Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00146-CV
IN THE INTEREST OF L.D.L.H. and C.A.L., Children
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-PA-02179
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Jason Pulliam, Justice
Delivered and Filed: October 28, 2015
AFFIRMED
This is an accelerated appeal from a trial court’s order terminating appellant father’s
parental rights to his children, L.D.L.H. and C.A.L. 1 In two issues, appellant father (“Father”)
argues: (1) he was deprived of effective assistance of counsel because his appointed attorney failed
to request a continuance, and (2) the termination order is void because the trial court “nonsuited”
a portion of the case. We affirm the trial court’s judgment.
1
The trial court also terminated the mother’s parental rights, as well as the rights of two other fathers. However,
neither the mother nor the other fathers appealed the order of termination.
04-15-00146-CV
BACKGROUND
The factual circumstances justifying the trial court’s termination of Father’s parental rights
are unnecessary to the disposition of this appeal. Accordingly, we provide a brief rendition of the
procedural facts for context.
In 2010, after receiving reports of neglect, the Texas Department of Family and Protective
Services (“the Department”) conducted an investigation and thereafter filed a petition against the
parents of six children. In its petition, the Department sought termination in the event reunification
was not possible. The trial court rendered a temporary order, appointing the Department as
temporary managing conservator of the children, and the children were placed in foster care.
The trial court then appointed an attorney and guardian ad litem for the children as well as
an attorney to represent Father. The Department created a service plan for Father, which set out
the tasks Father needed to have completed to avoid termination and regain custody of his two
children. Thereafter, the trial court held the statutorily required permanency hearings and
eventually rendered an order, based on a mediated settlement agreement, whereby the Department
would be named permanent managing conservator of the children and Father would be named
possessory conservator of L.D.L.H. and C.A.L. See TEX. FAM. CODE ANN. § 263.404 (West 2014)
(permitting trial court to render order appointing Department as managing conservator without
terminating rights of parent if certain conditions exist). The agreement also indicated no parental
rights would be terminated at that time; however, the Department and the children’s attorney and
guardian ad litem reserved their grounds for termination. See id. Over the next two years,
additional permanency hearings took place, none of which were attended by Father because he
was incarcerated. During this time, all of the children remained in foster care.
For reasons unclear from the record before us, the Department filed what is styled as a
motion to dismiss, asking the trial court to release the Department as managing conservator as to
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five of the children, including C.A.L. and L.D.L.H. 2 There is no certificate of service attached to
the motion, and therefore, it appears neither the attorneys for the parents nor the attorney for
remaining children were served with a copy of the motion. Nevertheless, the trial court rendered
an order granting the motion, thereby releasing the Department from its appointment as managing
conservator of C.A.L., L.D.L.H., and the other three children. The trial court did not name a
substitute managing conservator.
Despite the order, the parties, including the Department, continued to act as though the
children were still under the managing conservatorship of the Department and under the continuing
jurisdiction of the trial court. In March 2014, the attorney and guardian ad litem for the children
filed a petition to modify the parent-child relationship, seeking, among other things, termination
of Father’s parental rights as to L.D.L.H. and C.A.L. Likewise, the Department filed a petition to
modify the parent-child relationship, also seeking termination of Father’s parental rights.
Thereafter, the children’s ad litem discovered the order dismissing the suit and filed a motion to
set aside the order, stating she did not agree to the dismissal, did not sign the order, and was not
notified of its entry until several months later. The trial court granted the motion.
Ultimately, the matter proceeded to a one-day bench trial. Although Father was absent,
Father’s appointed attorney appeared on his behalf. At the outset, the trial court noted the case
had a troubled procedural history; however, the factual circumstances regarding the case were
consistent. The court then heard testimony from the Department case worker. At the conclusion
of the trial, the trial court ordered Father’s parental rights terminated. Father then perfected this
appeal.
2
Only five of the six children are name in the motion because the sixth child was no longer part of the litigation. The
mother of the sixth child voluntarily relinquished her parental rights; the father of the sixth child passed away. A
separate order was rendered by the trial court dealing with custody of the sixth child.
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04-15-00146-CV
ANALYSIS
Father raises two issues challenging the trial court’s order terminating his parental rights
to his children, L.D.L.H. and C.A.L. In his first issue, Father argues he was deprived of effective
assistance of counsel because his trial counsel did not request a continuance so that Father could
attend the hearing. In his second issue, Father contends the final termination order is void because
the trial court “nonsuited” a portion of the case. Because Father’s second issue raises jurisdictional
concerns, we will address it first.
Jurisdiction
Standard of Review
Questions regarding jurisdiction are legal questions, and we apply a de novo standard when
reviewing such questions. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). We
do not presume jurisdiction, and if the record does not affirmatively demonstrate the appellate
court’s jurisdiction, the appeal must be dismissed. El Kareh v. Texas Alcoholic Beverage Comm’n,
874 S.W.2d 192, 194 (Tex. App.—Houston [14th Dist.] 1994, no writ).
Application
In this case, Father argues with respect to his parental rights as to C.A.L., the termination
order is void because the trial court “nonsuited” a portion of the case by granting the Department’s
motion to dismiss. 3 Father argues because neither a motion to reinstate nor a motion for new trial
was timely filed by the Department, the trial court lost plenary power to reinstate the case and
order the subsequent termination. In response, the Department argues the trial court did not
“nonsuit” a portion of the case because neither its motion nor the trial court’s order purported to
nonsuit or dismiss the original petition.
3
In his brief, Father states the motion to dismiss and respective order include only one of the children involved in this
appeal – C.A.L. However, after reviewing the record, we find the motion and order include both C.A.L. and L.D.L.H.
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“A judgment is void only when it is clear that the court rendering the judgment had no
jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to
act as a court.” Latty v. Owens, 907 S.W.2d 484, 485 (Tex. 1995); In re A.J.F., 313 S.W.3d 475,
478 (Tex. App.—Dallas 2010, no pet.). Here, after the trial court rendered an order appointing the
Department permanent managing conservator of L.D.L.H. and C.A.L, the Department filed a
motion titled a “Motion for Dismissal as to Child.” As stated above, in the motion, the Department
only asked the trial court to remove it as managing conservator of the children. The trial court
granted the motion and “released” the Department from its role as managing conservator.
Although Father contends the trial court’s granting of the motion “nonsuited” — i.e., dismissed —
a portion of the case, we find his argument is based on a faulty premise.
Despite the title of the motion — “Motion for Dismissal as to Child” — and the order —
“Order for Dismissal” — neither the motion nor the order sought to dismiss the matter. See TEX.
R. CIV. P. 71 (stating titles of court documents are not controlling and we must look to substance
of pleadings and proceedings to determine what actually occurred); Ryland Enter., Inc. v.
Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (citing Rule 71). Here, the motion merely
sought, and the order merely granted, the release of the Department as managing conservator of
the children, including L.D.L.H. and C.A.L. The order did not dismiss the Department’s original
suit. Thus, we agree with the Department that the order neither “nonsuited” nor dismissed any
portion of the proceeding.
Moreover, Father’s argument regarding the Department’s failure to timely file a motion to
reinstate the case or motion for new trial is misplaced. As Father points out in his brief, a motion
to reinstate must be filed within thirty days after dismissal for want of prosecution, see TEX. R.
CIV. P. 165a(3); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam), and a motion
for new trial must be filed within thirty days after the judgment or other order complained of is
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signed. See TEX. R. CIV. P. 329b(a). Here, neither motion was necessary. As noted above, there
was no dismissal of the suit, which might have prompted a motion to reinstate or motion for new
trial, and there was no termination at that time. In the mediated settlement agreement, the
children’s attorney and the Department reserved their right to seek termination should the
circumstances subsequently mandate such relief. Both exercised their reserved right to seek
termination by filing a petition to modify the parent-child relationship, again seeking termination
of Father’s parental rights as to L.D.L.H. and C.A.L. See TEX. FAM. CODE. ANN. § 156.101(a); In
re W.C.B., 337 S.W.3d 510, 513-14 (Tex. App.—Dallas 2011, no pet.).
Only after hearing evidence on the petitions, did the trial court render an order terminating
Father’s parental rights. Because the suit was never dismissed, and the children’s ad litem and the
Department filed petitions to modify the parent-child relationship seeking termination, we hold the
trial court had jurisdiction to render a termination order. Accordingly, Father’s second issue,
regarding the trial court’s power to render the termination order, is overruled.
Ineffective Assistance of Counsel
As stated above, Father also contends he was denied effective assistance of counsel because
his trial counsel failed to request a continuance prior to the bench trial. According to Father, his
presence at trial was necessary, and because he was incarcerated, he was unable to attend the bench
trial. Father argues that his trial counsel should have requested a continuance so that arrangements
could be made for Father to attend the trial.
Standard of Review
“In Texas, there is a statutory right to counsel for indigent persons in parental-rights
termination cases.” In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM. CODE ANN.
§ 107.013(a)(1); In Interest of J.M.O., 459 S.W.3d 90, 93 (Tex. App.—San Antonio, 2015, no
pet.). The Texas Supreme Court has concluded this right to counsel means a right to effective
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counsel. M.S., 115 S.W.3d at 545; J.M.O., 459 S.W.3d at 93. The supreme court has also
concluded the standard of review to be applied in parental-rights termination proceedings should
be the two-prong standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), which is
used to review such claims in criminal cases. M.S., 115 S.W.3d at 545; J.M.O., 459 S.W.3d at 93.
Under the Strickland standard, an appellant must show by a preponderance of the evidence
that: (1) trial counsel’s performance was deficient, i.e., it fell below the objective standard of
prevailing professional norms; and (2) there is a reasonable probability that, but for trial counsel’s
deficient performance, the result of the proceeding would have been different. Strickland, 466
U.S. at 687; M.S., 115 S.W.3d at 545; J.M.O., 459 S.W.3d at 93. In other words, an appellant must
show that trial counsel’s deficient performance was “so serious as to deprive the defendant of a
fair trial.” Strickland, 466 U.S. at 687; M.S., 115 S.W.3d at 545; J.M.O., 459 S.W.3d at 93. An
appellant must successfully show both prongs of the Strickland inquiry to establish an ineffective
assistance of counsel claim. M.S., 115 S.W.3d at 545.
To determine whether trial counsel’s performance is deficient, we take into account all of
the circumstances surrounding the case, focusing on whether trial counsel performed in a
“reasonably effective” manner. Id. We give deference to trial counsel’s actions, indulging “‘a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance,’ including the possibility that trial counsel’s actions are strategic.” Id. (quoting
Strickland, 466 U.S. at 689). Challenged conduct will constitute ineffective assistance only if the
conduct was so outrageous that a competent attorney would not have engaged in it. Id.
In addition to showing trial counsel’s performance was deficient, an appellant must also
show trial counsel’s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687;
M.S., 115 S.W.3d at 545; J.M.O., 459 S.W.3d at 93. “[T]o show prejudice, an appellant must show
a reasonable probability that, but for his counsel’s unprofessional errors, the result of the
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proceeding would have been different.” J.M.O., 459 S.W.3d at 94. A “reasonable probability” is
a probability sufficient to undermine confidence in the outcome. Id. A presumption of prejudice
may be warranted, however, if an indigent parent is denied counsel at a critical stage of litigation.
Id. (citing United States v. Cronic, 466 U.S. 648, 659 (1984)). Keeping the Strickland guidelines
in mind, we now turn to Father’s ineffective assistance complaint.
Application
Here, the record reflects Father’s trial attorney informed the trial court that Father was
incarcerated. However, the record is silent as to any explanation for trial counsel’s failure to
request a continuance to ensure the presence of Father, either in person or telephonically, at the
trial. When the record is silent regarding trial counsel’s reasons for his actions, we may not
speculate to determine whether trial counsel is ineffective. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Instead, as indicated above, we give deference to trial counsel’s actions and indulge in a strong
presumption that his actions fall within a range of reasonable assistance. See M.S., 115 S.W.3d at
545. In this case, trial counsel may have made a strategic decision not to request a continuance to
secure Father’s presence at the hearing because he did not want Father to be called to testify.
Accordingly, based on the record before us, we conclude Father failed to show how his trial
counsel’s failure to request a continuance constituted a deficiency. Id.
Additionally, Father fails to satisfy the second prong of the Strickland test – that trial
counsel’s deficient performance prejudiced his defense. See Strickland, 466 U.S. at 687; M.S.,
115 S.W.3d at 544; J.M.O., 459 S.W.3d at 93. Nowhere in his brief does Father explain how trial
counsel’s failure to request a continuance — so that he could be present — affected the outcome
of the proceeding. J.M.O., 459 S.W.3d at 94. Father does not establish the substance of any
testimony he might have given, or how such testimony would have affected the trial court’s
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decision. Rather, Father conclusively states a presumption of prejudice is warranted in his case
because his trial counsel’s inaction was so egregious that it rendered the results unreliable and
raises due process concerns. See Cronic, 466 U.S. at 648. However, a presumption of prejudice
may be warranted only if a parent is denied counsel at a critical stage of litigation. See id. Here,
unlike cases which warranted a presumption of prejudice, Father was represented by trial counsel
at the trial. See J.M.O., 459 S.W.3d at 94 (applying Cronic presumption of prejudice when trial
counsel failed to appear for trial because he was in different courtroom when trial began);
Lockwood v. Tex. Dep’t of Family & Protective Servs., No. 03–12–00062–CV, 2012 WL 2383781
(Tex. App—Austin June 26, 2012, no pet.) (explaining Cronic presumption of prejudice applied
because parent’s attorney did not appear at trial). We decline to apply a presumption of prejudice
in this case as trial counsel was present at trial and advocated on Father’s behalf.
Accordingly, we hold trial counsel’s failure to request a continuance so that Father could
attend the hearing did not constitute ineffective assistance. We overrule Father’s first issue.
CONCLUSION
Based on the foregoing, we overrule Father’s issues. We affirm the trial court’s order
terminating Father’s parental rights.
Marialyn Barnard, Justice
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