in the Interest of V.O.M., Children ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00455-CV
In the Interest of V.O.M. and A.K.E., Children
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2011-PA-02304
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: December 28, 2012
MOTION TO WITHDRAW GRANTED; AFFIRMED
Appellant father C.E. appeals the trial court’s order terminating his parental rights as to
his child, V.O.M. Appellant mother M.C.M. appeals the trial court’s order terminating her
parental rights to her children, V.O.M. and A.K.E.
V.O.M. and A.K.E. were living with C.E. and M.C.M. when they were removed from the
home by the Texas Department of Family and Protective Services. C.E. and M.C.M. were each
represented by counsel at trial; however, neither C.E. nor M.C.M. personally appeared at trial.
Trial witnesses testified that (1) the children were repeatedly subjected to physical abuse by C.E.;
(2) M.C.M. was aware of the physical abuse but failed to protect the children; and (3) the
termination of parental rights would be in the children’s best interest. Photographs of the
children’s injuries from the physical abuse were admitted into evidence.
04-12-00455-CV
C.E.’S APPEAL
C.E.’s appellate counsel has filed an Anders 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 2003, order) (applying Anders procedure in appeal from termination
of parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San Antonio 2003, no pet.).
Counsel provided C.E. with a copy of the brief. C.E. was informed of his right to review the
record and advised of his right to file a pro se brief. C.E. has not filed a brief. C.E.’s counsel has
also filed a motion to withdraw. After reviewing the record and counsel’s brief, we agree that
C.E.’s appeal is frivolous and without merit. Counsel’s motion to withdraw is granted.
M.C.M.’S APPEAL
M.C.M.’s appellate counsel has filed a brief complaining M.C.M. was denied effective
assistance of counsel because her court-appointed trial counsel was not present at trial. M.C.M.’s
court-appointed trial counsel arranged for a colleague to stand in for him at a hearing in this case.
Stand-in counsel appeared at the hearing and learned the case was set for trial six days later.
Stand-in counsel then appeared on the day of trial, announced not ready, and asked for a
continuance. The request for a continuance was denied. Stand-in trial counsel then participated in
the trial.
To establish ineffective assistance of counsel in a parental termination case, a
complaining parent must show by a preponderance of the evidence that (1) her counsel’s
performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In re
M.S., 115 S.W.3d 534, 545 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Here, M.C.M. does not direct us to any specific instance in which stand-in trial
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04-12-00455-CV
counsel’s conduct was deficient. Nor does M.C.M. show how stand-in trial counsel’s conduct
prejudiced her defense. To establish an ineffective assistance of counsel claim, M.C.M. was
required to establish both elements of the ineffective assistance of counsel inquiry. See id.
M.C.M. has failed to do so. We overrule her sole issue.
CONCLUSION
The trial court’s judgment is affirmed.
Karen Angelini, Justice
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