Court of Appeals of Texas, Fourth District, San Antonio
IN THE INTEREST OF F.L.H. IV and D.H., Minor Children
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA01447 Honorable Stephani A. Walsh, Judge
Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini,
Justice Patricia O. Alvarez, Justice
Patricia O. Alvarez, Justice
an accelerated appeal of the trial court's order
terminating Appellant Dad's and Appellant Mom's
parental rights to their children, F.L.H. IV and D.H.
their appeals, both Mom and Dad contend the evidence is
neither legally nor factually sufficient for the trial court
to have found by clear and convincing evidence that
terminating Dad's and Mom's parental rights was in
F.L.H. IV's and D.H.'s best interests. See
Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2016).
In her appeal, Mom also contends that, pursuant to
Strickland v. Washington, 466 U.S. 668
(1968), her trial counsel provided ineffective assistance
that seriously prejudiced her case.
we conclude the evidence is legally and factually sufficient
to support the trial court's finding that termination of
both Mom's and Dad's parental rights was in the
children's best interests, and Mom failed to meet her
burden under Strickland, we affirm the trial
court's order terminating Mom's parental rights.
and Procedural Background
September 27, 2014, the Texas Department of Family and
Protective Services received a referral alleging negligent
supervision of newborn F.L.H. IV by Mom and Dad. F.L.H. IV
was left in the care of Mom's cousins, ages twelve and
four. The twelve-year-old was observed to be under the
influence, Dad tested positive for methamphetamines and
amphetamines, and Mom tested positive for benzodiazepines
without a prescription.
December 19, 2014, after completion of services, the
Department closed the case as "risk was reduced."
Mom was pregnant; F.L.H. IV was placed in Dad's care. On
July 31, 2015, the Department received a subsequent referral
alleging negligent supervision of newborn D.H. After Mom
tested positive for benzodiazepines at the time of D.H.'s
birth, she admitted to taking a prescription that was not
27, 2016, the Department received a new referral alleging
negligent supervision of twenty-one-month-old F.L.H. IV. Dad
and F.L.H. IV were living at Haven for Hope, a homeless
shelter and transitional center, when Dad tested positive for
amphetamines and methamphetamines on June 24, 2016; a
subsequent referral was made to the Department following a
second positive drug test on June 30, 2016. Dad acknowledged
his drug use. On July 5, 2016, the Department filed its
Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship. Following an emergency order, the
Department was named temporary managing conservator of F.L.H.
the first week of August 2016, three additional referrals
were received by the Department with allegations of
neglectful supervision of D.H., by Mom and Dad. The reports
alleged Mom was using unprescribed Xanax and
methamphetamines. On August 6, 2016, Dad stopped a law
enforcement officer. Dad reported he was high on
methamphetamines while taking care of his one-year-old
daughter, D.H. Dad told the officer that Mom left D.H. in his
care and that he was not supposed to have contact with her
due to his ongoing drug abuse. On August 15, 2016, the
Department filed its First Amended Petition for Protection of
a Child, for Conservatorship, and for Termination in Suit
Affecting the Parent-Child Relationship. Following an
emergency order, the Department was also named temporary
managing conservator of D.H.
26, 2017, the case was called to trial. Following an
extensive hearing, and multiple witnesses, the trial court
signed an Order of Termination terminating Mom's parental
rights to F.L.H. IV and D.H. pursuant to Texas Family Code
sections 161.001(b)(1)(D), (E), (F), (N), (O), and (P) and
Dad's parental rights pursuant to sections
161.001(b)(1)(D), (F), and (O). See Tex. Fam. Code
Ann. § 161.001(b)(1)(D), (E), (F), (N), (O), (P). The
trial court made further findings that termination of both
Mom's and Dad's parental rights was in the
children's best interests. See id. §
161.001(b)(2). The trial court named the Department as the
children's permanent managing conservator.
appeal, both Mom and Dad contend the trial court erred in
determining termination of their parental rights was in the
children's best interests. Additionally, Mom contends she
received ineffective assistance of counsel.
turn first to Mom's and Dad's claims that termination
of their parental rights was not in the children's best
that Termination of Parental Rights in the Children's
Standard of Review
termination of parental rights involves fundamental
constitutional rights and divests the parent and child of all
legal rights, privileges, duties, and powers normally
existing between them, except for the child's right to
inherit from the parent." In re L.J.N., 329
S.W.3d 667, 671 (Tex. App.-Corpus Christi 2010, no pet.)
(citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985)). As a result, appellate courts must strictly
scrutinize involuntary termination proceedings in favor of
the parent. Id. (citing In re D.S.P., 210
S.W.3d 776, 778 (Tex. App.- Corpus Christi 2006, no pet.)).
order terminating parental rights must be supported by clear
and convincing evidence that (1) the parent has committed one
of the grounds for involuntary termination as listed in
section 161.001(b)(1) of the Family Code, and (2) terminating
the parent's rights is in the best interest of the child.
See Tex. Fam. Code Ann. § 161.001; In re
J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'Clear
and convincing evidence' means the measure or degree of
proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations
sought to be established." Tex. Fam. Code Ann. §
101.007 (West 2014); J.F.C., 96 S.W.3d at 264.
is a strong presumption that the best interest[s] of the
child[ren] [are] served by keeping the child[ren] with
[their] natural parent, and the burden is on [the Department]
to rebut that presumption." In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no
pet.). "The same evidence of acts or omissions used to
establish grounds for termination under section
161.001[(b)](1) may be probative in determining the best
interest of the child." Id.
clear and convincing evidence standard applies, a legal
sufficiency review requires a court to "look at all the
evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was
true." In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting J.F.C., 96 S.W.3d at 266). If the
court "determines that [a] reasonable factfinder could
form a firm belief or conviction that the matter that must be
proven is true, then that court must conclude that the
evidence is legally [sufficient]." See id.
(quoting J.F.C., 96 S.W.3d at 266). This court must
assume "the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so. A
corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could
have disbelieved or found to have been incredible."
J.F.C., 96 S.W.3d at 266.
clear and convincing standard, evidence is factually
sufficient if "a factfinder could reasonably form a firm
belief or conviction about the truth of the State's
allegations." In re C.H., 89 S.W.3d 17, 25
(Tex. 2002); accord In re K.R.M., 147 S.W.3d 628,
630 (Tex. App.-San Antonio 2004, no pet.). We must consider
"whether disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in
favor of its finding." J.F.C., 96 S.W.3d at
266; accord C.H., 89 S.W.3d at 25. "If, in
light of the entire record, [unless] the disputed evidence
that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, . . . the
evidence is factually [sufficient]." J.F.C., 96
S.W.3d at 266.
Testimony Elicited during the Termination Hearing
trial court heard from several witnesses over a two day
period. The relevant testimony is set forth below.
described a very contentious, violent relationship between
her and Dad. She contends she stopped dating Dad after F.L.H.
IV was born. In September of 2014, Mom explained that Dad
called the Department after she left newborn F.L.H. IV alone
with her twelve-year-old cousin. Mom contended she completed
the Department's service plan; she further denied using
benzodiazepines at the time or that Dad was awarded custody
of F.L.H. IV. She testified, "[Dad] kidnapped [F.L.H.
suggested during her testimony that D.H. was the result of
Dad raping her; she then clarified, "it wasn't
really a rape thing. It just happened." In July of 2015,
Mom tested positive for benzodiazepines at the time of
D.H.'s birth. She admitted taking a prescription for
benzodiazepines that was not hers. Dad was present at
D.H.'s birth, but had not seen her since that time. Mom
testified that when D.H. was seven or eight months old, Dad
called and told Mom that he was admitting himself into a
rehabilitation facility and asked if she would bring D.H. to
see him. She agreed and met Dad at a hotel. Mom continued
that the following morning, Dad told her that he was leaving
with D.H. to pick up a bottle at the house. Instead, Dad gave
the baby "to the cops and tells them a lie."
testified that when Dad did not come back to the hotel room,
she tried to find him at several different stores. "I
didn't see him at any of the stores, I already knew,
like, he kidnapped her, my other baby again." She did
not call the police and denied knowing that Dad was using
drugs at the time. When the Department asked why she was not
in the hotel room when the police came back to the room
looking for her, she explained that she "must have been
looking in the stores for D.H." Mom adamantly denied
using methamphetamines, or other drugs, that day or the day
her testimony, Mom acknowledged two prior theft arrests, but
denied a previous arrest for possession of a controlled
substance. When pushed, Mom conceded, "I was at the
wrong place at the wrong time." Mom was adamant that she
did not have a drug problem and explained that her positive
drug test on March 30, 2017, for amphetamines,
methamphetamines, opiates, and benzodiazepines as, "I
fell once." Mom also denied missing court-ordered drug
tests. When asked why she failed to appear for the
hair-follicle drug test, Mom testified that she lost her
wallet and did not have the necessary identification.
Additionally, Mom denied that her caseworker ever sent her
for a drug evaluation because "she did not have a drug
problem." During her testimony, Mom denied using
methamphetamines, amphetamines, or benzodiazepines and agreed
to be drug tested during the lunch break.
her ability to provide for her children, Mom testified that
she works part-time helping with the elderly. They are family
friends; she works approximately three hours per week and
they pay her $100.00. Through her counsel, Mom offered
certificates for parenting classes, alcohol and substance
abuse support group attendance verification, Alcoholics
Anonymous attendance, and Narcotics Anonymous classes. Mom
also testified that she never missed a visitation; on one
occasion, however, she arrived five minutes late and they
sent her home. As for living arrangements, Mom testified that
the children would live with her at her mother's house.
On cross-examination, Mom acknowledged her sister, who
suffers from untreated bipolar disorder and schizophrenia,
also lives with her mother.
the lunch period, Mom submitted to the court-ordered drug
test. The results were positive for opiates. When asked about
her positive drug test, Mom acknowledged taking a pain pill
due to pain stemming from the epidural during her c-section
with D.H. On cross-examination, the attorney inquired whether
the pills were prescribed to her. Mom replied, "I
don't remember going to the doctor, no."
admitted to using methamphetamines beginning in 2002. Dad
acknowledged it was a series of choices that put his children
in danger. "I made a bad choice to use. And I'm
accountable for that. I am a recovering addict." He also
admitted using in a convenience store bathroom, while F.L.H.
IV was in a stroller. He testified that he knowingly kept
methamphetamines in his van, while driving F.L.H. IV. After
being released from rehab, Dad acknowledged one relapse. He
was adamant about his honesty. He did not test positive, but
he told his probation officer that he had been using drugs.
Dad explained that he is committed to recovery-"Recovery
is a lifetime."
August of 2016, the Department removed F.L.H. IV from
Dad's care and F.L.H. IV was placed with Dad's
brother. Dad decided to return to the Victory Gospel, a
spiritual recovery for people with drug and alcohol problems.
But before he re-entered the ministry, he called Mom and
asked to see D.H. Mom agreed and they met at a hotel. Dad
testified that while they were together, he saw Mom use
"heroin, narcos, [X]anax, footballs, and blue
bars." Dad further testified that he and Mom used
methamphetamines together on several occasions.
following morning, Mom told him that she had things to do and
left. Dad recognized that he should not be alone with D.H.
while he was under the influence of a controlled substance.
He left to call his uncle, but no one answered. He walked out
to the street and saw an officer. He decided to hand the baby
to the officer.
several points during his testimony, the trial court noted
that Dad was crying one minute and laughing the next. Dad did
not recall the Department asking him to see a psychiatrist.
He does not think he has a psychiatric problem and denies
being told by several people associated with the Department
of his bipolar diagnosis. He acknowledges that he is
overanxious and easily excited, but he contends that he has
normal, rational thinking. Dad believes his recovery has
provided clarity; he is just an emotional person. He hurts
and he has pain, "but it's not all over the place.
I'm actually a lot better." Dad explained that he
has learned through his two-year spiritual background that
"the Devil gets you in your mind, in your
addiction." Dad also explained his lens-less glasses are
a spiritual reference; "it's a characteristic that
no one else does. And the spiritual significance behind that
is I'm not of this world. I'm trying to find
something, if I'm not of this world, that I do and
normally from other people. I don't just do things to do
regard to the different services, Dad testified that the
Department did not want him to take parenting classes; he was
told "your protective skills are over the roof. So you
don't need parenting skills." He believes that he
has missed one or two visits with the children. He has worked
at Age Industries for seven years and earns $10.00 per hour
and typically works forty hours per week. He is attending
Narcotics Anonymous and he is starting to enjoy his life and
he misses "his babies." Dad explained the children
have been in his brother's and sister-in-law's
custody since the Department's removal in August of 2016.
He acknowledges the children are doing very well, but he does
not think that he should lose his parental rights.
Sanchez is the Department investigator that handled the
removal of F.L.H. IV. She testified that she received a
referral on June 27, 2016, for alleged neglectful supervision
by Dad. Dad tested positive for methamphetamines on two
occasions. She described Dad as hyper and displaying unusual
eventually made contact with Dad at the Haven for Hope
shelter. He admitted snorting methamphetamines the previous
weekend and every weekend for the past four months; he also
described using methamphetamines in a gas station bathroom
while F.L.H. IV was in a stroller. Dad also told Sanchez that
he kept the drugs in a speaker in his van.
Sanchez asked Dad about his drug use, he told her that it was
"okay for him to use." "He stated that the
devil would whisper to him telling him it was okay to use as
his child would be safe and wouldn't be harmed if he did
use." Throughout the two hour interview, Dad's
behaviors were very erratic; he would cry, then start
laughing, he could not sit down; he would get angry, and then
start laughing again. Sanchez testified that Dad made her
uncomfortable to the point that she ensured staff members
were able to hear what was happening in her office.
Lincoln, an investigative caseworker with the Department,
removed D.H. The original referral was for neglectful
supervision following Mom testing positive for
benzodiazepines at the time of D.H.'s birth. Mom admitted
taking prescription medication that was not prescribed to
Dad's handing D.H. to the police officer, Lincoln
contacted Mom. Mom was very upset and reported that Dad
"had taken [D.H.] from her and then got her
removed." Mom refused to submit to drug testing.
explained that, although she knew she was not supposed to be
around Dad, she agreed to take D.H. to see Dad before he
entered the rehabilitation facility. They met at the hotel
and stayed that night. Mom acknowledged that she brought him
a bag of "ice [methamphetamines], " but was adamant
that she did not use drugs that night. Mom reported D.H. was
at the hotel the entire time that Dad was using; Dad told her
that he had used one week prior to that night.
testified Dad reported they woke the next morning and Mom
told him that she was hungry. Dad tried to give her D.H., but
Mom told him to take D.H. with him. "As he was walking
out of the hotel room, [Mom] was laughing at him, but
couldn't explain why." When he returned, Mom was
gone, and so were all of his belongings. Dad also
acknowledged knowing that he and Mom were not supposed to be
around each other. Dad explained that he realized that he was
still under the influence, so he flagged down a police
officer. He handed D.H. to the officer, he told the officer
that he was not supposed to have the baby, and that he was
under the influence of methamphetamines.
described D.H. as "very dirty . . . her eyes, her ears.
She appeared to have some kind of infection going on. She had
a severe diaper rash."
Lofton, the Department caseworker for both F.L.H. IV and
D.H., testified that at the time of the hearing, F.L.H. IV
was almost three-years-old and D.H. was almost two-years-old.
Both children were living with Dad's brother and his wife
and doing very well. F.L.H. IV was receiving behavioral
therapy for acting out and his speech had improved
significantly; D.H. was walking. Lofton further testified
that the paternal uncle and aunt were willing to be a
permanent home for both F.L.H. IV and D.H., but only if the
trial court terminated Mom's and Dad's parental
testified that she personally reviewed the court-ordered
service plans with both parents. Mom signed her service plan,
but Dad refused to sign because his ...