In the Interest of S.N.R-T., A/K/A S.R-T., S.J.R-T., A/K/A S.T., D.G.R-T., A/K/A D.T., A.G.R-T., A/K/A A.T., E.U.T.M., A/K/A E.T., Children v. Texas Department of Family and Protective Services

Affirmed and Memorandum Opinion filed November 14, 2023.

In The

Fourteenth Court of Appeals

NO. 14-23-00358-CV

IN THE INTEREST OF S.N.R-T., A/K/A S.R-T., S.J.R-T., A/K/A S.T.,
D.G.R-T., A/K/A D.T., A.G.R-T., A/K/A A.T., E.U.T.M., A/K/A E.T.,
CHILDREN

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2022-00674J

MEMORANDUM OPINION

Appellant K.C.T.M. (“Mother”) appeals an order terminating her parental
rights to her son E.T. and appointing appellee the Department of Family and
Protective Services (“the Department”) as the sole managing conservatorship of
her other children, S.T., R.T., D.T., and A.T. In five issues we have reorganized as
four, Mother argues: (1) the trial court erred when it overruled Mother’s
evidentiary objections; (2) the evidence is legally and factually insufficient to
support the termination of her parental rights under Texas Family Code
§ 161.001(b)(1) subsections (D) and (O); (3) the evidence is legally and factually
insufficient to support a finding that termination of Mother’s parental rights was in
E.T.’s best interest; (4) she received ineffective assistance of counsel; and (5) the
trial court erred when it denied a request for an extension and continuance. We
affirm.

I. BACKGROUND

On April 20, 2022, law enforcement responded to Mother’s apartment based
on reports that her five children were alone at her apartment in the middle of the
day.1 That same day, the Department received a referral alleging Mother’s
neglectful supervision of the children and took all five children into its care.

On April 22, 2022, the Department filed its original petition for protection of
the children and for termination of the parent-child relationship. In its live
pleading, the Department sought the termination of Mother’s parental rights to all
the children pursuant to § 161.001(b)(1) subsections (D), (E), (K), (L), (N), and
(O). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (K), (L), (N), (O).

On April 11, 2023, the Department’s claims were tried to the bench. The
Department and the ad litem requested that the trial court retain the suit on the
court’s docket and set a new dismissal date to give Mother more time to complete
all the tasks required in her family service plan, but the trial court refused the
request. See id. § 263.401. The Department and the ad litem requested that the trial
court terminate Mother’s parental rights to E.T. to allow E.T. to be adopted by his
foster mother (“Foster Mother”) and requested the appointment of the Department
as the permanent managing conservator of the other four children.

The trial court received testimony from Mohamed Boima (“Boima”), the

1
At the time the children were removed from Mother’s care, S.T. was eight years old,
R.T. was five years old, D.T. was three years old, A.T. was one year old, and E.T. was three
months old.

2
Department’s case worker for Mother’s case since January 19, 2023; Erika
Arguelles (“Arguelles”), the guardian ad litem for the children; Foster Mother; and
Mother. The trial court also admitted exhibits, including the Department’s affidavit
in support of removal of the children, the Department’s family plan for Mother,
two status hearing orders, a report to the trial court from Arguelles, and a
permanency report submitted to the court.

On May 9, 2023, the trial court entered an order terminating Mother’s rights
to E.T. pursuant to § 161.001(b)(1) subsections (D) and (O) and appointing the
Department as the sole managing conservator of E.T. because the court found that
the appointment of Mother would significantly impair the children’s physical
health or emotional development.2 See id. § 263.404. On June 12, the Department
filed a motion for judgment nunc pro tunc, arguing that S.T., R.T., D.T., and A.T.
were inadvertently not named in the final decree and that the decree should be
amended to name the Department as the managing conservator for these four
children.3 On July 19, 2023, the trial court signed a decree “nunc pro tunc,” adding
that the other four children were placed in the sole managing conservatorship of
the Department because the trial court found that the appointment of Mother would
significantly impair the children’s physical health or emotional development and

2
The trial court also terminated the parental rights of the children’s fathers. They are not
parties to this appeal.
3
After a trial court loses its plenary power over a judgment, it can correct only clerical
errors in the judgment by a judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231
(Tex. 1986); see Tex. R. Civ. P. 316, 329(f). A clerical error is a discrepancy between the entry
of a judgment in the record and the judgment that was actually rendered. See Andres v. Koch,
702 S.W.2d 584, 585 (Tex. 1986). If the trial court signs a corrected judgment while it has
plenary power, then the trial court signed a modified judgment, not a judgment nunc pro tun. See
Alford v. Whaley, 794 S.W.2d 920, 922 (Tex. App.—Houston [1st Dist.] 1990, no writ). Here,
Mother filed a motion for new trial on June 8, 2022, which extended the trial court’s plenary
power to the date of the filing of the Department’s motion for judgment nunc pro tunc. See Tex.
R. Civ. P. 329b. Mother does not raise any issue concerning the trial court’s entry of the
modified judgment and its order granting the Department’s motion for judgment nunc pro tunc.

3
removing E.T.’s reference in that section of the order. Mother filed a motion for
new trial, arguing that she received ineffective assistance of counsel during trial.
Mother also filed an unopposed motion to supplement her motion for new trial.
The trial court did not rule on either motion. This appeal followed.

II. EVIDENTIARY OBJECTIONS

In her first issue, Mother argues that the trial court erred when it overruled
her hearsay objections to the Department’s removal affidavit and Arguelles’s
report to the court which detail the events of the day the children were removed
and the subsequent investigation. As such, Mother argues, there is no evidence
because these documents “were the Department’s only evidence of the facts
asserted therein . . . .”

Here, Mother failed to identify the statements in the eight-page removal
affidavit and Arguelles’s four-page report to the court that she challenged as
hearsay, and thus, she failed to preserve this complaint for review. See In re
M.T.R., 579 S.W.3d 548, 569 (Tex. App.—Houston [14th Dist.] 2019, pet. denied)
(“A hearsay objection that does not identify which parts of a document contain
hearsay is not sufficiently specific to preserve error with respect to those parts.”).
Furthermore, Mother failed to object to Boima’s testimony and other exhibits
containing the same facts. Finally, Mother also introduced evidence of most of the
same facts through her own testimony. Thus, we overrule Mother’s first issue. See
id. at 570 (“When evidence identical or similar to the objected-to evidence is
admitted elsewhere without objection, there is no harm.”).

III. SUFFICIENCY OF THE EVIDENCE

In her second issue, Mother argues that the evidence is legally and factually
insufficient to support the termination of her parental rights under Texas Family

4
Code § 161.001(b)(1) subsections (D) and (O). See Tex. Fam. Code Ann.
§ 161.00(b)(1)(D), (O). Mother also argues that she raised a defense to termination
under subsection (O). See id. § 161.001(d).

A. APPLICABLE LAW

Involuntary 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. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see
Stantosky v. Kramer, 455 U.S. 745, 753 (1982). “Termination of parental rights,
the total and irrevocable dissolution of the parent-child relationship, constitutes the
‘death penalty’ of civil cases.” In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014)
(Lehrmann, J., concurring). Accordingly, termination proceedings must be strictly
scrutinized. Id. at 112. In such cases, due process requires application of the “clear
and convincing” standard of proof. Id. (citing Stantosky, 455 U.S. at 769; In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)).

This intermediate standard of proof falls between the preponderance of the
evidence standard of civil proceedings and the reasonable doubt standard of
criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). “‘Clear and
convincing evidence’ means a ‘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.’” In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per
curiam) (quoting Tex. Fam. Code Ann. § 101.007); see In re K.M.L., 443 S.W.3d
at 112–13 (“In cases requiring clear and convincing evidence, even evidence that
does more than raise surmise and suspicion will not suffice unless that evidence is
capable of producing a firm belief or conviction that the allegation is true.”).

The trial court may order the termination of the parent-child relationship if
5
the court finds by clear and convincing evidence that: (1) the parent committed an
act or omission described in Family Code § 161.001(b)(1) and (2) termination is in
the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); In re N.G., 577
S.W.3d at 232. “To affirm a termination judgment on appeal, a court need uphold
only one termination ground—in addition to upholding a challenged best interest
finding—even if the trial court based the termination on more than one ground.” In
re N.G., 577 S.W.3d at 232; see Tex. Fam. Code Ann. § 161.001(b). However, we
must always review any sufficiency challenge to a termination on appeal under
subsection (D) and (E). See In re N.G., 577 S.W.3d at 235 (“When a parent has
presented the issue on appeal, an appellate court that denies review of a section
161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and
eliminates the parent’s only chance for review of a finding that will be binding as
to parental rights to other children.”).

B. STANDARD OF REVIEW

When both legal and factual sufficiency challenges are raised, we must first
review the legal-sufficiency challenge. See Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981) (per curiam); In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).

In a legal sufficiency review, a court views the evidence in a 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.F.C., 96 S.W.3d
at 266. To give appropriate deference to the factfinder’s conclusions and the role of
a court conducting a legal sufficiency review, this means that a reviewing court
must assume the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. Id. A corollary to this requirement is that a court
should disregard all evidence that a reasonable factfinder could have disbelieved or

6
found to have been incredible. Id. This does not mean that a court must disregard
all evidence that does not support the finding. Id. Disregarding undisputed facts
that do not support the finding could skew the analysis of whether there is clear
and convincing evidence. Id. If, after conducting its legal sufficiency review of the
record evidence, a court determines that no 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 insufficient. In re J.F.C., 96 S.W.3d at 266–
67.

In a factual-sufficiency review, the appellate court must consider whether
disputed evidence is such that a reasonable fact finder could not have resolved it in
favor of the finding. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence is
factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant
that the factfinder could not have formed a firm belief or conviction that the
finding was true. Id.

C. TEXAS FAMILY CODE § 161.001(b)(1)(D)

Subsection (D) allows for termination of parental rights if clear and
convincing evidence supports a conclusion that the parent “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(D). A child is endangered when the environment creates a
potential for danger and the parent is aware of the danger but consciously
disregards it. In re J.E.M.M., 532 S.W.3d 874, 881 (Tex. App.—Houston [14th
Dist.] 2017, no pet.).

The relevant time frame to determine whether there is clear and convincing
evidence of endangerment is before the child was removed. In re J.W., 645 S.W.3d
7
726, 749 (Tex. 2022); In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston [14th
Dist.] 2005, no pet.). Termination under subsection (D) may be based on a single
act or omission. See In re J.E.M.M., 532 S.W.3d at 884. The acceptability of living
conditions and parental conduct in the home are subsumed in the endangerment
analysis. See In re V.A., 598 S.W.3d 317, 328 (Tex. App.—Houston [14th Dist.]
2020, pet. denied); In re J.E.M.M., 532 S.W.3d at 880–81; In re J.D., 436 S.W.3d
105, 114 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

A parent’s neglect of her child’s medical or dental needs endangers the
child, In re J.H., No. 01-22-00629-CV, 2023 WL 2169952, at *14 (Tex. App.—
Houston [1st Dist.] Feb. 23, 2023, pet. denied) (mem. op.); see, e.g., In re E.A.D.,
No. 14-22-00025-CV, 2022 WL 2663981, at *5 (Tex. App.—Houston [14th Dist.]
July 11, 2022, no pet.) (mem. op.), as well as a parent’s failure to properly
supervise her young child. See In re M.C., 917 S.W.2d 268, 269–70 (Tex. 1996)
(per curiam); see also In re J.H., No. 01-22-00629-CV, 2023 WL 2169952, at *13
(Tex. App.—Houston [1st Dist.] Feb. 23, 2023, pet. denied) (mem. op.).

1. Analysis

a. Legal Sufficiency

The removal affidavit states:

Office Villareal stated that when she arrived at the scene, one of the
youngest children [A.T.] was observed outside with no shoes on,
alone. Officer Villareal observed the 3-year-old child [R.T.] and 4-
year-old [D.T.] standing in the doorway of the apartment. Officer
Villareal observed the oldest child [S.T.] inside the home on the
phone and the baby was observed swaddled inside the crib. Officer
Villareal described seeing [E.T.] with a colostomy bag, the contents of
the bag quite full [sic]. Officer Villareal described the children as dirt
[sic], with no shoes on and no adult caregiver present in the home.
According to Officer Villareal, the apartment leasing office reported
seeing the children home alone since as early as 11:00 am that day.

8
Officer Villareal had [S.T.] call the mother on his cell phone, who
didn’t answer after several attempts. Finally, [S.T.] was able to get
[Mother] on the phone, Office Villareal spoke with the mother and
informed her that Law Enforcement was at the home and she needed
to come home. According to Officer Villareal, [Mother] arrived to the
home about 8 minutes later and appeared to be very calm. Officer
Villareal stated that [Mother] said she went to get formula for the
baby and had only been gone for 10 minutes. Officer Villareal stated
that the story provided by [Mother] did not add up, and she was
arrested and charged with abandonment with intent to return and
endangerments.
The officers arrived at the apartment at 3:30 p.m., and the children were removed
from Mother’s care by the Department and ultimately placed in foster care.

The Department’s family plan notes that E.T. was a three-month-old infant
with severe medical conditions. Viewing the evidence that Mother left her very
young children unattended for four and a half hours, including a three-month-old
infant with a “quite full” colostomy bag in a crib swaddled in blankets, and that
mother did not immediately respond to telephone calls from S.T., in the light most
favorable to the trial court’s finding, we conclude there is legally sufficient
evidence that Mother knowingly placed or allowed E.T. to remain in conditions or
surroundings that endangered his physical or emotional well-being. See In re
J.F.C., 96 S.W.3d at 266; In re M.C., 917 S.W.2d at 269–70; In re J.H., 2023 WL
2169952, at *13–14; In re E.A.D., 2022 WL 2663981, at *5.

b. Factual Sufficiency

Factual sufficiency review “requires weighing disputed evidence contrary to
the finding against all the evidence favoring the finding.” In re A.C., 560 S.W.3d at
631. While there is some evidence that Mother’s home was adequate and that she
remained in close proximity to the children and returned when called, see In re
J.E.M.M., 532 S.W.3d at 881, there was also evidence that E.T. was a medically

9
fragile three-month-old infant with respiratory concerns, left unattended in a crib
for hours with a colostomy bag that was “quite full” when he required continuous
watch for gastrointestinal (“GI”) concerns. Weighing all the evidence in the record,
we conclude that a reasonable fact finder could have formed a firm belief or
conviction that Mother knowingly placed or allowed E.T. to remain in conditions
or surroundings which endangered his physical or emotional well-being. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D); In re J.E.M.M., 532 S.W.3d at 881.
Therefore, we conclude the evidence is factually sufficient to support termination
under subsection (D).

We overrule Mother’s first issue.4

IV. BEST INTEREST OF THE CHILD

Mother argues next that there is legally and factually insufficient evidence to
support the trial court’s finding that termination of her parental rights to E.T. was
in E.T.’s best interest. See Tex. Fam. Code Ann. § 161.003(a)(5).

A. APPLICABLE LAW

Although prompt and permanent placement in a safe environment is
presumed to be in a child’s best interest, Tex. Fam. Code Ann. § 263.307(a), courts
apply a strong presumption that the child’s best interest is served by keeping the
child with his natural parents; the burden is on the Department to rebut that
presumption. In re L.C.L., 599 S.W.3d 79, 86–87 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (en banc); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.).

4
Because only one ground is needed for termination, we need not address Mother’s
arguments challenging the sufficiency of the evidence for the trial court’s finding under
subsection (O). See Tex. R. App. P. 47.4; In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per
curiam).

10
In determining the best interest of the children, the factfinder may consider
the Holley factors: (1) the desires of the child; (2) the present and future physical
and emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child; (6) the plans for the child by the individuals or agency seeking
custody; (7) the stability of the home or proposed placement; (8) acts or omissions
of the parent that may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parents’ acts or omissions. Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are non-exclusive and
the best interest finding does not require proof of any unique set of factors. See In
re J.J.C., 302 S.W.3d 436, 447 (Tex. App.—Houston [14th Dist.] 2009, pet.
denied).

“The fact that a child has special needs does not automatically mean that
termination of the parent-child relationship is in the best interest of the child.” In re
M.M.A., No. 01-20-00709-CV, 2021 WL 1134308, at *36 (Tex. App.—Houston
[1st Dist.] Mar. 25, 2021, no pet.) (mem. op.) (citing In re L.C.L., 599 S.W.3d at
88). Instead, the factfinder must view the existence of any special needs—like all
relevant facts and circumstances—through the Holley lens. In re C.H., 89 S.W.3d
17, 27 (Tex. 2002). For example, the factfinder must weigh the parties’ relative
abilities to meet the child’s needs and any programs available to help them do so.
In re M.A.A., 2021 WL 1134308, at *36. Thus, a child’s special needs weighs in
favor of termination to the extent the evidence suggests that termination of parental
rights would improve the outlook for the child’s health. Id.; see also In re J.E.M.M,
532 S.W.3d at 887 (reversing termination after observing that Department had not
presented any evidence that termination of parental rights to child with autism

11
would serve best interest of child).

Stability and permanence are paramount in the upbringing of children. In re
J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The
factfinder may compare the parent’s and the Department’s plans for the child and
determine whether the plans and expectations of each party are realistic or weak
and ill-defined. Id. at 119–20.

B. ANALYSIS

Here, there is no evidence of E.T.’s desires because he is too young to
express them. See Jordan v. Dossey, 325 S.W.3d 700, 730 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied). Foster Mother testified that E.T. has over twenty
medical diagnoses, is a medically fragile child who could deteriorate rapidly and
unexpectedly, is developmentally delayed, and requires continued and regular
appointments with multiple doctors. E.T. has a hernia, ileostomy reversal,
softening of the head, colitis, breathing issues, mobility issues, hearing issues, and
feeding issues. He requires a special kind of diet because of issues with his mouth
and larynx and sees multiple specialists, including a pediatric surgeon,
gastroenterologist, and a nutritionist. Many of E.T.’s diagnoses are lifelong
conditions.

Boima testified that Foster Mother is “very involved” in E.T.’s care, that
E.T. is bonded with the foster family, and that all of his needs were being met with
Foster Mother. Boima testified that after her discussions with Mother, Mother had
not “fully expressed” to Boima that she wanted E.T. home with her, like she had
for the other four children. Boima and Arguelles testified that they did not believe
Mother had a full understanding of E.T.’s medical conditions. Mother testified that
she hoped some of E.T.’s medical conditions would get resolved in the future
“[w]ith God’s help . . . .”
12
Foster Mother explained that E.T. has more than twenty “forever” diagnoses
that require continuous care and medical supervision. She testified that E.T. was
born with syphilis, has hypotonia and respiratory failure, and has gone into acute
respiratory failure. His hypotonia, which she described as low muscle tone, affects
how his body processes or responds to being sick or ill. Because a section of E.T.’s
colon was removed after an ileostomy, he is continuously on a watch as to how he
processes food, which requires a daily diary of his intake and outtake, as well as
regular GI doctor appointments. E.T. was also being evaluated for cerebral palsy.
E.T.’s most recent diagnosis was significant hearing loss in his left ear, which may
require cochlear implants. He is unable to walk, crawl, or roll over, and is
approximately six to seven months delayed in his development.

Foster Mother was caring for E.T. by “working on sit-to-stand motions,
independent sitting[,] and different other activities to strengthen his muscles and
kind of give him the ability of mobility.” She takes E.T. to physical therapy,
occupational therapy, speech therapy, feeding therapy, and water therapy. E.T. will
need continuously oversight because his GI system is permanently impacted, he
needs a special diet, and he is sometimes fed through a feeding tube to meet
required daily nutrition. Foster Mother testified she is retired and present at home
“full time.” Arguelles testified that the foster’s family understanding and grasp of
E.T.’s conditions was “fantastic”; E.T.’s medical outlook is better with Foster
Mother; E.T. is thriving under Foster Mother’s care and has made “significant”
improvements since being under her care; and E.T. is “really as healthy as he can
be given all his diagnoses . . . .” We conclude there is legally sufficient evidence
that termination of Mother’s parental rights was in E.T.’s best interest. See In re
J.F.C., 96 S.W.3d at 266.

As to factual sufficiency, while there is evidence that Mother maintained a

13
job and suitable housing, completed the majority of her family service plan,
attended visits, and demonstrated an ability to care for a few of E.T.’s medical
needs, viewing the evidence as a whole, a reasonable factfinder could form a firm
belief or conviction that termination of Mother’s parental rights was in E.T.’s best
interest. The extent and severity of E.T.’s medical needs, the lack of Mother’s
support system in the United States, and the evidence that Mother did not
understand E.T.’s conditions, including the testimony that Mother left E.T.
unattended for over four hours alone in a crib, weigh in favor of the trial court’s
finding that termination of Mother’s parental rights was in E.T.’s best interest. A
trier of fact could have reasonably inferred that Mother’s past inattention to E.T.’s
medical needs would continue and that her future plans for E.T.’s medical care
were unrealistic. See In re J.D., 436 S.W.3d at 120. Foster Mother has provided a
stable, caring environment for E.T. and has ensured he receives medication and
appropriate therapy and medical care. See In re L.G.R., 498 S.W.3d 195, 205–06
(Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also In re J.R.W., No. 14-
12-00850-CV, 2013 WL 507325, at *9 (Tex. App.—Houston [14th Dist.] Feb. 12,
2013, pet. denied) (mem. op.). The evidence is factually sufficient. See In re A.C.,
560 S.W.3d at 631.

We overrule Mother’s third issue.5

5
We note that Mother’s arguments and issues on appeal focus on the trial court’s
termination of her parental rights to E.T., not the appointment of the Department as the
permanent managing conservator of her other four children. In the prayer section of her brief,
Mother states “[t]here is no reason . . . that the Department should now be appointed permanent
managing conservator” and asks that we reverse the trial court’s judgment in its entirety. We
conclude that any challenge by Mother to the appointment of the Department as the permanent
managing conservator of her four other children is waived because Mother does not identify this
argument anywhere else in her brief, presents no standard of review or applicable law in support
of this contention, and does not advance any argument articulating why the trial court abused its
discretion when it appointed the Department as the permanent managing conservator of her four
other children. See Tex. R. App. P. 38.1 (f) (“The brief must state concisely all issues or points
14
V. INEFFECTIVE ASSISTANCE OF COUNSEL

In her fourth issue, Mother argues her trial counsel rendered ineffective
assistance.

A. APPLICABLE LAW

The statutory right to counsel in parental-rights termination cases embodies
the right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).

First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Id. at 545; see also In re E.R.W., 528 S.W.3d 251, 262 (Tex. App.—Houston [14th
Dist.] 2017, no pet.) (“To meet [the test’s] second prong, Mother must show a
reasonable probability that but for counsel’s deficient performance, the result of
the proceeding would have been different.”).

With respect to whether counsel’s performance in a particular case is
deficient, we must take into account all of the circumstances surrounding the case,
and must primarily focus on whether counsel performed in a “reasonably effective”
manner. In re M.S., 115 S.W.3d at 545. We give great deference to counsel’s
performance, indulging a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance, including the possibility that
counsel’s actions are strategic. Id. It is only when the conduct was so outrageous

presented for review.”), (i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”); see also, In re
R.R.A., 654 S.W.3d 535, 553–55 (Tex. App.—Houston [14th Dist.] 2022, pet. granted)
(reviewing the appointment of the Department as permanent managing conservator).

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that no competent attorney would have engaged in it that the challenged conduct
will constitute ineffective assistance. In re D.T., 625 S.W.3d 62, 74 (Tex. 2021).

We will not speculate to find trial counsel ineffective when the record is
silent on counsel’s reasoning or strategy. Robinson v. State, 16 S.W.3d 808, 813
n.7 (Tex. Crim. App. 2000). On a silent record, we assume counsel’s actions were
due to any strategic motivation that can be imagined. Id.

B. ANALYSIS

Mother advances multiple bases in support of her argument that her trial
counsel rendered ineffective assistance.

Mother first argues that her counsel was ineffective by asking her a self-
incriminating question; however, the complained-of question was asked by the
Department’s counsel, not Mother’s counsel. In her reply brief, Mother argues that
no effective counsel would have permitted Mother to provide the response to the
Department’s question, which concerned the events of the day the children were
taken into the Department’s care. Assuming without deciding that this complained-
of conduct was deficient, we conclude that the outcome would not have been
different because the same evidence was admitted through other witnesses. Mother
also argues that counsel was ineffective by failing to object to the admission of
Arguelles’s report to the court and the Department’s permanency report to the
court. An attorney can reasonably decide not to object to inadmissible evidence.
Newsom v. Dep’t of Fam. & Servs., No. 01-09-00447-CV, 2010 WL 670568, at *8
(Tex. App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op.); see, e.g.,
Lyons v. McCotter, 770 F.2d 529, 534 (5th Cir.1985) (noting that the decision “[t]o
pass over the admission of prejudicial and arguably inadmissible evidence may be
strategic . . . .”). Here, the record is silent as to trial counsel’s reasoning for not
objecting. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)
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(noting that “the record is silent as to why appellant’s trial counsel took or failed to
take the actions,” that “trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective,” and concluding that
appellant failed to establish ineffective assistance); Robinson, 16 S.W.3d at 813 n.7
(“[I]n many cases where an appellant does not litigate the ineffective assistance
claim before the trial court, the proper procedure will be for the appellate court to
overrule an appellant’s Sixth Amendment claim without prejudice to appellant’s
ability to dispute counsel’s effectiveness collaterally.”).

Mother argues next her counsel was ineffective by failing to challenge
evidence supporting termination under subsection (O) and by failing to assert the
affirmative defense to termination under subsection (O). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(O), (d). However, assuming arguendo counsel was deficient, as
Mother argues, regarding subsection (O), the results of the proceeding would not
have been different because there was sufficient evidence to terminate Mother’s
parental rights to E.T. under subsection (D). See In re E.R.W., 528 S.W.3d at 263.

Mother also argues that counsel was ineffective because she was never
informed of her responsibility to introduce evidence supporting the Holley factors,
was never told what the Holley factors were, and trial counsel failed to introduce
evidence concerning the Holley factors and the best-interest determination.
Contrary to Mother’s argument, her counsel questioned all witnesses and elicited
testimony relevant to the Holley factors and the best interest determination,
including evidence about Mother’s home, her relationship with the children, and
her ability to provide for the children.

Mother argues counsel was inefficient because Mother did not receive a
copy of the removal affidavit in Spanish. Mother did not advance this as a basis of
her ineffective assistance of counsel claim at the trial court and the record is silent

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as to counsel’s reasoning. See Rylander, 101 S.W.3d at 110–11. It is possible that
counsel did not provide Mother with a copy of the affidavit in Spanish because
counsel was able to question Mother and gather information regarding the
allegations with the affidavit in English. It is also possible that counsel could
communicate with Mother in Spanish concerning the contents of the affidavit.

Finally, Mother argues counsel was inefficient because counsel did not file a
petition for writ of mandamus arguing there was insufficient evidence to support
the trial court’s order. Mother bases this argument on the same evidence she points
to in her challenge on appeal as to the sufficiency of the evidence. Because we
concluded the evidence is sufficient to support the termination of her parental
rights to E.T., the filing of a petition for writ of mandamus would not have resulted
in a different outcome. Further, Mother had an adequate remedy by direct appeal.

We reject all of Mother’s arguments in support of her ineffective assistance
claim and overrule her fourth issue.

VI. MOTION FOR CONTINUANCE

In her fifth issue, Mother argues that the trial court erred by denying the
motion for continuance requested by the Department and the attorney ad litem.
However, Mother did not join the request for the continuance, did not request a
continuance herself, nor did she object to the denial of the continuance requested
by the Department and the ad litem. See Tex. R. App. P. 33.1(a). Thus, we
conclude that this issue has been waived and overrule Mother’s fifth issue.

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VII. CONCLUSION

The trial court’s order is affirmed.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Poissant.

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