Court of Appeals of Texas, Fourth District, San Antonio
the 408th Judicial District Court, Bexar County, Texas Trial
Court No. 2016PA00694 Honorable Peter Sakai, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice, Rebeca C.
Martinez, Justice Irene Rios, Justice.
C. MARTINEZ, JUSTICE
D.R. appeals the trial court's order terminating his
parental rights to his daughter, D.R.R. In two issues,
Appellant contends: (1) trial counsel rendered ineffective
assistance of counsel in failing to communicate with him and
in arriving late at trial; and (2) the trial court erred in
implicitly denying trial counsel's "not ready"
announcement. We affirm the trial court's judgment.
April 5, 2016, the Texas Department of Family and Protective
Services filed a petition seeking protection of D.R.R. after
D.R.R. was not picked up from daycare for the day by
Mother.The Department was named
temporary managing conservator of D.R.R. and she was placed
in a foster home. The Department prepared a service plan for
Appellant with a stated goal of reunification. The trial
court held the statutorily-required status and permanency
hearings. Ultimately, the Department moved to terminate both
Mother's and Appellant's parental rights.
case proceeded to a final hearing on February 3, 2017. Mother
was not present and her counsel announced "not
ready." Neither Appellant nor his counsel were present.
The trial court overruled Mother's "not ready"
and proceeded with the hearing. After the first witness-
Department caseworker Kim Hubbard-completed her testimony on
direct, Appellant's attorney appeared and announced
"not ready, " stating he had had no contact with
his client. Counsel proceeded to cross-examine the
caseworker. Two additional witnesses testified. At the
conclusion of the hearing, the trial court determined
Appellant's parental rights to D.R.R. should be
terminated. The trial court found
Appellant: (1) constructively abandoned the child who had
been in the temporary managing conservatorship of the
Department for not less than six months; (2) failed to comply
with the provisions of a court order that established the
actions necessary for him to obtain the return of the child;
and (3) used a controlled substance in a manner that
endangered the health or safety of the child and failed to
complete a court-ordered substance abuse treatment program.
See Tex. Fam. Code Ann. § 161.001(b)(1)(N),
(O), (P) (West Supp. 2016). The trial court further found
termination of Appellant's parental rights would be in
the child's best interests. See id. §
161.001(b)(2). Accordingly, the trial court rendered an order
terminating Appellant's parental rights to D.R.R.
Assistance of Counsel
argues trial counsel was ineffective in (1) failing to
communicate with Appellant and (2) arriving late at trial.
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
Strickland's test, the appellant must show (1)
counsel's performance was deficient; and (2) the
deficiency prejudiced the appellant's defense.
Id. at 545. We will not conclude an appellant
received ineffective assistance of counsel unless the
appellant satisfies both prongs of the Strickland
Strickland's first prong, an appellant must show
trial counsel's performance fell below an objective
standard of reasonableness. Id. at 549. Only when
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. We indulge a strong presumption that
trial counsel's conduct falls within the wide range of
reasonable, professional assistance and was motivated by
sound trial strategy. Id. An appellant bears the
burden to overcome this presumption. See id. at 549.
Under Strickland's second prong, an appellant
must show there is a reasonable probability that, but for
counsel's error, the result of the proceeding would have
been different. Id. at 549-50. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at
regard to the first Strickland prong, the record
before this court is silent as to trial counsel's
strategy regarding the challenged conduct. In his brief,
Appellant contends he never met trial counsel in person and
was given the wrong trial setting. Appellant did not,
however, file a motion for new trial from which he could have
elicited testimony from trial counsel, nor did he provide an
affidavit in which trial counsel could explain the challenged
conduct. Because the record is silent as to the reasons for
trial counsel's conduct, this court may not speculate as
to the reasons behind counsel's actions or omissions to
find counsel's performance deficient. See Walker
v. Tex. Dep't of Family & Protective Servs.,
312 S.W.3d 608, 623 (Tex. App.-Houston [1st Dist.] 2009, pet.
denied); see also Franklin v. State, 693 S.W.2d 420,
431 (Tex. Crim. App. 1985), cert. denied, 475 U.S.
1031 (1986) (mere assertions in brief not supported by
evidence in the record will not be considered on appeal).
This court has thoroughly reviewed the record and concludes
Appellant failed to overcome the presumption that trial
counsel's representation fell within the wide range of
reasonable, professional assistance and might be considered
sound trial strategy. See In re M.S., 115 S.W.3d at
545. Although trial counsel premised his "not
ready" on the fact that he had not been in contact with
Appellant, nothing in the record before us indicates that it
was trial counsel who failed to communicate with or advise
Appellant. See Walker, 312 S.W.3d at 622-23. Rather,
the record demonstrates that it was Appellant who was not
engaged in the case. Appellant did not appear at any of the
pre-trial settings and did not communicate with the
Department or visit his child. For these reasons, Appellant
failed to satisfy the first prong of Strickland. On
this record, we cannot say Appellant has overcome the strong
presumption that his counsel's conduct fell within the
wide range of reasonable, professional assistance and was
motivated by sound trial strategy. See In re M.S.,
115 S.W.3d at 549.
courts have recognized the inequities created by the
"record" requirement in parental-rights termination
cases. See In re K.K., 180 S.W.3d 681, 685 n.3 (Tex.
App.-Waco 2005, no pet.). Unlike criminal cases,
parental-rights termination cases have no habeas remedy in
which to develop the necessary record. See id. at
686. In many cases, parents may not have a meaningful
opportunity to develop a post-trial record to support an
ineffective assistance of counsel claim. See, e.g., In re
M.E.-M.N., 342 S.W.3d 254, 258 (Tex. App.-Fort Worth
2011, pet. denied); In re K.K., 180 S.W.3d at 688.
Thus, Appellant requests that we abate the appeal and remand
to the trial court to develop a record on his ineffective
assistance of counsel claim. See id. Whether
abatement is appropriate depends on the facts of each
parental-rights termination case and the specific allegations
of ineffective assistance. Id.
conclude that an abatement is unnecessary in this case
because Appellant would not be able to show the challenged
deficiencies prejudiced his defense. Even assuming trial
counsel's performance was deficient based on his
tardiness and alleged failure to communicate with Appellant,
Appellant cannot show a reasonable probability that the
outcome of the proceeding would have been different. See
In re M.S., 115 S.W.3d at 549-50; In re
K.A.D.K., No. 04-15-00758-CV, 2016 WL 1587535, at *8-9
(Tex. App.-San Antonio Apr. 20, 2016, pet. denied) (mem.
op.). The evidence in support of the trial court's
termination order was overwhelming. See Tex. Fam.
Code Ann. § 161.001(b)(1)(N), (O), (P) (statutory
grounds for termination) (West Supp. 2016); id.
§ 161.001(b)(2) (best interest) (West Supp. 2016).
Department caseworker Kim Hubbard testified that Appellant
was not in compliance with the court-ordered family service
plan because he failed to stay in contact with the
caseworker, had not visited D.R.R. throughout the life of the
case, and failed to complete or engage in most of his
court-ordered services. Appellant still needed to complete
individual counseling, a domestic violence course, a drug
assessment, a psychological assessment, a parenting class,
and maintain stable housing and employment. According to
Hubbard, Appellant did not visit D.R.R. because he was
initially unsure whether she was his child, and also because
his work schedule did not allow him to take time off.
Appellant admitted the use of marijuana to Hubbard but never
sought drug treatment.
the record contains uncontroverted evidence that Appellant
made no effort to complete his family service plan during the
ten months that the case was pending. In particular, he did
not visit the child at all and admitted to drug use during
the case. The child had not formed a bond with Appellant and
Appellant had failed to improve his parenting skills during
the pendency of the case despite the services ...