in the Interest of J.C.R., a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-18-00949-CV

IN THE INTEREST OF J.C.R.

From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2017PA02916
Honorable Richard Garcia, Associate Judge Presiding

Opinion by: Liza A. Rodriguez, Justice

Sitting: Patricia O. Alvarez, Justice (concurring in the judgment only)
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice

Delivered and Filed: May 15, 2019

AFFIRMED

Appellant Diana H. 1 appeals the trial court’s order terminating her parental rights to her

nine-year-old son, J.C.R. Parental rights may be terminated only upon proof of clear and

convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1)

of the Texas Family Code, and (2) termination is in the best interest of the child. See TEX. FAM.

CODE ANN. § 161.001(b)(1)-(2). After a bench trial, Diana H.’s parental rights were terminated

pursuant to subsections 161.001(b)(1)(E), (N), and (O). The trial court then appointed J.C.R.’s

father as sole managing conservator and ordered that the Texas Department of Family and

Protective Services was released from any further duties in this case.

1
To protect the identity of the minor child, we refer to the parties by their initials. See TEX. FAM. CODE § 109.002(d);
TEX. R. APP. P. 9.8(b)(2).
 04-18-00949-CV

On appeal, Diana H. brings four issues: (1) the sufficiency of evidence to support the trial

court’s findings pursuant to subsections 161.001(b)(1)(E), (N), and (O); (2) the sufficiency of the

evidence to support the trial court’s finding that termination of her parental rights was in the best

interest of her child; (3) the ineffectiveness of her counsel; and (4) the appointment of J.C.R.’s

father as sole managing conservator. We affirm.

SUFFICIENCY OF THE EVIDENCE

In reviewing the legal sufficiency of the evidence to support the trial court’s findings, we

look “at all the evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In

re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002)). We give “appropriate deference to the factfinder’s conclusions and the role of a court

conducting a legal sufficiency review,” by “assum[ing] that the factfinder resolved disputed facts

in favor of its finding if a reasonable factfinder could do so.” Id. “A corollary to this requirement

is that [we] should disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been incredible.” Id. “This does not mean that [we] must disregard all evidence that

does not support the finding.” Id. (emphasis in original). “Disregarding undisputed facts that do

not support the finding could skew the analysis of whether there is clear and convincing evidence.”

Id. “If, after conducting [our] legal sufficiency review of the record evidence, [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. at 344-45.

In reviewing the factually sufficiency of the evidence, we consider disputed or conflicting

evidence. Id. at 345. “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

-2-
 04-18-00949-CV

not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”

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

A. Findings Pursuant to Section 161.001(b)(1)

The trial court found by clear and convincing evidence that Diana H. had (1) engaged in

conduct or knowingly placed the child with persons who engaged in conduct that endangered the

physical or emotional well-being of the child (subsection E grounds); (2) constructively abandoned

the child (subsection N grounds); and (3) failed to comply with the provisions of the court-ordered

family service plan (subsection O grounds). Only one of these three statutory grounds is necessary

to support the trial court’s order terminating Diana H.’s parental rights where 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). In

reviewing the record, we conclude for the reasons explained below that the evidence is legally and

factually sufficient to support the trial court’s finding pursuant to subsection E that Diana H.

engaged in conduct that endangered the physical or emotional well-being of J.C.R.

Under subsection E, the relevant inquiry is whether there is evidence that the endangerment

of the child’s physical and emotional well-being was the direct result of the parent’s conduct. See

In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Conduct” as used in

this subsection includes both the parent’s actions and failures to act. In re M.J.M.L., 31 S.W.3d

347, 351 (Tex. App.—San Antonio 2000, pet. denied). Termination under this subsection must be

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

conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d at 125. The conduct need not

occur in the child’s presence and may occur both before and after the child has been removed by

the Department. Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). Scienter is not required for an appellant’s own acts

under subsection E; it is only a requirement when a parent places her child with others who engage

-3-
 04-18-00949-CV

in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied).

Conduct that subjects a child to a life of uncertainty and instability endangers the physical

and emotional well-being of a child. See A.S. v. Tex. Dep’t of Fam. & Protective Servs., 394

S.W.3d 703, 712 (Tex. App.—El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex.

App.—Fort Worth 2009, no pet.). Thus, evidence of illegal drug use by a parent and its effect on

a parent’s life and her ability to parent may establish an endangering course of conduct under

subsection E. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (holding evidence sufficient to

support finding of endangerment even though father had made significant recent improvements

because “evidence of improved conduct, especially of short-duration, does not conclusively negate

the probative value of a long history of drug use and irresponsible choices”); In re K-A.B.M., 551

S.W.3d 275, 287 (Tex. App.—El Paso 2018, no pet.) (“A parent’s use of drugs may qualify as an

endangering course of conduct.”); Walker, 312 S.W.3d at 617 (“Because it exposes the child to

the possibility that the parent may be impaired or imprisoned, illegal drug use may support

termination under section 161.001(1)(E).”). Further, evidence that the parent continued to use

illegal drugs even though the parent knew her parental rights were in jeopardy is conduct showing

a voluntary, deliberate, and conscious course of conduct, which by its nature endangers a child’s

well-being. In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied);

Cervantes-Peterson v. Tex. Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 253-54 (Tex.

App.—Houston [1st Dist.] 2006, no pet.).

The reporter’s record of the bench trial in this appeal consists of only fifty-eight pages. 2

Three witnesses testified: Allison Deines, an investigator with the Department; Elaine Perez, a

2
Although we recognize that the trial court and the parties in this proceeding had many hearings before the date of
trial, we emphasize that none of the previous hearings constitute evidence that can support the trial court’s order

-4-
 04-18-00949-CV

caseworker with the Department; and Appellant Diana H. The investigator, Deines, testified that

in December 2017, she went to Diana H.’s home to investigate a referral received by the

Department asserting allegations of “neglectful supervision, medical neglect, and physical

neglect” due to Diana H.’s use of “meth and pills.” Eight-year-old J.C.R. appeared to Deines to be

healthy and did not look malnourished. When Deines questioned Diana H. about her drug use,

Diana H. admitted she had used “meth” the week before “because she had a tooth abscess.” Deines

also learned from J.C.R. that he had not been enrolled in school since he was seven years of age.

Diana H. then confirmed J.C.R. had not been in school since January 2017, claiming the school

had withdrawn J.C.R. because she had been unable to get her mother’s (J.C.R.’s grandmother’s)

signature as head of the household. Deines testified she inquired with the school district but was

only able to determine J.C.R. had been withdrawn for an unknown reason. J.C.R. was removed

from the home and placed with his paternal grandmother.

Perez, the caseworker, testified that because Diana H. admitted to having used

methamphetamine, the Department requested drug tests on a regular basis. Perez testified in the

months leading up to trial, Diana H. tested positive for methamphetamines twice: once as a result

from a urinalysis and once as a result from a hair follicle test. According to Perez, on November

15, 2018, which was only eleven days before trial, the hair follicle test was positive for

methamphetamines. Perez explained the hair follicle test “can go back two to three months.” Perez

also testified that Diana H. was ordered to submit to a urinalysis after the previous hearing but did

not appear for the test. Based on Diana H.’s previous positive results in the months before trial and

terminating a parent’s rights. The only evidence that can support the trial court’s order is that evidence admitted at
trial. Given the constitutional rights of the parents in these proceedings, the future placement of the children involved,
and the effect such placement will have on their lives, we urge the trial court and the parties to spend more time on
the development of evidence at trial. The reporter’s record reflects that the trial court in this case repeatedly hurried
the lawyers through their examination of the witnesses. Given this entire record constitutes a mere 58 pages, the parties
should have been allowed to thoroughly present their evidence and arguments at trial within a time frame appropriately
commensurate to the finality of parental termination.

-5-
 04-18-00949-CV

based on Diana H.’s refusal to take a drug test after the prior hearing, Perez believed Diana H. was

still using methamphetamines. Thus, Perez testified that during the pendency of the case, Diana

H. had not addressed the primary reason for her child being removed, had never expressed any

accountability for finding herself in this situation, nor given any indication that she was committed

to changing her lifestyle. 3 According to Perez, because Diana H. had not complied with urinalysis

testing during the pendency of the case, she was not able to participate in visitations with J.C.R.

With regard to J.C.R. not having been enrolled in school for the twelve months prior to his

removal, Perez testified that Diana H. claimed she was unable to enroll him because her mother

had just passed away. Perez, however, pointed out that while the grandmother’s death would have

been “a reason for that moment,” it would not explain why J.C.R. had not been in school for many

months before his grandmother passed away.

When Diana H. testified, she claimed that the last time she had used methamphetamines

was “probably at the beginning, when the case – when this happened, when this all started, that

they took my little boy away from me.” When questioned about the positive urinalysis and hair

follicle tests, she argued both were unreliable. When asked why she had not submitted to a

urinalysis, she testified that she understood the court ordered her to take a urinalysis, but said she

did not take one because she “thought they were going to switch me here, for me to start coming

3
We note that as part of her service plan, Diana H. was supposed to be referred to Outreach, Screening, Assessment,
and Referral (“OSAR”) services for drug assessment and then “attend and participate fully in the assessment” and
“follow all recommendations.” The record is unclear whether Diana H. was ever referred to OSAR. The caseworker,
Perez, testified Diana H. was never sent to inpatient or outpatient treatment because the Department “did not have the
OSAR assessment recommendations.” When Perez was asked whether it was true she was supposed to send another
referral, Perez admitted that after the October 17, 2018 hearing (one month before trial), she understood she “was
supposed to send another referral,” but she did “not show that [she] sent that.” Perez testified she knew she sent
“several” and “may have misplaced hers on that one.” When asked whether it was true Diana H. complained she had
not been able to get an appointment for the drug assessment, Perez testified, “No. I don’t recall, no, sir.” Diana H.
testified she had attempted to schedule the assessment but was unable because OSAR did not have her referral.
According to Diana H., she texted Perez who agreed to send a referral, but none was ever sent. While the caseworker
admits she failed to send the second referral and Diana H. claims none was ever sent, the record does reflect that a
breakdown in the system occurred.

-6-
 04-18-00949-CV

here on a weekly basis.” She emphasized that she had taken the hair follicle test. She admitted that

using methamphetamines is a dangerous activity but denied that she was continuing to use

methamphetamines. Although Diana H. admitted to having used methamphetamines a few days

before J.C.R. was removed, she stressed that J.C.R. had not been with her—she had used at a

laundromat. On cross-examination, she admitted that after using methamphetamines at the

laundromat, she went home to J.C.R. but, in trying to excuse her use of methamphetamines,

stressed she “did minimal.”

With regard to J.C.R. not attending school, Diana H. testified her mother had “just barely

passed away, in December, which was two weeks before CPS went knocking at [her] door.” She

testified that her mother had been very sick in the months before her death and could not go to

school to sign a form as head of household. So, the school withdrew J.C.R.

In looking at all the evidence in the record in the light most favorable to the trial court’s

finding, we hold that the evidence is legally sufficient to support the trial court’s finding of

endangerment pursuant to subsection E. The evidence shows Diana H. used methamphetamines

before the removal of J.C.R. and continued to use methamphetamines during the pendency of the

case even though she knew her parental rights were in jeopardy. See In re J.O.A., 283 S.W.3d at

346; In re M.E.-M.N., 342 S.W.3d at 263; Cervantes-Peterson, 221 S.W.3d at 253-54. The

evidence also shows that Diana H. permitted her child to remain out of school for a year, and the

trial court could have found her excuses for his lack of education not credible. We hold the

evidence shows Diana H. has engaged in a course of conduct that subjected her child to a life of

uncertainty and instability, thus endangering the physical and emotional well-being of her child.

See A.S., 394 S.W.3d at 712; In re M.R.J.M., 280 S.W.3d at 503; In re K-A.B.M., 551 S.W.3d at

287; Walker, 312 S.W.3d at 617.

-7-
 04-18-00949-CV

With regard to factual sufficiency, Diana H. argues that “no drug tests were introduced into

evidence.” However, the results of those tests were introduced in evidence through Perez’s

testimony, and no objection was made to her testifying about the results. In considering the entire

record, including any disputed evidence, we conclude the evidence is factually sufficient to support

the trial court’s finding that Diana H. had endangered her child pursuant to subsection E.

B. Best-Interest Finding Pursuant to Section 161.001(b)(2)

Diana H. also argues the evidence is legally and factually insufficient to support the trial

court’s finding that termination of her parental rights is in the best interest of J.C.R. Under Texas

law, there is a strong presumption that the best interest of a child is served by keeping the child

with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining whether the child’s

parent is willing and able to provide the child with a safe environment, a court should consider the

factors set out in section 263.307 of the Family Code. See TEX. FAM. CODE ANN. § 263.307(b). 4

In addition to these statutory factors, in considering the best interest of the child, a court may also

consider the nonexclusive list of factors set forth by the Texas Supreme Court in Holley v. Adams,

544 S.W.2d 367, 372 (Tex. 1976). See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). The Holley

4
These factors include (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-
of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child
has been the victim of repeated harm after the initial report and intervention by the Department; (5) whether the child
is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7)
whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the
child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the
child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the
child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate
agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the family’s care with: (A) minimally adequate health
and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and
psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home
environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the
child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support
system consisting of an extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b).

-8-
 04-18-00949-CV

factors are neither all-encompassing nor does a court need to find evidence of each factor before

terminating the parent-child relationship. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). These

include, but are not limited to, (1) the child’s desires; (2) the child’s present and future emotional

and physical needs; (3) any present or future emotional and physical danger to the child; (4) the

parental abilities of the individuals seeking custody; (5) the programs available to assist these

individuals to promote the child’s best interest; (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 parent’s

acts or omissions that may indicate the existing parent-child relationship is improper; and (9) any

excuse for the parent’s acts or omissions. In re E.C.R., 402 S.W.3d at 249 n.9; Holley, 544 S.W.2d

at 371-72. Additionally, in determining whether termination of the parent-child relationship is in

the best interest of a child, a court may judge a parent’s future conduct by his past conduct. In re

E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

As noted, there was evidence that Diana H. has engaged in conduct that endangered the

physical and emotional well-being of J.C.R. Diana H. used illegal drugs before J.C.R. was removed

from her care and continued using illegal drugs even though she knew her parental rights were in

jeopardy. Moreover, Diana H. has not had a substantial relationship with the child during the

pendency of the case, attending only 11 of 34 eligible visits. She testified that she had

transportation issues; however, in an attempt to accommodate her, the caseworker testified that the

Department changed the location of the visits and changed the date of the visits several times to

allow for her work schedule. According to the caseworker, Diana H. did not complete the drug

urinalysis tests so that she could visit J.C.R. Perez testified Diana H. “has not shown she can leave

the drugs alone during the course of this case.” The caseworker also testified that Diana H. had not

taken any responsibility for her conduct or stated she intended to make any necessary changes.

-9-
 04-18-00949-CV

During her testimony, Diana H. minimized her admitted illegal drug use, explaining that using

methamphetamines while around her son was not an issue because she had only used “minimal.”

Further, at the time J.C.R. was removed from this mother’s care, he had not attended school

in almost a year and was behind his contemporaries as a result. After living at his grandmother’s

home for nine months, the caseworker testified that J.C.R. was flourishing, was doing well at

school and progressing, and was receiving appropriate academic support. According to the

caseworker, J.C.R. has stated he wishes to remain living at his grandmother’s house. J.C.R. “has

experienced lots of normalcy that he did not have before.” J.C.R. “did not know what Easter eggs

were or what a pinata was.” The caseworker explained he has now learned to swim and is attending

school. J.C.R. and his father both live with his paternal grandmother and plan to continue living

there for the next year until his father can save enough money for them to move into their own

home. There was also evidence that extended family live close to the paternal grandmother’s home

and J.C.R., as a result, has other family support.

Diana H. emphasizes testimony that J.C.R. had not seen his father in four years before his

removal and believed, erroneously, that his father lived in Mexico. The caseworker recognized

that J.C.R.’s father had not been in contact with J.C.R. before this case was filed. However, she

explained that J.C.R.’s father had completed all the services he was asked to complete and now

has a relationship with J.C.R. The caseworker explained that although J.C.R.’s father does work

long hours in the evenings, he drives J.C.R. to school in the mornings, picks him up from school

in the afternoons, spends time with him after school, and spends weekends with him. The

caseworker also recognized that Diana H. had concerns J.C.R. father was “too harsh with him”

and that J.C.R. “does not respond well to that.” The caseworker testified that she discussed the

matter with J.C.R.’s grandmother and father. She also talked to J.C.R. about what his mother said,

and J.C.R. replied that he just wanted his father to be “a little bit more patien[t] with his

- 10 -
 04-18-00949-CV

homework.” The caseworker testified that she believed it was “an isolated incident with his

homework.” She explained J.C.R. was having trouble with his math and J.C.R.’s father was not

capable of helping him. Thus, the caseworker testified they arranged for J.C.R. to receive tutoring

at school. Diana H. also argues that J.C.R. is living with a grandmother who does not speak

English, and he does not speak Spanish. The caseworker testified, however, that J.C.R. is now

enrolled in a bilingual school.

In looking at all the evidence in favor of the trial court’s finding, we conclude the evidence

is legally sufficient to support the trial court’s finding that termination of Diana H.’s parental rights

is in J.C.R.’s best interest. See In re J.O.A., 283 S.W.3d at 344.

With regard to factual sufficiency, Diana H. points to her own testimony that (1) J.C.R.’s

father had been arrested for family violence; (2) J.C.R. had told her he was not happy living at his

grandmother’s home and was afraid of his father because of his temper; and (3) J.C.R.’s father was

ordered to pay child support in the past, never paid any support, and spent three months in jail.

Diana H., however, did not provide any other documentation to support her testimony about the

father’s criminal history or abusive conduct. As the factfinder, the trial court could have simply

not found her testimony credible. Moreover, although it is undisputed that the father did not have

contact with J.C.R. in the four years before the filing of this case, 5 the trial court, in looking at all

the relevant factors, could still have concluded that termination of Diana H.’s parental rights was

in J.C.R.’s best interest. Therefore, in considering the entire record, including any disputed

evidence, we conclude the evidence is factually sufficient to support the trial court’s finding that

termination of Diana H.’s parental rights was in J.C.R.’s best interest. See id.

5
The record is void of any information as to the reason J.C.R.’s father had no contact with him for over four years,
and other than Diana H.’s testimony, the record does not reflect whether J.C.R.’s father had provided support for
J.C.R. in any way during that time.

- 11 -
 04-18-00949-CV

INEFFECTIVE ASSISTANCE OF COUNSEL

In her third issue, Diana H. claims she was denied effective assistance of counsel because

her trial counsel did not object to the caseworker’s testimony about the results of her drug tests.

She argues that “[n]o competent attorney would have allowed testimony regarding drug use into

evidence to be used to justify termination on subsection E grounds.” The Texas Supreme Court

has held that the statutory right to counsel in parental rights termination cases includes a guarantee

that counsel will perform effectively. In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010). Thus, the

court adopted the Strickland test, which establishes the standard for effective assistance of counsel

in criminal cases. See In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). Under Strickland, to prove a claim of ineffective assistance of

counsel, a defendant must prove, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient and (2) that the deficient performance prejudiced his defense. In re

M.S., 115 S.W.3d at 545 (citing Strickland, 466 U.S. at 687).

In reviewing an ineffectiveness claim, an appellate court affords “great deference to

counsel’s performance, indulging ‘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. (quoting Strickland, 466 U.S. at 689). Only when conduct is “‘so outrageous that

no competent attorney would have engaged in it’” will an appellate court determine the conduct

amounted to ineffective assistance of counsel. Id. (quoting Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001)).

An appellant bears the burden of overcoming the presumption that, under the

circumstances, the challenged conduct might be considered sound trial strategy. Strickland, 466

U.S. at 689. When the record is silent concerning the reasons for trial counsel’s actions, an

appellate court does not engage in speculation to find ineffective assistance of counsel. See Walker,

- 12 -
 04-18-00949-CV

312 S.W.3d at 623. Accordingly, ineffective assistance claims must be firmly found in the record,

and the record must affirmatively show the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59,

63 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

Here, Diana H. did not file a motion for new trial, and her trial counsel was not afforded

an opportunity to respond to the allegation of ineffective assistance of counsel. Thus, no

explanation as to any potential trial strategy has been given. Diana H. presents no argument other

than to say no competent attorney would have failed to object to the caseworker’s testimony about

her drug test results. In considering the entire record, we disagree with Diana H. that her trial

counsel could have no possible sound trial strategy in failing to object to the caseworker’s

testimony regarding her drug test results. See In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—El

Paso 2013, no pet.) (holding evidence not firmly founded in the record when appellant argued

counsel, among nine other allegations, “failed to object to drug testimony”). We hold Diana H. has

not met her burden of overcoming the presumption that trial counsel’s conduct could be considered

sound trial strategy. See Strickland, 466 U.S. at 689.

Moreover, Diana H. has failed to show prejudice. Under Strickland’s second prong, she

must show that her counsel’s alleged deficient performance prejudiced her defense. In re M.S., 115

S.W.3d at 545. “This requires a showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.” Id. (quoting Strickland, 466 U.S. at 687).

That is, Diana H. had the burden to show “there is a reasonable probability that, but for her

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 550

(citations omitted). Under the facts of this case, she needed to show that, but for her trial counsel’s

failure to object to the caseworker’s testimony regarding her drug test results, the results of the

proceedings would have been different. However, Diana H. has failed to show how the Department

- 13 -
 04-18-00949-CV

was prohibiting from offering the drug test results through another witness. In other words, Diana

H. has failed to show that her drug test results were wholly inadmissible in this proceeding.

We hold that Diana H. has failed to show she was denied effective assistance of counsel.

APPOINTMENT OF FATHER AS SOLE MANAGING CONSERVATOR

In her final issue, Diana H. argues the trial court erred in appointing J.C.R.’s father as sole

managing conservator. However, because we have determined the trial court did not err in

terminating Diana H.’s parental rights, Diana H. no longer has any legal rights with respect to

J.C.R. and cannot challenge the portion of the termination order that relates to the appointment of

a conservator for J.C.R. See In re E.O.R., No. 04-18-00248-CV, 2018 WL 5808293, at *5 (Tex.

App.—San Antonio Nov. 7, 2018, no pet.); In re L.T.P. No. 04-17-00094-CV, 2017 WL 3430894,

at *6 (Tex. App.—San Antonio 2017, pet. denied).

Moreover, even if Diana H. could challenge the trial court’s appointment of J.C.R.’s father

as sole managing conservator, the trial court did not err. The Texas Supreme Court has explained

that different standards of review apply to termination decisions than conservatorship decisions.

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Because of due process concerns in terminations,

heightened standards apply to legal and factual sufficiency review of a termination decision. See

id. “Conservatorship determinations, in contrast, are subject to review only for abuse of discretion,

and may be reversed only if the decision is arbitrary and unreasonable.” Id.

Section 153.131 of the Family Code provides that a parent shall be appointed sole

managing conservator or both parents shall be appointed joint managing conservators “[u]nless

the court finds that appointment of the parent . . . would not be in the best interest of the child

because the appointment would significantly impair the child’s physical health or emotional

development.” TEX. FAM. CODE ANN. § 153.131(a). “It is a rebuttable presumption that the

appointment of the parents of a child as joint managing conservators is in the best interest of the

- 14 -
 04-18-00949-CV

child.” Id. § 153.131(b). “A finding of a history of family violence involving the parents of a child

removes the presumption under this subsection.” Id.

As the sole remaining parent, J.C.R.’s father is entitled to appointment as sole managing

conservator of J.C.R. in the absence of a finding that his appointment would not be in J.C.R.’s best

interest because it would significantly impair J.C.R.’s physical health or emotional development.

“[I]n an original proceeding for a conservatorship determination, even ‘evidence that the nonparent

would be a better custodian’ is insufficient to support the appointment of a nonparent as managing

conservator in preference to a parent.” In re M.T.C., 299 S.W.3d 474, 481 (Tex. App.—Texarkana

2009, no pet.) (quoting Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)). “Rather, the

nonparent is required to ‘affirmatively prove by a preponderance of the evidence that appointment

of the parent as managing conservator would significantly impair the child, either physically or

emotionally.’” Id. (quoting Lewelling, 796 S.W.2d at 167) (emphasis in original).

Diana H.’s entire argument regarding J.C.R.’s father is as follows:

The evidence showed that father had not seen the child in years and despite being
ordered to pay child support years before failed to do so. Further, there was a history
of domestic violence regarding the father. Thus, it was an abuse of discretion to
name father sole managing conservator.

The only evidence of J.C.R.’s father committing domestic violence against Diana H. came from

Diana H.’s own testimony and her statements to the caseworker. The trial court could have

reasonably determined that Diana H.’s testimony was not credible. See In re K.G., 350 S.W.3d

338, 353 (Tex. App.—Fort Worth 2011, pet. denied) (explaining it is “the factfinder’s province”

to “weigh witness credibility issues that depend on the appearance and demeanor of the

witnesses”); cf. TEX. FAM. CODE ANN. § 153.004 (proving that in determining whether there is

credible evidence of a history or pattern of past or present family violence by a parent, the court

- 15 -
 04-18-00949-CV

shall consider whether a protective order was rendered against the parent during the two-year

period preceding the filing of the suit or during the pendency of the suit).

Additionally, while the evidence was undisputed that J.C.R.’s father had not had a

relationship with J.C.R. in the four years before the filing of this termination proceeding, there was

other evidence that J.C.R.’s father has completed his service plan, J.C.R. and his father now have

a relationship, and J.C.R. is flourishing while living with his father and grandmother. We therefore

find no abuse of discretion by the trial court in appointing J.C.R.’s father sole managing

conservator.

We affirm the trial court’s order terminating Diana H.’s parental rights.

Liza A. Rodriguez, Justice

- 16 -