Opinion issued July 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00805-CV

———————————

IN THE INTEREST OF A.L.W. AND A.N.W., MINOR CHILDREN

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2013-05425J

MEMORANDUM OPINION

Following a bench trial, the trial court signed a judgment terminating the 

parent–child relationship between A.L.T (“Mother”) and her two minor daughters: 

A.L.W. and A.N.W. On appeal, Mother presents five issues. She asserts that the 

evidence was not legally or factually sufficient to support the trial court’s 
2

judgment, and she claims that she received ineffective assistance of counsel in the 

trial court.

We affirm.

Background

On October 2, 2013, the Department of Family and Protective Services (“the 

Department”) filed suit, requesting the trial court to issue temporary orders 

appointing the Department the temporary sole managing conservator of A.N.W. 

and A.L.W. If family reunification could not be achieved, the Department sought 

to terminate Mother’s parental rights to her children. The Department offered the 

affidavit of Alyssa Martin to support its petition.

In her affidavit, Martin stated that, on October 1, 2013, the Department had 

received a referral regarding the “physical abuse” of two sisters: 12-year-old 

A.N.W. and 11-year-old A.L.W. The report stated that, the previous day, A.N.W. 

had refused to get off the school bus because she was afraid to go home. A.N.W. 

had reported that her step-mother had been abusing her and A.L.W. A.N.W. 

reported that her step-mother had hit her and A.L.W. with an extension cord and 

with a switch. It was also reported that the step-mother had hit A.L.W. with a 

closed fist, giving her a bloody lip, and had yanked A.L.W.’s hair so hard that she 

had pulled it from A.L.W.’s head. According to A.N.W., the step-mother had told 

the girls that, if they reported the abuse to anyone, she would “hurt them worse.” 
3

A.N.W. also reported that her father had choked her and had thrown her against the 

wall as punishment for not adequately watching her younger siblings.

Martin testified in her affidavit that numerous old and new injuries could be 

observed on the girls’ bodies. A.L.W. had scars on her thigh and hip from being 

hit with a switch by the step-mother. A.L.W.’s skin appeared to have been broken. 

A.L.W. had a bald spot on her scalp where the step-mother had pulled out her hair. 

Martin stated that A.L.W. had also been observed with a swollen, bloody lip. 

A.N.W. was observed to have a half-dollar sized purple bruise and one-half 

inch cut over her right eye. On her arm, she had a six-inch-wide welt “with a black 

coating on it from the extension cord” used by the step-mother to hit her. A.N.W. 

also had 15 marks up and down her legs. Some marks were purple and appeared to 

be recent injuries that were healing; others appeared to be old injuries. 

Martin further stated in the affidavit that A.N.W. had reported that she and 

A.L.W. had been living in Chicago, where their biological mother lived. A.N.W. 

told Martin that her father had brought her and A.L.W. from Chicago to Houston 

for a summer visit in May 2013. However, the father did not return the girls to 

Chicago. A.N.W. reported that she and her sister had been permitted to speak to 

their mother only once since they had left Chicago. 

Martin also stated that the step-mother had reported that A.N.W. and A.L.W. 

were living with her and their father because Mother had been abusing the 
4

children. The step-mother stated A.N.W. and A.L.W. had “special needs.” She 

also claimed that “[A.N.W. and A.L.W.] don’t know what they were talking 

about.”

On October 2, 2013, the trial court signed an emergency order for the 

protection of A.N.W. and A.L.W. The order identified Mother and the girls’ father 

as the parents of A.N.W. and A.L.W. and as respondents in the order. 

In the order, the trial court found that A.N.W. and A.L.W. had been removed 

pursuant to Family Code section 262.104, which authorizes possession without a 

court order if circumstances would lead a person of ordinary prudence and caution 

to believe that the child faced “an immediate danger to [his] physical health or 

safety.”1 The court also found that the children faced a continuing danger to their

physical health or safety if returned to “the parent.” The trial court appointed the 

Department as the temporary managing conservator of the children. 

On October 16, 2013, the trial court conducted a full adversary hearing at 

which Mother appeared. That same day, the court signed a temporary order. 

Again, Mother was identified in the order as the children’s mother. In the order, 

the trial court found sufficient evidence to satisfy a person of ordinary prudence 

 1 Section 262.104 was amended in 2015, but the quoted language was unaltered. 

See Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.157, sec. 

262.104(a)(1) (West, Westlaw through 2015 R. Sess.). 
5

and caution that the children faced a continuing danger to their physical health or 

safety if the children were returned home:

(1) there was a danger to the physical health or safety of the children 

which was caused by an act or failure to act of the person entitled to 

possession and for the children to remain in the home is contrary to 

the welfare of the children; (2) the urgent need for protection required 

the immediate removal of the children and makes efforts to eliminate 

or prevent the children’s removal impossible or unreasonable; and (3) 

notwithstanding reasonable efforts to eliminate the need for the 

children’s removal and enable the children to return home, there is a 

substantial risk of a continuing danger if the children are returned

home. 

The order also ordered Mother to comply with the requirements of the 

Department’s service plan. The order notified Mother that any failure to comply 

with the service plan could result in the termination of her parental rights. 

The Department prepared a family service plan and filed it with the trial 

court on November 12, 2013. The plan set out several tasks and services for 

Mother to complete before reunification with her children. 

The trial court conducted a status hearing on November 20, 2013. Mother 

and her court-appointed counsel attended the hearing. That same day, the trial 

court signed a status hearing order, which approved and incorporated the service 

plan by reference. The order stated that Mother had reviewed the service plan and 

understood it. The order reflected that Mother had been warned that her noncompliance with the service plan could result in the termination of her parental 

rights.
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On February 12, 2014, the Department filed a permanency plan and progress 

report with the trial court. Under the heading “parental progress,” the Department

caseworker, Cherena Mills, wrote, “[Mother] is currently living in Chicago,

Illinois. [Mother] has not been in contact with caseworker. [Mother’s] phone 

number is currently disconnected. It is not known if [Mother] has started or 

completed services at this time.” 

The trial court conducted a permanency hearing on February 19, 2014. 

Although her attorney appeared, Mother did not appear at the hearing. The trial 

court signed a permanency order, providing,

IT IS ORDERED that, except as specifically modified by this order or 

any subsequent order, the permanency plans for the children, set out 

in the service plans and/or Permanency Progress Reports filed with 

the Court, are approved and adopted by this Court and incorporated 

herein as if set verbatim in this order. The actions specified in each 

service plan and/or Permanency Progress Report on file as of the date 

of this order represent actions which this Court requires of the parent 

specified in the service plan and/or Permanency Progress Report and 

the actions much be performed in order for the parent to regain 

custody of the children who are presently in the temporary managing 

conservatorship of the Department.

The order also provided “that all previous orders issued by this Court shall 

continue without modification.” 

The trial court conducted another permanency hearing on June 11, 2014. 

Again, Mother’s attorney appeared at the hearing, but she did not appear. 
7

The Department filed another permanency plan and progress report with the 

trial court on September 2, 2014. In the plan caseworker Cherena Mills stated, 

[Mother] is allegedly living in Iowa. [Mother] did not inform 

caseworker she had moved to Iowa. Caseworker was told by paternal 

grandmother. Caseworker obtained mother’s updated phone number 

from paternal grandmother. [Mother] has not been in contact with 

caseworker consistently. [Mother] has stated she completed her 

parenting classes but caseworker has yet to receive the certificate. It 

is unknown if [Mother] has started or completed any other services at 

this time. 

The Department pursued termination of the parent–child relationship 

between Mother and her two daughters, A.N.W. and A.L.W. On September 2, 

2014, the suit was tried to the bench. Mother did not appear at trial. At the start of 

trial, Mother’s counsel orally requested a continuance. Counsel stated that Mother 

had moved to Iowa and was working there. He informed the trial court that 

Mother had told him that she thought trial was the following month. Counsel 

stated, 

[Mother’s] number is one of the numbers that changes all the time, 

quite frequently. I’m sure the Court has dealt with that in the past. I 

asked CPS last week for updated phone numbers. After reasking this 

morning, I was provided, then called her this morning. And my client 

informed me that she has progressed a little further in her plan than 

what CPS believes. And she sent them to CPS, and CPS said they had

not gotten a copy of the information.

The trial court denied the motion for continuance. 

With regard to Mother’s trial attendance, caseworker Cherena Mills testified 

that she had spoken with Mother on August 20, 2014. She had informed Mother 
8

that trial was set for September 2. Mills testified that Mother had stated that she 

could not “make it [to trial] because of her job.”

As it had alleged in its petition, the Department asserted at trial that the 

parent–child relationship between Mother and her two daughters should be 

terminated. Among the grounds for termination, the Department relied on 

Mother’s failure, in violation of Family Code subsection 161.001(l)(O), to comply 

with the provisions of a court order that specifically established the actions 

necessary for her to obtain the return of the children. More particularly, the 

Department sought to prove that Mother had failed to comply with the provisions 

of the service plan, the contents of which the trial court had incorporated into its 

November 20, 2013 status-hearing order. 

When trial began, the trial court took judicial notice of the orders in its file. 

To prove its allegations, the Department offered the testimony of caseworker Mills. 

Her testimony indicated that Mother had failed to comply with the requirements of 

the service plan, except for one. Mother had completed her parenting classes. In 

addition, the trial court’s orders showed that Mother had failed to attend the 

permanency hearings in February and in June, as had been required by the service 

plan. Mills also testified that, at the beginning of the case, Mother had tested 

positive for illegal drug use in October 2013 and in November 2013. With regard 
9

to why termination was in the children’s best interest, Mills testified that Mother 

has not shown the stability necessary to care for the children. 

Mills also testified that A.N.W. and A.L.W. moved back to Chicago in May 

2014 to live with their paternal grandmother. Mills testified that girls have lived 

most of their lives with their paternal grandmother. Although they have a 

relationship with Mother, A.N.W. and A.L.W. consider their grandmother to be 

their mother. Mills testified that the grandmother wants to adopt the two girls, and 

the two girls want to stay with their grandmother. Mills also stated that Mother 

had not consistently visited the children. Mother had visited her daughters at the 

end of July 2014. Before that, however, Mother had not visited the children for a 

long time. 

The trial court rendered judgment terminating the parent–child relationship 

between Mother and her two children, A.N.W. and A.L.W. The trial court found 

that clear and convincing evidence showed (1) Mother had knowingly placed or 

allowed the children to remain in conditions or surroundings that endangered their 

physical or emotional well-being; (2) she had engaged in conduct or knowingly 

placed the children with persons who engaged in conduct that endangered their

physical or emotional well-being; (3) she had constructively abandoned the 

children; (4) she had failed to comply with the provisions of a court order that 

specifically established the actions necessary for her to obtain the return of the 
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children; and (5) termination of her parental rights was in the children’s best 

interest.2

 The trial court appointed the Department as sole managing conservator 

of the children.3

 Mother did not file a motion for new trial.

This appeal followed. Mother raises five issues challenging the trial court’s 

decree terminating her parental rights. 

Sufficiency of the Evidence

In issues two through five, Mother claims that the evidence was not legally 

or factually sufficient to support the trial court’s findings that she had committed a 

predicate act necessary for termination or to support the trial court’s determination 

that termination was in the children’s best interests.

A. Standard of Review

Termination of parental rights requires proof by clear and convincing 

evidence. Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1), 

1997 Gen. Tex. Laws 2012, 2015 (amended 2015); In re J.F.C., 96 S.W.3d 256, 

263 (Tex. 2002). This heightened standard of review is mandated not only by the 

 2 Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 

161.001(1)(D),(E),(N),(O), (2), 1997 Gen. Tex. Laws 2012, 2015, amended by Act 

of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec. 

161.001(b)(1)(D),(E),(N),(O), (b)(2) (West, Westlaw through 2015 R. Sess.). We 

note that the recent amendment to section 161.001 does not affect the resolution of 

Mother’s appeal. The language of subsection (O) did not change; however, the 

subsections have been renumbered.

3 The trial court also terminated the parent–child relationship between the two girls 

and their father, based on his relinquishment of parental rights; however, he has 

not appealed the judgment.
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Family Code but also by the Due Process Clause of the United States Constitution. 

In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); see also Santosky v. Kramer, 455 

U.S. 745, 753–54, 102 S. Ct. 1388, 1394–95 (1982) (recognizing fundamental 

liberty interest parent has in his or her child and concluding that state must provide 

parent with fundamentally fair procedures, including clear and convincing 

evidentiary standard, when seeking to terminate parental rights). The Family Code 

defines clear and convincing evidence as “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 

(Vernon 2014); J.F.C., 96 S.W.3d at 264. 

Here, the Department was required to establish, by clear and convincing 

evidence, that Mother’s actions satisfied one of the grounds listed in former Family 

Code section 161.001(1) and that termination was in the children’s best interest. 

See Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1), (2), 1997

Gen. Tex. Laws 2012, 2015 (amended 2015). “Only one predicate finding under 

section 161.001(1) is necessary to support a judgment of termination when there is 

also a finding that termination is in the child’s best interest.” In re A.V., 113 

S.W.3d 355, 362 (Tex. 2003). “Thus, if multiple predicate grounds are found by 

the trial court, we will affirm on any one ground because only one is necessary for 
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termination of parental rights.” In re G.A.A., No. 01–12–01052–CV, 2013 WL 

1790230, at *7 (Tex. App.—Houston [1st Dist.] Apr. 25, 2013, no pet.). 

When determining legal sufficiency, we review all the evidence in the light 

most favorable to the finding “to determine whether a reasonable trier of fact could 

have formed a firm belief or conviction that its finding was true.” J.F.C., 96 

S.W.3d at 266. To give appropriate deference to the fact finder’s conclusions, we 

must assume that the fact finder resolved disputed facts in favor of its finding if a 

reasonable fact finder could do so. Id. We disregard all evidence that a reasonable 

fact finder could have disbelieved or found to have been not credible. Id. This 

does not mean that we must disregard all evidence that does not support the 

finding. Id. The disregard of undisputed facts that do not support the finding could 

skew the analysis of whether there is clear and convincing evidence. Id. 

Therefore, in conducting a legal-sufficiency review in a parental-termination case, 

we must consider all of the evidence, not only that which favors the verdict. See 

City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

In determining a factual-sufficiency point, the higher burden of proof in 

termination cases also alters the appellate standard of review. In re C.H., 89 

S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and 

convincing evidence cannot be viewed on appeal the same as one that may be 

sustained on a mere preponderance.” Id. at 25. In considering whether evidence 
13

rises to the level of being clear and convincing, we must consider whether the 

evidence is sufficient to reasonably form in the mind of the fact finder a firm belief 

or conviction as to the truth of the allegation sought to be established. Id. We 

consider whether disputed evidence is such that a reasonable fact finder could not 

have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 

266. “If, in light of the entire record, the disputed evidence that a reasonable 

factfinder could not have credited in favor of the finding is so significant that a fact 

finder could not reasonably have formed a firm belief or conviction, then the 

evidence is factually insufficient.” Id.

We give due deference to the fact finder’s findings, and we cannot substitute 

our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 

(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and 

demeanor of witnesses. Id. at 109.

We are mindful that the natural rights that exist between parents and their 

children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 

1985). Therefore, termination proceedings should be strictly scrutinized, and the 

involuntary termination statutes should be strictly construed in favor of the parent. 

Id. at 20–21; see also In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). However, 

“[j]ust as it is imperative for courts to recognize the constitutional underpinnings of 

the parent-child relationship, it is also essential that emotional and physical 
14

interests of the child not be sacrificed merely to preserve that right.” C.H., 89 

S.W.3d at 26; see also In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).

B. Predicate Finding under Former Subsection 161.001(1)(O) 

In her fourth issue, Mother asserts that the evidence was legally and 

factually insufficient to support the trial court’s predicate finding that termination 

was warranted under former Family Code subsection 161.001(1)(O). Termination 

of the parent-child relationship was permitted under Family Code section 

161.001(1)(O) if the parent had

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 ha[d] been in the permanent or temporary managing 

conservatorship of the Department of Family and Protective Services 

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.

Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1)(O), 1997 Gen. 

Tex. Laws 2012, 2015 (amended 2015) (current version 161.001(b)(1)(O) (West, 

Westlaw through 2015 R. Sess.)).

1. Removal from parent under Chapter 262 for abuse or neglect 

Mother first asserts that the record does not show that the children were 

removed from her under Chapter 262 for abuse or neglect. She asserts, “The 

allegations made in support of removal were based solely on allegations of abuse 

committed by [the step-mother] and [by their] father’s neglect in failing to stop the

abuse. Therefore, no reasonable fact finder could form a firm belief of conviction 
15

that the children were removed from [Mother] for abuse or neglect.” At the same 

time, however, Mother acknowledges that courts have held that subsection (O) 

does not require that the parent who failed to comply with a court order be the 

same parent whose abuse or neglect warranted the child’s removal. See In re 

D.R.J., 395 S.W.3d 316, 319–20 (Tex. App.—Fort Worth 2013, no pet.) 

(“[S]ubsection (O) does not require that the parent who failed to comply with a 

court order be the same person whose abuse or neglect of the child warranted the 

child’s removal.”); In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th 

Dist.] 2012, no pet.) (holding that father was required to comply with all 

requirements of court-ordered service plan, even though child was neither removed 

from his home nor removed as result of allegations of abuse or neglect made 

specifically against him); see also In re M.D., No. 10–13–00005–CV, 2013 WL 

1558012, at *2 (Tex. App.—Waco Apr. 11, 2013, pet. denied) (mem. op.) (holding 

that a father was required to comply with the court-ordered service plan or be 

subject to termination under subsection (O) even though the children were 

removed as a result of abuse or neglect by the mother); In re A.M.C., No. 09–12–

00314–CV, 2012 WL 6061031, at *6 (Tex. App.—Beaumont Dec. 6, 2012, no 

pet.) (mem. op.) (“[T]he children need not be removed from the parent who failed 

to comply with the court order. . . . [B]y taking the children into its possession and 
16

by obtaining an order for substitute care of the children after a full adversary 

hearing, the Department effectively removed the children from both parents.”).

Chapter 262, titled “Procedures in Suit by Governmental Entity to Protect 

Health and Safety of Child,” details the circumstances under which a governmental 

entity may file a suit affecting the parent–child relationship or take possession of a 

child without a court order. E.C.R., 402 S.W.3d at 247 (citing TEX. FAM. CODE 

ANN. § 262.001(a)). The statute provides that “[i]n determining the reasonable 

efforts that are required to be made with respect to preventing or eliminating the 

need to remove a child from the child’s home or to make it possible to return a 

child to the child’s home, the child’s health and safety is the paramount concern.” 

Id. (quoting TEX. FAM. CODE ANN. § 262.001(b)).

When it petitions for possession of a child without previous notice and a 

hearing, the Department must submit an affidavit stating “facts sufficient to satisfy 

a person of ordinary prudence and caution” that the child faces an immediate 

danger to his or her health or safety or that the child has been a victim of neglect or 

sexual abuse. Id. (citing TEX. FAM. CODE ANN. § 262.101). The affidavit must 

also state that the continuation in the home would be contrary to the child’s 

welfare. Id. (citing TEX. FAM. CODE ANN. § 262.101). The trial court may issue a 

temporary restraining order only if it finds that one of those conditions has been 

satisfied. Id.
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Within fourteen days after the Department has taken possession of the child, 

the trial court must hold a full adversary hearing. Id. (citing TEX. FAM. CODE ANN.

§ 262.201(a)). After the hearing, the trial court must order the child returned to his 

parent unless the court finds sufficient evidence to satisfy a person of ordinary 

prudence and caution that (1) there was a danger to the child’s physical health or 

safety that was caused by an act or failure to act of the person entitled to 

possession, and for the child to remain in the home is contrary to his welfare; (2)

the urgent need for protection required the immediate removal of the child and 

reasonable efforts, consistent with the circumstances and providing for the child’s 

safety, were made to eliminate or prevent the child’s removal; and (3) reasonable 

efforts have been made to enable the child to return home, but there is a substantial 

risk of a continuing danger if the child is returned home. Id. (citing TEX. FAM.

CODE ANN. § 262.201(b)). Continued removal is warranted only if the child faces 

a continuing danger to his physical health or safety. Id. (citing TEX. FAM. CODE 

ANN. § 262.201(b)–(c)).

Here, pursuant to Family Code section 262.201, the Department submitted 

an affidavit to support its request for “emergency orders” to obtain initial 

possession of A.N.W. and A.L.W. The affidavit explained that, on October 1, 

2013, the Department received a referral, alleging physical abuse of A.N.W. and 

A.L.W. 
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An investigation by the Department revealed that, in May 2013, A.N.W. and 

A.L.W.’s father brought the girls from Chicago, where they and Mother lived, to 

Houston to live with him and the girls’ step-mother. The investigation revealed 

that, while living with their father and step-mother, the girls had been beaten and 

subjected to other physical abuse by their step-mother. The caseworker providing 

the affidavit noted that the girls had visible marks, bruises, and abrasions on their

bodies from old and new injuries. 

The investigation also revealed that the step-mother had a history with the 

Department regarding neglect of her own children. It was further determined that 

the step-mother had prior criminal convictions for the offenses of aggravated 

assault and drug possession. 

In addition, the affidavit stated that A.N.W. had reported that she and her 

sister came to Texas to spend the summer with their father; however, he did not

return them to Chicago at the end of summer. A.N.W. also reported that she and 

A.L.W. had only spoken to Mother once during the four-month period they were in 

Houston. Although it was reported that the girls’ father had taken them without 

Mother’s consent, A.N.W. and A.L.W.’s step-mother reported, during the 

investigation, that the girls had come to live with her and their father because 

Mother had been abusing them. The step-mother had also stated that the children 
19

had “special needs” and implied that the children were not telling the truth about 

the abuse by her.

Citing the affidavit, the trial court signed its “Order for Protection of a Child 

in an Emergency” on October 2, 2013. “This affidavit, even if not evidence for all 

purposes, shows what the trial court relied on in determining whether the initial 

removal was justified.” Id. at 248. The order identified Mother as a parent of 

A.N.W. and A.L.W. and as a respondent to the action. In the order, the trial court 

found “there is a continuing danger to the physical health or safety of the children 

if returned to the parent, managing conservator, possessory conservator, guardian, 

caretaker, or custodian who was entitled to possession of the children.” The trial 

court ordered Mother to provide certain information regarding the children to the 

Department.

As required by Family Code section 262.201, the trial court conducted a full 

adversary hearing fourteen days later on October 16, 2013. Mother appeared at the 

hearing. Following that hearing, the trial court signed a “Temporary Order 

Following Adversary Hearing.” The trial court ordered the continued removal of 

the children. Mother was again identified as a parent of the children. 

To support the continued removal, the trial court found, as required by 

Family Code section 262.201(b)), sufficient evidence to satisfy a person of 

ordinary prudence and caution that
20

(1) there was a danger to the physical health or safety of the children 

which was caused by an act or failure to act of the person entitled to 

possession and for the children to remain in the home is contrary to 

the welfare of the children; (2) the urgent need for protection required 

the immediate removal of the children and makes efforts to eliminate 

or prevent the children’s removal impossible or unreasonable; and (3) 

notwithstanding reasonable efforts to eliminate the need for the 

children’s removal and enable the children to return home, there is a 

substantial risk of a continuing danger if the children are returned 

home.

The order also notified Mother that she was required to follow the Department’s 

service plan and warned her of the consequences of failing to follow the plan: 

11. Finding and Notice

The Court finds and hereby notifies the parents that each of the 

actions required of them below are necessary to obtain the return of 

the children, and failure to fully comply with these orders may result 

in the restriction or termination of parental rights.

12. Compliance with Service Plan

12.1. [Mother] is ORDERED, pursuant to § 263.106 Texas Family 

Code, to comply with each requirement set out in the Department’s 

original, or any amended, service plan during the pendency of this 

suit.

To determine whether a child was removed from a parent under Chapter 262 

for abuse or neglect, the Supreme Court of Texas has signaled that courts may rely 

not only on the Department’s affidavit supporting initial removal but also on the 

trial court’s unchallenged findings in the temporary orders.4

 See E.R.C., 402 

 4 Courts have held that such temporary orders may be challenged by seeking

mandamus relief. See In re E.C.R., 402 S.W.3d 239, 248 n.8 (Tex. 2013) (citing 
21

S.W.3d at 248–49. Here, the temporary orders, authorizing the children’s initial 

removal and their continuing removal, expressly applied to Mother. The orders not 

only removed the children from their father’s possession but also from that of 

Mother. The temporary orders also required Mother to engage in certain conduct, 

including complying with the Department’s service plan. Read in context, the trial 

court’s findings in the temporary orders applied to Mother. 

The unchallenged finding found in the temporary order, supporting the 

children’s initial removal, states “there is a continuing danger to the physical health 

or safety of the children if returned to the parent.” The order supporting the 

continued removal of the children from Mother and their father also contains 

unchallenged findings. In these findings, the trial court found sufficient evidence 

to satisfy a person of ordinary prudence and caution that (1) the children faced an 

immediate danger to their physical health or safety, (2) the urgent need to protect 

them required their immediate removal, and (3) they faced a substantial risk of a 

continuing danger if they were returned home. Thus, we conclude that the 

affidavit and the unchallenged findings establish that A.N.W. and A.L.W. were

 

Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (holding that mandamus 

relief was appropriate because trial court’s temporary orders were not subject to 

interlocutory appeal); In re Steed, No. 03–08–00235–CV, 2008 WL 2132014, at 

*2, n.3 (Tex. App.—Austin May 22, 2008, orig. proceeding) (“Because temporary 

orders in a suit affecting a parent-child relationship are not subject to interlocutory 

appeal under the family code, mandamus review is appropriate.”), mand. denied, 

255 S.W.3d 613, 615 (Tex. 2008, orig. proceeding) (“[W]e are not inclined to 

disturb the court of appeals’ decision.”)). 
22

removed from Mother under chapter 262 for abuse or neglect. See id. at 249 

(citing cases in which courts relied on affidavit and temporary orders to determine 

that children had been removed under Chapter 262 for abuse of neglect).

2. Court order specifying necessary actions

Mother also asserts that the evidence was legally insufficient to support the 

Subsection (O) finding “because the record does not contain a court order that 

specifically establishes the actions necessary for [Mother] to take in order to obtain 

the return of her children.” See TEX. FAM. CODE ANN. § 161.001(1)(O). Mother 

correctly points out that “[a] termination finding under subsection (O) cannot be 

upheld where there is no court order that specifically establishes the actions 

necessary for the parent to obtain return of the child.” In re D.W., Nos. 01–13–

00880–CV, 01–13–00883–CV, 01–13–00884–CV, 2014 WL 1494290, at *9 (Tex. 

App.—Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem. op.). Mother 

acknowledges that the Department’s service plan, which sets out the tasks and 

services Mother was required to complete to gain the return of her children, was 

admitted into evidence at trial. Mother notes in her brief that “[t]ypically, the 

record contains a status hearing order that approves and orders the [service plan].” 

Since Mother filed her brief, the Department has supplemented the clerk’s 

record to include the November 20, 2013 status-hearing order. The order states 
23

that Mother appeared at the hearing with her attorney. The order also approves and 

incorporates the service plan by reference. 

The order provides,

IT IS ORDERED that, except as specifically modified by this order or 

any subsequent order, the plans of service for [Mother] filed with the 

Court, and incorporated by reference as if the same were copied 

verbatim in this order, is APPROVED and made an ORDER of this 

Court.

In the order, the trial court also found as follows:

[Mother] has reviewed and does understand the service plan and has 

been advised that unless she is willing and able to provide the children 

with a safe environment, even with the assistance of a service plan, 

within the reasonable period of time specified in the plan, her parental 

and custodial duties and rights may be subject to restriction or to 

termination or the children may not be returned to her.5

Because the status-hearing order is now part of the record, we conclude that 

Mother’s complaint that there was no court order specifically establishing the 

actions necessary for her to obtain the return of the children is without merit. 

 5 Mother also mentions in her brief that she did not sign the service plan filed with 

the trial court. However, a notation on signature page of the service plan states 

that “this page with original signatures is maintained in the Texas Department of 

Family Protection Services case file.” In addition, as mentioned, the trial court 

found in the status-hearing order that Mother reviewed the service plan and 

understood it. Further, Mother’s partial compliance with the service plan and the 

Department’s status report to the trial court also indicate that Mother understood 

the plan’s terms. See In re K.A.A., No. 04–13–00019–CV, 2013 WL 3477284, at 

*2 (Tex. App.—San Antonio July 9, 2013, pet. denied) (mem. op.) (discussing 

how record showed parent understood requirements of service plan even though

parent had not signed service plan). 
24

3. Noncompliance with court-ordered service plan

Lastly, Mother asserts that the evidence was legally and factually 

insufficient to prove that she failed to comply with the court ordered service-plan 

requirements. Mother claims that caseworker Mills’s testimony, indicating that 

Mother “failed to complete her services,” was too conclusory to support the trial 

court’s finding. Mother asserts that “there is no testimony regarding what specific 

services she failed to complete.” 

In conjunction with Mills’s testimony, the service plan was admitted into 

evidence. The service plan showed that Mother was required (1) to undergo a 

psychological assessment, (2) to submit to random urine analysis, with resulting 

negative results to demonstrate sobriety, (3) to participate in a drug and alcohol 

assessment, (4) to participate in parenting classes, (5) to demonstrate attachment to 

her children by managing her children’s behavior, using skills she learned in the 

parenting classes, (6) to complete individual counseling to develop coping skills, 

(7) to attend all permanency conferences, court hearings, and scheduled family 

visits, (8) to maintain stable employment and provide her caseworker with monthly 

income statements, (9) to maintain stable housing for six months, (10) to sign a 

release of information for the Department to obtain information from “service 

providers,” and (11) to cooperate with her caseworker by maintaining contact with 

her. 
25

Mills’s testimony indicated that Mother had completed only one of these 

required services. Mills testified that Mother had provided documentation showing 

that she had completed the required parenting classes. Thus, the trial court, as the 

factfinder, could have reasonably inferred that Mother did not complete the other 

ten required services found in the service plan. 

In addition, Mills testified that Mother had not visited the children 

consistently throughout the pendency of the case. Mother had last visited the 

children in July 2014, but before then, she had not visited them for a long time. 

This was evidence that Mother had not demonstrated “attachment to her children 

by managing her children’s behavior using skills that she [had] learned in the 

parenting classes,” as required in the service plan. Mills also testified that she had 

repeatedly asked Mother to send her financial information, but Mother had failed 

to comply. This was evidence indicating that Mother had failed to provide Mills 

with monthly income statements and to cooperate with Mills, both service plan 

requirements. Lastly, the record reflects that Mother failed to attend two of the 

permanency hearings, another plan requirement. 

In her brief, Mother suggests that her indigency status prevented her from 

completing her services. Mills testified that, because Mother lived in another state, 

the Department could not pay for the services. Mother also intimates that she 

could not afford to travel to Texas to attend the permanency hearings. However, 
26

“the Family Code does not allow consideration of excuses for non-compliance with 

section 161.001(1)(O).” In re I.R., No. 14–14–00626–CV, 2014 WL 6854747, at 

*6 (Tex. App.—Houston [14th Dist.] Dec. 4, 2014, no pet.) (mem. op.).

In sum, the evidence in the record demonstrates that the Mother did not 

complete her court-ordered services and tasks. This provided a basis for 

termination of her parental rights under subsection (O). By failing to complete her 

service plan, Mother has not demonstrated an ability to provide A.N.W. and 

A.L.W. with a stable environment. See I.R., 2014 WL 6854747, at *6 (citing In re 

A.D., 203 S.W.3d 407, 411–12 (Tex. App.—El Paso 2006, pet. denied) (affirming 

termination under subsection (O) because mother failed to meet her service plan’s 

material requirements)).

Reviewing all of the evidence in the light most favorable to the termination 

findings, we conclude that a reasonable fact finder could have formed a firm belief 

or conviction as to the truth of the termination findings under subsection (O). In 

light of the entire record, the disputed evidence that a reasonable fact finder could 

not have credited in favor of the termination finding under subsection (O) is not so 

significant that a fact finder could not reasonably have formed a firm belief or 

conviction as to the truth of the termination finding under that subsection. See 

H.R.M., 209 S.W.3d at 108. We hold that the evidence is legally and factually 

sufficient to support the finding that Mother failed to comply with the provisions of 
27

a court order, which specifically established the actions necessary for her to obtain 

the return of the children after their removal due to abuse or neglect. See Act of 

May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1)(O), 1997 Gen. Tex. 

Laws 2012, 2015 (amended 2015) (current version 161.001(b)(1)(O) (West, 

Westlaw through 2015 R. Sess.).6

We overrule Mother’s fourth issue.

C. The Children’s Best Interest

In her fifth issue, Mother challenges the legal and factual sufficiency of the 

evidence to support the trial court’s finding that termination of her parental rights 

was in the children’s best interest.

1. Applicable legal principles

There is a strong presumption that the best interest of the child will be 

served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112, 

116 (Tex. 2006). Prompt and permanent placement of the child in a safe 

environment is also presumed to be in the child’s best interest. TEX. FAM. CODE 

ANN. § 263.307(a) (West, Westlaw through 2015 R. Sess.).7 Among others, the 

 6 Because of our holding, we need not consider issues two and three, which 

challenge the trial court’s other predicate ground findings. See In re A.V., 113 

S.W.3d 355, 362 (Tex. 2003) (recognizing that only one predicate act required).

7 The Texas Legislature recently amended Family Code section 263.307. See Act of 

Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.181, sec. 263.307 (West, 

Westlaw through 2015 R. Sess.). However, the revisions to the statute were minor 
28

following factors should be considered in evaluating the parent’s willingness and 

ability to provide the child with a safe environment: (1) the child’s age and 

physical and mental vulnerabilities; (2) the frequency and nature of out-of-home 

placements; (3) the magnitude, frequency, and circumstances of harm to the child; 

(4) whether there is a history of substance abuse by the child’s family or others that 

have access to the child’s home; (5) the willingness and ability of the child’s 

family to seek out, accept, and complete counseling services and to cooperate with 

and facilitate an appropriate agency’s close supervision; (6) the willingness and 

ability of the child’s family to effect positive environmental and personal changes 

within a reasonable period of time; (7) whether the child’s family demonstrates 

adequate parenting skills, including providing the child and other children under 

the family’s care with minimally adequate health and nutritional care, guidance 

and supervision, and a safe physical home environment; and (8) whether an 

adequate social support system consisting of an extended family and friends is 

available to the child. Id. § 263.307(b); In re R.R., 209 S.W.3d at 116. 

The Supreme Court of Texas has set out some additional factors that courts 

may consider when determining the best interest of the child, including: (1) the 

desires of the child; (2) the emotional and physical needs of the child now and in 

 

and did not change the statutory language cited herein. Nor did the amendment 

affect the numbering of the statutory provisions. Thus, we cite to the current 

version of the statute. 
29

the future; (3) the emotional and physical danger to the child now and in the future; 

(4) the parental abilities of the individual seeking custody; (5) the programs 

available to assist these individuals to promote the best interest of the child; (6) the 

plans for the child by these individuals or by the agency seeking custody; (7) the 

stability of the home or proposed placement; (8) the acts or omissions of the parent 

that may indicate that the existing parent-child relationship is not a proper one; and 

(9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 

S.W.2d 367, 371–72 (Tex. 1976). This is not an exhaustive list, and a court need 

not have evidence on every element listed in order to make a valid finding as to the 

child’s best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling, 

analysis of a single factor may be adequate in a particular factual situation to 

support a finding that termination is in the best interest of the child. See In re A.P., 

184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).

The evidence supporting the statutory grounds for termination may also be 

used to support a finding that the best interest of the child warrants termination of 

the parent–child relationship. C.H., 89 S.W.3d at 28; H.D., 2013 WL 1928799, at 

*13. Furthermore, in conducting the best-interest analysis, a court may consider 

not only direct evidence but also circumstantial evidence, subjective factors, and 

the totality of the evidence. See H.D., 2013 WL 1928799, at *13.
30

2. Analysis

Multiple factors support the trial court’s determination that termination of 

Mother’s parental rights was in the children’s best interest. The trial court heard 

testimony from Mills in which she stated that 13-year-old A.N.W. and 11-year-old 

A.L.W. were returned to their paternal grandmother’s home in Chicago on May 28, 

2014. Prior to coming to Texas, Mills confirmed that the girls had lived with their 

grandmother “basically their entire lives.” While she also confirmed that the girls 

had a relationship with Mother, Mills indicated that A.N.W. and A.L.W. consider 

their grandmother to be their mother. Mills testified that Mother did not visit the 

children consistently throughout the pendency of the case. She had visited them in 

July 2014 but had not seen them for a long time before that visit. Mills stated that 

the grandmother wants to adopt A.N.W. and A.L.W. and that the children want to 

be with their grandmother. According to Mills, the grandmother has in the past 

provided a safe home for the girls. Mills indicated that the grandmother is willing 

to provide the girls “a safe and stable home free of physical abuse.” In contrast, 

Mills stated that Mother has not demonstrated the stability to care for the children. 

We conclude that the foregoing evidence is supportive of termination under the 

following Holley factors: the desires of the children; the emotional and physical 

needs of the children now and in the future; the emotional and physical danger to 

the children now and in the future; the parental abilities of the individual seeking 
31

custody; the plans for the children by these individuals or by the agency seeking 

custody; the stability of the home or proposed placement; and the acts or omissions 

of the parent that may indicate that the existing parent-child relationship is not a 

proper one. See Holley, 544 S.W.2d at 371–72.

In addition, the evidence showed that Mother has a history of illegal drug 

use. Mills testified that, during the pendency of the case, in October 2013 and in 

November 2013, Mother had tested positive for both cocaine and marijuana. 

Parental drug abuse reflects poor judgment and may be a factor to be 

considered in determining a child’s best interest. See TEX. FAM. CODE ANN.

§ 263.307(b)(8) (providing that courts may consider whether there is a history of 

substance abuse by the child’s family). A parent’s exercise of poor judgment 

currently and in the past demonstrates an inability to provide adequate care for a

child. In re J.M., No. 01–14–00826–CV, 2015 WL 1020316, at *7 (Tex. App.—

Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.). A parent’s drug use has also 

been found to be a condition that can indicate instability in the home environment. 

Id.

After November 2013, Mother submitted to no further drug testing. As 

discussed supra, while she had completed her parenting classes, Mother completed 

none of the other required tasks and services identified in the court-ordered service 

plan. See TEX. FAM. CODE ANN. § 263.307(b)(11) (stating courts may consider the 
32

willingness and ability of the child’s family to effect positive environmental and 

personal changes within a reasonable period of time). A factfinder may infer from 

a parent’s failure to take the initiative to complete the services required to regain 

possession of her children that she does not have the ability to motivate herself to 

seek out available resources needed now or in the future. See J.M., 2015 WL 

1020316, at *7; see Holley, 544 S.W.2d at 371–72 (listing parental abilities of 

individual seeking custody as best-interest factor).

At trial, Mills explained that, because Mother lived in another state, the 

Department could not pay for Mother’s services, including the drug testing. See 

Holley, 544 S.W.2d at 371–72 (identifying availability of programs to individuals 

seeking custody as best-interest factor). Mother was required to pay for these 

services herself. Mother suggests in her brief that she could not complete the 

services because she could not financially afford them. See id. (identifying any 

excuse for the acts or omissions of the parent as best-interest factor). However, 

Mills testified that she had repeatedly asked Mother to send her financial 

information, but Mother had not complied. See TEX. FAM. CODE ANN.

§ 263.307(b)(10) (providing that courts may consider the willingness and ability of 

child’s family to seek out, accept, and complete counseling services and to 

cooperate with and facilitate an appropriate agency’s close supervision). In 

addition, Mother had verbally indicated to Mills, in August 2014, that she had a 
33

job. Mother had stated to Mills that she could not attend trial because she had to 

work. The trial court, as fact finder, was entitled to disbelieve any suggested 

excuses based on the evidence presented, and reasonably could have formed a firm 

belief or conviction that any excuses for Mother’s failure to complete her services 

were inadequate. See In re D.D.D.K., No. 07–09–0101–CV, 2009 WL 4348760, at 

*6 (Tex. App.—Amarillo Dec. 1, 2009, no pet.) (mem. op.) (“It is well established 

that, in a bench trial, the judge as the trier of fact weighs the evidence, assesses the 

credibility of witnesses and resolves conflicts and inconsistencies.”). 

In her brief, Mother also asserts that no evidence was offered at trial to 

address a number of issues relevant to the best-interest determination. However, 

the Department is not required to prove all of the Holley factors as a “condition 

precedent” to termination, and the absence of some factors does not bar the 

factfinder from finding by clear and convincing evidence that termination is in a 

child’s best interest. C.H., 89 S.W.3d at 27.

After viewing all of the evidence in the light most favorable to the bestinterest finding, we conclude that the evidence was sufficiently clear and 

convincing that a reasonable fact finder could have formed a firm belief or 

conviction that termination of the parent–child relationship between Mother and 

her children was in the children’s best interest. We further conclude that, viewed 

in light of the entire record, any disputed evidence could have been reconciled in 
34

favor of the trial court’s finding that termination of the parent–child relationship 

between Mother and the children was in the children’s best interest or was not so 

significant that the trial court could not reasonably have formed a firm belief or 

conviction that termination was in the children’s best interest. Therefore, after 

considering the relevant factors under the appropriate standards of review, we hold 

the evidence is legally and factually sufficient to support the trial court’s finding 

that termination of the parent–child relationship is in the children’s best interest.

We overrule Mother’s fifth issue.

Ineffective Assistance of Counsel

In her first issue, Mother asserts that she received ineffective assistance of 

counsel at trial. 

A. Applicable Legal Principals

“In Texas, there is a statutory right to counsel for indigent persons in 

parental-rights termination cases.” In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); 

see TEX. FAM. CODE ANN. § 107.013(a)(1) (Vernon 2012). The Supreme Court of 

Texas has held this right to counsel “embodies the right to effective counsel.” 

M.S., 115 S.W.3d at 544. When determining whether a parent received ineffective 

assistance of counsel, we use the same standard applied in criminal cases: the 

standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 

(1984). M.S., 115 S.W.3d at 545. 
35

To show ineffective assistance of counsel under Strickland, the defendant 

has the burden to prove by a preponderance of the evidence that (1) counsel’s 

performance was deficient, that is, that it fell below an objective standard of 

reasonableness; and (2) it is reasonably probable that, except for his counsel’s 

unprofessional errors, the outcome of the proceeding would have been different. 

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also In re J.O.A., 283 S.W.3d 

336, 344 (Tex. 2009) (emphasizing that ineffective assistance claim requires 

defendant to make requisite showing under both prongs of Strickland).

To support a finding that trial counsel was ineffective, the trial record must 

affirmatively demonstrate his deficiency. Bermea v. Tex. Dep’t of Family & 

Protective Servs., 265 S.W.3d 34, 43 (Tex. App.–Houston [1st Dist.] 2008, pet. 

denied). When reviewing trial counsel’s performance, we take into account the 

circumstances surrounding the case and focus primarily on whether the manner of 

his performance was reasonably effective. H.R.M., 209 S.W.3d at 111; M.S., 115 

S.W.3d at 545. We must indulge “‘a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance,’ including the 

possibility that counsel’s actions are strategic.” M.S., 115 S.W.3d at 545 (quoting 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). When the record is silent 

concerning the reasons for counsel’s actions, we may not speculate to find trial 

counsel ineffective. P.W. v. Dep’t of Family and Protective Servs., 403 S.W.3d 
36

471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.); Walker v. Tex. 

Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston 

[1st Dist.] 2009, pet. denied); see also Maxwell v. Tex. Dep’t of Family & 

Protective Servs., No. 03–11–00242–CV, 2012 WL 987787, at *6 (Tex. App.—

Austin Mar. 23, 2012, no pet.) (mem. op.) (citing Rylander v. State, 101 S.W.3d 

107, 110–11 (Tex. Crim. App. 2003) (“When the record is silent as to counsel’s 

subjective motivations, courts will ordinarily presume that the challenged action 

might be considered sound trial strategy.”)). We find ineffective assistance only if 

the conduct is “so outrageous that no competent attorney would have engaged in 

it.” H.R.M., 209 S.W.3d at 111.

Under the second prong of the Strickland inquiry, we must review the record 

to determine whether counsel’s deficient performance harmed the defendant. M.S., 

115 S.W.3d at 549–50 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)). A defendant is harmed when “there is a reasonable probability that, 

but for counsel’s unprofessional error(s), the result of the proceeding would have 

been different.” Id. (quoting Garcia, 57 S.W.3d at 440). A “reasonable 

probability” is a probability sufficient to undermine confidence in the outcome of 

the proceeding. In re V.V., 349 S.W.3d 548, 559 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied) (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
37

B. Analysis

Mother first criticizes trial counsel for making an oral motion for 

continuance at the start of trial rather than filing a written motion for continuance 

with a supporting affidavit. Mother is correct that a motion for continuance must 

be in writing, state the specific facts supporting the motion, and be verified or 

supported by affidavit. See TEX. R. CIV. P. 251; Villegas v. Carter, 711 S.W.2d 

624, 626 (Tex. 1986); In re A.A., No. 05–07–01698–CV, 2008 WL 2514346, at *2

(Tex. App.—Dallas June 25, 2008, no pet.) (mem. op.).

To reiterate, at the beginning of trial, counsel stated that Mother had moved 

to Iowa and was working there. He informed the trial court that Mother had told 

him that she thought trial was the following month. Counsel then stated, 

[Mother’s] number is one of the numbers that changes all the time, 

quite frequently. I’m sure the Court has dealt with that in the past. I 

asked CPS last week for updated phone numbers. After reasking this 

morning, I was provided, then called her this morning. And my client 

informed me that she has progressed a little further in her plan than 

what CPS believes. And she sent them to CPS, and CPS said they had 

not gotten a copy of the information.

The trial court denied the motion for continuance. 

We are mindful that counsel is not ineffective for failing to undertake futile 

actions. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). Here, 

Mother has not shown that a written, verified motion for continuance would have 

been granted. 
38

Although counsel stated that Mother had informed him that she thought trial 

was the following month, Mills testified that she had spoken to Mother two weeks 

before trial. Mills had informed Mother of the trial date. Mills stated that Mother 

had told her that she could not attend trial on that date because she had to work. In 

addition, the record shows that the one-year statutory deadline for adjudication of a 

suit seeking to terminate parental rights, pursuant to Family Code section 263.401, 

was fast approaching. See TEX. FAM. CODE ANN. § 263.401(a) (Vernon 2014). 

Furthermore, Mother had failed to appear at other proceedings in the case, despite 

the fact that her appearance at those proceedings was a required condition for 

reunification with her children. 

Based on this record, we cannot conclude that the trial court would have 

granted Mother’s motion for continuance, even if it had been in writing and 

supported by an affidavit. Thus, Mother has not shown that counsel performed 

deficiently when he did not file a written, verified motion for continuance. See 

A.A., 2008 WL 2514346, at *2–*3 (holding counsel not ineffective for failing to 

file written motion for continuance and affidavit); see also 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.) (holding that counsel not shown to be deficient for failing to 

request a trial continuance when counsel may have believed, under the 

circumstances, such request would have been futile).
39

Mother next criticizes counsel because he “filed a general denial ‘subject to 

proper service on [Mother].’” Mother asserts that, “[b]y filing a general denial, 

[she] made a voluntary appearance and thereby waived service of process.” She 

claims that “the way to contest a court’s jurisdiction is by making a special 

appearance.” However, an allegation of ineffective assistance must be firmly 

founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). 

Mother makes no showing that filing a special appearance would have been 

appropriate or successful in this case. 

Mother further asserts that counsel failed “to maintain contact with his client 

as evidenced by his representation to the court that Mother thought trial was next 

month” and by his statement to the trial court that he had obtained Mother’s phone 

number from Mills. However, the record is silent regarding the amount of contact 

counsel had with Mother or whether Mother had been cooperative with counsel. 

As stated, claims of ineffective assistance of counsel must be firmly founded in the 

record. See id. 

Mother also claims that counsel was unfamiliar with the facts, as shown by 

his questioning of Mills at trial. For example, she points out that counsel did not 

appear to know whether the father had taken the children from Mother or from 

their grandmother. However, the record is also not clear on this point. The 
40

Department’s affidavit offered in support of the initial removal of the children 

appeared to indicate that the children were taken from Mother. In contrast, Mills 

testified that the children were taken from the grandmother. 

Mother also criticizes counsel because he asked Mills to confirm that the 

trial court had excused Mother from attending hearings in the case. Mills stated 

that she did not recall the court doing so. Mother asserts that counsel should have 

offered a hearing transcript or an order to contradict Mills; however, Mother makes

no showing that such contradicting proof exists. 

Mother further asserts that counsel was ineffective because he did not object 

at trial to the Department’s leading questions, and counsel “asked only open-ended 

questions.” Here, the record is silent regarding why counsel chose to ask the 

questions that he asked and why he did not object to the Department’s questions. 

As stated, when the record is silent concerning the reasons for counsel’s actions, 

we may not speculate to find trial counsel ineffective. P.W., 403 S.W.3d at 476; 

Walker, 312 S.W.3d at 622–23. Instead, we must indulge “‘a strong presumption 

that counsel’s conduct falls within the wide range of reasonable professional 

assistance,’ including the possibility that counsel’s actions are strategic.” M.S., 

115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). 

Additionally, Mother points out that the trial record is short. She complains 

that the Department’s case was based on the conclusory statements and beliefs of 
41

Mills. Mother criticizes counsel because he “failed to question the basis of 

conclusory statements.” We, however, can envision a reasonable trial strategy for 

why counsel did not ask Mills the basis for her statements: counsel did not want to 

help the Department develop its case. 

Finally, Mother points out that, at the end of trial, “counsel in his one 

sentence closing asked the court to terminate his client’s parental rights on (O) 

grounds only.” Mother asserts that counsel should have, instead, pointed to the 

lack of evidence offered to support the termination findings. 

We agree with the Department that that the predicate finding under 

subsection (O) was proven at trial. Counsel may have pointed to subsection (O)

for strategic reasons; that is, to dissuade the trial court from making findings under 

subsections (D) and (E). As the Department points out, Family Code subsection 

161.001(1)(M) allows a court to terminate the parent–child relationship if it finds 

by clear-and-convincing evidence that the parent has had her parent-child 

relationship terminated with respect to another child based on a finding that the 

parent’s conduct was in violation of Paragraph (D) or (E). TEX. FAM. CODE ANN.

§ 161.001(M) (West, Westlaw through 2015 R. Sess.). Here, counsel may have 

been attempting to avoid findings under subsections (D) and (E) to prevent such 

findings from being used against Mother in the future. See Garcia v. State, 57 

S.W.3d 436, 440 (Tex. Crim. App. 2001) (holding that counsel should not be 
42

deemed ineffective if any strategic motivation can be imagined for counsel’s 

challenged conduct).

We hold that Mother has not met her burden to demonstrate ineffective 

assistance of counsel by a preponderance of the evidence because she has not 

shown that her trial counsel’s performance fell below an objective standard of 

reasonableness. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064. 

Accordingly, we overrule Mother’s first issue. 

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.