in the Interest of J.A.B.

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-18-00168-CV
IN THE INTEREST OF J.A.B., a Child
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02092
Honorable Martha Tanner, Judge Presiding
OPINION ON MOTION FOR REHEARING
Opinion by: Sandee Bryan Marion, Chief Justice
Concurring and Dissenting Opinion by: Rebeca C. Martinez, Justice
Sitting en banc: Sandee Bryan Marion, Chief Justice
Karen A. Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: October 17, 2018
AFFIRMED IN PART, REVERSED IN PART, CAUSE REMANDED
On August 15, 2018, we issued an opinion in this appeal. The State filed a motion for
rehearing, arguing the opinion conflicts with this court’s prior opinion in In re D.R.R., No. 04-17-
00076-CV, 2017 WL 3044575 (Tex. App.—San Antonio July 19, 2017, pet. denied) (mem. op.).
On the court’s own motion, we withdraw the panel opinion and judgment dated August 15, 2018
and substitute this en banc opinion and judgment. Appellee’s motion for rehearing is denied. See
TEX. R. APP. P. 49.7.
04-18-00168-CV
This is an accelerated appeal from the trial court’s order terminating Appellant Anthony’s
parental rights to his child, J.A.B. In a single issue on appeal, Anthony argues he received
ineffective assistance of counsel at trial. Because we agree Anthony received ineffective assistance
of counsel, we reverse the trial court’s order of termination as it pertains to Anthony only and
remand the cause for a new trial. However, because Anthony did not challenge the appointment of
the Texas Department of Family and Protective Services (the “Department”) as managing
conservator under section 153.131 of the Texas Family Code, we affirm the trial court’s
appointment of the Department as managing conservator of J.A.B.
Background
Tracy is the mother of J.A.B. and J.A.B.’s half-brother. Anthony is J.A.B.’s alleged father.
On the date this case was filed, J.A.B. was thirteen years old and his brother was an infant.
Based on reports of physical neglect of J.A.B. and unsanitary living conditions in the home
in which Tracy was living with J.A.B. and his infant brother, the Department removed both
children and filed a petition to terminate Tracy’s parental rights, as well as the parental rights of
Anthony and the other child’s father. Anthony was appointed trial counsel. While the case was
pending, Anthony was arrested and incarcerated, and he is not due to be released from
incarceration until October 27, 2020.
On March 1, 2018, the trial court held a bench trial. On the date of trial, Anthony was not
present because he was incarcerated, and his trial counsel appeared and announced “not ready.”
The trial court overruled trial counsel’s “not ready,” and proceeded to trial to terminate Anthony’s,
Tracy’s, and the other father’s parental rights. The Department called a caseworker as its only
witness. Shortly after the Department began examining the caseworker, trial counsel requested to
be excused from the proceeding:
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[Trial counsel]: Judge, pardon me. I have a[n] actual client in a termination
hearing in 3.06. May I be excused and come back here very shortly?
[Trial court]: Can we proceed without you?
[Trial counsel]: Yes, you can, Judge.
[Trial court]: Okay.
Anthony’s trial counsel then left the courtroom and did not return until after the Department rested.
During trial counsel’s absence from the courtroom, the Department caseworker testified to
the reasons why Anthony’s parental rights should be terminated, specifically due to abandonment
of J.A.B., and to the reasons why termination of Anthony’s parental rights is in J.A.B.’s best
interest. Also during trial counsel’s absence, Tracy’s attorney, the other father’s attorney, and
J.A.B.’s ad litem attorney each conducted a brief cross-examination of the Department caseworker,
and the Department rested. While the attorneys were making closing statements, Anthony’s trial
counsel returned to the courtroom. After asking the trial court for permission to “ask one or two
questions,” trial counsel then conducted his own brief cross-examination of the Department
caseworker. Trial counsel then rested. No other witnesses testified.
Tracy voluntarily relinquished her parental rights to both children, and the other father
voluntarily relinquished his parental rights as well. The trial court accepted the voluntary
relinquishments. The trial court terminated Anthony’s parental rights to J.A.B. on the ground of
abandonment and found termination of Anthony’s parental rights is in J.A.B.’s best interest.
Anthony appeals, complaining of ineffective assistance of counsel.
Discussion
A. Standard of review
The Family Code guarantees indigent parents the right to counsel in government-initiated
parental rights termination cases. TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp. 2017). That
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right to counsel includes the right to effective assistance of counsel. In re M.S., 115 S.W.3d 534,
544 (Tex. 2003). To determine whether Anthony received effective assistance of counsel in this
case, we apply the standard of review set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Id. at 545. Under that standard, Anthony must establish by a preponderance of the evidence that:
(1) trial counsel’s performance fell below an objective standard of reasonableness; and (2)
Anthony was prejudiced by trial counsel’s defective performance. Id. (citing Strickland, 466 U.S.
at 687).
B. Analysis
Anthony alleges trial counsel was ineffective because: (1) trial counsel “wholly failed to
appear and fully participate at a critical stage of litigation—the trial,” and (2) “there is no testimony
of any effort by trial counsel to secure [Anthony’s] presence at trial to assist in his case during
trial.” Anthony relies on this court’s opinion in In re J.M.O., 459 S.W.3d 90 (Tex. App.—San
Antonio 2014, no pet.).
In J.M.O., we held an incarcerated father received ineffective assistance of counsel because
his court-appointed counsel did not appear at trial and because father, “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.” Id. at 94. We concluded the first
Strickland prong was satisfied because there was “no plausible strategic reason” for trial counsel
to fail to show up for trial, particularly because trial counsel subsequently admitted he intended to
appear and was at fault for his failure to do so. Id.
We also relied on Lockwood v. Texas Department of Family and Protective Services, in
which our sister court held “a presumption of prejudice may be warranted if an indigent parent is
denied counsel at a ‘critical stage’ of litigation.” No. 03-12-00062-CV, 2012 WL 2383781, at *5
(Tex. App.—Austin June 26, 2012, no pet.) (mem. op.) (quoting United States v. Cronic, 466 U.S.
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648, 659 (1984)). We agreed with Lockwood that a presumption of prejudice applied in J.M.O.
because trial counsel “wholly” failed to appear at trial to “subject the Department’s case to
appropriate adversarial testing.” In re J.M.O., 459 S.W.3d at 94. Other courts have reached the
same conclusion where trial counsel failed to show up for trial. E.g., In re K.B., No. 05-17-00428-
CV, 2017 WL 4081815, at *7–8 (Tex. App.—Dallas Sept. 15, 2017, no pet.) (mem. op.).
In this case, unlike J.M.O. and Lockwood, Anthony’s trial counsel did not “wholly fail” to
show up for trial. Rather, trial counsel was in the courtroom when the case was called, announced
“not ready,” and later briefly cross-examined the Department caseworker. However, trial counsel
was not present for virtually all of the Department’s case, including all of its evidence in support
of terminating Anthony’s parental rights, as well as the cross-examination of the Department’s
sole witness by the attorneys representing Tracy, the other father, and the ad litem. We therefore
agree with Anthony that his trial counsel was not present for a “critical stage” of litigation—i.e.,
the entirety of the Department’s case in support of terminating Anthony’s parental rights. Although
trial counsel did briefly cross-examine the Department caseworker, trial counsel could not have
“subject[ed] the Department’s case to appropriate adversarial testing” after being absent for all of
the caseworker’s testimony regarding whether Anthony’s parental rights should be terminated. See
In re J.M.O., 459 S.W.3d at 94.
We conclude Anthony has satisfied the first Strickland prong because there was no
plausible strategic reason for trial counsel to be absent for all of the Department’s case against
Anthony. We need not conduct a prejudice analysis under the second Strickland prong because we
conclude a presumption of prejudice is warranted in this case in light of trial counsel’s absence
during a “critical stage” of litigation. See id. Because we conclude trial counsel was ineffective for
failing to be present during a “critical stage” of litigation, we need not address Anthony’s second
argument regarding whether trial counsel should have secured Anthony’s presence at trial. To the
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extent our opinion today could be construed to conflict with our prior opinion in D.R.R., D.R.R. is
overruled.
Because Anthony did not challenge the Department’s conservatorship under section
153.131 of the Texas Family Code, we affirm the trial court’s appointment of the Department as
managing conservator of J.A.B. TEX. FAM. CODE ANN. § 153.131 (West 2014); see also In re
J.A.J., 243 S.W.3d 611, 617 (Tex. 2007) (explaining procedure when judgment terminating
parental rights is reversed and Department’s conservatorship under section 153.131 is affirmed).
Conclusion
For these reasons, we hold Anthony received ineffective assistance of counsel at trial.
Accordingly, we reverse the trial court’s order of termination as it pertains to Anthony only and
remand the cause to the trial court for a new trial. We affirm the trial court’s appointment of the
Department as managing conservator of J.A.B.
Sandee Bryan Marion, Chief Justice
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