1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O . 09
- 19
- 00110
- CV

__________________ IN THE INTEREST OF J.K. AND S.K.

__________________________________________________________________ On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18
- 03
- 03595
- CV

__________________________________________________________________ MEMORANDUM OPINION
This appeal arises from the trial court’s ruling in a parental

- rights termination

case terminat ing “Father’s” rights to raise his twin daughters, “Cassie” and “Katie.” 1
While Father raises three issues in his appeal , his primary complaint is that the re i s not enough evidence in the record to support the trial court ’s decision terminat ing his parental rights. W e affirm

.

1 To protect the identity of the children who are the subject of the suit, we use pseudonyms for the names of all family members whose rights are at issue

.2 Background Father raises three issues in his appeal from the trial court’s final order

. 2 First,
Father a rgues that the record from his trial does not contain enough evidence to support the trial court’s finding on the Department’s pretrial motion seeking a finding that aggravated circumstances existed in his case, which allowed the trial court to relieve the Depar tment of certain obligations it would have otherwise had to him and to accelerate the trial

. 3 Second, Father contends he was denied his right s under the Family Code to effective assistance of counsel. 4 T hird, Father contends the evidence fails to support t he findings the trial court relied on to terminate his parental rights

.

2 The trial court also terminated Mother’s rights to the twins. Mother did not appeal from the judgme nt terminating her rights.

3 See Tex. Fam. Code Ann. § 262.2015(a), (b)(3)(G) (West 2019) (allowing a trial court to find aggravated circum s tances exist when a parent has been convicted of any one of several crimes, which includes committing an aggravated sexual assault involving a child).

4 See id . § 107.013 (West 2019) (requiring the court to appoint counsel to represent indigent parents if they respond and oppose the Department’s suit seeking to terminate their parental rights); In re B.G. , 317 S.W.3d 250, 253

- 54 (Tex. 2010) (explaining that section 107.013 “embodies the right to effective counsel”) (cleaned up).3 In March 2018, t he Department filed its original petition to terminate the parental rights of the unknown parents of the twins. For the first time, in its second amended petition filed in August 2018, t he Department identified Father and one other man as alleged father s of the twins. In September 2018, the trial court appointed a n attorney to represent the twins’ alleged fathers. In January 2019, DNA
test result s established the twins were Father ’s

. T he attorney t he trial court appointed to represent the two alleged fathers became Father’s court

- appointed attorney , and that attorney represented Father in the trial

. 5 Shortly after the Department obtained the result s of Father’s DNA test, the Department filed a motion requesting to accelerate th e trial . The Department’s motion asserts that aggravated circumstances exist authorizing the trial court to dispense with several requirements ot herwise required in cases filed by the Department to terminate a parent’s rights

. 6 In the motion, the Department asked the trial court to waive the Department’s obligations to (1) provide Father with a family service plan , (2) to make reasonable efforts to unite the twins with their Father , and (3) to accelerate the trial

. The Department based its motion on Father ’s obligation to

5 See Tex. Fam. Code Ann. § 107.0132(c) (West 2019).

6 See id . § 262.2015(a).4 register with a sex offender registry based on a conviction Father incurred for committing an aggravated sexual assault against a child. 7 About two weeks before trial, t he trial court held a hearing on the Department’s motion seeking an aggravated

- circumstances finding

. 8 N o transcript for that hearing is included in the appellate record Father arranged to have filed to support his appeal

. But t he docket sheet in the Clerk’s Record shows t he parties a nd their attorneys a ppeared for the hearing on the Department’s motion

. According to the docket sheet , the parties presented evidence , argued about the motion ’s merits, and the trial court granted the motion

. And the attorneys announced they were ready for the trial, which the trial court scheduled for late February 2017

. The written transcripts from the trial, which are in the Reporter’s Record, show that Father ’s trial counsel participated in all phases of the proceedings of the trial. Cassie and Katie were eleven

- months old at the time of the trial

. In opening
statement, t he Department argued that F ather’s parental rights should be terminated because , in 200 4 , t he State convicted him on a charge alleging that Father, in 2002,

7 See id . § 262.2015(a), (b)(8) (West 2019).

8 Id

.5 committ ed an aggravated sexual assault against a child

. 9 For convenience, we will refer to the Family Code sub section the Department relied on at trial to terminate Father’s parental rights as “S ection L. ” 10 Eight witnesses testified in the trial

. The evidence admitted in the trial includes a certified copy of Father’s 2004 conviction for the aggravated sexual

assau l t against a child , a crime that occurred in 2002 . The victim of the 2002 crime

was thirteen

- year s old when the offense occurred

. A copy of Father’s indictment for the crime is in the evidence admitted at trial

. The indictment alleges that Father penetrated the child’s sexual organ with his sexual organ. During the trial , the attorney the trial court appointed to represent the twins asked Father whether he caused a serious injury to the victim of the 2002 aggravated sexual assault

. Father responde d : “Yeah. I mean, I think at the time I was

- - I mean, if I was doing drugs, she was doing drugs.” Questions posed to Father in the trial reflect that he agreed that , given th at the victim of the sexual assault was thirteen

year old child, he characterize d the offense he committed in 2002 as a serious crime

.

9 See id

. § 161.001(b)(1) (L ) (viii), (b)(2) (West Supp. 2018)

.
10 Id

.6 Relying on Section L, together with a separate best

- interest finding, the trial
court terminated Father’s parent

- child relationship with the twins

. 11 Following the trial, t he trial court signed a fina l order terminating Father’s parental rights to the twins

. Aggravated

- Circumstances Finding s The Family Code authorizes trial courts to relieve the Department of certain obligations it otherwise has to provide parent s under the Family Code upon a finding of aggravated circumstances

. The obligation s the Department is relieved from include provid ing the parents of a child with a family service plan and mak ing
reasonable efforts to unit e the parents with the ir child. 12 Following a pretrial evide ntiary hearing, t he trial court found aggravated circumstances existed in Father’s case , which relieved the Department of the above obligations as to Father ’s

case and allowed the trial court to accelerate the trial

. In issue one, Father argues the Department failed to present enough evidence to establish that the Department was entitled to have a favorable finding on the aggravated

- circumstances issue it raised in Father’s case . According to Father, had

11 See id

.
12 See id . § 262.2015 (West 2019) (setting out eight criteria, with other subparts , that describe when aggravating cir c um s tances exist).7 the trial cour t not relieved the Department of its obligations, he would have benefitted from the Department ’s creating a family service plan designed to unite him with the twins

. But Father failed to provide this Court with a written transcript of the evidentiary hearing the trial court conducted on the Department ’s motion , which
resulted in the aggravated

- circumstances finding Father challenges in his first issue

. From the docket sheet, we can tell the trial court heard evidence when deciding the
D epartment’s motion

. And in his testimony at trial, Father mentioned testifying in the hearing.
The Rules of Appellate Procedure place a duty on appellant s such as Father
to provide the appellate court with a complete appellate record so the reviewing co urt
may evaluate the validity of the complaints the appellants seek to raise in their appeals

. 13 Generally, the appellate record consists of the C lerk’s R ecord and, if

13 See Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990) (explaining that when the appellant has not complied with the rules of appellate procedure or filed a complet e statement of facts, “the reviewing court is unable to ascertain whether a particular ru l ing by the trial court is harmful in the context of the entire case ” ); In re S.M.

- C. , No. 2

- 07

- 039

- CV, 2008 Tex. App. L EXIS 216, at * 6 ( Tex. App.

— Fort Worth, Jan

. 10, 2008, no pet.) (explaining that the appellate court had to presume that the missing portions of the Reporter’s Record supported the trial court’s ruling given the father’s failure to create a proper appellate record).8 necessary to the appeal, the R eporter’s R ecord. 14 The a ppellant is responsible for asking the official reporter for the proceedings he wants the reporter to transcribe as part of the appellate record , and that duty applies to all proceedings relevant to the issues the appellant raise s in h is appeal

. 15 The appellant’s reque st to the official reporter must be in writing and must identify the exhibits and portions of the proceedings the R eporter’s R ecord is to include

. 16 The Rules of Appellate Procedure require that the appellant file a copy of the written request with the District Clerk, 17 but no such request is in the appellate record before us here. Because the appellate record does not include a document showing whether
Father sent a written request to the officia l reporter, we asked our Clerk to contact the trial court’s clerk to determine if the record in that court include s the written request

. O ur Clerk learned that no such document was ever filed. Thus, w e must

14 Tex. R. App. P. 34.1

.
15 See Tex. R. App. P. 34.6(b)(1) ( requiring the appellant to file the written request he sends to the official reporter to prepare the Repor ter’s Record for the appeal); Tex. R. App. P. 35.3(b) (2) (requiring the official reporter to prepare, certify, and file the R eporter ’ s R ecord if the appellant sen t a written request asking for the record).

16 Id

. 34.6(b)(1).

17 See id. 34.6(b)( 2 )

.9 presume the missing portions of the R eporter’s R e cord supports the trial court ’s aggravated

- circumstances finding

. 18
Termination Findings
A. Standard of Review For convenience, we address Father’s third issue before addressing the arguments he raises in issue two. In issue three, Father argues the evidence is legally and factually insufficient to support the trial court’s findings that resulted in the terminat i on of his parental rights. According to Father, Section L of the Family Code required the Department to prove two things, (1) that Father had once been convict ed
for sexual ly assault ing a child and (2) that the assault resulted in a serious injury or death to the child

. 19 While Father concedes the re is sufficient evidence in the record to show that he had a prior conviction for sexually assaulting a child, he suggest s the Department failed to establish the assault caused any serious injury to the child

. To terminate Father’s rights to the twins, the Department had the burden to present legall y and factually sufficient evidence to prove (1) that Father’s rights should be terminated under Section L and (2) to prove that terminating his rights to

18 Christiansen, 782 S.W.2d at 843; In re S.M.

- C. , 2 008 Tex. App. LEXIS 216 , at *6.

19 See Tex. Fam. Code. Ann. § 161.001(b)(1)(L)(viii).10 the twins is in their best interest. 20 When conducting a legal sufficiency review, we examine the evidence in the light most favorable to the trial court’s finding to determine whether “ a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. ” 21 We assume that the factfinder resolved disputed facts in a man ner that favor s its finding if a reasonable factfinder could have
done so , and we disregard all evidence a reasonable factfinder could have disbelieved or found incredible. If no reasonable factfinder could form a firm belief or conviction that the matter the party with the burden of proof was required to prove is true, the evidence is legally insufficient. 22
In a factual sufficiency review, we must determine whether the evidence allowed the factfinder , acting reasonably, to form a firm belief or conviction about the truth of the allegations made by the party that had the burden of proof in the trial

. We evaluate whether , from the evidence , the factfinder could have reasonably found the evidence clear and convincing on the matter to be proven

. And w e consider

20 See id . § 161.001 (b)(1)(L)(viii), (b)(2) (West Supp. 2018) ; see also In re J.L. , 163 S.W.3d at 84.

21 In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002).

22 Id

.11 whether the disputed evidence is such that a reasonable factfinder could not have ignored it in deciding to terminate the parent’s rights

. If, given the entire record, the evidence contrary to the ruling the factfinder made is so significant th at no reasonable factfinder could have resolved the dispute by terminating the parent’s rights , the evidence is factually insufficient. 23
The decision to terminate a parent’s rights must be supported by clear and convincing evidence, which is “ 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. ” 24
B . Analysis

— t he S ection L F inding When accompanied by a best

- interest finding, S ection L authorizes trial courts
to terminate a parent’s relationship with a child when the parent is shown to have a conviction for aggravated sexual assault against a child and the parent’s conduct caused the child’s death or serious injury

. 25 Under the Penal Code , an aggravated

23 Id

.
24 Tex. Fam. Code Ann. § 101.007 (West 2019); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005).

25 See Tex. Fam. Code Ann. § 161.001(b)(1) (L ) (viii).12 sexual assault occur s if the defendant intentionally or knowing ly penetrat e s t he sexual organ of a child younger than fourteen by any means . 26
S ect ion L requires the State to prove a serious injury resulted from the parent’s conduct

. 27 But the Family Code does not define the term serious injury

. Absent a definition for the term provided by the Legislature , we give the phrase its ordinary meaning. 28 To do so, we look to definitions used in dictionaries since they contain relevant information about the rules of grammar and the common meaning s used fo r words

. 29

26 Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)( B) (West 2019).

27 Tex. Fam. Code Ann. § 161.001(b)(1)(L) (allowing a court to terminate a parent’s rights based on a finding the parent was criminally responsible for the death or serious injury of a child).

28 See Tex. Gov ’ t Code Ann. § 312.002 (West 2013 )

.
29 See id . § 311.011(a) (West 2013) (providing that words and phrases used in statutes, unless defined by the Legislature, “shall be read in context and construed according to the rules of grammar and common usage”); Powell v. Stover , 165 S.W.3d 322, 326 (Tex. 2005) (relying on Webster’s Third New International Dictionary to construe a word used in the Family Code); Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc. , 145 S.W.3d 170, 196 (Tex. 2004) (applyi ng the plain

- meaning rule, a well

- established rule of statutory construction in Texas, by looking to dictionaries defining a term the Legislature used in the Texas Administrative Procedure Act).13 Webster’s Third New International Dictionary defines the term s erious as causing “ considerable distress, anxiety, or inconvenience: attended with danger[.]” 30 The New Oxford American Dictionary defines serious as “significant or worrying because of possible danger or risk; not slight or negligible [

. ] ” 31 Webster’s define s injury as “ an unjust or undeserved infliction of suffering or harm[,] ” 32 while Oxford’s American Dictionary defines injure to include “harm[ing] or impairing (something)[.]” 33 Th us, evidence allowing the factfinder to infer that a child suffered a serious emotional or psychological injury as opposed to having suffered a bodily injury is all that is needed to prove a serious injury resulted from an aggravated
assault under Section L. Here, the evidence in the record shows that Father sexually assaulted a thirteen

- year - old child by means of penetrating her sexual organ with his

. Father was 22 years old when the 2002 offense occurred

. Father testified the crime he committed in 2002 was serious and impacted the victim’s life in a “significant” way

. While Father suggests the only evidence relevant to the question of whether a serious injury

30 W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 2073 (2002)

.
31 N EW O XFORD A MERICAN D ICTIONARY 1594

- 95 (3d ed. 2010)

.
32 W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1164.

33 N EW O XFORD A MERICAN D ICTIONARY 894.14 occurred is the judgment convicting him of aggravated sexual assault, we disagree given Father’s testimony in this record and the information in Father’s indictm ent, both of which constitute evidence the trial court could reasonably consider in deciding whether Father’s conduct resulted in a serious injury to the child.
We conclude legally and factually sufficient evidence supports the trial court’s finding that a serious injury resulted to the child based on Father’s conduct.
B . Analysis

— Best

- Interest Finding In conjunction with Father’s challenge to the Section L finding, he als o argues that insufficient evidence supports the trial court’s best

- interest finding. In review ing
best

- interest finding s , we consider a non

- exhaustive list of factors in our review , includ ing (1) the desires of the child ren, (2) the emotional and physical needs of the child ren now and in the future , (3) the emotional and physical danger to the child ren now and in the future , (4) the parenting abilities of the parent seeking custody , (5) programs available to assist the parent to promote the best interest o f the child ren, (6) plans for the child ren by the parent seeking custody and the agency seeking custody , (7) the stability of the home or the placement the parent seeking custody proposes for the children, (8) any acts or omissions of the parent showing the existing parent

- child relationship is improper , and (9) any excuse s the parent s offer to explain15 their acts or omissions

. 34 No ne of these factor s is c ontrolling and evidence on only one factor may provide enough evidence to allow an appellate court to affirm a
factfinder’s best

- interest finding

. 35 “A best

- interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence.” 36 When the trial occurred, the twins were too young to express their desires. In cases involving children who can’t express their own desires , “ the factfinder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent ” when evaluating what is in each child’s
best interest

. 37 Here, t he evidence shows that two months before the February 2017 trial, the Department placed the twins with their current foster parents , Mother’s step

- brother and his wife

. The twins ’ foster parents testified in the trial. According to the twins’

34 Holley v. Adams , 544 S.W.2d 367, 371

- 72 (Tex. 1976); Tex. Fam. Code Ann. § 263.307(b) (West 2019)

.
35 See In re A.P ., 184 S.W.3d 410, 414 (Tex. App.

— Dallas 2006, no pet.).

36 See In re E.D. , 419 S.W.3d 615, 620 (Tex. App.

— San Antonio 2013, pet. denied) (citing In re D.S. , 333 S.W.3d 379, 384 (Tex. App.

— Amarillo 2011, no pet.).

37 In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied).16 foster mother , s he and her husband have bonded with the twins . She stated the twins treat them like parents

. The foster parents’ testimony shows the twins are in a loving
home and are thriving there

. The foster parents testified they can provide for the twins and do not need any additional assistance. Two court

- appointed special advocate s for the twins testified in the trial. Both testified that terminating Father’s parental rights to the twins would serve the twins’ best interest because terminating their pare nts’ rights would allow them to be adopted

. When he testified, Father suggested an alternative to the Department’s plan to have the twins adopted by their foster parents . According to Father, he thought it
best if the court would allow the twins to continu e living with the foster parents

. Nonetheless, he suggested the twins would be better off by not terminating his rights and giving him supervised visitation while requiring him to provide the twins with financial support

. Under Father’s plan, Father wanted the court to allow him to begin to bond with the twins beginning with supervised visitation with the expectation that he could return to court and seek expanded rights as their relationship grew

. But the
trial court could reasonably disagree that Father’s plan was better for the twins , as17 the court had the right to prioritize the twins’ need for a permanent placement over his desire to maintain a supervised relationship with them. 38 The evidence before the trial court also shows that Father not only had a criminal history involving sexually abusing a child, but he also has a history of using drugs. His testimony allowed the trial court to infer that he is highly tolerant toward
those who use illegal drugs. He has both used and sold illicit drugs in the past

. While Father denied us ing drugs in the three

- month period preceding the trial, the trial court was not required to believe him. 39 Instead, the trial court could have believed Father presented a significant risk that , at some point in the twins’ lives , he would expose them to the illegal drugs

. Courts consider a parent ’s capacity to provide a child with a safe and stable home when engaging in a best

- interest analysis

. 40 During trial, Father agreed that h is
home is not an appropriate place to bring the twins

. And t he e vidence about Father’s

38 See Tex. Fam. Code Ann. § 263.307(a) (West 2019) (providing “the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest)

.
39 S ee City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005) (explaining that factfinders, as the sole judge of the credibility of the witnesses, “may choose to believe one witness and disbelieve others”)

.
40 See In re J.D. , 436 S.W.3d 105, 119 (Tex. App.

— Houston [14th Dist.] 2014 , no pet. )

.18 past living arrangements show s he never provided another person with a stable home

over a prolonged period

. The trial court could hav e reasonably believed that Father’s pattern would continue , interfering with the need the twins have for a prompt and permanent placement in a safe and stable home

. 41
W e conclude the record contains enough evidence to support the findings the trial court relied on to terminate Father’s rights

. 42 We overrule Father’s arguments claiming that the record contains legally and factually insufficient evidence to support the trial court’s rulin g . Ineffective Assistance of Counsel In issue two, Father argues he received ineffective assistance of counsel , prejudic ing his case. When the Department seeks to terminate a parent ’s rights to a child and the parent is indigent, the Family Code requires the trial court to appoint

41 Id . (cleaned up).

42 See In re J.F.C

. , 96 S.W.3d at 266 (explaining that the appellate court’s analysis should determine whether the factfinder, under a clear and convincing standard of proof, could have formed a firm belief or conviction about the Department’s claims).19 counsel to represent the parent

. 43 T h is includes a right to constitutionally

- effective counsel. 44 In assessing whether counsel was ineffective, we apply the same standard s appl ied to claims that aris e in the trial of criminal cases where attorneys are appointed to represent indigent defendant s . 45 The burden of proof on a claim of ineffective assistance lies with the party claiming his court

- appoint counsel rendered ineffective assistance

. 46 To prevail on th is claim s , the parent must establish the record shows that (1) court

- appointed counsel ’ s performance was deficient and (2) the deficient performance prejudiced the defense. 47 In reviewing a claim of ineffective assistance, we consider the circumstances surrounding the case and focus on whether counsel performed in a reasonably effective manner. 48 T he appellate court’s review of counsel ’ s performance at trial is

43 See Tex. Fam. Code An n. § 107.013( a); In re B.G. , 317 S.W.3d 250, 253 (Tex. 2010).

44 Id

.
45 In re M.S. , 115 S.W.3d 534, 544

- 45 (Tex. 2003).

46 Id

. at 545.

47 See Strickland v. Washington , 466 U.S. 668, 687 (1984); In re J.P.B. , 180 S.W.3d 570, 574 (Tex. 2005).20 highly deferential and presume s counsel ’ s conduct fell within the range of reasonable professional assistance. 49 To establish that a parent received ineffective
assistance of counsel , the record needs to show that the conduct engaged in by trial counsel is the type of conduct that no competent attorney would have chosen to use given the resp onsibilities legal counsel owe their clients

. 50 Put another way, t he evidence showing that trial counsel was ineffective must be firmly established in the record

. 51 When the record is silent about why counsel engaged in the alleged acts or omissions that are the subject of the arguments in the appeal , the reviewing court must presume that valid reasons exist ed explain ing the
choices trial counsel faced when representing their client s . 52
The record before us does not support the complaints Father leve ls at trial counsel. For instance, Father complains the trial court failed to require his attorney to perform the duties required of court

- appointed attorneys

. 53 But the record does

48 M.S. , 115 S.W.3d at 545

.
49 Id. (cleaned up).

50 Id.

51 In re L.G.R. , 498 S.W.3d at 209 (cleaned up).

52 See i d

.21 not show that Father ’s court

- appointed attorney failed to comply with any d uties he owed Father

. For example, the Family Code requires court

- appoint ed attorneys to interview the witnesses and investigat e the facts of the case. 54 Nothing shows that trial counsel failed to perform those duties

. 55
Instead , t he record shows that trial counsel appeared at pretrial hearing s and
the trial on Father’s behalf

. During the trial , trial counsel offered reasonable explanations to explain why Father was late for trial , made various objections to the testimony being offe red by the other parties , cross - examined witnesses, made an opening statement , and made a closing argument

. In final argument, Father’s trial
counsel argued the evidence did not support the Department’s claims , and he suggested that the twins would be better served by Father’s plan over the plan proposed by the Department

. So the record before us shows that trial counsel took

53 See Tex. Fam. Code Ann. § 107.013 1(a ) (West 2019).

54 See id. §§ 107.013(a) , 107.013 1(a)

.
55 See id. § 107.0131(a).22 an active role in the trial. Moreover, Father points to nothing in the record to show how the alleged actions or inactions of tri al counsel prejudiced his defense. 56
We conclude Father failed to meet his burden to establish that trial counsel performed deficient ly or prejudiced his rights under the standards in Strickland

. 57
Conclusion We hold Father ’s issues lack merit and affirm the trial court’s judgment terminating Father’s relationship with the twins

.

AFFIRMED.

_________________________ HOLLIS HORTON Justice Submitted on June 18, 2019 Opinion Delivered October 3, 2019
Before Kreger, Horton and Johnson , JJ.

56 A party claiming ineffective assistance of counsel must establish both deficient performance and resulting prejudice. See Strickland , 466 U.S. at 687

.
57 Id

.