## I n the Court of Appeals Second Appellate District of Texas at Fort Wort h

___________________________ No. 02

- 23

- 00026

- CV

___________________________

On App eal from the 360th District Court Tarrant County, Texas Trial Court No. 360

- 674500

- 19
Before Bassel, Womack, and Wallach, JJ. Memorandu m Opini on by Justice Bassel 

### I N THE 

### I NTEREST OF 

### M.J., A 

### C HILD2 MEM ORANDUM OPINION In this ap peal from a judgment terminat ing a parent

– child relationship b etween

a father and child (Janie) , 1 we must determine whether the judgment shou ld be
reversed because Father ’ s appoin ted t r ial counsel w as inef fective by failing to pre serve legal

- and factual

- s uf ficien cy challenges t o th e jury’s finding that terminat ing the
parent

– child relationship was in Janie ’ s best interest . Because we determine that the evidence was both legally and fac t ually suff ic ient to support the jury ’ s best

- interest finding

–– a nd ther efore that any deficient perf ormance did not prejudic e the case ’ s

outcome

–– we affirm

. Procedura l Background Father appeals from a judgment terminating his parent

– ch ild relationship with Janie 2 b ased on jury finding s (1) that he e nd angered her , knowingly all owed h er to
remain in endange ring conditions or surrounding s, failed to c omply with a court

ordered service plan to obtain her return, an d constructively abandoned her , and (2 ) that t erminatio n was in her best interest. See Tex

. Fam. Code Ann. § 161.001( b)(1)(D )

– (E) , (N)

– (O), ( b)(2)

. The trial court ’ s judgment expressly

1 W e use a n alias to refer to th e child, and we do not include any factual details from which she might be id entified. See T ex. Fam. C ode Ann. § 109.002 (d); Tex. R. App. P. 9.8 (b)(2)

.

2 Mother executed an irrevo c able af fidavit o f relinquishment. She h as not appealed

.3 provided that Father ’ s appointed trial counsel would “ continue in that capacity until all appeals [were] exhau sted or waived. ”
Nine days after the trial court signed the termi na tion judgment , Father ’ s appoin ted trial counsel 3 filed a notice of appeal on his behalf but did not file a
motion for new trial

. 4 Three weeks after filing the notice of a ppeal , trial cou nsel filed

a motion to withdraw

–– despite the trial court ’ s prior finding that she should remain appointed until appeals were exhausted

–– alleging that good cause exi sted for her
withdrawal b ecause (1) s h e had been appointed trial cou nsel because Father did not
have the mea ns to hire his own attorney; (2) F ather had requested the app oint ment of appellate counse l; and ( 3) s he was filing the motion so that appellate counsel could file an appeal. 5 Despi te the fa ct th at counsel ’ s wit hdrawal motion did not expr ess ly stat e good

cause for withdrawal, see id. § 10 7.016; In re P.M. , 520 S.W. 3d 24, 27

– 28 (Tex. 2016) (order ), the trial court granted the motion

–– finding that “ good cause exist[ ed] for [counsel ’ s ] withdrawal ”

–– and appointed sub stitute counse l. The w ithdrawal and

3 Fathe r was r epres ented b y tw o attorneys at trial, but the record does not contain an appointment order for one of them; that attorney did not file a withd raw al motion

.
4 Additionally, at trial, she had not moved for a directed verdict or o bjected on the r ecord to the j ury charge.

5 We can o nly as sume th at trial cou nsel was tryin g to convey that she was not qualified to serve as appellat e counse l.4 appointment order is dated March 1, 2 023 , after the time for fil in g a motion for new trial had passed

. See T ex. R. Civ. P. 329b(a).
Father ’ s newly appointed appellate counse l filed a brief raising a sing le issue:
tha t Father ’ s tr ial counse l was ineffective for failing to file a motion for new trial because, by failing t o do so, she failed to preserve any appellate complaint about the sufficiency of the eviden ce to prove the jury ’ s best

- interest finding

. Appointed Counsel in T e rminat i o n Cases
In Te xas , an in digent parent again st whom the State has initiated a proceeding

to terminate the parent

– child relationship is entitled to effective appointed counsel

. See Tex. Fam. Code Ann. § 107.013(a)( 1) ; In re D.T. , 625 S.W.3d 62, 69 (Tex. 2021 ) ; In re M.S. , 1 1 5 S.W. 3d 534, 544 (Tex. 2003)

. We review i neffective

- ass istanc e clai ms in such procee dings by the familiar U nited States Supreme Court test applicable t o

c riminal cases , Strickland v. Washington , 466 U.S. 668, 687 , 1 04 S .W .3 d 2052, 206 4 (1984)

. M.S. , 11 5 S.W.3 d at 545

. T he pare nt must show not only that couns el ’ s perform ance was deficien t, but also that the defi cient performance prejudiced the
defense , i.e., that but for counsel ’ s unprofessiona l errors, there is a reasonabl e probabili ty tha t the r esu lt of the proceeding would have been different

. Id. at 545,
549

– 50.
Unli ke criminal

- case defen dants, p arents in termination cases have no separate procedural vehicle (such a s a pos tconviction habeas proceeding ) at which to make a record to support ineffec tiv e

- assis tance claims. In re A.L. , No. 04

- 17

- 00620

- CV , 20185 WL 987484, at *8 (Tex. App.

— San Antonio Feb. 21, 2018, no pet.) (mem. op.)

. T hus, the record from the termination trial itself

–– whether supplemented by new

- t rial

test imony or no t

–– is the sole s our ce of f acts to sup port an ineffective

- assis tance

- at

trial claim

. 6
Here , Fat her ’ s counsel failed t o preserve legal

- sufficiency challenges to the j u ry ’ s best

- interest finding by failing to seek a directed ver dict, o bject to the inclusion

o f question s in t he c h a r ge , or both. See In re A.H. , No. 02

- 22

- 00019

- CV, 2022 WL 1573408, at *3 (Tex. App.

— Fort Worth May 19, 2 022, pet. denied) (mem. op.). She
failed to preserve a factual

- sufficiency ch allenge to the jury finding b y failin g t o file a

m o tion for new tri al. See T ex. R. Civ. P. 324( a)

– ( b); A.H. , 20 22 WL 1573408, at *3

. Thus , whether the e vid ence is legally and factually sufficient to suppo rt the jury ’ s best

6 “ T o remedy this inequity, some appellate cour ts have held th at the ap prop riate remedy is t o abate the appea l and remand the case to the trial co ur t for a hearing at which a parent may d evelop a record. ” See In re D.H.G. , No. 04

- 21

- 00183

- CV , 20 21 WL 50 88738 , at *3 (Tex. App.

–– San Anton io Nov. 3, 2021 , pet. den ied ) (mem. op. ) ; I

n re M.E.

– M.N. , 3 4 2 S.W.3 d 254, 25 8 (Tex. App.

— Fort Worth 2011, pet. de ni ed)

. But “ [w] hether abatement is approp riate will depend on the facts of each termination
case an d the sp ecific allegation of ineffective as sistance.” D. H.G. , 2021 WL 508 8738,
a t *3 ( quoting In re K

. K. , 180 S.W.3d 6 85, 688 (Tex. App.

–– W a co 2005, no pet .) (per curiam) ( order ) ). Here, we need not abate because Father has not sati sfied the second Strick land prong: that there is a reasonabl e probability that, but for trial counsel ’ s asserted defic iencies, the outcome of the proceed ing would have been diffe rent. S ee id. at *4 ; A .L. , 2018 WL 987484 a t *9

.6 interest finding info rms our determination of the second Strickland pr ong . 7 See
D.H.G. , 2021 WL 508 87 38 , a t *5

– 6.
Stand ard of Revie w and Appli cable Law Although we gener ally presume that keeping a child with a parent is in the
child ’ s be st interest, In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) , the best

- interest analysis is child

- cente red, focusing on th e child ’ s well

- being, safety, and developme nt, In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018)

. In reviewing bes t

- interest evidence, we
consi der nonexclusive factors that the factfinder may apply:
• the child ’ s desires;
• the chi ld ’ s curren t and future emo tio na l and physical needs;
• the current and f uture emotional and physica l danger to the child; • the parenting abilities of those seeking cu stody and programs available to assist them; • the parties’ plans for the child, includ ing the sta bility of the pr opo se d hom e or placement; • the parent ’ s acts or omissions suggesting tha t the existing parent

– child relationsh ip is inappropriate; and

• a ny excuse for the parent ’ s acts or omissions.

7 Father argues as part of the second Strickland pr ong that , but for counsel ’ s errors

–– includi ng failing to seek enough information at trial regarding the H o lley factors

– – th e result of the trial would have b een diff erent because ther e would have been insufficient facts on which t o show th at termination was in Janie ’ s best interest. But we cannot speculate on what the record would have shown, only what it does sh ow.7 Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Te x. 1976)

. Ad ditionally, e v ide n ce
pro bative of conduct grounds for termi nation

–– here, endangerment, abandonment,
and failure to complete a court

- ordered service plan

–– may also be probative of best
interest. In re E.C.R. , 402 S.W.3d 239, 250 (Tex. 2013)

. T o determine whether the evi den ce supp orting a finding is legally suffici ent, we look at all the evid ence in the light most favorable to th e challenged finding to
deter mine whether a reasonable factfinder could form a firm belief or convi ction that
the find ing is true

. In re J.P.B. , 18 0 S.W .3 d 570, 573 (Tex. 2005)

. We assume that the
factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
f

actfinder could have done so. Id. We disregard all evidence that a reasonable
factfinde r could hav e disbelieved, a nd we co ns ider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence f avorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factf inder could not
. See id.
I n d eterm in ing the factual sufficien cy of the evidence supporting a best

- i nterest finding , we must perform “an e xacting review of the entire record, ” In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014 ) , to decide whether a factfinder coul d reasonabl y form a
firm co nvi ction o r belief that terminating the paren t

– child relationship would b e in
the child ’ s best interest, Tex. F am. Code Ann. § 161.001(b) (2) ; In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002)

. If the factfinder reasonably could form such a firm con vict ion or
belie f, then th e evidence is factually sufficient. C.H. , 89 S.W.3d at 18

– 19

.8 For both types of review, we must re me mber that the factfinder is t he sole judge of the witnesses’ credibility and demeanor. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2 009)

. Evidence a nd Applica tion
Father ’ s relationship with Mo ther
Mother met Father when sh e was nine teen
. She s aid he “ stalked ” her as she

w as coming out of a store and gave her his phone number

. They began a reg ula r intim ate relationship but were not dating. Although by that time Mother had already
engag ed in s ex work on her ow n, Father b e came he r pim p
. 8 Father discontinued

con tact with her after she told h i m she w as pregnant , 9 and h e denied bei ng the c hild ’ s father. He blocked her number on his phone and provided no financial or other
support. Father f rig hte n ed Mother a little , and he was emotional ly mani pulative about her giving him the money s h e m ade , but she li k ed th e atten tion he gave her

. Neverthel e ss, s he f elt like he exploited and manipulated her. For exa mple, d uring the

case ’ s p endency, s he gave Fat her $ 7 ,000 that she had i nherited from he r father; he

8 M othe r testified that even though she was alr eady engaging in sex work when she met Father and tha t when she was with him s he set up her own encounters and rates , Fat her n everth e less took her money, encouraged her to keep h er customers even if s he did n o t want to have sex with them, and told her she was not making enough mo ney .
9 Mother never wavered from her te stimony that alt hough she was engaging in pro s titution wh en Ja nie was conceived, she knew that no one else but Fat he r coul d have co n ceived the child. T he jury was entitle d to resolve any inco nsistency in he r testimony. See J.P.B. , 180 S. W.3d at 573.9 kept the mon ey and did not tell her what he did with it

. She assumed that he had spent it on his children and “ his needs. ” Father claimed that he deposited the money
in a n account for Mother for safek eeping. According to Father, he b ef rie n ded Mother because she told him she was in a
bad situation ; he had sex with he r only once

. Father said that he tried to talk to
Mother when he found out she was pregnant, but she denied his paternity and told
him h is “ ser vices were n o longer needed ” becau se she had a support system
. However , F a ther a lso tes tified that the first time he found out Janie migh t be his child
was when a Department of Family and Pro tective S e rvices investiga t or tried to talk to
him in 202 1

. Janie was bor n in late 2019. T w o mo nt h s later, t he Of fice o f the A ttorney General (OAG) sued Father to establish paternity and child support

. Father claimed
not to know about the suit e ven th ough the return of serv ice shows that he was
perso nally s e rved in January 2020. Accor d ing to Mothe r, there was never a hearing

o n the O AG case because of Janie ’ s removal in June 202 1

. Father init ially re fuses placement Janie was an almo st eighteen

- month

- old when she was removed f rom M o ther ’ s

care a nd p laced with F os ter Fat her and Foster Mother ; the Department had been investiga ting Mother for several months and removed Ja nie after both Mother and10 Jan ie test ed positive for cocaine and meth amphetamine

. 10 Mot her had been for ced to
leave tw o livin g arrangements

–– one with friends and the ot her with her f ather

–– b ecause of altercations , and at the t ime of removal was living at Presbyter ian Night
Sh elter. Mo ther was unemployed and could not provid e any suitable a lternative plac ement s for Janie ; 11 t he Department invest igator at first was unable to find Father
after searching “ different websites and different socia l me di a. ”
T he inv estigator ev entually found an address for Father , but when he wen t t o th at addre ss , a m an answered a nd said Fa ther was not ther e. The inves tigator left his
card , an d F ather contact ed him by phone b efore the investigator could leave the premises. W hen the investigator later met Father a t a show

- cause h earing, he real ized
th at F ather was the man who had answered the doo r that d ay . During the investigator ’ s cal l with Fa ther, Father said he did not know if he

was Janie ’ s father and that he neede d a DNA test. 12 Whe n the inve stigator asked

10 Mother also tested positi ve for amphe tamin e and marijuana. Janie ’ s positive test was for “ exp osu re . ” The Department investigato r testified that such a re sul t is problematic becau se it indicates Janie wa s pr esent when d rugs were b eing used. Because Jan ie was so young that she was unable to ca re for and protect hers el f, Mo ther ’ s drug use woul d have i mpair ed her ability to make decisions and provide c are for Janie.

11 At first, Mother would not tell the investigator Fathe r ’ s nam e and s aid she did not w ant him to be part of her life until he got a DNA test.

12 The investigator testif ied that he was under the impression at t he time that a DNA test had been reque sted by the OAG , but i t had not yet been conduc ted.11 Fath er if he would be willi ng to have her placed with hi m instead of being removed, 13
Father “ repeated the sa me thing [,] . . . that h e didn ’ t know if he was [her] dad. ” Three
times , Father decli ned the investigator ’ s r eque st to place Janie with him

. 14 Father also did not offer any relative placements. The investigator did not make any finding s a s to F ather as a res ult of the inve stigation.
Father te stifi ed that w hen he first to ld t he investiga tor that he di d no t know
whether Janie was his daughter, the investigator told F ather that he could no longer talk to him about the investigation an d that Father would ne ed to s peak to his lawyer.
Father sai d t hat a lthough “ [b]efore court ” he did not know wh ether J anie existed, he assumed she was living in “ decent ” conditions.
Once Father ’ s paternity was confirmed, he open ly expressed h is desire to ha ve Janie placed in his home.
Fath er ’ s drug use
F ather ’ s p a ternity was not confirmed until October 2021. Although Father had begun visits with Ja nie b efore then , the Department had not create d a se rvice plan for

13 The inv es tigator testified that a DNA t est would not have been required fo r Ja nie to have been placed with Father and that he would have considered Father as a pl a cement at that time.

14

Although the in vestigator set up an initia l vis it between Jani e a nd Mother , which Mother failed to attend , he did not offer the same to Fat her because Fa ther had

“ told [him] he didn ’ t know if it was his child. He didn ’ t want to be a parent
. ”12 him because “ h e was not present as part of the concerns that [had] brought [ Janie ]
into care. ”

“ I n late S ept embe r ” 2021, the Department became concerned th at Father was using drugs. 15 Mother called the Department ’ s case worker 16 from r ehab and
exp ressed her concern a bout Janie ’ s being placed with Fat her because , ac cording to
Mo ther, he had used methamp hetamine with her “ just a few days ” before s he went to
rehab

. Mother also told the caseworker that Father “ was a pimp, so h e pros tituted
other wom en, [ 17 ] and he had approa ched her to work for him. ” Mother s eemed
reluc ta nt , hesita nt , and scared to give this i nforma tion 18 and asked the caseworker not to conf ront Fat her with i t
. At one point, Mother re canted her assertion th at Father was a pimp , but she later admitted that she had do ne so out o f fear and confirm e d to

t he caseworker that she had initially told the trut h. 19

15 F a the r also had one misde meanor conviction for marijuan a po ssession.

16 The caseworker until S eptember 2022 wa s an Ou r Co mmunity

- Our Kids (O COK) contractor for the Department.

17 At trial, Mother sa id that she did n ot know of an y other women f or whom Father had acted as a pimp

.
18 The case wo rker foun d M o ther t o be vulnerable , scared, and easi ly mani pulated

. She had a need for ongoing couns eli ng after drug treatment.

19 Mother also told the wom an who observed visits with Ja nie that Fathe r
“ woul d pres sure her to get high with him [ a nd] to sleep with men for money so that she co u ld ge t him drugs or they could get drugs and do them together wh ile s he was pregnant. ” Mother was afraid of him be cause he would show up where s he lived

–– uninvited

–– an d s h e was afraid he would physica lly hurt her.13 In October 2021 , t he Department drug tested Father

. A u ri ne test (UA) was posit ive for marijuana only , b ut a hair test wa s posit ive for bot h marij uana and
metham p hetamine. Fa ther acknowledged using ma ri juana , but he denied using methamphetamine , e xplaining that he h ad con sumed an un identified edib le on a trip to Las Vegas and thought it coul d have been tampe red wit h. L at e r, though, he
admitted to the casewo rker that “ he was hanging out with [Mother] d uring the early part of the case and was around her w hen she was using meth and

. . . potentially

. . . could ’ ve been exposed to t hat. ” Fath er agai n tested po sitive for marijuana in
November 2021.
T he caseworker drafted a lim ited service plan for Father in Decem ber 202 1,
after receiving the results of Fathe r ’ s drug testing

. He review ed th e plan with Fat her

“ prett y immediately ” but ended up emailing it to Father after he sk ipped visits

. The

casew orker “ was wor r ied about [Father ’ s ] inv olvement with illic it subst ances [ , ]
metham phetamine and ma ri ju ana, ” as well a s “ his ability to prov ide proper and safe
care for ” Janie

. A lthough the caseworker requested that Father drug test in January and April 2022 , he did no t
. Father did sub mit to a drug test in May 2 022 , and both the hair and UA tests

were po siti v e for mari jua na. A l t hough th e caseworker had referred Father to a
substance

- abuse center in Decemb er 2021 , F ather d id not call the center until May 2 6,14 2 0 2 2. The center re commended outpatient services 20 and schedu le d a time bu t Fa ther

never went. Fathe r failed to take a requeste d drug test in June 20 22

. 21 And although he had a negativ e drug test in July 2022 , t he next month he tested posit ive for m arijuana on a hair test but n egative on a UA. Father also h ad a negative UA but posit ive ha ir test in
S e pt em ber 2022

. Fa t h er admitted to the casewo rker that he used marijuan a but said he was
try ing to le ave it be h ind. T h e case worker wa s concern e d abou t Father ’ s drug use

––

even if he was using only marijuana

–– bec ause of Jan ie ’ s age, at which she required a higher le vel of supervision than would an ol der child

. Father ’ s August 2022 drug and firearm possession
A City of Irving p olice officer test ified t h at he stop ped Father on August 18,
20 22

. T he car smelled ov e rwhelmingly of marijuana

. 22 Father had a f irearm in his pock et th at h ad one round in the chamber

. The officer also fou nd a four

- gram

20 Father ’ s dr ug assessment showed “ mild marijuan a substance abuse disorder. ” H e nev er admitted to using methamphetamine

.
21 All of the missed t ests were presumed positive in accordance with the court

approved s ervice plan

. The casew ork er admitted that Father had said he had a hard ti me getting time of f work to take a drug test, so the c aseworker gave him e xtra time: 48

– 72 hours after a reque st instead of 24

– 48

.

22 Father and hi s passenger appea red to be a coup le. The Departme nt was under the impr ession that she was Fath er ’ s sister or friend

. At tr ia l , Father called her
a close family friend, but he admitted lying about her being his sister.15 p ac kage of THC gummies on the floor of the car in open view. 23 As a result, Fa t her was charged w ith felony drug possession and unlawfu l carrying of a weapon. 24
Officers took Father i nto cus tody 25 b ecause he h ad o utstanding warrant s f rom t hree
different cities

–– Class C misdemeanors for “ no driver ’ s license, d rug paraph ernalia, [ and ] failure to maintain financial respons ibi lit y . ” N evertheless, during the stop, Father was “ [ a ] greeable, m ild

- manne red, [and] co mpliant. ”
Father ’ s visits with Janie A Department s ubco ntractor who observed Janie ’s visit s with Mothe r and
Fa ther test i fied ab out her i mpressions. Janie ’ s f i r st vis its we re with Fat her alone for
the first hour and th en M o ther for the secon d ho u r ; later, the two visited for the full
time toge ther until the y were o rdered to stop “ because th ey had altercation issues. ” 26 Janie “ did not know [Father] at a ll the firs t visit. She had n ever met him. ” 27 For
around the first two mo nths , J a ni e cried and was afraid around Father ; as visits

23 The o f fic er also found “ the very end ” of a marijuana blunt or ciga rette but did not seize it because he was already c harging Father wi t h offenses

. Although g u mmies can have a n o dor , th e officer a ssum ed the marijuana smell in the car was f rom the sm oke d item rather than the gummies.

24 Fathe r ’ s service plan required him to refrain f rom engaging in criminal
a cti vit y.

25 Father never disclosed the arre st to the D epartment
.

26 At trial, Mother testified th at s he an d Father would smoke methamphetamine before attending visits together.

27 T he caseworker also testified that Fa ther had “ no involvement ” wi t h Janie b e fore she w as placed in foster care.16 progressed, her reaction to him was better but there were still “ more bad vis its than good visits when it [ca me] to crying and her trying to open up with him. ” Acc ording to the observer, Father tried to enga ge with Janie , but she “ never initia ted it ” and

“ [h]e had to work for eve rythin g he got. ” In contrast , Janie was “ never . . . afraid of ”
Mothe r. She was happy to s ee her mother, was v ery voca l, and let Mother touch her.
Al t hough Father tried, Janie di d not interact with him the same way because she “ just
wasn’t as com fortable with him. ”
Father came to the first visits with his fian cée ; while he was eng age d , he visited
consistent ly. Janie enga g ed much more with the fia ncée , who would give Janie snacks
and comb her hair

. After Father and the fiancée br oke u p around August or September 2021 , the v i si ts we re “ rough er ” and in consi stent; once Father went a n

e ntire month without visiting

. Janie “ cr ie d a lot more ” and “ was just totally afraid. ”

“ The last vi sit ended like the first visit star ted ” in terms of crying and fear. 28
Never theless, Father would en gage with Janie, reading to her , working on a sticker
boo k , and p laying on the flo or . Janie wou ld warm up during th e latte r part of visi ts with Father and , a f ter months of consistent visitation, would sit on hi s lap

. 29

28 In contrast, in the last vi sit the caseworker observed , although Janie was hesitant and standoffish at first, she wa rmed up more quickly than she had during
so me of the past visit s, and she and Father we re able to pl a y together. In the one before that, though, Jan ie was “ pret ty h yst erical ” and wouldn ’ t go into the visi t room without F oster F ather.

29 At one of the September 2022 vis i ts , the pe rmanency s pecialist saw Janie

“ start[] shaking h er head , ‘ No, ’ ” when she s aw F a ther walking through the door , an d17 The Department o b server had concerns for J anie ’ s wellbe ing if she w ere to be
p laced with Father because Janie “ was not reacting to him in a way that a child would

r eact to a parent if they fe lt safe and secure. ” The Department ’ s per man ency
spec ialist 30 admi tted that the Department can set up transition v isits th a t gradu ally get longer but had not done so here because Fat her had made n o progre ss on his service plan and making behavior al c hanges

. Father mis se d fiv e to six visits between December 16, 2021 , and Febru ary 3,
20 22 , and twelve to th irteen scheduled visits between February 3, 20 2 2 , and May 27,
2022 ; 31 he also ended the F e bruar y 3, 2022 Zoom visit early

. Father sm elled of marijuana at the May 27 , 2022 visit

. 32 But he was allowed to rem ain bec ause “ he

wasn ’ t acting as if he was not able to carry out the visi t. ” F a ther d i d not visit again
until August 31 , 2022

. Father attended most vi sits in Septemb er and October 20 22

–– the months be for e trial

–– bu t at one of them, he smel led like marijuana

. He mi ssed

it “ was ve ry d iff icult to g et her into the visit room

. ” At another, Father was more hands off , but this concerned the permanenc y specialist be ca use , as a n almost three

y ear

- ol d , J anie needed him to try to engage her

. The vis it after tha t wa s b etter because Janie st arted wit h Mo t her first

.
30 The OCOK caseworker left employment in September 2022, at which point a Department permanency specialist took over.

31 In April 2022, the cas eworker had wa rned Father that he nee d ed to “ get going ” if “ he truly want[ed] ” Janie “ in his c a re . ”

32 He b rought one of his other children to that vi sit. The caseworker admitted Father was “ s tarting to show more engagement [at that time] than he ha d in m onth s pa st. ”18 two of the scheduled vis its and left early from one.
Fa ther told the caseworker that “ he had inte ntion ally d isappeared from the case with his re ason ing be ing th at he t hought [ Janie ] wa s go ing back to [Mother , ] and he thought that he was step ping out of the way to let that happen. ” Th is con cerned the
casework er because disappear ing i f Ja nie w ere return ed to Mother did not “ show a
d esire to wan t to be a father to ” Janie.
F athe r ’ s living a rrangements When the casewo rker first vi site d Father , he was livin g in an apartment with

tw o of his children 33 and their m other (Roommate) ; Fathe r was not in a romantic

re lationshi p with Roommate a t the time

. Howev er, Father was eng aged to another

woman. 34 Father had moved in with Roommate because he had nowhere else to go , and she had offered for him to live with her in exchange for assisting with their two childre n , a five

- year

- old and three

- y ear

- old

. L a ter , “ [ i ] t was just a ch o ice ” : “ It ’ s the
fact of m e wanting to be around my kids be cause . . . I have ten kids. And anyon e th at knows, my kids mean so mu ch to me primarily. So, yes, that ’ s w hy I was there , to have as much contact with m y child r en as possible. ”
A lt hough the caseworker visited R oommate ’ s a partment in A u gust 202 1 , Father ind icated at that time t hat Janie would be coming to liv e in his fia ncée ’ s home ,

33

Janie i s Father ’s ele v enth child. Fa ther has no Department history with any child bu t Ja nie.

34 In counseling Father and his fiancée , t he Department ob se rver had recommended that Father mov e out of Room m ate ’ s home

.19 so th e caseworker inspected that home in October 2021. The caseworker did not v isit
with Father in person from November 2021 to January 202 2. It was not until “ very much la ter ” that Father told the cas e worker that he and his fiancée ha d broken up.
The caseworker had difficulty commun icating with Father and setting up monthly home visits

. W hen trying to call Fa th e r, he often receive d a no

- w orking

n umber message . Eventually, the caseworker was able to inspe ct Roommate ’ s apartment ; althoug h it wa s “ dirty an d unke mpt , ” the r e were “ no m ajor safety concerns. ” Father ’ s two children li ving t here appeared to be well cared for

. Fa ther ’ s dru g use di d not
concern the caseworker as mu ch regarding those children beca use the ir mother was
th ere and she was their primary caretaker

. However, the caseworker thought that “ at
time s [Father] woul d be lef t with them to car e f or t hem ma y be th roughout p ortions of the day. ”
T he caseworker concluded that alt hough F ather was living in s a fe hou sing , it
was not stable because Father w as “ moving from place to pl ace, woman to wo m an . ”
Father ’ s explana tions at tr ial
Father te stified that he never had the chance to o ffer family members as
alterna tive pl acements and asserted that some of his recommended pla cements would
pass a background check. Acco rding to Fath er, his casew or ker was not as open with
him as w ith M other. Fa ther was under t he impression that Janie was to have be en pl aced with him once the DNA test confirmed his paternity.20 Father testi fied that in early 2022, he ran over his phone, so he was without phone acces s for two to two

- and

- a

- half month s. He c ould not contact any one and
coul d only access email at work.
Fa ther blamed his missing vis its on his lack of a phone and ina bility to con tact the Departm ent. But he also claime d that h e s topped vis iting Janie and working
service s be cause the Dep ar t ment had r ef used to acco mmodate hi s employment change tha t nece ssitated a new visitation date and time

. He missed the visits “ in order
to continue with [his] l ife. ” Father said t hat he had trouble communi cating with and getting help fro m his c asewo r k e r , particularly with respect to visits ; according to Father, the caseworker would not accom mod ate his sc hedule b ecause i t was not

co nducive to the foster par ents ’ schedule.
Father denie d not being allowed to visit Janie, or havin g a vis it with her cut
sho rt, because the Dep artment representatives thought he smelle d like marijuan a. He
claimed that the Department w ould often deny him visits when he di d not confirm
the required twenty

- four hou rs in advance , even if o nly a h alf hour l ate
. He also
claimed tha t the visit schedule a ffec ted his ability to work , b l a med t he Department for never offering weekend visits , and said that his i nitial visits with Janie w ere scheduled
with t he observer ’ s and M othe r ’ s convenience in mind, not his

. Father said his first vi s its with Janie were “ rough ” but got bette r after he as ked the foster parents not to r emain in the room wit h her when he came in because she
would keep looking to them for comfort

. Once th ey started leaving the room before21 Father arrive d, Janie start ed pl aying with him “ instantly. ” Father also claimed to have
h ad trouble visitin g because he did not own a car and the Department wo uld help only Mother with transp ortatio n . Father said that although he m a de the initial contact f or the drug assessment , he di d not atte nd any meeting s because the recovery center ne ve r cal led him to set them up. But Father admit ted that he had not stopped using marijuana sooner
bec ause he thought he c ould get away with it. He blamed his Octob er 20 21 pos itive methamphetamine te st on being p hysic ally near Mo ther when she was smoking ; h e estimated this contact had been around June 2021

. Overall, Father bla med the Depa rtment for his conf usion and failure to

co mplete services ; 35 he di d no t know that his court

- appointed attorney coul d have helped him navi g at e th e process. Fa t her claim ed he never saw his service plan and
that h e k new to atte n d the FOCUS f or fath ers class 36 a nd schedule the drug

assessment only because th e ca seworker had texted him to do so

. He said the only thing the Department had told him to do w as to make sure Janie had a private room
in the home where he was living.
Fat her fe l t that Mo ther had been provided more opportunities to help get Janie
back , and he had “ b egged for ” more. He also felt that he had been tre ated unfairl y

35 T he permanency spe cia lis t agreed that there had been instab ility with the
case work ers, but she di d not see any r eason Fath er should have been confused about what was exp ected of him.

36 By the time of trial, Father had co mp leted t his course .22 throughout the proce ss and had to always acc om moda te the foster parents.
Nev ertheless , Fat her though t he had “ done a great job ” trying to w ork his services

. Father testified t hat he bega n carrying a gun

–– whi ch he said was “ l egal ” 37

–– after D ecember 2020 , when he was robbed and shot at a game room w here he was working

. F ather ’ s situation at the ti me of trial
R oomma te ’ s apartment had three bedroom s and w as located in a gated community. Jan ie would have her own bedroom. Father te stified that there w ere several d ayc ares , an elementary school, and a bus stop around his residenc e . He had support from his aunts a nd his moth er, who he said would also be good placement s for Janie

. He offe red his s ister and brother a s placements

. Fat her said h e a nd h is
f

amily were will ing to shift their liv es for Janie

. According to Father, R oom mate could also help with Janie

. Father had a “ continuing relation sh ip ” with all of his other chi ldren

. He said
he had “ raised ” t hem “ fr om [birth] until t hey went to sc hool. ” F ather detailed the time he spen t wit h the two children with whom he live d

. Fathe r also testified about
some of the concepts he had l earned at the fathers class , whic h was a bout how to b e a better man , not just a better father

. Father said he and Janie had grown t ogether and

37 Y et Father admitted that on M ar c h 6, 2020 , w hile driving with four chi ldren in the ca r (none of them Janie), Fort Worth police pulled him over

. When he exited the car , he told the officer he had a we apon under his seat. But Father d enied that the officer fou nd drugs.23 that s he would be “ prima rily [his] child. ” He acknowledged that he would ha ve to

c hange “ a lot of [his] life decisi ons ” fo r her to be plac ed with him.
Father w orked season ally as a ba sketball coach 38 and ta x preparer. At th e tim e of trial, F ather worked 60

– 70 hours a week as a S ubway manager . He said he would
be working from 6 a .m. to 2:30 p.m. at Sub way and 2:30 p. m. to 1:30 a.m. at the tax preparation office

. But he would change work drast ically if Janie were placed in h is

care, not going to the t ax preparing job b ut doing tax pre p aration at home inste ad.
Father test ified t hat his a nnual i ncome was betwee n $ 60 ,000 to $ 7 0,000 per year.
Fa ther acknowledged that he had five or six active child

- support cases wi th the
OAG. At the time o f trial, he paid $394 39 a week in child s upport
. Nevert h eless, he was around $10,000 in arrears on all of the ca ses combined. He also gave one o f the
mother s $250 every mon th for th at child ’ s private

- school tuition

. After initial improveme nt, Mo ther started using drugs again
Moth e r found out during the case t hat she was pregnant wit h anothe r child

. That child was also placed with Janie ’ s foster parents. While J anie ’ s case w as pending,
Mother went to rehab and showed so me impr ovement , but the n she continued to use drugs, could not pro vide a s afe environment f or Janie , was unemployed, failed to

38 Although Fat her never documented empl o yment for the D epartment, his testimony about the jobs he worked comports with the caseworker ’ s . Fat her told t he caseworker that he often worked two jobs during the c ase.

39 Father test ified th at he paid five different weekly amounts on five different
cases

–– $79, $58, $6 4, $72, and $54. Although these amounts total $327, not $394, th e fact remains th at Father is oblig ated to pay a significant weekly c hild

- suppo rt amount.24 complete her service plan, and li ved in a shelter because s he could no t maintain st able housing

. She shifted h er focu s from trying to have Janie ret urned to her an d instead worked on tryi ng to have her son ret urned to her.
Foster Father and Fo ster Mother 40 interaction with Janie Janie had a six

- month speec h del ay when she was first placed with the fos te r
par ents , but she im proved after working with a sp ecialist , and by the tim e of trial, she

was “ sever al mo nths ” ahead

. In the beginning, s he had trouble regulating her
behavi or “ for someone of her age. ” S he wa s also slig htly ove rwei ght.
Foster F athe r testified that , at fir st, he and Foster M other tr ied to encourage
Mo ther when she was doing well ; they wanted her to g et better a nd get Janie back. They understood that even though Ja nie ’ s b rother had been placed with th em, M other

was t rying to get hi m back, a nd they wanted that to happen

. Foster F at h er testified that , to him, Janie was h is daughter. She call ed him Daddy and F oster Mo the r M o mmy. Mot her tes tif ied that Janie lo ve d her foster family an d kn e w the parents as Mo m my and Daddy

. T hey sen t Mother p ic tu res “ all
the time ” an d Janie was happy

. The fo ster parents ’ plans for Janie were for her to stay in d ay care and then go

to public school, contin ue in e xtracurricular activit i es, go to college, and “have a
normal life. ” Both foster parents were employed w ith “very flexi ble work schedules. ”
Fos ter F ather did not th ink Mot her and Father co uld provide such an envi r o nme nt;

40 The foster parents intervened in the cas e.25 he al so thought that uprooting Jan ie from “her home ” and “normalcy ” would be
traumatic. The caseworker testified that the foster parent s were “very active with ” Janie, involving her in ext racurricular acti vit ies such as swimming ; they also to ok her
on vacatio ns. Mother understood that she woul d have some kind of visitation with Janie if
the fos ter parents were to adopt her; she did not k no w what arrangement , if any, they
had wi th F ather. F oster Fa ther and Foster Mother thought it was in Ja nie ’s best
in te rest for Mother to have a “ lifelong and continued ” relationshi p with Janie

. They
had tried to talk to Fath e r abou t ope n adoption. Fos ter F ather did not belie ve it was in Janie ’s best interest “not to know ” Father.
M other ’ s inte ractions wi th t he foster parents were “ [a]mica b l e, pleasant, [and] friendly. ” They wer e supportive of Mother and planned to facil itate a n appropriate
rel ations h ip with Janie and Moth er, which the c asew orker thought was in Janie ’ s b est
interest because of her bond wi th Mother

. H e thought Mother was “ making a
sacrificial decision .

. . in favor of [ Janie ’ s ] best inte rest ov er [Mother ’ s] own personal
interest

. ” Fath er ’ s interactions with t h em were “ frien dly in a professional w ay. ”
Foster Father testified tha t Janie is a different e thnicity from the foster parents and that he and Foster Mother ha d taken classes on cul tural c ompetency and how to help Janie learn about he r herita ge and unique needs. For e xample, the visit ob server testified that they had aske d her and others for advic e on how to properly styl e Janie ’ s hair

.26 Witness es ’ best

- inter e st opinions
A lthough the Depa rtm ent would have looked to Father for placement at the beginning of the case, b y August 2022, it recommended termination of rights

. The
caseworker , permanency spec ialist , and visit ob server all thought th at Fath er ’s missing
vis its contribute d to hi s lack of relationshi p with Janie

. The y also di d not see continued imp rovement; Fathe r con tinued to test positive on drug tests , and his Augus t 2022 arre st raised con cerns ab out his carryi ng a fi rearm. Th e casewo r ker and
permanen cy speci a li st t hought it wo uld be tra umatic for Janie to be taken away from the foster parent s bec ause of their bond

. The Department was also concerned wi th
Father ’ s la ck of s table relationsh i ps: “ [W] hat wou l d happen if he leaves one of his girlfriends and has to move somewhere else? Who ’ s going to be the main caregiver
fo r [Janie] if he were to have her in his possession? ”
M othe r though t taki ng Jani e away from the foster parents wou ld con fuse a nd
traumatize her

. Mother did not believe that Father could provide Janie w ith a safe

an d stable future , a nd she was afraid that Janie would b ecome too easily attached to

wom en who were no t a lon g

- term part of Fathe r ’ s life

. Mother thought that ado pt ion by the foster parents was in Janie ’ s best interest eve n though that meant terminating
her r i ghts and even if Mo t h er were neve r allowed to vis it Janie

. Fath er thought t he fost er parents had done a w onderful job and was grateful
for t heir invo lvement with Janie

. He testified that he would allow them visitation if Janie were placed with him.27 Analysis
Based on the f oregoing , whe ther vi ewed in the light most fav orable t o the jury ’ s best

- interest finding or neutrally, we hold that the jury coul d have found by
clear and conv incing evide nce that termination of the parent

– child relationshi p between Father and Janie was in Janie ’ s best in terest. Under both ap plicabl e standar ds

–– see J.P.B. , 180 S.W.3 d at 573; C. H. , 89 S.W.3d at 28

–– t he following
evidence , in conte xt, s upports the jury ’ s finding:

• (Second Holley f actor) 41 Janie needed a st able home and en gaged pare nts who did not use dr ugs . Her speech

- therapy needs had be en met. And the evidence sh ow e d that Fa ther and the foster parents co uld both provide a physically secure li ving environment

. B ut Father failed to consistently visit Janie to establish a relation ship wit h her , and she had not h ad any contact with F ather ’ s p roposed placements

. Also , re moval f r om the foster parents ’ care risked causing Janie emotional trauma and upsetting her stability

.

• (Third Holley factor) Father ’ s lack of d esire to stop usi ng marijuana could
con tinue to e ndanger Janie. As th e casewor ker testifie d, Janie was still at an age where she required in tensive supervision, and marijuana use can i mpair a paren t ’ s judgment

. And Fath er ’ s carrying a loaded gun around his other childre n and while this case was pending

–– and while co ntinuin g to use drugs

–– cr eated bot h emoti onal a nd phy sical risk s for J anie

.

• (Fourth Holley factor) Although there w as not much evidence about the foste r parents ’ or Father ’ s parenting abilities a nd progr ams available to assist t hem , th ere was testim ony tha t the fos ter parents had addressed Janie ’ s spe ech

ther apy needs and had taken advantage of cultural compe tency clas ses and other opportunities to learn about and expose Janie to her ethnic heritage

. The y made sure she had a ccess to extend ed family and oth er childr en. Their b ond with h er was a loving and close one. Father had a good relationship with his other childr en and contribute d to their care, whether through court

- ordered support , paying for their schooli ng , or p ro vi ding sup ervisio n . Neverth eless, he was i n arrears on chil d s up port , and evidence supported a conclusion that he

41

Janie was not ol d enough to express her desires (first Holley fact or)

.28 wa s willing to let others t ake pri mary res ponsibility for child

- rearing, including with respect t o Janie

.

• (Fifth Holley factor) The foster parents had b e en married for six years. They wanted t o give Janie a stabl e and secure home and, after daycare, to send her to public school and e ventu ally to college. They hoped to have access to colle ge funds through t he Department. They also wanted to continue engagin g Janie in extr acurricu lar activities . Father w anted Janie to attend school n ear the
a p artment where he lived and to get to know his family and other children , yet he had introdu ced Janie to only one of them

.

• (Sixth H o lley f a ctor) Mother admitted that contin uing as Jani e ’ s pare nt was not in Janie ’ s best interest. After his initial deni als, Father consistently wanted to ha ve Janie placed with him. But he never stopped usin g drugs, never attempted drug treatment, never provi d ed the Department with suitable placement alte r natives , continued to live with R oommate, fail ed to consistently visit Janie , continued to carr y a weapo n on his person while driving , and blamed his failur es on the Department

. Although Father claimed to be an active parent, his conduct showed a willing n ess to let other s take primary respons ibility for his children

. The jury was entitled to believe no t on ly that F ather ha d sex with Mother knowing she was a prostitute and that she could conceive a chil d , but also that Fath er had no regard for continuing t o conce ive children with women with whom he di d not intend to maintain a long

- term relationship

. M ore ov er, Fathe r neglected to consistently visit Janie

.

• (Seventh Holley factor) The jury did not h ave to believe any of Fathe r ’ s excuses for his failu r e to work serv ices and to visit Janie consistently , parti c ularly in light of his admissions that he lied to the c aseworker and p ermanency specialist during the case

. Li kewise, the jury did not have to b elieve that Father di d not know he was possibly Jani e ’ s father , particularly in ligh t of the existence and service of the OA G ’ s paternity suit

. Finally, the jury
cou ld have concluded that Father did not want to actively parent Janie, considering his cont i nued d rug use after she came into the Department ’ s c a re , all while caring for two other children and being in arrea rs on child support

. Conclusion
W e co nclude tha t even if counsel ’ s failure to prese rve Fa ther ’ s sufficiency complaints constitut ed defi cient p erf ormance, prejudice cannot be shown bec ause th e29 evidence is bo th legally and factually su fficient to support the jury ’ s best

- in terest finding

. Thus , we overru l e Father ’ s sol e , ineffective

- assistance co mplaint , and we
affirm the trial cou rt ’ s judg m ent
. /s/ Dabney Bassel Dabney Bassel Justice
D elivered: May 25, 2023