In the INTEREST OF J.M.O. , 2014 Tex. App. LEXIS 13168 ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00427-CV
IN THE INTEREST OF J.M.O.
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-01766
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: December 10, 2014
REVERSED AND REMANDED
Appellant Joe O. 1 appeals the trial court’s order terminating his parental rights to his two-
year-old daughter J.M.O. In one issue, he argues he was deprived of effective assistance of counsel
when his appointed attorney failed to appear at trial and failed to make arrangements for him to
appear at trial. Because we agree that Joe O. was deprived of effective assistance of counsel at
trial, we reverse the trial court’s order of termination and remand the cause for further proceedings.
1
To protect the privacy of the parties in this case, we identify the child by her initials and the parent by his first name.
See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
04-14-00427-CV
BACKGROUND
Appellant Joe O. is incarcerated in a state-jail facility and was incarcerated on May 27,
2014, the day of the termination hearing. Trial on the merits in this case began at 9:14 a.m. Neither
Joe O. nor his appointed attorney was present. Despite the absence of Joe O. and his appointed
attorney, the trial judge proceeded with the trial. At the beginning of the trial, the trial judge asked
the clerk of his court whether the clerk had attempted “to secure [the appointed attorney]’s
participation by phone?” The clerk responded, “Yes. . . . He didn’t answer. I got his voice mail
and I left him a message.” The trial judge noted that his “understanding [was] dad is in TDC at
Dominguez. He was at the [chapter] 262 [proceeding] of 8/23/13.” The trial judge explained that
he “saw no extraordinary circumstances to delay any further resolution for the young child,
[J.M.O.]. We are going to go forward.”
The reporter’s record of the trial consists of sixteen pages. Jennifer Crippen, the
caseworker, was the only witness to testify. According to Crippen, J.M.O. was currently placed
with her maternal great-aunt and had been living with her great-aunt since October 2, 2013. The
plan was for J.M.O.’s great-aunt to adopt J.M.O. Crippen testified that Joe O. was currently
incarcerated, and his release date was July 2015. His two-year sentence was the result of
convictions for robbery, and “drug possession and distributing.” Crippen testified that Joe O. had
not had any contact with J.M.O., had refused to sign his service plan, and had not shown he had
completed his service plan. Crippen testified that she did not believe Joe O. could take care of
J.M.O. and that it was in J.M.O.’s best interest for her father’s rights to be terminated. According
to Crippen, J.M.O.’s mother was murdered, and there were “concerns” Joe O. had been involved
with the murder. Based on this testimony, the trial court terminated Joe O.’s parental rights.
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The next day, May 28, 2014, Joe O.’s appointed counsel filed a Motion to Reconsider
Judgment, stating that (1) Joe O. was incarcerated at a state-jail facility, (2) his appointed attorney
had failed to order a video conference so that Joe O. could personally participate at his trial, and
(3) at approximately 8:30 a.m. on May 27, 2014, his appointed attorney had notified the trial court
that appointed attorney “was in another hearing in the 436th district court and would be late.” Joe
O. asked that the order of termination be reconsidered and he be given a new hearing where he
would have an opportunity to be heard and represented by counsel.
On June 5, 2014, the trial judge heard Joe O.’s motion to reconsider. The court-appointed
attorney testified to the following:
Basically, Your Honor, I filed this motion. The case was set on the 27 of May. I
had notified the court that I had neglected to order my client to be on audio. I was
in Juvenile. I let the Court know in advance that I was not going to be – that I was
going to be late. The Court at about 9:15, more or less, went ahead and heard the
case.
The State responded that there was no need for the trial judge to reconsider because “[t]here is
nothing that’s going to change the outcome or any new evidence that’s going to be garnished by
doing that. He’s going to hold up permanency for [this child].” Joe O.’s appointed attorney
responded,
That is why I’m asking for a short–basically to reset the merits. I’m not saying that
I did not know the court date, I did that, and it was my –it’s strictly my fault in not
notifying–you know, not ordering the client for that hearing on that date. I do think
that I should have been allowed to, you know, be present in court . . . . I’m not
blaming the Court for anything. I notified the Court. It was my fault and I strictly
am entirely [to blame] for not notifying my client–I mean not notifying– I mean not
requesting that my client be present; I’m not blaming the Court for that. The
Juvenile Court, I had to go one place or the other. I notified the Court at 8:30 that I
was going to be in Juvenile, so I fulfilled the requirement of notifying the court
where I was going to be. I’m not blaming the Court for this case because I screwed
it up, not the Court.
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The trial judge denied the motion to reconsider. Joe O. now appeals, arguing that he was deprived
of effective assistance of counsel at trial.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Texas, indigent persons in parental-rights termination proceedings have a statutory right
to counsel. See TEX. FAM. CODE ANN. § 107.013(a)(1) (West 2014). The Texas Supreme Court
has explained that “[i]t would seem a useless gesture on the one hand to recognize the importance
of counsel in termination proceedings, as evidenced by the statutory right to appointed counsel,
and, on the other hand, not require that counsel perform effectively.” In re M.S., 115 S.W.3d 534,
544 (Tex. 2003) (citation omitted). Thus, the Texas Supreme Court has held that the statutory right
to counsel in parental-rights termination cases embodies the right to effective counsel. Id. And, the
court concluded the standard enunciated by the Supreme Court in Strickland v. Washington, 466
U.S. 668 (1984), should apply to civil parental-termination proceedings. In re M.S., 115 S.W.3d
at 544.
Under the Strickland standard, a defendant must first show that counsel’s performance was
deficient. Strickland, 466 U.S. at 687. Second, a “defendant must show that the deficient
performance prejudiced the defense.” Id. “This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
The State argues that Joe O. has not shown his appointed attorney’s decision to avoid
appearing at the termination hearing was not a strategic decision or that his defense was prejudiced.
In determining whether an appointed attorney’s performance in a particular case is deficient, we
“must take into account all of the circumstances surrounding the case, and must primarily focus
on whether counsel performed in a ‘reasonably effective’ manner.” In re M.S., 115 S.W.3d at 545
(quoting Strickland, 466 U.S. at 687). “[C]ounsel’s performance falls below acceptable levels of
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performance when the representation is so grossly deficient as to render proceedings
fundamentally unfair.” Id. (citation omitted). “In this process, we must give great deference to
counsel’s performance, indulging a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance, including the possibility that counsel’s actions are
strategic.” Id. (citation omitted). “It is only when the conduct was so outrageous that no competent
attorney would have engaged in it that the challenged conduct will constitute ineffective
assistance.” Id. (citation omitted).
Recently, in Lockwood v. Texas Department of Family & Protective Services, No. 03-12-
00062-CV, 2012 WL 2383781 (Tex. App.—Austin June 26, 2012, no pet.), the Austin Court of
Appeals considered whether a parent was deprived of effective assistance of counsel when
appointed counsel failed to appear at trial. The court recognized that there was a strong
presumption that counsel’s conduct fell within the wide range of reasonable professional assistance
and that an assertion of ineffective assistance of counsel will be sustained only if the record
affirmatively supports such a claim. Id. at *5 (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999)). It also recognized that to show prejudice, an appellant “must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. (quoting Strickland, 466 U.S. at 694). The court explained that in
“this context, ‘[a] reasonable probability is a probability sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694) (alteration in original). And, the court
emphasized that pursuant to United States v. Cronic, 466 U.S. 648, 659 (1984), “a presumption of
prejudice may be warranted if an indigent parent is denied counsel at a ‘critical stage’ of litigation.”
Lockwood, 2012 WL 2383781, at *5 (quoting Cronic, 466 U.S. at 659). “In such circumstances,
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‘[n]o specific showing of prejudice [is] required,’ because ‘the adversary process itself [is]
presumptively unreliable.’” Id. (quoting Cronic, 466 U.S. at 659) (alteration in original).
The Austin Court of Appeals explained that in its case, the record reflected that appellant’s
attorney failed to appear at trial and that appellant, who also did not appear at trial, was not
represented at trial by her appointed counsel or anyone else. Id. at *6. The court concluded “[t]here
is no plausible strategic reason for trial counsel’s failure to appear at a critical stage of litigation
and subject the Department’s case to appropriate adversarial testing.” Id. Applying the principles
in Strickland and Cronic to the facts of the case, the court held “that the adversarial process
employed here was so unreliable that a presumption of prejudice is warranted.” Id.
Similarly, here, the record reflects that Joe O.’s attorney did not appear at trial and that Joe
O., who also was not able to appear because of his counsel’s failure to make arrangements with
the state-jail facility, was not represented at trial by his appointed counsel or anyone else. As in
Lockwood, we can see no plausible strategic reason for Joe O.’s appointed trial counsel to fail to
appear at such a critical stage of litigation and subject the Department’s case to appropriate
adversarial testing. Further, in this case, unlike in Lockwood, appointed counsel stated in his
motion to reconsider, and at the hearing on the motion, that he was at fault for failing to appear
and that he intended to appear. He was merely late for trial because he was in a different courtroom
at the time trial began. Thus, we conclude Joe O. has shown his counsel’s performance was
deficient.
Further, we agree with the Lockwood court that the Cronic presumption should apply when
appointed counsel wholly fails to appear at trial in a parental-rights termination proceeding. As in
Lockwood, the adversarial process employed here was so unreliable that a presumption of
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prejudice is warranted. Thus, because Joe O. was denied counsel at trial, which was a critical stage
of litigation, we hold Joe O. has shown his defense was prejudiced.
We therefore reverse the trial court’s order of termination and remand the cause for further
proceedings consistent with this opinion.
Karen Angelini, Justice
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