IN THE
TENTH COURT OF APPEALS
No. 10-03-00148-CV
Kimberly Taylor,
Appellant
v.
Brazoria county children’s
PRotective Services unit,
Appellee
From the 300th District Court
Brazoria County, Texas
Trial Court # 17208*RH01
MEMORANDUM Opinion
Brazoria County Children’s Protective Services (“CPS”) filed suit to terminate the parent-child relationship between parents Kimberly Taylor, John Taylor and Calvin Henderson and six children. A jury returned a verdict adverse to all parents. Appellant, Kimberly Taylor, brings two issues on appeal: (1) whether her counsel was ineffective; (2) whether the trial court abused its discretion in refusing to appoint counsel for her before trial.
We will overrule her issues and affirm the judgment.
BACKGROUND
CPS filed suit to terminate the parent-child relationship on September 7, 2001. At a permanency review hearing conducted on January 14, 2003, Kimberly requested (apparently for the first time) that the court appoint an attorney for her. The trial court refused her request on the grounds that she and her husband were both employed and together made roughly eighteen dollars an hour. The trial court also told Kimberly that because the trial date was set for February, any lawyer she hired would have limited preparation time and there would be no chance for a continuance.
Ineffectiveness of Counsel
Kimberly’s first issue contends that her trial counsel was ineffective as a result of her accepting the case three days prior to commencement of trial and by failing to file a motion for new trial. 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). In analyzing the effectiveness of counsel in the context of termination of parental rights, we follow a two-pronged test. Id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). The appellant must show that counsel’s assistance fell below an objective standard of reasonableness and that counsel’s deficient performance, if any, prejudiced the defendant. Id. at 549. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Id.
Kimberly contends that her trial counsel, who agreed to represent Kimberly without charging her a fee, was ineffective because she agreed to take the case only days before the trial was to begin and therefore did not have time to prepare. Kimberly argues that her counsel should have requested a continuance. However, Kimberly was present at a permanency review hearing on January 14 when the court told her that the “case is going to go to trial because it has a dismissal date that requires it be tried prior to March 7th . . . there’s no chance for a continuance and no chance for an extension.” We cannot say that counsel’s decision not to request a continuance was unreasonable under these facts.
Kimberly also argues that trial counsel’s failure to file a motion for new trial denied her effective assistance of counsel. Texas Rule of Civil Procedure 324 requires a motion for new trial to preserve a complaint of factual sufficiency. Tex. R. Civ. P. 324(b)(2). Not every failure to preserve factual sufficiency issues rises to the level of ineffective assistance. In re M.S., 115 S.W.3d at 549. We review the failure to file a motion for new trial under the established Strickland standards. Id. When a motion for new trial is not filed in a case, the rebuttable presumption is that it was considered by the appellant and rejected. Id. We indulge the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, including the possibility that counsel’s decision was based on strategy or that counsel, in her professional opinion, believed the evidence factually sufficient such that a motion for new trial was not warranted. Id.
Assuming without deciding that counsel’s failure to file a motion for new trial was unreasonable, we determine whether counsel’s failure caused harm. Id. at 549-50. We conduct a factual sufficiency review as if factual sufficiency had been preserved to determine whether the result would have been different but for counsel’s unprofessional errors. Id. at 550. In a factual sufficiency review in a parental-rights termination case, we consider whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
To support the termination, CPS had the burden to prove by clear and convincing evidence that Kimberly knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, or failed to comply with the provisions of a court order establishing the actions necessary for her to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child. Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O) (Vernon 2002). Additionally, CPS had the burden to prove by clear and convincing evidence that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2) (Vernon 2002).
There was evidence at trial of three separate burns to one child and the lack of medical attention to the injury. At least one of those burns was inflicted by the child’s brother with an iron. There was evidence that one of the boys suffered a black eye when Kimberly spanked him with a belt for attempting to strangle one of the other children. A psychologist testified that one of the children suffers from, among other disorders, Attention Deficit Hyperactivity Disorder and requires a less chaotic and more structured environment than that provided by Kimberly. There was testimony that John Taylor drove while intoxicated to the parole office with two of the children in the car. On at least one occasion, Kimberly left the children at home unsupervised for forty minutes. Evidence of Kimberly’s criminal history was produced, including convictions of criminal mischief and driving with a suspended license, felony probation for welfare fraud, and an arrest for making a false report to a police officer. Although Kimberly testified that she has complied with many of the provisions of the temporary orders, she failed to pay child support as ordered. Kimberly produced evidence of the children’s behavioral problems since they have been removed from her home, including evidence that one child was hospitalized for injuries from a television set falling on him. In light of the entire record, we cannot say that the jury could not have reasonably formed a firm belief or conviction about the truth of CPS’s allegations. Id. The jury could also have reasonably formed a firm belief or conviction that termination is in the best interest of the children. The evidence is therefore factually sufficient.
Because the evidence was factually sufficient, Kimberly was not harmed by her counsel’s failure to file a motion for new trial on that ground. We overrule this issue.
Abuse of Discretion
Kimberly’s second issue argues that the trial court abused its discretion in refusing to appoint counsel for her, thus preventing her from receiving effective assistance of counsel. A trial court abuses its discretion when it acts “without reference to any guiding rules or principles,” or stated another way, when the trial court acts in an arbitrary and unreasonable manner. City of San Benito v. Rio Grand Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985)).
The Texas Family Code requires the trial court to appoint counsel to represent an indigent parent who has appeared in opposition to the termination. Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2004). The burden of proof rests on the individual seeking to establish indigency to prove that they could not pay the costs. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980). There is nothing in the record to show that Kimberly made a prima facie case that she was indigent. The trial court determined that Kimberly and John Taylor combined earned approximately eighteen dollars an hour at the time of her request for appointed counsel. We cannot say that the trial court acted in an arbitrary and unreasonable manner in denying her request. City of San Benito, 109 S.W.3d at 757.
We overrule this issue.
CONCLUSION
Having overruled Kimberly’s issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed September 29, 2004
[CV06]