In the Interest of M.W., a Child v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00084-CV

IN THE INTEREST OF M.W., A CHILD

On Appeal from the County Court at Law
Panola County, Texas
Trial Court No. 2023-100

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION

The Department of Family and Protective Services filed a petition to terminate Father’s

parental rights to his son, Marshall.1 Following a bench trial, the trial court terminated Father’s

parental rights2 after finding that (1) he knowingly placed or allowed Marshall to remain in

conditions or surroundings that endangered his physical or emotional well-being, (2) he failed to

comply with the provisions of a court order that specifically established the actions necessary to

obtain Marshall’s return, as described in Section 161.001(b)(1)(O) of the Texas Family Code,

and (3) termination of his parental rights was in the child’s best interests. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (O), (b)(2) (Supp.).

On appeal, Father argues that (1) the trial court erred by failing to remove the attorney ad

litem for Marshall after discovering that she had represented Father in a case where his parental

rights to another child were terminated, (2) his counsel rendered ineffective assistance by failing

to object to the continued appointment of the attorney ad litem, and (3) the evidence is

insufficient to support the trial court’s finding that termination of Father’s parental rights was in

Marshall’s best interests. We find that Father failed to preserve his first point of error for our

review and cannot show from the silent record before us that his counsel rendered ineffective

assistance. We also conclude that the trial court’s best-interest finding was supported by legally

and factually sufficient evidence. As a result, we affirm the trial court’s judgment.

1
We use pseudonyms to protect the identities of the child. See TEX. R. APP. P. 9.8.

2
Mother voluntarily relinquished her parental rights and does not appeal.
2
I. Father Failed to Preserve Any Complaint About the Attorney Ad Litem

Father’s first point of error complains of the trial court’s appointment of April Prince as

the child’s attorney ad litem. Father argues that Prince should have been disqualified because

she represented him in a prior proceeding resulting in the termination of his parental rights to

another child.

Under Rule 33.1(a) of the Texas Rules of Appellate Procedure, to preserve this complaint

for appellate review, Father was required to bring it to the trial court’s attention in a timely

manner and obtain a ruling on that complaint. See TEX. R. APP. P. 33.1(a). Accordingly, “[a]

party who fails to file its motion to disqualify opposing counsel in a timely manner waives the

complaint.” Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994) (per curiam) (orig.

proceeding); see Buck v. Palmer, 381 S.W.3d 525, 528 (Tex. 2012) (per curiam) (finding

argument relating to attorney disqualification waived after untimely seven-month delay in

seeking the disqualification).

Our record shows that, although Father was aware of Prince’s appointment on April 21,

2023, he never complained of the appointment and did not seek to disqualify her. In fact, the

trial court was only made aware that Prince had represented Father in a prior proceeding at the

September 24, 2024, trial. Even then, Father did not allege any conflict of interest and did not

move to disqualify Prince as Marshall’s attorney ad litem. As a result, we conclude that Father

failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a).

3
II. Father Cannot Show that His Counsel Rendered Ineffective Assistance

In his second point of error, Father argues that his counsel was ineffective because his

counsel failed to object to Prince’s ad litem appointment or request her disqualification.3 Father

contends that he “shared confidences with” Prince “and expected a measure of privacy and

privilege,” under Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct, but that

Prince’s appointment as attorney ad litem for Marshall essentially deprived him of a fair trial.

See TEX. DISCIPLINARY RULES PROF’L CONDUCT 1.05. Father also argues that Rule 1.06 of the

Texas Disciplinary Rules of Professional Conduct prevents a lawyer from representing opposing

parties in “a substantially related matter in which that person’s interests are materially and

directly adverse to the interests of another client of the lawyer.” TEX. DISCIPLINARY RULES

PROF’L CONDUCT 1.06(b)(1).

“‘[A]ll parents appearing in opposition to state-initiated parental-rights termination suits’

are entitled to ‘the right to effective counsel . . . .’” In re J.J., 647 S.W.3d 524, 529 (Tex. App.—

Texarkana 2022, no pet.) (alteration in original) (quoting In re D.T., 625 S.W.3d 62, 71 (Tex.

2021)). “Ineffective-assistance-of-counsel claims in parental-[rights] termination cases, as in

criminal cases, are governed by the United States Supreme Court’s two-prong test articulated in

Strickland v. Washington[, 466 U.S. 668, 687 (1984)].” Id. (first alteration in original) (quoting

In re D.T., 625 S.W.3d at 73).

“First, the [appellant] must show that counsel’s performance was deficient[,] [which] . . .

requires showing that counsel made errors so serious that counsel was not functioning as the

3
“Typically, courts look to the ethical rules promulgated by the State Bar to evaluate conflicts of interest in civil
cases.” In re B.L.D., 113 S.W.3d 340, 346 (Tex. 2003).
4
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. (alterations in original)

(quoting In re D.T., 625 S.W.3d at 73). “Second, the [appellant] must show that the deficient

performance prejudiced the defense[,] [which] . . . 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. (alterations

in original) (quoting In re D.T., 625 S.W.3d at 73). “A party claiming ineffective assistance of

counsel must satisfy both prongs of the Strickland test to succeed.” Id. (quoting In re D.T., 625

S.W.3d at 73).

As for the first prong, “[a]llegations of ineffectiveness ‘must “be firmly founded in the

record.”’” Id. at 530 (quoting Lampkin v. State, 470 S.W.3d 876, 897 (Tex. App.—Texarkana

2015, pet. ref’d)). Because “trial counsel should ordinarily be afforded an opportunity to explain

his actions before being denounced as ineffective,” “[t]he standard of review is much more

deferential to trial counsel’s actions when the claim is asserted for the first time on direct appeal

[since] ‘[t]he reasonableness of counsel’s choices often involves facts that do not appear in the

appellate record.’” Id. (third alteration in original) (quoting Lampkin, 470 S.W.3d at 898 n.10).

“When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the

record ‘is in almost all cases inadequate to show that counsel’s conduct fell below an objectively

reasonable standard of performance.’” Id. (quoting Lampkin, 470 S.W.3d at 898).

“Counsel’s performance falls below acceptable levels only when the ‘representation is so

grossly deficient as to render proceedings fundamentally unfair.’” Id. (quoting In re D.T., 625

S.W.3d at 74). “We give great deference to counsel’s choices and indulge ‘“a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

5
assistance,” including the possibility that counsel’s actions are strategic.’” Id. (quoting In re

D.T., 625 S.W.3d at 74). Because the record “is silent on counsel’s reasoning or strategy,” “[w]e

will not speculate to find trial counsel ineffective.” In re K.L.L.H., No. 06-09-00067-CV, 2010

WL 87043, at *6 (Tex. App.—Texarkana Jan. 12, 2010, pet. denied) (mem. op.). Instead, we

assume counsel’s actions were “due to any strategic motivation that can be imagined.” Id.

Here, the reporter’s record contains a plausible explanation as to why counsel may have

decided to forego any objection to Prince’s continued appointment. The record shows that

Father had never seen the prior order terminating his parental rights to another child, did not

recall being served any paperwork related to the prior case, did not recall ever meeting Prince,

and did not know that Prince had been appointed to represent him before. As a result, it is

possible that counsel did not object to Prince’s appointment or seek disqualification because

Father had not shared any confidences or privileged information with Prince. See TEX.

DISCIPLINARY RULES PROF’L CONDUCT 1.05 (involving confidentiality of information). Also,

because Marshall was not born until well after Prince’s representation in the prior case had

ended, counsel could have believed that the prior termination proceeding was not a substantially

related matter or that Father’s interests would not be materially affected by Prince’s

representation of Marshall. See TEX. DISCIPLINARY RULES PROF’L CONDUCT 1.06(b).

Based on the silent record before us, we find that Father cannot meet the first Strickland

prong. Accordingly, we overrule Father’s second point of error.

6
III. Sufficient Evidence Supports the Trial Court’s Best-Interest Finding

“In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child’s best interest.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—

Texarkana 2018, no pet.) (citing TEX. FAM. CODE ANN. § 161.001; In re E.N.C., 384 S.W.3d

796, 798 (Tex. 2012)). Father does not challenge the trial court’s findings on grounds D or O.

Instead, in his last point of error on appeal, Father argues that the evidence is insufficient to

establish the trial court’s finding that termination of his parental rights was in Marshall’s best

interests.

A. Standard of Review

“The natural right existing between parents and their children is of constitutional

dimensions.” Id. (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents

have a fundamental right to make decisions concerning ‘the care, custody, and control of their

children.’” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.)). “Because

the termination of parental rights implicates fundamental interests, a higher standard of proof—

clear and convincing evidence—is required at trial.” Id. (quoting In re A.B., 437 S.W.3d 498,

502 (Tex. 2014)). “‘Clear and convincing evidence’ is that ‘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.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d

336, 344 (Tex. 2009))). “This standard of proof necessarily affects our review of the evidence.”

Id.

7
“This Court is . . . required to ‘engage in an exacting review of the entire record to

determine if the evidence is . . . sufficient to support the termination of parental rights.’” Id.

(quoting In re A.B., 437 S.W.3d at 500). “[I]nvoluntary termination statutes are strictly

construed in favor of the parent.” Id. (alteration in original) (quoting In re S.K.A., 236 S.W.3d

875, 900 (Tex. App.—Texarkana 2007, pet. denied)).

“In our legal sufficiency review, we consider all the evidence in the light most favorable

to the findings to determine whether the fact-finder reasonably could have formed a firm belief

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)

(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We

assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a

reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have

reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re

J.P.B., 180 S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder

reasonably could have found to be clear and convincing and determine ‘“whether the evidence is

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.”’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108); see

In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of the entire record, the disputed

8
evidence that a reasonable fact[-]finder could not have credited in favor of the finding is so

significant that a fact[-]finder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient.” In re L.E.S., 471 S.W.3d at 920 (quoting In re J.F.C., 96

S.W.3d at 266). “‘[I]n making this determination,’ we must undertake ‘an exacting review of the

entire record with a healthy regard for the constitutional interests at stake.’” Id. (alteration in

original) (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26)). “We

also recognize that the trial court, as the fact-finder, is the sole arbiter of a witness’ demeanor

and credibility, and it may believe all, part, or none of a witness’ testimony.” In re A.M., No. 06-

18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana June 22, 2018, pet. denied)

(mem. op.) (citing In re H.R.M., 209 S.W.3d at 109). When, as in this case, “neither party

requests findings of fact and conclusions of law following a nonjury trial, all fact[-]findings

necessary to support the trial court’s judgment are implied.” Shields Ltd. P’ship v. Bradberry,

526 S.W.3d 471, 480 (Tex. 2017).

B. The Evidence at Trial

Marshall was seventeen months old at the time of trial. Shaena Osteen, the Department’s

caseworker, testified that Marshall came into the Department’s care shortly after birth after it

received allegations that his parents were squatting inside of a home without working utilities

because they had been evicted from their residence. Father testified that the utilities to Mother’s

rental home were cut off during Mother’s hospital stay, and Father claimed he was unaware of

that until Mother and Marshall returned home from the hospital.

9
Osteen testified that the Department also received an allegation that Mother and Father

were using drugs. Osteen visited Mother and the baby in the hospital, and they both tested

negative for drugs, but Father tested positive for methamphetamine and marihuana during the

pendency of the case. Father admitted that he had used methamphetamine when he was around

Mother. He added that, before meeting Mother, he only “did marihuana,” but he claimed that

was not a drug. He then stated, “Well, I guess it is.” Marshall’s parents agreed to Marshall’s

removal by the Department at an adversary hearing, and the baby was placed with his maternal

aunt and uncle while the Department investigated the allegations.

Osteen testified that she discussed Father’s family service plan with him on several

occasions and affirmed that Father understood that he was required to submit to random drug

tests, obtain a stable home, and complete a drug and alcohol assessment, individual counseling,

and parenting classes. Osteen said that Father did not submit to the eight random drug tests she

had requested from September 26, 2023, until December 22, 2023. According to Osteen, Father

said he did not appear for some of the tests because “he had more important things to do.” In his

defense, Father testified that he went to four drug tests requested by the Department but said that

the results of one test was “tainted” because it was “diluted,” which resulted in a failed test.

According to Osteen, Father attended six of his weekly visits with Marshall on time,

appeared late for fifteen visits, and failed to attend seven visits. In January 2024, the trial court

suspended the visits and instructed the parents to attend a hearing in order for the visits to

resume. Father testified that Marshall would become excited upon seeing him and loved visiting

with him. Even so, Father did not attend the hearing, and as a result, his visitation with Marshall

10
was suspended. Osteen testified that she requested two more visits after the trial court’s order,

and was successful in setting up the visitation, but said that Father did not attend.

According to Osteen, Father had been arrested several times during the pendency of the

case. She testified that he was jailed on November 27, 2023, January 12, 2024, February 7,

2024, and May 12, 2024. Father had not been released since the May 12 incarceration, was in a

Substance Abuse Felony Punishment Facility (SAFPF) for drug rehabilitation, and was issued a

bench warrant for trial. Father said that he was sentenced to six years’ imprisonment for

impeding breath during a family violence assault, that his sentence had been suspended in favor

of community supervision, but that the State had filed a motion to revoke it after he failed drug

tests on December 12, 2022, January 17, 2024, and January 26, 2024. Father admitted to

smoking methamphetamine with Mother after Marshall’s removal and skipping drug testing

requested by his community supervision officer. As a result, Father agreed to resolve the State’s

motion to revoke his community supervision by agreeing to go to a SAFPF to “help [him]. . . be

completely clean with the drugs.”

Even so, Osteen testified that Father never completed the drug and alcohol assessment

despite being scheduled to do so on five different occasions. After citing a transportation issue,

the Department sent caseworker Ruben Benavidez to pick Father up, but he refused to go to the

assessment. Osteen testified that Father also failed to attend his appointment for individual

counseling and never began parenting classes. Osteen said that Father had been given rides from

the Department before but never personally asked her for assistance with transportation.

According to Osteen, Father could have completed his individual counseling online. Osteen

11
testified that, after December 2023, she had no more communication with Father even though he

was required to remain in weekly contact with her as a part of his family service plan.

According to Father, he was taking parenting classes in SAFPF and only had one week to

go before obtaining his certificate of completion. Father also said that he had “counselors in

there” and indicated that he had undergone counseling and a psychological evaluation. Father

admitted that he understood the family service plan but did not complete it.

Osteen testified that, after his release from SAFPF, Father would have to live in a

“halfway house,” and she had no indication that he would be able to provide Marshall with a safe

home. Father said he was unemployed during Mother’s pregnancy but found work after

Marshall was born. Father, who was twenty-three at Marshall’s birth, said he had a son when he

was sixteen and a daughter when he was nineteen. According to Father, his parental rights to

those children had not been terminated, and he visited with them, though they did not live with

him.

Father testified that he loved and wanted Marshall and would be released to a halfway

house in approximately four or five months. Father said that his uncle would get him a job

“sandblasting or something like that” at Halliburton and testified that he wished to provide for

Marshall.

Osteen testified that Marshall had been placed with his maternal aunt and uncle since

right after his birth, that one of his siblings was also placed there and had been adopted by Aunt

and Uncle, and that Marshall was “doing great” in that stable environment. Osteen testified that

Marshall was healthy, that the home of Aunt and Uncle was appropriate, and that Aunt and

12
Uncle wished to adopt Marshall. According to Osteen, termination of Father’s parental rights

was in the child’s best interests.

Jessica DeJohn, the Court Appointed Special Advocate, testified that the home of Aunt

and Uncle was stable and safe and that they loved and cared for Marshall. DeJohn testified that

Aunt and Uncle planned to adopt Marshall, who referred to Aunt and Uncle as his “[m]om and

dad,” and that it was in the child’s best interests that Father’s parental rights be terminated so

Marshall could remain with them. According to DeJohn, Father had not contacted Aunt or Uncle

to discuss Marshall.

After hearing that evidence, the trial court determined that statutory grounds D and O

supported terminating Father’s parental rights and that doing so was in Marshall’s best interests.

C. Analysis

“There is a strong presumption that keeping a child with a parent is in the child’s best

interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus

Christi–Edinburg Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116

(Tex. 2006) (per curiam)). “Despite the profound constitutional interests at stake in a proceeding

to terminate parental rights, ‘“the rights of natural parents are not absolute; protection of the

child is paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361

(Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed merely to

preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—

Texarkana 2015, no pet.)).

13
“In determining the best interests of the child,” courts consider the following Holley

factors:

(1) the desires of the child, (2) the emotional and physical needs of the child now
and in the future, (3) the emotional and physical danger to the child now and in
the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.

In re N.L.D., 412 S.W.3d 810, 818–19 (Tex. App.—Texarkana 2013, no pet.) (citing Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C., 384 S.W.3d 796, 807 (Tex.

2012); see also TEX. FAM. CODE ANN. § 263.307(b).

The Department is not required to present proof of each Holley factor. In re M.C., 482

S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied) (citing In re C.H., 89 S.W.3d 17, 27

(Tex. 2002)). Further, we may consider evidence used to support the grounds for termination of

parental rights in the best-interest analysis. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

As for the first factor, Marshall was seventeen months old at trial and was too young to

speak his desires. Even so, the record showed that Marshall had lived with his aunt and uncle

since shortly after his birth, called them “[m]om and dad,” and was loved in their home. Also,

because Father’s visitation was suspended, he had not seen Marshall for almost nine months. As

a result, the first Holley factor weighs in favor of terminating Father’s parental rights to his child.

In re K.O., 488 S.W.3d 829, 842 (Tex. App.—Texarkana 2016, pet. denied).

Next, Marshall’s emotional and physical needs now and in the future were great given his

young age. Yet, the evidence at trial showed that Father was not employed, had no stable home

14
of his own, and could not provide for the child since he was in SAFPF. After Marshall was

removed, Father used methamphetamine and marihuana instead of determining how to provide

for Marshall’s needs to obtain his return. “A parent who lacks stability, income, and a home is

unable to provide for a child’s emotional and physical needs.” In re Z.M., 456 S.W.3d 677, 689

(Tex. App.—Texarkana 2015, no pet.) (quoting In re J.T.G., No. 14-10-00972-CV, 2012 WL

171012, at *17 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.)). We

find that the second and third Holley factors favor terminating Father’s parental rights.

As to the fourth Holley factor, the evidence demonstrated that Father had not completed

parenting classes, had missed several visitations with Marshall, and failed to appear for a hearing

required to reinstate his visitation with the child. The trial court was also made aware that Father

had two other children who did not live with him. From this evidence, as well as the evidence of

Father’s drug use, the trial court could determine that Father lacked parental abilities necessary to

provide the appropriate care for Marshall.

Next, the trial court could have determined that there were programs available to assist

Father that he did not take advantage of. Osteen testified that Father failed to complete his

family service plan, which was required to obtain Marshall’s return. Father declined to take

advantage of individual counseling or the Department’s efforts in eliminating his drug use. Even

though Father remained incarcerated since May 2024 and had several services available to him in

SAFPF, including parenting classes, he had not yet completed them. Moreover, he failed to

remain in weekly contact with Osteen, who could have assisted him throughout the case, but he

chose instead to miss random drug testing because he “had more important things to do.” From

15
that evidence, the trial court was free to determine that the fifth Holley factor weighed against

Father.

Regarding the sixth and seventh factors, Father admitted that he would remain

incarcerated for several months and would be required to complete a successful transition into a

halfway house. That showed that Father had no stable home. As a result, his plan for Marshall

did not involve the child remaining with him. As noted by the Department’s witnesses, Father’s

plan would go against the need to provide Marshall with stability. In line with that need, the

Department planned on allowing Marshall to remain with Aunt and Uncle, who had a stable

home and planned to adopt Marshall, just as they had adopted his sibling. We find that the sixth

and seventh Holley factors weigh against Father.

As for the remaining two factors, Father’s failure to complete a drug and alcohol

assessment, failure to attend random drug testing requested by Osteen, and positive drug tests

during the pendency of the case showed that the existing parent-child relationship was not an

appropriate one. Father also missed several visits with Marshall, was late to several visits, and

failed to appear for a court hearing that was required to reinstate his visitation. While Father

cited lack of transportation as an excuse, the record showed that Father did not take advantage of

transportation provided by the Department, and there was no excuse for his arrests or positive

drug tests during the pendency of the case.

Considering the Holley factors, and in light of all of the evidence, the trial court could

have reasonably formed a firm belief or conviction that termination of Father’s parental rights

was in Marshall’s best interests. Therefore, we conclude that the evidence was legally and

16
factually sufficient to support the best-interest finding, and we overrule Father’s last point of

error.

IV. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens
Chief Justice

Date Submitted: February 11, 2025
Date Decided: February 28, 2025

17