in the Interest of K.S., a Child, 2014 Tex. App. LEXIS 646

K.S. born May 2012; within a month both parents were unavailable (mother incarcerated; father Doug incarcerated or in residential drug treatment) and the child was placed in DFPS foster care.
Doug completed a 9-month residential drug rehabilitation program and was released March 12, 2013, but DFPS said the facility prevented him from participating in the service plan; the court extended timelines under Family Code §263.401(b).
Between release and later hearings Doug missed counseling, tested positive twice for methamphetamine (and admitted marijuana use), and was re-incarcerated; by trial he had been convicted and sentenced to five years’ imprisonment.
Relatives in Mississippi expressed interest in adopting K.S., provided a stable home, and DFPS favored their placement.
The trial court found statutory grounds for termination and that termination was in K.S.’s best interest; Doug appealed, challenging best-interest sufficiency and asserting ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that termination is in child’s best interest	State: Doug’s prolonged absence, ongoing drug use, failure to parent, and stable relative placement support termination	Doug: Evidence insufficient to overcome presumption favoring parental conservatorship	Affirmed: Clear and convincing evidence supported best-interest finding (Holley factors, parent’s drug use, lack of relationship, stable relative home)
Ineffective assistance of counsel	Doug: Counsel delayed filing a general denial, conducted no documented pretrial discovery, and failed to reconnect Doug (telephonically) after lunch so Doug could testify	State: Counsel had long familiarity with the case; no proof missing discovery would have helped; failure to reconnect may reflect strategy and Doug offers only speculation about beneficial testimony	Affirmed: Record lacks evidence of deficient performance or prejudice under Strickland; claim speculative and not shown harmful

In re R.R., 209 S.W.3d 112 (Tex. 2006) (clear-and-convincing standard can overcome presumption favoring parents)
In re J.L.B., 349 S.W.3d 836 (Tex. App.—Texarkana 2011) (parental-preservation presumption discussion)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for best-interest analysis)
In re J.O.C., 47 S.W.3d 108 (Tex. App.—Waco 2001) (single-factor evidence can support best-interest finding)
C.H. v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 17 (Tex. 2002) (evidence proving grounds is probative of best interest)
In re C.A.J., 122 S.W.3d 888 (Tex. App.—Fort Worth 2003) (parental inability, lack of skills relevant to best interest)
In re M.R., 243 S.W.3d 807 (Tex. App.—Fort Worth 2007) (parental drug abuse relevant to best interest)
In re N.L.D., 412 S.W.3d 810 (Tex. App.—Texarkana 2013) (not all Holley factors required)
Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., 452 U.S. 18 (U.S. 1981) (parental interest in accuracy of termination proceedings)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard)
In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (applying Strickland in parental-termination context)
In re M.S., 115 S.W.3d 534 (Tex. 2003) (standard for ineffective assistance in termination cases)
In re K.A.S., 399 S.W.3d 259 (Tex. App.—San Antonio 2012) (discussing Strickland prongs in termination appeals)