### IN THE TENTH COURT OF APPEALS
No. 10
- 08
- 00347
- CV
IN THE INTEREST OF S .K.A., A CHILD ,

From the 13th District Court Navarro County, Texas Trial Court No. 07
- 16859
- CV

MEMORANDUM OPINION
Following a bench trial, the trial court signed an order te rminating both Donald’s
and Charlene’s parental rights to their daughter, S.K.A. Donald and Charlene both appeal, asserting multiple issues. We will affirm the termination order. Legal and Factual Sufficiency In Issues A.1 and B.1, Donald and Charlene as sert that the evidence is legally and factually insufficient to support the trial court’s findings that the termination of the parent

- child relationship between each of them and S.K.A. was in the child’s best interest. In Issues A.2 through A.6 and B.2 th rough B.5, they assert that the evidence is legally and factually insufficient to support the trial court’s findings as to each of the predicate grounds for termination , and in Issue D.1, they assert that the evidence isIn the Interest of S.K.A., a Child Page 2

legally and factually insufficient to support the trial court’s finding that the appointment of TDFPS as permanent managing conservator was in the child’s best
interest. Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petit ioner to justify termination by “clear and convincing evidence.” Spangler v. Tex. Dep’t of Prot

. & Reg

. Servs. , 962 S.W.2d 253, 256 (Tex. App.

— Waco 1998, no pet.). This standard is defined as “that measure or degree of proof which will produce in the min d of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Id. In a proceeding to terminate the parent

- child relationship brought under section 161.001 of the Texas Family Code, the movant must establ ish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001 (termed a predicate violation); and (2) that termination is in the
best interest of the child. T EX
. F AM
. C ODE A NN
. § 1 61.001 (Vernon 2009) ; Swate v. Swate , 72 S.W.3d 763, 766 (Tex. App.

— Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burd en of proving the other. Holley v.
Adams , 544 S.W.2d 367, 370 (Tex. 1976); Swate , 72 S.W.3d at 766. Both legal and factual sufficiency reviews in termination cases must take into
consideration whether the evidence is such that a factfinder could reasonab ly form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C. , 96 S.W.3d 256, 264

- 68 (Tex. 2002) (discussing legalIn the Interest of S.K.A., a Child Page 3

sufficiency review); In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) (discussin g factual sufficiency review).

In a legal sufficiency review, a court should look at 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. To give appropriate deference to the factfinder’s conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the f actfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incre dible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. If, after con ducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally ins ufficient. J.F.C. , 96 S.W.3d at 266. In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. [T]he inquiry must be “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations.” A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that dispute d evidence in favor of its finding. 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 factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.In the Interest of S.K.A., a Child Page 4

Id. at 266

- 67 (footnotes and ci tations omitted). We view the evidence in a neutral light when reviewing for factual sufficiency. Best Interest of the Child In determining the best interest of a child, a number of factors have been considered, including (1) the desires of the child; (2 ) the emotional and physical needs of the child now and in the future; (3) the emotion al and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these indiv iduals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent

- child relationship is not a proper one; and (9) any excuse for
the acts or omissions of t he parent. Holley , 544 S.W.2d at 371

- 72 . This list is not exhaustive, but simply indicates factors that have been or could be pertinent. Id.
For cases in which the d epartment or another government agency is the petitioner, subsection 263.307(a) of the Family Code provides that “the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s
best interest.” T EX
. F AM
. C ODE A NN
. § 263.307(a) (Vernon 2009). Subsection (b) then
lists thirteen factors the court, the de partment, or other authorized agencies should consider in determining whether a parent is “willing and able to provide the child with
a safe environment.” Id. § 263.307(b). In our review of the trial court’s termination order, w e will likewise give consi deration to these factors to the extent applicable. See
In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re S.N. , 272 S.W.3d 45, 50

- 51 (Tex. App.

— Waco 2008, no pet.); In re T.N.F. , 205 S.W.3d 625, 632

- 33 & n.3 (Tex. App.

—In the Interest of S.K.A., a Child Page 5

Waco 2006, pet. denied ). We will address the best

- interest finding separately for each parent. Charlene
D esires of the Child : S.K.A.’s desires are unknown because she was less than one year old at the time of trial.
The Child’s Emotional and P hysical N eeds and the E motional a nd P hysical D anger to
the C hild : C harlene points out in her brief that there is no evidence that S.K.A. will have any special physical or emotional needs beyond that of a normal child . Charlene’s
mother also testified that Charlene has bonded with S.K.A. , such that S.K.A. misse s her
when she i s not there

. But other evidence on these two factors weigh s heavily in favor of the finding that termination of Charlene’s parental rights was in S.K.A. ’s best interest. At the time of trial, Charlene was facing i ncarceration for violating her probation.
See In re M.D.S. , 1 S.W.3d 190, 200 (Tex. App.

— Amarillo 1999, no pet.) (noting that need for permanence is paramount consideration for child’s present and future physical and
emotional needs and that incarceration makes a parent’s future uncertain). She was on probation after being convicted of one felony (evading arrest in a motor vehicle) and three misdemeanors (criminal mischief, possession of marijuana, and resisting arrest). The felony conviction came after she allegedly tried to run over her then one

- year - old
son’s father with her car while the baby was in the car with her. Although she testified at trial that she is now “clean,” Charlene also admitted to a past history of drug use. See May v. May , 829 S.W. 2d 373, 377 (Tex. App.

— Corpus Christi 1992, writ denied) (stating that evidence of past misconduct may not itself beIn the Interest of S.K.A., a Child Page 6

sufficient to show present unfitness but adult’s future conduct may well be measured by recent deliberate past conduct as it may be related to same or similar situation). Dawn Jock, the CPS employee who conducted the initial investigation in this case , testified that she went to the hospital just after S.K.A. was born because there had been an allegation of physical abuse : Charlene had test ed positive for cocaine at the time of S.K.A.’s birth. Jock further testified that when S.K.A. was removed four days after she
was born , Charlene took a hair follicle test and tested positive for a relatively high level of cocaine. Fortunately, there was no positive drug test on S.K.A. Charlene denied using cocaine but admitted “occasionally” using marijuana during her pregnancy with S.K.A. Dr. Douglas Cheatam, the clinical psychologist who performed Charlene’s psychological evaluation, testified that C harlene not only acknowledged using marijuana during her pregnancy but also told him she knew that using marijuana during her pregnancy could have an effect on her baby. Richard Boyer, Charlene’s counselor, testified at trial that he had diagnosed
Charlene with polysubstance abuse and personality disorder not otherwise specified. He testified that Charlene is still in a state of denial about some of her problems, such as whether she has an anger control problem, whether she i s taking control of her finance s, whether she is able to recall and apply what she has learned in parenting classes, and whether overall she has any problems with her children. Boyer further stated that Charlene has not made enough significant progress to warrant return of S.K.A. to he r

care. The evidence on these factors thus weighs in favor of the finding that termination of Charlene’s parental rights was in the child’s best interest.In the Interest of S.K.A., a Child Page 7

Parental A bilities and A vailable Programs : The record contains conflicting evidence regarding these two factors. Charlene testified at trial that she had been attending NA, parenting classes, anger management classes, and counseling sessions. CPS had
determin ed that Charlene’s eleven

- year - old daughter and twelve

- year - old son should
remain in her home. The children were doing very well in school and participated in

extra

- curricular activities. When the son had some behavior al problems, he saw a
counselor and then had no further problems. On the other hand, Charlene has had prior CPS cases beginning in 2002, with additional cases in 2003, 2004, 2006, and 2007, and custody of her third

- eldest child has been given to his father. Deborah January, the ongoing CPS caseworker for S.K.A., testified that although Charlene took parenting classes, there was a no tation in one of the classes that she did not take the class seriously. January further testified that Charlene had not been able to verbalize what she had learned in the parenting classes. When January asked Charlene to discuss what she had learned in t he classes, January was met with animosity or some comment about it not being necessary. See Wilson v.
State , 116 S.W.3d 923, 930 (Tex. App.

— Dallas 2003, no pet.) (considering lack of motivation in improving poor parenting skills in best

- interest determin ation). Moreover, as stated above, Boyer , Charlene’s counselor, testified that she had not made enough significant progress to warrant return of S.K.A. to her care. Plans for C hild and S tability of Home : Charlene testified that she and Donald have
been i n a relationship for two years and are engaged to be married. Charlene’s older
children consider Donald their father. Donald works at Wal

- Mart and takes homeIn the Interest of S.K.A., a Child Page 8

about $1,500 per month, and Charlene had just started working at McDonald’s two
weeks before tri al. If S.K.A. returned to her parents , she would live with Donald, Charlene, and Charlene’s two oldest children in a two

- bedroom mobile home. Donald testified that S.K.A. would either sleep in the bedroom where Charlene and her daughter sle ep or in the l iving room where he sle eps . Charlene and Donald ha ve also been looking for a larger home.
Charlene does admit in her brief that she “does face a short incarceration which will cause some instability at least for that period of time.” Furthermore, Donald is not divorced from his current wife. January also testified that Charlene and Donald have not been compliant in the Service Plan’s requirement that they maintain stability in their
lives over time. She testified that there is a lot of financial instabi lity, and since she has been involved in the case, she has not seen any proof of Charlene working. Donald and Charlene do not own a home, and although they have been trying to buy a home throughout the duration of the case, they have not secured anything. As stated above,
Charlene has a history of prior CPS cases , and c ustody of her third

- eldest child has been given to his father. Donald also has some history with CPS. His other child lives with the child’s maternal grandparents. The evidence on these factors thus weighs in favor of the finding that termination of Charlene’s parental rights was in the child’s best
interest. Charlene’s Acts or O missions and A ny E xcuse s for Those A cts or O missions : Charlene
admits in her brief that her acts or omissions weigh in favor of termination. She has a criminal history. In addition, a total of four motions have been filed to revoke herIn the Interest of S.K.A., a Child Page 9

probation. She has not made any child support payments for S.K.A., and January testified that she was not in compliance with th e CPS Service Plan. Charlene admitted to a history of drug use and to using marijuana during her pregnancy with S.K.A. She testified that some doctors state that using marijuana is not harmful to an unborn child and that she otherwise never used drugs ar ound her children. Statutory Factors : Of the thirteen factors, evidence on three factors weighs in favor of the finding that termination was in the child’s best interest: subsection (6)

— the results of Donald’s and Charlene’s psychological evaluations; su bsection (8)

— the history of substance abuse by both Donald and Charlene; and subsection (11)

— the willingness and ability of Donald and Charlene to effect positive environmental and personal changes within a reasonable period of time. The evidence on the r emaining statutory factors is either neutral or inapplicable. Summary : Considering all the evidence in relation to the best interest factors in the light most favorable to the trial court’s finding, a reasonable trier of fact could have
formed a firm beli ef or conviction that termination of Charlene’s parental rights was in the child’s best interest. And viewing all the evidence in a neutral light, we conclude that both the disputed and undisputed evidence favoring and disfavoring the finding permits a re asonable factfinder to form a firm conviction and belief that termination of Charlene’s parental rights was in S.K.A.’s best interest. The evidence on termination of Charlene’s parental rights being in S.K.A.’s best interest is legally and factually
suffi cient. We overrule Issue A.1.In the Interest of S.K.A., a Child Page 10

Donald Desires of the Child : S.K.A.’s desires are unknown because of her age

. The Child’s Emotional and P hysical N eeds and the E motional and P hysical D anger to
the C hild : As did Charlene, Donald points out in his brief t hat there is no evidence that S.K.A. will have any special physical or emotional needs beyond that of a normal child

. Charlene’s mother also testified that Donald ha s bonded with S.K.A., such that S.K.A.
misse s him when he i s not there. But again, other evidence on these two factors weighs heavily in favor of the finding that termination of Donald’s parental rights was in the
child’s best interest. Although he claimed he had not used methamphetamine in over a year, Donald admitted to a past history of met hamphetamine use, which caused CPS to become involved with his family. See May , 829 S.W.2d at 377. He reported to Dr. Cheatam, the clinical psychologist who performed his psychological evaluation, that he voluntarily signed over the custody rights to his then five

- year - old son to the maternal grandparents in order to facilitate an end to CPS involvement. Donald also acknowledged that he has a history of cocaine and marijuana use, including as recently as a couple of months before Dr. Cheatam’s evaluation

. Jock testified that on the day S.K.A. was removed, Donald took a hair follicle test and tested positive for a relatively high level of cocaine. Donald also acknowledged that he was aware that Charlene used drugs during her pregnancy with S.K.A

. Boyer , Donald’s counselor, testified that he diagnos ed Donald with polysubstance abuse disorder. When Boyer was asked whether Donald would be aIn the Interest of S.K.A., a Child Page 11

danger to S.K.A., he replied that his immediate concern would be “lack of progress in
the services that he was Court o rdered to participate in” and “lack of progress in counseling.” Boyer further explained, “It’s an indication of him not following through with what he’s been asked to do to show that he is a responsible parent.” Boyer also expressed concern with Donald’s passivity. Boyer explained that Donald does not deny his problems, but instead, dismisses them. He does not admit to the things he needs to work on regarding this case. The evidence on these factors thus weighs in favor of the finding that termination of Donald’s parental rights was in the child’s best interest.
Parental Abilities and Available Programs : The record contains conflicting evidence regarding these two factors. At the time of trial, Donald was attending NA, parenting classes, anger

- managem ent classes, and counseling sessions. CPS had determined that
Charlene’s eleven

- year - old daughter and twelve

- year - old son should remain in the
home that he shared with Charlene. Charlene testified that the children consider
Donald their father. The chil dren were doing very well in school and participated in

extra

- curricular activities. When Charlene’s eldest son had some behavioral problems, he saw a counselor and then had no further problems. On the other hand, January testified that when Charlene had previously been incarcerated, Donald “had some issues with taking care of the children.” She stated that the grandmother actually did a lot of the caretaking. January further testified that
Donald had not been able to verbalize what he had learned in the parenting classes. When January asked Donald to discuss what he had learned in the classes, she was met with animosity or some comment about it not being necessary. See Wilson , 116 S.W.3dIn the Interest of S.K.A., a Child Page 12

at 930. Moreover, when Boyer was asked whether he felt Donald an d Charlene were prepared to have S.K.A. back in their home and whether they would be able to parent her appropriately, he replied that he had seen no “evidence of progress and them advancing from the point where the child was removed.” Plans for Child and Stability of Home : Because Donald and Charlene share a home and have both expressed the same plans for S.K.A., we refer to our prior analysis for
Charlene as to these factors

. The evidence on these factors weighs in favor of the finding that termination of Donald’s parental rights was in the child’s best interest.
Donald’s Acts or Omissions and Any Excuses for Those Acts or Omissions : Donald states in his brief that his acts or omissions are limited to his drug use and that this factor does weigh in favo r of termination. Donald admitted to a history of drug use from stress and bad choices. Because of his methamphetamine use, CPS became involved, and he voluntarily signed over the custody rights to his son to the maternal grandparents. January also test ified that Donald was not in compliance with the CPS
Service Plan. Statutory Factors : Again, because Donald and Charlene share a home, we refer to our prior analysis for Charlene as to these factors. Summary : Considering all the evidence in relation to t he best interest factors in the light most favorable to the trial court’s finding, a reasonable trier of fact could have formed a firm belief or conviction that termination of Donald’s parental rights was in the child’s best interest. And viewing all the evidence in a neutral light, we conclude that both the disputed and undisputed evidence favoring and disfavoring the findingIn the Interest of S.K.A., a Child Page 13

permits a reasonable factfinder to form a firm conviction and belief that termination of Donald’s parental rights was in S.K.A.’s b est interest. The evidence on termination of Donald’s parental rights being in S.K.A.’s best interest is legally and factually sufficient.
We overrule Issue B.1. Predicate Grounds for Termination
The trial court made affirmative findings on the followin g predicate grounds for
termination for both Donald and Charlene: knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well

- being of the child; engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well

- being of the child; failed to support the child in accordance with the mother’s ability during a period of one year ending within six months of the date o f the filing of the petition; and failed to comply with the provisions of a court order that specifically established the actions necessary for the parents to obtain the return of the child who has been in the permanent or temporary managing conservators hip of the Department of Family and Protective Services (TDFPS) for not less than nine months as a result of the child’s removal from the parent under Chapter 2 6 2 for the abuse or neglect of the child.
See T EX
. F AM
. C ODE A NN
. § 161.001(1) (D)

- (F), (O) . T he court also made an affirmative finding on the following additional predicate ground for termination for Charlene: used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the chi ld, and (1) failed to complete a court

ordered substance abuse treatment program; or (2) after completion of a court

- ordered substance abuse treatment program , continued to abuse a controlled substance. See id. §In the Interest of S.K.A., a Child Page 14

161.001(1)(P). Donald and Charlene challe nge the legal and factual sufficiency of all of these findings, but proof of only one predicate act 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. I n re A.V. , 113 S.W.3d 355, 362 (Tex. 2003).
Charlene Section 161.001(1)(E) of the Family Code states that the court may order termination of the parent

- child relationship if the court finds by clear and convincing evidence that the parent has engaged in c onduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well

- being
of the child. T EX
. F AM
. C ODE A NN
. § 161.001(1)(E). “Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). However, it is not necessary that the child actually suffer injury. Id. Termination under subsection E must be based on more than a single act or omission; a voluntary, deliberate, and conscious “c ourse of conduct” by the parent is required. In re D.M. , 58 S.W.3d 801, 812 (Tex. App.

— Fort Worth 2001, no pet.). I t is inconsequential that the parental conduct considered in a termination proceeding occurred before the child’s birth. Rather, courts lo ok to what the parent did both before and after the child’s birth to determine whether termination is necessary. Id. ; Avery v.
State , 963 S.W.2d 550, 553 (Tex. App.

— Houston [1st Dist.] 1997, no writ). A mother’s use of drugs during her pregnancy is conduc t that endangers the physical and emotional well

- being of the child. In re W.A.B. , 979 S.W.2d 804, 806 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied), disapproved of on other grounds by J.F.C. , 96In the Interest of S.K.A., a Child Page 15

S.W.3d at 267 n.39; see Dupree v. Tex. Dep’t of Prot

. & Reg

. Servs. , 907 S.W.2d 81, 84 (Tex. App.

— Dallas 1995, no writ). Jock testified that she went to the hospital just after S.K.A. was born because Charlene had tested positive for cocaine at the time of S.K.A.’s birth.
She further testified that when S.K .A. was removed fo u r days later, Charlene and
Donald took a hair follicle test and both tested positive for a rel atively high level of
cocaine.
Charlene argues that she denied using cocaine while pregnant and that the test
was not entered into evidence and has not been proven by scientific testimony. But even if we disregard the testimony abou t her testing positive for cocaine , Charlene
admitted that she has a history of illegal drug use and that she “occasionally” us ed marijuana during her pregnancy with S.K.A. Although she tried to explain this drug use at trial by testifying that some doctors state that using marijuana is not harmful to an unborn child, she admitted to her counselor that she knew using marijuana during her pregnancy w ou ld have an effect on her baby but that she felt the use was infrequent enough that it would not permanently hurt the child. Furthermore, a s part of the Service Plan provided to her by CPS, Charlene was required to participate in NA or AA, but at the time of trial, she tes tified that she had only begun participating in NA during the prior two weeks. Using the appropriate standards o f review for legal and factual sufficiency, we conclude that the evidence is such that a factfinder could reasonably form a firm belief
or convi ction that Charlene engaged in conduct or knowingly placed S.K.A. with persons who engaged in conduct that endangered her physical and emotional well

-In the Interest of S.K.A., a Child Page 16

being. The evidence is thus legally and factually sufficient to support the trial court’s finding on that predicate ground for termination as to Charlene . We overrule Issue A.3. Moreover, because we have found the evidence legally and factually sufficient to support the finding that Charlene engaged in conduct or knowingly placed S.K.A. with persons who eng aged in conduct that endangered her physical and emotional well

being, we need not address the sufficiency of the evidence to support the other predicate grounds as to Charlene (Issues A.2, A.4, A.5 and A.6). See A.V. , 113 S.W.3d at
362.
Donald
Section 1 61.001(1)(D) of the Family Code states that the court may order termination of the parent

- child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well

being of the child

. T EX
. F AM
. C ODE A NN
. § 161.001(1)( D ). Once again, “endanger” means to expose to loss or injury or to jeopardize, but it is not necessary that the child actually suffer injury. Boyd , 727 S.W.2d at 533. Donald admitted to Dr. Cheatam that he knew Charlene was using drugs while she was pregnant with S.K.A. Although he told Dr. Cheatam he thought her drug use during the pregnancy was “stupid,” there is no evidence that he did any thing to stop it. Rather, he admitted that he was also using marijuana and cocaine during that time
frame. Jock testified that on the day S.K.A. was removed, Donald took a hair follicle test and tested positive for a relativel y high level of cocaine.In the Interest of S.K.A., a Child Page 17

Th e relevant conduct includes not only the parents’ conduct as evidenced by the parents’ acts, but also the parents’ omissions or failures to act. In re M.J.M.L. , 31 S.W.3d 347, 351 (Tex. App.

— San Antonio 2000, pet. denied); Edwards v. Tex. Dep’t of Prot

. & Reg

. Servs. , 946 S.W.2d 130, 138 (Tex. App.

— El Paso 1997, no writ), disapproved of on other grounds by J.F.C. , 96 S.W.3d at 267 n.39. Furthermore, as stated above, courts look to what the parent did both before and after the child’s birth to determine wh ether termination is necessary. In re D.M. , 58 S.W.3d at 812; Avery , 963 S.W.2d at 553. Donald’s failure to take any action to protect S.K.A. from Charlene’s drug abuse is sufficient to establish that he knowingly allowed the child to remain in conditions or surroundings that endangered her physical well

- being. See Edwards , 946 S.W.2d at 138. The evidence is thus legally and factually sufficient to support the trial court’s finding on that predicate ground for termination as to Donald. We overrule Issue B.2. Moreover, because we have found the evidence legally and factually sufficient to support the finding that Donald knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well

be ing of the child, we need not address the sufficiency of the evidence to support the other predicate grounds as to Donald (Issues B.3, B.4, and B.5). See A.V. , 113 S.W.3d at
362. TDFPS as Permanent Managing Conservator Donald and Charlene argue that the trial court erred in appointing TDFPS as S.K.A.’s permanent managing conservator because the appointment of a parent would not significantly impair S.K.A.’s physical or emotional health. However, we concludedIn the Interest of S.K.A., a Child Page 18

above that the evidence is legally and factua lly sufficient to support the trial court’s findings as to at least one predicate violation for each parent and that termination was
in the best interest of the child. Thus, the trial court properly terminated Donald and Charlene’s parental rights to S.K. A. See T EX
. F AM
. C ODE A NN
. § 161.001; Swate , 72 S.W.3d at 766. Section 161.207 of the Family Code states, “If the court terminates the parent

- child relationship with respect to both parents . . . , the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a
licensed child

- placing agency, or an authorized agency as managing conservator of the
child.” T EX
. F AM
. C ODE A NN
. § 161.207 (Vernon 2009). Thus, t he trial court did not err
in appoint ing TDFPS as perma nent managing conservator of the child . We overrule
Issue D.1.
Ineffective Assistance of Counsel In Issue C.1, Donald and Charlene contend that they received ineffective
assistance of counsel. In analyzing the effectiveness of counsel in a parental

- right s termination case, we follow a two

- pronged standard set forth by the United States Supreme Court in Strickland v. Washington to determine whether an attorney’s representation was so inadequate to violate the right to effective assistance of counsel.
In r e M.S., 115 S.W.3d 534, 54 5 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show ineffective assistance of counsel in a termination case, the appellant must show (1) that counsel’s assistance fell bel ow an objective standard of reasonableness and (2) that counsel’s deficient assistance, if any, prejudiced the parent. Id . (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064).In the Interest of S.K.A., a Child Page 19

Strickland ’s “record” requirement also applies to ineffective

- assistance c laims in
termination cases: “ An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” In re S.R.C., No. 2

- 02

- 426

- CV, 2003 WL 22966325 at *2 (Tex. App.

— Fort W orth Dec. 18, 2003, no pet.) (mem. op.) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). In a parental

- rights termination case where the parent asserts on appeal the ineffective assistance of trial counsel, but nothing in the record i ndicates trial counsel’s reasons or strategies for the complained

- of conduct, the lack of a record is practically always fatal to the parent’s appellate issue under current Texas law. Because this inequity existed in this appeal, and because Donald and Ch arlene ha ve no other recourse to address this issue, we abated and remanded the cause to the trial co urt for a hearing at which Donald and Charlene could develop an evidentiary record in
connection with their ineffective assistance of counsel claim. See I n re T.N.F. , 191 S.W.3d 329, 332 (Tex. App.

— Waco 2006, order) (per curiam); In re K.K. , 180 S.W.3d 681, 687

- 88 (Tex. App.

— Waco 2005, order) (per curiam)

. We also provided them time to file a supplemental brief addressing their ineffective assistance of co unsel claim in light of the evidentiary hearing. We received a supplemental reporter’s record but have not received supplemental briefs. Thus, w e will address the merits of Donald and
Charlene ’s ineffective

- assistance claims as presented in their origina l briefing.
Donald and Charlene both assert that their trial counsel was ineffective because he: (1) failed to file a motion for continuance; (2) failed to investigate the case; (3) failed to call witnesses to rebut petitioner’s claims; and (4) failed to undertake discovery. ButIn the Interest of S.K.A., a Child Page 20

Donald and Charlene have not demonstrated that counsel’s alleged errors had an effect on the outcome of the proceeding such that its result would have been different. The second prong of Strickland requires a showing that counsel’ s errors were so serious that they deprived the defendant of a fair trial, i.e. , a trial with a reliable result.
Strickland , 466 U.S. at 687 , 104 S.Ct. at 2064 . In other words, appellant must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694 , 104 S.Ct. at 2068 . A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Id. at 697 , 104 S.Ct. at 2070

. Donald and Charlene only address the second prong of Strickland in relation to their argument that trial counsel failed to request a contin uance. They argue that if the trial date had been continued, they would have had additional time to complete the Service Plan, and , considering the progress that they had already made, the fact that they were not given additional time clearly prejudiced t heir case. But Boyer testified that he had not seen any evidence of progress by either parent from the time when
S.K.A. was removed. He testified that Charlene was still in a state of denial about many of her problems and that she had not made enough sig nificant progress to warrant
return of S.K.A. to her care. Likewise, w hen Boyer was asked whether Donald would be a danger to S.K.A., he replied that his immediate concern would be “lack of progress in the services that he was Court ordered to participate in” and “lack of progress in counseling.” Boyer also expressed concern with Donald’s passivity , meaning heIn the Interest of S.K.A., a Child Page 21

dismisses his problems and will not admit to the things he needs to work on regarding
this case

. For these reasons, we conclude that Donald and Cha rlene failed to demonstrate prejudice and cannot establish ineffective assistance of counsel . W e overrule Issue C.1.
Conclusion
We affirm the trial court’s termination order.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna , and Justice Davis (Chief Justice Gray concurs in the judgment of the Court only and only to the extent that it affirms the trial court’s order terminating the parental rights of Donald and Charlene as to S.K.A.) Affirmed Opinion delivered and filed August 19, 2009 [C V06]