AFFIRMED as MODIFIED; and Opinion Filed May 5, 2023 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01262-CV IN THE INTEREST OF M.A.C., JR., A CHILD On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-21-00276-W MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Smith Mother appeals from the trial court’s fi nal order in a suit affecting the parentchild relationship in which the trial court terminated her parental rights, appointed the Department of Family and Protectiv e Services (the De partment) managing conservator, and appointed Father as posse ssory conservator of M.A.C. Father has not appealed. For the reasons discussed be low, we affirm as modified the trial court’s final order. Factual and Procedural Background On March 26, 2021, the Department f iled a suit affecting the parent-child relationship and sought prot ection and conservatorship of M.A.C., a child, and for–2– termination of Mother and Fa ther’s parental rights of M .A.C. In her affidavit in support of removal, Department investigator Samantha Barnett testified that the Department received a refe rral alleging neglectful supe rvision of M.A.C. shortly after he was born based on Moth er’s parental rights of anot her child being previously terminated. Barnett contacted Mother and performed an oral swab test for drugs. Because the test was positive for ampheta mines and methampheta mines, emergency removal of M.A.C. was approve d. Due to Mother’s failure to cooperate and threats by Mother’s father, the Department sought a writ of attachment for the assistance of law enforcement in removing M.A.C. On March 29, 2021, the trial court signed a writ of attachment and an ex parte or der for emergency care, appointing the Department as temporary managing conserva tor of M.A.C. M.A.C. was two months old at the time. The Department was unabl e to secure custody of M.A.C. until April 8, 2021, at which time Mother’s father ga ve M.A.C. to investigator Barnett. The Department considered Mother’s father and mother for kinship placement, but neither were selected as a placement option. Mother’s mother was already caring for Mother’s older childr en and declined the opportunity to be considered, and the Department conclude d that Mother’s father was unable to supervise or provide for the child’s ne eds based on his refusal to provide the necessary information needed for a formal home assessment. Following a temporary orders hearing on April 8, 2021, the trial court ordered Mother and Father to complete the follo wing services in order for M.A.C. to be–3– returned to their care: a psychological or psychiatric evaluation, counseling, parenting classes, drug and al cohol testing, and any other requirement set out in the Department’s service plan. The Depa rtment remained temporary managing conservator and Mother and Father were appointed possessory conservators with limited access. M.A.C. was pl aced in foster care as none of the placements suggested by Mother were approved. According to the Department’s perm anency reports, neither Mother nor Father completed their services as ordered. Mother also wrote a letter to the foster parents that was inappropria te and, as a result, the foster parents sought new placement for M.A.C. At her May 21 visita tion, she refused to give M.A.C. to the caseworker until M.A.C. was evaluated at the emergency room. She was concerned with two dry spots on his chest and stomac h, a diaper rash, and congestion. A Department supervisor and se curity guard had to be calle d and Mother’s father had to be asked to leave because he instigated the incident a nd was verbally aggressive. Mother and Father contested termin ation and sought to be appointed managing conservators. The trial cour t heard brief testimony from Mother on August 15, and recessed the trial until Octobe r 20, at Mother’s request. Because the trial was continued, the cour t considered Father’s motion for placement and ordered M.A.C. to be placed with Y.M., the moth er of Father’s other child. Mother was given limited, supervised visitation due to her prior behavior in contacting M.A.C.’s caregivers and her behavior before the tria l court. On Novemb er 17, 2022, the trial–4– court entered a final order appointing th e Department as managing conservator, appointing Father as possessory conservato r, and terminating Mother’s parental rights. The trial court made th e following relevant findings:

 appointment of a parent or both parents as managing conservator would not be in the best interest of the child;

 appointment of the Department as permanent managing conservator is in the best interest of the child;

 the child is currently placed with Y.M., and Y.M. agrees to participate in the “Fostering Connections Program”;

 regardless of whether Y.M. beco mes licensed under the Program, the Department shall transfer pe rmanent managing conservatorship to Y.M. absent unforeseen circ umstances that would warrant removal of the child;

 appointment of Father as possesso ry conservator is in the best interest of the child;

 termination of the parent-child relationship between Mother and M.A.C. is in the best interest of the child;

 Mother knowingly placed or knowi ngly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, pursuant to T EX

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. § 161.001(b)(1)(D);

 Mother engaged in conduct or knowingly placed the child with persons who engaged in conduct wh ich endangers the physical or emotional well-being of the child, pursuant to T EX

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. C ODE § 161.001(b)(1)(E); and

 Mother failed to comply with th e provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the child, pursuant to T EX

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. C ODE § 161.001(b)(1)(O).–5– The trial court also ordered that Mother shall receive photographs of the child and an update on the child’s welfar e on certain dates each year. Mother timely appealed and presents eight issues for our review: (1) the judgment is void because the trial court’ s jurisdiction was not properly extended pursuant to section 263.401 of the family code ; (2) the trial court erred in terminating Mother’s parental rights when the Depart ment announced at the hearing that it was abandoning its request for termination of Mother’s parental rights; (3) Mother received ineffective assistance of counse l; (4) Mother’s due process rights were violated; (5)–(6) the evidence is legally and factually insufficient to support the best interest finding; (7) the evidence is legally and factually insufficient to support the appointment of CPS as the managing cons ervator; and (8) the final order of termination should be modifi ed to properly reflect the dates Mother is to receive email communication regarding the child.
Trial Court’s Jurisdiction Mother argues in her first issue that the trial court lost jurisdiction to hear the case when it did not enter a proper extensi on order by the one-year dismissal date for department-initiated termination suits pursuant to section 263.401 of the Texas Family Code. She contends that the tria l court granted a continuance of the trial setting on February 7, 2022, to the date of dismissal on Ap ril 4, 2022, but failed to extend the setting past the dismissal date. The Department argues that the trial court did not lose jurisdiction because it prop erly extended the automatic dismissal–6– deadline, as documented by its order nunc pr o tunc, from April 4, 2022, until August 19, 2022. Section 263.401 governs a trial court’s jurisdiction over suits affecting the parent-child relationship f iled by the Department in which the Department seeks termination of the parent-child relations hip or conservatorship of the child. T EX

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. C ODE § 263.401(a). Unless the court has commenced the trial on the merits or granted an extension, the court loses its jurisdiction over the suit on the first Monday after the first anniversary of the date th e court rendered a temporary order appointing the Department as temporar y managing conservator. Id. ; In re G.X.H. , 627 S.W.3d 288, 295 n.4 (Tex. 2021) (exp laining expiration of dead line without extension or commencement of trial is jurisdictional). Section 263.401 further provides: (b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court’ s docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaini ng in the temporary managing conservatorship of the department a nd that continuing the appointment of the department as temporary ma naging conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court’s docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court’s docket, the court shall render an order in which the court:

(1) schedules the new date on which the suit will be automatically dismissed if the trial on the me rits has not commenced, which date must be not later than th e 180th day after the time described by Subsection (a); (2) makes further temporary orders fo r the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and–7– (3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).
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. C ODE § 263.401(b). Therefore, to reta in its jurisdiction, the trial court must grant an extension, be fore the dismissal date passe s, supported by findings that extraordinary circumstances necessitate th e child remaining in the Department’s temporary managing conservatorship and th at continuing the appointment of the Department as temporary managing conserva tor is in the child’s best interest. In re G.X.H. , 627 S.W.3d at 295–97. The parties do not dispute, and our review of the record confirms, that the trial court rendered an order appointing the De partment temporary managing conservator on March 29, 2021, making April 4, 2022, the original one-year dismissal date. Thus, unless the trial court commenced tria l or granted an extension as permitted under section 263.401 by April 4, the suit was automatically dismissed on April 4, and any orders entered afte r that date were void. See id. at 296. Trial was initially set fo r February 7, 2022. Mother filed a Motion for Continuance and Extension of Dismissal Date on January 27, 2022, and an amended motion on January 28. Mother allege d that the following extraordinary circumstances necessitated the child remaining in the temporary managing conservatorship of the Department: (1) he r attorney was appointed on May 21, 2021; (2) she was making progress w ith her services, but they were delayed due to her incarceration in the Dallas County Jail for a pproximately four months; (3) the issue–8– of paternity had come into question and Fa ther was requesting paternity testing; and (4) she needed more time to pursue additio nal home studies. In the motion, Mother specifically requested that the trial cour t extend the April 4, 2022 dismissal date. Father also filed a motion for continuan ce on January 28, 2022, and did not contest Mother’s continuance or request for extension. On February 2, 2022, the trial court entered an order of extension extending the dismissal date until April 4, 2022, and setting the new trial date for that same day. The order further provided that the trial court found that it was in the best interest of the child and necessary for th e administration of justice to extend the pendency of the case pursuant to section 263.401(b). The trial court further found that extraordinary circumstances necessita ted the child remaining in the temporary managing conservatorship of th e department and that continuing the appointment of the department as temporary managing conservator was in the best interest of the child. The order included the following as extraordinary circumstances: (1) an opportunity to pursue additional home studi es; (2) additional time for Mother to complete her services; a nd (3) paternity testing. On April 4, the Department file d a motion for judgment nunc pro tunc contending that the February 2, 2022 order of extension c ontained a clerical error: the incorrect date for the extension of the dismissal deadline. The Department claimed that the order should have stated that the date of dismissal was extended until August 19, 2022, not April 4. On Apr il 5, 2022, the trial court signed a Nunc–9– Pro Tunc Order of Extension changing the date of dismissal on the order from April 4 to August 19. The order no longer provi ded a date for a trial setting, but other documents show that the trial date was set for August 15, 2022. Although the parties contest whether th e trial court’s change was clerical, making it a proper nunc pro tunc order, or judicial, we conc lude that the trial court properly extended the dismissal deadline by its April 4 docket entry and, thus, we do not reach the nunc pro tunc issue. As explained by the supreme court, section 101.026 of the family code provides that a court may pronounce or render an order on its docket sheet. Id. at 297–298 (citing T EX

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. C ODE § 101.026) (“pronouncemen t may be made orally in the presence of the court reporter or in writing, including on the court’s docket sheet or by a separate wr itten instrument”)). The docket entries for February 7, 2022, and April 4, 2022, appear below:

The February 7 entry resets the trial from Fe bruary 7 to the date of dismissal in the scheduling order, which is April 4. The Ap ril 4 entry resets the trial per the motion for continuance and extensi on but does not include a new date. Like the supreme–10– court in G.X.H. , “[w]e conclude the only reasonable interpretation of this [April 4] docket entry . . . is that the trial court gran ted both a continuance of the trial date and an extension of the automatic dism issal date under section 263.401(b).” Id. at 298. Unlike G.X.H. , it is unclear whether the trial cour t held a hearing on April 4 to make the necessary findings to support the extension. See id. at 299 (“Where, as here, the trial court held an oral hearing on the pr oposed extension and the parties failed to bring forth the record of that hearing on ap peal, we will presume the trial court made the necessary findings to support the extensi on orally on the record at the hearing.”). However, Mother’s January mo tion for continuance asserted such facts were present to support the necessary findings, and the trial court made those findings in its February 2 written order. No other motion fo r continuance was file d in the interim. Therefore, under this record, we conclude the trial court made the findings necessary to retain this case on its docke t and extended the dismissal date prior to its expiration. Although the requirement of the trial c ourt to grant an extension supported by the necessary findings is jurisdictional, wh ich the trial court sa tisfied as discussed above, section 263.401(b)’s re quirement that the trial court enter an order scheduling a new dismissal date, making further temporary orders as necessary for the child, and setting a new trial date is not jurisdictional. Id. at 300–301. Therefore, any complaint regarding the trial court’s failure to render su ch order before the initial dismissal date must be pres erved for appellate review. Id. at 301. Because Mother made no objections to the trial court’s Ap ril 5 order setting the new dismissal date–11– as August 19, participated in the August 15 trial without objection, requested that the August 15 trial be contin ued, and participated in the October 20 trial without objection, Mother has waived any complain ts about the trial c ourt’s April 5 order setting the new, extended date of dismissal. See T EX

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. P. 33.1(a). Mother’s first issue is overruled. Proceeding to Termination Mother argues in her second issue that the trial court erred in terminating Mother’s parental rights when the Depart ment unequivocally announced that it was abandoning its request for termination of Moth er’s parental rights. We disagree that the Department unequivocally abandone d its request for termination. When a party abandons a claim in its live pleading, that pleading will no longer support a judgment on the abandoned claim. In re T.M. , No. 07-20-00103- CV, 2020 WL 4773207, at *2 (T ex. App.—Amarillo Aug. 17, 2020, no pet.) (mem. op.). Whether a party has abandoned a pleadi ng is a question of law that we review de novo. In re C.C.J. , 244 S.W.3d 911, 921 (Tex. App. —Dallas 2008, no pet.). A stipulation may form the basis for abandonment. Id. A stipulation is an agreement, admission, or concession made in a judicial proceeding regarding a related matter. Id. When the stipulation limits the issues to be tried, such issues are excluded from the trier of fact’s consideration. Id. Therefore, when a party unequivocally states in open court it no longer seeks the pleaded relief, it abandons its pleading. See In re
T.M. , 2020 WL 4773207, at *3 (caseworker expr essly stated Department was not–12– seeking termination, confirmed Departme nt was not seeking termination when attorney sought to clarify, and Departme nt conceded on appeal it had abandoned its termination pleading). However, if a sti pulation is ambiguous or unclear, the trial court should disregard it. In re C.C.J. , 244 S.W.3d at 921. When construing a stipulation, we are to determine the intent of the parties from the language used in the agreement presented to the trial court. Id. We consider the surrounding circumstances in making our determination. Id. Here, the following exchange took place be fore the trial court resumed trial on October 20: THE COURT: All right. [Depar tment], you can proceed with the other case. [DEPARTMENT]: Thank you. We have had -- just for the record, Your Honor, we have had a s light change since the last time we met with [Mother] on the st and. The Department at this time is seeking permanent managing conservatorshi p of [M.A.C.]. We’re abandoning the termination grounds. The Depa rtment will be seeking PMC of [M.A.C.] pending F-Con with an u ltimate transfer for [Y.M.] and possessory with each parent. And, I do believe [Father] is in agreement with that. I think the only person that doesn’t agree is [Mother]. THE COURT: Okay. Is that correct, [Mother’s counsel], your client doesn’t agree to PMC to her mother -- well, to the Department for F-Con? [MOTHER’S COUNSEL]: She does not agree with that. It’s my understanding that she does not agree with the placement and the visitation that -- as set up at this time. THE COURT: [Department], you can call your first witness. [MOTHER’S COUNSEL]: I think the biggest issue is her access.–13– THE COURT: It sounds like you sa id she doesn’t agree with PMC or access, so, we’ll go ahead a nd start the trial on termination, I guess. [Department], you can call your first witness. The Department’s counsel then con tinued its questioning of Mother from August 15. Shortly thereafter, Mother’s counsel stated, “Your Honor, I believe my client has a misunderstanding of the purpose of the hearing today. May I request a short recess to confer with her?” The tr ial court granted a short recess and stated, “When we come back, again, we are here for a termination tria l, and the Court will hear testimony about whether or not the mo ther’s rights should be terminated. I understand the father has an agreement for non-termination, but the issue today is termination for the mother.” When the pa rties returned, Mother’s counsel explained that Mother believed the trial would be befo re a jury, not the bench; however, neither Mother nor counsel voiced any concerns about proceeding generally with a termination trial. Later, when the Department caseworker was testifying, the trial court again clarified whether the Department was contin uing to seek termination of Mother’s rights: THE COURT: Ma’am, I have a question for you, and it’s following up on what the attorney fo r the -- the guardian asked you, ’cause it -- I -- it seems to me there were two different answers. I just need to be clear. So, there was a request for the father to be named as a possessory conservator with placeme nt with the person in Houston, and your attorney was proving up gr ounds for termination of the mother.–14– Is it -- are you saying now that you don’t want -- that the Department is not pursuing termin ation of the mother, you’re just pursuing PMC for both of them? THE WITNESS: No. I’m sorry , Judge. Termination on the mother, and if I’m saying this correctly PMC, possessory -- I can’t say it. THE COURT: Basically, no termination for the father, termination for the mother. Is th at what the Department’s asking?
THE WITNESS: Yes. Mother argues that the trial should have been limited to issues of conservatorship and acce ss and that the trial court’s insi stence that it be a termination trial was improper and inco rrect and forced the Depa rtment to proceed with termination. However, we cannot conclude that the Department made a clear, unequivocal statement that it was abandoni ng its pleading seeking to terminate Mother’s rights on this record. The Depart ment did not object to continuing to a termination trial, or correct the trial c ourt’s understanding, after Mother’s counsel confirmed that Mother did not agree to th e placement. The par ties asked questions regarding grounds for termination throu ghout the trial and, as shown above, the Department’s caseworker confirmed during her testimony that th e Department was still seeking termination of Mother’s right s. The parties also asked questions regarding Mother’s visitatio n and access if the trial court chose not to terminate Mother’s rights. Thus, the record in th is case does not show a clear and unambiguous abandonment by the Department of its pl eading to terminate the parent-child–15– relationship between Mother and M.A.C. See id. at 921–22. We c onclude that the issues of termination, conservatorship, and access were properly before the court, and the trial court did not err in consideri ng termination. Mother’s second issue is overruled. Sufficiency of the Evidence In her fifth, six, and seventh issues, Mother argues the evidence is legally and factually insufficient to support the finding th at termination was in the best interest of the child or to support the appointment of CPS as the managing conservator. We disagree.
A. Standard of Review The involuntary termination of parental rights must be supported by clear and convincing evidence. T EX

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. C ODE § 161.001(b). “‘Clear and convincing evidence’ means the me asure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. To terminate parental rights, the evidence must show that the parent committed one of the acts enumerated in s ection 161.001(b)(1)(A)– (U) and that termination is in th e best interest of the child. Id. § 161.001(b). In determining whether the evidence is legally sufficient in a parental termination case, we review all the evidence in the light most favorable to the trial court’s finding and determine whether a rational trier of fact could have reasonably formed a firm belief or convic tion that its finding was true. In re J.F.C. , 96 S.W.3d–16– 256, 266 (Tex. 2002). We resolve any disputed facts in favor of the finding unless a reasonable factfinder could not have done so, and we disregard all evidence a reasonable factfinder could have di sbelieved or found incredible. Id. In conducting a factual sufficiency review , we give due deference to the trial court’s finding and determine if, based on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); In re C.H. , 89 S.W.3d 17, 25–27 (Tex. 2002). The trial cour t is the sole arbiter of the credibility and demeanor of the witnesse s, and we shall not suppla nt the factfinder’s judgment with our own. In re H.R.M. , 209 S.W.3d at 108–09. “If, in light of the entire record, the disputed evidence that a reasonable f actfinder 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 ev idence is factually insufficient.” In re J.F.C. , 96 S.W.3d at 266.
B. Evidence Presented The evidence at trial showed that Mother had not completed her court ordered services at the time of trial. In fact, she had not submitted to any of the drug tests requested by the Department during the pe ndency of the case. And, the people Mother recommended for placement were e ither not approved by the Department or did not want to pursue becoming a placemen t option because of past interactions with Mother. The trial cour t had cautioned Mother at the trial on August 15 that, if–17– she wanted to be considered as a managing conservator, she need ed to complete her services and that, if she wanted anyone else to be considered, she needed to submit their information to the Department so that it could complete a home study. She did neither. Instead, at the October 20 continuation of trial, Mother insisted that she had completed counseling and s ubmitted drug testing, just not for CPS. During the pendency of the case, Mother was arrested for possession of a controlled substance and for theft. According to Mother, she an d Father were arrested together in August 2021, and Father had over twenty grams of Fentanyl and over twenty grams of methamphetamine that he “was working” for an organization. She testified that she completed drug testing and counseling as or dered for community supervision in the criminal case. She offered to share the re sults with CPS, but the Department had no record of any such test results. The Depart ment caseworker testified she sent Mother multiple messages each mont h, beginning in April 2021, requesting Mother to go drug test, but Mother failed to do so. The evidence also showed that her community supervision was ame nded in April 2022, to include a requirement that she successfully complete a subs tance abuse program. Acco rding to Mother, she had not violated probation and was not using methamphetamines. Mother denied that she tested pos itive for methamphetamine at the time M.A.C. was removed from her care; she believed the casewo rker tampered with her test to make it show she was positive when she was not. She also denied testing–18– positive for marijuana and amphetamines at the time her older son was removed from her care. Mother’s two older childre n were under the care of her mother, one through a placement with the Department and one through a court order but not through the Department. Acco rding to her caseworker, drugs had been an issue with M.A.C. and her prior children; all three children had been the subject of a CPS case. Mother did complete a twelve-week parenting class a nd believed she had completed her psychological assessmen t and corresponding recommendations. However, the Department caseworker te stified that Mother had not completed counseling, the recommendations of couns eling, or an individual outpatient program. The caseworker testified that Mother had been discharged from individual counseling for poor attendanc e and lack of participation; Mother disagreed. If Mother had completed counseling elsewhere, the Department was unaware as it had not received any documentation verifying Mother’s claims. Mother also testified that she lived w ith her father, and the Department was supposed to do another home study but did not . She had been working part time. The caseworker testified Mother had not de monstrated that she had a stable living environment, was gainfully employed, or that she could support M.A.C. Mother was very concerned about M.A.C. being placed with Y.M. She did not know Y.M., but Y.M. was the mother of one of Father’s other children and she was concerned about Father having access to Y.M. Mo ther did not believe M.A.C. would be safe with Father be cause of his character and cr iminal history. He sold–19– drugs for an organization and, although he no longer worked for the organization, he was hiding from them because he ow ed them money. He also committed aggravated robbery in January 2022. Mother was further concerned that Father was going to leave the state with M.A.C. Father told her that M.A.C. being placed with Y.M. “was his way to get [her] child, a nd that CPS and [Mot her] couldn’t stop him from taking the child away.” Mother was also concerned about Y.M.’ s move to Houston since first being approved for placement. Mother was speci fically concerned about the distance between them because she coul d not afford to go. Mother testified that she would like the opportunity to talk with Y.M. sinc e Y.M. had custody of her son. She was aware of the allegations that she ha d harassed Y.M. but denied them. The caseworker testified th at M.A.C. was doing great in Y.M.’s care. He was growing up, talking more, able to engage, a nd socially interacted with other children around his age. He did not have any medical issues and was going to start daycare. The caseworker further testified that Fathe r’s visits would be supervised and that Y.M. had not shown the Depart ment any reason why she would not be protective of M.A.C. The caseworker believe d it was in M.A.C.’s best interest to be placed with Y.M., as neither parent would provi de a safe environment for him. On cross-examination, the caseworker agr eed that Mother’s virtual visits with M.A.C. had gone well and that she interacted well with him. The caseworker also testified that Mother expre ssed concern about not being ab le to bond with M.A.C. if–20– she could not see him in person. The ca seworker agreed it was important for a mother to have in-person contact with he r child and believed it would be in M.A.C.’s best interest to have in-per son access. However, the case worker later testified that the Department believed termin ation of Mother was in the best interest of M.A.C. even if Mother was in agreement with the placement. The CASA representative also recommended termination for Mother. Y.M. testified that she understood Father ha d to be supervised at all times with M.A.C. and that she was ensuring he was supervised. She ha d taken M.A.C. to Dallas to visit his siblings and planned to facilitate future visits. As to the threatening and harassing messages, Y.M. te stified that Mother finds her family and friends, almost anyone that she has contact w ith, and harasses them (mainly through Facebook) or tells them Y.M. is kidnappi ng M.A.C. Y.M. was concerned for her and her family’s safety and te stified she was afraid to supervise Mother with M.A.C. She was not willing to speak to Mother and did not feel like it would be in M.A.C.’s best interest for her to communicate with Mother. At the August 15 setting, af ter being told multiple time s to remain quiet while the trial court spoke to the attorneys but refu sing to do so, the trial court admonished Mother as follows: “Your behavior is affec ting - - will further restrict your access to this child. If you can’t control yourself, th at makes the Court concerned about your ability to parent.” Mother continued to have outbursts throughout the October 20 Zoom trial, and the trial court had to mute her and later had to remove her because–21– she was showing items on her screen without permission. At the conclusion of the October 20 trial, the court stated that it was concerned that Mo ther’s behavior had not “come down at all” since th e beginning of the case. Th e trial court further stated it was concerned with her ability to cont rol her impulses and he r continued use of drugs or failing to provide proof that she had tested with another program. In concluding that Mother failed to do th e services that the court ordered, the trial court stated, “What she did was everyt hing else but that, and then had reasons and excuses about why she did everything el se but what the C ourt ordered her to do.” The trial court also advised that “t ypically . . . when a modification happens, it’s usually because there’s some dirty tests.”
C. Sufficiency of the Evidence to Support Best Interest Finding 1 When deciding whether termination is in the child’s best interest, we look to certain non-exclusive factors iden tified by the supreme court in Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976). These in clude (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the progra ms available to assi st these individuals

1 Mother does not challenge the sufficiency of the ev idence to support the trial court’s findings that she committed three of the enumerated acts: knowingly pl aced or knowingly allowed M.A.C. to remain in conditions or surroundings whic h endangered his physical or emotiona l well-being, engage d in conduct or knowingly placed M.A.C. with pers ons who engaged in conduct whic h endangered his physical or emotional well-being, and failed to comply with the provisions of th e court’s order that specifically established the actions necessary for Mother to obtain the return of M.A.C. See T EX

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. C ODE § 161.001(b)(1)(D), (E), (O).–22– to promote the best interest of the ch ild; (6) the plans for the child by these individuals or by the agency seeking cu stody; (7) the stability of the home or proposed placement; (8) the acts or omissi ons of the parent which may indicate that the existing parent-child relationship is no t a proper one; and (9) any excuse for the acts or omissions of the parent. Holly , 544 S.W.2d at 372. “The absence of evidence about some of these considerations woul d not preclude a factfinder from reasonably forming a strong conviction or belief that te rmination is in the child’s best interest, particularly if the evidence were undi sputed that the parental relationship endangered the safety of the child.” In re C.H. , 89 S.W.3d at 27.
1. The desires of the child. Both Mother and the Department agree that M.A.C. was too young to express his desires and, thus, evidence regard ing this factor was not at issue.
2. The emotional and physical needs of the child now and in the future and the emotional and physical danger to the child now and in the future. Mother asserts that there is no eviden ce regarding the emotional and physical needs of M.A.C. but, as to the emoti onal and physical danger to M.A.C., she concedes that her positive drug test and th e fact that her community supervision conditions were modified might support a finding that termination is in M.A.C.’s best interest. The Depart ment highlights that Mother was incarcerated for four months for possession and theft and is curre ntly on probation. Her “track record of habitual drug use, consequences of her a ddiction, and lack of testing indicated a–23– high likelihood that she would be unable to provide for M.A.C.” The Department also contends that Mother’s inability to pr ovide a stable living environment, lack of personal control, consistent impulsive behavior, and ha rassment of others involved in the case could cause emotiona l and physical danger to M.A.C. While the evidence does not speak to th e specific needs of M.A.C., we agree with the Department that the evidence s hows Mother is unable to care for a child either because she could not meet the child ’s needs or because she would place the child in danger due to her c ontinued drug use, or assumption of drug use for refusing to report to CPS testing, a nd her behavior toward the tr ial court, the Department, and placement options throughout the case.
3. The parental abilities of the individuals seeking custody. Mother again contends that there is no evidence supporting this factor. We disagree. As the Department asserts, Mother was unabl e to parent her previous children and they were removed from her hom e. Mother’s past performance as a parent could certainly have a bearing on her fitness to pr ovide for M.A.C. See id. at 28 (concluding court of appeal s erred in not considering father’s prior history of child neglect as a factor bearing upon the fi nding that termination would be in the child’s best interest).–24– 4. The programs available to assist these individuals to promote the best interest of the child. There was no evidence presented at trial regarding outside programs to assist the parties besides the services offered to Mother to help her reunite with M.A.C. As discussed above, Mother did not co mplete those services as directed.
5. The plans for the child by these i ndividuals or by the agency seeking custody and the stability of th e home or proposed placement. Mother testified that she was living with her father and th at he could have been reconsidered for placeme nt. But the evidence showed that father’s home was unsuitable and that his initia l home study had been denied. Additionally, her father had threatened staff, instigated a situation at one of Mother’s s upervised visitations in Dallas, and had to be re moved from the final hearing. Thus, Mother’s plans for M.A.C. were not in his best interest. The only other evidence regarding plan s for the child was Y.M.’s testimony that she wanted to continue to facilitate visits between M.A.C. and his siblings in Dallas. Continuing a healthy relationship between family member s would be in the best interest of a child.
6. The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a pr oper one and any excu se for the acts or omissions of the parent. As to these factors, Mother argues th at her virtual vis its had gone well and there was no evidence she was inappropriate with M.A.C. She could not see M.A.C. in person because she could not travel to Houston. The Department acknowledges–25– that Mother may not have ac ted inappropriately toward M.A.C., but she did toward others. The Department argues that Mo ther’s aggressivene ss toward anyone who opposed her raised concerns about whether sh e would also be aggressive in parenting M.A.C. In addition to her inability to c ontrol her outbursts, Mother did not take responsibility for her actions. She denied she tested positive for methamphetamines and blamed her positive test on the casewor ker. She and her father believed the Department were out to get her and take her child wit hout cause. She blamed the lack of drug tests and counseling on the De partment and her probation officer instead of taking responsibility for not completing them or not providing the proper paperwork to the Department. Mother’s failure to comple te her services, failure to take responsibility for her actions, and fa ilure to control her behavior support a finding that termination of her parental ri ghts is in the best interest of M.A.C. Based on our review of the record, we conclude that the evidence is legally and factually sufficient to support a firm belief or conviction th at terminating the parent-child relationship between Mother and M.A.C. was in the best interest of the child. We overrule Mother’s fifth and sixth issues.
D. Sufficiency of the Evidence to Support Appointment of CPS as Managing Conservator In her seventh issue, Mother argues that , because the evidence is insufficient to support a finding that termination of Mothe r’s rights was in M.A. C.’s best interest, the preponderance of the evidence proved th at appointment of Mother as managing–26– conservator would not significantly impair M.A.C.’s physical health or emotional development. As discussed above, we disa gree that the evidence is insufficient to support the trial court’s find ing that termination of Mother’s rights is in the best interest of M.A.C. The trial court furthe r found that appointing Father as managing conservator would significantly impair M. A.C.’s physical health or emotional development. Mother has not challenged the trial court’ s finding regarding Father, and the evidence supports such a finding as Father had also not completed his services with the Department and ag reed to being appointed a possessory conservator with limited and supe rvised access to M.A.C. As this Court has previously explai ned, “we have overruled appellant’s challenge to the termination, and the trial court’s appoint ment of the Department as sole managing conservator ma y be considered a ‘conse quence of the termination pursuant to Family Code section 161.207.’” In re N.T. , 474 S.W.3d 465, 481 (Tex. App.—Dallas 2015, no pe t.) (citation omitted); see also T EX

. F AM

. C ODE § 161.207(a) (“If the court terminates the pare nt-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 Prot ective Services, or a licensed child-placing agency as managing conservator of the child .”). Thus, having te rminated Mother’s rights and finding that appointing Father as managing conservato r would not be in M.A.C.’s best interest, the trial c ourt properly appointed the Department. We overrule Mother’s seventh issue.–27– Ineffective Assistance of Counsel In her third issue, Mother asserts that she received ineffective assistance of counsel. Specifically, Mother argues that counsel’s perfo rmance was deficient when counsel failed to object to the trial court proceeding on the issue of termination and to any questions regarding termination and when she essentially proved that termination was in the child’s best intere st by asking the caseworker that question. The statutory right to counsel for an indigent parent in a termination proceeding “embodies the right to effective counsel.” In re M.S. , 115 S.W.3d 534, 544 (Tex. 2003); see also T EX

. F AM

. C ODE § 107.013(a)(1) (court shall appoint attorney ad litem to represent indigent pa rent in suit filed by Department seeking termination of parent-child relationship). We apply the test outlined for criminal proceedings in Strickland v. Washington , 466 U.S. 668 (1984), to determine whether counsel was effective. In re M.S. , 115 S.W.3d at 544–45. To prevail on a claim of ineffective assistance of counsel, the a ppealing party must show that counsel’s performance was deficient and th at counsel’s errors were so serious as to deprive the parent of a fair trial with a reliable result. Id. at 545. When determining whether counsel was effective, we c onsider all circumstances of the case and “must give great deference to counsel’s performance, indul ging a ‘strong presumption that counsel’s conduct falls within the wide range of r easonable professional assistance,’ including the possibility that counsel’s actions are strategic.” Id. (quoting Strickland , 466 U.S. at 689). “It is only when ‘the conduct was so outrageous that no competent attorney–28– would have engaged in it,’ that the challenged con duct will constitute ineffective assistance.” Id. (quoting Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Mother first argues that counsel was defi cient for failing to object to the trial court’s decision to proceed to a termina tion trial and to any questions regarding counsel. When a party claims ineffective assistance of counsel for failing to object, the party must demonstrate that the tr ial court would have committed error in refusing to sustain the objection if counsel had objected. Vaughn v. State , 931 S.W.2d 564, 566 (Tex. Crim. A pp. 1996). We conclude, as discussed above, that the trial court properly proceeded with a termination trial becau se the Department did not abandon its termination pleadings once the court confirmed that Mother contested M.A.C.’s placement and the De partment’s proposed visitation schedule. We next turn to whether counsel was deficient in questioning the Department’s caseworker about whether she believed termination was in the child’s best interest. Although counsel’s questi on to the caseworker resulted in the caseworker testifying that the Department believed it was in M.A. C.’s best interest for Mother’s parental rights to be terminat ed, we cannot conclude on this record that counsel’s performance fell below an objectiv e standard of reasonableness. Here, after the trial court questioned the De partment about whether it was seeking termination as to Mother, Mother’s counsel further tried to clarify the Department’s position on termination and wh ether it would still seek termination if Mother agreed–29– to the placement of M.A.C. to Y.M. Mo ther’s counsel established through its questioning that the Department knew Mo ther was completing drug testing for probation, that Y.M. did not want to work with or communicate with Mother even though Mother wanted to communicate with Y.M., and that in-person contact with Mother would be in M.A.C.’s best interest. Thus, throughout tria l, Mother’s counsel advocated that Mother was completing services, even though she was doing so outside of CPS’s requests, and that terminating her ri ghts instead of allowing her visitation and access to M.A.C. would adversely affect M.A.C. We cannot conclude that counsel’s performance fell out side the wide range of reasonable professional assistance and, thus , was deficient. Th erefore, Mother has failed to establish that she was denied the effective a ssistance of counsel under the Strickland test, and we overrule her third issue.
Denial of Due Process Mother argues in her fourth issue that her due process rights were violated. Within this argument, Mother reiterate s her contention that the Department abandoned its pleading seeking termination of Mother’s parental rights and, thus, the trial court should not have proceeded to a termination trial. She argues that, because the trial court insisted on procee ding to a termination trial and muted and temporarily removed her from the Zoom h earing, she did not receive a fair and impartial trial by a neutral judge. Mother also asserts that the Department was not candid during trial or during the thirty days following the final order being signed–30– regarding information the Department learned about Y.M. that resulted in the Department denying Y.M.’s home study a nd removing M.A.C. from her home. To support this contention, Mother refers to the home study attached to her brief as appendix 2. According to Mother, the Depa rtment did not file the denied home study with the trial court until January 20, 2023. The docket sheet in the appellate record does not include an entry showing the Department filed the denied home study, a nd the denied home study is not a part of the record. We are not permitted to cons ider documents outside of the appellate record in our review. In re H.K.D. , No. 05-18-00968-CV, 2020 WL 428152, at *2 (Tex. App.—Dallas Ja n. 28, 2020, no pet. ) (mem. op.) (citing Deutsch v. Hoover, Bax & Slovacek, L.L.P. , 97 S.W.3d 179, 198 (Tex. A pp.—Houston [14th Dist.] 2002, no pet.)). Mother compares the De partment’s failure to disclose this information to a Brady violation—the State’s failure to disclose material information in a criminal case. See Brady v. Maryland , 373 U.S. 83 (1963). However, Mother has not provided any authority , and we have found none, in which a court of appeals may consider new evidence on appeal regard ing the termination of parental rights. Because we are prohibited from consid ering documents that are not included in the appellate record and because we ha ve already determined the trial court did not err in proceeding to a termination tria l, we cannot conclude that Mother’s due process rights were violated. We overrule Mother’s fourth issue.–31– Modification of Termination Order In her eighth issue, Mother asks th is Court to modify the final order of termination to properly reflect the dates she is to receive email communications regarding M.A.C. According to Mother, the final order omits one of the agreed dates that she would receive updates—Apr il 1. The Department agrees. This Court has the power to modify a judgment to speak the truth when we have the necessary in formation to do so. See T EX . R. A PP . P. 43.2(b); In re M.D. , 333 S.W.3d 600, 601 (Tex. App. —Dallas 2007, no pet.); Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc). At the conclusion of trial, the trial court announced that it was naming Mother as a non-parent possessory conservator for access, specifically to receive a general description and pictures of M.A.C. on February 1, April 1, July 1, September 1, and December 1 of each year. The final orde r, however, provides that Mother “shall receive photos/pictures of the child and an update on the child’s welfare from [Y.M.] on February 1, July 1, Sept 1 and Dec 1 of each year.” As represented by the parties, the order is missing April 1. Therefore, we sustain Mother’s eighth issue and modify the final order to reflect that Mother re ceive email communications on “February 1, April 1, July 1, September 1, and December 1 of each year.”
Conclusion Having overruled Mother’s first seven issues and having sustained her eighth, we modify the final order of the trial court to properly refl ect each of the five months–32– Mother is to receive emails regarding M. A.C. and otherwise affi rm the final order terminating Mother’s parent al rights and appointing the Department as managing conservator of M.A.C.

221262F.P05 /C r ai g Smith / CRAIG SMITH JUSTICE–33– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF M.A.C., JR., A CHILD,

No. 05-22-01262-CV On Appeal from the 304th Judicial District Court, Dallas County, Texas Trial Court Cause No. JC-21-00276- W. Opinion delivered by Justice Smith. Justices Pedersen, III and Goldstein participating. In accordance with this Court’s opinion of this date, the final order of the trial court is MODIFIED as follows: The sentence on page 8, section 10 of the November 17, 2022 Final Order in Suit Affecting the Parent -Child Relationship and Order of Termination that reads, “ IT IS ORDERED that JASMINE GUICE shall receive photos/pictures of the child and an update on the child’s welfare from Yolis Marquez on February 1, July 1, Sept 1 and Dec 1 of each year,” is modified to read: “ IT IS ORDERED that JASMINE GUICE shall receive photos/pictures of the child and an update on the child’s welfare from Yolis Marquez on February 1, April 1, July 1, September 1, and December 1 of each year.” It is ORDERED that, as modified, the final order of the trial court is AFFIRMED

. We DIRECT the trial court to prepare a correct ed final order that reflects this modification.
Judgment entered this 5th day of May 2023.