NO. 07-09-0280-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 30, 2010

__________________ ___________ In the Interest of L.T., L.M.R., and L.M.L., Children

__________________ ___________ FROM THE 223 RD DISTRICT COURT OF GRAY COUNTY;

NO. 34913; HON. PHIL N. VANDERPOOL, PRESIDING

__________________ ___________ Memorandum Opinion

__________________ ___________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Evelyn Turrentine appeals from a final or der terminating her parental rights to L.T., L.M.R., and L.M.L., her minor children. Sammy Laury also appeals from an order terminating his parental rights to L.M.L. 1 We affirm. Issues Raised by Laury Laury filed a statement of points he inte nded to raise on appeal. It contains many topics that go unmentione d in his appellate brief; so we address only those issues actually mentioned and brie fed per Texas Rule of Appellate Procedure 38.1.

1 The fathers of L.T. and L.M.R. did not appeal fr om the termination of their parental rights.2 Legal and Factual Sufficiency of the Evidence The first complaints we address involve the legal and factual sufficiency of the evidence underlying the trial c ourt’s decision to terminate the parent/child relationship. Upon doing so, we immediatel y note that the trial court found three statutory grounds warranting termination. They involved plac ing or allowing the child to remain in conditions which endangered the child’s physica l or emotional well -being, engaging in conduct or placing the child with people who enga ged in conduct that endangered the child, and failing to comply with a court order establishing prerequisites for the return of the child. Only the first two grounds were a ddressed by Laury at bar, however. He did not attack the sufficiency of the evidence suppor ting the last one. This is problematic because the decision to terminate need only be based on or supported by one statutory ground, so long as termination remains in the child’s best interest. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.–A marillo 2009, pet. denied). And, since Laury failed to challenge one of the three grounds, we need not decide whether the evidence was sufficient to warrant termination on the grounds he did address. As for Laury’s attack upon the finding that termination was in the child’s best interest, the record contains evidence that 1) he had a history of drug use, 2) he had been unable to maintain a job, 3) he lied about j obs he had purportedly held in the past, 4) he had not paid child support for this child , 5) he voluntarily terminated his rights to two of his other children after being jailed fo r failing to financially support them, 6) he has had unstable housing, 7) personnel from the Department of Fa mily and Protective Services (Department) smelled marijuana when they visited his home, 8) he had a charge for possession of marijuana pending against him, 9) a psychologist testified that3 Laury lacked a strong sense of re sponsibility, lacked the ability to maintain direction and goals, had “questionable motivation to change,” did not make maintaining relationships with his children a high priori ty in his life, had “a lackadaisical approach to the whole issue of parenting responsibility,” had “a patte rn of trying not to be very clear in his thinking” so he could be less responsible, and presented a “serious concern that he would be at risk to place children in a neglectful situation in the future,” 10) the child was removed at birth and, at the time of tria l, was between one and two years old, 11) the child was adoptable, and 12) it was hoped that the child c ould be adopted into a home with the other two children who were also the subject of this termination proceeding and with whom he lived in foster care. Consi dering this evidence within the framework established in Holley v. Adams , 544 S.W.2d 367 (Tex. 1976), we conclude that clear and convincing evidence existed to support t he finding that terminat ion was in L.M.L.’s best interest. That other evidence appeared of record suggesting Laury improved his lot in life and his potential for being an acceptable fa ther is acknowledged. Yet, the focus remains on the best interest of the child, not of Laury. And, the factfinder need not place the child at risk simply to afford a parent one more chance to do that which he should have done all along. Having determi ned that a statutory ground for termination existed and that clear and convincing evid ence supported the findi ng that termination was in the child’s best interest, we overrule Laury’s legal and factual sufficiency issues. Constitutional Right to Maintain Relationship Through his final issue, Laury suggests that the United States Constitution entitles a parent “who [has] gotten on the right track” to keep his child. The particular4 constitutional provision alle gedly mandating same went un mentioned though, as did all other legal authority supporting t he contention. Thus, we c annot say that the topic was adequately briefed. See Ratsavong v. Menevilay, 176 S.W.3d 661, 666 (Tex. App.–El Paso 2005, pet. denied) (requiring the citati on of legal authority in support of one’s argument). Nor do we know of any constitutional prov iso that subordinates the best interest of the child to a parental desire to maintain the parent/child relationship merely because the parent may be “on the right track.” So too are we unaware of any constitutional mandate requiring the trial court to ignore the historical conduc t of a parent when deciding whether to terminate par ental rights. Indeed, author ity has recognized that the quality and character of one’s past actions is often indicative of his future demeanor. See e.g. Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.–Austin 2004, pet. denied). Moreover, if Laury had “gotten on t he right track” as s uggested, one is left to wonder why he continued to eschew one of the most basic legal obligations due a child, that obligation being the prov ision of economic support. T EX

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. §151.001(a)(3) (Vernon 2008) (mandating that a parent financially support his child). This continued default could lead a reas onable factfinder to rationally doubt the suggestion that Laury is actua lly “on the right track.” In sum, possibly being “on the right tr ack” does not mean that Laury arrived at the requisite destination, and under the circumstances before us, the Constitution requires neither the trial court nor this court to so infer. T he issue is overruled.5 Issues Raised by Turrentine Turrentine also questions the legal an d factual sufficiency of the evidence supporting the trial court’s decis ion. She further labels as unconstitutional the statutory provision obligating her to tender potentia l issues for appeal within 15 days of the execution of the trial court’ s final judgment. Various of the trial court’s decisions regarding the admission of evidence were also erroneous, in her view. We, however, find no substance in any of her contentions. Legal and Factual Sufficiency Like Laury, Turrentine attacked less than all of the statutory findings upon which termination was based. Indeed, she failed to address the same one that Laury failed to discuss, i.e. the failure to comply with obligatio ns contained in a court order. Consequently, we overrule her contention that the evidenc e was legally and factually insufficient to prove the exist ence of one or more statutory c onditions to termination. As for the allegation encom passing the child’s best interest, we find the following evidence of record. Turrentine 1) had a long history of using cocain e and marijuana, 2) used drugs while pregnant with L.M.L., which resulted in th e child testing positive for drugs at birth, 3) did not feel she needed help to stop using drugs, 4) continued to use drugs during the pendency of the case even after completing an in-patient drug treatment program, 5) did not complete her counseling sessions, 6) had an unstable work history, 7) lacked stable housing dur ing the pendency of the case, 8) failed to notify the Department w hen she moved, 9) sporadically vi sited her children, 10) had her visitation suspended at one time due to her dr ug use, 11) told her children she would not see them again prior to the final hearin g which comment seriously upset one of the6 children, 12) had several of her children expr ess fear about returning to live with her, 13) had been incarcerated for fo rgery, and 14) had failed to pa y all her child support. Other evidence illustrated t hat all three children are adopt able and her older children believed she has lied to them. Furthermore , the psychologist who examined Turrentine opined that she did not show a strong sensitivity to her children’s need s, exercised erratic judgment, had a pattern of “weak and questionable judgment in her care of the children,” had a pattern of placing the ch ildren in “risky . . . situations, around risky persons,” and illustrated little motivation for change. Turrentine also admitted to returning to drugs at one point because she thought the “case was over.” In toto , the foregoing is clear and convincing evidence upon which a trial court could conclude that termination of the parental relationship was in the best interest of the children. That Turrentine recently secured employment, found an apartment, and bought gifts for the children also appeared in the re cord. Nonetheless, the latter evidence does not overwhelm that described above or other wise impugn the trial c ourt’s finding. The issue is overruled. Constitutionality of the Filing Period Turrentine next argues that §263.405( b)(2) of the Family Code is unconstitutional. That section requires one appea ling from a termination order to file a statement of point s upon which he intends to appeal. T EX

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. §263.405(b)(2) (Vernon 2008). Fu rthermore, that statement must be filed within 15 days of the date the final order was signed. Id. §263.405(b). Because of the rather short time limit involved, Tu rrentine believed that it prevented her from receiving the7 effective assistance of trial counsel and, t herefore, due process. We disagree and overrule the issue. Before it can be said that one has been denied the effective assistance of counsel, the claimant must prove that counsel’s performance was both unreasonably deficient and harmful. In re J.P.B., 180 S.W.3d 579, 574 (Tex. 2005) . And, before it can be said that the time period in questi on somehow prevented counsel from being effective, it would be logica l for Turrentine to prove that her counsel was prevented from doing something. Indeed, one cannot legitimately claim foul in being denied the time to do something if he never thought about or int ended to do it. And, what, if anything, Turrentine or her counsel would have done at bar but for the 15-day time period went unmentioned. Rather, the num ber of topics included in her statement of points ( i.e. 13) indicates that the provision stood as no im pediment to her ability to attack the final judgment. So, we cannot say that she pr oved that she was denied effective counsel and, therefore, due process because of §263.405(b) of the Fam ily Code. Admission of Hearsay Turrentine finally contends that the trial court erred in allowing the admission of evidence regarding drug tests she and L.M.L. underwe nt and the results of same. The specific evidence was contained in records maintained by the Department but which allegedly failed to qualify as business record s. Thus, the statements therein about drug use and drug testing pur portedly were hearsay and their consideration allegedly denied her due process. We overrule the issue. Assuming arguendo that the reports were inadmi ssible hearsay, we nonetheless find their admission to be harmless. This is so because like evidence was admitted8 elsewhere without objection. See In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.– Houston [14 th Dist.] 2006, pet. denied) (holding that er ror in the admission of evidence is harmless when like evidence comes in elsew here without objection) . For instance, one expert testified that Tu rrentine admitted to him that between 2002 and 2007 she smoked marijuana daily and inge sted cocaine twice a week, except for the time she was in prison. That five-year time span enc ompassed the months during which she was pregnant with L.M.L., who was bo rn in April of 2007. She al so admitted to this expert that she was seeing him because she failed various drug tests administered to her. Turrentine further admitted to the witness that she did not stop taking drugs until September of 2007, or some five months after L.M.L. was born. The witness also testified, without objection, to being told either by Turrentine or a caseworker that L.M.L. had tested positive for drugs at his birth. So, as can be seen, the evidence about which Turrentine now complains was actually red undant of other evidence about which she uttered no complaint below or here. Having overruled each issue, we affi rm the judgment of the trial court.

Brian Quinn Chief Justice