Affirmed and Memorandum Opinion filed August 30,=20
2007.
In The
Fourteenth=20
Court of Appeals
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NO. 14-06-00187-CV
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IN THE INTEREST OF D.H., A.L., J.L.C., =
AND=20
C.C.
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On Appeal from the 300th District=20
Court
Brazoria County, Texas
Trial Court Cause No.=20
30290
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M E M O R=20
A N D U M O P I N I O N
Appellant, the mother =
of D.H.,=20
A.L., J.L.C., and C.C., challenges the termination of her parental =
rights=20
to her four daughters and argues that she received ineffective =
assistance=20
of counsel. We affirm.
I. =20
Factual and Procedural History
This case was =
originally tried=20
before an associate judge on February 6, 2006. The associate =
judge=20
recommended termination of appellant=3Ds parental rights and =
the=20
rights of the alleged or presumed fathers of the children. =
On=20
February 7, 2006, the district court judge adopted the =
recommendation and=20
terminated the parental rights of appellant and the putative=20
fathers. The attorney ad litem for the children contested =
the=20
order in the district court and requested a hearing de novo, =
while=20
appellant filed a direct appeal to this court. The Texas =
Department=20
of Family and Protective Services (ATDFPS@) then filed an =
unopposed=20
motion to abate this appeal to allow the district court to try the =
case de=20
novo. We granted the motion and issued an abatement order on =
August=20
31, 2006.
The district court =
conducted=20
the second trial on September 6, 2006, and appellant=3Ds parental rights =
were again=20
ordered terminated. The district court found, by clear and=20
convincing evidence, that appellant
(a) =
knowingly=20
placed or knowingly allowed the children to remain in conditions =
or=20
surroundings that endanger the physical or emotional well-being of =
the=20
children,
(b) =
engaged in=20
conduct or knowingly placed the children with persons who engaged =
in=20
conduct that endangers the physical or emotional well-being of the =
children, =
and
(c) =20
failed to comply with the provisions of a court order that =
specifically=20
established the actions necessary for the parent to obtain the =
return of=20
the children who have been in the permanent or temporary managing=20
conservatorship of TDFPS for not less than nine months as a result =
of the=20
children=3Ds removal from the =
parent under=20
Chapter 262 for the abuse or neglect of a child.
The court further =
found, by=20
clear and convincing evidence, that termination of the =
parent-child=20
relationship is in the children=3Ds best=20
interest.
The appeal was =
reinstated on=20
October 2, 2006. Appellant filed a motion to substitute =
counsel on=20
November 2, 2006 and moved for an extension to file =
appellant=3Ds brief. We =
granted both=20
motions. On November 22, 2006, appellant filed a second =
motion for=20
extension of time to file her brief, and we granted that motion as =
well. Appellant then filed a motion to abate the appeal and=20
requested that we remand the case to the district court a second =
time for=20
an evidentiary hearing to determine if appellant received =
effective=20
assistance of counsel. We denied the motion.
Appellant filed her =
brief in=20
this court on February 12, 2006. TDFPS responded with a =
motion to=20
require appellant to re-brief because her brief did not meet the=20
requirements of Rule 38 of the Texas Rules of Appellate =
Procedure. =20
We granted the motion, and appellant filed an amended brief on =
March 13,=20
2007. We denied TDFPS=3Ds motion to dismiss =
the appeal=20
for appellant=3Ds failure to comply =
with our=20
order, and we now address her appeal on the merits.
II. =20
Issues Presented
In her first issue, =
appellant=20
contends that A[t]he Court of =
Appeals=20
committed reversible error when it refused to remand this appeal =
to the=20
District Court for an evidentiary hearing to determine if =
[a]ppellant=20
received adequate counsel during the termination of her parental=20
rights.@ In her second =
issue,=20
appellant complains generally that the trial court committed =
reversible=20
error because it terminated her parental rights without clear and=20
convincing evidence.
III. =20
Analysis
A. =20
Ineffective Assistance of=20
Counsel
Appellant first =
contends that=20
this court erred in denying her motion to abate the appeal and =
remand the=20
case to the trial court for a hearing on her claim of ineffective=20
assistance of counsel. She asserts that she was denied =
effective=20
assistance of counsel because her court-appointed attorney advised =
her not=20
to appear at the second trial, =
and=20
argues that a remand for an evidentiary hearing is critical to the =
protection of her rights because her attorney=3Ds advice admittedly =
does not=20
appear in the record. In effect, she reurges her motion =
for =20
abatement and remand, but cites no authority for the contention =
that she=20
is entitled to such relief. TDFPS, however, treats=20
appellant=3Ds argument as direct =
challenge=20
to the conduct of her trial attorney. We therefore address=20
appellant=3Ds first issue as a =
claim of=20
ineffective assistance of counsel.
We review such claims =
under the=20
standard set forth in Strickland v. Washington, 466 U.S. =
668, 104=20
S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also In re M.S., =
115=20
S.W.3d 534, 545 (Tex. 2003) (adopting the Strickland test =
to=20
termination of parental rights). Under the Strickland =
test,=20
an appellant must prove (1) his trial counsel=3Ds representation was =
deficient,=20
and (2) the deficient performance was so serious that it deprived =
the=20
appellant of a fair trial. Id. at 687, 104 S. Ct. at=20
2064. To establish both prongs, the appellant must prove by =
a=20
preponderance of the evidence that counsel=3Ds representation fell =
below the=20
objective standard of prevailing professional norms, and there is =
a=20
reasonable probability that, but for counsel=3Ds deficiency, the =
result of the=20
proceeding would have been different. Id. at =
690B94, 104 S. Ct. at=20
2066B6. An=20
appellant=3Ds failure to satisfy =
one prong=20
makes it unnecessary for a court to consider the other =
prong. =20
Id. at 697, 104 S. Ct. at 2069.
Confronted with a =
silent=20
record, we begin our review with the strong presumption that=20
counsel=3Ds actions were =
motivated by=20
sound trial strategy, and we will not conclude the representation =
was=20
deficient unless the attorney=3Ds conduct was so =
outrageous=20
that no competent attorney would have engaged in it. =
Goodspeed v.=20
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We =
sustain=20
allegations of ineffective assistance only if firmly founded in a =
record=20
that affirmatively demonstrates the alleged ineffectiveness. =
McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. =
1996) (en=20
banc), abrogated on other grounds by Mosley v. State, 983 =
S.W.2d=20
249, 263 n. 18 (Tex. Crim. App. 1998) (en banc). The record =
on=20
direct appeal is usually inadequate to overcome the presumption =
and show=20
that counsel=3Ds conduct fell below =
an=20
objectively reasonable standard of performance. Bone v.=20
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). But if =
the=20
attorney=3Ds conduct was so =
outrageous=20
that no competent attorney would have engaged in it, =
counsel=3Ds performance falls =
below an=20
objective standard of reasonableness as a matter of law, =
regardless of=20
whether the record adequately reflects the attorney=3Ds subjective reasons =
for the=20
act or omission. Goodspeed, 187 S.W.3d at=20
392. Here, =
appellant=20
admits that her attorney=3Ds reasons for failing =
to call=20
her as a witness in the second trial are not stated in the =
record. =20
We therefore presume that the decision was motivated by sound =
trial=20
strategy. Moreover, trial counsel=3Ds failure to call =
appellant as=20
a witness was not outrageous, particularly in light of=20
appellant=3Ds testimony in the =
first trial,=20
which the court judicially noticed. Appellant herself =
describes this=20
testimony as Abordering on=20
perjury@ and included =
testimony such as=20
the following:
Q: [W]ho=20
is Bobbie Johnson?
A: I=20
don=3Dt exactly know who that is.
Q: You=20
don=3Dt exactly know who that is?
A: =20
I=3Dm going to remind you that =
you=3Dre under oath. Who is Bobbie=20
Johnson?
Q: =20
He=3Ds a friend.
. . .
Q: =20
[W]here does Bobbie Johnson reside?
A: In=20
Alvin.
Q: In=20
Alvin. What=3Ds his address?
A: I=20
plead the Fifth.
[Objection deleted]
A: =20
I=3Dm not exactly sure where he =
lives.
Q: Well,=20
that=3Ds because he lives with you, =
doesn=3Dt he?
A: =20
No.
At the trial de novo, =
however,=20
the trial court heard evidence that appellant lives with Johnson; =
that he=20
is a registered sex offender; that he was convicted of aggravated =
sexual=20
assault of a nine-year old girl; and that these facts are known to =
appellant.
On this record, =
appellant has=20
not overcome the presumption that her trial counsel=3Ds failure to call her =
as a=20
witness was motivated by sound strategy. We overrule=20
appellant=3Ds first =
issue.
B. =20
Termination of Parental Rights without Clear and Convincing =
Evidence=20
TDFPS argues that =
appellant has=20
waived this issue. We agree.
Despite an the =
opportunity to=20
amend her brief to include an appropriate statement of facts, =
appellant=20
continues to assert that she Aadopts all the =
testimony and=20
exhibits from the Trial Court as her statement of =
facts.@ Her general =
statement=20
that the trial court Acommitted reversible =
error when=20
it terminated the parental rights of the [a]ppellant without clear =
and=20
convincing evidence@ does not allow us to =
determine=20
the nature of her complaint. Her brief does not inform us =
whether=20
she claims that the evidence is legally insufficient, factually=20
insufficient, or that the trial court applied the wrong standard =
of=20
proof. She does not mention any finding or act by the trial =
court=20
other than the termination of her parental rights. She cites =
only=20
her own favorable testimony from the first trial, but does not =
address her=20
admitted failure to remain alcohol-free, her undisputed arrests, =
her=20
conceded failure to maintain a safe and stable home, and her =
residence=20
with a registered sex offender. In support of her second =
issue,=20
appellant cites only section 161.206(a) of the Texas Family =
Code. =20
See Tex. Fam. =
Code=20
Ann. ' 161.206(a) (Vernon =
Supp. 2006)=20
(AIf the court finds by =
clear and=20
convincing evidence grounds for termination of the parent-child=20
relationship, it shall render an order terminating the =
parent-child=20
relationship.@).
In sum, we are unable =
to=20
identify appellant=3Ds second issue, and =
thus we are=20
unable to address it. We conclude that the issue is waived =
by=20
inadequate briefing. See Tex. R. App. P.=20
38.1(e)B(h).
IV. =20
Conclusion
We overrule=20
appellant=3Ds first issue, and =
conclude=20
that her second issue is waived. We therefore affirm the =
judgment of=20
the trial court.
/s/ Eva=20
M. Guzman
Justice
Judgment rendered and =
Memorandum Opinion filed August 30, 2007.
Panel consists of =
Chief Justice=20
Hedges, Justices Hudson, and Guzman.=20
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See Tex. Fam. Code Ann. =
' 161.001(1)(D) (Vernon Supp.=20
2006).
Most of the other parties did not =
appear in=20
person. Only the attorney ad litem for the children called=20
=
witnesses. |