Texas Judiciary Online - HTML Opinion

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Opinion issued January = 16,=20 2007

In The

Court = of=20 Appeals

For=20 The

First = District=20 of Texas

NO.=20 01-05-00987-CV

"JANE DOE,"=20 Appellant

BRAZORIA=20 COUNTY CHILD PROTECTIVE SERVICES, Appellee

On = Appeal=20 from the 300th District Court

Brazoria=20 County, Texas

Trial Court=20 Cause No. 28, 101

O = P I N I O=20 N

Appellant,=20 Jane Doe, appeals the trial court's judgment, rendered on a jury = verdict,=20 terminating the parent-child relationship between her and her = children,=20 M.T. IV and R.A. This case requires us to decide (1) whether the = timing of=20 the filing of the notice of appeal deprives us of jurisdiction to = decide=20 the case and (2) whether we should reverse the judgment of = termination=20 based on ineffective assistance of Antuna's trial counsel. We hold = that we=20 have jurisdiction to consider this appeal and that Antuna has not=20 established her claim of ineffective assistance of counsel. We = affirm the=20 trial court's judgment.

Factual and=20 Procedural Background

Doe and=20 M.T. III are the parents of M.T IV., born in September 1997. Doe = and Q. L.=20 are the parents of R.A., born in August 2001.

Case=20 investigation began based on a referral stating that minor = children=20 resided in a home where drugs were present. On March 16, 2004, = Lake=20 Jackson Police Department Detective Carey and an employee of = appellee=20 Brazoria County Children Protective Services (BCCPS), visited = Doe's home=20 where they found her and her boyfriend, R. P. The children were = not there.=20 With Doe's consent, the police searched her apartment and found = two small=20 baggies of marijuana, roach clips, a set of scales, rolling paper, = and=20 three .357 magnum bullets, though no gun was found. The police = took=20 photographs of the apartment, which were later admitted into = evidence. The=20 police arrested Doe and R.P. and charged them with possession of = marijuana=20 and child endangerment.

On March=20 23, 2004, the trial court signed temporary orders granting = temporary=20 managing conservatorship of the children to BCCPS, and temporary=20 possessory conservatorship to Doe. The trial court also awarded = temporary=20 possessory conservatorship of R.A. to Q.L. and temporary = possessory=20 conservatorship of M.T. IV to M.T. III.

Additionally, the=20 trial court ordered Doe to (1) submit to and cooperate in the = development=20 of a psychiatric evaluation, (2) successfully complete parenting = classes,=20 (3) successfully complete counseling addressing the specific = issues that=20 led to the children's removal, (4) successfully complete a drug = and=20 alcohol assessment, (5) remain drug and alcohol free during the = pendency=20 of the suit, and (6) maintain a safe and stable home environment. = The=20 court admonished Doe that fulfillment of these requirements was = required=20 to obtain the children's return and that failure to comply with = any of the=20 orders could result in the restriction or termination of her = parental=20 rights.

On December=20 28, 2004, BCCPS requested that the trial court restrict Doe, = subject to=20 conditions and restrictions, to supervised access to the children = as the=20 court determined was in their best interest, or, in the = alternative, that=20 the trial court terminate the parent-child relationship between = her and=20 the children. As grounds for termination, BCCPS asserted that Doe = (1)=20 knowingly placed or knowingly allowed the children to remain in = conditions=20 endangering their physical or emotional well-being,^{=20
(1)} (2) engaged in conduct or knowingly placed the = children with=20 persons who engaged in conduct which endangers their physical or = emotional=20 well-being,^{=20
(2)} and (3) failed to comply with the provisions of a = court=20 order that specified the conditions required for her to obtain the = return=20 of the children, who have been in the temporary managing = conservatorship=20 of the Texas Department of Family and Protective Services for not = less=20 than nine months as the result of the children's removal from the = parent,=20 under Chapter 262 of the Texas Family Code, for abuse and neglect = of the=20 children.^{=20
(3)}

On=20 September 6, 2005, the trial court began the hearing on BCCPS's = request=20 for final orders regarding access to the children or the = termination of=20 the parent-child relationship between the children and their = parents. At=20 the opening of the proceedings, the trial court approved an agreed = judgment terminating the parent-child relationship between M. T. = III and=20 M.T IV. The trial court also ordered the parent-child relationship = established between Q.L. and R.A., dismissed the termination case = against=20 Q.L., and approved the monitored return of R.A. to Q.L., based on = agreed=20 removal of R.A. while Q.L. completed specified services over the = next 180=20 days.

The trial=20 court then proceeded with BCCPS's request to determine Doe's = access to the=20 children or terminate the parent-child relationship between the = children=20 and Doe. BCCPS called Doe as an adverse witness. She testified = that before=20 March 16, 2004, the children resided primarily with her. On March = 16,=20 2004, BCCPS and the police found marijuana in her home, which led = to the=20 convictions of her and R.P. for its possession. That day, Doe = admitted to=20 the BCCPS worker that she sold marijuana from her home, and that = she knew=20 R.P. had been incarcerated a few times. At the time, she thought = it was=20 all right for R.P. to be around her children, despite his prior=20 incarceration.

Doe=20 admitted that prior to March 16, 2004, drug users came to her home = to buy=20 marijuana. She said that R.P. forced her to sell drugs from her = house. She=20 feels like she has a drug problem, spanning seven or eight years, = or=20 roughly M.T. IV's entire life. She tried to address the problem in = 2004,=20 when BCCPS sent her go to rehabilitation, but that did not go = well. On=20 March 29, 2004, she tested positive for marijuana and cocaine. = BCCPS=20 offered her drug rehabilitation services, but she quit because she = lost=20 hope with all she was going through, including the loss of her=20 children.

Doe=20 submitted to drug rehabilitation again in May 2004, and which she=20 completed successfully. Not long thereafter, however, she = miscarried=20 R.P.'s baby and started using drugs again. She admitted to using = cocaine=20 on March 15, 2005. She has had one or two citations for public=20 intoxication during the pendency of this case. The last time she = used=20 marijuana was the weekend before trial.

Doe=20 conceded that she did not follow through on her individual therapy = provided by BCCPS. She knows it is wrong to use drugs around = children,=20 that she "messed up," that the only environment her children know = is=20 living with a parent who is a drug addict, and that she will = probably not=20 get her children back. She is an addict because she has not been = able to=20 choose her children over drugs.

Doe=20 testified that though she was addicted to drugs, she took care of = the=20 children, bathed them, fed them, and saw that M.T. IV went to = school. She=20 did not do drugs in front of her children. She last saw the = children in=20 July because she was in Oklahoma in August. The last place she = worked was=20 at the Country Caf=E9 in February or March, but she quit again. = Before she=20 was with R.P., she and the children lived together, and she held a = job.=20

When BCCPS=20 offered Doe a free psychological evaluation and parenting classes, = she=20 completed the evaluation, but not the parenting classes. She has = paid her=20 $50 monthly court-ordered child support for the children. The = longest she=20 has gone without seeing the children is a month, when she was out = of=20 town.

R.P. is her=20 ex-boyfriend with whom she lived, on and off, for the last two and = one-half years, beginning a couple of months before BCCPS removed = the=20 children. He was not violent while she still had the children, and = she did=20 not know about his past of beating women. R.P. did not use drugs = around=20 her. On June 9, 2004, R.P. physically abused her, resulting in his = conviction for assault. She obtained two protective orders against = R.P.,=20 one in February 2005, and one in May 2005. They had been fighting = off and=20 on since May 2005, and she broke off the relationship in July = 2005.=20 Fearing for her life, she went to live for a month with relatives = in=20 Oklahoma. Doe has no home currently because of R.P.'s threats = against=20 her.

Doe lives=20 with her mother in her mother's house in Brazoria and has returned = home=20 for only a couple of weeks. She has been back in town for only a = couple of=20 weeks. Her mother is her sole means of support. She does not = believe that=20 the children should be returned to her right now.

On=20 cross-examination by her counsel, Doe testified that her latest = effort to=20 address her drug problem was a phone call to Brazos Place in = Freeport, a=20 drug rehabilitation facility. She completed screening over the = phone and=20 expected a call that a bed was available for her in a couple of = days.=20 There was no violence in her home when her children were taken = away. The=20 violence with R.P. occurred after the children were = removed.

BCCPS case=20 workers testified that at the beginning of the case, the goal was=20 reunification of Doe with the children, but that it changed = because of=20 Doe's continued, positive drug screenings and noncompliance with=20 conditions that she was required to complete, such as individual = therapy=20 and drug and alcohol rehabilitation. Doe attended most, if not = all, of the=20 visits with the children. In June 2005, Doe called BCCPS to say = she had a=20 drug problem and wanted to go to an inpatient drug rehabilitation=20 facility. Her caseworker contacted a facility to ensure that a = space was=20 available for Doe, and then gave Doe the phone number and address = for the=20 facility. To the caseworker's knowledge, Doe never contacted the = facility.=20

On one of=20 Doe's visits with the children at BCCPS, the caseworker asked Doe = about=20 bandages on her arm. Doe responded that she had hurt herself by = breaking=20 some glass while moving. This event corresponded in time to the = assault=20 for which R.P. was convicted.

The=20 children were not injured when BCCPS picked them up. They are = currently=20 placed together in a therapeutic foster home where they are doing=20 fantastically and are healthy and happy. The home is very willing = to adopt=20 them.

One of the=20 BCCPS workers testified that if the children were returned to Doe, = the=20 likely result would be that BCCPS would continue to receive = referrals on=20 them and they would have to be removed from the home, hopefully = before any=20 injury. BCCPS believes it is in the children's best interest that = the=20 parent-child relationship between them and Doe be terminated so = that the=20 children can proceed to have healthy, wholesome lives.

Jeannnie=20 Coday, the children's guardian ad litem, testified that her = volunteer job=20 was to get to know the children for the purpose of recommending = what is in=20 their best interest. She has been on their case since three weeks = after=20 their removal from Doe's home. When Coday became acquainted with = Doe, they=20 had a very good, trusting relationship. She genuinely cared for = Doe, and=20 wanted her to be successful. At that time, BCCPS's plan for the = children=20 was family reunification, with which Coday initially agreed. =

After=20 several months, however, Coday's opinion about reunification = changed=20 because Doe returned to drugs. Coday does not think Doe can be=20 rehabilitated, or that Doe can provide the children a safe, stable = environment. Doe has been unable to keep a job. She was fired from = her=20 last one. Doe has had five different residences over the course of = this=20 case.

Coday has=20 visited with the children in their current placement and they are = doing=20 wonderfully. M.T. IV is in Cub Scouts, choir, and sports, and R.A. = will=20 participate in sports at the YMCA. Coday thinks the children's = best=20 interest would be served by terminating Doe's parental = rights.

On=20 cross-examination by Doe's counsel, the guardian ad litem = acknowledged=20 that when she met the children three weeks after their removal, = they were=20 confused, upset, and wanted to be returned to their = parents.

The State=20 rested, and then Doe rested, without calling any witnesses. Doe's = counsel=20 requested the following jury question:

Do you find=20 by clear and convincing evidence that ELIZABETH Doe failed to = comply with=20 the provisions of a court order that specifically established the = actions=20 necessary for the parent to obtain the return of the children who = have=20 been in the permanent or temporary managing conservatorship of the = Texas=20 Department of Family Protective Services for not less than nine = months as=20 a result of the children's removal from the parent for the abuse = or=20 neglect of the children.^{=20
(4)}

The trial=20 court granted Doe's counsel's request.

In his=20 closing statement, Doe's counsel argued that he had called no = witnesses=20 because BCCPS had not carried its burden of proof; that BCCPS = sought to=20 remove the children from their mother on the basis of insufficient = proof--a "couple ounces" of marijuana and a messy house. He argued = that=20 the children were not present when the police and BCCPS visited = Doe and=20 that there was no evidence that they were endangered, nor any = evidence=20 that the children had psychological damage, or had otherwise = suffered=20 while in Doe's care. He also argued that the BCCPS worker who = picked up=20 M.T. IV from school and R.A. from her father did not even testify = about=20 the children's condition then. R.P. became violent after the = children's=20 removal. He concluded by arguing that the evidence shows that, = despite=20 Doe's drug problem, she took care of the children.

On=20 September 15, 2005, the trial court terminated the parent-child=20 relationship between Doe and R.A. and M.T. On October 12, 2005, = Doe's=20 trial counsel filed a notice of appeal. On October 13, 2005, the = trial=20 court appointed another attorney to represent Doe on appeal. On = November=20 8, 2005, Doe filed with our court a motion to extend the time to = file the=20 notice of appeal. On November 18, 2005, Doe filed with our court a = motion=20 for new trial and a motion to abate. The motion to abate contained = a copy=20 of the motion for new trial and a statement of Doe's points on=20 appeal.

We abated=20 the case and remanded it to the trial court to conduct an = evidentiary=20 hearing on the issue of ineffective assistance of counsel = prejudgment and=20 postjudgment. See In the Interest of K.K., 180 S.W.3d = 681, 688=20 n.6 (Tex. App.--Waco 2005) (published order). At the abatement = hearing,=20 Doe's trial counsel testified that he did not make an opening = statement at=20 trial because, at the time, he thought it was best not to, but he = did not=20 specifically recall the reasoning. Regarding not having called any = witnesses on Doe's behalf, her trial counsel testified that Doe = had=20 testified during BCCPS's case-in-chief and that he believed that = she had=20 covered all the points that needed to be covered. He did not call = Doe's=20 mother to testify because she did not want the children, which he = thought=20 would undermine the mother's credibility. Additionally, he did not = think=20 Doe's mother had anything to offer. The decisions he made were = based on=20 his trial strategy.

Regarding=20 the postjudgment proceedings, the trial court took judicial notice = that a=20 motion for new trial and statement of points on appeal were not = filed.=20 Doe's trial counsel testified that he did not timely file the = October 12,=20 2005 notice of appeal because he did not know that the appeal was=20 accelerated until more than 15 days from the signing of the = judgment. He=20 acknowledged that he did not file a motion for new trial on Doe's = behalf=20 and that he did not know that by not filing one, Doe did not = preserve any=20 legal or factual sufficiency issues. Trial counsel thought that = filing the=20 notice of appeal, extended the time for filing the motion for new = trial=20 until other counsel could be appointed on the matter. Doe's trial = counsel=20 testified that he does not practice family law primarily. He = conceded that=20 he did not file a statement of points on appeal, but did not know = that Doe=20 waived points of appeal by not filing them.

The trial=20 court found that Doe's trial counsel was not ineffective at trial = or=20 prejudgment, but that he was ineffective postjudgment for having = untimely=20 filed the notice of appeal, not having filed a motion for new = trial, and=20 not having filed a statement of points on appeal.

Timeliness=20 of Notice of Appeal

BCCPS has=20 filed a motion to dismiss in which it contends that Doe's appeal = should be=20 dismissed for want of jurisdiction because her notice of appeal, = as well=20 as the November 8, 2006 motion to extend time to file notice of = appeal=20 were untimely filed.

The=20 procedures for an accelerated appeal under the Rules of Appellate=20 Procedure apply to an appeal in which the termination of the = parent-child=20 relationship is in issue. Tex. Fam. Code Ann. =A7 109.002(a) = (Vernon 2002);=20 In the Interest of K.A.F., 160 S.W.3d 923, 924-25 (Tex. = 2005). In=20 the accelerated appeal of a civil case, unless a party moves to = extend the=20 time to file an appeal, the notice of appeal must be filed within = 20 days=20 after the judgment or order appealed is signed. Tex. R. App. P. = 26.1(b);=20 K.A.F., 160 S.W.3d at 926-927. The appellate court may = extend the=20 time to file the notice of appeal, if, within 15 days after the = deadline=20 for filing the notice of appeal, the party (1) files the notice of = appeal,=20 and (2) files in the appellate court a motion complying with Rule = 10.5(b).=20 Tex. R. App. P. 26.3. A motion to extend time to file notice of = appeal is=20 necessarily implied when an appellant, acting in good faith, files = a=20 perfecting instrument beyond the time allowed for perfecting an = appeal,=20 but within the 15-day period in which appellant would be entitled = to move=20 to extend the filing deadline. See Verburgt v. Dorner, = 959 S.W.2d=20 615, 617 (Tex. 1997); In the Interest of B.G., 104 S.W.3d = 565,=20 567 (Tex. App.--Waco 2002, no pet.).

The trial=20 court signed the judgment here on September 15, 2005. Under Rule = of=20 Appellate Procedure 26.1(b), the deadline for filing the notice of = appeal=20 was October 5, 2005. Doe did not file her notice of appeal by the = October=20 5 deadline, but did file it on October 12, 2005, within the 15-day = grace=20 period provided by rule 26.3. Thus, pursuant to Verburgt, = a=20 motion to extend time is necessarily implied.

Appellant=20 must still, however, have provided a reasonable explanation for = late=20 filing the notice of appeal. See Jones v. City of = Houston, 976=20 S.W.2d 676, 677 (Tex. 1998) (holding Jones should be entitled to = prosecute=20 appeal on reasonably explaining need for extension to file = perfecting=20 instrument filed after deadline, but within 15-day grace period = for filing=20 motion to extend time to file perfecting instrument); = Verburgt,=20 959 S.W.2d at 617 (reversing judgment of court of appeals and = remanding to=20 that court to determine whether Verburgt offered reasonable = explanation=20 for failure to timely file perfecting instrument). A reasonable=20 explanation is "'any plausible statement of circumstances = indicating that=20 failure to file within the [specified] period was not deliberate = or=20 intentional, but was the result of inadvertence, mistake, or = mischance.'"=20 Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (quoting = Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)).=20

At the=20 abatement hearing, Doe's trial counsel testified that he did not = practice=20 primarily in the area of family law and that the reason he did not = timely=20 file the notice of appeal was that he did not know that the appeal = was an=20 accelerated one until more than 15 days after the trial court = signed the=20 judgment. This is a plausible statement that the failure to timely = file=20 the notice of appeal was the result of mistake "'even though = counsel . . .=20 may appear to have been lacking in that degree of diligence which = careful=20 practitioners normally exercise.'" See Dimotsis v. State Farm=20 Lloyds, 966 S.W.2d 657, 657-58 (Tex. App.--San Antonio 1998, = no pet.)=20 (quoting Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, = 670 (Tex.=20 1989)) (holding that appellant's counsel's explanation of = erroneous=20 calculation of date for filing notice of appeal by adding 30 days = to date=20 trial court overruled motion for new trial was reasonable = explanation for=20 untimely filing notice of appeal).

For these=20 reasons, we conclude that Doe timely perfected her appeal and we = deny=20 BCCPS's motion to dismiss. We dismiss as moot Doe's motion to = extend time=20 to file the notice of appeal.

Effectiveness=20 of Assistance of Counsel

In her=20 first issue on appeal, Doe asserts that her trial attorney was=20 ineffective, both before and after the termination proceedings.=20 Specifically, Doe contends that her trial attorney did not present = a case=20 on her behalf, or timely file the notice of appeal, and did not = preserve=20 any appellate issues, including whether there was factually = sufficient=20 evidence to support the jury's verdict that termination of the=20 parent-child relationship between Doe and her children was in = their best=20 interest.

1.=20 Standard of Review

To=20 successfully assert an ineffective assistance of counsel claim, a=20 defendant in a parental termination case must show that his or her = counsel's performance was deficient and that this deficiency = prejudiced=20 the defense. In the Interest of J.P. B., a = Child, 180=20 S.W.3d 570, 574 (Tex. 2005) (citing In the Interest of = M.S., 115=20 S.W.3d 534, 545 (Tex. 2003) (citing Strickland v. = Washington, 466=20 U.S. 668, 687-92, 104 S. Ct. 2052, 2063-67 (1984))). This standard = requires a showing that counsel's errors were so serious as to = deprive the=20 defendant of a fair trial whose result is reliable. = Strickland,=20 466 U.S. at 687, 104 S. Ct. at 2064. There is a strong = presumption=20 that counsel's conduct falls within the wide range of reasonably=20 professional assistance, including the possibility that counsel's = decision=20 was based on strategy. M.S., 115 S.W.3d at 549. = In=20 deciding whether counsel's performance in a particular case is = deficient,=20 we must take into account all of the circumstances surrounding the = case=20 and focus primarily on whether counsel performed in a "reasonably=20 effective" manner. M.S., 115 S.W.3d at 545 (citing=20 Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65). = "It is=20 only when 'the conduct was so outrageous that no competent = attorney would=20 have engaged in it that the challenged conduct will constitute = ineffective=20 assistance.'" M.S. 115 S.W.3d at 545 (quoting Garcia = v.=20 State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). If a = reviewing=20 court concludes that appellant's counsel's conduct to be = deficient, the=20 appellate court must determine if that conduct was prejudicial to = the=20 appellant by assessing whether "'there is a reasonable probability = that,=20 but for counsel's unprofessional error(s), the result of the = proceeding=20 would have been different.'" See M.S., 115 S.W.3d at 550, = (quoting Garcia, 57 S.W.3d 436 at 440 (citing=20 Strickland, 466 U.S. at 694, 104 S. Ct. at 2068)).=20 Strickland's appellate "record" requirement also applies = to=20 ineffective assistance claims in termination cases: "'An = allegation of=20 ineffective assistance must be firmly founded in the record, and = the=20 record must affirmatively demonstrate the alleged = ineffectiveness.'"=20 In re K.K., 180 S.W.3d at 685 (citing In the Interest = of=20 S.R.C., 2003 Tex. App. LEXIS 10624, 2003 WL 22966325 at *2 = (Tex.=20 App.--Fort Worth Dec. 18, 2003, no pet.) (Mem. Op.) (citing = Thompson=20 v. State, 9 S.W.3d 803, 814 (Tex. Crim. App. = 1999)).

2.=20 Presentation of the Case

Appellant=20 asserts that her counsel was ineffective during trial for not = calling=20 additional witnesses on her behalf, not making an opening = statement, and=20 for questioning her for only about five minutes.

In his=20 closing statement, Doe's trial counsel argued to the jury that he = called=20 no witnesses because he did not think BCCPS had carried its burden = of=20 proof to show either child endangerment or that the police and = BCCPS had=20 removed the children because Doe abused or neglected them. = Additionally,=20 Doe's trial counsel stated at the abatement hearing, that Doe had=20 testified in the State's case-in-chief, and he thought that she = had made=20 all the points that needed to be made. Although Doe's counsel's=20 cross-examination of her at that time was brief, he elicited from = her=20 testimony that she had recently undertaken to get help for her = drug=20 problem, that there was no violence in her home when BCCPS removed = the=20 children, and that the violence with R.P. occurred after the = children were=20 removed. Doe's counsel also testified at the abatement hearing = that the=20 trial decisions he made were based on trial strategy and that he = was not=20 ineffective at trial. At the conclusion of the abatement hearing, = the=20 trial court found that Doe's trial counsel had provided effective=20 prejudgment assistance.

The record=20 shows that the jury found, no child endangerment by Doe, by a 10-2 = decision. Additionally, the jury's note requesting a definition of = "managing conservator" indicates that appellant's counsel's = argument--that=20 the jury should consider appointing the Department of Family and=20 Protective Services managing conservator to monitor the children's = siutation, but not terminate the parent-child relationship--was = persuasive=20 to at least one or more jury members.

We=20 therefore hold, based on the record before us, that Doe has not = shown that=20 her trial counsel's not giving an opening statement, not examining = witnesses other than Doe, and examining her only briefly, fell = outside the=20 wide range of reasonably professional assistance and not based on = trial=20 strategy. We further hold that Doe has not shown how the outcome = of her=20 trial would have been different if her trial counsel had made an = opening=20 statement, called other witnesses, or examined her for a longer = period of=20 time.

3.=20 Untimely Perfected Notice of Appeal

Having=20 already concluded that Doe timely perfected her appeal, we further = conclude that Doe has not been harmed by her trial counsel's = actions on=20 perfecting her appeal.

3.=20 Failure to File Motion for New Trial

Appellant=20 asserts that her trial counsel's failure to file a motion for new = trial=20 deprives her of appealing the factual sufficiency of the evidence = to=20 support the jury's verdict that termination of the parent-child=20 relationship between her and the children was in their best = interest. We=20 hold that Doe cannot prevail on this ground because she has not = shown that=20 her trial counsel's failure to file a motion for new trial = prejudiced her=20 case.

In=20 reviewing to determine harm, we proceed as if factual sufficiency=20 challenge had been preserved, under our established factual = sufficiency=20 standard in parental-rights termination cases, understanding that = the=20 evidentiary burden in such cases is "clear and convincing." = M.S.,=20 115 S.W.3d at 550 (citing In re J.F.C., 96 S.W.3d 256, = 264 (Tex.=20 2002)).

When=20 reviewing the factual sufficiency of the evidence supporting a = termination=20 finding, we inquire whether all the evidence, both in support of = and=20 contrary to the trial court's finding, is such that a factfinder = could=20 reasonably form a firm belief or conviction about the truth of the = State's=20 allegations. In the Interest of S.L., 188 S.W.3d 388, 392 = (Tex.=20 App--Dallas 2006, no pet.) (citing In re C.H., 89 S.W.3d = 17,=20 27-29 (Tex. 2002)). The fact finder may consider the following=20 non-exclusive factors in determining the best interest of the = child: (a)=20 the desires of the child; (b) the emotional and physical needs of = the=20 child, now and in the future; (c) the emotional and physical = danger to the=20 child, now and in the future; (d) the parental abilities of the=20 individuals seeking custody; (e) the programs available to assist = these=20 individuals to promote the best interest of the child; (f) the = plans for=20 the child by these individuals or by the agency seeking custody; = (g) the=20 stability of the home or proposed placement; (h) the acts or = omissions of=20 the parent that may indicate that the existing parent-child = relationship=20 is not a proper one; and (i) any excuse for the acts or omissions = of the=20 parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.=20 1976).

(a)=20 Desires of the Children

The=20 children did not testify, and there is scant evidence on this = subject.=20 Although Coday acknowledged that when she first met them, three = weeks=20 after they had been removed from Doe's home, the children were = confused,=20 upset, and wanted to be returned to their parents, she and a BCCPS = caseworker testified that the children are doing well in their = therapeutic=20 foster home and that they are healthy and happy. This factor = weighs in=20 favor of termination of Doe's parental rights.

(b)=20 Present and Future Emotional and Physical Needs of the=20 Child

(1)=20 Emotional Needs

There=20 was evidence that Doe made all but one of the monthly visits with = the=20 children during the pendency of the case, which indicates a bond = between=20 her and them, tending to show her ability to give them emotional = support.=20 Conversely, Doe's own testimony of drug addiction throughout the=20 children's lives is evidence that she frequently could not, and, = in the=20 future would not, be emotionally present with and supportive of = the=20 children because of her drug abuse. Doe's drug trafficking from = her=20 apartment is evidence that such activity was emotionally injurious = to the=20 children. This factor weighs against Doe overall.

(2)=20 Physical Needs

Regarding=20 Doe's ability to meet the children's physical needs, Doe's = testimony that=20 she paid her $50 child support monthly and kept M.T. IV and R.A. = fed and=20 clean favors her. Additionally, she testified that before R.P. = lived with=20 them, she and the children lived alone in the house, and that she = worked.=20 Evidence supporting the conclusion that Doe is not able to meet = the=20 children's physical needs includes Coday's testimony that Doe was = unable=20 to hold a job, Doe's testimony that she sold illegal drugs, her = testimony=20 that she does not have a home because of the threats of violence = toward=20 her by R.P., and her testimony that she is currently living in her = mother's house with her mother who is Doe's sole means of support. = This=20 factor weighs against Doe in terms of meeting the future needs of = the=20 children.

(c)=20 Present and Future Emotional and Physical Danger to=20 Child

Evidence=20 favorable to Doe was the BCCPS employee's testimony that the = children were=20 not physically injured when the children were picked up by BCCPS, = to that=20 employee's knowledge. Conversely, Doe's continued drug use, drug=20 trafficking, and her citations for public intoxication are = evidence from=20 which a jury could reasonably infer that the children have been = and in the=20 future could be in physical danger. This factor weighs against=20 Doe.

(d)=20 Parental Abilities of the Individuals Seeking = Custody

Doe was not=20 seeking custody of the children, but to avoid termination of her=20 parent-child relationship with them. Evidence supporting her = positive=20 parental abilities was her testimony that she kept the children = fed and=20 clean and that there was no violence in the home until after BCCPS = removed=20 the children. Evidence showing her lack of parental abilities = included=20 testimony regarding her drug addiction, her selling illegal drugs, = her job=20 and home instability, and her failure to complete parenting and=20 rehabilitation classes and training. This factor weighs against=20 Doe.

(e)/(f)=20 Programs to Assist Custody Seekers in Promoting Children's Best=20 Interest and Custody Seekers Plans for the=20 Children

Though the=20 parents in the therapeutic foster home were not seeking custody of = the=20 children in this proceeding, the BCCPS worker testified that they = were=20 willing to adopt the children. They had enrolled the children in = programs=20 such as Cub Scouts, choir, and sports with the YMCA to promote = their best=20 interests.

Doe=20 testified that within a couple of days she expected a call from a = drug=20 rehabilitation facility for herself. Indirectly, this could = promote the=20 children's best interest, if their mother successfully completed=20 drug-abuse rehabilitation. Yet, Doe's testimony that she had been = unable=20 to put the children ahead of her drug addiction makes this factor = weigh=20 against Doe.

(g)=20 Stability of the Home or Proposed Placement

Both the=20 BCCPS employee and Coday testified that the children were doing=20 "fantastic" or "wonderful" in the therapeutic foster home, where=20 individuals were willing to adopt them. Coday testified to the = various=20 activities in which the children were involved while at the = therapeutic=20 foster home. Conversely, Doe lacked a home for the children and = could not=20 demonstrate freedom from drugs, which weigh against = her.

(h)=20 Parent's Acts or Omissions Indicating the Parent-Child = Relationship=20 Improper

(1) Doe=20 admitted prolonged drug addiction, despite several opportunities = to=20 rehabilitate, (2) demonstrated a chronic drug problem and that she = turns=20 to drugs when she encounters difficulties such as the removal of = the=20 children from her home and the miscarriage of the baby conceived = with=20 R.P., (3) sold drugs, (4) received public intoxication citations, = (5)=20 engaged in serial relationships leading to an unstable family = life, and=20 (6) fabricated a story to conceal physical abuse by R.P., with = whom she=20 and the children lived before BCCPS removed the = children.

On the=20 other hand, (1) Doe testified that she had the prospect for = another=20 opportunity to go to a drug rehabilitation facility, (2) cared = for, fed,=20 bathed, and saw to it that M.T. IV attended school, despite her = drug=20 abuse; (3) the children were not injured when BCCPS picked them = up; (4)=20 the violence between Doe and R.P. did not start until after the = children=20 had been removed from her home; (5) Doe did not use drugs in front = of the=20 children; and (5) three weeks after the children were picked up, = they were=20 confused, upset, and wanted to be returned to their parents. = Overall, this=20 factor weighs against Doe.

(i)=20 Excuse for the Acts or Omissions of the Parent

Doe=20 testified that R.P. forced her her to sell drugs from the home. = She also=20 testified that on one of the occasions when she gave up drug=20 rehabilitation BCCPS's removing the children from her resulted in = her=20 losing hope. She also testified that she did not have a home = because of=20 threats from R.P.

On the=20 other hand, Doe gave no excuse for (1) her drug addiction, (2) = receiving=20 public intoxication citations, or for not (3) getting and keeping = a job,=20 (4) completing parental classes, and (5) completing personal = counseling=20 classes.

We conclude=20 that the evidence is such that a reasonable jury could form a firm = belief=20 or conviction that the best interest of the children would be = served if=20 the trial court terminated the parent-child relationship between = them and=20 Doe. Accordingly, we hold that Doe's counsel's failure to file a = motion=20 for new trial raising factual insufficiency of the evidence to = support the=20 jury's verdict did not harm Doe. Consequently, we need not = consider the=20 first prong of the Strickland test, whether Doe's = counsel's=20 failure to file a motion for new trial raising factual = insufficiency of=20 the evidence fell below an objective standard of reasonableness.=20 Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 ("If it is = easier=20 to dispose of an ineffectiveness claim on the ground of lack of = sufficient=20 prejudice . . . that course should be followed."); Boyd v. = State,=20 811 S.W.2d 105, 109 (Tex. Crim. App. 1991) ("[I]f a defendant = fails to=20 prove the pejudice component (the second prong), the court need = not=20 address the question of counsel's performance.").

We dismiss=20 Doe's motion for new trial for want of jurisdiction because we do = not have=20 authority to consider such motions. See Tex. R. Civ. P. = 329b=20 (prescribing how motions for new trial shall be filed in district = and=20 county courts--not courts of appeals).

4.=20 Failure to File Points of Error for Appeal

Doe asserts=20 that her trial counsel was ineffective, postjudgment, because he = did not=20 file a statement of points on appeal, thereby barring her from = raising any=20 points on appeal. See Tex. Fam. Code Ann. =A7 263.405(i) = (Vernon=20 Supp. 2006) (precluding appellate courts from considering any = issue that=20 was not specifically presented to trial court in timely filed = statement of=20 points). We note, however, that Doe was able to pursue her appeal = and we=20 have addressed her factual sufficiency points in assessing her = claim of=20 ineffective assistance of counsel above. Doe has thus not been = harmed by=20 her counsel's failure to timely perfect the appeal or preserve a = factual=20 sufficiency review. We cannot conclude, from the record of the = abatement=20 hearing in the trial court, Doe's untimely filed statement of = points on=20 appeal filed in this Court, or her brief, that a reasonable = probability=20 exists that, but for her trial counsel's failure to file a = statement of=20 points on appeal with the trial court, the result of this case = would be=20 different. Accordingly, we hold that Doe has not shown that trial=20 counsel's failure to file a statement of points on appeal = prejudiced her=20 in this case. Boyd, 811 S.W.2d at 109.

We=20 considered Doe's ineffective assistance of counsel claim because = she can=20 raise it for the first time on appeal without preserving it in the = trial=20 court. In re J.M.S., 43 S.W.3d 60, 64 (Tex. App.--Houston = [1st=20 Dist.] 2001, no pet.). We reject Doe's ineffective assistance of = counsel=20 claim because she has failed to satisfy the second prong of the=20 Strickland test, that is, she has failed to show that but = for her=20 counsel's unprofessional errors, the result of the proceeding = would have=20 been different. See Strickland, 466 U.S. at 694, 104 = S.Ct. 2068.=20 We overrule Doe's first issue.

In issue=20 two, Doe asserts that the evidence is factually insufficient to = sustain=20 the jury's verdict of termination of the parent-child relationship = between=20 her and her children as being in their best interest. It is = unnecessary to=20 consider this issue in light of our analysis of issue = one.

We affirm=20 the trial court's judgment.

Sherry=20 Radack

Chief=20 Justice

Panel=20 consists of Chief Justice Radack and Justices Alcala and Bland.=20

1. Tex. Fam. Code Ann. =A7 161.001(1)(D) = (Vernon Supp.=20 2006).=20

2. Tex. Fam. Code Ann. =A7 161.001(1)(E) = (Vernon Supp.=20 2006).=20

3. Tex. Fam. Code Ann. =A7 161.001(1)(O) = (Vernon Supp.=20 2006).=20

4. See Tex. Fam. Code Ann. =A7=20 161.001(1)(O).

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