in the Interest of C.J.,JR., a Child ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00663-CV
IN THE INTEREST OF C.J., JR., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02667
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: March 11, 2015
AFFIRMED; MOTION TO WITHDRAW GRANTED
The Department of Family and Protective Services filed a petition to terminate the parental
rights of Judith R. (“Mother”) and Christopher J. (“Father”) to their child, C.J., Jr. The trial court
found at the conclusion of trial that both Mother and Father failed to comply with their family
service plans and that termination of their parental rights is in the best interest of the child. See
TEX. FAM. CODE ANN. § 161.001(1)(O), (2) (West 2014). Mother and Father appeal the trial
court’s September 8, 2014 judgment terminating their parental rights. We affirm the trial court’s
judgment as to both parents.
BACKGROUND
Mother’s parental rights to her two older children were previously terminated due to a child
fatality involving alcohol abuse, which is the reason the Department got involved soon after C.J.,
04-14-00663-CV
Jr. was born. Upon release from the hospital, the Department placed C.J., Jr. in the same foster
family with his two older siblings. At the final termination hearing, the only witness was Denise
Santos, the Department caseworker. Santos testified that both Mother and Father signed their
family service plans, but neither completed any of the required services. The only thing Mother
and Father complied with on their family service plans was visiting with C.J., Jr. Specifically,
Mother failed to engage in the GED program, counseling, the 12-Step Program, including getting
a sponsor, and the parenting classes, and failed to provide proof of income and housing. Father
failed to engage in the counseling and parenting services, failed to work the 12-Step Program,
including attending AA meetings, and failed to provide proof of employment and safe and stable
housing. Santos also testified that both parents seemed to disengage in the process, and she had
trouble contacting them because their phones were disconnected. Finally, Santos testified that
C.J., Jr. was ten months old at the time of the trial, and that the foster family had indicated a desire
to adopt C.J., Jr., but not the two older siblings. Santos stated that the Department would be
seeking adoption of C.J., Jr. and the two older siblings together because all three children have
bonded. As noted above, the trial court made findings that Mother and Father failed to comply
with their family service plans and that termination of their parental rights is in C.J., Jr.’s best
interest. TEX. FAM. CODE ANN. § 161.001(1)(O), (2). Both parents appeal.
FATHER’S APPEAL
Father’s court-appointed attorney filed a brief containing a professional evaluation of the
record and demonstrating that there are no arguable grounds to be advanced. Counsel concludes
that the appeal is without merit. The brief meets the requirements of Anders v. California, 386
U.S. 738 (1967). See In re R.R., No. 04–03–00096–CV, 2003 WL 21157944, at *4 (Tex. App.—
San Antonio May 21, 2003, no pet.) (applying Anders procedure in appeal from termination of
parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San Antonio Sept. 10, 2003, no
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pet.) (mem. op.). Counsel provided Father with a copy of the brief, and Father was informed of
his right to review the record and to file a pro se brief. Father has not filed a pro se brief. After
reviewing the record and counsel’s brief, we agree that Father’s appeal is frivolous and without
merit. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.).
MOTHER’S APPEAL
In her appellant’s brief, Mother raises a single issue, contending that her retained attorney
rendered ineffective assistance when he wholly failed to appear for the trial on the merits on
September 8, 2014. The Department filed its petition on November 6, 2013. That same day, an
attorney ad litem was appointed to represent Mother. However, Mother subsequently retained an
attorney, Adam Froeschl, to represent her. The record reflects that Mr. Froeschl appeared on
Mother’s behalf at two hearings: the temporary order hearing held on January 22, 2014 and the
initial permanency hearing held on June 17, 2014. 1 However, neither Mother nor Mr. Froeschl
appeared at the trial on the merits held on September 8, 2104. The record contains the judge’s
written notes made on September 8, 2014 stating that Mother and her retained attorney were
present at the two prior hearings and “had actual notice of this trial setting.” Before proceeding
with the trial on the merits, the trial court stated on the record that his notes showed that Mother
appeared with Mr. Froeschl “at the 262 hearing, the status hearing, 60-Day [h]earing, so full, actual
notice of this court date has been given.” Noting C.J., Jr.’s young age, under one year old, the
court decided to proceed with the trial in furtherance of the child’s best interest. As noted, at the
conclusion of trial the court terminated Mother’s parental rights to C.J., Jr.
The Sixth Amendment guarantees the right to reasonably effective assistance of counsel,
whether retained or appointed, in criminal prosecutions due to the liberty interest at stake.
1
The record also reflects that Mother appeared in person and through her attorney at a status hearing/pre-trial
conference held on February 18, 2014. The name of Mother’s attorney is not specified in the order for that hearing.
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Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Ex parte Briggs, 187 S.W.3d 458, 469
(Tex. Crim. App. 2005). The doctrine of ineffective assistance of counsel does not apply in civil
cases where there is no constitutional or statutory right to counsel. Culver v. Culver, 360 S.W.3d
526, 535 (Tex. App.—Texarkana 2011, no pet.) (internal citations omitted). The United States
Supreme Court has held there is no absolute due process right to assistance of counsel in parental
termination proceedings. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 31-
33 (1981) (stating that, rather, the decision whether due process requires the appointment of
counsel is to be made on a case-by-case basis by the trial court, subject to appellate review); see
also In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003).
The Texas Legislature has, however, chosen to provide a statutory right to counsel for
indigent parents in state-initiated parental termination proceedings. See TEX. FAM. CODE ANN.
§ 107.013(a) (West 2014); but see In re J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008,
pet. denied) (statutory mandate does not apply in private terminations). The Texas Supreme Court
has held this statutory right to appointed counsel for indigent parents necessarily “embodies the
right to effective counsel.” In re B.G., 317 S.W.3d 250, 253-54 (Tex. 2010) (quoting In re M.S.,
115 S.W.3d 534, 544 (Tex. 2003)). Thus, a parent may challenge an order of termination on the
ground that court-appointed counsel rendered ineffective assistance. In re M.S., 115 S.W.3d at
544-45 (applying Strickland standard to parental termination cases); In re J.O.A., 283 S.W.3d 336,
341 (Tex. 2009). Indeed, we have recently held that an appointed attorney’s complete failure to
appear at the trial on the merits, a “critical stage” in a parental termination proceeding, constituted
deficient performance that was presumptively prejudicial, warranting reversal of the termination
order. In re J.M.O., No. 04-14-00427-CV, 2014 WL 6979661, at *3 (Tex. App.—San Antonio
Dec. 10, 2014, no pet. h.) (relying on Lockwood v. Tex. Dep’t of Family & Protective Servs., No.
03-12-00062-CV, 2012 WL 2383781 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.)).
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The facts in this case track those of In re J.M.O., except that here Mother’s counsel was
retained. Mother cites no authority in support of her ability to raise an ineffective assistance claim
against retained counsel in a parental termination case. In fact, we have previously held that a
parent who hires his or her own attorney in lieu of the attorney appointed by the court cannot raise
an ineffective assistance of counsel challenge to the parental termination order. See 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.) (citing Martin v. Martin, No. 04-04-00828-CV, 2005 WL 1552763, at *1 (Tex.
App.—San Antonio July 6, 2005, no pet.) (mem. op.) (holding “no claim for ineffective assistance
of counsel lies in a civil case where counsel is retained”)). Our sister court in Amarillo has likewise
declined to extend the right to challenge a termination order on the ground of ineffective assistance
to cases in which counsel was retained by the parent, noting that the supreme court has not done
so. See In re J.B., No. 07-14-00187, 2014 WL 5799616, at *5 (Tex. App.—Amarillo Nov. 6, 2014,
no pet.) (mem. op.) (citing In re V.G., 2009 WL 2767040, at *12); see also Maki v. Anderson, No.
02-12-00513-CV, 2013 WL 4121229, at *6 (Tex. App.—Fort Worth Aug. 15, 2013, pet. denied)
(mem. op.), cert. denied, 135 S. Ct. 76 (Oct. 6, 2014) (same holding in context of protective order).
Pursuant to In re V.G., we hold that Mother cannot challenge the termination order based on a
claim that her retained counsel rendered ineffective assistance. In re V.G., 2009 WL 2767040, at
*12.
CONCLUSION
Based on the foregoing reasons, we overrule Mother’s sole issue on appeal and affirm the
trial court’s judgment as to her. In addition, we affirm the trial court’s judgment as to Father and
grant the motion to withdraw filed by Father’s court-appointed counsel. See Nichols, 954 S.W.2d
at 85-86; Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.).
Rebeca C. Martinez, Justice
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