Opinion issued September 30, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00444-CV
L.T.H., Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from 314th District Court
Harris County, Texas
Trial Court Cause No. 2003-05016J
MEMORANDUM OPINION
Following a bench trial, the trial court terminated the parental rights of appellant, L.T.H., to her minor daughter A.H. In one issue, appellant challenges the final termination order, contending that she was denied effective assistance of trial counsel.
We affirm.
Background Facts
A.H., T.H., and S.L. are appellant’s three minor children. A.H. was born on November 16, 2002. T.H. and S.L. have a different father than A.H.
The Department of Family and Protective Services (“DFPS”) received a report that T.H. and S.L. were being physically and sexually abused. The report indicated that S.L. was observed with “multiple deep flesh scars on her face” that looked like she had been cut with a razor blade. Six days after this report, T.H., S.L., and A.H. were taken into protective care by DFPS after the police found T.H. riding her bike alone at 11:30 p.m. at an apartment complex wearing only a diaper.
In a proceeding separate from the one at issue here, T.H. and S.L.’s father was named as managing conservator of the two children with appellant receiving the right to supervised visitation. A.H.’s father could not be located and DFPS sought to terminate appellant’s parental rights as to the child.
Although DFPS sought only to terminate appellant’s parental rights as to A.H., evidence was introduced at trial that T.H. and S.L. had numerous scars and marks on their bodies when they were taken into protective care. The investigating DFPS case worker, Erin Able, testified at trial that S.L. had “flesh pink scars all over her nose” and two spots on her forehead. S.L. told Able that appellant had scratched her face. Able further testified that T.H. had numerous open wounds on her back and that T.H. had told her that appellant had “scratched her back.” T.H. also had a scar on her left arm. Able testified that T.H. told her that appellant had pushed T.H. into “some glass.” Photographic evidence corroborated Able’s testimony regarding the condition of T.H.’s and S.L.’s skin.
Able also testified regarding A.H.’s condition when A.H. was taken into protective custody. According to Able, seven-month-old A.H. was dirty and had “dark patches” on her face. Able also noted that A.H.’s diaper was urine soaked and contained dirt and blood. Other evidence introduced at trial showed that A.H. had numerous marks and scars on her body.
Able testified that appellant had stated that the children’s wounds and scars were caused by impetigo. Although Able requested appellant to provide her with medical records for the children to confirm the impetigo diagnosis, appellant never complied with the request. Another case worker testified that the children told her that appellant had “scratched them” and pinched A.H.
Appellant’s therapist, Kotomi Ito, testified that appellant is delusional and suffers from “borderline intellectual functioning” and “emotional instability.” According to Dr. Ito, appellant would require constant supervision to parent a small child such as A.H. and will require long-term, possibly life time, therapy.
Evidence also showed that appellant has HIV and that A.H. was born HIV- positive.
Ineffective Assistance of Counsel
In her pro se appellate brief, appellant contends that her court-appointed trial counsel failed to present certain defensive evidence.
In analyzing the effectiveness of counsel in the context of a termination-of-parental-rights proceeding, we follow the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington to determine whether an attorney’s representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance of counsel. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003) (adopting standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). To show ineffectiveness of counsel in a termination-of-parental-rights case, the appellant must demonstrate (1) that counsel’s assistance fell below an objective standard of reasonableness and (2) that counsel’s deficient assistance, if any, prejudiced the defendant. Id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). We acknowledge that there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). To overcome this presumption, any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). With these principles in mind, we turn to appellant’s contentions.
Appellant complains that her trial counsel failed to introduce evidence to show the following: (1) appellant had her own skin disorder under control with medication and was taking behavioral medication; (2) appellant had complied with DFPS’s plan of service; and (3) appellant’s “viral load” associated with her HIV was down.
A review of the record shows these contentions are unfounded. The evidence appellant claims was not introduced at trial was in fact introduced. Contrary to appellant’s assertions, defense counsel elicited testimony at trial showing that appellant had made efforts to comply with the plan of service and that appellant had made progress in therapy. Pertaining to the management of appellant’s skin and psychological disorders, defense counsel had appellant list for the trial court the medications she was taking. Defense counsel did not need to elicit testimony that appellant’s “viral load” was down because appellant gave such testimony on cross-examination.
Appellant also complains that defense counsel was ineffective for failing to offer evidence that the “rashes” found on the children were caused by a medical condition and that appellant had obtained medical treatment for her children. Although appellant filed a motion for new trial, the motion did not raise ineffective assistance of counsel as a ground. The order denying the motion does not clearly indicate whether a hearing was conducted on the motion. If a hearing was conducted, it is not contained in the appellate record. In the absence of a proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
Here, nothing in the appellate record shows whether evidence existed to establish that the children had a medical condition or that appellant had sought medical treatment for them. Even if such evidence existed, defense counsel could have reasonably determined that the potential benefit of such evidence was outweighed by the risk of unfavorable counter-evidence. See Bone v. State, 77 S.W.3d 828, 834-35 (Tex. Crim. App. 2002). In the absence of evidence showing counsel’s reasons for the challenged conduct, we will assume a strategic motivation and will not conclude the conduct was deficient. See Garcia, 57 S.W.3d at 440. Appellant has not rebutted the presumption that her trial counsel made all significant decisions in the exercise of reasonable professional judgment, and appellant has not demonstrated counsel’s assistance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 814.
We overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s order terminating appellant’s parental rights.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Hanks, and Higley