to remove the children from her care for a

second time; CPS had warned Mother after she was reunited with the children in

2007 that this was her last chance and that she needed to remain sober. But

Mother resumed a continuing course of illegal drug use that has spanned

years—actions that subjected each of the children, including the youngest child,

B.A.E., to a life of uncertainty and instability, endangering their physical and

emotional well-being. See J.T.G., 121 S.W.3d at 125, 133; S.D., 980 S.W.2d at

763; M.M., 2008 WL 5195353, at *6.

Accordingly, giving due deference to the trial court‘s findings, we hold that

a reasonable trier of fact could have formed a firm belief or conviction that Mother

engaged in conduct or knowingly placed or knowingly allowed the children to

remain in conditions that endangered their physical or emotional well-being. See

Tex. Fam. Code. Ann. § 161.001(1)(D), (E). We hold that the evidence is legally

and factually sufficient to support the trial court‘s environmental or course-of-

18
conduct endangerment findings. We overrule Mother‘s first issue. Having

overruled Mother‘s first issue, we need not address—and therefore overrule—her

second issue challenging the sufficiency of the evidence to support the trial

court‘s subsection 161.001(1)(N) finding. See Tex. R. App. P. 47.1; J.L., 163

S.W.3d at 84 (stating that parent must have committed only one of the acts

prohibited under family code section 161.001(1) for termination of her parental

rights).

V. EVIDENTIARY SUFFICIENCY OF BEST INTEREST FINDINGS

In her third issue, Mother argues that the evidence is factually insufficient

to support the trial court‘s family code section 161.001(2) best interest finding. In

his only issue, Father argues that the evidence is factually insufficient to support

the trial court‘s best interest finding.

There is a strong presumption that keeping a child with a parent is in the

child‘s best interest. R.R., 209 S.W.3d at 116. Prompt and permanent

placement of the child in a safe environment is also presumed to be in the child‘s

best interest. Tex. Fam. Code Ann. § 263.307(a) (Vernon 2008) (listing factors

that should be considered in evaluating the parent‘s willingness and ability to

provide the child with a safe environment). Nonexclusive factors that the trier of

fact in a termination case may use in determining the best interest of the child

include: (A) the desires of the child; (B) the emotional and physical needs of the

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

now and in the future; (D) the parental abilities of the individuals seeking custody;

19
(E) the programs available to assist these individuals to promote the best interest

of the child; (F) the plans for the child by these individuals or by the agency

seeking custody; (G) the stability of the home or proposed placement; (H) the

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

relationship is not a proper one; and (I) any excuse for the acts or omissions of

the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These

factors are not exhaustive; some listed factors may be inapplicable to some

cases, and other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id. The same evidence of acts or omissions used to establish grounds

for termination under section 161.001(1) may be probative in determining the

best interest of the child. Id. at 28.

A. Mother

We have already detailed above the evidence demonstrating Mother‘s

continuing course of illegal drug use and the high number of CPS referrals, which

is probative in addressing the best interest inquiry. See id. Although Mother

successfully performed various services in 2006 and 2007 aimed at overcoming

her drug use and improving her parenting skills, she eventually regressed and

returned to using illegal drugs, disappearing for days at a time in 2008 and

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neglecting to pick up M.A.E. and A.M.E. from school in May 2009. According to

Lawless, Father recognized that Mother‘s behavior reflected a ―pattern‖ of how

she acted when she used illegal drugs. Indeed, Mother‘s January 28, 2010 hair-

strand drug test—taken after she had completed drug treatment in December

2009—exhibited high levels of cocaine. Chilton testified that she had concerns

that Mother could relapse if the children were returned to her care and about

whether Mother could maintain a safe house and a stable environment.

Mother had the opportunity to begin working her service plan months

before October 2009, but she stated that she did not do so because she lived in

a van and was ―going through a hard time,‖ according to Chilton. At the time of

trial, Mother lived at the Union Gospel Mission, where she was participating in

several services. In the event the children were returned to Mother, Chilton

expressed concern about who would supervise the children at the Union Gospel

Mission while Mother participated in her classes and services. At trial, Mother

acknowledged that she did not have enough ―clean time to get all six kids back

today‖ and said that she wanted to have the children returned to her at ―some

date.‖

A March 2010 CASA report stated that the children are clean and

appropriately dressed, that they are attached to the foster parents and thriving in

the structured environment, and that their medical and dental checkups and

immunizations are current. It also stated that ―[a]lthough the children love their

parents, all exhibit negative behavior after CPS parent visits, with the exception

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of B.A.E. After two of the visits, the children had lice eggs in their hair. The

source of this infestation was not determined.‖ The foster home is not ―adoption

motivated,‖ however.

Considering the relevant statutory factors in evaluating Mother‘s

willingness and ability to provide the children with a safe environment and the

relevant Holley factors, we hold that, in light of the entire record, and giving due

consideration to evidence that the trial court could have reasonably found to be

clear and convincing, the trial court could reasonably have formed a firm belief or

conviction that termination of Mother‘s parental rights to the children is in the

children‘s best interests. Accordingly, the evidence is factually sufficient to

support the trial court‘s family code section 161.001(2) best interest finding. We

overrule Mother‘s third issue.

B. Father

The evidence demonstrates that Father was aware of Mother‘s drug

problem as early as September 2000, when CPS investigated allegations that

Mother was addicted to drugs and that Father had taken her to get drugs.

Although Father knew about Mother‘s continuing illegal drug use and even

recognized her behavior when she used illegal drugs, he permitted R.A.E., and

later B.G.S. and B.A.E., to remain in her care and in that environment. Father

does not challenge the trial court‘s family code subsection 161.001(1)(D), (E), or

(N) findings.

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 Father refused to perform his service plan from June 2009 until the month

of the final trial. Although several services were put in place, there is no

evidence that Father initiated and completed any services. Father tested positive

for cocaine on March 8, 2010, and again on March 20, 2010. The March 2010

CASA report indicated that it is not known whether Father is employed and that

he had only visited the children twice, once in July 2009 and once in March 2010.

Chilton visited the house on Jones Street where Father lives and had

several concerns about it—drywall was missing in certain areas; there was a hole

at the top of the bathroom wall above the toilet; debris, trash, junk, and barbed

wire were in the backyard; there was only one bed; and there was no carpet.

Father argues that this case is like In re W.C., a case in which this court

held that the evidence was factually insufficient to support the trial court‘s best

interest finding. 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.). But

this case is unlike W.C. because the mother in that case, unlike Father here,

complied with almost all of her service plan, visited her children regularly,

maintained suitable employment, lived in her own suitable apartment, and ―made

‗significant progress in alleviating the causes for the children‘s removal from her

home,‘‖ among other things. Id. at 765.

Considering the relevant statutory factors in evaluating Father‘s willingness

and ability to provide R.A.E., B.G.S., and B.A.E. with a safe environment and the

relevant Holley factors, we hold that, in light of the entire record, and giving due

consideration to evidence that the trial court could have reasonably found to be

23
clear and convincing, the trial court could reasonably have formed a firm belief or

conviction that termination of Father‘s parental rights to R.A.E., B.G.S., and

B.A.E. is in R.A.E., B.G.S., and B.A.E.‘s best interests. Accordingly, the

evidence is factually sufficient to support the trial court‘s family code section

161.001(2) best interest finding. We overrule Father‘s only issue.

VI. INEFFECTIVE ASSISTANCE

In her fourth issue, Mother argues that her counsel rendered ineffective

assistance at trial because he failed to file discovery, failed to vigorously cross-

examine witnesses and make a closing argument, and failed to object to the

introduction of Mother‘s drug test results.

There is a right to effective assistance of counsel in a termination case.

In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). We review ineffective assistance

claims under the Strickland standard. Id. at 549. To establish ineffective

assistance of counsel, appellant must show by a preponderance of the evidence

that her counsel‘s representation fell below the standard of prevailing

professional norms and that there is a reasonable probability that but for

counsel‘s deficiency, the result of the trial would have been different. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v.

State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d

59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999).

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 In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel‘s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel‘s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel‘s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63. A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. ―In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel‘s actions.‖

Salinas, 163 S.W.3d at 740 (citing Mallett, 65 S.W.3d at 63). To overcome the

presumption of reasonable professional assistance, ―any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting Thompson, 9

S.W.3d at 813). It is not appropriate for an appellate court to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,

226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

As a general rule, we do not speculate about trial counsel‘s strategy.

Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin 2000, no pet.). We will

not second-guess through hindsight the strategy of counsel at trial. Blott v. State,

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588 S.W.2d 588, 592 (Tex. Crim. App. 1979). In the absence of direct evidence

in the record of counsel‘s reasons for the challenged conduct, an appellate court

will assume a strategic motivation if any can be imagined. Garcia v. State, 57

S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003).

Here, Mother‘s motion for new trial does not raise ineffective assistance,

nor does the record contain any post-trial hearing in which Mother raised

ineffective assistance. Nor can we conclude that this is one of those rare cases

in which the challenged conduct was ―so outrageous that no competent attorney

would have engaged in it.‖ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (citing Garcia, 57 S.W.3d at 440). Accordingly, based on the

record before us, in light of the strong presumption of reasonable professional

assistance by trial counsel, and in the absence of any opportunity for trial counsel

to explain his motives, we cannot conclude that Mother met her burden of

showing by a preponderance of the evidence that her trial counsel‘s

representation fell below the standard of prevailing professional norms. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065. Consequently, Mother has

failed to satisfy the first prong of the Strickland test. We overrule Mother‘s fourth

issue.

VII. CONCLUSION

Having overruled Mother‘s four issues, we affirm the trial court‘s order

terminating the parent-child relationship between Mother and R.A.E., M.A.E.,

A.M.E., D.A.S., B.G.S., and B.A.E. Having overruled Father‘s sole issue, we

26
affirm the trial court‘s order terminating the parent-child relationship between

Father and R.A.E., B.G.S., and B.A.E.

BILL MEIER
JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: February 17, 2011

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