MEMORANDUM OPINION
No. 04-11-00049-CV
In the INTEREST OF E.N.C., a Child
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-PA-00432
Honorable Richard Garcia, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: September 28, 2011
AFFIRMED
This is an appeal from a trial court’s order terminating appellant father’s parental rights to
his child, E.N.C. We affirm the trial court’s judgment.
PROCEDURAL BACKGROUND
The Texas Department of Family and Protective Services (“the Department”) sought
termination of appellant’s parental rights to E.N.C. At the conclusion of the termination hearing,
the trial court terminated appellant’s parental rights, finding it was in E.N.C.’s best interest and
that: (1) appellant constructively abandoned E.N.C. because even though the Department made
reasonable efforts to return E.N.C., appellant did not regularly visit or maintain significant
contact nor did he demonstrate an ability to provide E.N.C. with a safe environment; (2)
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appellant failed to comply with a court order that established the actions necessary for him to
gain custody of E.N.C.; and (3) appellant used a controlled substance in a manner that
endangered E.N.C.’s health or safety, and failed to complete a court-ordered substance abuse
treatment program.
After the trial, appellant filed a motion for new trial and an affidavit of indigency. A
statement of appellant points was not filed. See TEX. FAM. CODE ANN. § 263.405(b)(2) (West
2008), repealed by Act of May 19, 2011, 82d Leg., R.S., ch. 75 (requiring party intending to
appeal final termination order to file statement of appellate points in trial court). After a hearing,
the trial court denied appellant’s motion for new trial and found him indigent. The trial court
also found the points upon which appellant intended to appeal frivolous even though a formal
statement of appellate points was never filed. On appeal, appellant argues he received
ineffective assistance of counsel because his attorney failed to introduce compelling evidence,
failed to object to inadmissible evidence, and failed to file a statement of appellate points.
Generally, a party intending to appeal a final termination order must file a statement of
appellate points in the trial court. Id. This court is statutorily precluded from considering any
appellate issue that was not contained within a timely filed statement of appellate points. Id.
§ 263.405(i). However, even in the absence of a timely filed statement of appellate points, a
party appealing a final termination order may raise ineffective assistance of counsel in the
appellate court. In re J.O.A., 283 S.W.3d 336, 339, 347 (Tex. 2009). Here, after appellant
advised this court of his intent to raise an ineffective assistance claim, we ordered the court
reporter to file a complete record, and permitted appellant to re-brief in order to assert his
ineffective assistance of counsel issue.
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In response to appellant’s ineffective assistance of counsel issue, the State contends
appellant’s rights were terminated because he failed to comply with the court orders, he
constructively abandoned E.N.C., and he continued to use illegal drugs, not because he received
ineffective assistance of counsel at trial.
ANALYSIS
Parental rights may be terminated only upon proof of clear and convincing evidence that
the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code (“the
Code”), and that termination is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(1), (2); In re J.O.A., 283 S.W.3d at 344. Clear and convincing evidence is “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.” J.O.A., 283 S.W.3d at 344 (quoting TEX. FAM. CODE ANN.
§ 101.007). “[T]he 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).
An indigent person has a constitutional and statutory right to counsel in a parental-rights
termination case. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Moreover, an indigent parent
has the right to effective assistance of counsel. Id.
The Texas Supreme Court has adopted the Strickland v. Washington, 466 U.S. 668
(1984), standard for appellate review of ineffective assistance of counsel claims in parental
termination cases. M.S., 115 S.W.3d at 545. Under the Strickland standard, to prove ineffective
assistance of counsel, an appellant must first prove counsel’s performance was deficient. J.O.A.,
283 S.W.3d at 342. The deficient performance must be “so serious as to deny the defendant a
fair and reliable trial.” Id. The second prong requires a showing that the deficient performance
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was prejudicial to the defendant. Id. To establish these prongs, the appellant must show by a
preponderance of the evidence that (1) counsel’s representation fell below the objective standard
of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s
deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 690-
94. We must give deference to counsel’s actions because those actions may have been based on
strategy or a reasonable professional opinion. M.S., 115 S.W.3d at 545.
Appellant contends his trial counsel rendered ineffective assistance of counsel because he
failed to file a statement of appellate points, which would have preserved his sufficiency of the
evidence claims. See TEX. FAM. CODE ANN. § 263.405(b) (West 2008).
In J.O.A., the court held that section 263.405 of the Code, which requires a statement of
appellate points in order to raise a sufficiency challenge, “is unconstitutional as applied when it
precludes a parent from raising a meritorious complaint about the insufficiency of the evidence
supporting an order terminating parental rights.” 283 S.W.3d at 339. Because we have the entire
record, we will address whether appellant’s insufficiency complaint is meritorious.
In a legal sufficiency review, we view the evidence in a light most favorable to the
judgment, giving appropriate deference to the factfinder’s conclusions. J.O.A., 283 S.W.3d at
344. We “must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so.” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
We must also disregard all evidence a reasonable factfinder could have reasonable disbelieved.
Id. We will find the evidence insufficient if “no reasonable factfinder could form a firm belief or
conviction that the matter that must be proven is true . . . .” Id. (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)).
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The evidence is factually insufficient 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 . . . .”
Id. (quoting In re J.F.C., 96 S.W.3d at 266). We will sustain a legal sufficiency challenge only if
the evidence is “so weak or the finding so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.” In re C.H., 89 S.W.3d at 24-25 (quoting In re J.N.R., 982
S.W.2d 137, 143 (Tex. App.—Houston [14th Dist.] 1998, no pet.)).
The trial court terminated appellant’s parental rights because it was in E.N.C.’s best
interest and appellant: (1) constructively abandoned E.N.C. because even though the Department
made reasonable efforts to return E.N.C., appellant did not regularly visit or maintain contact nor
did he demonstrate an ability to provide E.N.C. with a safe environment; (2) failed to comply
with a court order that established the actions necessary for him to gain custody of E.N.C.; and
(3) used a controlled substance in a manner that endangered E.N.C.’s health or safety, and failed
to complete a court-ordered substance abuse treatment program. We need to find only one of the
above grounds for termination sufficient to uphold the trial court’s termination order. See In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2001, no pet.).
We will focus on constructive abandonment. A parent constructively abandons their
child when: (1) the child has been in the permanent or temporary managing conservatorship of
the Department for not less than six months; (2) the Department has made reasonable efforts to
return the child to the parent; (3) the parent has not regularly visited or maintained significant
contact with the child; and (4) the parent has demonstrated an inability to provide the child with
a safe environment. TEX. FAM. CODE ANN. § 161.001(1)(N); In re A.S., 261 S.W.3d 76, 88-89
(Tex. App.—Houston [14th Dist.] 2008, pet. denied). Appellant does not complain of the first
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two prongs, so we will focus on whether appellant failed to maintain significant contact and
provide a safe environment for E.N.C.
At trial, non-hearsay testimony was provided to show appellant constructively abandoned
E.N.C. As for the third prong—failure to maintain significant contact—although Appellant was
allowed to visit E.N.C. once a week, appellant testified he did not visit E.N.C. every week.
Appellant also admitted he would sometimes show up late to the visits and those visits would be
cancelled. Rosaura Villalpando, the legal worker assigned to E.N.C.’s case, testified that since
she started working the case in September 2010, through the time of the termination hearing in
January 2011, appellant had only visited E.N.C. four times. We find there was clear and
convincing evidence appellant failed to maintain significant contact with E.N.C.
As for the fourth prong—failure to provide a safe environment—Villalpando testified
appellant was never able to provide her with proof of employment. As for housing, Villalpando
testified she sent registered and regular mail to appellant’s last known address but never heard a
response, and when she asked for proof of housing, appellant never provided it. There was also
non-hearsay evidence that appellant tested positive for cocaine before the statutorily mandated
section 262.201 hearing, ten months before the termination hearing. However, even if trial
counsel had objected to Villalpando testifying to the alleged dirty urine analyses, appellant
admitted he tested positive in November 2010. Therefore, even if trial counsel had introduced
appellant’s alleged lease into evidence and objected to the alleged hearsay regarding the dirty
urine analyses, because there was no proof appellant was employed, coupled with the fact that he
tested positive for cocaine in March 2010 and November 2010, there was clear and convincing
evidence that appellant could not provide a safe environment for E.N.C.
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We find the above evidence was sufficient to prove, by clear and convincing evidence,
that appellant constructively abandoned E.N.C. Accordingly, we hold appellant did not raise a
meritorious complaint about the insufficiency of the evidence. See J.O.A., 283 S.W.3d at 339.
Because we find the evidence was sufficient to terminate appellant’s parental rights
without the alleged lease and alleged hearsay, we need not address appellant’s other issues.
CONCLUSION
Based on the foregoing, we overrule appellant’s issues, and we affirm the trial court’s
judgment.
Marialyn Barnard, Justice
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