NO. 12-18-00131-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF F.R.G.

AND N.A G., CHILDREN

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

C.G. appeals the termination of her parental rights. In six issues, she challenges the trial 

court’s termination order. We affirm.

BACKGROUND

F.G. and C.G. are the parents of F.R.G. and N.A.G. On April 26, 2017, the Department of 

Family and Protective Services (the Department) filed an original petition for protection of the 

children, for conservatorship, and for termination of F.G.’s and C.G.’s parental rights. The 

Department was appointed temporary managing conservator of the children, and the parents were 

allowed limited access to, and possession of, the children.

At the conclusion of a trial on the merits, the jury found, by clear and convincing evidence, 

that C.G. engaged in one or more of the acts or omissions necessary to support termination of her

parental rights under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1). 

The trial court also found that termination of the parent-child relationship between C.G. and the 

children was in the children’s best interest. Based on these findings, the trial court ordered that the 

parent-child relationship between C.G. and the children be terminated. This appeal followed.1

 

1 F.G.’s appeal of the termination of his parental rights has been delivered by this Court in a separate opinion.
2

TERMINATION OF PARENTAL RIGHTS

Involuntary termination of parental rights embodies fundamental constitutional rights. Vela 

v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53 S.W.3d 

684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ denied). 

Because a termination action “permanently sunders” the bonds between a parent and child, the 

proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In 

re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).

Section 161.001 of the family code permits a court to order termination of parental rights 

if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re J.M.T., 

39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any 

one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM.CODE ANN. 

§ 161.001(b)(1) (West Supp. 2018); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 

S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, 

termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West 

Supp. 2018); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and 

convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving 

the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d 

at 237.

The clear and convincing standard for termination of parental rights is both constitutionally 

and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear 

and convincing evidence means “the measure or degree of proof that will produce in the mind of 

the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” 

TEX. FAM CODE ANN. § 101.007 (West 2014). The burden of proof is upon the party seeking the 

deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.

STANDARD OF REVIEW

When confronted with both a legal and factual sufficiency challenge, an appellate court 

must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 

S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no 

pet.). In conducting a legal sufficiency review, we must 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 
3

belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We 

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

finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved 

or found incredible. Id.

The appropriate standard for reviewing a factual sufficiency challenge to the termination 

findings is whether the evidence is such that a fact finder could reasonably form a firm belief or 

conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 

In determining whether the fact finder has met this standard, an appellate court considers all the 

evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27–

29. Further, an appellate court should consider whether disputed evidence is such that a reasonable 

fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 

96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the 

weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.–

Houston [1st Dist.] 1997, pet. denied).

TERMINATION UNDER SECTION 161.001(B)(1)

In her third and fourth issues, C.G. argues the evidence is legally and factually insufficient 

to terminate her parental rights pursuant to Texas Family Code Section 161.001(b)(1)(D), (E), and 

(O).

Applicable Law

The court may order termination of the parent-child relationship if the court finds by clear 

and convincing evidence that the parent knowingly placed or knowingly allowed the child to 

remain in conditions or surroundings which endanger the physical or emotional well-being of the 

child. TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp. 2018). Subsection (D) addresses 

the child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.—

Texarkana 2003, no pet). The child’s “environment” refers to the suitability of the child’s living 

conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 

360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine 

whether there is clear and convincing evidence of endangerment is before the child was removed. 

Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, 
4

no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In 

re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). 

When seeking termination under subsection (D), the Department must show that the child’s 

living conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 

S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger 

to the child’s emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78. It is sufficient 

that the parent was aware of the potential for danger to the child in such environment and 

disregarded the risk. In re N.R., 101, S.W.3d at 776. In other words, conduct that demonstrates 

awareness of an endangering environment is sufficient to show endangerment. In re S.M.L., 171 

S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). We have previously concluded 

it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons 

who live in the home of a child, or with whom a child is compelled to associate on a regular basis 

in his home, is not inherently part of the “conditions and surroundings” of that place or home. In 

re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Subsection (D) is designed 

to protect a child from precisely such an environment. Id. 

The court may also order termination of the parent-child relationship if it finds by clear and 

convincing evidence that the parent has engaged in conduct, or knowingly placed the child with 

persons who engaged in conduct, that endangers the physical or emotional well-being of the 

child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2018). Scienter is not required for 

an appellant’s own acts under Section 161.001(b)(1)(E), although it is required when a parent 

places her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 

(Tex. App.—Houston [14th Dist.] 2003, pet. denied). Finally, the need for permanence is a 

paramount consideration for the child’s present and future physical and emotional needs. In re 

N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 

200.

Subsection (E) requires us to look at the parent’s conduct alone, including actions, 

omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, 

pet. denied); In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no 

pet.). Termination under subsection (E) must be based on more than a single act or omission. In 

re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. 

denied). A voluntary, deliberate, and conscious “course of conduct” by the parent 
5

that endangers the child’s physical and emotional well-being is required. In re D.M., 58 S.W.3d 

at 812; In re D.T., 34 S.W.3d at 634.

As a general rule, conduct that subjects a child to a life of uncertainty and 

instability endangers the physical and emotional well-being of a child. In re M.R.J.M., 280 

S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. 

App.—Fort Worth 2004, pet. denied). Endangering conduct is not limited to actions directed 

towards the child. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It 

necessarily follows that the endangering conduct may include the parent’s actions before the 

child’s birth and while the parent had custody of older children. See id. (stating that although 

“endanger” means more than a threat of metaphysical injury or the possible ill effects of a lessthan-ideal family environment, it is not necessary that the parent’s conduct be directed at the child 

or that the child actually suffers injury); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—

Fort Worth 2004, pet. denied) (holding that courts may look to parental conduct both before and 

after child’s birth to determine whether termination is appropriate). Further, the conduct may occur 

both before and after the child has been removed by the Department. Walker v. Tex. Dep’t of 

Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. 

denied).

“Endanger” means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533; In 

re D.M., 58 S.W.3d at 811. It is not necessary that the conduct be directed at the child or that the 

child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. Domestic 

violence may be considered evidence of endangerment. In re C.J.O., 325 S.W.3d 261, 265 (Tex. 

App.—Eastland 2010, pet. denied). Evidence of illegal drug use or alcohol abuse by a parent is 

often cited as conduct which will support an affirmative finding that the parent has engaged in a 

course of conduct which has the effect of endangering the child. See, e.g., In re C.R., 263 S.W.3d 

368, 371 (Tex. App.—Dallas 2008, no pet.); In re M.R., 243 S.W.3d 807, 818–19 (Tex. App.—

Fort Worth 2007, no pet.); Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 

98 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Analysis

The evidence at trial showed that C.G. and F.G. have a history with the Department. 

Investigator Michael Roberts testified that he received a report in April 2014 alleging that F.G. 

was arrested for driving while intoxicated with F.R.G. in the vehicle. F.G. admitted that he had 
6

been drinking prior to being stopped by police. Two weeks later, F.G. was arrested for a second 

driving while intoxicated offense. Roberts interviewed F.R.G., who was six years old at the time. 

F.R.G. reported that his parents would drink and drive with him in the vehicle and that there were 

times when C.G. was “too drunk to drive.” In July 2014, it was alleged that F.G. assaulted C.G. 

in F.R.G.’s presence. F.G. admitted that he and C.G. have “pretty rough” arguments around the

children and that there was fighting in the home. There were also allegations that C.G. used Xanax 

and methamphetamine, so Roberts requested she submit to a drug test. C.G. refused and then 

failed to report to the drug assessment Roberts scheduled. F.R.G. was subsequently placed with 

F.G.’s sister.2 C.G. submitted to a drug test the following day, which was returned as negative. 

The safety plan was lifted, the family was provided with Family Based Safety Services, and the 

case was closed.

In January 2017, C.G. was detained when a search warrant was executed on the home of 

Joshua Heard. Captain Regina Battley of the Cherokee County Sheriff’s Department testified that 

she had been to Heard’s residence on a previous narcotics warrant. On this occasion, Heard was 

not at his residence when the warrant was executed, but C.G. was present. She was detained but 

no charges were filed against her. Approximately two weeks later, a felony arrest warrant was 

issued for Heard. Deputy Alma Creel testified that Heard has a reputation as a drug user and 

dealer. On the day he was arrested, Heard asked to speak with C.G., who he identified as his 

girlfriend. Creel frisked C.G. and found a “baggie” of marijuana under her bra. Creel testified 

that C.G. “appeared very high on a substance” and was arrested. As soon as C.G. was handcuffed, 

she squatted and started yelling, “Get it out of me.” Creel opined that C.G. probably had “dope 

inside her cavity areas.”

In April 2017, Roberts received three intakes within a 36-hour period on the family. The 

intakes alleged that C.G. was drinking heavily and using methamphetamine, C.G. “is crazy and 

consistently [] involved [] physical altercations” with F.G. in the children’s presence, C.G. has 

been involved in domestic violence with the maternal grandmother, and C.G. calls F.R.G. names 

and tells him that he “should’ve never been born.” During the investigation, Roberts learned that 

F.G. and C.G. “split up” approximately six months prior. 

C.G. contacted F.G.’s sister and asked her to keep F.R.G. and N.A.G. because “CPS was 

called again.” Roberts stated that the Department had no concerns about the children staying with 

 

2 F.R.G. was an only child at the time of this incident. 
7

F.G.’s sister. When Roberts spoke with F.R.G., he again told Roberts that his parents would drink 

and drive. He further told Roberts that his parents would fight and the last fight occurred right 

before he went to his aunt’s house. F.R.G. also said that his uncle punched his mother in the face.

During Roberts’s meeting with C.G., she admitted being arrested for possession of 

marijuana in January, getting into an altercation with the maternal grandmother, getting punched 

in the face by her brother, and using drugs that morning. C.G. admitted that she would test positive 

for methamphetamines when asked to submit to a drug test. C.G. stated that she was going to enter 

into a twenty-day drug treatment program but did not. She also told Roberts that she did not have 

a drug problem and could stop using drugs on her own.

C.G.’s friend, Kristina Collins, testified that C.G.’s drinking “got out of hand” when F.G. 

went to prison and she was left alone with the children. She further testified that C.G. was 

depressed and “would pretty much drink until she fell asleep.” According to Collins, she witnessed 

domestic violence in which C.G. was the aggressor. C.G. also took out her frustrations on F.R.G. 

Collins has heard C.G. call F.R.G. a “little MF’er” and tell him that “if he wasn’t born this stuff 

wouldn’t happen.” Collins further testified that C.G. cheated on her drug tests through a series of 

attempts to bleach and re-dye her hair within a certain timeframe. According to Collins, C.G. 

would claim to have ended her relationship with Heard; however, C.G. would then ask Collins to 

pick her up because Heard “beat the crap out of her.”

The evidence further showed that C.G. failed to comply with her service plan. She failed 

to submit to drug testing on several occasions. In addition, she refused to enter a treatment or 

rehabilitation plan, even when asked by her friends.

The evidence also demonstrated that C.G. lacked stable housing. She was evicted from her 

apartment as a result of several complaints against her and her boyfriend. In addition, she admitted 

to “selling a little weed” in her apartment. C.G. lived in a trailer home with Heard for a couple of 

weeks, however, Katie Davis, the Department’s conservatorship specialist, did not know C.G.’s 

current housing situation at the time of trial. Furthermore, Davis testified that C.G. failed to 

maintain employment and lied about her employment situation repeatedly.

From this evidence, a reasonable fact finder could have determined that C.G. has a history 

of alcohol and drug abuse, engaged in domestic violence in the presence of the children, failed to 

protect her children from her substance abuse and the domestic violence, has a substantial history 

with the Department, and emotionally abused F.R.G. See TEX. FAM. CODE ANN.
8

§ 161.001(b)(1)(D), (E). The evidence also suggests that C.G. failed to understand how her 

substance abuse and chaotic home life affected the children. Further, the fact finder could have 

formed a firm belief or conviction that C.G. was unable to adequately care for the children because 

she had inadequate and inappropriate housing and was unable to establish a safe and stable 

environment. See id. 

Therefore, we hold that the evidence, viewed in the light most favorable to the jury’s 

findings, was sufficiently clear and convincing that a reasonable trier of fact could have formed a 

firm belief or conviction that C.G. knowingly placed or knowingly allowed the children to remain 

in conditions or surroundings which endangered their physical or emotional well-being, and 

engaged in conduct or knowingly placed the children with persons who engaged in conduct that 

endangered the physical or emotional well-being of the children. See In re J.F.C., 96 S.W.3d at 

266; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Because the evidence is legally and 

factually sufficient to support termination of C.G.’s parental rights under subsections (D) and (E) 

of Texas Family Code Section 161.001(b)(1), we overrule C.G.’s third and fourth issues.3

BEST INTEREST OF THE CHILDREN

In her fifth and sixth issues, C.G. challenges the legal and factual sufficiency of the 

evidence to support a finding that termination of her parental rights is in the children’s best interest. 

In determining the best interest of the child, we consider a number of factors, including (1) the 

desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) 

the emotional 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 individuals; (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 the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 

1976).

The family code also provides a list of factors that we consider in conjunction with the 

above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2018). 

 

3 Because the evidence is sufficient to support termination under subsections (D) and (E), we need not address 

the sufficiency of the evidence to support subsection (O). See TEX. R. APP. P. 47.1; see also In re E.M.N., 221 S.W.3d 

815, 821 (Tex. App.–Fort Worth 2007, no pet.) (“Along with a best interest finding, a finding of only one ground 

alleged under section 161.001(1) is sufficient to support a judgment of termination”).
9

Those statutory factors include (1) the child’s age and physical and mental vulnerabilities; (2) the 

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

psychological, or developmental evaluations of the child, the child’s parents, other family 

members, or others who have access to the child’s home; (4) whether there is a history of substance 

abuse by the child’s family or others who have access to the child’s home; (5) the willingness and 

ability of the child’s family to seek out, accept, and complete counseling services and to cooperate 

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

child’s family to effect positive environmental and personal changes within a reasonable period of 

time; (7) whether the child’s family demonstrates adequate parenting skills; and (8) whether an 

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

child. See id. § 263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).

The evidence need not prove all statutory or Holley factors in order to show that 

termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re 

J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.–Houston [14th Dist.] 2003, no pet.). In other words, the 

best interest of the child does not require proof of any unique set of factors nor limit proof to any 

specific factors. In re D.M., 58 S.W.3d at 814. Undisputed evidence of just one factor may be 

sufficient in a particular case to support a finding that termination is in the child’s best interest. In 

re M.R.J.M., 280 S.W.3d at 507. But the presence of scant evidence relevant to each factor will 

not support such a finding. Id. Evidence supporting termination of parental rights is also probative 

in determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d 

at 28–29. We apply the statutory and Holley factors below.

Analysis

The evidence discussed above shows that C.G. has a history of drug abuse, failing to submit 

to requested drug testing, associating with criminals, and failing to maintain stable housing and 

employment. She also has a history of emotionally abusing F.R.G. and engaging in domestic 

violence and has her own criminal and Department history.

There was evidence that C.G. loves her children, the children love her, and that they were 

happy to see her during visitations. However, the evidence showed that F.R.G. has not mentioned 

either of his parents in several months. Furthermore, F.R.G. has commented to Davis that he is 

“okay” with C.G.’s rights being terminated “because she’s always put [Heard] before him.” 
10

Davis testified that C.G. had not made any progress while the case was pending. She 

further stated that the “only thing I’ve seen is someone that has blamed everybody but herself and 

not accepted any responsibility in this.” Davis testified that C.G. participated in the assessments; 

however, she did not follow any of the recommendations from those assessments or demonstrate 

change. She also opined that F.R.G. and N.A.G. were exposed to a “toxic environment” when 

living with their parents.

The evidence further showed that, due to C.G.’s interference, F.R.G. and N.A.G. have been 

in four foster homes since the case began. Davis testified that changing foster homes multiple 

times is an unnecessary amount of placement changes for children and that the first three placement 

changes were due to “parent behaviors.” While the children were staying with Collins, Collins 

stated that C.G. and Heard would drive by her house. Heard would stare as he drove past the 

house. And C.G. would take pictures of F.R.G. from the neighbor’s house. Collins testified that 

seeing his mother with Heard upset F.R.G. because “he knows that as long as [Heard] is around 

his momma’s not going to get better.” While the children were living with C.G.’s mother, C.G. 

and Heard were seen driving around town with the children in violation of the visitation agreement. 

Davis opined that it is best for F.R.G. and N.A.G. to be in a placement out of the area with 

unfamiliar people with regards to the family dynamic.

While the case was pending, C.G. failed to comply with her service plan. She repeatedly 

stated that she was not going to comply with her service plan and that she did not need drug 

treatment because she is not an addict. C.G. failed to submit to requested drug testing on several 

occasions. The evidence also showed that C.G. intentionally used products to alter her hair and 

urine drug test results.

Viewing the evidence above relating to the statutory and Holley factors in the light most 

favorable to the trial court’s findings, we hold that a reasonable factfinder could have formed a 

firm belief or conviction that termination of C.G.’s parental rights is in the best interest of the 

children. See In re J.F.C., 96 S.W.3d at 266. Therefore, we hold that the evidence is legally and 

factually sufficient to support the trial court’s finding that termination of C.G.’s parental rights is 

in the children’s best interest. See TEX. FAM.CODE ANN. § 161.001(b)(2). We overrule C.G.’s fifth 

and sixth issues.
11

INEFFECTIVE ASSISTANCE OF COUNSEL

In her first and second issues, C.G. argues that her trial counsel rendered ineffective 

assistance. 

Standard of Review

An indigent parent is entitled to appointed counsel in a termination of parental rights case, 

and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 

253–54 (Tex. 2010). Ineffective assistance claims must be firmly founded in the record, and the 

record must affirmatively show the alleged ineffectiveness. In re L.C.W., 411 S.W.3d 116, 127 

(Tex. App.–El Paso 2013, no pet.); see also Walker v. Tex. Dep’t of Family & Protective Servs., 

312 S.W.3d 608, 622–23 (Tex. App.–Houston [1st Dist.] 2009, pet. denied). When the record is 

silent concerning the reasons for counsel’s actions, the reviewing court will not engage in 

speculation to find ineffective assistance of counsel, and the appellant bears the burden of 

overcoming the presumption that, under the circumstances, the challenged conduct might be 

considered sound trial strategy. In re L.C.W., 411 S.W.3d at 127.

In reviewing claims of ineffective assistance of counsel, we consider all circumstances 

surrounding the case and apply the Supreme Court’s two-pronged test used in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re M.S., 115 S.W.3d at 

545. Under Strickland’s first prong, the parent must show that counsel’s performance was 

deficient. See id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). This requires a showing 

that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed 

by the Sixth Amendment. In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009). Under the second prong, 

the parent must show that the deficient performance prejudiced the defense. See In re M.S., 115 

S.W.3d at 545. This requires a showing that counsel’s errors were so serious as to deprive the 

parent of a fair trial, a trial whose result is reliable. See In re J.O.A., 283 S.W.3d at 342. To 

establish prejudice, the parent must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. In re V.V., 

349 S.W.3d 548, 559 (Tex. App.–Houston [1st Dist.] 2010, pet. denied). A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 

104 S. Ct. at 2068.

In conducting our review, we “must primarily focus on whether counsel performed in a 

reasonably effective manner.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). We give great 
12

deference to counsel’s performance, “indulging a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance, including the possibility that counsel’s 

actions are strategic.” Id. Challenged conduct constitutes ineffective assistance only when it is “so 

outrageous that no competent attorney would have engaged in it.” Id. To be successful in 

his ineffective assistance of counsel claim, C.G. must show that counsel’s representation fell 

below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S. Ct. at 

2064; see also In re L.D.G., No. 12–11–00005–CV, 2012 WL 171888, at *1 (Tex. App.–Tyler 

Jan. 18, 2012, no pet.) (mem. op.). Failure to satisfy Strickland’s requirements defeats an 

ineffectiveness challenge. See Walker, 312 S.W.3d at 623.

Analysis

In her brief, C.G. argues that her trial counsel’s representation was deficient. Specifically, 

her first issue contends that trial counsel failed to file a written motion for continuance alleging 

the absence of a material witness, C.G. She alleges in her second issue that trial counsel failed to 

develop a record regarding the materiality of her testimony and the effect her absence would have 

on the presentation of the defense.

C.G. did not appear in court the morning of jury selection. Trial counsel made an oral 

motion for continuance, which was denied after trial counsel informed the court that C.G. had 

notice of the trial date. After the oral motion was denied, trial counsel requested C.G.’s absence 

not be mentioned during voir dire. The court agreed. C.G. was present in court that afternoon, 

after the jury had been selected and prior to the start of testimony. C.G. did not appear the second 

day of trial. She was told the previous day when to appear, and her trial counsel informed the court 

that he unsuccessfully attempted to reach his client. On the third day of trial, C.G.’s trial counsel 

informed the court that he learned car trouble was the reason for her failure to appear. Although 

C.G. told him that she tried to contact him multiple times, counsel had no messages from her. Trial 

counsel then requested a temporary continuance so that he could attempt to contact C.G., who was 

not present. His attempt to contact her was unsuccessful, and C.G. did not appear for the third and 

final day of trial.

A motion for continuance must be in writing, state specific facts supporting the motion, 

and be verified or supported by affidavit. TEX. R. CIV. P. 251; In re A.A., No. 05-07-01698-CV, 

2008 WL 2514346, at *2 (Tex. App.—Dallas June 25, 2008, no pet.) (mem. op.); see Villegas v. 

Carter, 711 S.W.2d 624, 626 (Tex. 1986). The mere absence of a party does not entitle him to a 
13

continuance; the party must show a reasonable excuse for his absence. Ngo v. Ngo, 133 S.W.3d 

688, 693 (Tex. App.—Corpus Christi 2003, no pet.).

C.G.’s trial counsel was honest with the court and informed it that he did not know why 

C.G. was not present on the first or second day of trial. Therefore, trial counsel had no personal 

knowledge by which he could have supported a written motion for continuance by either 

verification or affidavit. See In re A.A., 2008 WL 2514346, at *2-3. As a result, C.G. has failed 

to demonstrate that trial counsel’s conduct was deficient under Strickland. See id. at *3. Even 

assuming trial counsel’s failure to file a sworn written motion for continuance meets the first prong 

of the Strickland test for ineffective assistance of counsel, we cannot conclude that the alleged 

error meets the second prong of the Strickland test. See Strickland, 466 U.S. at 694; In re H .R.M., 

209 S.W.3d at 111. C.G. has not demonstrated a reasonable probability that “but for” the alleged 

error, the outcome of the hearing would have been different. See Thompson, 9 S.W.3d at 812. The 

ruling on a motion for continuance is at the trial court’s discretion. See Villegas, 711 S.W.2d at 

626. As the State points out, the record shows the one-year statutory deadline for adjudication of 

a suit seeking termination of parental rights, pursuant to Texas Family Code Section 263.401, was 

looming. Thus, even if the motion for continuance had been based on personal knowledge, the 

record does not reveal a reasonable probability that the trial court would have granted the motion. 

C.G. further argues that her testimony was material to her case and that trial counsel should 

have developed a record explaining her absence and the materiality of her testimony. However, 

C.G. has failed to demonstrate that trial counsel would have called her as a witness if she had been 

present. C.G. filed a motion for new trial that did not include her claims of ineffective assistance. 

As a result, trial counsel did not have an opportunity to explain his actions and we presume counsel 

made all significant decisions in the exercise of professional judgment. See Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). Because C.G. failed to rebut the presumption that trial 

counsel’s actions were based upon a reasonable decision, she has not satisfied the first prong of 

Strickland. See In re H.R.M., 209 S.W.3d at 111. 

For the above reasons, we overrule C.G.’s first and second issues.

DISPOSITION

Having overruled C.G.’s first, second, third, fourth, fifth, and sixth issues, we affirm the 

trial court’s judgment.
14

BRIAN HOYLE

Justice

Opinion delivered November 5, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 5, 2018

NO. 12-18-00131-CV

IN THE INTEREST OF F.R.G. AND N.A.G., CHILDREN

Appeal from the County Court at Law 

of Cherokee County, Texas (Tr.Ct.No. 2017-04-0235)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed and that this decision be certified to the court below 

for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.