Opinion
No. 04-17-00620-CV
02-21-2018
In the Interest of A.L. et al., Children
MEMORANDUM OPINION
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 16-2158-CV
Honorable Thomas Nathaniel Stuckey, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This is an accelerated appeal from an order terminating Mother's parental rights to her four children, A.L., A.L., A.L., and A.L. Mother contends the evidence is legally and factually insufficient to support the trial court's findings with regard to the three statutory grounds for termination and its finding that termination of Mother's parental rights is in the children's best interest. Mother also contends she received ineffective assistance of counsel. We affirm the trial court's order terminating Mother's parental rights.
Because all four children have the same initials, we will refer to them as A.L.1 through A.L.4. Although the trial court's order also terminated Father's parental rights to A.L.3 and A.L.4, only Mother appeals the trial court's termination order. Therefore, we will discuss the trial court's order only as it pertains to Mother.
BACKGROUND
On September 17, 2016, the Texas Department of Family and Protective Services ("Department") received a referral alleging child abuse when A.L.4 was admitted to the hospital with an unexplained traumatic head injury and intracranial bleeding. In light of A.L.4's injuries and Mother's statements to investigators, the Department filed suit to terminate Mother's rights to her four children, A.L.1, A.L.2, A.L.3, and A.L.4. On September 30, 2016, the trial court awarded the Department temporary managing conservatorship of the four children. A.L.1 and A.L.2 were placed in the maternal grandparents' home and A.L.3 and A.L.4 were placed with a foster family. At the non-jury trial held on September 18, 2017, the trial court heard testimony from Department investigator Daniel Uresti, Seguin Police Department Detective Vasser, Department caseworker Tracey Fewell, the foster mother of A.L.3 and A.L.4, and three medical doctors who had treated A.L.4. At the time of trial, A.L.1 and A.L.2 ("the girls") were four years old and three years old, respectively, and twin boys A.L.3 and A.L.4 ("the twins") were fifteen months old.
Uresti testified that on September 17, 2016, he was informed of a possible case of child abuse when A.L.4 was admitted to the hospital and diagnosed with intracranial bleeding. At that time, A.L.4 was three months old. After arriving at the hospital where A.L.4 was being treated, Uresti met with Mother. According to Uresti, Mother told him A.L.4 had been fussy throughout the day and the girls had been a handful. Mother tried to comfort A.L.4 to stop his crying, but A.L.4 only cried louder. Uresti stated Mother told him she then picked A.L.4 out of his basket, raised the child up to her eye level, and shook him. A.L.4 stopped crying, and Mother put A.L.4 back in his basket. Shortly thereafter, A.L.4's arms and eyes began to twitch, and Mother decided to take him to the hospital.
During their conversation, Mother also told Uresti she had anger issues, and that one of her prior parole officers had advised her to seek help for her anger issues. Mother told Uresti she knew she had shaken A.L.4 too hard, and that she should have removed herself from the area to deal with her anger before shaking A.L.4. Mother also informed Uresti that she fought with and beat her own mother. Uresti testified that while they were at the hospital, Uresti and Mother viewed A.L.4, who was intubated and sedated in ICU. According to Uresti, Mother spoke to the child, saying, "I'm sorry, baby. I'm sorry ... I'm sorry for what I did to you."
After speaking with Mother, Uresti called Detective Vasser and informed Vasser of what Mother told him. Vasser requested Mother go to the police station so Vasser could interview her. According to Vasser, after conversing about the doctors' findings regarding A.L.4's injuries, Mother admitted she shook A.L.4 because he would not stop crying. Mother related to Vasser she was extremely stressed out the day she shook A.L.4 and that she gets overwhelmed at times because she has so many small children.
According to Department caseworker Fewell, at the time of the incident giving rise to A.L.4's injury, Mother and Father were separated due to incidents of domestic violence between them. Fewell related the last known incident of domestic violence between Mother and Father occurred just before the twins' birth while A.L.1 and A.L.2 were present in the home. Fewell testified that when she first spoke with Mother in October 2016, Mother was remorseful and indicated a willingness to do whatever the Department requested of her in order to regain custody of her children.
The Department assigned Mother a service plan, which was made an order of the court. Mother completed a parenting class, an anger management class, and a psychological evaluation. Mother also maintained consistent contact with the children by sending them letters and drawings. However, Mother was unable to complete the remaining classes required by her service plan because she was arrested and subsequently imprisoned in April 2017 following the revocation of her parole. Mother remained incarcerated at the time of trial. The Department introduced evidence of Mother's criminal history, which includes convictions for assault-bodily injury-family violence against Mother's now-adult daughter and engaging in organized criminal activity, for which Mother was sentenced to three years' imprisonment. The Department also introduced into evidence an indictment against Mother for injury to a child with intent to commit serious bodily injury for shaking A.L.4. Fewell related that since Mother was reincarcerated, her attitude has worsened, she no longer feels remorseful for her actions, and she has accused the Department of conspiring against her to ensure she does not regain custody of her children.
Fewell testified A.L.1 and A.L.2 have lived with their maternal grandmother and step-grandfather ("grandparents") since November 2016 as a result of a court-ordered placement and following an approved home study. Fewell testified A.L.1 and A.L.2 are thriving in their placement with the grandparents and love their grandparents very much. Fewell related the girls respond very well to the grandparents, get along well with each other, and are doing very well both in school and in day care. Fewell testified the Department has agreed to allow Father unsupervised possession of the girls on a weekly basis, and that the Department's plan for the girls is for the grandparents to be their permanent managing conservators and for Father to eventually be named possessory conservator. According to Fewell, Father has a positive influence on the girls and guides, counsels, and instructs them in an appropriate manner. Fewell further testified the grandparents and the twins' foster parents have a great relationship and facilitate sibling visitation between the girls and the twins.
E.V., the foster mother of A.L.3 and A.L.4, testified she and her husband have cared for the twins in their home for approximately a year. E.V. testified she is a stay-at-home mother. E.V. related that A.L.4 has severe hemophilia A, cerebral palsy, and epilepsy, and A.L.3 has severe hemophilia A. E.V. related that both twins require extensive medical care, e.g., both twins receive treatment for hemophilia by way of needle injections via port-a-cath. A.L.3 receives treatment biweekly, while A.L.4, whose condition is much worse, receives treatment daily. E.V. testified a home health nurse comes to their home to attend to the twins' medical needs and administer the treatment. E.V. further testified A.L.4 spent 24 days in the hospital throughout the past year due to issues related to his hemophilia or epileptic seizures.
Regarding the twins' development, E.V. testified that although A.L.3 can push buttons on toys, walks around the house by holding onto furniture, and socializes well with others, A.L.4 cannot. Furthermore, A.L.4 will soon need to start wearing braces on his feet to assist him with standing and walking. E.V. testified the twins will require full-time, 24-hour care, and that A.L.4 will likely require full-time care for the rest of his life. Despite their medical conditions, E.V. has seen significant progress in the twins' development since taking them into her home. E.V. testified she and her husband love A.L.3 and A.L.4 and are willing to adopt them if given the opportunity.
Fewell testified that E.V. and her husband have designed their house to adequately meet the twins' medical and social needs; the twins require intensive, 24-hour supervision; and she has no doubt E.V. is able to meet the twins' needs. According to Fewell, Mother does not have either the knowledge or the ability to care for the twins' medical needs. Fewell further testified the Department's plan for the twins is for them to be adopted by E.V. and her husband. Fewell testified none of the children are at risk of any physical harm in their current placements.
Dr. Melissa Frei-Jones explained that when A.L.4 was admitted to the hospital after being shaken by Mother, his intracranial bleeding required significant surgery to remove a subdural blood clot. Dr. Frei-Jones affirmed the twins require extensive medical care and A.L.4 in particular requires constant supervision. Dr. Natalie Kissoon testified that when A.L.4 was admitted to the hospital in September 2016, the CT scan revealed A.L.4 had sustained significant trauma to the brain. Dr. Kissoon also explained, given the nature of A.L.4's injury, the likelihood that something other than physical abuse was responsible for A.L.4's injury was "very, very, very, very, very, very small." Dr. Sidney Atkinson testified A.L.4's brain injury was so extensive, it would be similar to an injury sustained in a high-speed car collision or from falling off the porch of a multi-story building. Dr. Atkinson explained such brain damage is also seen in children who suffer from Shaken Baby Syndrome. Dr. Atkinson further testified that, based on her examinations of the child and the child's medical history, she concluded A.L.4's epilepsy and cerebral palsy are linked to the head trauma he sustained in September 2016. According to Dr. Atkinson, A.L.4 has no chance of ever fully recovering from the injuries he sustained from trauma to the brain.
After receipt of evidence and testimony, the trial court signed an order terminating Mother's parental rights to the four children. Specifically, the trial court found Mother (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct endangering the children's physical or emotional well-being; (2) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). The trial court also found termination of Mother's parental rights to be in the children's best interest. See id. § 161.001(b)(2). Mother appeals the trial court's order terminating her parental rights to the four children.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'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.
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
In reviewing the factual sufficiency of the evidence to support the termination of parental rights, the court views all the evidence and determines whether a reasonable factfinder could form a firm belief or conviction that a given finding was true. See id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). The court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266. "A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. "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." Id.
STATUTORY TERMINATION GROUNDS
In her first issue, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's finding of statutory grounds for termination of her parental rights pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), and (O).
Under Subsection (E), the trial court was required to find, by clear and convincing evidence, that 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." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The term "endanger" means that the child was exposed to loss or injury or jeopardized. In re T.N.S., 230 S.W.3d 434, 438 (Tex. App.—San Antonio 2007, no pet.). Endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." In re S.M., 389 S.W.3d 483, 491 (Tex. App.—El Paso, 2012, no pet.) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "Likewise, while endangerment often entails physical endangerment, the statute does not require that conduct be directed at a child or cause actual harm; rather, it is sufficient if the conduct endangers the emotional well-being of the child." Id. "Thus, the court's inquiry encompasses acts that endanger a child's physical or emotional well-being or both." Id.
The relevant inquiry for termination under Subsection (E) is "whether evidence exists that the endangerment was the direct result of the parent's conduct, including acts, omissions, or failures to act." Id. "Termination requires a voluntary, deliberate and conscious course of conduct; it must be based on more than a single act or omission." Id. We consider the parent's conduct both before and after the child's birth. In re T.N.S., 230 S.W.3d at 439. "[T]he parent's conduct does not necessarily have to be directed at the child nor is the child required to actually suffer injury." Id. The specific danger to a child's well-being "need not be established as an independent proposition, but may be inferred from parental misconduct." In re N.K., 99 S.W.3d 295, 300 (Tex. App.—Texarkana 2003, no pet.). Moreover, evidence of criminal conduct, convictions, and imprisonment may establish a course of conduct that endangers the child's well-being. In re J.T.G., 121 S.W.3d 117, 133 (Tex. App.—Fort Worth 2003, no pet.).
In this case, the record shows Mother engaged in abusive conduct on multiple occasions against multiple family members. The Department began its investigation when A.L.4 was diagnosed at the hospital with intracranial bleeding. Both Uresti and Detective Vasser testified Mother admitted to them she shook A.L.4 because he would not stop crying. A.L.4's injuries were so extensive he required significant surgery. Moreover, due to his injuries, A.L.4 developed cerebral palsy and epilepsy. Dr. Atkinson related that A.L.4 will never fully recover from the injuries he sustained because of Mother's abusive conduct. Fewell testified Mother had a history of domestic violence with Father, and that domestic violence between Mother and Father occurred just prior to the twins' birth while A.L.1 and A.L.2 were present in the home. The record also shows Mother was convicted of assault-bodily injury-family violence against Mother's now-adult daughter. Furthermore, Mother told Uresti she has anger issues and has fought with and beat her own mother.
In addition to the evidence relating to Mother's abusive conduct, the Department also presented evidence relating to Mother's criminal history and incarceration. At the time of the incident giving rise to A.L.4's injuries, Mother was on parole. Mother's parole related to a conviction she received for engaging in organized criminal activity, for which she was sentenced to three years' imprisonment. Mother was indicted on first degree felony charges for her conduct in shaking A.L.4. At the time of trial, Mother was incarcerated for violating the conditions of her parole and was also awaiting criminal proceedings relating to the indictment.
Mother's history of domestic violence, abusive conduct, criminal activity, and incarceration demonstrates Mother engaged in conduct that endangered the physical and emotional well-being of the children. Viewing all the evidence in the light most favorable to the judgment, we conclude a reasonable trier of fact could have formed a firm belief or conviction Mother engaged in conduct that endangered the physical or emotional well-being of the children. Likewise, viewing all the evidence, including any disputed or conflicting evidence, we conclude a reasonable trier of fact could have formed the same firm belief or conviction. Accordingly, we conclude the evidence is legally and factually sufficient to support the trial court's termination finding under Section 161.001(b)(1)(E).
Having determined the evidence is legally and factually sufficient to support the trial court's finding on this statutory ground, we need not consider whether the evidence would support Subsections (D) or (O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (affirming determination based on one predicate without reaching second predicate found by factfinder and challenged by parent). We overrule Mother's first issue.
BEST INTEREST OF THE CHILDREN
In her second issue, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights is in the children's best interest.
The Texas Supreme Court has enumerated the following factors to assist courts in evaluating a child's best interest: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d at 27. "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
Turning to the evidence regarding the best interest of the children, we consider the Holley factors as outlined above.
Desires of the Children/Emotional and Physical Needs
All four of the children were under the age of five at the time of trial, and thus were too young to verbally communicate their desires. However, when a child is too young to express his desires, the factfinder may consider whether the child has bonded with the current caregiver, is well-cared for, and has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Regarding A.L.1 and A.L.2, Fewell testified the girls are thriving in their placement with the grandparents, love their grandparents very much, and respond very well to the grandparents. Regarding A.L.3 and A.L.4, the record shows the twins are well-cared for in their foster home placement. E.V. and her husband have designed their home to adequately meet the twins' medical and social needs. E.V. is dedicated to caring for the twins on a full-time basis. E.V., Fewell, and Dr. Frei-Jones all testified the twins are medically fragile and require constant care and supervision. The record indicates A.L.4 has developmental delays and likely will require medical care for the rest of his life. According to Fewell, however, Mother did not have either the knowledge or the ability to care for the twins' medical needs.
Although Mother has maintained contact with the children by sending them letters and drawings, the children have not spent time with Mother since she was incarcerated for violating the conditions of her parole in April 2017. Moreover, because of Mother's incarceration, she has not been able to provide for the emotional and physical needs of the children. Even if Mother were not incarcerated, the record reflects Mother has an unstable temperament and is susceptible to being overwhelmed by having to take care of so many small children.
Emotional and Physical Danger/Stability/Acts and Omissions
The trial court may consider a parent's history with other children when considering the risks or threats of a parent's environment. In re E.A.F., 424 S.W.3d 742, 751 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Likewise, "[a] fact finder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent." In re J.D., 436 S.W.3d at 118.
The record demonstrates Mother presents a danger to the physical and emotional well-being of the children. Mother's abusive conduct against A.L.4 resulted in a head injury requiring significant surgery and caused permanent damage from which he will never fully recover. Furthermore, Mother's criminal history includes a conviction for physically abusing her now-adult daughter. Mother's abusive conduct toward two of her children represents a threat to the physical and emotional well-being of all the children. See In re E.A.F., 424 S.W.3d at 751 ("Part of [the] calculus includes the harm suffered or the danger faced by other children under the parent's care.") (internal quotations omitted). Moreover, the record shows Mother admitted she has anger issues, Mother and Father engaged in domestic violence while the girls were present in the home, and Mother fought with and beat her own mother. See In re E.A.F., 424 S.W.3d at 751.
The record additionally shows Mother's criminal history, which includes convictions for assault-bodily injury-family violence and organized criminal activity, for which Mother was sentenced to three years' imprisonment. Moreover, at the time of trial, Mother was incarcerated for violating the conditions of her parole. A parent's inability to maintain a lifestyle free from arrests and incarcerations is relevant to the best-interest determination. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.); In re Z.I.A.R., No. 10-16-00039-CV, 2016 WL 4150691, at *4 (Tex. App.—Waco Aug. 3, 2016, no pet.). Mother's inability to maintain a lifestyle free of criminal conduct subjects the children to instability and endangers their well-being. See In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005) ("When parents ... repeatedly commit criminal acts that subject them to the possibility of incarceration, that can negatively impact a child's living environment and emotional well-being.").
On the other hand, the record reflects all the children are doing well in their respective placements and that none of the children are currently at risk of any physical harm.
Plans for the Children
The Department's plan for A.L.1 and A.L.2 is that the grandparents will be their permanent managing conservators and Father will be given possessory conservatorship with a standard visitation order. Fewell explained Father is a positive influence on the girls and counsels, guides, and instructs them in an appropriate manner. The Department's plan for A.L.3 and A.L.4 is for them to be adopted by E.V. and her husband. E.V. is a stay-at-home mother who is dedicated to caring for the twins full-time. E.V. testified she and her husband love A.L.3 and A.L.4 and are willing to adopt them if given the opportunity. Fewell related that the grandparents have a great relationship with E.V. and her husband, and that they facilitate sibling visitation among the four children.
After evaluating the evidence and testimony in light of the Holley factors and viewing the evidence in the light most favorable to the trial court's finding, we conclude the trial court could reasonably have formed a firm belief or conviction that termination of Mother's parental rights to the four children is in the children's best interest. Likewise, viewing all the evidence, including any disputed or conflicting evidence, we conclude the trial court could reasonably have formed the same firm belief or conviction. Thus, the evidence is both legally and factually sufficient to support the trial court's best interest finding. We overrule Mother's second issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her third issue, Mother contends she received ineffective assistance from her trial counsel. Mother alleges trial counsel's performance was deficient because counsel (1) failed to disclose to Mother and to the trial court that in her former position as Guadalupe County Attorney, she prosecuted Mother for offenses which were admitted as evidence against Mother in this case; (2) failed to question Vasser or offer any closing argument; (3) failed to object to Vasser's testimony of his interview with Mother as violating the best evidence rule; and (4) failed to call Mother to testify.
The statutory right to counsel in parental-rights termination cases includes a guarantee that counsel will perform effectively. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM. CODE ANN. § 107.013(a)(1) (West 2014). In analyzing the effectiveness of counsel in a parental-rights termination case, Texas courts follow the standard established in Strickland v. Washington. In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under the Strickland standard, the appellant has the burden to show (1) counsel's performance was deficient; and (2) the deficiency prejudiced the appellant's defense. Strickland, 466 U.S. at 687; In re M.S., 115 S.W.3d at 545. An appellant's failure to satisfy either prong of the Strickland test will defeat an ineffective-assistance claim. Strickland, 466 U.S. at 700; In re K.A.S., 399 S.W.3d 259, 264 (Tex. App.—San Antonio 2012, no pet.).
Under the first prong, trial counsel's performance must be shown to have fallen below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Only when "the conduct was so outrageous that no competent attorney would have engaged in it" will the challenged conduct constitute deficient performance. In re M.S., 115 S.W.3d at 545 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Judicial scrutiny of trial counsel's performance must be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689. For that reason, reviewing courts indulge a strong presumption that trial counsel's conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. Id.; In re M.S., 115 S.W.3d at 545. The appellant bears the burden to overcome the presumption that, under the circumstances, the challenged conduct might be considered sound trial strategy. Strickland, 466 U.S. at 689. Under the second prong of Strickland, an appellant must show there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. In re M.S., 115 S.W.3d at 550. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
The "record" requirement established in Strickland also applies to parental-rights termination cases. See In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.). Under this standard, allegations of ineffective assistance of counsel in a parental-rights termination proceeding must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). When the record is silent as to the reasons for counsel's conduct, an appellate court may not speculate to find the representation ineffective. P.W. v. Dep't of Family & Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism'd w.o.j.); Walker, 312 S.W.3d at 623.
The record before this court is silent as to trial counsel's strategy regarding the challenged conduct. Mother did not file a motion for new trial from which she could have elicited testimony from trial counsel, nor did she provide an affidavit in which trial counsel could explain the challenged conduct. Because the record is silent as to the reasons for trial counsel's conduct, we may not speculate as to the reasons behind counsel's actions or omissions to find counsel's performance deficient. See P.W., 403 S.W.3d at 476; Walker, 312 S.W.3d at 623. After thoroughly reviewing the record, we conclude Mother failed to overcome the presumption that trial counsel's representation fell within the wide range of reasonable, professional assistance and might be considered sound trial strategy. See In re M.S., 115 S.W.3d at 545. Further, nothing in the record indicates trial counsel's conduct in the cited instances was so outrageous that no competent attorney would have engaged in it. See Walker, 312 S.W.3d at 622-23. For these reasons, Mother failed to satisfy the first prong of Strickland.
Texas courts have recognized the inequities created by the "record" requirement in parental-rights termination cases. See In re K.K., 180 S.W.3d 681, 685 n.3 (Tex. App.—Waco 2005, no pet.). Unlike criminal cases, parental-rights termination cases have no habeas remedy in which to develop the necessary record. See id. at 686. In many cases, parents may not have a meaningful opportunity to develop a post-trial record to support an ineffective assistance of counsel claim. See, e.g., In re M.E.-M.N., 342 S.W.3d 254, 258 (Tex. App.—Fort Worth 2011, pet. denied); In re K.K., 180 S.W.3d at 688. Thus, some courts have held the appropriate remedy to this inequity is to abate the appeal and remand to the trial court for a hearing at which a parent may be provided such an opportunity. See In re M.E.-M.N., 342 S.W.3d at 258; In re K.K., 180 S.W.3d at 688. However, "whether abatement is appropriate will depend on the facts of each termination case and the specific allegation of ineffective assistance." In re K.K., 180 S.W.3d at 688; see In re M.A., No. 04-05-00112-CV, 2005 WL 3115796, at *3 (Tex. App—San Antonio 2005, pet. denied) (mem. op.).
We conclude that an abatement is unnecessary in this case because Mother would not be able to show the challenged deficiencies prejudiced her defense. Even assuming trial counsel's performance was deficient based on the reasons alleged by Mother, Mother cannot show a reasonable probability that but for trial counsel's deficiencies the outcome of the proceeding would have been different. See In re M.S., 115 S.W.3d at 549-50; In Interest of D.R.R., No. 04-17-00076- CV, 2017 WL 3044575, at *3 (Tex. App.—San Antonio July 19, 2017, pet. denied). Vasser's testimony regarding Mother's admissions was corroborated by Uresti, who testified Mother admitted to shaking A.L.4 because she was upset that the child would not stop crying. Dr. Kissoon testified the likelihood that A.L.4's injuries resulted from something other than abuse was "very, very, very, very, very, very small." The Department presented evidence of Mother's history of physical violence against family members, as well as Mother's past criminal history and present incarceration. Moreover, the children are thriving in their current placements and are well-cared for. The Department plans for the girls to be cared for by the grandparents and Father, while the twins will be adopted by their foster parents who love them and are dedicated to providing them the medical care they need.
Mother does not dispute this evidence or contend that it was admitted due to her trial counsel's deficient performance. Because the record contains sufficient unchallenged evidence to support both the trial court's statutory findings and best interest finding, Mother cannot establish any alleged deficient performance on trial counsel's part prejudiced her defense. See Strickland, 466 U.S. at 692-94. Accordingly, Mother has not satisfied her burden of demonstrating ineffective assistance of counsel. We overrule Mother's third issue.
CONCLUSION
For the foregoing reasons, we affirm the trial court's order terminating Mother's parental rights.
Irene Rios, Justice