Opinion
NO. 09-15-00306-CV
01-28-2016
IN THE INTEREST OF E.L. AND Z.L.
On Appeal from the 279th District Court Jefferson County, Texas
Trial Cause No. F-224,048
MEMORANDUM OPINION
The Father appeals the trial court's order terminating his parental rights to his children, E.L. and Z.L. The trial court terminated the Mother's parental rights to E.L. and Z.L., and the Mother did not appeal that order and is not a party to this appeal. The Father asserts that his trial counsel rendered ineffective assistance of counsel and challenges the legal and factual sufficiency of the evidence to support the trial court's termination findings. We affirm the judgment of the trial court.
To protect the identity of the minors, we have not used the actual names of the children, parents, or other family members. See Tex. R. App. P. 9.8.
I. Background
E.L. was almost three years old and Z.L. was almost two years old at the time of the final hearing in this case. The children entered care in April 2014. The Mother resided in Port Arthur with her older two children, which were also removed and placed into CPS custody. There is evidence in the record that when the older two children were removed from the Mother's care they were reportedly "filthy, skinny, and living in unsanitary conditions." The court terminated the Mother's parental rights to these children as well.
E.L. and Z.L. were residing with their paternal grandmother at the time of removal. The Department of Family and Protective Services (the Department) received information that Z.L. was being physically neglected. The Grandmother told investigators that she had only been caring for the children for a couple of months. The Grandmother brought Z.L. to the hospital, and doctors thought he possibly had rickets from being malnourished and underweight. Z.L. weighed 12.5 pounds at eight months old. E.L. was also evaluated by a physician and was found to be small for her age. As a result of the children's physical condition, CPS removed the children. On May 12, 2014, the Department filed an original petition for protection of the children, for conservatorship, and for termination of the Father and the Mother's parental rights to E.L. and Z.L. The trial court appointed the Department temporary custody of the children on May 20, 2014.
At the time of removal, the Father was incarcerated for felony DWI. The Father had been working in North Dakota at the time of Z.L.'s birth on August 31, 2013. Because he was arrested while in North Dakota, the Father did not see Z.L. until he was incarcerated. The Father remained incarcerated until February 2015. In June 2014, CPS made contact with the Father regarding his children. CPS created a limited service plan for the Father considering his incarceration, and then later modified his plan once he was paroled. According to the children's caseworker, the Father did not fully work his service plan. He completed a psychological evaluation as required by the plan. The caseworker testified that the evaluation reflected the psychologist's concern that the Father did not have the capacity to properly care for his children. The plan also required the Father to attend counseling, which he apparently began in late April 2015. The plan required the Father to submit proof of employment to the Department, which he has not done. The Father, instead, contends he has worked off and on at different places, for cash. He has been unable to show that he could manage a budget to support the children as required by the plan. The Father has also failed to submit proof to the Department that he has been attending A.A. meetings, but the caseworker acknowledged that she believes the Father is attending those meetings as a condition of his parole. The Father was required to participate in and complete a parenting course. CPS has not received proof that the Father has completed this course. The service plan also required the Father to stay in contact with the children's caseworker. The children's caseworker testified that the Father failed to maintain contact with her from July 2014 until his release in February 2015. The caseworker testified that the Father had no contact with her for seven months during his incarceration.
The caseworker was critical of the Father for not having stable housing but, instead, living with friends. According to the caseworker, the Father told her that his housing situation was only temporary, and he was looking for a home. The caseworker testified that the Father failed to provide any support toward the care of his children during the course of the case. According to the caseworker, the Father would also be unable to transport his children because he does not have a driver's license.
Testimony from the caseworker and the Father indicated that various people brought the children to see the Father during his incarceration. It was the caseworker's belief that Z.L. was so malnourished when CPS removed the children, that the Father should have immediately known something was wrong just by looking at Z.L. It was the opinion of the caseworker that the Father endangered the children by leaving them with the Mother.
The Father testified that he received the service plan from CPS in May or June of 2014. In attempting to explain his lack of contact with CPS, the Father claims that he brought the paperwork to the law library at the prison and that someone there told him he should not involve himself in the case and should refrain from contacting CPS. The Father explained that although he had read the Department's petition seeking to terminate both his and the Mother's parental rights and believed he understood what he had read, he did not understand the Department was seeking to terminate his rights as well as the Mother's. He testified it was not until November 2014, that he understood the case also sought the termination of his rights.
The Father recalled that while he was in prison, the Mother brought the children to see him twice. Additionally, the Father's family brought the children to see him six or seven times. The Father testified that he did not observe anything alarming when the children visited him. He explained that the children's small size did not cause him alarm because he is a small person and his other two children are small as well.
The Father testified that before he went to prison he owned a house in Port Arthur in which the Mother and the children resided. He testified he owed back taxes on the house, but the Mother was receiving his paychecks by direct deposit and was supposed to be paying the back taxes. The Father admitted though, that he had no idea how the Mother was going to pay the back taxes once he went to prison and was no longer receiving his paycheck. He testified that while he was in prison, the sheriff seized and sold the house for unpaid back taxes. He denied knowing the filthy conditions in which the Mother and her children were apparently living. He denied that the house was filthy before he went to prison and argued that he is a clean person. The Father testified that the Mother never told him there were any problems. According to the Father, in March 2014, the Mother told him that she had obtained employment with a dispatch company and a second job in Orange.
The Father admitted that prior to his incarceration he was aware that the Mother had not attended to her oldest child's educational needs. While the Father testified that the oldest child had attended an elementary school in Port Arthur, Texas, there is evidence in the record that this child, at age eight, had likely never attended school. The Father testified that he tried to get the Mother to properly care for the child's educational needs, but she refused and he could not make her do as he suggested because the older child was not his. He testified that he wished the Mother had done a better job caring for that child.
The Father denied that parenting classes were available to him while in prison. He testified that he completed courses while in prison and submitted as evidence the various certificates he received from those courses, including a certificate for completing the Peer Health Education Course, a DWI HIV/AIDS Hepatitis B&C and Nicotine Cessation Course, and a DWI Residential Drug Abuse Program.
The Father admitted that he is an alcoholic, though he claims he no longer has a desire to drink because he is aware that his former behavior destroyed his family. He testified that he attends Alcoholics Anonymous on a regular basis, but admitted that he has never provided CPS with any proof that he was attending the classes. In addition to the felony DWI conviction in 2009 in Jefferson County, the Father admitted to receiving a felony DWI conviction in 1996 in Dallas. The Father also received two DWI convictions in 1993 and was arrested in 2007 for driving with a suspended license. The Father admitted that at one point in time he enjoyed thirteen years of sobriety but "fell off." He testified that he has two older children and he knows that his alcoholism has affected them negatively. The Father testified that he could not guarantee anything except that he will not drink today or tomorrow, that he has to take each day one at a time.
The Father was paroled to a halfway house in Galveston in February 2015. The Father testified that he would remain on parole until 2020. He testified he stayed at the halfway house for about a month and a half, and then came to Jefferson County seeking employment. He testified that he has been in Jefferson County since March 2015, and has maintained steady employment although not with the same employer. The Father testified he has obtained permanent employment with a cabinet shop, where he claims to have worked for several weeks. He testified that the cabinet shop pays him in cash, but gives him nothing indicating he has been paid. He testified that he earns $20 an hour, works approximately 45 hours a week, and anticipates earning more in the future. He testified that he brought proof of his employment to court, but that proof is not included in the appellate record. The Father believes he will eventually have the financial means to support his children.
The Father testified that he sent birthday and Christmas cards to his children. When asked whether he and his family sent coats at Christmas, the Father responded, "[i]t's is my understanding[,]" suggesting he personally did not send the coats. There is no evidence in the record corroborating the Father's claim that he has sent the children anything.
The Father testified that he has applied for a Texas Driver's license but because of administrative issues beyond his control, he has been unable to take the driving test. Regarding his housing situation, the Father testified that he had recently found an apartment but could not physically move into it until the day before the final hearing in this case began. The Father testified that he is now renting a two-bedroom and two-bath 1,100 square-foot garage apartment. While the Father claimed that he had signed a written lease, he failed to bring the lease to court, and no photographs of the apartment were offered into evidence. There is no evidence in the record that the housing the Father claims to have obtained is stable or suitable for his children.
The Father testified that he loves his children and would like to have contact with them. However, he admitted that it was not possible for the court to have awarded him custody of his children at the final hearing because he had not established a relationship with them. The Father was not allowed visitation with the children after he was paroled from prison.
At the conclusion of the trial on the merits, the trial court found, by clear and convincing evidence, that the Father had engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), (N), and (O) of the Texas Family Code section 161.001(1). The trial court also found that termination of the parent-child relationship between the Father and his children E.L. and Z.L. was in the children's best interest. Based on these findings, the trial court ordered that the parent-child relationship between the Father and his children E.L. and Z.L. be terminated. This appeal followed.
II. Burden of Proof and Standards of Review
"The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Due in part to the severity and finality of the involuntary termination of parental rights, the evidence in support of termination must be clear and convincing. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); Holick, 685 S.W.2d at 20; Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2015). "'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 (West 2014); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). The clear and convincing standard is an intermediate standard, which falls between the preponderance of the evidence burden applicable in ordinary civil proceedings and the reasonable doubt burden applied in criminal proceedings. In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort Worth, pet. denied) (op. on reh'g) (citing State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). Thus, the State's proof must be more than merely the greater weight of the credible evidence, but it need not be unequivocal or undisputed. Addington, 588 S.W.2d at 570.
The Legislature amended section 161.001 of the Texas Family Code after this case was filed; however, we cite to the current version of the statute because the subsequent amendments do not affect our analysis in this appeal.
In evaluating the legal sufficiency of the evidence, we examine all the evidence in the light most favorable to the trial court's finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. J.F.C., 96 S.W.3d at 266. We must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. However, we do not disregard undisputed facts that do not support the trial court's finding. Id. We give due deference to the factfinder's findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the "'sole arbiter when assessing the credibility and demeanor of witnesses[.]'" Id. at 109 (quoting In re J.L., 163 S.W.3d 79, 86-87 (Tex. 2005)).
In evaluating the factual sufficiency of the evidence, we examine the entire record to determine whether "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" about the trial court's finding. J.F.C., 96 S.W.3d at 266. If the evidence that could not be credited in favor of the finding is so great that it would prevent a reasonable factfinder from forming a firm belief or conviction that the statutory requirements have been met, the evidence is factually insufficient. Id.
III. Statutory Grounds for Termination
The Father challenges the legal and factual sufficiency of the evidence to support the predicate termination grounds. The trial court found four predicate grounds for termination—subsections (D), (E), (N), and (O). Section 161.001(b)(1) provides in relevant part that termination of parental rights is warranted if the trial court finds by clear and convincing evidence, in addition to the best interest finding, that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) 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;
. . .
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when the court also finds that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, we will affirm the termination order if the evidence is both legally and factually sufficient to support any statutory ground on which the trial court relied in terminating parental rights, and to support the best interest finding. See In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the [Department] for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]
Subsection 161.001(b)(1)(E) permits termination when clear and convincing evidence shows that the parent "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). "'Endanger' means 'to expose to loss or injury; to jeopardize.'" In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "'[E]ndanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Boyd, 727 S.W.2d at 533.
Under subsection E, the evidence must show the endangerment was the direct result of the parent's conduct, including acts, omissions, or failure to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). We examine the parent's conduct both before and after the child's birth. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. J.T.G., 121 S.W.3d at 125. "'[C]onduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child.'" In reJ.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.) (quoting In re N.S.G., 235 S.W.3d 358, 367-68 (Tex. App.—Texarkana 2007, no pet.)). Evidence of imprisonment alone is not sufficient to show conduct that endangers the physical or emotional well-being of a child. N.S.G., 235 S.W.3d at 367. However, intentional criminal activity that exposes a parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of a child. In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.). Alcohol abuse by a parent is also conduct that will support an affirmative finding that the parent has engaged in a course of conduct that has the effect of endangering a child. In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.). Even if a parent testifies that he has stopped abusing drugs or alcohol, a factfinder is not required to ignore a parent's long history of dependency and destructive behavior. See In re R.W., 129 S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied).
From our review of the record, we conclude the evidence supports the trial court's endangerment findings under subsection (E) for the Father. The trial court heard evidence that the Father had an extensive criminal history related to his alcohol abuse and resulting incarcerations. Even though the Father claims to no longer desire to drink alcohol because of the effect his addiction has had on his family, there is evidence that the Father has attained sobriety before but was unable to maintain it even though he had two older children who had been affected by his alcohol abuse. It is undisputed that the Father has received multiple convictions for driving while intoxicated, thereby endangering others. Because the Father's alcohol addiction exposes the children to the possibility that the Father may be impaired or imprisoned, his alcohol abuse and subsequent criminal behavior may support termination under section 161.001(b)(1)(E).
Additionally, the trial court heard evidence that the Father was aware that when he was incarcerated, he left the Mother alone to care for four children. He was also aware that she would not only have to care for their physical and emotional needs, but would also have to work two jobs to financially provide for the children. He was aware that the house in which they were living was subject to seizure due to unpaid back taxes. The Father was also aware that even before his incarceration, the Mother had neglected the physical and emotional needs of her older child by failing to enroll the eight-year-old in school. There is also evidence that the Father saw his children between eight and ten times and would have likely observed their malnourished state.
Viewing all the evidence in the light most favorable to the trial court's judgment and recognizing that the trial court, as the factfinder, is the sole arbiter of the witnesses' credibility and demeanor, we hold there is clear and convincing evidence on which a reasonable factfinder could have formed a firm belief or conviction that the Father had engaged in conduct or knowingly placed E.L. and Z.L. with persons who engaged in a conscious course of conduct that endangered their physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E); J.F.C., 96 S.W.3d at 266. Furthermore, based on our review of the entire record, we conclude that the evidence is sufficient for the trial court to have formed a firm belief or conviction about the truth of the allegations against the Father. We conclude that the evidence is legally and factually sufficient to support the trial court's findings under section 161.001(b)(1)(E) and overrule the Father's first and second issues to the extent they challenge the sufficiency of the evidence regarding this finding.
We need not address the sufficiency of the evidence to support a violation under subsections (b)(1)(D), (N), and (O). See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.) ("If multiple predicate grounds are found by the trial court, we will affirm based on any one ground because only one is necessary for termination of parental rights."). We therefore overrule the Father's first and second issues about subsections (D), (N), and (O).
IV. Best Interest of the Child
The trial court found that termination was in the children's best interest. The Father further contends the evidence is legally and factually insufficient to support this finding. In evaluating the best interest of the children, we focus, necessarily, on the children, not the parents. See In re R.F., 115 S.W.3d 804, 812 (Tex. App.—Dallas 2003, no pet.). We consider a non-exhaustive list of factors: (1) desires of the children; (2) emotional and physical needs of the children now and in the future; (3) emotional and physical danger to the children now and in the future; (4) parental abilities of the individuals seeking custody; (5) programs available to assist these individuals to promote the best interest of the children; (6) plans for the children by these individuals or by the agency seeking custody; (7) stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West Supp. 2015). In reviewing the trial court's decision to terminate a parent's relationship with a child, we consider that "there is a strong presumption that the best interest of a child is served by keeping the child with a parent." In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). The party seeking termination need not prove that each Holley factor weighs in favor of termination. C.H., 89 S.W.3d at 27. A trial court's best interest finding "is not dependent upon, or equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such harm[,]" but rather it "is a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant discretion." In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
The children were too young to express their wants or desires to the court. There is evidence in the record that the children have had very little interaction with the Father over the course of their short lives. There is no evidence that they have bonded with the Father, or would even recognize him. The Father admitted that he had no relationship with the children.
The Father's extensive history of alcohol abuse and alcohol-related offenses has led to his incarceration and as a result, exposed his children to a life of uncertainty and instability, which caused them physical and emotional harm. The evidence at trial was not only that the children's physical health had been compromised, but also that both children have developmental delays. The trial court heard evidence that throughout the pendency of this case, the Father showed little interest in his children's well-being; the few times the Father contacted the Department, he never inquired into the children's health or their general well-being. The Father admitted that he knew nothing about the children's current medical condition and had not asked the caseworker for an update.
Additionally, the Father has not shown that he is able to provide for his children. The Father has been unable to secure stable, adequate housing for the children. He claimed to have obtained housing the day before the final hearing, but there is no evidence that the housing he obtained was suitable for his children. He admitted that he has nothing at his house for the children--no beds, no clothes, and no toys. While the Father has obtained employment, he has not shown that he is able to maintain stable employment and provide for the basic needs of his children. There is some evidence that the Father has failed to take responsibility for E.L. and Z.L.'s failure to thrive and malnutrition, claiming only he could not take care of them because he was incarcerated. He does not take responsibility for the fact that his actions left the Mother alone to provide for and care for the needs of four children without adequate funds or help. Knowing the situation in which he left the Mother, the evidence is that he never attempted to check on the Mother or the kids to make sure that they had what they needed.
Even though the Father was required by his service plan to take a parenting course, by the time of the final hearing, he had only managed to enroll in a course. While the Father explained this failure, the trial court could have disbelieved his excuse and instead believed that the Father lacked the desire to learn how to properly care for his children.
There is no substantive information in the record on the Father's plan for the children's future. Despite his knowledge that the children entered the system with health issues, the Father has not yet obtained health insurance for the children. He claims that he has family members who would help care for the children while he is at work, but he does not identify those members or state what their availability would be. He also testified that he is on the waiting list at a local daycare.
The Department presented evidence that its plan for the children includes adoption by a relative. The Department placed the children with their current foster parents in July 2014. The children's caseworker testified that the children are well cared for, are healthy, and are involved in extracurricular activities. She testified that the foster parents are committed to raising the children and taking care of their emotional and physical needs now and in the future. The foster parents take care of the children's health needs, and both children are growing. The caseworker testified that the foster parents are able to financially support the children without help from the State or any other form of child support. The children's foster parents have expressed their intent to adopt the children. The caseworker testified that termination of the Father's rights and subsequent relative adoption is in the children's best interest.
Viewing the evidence in the light most favorable to the best interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination was in the best interest of the children. Based on our review of the entire record, we further conclude that the trial court could have reasonably formed a firm belief or conviction that it would be in the best interest of the children for the Father's parental rights to be terminated. The evidence is both legally and factually sufficient to support the best interest finding. We overrule the Father's first and second issues challenging the trial court's best interest finding.
V. Ineffective Assistance of Counsel
In his third issue, the Father contends his trial counsel rendered ineffective assistance of counsel. An indigent parent who is appointed counsel has a right to the effective assistance of counsel. Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2015); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). The standard for determining claims of ineffective assistance is the two-prong analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). M.S., 115 S.W.3d at 545.
Under the first prong of Strickland, the Father must show that his counsel's performance was deficient. See id. (quoting Strickland, 466 U.S. at 687). Our primary focus is on whether counsel performed in a "reasonably effective manner." Id. Counsel's performance falls below acceptable levels of performance "when the 'representation is so grossly deficient as to render proceedings fundamentally unfair.'" Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). We give deference to counsel's performance, and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, 466 U.S. at 689. It is only when the conduct was so outrageous that no competent attorney would have engaged in it that the challenged conduct will constitute ineffective assistance. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Under the second prong of the Strickland test, the Father must establish that his counsel's deficient performance caused harm. See M.S., 115 S.W.3d at 549-50. Harm is established by showing that "'there is a reasonable probability that, but for counsel's unprofessional error(s), the result of the proceeding would have been different.'" See id. at 550 (quoting Garcia, 57 S.W.3d at 440). In making an ineffective assistance of counsel allegation in a termination case, the allegation must be firmly founded in the record and 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 trial counsel's conduct and strategies, we will not speculate to find counsel's 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 Father argues that his counsel's assistance was deficient in the following ways: (1) failure to object to hearsay statements and exhibits; (2) failure to call witnesses to support the Father's case; and (3) failure to move for dismissal pursuant to Texas Family Code section 263.401(a). The Father did not file a motion for new trial, and his trial counsel has not been afforded the opportunity to respond to the allegations of ineffective assistance. Therefore, the record before this Court is silent as to trial counsel's strategy regarding the challenged conduct. "If the reasons for counsel's conduct at trial do not appear in the record and it is at least possible that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." In re K.L.A.C., No. 14-08-00960, 2010 WL 184152, at *6 (Tex. App.—Houston [14th Dist.] Jan. 21, 2010, no pet.) (mem. op.). In such circumstances, to warrant a reversal, "the challenged conduct must be 'so outrageous that no competent attorney would have engaged in it.'" Id. at *6 (quoting Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007)). "[T]hat counsel could have provided a better defense is not a legal basis for finding counsel constitutionally deficient." Id. (citing Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)).
A. Failure to Object to Hearsay Evidence
The Father complains that his counsel did not object to certain hearsay evidence. The Father specifically complains that counsel failed to object during the final hearing when the court allowed the Department to read from and summarize documents admitted into evidence that contained hearsay statements. The Father complains about hearsay contained within the medical records of both children and hearsay in Dr. Amin's psychological report concerning the Father. The appellate record reflects that counsel did not object to the admission of these documents nor to the Department's summary of information contained therein. The record does reflect that counsel objected to the admission of the CASA report based on the report containing inadmissible hearsay.
Rule of Evidence 803 provides in relevant part that hearsay evidence may be admitted if it is "[a] record of an act, event, condition, opinion, or diagnosis" and:
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted business activity;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and
(E) the opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. "Business" as used in this paragraph includes every kind of regular organized activity whether conducted for profit or not.Tex. R. Evid. 803(6). The Department timely filed notice to use the medical records of both children as business records, as well as submitted an affidavit from the custodian of records. The custodian affidavits averred that the custodian was providing the records, that they were made in the regular course of business by someone with personal knowledge, that the records were made at or near the time of the events or conditions recorded or reasonably soon thereafter, and that it was the regular conduct of business to keep such records. The affidavits comply with Texas Rule of Evidence 902(10), which provides a reasonable basis for admitting the medical records. See Tex. R. Evid. 902(10). Therefore, we conclude the Father has failed to rebut the strong presumption that his counsel's actions were reasonably professional and motivated by sound trial strategy.
As noted above, the Father also complains of the admission and summary of the psychological report authored by Nisha M. Amin, Ph.D. The record is silent as to counsel's strategy for not objecting to this evidence. The family service plan required the Father to submit to a psychological examination. The report's admission is definitive proof that the Father submitted to the psychological exam as required by his plan. Additionally, some of Dr. Amin's assessments contained in the report could be construed positively for the Father. For example, Dr. Amin notes the following: the Father demonstrated no inappropriate mannerisms; the Father articulated a desire to improve his life and be reunified with his children; the Father is employed; the Father has attended counseling; the Father had adequate hygiene during the examination; the Father reported being sober since 2009 and attends Alcoholics Anonymous twice a week; the Father denies illicit drug use or smoking; the Father is capable of appreciating safety concerns; the Father has good judgment; and the Father was cooperative and pleasant during the assessment. In the report, Dr. Amin concludes, "it is highly suggested that the children continue to be placed under the care of a viable adult/caregiver and [the Father] be allowed supervised visitation, at best." Counsel could have considered this conclusion positive in that Dr. Amin did not unequivocally recommend termination and suggested the Father should be given supervised visitation. While we are uncertain of trial counsel's motives for withholding objections to the report, we conclude it is reasonable that his silence was part of some trial strategy.
We note that the Father complains generally that his counsel failed to object to various hearsay statements throughout his trial. The Father cites to a few references in the record that presumably contain objectionable hearsay. However, the Father does not explain how the objectionable testimony prejudiced his case. Therefore, even if we assume the referenced statements were hearsay and that counsel had no reasonable strategy in not objecting to the admissibility of those statements, the Father has failed to show how the admission of this testimony prejudiced his case as required by the second prong of Strickland. See In re J.M.O., 459 S.W.3d 90, 93 (Tex. App.—San Antonio 2014, no pet.). The Father has not shown that his counsel's alleged errors were so serious as to deprive the Father of a fair trial or that the results of his trial were not reliable. See id. We overrule the Father's complaint regarding this issue.
B. Failure to Call Witnesses
The Father complains that his counsel did not call any witnesses to substantiate his story. However, in his brief, the Father does not identify any witnesses who were available to testify or show that the witnesses' testimony would have been of some benefit to his defense. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (citations omitted). Counsel's investigation could have led him to conclude that there were no witnesses available to corroborate the Father's testimony or even that available witnesses would hurt rather than help the Father's case. Because the record is silent as to trial counsel's strategy and counsel's conduct could have been grounded in legitimate trial strategy, we overrule the Father's challenge of this issue. See In re K.L.L.H., No. 06-09-00067- CV, 2010 WL 87043, at *7 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.).
C. Failure to Move for Dismissal pursuant to Texas Family Code Section 263.401(a)
The Father next criticizes his counsel's failure to move for a dismissal on the Monday following the expiration of one year from the date the temporary order was entered in the original case. Section 263.401 provides:
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.Tex. Fam. Code Ann. § 263.401(a) (West Supp. 2015). The trial court may extend the deadline for dismissal for up to 180 days, and it must dismiss the suit if trial has not commenced on or before the new dismissal date. Id. § 263.401(b), (c). Section 263.402 of the Family Code prohibits parties from extending the dismissal deadline by agreement, but provides that the deadline can be waived. Id. § 263.402 (West 2014).
The Legislature amended section 263.401 of the Texas Family Code after this case was filed; however, we cite to the current version of the statute because the subsequent amendments do not affect our analysis in this appeal. --------
The record shows that the trial court ordered the Department appointed as temporary managing conservator of the children on May 20, 2014. The court set the initial dismissal date as May 18, 2015. Later, pursuant to section 263.401(b), the court extended the dismissal date to November 13, 2015 and set the final hearing for June 16, 2015. On June 16, 2015, a permanency hearing was held, and on July 21 and 23, 2015, the final hearing was held. Because the trial court extended the dismissal date in accordance with section 263.401(b) and commenced the final hearing before the new dismissal date, the Father has failed to demonstrate that his trial counsel was ineffective for failing to request a dismissal. See id. § 263.401(a), (b). We overrule the Father's third issue.
Having overruled all of the Father's issues on appeal, we affirm the trial court's judgment.
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on December 15, 2015
Opinion Delivered January 28, 2016 Before McKeithen, C.J., Kreger and Johnson, JJ.