Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-15-00143-CV

In the Interest of M.J.A.G., A.T.L.G. and D.R.G., Children

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2014-PA-00911

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Jason Pulliam, Justice

Sitting: Karen Angelini, Justice

Marialyn Barnard, Justice

Jason Pulliam, Justice

Delivered and Filed: August 12, 2015

AFFIRMED

Appellant J.S. (Mother) appeals from a judgment terminating her parental rights to her 

children M.J.A.G., A.T.L.G. and D.R.G.1

 On appeal, Mother challenges the trial court’s judgment 

on the basis she received ineffective assistance of trial counsel. We affirm the trial court’s 

judgment.

BACKGROUND

On January 8, 2014, the Texas Department of Family and Protective Services (the 

Department) received a referral based upon neglectful supervision of A.T.L.G. and D.R.G. This 

referral resulted from several incidents in which police responded to domestic disputes involving 

 1 To protect the identity of the minor children, we refer to the children and the children’s parents by their initials. See 

TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
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Mother and her boyfriend. In one such instance Mother stabbed her boyfriend with a knife. The

referral alleged Mother drank alcohol daily, used cocaine and smoked marijuana in front of the 

children. In addition, the referral alleged the children were unbathed and ungroomed and were 

seen with dirty diapers and wearing inappropriate clothing in winter. Based on the referral, the 

Department began an investigation.

The Department’s investigation revealed that in 2002, Mother relinquished custody of her 

three-month old twin daughters to her mother, Rosa J., who was appointed as their permanent 

managing conservator. Shortly after Mother relinquished custody of her daughters, she gave birth 

to M.J.A.G. Mother placed M.J.A.G. in Rosa J.’s care pursuant to a “notarized custody agreement” 

shortly after his birth. Since that time M.J.A.G. has lived with Rosa J. and has never been in 

Mother’s primary care.

On April 16, 2014, a Department caseworker conducted an interview with Mother. Mother 

admitted to having no permanent residence. Mother resided with a friend at the time of the 

interview, but ordinarily “drifted from place to place.” Mother admitted to drinking alcohol daily 

and using cocaine. Mother explained to the caseworker that A.T.L.G. had been diagnosed with 

Noonan’s Disease which required Mother to administer medication and feed him through a 

gastronomy tube. Mother admitted she had difficulty caring for A.T.L.G., and he spent the 

majority of his time in the care of a nurse. Although A.T.L.G. was only scheduled to be with the 

nurse from 8 a.m. to 5 p.m. six days a week, because of Mother’s difficulty caring for A.T.L.G., 

he often spent nights and weekends with the nurse.

Following this interview, the Department removed A.T.L.G. and D.R.G. from Mother’s 

custody, and on April 17, 2014, filed a petition to terminate Mother’s parental rights to M.J.A.G., 

A.T.L.G. and D.R.G. On the same day the petition was filed, the trial court appointed an attorney 

ad litem to represent Mother. 
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The trial court held an adversarial hearing on April 30, 2014. Following the hearing, the 

trial court appointed the Department as the temporary managing conservator and Mother as 

temporary possessory conservator of M.J.A.G., A.T.L.G. and D.R.G. The trial court left M.J.A.G. 

with Rosa J., placed A.T.L.G. in the custody of a foster family, and placed D.R.G. with her paternal 

grandmother. A Family Service Plan was created for Mother which required her to complete a 

substance abuse assessment, attend outpatient treatment and submit to random drug testing, among 

other things. The Department submitted status reports to the trial court, and the trial court held 

hearings on those reports. 

Ultimately, the trial court held a termination hearing on February 17, 2015. After the 

hearing the trial court ordered Mother’s parental rights be terminated based upon the following 

statutory grounds: (1) Mother knowingly placed or knowingly allowed the children to remain in 

conditions or surroundings which endangered the physical or emotion well-being of the children, 

pursuant to Texas Family Code 161.001(1)(D); (2) Mother engaged in conduct or knowingly 

placed the children with persons who engaged in conduct which endangered the physical and 

emotional well-being of the children, pursuant to Texas Family Code 161.001(1)(E); (3) Mother 

constructively abandoned the children who were in possession of the Department for not less than 

six months, and the Department made reasonable efforts to return the children, Mother did not 

regularly visit or maintain significant contact with the children, and Mother demonstrated an 

inability to provide the children with a safe environment, pursuant to Texas Family Code 

161.001(1)(N); (4) Mother failed to comply with the provisions of a court order that specifically 

established the actions necessary for Mother to obtain the return of the children, pursuant to Texas 

Family Code 161.001(1)(O); and (5) Mother used a controlled substance in a manner that 

endangered the health or safety of the children, and: (a) failed to complete a court-ordered 

substance abuse treatment program, or (b) after completion of a court-ordered substance abuse 
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treatment program, continued to abuse a controlled substance, pursuant to Texas Family Code 

161.001(1)(P). See TEX. FAM. CODE ANN. § 161.001(1) (West 2014). The trial court also found 

termination of Mother’s parental rights would be in the best interest of the children, pursuant to 

Texas Family Code Section 161.001(2). See TEX. FAM. CODE ANN. § 161.001(2). Subsequently, 

Mother perfected this appeal. 

ANALYSIS

In a single issue, Mother argues she received ineffective assistance from her trial counsel. 

Mother alleges trial counsel’s performance was deficient because trial counsel failed to object to 

the admission of improper opinion evidence, hearsay evidence, self-incriminating evidence and to 

an improper closing argument. Mother contends trial counsel’s purported deficiencies allowed the 

introduction of improper evidence and damaged her credibility, which “unduly influenced the 

termination of her parental rights.”

Standard of Review

The statutory right to counsel in parental-rights termination cases includes a guarantee that 

counsel will perform effectively. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM.

CODE ANN. § 107.013(a)(1) (West 2014). In analyzing the effectiveness of counsel in a parentalrights termination case, Texas courts follow the standard established in Strickland v. Washington. 

In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under 

the Strickland standard, the appellant has the burden to show (1) counsel’s performance was 

deficient; and (2) the deficiency prejudiced the appellant’s defense. Strickland, 466 U.S. at 687;

In re M.S., 115 S.W.3d at 545. An appellant’s failure to satisfy either prong of the Strickland test 

will defeat an ineffective-assistance claim. Strickland, 466 U.S. at 700; In re K.A.S., 399 S.W.3d 

259, 264 (Tex. App.—San Antonio 2012, no pet.). 
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Under the first prong, trial counsel’s performance must be shown to have fallen below an 

objective standard of reasonableness. Strickland, 466 U.S. at 687-88. Only when “the conduct 

was so outrageous that no competent attorney would have engaged in it” will the challenged 

conduct constitute deficient performance. In re M.S., 115 S.W.3d at 545 (quoting Garcia v. State,

57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Judicial scrutiny of trial counsel’s performance must 

be highly deferential and every effort must be made to eliminate the distorting effects of hindsight. 

Strickland, 466 U.S. at 689. For that reason, reviewing courts indulge a strong presumption that 

trial counsel’s conduct falls within the wide range of reasonable, professional assistance and was 

motivated by sound trial strategy. Id.; In re M.S., 115 S.W.3d at 545. The appellant bears the 

burden to overcome the presumption that, under the circumstances, the challenged conduct might 

be considered sound trial strategy. Strickland, 466 U.S. at 689. 

Under the second prong of Strickland, an appellant must show there is a reasonable 

probability that, but for counsel’s error, the result of the proceeding would have been different. In 

re M.S., 115 S.W.3d at 550. A reasonable probability is a probability sufficient to undermine 

confidence in the outcome. Strickland, 466 U.S. at 694.

In addition, the “record” requirement established in Strickland also applies to parentalrights termination cases. See In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.). 

Under this standard, allegations of ineffective assistance of counsel in a parental-rights termination 

proceeding must be firmly founded in the record, and the record must affirmatively demonstrate 

the alleged ineffectiveness. 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 as to the 

reasons for counsel’s conduct, an appellate court may not speculate to find the representation 

ineffective. P.W. v. Dep’t of Family & Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—

Houston [1st Dist.] 2013, pet. dism’d w.o.j.); Walker, 312 S.W.3d at 623. 
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Application

With regard to the first Strickland prong, the record before this court is silent as to trial 

counsel’s strategy regarding the challenged conduct. Mother did not file a motion for new trial 

from which she could have elicited testimony from trial counsel, nor did she provide an affidavit 

in which trial counsel could explain the challenged conduct. Because the record is silent as to the 

reasons for trial counsel’s conduct, this court may not speculate to the reasons behind counsel’s 

actions or omissions to find counsel counsel’s performance deficient. See P.W., 403 S.W.3d at 

476; Walker, 312 S.W.3d at 623. We have thoroughly reviewed the record and conclude Mother 

failed to overcome the presumption that trial counsel’s representation fell within the wide range of 

reasonable, professional assistance and might be considered sound trial strategy. See In re M.S., 

115 S.W.3d at 545. Further, nothing in the record indicates trial counsel’s failure to object in the 

cited instances was so outrageous that no competent attorney would have engaged in it. See 

Walker, 312 S.W.3d at 622-23. For these reasons, Mother failed to satisfy the first prong of 

Strickland.

Texas courts have recognized the inequities created by the “record” requirement in 

parental-rights termination cases. See In re K.K., 180 S.W.3d at 685 n.3; In re M.R.E., No. 14-01-

00525-CV, 2002 WL 246404, at *1 n. 5 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (not 

designated for publication). Unlike criminal cases, parental-rights termination cases have no 

habeas remedy in which to develop the necessary record. See In re K.K., 180 S.W.3d at 686. In 

many cases, based upon the procedural posture, parents may not have a meaningful opportunity to 

develop a post-trial record to support an ineffective assistance of counsel claim. See e.g., In re 

M.E.-M.N., 342 S.W.3d 254, 258 (Tex. App.—Fort Worth 2011, pet. denied); In re K.K., 180 

S.W.3d at 686. Thus, some courts have held the appropriate remedy to this inequity is to abate the 

appeal and remand to the trial court for a hearing at which a parent may be provided such an 
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opportunity. See In re M.E.-M.N., 342 S.W.3d at 258; In re K.K., 180 S.W.3d at 688. However, 

“whether abatement is appropriate will depend on the facts of each termination case and the 

specific allegation of ineffective assistance.” In re K.K., 180 S.W.3d at 688; see In re M.A., No. 

04-05-00112-CV, 2005 WL 3115796, at *3 (Tex. App.—San Antonio 2005, pet. denied) (mem. 

op.). 

As in In re M.A., we hold abatement unnecessary in this case because Mother would be 

unable to show any of the challenged deficiencies prejudiced her defense. Even assuming trial 

counsel’s performance was deficient based on the cited failures to object, Mother cannot show a 

reasonable probability that but for trial counsel’s deficiencies the outcome of the proceeding would 

have been different. The evidence demonstrated Mother’s history of drug use before and during 

the termination proceedings, and this drug use is undisputed. The evidence demonstrated Mother’s 

drug use impaired her ability to provide care for her children. Mother testified she would have 

Rosa J. babysit the children when she used drugs. Mother also admitted she exposed A.T.L.G. 

and D.R.G. to domestic violence. This evidence is sufficient to support the statutory grounds of 

the trial court’s termination of Mother’s parental rights. See In re J.T.G., 121 S.W.3d 117, 125 

(Tex. App.—Fort Worth 2003, no pet.) (holding evidence of children’s exposure to abusive or 

violent conduct by a parent or other resident of the child’s home, as well as illegal drug use and 

criminal activity support a conclusion the child’s surroundings endanger his physical or emotional 

well-being); In re M.R., 243 S.W.3d 807, 818-19 (Tex. App.—Fort Worth 2007, no pet.) (same); 

see also TEX. FAM. CODE ANN. § 161.001(1)(D).

Further, the evidence presented at trial supports the trial court’s finding that termination of 

Mother’s parental rights is in the children’s best interest. Factors relevant to whether termination 

is in the best interest of the children include: the emotional and physical danger to the children 

now and in the future; the parental abilities of the individuals seeking custody, the programs 
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available to assist these individuals to promote the best interest of the child; the plans for the child 

by these individuals or by the agency seeking custody; the stability of the home or proposed 

placement; and the acts or omission of the parent which may indicate that the existing parent-child 

relationship is not a proper one. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The Texas 

Family Code provides further factors to be considered in determining the best interest of a child. 

TEX. FAM. CODE ANN. § 263.307 (West 2014).

To begin, the evidence presented which supports the statutory grounds for removal is 

probative in determining the best interest of the children. See In re C.H., 89 S.W.3d 17, 28 (Tex. 

2002). The evidence of Mother’s drug use supports a finding that termination of parental rights is 

in the best interest of the children. See In re M.R., 243 S.W.3d at 820; see also TEX. FAM. CODE 

ANN. § 263.307(b)(8) (holding history of drug abuse by child’s family is a factor in determining 

the best interest of a child). The factfinder can give “great weight” to the “significant factor” of

drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). Mother 

continued using cocaine despite the Family Service Plan which conditions the return of the 

children on her remaining sober and participating in treatment. Moreover, Mother failed to 

participate in court-ordered drug treatment and did not comply with requirements within the 

Family Service Plan. See In re M.R., 243 S.W.3d at 821 (holding evidence of parent’s drug use 

and failure to comply with Family Service Plan supports a finding that termination is in the best 

interest of the child). Additionally, the evidence establishing A.T.L.G. and D.R.G. were exposed 

to domestic violence also supports the finding that termination of Mother’s parental rights is in the 

children’s best interest. See In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 

2003, no pet.) (holding evidence of abusive or violent conduct can produce a home environment 

that endangers a child’s well-being); see also TEX. FAM. CODE ANN. § 263.307(b)(7) (history of 

abusive or assaultive conduct by child’s family or persons with access to child’s home is a factor 
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in determining the best interest of the children). This evidence is sufficient to support the trial 

court’s finding that termination of Mother’s parental rights is in the children’s best interest. See 

In re M.R., 243 S.W.3d at 820; In re S.B., 207 S.W.3d 877, 886-87 (Tex. App.—Fort Worth 2006, 

no pet.).

Mother does not dispute this evidence or contend that it was admitted due to her trial 

counsel’s deficient performance. Because the record contains sufficient unchallenged evidence to 

support the trial court’s termination of her parental rights, Mother cannot establish any deficient 

performance of counsel prejudiced her defense. See In re M.A., 2005 WL 3115796, at *3. 

Accordingly, Mother has not satisfied her burden to demonstrate ineffective assistance of counsel. 

Therefore, Mother’s point of issue is overruled. 

Jason Pulliam, Justice