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In re K.A.

Court of Appeals of Texas, Fourth District, San Antonio

July 12, 2017

IN THE INTEREST OF K.A.

         From the County Court at Law, Jim Wells County, Texas Trial Court No. 14-09-53616-CV Honorable Michael Ventura Garcia, Judge Presiding

          Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

          MEMORANDUM OPINION

          Karen Angelini, Justice

         Cassie H. appeals the trial court's termination of her parental rights to her daughter, K.A. K.A. was removed from Cassie H.'s care at the time of K.A.'s birth because a test on K.A.'s meconium was positive for methamphetamines, cocaine, marijuana, and opiates. After a bench trial, the trial court terminated Cassie H.'s parental rights, finding

(1) Cassie H. had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of K.A. who had been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services ("the Department") for not less than nine months as a result of the child's removal from the parent under chapter 262 for the abuse or neglect of the child;
(2) Cassie H. used a controlled substance, as defined by chapter 481 of the Texas Health and Safety Code, in a manner that endangered the health or safety of the child, and (a) failed to complete a court-ordered substance abuse treatment program, or (b) after completion of a court-ordered substance abuse treatment program continued to abuse the controlled substance;
(3) Cassie H. has been the cause of K.A. being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription; and
(4) the termination of the parent-child relationship between Cassie H. and K.A. is in the child's best interest.

         On appeal, Cassie H. argues she was denied effective assistance of counsel because her attorney failed to file a motion to dismiss pursuant to section 263.401 of the Family Code and failed to ensure that a court reporter was making a record of all court proceedings. The statutory right to counsel in parental-rights termination cases includes a right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). In analyzing the effectiveness of counsel in a parental-rights termination case, Texas courts follow the standard established in Strickland v. Washington, 466 U.S. 668 (1984). In re M.S., 115 S.W.3d at 544-45. Under the Strickland standard, Cassie H. must show that (1) her counsel's performance was deficient; and (2) the deficiency prejudiced her defense. See In re M.S., 115 S.W.3d at 545. We will not conclude Cassie H. received ineffective assistance of counsel unless both prongs of the Strickland test are satisfied. See In re M.S., 115 S.W.3d at 545.

         Under Strickland's first prong, Cassie H. must show her trial counsel's performance fell below an objective standard of reasonableness. See In re M.S., 115 S.W.3d at 549. Only when a trial counsel's "conduct was so outrageous that no competent attorney would have engaged in it" will the challenged conduct constitute deficient performance. Id. at 545. There is a strong presumption that a trial counsel's conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. Id. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); see In re K.L.A.C., No. 14-08-00960-CV, 2010 WL 184152, at *6 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (applying Garza in parental-termination proceeding). To warrant reversal when trial counsel has not been afforded an opportunity to explain those reasons, "the challenged conduct must be so outrageous that no competent attorney would have engaged in it." Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007) (citation omitted); see In re K.L.A.C., 2010 WL 184152, at *6 (applying Roberts in parental-termination proceeding). Under Strickland's second prong, Cassie H. must show there is a reasonable probability that, but for her trial counsel's error, the result of the termination proceeding would have been different. See In re M.S., 115 S.W.3d at 549-50.

         Cassie H. argues that her trial counsel was ineffective because he failed to file a motion to dismiss pursuant to section 263.401 of the Family Code and because he failed to ensure adequate recordings of the proceedings were taking place. Section 263.401 mandates that a trial on the merits of a termination proceeding, absent limited circumstances, must begin within a year of the trial court signing an order appointing the Department as temporary managing conservator:

(a) Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b-1), on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.
(b) Unless the court has commenced the trial on the merits, the court may not retain the suit on the court's docket after the time described by Subsection (a) unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court's docket for a period not to exceed 180 days after the time described by Subsection (a). If the court retains the suit on the court's docket, the court shall render an order in which the court:
(1) schedules the new date on which suit will be dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the ...

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