A. D. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00140-CV

A. D., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-21-006966, THE HONORABLE AURORA MARTINEZ-JONES, JUDGE PRESIDING

OPINION

A.D. (Mother) appeals from the trial court’s decree terminating her parental rights

to her son Michael following a bench trial.1 The trial court found that termination of Mother’s

parental rights was in Michael’s best interest and that Mother constructively abandoned him and

failed to comply with the requirements of a court order establishing the actions necessary for her

to obtain his return. See Tex. Fam. Code § 161.001(b)(1)(N), (O), (b)(2). On appeal, Mother

contends that her appointed trial counsel provided ineffective assistance and challenges the legal

and factual sufficiency of the trial court’s best-interest finding and the findings regarding the two

statutory predicate grounds for termination. We will affirm the trial court’s termination decree.

1
To protect the child’s privacy, we will refer to him by a pseudonym and will refer
to family members by their relationships to him. See Tex. Fam. Code § 109.002(d); Tex.
R. App. P. 9.8. Father’s parental rights were also terminated after he signed an affidavit of
relinquishment, and he has not appealed the decree.
 BACKGROUND

This case involves the termination of Mother’s rights to her son Michael, who was

almost one and half years old at the time of termination in March 2023. The affidavit in support

of Michael’s removal states that the Department of Family and Protective Services

(“Department”) received a report in October 2021 alleging that Mother tested positive for

amphetamines at his birth and was neglectfully supervising him. The hospital staff believed that

Parents were both on drugs while at the hospital, and Parents got into an argument requiring

hospital security to become involved repeatedly. Approximately one week later, a Department

investigator talked with Parents, and Mother stated that she took another drug test and believed

that she would test positive for opioids because the hospital prescribed her drugs when she gave

birth to Michael. The hospital social worker confirmed that the hospital gave Mother oxycodone

during her time at the hospital.

In November 2021, the Department received another complaint alleging

neglectful supervision after Parents brought Michael to the hospital. During this visit, Mother

repeatedly scratched herself, and Parents asserted that they brought Michael in because he had a

fever and because they believed that there were worms or parasites on all three of them;

however, the hospital staff did not see any worms or parasites. The hospital staff believed that

Parents were using drugs due to their “high energy” and were unable to care for Michael. When

the Department responded to the report, a Department employee found Mother passed out on a

couch in Michael’s hospital room with her arm draped over his face and mouth in a manner that

“could have easily suffocated” him, and Mother would not wake up despite repeated efforts to

rouse her for several minutes. Following this encounter, the Department took emergency

custody of Michael.

2
 Under the terms of a temporary order from March 2022, Mother was ordered to

submit to random drug tests; participate in a substance abuse assessment with the offices of

Outreach Screening, Assessment, and Referral (OSAR) and follow all recommendations made;

participate in and successfully complete individual therapy and follow all recommendations

made; attend and complete a Nurturing Parenting Program; participate in a psychological

evaluation and follow all recommendations made; obtain and maintain a safe and stable home;

notify the Department of any change of address or telephone number; successfully complete

parent coaching; and provide verification of employment. The order also warned that the failure

to submit to drug testing would result in the missed test’s being deemed a positive one. A

permanency-hearing order from February 2023 incorporated the same requirements listed above

but also required Mother to submit to a new OSAR evaluation. The order also specified that

Mother did not appear at the hearing.

During the trial, a Department caseworker assigned to this case in November

2022 testified that the Department became involved in this case after developing concerns that

Parents were using controlled substances. Further, she testified that after the Department was

granted temporary managing conservatorship, Parents were ordered to complete the services and

other requirements set out above as part of a reunification plan. Next, the caseworker explained

that although Mother submitted to one of the four OSAR referrals made in this case, she did not

complete any of the other ordered services. Additionally, the caseworker testified that although

Mother did submit to some drug tests, she was not compliant with the testing requirement.

Further, the caseworker related that Mother did not communicate with her or the previous

caseworker. Although the caseworker acknowledged that Mother did visit Michael, she

explained that Mother did not visit consistently, including only ten times following removal

3
despite a weekly visitation schedule with the last visit on October 3, 2022, nearly five months

before the trial date. Further, the caseworker testified that Mother had no more contact with

Michael following that date. The caseworker emphasized that she tried to reach Mother by

going to her home, calling her, texting her, emailing her, and calling her attorney but that Mother

never responded.

Additionally, the caseworker explained that Mother was not present for the trial

and that the Department did not know where Mother was living. Further, the caseworker

explained that Mother gave birth to another child in November 2022, that the Department

received a new complaint about substance abuse by Parents and about potential domestic abuse,

that Parents fled during that subsequent investigation, and that the Department had not been

able to locate Mother since she fled. The caseworker testified that Mother had not addressed

the drug-use and domestic-violence safety concerns identified by the Department and that

termination of Mother’s rights was in Michael’s best interest because she had no relationship

with him, did not show that she could provide a safe or stable home, and did not complete

her services.

When discussing Michael, the caseworker explained that he had been in a foster

home since November 2021, was “doing great” in the placement, was “well bonded” with the

foster parents, recognized them as his caregivers, and went to them for support. Similarly, the

caseworker stated that the foster parents met all his physical and medical needs. Next, the

caseworker explained that the foster parents are licensed to adopt and want to adopt him if

Parents’ rights were terminated. Further, the caseworker explained that he needs permanency to

allow him to live a normal and happy life without Department involvement.

4
 After the caseworker finished testifying, a Department caseworker supervisor

was called to the stand. In his testimony, the supervisor explained that he was assigned to

another case involving Mother recently, that the Department was investigating allegations that

Mother used controlled substances in December 2022, that Mother did not cooperate with

the investigation, and that the Department could not locate Mother after exhausting all

possible efforts.

The Court Appointed Special Advocate (“CASA”) volunteer in this case testified

that she had been assigned to the case in January 2022, that the safety concerns at the beginning

of the case involved substance abuse and domestic violence between Father and Mother, and

that Parents never addressed those concerns. The CASA explained that she met with Parents

multiple times between March 2022 and October 2022 during visits with Michael. When

describing the visits, the CASA related that Parents ended eight of the ten visits early after

Michael started crying, that Mother did not play with Michael, and that Michael looked at

Parents as strangers. Further, the CASA recalled that she became concerned after noticing

during the first visit that Mother had bruising on her arm. Additionally, the CASA explained that

during the next visit she asked if Parents were still together, that Father said yes, and that Mother

shook her head no while standing behind Father. When discussing how Mother answered the

question out of Father’s view, the CASA explained that it was concerning because of the power

dynamics that can be at play in domestic-abuse situations. The CASA related that she was

unable to get in touch with Mother after October 3, 2022, despite repeated texting and calling.

Additionally, the CASA testified that the Department initially placed Michael

with Father’s brother under the terms of a safety plan but later removed him after learning that

the safety plan had not been complied with. After the Department discovered that there were no

5
other viable family-placement options, the Department placed Michael with the foster parents.

When discussing the foster parents, the CASA said that she had no concerns about Michael’s

placement with them and that the foster parents wanted to adopt him. Additionally, she related

that it was in Michael’s best interest to have Mother’s rights terminated because the safety

concerns had not been alleviated, because Mother had not completed her services, because

Mother inconsistently visited with Michael, because Mother refused to submit to all of the

requested drug tests, and because Mother could not be located.

Prior to the witnesses’ testifying, the following exhibits were admitted into

evidence without objection: the affidavit in support of removal; the temporary order and the

permanency-hearing order discussed above; drug-test results for Mother showing positive results

for oxycodone in October 2021 and positive results for marijuana in January 2022 and February

2022; drug-test results for Father showing positive results for marijuana in February 2021,

January 2022, and February 2022; and Father’s affidavit of relinquishment.

After considering the evidence, the trial court determined that termination of

Mother’s parental rights was in Michael’s best interest and that Mother constructively abandoned

Michael and failed to comply with the requirements of a court order setting out actions necessary

for his return. Accordingly, the trial court terminated Mother’s parental rights.

Mother appeals the trial court’s termination decree.

DISCUSSION

In her first issue on appeal, Mother contends that her trial attorney provided

ineffective assistance. In her next three issues, Mother asserts that the evidence presented at trial

was legally and factually insufficient to support the trial court’s determinations that termination

6
of her parental rights was in Michael’s best interest and that the requirements for the statutory

predicates under subsections 161.001(b)(1)(N) and (b)(1)(O) were met. We will address the

sufficiency challenges first before addressing Mother’s ineffective-assistance claim. See In re

J.S., No. 09-08-00536-CV, 2009 WL 2045199, at *1 (Tex. App.—Beaumont July 16, 2009,

no pet.) (mem. op.) (addressing legal-sufficiency issues before addressing lack-of-counsel claims

because “if sustained the issues would provide greater relief”).

Legal and Factual Sufficiency

To terminate an individual’s parental rights, the Department must prove by clear

and convincing evidence that the parent engaged in conduct constituting at least one statutory

ground for termination in the Family Code and that termination is in the child’s best interest.

Tex. Fam. Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). “‘Clear and

convincing evidence’ means 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 § 101.007. When reviewing a termination order, appellate courts defer to the

factfinder, who, “having full opportunity to observe witness testimony first-hand, is the sole

arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,

503 (Tex. 2014).

In legal-sufficiency reviews, appellate courts consider undisputed evidence

contrary to the finding at issue but assume that the factfinder resolved disputed facts in favor of

the finding. In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). The evidence is legally sufficient

“if, viewing the evidence in the light most favorable to the fact-finding and considering

undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that

7
the finding was true.” Id. at 631. In contrast, for factual-sufficiency reviews, appellate courts

weigh the disputed evidence contrary to the finding against the evidence supporting the finding

and ascertain “whether disputed evidence is such that a reasonable factfinder could not have

resolved it in favor of the finding.” Id. “Evidence is factually insufficient if, in light of the entire

record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding

is so significant that the factfinder could not have formed a firm belief or conviction that the

finding was true.” Id.

Constructive Abandonment

The statutory predicate grounds at issue in this case are found in subsections

161.001(b)(1)(N) and (b)(1)(O) of the Family Code. See Tex. Fam. Code § 161.001(b)(1)(N), (O).

Under the first ground, a trial court may terminate a parent’s rights if the parent “constructively

abandoned the child who has been in the permanent or temporary managing conservatorship of

the Department . . . for not less than six months, and” if the following occurred:

(i) the department has made reasonable efforts to return the child to the parent;

(ii) the parent has not regularly visited or maintained significant contact with the
child; and

(iii) the parent has demonstrated an inability to provide the child with a safe
environment[.]

Id. § 161.001(b)(1)(N). The first element focuses on the Department’s conduct, but the second

and third elements focus on the parent’s conduct. In re L.E.R., 650 S.W.3d 771, 785 (Tex.

App.—Houston [14th Dist.] 2022, no pet.).

In her second issue on appeal, Mother concedes that Michael was in the

“conservatorship of the Department” for the requisite six-month period and does not dispute that

8
she did not regularly visit or maintain significant contact with Michael. However, she does

contend that the evidence was insufficient to establish that the Department made reasonable

efforts to return Michael to her care and that she demonstrated an inability to provide Michael

with a safe environment. When presenting these arguments, Mother asserts that there was no

evidence at the time of the removal that she had consumed any drugs other than the oxycodone

that the hospital prescribed when she gave birth to Michael. Although Mother acknowledges

that drug-test results showed she tested positive for marijuana after the removal, she contends

that there is no evidence that the use of marijuana harmed or impaired Michael’s physical or

mental well-being or resulted in his being abused or neglected. Moreover, Mother suggests that

the Department’s decision to require Mother to complete a list of services was not a reasonable

effort to return Michael to her custody because the only evidence of concerning behavior

“stemmed from taking the medications prescribed while hospitalized.”

In reviewing the evidence regarding the efforts to return a child, appellate

courts focus on the Department’s efforts, not the parent’s efforts. See Tex. Fam. Code

§ 161.001(1)(N)(i). “Generally, implementation of a family service plan by [the Department]

is considered a reasonable effort to return the child to the parent.” See In re A.L.H.,

468 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.). As set out above, the

Department developed a service plan for Mother, and the trial court ordered that Mother

complete services as part of the reunification process. Moreover, when Mother stopped

communicating with the Department, stopped attending visits with Michael, and failed to comply

with the terms of the service plan, the Department caseworker repeatedly tried to reach

Mother by going to her home, calling her, emailing her, texting her, and calling her attorney.

Additionally, when Michael was initially removed, the Department made attempts to place him

9
with a family member before placing him in foster care when no other viable family options

were available. See In re L.C.M., 645 S.W.3d 914, 922 (Tex. App.—El Paso 2022, no pet.)

(determining that “the Department’s efforts to place the child with relatives constitutes

legally and factually sufficient evidence that reunification was attempted”); see also In re G.C.S.,

657 S.W.3d 114, 132 (Tex. App.—El Paso 2022, pet. denied) (noting that returning-child-to-

parent element does not necessarily require proof that child was physically delivered to parent).

“Based on the existence of a service plan” as well as testimony that the

caseworker “made repeated attempts to communicate with” Mother through various means and

that the Department attempted a family placement, “the trial court could have resolved any

dispute about the evidence in favor of its finding that [the Department] made reasonable efforts

to return the child.” See C.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00229-CV,

2017 WL 3471072, at *5 (Tex. App.—Austin Aug. 9, 2017, no pet.) (mem. op.).

Turning to the final challenged element—whether Mother demonstrated an

inability to provide Michael with a safe environment—we note that although Mother asserts that

the only evidence concerning any drug use around the time of removal showed that she tested

positive for a drug that was prescribed to her by the hospital, other evidence supported a

determination that Mother demonstrated an inability to provide Michael with a safe environment.

For example, the removal affidavit admitted into evidence asserted that the Department initially

became involved in this case after a hospital reported that Mother tested positive for

amphetamines when giving birth to Michael. Cf. A.S. v. Texas Dep’t of Fam. & Protective

Servs., 665 S.W.3d 786, 790 n.2 (Tex. App.—Austin 2023, no pet.) (explaining that trial court

cannot consider allegations in removal affidavit in review of evidence if removal affidavit is not

10
admitted into evidence). During that stay at the hospital, Mother and Father got into disputes

requiring intervention by hospital security.

When Mother and Father took Michael to the hospital a few weeks later, the

hospital staff reported to the Department that they believed that Mother was using illegal

substances and could not properly care for Michael after observing her behavior indicating

that she was in an altered state, including her hallucinating that Parents and Michael had

parasites on their skin. Once the Department investigator arrived, the investigator had difficulty

waking Mother up and found her asleep on a couch with her arm draped dangerously over

Michael’s face.

In addition, although Mother did submit to some drug testing, she did not submit

to all of the required drug testing, and “the trial court could infer . . . that Mother’s test results

would have been positive if she had submitted to testing” on the missed occasions. See In re

A.O., No. 05-21-00789-CV, 2022 WL 620631, at *7 (Tex. App.—Dallas Mar. 3, 2022, pet.

denied) (mem. op.). Moreover, as set out above, Mother stopped responding to communications

from the Department, including ones in which the caseworker went to her home, and did not

inform the Department about her decision to move. See In re M.V.G., 440 S.W.3d 54, 62

(Tex. App.—Waco 2010, no pet.) (noting that Department employee visited home multiple

times but that no one answered when considering whether parent demonstrated ability to provide

safe environment).

Additionally, Mother failed to complete therapy and the parenting classes as

required, and there is no indication that Mother had steady housing and employment at the time

of trial. See In re J.J.O., 131 S.W.3d 618, 630 (Tex. App.—Fort Worth 2004, no pet.) (attending

only half of her parenting classes, lacking steady housing and employment, and missing

11
opportunity for counseling and psychological evaluation, among other factors, demonstrated

parent’s inability to provide child with safe environment). Moreover, the evidence established

that Mother only attended ten visits with Michael despite having a weekly visitation date, that

Mother ended most of the visits early when Michael cried, that Mother did not play with

Michael, and that Mother stopped visiting entirely nearly five months before trial. Cf. In re K.G.,

350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet. denied) (noting in analysis regarding

Mother’s ability to provide safe environment that she “dropped out of touch with CPS for

several months”). Further, evidence was presented at trial demonstrating that Mother stopped

communicating with the Department and moved in an effort not to cooperate with another

Department investigation also addressing concerns about drug use and domestic violence after

Mother gave birth to another child.

Accordingly, the trial court could have resolved any factual disputes in favor of its

determination that Mother failed to establish her ability to provide Michael with a safe

environment. See In re J.J.O., 131 S.W.3d at 630; see also In re G.P., 503 S.W.3d 531, 534

(Tex. App.—Waco 2016, pet. denied) (explaining that “[b]y not providing the Department with

any information about her living or employment circumstances, failing to make child support

payments, failing to seek out and accept counseling services, refusing to take required drug

tests, and failing to even maintain contact with [the child], the trial court could have reasonably

concluded that [the parent] failed to provide [the child] with a safe environment”).

After considering the relevant factors under the appropriate standards of review,

we conclude that the evidence is legally and factually sufficient to support the trial court’s

findings that Mother constructively abandoned Michael. For these reasons, we overrule

Mother’s second issue on appeal. Because only one predicate violation under subsection

12
161.001(b)(1) is necessary to support a termination judgment, we need not address Mother’s

third issue challenging the sufficiency of the evidence supporting the trial court’s finding that

she failed to comply with an order setting out the steps necessary for her to obtain the return

of Michael. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re S.L., 421 S.W.3d 34, 37

(Tex. App.—Waco 2013, no pet.).

Best Interest

In her fourth issue on appeal, Mother contends that the evidence was legally and

factually insufficient to establish that it was in Michael’s best interest that her parental rights be

terminated. More specifically, Mother asserts that the evidence regarding Michael’s best interest

was limited to the caseworker’s testimony that Michael did not have a relationship with Mother

and Father, that Mother and Father could not provide him with a stable and safe home, and that

Mother and Father had not addressed the concerns regarding domestic violence and drug use

and to the CASA’s testimony that Parents’ rights should be terminated because the concerns

that initiated the case had not been alleviated. Based on the preceding, Mother contends that

this evidence was insufficient to support the trial court’s best-interest determination. See Tex.

Fam. Code § 153.131 (noting that there is rebuttable presumption that parent be appointed as

managing conservator).

The determination regarding whether termination is in a child’s best interest

“is child centered and focuses on the child’s well-being, safety, and development.” In re A.C.,

560 S.W.3d at 631. It is guided by multiple non-exclusive factors, including the following: (1) the

child’s wishes, (2) the child’s physical and emotional needs, (3) the physical and emotional

danger to the child now and in the future, (4) the parental abilities of the people seeking custody,

13
(5) programs available to help those people, (6) the plans for the child by those people or the

agency seeking custody, (7) the stability of the home or proposed placement, (8) the parent’s acts

or omissions indicating that the parent-child relationship is improper, and (9) any excuse for

the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The

Department need not prove all the factors, and the absence of evidence for some of the factors

does not preclude a finding that termination is in the child’s best interest. Spurck v. Texas Dep’t

of Fam. & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.). “While

no one factor is controlling, the analysis of a single factor may be adequate in a particular

situation to support a finding that termination is in the child’s best interest.” Id. Evidence

pertaining to a statutory ground for termination may also be probative of the best-interest

determination. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

“When considering the child’s best interest, we may take into account that a

parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor

judgment.” In re M.C., 482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied).

“Parental drug abuse, which reflects poor judgment, is also a factor that may be considered when

determining the child’s best interest.” Id. “Further, the amount of contact between the parent

and child and the parent’s failure to provide financial and emotional support, continuing criminal

history, and past performance as a parent are all relevant in determining the child’s best interest.”

Id. Appellate courts may “measure a parent’s future conduct by his or her past conduct to aid in

determining whether termination of the parent-child relationship is in the best interest of the

child.” See In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.).

Although Michael was too young to testify regarding his desires for placement,

see In re D.A.B., No. 04-19-00629-CV, 2020 WL 1036433, at *7 (Tex. App.—San Antonio

14
Mar. 4, 2020, no pet.) (mem. op.) (explaining that three-year-old child was too young to express

desires), we do note that Michael was removed from Mother’s custody shortly after his birth,

bonded with the foster parents, and recognized the foster parents as his caregivers, see In re

S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San Antonio 2017, pet. denied) (noting that “[w]hen

children are too young to express their desires, the fact finder may consider that the children

have bonded with the foster family, are well-cared for by them, and have spent minimal

time with a parent” (quoting In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]

2014, no pet.))).

Regarding Michael’s emotional and physical needs and the emotional and

physical danger to him, his basic needs include food, clothing, shelter, regular medical and dental

care, and a safe and nurturing home. See In re L.S., No. 02-16-00197-CV, 2016 WL 4699199,

at *6 (Tex. App.—Fort Worth Sept. 8, 2016, no pet.) (mem. op.). No evidence was introduced

regarding Mother’s paying child support. Moreover, because Mother did not respond to the

Department’s communication attempts and stopped participating in the case, no evidence was

introduced concerning her employment status, the safety and suitability of her current home, and

her plan to provide for Michael’s basic needs. See J.S. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-22-00054-CV, 2022 WL 2182615, at *10 (Tex. App.—Austin June 17, 2022, pet.

denied) (mem. op.) (noting that because parent did not communicate or respond to Department’s

communications, Department could not “assess whether his residence would be appropriate for

young children or whether he would be able to provide his sons with stable support”); In re

J.L.G., No. 06-16-00087-CV, 2017 WL 1290895, at *6 (Tex. App.—Texarkana Apr. 6, 2017, no

pet.) (mem. op.) (emphasizing in best-interest analysis that parent did not have plan to provide

child with safe and stable home); see also In re J.G., No. 02-20-00038-CV, 2020 WL 3410503,

15
at *9 (Tex. App.—Fort Worth May 28, 2020, no pet.) (mem. op.) (stating that “[t]he trial

court was entitled to compare Father’s lack of plans to the Department’s plan in considering

the best interests of the children”). Importantly, Mother stopped attending visits and stopped

participating in the case months before trial and did not attend trial or provide any excuse for not

attending. See In re A.J.D.-J., __ S.W.3d __, No. 01-22-00724-CV, 2023 WL 2655736, at *8

(Tex. App.—Houston [1st Dist.] Mar. 28, 2023, no pet.) (noting that “when a parent fails to

attend trial in a parental-termination case without a valid excuse for his or her failure to do so,

the factfinder may reasonably infer that the parent is indifferent to the outcome”).

Additionally, the removal affidavit stated that Mother tested positive for

amphetamines when she gave birth to Michael before later testing positive for opioids prescribed

by the hospital and displayed behavior consistent with drug use in the following weeks, and

Mother did not submit to all of the required drug testing and tested positive for marijuana during

two of the tests that she took. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth

2007, no pet.) (noting that parental drug use is relevant to best-interest determination). Along

those lines, after Mother gave birth to another child following the removal in this case, the

Department received another report concerning Mother’s use of illegal drugs and about domestic

violence between Mother and Father. In re J.G., 2020 WL 3410503, at *7 (explaining that “[t]he

trial court was free to measure Father’s potential future conduct in providing for the emotional

and physical needs of the children based on Father’s past conduct”). Moreover, other than

completing one of the four OSAR referrals and submitting to some drug tests, Mother did not

comply with the requirements of her service plan. See In re J.M.T., 519 S.W.3d 258, 269-70

(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (emphasizing in best-interest analysis that

parent “failed to complete all of the tasks and services required in his service plan”); see also

16
In re A.J.D.-J., 2023 WL 2655736, at *6 (observing that “when a parent does not try to abide

by the plan, the factfinder may reasonably infer the parent is indifferent to the goal of family

reunification”).

Further, the caseworker testified that Michael was doing well in his placement

with the foster parents, that the foster parents were the only parents Michael has known, and that

the foster parents met all of his physical and medical needs, and the CASA explained that

Michael was placed with the foster parents when he was less than a month old. See In re L.W.,

No. 01-18-01025-CV, 2019 WL 1523124, at *17 (Tex. App.—Houston [1st Dist.] Apr. 9, 2019,

pet. denied) (mem. op.) (considering in best-interest analysis evidence of children’s doing well in

placement with foster parents, who met children’s needs). In contrast, the CASA related that

Mother only attended ten visits with Michael since his removal, that she ended eight of the visits

early when he started crying, and that she did not play with him. In addition, the caseworker

related that the foster parents have obtained a license to adopt and plan to adopt Michael if

Parents’ rights were terminated. See D.O. v. Texas Dep’t of Hum. Servs., 851 S.W.2d 351, 358

(Tex. App.—Austin 1993, no writ) (observing that best-interest determination may consider

whether termination would allow adoption to occur), disapproved on other grounds by In re

J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex. 2002). Similarly, the caseworker emphasized that

Michael needed permanency to allow him to live a happy life without the Department’s being

involved, and the CASA testified that it was in Michael’s best interest to have Mother’s rights

terminated. See In re S.J.R.-Z., 537 S.W.3d at 695 (observing that “establishing a stable,

permanent home for a child is a compelling interest for the government” (quoting Dupree v.

Texas Dep’t of Protective & Reg. Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no writ))).

17
 After considering the relevant factors under the appropriate standards of review,

we conclude that the evidence is legally and factually sufficient to support the trial court’s

finding that termination of the parent-child relationship is in Michael’s best interest.

Accordingly, we overrule Mother’s fourth issue on appeal.

Effective Assistance of Counsel

In her first issue on appeal, Mother contends that her appointed trial attorney

provided ineffective assistance. As support, Mother highlights that her attorney did not

make any objections to the admission of the six exhibits offered by the Department, waived

making an opening argument, did not cross-examine the Department’s three witnesses, did not

call any witnesses, did not make a closing argument, and made no objection to the trial

court’s taking judicial notice of its file. Moreover, Mother highlights that although her

attorney included in her original answer the defense that she made a good-faith effort to

comply with the order setting out actions needed to obtain the return of Michael and that

her failure to comply was not her fault, her attorney did not present any evidence or make

any argument regarding that defense. Similarly, Mother emphasizes that her attorney did not

ask any questions regarding the alleged drug use and domestic violence, including asking

questions about how Mother had been prescribed opiates while in the hospital and about what

harm Michael experienced as a result of the alleged drug use. Further, Mother asserts that her

attorney did not undermine the reasonableness of the service plan requirements pertaining to

drug use and domestic violence on the ground that those requirements targeted problems that

“did not exist.” Additionally, Mother highlights that her attorney failed to argue that termination

was not proper for failure to comply with a court order because the governing statute

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requires proof that the child was removed for abuse or neglect, which Mother contends did

not occur in this case. See Tex. Fam. Code § 161.001(b)(1)(O). In light of the preceding,

Mother insists that her trial attorney failed to comply with the statutory requirement

obligating attorneys representing parents to become familiar with and implement the American

Bar Association’s standards of practice. See id. § 107.0131(a)(1)(I); see also American Bar

Ass’n Standards of Prac. for Att’ys Representing Parents in Abuse and Neglect Case,

www.americanbar.org/content/dam/aba/administrative/child_law/aba-parent-rep-stds.pdf (last

visited June 19, 2023) (listing obligations for attorneys representing parents, including preparing

and making objections, presenting and cross-examining witnesses, and requesting opportunity to

make opening and closing argument). Further, Mother contends that her attorney’s inactions

constructively denied her the assistance of counsel and that this denial is presumptively

prejudicial. See United States v. Cronic, 466 U.S. 648, 659 (1984).

The statutory right to counsel in parental-rights termination cases includes, as a

matter of due process, the right to effective counsel. C.S.F. v. Texas Dep’t of Fam. & Protective

Servs., 505 S.W.3d 618, 619 (Tex. 2016). Proving ineffective assistance of counsel requires

showing: (1) commission of errors so serious that counsel was not functioning as “counsel”

guaranteed by the Sixth Amendment, and (2) counsel’s deficient performance prejudiced the

defense—i.e., “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (quoting Strickland

v. Washington, 466 U.S. 668, 687 (1984)). We must determine “whether counsel’s defective

performance caused harm; in other words, whether ‘there is a reasonable probability that, but for

counsel’s unprofessional error(s), the result of the proceeding would have been different.’” Id.

at 549-50 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “Thus, an

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ineffective assistance of counsel 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 336,

342 (Tex. 2009). An assertion of ineffective assistance will be sustained only if the record

affirmatively supports such a claim. Lockwood v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-12-00062-CV, 2012 WL 2383781, at *5 (Tex. App.—Austin June 26, 2012, no pet.)

(mem. op.). The parent has the burden to prove by a preponderance of the evidence that counsel

was ineffective. A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 707 (Tex.

App.—Austin 2019, pet. denied).

“With respect to whether counsel’s performance in a particular case is deficient,

we must take into account all of the circumstances surrounding the case, and must primarily

focus on whether counsel performed in a ‘reasonably effective’ manner.” In re M.S., 115 S.W.3d

at 545. “[C]ounsel’s performance falls below acceptable levels of performance when the

‘representation is so grossly deficient as to render proceedings fundamentally unfair[.]’” Id.

(quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim App. 1983)). “In this process, we

must give 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).

“The challenged conduct will constitute ineffective assistance only when ‘the conduct was so

outrageous that no competent attorney would have engaged in it.’” In re D.T., 625 S.W.3d 62,

74 (Tex. 2021) (quoting In re M.S., 115 S.W.3d at 545). “Ordinarily, counsel should not be

condemned as unprofessional or incompetent without an opportunity to explain the challenged

actions.” In re S.L., 188 S.W.3d 388, 395 (Tex. App.—Dallas 2006, no pet.). “In a parental-

rights termination case where the parent asserts on appeal the ineffective assistance of trial

20
counsel, but nothing in the record indicates trial counsel’s reasons or strategies for the

complained-of conduct, the lack of a record is practically always fatal to the parent’s appellate

issue.” In re K.K., No. 10-04-00303-CV, 2006 WL 561820, at *3 (Tex. App.—Waco Mar. 8,

2006, no pet.) (mem. op.).

The standard of review is more deferential to counsel’s actions when the claim is

made for the first time on appeal because the reasonableness of counsel’s choices typically

involves facts not appearing in the appellate record. In re J.J., 647 S.W.3d 524, 530 (Tex.

App.—Texarkana 2022, no pet.). “When the record is silent regarding trial counsel’s reasons for

his actions, we may not speculate to determine whether trial counsel is ineffective.” In re

L.D.L.H., No. 04-15-00146-CV, 2015 WL 6507834, at *4 (Tex. App.—San Antonio Oct. 28,

2015, pet. struck) (mem. op.). “Thus, when the record is silent regarding counsel’s reasons for

his conduct,” as it is here, “we defer to counsel’s decision if there is at least the possibility that

the conduct could have been legitimate trial strategy.” In re S.L., 188 S.W.3d at 395. Stated

another way, if counsel “may have acted in accordance with a plausible strategy,” we will not

find counsel’s conduct deficient. See In re L.G.R., 498 S.W.3d 195, 209 (Tex. App.—Houston

[14th Dist.] 2016, pet. denied).

As an initial matter, we emphasize that the record does not contain any

information regarding Mother’s trial attorney’s decision not to engage in the actions Mother

asserts she should have, and perhaps as importantly, the record does indicate that Mother’s

attorney was unable to have any interaction with or direction from Mother because Mother

was evading communication in an effort to avoid another investigation. Cf. Guzman v. State,

No. 04-08-00656-CR, 2009 WL 2413749, at *3 (Tex. App.—San Antonio Aug. 5, 2009, no pet.)

(mem. op., not designated for publication) (determining that defendant was not deprived of

21
effective assistance where record showed that he refused to cooperate with attorney’s efforts to

represent him). Moreover, although Mother’s trial counsel did not object to the trial being held

without Mother being present, the evidence presented at trial demonstrated that Mother was not

responding to communications, and her attorney could have strategically decided that the case

should proceed to avoid Mother being called as a witness or possibly to avoid the Department’s

obtaining and presenting more damaging evidence. See In re L.D.L.H., 2015 WL 6507834, at *4.

Additionally, the decisions regarding whether to waive an opening statement or

make a closing argument “are inherently strategic decisions.” In re T.N.J., No. 13-22-00553-CV,

2023 WL 2182421, at *3 (Tex. App.—Corpus Christi-Edinburg Feb. 23, 2023, no pet.) (mem.

op.). In this case, the Department gave a short opening statement identifying the grounds for

termination without providing any detail or argument addressing why termination was warranted,

and Mother’s attorney could have reasonably concluded that under the circumstances it was

better to forgo making an opening statement. See id. (noting that waiving opening argument

can be tactical decision because it prevents opposing party from getting preview of strategy).

Relatedly, by the time the decision regarding whether to present a closing argument had to be

made, evidence was presented establishing that Mother only attended a few visits with Michael

during the last sixteen months, had intentionally stopped communicating with the Department

and stopped attending visits with Michael in the five months leading up to trial, and had

complied with few of the service requirements, and Mother’s attorney could have reasonably

concluded that any attempt to justify those actions would ring hollow and merely highlight

those actions, particularly in the circumstances here where the Department made a short closing

argument and where any closing provided by Mother’s attorney might have encouraged a

more substantial closing from the attorney ad litem for Michael. See Yarborough v. Gentry, 540

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U.S. 1, 6 (2003) (noting that in some circumstances it makes “sense to forgo closing argument

altogether”); see also Forge v. State, No. 13-13-00120-CR, 2013 WL 7864083, at *4 (Tex.

App.—Corpus Christi-Edinburg Dec. 5, 2013, no pet.) (mem. op., not designated for publication)

(noting that defense attorney may have declined to assert right to make closing argument because

that would have resulted in State’s invoking its right to make closing argument).

Like decisions regarding whether to make or waive opening statements and

closing arguments, decisions regarding the cross-examination of witnesses are “inherently a

matter of trial strategy.” See Lansink v. State, No. 01-12-00121-CR, 2014 WL 690291, at *3

(Tex. App.—Houston [1st Dist.] Feb. 20, 2014, no pet.) (mem. op., not designated for

publication). “A decision not to cross-examine a witness can frequently be considered sound

trial strategy.” Id. “Cross-examination is inherently risky, and a decision not to cross-examine a

witness is often the result of wisdom acquired by experience in the combat of trial.” Ex parte

McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). In this case, Mother’s attorney

may have made the strategic decision not to cross-examine the witnesses, including on the topics

of drug use and domestic violence, “fearing adverse effects from such examination or fearing

that [s]he may inadvertently introduce damaging evidence,” particularly when the attorney

received no input from Mother. See Castillo v. State, No. 13-10-00317-CR, 2011 WL 3853939,

at *10 (Tex. App.—Corpus Christi-Edinburg Aug. 31, 2011, no pet.) (mem. op., not designated

for publication).

Concerning Mother’s claims regarding her attorney’s failure to call witnesses, a

decision regarding whether to call witnesses is a strategic decision “involving weighing risks and

benefits of testimony.” See Jones v. State, No. 05-19-01282-CR, 2021 WL 194107, at *3 (Tex.

App.—Dallas Jan. 20, 2021, no pet.) (mem. op., not designated for publication). Moreover, the

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failure to call witnesses “does not constitute ineffective assistance of counsel without showing

both that the witness[es were] available to testify, and that [their] testimony would have

benefitted” the party claiming ineffective assistance. Id. Here, although Mother highlights that

her attorney did not call witnesses, she does not specify what witnesses should have been called

or how their testimony would have helped. Moreover, as set out above, Mother’s attorney could

have determined that it was better for the case to proceed without Mother’s testifying. Mother’s

attorney also would have likely needed Mother’s input as to what witnesses might have helped

her case, but Mother chose not to participate in the proceedings.

Turning to Mother’s assertion that trial counsel improperly failed to object to the

trial court’s taking judicial notice of its file, we note that trial courts are allowed to take judicial

notice of their own orders and records, see In re R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—

San Antonio 2014, no pet.) (explaining that “a court may take judicial notice that a pleading has

been filed in the case, that it has signed an order, or of the law of another jurisdiction”); In re

J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San Antonio 2012, no pet.) (noting that trial court

may “take judicial notice of its own records in matters that are generally known, easily proven,

and not reasonably disputed”), and Mother’s attorney could have reasonably determined that it

would have been futile to object, see Wood v. State, 4 S.W.3d 85, 91 (Tex. App.—Fort Worth

1999, pet. ref’d).

Regarding the admission of the State’s exhibits, Mother’s trial attorney may have

elected not to object to the admission of the temporary order and permanency-hearing order

setting out the requirements for the return of Michael and stating that Mother did not appear for

the permanency hearing because testimony regarding those requirements and Mother’s failure to

appear would likely be admitted through the testimony of the Department’s caseworker and

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because the orders were already in the court’s file, of which the court could take judicial notice.

Turning to the removal affidavit and Mother’s drug tests, Mother’s attorney could have

reasonably concluded that the admission of those exhibits could have helped Mother’s case.

Cf. Phuthavong v. State, No. 01-17-00420-CR, 2018 WL 6215992, at *5 (Tex. App.—Houston

[1st Dist.] Nov. 29, 2018, pet. ref’d) (mem. op., not designated for publication) (determining that

failure to object to admission of exhibits was not ineffective assistance where it was “possible

that trial counsel strategically chose not to object because the [exhibits] helped the defense

highlight contradictions”). As set out previously, the removal affidavit referenced statements

from hospital staff relating that Mother had been prescribed an opiate around the time of

Michael’s birth, and the drug test result from around that time was consistent with the hospital

staff’s statement but also showed negative results for all of the other drugs tested. Similarly,

although the two other drug tests showed positive results for marijuana, they showed negative

results for all of the other drugs tested, including the drug leading to the initiation of this case.

Moreover, the final two exhibits—Father’s drug-test results and affidavit of relinquishment—did

not pertain to Mother.

Concerning the defenses that Mother suggests her trial attorney should have

presented, we note that Mother’s attorney initially suggested in an answer that termination for

failure to comply with a court order was not authorized in this case due to the defense set out

in subsection 161.001(d), which provides that termination may not be ordered if the parent

establishes that she made a good-faith effort to comply with the provisions of a court order and

that the failure to comply was not attributable to any fault of the parent. See Tex. Fam. Code

§ 161.001(d). Mother’s attorney could have concluded based on information she learned in the

months between the filing of the answer and trial and on the evidence presented at trial, that the

25
defense did not apply and made the strategic decision not to pursue it. See Magro-Malo v. State,

No. 08-08-00027-CR, 2009 WL 1717813, at *2 (Tex. App.—El Paso June 17, 2009, no pet.)

(op., not designated for publication) (determining that trial attorney’s decision not to pursue

defense was not outside zone of reasonable assistance after reasonably concluding that facts of

case did not raise defense); see also M.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-

00533-CV, 2021 WL 1418977, at *9 n.5 (Tex. App.—Austin Apr. 14, 2021, pet. denied) (mem.

op.) (explaining that evidence did not establish that Mother should be excused from compliance

due to subsection 161.001(d) where Mother refused to engage in services and did not testify

regarding her attempts to comply).

Similarly, Mother contends that her trial attorney should have but did not argue

that termination was not warranted under subsection 161.001(b)(1)(O) for failure to comply with

a court order because that provision requires that the child be initially removed for abuse or

neglect, which Mother asserts did not happen, and because the service requirements incorporated

into the order were based on alleged drug use and domestic violence that she contends did not

occur. However, as with her previous assertion, Mother’s trial attorney could have determined

based on the evidence—including evidence indicating that Mother used amphetamines, exhibited

an altered and hallucinatory state while caring for Michael, draped her arm dangerously over

Michael’s face, was involved in more than one incident with Father at the hospital requiring

intervention by security, failed to submit to the required drug tests, tested positive for drugs, and

behaved in a manner consistent with being abused and had bruises—that Michael was removed

for abuse or neglect and strategically chose not to pursue the defensive theories Mother asserts

here. See In re J.B., No. 02-18-00173-CV, 2018 WL 4626427, at *5-6 (Tex. App.—Fort Worth

Sept. 27, 2018, no pet.) (mem. op.) (per curiam) (determining that abuse-or-neglect element

26
of subsection 161.001(b)(1)(O) was satisfied, in part, by evidence of parent’s drug use and

failure to test); In re C.C., No. 10-16-00129-CV, 2016 WL 6808944, at *11 (Tex. App.—Waco

Nov. 16, 2016, no pet.) (mem. op.) (concluding that subsection 161.001(b)(1)(O) can be satisfied

by risk of abuse or neglect, which applied to removal of mother’s children because mother tested

positive for methamphetamine shortly before removal, had history of drug abuse, and exposed

children to domestic violence and drugs); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—

Fort Worth 2003, no pet.) (noting factfinder can infer drug use from refusal to drug test).

On this undeveloped record, we cannot conclude that trial counsel’s performance

fell outside the wide range of reasonable professional assistance or was “so grossly deficient as

to render [the] proceedings fundamentally unfair.” See In re M.S., 115 S.W.3d at 545 (quoting

Brewer, 649 S.W.2d at 630); see also Strickland, 466 U.S. at 689 (“[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.”). Accordingly, we overrule Mother’s first issue.

CONCLUSION

Having overruled Mother’s issues on appeal, we affirm the trial court’s final

decree terminating her parental rights to Michael.

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 __________________________________________
Thomas J. Baker, Justice

Before Justices Baker, Smith, and Jones*

Affirmed

Filed: June 21, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).

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