Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-16-00076-CV
IN RE J.D.R., a Child
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-02916
Honorable Charles E. Montemayor, Associate Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 13, 2016
AFFIRMED
Patricia appeals the trial court’s termination of her parental rights to J.D.R. 1 She argues (1)
the trial court erred by denying her oral motion for continuance and thereby violated her right to
participate at trial; and (2) her counsel was ineffective. We affirm the trial court’s judgment.
BACKGROUND
The Department of Family and Protective Services filed a petition for conservatorship and
to terminate Patricia’s parental rights to J.D.R. After Patricia filed an affidavit of indigence, the
trial court appointed her an attorney ad litem. During the course of the proceedings, Patricia was
arrested for a federal offense. At the bench trial on the Department’s petition, Patricia’s counsel
1
To protect the identity of the minor children, we refer to the child’s mother by her first name and to the child by his
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
04-16-00076-CV
announced “not ready” because Patricia was incarcerated and counsel was unable to make
arrangements for Patricia to participate telephonically. The trial court proceeded to hear evidence
on the Department’s petition despite Patricia’s “not ready” announcement, stating:
All right. [The child] is one years old -- or ten months old, and the law says
these cases have to be resolved within a year, and I’ve already reset this one time
to go beyond a year. Right now if you look at the scorecard of appearances
[Patricia’s counsel] has been at every hearing and mom’s not been to one; not a
single one. So we’ve had one, two, three, four, five hearings prior to today on this
matter, and the scorecard reads [Patricia’s counsel] five, [Patricia] zero as far as
appearance.
She used the federal warrant to not appear because she didn’t want to face
the consequences of that, which meanwhile [the child] has spent his entire life in
foster care. So I understand the due process concern. I’m respecting it, but at some
point the due process is used more as a weapon to delay the best interest of this
child, rather than as a way of preserving rights and stuff. It’s been used throughout
this case and manipulated to her benefit. It was used as a way to not come to court
because she didn’t want to face the consequences of the federal warrant, which
caused the first reset.
At trial, Department caseworker Ismael Banda testified that after J.D.R. was removed, he
was unable to locate Patricia because she was a fugitive. He testified Patricia’s family and J.D.R.’s
father would not provide him with any information to contact Patricia. Banda further testified he
was able to contact Patricia only the day before trial and Patricia told him she avoided contact with
the Department because she did not want to go to prison.
The Department presented evidence that when J.D.R. was born, he tested positive for
amphetamines and opiates. While J.D.R. was staying in the hospital to receive drug treatment,
Patricia left the hospital and did not return. Patricia admitted to a Department investigator that she
used methamphetamines and Hydrocodone regularly throughout her pregnancy. Patricia also did
not have any visits with J.D.R. The trial court signed an order terminating Patricia’s parental rights
and appointed the Department permanent managing conservator. Patricia appeals.
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PATRICIA’S “NOT READY” ANNOUNCEMENT
Patricia argues the trial court erred by proceeding despite her attorney’s “not ready”
announcement. We interpret a “not ready” announcement as a motion for continuance. In re R.F.,
423 S.W.3d 486, 489 (Tex. App.—San Antonio 2014, no pet.). “[W]e review the trial court’s
denial of a motion for continuance for an abuse of discretion.” In re E.L.M.M., No. 04-15-00001-
CV, 2015 WL 1914770, at *1 (Tex. App.—San Antonio Apr. 15, 2015, no pet.) (mem. op.). “An
appellate court will sustain the trial court’s determination absent a finding that the trial court acted
without reference to any guiding rules and principles, such that its ruling was arbitrary or
unreasonable.” Id. (internal quotes omitted).
Under Texas Rule of Civil Procedure 251, “A motion for continuance shall not be granted
except for sufficient cause supported by an affidavit, consent of the parties, or by operation of
law.” Id. at *2 (citing TEX. R. CIV. P. 251). “If a motion for continuance is not made in writing and
verified, it will be presumed that the trial court did not abuse its discretion in denying the motion.”
Id. Here, the record does not contain a written motion or supporting affidavit. Because Patricia’s
motion for continuance did not comply with Rule 251, we cannot conclude that the trial court
abused its discretion by denying the motion. See id.
INEFFECTIVE ASSISTANCE OF COUNSEL
Patricia argues her counsel was ineffective by not taking steps to secure her participation
at trial, not filing an appropriate motion that would require the trial court’s consideration and
preserve the issue for appeal, and not providing the trial court with factual information to assess
the necessity of Patricia’s appearance at trial. The statutory right to counsel in parental-rights
termination cases includes a right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex.
2003). In analyzing the effectiveness of counsel in a parental-rights termination case, Texas courts
follow the standard established in Strickland v. Washington. Id. at 544-45 (citing Strickland v.
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Washington, 466 U.S. 668 (1984)). Under Strickland’s test, the appellant must show (1) counsel’s
performance was deficient; and (2) the deficiency prejudiced the appellant’s defense. Id. at 545.
We will not conclude an appellant received ineffective assistance of counsel unless the appellant
satisfies both prongs of the Strickland test. Id.
Under Strickland’s first prong, an appellant must show trial counsel’s performance fell
below an objective standard of reasonableness. Id. at 549. Only when counsel’s “conduct was so
outrageous that no competent attorney would have engaged in it” will the challenged conduct
constitute deficient performance. Id. at 545. We indulge a strong presumption that trial counsel’s
conduct falls within the wide range of reasonable, professional assistance and was motivated by
sound trial strategy. Id. An appellant bears the burden to overcome this presumption. See id. at
549. Under Strickland’s second prong, an appellant must show there is a reasonable probability
that, but for counsel’s error, the result of the proceeding would have been different. Id. at 549-50.
A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694.
The record shows Patricia avoided the Department and court hearings because she was a
fugitive and did not want to go to prison. Department caseworker Banda and Patricia’s counsel
stated they were able to make contact with Patricia only the day before trial. On this record, we
cannot say Patricia has overcome the strong presumption that her counsel’s conduct fell within the
wide range of reasonable, professional assistance and was motivated by sound trial strategy. See
In re M.S., 115 S.W.3d at 549. The record also shows the trial court considered the merits of the
“not ready” announcement as a motion for continuance. The trial court’s reasons for denying a
continuance were based not on the lack of a written motion, supporting affidavit, or factual
information about the necessity of Patricia’s appearance, but on Patricia’s conduct of evading the
Department and judicial proceedings to avoid being arrested. On this record, we cannot say there
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is a reasonable probability that, had Patricia’s attorney filed a proper motion or provided the trial
court with factual information about the necessity of her appearance, the outcome of the
proceeding would have been different. See id. at 549-50.
CONCLUSION
We affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
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