1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-238-CV

IN THE INTEREST OF D.R.D., A CHILD

------------

FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

------------

MEMORANDUM OPINION1

------------

Appellant Tamara F. appeals the termination of her parental rights to her

daughter, D.R.D. In a single point, Appellant argues that her trial counsel was

ineffective for failing to contest and defend her against any of the assertions

made the basis of the suit to terminate her parental rights. We will affirm.

Appellee Texas Department of Family and Protective Services (“TDFPS”)

filed its petition for termination in suit affecting the parent-child relationship in

October 2006 seeking to terminate Appellant’s parental rights to nine-and-a-
2

half-year-old D.R.D. TDFPS alleged that termination was in D.R.D.’s best

interest and that Appellant had committed one or more of the acts or omissions

set forth in family code section 161.001(1)(A), (B), (C), (D), (E), (I), (K), (L),

(M), (N), (O), (P), and (Q). See TEX. FAM. CODE ANN. § 161.001(1)(A), (B), (C),

(D), (E), (I), (K), (L), (M), (N), (O), (P), (Q) (Vernon Supp. 2007).

At trial, Appellant testified that she is addicted to methamphetamines,

that she has been dealing and using drugs for the last four years, that she uses

methamphetamines almost every day, that she stays high for long periods of

time, that everybody she knows uses drugs, and that she does not work.

Appellant’s parental rights to her daughter I.J.F. were terminated in Oklahoma

in 2005, and her parental rights to her son D.M.L. were terminated in 2006.

Appellant’s other son, C.D., was one year old when he choked on a screw and

died at home. At the time of trial, Appellant was in jail for possession of

methamphetamines, her second or third pending felony charge in Denton

County.

The jury found by clear and convincing evidence that termination of

Appellant’s parental rights to D.R.D. was in D.R.D.’s best interest and that

Appellant had knowingly placed or knowingly allowed D.R.D. to remain in

conditions or surroundings which endangered D.R.D.’s physical or emotional

well-being; had engaged in conduct, or knowingly placed D.R.D. with persons
2... The trial court signed an interlocutory order terminating the parent

child relationship between D.R.D. and her father, Jeremy D., on June 18, 2007.

The order became final when the trial court signed the order terminating

Appellant’s parental rights.

3

who engaged in conduct, which endangered D.R.D.’s physical or emotional

well-being; and had had her parent-child relationship terminated with respect to

another child based on a finding that her conduct was in violation of family

code section 161.001(1)(D) or (E) or a substantially equivalent provision of the

law of another state. This appeal followed.2

In her sole point, Appellant argues that her trial counsel was ineffective

because he “failed to contest any assertions of [TDFPS] or provide a legal

defense by engaging in a trial strategy which was impossible.” She states that

“[t]he record is clear that the ‘strategy’ in this case was to convince the jury

that [her] brother, [Billy T. (“Billy”)], should receive D.R.D. and care for her as

a legal guardian in Ohio.” Appellant contends, however, that her counsel’s

strategy in arguing that D.R.D. should be placed with Billy was legally

impossible and essentially sought an unattainable result because Billy did not

intervene in the suit and because the jury charge did not provide for custody to

Billy. TDFPS responds that Appellant’s trial counsel was not ineffective
3... TDFPS initially argues that Appellant failed to preserve for appellate

review her argument that her trial counsel was ineffective because she did not

specifically include this argument in a timely filed statement of points or in a

statement combined with a motion for new trial. See TEX. FAM. CODE ANN.

§ 263.405(i) (Vernon Supp. 2007) (stating that an appellate court may not

consider any issue that was not specifically presented to the trial court in a

timely filed statement of the points on which the party intends to appeal or in

a statement combined with a motion for new trial). In a recent en banc

decision, this court held that family code section 263.405(i) is void as a

violation of the separation of powers provision of the Texas constitution. See

In re D.W., No. 02-06-00191-CV, 2008 WL 467328, at *12 (Tex. App.—Fort

Worth Feb. 19, 2008, no pet. h.) (en banc). We are bound to follow our own

precedent, so we will consider the merits of Appellant’s ineffective assistance

argument.

4

because he contested the best interest prong of the termination-of-parentalrights inquiry.3

 We agree with TDFPS.

There is a right to effective assistance of counsel in termination cases.

In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). We review ineffective

assistance claims under the Strickland standard. Id. at 549. To establish

ineffective assistance of counsel, appellant must show by a preponderance of

the evidence that her counsel’s representation fell below the standard of

prevailing professional norms and that there is a reasonable probability that, but

for counsel’s deficiency, the result of the trial would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
5

State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999).

In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).

The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for
4... In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1), (2); In

re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

6

counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at 694, 104 S. Ct. at 2068.

In many cases, we are unable to determine whether counsel’s actions

were grounded in sound trial strategy because the record is silent as to possible

trial strategies. In this case, however, the record unequivocally demonstrates

that counsel’s trial strategy was to convince the jury that it was not in D.R.D.’s

best interest to have her parent-child relationship with Appellant terminated.

Counsel’s strategy thus entailed challenging an essential element of the

termination proceeding.4

In his opening statement, counsel argued that Appellant was in jail, that

Appellant did not want to take D.R.D. home with her, and that it would be in

D.R.D.’s best interest if she remained part of Appellant’s family but lived in

Ohio with Appellant’s brother, Billy. Counsel argued, “We’re asking you not to

terminate solely on the fact that there are family that are here for” D.R.D.

Appellant testified that she did not believe it was in D.R.D.’s best interest to

have her parental rights terminated, that she did not want to relinquish her
7

parental rights to D.R.D. because she wanted Billy to have custody of D.R.D.,

and that she would give custody of D.R.D. to Billy if the jury chose not to

terminate her parental rights because she wanted D.R.D. to stay in the family.

Counsel questioned the Director of Public Safety for Oak Point whether he

knew anything about Billy; the Director did not. Referencing Billy, counsel

questioned a licensed professional counselor whether it is important for a child

to have a “family connection with a decent family”; the counselor agreed that

it is important. Billy testified that he lives in Ohio, that he moved there to get

away from his family and the lifestyle that they were living, that he would like

to raise D.R.D. if the jury did not terminate Appellant’s parental rights to her,

and that he would be able to care for D.R.D. if Appellant gave him custody of

her. Additionally, in his closing argument, counsel stressed that Billy is the one

who really cares about D.R.D. and that “[t]he only way to guarantee that Billy

has a shot of being in [D.R.D.’s] life is not to terminate.”

Considering the overwhelming evidence of Appellant’s narcotics-infused

lifestyle and that her parental rights to two other children had previously been

terminated, counsel could have reasonably concluded that it would have been

disingenuous to contest the section 161.001(1) termination grounds alleged.

Moreover, counsel’s zealous performance was not rendered ineffective solely

because Billy did not intervene in the case; the jury was still required to find by
8

clear and convincing evidence that termination was in D.R.D.’s best interest.

See TEX. FAM. CODE ANN. § 161.001(2).

Counsel engaged in a sound trial strategy throughout trial by contesting

TDFPS’s assertion that it would be in D.R.D.’s best interest to terminate

Appellant’s parental rights to D.R.D. Thus, Appellant has failed to rebut the

strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Consequently, Appellant has failed to meet her

burden under the first Strickland prong. See Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. We overrule Appellant’s sole point and affirm the

trial court’s judgment.

PER CURIAM

PANEL F: HOLMAN, J.; CAYCE, C.J.; and MCCOY, J.

CAYCE, C.J. concurs without opinion.

DELIVERED: April 3, 2008