MEMORANDUM OPINIONFrom the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA00029 Honorable Charles E. Montemayor, Judge PresidingOpinion by: Marialyn Barnard, JusticeSitting: Marialyn Barnard, JusticePatricia O. Alvarez, Justice Irene Rios, JusticeDelivered and Filed: June 6, 2018AFFIRMEDThis is an appeal from a trial court’s order terminating appellant father’s (“Father”) parental rights to his children, A.Y.C. and G.C. Jr. On appeal, Father argues the evidence is legally and factually insufficient to support the trial court’s finding that termination was in his children’s best interests. Father also argues he received ineffective assistance of counsel. We affirm the trial court’s order terminating Father’s parental rights.BackgroundThis case involves siblings A.Y.C. and G.C. Jr. The Texas Department of Family and Protective Services (“the Department”) became involved with the family after receiving a referral alleging the children were being exposed to domestic violence and drug use. At the time of the Department’s intervention, A.Y.C. was three-years old and G.C. Jr. was two-years old. The record also reflects Father was attending drug treatment services at Outcry in the Barrio. It is undisputed Father was using methamphetamines.The children were initially placed with their paternal grandmother; however, after she became immobile following a stroke, she was unable to properly care for the children. On several occasions, while living with their grandmother, G.C. Jr. was found wandering the streets. The record also reflects the grandmother allowed Father to have access to the children even though the Department advised against it. The children were ultimately placed in a foster home.Thereafter, the Department filed a petition to terminate Father’s parental rights.[1] A bench trial was held on January 2, 2018. At the trial, Father appeared by his attorney, who announced not ready. The trial court proceeded with the case, however, noting the trial had already been reset once and the case was approaching its one-year mark. See Tex. Fam. Code § 263.401 (West Supp. 2017) (providing that trial court must dismiss case within one year, but permitting one 180-day extension). The trial court further noted the importance of moving the case along due to the children’s young ages and need for permanency.At the hearing, the trial court heard testimony from Anna Smith, a Department caseworker who worked with the children’s parents for six months. Smith testified she started working with the family after the Department received the referral. Smith testified that during the Department’s involvement with the family, Father was “actively on methamphetamines.” Due to Father’s drug use, Smith recommended Father seek drug treatment. Smith stated that during her involvement with the family, Father was attending a drug treatment program at Outcry in the Barrio. Smith added she did not know whether he completed the program.The trial court also heard testimony from Denise Santos, another Department caseworker who worked with the family. Santos testified she prepared a service plan for Father, and the service plan required Father to complete a drug treatment program. Santos testified Father initially complied with all the requirements of the service plan and confirmed Father was attending a drug treatment program at Outcry in the Barrio. Santos added, however, that Father ultimately left the program and did not complete it. Santos stated that after Father left the program, he stopped engaging in all services. Santos testified she maintained regular communication with Father throughout the course of the case and tried to encourage him on several occasions to complete a drug treatment program. Santos added that during her discussions with Father, Father admitted he needed help with his drug problem. Santos further added that at one point Father set up an appointment to go back to drug treatment; however, he ultimately missed the appointment. Santos also stated she had spoken to Father a month before trial, and he again stated he needed help. Despite Father’s statements, it was her opinion that due to his ongoing drug use, Father was unable to parent his children.Santos also provided testimony regarding the children’s current placement. Santos confirmed that due to the inability of the paternal grandmother to properly care for the children, the children were placed together in a foster-to-adopt home. At the time of trial, the foster parents were interested in adopting the children. Santos testified that she believed it would be in the children’s best interests to be adopted by the foster family.At the conclusion of the hearing, the trial court terminated Father’s parental rights, finding he: (1) constructively abandoned his children; (2) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his children; and (3) used a controlled substance in a manner that endangered his children and failed to complete a court-ordered substance abuse treatment program. See Tex. Fam. Code Ann. § 161.001(b)(1) (N), (O), (P). The trial court further found termination of Father’s parental rights would be in his children’s best interests. See id. § 161.001(b)(2). Based on its findings, the trial court rendered an order terminating Father’s parental rights. Thereafter, Father timely perfected this appeal.AnalysisOn appeal, Father challenges the sufficiency of the evidence in support of the trial court’s finding that termination was in the best interests of his children. See id. Father also argues he received ineffective assistance of counsel.Best InterestsWe first turn to whether the evidence was sufficient to support the trial court’s finding that termination of Father’s parental rights was in the children’s best interests. According to Father, the Department failed to produce evidence as to many of the Holley factors, and the evidence the Department produced was conclusory.Standard of ReviewA trial court may terminate a parent’s right to a child only if it finds by clear and convincing evidence that the parent committed an act prohibited by section 161.001(b)(1) of the Code and termination is in the best interest of the child. Id. § 161.001(b). “Clear and convincing evidence” is defined as “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. § 101.007. Courts require this heightened standard of review because termination of a parent’s rights to a child results in permanent and severe changes for both the parent and child, thus, implicating due process concerns. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015). When reviewing the legal and factual sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re J.P.B, 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). In sum, an appellate court must determine whether the evidence is such that the trier of fact could reasonably form a firm belief or conviction that termination was in the child’s best interest. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).In conducting a sufficiency review, we may not weigh a witness’s credibility because it depends on appearance and demeanor, and these are within the domain of the trier of fact. J.P.B., 180 S.W.3d at 573. Even when such issues are found in the appellate record, we must defer to the fact finder’s reasonable resolutions. Id.Best Interests — Applicable LawIn a best interest analysis, we apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In analyzing the evidence within the Holley framework, we note that evidence of each Holley factor is not required before a court may find that termination is in a child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2012). In other words, the absence of evidence as to some of the Holley factors does not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in a child’s best interest. Id. Moreover, in conducting our review of a trial court’s best interest determination, we focus on whether termination is in the best interest of the child — not the best interest of the parent. In re D.M., 452 S.W.3d 462, 468-69 (Tex. App.—San Antonio 2014, no pet.).In addition to the Holley factors, we recognize there is a strong presumption 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). However, promptly and permanently placing a child in a safe environment is also presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a). Thus, to determine whether a child’s parent is willing and able to provide the child with a safe environment, we also consider the factors set forth in section 263.307(b) of the Code. Id.Additionally, evidence that proves one or more statutory grounds for termination may be probative to prove termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(1) grounds and best interest, but such evidence does not relieve State of burden to prove best interest). In conducting a best interest analysis, a court may consider in addition to direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). Finally, a trier of fact may measure a parent’s future conduct by her past conduct in determining whether termination of parental rights is in the child’s best interest. Id.ApplicationThe evidence shows Father had an ongoing drug problem. See Tex. Fam. Code Ann. § 263.307(b)(8) (history of substance abuse by child’s family); Holley, 544 S.W.2d at 371-72. Both caseworkers testified Father was “actively using methamphetamines,” and as a result of his drug use, he was not allowed to be around the children. Santos specifically testified Father admitted he had a drug problem; she also testified Father failed to complete a drug treatment program or any other aspect of his service plan. See Tex. Fam. Code Ann. § 263.307(b)(11) (willingness and ability of child’s family to effect positive environmental and personal changes within reasonable period of time); Holley, 544 S.W.2d at 371-72. A parent’s drug use and failure to comply with a family service plan supports a finding that termination is in the best interest of the child. In re L.G.R., 498 S.W.3d 195, 204 (Tex. App—Houston [14th Dist.] 2016, pet. denied); In re M.R., 243 S.W.3d 807, 821 (Tex. App—Fort Worth 2007, no pet.). Thus, based on evidence of Father’s drug use and inability to complete his service plan, the trial court could have reasonably determined termination was in the best interest of the children. See id.Moreover, the trial court could have reasonably determined that because of his drug use, Father would be unable to properly care for his children. See In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (stating parental drug use reflects poor judgment, which demonstrates inability to provide adequate care for child); E.D., 419 S.W.3d at 620 (highlighting that trial court may measure parent’s future conduct by past conduct when making best interest determination); see also Tex. Fam. Code Ann. § 263.307(b)(12) (whether child’s family demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371-72. In addition, the evidence shows that throughout the course of the case, Father was unable to provide proof of employment or stable housing, which also indicates an inability to care for the children. See M.R., 243 S.W.3d at 821 (noting that parent’s inability to provide stable home supports finding that termination is in best interest of child). Here, the children are young and need constant care and supervision. See Tex. Fam. Code Ann. § 263.307(b)(1) (child’s age and physical and mental vulnerabilities); Holley, 544 S.W.2d at 371-72. There is nothing in the record indicating Father could properly provide and care for the children. On the other hand, the record reflects the children are currently being well-cared for by their foster family, who plans to adopt the children.Accordingly, after considering all the evidence in the light most favorable to the best interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Father’s parental rights was in his children’s best interests. See J.P.B., 180 S.W.3d at 573; H.R.M., 209 S.W.3d at 108. Although Father argues the Department failed to produce evidence as to each Holley factor, we have repeatedly pointed out that evidence of each Holley factor is not required before a court may find that termination is in a child’s best interest. See, e.g., In re C.H.L., No. 04-17-00525-CV, 2017 WL 6597827, at *5 (Tex. App.—San Antonio Dec. 27, 2017, no pet.) (mem. op.) (citing C.H., 89 S.W.3d at 27); In re M.L.C, No. 04- 17-00459-CV, 2017 WL 6597828, at *3 (Tex. App.—San Antonio Dec. 27, 2017, pet. denied) (mem. op.) (same); In re S.J.R.-Z, 537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017) (pet. denied) (“In fact, evidence of only one factor may be sufficient for a factfinder to reasonably form a firm belief or conviction that termination is in a child’s best interest.); see also C.H., 89 S.W.3d at 27.In addition, Father has not challenged the trial court’s findings that he (1) constructively abandoned his children; (2) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his children; and (3) used a controlled substance in a manner that endangered his children and failed to complete a court- ordered substance abuse treatment program. See Tex. Fam. Code Ann. § 161.001(b)(1) (N), (O), (P). Grounds for termination are probative on the issue of best interest. C.H., 89 S.W.3d at 28. We therefore hold the evidence is sufficient to support the trial court’s finding that termination of Father’s parental rights was in the best interests of his children. As a result, we overrule Father’s first issue.Ineffective Assistance of CounselAs indicated above, Father also argues his trial counsel failed to provide him with effective assistance. According to Father, when trial counsel announced “not ready,” he should have argued for a continuance and requested more time to prepare. Father argues that as a result of his trial counsel’s lack of preparation, trial counsel asked only three questions, and thus, failed to provide him with any defense. It is Father’s position that his trial counsel essentially abandoned him by not fully participating in trial.Standard of Review and Applicable LawIndigent parents have a statutory right to counsel in cases involving the termination of their parental rights. Tex. Fam. Code Ann. § 107.013(a). That right to counsel includes the right to effective assistance of counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).In analyzing the effectiveness of counsel in a parental-rights termination case, we follow the well-established standard set out in Strickland v. Washington, 466 U.S. 668 (1984). In re D.R.R., No. 04-17-00076-CV, 2017 WL 3044575, at *2 (Tex. App—San Antonio July 19, 2017, pet. denied) (mem. op.); In re K.A.D.K., No. 04-15-00758-CV, 2016 WL 1587535, at *7 (Tex. App.—San Antonio Apr. 20, 2016, pet. denied) (mem. op.). Under the Strickland standard, Father must show (1) counsel’s performance was deficient, and (2) the deficiency prejudiced his defense. See In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006); D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7.To satisfy the first Strickland prong and establish counsel’s performance was deficient, Father must show trial counsel’s “conduct was so outrageous that no competent attorney would have engaged in it.” D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7. We indulge a strong presumption that trial counsel’s conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7.To satisfy the second Strickland prong, Father must show “there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.” D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” D.R.R., 2017 WL 3044575, at *2; K.A.D.K, 2016 WL 1587535, at *7.ApplicationFather is correct in that at the beginning of trial, his trial counsel stated she was not ready to proceed. In response to trial counsel’s not ready statement, the trial court stressed the importance of moving the case along due to the need for permanency for the young children. Moreover, the trial court pointed out the case had been reset upon the parties’ first request for a continuance. The trial court ultimately denied trial counsel’s request for a continuance, and at no point did trial counsel re-urge the need for a continuance. During the course of the trial, Father’s trial counsel asked Smith three questions regarding whether Father completed a drug treatment program. Trial counsel did not question Santos.To the extent Father is arguing his trial counsel failed to request a continuance, this court has held that an announcement of “not ready” is a motion for continuance. See In re R.F. III, 423 S.W.3d 486, 489-90 (Tex. App.—San Antonio 2014, no pet.). As to Father’s argument that his trial counsel did not re-urge the request for a continuance or ask additional questions during cross- examination, there is nothing in the record before us showing the reason for trial counsel’s actions or that such actions were unreasonable. See D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7. Father did not file a new trial motion or otherwise develop a record that might show whether his trial counsel had strategic reasons for her actions or inactions. See D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7. Because the record is silent as to the reasons for trial counsel’s conduct, we may not speculate as to the reasons behind counsel’s actions or omissions in order to find counsel’s performance deficient. See D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7.Even assuming Father’s trial counsel’s performance was deficient based on the reasons alleged by Father, there is nothing in the record establishing Father was prejudiced by his trial counsel’s performance. See D.R.R., 2017 WL 3044575, at *2; K.A.D.K., 2016 WL 1587535, at *7. The evidence shows Father was an ongoing drug user, who was unable to provide a stable environment for his young children. Both Department caseworkers testified as to their concern about Father’s drug use and inability to complete a drug treatment program. Moreover, the evidence shows that after Father left treatment at Outcry in the Barrio, he made no effort to complete other portions of his service plan, find a job, or obtain stable housing. Father does not explain, given the evidence, how the outcome might have been different if his counsel had reurged a motion for continuance or asked additional questions. Thus, he has failed to sustain his burden to show prejudice. See In re L.G.D., No. 06-17-00061-CV, 2017 WL 4507673, at *3 (Tex. App.— Texarkana Oct. 10, 2017, pet. denied) (mem. op.) (holding appellant failed to establish prejudice because did not indicate how parental rights would not have been terminated but for counsel’s performance).Father, however, argues he need not establish prejudice when the record reflects his trial counsel abandoned him at trial. For support of his position, Father cites In re J.M.O., arguing that because his trial counsel asked only three questions at trial, she essentially failed to appear at trial. 459 S.W.3d 90, 93-94 (Tex. App.—San Antonio 2014, no pet.). We disagree with Father’s reliance on J.M.O. and his contention that his trial counsel failed to appear.In J.M.O., the parent’s trial counsel physically failed to appear for trial. Id. at 94. There was testimony the attorney was not present in the courtroom, but in fact, at another hearing. Id. Here, unlike the attorney in J.M.O., Father’s trial counsel was in the courtroom, announced not ready, and participated in the case, albeit by asking Smith only three questions. Moreover, the crux of the testimony adduced from those questions established Father was participating in drug treatment services at Outcry in the Barrio. We therefore conclude trial counsel appeared at trial.Accordingly, we hold Father has failed to satisfy either prong of the Strickland test. We therefore overrule Father’s ineffective assistance of counsel claim.ConclusionBased on the foregoing, we overrule Father’s issues and affirm the trial court’s termination order.Marialyn Barnard, Justice
