In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00026-CV

___________________________

On Appeal from the 360th District Court 

Tarrant County, Texas

Trial Court No. 360-674500-19

Before Bassel, Womack, and Wallach, JJ.

Memorandum Opinion by Justice Bassel

IN THE INTEREST OF M.J., A CHILD
2

MEMORANDUM OPINION

In this appeal from a judgment terminating a parent–child relationship between 

a father and child (Janie),

1 we must determine whether the judgment should be 

reversed because Father’s appointed trial counsel was ineffective by failing to preserve

legal- and factual-sufficiency challenges to the jury’s finding that terminating the 

parent–child relationship was in Janie’s best interest. Because we determine that the 

evidence was both legally and factually sufficient to support the jury’s best-interest 

finding––and therefore that any deficient performance did not prejudice the case’s 

outcome––we affirm.

Procedural Background

Father appeals from a judgment terminating his parent–child relationship with 

Janie2 based on jury findings (1) that he endangered her, knowingly allowed her to 

remain in endangering conditions or surroundings, failed to comply with a courtordered service plan to obtain her return, and constructively abandoned her, and 

(2) that termination 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

We use an alias to refer to the child, and we do not include any factual details 

from which she might be identified. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. 

App. P. 9.8(b)(2).

2

Mother executed an irrevocable affidavit of relinquishment. She has not 

appealed.
3

provided that Father’s appointed trial counsel would “continue in that capacity until

all appeals [were] exhausted or waived.”

Nine days after the trial court signed the termination judgment, Father’s 

appointed trial counsel3 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 appeal, trial counsel 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 existed for her 

withdrawal because (1) she had been appointed trial counsel because Father did not

have the means to hire his own attorney; (2) Father had requested the appointment of 

appellate counsel; and (3) she was filing the motion so that appellate counsel could file 

an appeal.5

Despite the fact that counsel’s withdrawal motion did not expressly state good 

cause for withdrawal, see id. § 107.016; 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 substitute counsel. The withdrawal and 

3

Father was represented by two attorneys at trial, but the record does not 

contain an appointment order for one of them; that attorney did not file a withdrawal 

motion. 

4

Additionally, at trial, she had not moved for a directed verdict or objected on 

the record to the jury charge. 

5

We can only assume that trial counsel was trying to convey that she was not 

qualified to serve as appellate counsel.
4

appointment order is dated March 1, 2023, after the time for filing a motion for new 

trial had passed. See Tex. R. Civ. P. 329b(a).

Father’s newly appointed appellate counsel filed a brief raising a single issue: 

that Father’s trial counsel was ineffective for failing to file a motion for new trial 

because, by failing to do so, she failed to preserve any appellate complaint about the 

sufficiency of the evidence to prove the jury’s best-interest finding. 

Appointed Counsel in Termination Cases

In Texas, an indigent parent against 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., 115 S.W.3d 534, 544 (Tex. 2003). We review ineffective-assistance claims 

in such proceedings by the familiar United States Supreme Court test applicable to 

criminal cases, Strickland v. Washington, 466 U.S. 668, 687, 104 S.W.3d 2052, 2064

(1984). M.S., 115 S.W.3d at 545. The parent must show not only that counsel’s 

performance was deficient, but also that the deficient performance prejudiced the 

defense, i.e., that but for counsel’s unprofessional errors, there is a reasonable 

probability that the result of the proceeding would have been different. Id. at 545, 

549–50.

Unlike criminal-case defendants, parents in termination cases have no separate 

procedural vehicle (such as a postconviction habeas proceeding) at which to make a 

record to support ineffective-assistance claims. In re A.L., No. 04-17-00620-CV, 2018 
5

WL 987484, at *8 (Tex. App.—San Antonio Feb. 21, 2018, no pet.) (mem. op.). 

Thus, the record from the termination trial itself––whether supplemented by new-trial 

testimony or not––is the sole source of facts to support an ineffective-assistance-attrial claim.

6

Here, Father’s counsel failed to preserve legal-sufficiency challenges to the 

jury’s best-interest finding by failing to seek a directed verdict, object to the inclusion 

of questions in the charge, or both. See In re A.H., No. 02-22-00019-CV, 2022 WL 

1573408, at *3 (Tex. App.—Fort Worth May 19, 2022, pet. denied) (mem. op.). She 

failed to preserve a factual-sufficiency challenge to the jury finding by failing to file a 

motion for new trial. See Tex. R. Civ. P. 324(a)–(b); A.H., 2022 WL 1573408, at *3. 

Thus, whether the evidence is legally and factually sufficient to support the jury’s best6

“To remedy this inequity, some appellate courts have held that the appropriate 

remedy is to abate the appeal and remand the case to the trial court for a hearing at 

which a parent may develop a record.” See In re D.H.G., No. 04-21-00183-CV, 2021 

WL 5088738, at *3 (Tex. App.––San Antonio Nov. 3, 2021, pet. denied) (mem. op.); 

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

But “[w]hether abatement is appropriate will depend on the facts of each termination

case and the specific allegation of ineffective assistance.” D.H.G., 2021 WL 5088738, 

at *3 (quoting In re K.K., 180 S.W.3d 685, 688 (Tex. App.––Waco 2005, no pet.)

(per curiam) (order)).

Here, we need not abate because Father has not satisfied the second Strickland

prong: that there is a reasonable probability that, but for trial counsel’s asserted 

deficiencies, the outcome of the proceeding would have been different. See id. at *4; 

A.L., 2018 WL 987484 at *9.
6

interest finding informs our determination of the second Strickland prong.

7

 See 

D.H.G., 2021 WL 5088738, at *5–6.

Standard of Review and Applicable Law

Although we generally presume that keeping a child with a parent is in the 

child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest 

analysis is child-centered, focusing on the child’s well-being, safety, and development,

In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In reviewing best-interest evidence, we 

consider nonexclusive factors that the factfinder may apply:

• the child’s desires;

• the child’s current and future emotional and physical needs;

• the current and future emotional and physical danger to the child;

• the parenting abilities of those seeking custody and programs available to 

assist them;

• the parties’ plans for the child, including the stability of the proposed home 

or placement;

• the parent’s acts or omissions suggesting that the existing parent–child 

relationship is inappropriate; and

• any excuse for the parent’s acts or omissions.

7

Father argues as part of the second Strickland prong that, but for counsel’s 

errors––including failing to seek enough information at trial regarding the Holley

factors––the result of the trial would have been different because there would have 

been insufficient facts on which to show that termination was in Janie’s best interest. 

But we cannot speculate on what the record would have shown, only what it does 

show.
7

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Additionally, evidence 

probative of conduct grounds for termination––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).

To determine whether the evidence supporting a finding is legally sufficient, we 

look at all the evidence in the light most favorable to the challenged finding to 

determine whether a reasonable factfinder could form a firm belief or conviction that 

the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that the 

factfinder settled any evidentiary conflicts in favor of its finding if a reasonable 

factfinder could have done so. Id. We disregard all evidence that a reasonable 

factfinder could have disbelieved, and we consider undisputed evidence even if it is 

contrary to the finding. Id. That is, we consider evidence favorable to the finding if a 

reasonable factfinder could, and we disregard contrary evidence unless a reasonable 

factfinder could not. See id.

In determining the factual sufficiency of the evidence supporting a best-interest 

finding, we must perform “an exacting review of the entire record,” In re A.B., 437 

S.W.3d 498, 500 (Tex. 2014), to decide whether a factfinder could reasonably form a 

firm conviction or belief that terminating the parent–child relationship would be in 

the child’s best interest, Tex. Fam. 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 conviction or 

belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.
8

For both types of review, we must remember that the factfinder is the sole 

judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 

(Tex. 2009).

Evidence and Application

Father’s relationship with Mother

Mother met Father when she was nineteen. She said he “stalked” her as she 

was coming out of a store and gave her his phone number. They began a regular 

intimate relationship but were not dating. Although by that time Mother had already 

engaged in sex work on her own, Father became her pimp.

8

 Father discontinued 

contact with her after she told him she was pregnant,

9 and he denied being the child’s 

father. He blocked her number on his phone and provided no financial or other

support. Father frightened Mother a little, and he was emotionally manipulative about 

her giving him the money she made, but she liked the attention he gave her. 

Nevertheless, she felt like he exploited and manipulated her. For example, during the

case’s pendency, she gave Father $7,000 that she had inherited from her father; he 

8

Mother testified that even though she was already engaging in sex work when 

she met Father and that when she was with him she set up her own encounters and 

rates, Father nevertheless took her money, encouraged her to keep her customers 

even if she did not want to have sex with them, and told her she was not making 

enough money. 

9

Mother never wavered from her testimony that although she was engaging in 

prostitution when Janie was conceived, she knew that no one else but Father could 

have conceived the child. The jury was entitled to resolve any inconsistency in her 

testimony. See J.P.B., 180 S.W.3d at 573.
9

kept the money 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 an account for Mother for safekeeping. 

According to Father, he befriended Mother because she told him she was in a 

bad situation; he had sex with her 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 his “services were no longer needed” because she had a support system. 

However, Father also testified that the first time he found out Janie might be his child

was when a Department of Family and Protective Services investigator tried to talk to 

him in 2021. 

Janie was born in late 2019. Two months later, the Office of the Attorney 

General (OAG) sued Father to establish paternity and child support. Father claimed 

not to know about the suit even though the return of service shows that he was 

personally served in January 2020. According to Mother, there was never a hearing 

on the OAG case because of Janie’s removal in June 2021. 

Father initially refuses placement

Janie was an almost eighteen-month-old when she was removed from Mother’s 

care and placed with Foster Father and Foster Mother; the Department had been 

investigating Mother for several months and removed Janie after both Mother and 
10

Janie tested positive for cocaine and methamphetamine.

10 Mother had been forced to 

leave two living arrangements––one with friends and the other with her father––

because of altercations, and at the time of removal was living at Presbyterian Night 

Shelter. Mother was unemployed and could not provide any suitable alternative 

placements for Janie;

11 the Department investigator at first was unable to find Father

after searching “different websites and different social media.”

The investigator eventually found an address for Father, but when he went to 

that address, a man answered and said Father was not there. The investigator left his 

card, and Father contacted him by phone before the investigator could leave the 

premises. When the investigator later met Father at a show-cause hearing, he realized 

that Father was the man who had answered the door that day. 

During the investigator’s call with Father, Father said he did not know if he 

was Janie’s father and that he needed a DNA test.12 When the investigator asked 

10Mother also tested positive for amphetamine and marijuana. Janie’s positive 

test was for “exposure.” The Department investigator testified that such a result is 

problematic because it indicates Janie was present when drugs were being used. 

Because Janie was so young that she was unable to care for and protect herself,

Mother’s drug use would have impaired her ability to make decisions and provide care 

for Janie. 

11At first, Mother would not tell the investigator Father’s name and said she did 

not want him to be part of her life until he got a DNA test. 

12The investigator testified that he was under the impression at the time that a 

DNA test had been requested by the OAG, but it had not yet been conducted. 
11

Father if he would be willing to have her placed with him instead of being removed,13

Father “repeated the same thing[,] . . . that he didn’t know if he was [her] dad.” Three 

times, Father declined the investigator’s request to place Janie with him.

14 Father also 

did not offer any relative placements. The investigator did not make any findings as 

to Father as a result of the investigation. 

Father testified that when he first told the investigator that he did not know 

whether Janie was his daughter, the investigator told Father that he could no longer 

talk to him about the investigation and that Father would need to speak to his lawyer. 

Father said that although “[b]efore court” he did not know whether Janie existed, he 

assumed she was living in “decent” conditions.

Once Father’s paternity was confirmed, he openly expressed his desire to have 

Janie placed in his home. 

Father’s drug use

Father’s paternity was not confirmed until October 2021. Although Father had 

begun visits with Janie before then, the Department had not created a service plan for

13The investigator testified that a DNA test would not have been required for 

Janie to have been placed with Father and that he would have considered Father as a 

placement at that time. 

14Although the investigator set up an initial visit between Janie and Mother, 

which Mother failed to attend, he did not offer the same to Father because Father had 

“told [him] he didn’t know if it was his child. He didn’t want to be a parent.” 
12

him because “he was not present as part of the concerns that [had] brought [Janie]

into care.”

“In late September” 2021, the Department became concerned that Father was

using drugs.15 Mother called the Department’s caseworker16 from rehab and 

expressed her concern about Janie’s being placed with Father because, according to 

Mother, he had used methamphetamine with her “just a few days” before she went to 

rehab. Mother also told the caseworker that Father “was a pimp, so he prostituted 

other women,[17] and he had approached her to work for him.” Mother seemed 

reluctant, hesitant, and scared to give this information18 and asked the caseworker not 

to confront Father with it. At one point, Mother recanted her assertion that Father 

was a pimp, but she later admitted that she had done so out of fear and confirmed to 

the caseworker that she had initially told the truth.19 

15Father also had one misdemeanor conviction for marijuana possession. 

16The caseworker until September 2022 was an Our Community-Our Kids 

(OCOK) contractor for the Department. 

17At trial, Mother said that she did not know of any other women for whom 

Father had acted as a pimp. 

18The caseworker found Mother to be vulnerable, scared, and easily

manipulated. She had a need for ongoing counseling after drug treatment. 

19Mother also told the woman who observed visits with Janie that Father 

“would pressure her to get high with him[ and] to sleep with men for money so that 

she could get him drugs or they could get drugs and do them together while she was 

pregnant.” Mother was afraid of him because he would show up where she lived––

uninvited––and she was afraid he would physically hurt her.
13

In October 2021, the Department drug tested Father. A urine test (UA) was 

positive for marijuana only, but a hair test was positive for both marijuana and 

methamphetamine. Father acknowledged using marijuana, but he denied using 

methamphetamine, explaining that he had consumed an unidentified edible on a trip 

to Las Vegas and thought it could have been tampered with. Later, though, he 

admitted to the caseworker that “he was hanging out with [Mother] during the early 

part of the case and was around her when she was using meth and . . . potentially . . . 

could’ve been exposed to that.” Father again tested positive for marijuana in 

November 2021. 

The caseworker drafted a limited service plan for Father in December 2021, 

after receiving the results of Father’s drug testing. He reviewed the plan with Father

“pretty immediately” but ended up emailing it to Father after he skipped visits. The

caseworker “was worried about [Father’s] involvement with illicit substances[,]

methamphetamine and marijuana,” as well as “his ability to provide proper and safe 

care for” Janie. Although the caseworker requested that Father drug test in January

and April 2022, he did not. 

Father did submit to a drug test in May 2022, and both the hair and UA tests 

were positive for marijuana. Although the caseworker had referred Father to a 

substance-abuse center in December 2021, Father did not call the center until May 26, 
14

2022. The center recommended outpatient services20 and scheduled a time but Father

never went. 

Father failed to take a requested drug test in June 2022.

21 And although he had 

a negative drug test in July 2022, the next month he tested positive for marijuana on a 

hair test but negative on a UA. Father also had a negative UA but positive hair test in 

September 2022. 

Father admitted to the caseworker that he used marijuana but said he was 

trying to leave it behind. The caseworker was concerned about Father’s drug use––

even if he was using only marijuana––because of Janie’s age, at which she required a 

higher level of supervision than would an older child. 

Father’s August 2022 drug and firearm possession

A City of Irving police officer testified that he stopped Father on August 18, 

2022. The car smelled overwhelmingly of marijuana.

22 Father had a firearm in his 

pocket that had one round in the chamber. The officer also found a four-gram

20Father’s drug assessment showed “mild marijuana substance abuse disorder.” 

He never admitted to using methamphetamine. 

21All of the missed tests were presumed positive in accordance with the courtapproved service plan. The caseworker admitted that Father had said he had a hard 

time getting time off work to take a drug test, so the caseworker gave him extra time:

48–72 hours after a request instead of 24–48. 

22Father and his passenger appeared to be a couple. The Department was 

under the impression that she was Father’s sister or friend. At trial, Father called her 

a close family friend, but he admitted lying about her being his sister. 
15

package of THC gummies on the floor of the car in open view.23 As a result, Father 

was charged with felony drug possession and unlawful carrying of a weapon.24 

Officers took Father into custody25 because he had outstanding warrants from three 

different cities––Class C misdemeanors for “no driver’s license, drug paraphernalia, 

[and] failure to maintain financial responsibility.” Nevertheless, during the stop,

Father was “[a]greeable, mild-mannered, [and] compliant.”

Father’s visits with Janie

A Department subcontractor who observed Janie’s visits with Mother and 

Father testified about her impressions. Janie’s first visits were with Father alone for 

the first hour and then Mother for the second hour; later, the two visited for the full 

time together until they were ordered to stop “because they had altercation issues.”26 

Janie “did not know [Father] at all the first visit. She had never met him.”27 For 

around the first two months, Janie cried and was afraid around Father; as visits 

23The officer also found “the very end” of a marijuana blunt or cigarette but did 

not seize it because he was already charging Father with offenses. Although gummies 

can have an odor, the officer assumed the marijuana smell in the car was from the

smoked item rather than the gummies. 

24Father’s service plan required him to refrain from engaging in criminal 

activity. 

25Father never disclosed the arrest to the Department. 

26At trial, Mother testified that she and Father would smoke methamphetamine 

before attending visits together.

27The caseworker also testified that Father had “no involvement” with Janie

before she was placed in foster care. 
16

progressed, her reaction to him was better but there were still “more bad visits than 

good visits when it [came] to crying and her trying to open up with him.” According 

to the observer, Father tried to engage with Janie, but she “never initiated it” and 

“[h]e had to work for everything he got.” In contrast, Janie was “never . . . afraid of”

Mother. She was happy to see her mother, was very vocal, and let Mother touch her. 

Although Father tried, Janie did not interact with him the same way because she “just 

wasn’t as comfortable with him.”

Father came to the first visits with his fiancée; while he was engaged, he visited

consistently. Janie engaged much more with the fiancée, who would give Janie snacks 

and comb her hair. After Father and the fiancée broke up around August or 

September 2021, the visits were “rougher” and inconsistent; once Father went an 

entire month without visiting. Janie “cried a lot more” and “was just totally afraid.”

“The last visit ended like the first visit started” in terms of crying and fear.28 

Nevertheless, Father would engage with Janie, reading to her, working on a sticker 

book, and playing on the floor. Janie would warm up during the latter part of visits

with Father and, after months of consistent visitation, would sit on his lap.

29 

28In contrast, in the last visit the caseworker observed, although Janie was 

hesitant and standoffish at first, she warmed up more quickly than she had during 

some of the past visits, and she and Father were able to play together. In the one 

before that, though, Janie was “pretty hysterical” and wouldn’t go into the visit room 

without Foster Father. 

29At one of the September 2022 visits, the permanency specialist saw Janie

“start[] shaking her head, ‘No,’” when she saw Father walking through the door, and 
17

The Department observer had concerns for Janie’s wellbeing if she were to be 

placed with Father because Janie “was not reacting to him in a way that a child would 

react to a parent if they felt safe and secure.” The Department’s permanency 

specialist30 admitted that the Department can set up transition visits that gradually get 

longer but had not done so here because Father had made no progress on his service 

plan and making behavioral changes. 

Father missed five to six visits between December 16, 2021, and February 3, 

2022, and twelve to thirteen scheduled visits between February 3, 2022, and May 27, 

2022;

31 he also ended the February 3, 2022 Zoom visit early. Father smelled of 

marijuana at the May 27, 2022 visit.

32 But he was allowed to remain because “he 

wasn’t acting as if he was not able to carry out the visit.” Father did not visit again 

until August 31, 2022. Father attended most visits in September and October 2022––

the months before trial––but at one of them, he smelled like marijuana. He missed 

it “was very difficult to get her into the visit room.” At another, Father was more 

hands off, but this concerned the permanency specialist because, as an almost threeyear-old, Janie needed him to try to engage her. The visit after that was better because 

Janie started with Mother first. 

30The OCOK caseworker left employment in September 2022, at which point a 

Department permanency specialist took over. 

31In April 2022, the caseworker had warned Father that he needed to “get 

going” if “he truly want[ed]” Janie “in his care.”

32He brought one of his other children to that visit. The caseworker admitted 

Father was “starting to show more engagement [at that time] than he had in months 

past.” 
18

two of the scheduled visits and left early from one. 

Father told the caseworker that “he had intentionally disappeared from the case 

with his reasoning being that he thought [Janie] was going back to [Mother,] and he 

thought that he was stepping out of the way to let that happen.” This concerned the 

caseworker because disappearing if Janie were returned to Mother did not “show a

desire to want to be a father to” Janie.

Father’s living arrangements

When the caseworker first visited Father, he was living in an apartment with 

two of his children33 and their mother (Roommate); Father was not in a romantic 

relationship with Roommate at the time. However, Father was engaged 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 

children, a five-year-old and three-year-old. Later, “[i]t was just a choice”: “It’s the 

fact of me wanting to be around my kids because . . . I have ten kids. And anyone 

that knows, my kids mean so much to me primarily. So, yes, that’s why I was there, to 

have as much contact with my children as possible.” 

Although the caseworker visited Roommate’s apartment in August 2021, 

Father indicated at that time that Janie would be coming to live in his fiancée’s home, 

33Janie is Father’s eleventh child. Father has no Department history with any 

child but Janie. 

34In counseling Father and his fiancée, the Department observer had 

recommended that Father move out of Roommate’s home. 
19

so the caseworker inspected that home in October 2021. The caseworker did not visit 

with Father in person from November 2021 to January 2022. It was not until “very

much later” that Father told the caseworker that he and his fiancée had broken up. 

The caseworker had difficulty communicating with Father and setting up 

monthly home visits. When trying to call Father, he often received a no-workingnumber message. 

Eventually, the caseworker was able to inspect Roommate’s apartment;

although it was “dirty and unkempt,” there were “no major safety concerns.” Father’s 

two children living there appeared to be well cared for. Father’s drug use did not 

concern the caseworker as much regarding those children because their mother was 

there and she was their primary caretaker. However, the caseworker thought that “at 

times [Father] would be left with them to care for them maybe throughout portions

of the day.” 

The caseworker concluded that although Father was living in safe housing, it 

was not stable because Father was “moving from place to place, woman to woman.” 

Father’s explanations at trial

Father testified that he never had the chance to offer family members as 

alternative placements and asserted that some of his recommended placements would

pass a background check. According to Father, his caseworker was not as open with 

him as with Mother. Father was under the impression that Janie was to have been 

placed with him once the DNA test confirmed his paternity. 
20

Father testified that in early 2022, he ran over his phone, so he was without

phone access for two to two-and-a-half months. He could not contact anyone and 

could only access email at work. 

Father blamed his missing visits on his lack of a phone and inability to contact 

the Department. But he also claimed that he stopped visiting Janie and working 

services because the Department had refused to accommodate his employment 

change that necessitated a new visitation date and time. He missed the visits “in order

to continue with [his] life.” Father said that he had trouble communicating with and 

getting help from his caseworker, particularly with respect to visits; according to 

Father, the caseworker would not accommodate his schedule because it was not 

conducive to the foster parents’ schedule. 

Father denied not being allowed to visit Janie, or having a visit with her cut 

short, because the Department representatives thought he smelled like marijuana. He

claimed that the Department would often deny him visits when he did not confirm 

the required twenty-four hours in advance, even if only a half hour late. He also 

claimed that the visit schedule affected his ability to work, blamed the Department for 

never offering weekend visits, and said that his initial visits with Janie were scheduled 

with the observer’s and Mother’s convenience in mind, not his. 

Father said his first visits with Janie were “rough” but got better after he asked

the foster parents not to remain in the room with her when he came in because she 

would keep looking to them for comfort. Once they started leaving the room before 
21

Father arrived, Janie started playing with him “instantly.” Father also claimed to have 

had trouble visiting because he did not own a car and the Department would help 

only Mother with transportation. 

Father said that although he made the initial contact for the drug assessment,

he did not attend any meetings because the recovery center never called him to set 

them up. But Father admitted that he had not stopped using marijuana sooner 

because he thought he could get away with it. He blamed his October 2021 positive 

methamphetamine test on being physically near Mother when she was smoking; he 

estimated this contact had been around June 2021. 

Overall, Father blamed the Department for his confusion and failure to 

complete services;

35 he did not know that his court-appointed attorney could have

helped him navigate the process. Father claimed he never saw his service plan and 

that he knew to attend the FOCUS for fathers class36 and schedule the drug 

assessment only because the caseworker had texted him to do so. He said the only 

thing the Department had told him to do was to make sure Janie had a private room 

in the home where he was living. 

Father felt that Mother had been provided more opportunities to help get Janie

back, and he had “begged for” more. He also felt that he had been treated unfairly 

35The permanency specialist agreed that there had been instability with the 

caseworkers, but she did not see any reason Father should have been confused about 

what was expected of him. 

36By the time of trial, Father had completed this course. 
22

throughout the process and had to always accommodate the foster parents. 

Nevertheless, Father thought he had “done a great job” trying to work his services. 

Father testified that he began carrying a gun––which he said was “legal”37––

after December 2020, when he was robbed and shot at a game room where he was 

working. 

Father’s situation at the time of trial

Roommate’s apartment had three bedrooms and was located in a gated 

community. Janie would have her own bedroom. Father testified that there were 

several daycares, an elementary school, and a bus stop around his residence. He had 

support from his aunts and his mother, who he said would also be good placements 

for Janie. He offered his sister and brother as placements. Father said he and his 

family were willing to shift their lives for Janie. According to Father, Roommate

could also help with Janie. 

Father had a “continuing relationship” with all of his other children. He said 

he had “raised” them “from [birth] until they went to school.” Father detailed the 

time he spent with the two children with whom he lived. Father also testified about 

some of the concepts he had learned at the fathers class, which was about how to be a

better man, not just a better father. Father said he and Janie had grown together and 

37Yet Father admitted that on March 6, 2020, while driving with four children 

in the car (none of them Janie), Fort Worth police pulled him over. When he exited 

the car, he told the officer he had a weapon under his seat. But Father denied that the 

officer found drugs. 
23

that she would be “primarily [his] child.” He acknowledged that he would have to 

change “a lot of [his] life decisions” for her to be placed with him. 

Father worked seasonally as a basketball coach38 and tax preparer. At the time 

of trial, Father worked 60–70 hours a week as a Subway manager. He said he would 

be working from 6 a.m. to 2:30 p.m. at Subway and 2:30 p.m. to 1:30 a.m. at the tax 

preparation office. But he would change work drastically if Janie were placed in his 

care, not going to the tax preparing job but doing tax preparation at home instead. 

Father testified that his annual income was between $60,000 to $70,000 per year. 

Father acknowledged that he had five or six active child-support cases with the 

OAG. At the time of trial, he paid $39439 a week in child support. Nevertheless, he 

was around $10,000 in arrears on all of the cases combined. He also gave one of the

mothers $250 every month for that child’s private-school tuition. 

After initial improvement, Mother started using drugs again

Mother found out during the case that she was pregnant with another child. 

That child was also placed with Janie’s foster parents. While Janie’s case was pending,

Mother went to rehab and showed some improvement, but then she continued to use

drugs, could not provide a safe environment for Janie, was unemployed, failed to

38Although Father never documented employment for the Department, his 

testimony about the jobs he worked comports with the caseworker’s. Father told the 

caseworker that he often worked two jobs during the case. 

39Father testified that he paid five different weekly amounts on five different 

cases––$79, $58, $64, $72, and $54. Although these amounts total $327, not $394, the 

fact remains that Father is obligated to pay a significant weekly child-support amount.
24

complete her service plan, and lived in a shelter because she could not maintain stable 

housing. She shifted her focus from trying to have Janie returned to her and instead 

worked on trying to have her son returned to her. 

Foster Father and Foster Mother40 interaction with Janie

Janie had a six-month speech delay when she was first placed with the foster 

parents, but she improved after working with a specialist, and by the time of trial, she 

was “several months” ahead. In the beginning, she had trouble regulating her 

behavior “for someone of her age.” She was also slightly overweight. 

Foster Father testified that, at first, he and Foster Mother tried to encourage

Mother when she was doing well; they wanted her to get better and get Janie back. 

They understood that even though Janie’s brother had been placed with them, Mother 

was trying to get him back, and they wanted that to happen. 

Foster Father testified that, to him, Janie was his daughter. She called him 

Daddy and Foster Mother Mommy. Mother testified that Janie loved her foster 

family and knew the parents as Mommy and Daddy. They sent Mother pictures “all 

the time” and Janie was happy.

The foster parents’ plans for Janie were for her to stay in daycare and then go 

to public school, continue in extracurricular activities, go to college, and “have a 

normal life.” Both foster parents were employed with “very flexible work schedules.” 

Foster Father did not think Mother and Father could provide such an environment; 

40The foster parents intervened in the case. 
25

he also thought that uprooting Janie from “her home” and “normalcy” would be 

traumatic. The caseworker testified that the foster parents were “very active with” 

Janie, involving her in extracurricular activities such as swimming; they also took her 

on vacations. 

Mother understood that she would have some kind of visitation with Janie if 

the foster parents were to adopt her; she did not know what arrangement, if any, they 

had with Father. Foster Father and Foster Mother thought it was in Janie’s best 

interest for Mother to have a “lifelong and continued” relationship with Janie. They 

had tried to talk to Father about open adoption. Foster Father did not believe it was 

in Janie’s best interest “not to know” Father. 

Mother’s interactions with the foster parents were “[a]micable, pleasant, [and] 

friendly.” They were supportive of Mother and planned to facilitate an appropriate

relationship with Janie and Mother, which the caseworker thought was in Janie’s best 

interest because of her bond with Mother. He thought Mother was “making a 

sacrificial decision . . . in favor of [Janie’s] best interest over [Mother’s] own personal 

interest.” Father’s interactions with them were “friendly in a professional way.”

Foster Father testified that Janie is a different ethnicity from the foster parents

and that he and Foster Mother had taken classes on cultural competency and how to 

help Janie learn about her heritage and unique needs. For example, the visit observer 

testified that they had asked her and others for advice on how to properly style Janie’s

hair. 
26

Witnesses’ best-interest opinions

Although the Department would have looked to Father for placement at the 

beginning of the case, by August 2022, it recommended termination of rights. The 

caseworker, permanency specialist, and visit observer all thought that Father’s missing 

visits contributed to his lack of relationship with Janie. They also did not see 

continued improvement; Father continued to test positive on drug tests, and his

August 2022 arrest raised concerns about his carrying a firearm. The caseworker and 

permanency specialist thought it would be traumatic for Janie to be taken away from 

the foster parents because of their bond. The Department was also concerned with 

Father’s lack of stable relationships: “[W]hat would happen if he leaves one of his 

girlfriends and has to move somewhere else? Who’s going to be the main caregiver 

for [Janie] if he were to have her in his possession?” 

Mother thought taking Janie away from the foster parents would confuse and 

traumatize her. Mother did not believe that Father could provide Janie with a safe 

and stable future, and she was afraid that Janie would become too easily attached to 

women who were not a long-term part of Father’s life. Mother thought that adoption 

by the foster parents was in Janie’s best interest even though that meant terminating

her rights and even if Mother were never allowed to visit Janie. 

Father thought the foster parents had done a wonderful job and was grateful 

for their involvement with Janie. He testified that he would allow them visitation if 

Janie were placed with him.
27

Analysis

Based on the foregoing, whether viewed in the light most favorable to the 

jury’s best-interest finding or neutrally, we hold that the jury could have found by 

clear and convincing evidence that termination of the parent–child relationship

between Father and Janie was in Janie’s best interest. Under both applicable 

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

evidence, in context, supports the jury’s finding:

• (Second Holley factor)41 Janie needed a stable home and engaged parents

who did not use drugs. Her speech-therapy needs had been met. And the 

evidence showed that Father and the foster parents could both provide a 

physically secure living environment. But Father failed to consistently visit 

Janie to establish a relationship with her, and she had not had any contact with 

Father’s proposed placements. Also, removal from the foster parents’ care 

risked causing Janie emotional trauma and upsetting her stability.

• (Third Holley factor) Father’s lack of desire to stop using marijuana could

continue to endanger Janie. As the caseworker testified, Janie was still at an age 

where she required intensive supervision, and marijuana use can impair a 

parent’s judgment. And Father’s carrying a loaded gun around his other 

children and while this case was pending––and while continuing to use drugs––

created both emotional and physical risks for Janie. 

• (Fourth Holley factor) Although there was not much evidence about the 

foster parents’ or Father’s parenting abilities and programs available to assist 

them, there was testimony that the foster parents had addressed Janie’s speechtherapy needs and had taken advantage of cultural competency classes and

other opportunities to learn about and expose Janie to her ethnic heritage. 

They made sure she had access to extended family and other children. Their 

bond with her was a loving and close one. Father had a good relationship with

his other children and contributed to their care, whether through court-ordered 

support, paying for their schooling, or providing supervision. Nevertheless, he 

was in arrears on child support, and evidence supported a conclusion that he 

41Janie was not old enough to express her desires (first Holley factor).
28

was willing to let others take primary responsibility for child-rearing, including 

with respect to Janie.

• (Fifth Holley factor) The foster parents had been married for six years. They 

wanted to give Janie a stable and secure home and, after daycare, to send her to 

public school and eventually to college. They hoped to have access to college

funds through the Department. They also wanted to continue engaging Janie 

in extracurricular activities. Father wanted Janie to attend school near the 

apartment where he lived and to get to know his family and other children, yet 

he had introduced Janie to only one of them. 

• (Sixth Holley factor) Mother admitted that continuing as Janie’s parent was 

not in Janie’s best interest. After his initial denials, Father consistently wanted 

to have Janie placed with him. But he never stopped using drugs, never 

attempted drug treatment, never provided the Department with suitable 

placement alternatives, continued to live with Roommate, failed to consistently

visit Janie, continued to carry a weapon on his person while driving, and 

blamed his failures on the Department. Although Father claimed to be an 

active parent, his conduct showed a willingness to let others take primary 

responsibility for his children. The jury was entitled to believe not only that 

Father had sex with Mother knowing she was a prostitute and that she could

conceive a child, but also that Father had no regard for continuing to conceive 

children with women with whom he did not intend to maintain a long-term 

relationship. Moreover, Father neglected to consistently visit Janie. 

• (Seventh Holley factor) The jury did not have to believe any of Father’s 

excuses for his failure to work services and to visit Janie consistently, 

particularly in light of his admissions that he lied to the caseworker and 

permanency specialist during the case. Likewise, the jury did not have to 

believe that Father did not know he was possibly Janie’s father, particularly in 

light of the existence and service of the OAG’s paternity suit. Finally, the jury 

could have concluded that Father did not want to actively parent Janie, 

considering his continued drug use after she came into the Department’s care, 

all while caring for two other children and being in arrears on child support. 

Conclusion

We conclude that even if counsel’s failure to preserve Father’s sufficiency 

complaints constituted deficient performance, prejudice cannot be shown because the 
29

evidence is both legally and factually sufficient to support the jury’s best-interest 

finding. Thus, we overrule Father’s sole, ineffective-assistance complaint, and we 

affirm the trial court’s judgment. 

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: May 25, 2023