In the Interest of M.B.-O., B.B.-O., D.B.-O., and J.B.-O., Children v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00306-CV
___________________________

IN THE INTEREST OF M.B.-O., B.B.-O., D.B.-O., AND J.B.-O., CHILDREN

On Appeal from the 324th District Court
Tarrant County, Texas
Trial Court No. 324-743747-23

Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION

In this ultra-accelerated appeal,1 Appellants Mother and Father appeal from the

judgment of the trial court terminating their parental rights as to their four children,

M.B.-O., B.B.-O., D.B.-O., and J.B.-O.2 The trial court found by clear and convincing

evidence that the Department of Family and Protective Services had proved four

conduct-based grounds for termination of the parent–child relationships between each

of the four children and both Mother and Father and that termination of each

relationship was in the best interest of the children. See Tex. Fam. Code Ann.

§ 161.001(b)(1), (b)(2).

In her appellate brief, Mother raised three points. Because Mother did not meet

her burden as to any point, we will affirm the trial court’s order as to Mother.

Father’s counsel has filed an Anders brief indicating that Father has no

meritorious grounds for appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396,

1400 (1967). Because our independent review of the record compels us to agree with

Father’s counsel, we will affirm the trial court’s order as to Father.

1
See Tex. R. Jud. Admin. 6.2(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F
app. (requiring appellate court to dispose of appeal from judgment terminating parental
rights, so far as reasonably possible, within 180 days after notice of appeal is filed).

We use initials to refer to minors and relationships to the minors or fictitious
2

names for others as necessary to protect the minors’ identities. See Tex. Fam. Code Ann.
§ 109.002(d); Tex. R. App. P. 9.8(b)(2).

2
I. BACKGROUND

A. History Before the Current Removal

The Department of Family and Protective Services filed three previous cases

involving Mother and Father, going back to 2020.3 In the 2020 case, DFPS received

reports that Mother and Father were abusing methamphetamines and cocaine and

selling drugs around their children. The case was closed as “unable to determine” for

neglectful supervision after Mother and Father refused to consent to drug testing.

Later that year, DFPS received a report that Father threatened to cut Mother

with a butcher’s knife, an allegation Father denied. The case was eventually closed as

“ruled out.”

In 2021, Father was convicted of possession of a controlled substance and placed

on 24 months’ probation. In 2022, Mother was charged with the state jail felony offense

of driving while intoxicated with a child younger than 15 years old in the vehicle and

with abandonment and endangerment of a child. Mother pled guilty to the felony DWI

offense and was sentenced to 20 days’ confinement in Tarrant County jail.

In 2022, DFPS received a report that Mother left the children alone and

unsupervised for long periods of time. That case was also closed as “ruled out.”

3
M.O.-O., B.B.-O., and D.B.-O. were born in 2016, 2017, and 2020, respectively.

3
In the summer of 2023, Mother, Father, and their three children were living in

their car or in hotels while on a waiting list for housing. By November 2023, they had

moved into an apartment.

B. Current Removal

In November 2023, J.B.-O., the youngest of Mother’s and Father’s children, was

born. Based on a report from the medical providers that J.B.-O. had tested positive for

cocaine at birth, Ashley Mason, an investigator for DFPS, initiated an investigation.

During the subsequent investigation, Mason visited Mother and Father at their home

and found it to be appropriate and clean.

Mother and Father agreed to a safety plan in which a family friend would

supervise contact with the children in their home. Although the family friend initially

agreed to participate in the safety plan, she withdrew from consideration because she

refused to complete a drug test and background check. Mother and Father completed

drug tests that both returned positive results for cocaine.

After working with Mother and Father for approximately ten days without

successfully creating a safety plan, Mason began the process of removal of J.B.-O. and

the three older children from the home. Mason did not initially inform Mother or Father

that she had begun the process of seeking removal because Mason knew Mother and

Father to have a history of not participating with DFPS and feared they would flee with

the children. Mason and her supervisor informed Mother by telephone that the petition

had been filed. Mason would later testify that Mother responded by saying that “just

4
because she tested positive for cocaine, it doesn’t mean she’s a drug user. [Mother] then

advised she was a drug dealer.”

When the children were removed from Mother’s and Father’s home, DFPS

found them to be clean and that they were not injured. Two of the older children,

B.B.-O. and M.B.-O., were developmentally delayed but received tutoring and

educational services to assist them with their academics while in foster placement. After

being removed from the home, M.B.-O. showed difficulty sleeping, and a hair-follicle

test showed a positive result for cocaine. DFPS reported that the children did not

otherwise have behavioral issues while in foster care.

Both Mother and Father filed affidavits of indigence and requests for appointed

counsel, and the trial court entered orders appointing trial counsel for each in January

2024. Father’s counsel filed a motion to withdraw in February 2024, citing inability to

communicate with Father in a manner consistent with good attorney-client relations,

which the trial court granted in March 2024 and appointed substitute counsel.

C. Safety Plans and Further Interactions with DFPS

Mother and Father agreed to safety plans proposed by DFPS that were

subsequently incorporated into a court order. As part of both of their safety plans,

Mother and Father submitted to drug testing. Although both parents had denied drug

use, both Mother and Father tested positive for cocaine in January, May, and August of

5
2024. Mother also tested positive for cocaine in January 20254 and for both cocaine and

marijuana in April 2025.

Mother was required to complete parenting classes, a psychological assessment,

a mental health assessment, a drug and alcohol assessment, and to complete individual

counseling, anger management, and a victim intervention and prevention program

(VIPP) for victims of domestic violence. Father was required to complete substantially

the same services but to complete a batterer’s intervention and prevention program

(BIPP) in place of the VIPP. Briana Spears, permanency specialist with Our

Communities Our Kids, provided Mother and Father with copies of the plans which

they signed and agreed to work on.

Mother completed parenting classes, two drug and alcohol assessments, a

psychological assessment, an MHMR assessment, and individual counseling. Mother

was re-referred to the drug and alcohol assessment because she tested positive for

controlled substances after completing the program. Mother was also re-referred for

her MHMR assessment because, according to Spears’ testimony at trial, “she was not

open and honest about information that was asked of her during the assessment.”

Mother was re-referred for her psychological evaluation because the doctor declined to

treat her after she became irate while waiting in the waiting room. When Spears

4
Testimony at the trial indicated that the result demonstrated that Mother had
used cocaine within 72 hours of the test. This was a re-test ordered after Mother’s and
Father’s tests returned “negative-dilute” results in December 2024.

6
recommended that Mother complete an anger management class to address issues

Mother had with her service providers, Mother became upset, yelled at Spears, and

ended the telephone call abruptly.

During the removal, Mother provided electronic tablets for her children to use

while they were in foster care. While on a call among Spears, Mother, and the person

providing foster care for the three older children, Mother asked Spears whether the

tablets had been provided to the children. Spears informed Mother that they had not

yet, as the Department needed to determine whether there was tracking software on

the tablets before providing them to the children. Mother told Spears that there was

tracking software on the tablets, that Mother knew where the children were, and that

Mother could follow the children home. The foster care provider disconnected the call

and put in a 30-day discharge for the children, seeking to end the foster placement.

Spears ultimately convinced the provider to continue the placement.

In February 2025, Father began his required BIPP with Waltina Chavis, a

licensed chemical dependency counselor, certified alcohol and drug counselor, and

BIPP coordinator. Father attended five of the eighteen sessions required for the

program. Father denied having a history of drug use on his counseling intake form.

During the counseling sessions, Father spoke to Chavis about Mother’s drug use habits,

7
including her alleged cocaine use in the family home, and said that Mother provided

sexual favors for access to cocaine.5

After Spears informed Father about a positive drug test result and about an

injury6 to M.B.-O., Mother left a voicemail for Spears. In the voicemail recording that

was introduced at trial, Mother said,

Hey, Brianna, this is [Mother]. I think you need to come talk to me and
have the conversation that you had with [Father] or whatever you said.
Like, why you’re not answering the phone, because this is far from over.
Okay? And if I lose my kids, I promise you in Jesus’ name, you’re gonna
lose yours, and I mark that to you. You have a blessed day.

Conversely, Spears noted that Mother’s and Father’s interactions with the

children, as opposed to service providers and DFPS personnel, were appropriate.

D. Alleged Aggravated Assault Incident

Spears’s testimony was broken up between the two dates of the trial, beginning

on April 17, 2025, and continued to June 27, 2025.

On the evening after the April trial date, Father was arrested for aggravated

assault with a deadly weapon against Mother. Spears testified on the second day of the

5
At trial, Father testified that, although he may have asked his permanency
specialist about Mother prostituting herself, he was “actually just asking for some
opinions.” He testified that when he asked, he was assuming things but was not sure
what was going on.
6
While in foster care, M.B.-O. suffered a fractured shoulder when she fell off a
“hoverboard” scooter that belonged to one of the older children in the home. In
another incident, she fractured a bone in her foot.

8
trial that Father had spoken to her about his arrest. She testified that he had told her he

had an altercation with a man who was staying in the family home and paying rent to

the family. When the person did not pay, Father wanted to evict him. The man charged

at Father, Father pushed him away, the man went to swing at Father, Father moved out

of the way, and Mother was hit. Mother was treated at a hospital.

Father also testified about his arrest. Father testified that he had not been charged

with anything and, asked if he were charged with aggravated assault with a deadly

weapon, testified that “[t]hat’s what they say.” After a brief recess, Father amended his

testimony, agreeing that he was charged with the offense, but “didn’t know that until

today.” He testified that Mother was the alleged victim of the offense.

Father asserted his Fifth Amendment right against self-incrimination when asked

why he was currently incarcerated at the time of the trial.7 He also asserted the right

when asked whether he placed a knife against Mother’s throat, pushed her down,

threatened another person with a knife, and had been drinking heavily at the time.

Mother was also asked about the incident during her testimony. Mother first

stated that she did not recall any interaction with police on that day, then denied having

had any contact with the police. She denied having been assaulted that day by Father

but admitted going to the hospital for an injury. Mother exercised her Fifth Amendment

7
In a civil case, a factfinder may draw negative inferences against a party from
that party’s invocation of the Fifth Amendment privilege against self-incrimination.
Tex. R. Evid. 513(c); Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007).

9
right as to statements attributed to her in a police report, including statements that she

and Father had not been getting along; that she believed Father was feeding information

to DFPS to cause her to lose custody of her children; that Father had been upset with

her for talking behind his back; that Father accused her of having sexual relations with

another person; that Father assaulted her with a knife by pressing it against her neck;

and that Father knocked her to the ground, placing her in fear for her safety. She

identified photographs of her injuries that were taken in the hospital that night but

asserted her fifth amendment right when asked about the cause of the injuries.

E. Mother’s Trial Counsel’s Motion to Withdraw

Mother’s trial counsel filed a motion to withdraw on May 14, 2025, between the

two days of the trial, based on a telephone conference with Mother. The trial court took

up the motion before resuming testimony on the second day of the trial. Because

Mother was not yet present in the courtroom when the trial started, the trial court did

not rule on the motion and instead allowed testimony to continue until Mother arrived,

but the court indicated an opinion that the motion was a delay tactic. Mother arrived

during Spears’s testimony. After Spears’s testimony was complete, DFPS called Mother

to testify, but the court first took up the motion.

When the trial court took up the motion, Mother stated that her trial counsel had

just informed her that if counsel withdrew, Mother would have no attorney representing

her, so, because she felt she had no choice, she “would have to work with her.” The

trial court did not contradict Mother’s characterization of her options. Trial counsel

10
stated that she was also willing to work with Mother and was prepared to continue.

After confirming that counsel was willing to continue her representation, the court

resumed the trial without ruling on the motion.

F. Mother’s Testimony

Mother testified that her children were removed from the home because “there

was something found in my placenta” at the time of J.B.-O.’s birth, because she did not

know she was pregnant until the fifth or sixth month of the pregnancy. During her

testimony, Mother stated that she would never willingly expose her children to drugs

and that she was not using drugs. She testified that any exposure was not “willing”

because she did not know she was pregnant for the first six months of the pregnancy.

She rather characterized her actions as casually socializing or self-medicating but

clarified that she only used legal substances, “that are available at the store. You know,

the ones that the government provides, you know, for the whole world.” When asked

about her multiple positive drug tests, she clarified that she never said she had never

used any illegal substance, but that she would never “willingly, with my children

involved, have [done] anything to harm or hurt them relating to anything that was going

on with [her].” She clarified that she had used ecstasy, marijuana, alcohol, tobacco, and

“some cocaine from outside.” Mother testified that she could not remember when she

last used ecstasy, although it was likely in the previous six months, and that, referring

to ecstasy, “that pill covers cocaine,” indicating that the ecstasy she took had cocaine in

11
it as well. Mother said she did not recall telling her case worker that she was a drug

dealer but not a drug user.

G. Order

After presentation of evidence and argument, the trial court terminated Father’s

and Mother’s parent-child relationships with each of the four children, M.B.-O.,

B.B.-O., D.B.-O., and J.B.-O. The court found clear and convincing evidence of four

conduct-based grounds for termination and that the termination was in the children’s

best interest.

H. Motion for New Trial and Hearing

After the trial, Mother filed a motion to substitute counsel, which was granted,

and a motion for new trial citing grounds of ineffective assistance by her trial counsel,

insufficient evidence, and denial of her right to a trial by jury. The trial court took up

the motion for new trial at a hearing on August 22, 2025.

At that hearing, only Mother testified, and no exhibits were offered. Mother

testified that she had a falling-out with her trial attorney “at some point,” and had asked

her several times to file a motion to withdraw. Mother testified that her trial attorney

advised her that if the motion to withdraw were granted, Mother would have to

represent herself. Although Mother asked that the motion be filed, she ultimately

continued with her trial attorney because of this advice. Mother testified that her trial

counsel failed to call several witnesses, and gave descriptions but no names of any

individual witness who was not called during the trial. Mother did not provide a copy

12
of the list of names she said her trial counsel had disregarded. Mother also testified that

she had letters from two parenting groups and certificates of completion which were

not offered at trial. Mother testified that she did not meet with her trial counsel at her

office but had met online and at the courthouse.

Mother’s former trial counsel was present at the hearing—and briefly

cross-examined Mother—but was not called as a witness and did not testify.

II. MOTHER’S APPELLATE BRIEF

On appeal, Mother raises three points. In her first point, Mother argues that her

trial counsel’s advice about her right to substitute counsel constituted ineffective

assistance. In her second point, Mother argues that her counsel’s representation before

and during trial also constituted ineffective assistance. In her third point, Mother argues

that insufficient evidence supported the trial court’s finding that termination was in the

children’s best interest.

A. Ineffective Assistance of Counsel

Mother alleges that her trial counsel’s representation fell below professional

standards and deprived her of her due process right to counsel.

1. Applicable Law

Ineffective-assistance-of-counsel claims in parental-termination cases, as in

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

articulated in Strickland v. Washington. In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003)

13
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2062 (1984)). The test

requires the following:

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.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. A party claiming ineffective assistance of

counsel must satisfy both prongs of the Strickland test to succeed. M.S., 115 S.W.3d at

545.

In examining counsel’s performance under the first prong, “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.” Id. (quoting Strickland,

466 U.S. at 687, 104 S. Ct. at 2065). Counsel’s performance falls below acceptable levels

only when the “representation is so grossly deficient as to render proceedings

fundamentally unfair.” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App.

1983)). 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 assistance,

including the possibility that counsel’s actions are strategic. In re D.T., 625 S.W.3d 62,

74 (Tex. 2021). The challenged conduct will constitute ineffective assistance only when

the conduct is so outrageous that no competent attorney would have engaged in it. Id.

14
An appellate court may not infer ineffective assistance simply from an unclear

record or a record that does not show why counsel failed to do something. Id. at

75 (holding that nothing in the record rebutted the presumption of competence); In re

J.P.-L., 592 S.W.3d 559, 576 (Tex. App.—Fort Worth 2019, pet. denied) (“We may not

speculate in order to find trial counsel ineffective when the record is silent regarding

counsel’s reasons for her actions”); see Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim.

App. 2012) (holding similarly in criminal cases).

Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must

show a reasonable probability that the proceeding would have turned out differently

without the deficient performance. M.S., 115 S.W.3d at 549–50. A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; M.S., 115 S.W.3d at 550. We must

ultimately focus on examining the fundamental fairness of the proceeding in which the

result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.

2. Trial Counsel’s Representations of Mother’s Right to Counsel

Mother argues in her first point that her due process rights were violated by her

trial counsel’s advice regarding her right to representation. An argument that counsel’s

misrepresentation of the law constituted a due process violation is an argument that

15
counsel was ineffective, so we review this point under the applicable ineffective-

assistance standard. See In re J.O.A., 283 S.W.3d 336, 341 (Tex. 2009).

We begin with the Family Code’s provisions regarding the right to counsel in a

termination case. Family Code Section 107.013 provides that in a suit filed by a

governmental entity in which termination of the parent–child relationship is requested,

the trial court shall appoint an attorney ad litem to represent the interests of an indigent

parent who responds in opposition to the termination. Tex. Fam. Code Ann.

§ 107.013(a)(1). A parent’s filing of an affidavit of indigency triggers the process for

mandatory appointment of an attorney ad litem. In re V.L.B., 445 S.W.3d 802, 805 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (op. on reh’g); In re K.L.L.H.,

No. 06-09-00067-CV, 2010 WL 87043, at *5 (Tex. App.—Texarkana Jan. 12, 2010, pet.

denied) (mem. op.); see In re B.C., 592 S.W.3d 133, 134 (Tex. 2019) (“When a parent

claims indigence, an attorney shall be appointed if the trial court determines the parent

is indigent[.]”).

“[T]he United States Supreme Court places termination of parental rights cases

in the same category as criminal cases and analogizes a parent losing parental rights to

‘a defendant resisting criminal conviction’ because both seek ‘to be spared from the

State’s devastatingly adverse action.’” In re C.L.S., 403 S.W.3d 15, 20 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (quoting M.L.B. v. S.L.J., 519 U.S. 102, 125,

117 S. Ct. 555, 567 (1996)). In that interest, Texas courts have applied criminal

standards in parental-rights jurisprudence as it relates to effective assistance of counsel.

16
See M.S. 115 S.W.3d at 544–45 (adopting the Strickland standard in parental-termination

cases).

In the analogous criminal context, the right to an attorney is not absolute and

must be balanced with “other important considerations relating to the integrity of the

judicial process and the fair and orderly administration of justice.” In re J.S.,

No. 02-24-00564-CV, 2025 WL 1478394, at *11 (Tex. App.—Fort Worth May 22,

2025, no pet.)(mem. op.) (citing Gonzalez v. State, 117 S.W.3d 831, 837 (Tex. Crim. App.

2003)); see also United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S. Ct. 2557, 2565–

66 (2006) (noting that trial courts have “wide latitude in balancing the right to counsel

of choice against the needs of fairness . . . and against demands of its calendar”); In re

B.C., No. 02-22-00256-CV, 2022 WL 17172338, at *6 (Tex. App.—Fort Worth Nov.

23, 2022, pet. denied)(mem. op.) (“[T]he right to counsel may not be used to obstruct

the judicial process or to interfere with the efficient, prompt administration of justice.”).

“Trial courts have the duty, and discretion, to maintain the orderly flow and

administration of judicial proceedings, including the exercise of a defendant’s right to

counsel.” J.S., 2025 WL 1478394, at *11 (quoting Medley v. State, 47 S.W.3d 17, 23 (Tex.

App.—Amarillo 2000, pet. ref’d) (op. on reh’g)).

“A defendant may not use his right to counsel to manipulate the court or to delay

his trial.” Id. (quoting Culverhouse v. State, 755 S.W.2d 856, 861 (Tex. Crim. App. 1988)).

Similarly, a defendant “does not have the right to repeatedly alternate his position on

the right to counsel and thereby delay trial.” Id. (quoting Medley, 47 S.W.3d at 23). “Thus,

17
an accused may not wait until the day of trial to demand different counsel or to request

that counsel be dismissed so that he may retain other counsel.” Id. (quoting Webb v.

State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976)). “Indeed, a trial court’s refusal to

appoint counsel at the eleventh hour does not render the defendant’s invocation of the

right to self-representation involuntary.” Id. (quoting Davis v. State,

No. 09-15-00450-CR, 2017 WL 1953277, at *3 (Tex. App.—Beaumont May 10, 2017,

no pet.) (mem. op., not designated for publication)).

An attorney appointed to represent the interests of an indigent parent is

appointed to serve in that capacity until the attorney is relieved of duties or replaced by

another attorney after a finding of good cause is rendered by the court on the record.

Tex. Fam. Code Ann. § 107.016(2)(C). 8 If a parent is denied counsel at a critical stage

of a proceeding to terminate parental rights, such as a final hearing, a presumption of

prejudice may be warranted. In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio

2014, no pet.).

Mother argues that her trial counsel’s advice, that if the motion were granted her

only option would be self-representation, was so egregious as to constitute ineffective

In criminal cases, a court confronted with a mid-trial request for change of
8

appointed counsel has three well-defined options: (1) appoint or allow the accused to
retain new counsel; (2) allow the accused to exercise the right to self-representation if
the accused unequivocally asserts that right; or (3) compel the accused who does not
waive counsel and does not assert the right to self-representation to proceed to trial
with counsel already appointed, if the court does not allow new counsel. Burgess v. State,
816 S.W.2d 424, 428–29 (Tex. Crim. App. 1991).

18
assistance. Mother testified that she understood that “if I get rid of her today or she

withdraws that I’m not going to have anyone represent me, is what she just told me.”

Presuming this testimony correctly reflected trial counsel’s advice to Mother, we cannot

say that this is necessarily an incorrect statement of the law, as the statute prescribes

that either relief from duties or replacement by another attorney are appropriate

outcomes of a motion to withdraw. Tex. Fam. Code Ann. § 107.016(2)(C). And here,

the trial court indicated unwillingness to delay the trial by appointing new counsel and

characterized the motion as “a delaying tactic to continue this again.” This court has

held that in a termination case, a parent’s using her right to counsel to manipulate the

court or delay trial can constitute a waiver of the right to counsel. J.S.,

2025 WL 1478394 at *13. Further, we cannot say that counsel’s advice to Mother at the

hearing, in the face of the trial court’s previous statement disfavoring delay, was not

advice about a potential ruling by the court rather than a failure to explain mother’s

rights.

Mother argues that her incomplete understanding rendered her decision to

proceed involuntary and the proceedings unfair. Mother correctly argues that, in the

criminal context, gross misadvice may render a plea involuntary. See Ex Parte

Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012). But even assuming she

received incomplete legal advice, she cites no authority—and we can find none—in

which a court has determined that incomplete legal advice about a parent’s right to

19
counsel of choice would constitute representation so grossly deficient to render

proceedings unfair. See M.S., 115 S.W.3d at 545.

Further, the record is insufficient to support Mother’s contention that the advice

she received constituted gross misadvice. It is Mother’s burden to overcome the

presumption that, under the circumstances, the challenged action might be considered

trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong v. State, 25 S.W.3d 707,

712 (Tex. Crim. App. 2000). Moreover, any allegation of ineffectiveness must be firmly

founded on the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. J.P.-L., 592 S.W.3d at 576; see also Bone v. State, 77 S.W.3d 828, 836 (Tex.

Crim. App. 2002) (stating that trial counsel should be given opportunity to explain

actions before being condemned as unprofessional and incompetent).

From the record, the trial court appeared unwilling to appoint new counsel.

Further, although the trial court conducted an evidentiary hearing on Mother’s motion

for new trial and Mother’s trial counsel was present, Mother did not call her trial counsel

to testify. The record contains no evidence of Mother’s trial counsel’s trial strategy or

any lack thereof, or any reason for any advice she provided. When, as here, the record

fails to show counsel’s strategy, if any, or what specifically counsel did or did not tell

Mother, we cannot conclude that counsel’s performance was deficient. See Jackson v.

State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994). Because the record does not

show deficient performance, these allegations also do not meet the first prong of the

Strickland test. See Id.

20
Because Mother has not met her burden under Strickland, we overrule her first

point. See id.

3. Ineffective Preparation and Presentation at Trial

Mother alleges that various deficiencies of representation amounted to

ineffective assistance by her trial counsel.

Mother alleges that her trial counsel violated her rights by refusing Mother’s

offer of a list of potential witnesses and numerous pictures and exhibits for trial. 9 A

claim of ineffective assistance based on trial counsel’s failure to call a witness cannot

succeed absent a showing that the witness was available to testify and that the witness’s

testimony would have benefitted the parent’s defense. See Ex parte Ramirez, 280 S.W.3d

848, 853 (Tex. Crim. App. 2007). Mother made no such showing.

At the hearing on Mother’s motion for new trial, Mother was asked which

witnesses her trial counsel failed to call. Mother did not offer a list of names of

witnesses, but only general descriptions, and although she made a general statement

that “these people” would be available to testify, she offered no indication that any

particular witness would have been available. Further, Mother did not testify what these

witnesses could have shown at the trial that would have benefitted her defense and

would not have been duplicative of Spears’s and Mother’s testimony as to the services

Although Mother alleges that her trial counsel offered no exhibits, she offered
9

one exhibit during opening—a summary of requested relief.

21
Mother completed. Mother’s allegation that her trial counsel failed to call unnamed

witnesses does not satisfy the first prong of Strickland, and her failure to demonstrate

lack of fairness in the outcome of the case does not satisfy the second. Id.

Mother alleges several other deficiencies. Mother argues that her trial counsel,

because she “asked her client only six questions that could be considered touching on

best-interest issues,” did not address the best interest of the children at all.10 Mother

further alleges that she was entitled to a jury trial and that her counsel failed to inform

her of that right.11 Finally, Mother alleges that her trial counsel failed to invite Mother

into her office and used Zoom and the courthouse for meetings; failed to issue any

discovery to the State; and failed to allocate sufficient time with Mother in preparing

for trial.

Again, Mother did not meet her burden to overcome the presumption that,

under the circumstances, the challenged actions might be considered trial strategy.

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The record fails to show counsel’s strategy

in preparation or presentation of evidence at trial, so we again cannot conclude that

counsel’s performance was deficient. See J.P.-L., 592 S.W.3d at 576; Jackson, 877 S.W.2d

Mother’s trial counsel cross examined each of the petitioner’s other witnesses
10

as well as Father, in addition to her questions to Mother.

Parties to a parental-termination case may demand a jury trial or elect to have a
11

judge decide the case on the merits. Tex. Fam. Code Ann. § 105.002. The Order of
Termination states that a jury was waived.

22
at 771–72; c.f. Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston[1st Dist.] 2006,

pet. ref’d) (holding that because appellant did not call his trial counsel during motion

for new trial hearing to give reasons for failure to investigate or present mitigating

evidence, record does not support ineffective assistance claim).

Mother also alleges that she did not understand the implications of her Fifth

Amendment right not to testify and that her counsel’s failure to interrupt her testimony

to explain the right to her was evidence that her counsel did not sufficiently explain the

right to her. However, the court explained the right to Mother, and Mother stated that

she understood it.12 Further, although Mother’s trial counsel did not interrupt her

testimony to explain her Fifth Amendment right to her, the record is silent as to any

strategic considerations her trial counsel may have weighed. Because we cannot say that

failure to interrupt testimony to explain a client’s Fifth Amendment rights is so gross a

deviation from professional standards as to render the proceeding unfair, and the record

is silent as to Mother’s trial counsel’s reasons or considerations for any advice given or

not given, this argument also fails to satisfy the first prong of Strickland. M.S.,

115 S.W.3d at 545.

12
This was after an exchange in which Mother not only asserted and explained
the right, but then successfully argued its applicability against DFPS’s attorney.

23
Because Mother failed to make the required showing under the first prong of

Strickland as to each portion of her argument, 13 we overrule Mother’s second point.

B. Evidentiary Sufficiency

Mother argues that insufficient evidence supported the trial court’s finding that

termination of the parent–child relationship between Mother and each of her four

children was in the children’s best interests.

1. Applicable Law

For a trial court to terminate a parent–child relationship, the party seeking

termination—in this case DFPS—must prove two elements by clear and convincing

evidence: (1) that the parent’s actions satisfy one termination ground listed in Texas

Family Code Section 161.001(b)(1)14 and (b)(2) that termination is in the child’s best

interest. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex.

2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it

“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; E.N.C.,

384 S.W.3d at 802.

Because Mother has not met her burden under the first prong of Strickland, we
13

need not address the second. See D.T., 625 S.W.3d at 75; c.f. Mata v. State, 226 S.W.3d
425, 433 (Tex. Crim. App. 2007).

Mother does not challenge the trial court’s statutory conduct-based findings,
14

and we therefore do not address them.

24
To determine whether the evidence is legally sufficient in parental-termination

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

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

that the finding is true. In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). The factfinder may

draw inferences, but they must be reasonable and logical. Id. We disregard all evidence

that a reasonable factfinder could have disbelieved, and we consider undisputed

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

to the finding if a reasonable factfinder could, and we disregard contrary evidence unless

a reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The

factfinder is the sole judge of the witnesses’ credibility and demeanor. J.O.A.,

283 S.W.3d at 346.

In determining factual sufficiency of the evidence supporting termination of the

parent–child relationship, we must perform “an exacting review of the entire record.”

In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the

factfinder’s findings and do not supplant them with our own. In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could

reasonably form a firm conviction or belief that DFPS proved that termination of the

parent–child relationship would be in the child’s best interest. Tex. Fam. Code Ann.

§ 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could

form such a firm conviction or belief, then the evidence is factually sufficient. C.H.,

89 S.W.3d at 18–19.

25
If the evidence is factually sufficient, then it is necessarily legally sufficient as

well. In re A.S., No. 02-16-00076-CV, 2016 WL 3364838, at *7 (Tex. App.—Fort Worth

June 16, 2016, no pet.).

With proof of one or more of the grounds for termination, the trial court may

order termination of the parent–child relationship only if the factfinder also finds by

clear and convincing evidence that termination is in the best interest of the child. Tex.

Fam. Code Ann. § 161.001(b)(2).

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

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

child-centered, focusing on the child’s well-being, safety, and development, In re A.C.,

560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child’s best interest may be

the same evidence that is probative of a Subsection (b)(1) ground. In re E.C.R.,

402 S.W.3d 239, 249 (Tex. 2013); C.H., 89 S.W.3d at 28; see Tex. Fam. Code

Ann. § 161.001(b)(1), (b)(2). We also consider the evidence of the following

nonexclusive factors that the factfinder may apply in determining the child’s best

interest:

• the child’s desires;

• the child’s emotional and physical needs now and in the future;

• the emotional and physical danger to the child now and in the future;

• the parental abilities of the individuals seeking custody;

26
• the programs available to assist these individuals to promote the child’s best
interest;

• the plans for the child by these individuals or by the agency seeking custody;

• the stability of the home or proposed placement;

• the parent’s acts or omissions that may indicate that the existing parent–child
relationship is not a proper one; and

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

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at

249 (stating that in reviewing a best-interest finding, “we consider, among other

evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807. These factors do not form an

exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at 27.

Furthermore, undisputed evidence of just one factor may suffice in a particular case to

support a finding that termination is in the child’s best interest. Id. On the other hand,

the presence of paltry evidence relevant to each factor will not support such a finding.

Id.; In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.—Fort Worth

July 5, 2018, no pet.) (mem. op.).

2. Best Interest Analysis

For efficiency, we will group relevant Holley factors to consider evidence

applicable to several together, where possible.

With regards to the children’s emotional and physical needs now and in the

future, and the emotional and physical danger to them now and in the future, the record

reflects that Mother’s and Father’s past criminal and drug use histories are detrimental

27
to the best interests of the children. See Holley, 544 S.W.2d at 371–72. Mother was

convicted in 2022 of driving while intoxicated with one of the children in the vehicle.

See B.C. v. Tex. Dep’t of Fam. & Protective Servs., 446 S.W.3d 869, 875 (Tex. App.—El

Paso 2014, no pet.) (holding conviction for driving while intoxicated relevant to

determination of Holley factors). Mother’s youngest child, J.B.-O., tested positive for

cocaine at birth, indicating that Mother used cocaine during her pregnancy—a fact

supported by Mother’s testimony. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.) (“A mother’s use of drugs during pregnancy may amount to

conduct that endangers the physical and emotional well-being of the child”). Father

tested positive for controlled substances throughout the pendency of the case. Mother

tested positive for cocaine and other controlled substances throughout the pendency

of the case, misrepresented her history of controlled substance use during her

assessments, and continued to use controlled substances after completing a drug and

alcohol program. See id 125–26. (“Drug addition and its effect on a parent’s life and

ability to parent may establish an endangering course of conduct as well.”); see also In re

D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (stating that evidence

of endangerment is relevant to a best-interest determination). Further, Mother and

Father have a history of domestic violence, as DFPS previously investigated reports of

violence, and Father was arrested for assaulting Mother in their home on the first day

of the trial. See In re R.R., 294 S.W.3d 213, 235 (Tex. App.—Fort Worth 2009, no pet.)

28
(holding that exposure to domestic violence is relevant when considering child’s best

interest).

With regard to the children’s desires, the children were happy and well-adjusted

in their foster placements and were well cared-for by them. See In re J.D., 436 S.W.3d

105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re J.M., 156 S.W.3d

696, 706 (Tex. App.—Dallas 2005, no pet.). However, the children did not testify at

trial as to their desires.

With respect to the parental abilities of the individuals seeking custody and the

parent’s acts or omissions that may indicate that the existing parent–child relationship

is not a proper one, there was testimony at trial that Mother and Father behaved

appropriately toward the children during visitation with them. However, Mother

became irate and yelled at staff while the children were present when she had concerns

for the children’s care and had threatened Spears’s children.

With respect to the stability of the home or proposed placement, the testimony

at trial indicated that Mother and Father maintained their apartment appropriately at

the time of the removal in November 2023. However, in June 2023, while they were on

the waitlist for the apartment, Mother and Father lived in their car or in hotels with

their three older children. Father also raised concerns that Mother brought people into

the home to use illegal drugs or left for days at a time for similar purposes.

With respect to Mother’s excuse, if any, for the acts or omissions, there was only

one introduced during testimony at trial. Asked about exposing her children to drugs,

29
Mother testified that she would “never willingly” do so, because she did not know she

was pregnant for six months of the pregnancy. She testified that she was not “using,”

but only “self-medicating” with “just the legal substance[s] that are available at the store

. . . that the government provides.” She clarified that the substances she used included

ecstasy, marijuana, alcohol, tobacco, and cocaine.

Mother argues that, because undisputed evidence of just one factor may suffice

to support a finding that termination is in a child’s best interest, we must consider her

alleged undisputed evidence that Mother had been successfully raising her children for

eight years before DFPS “entered her life” as evidence that termination was not in the

children’s best interest. 15 While we agree that we must consider parental history in

reviewing a best-interest determination, Mother’s representations of the past history are

incomplete.

The first contact reflected in the record between Mother and DFPS was not the

2023 removal, but the 2020 case involving allegations of methamphetamine abuse by

Mother and Father. 16 Mother argues that there is no evidence that the children had ever

15
Mother also argues that she was prevented from developing her parental history
at trial by ineffective assistance of trial counsel. However, Mother makes no showing
that her counsel’s representation fell below professional standards, that her counsel’s
choice was not strategic, or that any failure to further develop Mother’s parental history
prejudiced her case. See D.T., 625 S.W.3d at 74; Menefield, 363 S.W.3d at 593.
16
There was also testimony introduced without objection that Mother had other,
older children but did not have—and had never had—custody of them. However, no
details of any DFPS involvement as to those older children is reflected in the record.

30
suffered abuse or neglect prior to this case. However, two of the children tested positive

for cocaine during the course of this case. Testimony indicated that Mother had engaged

in illegal drug use in the home and that she traded sexual favors for access to illegal

drugs.

Considering her parenting history as a factor with the other best-interest factors,

and weighing the entire record, we hold that factually-sufficient evidence supported the

trial court’s determination that termination was in the children’s best interest. See A.B.,

437 S.W.3d at 500. Because the evidence was factually sufficient, it was also legally

sufficient. A.S., 2016 WL 3364838, at *7.

We overrule Mother’s third point.

III. FATHER’S ANDERS BRIEF

Father’s appointed appellate counsel filed a motion to withdraw with his Anders

brief. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also In re K.M., 98 S.W.3d 774,

776–77 (Tex. App.—Fort Worth 2003, order) (holding Anders procedures apply to

parental termination appeals), disp. on merits, 2003 WL 2006583, at *1–3 (Tex. App.—

Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). Father’s counsel’s brief

presents a professional evaluation of the record, an analysis of potential appellate issues,

and a demonstration of why there are no meritorious grounds for reversal.

Counsel served the brief on Father and informed him of his right to request the

record and to file a pro se response to the Anders brief. See Anders, 386 U.S. at 744,

87 S. Ct. at 1400; In re G.C., No. 02-20-00368-CV, 2021 WL 1823341, at *1 (Tex.

31
App.—Fort Worth May 7, 2021, pet. denied) (mem. op.). Counsel also provided Father

with a motion for pro se access to the appellate record and this court’s mailing address.

See Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014). Father’s counsel

informed Father of his pro se right to seek discretionary review of our judgment. See

Kelly, 436 S.W.3d at 319.

Father has not sought to access the appellate record and did not file a response.

The State has declined to file a responsive brief.

Having independently examined the appellate record to determine if any arguable

grounds for appeal exist, we conclude that Father’s appeal is frivolous. In re K.W.,

No. 02-23-00082-CV, 2023 WL 4289613, at *1 (Tex. App.—Fort Worth June 30, 2023,

no pet.) (mem. op.); see In re K.A., No. 02-23-00014-CV, 2023 WL 3251013, at *1 (Tex.

App.—Fort Worth May 4, 2023, pet. ref’d) (mem. op.).

IV. CONCLUSION

Having overruled each of Mother’s points, we affirm the trial court’s order as to

Mother.

We agree with Father’s counsel that Father’s appeal is frivolous; thus, we affirm

the trial court’s termination order as to Father. We deny Father’s counsel’s motion to

withdraw; counsel remains appointed in this case through any proceedings in the Texas

Supreme Court unless otherwise relieved of those duties for good cause. See In re P.M.,

520 S.W.3d 24, 27–28 (Tex. 2016) (order); In re J.W., No. 02-22-00161-CV,

32
2022 WL 15076379, at *1 (Tex. App.—Fort Worth Oct. 27, 2022, pet. denied) (mem.

op. on reh’g).

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: December 11, 2025

33