Affirm; and Opinion Filed March 18, 2013.

In The 

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## Appiah FiftI! Iistrirt nf !.1ixai at 1aIta No. 05-12-01283-CV

IN THE INTEREST OF L.J., A CHiLD

On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-11-12980-Z 

### MEMORANDUM OPINION Before ChiefJustice Wright, Justice Lang, and Justice Evans Opinion byJustice Evans Shannon JT appeals &om ajudgmentterminating herparental rights to U. Intwo issues, appellant asserts thathertrial counsel was ineffective and that she was denied due process ofthe law protected by the Fourteenth Amendment to the Constitution ofthe United States. After reviewing the record and finding no reversible error, we affirm thetrial court’sjudgment. BACKGROUND The Texas Department ofFamily and Protective Services received a referral on June 14, 2011 alleging that Ashunte Minniefield, a convicted sex offender, had been arrested at

l To protect the privacy ofthe parties, we identify the child’s relatives by their first names only. See TEx. FAM. CODEANN. § 109.002(d) (West Supp. 2012).appellant’s apartment earlierthat day and that appellantwas threateningto kill herself Although Li. was not present at the time ofMinniefield’s arrest, LJ.’s sibling, N.T. was at the home, The

same day, a Department special investigatorvisited appellant at her home and had concerns that appellant was not taking her prescribed medication for mental health issues and had allowed at least one ofher children to be around Minniefield. At the request ofthe Department special investigator, appellant signed a child safety evaluation and plan agreeing that she and her children wouki not have any further contact with Minniefield and that she would take her medication. The following day, in an interview with a Department caseworker, appellant admitted she knew Minniefield was a convicted sex offender, but stated that she never allowed him to care for her children at any time. Appellant also admitted to using drugs in the past, but the record shows drug tests performed on June 14 and June 15 were negative. After assessment, the Department determined the family would benefit from family based safety services and wouldbe monitoredby the Department. The June 14 referral was not appellant’s first case with the Department involving Minniefield. In March of 2010, L.J. and N.T. were removed from appellant’s care because Minniefield was in the home. The children were ultimately returned to appellant and the case
was closed after appellant successfully completed services and appellant agreed that she and her children wouldnothave any contactwithMinniefield. On July 20, 2011, appellant contacted her caseworker to inform her that Minniefield’s family made threats to kill appellant after learning that Minniefield had been diagnosed with a critical medical condition thathis familybelieved to be appellant’s fault. After appellantrefused the Department’s offer to go to a shelter with her children, the Department removed L.J. and N.T. from appellant’s home. Then, the Department filed a petition for protection,conservatorship, and termination ofappellant’s rights with respect to Li. only: The trial court signed a temporary order on July 26, 201 1 appointing the Department temporary managing conservator ofboth children. Several permanency hearings were held and orders entered during the pendency ofthis case. At the permanency hearing on December 6, 2011, the trial court signed an order appointing counsel to appellant. On March 23, 2012, the parties signed a “mediated settlement agreement” incorporating

an exhibit that, among other things, re-set the mediation for June 1, 2012. On April 12, the trial courtheld another permanency hearing setting the case formediation on June 1 and setting atrial date ofJuly 5 and 6. The case was not settled on June 1 and a trial before the court was held on the scheduled dates. At the conclusion of the trial, the court orally rendered judgment terminating appellant’s parental rights to U. pursuant to subsections 161.OOi(l)(D) and (E) of the Texas Family Code. Before the finaljudgment was signed, the trial court signed an order dismissing L.J.’s termination case for want ofprosecution. The case was later reinstated on the Department’s motion. On August 30, 2012, the trial court signed a decree terminating appellant’s parental rights to L.J. This appeal followed. ANALYSIS Before addressing the merits ofthis case, we note that the record in this appeal and the record in the separate appeal involving the termination ofappellant’s parental rights to N.T. are virtually the same, although the termination decrees for each childhave differenttrial court cause numbers. The cases were tried together below and the reporter’s record is identical in both appeals. Additionally, appellant has filed substantively identical briefs in both appeals raising

2 Previously, in January 2011, the attorney general’s office filed a petition to establish paternity ofN.T. undertrial courtcause number DF-l l-00657-Z. It was in this separate case thatthe trial courtterminated appellant’s parental rights to N.T. Thatjudgment is the subject ofa separate appeal and opinion. See In re N.T, 05-12-01284- CV (Tex. App—Dallas March 18, 2013, no pet .h.).the same issues and arguments. However, some ofthe arguments appellant presents relate only to the termination ofappellant’s parental rights to NT. We do not address these arguments in this opinion and limit our analysis to only those arguments relating to the trial court’sjudgment terminating appellants parental rights to U. I. INEFFECTIVE ASSiSTANCE In her first issue, appellant asserts that her trial counsel was ineffective because he was unprepared for trial in various ways and failed to: (1) file special exceptions and various motions, (2) perform discovery, (3) make certain objections at trial, and (4) present evidence on certain factors relative to whethertermination was in UJ.’s best interest. In Texas, indigent parents have a statutory right to effective assistance of counsel in termination proceedings that we evaluate underthe same standards as those set forth forcriminal defense counsel in Strickland v. Washington, 466 US. 668 (1984). See In re M.S., 115 S.W.3d 534, 54445 (Tex. 2003). To succeed on her ineffective assistance issue, appellant must establish not only thathercounsel’s performance was deficient, but also show counsel’s deficient performance prejudiced her case. See id. With respect to the first prong ofthe test, we indulge in a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, which includes the possibility that counsel’s actions were strategic. Id. at 545. The challenged conduct will constitute ineffective assistance only when it was so outrageous that no competent attorney would have engaged in it. Id. In analyzing whether counsel’s performance in a particular case is deficient, we consider all ofthe circumstances surroundingthe case and focus primarily on whether counsel performedin areasonably effective

manner. Id. With respect to Strickland second prong, we must determine whether there is a reasonable probability that, but for counsel’s deficient performance, the result ofthe proceeding

4would have been (lilterent. Id. at 550. An alleation of ineftctive assistance must be fully supported by the record.See Doc’ i. Brazoria (fli. (h/Id PIU1L’c’The Seers.. 226 S.W3d 563. 572 (Tex. App.- Houston [1st Dist.j 2007, no pet). A. MediatedSettlementAgreement Appellant initially asserts that her counsel’s performance was deficient because he failed to move for a final judgment based upon the parties’ March 23, 2012 “Mediated Settlement Agreemenf’ in accordance with section 153.0071(e) of the Texas Family Code.See TEX. FAM. CODE ANN. 1530071(e) (West 2008). Appellant argues that entry ofa finaljudgment on the agreement, which did not call lbr the termination of herparental rights, would have been a better result for appellant than thejudgment the trial court signed after trial on the merits. Our review ofthe purported agreement does not support appellant’s position. On March 23 the parties signed the “Mediated Settlement Agreement” to appear in court to present evidence and secure rendition ofjudgment in accordance with the settlement terms. The agreement further provided, “THIS AGREEMENT IS NOT SUBJECT TO REVOCATiON.” The particular terms of the parties’ settlement, however, were set out in Exhibit A. Exhibit A specifically re-set the March 23 mediation to June 1. The exhibit further provided that during the interim, appellant would finish counseling, continue her drug treatment, stay on her medication from “MFIMR,” continue with “MHMR” services, and refrain from having contact with any registered sex offender. The settlement did not address the ultimate disposition ofthe terminationproceeding. Our review ofthe agreement shows there is nothing in the purported settlement upon which appellant’s counsel could have sought a finaljudgment because nothing in the parties’ settlement involved an agreement with respect to the issues before the trial court for finalresolution, i.e., custody, placement, guardianship, orparental rights. Nor does the record contain any indication that the trial court would have granted such a motion. We therefore conclude appellant’s counsel’s performance was not deficient for failing to move for a finaljudgment on a “mediated settlement agreement” that addressed only interim actions appellant agreed to perform before the June 1 mediation. B. Motion for Continuance Appellant next directs us to her counsel’s failure to file a written motion for a continuance ofthe July 5 trial date afterbecoming aware that the State intended to proceed with terminating appellant’s parental rights. 3 Appellant acknowledges that her counsel orally moved for a continuance on the day of trial which the trial court denied. At trial, the Department opposed counsel’s request for a continuance noting the case had a dismissal date ofJuly 23 pursuant to section 263.401(a) of the family code. See TEX. FAM. CoDE ANN. 

### § 263.401(a) (West 2008). Appellant contends, however, that the Department’s decision to proceed with the termination after signing the March 23 “mediated settlement agreement,” is an extraordinary circumstance justifying a 180 day continuance to allow counsel additional time to prepare for trial under section 263.401 ofthe family code. See id. 

### § 263.401(b). A trial court’s ruling on a motion for continuance lies within the trial court’s sound discretion. BNC Sofiware Beig., N. V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); see also In re D. W, 249 S.W.3d 625, 647 (Tex. App.—Fort Worth 2008, pet. den.) (extension ofdismissal date under section 263.401(b) similar to continuance andreviewed forabuse ofdiscretion).

Appellant asserts that the Department unilaterally repudiated the “mediated settlement agreement” on or about June 1, 2012. The Department contends that mediation continued on June 1 as ordered by the Court on April 24, but no final agreement was reached because appellant had not followed the terms set forth in the March 23 agreement.

### Appellanthas notshownthatthecourtwouldhavegrantedatimely filedwrittenmotion forcontinuanceonthegrounds sheasserts orthatshewasinfacthannedbythefailuretogranta continuance. Even assuming the trial court would have granted a continuance to give counsel additional time to prepare fortrial as appellant urges, there is nothing in the recordbefore us to support a conclusion that if counsel had received additional time, there was a reasonable probabilitythattheresult oftheproeeedings wouldhavebeendifferent. Accordingly, appellant hasfailedtoestablisheitherprongoftheStricklandtestwithrespecttothiscomplaint C SpecialExceptionsandDiicovey Appellantalsocontendsthathercounsel’sperformancewasdeficientbecausehefailedto file special exceptions to the Department’s petition. Appellant asserts that as a result of counsel’s failure to specially except to the pleadings he was unaware ofthe specific statutory groundsonwhichthe Departmentbasedits request

### fortenninationandwasunpreparedfortrial. Therecorddoesnotsupportappellant’scontention. The

### caseworkeraffidavitattachedto theDepartment’sterminationpetitionrecountedthe eventsofJune 14

### andJuly20andnoted

### thatappellantadmittedtousing

### marijuana“tocopewith thingsthataregoingoninherlifeat

### thistime.” The

### afflantalsoquestionedappellant’sabilityto providea

### safeenvironmentforher

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### children, including her 

### lack offollow-up with her 

### mental health, knowingly allowing a sex offender to reside in her home, and placing the 

### children in an unsafe 

### environment after Minniefield’s familymadethreatsto appellant Theseconcernswerethe Department’s focus at Ma Appellant’s counsel was appointedon December6, 2011 and laterattendedpermanency hearings on February 14 

### and April 12, as well as 

### two mediation hearings. At the March 23

7mediation, issues respecting appellant’s continuation with counseling, drug treatment, mental health issues, as well as her contact with any convicted sex offender were raised by the Department, as evidencedby the agreement the parties signed. Moreover, at the beginning ofthe trial, counsel forthe Department stated Ofl the record it was seeking termination based on section 161 .001(1 )(D) (endangerment by conditions or surroundings) and section 161 .001 (l)(E)(conduct endangerment). Accordingly, appellant’s contention that her counsel was unaware of the grounds on which the Departmentwere proceeding is not supportedby the record. Appellant also contends that counsel was deficient because he failed to propound formal discovery and was unprepared for trial and surprised by the Department’s trial exhibits and theories. Appellant specifically references Minniefield’s penitentiary packet relating to his sex offender conviction, Dallas County Sheriff records containing the number of times appellant visited Minniefield injail, records from a drug testing agency, and expert reports and opinions from a professional counselorwho treated appellant. The recordbefore us is silent as to whether counsel propounded any discovery in this case and also does not disclose what counsel knew with respect to Minniefield’s sex offenses, appellant’s drug tests, visits to Minniefield, or the opinions of appellant’s counselor. Accordingly, appellant has failed to establish counsel was ineffective for failingto requestdiscovery. To the extent appellant asserts that these exhibits would have been excluded as untimely pursuantto Texas Rule ofCivil Procedure 193.6 had fonnal discoverybeenpropounded, there is nothing in the record to suggest that the Department would not have complied with time requirements regarding discovery requests. Moreover, based on the record before us, we are

Rule 193.6 provided that, absent a showing ofgood cause, or a lack ofunfair surprise or unfairprejudice, a party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence material orinformation thatwas nottimely disclosed. See TEX. R. Civ. P. 193.6.

8unpersuaded that the admission ofMinniefield’s criminal records evidencing that he was a sex offender or the record ofappellant’s jail visits to Minnicfield prejudiced appellant’s case any
more than her own admissions at trial, In hertestimony, appellant admitted that at some point in 2010 she learned that Minniefield was a registered sex offender and that her children were removed from her care in 2010 based on her relationship with Minniefleid. Appellant also agreed that part ofthe reason her children were returned to her in 2010 was because she agreed that she and herchildren would nothave any contact with Minniefleld. She also admitted that on June 14, 2011, less than one year after the 2010 case was dismissed, Minniefield was arrested at her home when N.T, was present. Appellant further admitted that despite signing an agreement at the March 23 meditation that she would refrain from having any contact with a registered sex offender, she had visited Minniefield injail over sixteen times through June. We are likewise unpersuaded by appellant’s argument that early discovery of Minniefield’s criminal records would have allowed counsel to argue that appellant’s children were ofa different sex and age than Minniefield’s child victims. There is nothing in the record to indicate that appellant’s counsel was unaware ofthe age and sex ofMinniefield’s victims prior to trial. Furthermore, we cannot determine on this record whether counsel’s failure to bring attention to the precise nature of Minniefield’s sex offenses may have been part of his trial strategy to marginalize Minniefield’s impactonthe casebecause he was currentlyinprison. Appellant also complains about the admission ofher drug testing records for May 25, 2012 thatdidnotinclude the actual drug testresults. Evidence thatthis drug testwas positive for cocaine came primarily from the testimony ofa caseworker. Appellant denied using cocaine in connection with the drug test. Appellant did acknowledge, however, that she had a history of marijuana and cocaine use and last used cocaine in 2011. Appellant’s counsel specificallyobjected to the caseworker’s testimony about the drug test results on the grounds “that would be asking a question about results that are not in evidence.” Although the trial court sustained the objection, the caseworker subsequently testified the test came back positive for cocaine. Appellant’s counsel then moved for a mistrial, which was denied. Absent evidence ofwhether the actual test result was positive or negative, we cannot conclude that counsel’s failure to obtain discovery on the results of appellant’s drug tests prejudiced her case. We also reject any ineffective assistance complaint based on counsel’s failure to obtain another drug test for appellant forthe same reason. There is no evidence in the record ofwhat such a testwould have revealed had itbeenperformed orwhetheritwould have aided orprejudiced appellant’s case. Finally, appellant challenges counsel’s failure to obtain discovery with respect to the recommendations and opinions of appellant’s counselor. Appellant contends this failure prevented counsel from obtaining an objective risk assessment test that “could have combated the Department’s subjective claims that appellant could not be protective of her children.” Because there is nothing in the record to indicate what an objective risk assessment test would have revealed had it been performed, we cannot conclude appellant’s counsel was ineffective for failing to obtain such a test. Accordingly we reject all of appellant’s ineffective assistance complaints based on counsel’s failureto file special exceptions and propound discovery. D. Arguments and QuestioningBasedon Non-Existent Court Order Appellant also asserts she was harmed by her counsel’s failure to correct the impression created attrial that appellant was currentlyunder a court orderprohibiting her from contact with Minniefield. 5 Appellant’s underlying assumption regarding this assertion is that ifthe trial court

Appellant asserts this impression was created by her counsel’s failure to object to adverse counsel’s improper argument and questioning about appellant’s failure to comply with non-existent court orders and

10knew there was no existing court order prohibiting appellant or her children from having contact with Minniefield, there was a reasonable probability that the trial court would not have terminated her parental rights. Our review ofthe record does not support appellant’s position. There was ample evidence that, irrespective of a court order, appellant was aware that Minniefield, a known sex offender, should notbe around her children and thathis presence in her home in 2010 led to the children’s removal. Yet less than a year later, Minniefield was arrested in herhome while one ofherchildren was present. Additionally, despite signing an agreementto refrain from any contact with any sex offenders on March 23, 2012, appellant continued to visit Minniefleld injail regularly. In light ofthis evidence, we cannot say that counsel’s failure to point out the absence ofa specific court order prohibiting appellant’s conduct prejudiced the result in this case. E. OtherJneJjctive Assistance Claims Appellant also complains about her counsel’s questioning of a caseworker and appellant’s aunt. She asserts this questioning elicited damaging evidence that appellant had refused to take a drug test and that the aunt had called the police on June 14, 2011 because Minniefield was allegedly beating appellant. Appellant also directs us to questions her counsel asked her about what she would do ifMinniefield came to her home and started molesting her children. She furtherattacks counsel’s failure to point out that appellantnever signedthe family service plan and the lack ofevidence it was ever served on her afterthe Department claimed she failed to complywith the plan. Additionally, appellant complains ofcounsel’s failure to present any evidence ofherplancompliance.

appellant’s counsel’s own statements and questions to appellant suggesting that there were court orders prohibiting appellant from having contact with Minniefield.

IIBased upon this record, we cannot agree with appellant that these alleged deficiencies prejudiced the outcome ofher case such that she was deprived ofa fair trial, a trial whose result is reliable, See In re MS., 115 S.W.3d at 545 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). The Department’s main focus throughout the termination proceeding was appellant’s inability to adequately protect her children as evidenced by her continued contact with a known sex offender even after various services were provided to her to help her make appropriate decisions to create a safe environment forherchildren. For example, the caseworker testified that appellant admitted to the caseworker that Minniefield slept in the only bed in the apartment with the children separated by appellant which appellant denied in her testimony. According to the record, appellant’s druguse, while relevantto the question ofwhether appellant

was adequately protecting the children, appears to have been a secondary concern to the Department. Nevertheless, at the beginning oftrial, appellant’s counsel sought a continuance specifically requesting additional time to obtain anotherdrug test fbr appellant. Thatrequestwas denied by the trial court. Throughout the trial, appellant’s counsel thoroughly cross-examined the Department’s witnesses and took two witnesses on voir dire regarding certain testimony. He made numerous objections to testimony, many ofwhich were sustained. Counsel made an oral motion for a mistrial after a caseworker testified to the results ofthe drug test that was not in evidence. We conclude the record here is insufficient to overcome the presumption that counsel’s performance was competent. SeeIn reMS., 115 S.W.3d at 145. Finally, appellant asserts counsel’s representation was ineffective because he failed to present evidence ofseveral factors that were relevant to the whethertermination was in the best interest ofthe children. See Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Once again, the record does not reveal what the purported evidence would have been or whether it would have

12supported appellant’s position. Therefore, we cannot conclude appellant was prejudiced by counsel’s failure to present such evidence. Appellant also argues that counsel should have objected to the Department’s rejection ofplacement ofthe children with appellant’s auntbecause of the aunt’s need for financial support. However, there is no evidence that the Department rejectedplacement with the aunt on this basis. Among otherthings, the caseworker testified her main concern with the aunt was that she appeared at the last minute, less than one month before trial. Further, the caseworker stated that to be able to care for the children, the aunt would need financial assistance, which the Department could not provide immediately for placement with a relative. The caseworker also testified the aunt initially expressed a hesitancy about taking custody ofLi. because the aunt was not related to Li. Accordingly, appellanthas not met her burden with respect to this ineffective assistance complaint. Having rejected all ofappellant’s ineffective assistance complaints, weturn to herdue process complaints. 11. DUE PROCESS in her second issue, for the first time on appeal, appellant complains her due process rights were violated because (1) she was not given forty-five days’ “meaningful” notice ofthe July 5 trial date after the Department allegedly repudiated the March 23 mediated settlement agreement, (2) the Department repeatedly misrepresented that appellant was in violation of a court order prohibiting her or her children from having contact with Minniefield when no such court order existed, and (3) the trial court reinstated the termination case regarding L.J. on the Department’s motionwithoutahearing ornoticeto appellant. Our review ofthe record reveals that none ofappellant’s due process complaints were
everpresented to the trial court. To preservemost issues forreview, aparty mustbring the issue to the trial court’s attention by timely request, objection, or motion. See TEx. R. App. P. 33.1.

13Even constitutional claims can be waivedby failing to raise them in the trial courtbelow. See In

re LML. 119 SW3d 707, 708 (Tex. 2003) (“[Ajdhering to our preservation rules isn’t a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose”). In fact, our review of possible reversible error never presented to the trial court wouldundermine the legislative intent to ensure finality in terminationproceedings and expedite the resolution ofthese cases. See In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003), Because appellant failed to raise her due process complaints in the trial court, she has failed to preserve these issues forourreview. See id. at 349—50. Accordingly, we resolve appellant’s second issue againsther. Having resolved appellant’s two issues againsther, we affirmthe trial court’sjudgment.

121 283F.P05 W. EVANS JUSTICE

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### Qtiiirt nfAppiahi 

## FiftJi flitrirt rif at Da11a JUDGMENT IN THE INTEREST OF: L.J,, A CHiLD No. 05-120l2$3-CV On Appeal fromthe 256th Judicial District Court, Dallas County. Texas Trial Court Cause No. DF-l l-l2980-Z. Opinion delivered by Justice Evans. Chief Justice Wright and Justice Lang participating. In accordance with this Court’s opinion ot this date, thejudgment ofthe trial court is AFFiRMED. Judgmententered this lth day ofMarch. 2013.

DA JUSTICE ANS