Appeal from the 35th District Court Brown County, Texas Trial
Court Cause No. CV 17-07-261
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
Willson, J., not participating.
an appeal from an order of termination of the parental rights
of the mother and father of I.B. The father appeals. On
appeal, he presents one issue in which he argues that he
received ineffective assistance of counsel. We affirm.
the mother voluntarily relinquished her parental rights, a
jury trial was conducted with respect to the father's
parental rights. The jury trial was conducted in the
father's absence because he did not appear for trial.
Despite the father's absence, the father's trial
counsel was present and represented the father at trial.
Because the father does not challenge the sufficiency of the
evidence, we will not set forth the evidence in detail. We
note, however, that we have reviewed all of the evidence and
that the Department presented clear and convincing evidence
in support of termination.
conclusion of the trial, the jury found that the parent-child
relationship between the father and I.B. should be
terminated. Based on the mother's earlier relinquishment
and on the jury's verdict with respect to the father, the
trial court entered a final order in which it terminated the
parents' rights to the child. In the order, the trial
court found that the father had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings
that endangered the physical or emotional well-being of the
child; had engaged in conduct or knowingly placed the child
with persons who engaged in conduct that endangered the
child's physical or emotional well-being; had
constructively abandoned the child; and had failed to comply
with the provisions of a court order that specifically
established the actions necessary for him to obtain the
return of the child, who had been in the managing
conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the
child's removal from the parent for abuse or neglect.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (N), (O) (West Supp. 2018). The trial court also found
that termination of the father's parental rights would be
in the best interest of the child. See id. §
161.001(b)(2). On appeal, the father does not challenge any
of the trial court's findings.
of Counsel at Trial
sole issue on appeal, the father asserts that he received
ineffective assistance of counsel at trial. He points to
trial counsel's failure to inform the jury why the father
was absent from the courtroom, trial counsel's waiver of
opening argument, and trial counsel's failure to call
witnesses or present "a case."
parent in a termination case has the right to "effective
counsel." In re M.S., 115 S.W.3d 534, 544 (Tex.
2003). To prevail on a claim of ineffective assistance of
counsel, a parent must generally show (1) that trial
counsel's performance was deficient and (2) that the
deficient performance was so serious as to deny the parent a
fair and reliable trial. In re J.O.A., 283 S.W.3d
336, 341-42 (Tex. 2009) (following the two-pronged analysis
of Strickland v. Washington, 466 U.S. 668 (1984));
M.S., 115 S.W.3d at 545 (same). In the present case,
the father has failed to satisfy the first prong of the
record reflects that the Department and trial counsel had had
difficulties maintaining contact with the father. However,
the father had been notified and was aware of the trial
setting. When the case was called for trial at 10:30 a.m.,
the father was not present in the courtroom; trial counsel
informed the trial court that he had been notified that the
father would be at the courthouse in about ten minutes. The
reason given by the father was that he had run out of gas.
The father, however, never arrived for court that day.
voir dire but before testimony began, trial counsel requested
a continuance until the next day so that the father could
participate in the trial. The trial court found that the
father, who resided in or near Brownwood, had voluntarily
absented himself from the proceedings. Consequentl y, the
trial court denied the motion for continuance. All parties
then waived their opening statement, and the Department
called its lone witness: the conservatorship worker in this
case. That afternoon, after the Department rested its
case-in-chief, trial counsel implored the trial court-in the
presence of the jury-to permit him "to make one last
effort the rest of the evening to find [the father] and try
to get him here in the morning to testify." The trial
court agreed to wait and permit trial counsel to put on his
case the next morning. The trial court recessed the case
until 9:00 the next morning.
next morning, Appellant again failed to appear for trial.
Trial counsel informed the trial court that he had talked to
the father twice and that the father was aware of
"yesterday's hearing" and "today's
hearing." However, trial counsel was unable to locate
Appellant that morning.
the record in this case, we cannot hold that trial
counsel's failure to inform the jury why the father was
absent from the courtroom, trial counsel's waiver of
opening argument, or trial counsel's failure to call
witnesses constituted deficient performance. Given the
circumstances, trial counsel did what he could to effectively
represent the father at trial. He conducted voir dire; lodged
objections; cross-examined the Department's witness; and,
in his closing argument, asked the jury not to terminate the
father's parental rights. The father did not appear at
trial so that he could testify in his own behalf, nor is
there any indication in the record or in the father's
brief that there were any other witnesses available to
testify on his behalf. Because the father has not shown that