in the Interest of J.F., Minor Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00316-CV
IN THE INTEREST OF J.F., Minor Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-02694
Honorable John D. Gabriel, Jr., Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: October 22, 2014
AFFIRMED
Appellant appeals the trial court’s order terminating her parental rights to her daughter, J.F.
After an eight-day jury trial, the trial court submitted a broad form jury charge providing the jury
with five possible grounds for termination and indicating that the jury must also find that
termination of Appellant’s parental rights is in the best interest of J.F. In a single question, the
charge asked the jury, “Do you find that the parent-child relationship between [Appellant] and the
child, J.F., should be terminated?” The jury answered, “Yes.” The trial court signed an order of
termination in accordance with the jury’s findings.
In her sole issue on appeal, Appellant argues that trial counsel provided ineffective
assistance of counsel for failing to object to a ground in the broad form jury charge that failed to
track the statutory language of the Family Code. Specifically, she complains that the charge
04-14-00316-CV
erroneously gave the jury the option to terminate Appellant’s parental rights if she
“contumaciously refused to submit to a reasonable and lawful order of the court.” Section
161.001(1)(I) provides: “The court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence that the parent has contumaciously refused to submit
to a reasonable and lawful order of a court under Subchapter D, Chapter 261[.]” TEX. FAM. CODE
ANN. § 161.001(1)(I) (West 2014) (emphasis added). Appellant contends that this ground was
overly broad because it allowed for termination if she refused to submit to any order of the court,
and there is no way of knowing how many jurors relied on this ground to terminate her parental
rights. Thus, she maintains that counsel was ineffective for failing to object to the error.
The Texas Supreme Court has held that “the statutory right to counsel in parental-rights
termination cases embodies the right to effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex.
2003); TEX. FAM. CODE ANN. § 107.013(a) (West 2014). The two-pronged Strickland test used
for determining counsel effectiveness in criminal proceedings is also used to determine counsel
effectiveness in civil parental termination proceedings. In re M.S., 115 S.W.3d at 545; see
Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the two-pronged test, Appellant must
first show that her counsel’s performance was deficient; second, Appellant must show that the
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of
the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). The issue is whether counsel’s assistance was reasonable under
all the circumstances and prevailing professional norms at the time of the alleged error. Strickland,
466 U.S. at 688-89. “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690.
An allegation of ineffective assistance must be firmly founded in the record, and the record must
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affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813-14. Our
scrutiny of counsel’s performance must be highly deferential, and every effort must be made to
eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689.
Here, Appellant did not file a motion for new trial, and the record is silent as to counsel’s
strategy at trial. See Thompson, 9 S.W.3d at 813-14 (silent record will not support ineffective
assistance claim). Based on the silent record before us, we cannot conclude that counsel’s failure
to object to a ground in the broad form jury charge that failed to track the statutory language of the
Family Code 1 was “outside the wide range of professionally competent assistance.” In re J.F.C.,
96 S.W.3d 256, 283 (Tex. 2002) (quoting Strickland, 466 U.S. at 690). Appellant has failed to
show her counsel’s performance was deficient. See In re J.F.C., 96 S.W.3d at 283; Thompson, 9
S.W.3d at 914. Because Appellant failed to meet her burden under the first prong of the Strickland
test, we need not address the second prong. See Strickland, 466 U.S. at 697. Accordingly, we
overrule Appellant’s issue on appeal, and affirm the judgment of the trial court.
Rebeca C. Martinez, Justice
1
Appellant cites In re B.L.D., 113 S.W.3d 340, 354-55 (Tex. 2003), for the proposition that grounds for termination
submitted to the jury in the broad form jury charge must track the statutory language of the Family Code. B.L.D. does
not actually mandate such, but merely noted that the charge in the case did track the language of the Family Code.
See id.-3-