Date: 10-10-2017

Case Style:

Case Number: 06-17-00061-CV

Judge: Bailey C. Moseley

Court: Texas Court of Appeals, Fifth District on appeal from the 196th District Court, Hunt County

Plaintiff's Attorney: Keith Downs and Michael D. Becker for TX Dept of Family and Protective Services

Defendant's Attorney: Elisha Hollis for Father of Chlidren D.M.

Jason Duff for Children L.G.D. and A.F.D. Civil Ad-Litem

Description: Mac’s and Meg’s long history of domestic abuse and drug use led to the removal of their two children, L.G.D. and A.F.D.,1 by the Texas Department of Family and Protective Services (TDFPS). After a jury trial, a Hunt County jury found that Mac’s and Meg’s parental rights to L.G.D. and A.F.D. should be terminated. Based on the jury’s verdict, the trial court terminated Mac’s and Meg’s parental rights, finding that each of them had engaged in one or more of the acts or omissions necessary to support termination of their parental rights under subsections (D), (E), and (O) of Section 161.001(b)(1) of the Texas Family Code and that termination of their parental rights was in the best interests of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (2) (West Supp. 2016).
In this appeal, Mac contends that the evidence is legally and factually insufficient to support the jury’s findings that termination is in the best interests of the children. Meg contends that the evidence is legally and factually insufficient to support a finding that she failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of the children who had been in the temporary managing conservatorship of TDFPS for not less than nine months as a result of the children’s removal from the parent under Chapter 262 of the Family Code for the abuse or neglect of the child (ground O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). In addition, Meg contends that she was denied her right to a fair trial because she was denied effective assistance of counsel. We affirm the trial court’s judgment because we
1We refer to the children by their initials and to their parents by fictitious names to protect the privacy of the children. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
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find that Mac’s and Meg’s sufficiency of the evidence issues were not preserved and that Meg has not shown she was denied effective assistance of counsel.
I. Sufficiency of Evidence Issues Were Not Preserved
In Mac’s sole issue, he challenges the legal and factual sufficiency to support the finding that termination of his parental rights was in the best interests of the children. In Meg’s second issue, she challenges the legal and factual sufficiency to support termination of her parental rights under ground O. We have previously held that
[a]s a prerequisite to bringing a legal sufficiency challenge in a parental-rights termination appeal following a jury trial, a parent must raise the legal sufficiency challenge with the trial court in either: “(1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or (5) a motion for new trial.”
In re A.L., 486 S.W.3d 129–130 (Tex. App.—Texarkana 2016, no pet.) (quoting In re C.Y., No. 02-15-00152-CV, 2015 WL 6394559, at *2 (Tex. App.—Fort Worth Oct. 22, 2015, no pet.) (mem.op.) (citing In re D.J.J., 178 S.W.3d 424, 426–27 (Tex. App.—Fort Worth 2005, no pet.))). In this case, neither Mac nor Meg challenged the legal sufficiency of the evidence in any of the manners set forth above. Therefore, we find that Mac and Meg have failed to preserve their legal sufficiency challenges for appeal.
In addition, the Texas Rules of Civil Procedure require the filing of a motion for new trial as a prerequisite to asserting a factual sufficiency of the evidence supporting a jury finding complaint on appeal. Id. (citing In re O.M.H., No. 06-12-00013-CV, 2012 WL 2783502, at *2 (Tex. App.—Texarkana July 10, 2012, no pet.) (mem. op.); see TEX. R. CIV. P. 324(b)(2). Since neither Mac nor Meg filed a motion for new trial challenging the factual sufficiency of the evidence
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supporting the jury’s verdict, their factual sufficiency complaints are not preserved for appeal. Id. (citing O.M.H., 2012 WL 2783502, at *2 (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))).
For these reasons, we overrule Mac’s sole issue and Meg’s second issue.2
II. Ineffective Assistance of Counsel Has Not Been Shown
In her first issue, Meg complains that she was denied her right to a fair trial because she was denied effective assistance of counsel. TDFPS responds that since Meg’s counsel was retained,3 she does not have an ineffective assistance of counsel complaint, citing In re Z.C., No. 12-15-00279-CV, 2016 WL 1730740, at *2 (Tex. App.—Tyler Apr. 29, 2016, no pet.) (mem. op.); In re A.B.B., 482 S.W.3d 135, 140 (Tex. App.—El Paso 2015, pet. dism’d); In re J.B., No. 07-14-00187-CV, 2014 WL 5799616, at *5 (Tex. App.—Amarillo Nov. 6, 2014, no pet.) (mem. op.); In re V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *12 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.). However, TDFPS also acknowledges that one of our sister courts, based on the 2015 amendments to Section 107.013 of the Texas Family Code, has recently recognized an ineffective assistance of counsel complaint even though the parent was not indigent and counsel was retained. In re E.R.W., No. 14-17-00178-CV, 2017 WL 3879019, at *3–6 (Tex. App.—Houston [14th Dist.] Sept. 5, 2017, no pet. h.); see TEX. FAM. CODE ANN. § 107.013(a-1) (West Supp. 2016). In the alternative, TDFPS argues that Meg has not demonstrated that her trial counsel
2Even if Meg had preserved this issue, the findings that Meg had engaged in acts or omissions under subsections (D) and (E) of Section 161.001(b)(1) were sufficient to support the judgment of termination since “[o]nly one predicate finding under Section 161.001[b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child’s best interest.’” In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)).
3Although Meg was initially appointed counsel by the trial court, before trial her apparently retained counsel was substituted to represent her.
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was so ineffective that she was denied a fair trial. Without deciding whether Meg has a viable complaint, we find that Meg has not shown that but for the acts or omissions of her trial counsel, her parental rights would not have been terminated.
The standard used for analyzing an ineffective assistance of counsel claim in parental-rights termination cases is the same as that used in criminal cases and is set forth in Strickland v. Washington. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see Strickland v. Washington, 466 U.S. 668 (1984). “The right to effective assistance of counsel does not guarantee, however, ‘errorless or perfect counsel whose competency of representation is to be judged by hindsight.’” In re J.M.A.E.W., No. 06-14-00087-CV, 2015 WL 1119761, at *3 (Tex. App.—Texarkana Mar. 13, 2015, no pet.) (mem. op.) (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To prevail on her claim, Meg “must prove by a preponderance of the evidence that (1) [her] counsel’s performance was deficient, that is, that it fell below an objective standard of reasonableness; and (2) it is reasonably probable that, except for [her] counsel’s unprofessional errors, the outcome of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 687–88, 694. To find that Meg’s “trial counsel was ineffective, the trial record must affirmatively demonstrate his deficiency.” Id. (citing Bermea v. Tex. Dep’t of Family & Protective Servs., 265 S.W.3d 34, 43 (Tex. App.—Houston [1st Dist.] 2008), pet. denied, 264 S.W.3d 742 (Tex. 2008) (per curiam). “In reviewing trial counsel’s performance, we take into account the circumstances surrounding the case and focus primarily on whether the manner of his performance was reasonably effective.” Id. (citing In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (per curiam);
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M.S., 115 S.W.3d at 545). “We give great deference to trial counsel’s performance and indulge a strong presumption that his conduct falls within the wide range of reasonably professional assistance,” including “the possibility that his actions were strategic.” Id. (citing H.R.M., 209 S.W.3d at 111; M.S., 115 S.W.3d at 545). “If the record is silent regarding the reasons for his actions, we do not engage in speculation to find trial counsel rendered ineffective assistance of counsel.” Id. (citing In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—El Paso 2013, no pet.)). “We only find ineffective assistance if the conduct is ‘so outrageous that no competent attorney would have engaged in it.’” Id. (quoting H.R.M., 209 S.W.3d at 111).
To determine whether her trial counsel’s alleged deficiencies harmed Meg, “we presume that the fact-finder acted in accordance with the law.” Id. at *4 (citing Strickland, 466 U.S. at 694). “In assessing harm, we consider the totality of the circumstances and evidence presented to determine whether there is a reasonable probability that, but for counsel’s unprofessional error(s), the result of the proceeding would have been different.” Id. (internal quotation marks omitted) (quoting M.S., 115 S.W.3d at 550; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “Failure to satisfy either prong of the Strickland test is fatal.” Id. (citing Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). “Thus, if an appellant fails to show that it is reasonably probable that the outcome would have been different with the wished-for performance by counsel, we need not determine whether trial counsel’s actual performance was deficient.” Id. (citing Strickland, 466 U.S. at 697; Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011)). Further, to satisfy this prong, the appellant must provide an
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analysis of how the alleged deficiencies of her trial counsel affected the outcome of the case; conclusory statements of harm are not enough. In re L.G., No. 07-14-00365-CV, 2015 WL 1477975, at *5 (Tex. App.—Amarillo Mar. 26, 2015, no pet.); see In re G.H., Jr., No. 12-16-00327-CV, 2017 WL 2464694, at *4 (Tex. App.—Tyler June 7, 2017, pet. filed).
In her brief, Meg (1) complains of her trial counsel’s unusual behavior during voir dire, (2) lists fifteen instances in which her trial counsel elicited testimony that was allegedly harmful to her, and (3) complains that her trial counsel attempted to introduce law outside the scope of the jury charge during closing argument and raised concerns with the jury charge after closing arguments were concluded. Even if we were to assume that these complained-of actions evidenced some deficiency on the part of trial counsel, Meg has offered no explanation of how, but for these deficiencies, her parental rights would not have been terminated. Meg has not challenged the jury’s findings under grounds D and E or its finding that termination of her parental rights was in the best interests of the children, thereby conceding the sufficiency of the evidence supporting those findings. In her brief, she offers no explanation of how any of the complained-of actions of her trial counsel, whether individually or cumulatively, affected the jury’s findings under grounds D and E or its best-interest finding. Rather, she only makes a conclusory argument that if it were not for these alleged errors, the outcome of the trial would have been different. However, “[i]pse dixit is not enough” to show she has been prejudiced. L.G., 2015 WL 1477975, at *5.
Since Meg failed to show that the result of the trial would have been different but for the alleged errors of her trial counsel, she has failed to meet the second prong of Strickland, and we need not determine whether her trial counsel’s performance was deficient. See Strickland, 466
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U.S. at 697; Martinez, 330 S.W.3d at 901. Because Meg has failed to show harm, she cannot prevail on her ineffective assistance of counsel claim. We overrule her first issue.

Outcome: For the reasons stated, we affirm the judgment of the trial court.

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