In the Interest of M.A.C., Jr., a Child v. the State of Texas ( 2023 )

AFFIRMED as MODIFIED; and Opinion Filed May 5, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01262-CV
IN THE INTEREST OF M.A.C., JR., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-21-00276-W
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Smith
Mother appeals from the trial court’s final order in a suit affecting the parent-
child relationship in which the trial court terminated her parental rights, appointed
the Department of Family and Protective Services (the Department) managing
conservator, and appointed Father as possessory conservator of M.A.C. Father has
not appealed. For the reasons discussed below, we affirm as modified the trial
court’s final order.
Factual and Procedural Background
On March 26, 2021, the Department filed a suit affecting the parent-child
relationship and sought protection and conservatorship of M.A.C., a child, and for
termination of Mother and Father’s parental rights of M.A.C. In her affidavit in
support of removal, Department investigator Samantha Barnett testified that the
Department received a referral alleging neglectful supervision of M.A.C. shortly
after he was born based on Mother’s parental rights of another child being previously
terminated. Barnett contacted Mother and performed an oral swab test for drugs.
Because the test was positive for amphetamines and methamphetamines, emergency
removal of M.A.C. was approved. Due to Mother’s failure to cooperate and threats
by Mother’s father, the Department sought a writ of attachment for the assistance of
law enforcement in removing M.A.C. On March 29, 2021, the trial court signed a
writ of attachment and an ex parte order for emergency care, appointing the
Department as temporary managing conservator of M.A.C. M.A.C. was two months
old at the time. The Department was unable to secure custody of M.A.C. until April
8, 2021, at which time Mother’s father gave M.A.C. to investigator Barnett.
The Department considered Mother’s father and mother for kinship
placement, but neither were selected as a placement option. Mother’s mother was
already caring for Mother’s older children and declined the opportunity to be
considered, and the Department concluded that Mother’s father was unable to
supervise or provide for the child’s needs based on his refusal to provide the
necessary information needed for a formal home assessment.
Following a temporary orders hearing on April 8, 2021, the trial court ordered
Mother and Father to complete the following services in order for M.A.C. to be
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returned to their care: a psychological or psychiatric evaluation, counseling,
parenting classes, drug and alcohol testing, and any other requirement set out in the
Department’s service plan. The Department remained temporary managing
conservator and Mother and Father were appointed possessory conservators with
limited access. M.A.C. was placed in foster care as none of the placements
suggested by Mother were approved.
According to the Department’s permanency reports, neither Mother nor
Father completed their services as ordered. Mother also wrote a letter to the foster
parents that was inappropriate and, as a result, the foster parents sought new
placement for M.A.C. At her May 21 visitation, she refused to give M.A.C. to the
caseworker until M.A.C. was evaluated at the emergency room. She was concerned
with two dry spots on his chest and stomach, a diaper rash, and congestion. A
Department supervisor and security guard had to be called and Mother’s father had
to be asked to leave because he instigated the incident and was verbally aggressive.
Mother and Father contested termination and sought to be appointed
managing conservators. The trial court heard brief testimony from Mother on
August 15, and recessed the trial until October 20, at Mother’s request. Because the
trial was continued, the court considered Father’s motion for placement and ordered
M.A.C. to be placed with Y.M., the mother of Father’s other child. Mother was
given limited, supervised visitation due to her prior behavior in contacting M.A.C.’s
caregivers and her behavior before the trial court. On November 17, 2022, the trial
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court entered a final order appointing the Department as managing conservator,
appointing Father as possessory conservator, and terminating Mother’s parental
rights. The trial court made the following relevant findings:
 appointment of a parent or both parents as managing conservator
would not be in the best interest of the child;
 appointment of the Department as permanent managing conservator
is in the best interest of the child;
 the child is currently placed with Y.M., and Y.M. agrees to
participate in the “Fostering Connections Program”;
 regardless of whether Y.M. becomes licensed under the Program,
the Department shall transfer permanent managing conservatorship
to Y.M. absent unforeseen circumstances that would warrant
removal of the child;
 appointment of Father as possessory conservator is in the best
interest of the child;
 termination of the parent-child relationship between Mother and
M.A.C. is in the best interest of the child;
 Mother knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or
emotional well-being of the child, pursuant to TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D);
 Mother engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or
emotional well-being of the child, pursuant to TEX. FAM. CODE §
161.001(b)(1)(E); and
 Mother failed to comply with the provisions of a court order that
specifically established the actions necessary for Mother to obtain
the return of the child, pursuant to TEX. FAM. CODE §
161.001(b)(1)(O).
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The trial court also ordered that Mother shall receive photographs of the child and
an update on the child’s welfare on certain dates each year.
Mother timely appealed and presents eight issues for our review: (1) the
judgment is void because the trial court’s jurisdiction was not properly extended
pursuant to section 263.401 of the family code; (2) the trial court erred in terminating
Mother’s parental rights when the Department announced at the hearing that it was
abandoning its request for termination of Mother’s parental rights; (3) Mother
received ineffective assistance of counsel; (4) Mother’s due process rights were
violated; (5)–(6) the evidence is legally and factually insufficient to support the best
interest finding; (7) the evidence is legally and factually insufficient to support the
appointment of CPS as the managing conservator; and (8) the final order of
termination should be modified to properly reflect the dates Mother is to receive
email communication regarding the child.
Trial Court’s Jurisdiction
Mother argues in her first issue that the trial court lost jurisdiction to hear the
case when it did not enter a proper extension order by the one-year dismissal date
for department-initiated termination suits pursuant to section 263.401 of the Texas
Family Code. She contends that the trial court granted a continuance of the trial
setting on February 7, 2022, to the date of dismissal on April 4, 2022, but failed to
extend the setting past the dismissal date. The Department argues that the trial court
did not lose jurisdiction because it properly extended the automatic dismissal
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deadline, as documented by its order nunc pro tunc, from April 4, 2022, until August
19, 2022.
Section 263.401 governs a trial court’s jurisdiction over suits affecting the
parent-child relationship filed by the Department in which the Department seeks
termination of the parent-child relationship or conservatorship of the child. TEX.
FAM. CODE § 263.401(a). Unless the court has commenced the trial on the merits or
granted an extension, the court loses its jurisdiction over the suit on the first Monday
after the first anniversary of the date the court rendered a temporary order appointing
the Department as temporary managing conservator. Id.; In re G.X.H., 627 S.W.3d
288, 295 n.4 (Tex. 2021) (explaining expiration of deadline without extension or
commencement of trial is jurisdictional). Section 263.401 further provides:
(b) Unless the court has commenced the trial on the merits, the court
may not retain the suit on the court’s docket after the time described by
Subsection (a) unless the court finds that extraordinary circumstances
necessitate the child remaining in the temporary managing
conservatorship of the department and that continuing the appointment
of the department as temporary managing conservator is in the best
interest of the child. If the court makes those findings, the court may
retain the suit on the court’s docket for a period not to exceed 180 days
after the time described by Subsection (a). If the court retains the suit
on the court’s docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically
dismissed if the trial on the merits has not commenced, which
date must be not later than the 180th day after the time described
by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the
child as necessary to avoid further delay in resolving the suit; and
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(3) sets the trial on the merits on a date not later than the date
specified under Subdivision (1).
TEX. FAM. CODE § 263.401(b). Therefore, to retain its jurisdiction, the trial court
must grant an extension, before the dismissal date passes, supported by findings that
extraordinary circumstances necessitate the child remaining in the Department’s
temporary managing conservatorship and that continuing the appointment of the
Department as temporary managing conservator is in the child’s best interest. In re
G.X.H., 627 S.W.3d at 295–97.
The parties do not dispute, and our review of the record confirms, that the trial
court rendered an order appointing the Department temporary managing conservator
on March 29, 2021, making April 4, 2022, the original one-year dismissal date.
Thus, unless the trial court commenced trial or granted an extension as permitted
under section 263.401 by April 4, the suit was automatically dismissed on April 4,
and any orders entered after that date were void. See id. at 296.
Trial was initially set for February 7, 2022. Mother filed a Motion for
Continuance and Extension of Dismissal Date on January 27, 2022, and an amended
motion on January 28. Mother alleged that the following extraordinary
circumstances necessitated the child remaining in the temporary managing
conservatorship of the Department: (1) her attorney was appointed on May 21, 2021;
(2) she was making progress with her services, but they were delayed due to her
incarceration in the Dallas County Jail for approximately four months; (3) the issue
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of paternity had come into question and Father was requesting paternity testing; and
(4) she needed more time to pursue additional home studies. In the motion, Mother
specifically requested that the trial court extend the April 4, 2022 dismissal date.
Father also filed a motion for continuance on January 28, 2022, and did not contest
Mother’s continuance or request for extension.
On February 2, 2022, the trial court entered an order of extension extending
the dismissal date until April 4, 2022, and setting the new trial date for that same
day. The order further provided that the trial court found that it was in the best
interest of the child and necessary for the administration of justice to extend the
pendency of the case pursuant to section 263.401(b). The trial court further found
that extraordinary circumstances necessitated the child remaining in the temporary
managing conservatorship of the department and that continuing the appointment of
the department as temporary managing conservator was in the best interest of the
child. The order included the following as extraordinary circumstances: (1) an
opportunity to pursue additional home studies; (2) additional time for Mother to
complete her services; and (3) paternity testing.
On April 4, the Department filed a motion for judgment nunc pro tunc
contending that the February 2, 2022 order of extension contained a clerical error:
the incorrect date for the extension of the dismissal deadline. The Department
claimed that the order should have stated that the date of dismissal was extended
until August 19, 2022, not April 4. On April 5, 2022, the trial court signed a Nunc
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Pro Tunc Order of Extension changing the date of dismissal on the order from April
4 to August 19. The order no longer provided a date for a trial setting, but other
documents show that the trial date was set for August 15, 2022.
Although the parties contest whether the trial court’s change was clerical,
making it a proper nunc pro tunc order, or judicial, we conclude that the trial court
properly extended the dismissal deadline by its April 4 docket entry and, thus, we
do not reach the nunc pro tunc issue.
As explained by the supreme court, section 101.026 of the family code
provides that a court may pronounce or render an order on its docket sheet. Id. at
297–298 (citing TEX. FAM. CODE § 101.026) (“pronouncement may be made orally
in the presence of the court reporter or in writing, including on the court’s docket
sheet or by a separate written instrument”)).
The docket entries for February 7, 2022, and April 4, 2022, appear below:
The February 7 entry resets the trial from February 7 to the date of dismissal in the
scheduling order, which is April 4. The April 4 entry resets the trial per the motion
for continuance and extension but does not include a new date. Like the supreme
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court in G.X.H., “[w]e conclude the only reasonable interpretation of this [April 4]
docket entry . . . is that the trial court granted both a continuance of the trial date and
an extension of the automatic dismissal date under section 263.401(b).” Id. at 298.
Unlike G.X.H., it is unclear whether the trial court held a hearing on April 4 to make
the necessary findings to support the extension. See id. at 299 (“Where, as here, the
trial court held an oral hearing on the proposed extension and the parties failed to
bring forth the record of that hearing on appeal, we will presume the trial court made
the necessary findings to support the extension orally on the record at the hearing.”).
However, Mother’s January motion for continuance asserted such facts were present
to support the necessary findings, and the trial court made those findings in its
February 2 written order. No other motion for continuance was filed in the interim.
Therefore, under this record, we conclude the trial court made the findings necessary
to retain this case on its docket and extended the dismissal date prior to its expiration.
Although the requirement of the trial court to grant an extension supported by
the necessary findings is jurisdictional, which the trial court satisfied as discussed
above, section 263.401(b)’s requirement that the trial court enter an order scheduling
a new dismissal date, making further temporary orders as necessary for the child,
and setting a new trial date is not jurisdictional. Id. at 300–301. Therefore, any
complaint regarding the trial court’s failure to render such order before the initial
dismissal date must be preserved for appellate review. Id. at 301. Because Mother
made no objections to the trial court’s April 5 order setting the new dismissal date
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as August 19, participated in the August 15 trial without objection, requested that
the August 15 trial be continued, and participated in the October 20 trial without
objection, Mother has waived any complaints about the trial court’s April 5 order
setting the new, extended date of dismissal. See TEX. R. APP. P. 33.1(a). Mother’s
first issue is overruled.
Proceeding to Termination
Mother argues in her second issue that the trial court erred in terminating
Mother’s parental rights when the Department unequivocally announced that it was
abandoning its request for termination of Mother’s parental rights. We disagree that
the Department unequivocally abandoned its request for termination.
When a party abandons a claim in its live pleading, that pleading will no
longer support a judgment on the abandoned claim. In re T.M., No. 07-20-00103-
CV, 2020 WL 4773207, at *2 (Tex. App.—Amarillo Aug. 17, 2020, no pet.) (mem.
op.). Whether a party has abandoned a pleading is a question of law that we review
de novo. In re C.C.J., 244 S.W.3d 911, 921 (Tex. App.—Dallas 2008, no pet.). A
stipulation may form the basis for abandonment. Id. A stipulation is an agreement,
admission, or concession made in a judicial proceeding regarding a related matter.
Id. When the stipulation limits the issues to be tried, such issues are excluded from
the trier of fact’s consideration. Id. Therefore, when a party unequivocally states in
open court it no longer seeks the pleaded relief, it abandons its pleading. See In re
T.M., 2020 WL 4773207, at *3 (caseworker expressly stated Department was not
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seeking termination, confirmed Department was not seeking termination when
attorney sought to clarify, and Department conceded on appeal it had abandoned its
termination pleading). However, if a stipulation is ambiguous or unclear, the trial
court should disregard it. In re C.C.J., 244 S.W.3d at 921. When construing a
stipulation, we are to determine the intent of the parties from the language used in
the agreement presented to the trial court. Id. We consider the surrounding
circumstances in making our determination. Id.
Here, the following exchange took place before the trial court resumed trial
on October 20:
THE COURT: All right. [Department], you can proceed with the
other case.
[DEPARTMENT]: Thank you. We have had -- just for the
record, Your Honor, we have had a slight change since the last time we
met with [Mother] on the stand. The Department at this time is seeking
permanent managing conservatorship of [M.A.C.]. We’re abandoning
the termination grounds. The Department will be seeking PMC of
[M.A.C.] pending F-Con with an ultimate transfer for [Y.M.] and
possessory with each parent. And, I do believe [Father] is in agreement
with that. I think the only person that doesn’t agree is [Mother].
THE COURT: Okay. Is that correct, [Mother’s counsel], your
client doesn’t agree to PMC to her mother -- well, to the Department
for F-Con?
[MOTHER’S COUNSEL]: She does not agree with that. It’s my
understanding that she does not agree with the placement and the
visitation that -- as set up at this time.
THE COURT: [Department], you can call your first witness.
[MOTHER’S COUNSEL]: I think the biggest issue is her access.
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THE COURT: It sounds like you said she doesn’t agree with
PMC or access, so, we’ll go ahead and start the trial on termination, I
guess.
[Department], you can call your first witness.
The Department’s counsel then continued its questioning of Mother from
August 15. Shortly thereafter, Mother’s counsel stated, “Your Honor, I believe my
client has a misunderstanding of the purpose of the hearing today. May I request a
short recess to confer with her?” The trial court granted a short recess and stated,
“When we come back, again, we are here for a termination trial, and the Court will
hear testimony about whether or not the mother’s rights should be terminated. I
understand the father has an agreement for non-termination, but the issue today is
termination for the mother.” When the parties returned, Mother’s counsel explained
that Mother believed the trial would be before a jury, not the bench; however, neither
Mother nor counsel voiced any concerns about proceeding generally with a
termination trial.
Later, when the Department caseworker was testifying, the trial court again
clarified whether the Department was continuing to seek termination of Mother’s
rights:
THE COURT: Ma’am, I have a question for you, and it’s
following up on what the attorney for the -- the guardian asked you,
’cause it -- I -- it seems to me there were two different answers. I just
need to be clear. So, there was a request for the father to be named as
a possessory conservator with placement with the person in Houston,
and your attorney was proving up grounds for termination of the
mother.
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Is it -- are you saying now that you don’t want -- that the
Department is not pursuing termination of the mother, you’re just
pursuing PMC for both of them?
THE WITNESS: No. I’m sorry, Judge. Termination on the
mother, and if I’m saying this correctly PMC, possessory -- I can’t say
it.
THE COURT: Basically, no termination for the father,
termination for the mother. Is that what the Department’s asking?
THE WITNESS: Yes.
Mother argues that the trial should have been limited to issues of
conservatorship and access and that the trial court’s insistence that it be a termination
trial was improper and incorrect and forced the Department to proceed with
termination. However, we cannot conclude that the Department made a clear,
unequivocal statement that it was abandoning its pleading seeking to terminate
Mother’s rights on this record. The Department did not object to continuing to a
termination trial, or correct the trial court’s understanding, after Mother’s counsel
confirmed that Mother did not agree to the placement. The parties asked questions
regarding grounds for termination throughout the trial and, as shown above, the
Department’s caseworker confirmed during her testimony that the Department was
still seeking termination of Mother’s rights. The parties also asked questions
regarding Mother’s visitation and access if the trial court chose not to terminate
Mother’s rights. Thus, the record in this case does not show a clear and unambiguous
abandonment by the Department of its pleading to terminate the parent-child
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relationship between Mother and M.A.C. See id. at 921–22. We conclude that the
issues of termination, conservatorship, and access were properly before the court,
and the trial court did not err in considering termination. Mother’s second issue is
overruled.
Sufficiency of the Evidence
In her fifth, six, and seventh issues, Mother argues the evidence is legally and
factually insufficient to support the finding that termination was in the best interest
of the child or to support the appointment of CPS as the managing conservator. We
disagree.
A. Standard of Review
The involuntary termination of parental rights must be supported by clear and
convincing evidence. TEX. FAM. CODE § 161.001(b). “‘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.” Id. § 101.007. To terminate parental rights, the evidence must show
that the parent committed one of the acts enumerated in section 161.001(b)(1)(A)–
(U) and that termination is in the best interest of the child. Id. § 161.001(b).
In determining whether the evidence is legally sufficient in a parental
termination case, we review all the evidence in the light most favorable to the trial
court’s finding and determine whether a rational trier of fact could have reasonably
formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d
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256, 266 (Tex. 2002). We resolve any disputed facts in favor of the finding unless
a reasonable factfinder could not have done so, and we disregard all evidence a
reasonable factfinder could have disbelieved or found incredible. Id.
In conducting a factual sufficiency review, we give due deference to the trial
court’s finding and determine if, based on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); In re C.H.,
89 S.W.3d 17, 25–27 (Tex. 2002). The trial court is the sole arbiter of the credibility
and demeanor of the witnesses, and we shall not supplant the factfinder’s judgment
with our own. In re H.R.M., 209 S.W.3d at 108–09. “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, then the evidence is factually insufficient.” In re J.F.C.,
96 S.W.3d at 266.
B. Evidence Presented
The evidence at trial showed that Mother had not completed her court ordered
services at the time of trial. In fact, she had not submitted to any of the drug tests
requested by the Department during the pendency of the case. And, the people
Mother recommended for placement were either not approved by the Department or
did not want to pursue becoming a placement option because of past interactions
with Mother. The trial court had cautioned Mother at the trial on August 15 that, if
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she wanted to be considered as a managing conservator, she needed to complete her
services and that, if she wanted anyone else to be considered, she needed to submit
their information to the Department so that it could complete a home study. She did
neither.
Instead, at the October 20 continuation of trial, Mother insisted that she had
completed counseling and submitted drug testing, just not for CPS. During the
pendency of the case, Mother was arrested for possession of a controlled substance
and for theft. According to Mother, she and Father were arrested together in August
2021, and Father had over twenty grams of Fentanyl and over twenty grams of
methamphetamine that he “was working” for an organization. She testified that she
completed drug testing and counseling as ordered for community supervision in the
criminal case. She offered to share the results with CPS, but the Department had no
record of any such test results. The Department caseworker testified she sent Mother
multiple messages each month, beginning in April 2021, requesting Mother to go
drug test, but Mother failed to do so. The evidence also showed that her community
supervision was amended in April 2022, to include a requirement that she
successfully complete a substance abuse program. According to Mother, she had
not violated probation and was not using methamphetamines.
Mother denied that she tested positive for methamphetamine at the time
M.A.C. was removed from her care; she believed the caseworker tampered with her
test to make it show she was positive when she was not. She also denied testing
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positive for marijuana and amphetamines at the time her older son was removed
from her care. Mother’s two older children were under the care of her mother, one
through a placement with the Department and one through a court order but not
through the Department. According to her caseworker, drugs had been an issue with
M.A.C. and her prior children; all three children had been the subject of a CPS case.
Mother did complete a twelve-week parenting class and believed she had
completed her psychological assessment and corresponding recommendations.
However, the Department caseworker testified that Mother had not completed
counseling, the recommendations of counseling, or an individual outpatient
program. The caseworker testified that Mother had been discharged from individual
counseling for poor attendance and lack of participation; Mother disagreed. If
Mother had completed counseling elsewhere, the Department was unaware as it had
not received any documentation verifying Mother’s claims.
Mother also testified that she lived with her father, and the Department was
supposed to do another home study but did not. She had been working part time.
The caseworker testified Mother had not demonstrated that she had a stable living
environment, was gainfully employed, or that she could support M.A.C.
Mother was very concerned about M.A.C. being placed with Y.M. She did
not know Y.M., but Y.M. was the mother of one of Father’s other children and she
was concerned about Father having access to Y.M. Mother did not believe M.A.C.
would be safe with Father because of his character and criminal history. He sold
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drugs for an organization and, although he no longer worked for the organization,
he was hiding from them because he owed them money. He also committed
aggravated robbery in January 2022. Mother was further concerned that Father was
going to leave the state with M.A.C. Father told her that M.A.C. being placed with
Y.M. “was his way to get [her] child, and that CPS and [Mother] couldn’t stop him
from taking the child away.”
Mother was also concerned about Y.M.’s move to Houston since first being
approved for placement. Mother was specifically concerned about the distance
between them because she could not afford to go. Mother testified that she would
like the opportunity to talk with Y.M. since Y.M. had custody of her son. She was
aware of the allegations that she had harassed Y.M. but denied them.
The caseworker testified that M.A.C. was doing great in Y.M.’s care. He was
growing up, talking more, able to engage, and socially interacted with other children
around his age. He did not have any medical issues and was going to start daycare.
The caseworker further testified that Father’s visits would be supervised and that
Y.M. had not shown the Department any reason why she would not be protective of
M.A.C. The caseworker believed it was in M.A.C.’s best interest to be placed with
Y.M., as neither parent would provide a safe environment for him.
On cross-examination, the caseworker agreed that Mother’s virtual visits with
M.A.C. had gone well and that she interacted well with him. The caseworker also
testified that Mother expressed concern about not being able to bond with M.A.C. if
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she could not see him in person. The caseworker agreed it was important for a
mother to have in-person contact with her child and believed it would be in M.A.C.’s
best interest to have in-person access. However, the caseworker later testified that
the Department believed termination of Mother was in the best interest of M.A.C.
even if Mother was in agreement with the placement. The CASA representative also
recommended termination for Mother.
Y.M. testified that she understood Father had to be supervised at all times with
M.A.C. and that she was ensuring he was supervised. She had taken M.A.C. to
Dallas to visit his siblings and planned to facilitate future visits. As to the threatening
and harassing messages, Y.M. testified that Mother finds her family and friends,
almost anyone that she has contact with, and harasses them (mainly through
Facebook) or tells them Y.M. is kidnapping M.A.C. Y.M. was concerned for her
and her family’s safety and testified she was afraid to supervise Mother with M.A.C.
She was not willing to speak to Mother and did not feel like it would be in M.A.C.’s
best interest for her to communicate with Mother.
At the August 15 setting, after being told multiple times to remain quiet while
the trial court spoke to the attorneys but refusing to do so, the trial court admonished
Mother as follows: “Your behavior is affecting - - will further restrict your access to
this child. If you can’t control yourself, that makes the Court concerned about your
ability to parent.” Mother continued to have outbursts throughout the October 20
Zoom trial, and the trial court had to mute her and later had to remove her because
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she was showing items on her screen without permission. At the conclusion of the
October 20 trial, the court stated that it was concerned that Mother’s behavior had
not “come down at all” since the beginning of the case. The trial court further stated
it was concerned with her ability to control her impulses and her continued use of
drugs or failing to provide proof that she had tested with another program.
In concluding that Mother failed to do the services that the court ordered, the
trial court stated, “What she did was everything else but that, and then had reasons
and excuses about why she did everything else but what the Court ordered her to
do.” The trial court also advised that “typically . . . when a modification happens,
it’s usually because there’s some dirty tests.”
C. Sufficiency of the Evidence to Support Best Interest Finding1
When deciding whether termination is in the child’s best interest, we look to
certain non-exclusive factors identified by the supreme court in Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976). These include (1) the desires of the child; (2)
the emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available to assist these individuals
1
Mother does not challenge the sufficiency of the evidence to support the trial court’s findings that she
committed three of the enumerated acts: knowingly placed or knowingly allowed M.A.C. to remain in
conditions or surroundings which endangered his physical or emotional well-being, engaged in conduct or
knowingly placed M.A.C. with persons who engaged in conduct which endangered his physical or
emotional well-being, and failed to comply with the provisions of the court’s order that specifically
established the actions necessary for Mother to obtain the return of M.A.C. See TEX. FAM. CODE §
161.001(b)(1)(D), (E), (O).
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to promote the best interest of the child; (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 acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. Holly, 544 S.W.2d at 372. “The absence of evidence
about some of these considerations would not preclude a factfinder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest,
particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.” In re C.H., 89 S.W.3d at 27.
1. The desires of the child.
Both Mother and the Department agree that M.A.C. was too young to express
his desires and, thus, evidence regarding this factor was not at issue.
2. The emotional and physical needs of the child now and in the future and
the emotional and physical danger to the child now and in the future.
Mother asserts that there is no evidence regarding the emotional and physical
needs of M.A.C. but, as to the emotional and physical danger to M.A.C., she
concedes that her positive drug test and the fact that her community supervision
conditions were modified might support a finding that termination is in M.A.C.’s
best interest. The Department highlights that Mother was incarcerated for four
months for possession and theft and is currently on probation. Her “track record of
habitual drug use, consequences of her addiction, and lack of testing indicated a
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high likelihood that she would be unable to provide for M.A.C.” The Department
also contends that Mother’s inability to provide a stable living environment, lack of
personal control, consistent impulsive behavior, and harassment of others involved
in the case could cause emotional and physical danger to M.A.C.
While the evidence does not speak to the specific needs of M.A.C., we agree
with the Department that the evidence shows Mother is unable to care for a child
either because she could not meet the child’s needs or because she would place the
child in danger due to her continued drug use, or assumption of drug use for refusing
to report to CPS testing, and her behavior toward the trial court, the Department,
and placement options throughout the case.
3. The parental abilities of the individuals seeking custody.
Mother again contends that there is no evidence supporting this factor. We
disagree. As the Department asserts, Mother was unable to parent her previous
children and they were removed from her home. Mother’s past performance as a
parent could certainly have a bearing on her fitness to provide for M.A.C. See id. at
28 (concluding court of appeals erred in not considering father’s prior history of
child neglect as a factor bearing upon the finding that termination would be in the
child’s best interest).
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4. The programs available to assist these individuals to promote the best
interest of the child.
There was no evidence presented at trial regarding outside programs to assist
the parties besides the services offered to Mother to help her reunite with M.A.C.
As discussed above, Mother did not complete those services as directed.
5. The plans for the child by these individuals or by the agency seeking
custody and the stability of the home or proposed placement.
Mother testified that she was living with her father and that he could have
been reconsidered for placement. But the evidence showed that father’s home was
unsuitable and that his initial home study had been denied. Additionally, her father
had threatened staff, instigated a situation at one of Mother’s supervised visitations
in Dallas, and had to be removed from the final hearing. Thus, Mother’s plans for
M.A.C. were not in his best interest.
The only other evidence regarding plans for the child was Y.M.’s testimony
that she wanted to continue to facilitate visits between M.A.C. and his siblings in
Dallas. Continuing a healthy relationship between family members would be in the
best interest of a child.
6. The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one and any excuse for the acts
or omissions of the parent.
As to these factors, Mother argues that her virtual visits had gone well and
there was no evidence she was inappropriate with M.A.C. She could not see M.A.C.
in person because she could not travel to Houston. The Department acknowledges
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that Mother may not have acted inappropriately toward M.A.C., but she did toward
others. The Department argues that Mother’s aggressiveness toward anyone who
opposed her raised concerns about whether she would also be aggressive in parenting
M.A.C. In addition to her inability to control her outbursts, Mother did not take
responsibility for her actions. She denied she tested positive for methamphetamines
and blamed her positive test on the caseworker. She and her father believed the
Department were out to get her and take her child without cause. She blamed the
lack of drug tests and counseling on the Department and her probation officer instead
of taking responsibility for not completing them or not providing the proper
paperwork to the Department. Mother’s failure to complete her services, failure to
take responsibility for her actions, and failure to control her behavior support a
finding that termination of her parental rights is in the best interest of M.A.C.
Based on our review of the record, we conclude that the evidence is legally
and factually sufficient to support a firm belief or conviction that terminating the
parent-child relationship between Mother and M.A.C. was in the best interest of the
child. We overrule Mother’s fifth and sixth issues.
D. Sufficiency of the Evidence to Support Appointment of CPS as Managing
Conservator
In her seventh issue, Mother argues that, because the evidence is insufficient
to support a finding that termination of Mother’s rights was in M.A.C.’s best interest,
the preponderance of the evidence proved that appointment of Mother as managing
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conservator would not significantly impair M.A.C.’s physical health or emotional
development. As discussed above, we disagree that the evidence is insufficient to
support the trial court’s finding that termination of Mother’s rights is in the best
interest of M.A.C. The trial court further found that appointing Father as managing
conservator would significantly impair M.A.C.’s physical health or emotional
development. Mother has not challenged the trial court’s finding regarding Father,
and the evidence supports such a finding as Father had also not completed his
services with the Department and agreed to being appointed a possessory
conservator with limited and supervised access to M.A.C.
As this Court has previously explained, “we have overruled appellant’s
challenge to the termination, and the trial court’s appointment of the Department as
sole managing conservator may be considered a ‘consequence of the termination
pursuant to Family Code section 161.207.’” In re N.T., 474 S.W.3d 465, 481 (Tex.
App.—Dallas 2015, no pet.) (citation omitted); see also TEX. FAM. CODE §
161.207(a) (“If the court terminates the parent-child relationship with respect to both
parents or to the only living parent, the court shall appoint a suitable, competent
adult, the Department of Family and Protective Services, or a licensed child-placing
agency as managing conservator of the child.”). Thus, having terminated Mother’s
rights and finding that appointing Father as managing conservator would not be in
M.A.C.’s best interest, the trial court properly appointed the Department. We
overrule Mother’s seventh issue.
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Ineffective Assistance of Counsel
In her third issue, Mother asserts that she received ineffective assistance of
counsel. Specifically, Mother argues that counsel’s performance was deficient when
counsel failed to object to the trial court proceeding on the issue of termination and
to any questions regarding termination and when she essentially proved that
termination was in the child’s best interest by asking the caseworker that question.
The statutory right to counsel for an indigent parent in a termination
proceeding “embodies the right to effective counsel.” In re M.S., 115 S.W.3d 534,
544 (Tex. 2003); see also TEX. FAM. CODE § 107.013(a)(1) (court shall appoint
attorney ad litem to represent indigent parent in suit filed by Department seeking
termination of parent-child relationship). We apply the test outlined for criminal
proceedings in Strickland v. Washington, 466 U.S. 668 (1984), to determine whether
counsel was effective. In re M.S., 115 S.W.3d at 544–45. To prevail on a claim of
ineffective assistance of counsel, the appealing party must show that counsel’s
performance was deficient and that counsel’s errors were so serious as to deprive the
parent of a fair trial with a reliable result. Id. at 545. When determining whether
counsel was effective, we consider all circumstances of the case and “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). “It is only when ‘the conduct was so outrageous that no competent attorney
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would have engaged in it,’ that the challenged conduct will constitute ineffective
assistance.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)).
Mother first argues that counsel was deficient for failing to object to the trial
court’s decision to proceed to a termination trial and to any questions regarding
counsel. When a party claims ineffective assistance of counsel for failing to object,
the party must demonstrate that the trial court would have committed error in
refusing to sustain the objection if counsel had objected. Vaughn v. State, 931
S.W.2d 564, 566 (Tex. Crim. App. 1996). We conclude, as discussed above, that
the trial court properly proceeded with a termination trial because the Department
did not abandon its termination pleadings once the court confirmed that Mother
contested M.A.C.’s placement and the Department’s proposed visitation schedule.
We next turn to whether counsel was deficient in questioning the
Department’s caseworker about whether she believed termination was in the child’s
best interest. Although counsel’s question to the caseworker resulted in the
caseworker testifying that the Department believed it was in M.A.C.’s best interest
for Mother’s parental rights to be terminated, we cannot conclude on this record that
counsel’s performance fell below an objective standard of reasonableness. Here,
after the trial court questioned the Department about whether it was seeking
termination as to Mother, Mother’s counsel further tried to clarify the Department’s
position on termination and whether it would still seek termination if Mother agreed
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to the placement of M.A.C. to Y.M. Mother’s counsel established through its
questioning that the Department knew Mother was completing drug testing for
probation, that Y.M. did not want to work with or communicate with Mother even
though Mother wanted to communicate with Y.M., and that in-person contact with
Mother would be in M.A.C.’s best interest. Thus, throughout trial, Mother’s counsel
advocated that Mother was completing services, even though she was doing so
outside of CPS’s requests, and that terminating her rights instead of allowing her
visitation and access to M.A.C. would adversely affect M.A.C.
We cannot conclude that counsel’s performance fell outside the wide range of
reasonable professional assistance and, thus, was deficient. Therefore, Mother has
failed to establish that she was denied the effective assistance of counsel under the
Strickland test, and we overrule her third issue.
Denial of Due Process
Mother argues in her fourth issue that her due process rights were violated.
Within this argument, Mother reiterates her contention that the Department
abandoned its pleading seeking termination of Mother’s parental rights and, thus,
the trial court should not have proceeded to a termination trial. She argues that,
because the trial court insisted on proceeding to a termination trial and muted and
temporarily removed her from the Zoom hearing, she did not receive a fair and
impartial trial by a neutral judge. Mother also asserts that the Department was not
candid during trial or during the thirty days following the final order being signed
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regarding information the Department learned about Y.M. that resulted in the
Department denying Y.M.’s home study and removing M.A.C. from her home. To
support this contention, Mother refers to the home study attached to her brief as
appendix 2. According to Mother, the Department did not file the denied home study
with the trial court until January 20, 2023.
The docket sheet in the appellate record does not include an entry showing the
Department filed the denied home study, and the denied home study is not a part of
the record. We are not permitted to consider documents outside of the appellate
record in our review. In re H.K.D., No. 05-18-00968-CV, 2020 WL 428152, at *2
(Tex. App.—Dallas Jan. 28, 2020, no pet.) (mem. op.) (citing Deutsch v. Hoover,
Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198 (Tex. App.—Houston [14th Dist.]
2002, no pet.)). Mother compares the Department’s failure to disclose this
information to a Brady violation—the State’s failure to disclose material information
in a criminal case. See Brady v. Maryland, 373 U.S. 83 (1963). However, Mother
has not provided any authority, and we have found none, in which a court of appeals
may consider new evidence on appeal regarding the termination of parental rights.
Because we are prohibited from considering documents that are not included
in the appellate record and because we have already determined the trial court did
not err in proceeding to a termination trial, we cannot conclude that Mother’s due
process rights were violated. We overrule Mother’s fourth issue.
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Modification of Termination Order
In her eighth issue, Mother asks this Court to modify the final order of
termination to properly reflect the dates she is to receive email communications
regarding M.A.C. According to Mother, the final order omits one of the agreed dates
that she would receive updates—April 1. The Department agrees.
This Court has the power to modify a judgment to speak the truth when we
have the necessary information to do so. See TEX. R. APP. P. 43.2(b); In re M.D.,
333 S.W.3d 600, 601 (Tex. App.—Dallas 2007, no pet.); Asberry v. State, 813
S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).
At the conclusion of trial, the trial court announced that it was naming Mother
as a non-parent possessory conservator for access, specifically to receive a general
description and pictures of M.A.C. on February 1, April 1, July 1, September 1, and
December 1 of each year. The final order, however, provides that Mother “shall
receive photos/pictures of the child and an update on the child’s welfare from [Y.M.]
on February 1, July 1, Sept 1 and Dec 1 of each year.” As represented by the parties,
the order is missing April 1. Therefore, we sustain Mother’s eighth issue and modify
the final order to reflect that Mother receive email communications on “February 1,
April 1, July 1, September 1, and December 1 of each year.”
Conclusion
Having overruled Mother’s first seven issues and having sustained her eighth,
we modify the final order of the trial court to properly reflect each of the five months
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Mother is to receive emails regarding M.A.C. and otherwise affirm the final order
terminating Mother’s parental rights and appointing the Department as managing
conservator of M.A.C.
/Craig Smith/
CRAIG SMITH
JUSTICE
221262F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.A.C., JR., On Appeal from the 304th Judicial
A CHILD, District Court, Dallas County, Texas
Trial Court Cause No. JC-21-00276-
No. 05-22-01262-CV W.
Opinion delivered by Justice Smith.
Justices Pedersen, III and Goldstein
participating.
In accordance with this Court’s opinion of this date, the final order of the trial
court is MODIFIED as follows:
The sentence on page 8, section 10 of the November 17, 2022 Final
Order in Suit Affecting the Parent-Child Relationship and Order of
Termination that reads, “IT IS ORDERED that JASMINE GUICE
shall receive photos/pictures of the child and an update on the child’s
welfare from Yolis Marquez on February 1, July 1, Sept 1 and Dec 1 of
each year,” is modified to read: “IT IS ORDERED that JASMINE
GUICE shall receive photos/pictures of the child and an update on the
child’s welfare from Yolis Marquez on February 1, April 1, July 1,
September 1, and December 1 of each year.”
It is ORDERED that, as modified, the final order of the trial court is AFFIRMED.
We DIRECT the trial court to prepare a corrected final order that reflects this
modification.
Judgment entered this 5th day of May 2023.
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