in the Interest of M.T.R., a Child v. Texas Department of Family and Protective Services , 579 S.W.3d 548 ( 2019 )

Affirmed and Opinion filed May 16, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-01058-CV
IN THE INTEREST OF M.T.R., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2016-04856J
OPINION
This accelerated appeal arises from a final decree in a suit in which
termination of the parent-child relationship was at issue. Tex. Fam. Code Ann.
§ 109.002(a-1). The child is Michael.1 The appellants are his mother, C.A.R.
(Mother), and his maternal grandmother, A.R. (Grandmother), who was an
intervenor in the trial court. The trial court terminated Mother’s parental rights and
appointed the Texas Department of Family and Protective Services (the Department)
to be Michael’s managing conservator. Mother and Grandmother appealed.
1
We use pseudonyms or initials to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
Mother raises five issues on appeal. She contends (1) the trial court should
have dismissed the suit for want of prosecution, (2) the trial court failed to comply
with the Indian Child Welfare Act by not determining Michael’s American Indian
status, (3) the judgment cannot stand because it is based on legally and factually
insufficient evidence, (4) the judgment cannot stand because the Department failed
to adhere to its internal “care plans,” and (5) Mother had ineffective assistance of
counsel. Grandmother raises only one issue; she alleges the judgment cannot stand
because it is based on legally and factually insufficient evidence.
First, we hold the trial court did not err by not dismissing the case, because
trial was timely under section 263.401(b-1) and (c) of the Texas Family Code.
Second, we conclude legally and factually sufficient evidence supports the trial
court’s findings that Mother endangered Michael and that termination of the parent-
child relationship is in Michael’s best interest. Third, Mother’s assertion regarding
the Indian Child Welfare Act is not supported by the record; Michael’s American
Indian status was denied by Grandmother. Fourth, Mother failed to preserve error
with respect to the Department’s “care plans,” because she did not object in the trial
court and did not adequately brief the issue on appeal. Finally, we hold Mother has
not shown she received ineffective assistance of counsel.
Grandmother lacks standing to complain of the termination of Mother’s
parental rights. She has standing to complain only about the trial court’s appointment
of the Department, rather than her, as Michael’s managing conservator. We hold
Grandmother has not shown the trial court abused its discretion in its conservatorship
decision.
Therefore, we affirm the trial court’s decree.
2
BACKGROUND
A. Pretrial removal affidavit
The following facts come from the affidavit of Department caseworker
Tinisha Williams.
The Department received a referral in mid-June 2016 alleging neglectful
supervision of then-18-month-old Michael. The reporter alleged Mother was in a
physical fight with someone at an apartment complex while Michael was nearby in
the car. Mother’s boyfriend, who was also present, allegedly pointed a gun at the
person with whom Mother was fighting. The reporter said Mother smokes marijuana
and uses other drugs in front of Michael. Finally, Mother and the boyfriend were
both said to be affiliated with separate gangs.
There is no suggestion as to what, if anything, occurred in the six-week period
after the referral. The first indication in the record of activity in this investigation is
Williams’ attempts “throughout the month of August” to find Michael. On
September 1, Williams requested law enforcement to conduct a welfare check for
Michael. A police officer found Michael in the apartment in which he lived with
Mother, Mother’s boyfriend, and Grandmother. The officer’s initial assessment was
that the apartment was clean and Michael appeared healthy. Grandmother said she
was the primary caregiver for Michael because Mother was in jail, though she
expected Mother to be released soon. Williams arrived at the apartment shortly
thereafter. She agreed with the officer that the apartment’s physical environment was
safe and appropriate for Michael, but she found the apartment “reeked of marijuana.”
Williams asked Grandmother to give her the name, social security number,
and date of birth for every person 14 years or older who lived in the apartment.
Grandmother said she could provide only her personal information. She was unable
or unwilling to provide that information with respect to an unidentified male
3
Williams observed walking in and out of the apartment or her “sons” whom she said
visit the apartment frequently. Other than denying he is Michael’s father, Mother’s
boyfriend refused to provide Williams any information. Williams tried to
photograph the home but was denied permission by Grandmother.
Grandmother had history with the Department. When her now-adult children
were minors, the Department found reason to believe on four occasions that
Grandmother neglectfully supervised and/or physically neglected them. Mother had
no adult history with the Department, but she had criminal history as well as three
pending criminal charges. Mother’s boyfriend, later identified as Jason, also had
extensive criminal history.
Williams visited Mother in jail the same day. Mother identified three people
who might be able to care for Michael during the Department’s investigation. Two
of the three people were ruled out due to their criminal and/or Department history.
The third person said her work schedule prevented her from being able to care for
Michael adequately.
Believing Michael to be in immediate danger, the Department filed this
lawsuit the next day and requested an order of removal and writ of attachment for
Michael. Williams’ affidavit was attached to the Department’s original petition. The
record does not contain a ruling on the Department’s request for an order of removal
and writ of attachment.
Two weeks later, the trial court conducted a full adversary hearing and signed
an order naming the Department as Michael’s temporary managing conservator. Six
weeks after that, the trial court signed an order approving a family service plan the
Department created for Mother and requiring her to comply with that plan and any
amended plan.
4
B. The first trial and appeal2
Mother executed an unrevoked or irrevocable affidavit of relinquishment of
her parental rights as to Michael. Michael’s father, A.E. (Father), proceeded to trial.
Following a bench trial, the trial court found termination of Mother’s and Father’s
parental rights was in Michael’s best interest. The court terminated Mother’s
parental rights based on her affidavit of relinquishment, terminated Father’s rights
on other grounds, and named the Department as Michael’s permanent managing
conservator. Mother and Grandmother appealed; Father did not.
Mother’s affidavit of relinquishment designated Grandmother as Michael’s
sole managing conservator. The trial court found that designation rendered the
relinquishment “conditional and not voluntary.” Accordingly, in early June 2018,
about six weeks after signing the final decree of termination, the trial court granted
a new trial for Mother and Grandmother. The termination of Father’s rights stood.
Due to the new-trial order, Mother and Grandmother sought voluntary
dismissal of their appeal. We dismissed the appeal near the end of August 2018. See
In re M.R., No. 14-18-00389-CV, 2018 WL 4037493 (Tex. App.—Houston [14th
Dist.] Aug. 23, 2018, no pet.) (mem. op.) (per curiam).
2
Some of the information in this section comes from the record in the first appeal, which was filed
in this court. See In re M.R., No. 14-18-00389-CV, 2018 WL 4037493 (Tex. App.—Houston [14th
Dist.] Aug. 23, 2018, no pet.) (mem. op.) (per curiam). A court of appeals may take judicial notice
of adjudicative facts in its own files that are “capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” Tex. R. Evid. 201(b), (c); Office of
Pub. Util. Counsel v. Pub. Util. Comm’n of Tex., 878 S.W.2d 598, 600 (Tex. 1994) (per curiam).
We take judicial notice of the materials included in the clerk’s record and reporter’s record in the
first appeal, but only for their existence, not for their truth. Compare In re C.S., 208 S.W.3d 77,
82 (Tex. App.—Fort Worth 2006, pet. denied) (“It is appropriate for a court to take judicial notice
of a file in order to show that the documents in the file are a part of the court’s files, that they were
filed with the court on a certain date, and that they were before the court at the time of the hearing.”)
with Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(The court “may not take judicial notice of the truth of factual statements and allegations contained
in the pleadings, affidavits, or other documents in the file.”).
5
C. The second trial
The second trial was held at the end of October 2018. The testifying witnesses
were Mother and Department caseworker Demetrias Byrd. Grandmother represented
herself and questioned both witnesses, but she did not testify. The documentary
evidence included Williams’ removal affidavit, admitted over Mother’s hearsay
objection; Mother’s family service plan and the court order requiring her to comply
with it; drug test results for Mother; judgments and orders reflecting Mother’s
criminal history; permanency reports by the Department; and various orders by the
trial court.
1. Evidence about Michael
Michael and Mother lived with Grandmother at the time of removal. Mother
said Grandmother and Michael were very close and Grandmother “taught him stuff.”
Specifically, “he knew a lot of words. He knew how to connect certain things. Like
he knew shoes and how to go get his bottle and his cup and she potty trained him
and everything.”
Following removal, Michael was placed in a foster home, where he remained
through the time of the second trial some 26 months later. The foster parent was
meeting all of Michael’s needs, according to Byrd, and was very bonded with him.
Byrd testified Michael’s visits with Grandmother were appropriate after
Michael became accustomed to them. Initially, Byrd said, “he would cry, like,
hysterically for the first 20, 30 minutes of our visits.” Byrd was not sure if Michael
was bonded with Grandmother even at the time of the second trial, but she
acknowledged he “began to recognize [Grandmother’s] face and understood who
she was after some time.” Michael was “always ready to leave” after visits with
Grandmother, according to Byrd. At the end of one visit, Michael said he wanted to
go with “Mimi.” Grandmother believed she was “Mimi”; Byrd said she believed
6
“Mimi” referred to Michael’s foster mother’s mother.
Almost four years old at the time of the second trial, Michael knew the
alphabet, shapes, and 20 sight words. Byrd agreed Michael had excelled and thrived
in the foster home. She elaborated:
This is his family. This is what he knows. This is the comfort and
stability that he has established. At this time, that’s all that he knows.
So to remove him from the placement and to not terminate and provide
permanency for him will be detrimental to his behavior and the progress
that he’s made while being in care in this home.
Byrd believed termination of Mother’s parental rights was in Michael’s best interest.
2. Evidence about Grandmother
Grandmother was a solid presence in Michael’s life until he was removed,
according to Mother. Grandmother attended his birth. She went to all his medical
appointments. After removal, she consistently communicated to the Department her
desire to have him placed with her. She attended every court hearing.
After conducting a home study, the Department concluded Grandmother was
not an appropriate caregiver for Michael. Byrd testified the Department was troubled
that (1) there were still people living in Grandmother’s apartment whom she would
not identify, and (2) Grandmother appeared unwilling to keep Mother away from
Michael. Further, Grandmother had history with the Department in 2002 and 2010.
The details of that history are not included in the record. Byrd testified the
Department “validated” the allegations in four or five of the referrals about
Grandmother and was unable to complete the investigations in two other referrals.
Mother testified she does not remember the Department coming to her house when
she was a child. She also said she does not remember Grandmother ever physically
disciplining her or her siblings “to an extreme event or at all for that matter.”
7
In closing argument, Grandmother contested the allegation in the removal
affidavit that her apartment “reeked of marijuana.” She was, according to the trial
court, “complaining that nobody drug tested [her].” The trial court asked
Grandmother if anything prevented her from submitting to a drug test on her own.
Grandmother said she did not know her drug status was important until trial.
Byrd testified Grandmother said she did not want to adopt Michael. But
Grandmother suggested in her closing argument that she had not understood the
niceties of adoption versus conservatorship at the beginning of the case. She assured
the trial court she wants to adopt Michael if Mother’s rights are terminated.
3. Evidence about Mother
a. Criminal history
Mother’s criminal activity reflected in the record all occurred while she was
pregnant with Michael or after he was born. When she was eight months pregnant,
she was arrested for criminal mischief resulting in damages between $1,500 and
$20,000, a state jail felony. The complaint alleges she struck the complainant’s car
with her car. At trial, Mother described the incident:
Q. [W]hat did you do then?
A. I had a wreck in my job parking lot.
...
Q. There wasn’t an incident during that timeframe where you
basically rammed this person’s car?
A. Well the car was old and I did hit that car. I did, yes.
As part of a plea-bargain agreement with the State, Mother pleaded guilty to
a lesser-included class A misdemeanor in May 2015 and was placed on deferred
adjudication community supervision for two years.
8
In January 2016, when Michael was 13 months old, Mother was arrested for
robbery with bodily injury, a second-degree felony. She elaborated on that incident
at trial as well:
Q. . . . Says here you’re charged with robbery of a Vonda Wilkinson.
Who’s Vonda Wilkinson?
A. A worker at Wal-Mart.
Q. What did you do to her?
A. We had a fight. She grabbed me and we had a fight. I was stealing
from Wal-Mart.
Q. You were stealing from Wal-Mart?
A. Yes.
Q. It says robbery bodily injury. Did you smack her around?
A. It was a fight, yeah.
Following her guilty plea, in June 2016 Mother once again was placed on deferred
adjudication community supervision, this time for five years.
Just one month later, Mother committed another robbery with bodily injury.
She testified:
Q. . . . [Y]ou got charge for a robbery on, looks like Tom O-n-g,
who’s that?
A. He worked at a corner store, manager at a store.
Q. What did you do to him?
A. I took his phone and broke it.
Q. Why?
A. He was saying he was gonna call the police.
Q. What were you doing to have him call the police?
9
A. It was a lot of people at his store and he thought that—well he
just basically told everybody to move—leave away from the
store and I really don’t know why I did that. It was stupid.
Mother was arrested and jailed for that robbery in late August 2016. Michael was
removed ten days later.
In November 2016, Mother and the State entered into a plea-bargain
agreement under which Mother would plead guilty in exchange for a three-year
prison sentence. Additionally, the criminal court adjudicated Mother guilty of the
previous criminal mischief and robbery with bodily injury and sentenced her to 30
days’ and three years’ confinement, respectively. All three sentences were to run
concurrently. Mother was serving her sentences during both the first and second
trials. All told, Mother was in custody for the entire 26-month history of this case.
b. Allegations in the removal affidavit
Byrd admitted she had no evidence, other than Williams’ statements in the
removal affidavit, that (1) Mother was fighting, (2) Michael was nearby,
(3) Mother’s boyfriend drew a gun, (4) Mother or her boyfriend were gang-
affiliated, or (5) Mother used drugs. For her part, Mother offered this account of the
allegations in the removal affidavit:
The altercation, it was not in the apartments as the statement says. It
was down the street. It was early in the morning. Me and this girl had
been arguing. I went over there to say stuff—we went over there to talk
about it. It was a big argument and he never had a gun. My son was
never there. And that was basically it. We just argued in her apartment
complex.
Mother contended she and “the girl” were yelling but not physically fighting. She
said Michael was at home with Grandmother. Her boyfriend was at the scene with
her, Mother admitted, but he did not pull out a gun. Mother denied either she or her
boyfriend was affiliated with a gang.
10
Mother also denied the drug allegations. She said neither she nor Grandmother
smoked marijuana. The only drug test in the record for Mother shows she tested
negative. She believes the odor of marijuana Williams allegedly detected may have
emanated from a nearby apartment. Byrd acknowledged the officer who went to
Grandmother’s apartment did not say he smelled marijuana.
c. Service plan
The Department created a service plan for Mother with the following goals:
understand the serious nature of the situation that placed Michael in harm’s way;
demonstrate the ability to protect Michael from future abuse or neglect and show
concern for Michael’s future safety; demonstrate an ability to provide basic
necessities for Michael, such as food, clothing, shelter, medical care, and
supervision; demonstrate acceptance of the responsibility of being a parent; and
demonstrate the willingness and ability to protect Michael from harm. To help her
achieve those goals, her service plan required her to, among other things: complete
a substance abuse assessment and follow all recommendations; participate in a
psychosocial evaluation and follow all recommendations; complete in-person
parenting classes; refrain from engaging in criminal activities; submit to and test
negative on random drug tests; obtain and maintain legal employment and stable
housing, both for more than six months; and attend all court hearings, permanency
conferences, family visits, and scheduled appointments.
Byrd testified Mother “attempted” to complete a psychological evaluation and
parenting classes while incarcerated. Byrd said she mailed release-of-information
forms so she could obtain Mother’s records but did not receive any records. Mother
testified she completed two parenting classes and a psychological evaluation and
finished high school while in prison. She said she wants to attend a university when
she is released.
11
d. Willingness and ability to parent
Mother testified she wants Michael to “grow up, graduate high school, go to
college, be a good human being and do good.” She said she will help him pay for
college, get a scholarship, and do “whatever it takes” to help him succeed. She said
if her parental rights are terminated and Michael is placed with Grandmother, she
understands she will not be permitted to live with them. She would go to a halfway
house in that situation, she testified. If her rights are terminated but Michael is not
placed with Grandmother, Mother said, she intends to live with her.
4. Trial court’s findings
The trial court found the Department had proved the requirements of
subsections E, N, O, and Q of Family Code section 161.001(b)(1). The court
additionally found termination of Mother’s parental rights was in Michael’s best
interest. The trial court appointed the Department to be Michael’s managing
conservator. Mother and Grandmother timely appealed.
PROCEEDINGS DURING THIS APPEAL
Mother’s appointed counsel, Juliane Crow, filed a brief in January 2019 under
Anders v. California, 386 U.S. 738 (1967), in which she concluded this appeal is
frivolous and without merit. The Anders procedures apply to an appeal from the
termination of parental rights when an appointed attorney concludes there are no
non-frivolous issues to assert on appeal. In re D.E.S., 135 S.W.3d 326, 329 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). Grandmother, who was representing
herself, did not file a brief.
Six weeks later, attorney Scott Poerschke, then a stranger to this case, filed a
“reply brief” to Crow’s Anders brief. The signature block on the reply brief includes
12
Poerschke and another lawyer from his firm and describes them as “attorneys for
[Mother].”
The trial court conducted a hearing on our order to determine which lawyer
would represent Mother. Finding Mother retained Poerschke to represent her on
appeal, the trial court allowed Crow to withdraw as counsel. The transcript of that
hearing suggested Poerschke also intended to represent Grandmother.
Poerschke filed a brief for Mother and a brief for Grandmother. Those are the
briefs on which we have decided this case.
APPELLATE JURISDICTION
Though she does not raise it as an issue, Mother states in her brief that the
November 15, 2018 decree on appeal is not “truly final” (emphasis in original)
because the trial court did not “enter[] her order below denying the (un-severed)
Intervenor-Grandmother’s Motion for New Trial” until February 20, 2019.3
Mother’s assertion implicates our jurisdiction. An appellate court must determine
whether it has jurisdiction over an appeal, even if it must do so sua sponte. M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).
3
Mother also suggests the appellate record is not complete because it does not reflect post-
judgment proceedings. She writes, “[Mother] urges and here moves that this appeal be stayed,
abated, or suspended pending the preparation and transmission of a Supplemental Clerk’s Record
and any necessary Supplemental Reporter’s Record . . . .” Supplementation of the record is
governed by rules 34.5(c) and 34.6(d) of the Texas Rules of Appellate Procedure. Further, the
following notice has been posted on this court’s website since August 26, 2015:
The proper procedure for a party to supplement the Clerk’s Record is by written
request to the trial court clerk—no motion or order is needed in the court of appeals.
Motions filed in the court of appeals will not be ruled on by the court. If a party
needs to rely on a trial court document that is part of the record below, that is not
yet part of the clerk’s record on appeal, a party should put a copy of the document
in the appendix to their brief, with a notation that the official document has been
requested from the clerk.
There is no suggestion Mother has requested preparation of a supplemental clerk’s record or
supplemental reporter’s record.
13
Generally, appeals may be taken only from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). When orders do not dispose of all
pending parties and claims, the orders remain interlocutory and unappealable until
final judgment is rendered unless a statutory exception applies. Bally Total Fitness
Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps,
842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). If there has been a full trial on
the merits, either to the bench or before a jury, a Mother Hubbard clause— words to
the effect of “all relief not granted is denied”—“indicates the court’s intention to
finally dispose of the entire matter . . . .” Lehmann, 39 S.W.3d at 204.
A full bench trial on the merits was held in this case. The decree of termination
signed following the trial contains the statement, “IT IS ORDERED AND
DECREED that all relief requested in this case and not expressly granted is denied.”
That statement indicates the trial court’s intent to finally dispose of the entire matter.
A pending motion for new trial does not render a final judgment not final. Golden
Rod Oil Co. No. 1 v. Golden West Oil Co. No. 1, 293 S.W. 167, 168 (Tex. Comm’n
App. 1927); Neuhoff Bros., Packers v. Acosta, 319 S.W.2d 416, 418 (Tex. App.—
Dallas 1958), aff’d, 327 S.W.2d 434 (Tex. 1959). We conclude the November 15,
2018 decree is final. Therefore, we have jurisdiction over this appeal.
ANALYSIS
Mother raises two issues that, if sustained, would result in rendition of
judgment: whether the trial court should have dismissed the suit, and whether the
evidence is legally sufficient to support the judgment. If disposition of an issue
would result in a rendition of judgment, we consider that issue before addressing any
issues that would result only in remand for a new trial. Natural Gas Pipeline Co. of
Am. v. Pool, 124 S.W.3d 188, 201 (Tex.2003); In re S.R., 452 S.W.3d 351, 359 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied).
14
I. Dismissal
Mother contends the trial court should have dismissed the suit for “want of
prosecution.” She appears to argue both that the Department abandoned its suit
through delays and that dismissal was mandatory under section 263.401 of the
Family Code, the statute that sets the deadline to begin trial in a termination case.
The version of section 263.401 that governs this case4 states in relevant part:
(a) Unless the court has commenced the trial on the merits or granted
an extension under Subsection (b) or (b-1), on the first Monday after
the first anniversary of the date the court rendered a temporary order
appointing the department as temporary managing conservator, the
court shall dismiss the suit affecting the parent-child relationship filed
by the department that requests termination of the parent-child
relationship or requests that the department be named conservator of
the child.
Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec. 263.401, 2015 Tex. Sess.
Law Serv. 3268, 3283 (amended 2017; current version at Tex. Fam. Code Ann.
§ 263.401(a), (b)). In plain English: with certain exceptions, the deadline to begin a
termination trial is the Monday after one year after the trial court appointed the
Department as the child’s temporary managing conservator. A party who seeks to
enforce the one-year deadline must file a motion to dismiss before trial begins. Act
of May 27, 2007, 80th Leg., R.S., ch. 866, § 3, sec. 263.402(b), 2007 Tex. Sess. Law
Serv. 1837, 1838 (amended 2017; current version at Tex. Fam. Code Ann.
§ 263.402).5
4
Section 263.401 was amended effective September 1, 2017. Act of May 28, 2017, 85th Leg.,
R.S., ch. 319, § 12, sec. 263.401, 2017 Tex. Sess. Law Serv. 716, 721 (codified at Tex. Fam. Code
Ann. § 263.401(a)). The amended version applies only to suits filed on or after the effective date.
Id. § 34, at 735. This suit was filed in September 2016, before the effective date. Therefore, the
dismissal deadline in this case is governed by the 2015 version of the statute. Id. § 33, at 738.
5
As with section 263.401, the version of section 263.402 in effect as of the date of this opinion
applies only to suits filed on or after September 1, 2017. Act of May 28, 2017, 85th Leg., R.S.,
ch. 319, §§ 33, 34, 2017 Tex. Sess. Law Serv. 716, 735, 738.
15
Grandmother filed a motion to dismiss,6 but she does not raise the dismissal
issue on appeal. Mother raises the dismissal issue on appeal, but she did not file a
motion to dismiss or join in Grandmother’s motion. As a result, Mother failed to
preserve her complaint for appellate review. Our sister courts construing the same
version of section 263.402 have reached the same conclusion in three cases. In re
T.W., 557 S.W.3d 841, 843–44 (Tex. App.—Amarillo 2018, pet. denied); In re
B.H.R., 535 S.W.3d 114, 119–20 (Tex. App.—Texarkana 2017, no pet.); In re
S.L.W., 529 S.W.3d 601, 607 (Tex. App.—Texarkana 2017, pet. denied). See also
Tex. R. App. P. 33.1(a) (before a complaint may be presented for appellate review,
record must show complaint was made to trial court by timely request, objection, or
motion that sufficiently stated grounds for desired ruling).
Even if Grandmother’s motion to dismiss was sufficient to preserve error for
Mother, we conclude the trial court was not required to dismiss the case. The one-
year deadline in section 263.401(a) does not apply if the court has granted an
extension under subsection (b) or (b-1) and if trial begins within the new dismissal
date in those subsections. That is what happened in this case.
Subsections (b), (b-1), and (c) state:
(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
6
Grandmother orally requested dismissal before testimony began in the second trial. No written
motion to dismiss by Grandmother appears in the clerk’s record. However, the reporter’s record
suggests she filed a written motion and distributed copies to all counsel at the time of her oral
request.
16
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 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
(3) sets the trial on the merits on a date not later than the date
specified under Subdivision (1).
(b-1) If, after commencement of the initial trial on the merits within
the time required by Subsection (a) or (b), the court grants a motion for
a new trial or mistrial, or the case is remanded to the court by an
appellate court following an appeal of the court’s final order, the court
shall retain the suit on the court’s docket and render an order in which
the court:
(1) schedules a new date on which the suit will be dismissed
if the new trial has not commenced, which must be a date not
later than the 180th day after the date on which:
(A) the motion for a new trial or mistrial is granted; or
(B) the appellate court remanded the case;
(2) makes further temporary orders for the safety and welfare
of the child as necessary to avoid further delay in resolving the
suit; and
(3) sets the new trial on the merits for a date not later than the
date specified under Subdivision (1).
(c) If the court grants an extension under Subsection (b) or (b-1) but
does not commence the trial on the merits before the dismissal date, the
court shall dismiss the suit. The court may not grant an additional
extension that extends the suit beyond the required date for dismissal
under Subsection (b) or (b-1), as applicable.
Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec. 263.401, 2015 Tex. Sess.
17
Law Serv. 3268, 3283–84 (amended 2017; current version at Tex. Fam. Code Ann.
§ 263.401(b-1), (c)).7
We first consider whether the initial trial on the merits commenced “within
the time required by Subsection (a) or (b).” Trial began on January 25, 2018. That
date was later than September 4, 2017, which was the Monday following the one-
year anniversary of September 2, 2016, which was the day the trial court appointed
the Department as Michael’s temporary managing conservator. The record does not
reflect that the trial court signed an order extending the dismissal date due to
extraordinary circumstances under subsection (b). Accordingly, it would appear that
subsection (b-1) does not apply because the initial trial did not begin timely under
subsection (a) or (b).
However, Hurricane Harvey struck the Texas coast on August 25, 2017.
Governor Abbott declared Harris County to be in a state of disaster as of August 23,
2017. Tex. Gov. Proclamation No.41-3550, 42 Tex. Reg. 4541 (2017). The Supreme
Court of Texas issued an order effective August 28, 2017, entitled “Emergency
Order Affecting Child Protection Cases.” The order states in relevant part:
For the protection and care of children for whom the Department is
conservator, and pursuant to Section 22.0035(b) of the Texas
Government Code,[] in counties in which a disaster is declared, the
deadlines and accompanying requirements prescribed in Section
263.401 [of the Texas Family Code] are suspended in a case if the court
finds that disastrous conditions resulting from Hurricane Harvey
precluded compliance. Any such suspension extends to the date the
7
The Supreme Court of Texas concluded an order granting a new trial did not affect the dismissal
deadline in section 263.401, such that the new trial had to be commenced before the original
dismissal deadline. In re Dep’t of Family & Protectives Servs., 273 S.W.3d 637, 644–45 (Tex.
2009) (orig. proceeding). However, subsection (b-1) did not exist when the supreme court so held.
Subsection (b-1) was enacted in 2015. Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, sec.
263.401, 2015 Tex. Sess. Law Serv. 3268, 3283 (amended 2017; current version at Tex. Fam.
Code Ann. § 263.401(b-1). Where common law is revised by statute, the statute controls. Bartley
v. Guillot, 990 S.W.2d 481, 485 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
18
court finds it is reasonably possible to proceed, taking into account the
circumstances.
Misc. Docket No. 17-9111 ¶¶ 3, 4 (issued Sept. 5, 2017; effective Aug. 28, 2017).
See also Misc. Docket Nos. 17-9126 (issued Sept. 26, 2017) (extending expiration
of Misc. Docket No. 17-9111 to Oct. 25, 2017) and 17-9135 (issued Oct. 24, 2017)
(extending expiration of Misc. Docket No. 17-9111 to Nov. 23, 2017).
Just before testimony began in the second trial, counsel for the Department
stated the first trial had been delayed due to Hurricane Harvey. Mother’s lawyer did
not object or challenge that statement. In her brief, Mother cites a September 17,
2017 order in which the trial court retained this case on the docket, and she
acknowledges “the Harvey-related docket retention . . . is arguably valid . . . .” Under
the circumstances of this case, we conclude the initial trial began timely under
subsection (a). Accordingly, subsection (b-1) applies.
We turn next to whether the trial court complied with subsections (b-1) and
(c). The trial court granted a new trial on June 7, 2018. On July 31, 2018, the trial
court rendered an order in which it (1) scheduled a new dismissal date of December
2, 2018, which is not later than 180 days after June 7, 2018; (2) made further
temporary orders for Michael’s safety and welfare; and (3) set a new trial date of
October 16, 2018. The July 31, 2018 order satisfied the trial court’s obligations under
subsection (b-1)(1), (2), and (3). The trial court complied with subsection (c) by
beginning trial on the merits on October 25, 2018, which was before the new
dismissal date of December 2, 2018.
We overrule Mother’s first issue.
II. Termination
Mother’s third issue challenges the legal and factual sufficiency of the
evidence to support termination. Though sustaining her factual-sufficiency
19
challenge would result in remand, not rendition of judgment, we address it with her
legal-sufficiency challenge due to the overlapping analysis.
A. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). However, the child’s emotional and physical interests must not be sacrificed
to preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Parental rights may be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Family
Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(b)(1), (2). Only one predicate finding under section 161.001(b)(1), along
with the best-interest determination, is necessary to support termination. In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003). “‘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 Ann. § 101.007. This high burden reflects the severity of termination.
The heightened burden of proof results in heightened standards of review for
evidentiary sufficiency:
 Legal sufficiency. We consider all the evidence in the light most favorable to the
finding to determine whether a reasonable fact finder could have formed a firm
belief or conviction that its finding was true. We assume the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so, and
we disregard all evidence a reasonable fact finder could disbelieve. In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002).
 Factual sufficiency. We consider and weigh all the evidence, including disputed
or conflicting evidence, to determine whether a reasonable fact finder could have
formed a firm belief or conviction that its finding was true. We consider whether
20
disputed evidence is such that a reasonable fact finder could not have resolved
that dispute in favor of its finding. C.H., 89 S.W.3d at 25.
The fact finder 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 re H.R.M., 209 S.W.3d
105, 109 (Tex. 2006) (per curiam). We may not second-guess the fact finder’s
resolution of a factual dispute by relying on disputed evidence or evidence the fact
finder “could easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003).
B. Predicate ground for termination: Endangerment
1. Legal standards
“To endanger” a child means to expose him to loss or injury or to jeopardize
his emotional or physical health. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); S.R.,
452 S.W.3d at 360. “Conduct” includes acts and failures to act. See In re J.T.G., 121
S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Endangerment
contemplates a voluntary, deliberate, and conscious course of conduct by the parent.
S.R., 452 S.W.3d at 361. A court properly may consider actions and inactions
occurring both before and after a child’s birth to establish a “course of conduct.” In
re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—El Paso 2012, no pet.). While
endangerment often involves physical endangerment, the conduct need not be
directed at a child, nor must the child actually suffer injury. Rather, the specific
danger to the child’s well-being may be inferred from the parent’s misconduct alone.
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W.,
129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s
conduct that subjects a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being. In re A.L.H., 515 S.W.3d 60, 92 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied).
21
A parent’s criminal conduct and imprisonment are relevant to the question of
whether the parent engaged in a course of conduct that endangered the well-being of
the child. S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of Family & Protective
Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.). Imprisonment
alone is not an endangering course of conduct but is a fact properly considered on
the endangerment issue. Boyd, 727 S.W.2d at 533–34. Routinely subjecting a child
to the probability he will be left alone because his parent is in jail endangers the
child’s physical and emotional well-being. S.M., 389 S.W.3d at 492.
2. Application
Mother’s criminal history is marked by violence. She struck another person’s
car with her car in a parking lot, apparently intentionally, while she was eight months
pregnant. While on community supervision for that offense and knowing any further
criminal activity could result in her incarceration, she committed robbery with bodily
injury by stealing from Wal-Mart and “smack[ing] around” an employee during the
course of the crime. She avoided imprisonment for that robbery and was again placed
on community supervision, but less than a month later, she committed a second
robbery with bodily injury. The details of that crime are not clear from Mother’s
testimony. She admitted taking the phone from a store manager and breaking it
because “he was gonna call the police.” When asked what she was doing that caused
him to threaten to call the police, she did not answer the question specifically. Instead
she said, “It was a lot of people at his store and he thought that—well he just
basically told everybody to move—leave away from the store and I really don’t
know why I did that. It was stupid.” Michael was 13 months old when Mother
committed the first robbery and 19 months old when she committed the second.
The public policy of Texas is to “provide a safe, stable, and nonviolent
environment for the child[.]” Tex. Fam. Code Ann. § 153.001(a)(2). A parent’s
22
violent criminal history endangers the well-being of a child. E.g., In re C.A.B., 289
S.W.3d 874, 886 (Tex. App.—Houston [14th Dist.] 2009, no pet.); In re S.M.L., 171
S.W.3d 472, 479–80 (Tex. App.—Houston [14th Dist.] 2005, no pet.); In re T.G.R.-
M., 404 S.W.3d 7, 14–15 (Tex. App.—Houston [1st Dist.] 2013, no pet.). This is not
a situation where Mother’s history of violence ended once she became a parent. To
the contrary, she inflicted significant property damage when she was eight months
pregnant. Then, knowing any further criminal activity could result in her
incarceration, she committed two violent crimes while she had a toddler at home.
As fact finder, the trial court was not limited to considering the mere fact of
Mother’s criminal history. The court could take into account: (1) Mother’s crimes
were violent; (2) she committed them all while pregnant or with a toddler at home;
(3) she committed two of them while on community supervision for previous crimes;
and (4) two of the crimes were second-degree felonies, which carry a punishment
range of two to 20 years’ imprisonment. Those facts constitute legally and factually
sufficient evidence to support the trial court’s endangerment finding.
3. Hearsay
On appeal, Mother contends the evidence is legally and factually insufficient
because it consisted “almost entirely of hearsay and of hearsay within hearsay, both
in the removal/referral affidavit and in live testimony at trial.” She complains
specifically of the lack of evidence that Mother’s boyfriend drew a gun or that the
apartment “reeked of marijuana.” She also states:
It defies belief that an alleged — there was never even a scintilla of
proof — Crip was dating an alleged Blood. Only Leonard Bernstein
could credit that absent compelling evidence; and here there was no
evidence, as such, at all.
Mother’s argument is unpersuasive for two reasons.
23
First, Mother did not preserve her hearsay objection. Mother’s counsel’s
objection was: “I’m gonna object to P3, which is the removal affidavit. It’s hearsay.”
The trial court overruled the objection without requesting a response from the
Department. The removal affidavit is a six-page document containing several
statements by Williams concerning, among other things: (1) the reason for Michael’s
removal, (2) Mother’s and Michael’s birthdates, (3) a summary of the Department’s
investigation, (4) a summary of Michael’s family structure, (5) a summary of
Mother’s and her boyfriend’s criminal histories, (6) a summary of Grandmother’s
history with the Department, (7) a discussion of available relative placements, and
(8) the Department’s request for temporary managing conservatorship of Michael.
Mother’s counsel did not specify the portion or portions of the affidavit to which he
objected. A hearsay objection that does not identify which parts of a document
contain hearsay is not sufficiently specific to preserve error with respect to those
parts. Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981); In re L.M., No.
14-18-01047-CV, __ S.W.3d __, 2019 WL 1526426, at *5 (Tex. App.—Houston
[14th Dist.] Apr. 9, 2019, no pet. h.).
Second, even if Mother had preserved error, reversal is not warranted unless
she shows the error amounted to such a denial of her rights as was reasonably
calculated to cause and probably did cause the rendition of an improper judgment.
See State v. Central Expressway Sign Assocs., 302 S.W.3d 866, 870 (Tex. 2009);
L.M., 2019 WL 1526426, at *5. “To put it another way, a successful challenge to
evidentiary rulings usually requires the complaining party to show that the judgment
turns on the particular evidence excluded or admitted.” Texas Dep’t of Transp. v.
Able, 35 S.W.3d 608, 617 (Tex. 2000). In making this determination, the court must
review the entire record. L.M., 2019 WL 1526426, at *5. The erroneous exclusion
or admission of evidence “is likely harmless if the evidence was cumulative, or the
24
rest of the evidence was so one-sided that the error likely made no difference in the
judgment.” Id. (quoting A.B. v. Tex. Dep’t of Family & Protective Servs., No. 03-
17-00658-CV, 2018 WL 1220894, at *5 (Tex. App.—Austin Mar. 8, 2018, no pet.)
(mem. op.)).
As discussed, at trial Mother admitted certain allegations in the removal
affidavit and denied others. She admitted fighting but denied Michael was nearby or
that her boyfriend drew a gun. She also admitted to her three criminal convictions,
even offering her own account of those crimes. When evidence identical or similar
to the objected-to evidence is admitted elsewhere without objection, there is no
harm. In re R.H.W., 542 S.W.3d 724, 740 (Tex. App.—Houston [14th Dist.] 2018,
no pet.). Further, as the sole arbiter when assessing the credibility and demeanor of
a witness, the trial court was free to discredit Mother’s self-serving testimony. See
H.R.M., 209 S.W.3d at 109. In reviewing the entire record, we conclude any error in
admitting hearsay statements in the removal affidavit was harmless.
C. Best interest
1. Legal standards
Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). Texas courts presume two conditions to be in a child’s best interest:
(1) prompt, permanent placement in a safe environment, id. § 263.307(a); and
(2) remaining with the child’s natural parent. In re U.P., 105 S.W.3d 222, 230 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g). The best-interest
analysis focuses on the child, not the parent. In re K-A.B.M., 551 S.W.3d 275, 287
(Tex. App.—El Paso 2018, no pet.).
Courts may consider these non-exclusive factors, known as the Holley factors,
in their best-interest analysis: the desires of the child; the physical and emotional
needs of the child now and in the future; the physical and emotional danger to the
25
child now and in the future; the parental abilities of the persons seeking custody; the
programs available to assist those persons seeking custody in promoting the best
interest of the child; the plans for the child by the individuals or agency seeking
custody; the stability of the home or proposed placement; acts or omissions of the
parent that may indicate the existing parent-child relationship is not appropriate; and
any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list of factors is not exhaustive, and evidence is not
required on all the factors to support a finding that termination is in the child’s best
interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). The Family Code also identifies factors the court may consider in evaluating
a parent’s willingness and ability to provide the child with a safe environment. Tex.
Fam. Code Ann. § 263.307(b). Finally, evidence supporting the statutory predicate
of termination is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
2. Application
Michael’s desires and needs. When a child is too young to express his desires,
the fact finder may consider that the child has bonded with the foster family, is well
cared for by them, and has spent minimal time with a parent. In re L.G.R., 498
S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); In re J.D.,
436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). It is
undisputed that Michael is extremely bonded with his foster mother and well cared
for by her. It is also undisputed that Michael was very close with Grandmother before
removal. Though the removal affidavit alleged Grandmother’s home “reeked of
marijuana” the day before Michael was removed, the affidavit also alleged her home
was physically safe and Michael appeared healthy. Byrd testified Michael used to
cry hysterically for the first 20 to 30 minutes of his visits with Grandmother. Over
time, as he became accustomed to her, he did not appear to be in as much distress
26
during their visits.
Stability of proposed placement. Byrd testified Michael’s foster mother is
meeting all his needs, and he “excelled” and “thrived” under her care. She expressed
no concern about the foster home. Byrd said the Department was still concerned
about Grandmother’s home as a placement for Michael. In particular, Grandmother
still would not identify all the people living in the home, and she appeared unwilling
to protect Michael from Mother.
Endangerment by Mother. Evidence supporting termination under the
grounds listed in section 161.001(b)(1) can be considered in support of a finding that
termination is in the child’s best interest. See C.H., 89 S.W.3d at 27. Accordingly,
the evidence of Mother’s endangerment of Michael, discussed above, is relevant to
the best-interest analysis.
Service plan. Mother testified she completed two parenting classes and her
psychological evaluation in prison. Byrd testified Mother “attempted” to complete
parenting classes and the psychological evaluation. No evidence suggests Mother
would have been able to complete any other requirements of her service plan while
incarcerated.
Mother’s willingness and ability to parent. Mother stated she will do
“whatever it takes” to help Michael succeed in life. She testified she understands her
residence when she is released from prison will depend on whether Michael is placed
with Grandmother.
Programs available. There is no evidence about specific programs available
to assist Mother in parenting Michael.
Acts or omissions and any excuses for them. Mother offered no excuses for
her criminal behavior.
27
D. Conclusion
Applying the applicable standards of review, we conclude the evidence is
legally and factually sufficient to support the trial court’s finding under subsection
E of section 161.001(b)(1) that Mother endangered Michael. Accordingly, we do not
review the trial court’s findings under subsections N, O, or Q. A.V., 113 S.W.3d at
362. We likewise conclude legally and factually sufficient evidence supports the trial
court’s finding that termination of Mother’s parental rights is in Michael’s best
interest. We overrule Mother’s third issue.
III. Indian Child Welfare Act
In her second issue, Mother contends “[t]he case is marred by an abject,
persistent, prejudicial, and reversible failure to comply with” the Indian Child
Welfare Act (ICWA). See 25 U.S.C. §§ 1901–63. Mother did not raise her ICWA
objection in the trial court. Under Texas law, her failure to object precludes her
complaint on appeal. See Tex. R. App. P. 33.1(a). However, this court has held the
ICWA preempts state law to the extent there is a conflict. In re W.D.H., 43 S.W.3d
30, 36 (Tex. App.—Houston [14th Dist.] 2001, no pet.).; accord In re J.J.C., 302
S.W.3d 896, 898–99 (Tex. App.—Waco 2009) (mem. op. and abatement order),
disp. on merits, Nos. 10-09-00269-CV, 10-09-00270-CV, 2010 WL 1380123 (Tex.
App.—Waco Apr. 7, 2010, no pet.) (mem. op.). A complaint alleging a failure to
follow the ICWA may be raised for the first time on appeal. J.J.C., 302 3 at 899.
“The Indian Child Welfare Act of 1978 . . . was the product of rising concern
in the mid–1970’s over the consequences to Indian children, Indian families, and
Indian tribes of abusive child welfare practices that resulted in the separation of large
numbers of Indian children from their families and tribes through adoption or foster
care placement, usually in non-Indian homes.” Adoptive Couple v. Baby Girl, 570
U.S. 637, 642 (2013) (quoting Mississippi Band of Choctaw Indians v. Holyfield,
28
490 U.S. 30, 32 (1989)); see generally Yavapai-Apache Tribe v. Mejia, 906 S.W.2d
152, 161–62 (Tex. App.—Houston [14th Dist.] 1995, orig. proceeding) (discussing
history and purpose of ICWA). When the court knows or has reason to know an
Indian child is involved in a child custody proceeding, the ICWA applies to the
proceeding. See 25 U.S.C. § 1912(a); W.D.H., 43 S.W.3d at 34.
Each of the Department’s permanency reports filed in the trial court contains
a section regarding the child’s Native American status. The Department is supposed
to select one of the following options:
No parent/relative interviewed yet about possible American Indian
child status.
Child’s possible American Indian status reported by
[parent/relative/other], and is yet to be determined.
Child’s American Indian status denied by [parent/relative/other].
American Indian status confirmed by [tribe].
Mother cites the permanency report filed July 25, 2018, that indicates no
parent or relative had been interviewed yet about Michael’s American Indian status.
She fails to cite the September 25, 2018 permanency report, which indicates
Grandmother had denied Michael’s American Indian status. Grandmother’s denial
rendered the ICWA inapplicable.
We overrule Mother’s second issue.
IV. Department’s “care plans”
Mother’s fourth issue states, “The court below committed reversible error, or
a reversible abuse of discretion, in rendering judgment for [the Department] absent
adherence to the [Department’s] own care plans.” She does not identify the “care
plans” to which she refers, nor does she demonstrate that she raised this issue in the
trial court. This is the entirety of Mother’s argument on this issue:
29
None of the proceedings below has the vaguest relation to the care
plans, on which Appellant, in preparing her defense, was entitled to
rely. As explained by the Supreme Court in In re Tex. Dept. of Fam. &
Prot. Servs, 255 S.W.3d 613 (Tex. 2008), the Court must consider
protective remedies, including “removing the alleged perpetrators,
restraining movement of a child from a specified geographical area,
actions that would assist in the investigation[,] and any other
appropriate relief under the court’s broad authority for the safety and
welfare of the child.” Id., at 613.
As set out in the Statement of Facts, supra, the record clearly reflects
that [the Department] did not adhere to its own Care Plans / Family
Service Plans. It did not concern itself with removing the alleged
perpetrator, the then-paramour alleged, upon inadmissible hearsay, to
have endangered the child; it clearly took no actions and sought no
records that would assist in the investigation; it refused even to consider
– despite having no ground to dismiss consideration of – a placement
with the biological grandmother; and it declined to pursue any less
severe a course than to mount an assault upon Appellant’s parental
rights and seek involuntary termination, despite its having no
competent evidence to support the same.
The failure or disinclination of [the Department] to obtain the files
showing Appellant’s compliance with and completion of, duties
imposed upon her by the Family Service Plan below, while incarcerated
at TDCJ Lucile Plane State Jail, and the judgment rendered at least in
part upon the lack thereof though it was Appellee’s duty to obtain these,
was reversible error or constituted a reversible abuse of discretion.
Absence of proof is no proof of absence. Appellant, as set out in the
Statement of Facts, supra, testified to good faith compliance efforts
while incarcerated, sufficient to advance an affirmative defense under
Texas Family Code Secton [sic] 161.001(d), she bearing the burden of
proof to show to the court below by a preponderance of the evidence
whether she did, in good faith, attempt to comply with that court’s
order.
And the court below supinely acquiesced in [the Department’s] sloth,
in the teeth of the holding in In re Tex. Dept. of Fam. & Prot. Servs,
supra: thus erring or abusing its discretion, reversibly.
The cited passage from In re Texas Department of Family and Protective Services
30
refers to a trial court’s options, not requirements, in making orders for the safety and
welfare of the child. 255 S.W.3d at 613. The opinion does not suggest those options
constitute “care plans” by the Department.
To preserve a complaint for appellate review, the party must sufficiently raise
the issue in the trial court. See Tex. R. App. P. 33.1(a). Further, every issue presented
by a party must be supported by argument and authorities in the party’s brief on the
merits, or it is waived. Gunn v. McCoy, 554 S.W.3d 645, 677 (Tex. 2018); see Tex.
R. App. P. 38.1(i). Mother neither preserved error regarding any “care plans” nor
briefed the issue adequately. We overrule Mother’s fourth issue.
V. Ineffective assistance of counsel
In her fifth issue, Mother argues she was denied effective assistance by her
trial counsel and her first appellate counsel.
A. Legal standards
Parents who cannot afford to retain counsel in Texas parental-termination
cases enjoy a right to appointed, effective counsel. In re M.S., 115 S.W.3d 534, 544
(Tex. 2003). We apply the established Strickland test in parental-termination
proceedings. Id. at 545 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
Strickland imposes a two-pronged standard to establish an ineffective-assistance
claim. First, the parent must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the
parent must show that the deficient performance prejudiced the case. This requires
showing that counsel’s errors were so serious as to deprive the party of a fair trial—
a trial whose result is reliable. Strickland, 466 U.S. at 687. In other words, a parent
must show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the parent’s case. M.S., 115 S.W.3d at 545.
31
To determine whether representation was deficient, we must consider all of
the circumstances surrounding the case and determine whether counsel was
“reasonably effective.” Id. In doing so, we afford great deference to counsel’s
performance, indulging “a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. (quoting Strickland, 466
U.S. at 689). Only if counsel’s conduct is “so outrageous that no competent attorney
would have engaged in it” will we find such performance deficient. Id. (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In conducting the harm analysis under the second prong of Strickland,
reviewing courts must determine whether there is a reasonable probability that, but
for the deficient performance, the result of the proceeding would have been different.
M.S., 115 S.W.3d at 550. In this context, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Thus, the parent must also show that “counsel’s deficient performance prejudiced
the defense.” In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting Strickland,
466 U.S. at 687).
An allegation of ineffective assistance of counsel in a termination proceeding
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness and the resulting harm. L.G.R., 498 S.W.3d at 209. We
may not speculate and find trial counsel ineffective when the record is silent
regarding counsel’s reasons for his actions. In re Z.M.R., No. 14-18-00461-CV, 2018
WL 5660725, at *8–9 (Tex. App.—Houston [14th Dist.] Nov. 1, 2018, no pet. h.)
(mem. op.). Mother bears the burden of demonstrating a reasonable probability her
parental rights would not have been terminated if not for her trial counsel’s conduct.
See In re V.V., 349 S.W.3d 548, 559–60 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied).
32
B. Application
In her brief, Mother identifies three categories of ways in which her trial
counsel was deficient: (1) failure to object to hearsay (she says he “failed adequately
to object to the admission of Exhibits P3, P5, P8, and P11 over hearsay objections”
and “failed consistently and effectively to object to [the Department’s] entirely
conclusory and hearsay-ridden testimony”), (2) inadequate development of evidence
regarding Mother’s service plan (she cites his failure to object to the Department’s
“anticipatory defense” that Mother could not complete her family service plan
because she was in prison and his failure to obtain prison records relevant to
Mother’s completion of the service plan), and (3) errors in trial strategy (she
complains he failed “affirmatively to prosecute [Mother’s] defense and affirmative
defenses” and “to obtain the testimony of a trial witness of [Mother’s boyfriend]”).
She also asserts she received ineffective assistance of counsel on appeal, because her
former appellate lawyer filed a “frivolous appeal brief where there are nonfrivolous
issues.”
Hearsay objections. Mother first suggests her trial lawyer had a duty to both
object to the admission of evidence and then, after the trial court overruled the
objection, object again. She cites no authority to support that contention. In any
event, when Byrd testified about the referral affidavit, Mother’s trial lawyer objected
again that the underlying allegations were hearsay. Second, as discussed at length
above, any error the trial court committed in admitting hearsay evidence was
harmless, so any failure to object to such hearsay could not have prejudiced Mother.
Service plan. Mother faults her trial lawyer both for (1) not objecting to the
Department’s “anticipatory defense” that Mother was not able to complete her
service plan because she was in prison, and (2) not developing the affirmative
defense, now codified in section 161.001(d) of the Family Code, that she was unable
33
to complete her family service plan because she was in prison.8 She does not explain
how her lawyer could be at fault in both respects simultaneously.
Trial strategy. Mother does not identify what defense and affirmative
defenses her lawyer should have developed. We must indulge in the “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” M.S., 115 S.W.3d at 549. That presumption also insulates
Mother’s trial lawyer’s decision not to call Mother’s boyfriend, who had a long
criminal history, to testify.
Appellate counsel. Any harm to Mother caused by Juliane Crow’s filing of an
Anders brief was cured when Scott Poerschke became counsel for Mother and filed
a brief on her behalf.
C. Conclusion
Mother has not shown that (1) her trial counsel’s performance was deficient,
or (2) the deficient performance prejudiced her case. M.S., 115 S.W.3d at 545. We
overrule Mother’s fifth issue.
VI. Conservatorship
In her sole issue, Grandmother contends the judgment cannot stand because it
is based on legally and factually insufficient evidence. An appealing party may not
complain of errors that do not injuriously affect her or that merely affect the rights
8
Section 161.001(d) applies only to suits filed on or after its effective date of September 1, 2017.
Act of May 26, 2017, 85th Leg., R.S., ch. 317 §§ 73(c), 79, 2017 Tex. Sess. Law Serv. 615, 618,
640–41 (to be codified at Tex. Fam. Code § 161.001(b)(1)(d)). The Department filed its original
petition for termination in September 2016. Accordingly, the 161.001(d) defense to subsection O
does not apply to this case. In re S.J.N., No. 14-18-00529-CV, 2018 WL 6494256, at *5 (Tex.
App.—Houston [14th Dist.] Dec. 11, 2018, pet. denied) (mem. op.) (op. on reh’g) (concluding
161.001(d) defense did not apply to suit filed in June 2017); In re A.W., No. 02-18-00147-CV,
2018 WL 5074770, at *10 (Tex. App.—Fort Worth Oct. 18, 2018, no pet. h.) (mem. op.)
(concluding section 161.001(d) defense did not apply to suit filed in October 2016).
34
of others. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 150 (Tex. 1982);
Breaux v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-03-00392-CV, 2004
WL 1171691, at *1 (Tex. App.—Austin May 27, 2004, pet. denied). Accordingly,
Grandmother lacks standing to challenge the termination of Mother’s parental rights.
See Breaux, 2004 WL 1171691, at *1 (“[I]t is doubtful that [the grandmother] has
standing to complain of the termination of [the mother’s] parental rights.”). Based
on her assertion in her brief that “[e]vidence as to Grandmother’s suitability as a
conservator . . . was legally and factually insufficient to support the judgment
rendered,” we interpret her issue as a challenge to the trial court’s decision to appoint
the Department, rather than her, as Michael’s permanent managing conservator.
The Texas Family Code creates a rebuttable presumption that a parent will be
named a child’s managing conservator unless the court finds that such appointment
would not be in the child’s best interest “because the appointment would
significantly impair the child’s physical health or emotional development.” Tex.
Fam. Code Ann. § 153.131(a). If the trial 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.”
Tex. Fam. Code Ann. § 161.207(a).
Termination of parental rights and appointment of a non-parent as sole
managing conservator are two distinct issues, requiring different elements, different
standards of proof, and different standards of review. Compare Tex. Fam. Code Ann.
§ 161.001 with Tex. Fam. Code Ann. § 153.131(a); see also In re J.A.J., 243 S.W.3d
611, 615–17 (Tex. 2007). Additionally, “[t]he best interest of the child shall always
be the primary consideration of the court in determining the issues of
conservatorship[.]” Tex. Fam. Code Ann. § 153.002.
35
Unlike the standard of proof for termination of parental rights, the findings
necessary to appoint a non-parent as sole managing conservator need be established
by a mere preponderance of the evidence. See Tex. Fam. Code Ann. § 105.005;
J.A.J., 243 S.W.3d at 616. Likewise, the standard of review for the appointment of
a non-parent as sole managing conservator is less stringent than the standard of
review for termination of parental rights. J.A.J., 243 S.W.3d at 616. We review a
trial court’s appointment of a non-parent as sole managing conservator for abuse of
discretion only. Id. We may not reverse the trial court’s appointment of a non-parent
as sole managing conservator unless we determine the appointment is arbitrary or
unreasonable. Id.
Because both parents’ rights had been terminated, the trial court was required
under section 161.207 of the Family Code to appoint a “suitable, competent adult,”
the Department, or another permissible agency as Michael’s managing conservator.
See In re C.N.S., No. 14-14-00301-CV, 2014 WL 3887722, at *13 (Tex. App.—
Houston [14th Dist.] Aug. 7, 2014, no pet.) (mem. op.). The appointment may be
considered a “consequence of the termination.” L.G.R., 498 S.W.3d at 207.
Like Mother, Grandmother suggests the trial court improperly based its
conservatorship decision on flimsy evidence: hearsay allegations in the removal
affidavit, testimony regarding her own Department history but no documentary
evidence of that history, and disputed evidence about the nature of her and Michael’s
visits. She writes:
The standard for review in these cases being akin to that in criminal
appeals, it hardly wants pointing out that this evidence is akin to trying
someone, impermissibly, “for some collateral crime or for being a
criminal generally” – with the added fillip that here, all that is advanced
is rumor and suspicion never resulting in an adjudication of unfitness.
We first note Grandmother’s argument is premised on an incorrect burden of
36
proof and standard of review. As stated above, the burden of proof for
conservatorship is preponderance of the evidence, not beyond a reasonable doubt,
and the standard of review is abuse of discretion, not evidentiary sufficiency.
Further, even ignoring the allegation that Grandmother’s apartment “reeked
or marijuana,” there is other evidence on which the trial court could have based its
conservatorship decision. Grandmother did not deny her Department history at trial,
nor did she object to the lack of documentary evidence of that history. She has not
preserved error in that regard. See Tex. R. App. P. 33.1(a). She did not challenge
Byrd’s testimony regarding people living in Grandmother’s apartment whom
Grandmother refused to identify. We must defer to the fact finder’s implicit
assessment of credibility and demeanor of witnesses as well as its resolution of
factual disputes. See L.M.I., 119 S.W.3d at 712.
Because Grandmother has not shown the trial court’s decision was arbitrary
or unreasonable, we find the trial court did not abuse its discretion in appointing the
Department, rather than her, as Michael’s managing conservator. We overrule
Grandmother’s sole issue.
CONCLUSION
We affirm the trial court’s final decree.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Hassan.
37