In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00094-CV
IN THE INTEREST OF P.M.W. AND J.A.J., CHILDREN
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court No. 82557
Before Morriss, C.J., Moseley and Burgess, JJ.
Opinion by Justice Burgess
OPINION
The Texas Department of Family and Protective Services (the Department) sought to
terminate Mother’s parental rights to her daughters, six-year-old Joyce and sixteen-year-old Polly.1
Mother’s parental rights to Joyce were terminated after a bench trial. However, the trial court
found that termination of Mother’s parental rights to Polly was not in the child’s best interests,
appointed the Department as Polly’s permanent managing conservator, and appointed Mother as
Polly’s possessory conservator. The trial court granted Mother possession and access to Polly
under the terms and conditions agreed to in advance by the Department.
On appeal, Mother argues (1) that her counsel rendered ineffective assistance by failing to
move for dismissal of the case after the expiration of deadlines contained in former Section
263.401 of the Texas Family Code and (2) that the trial court erred in failing to specifically and
expressly state the times and conditions of Mother’s access to Polly. While we find that ineffective
assistance of counsel has not been shown, we sustain Mother’s second point of error after
concluding that the order of possession and access to Polly was not sufficiently specific.
Accordingly, we reverse the portion of the trial court’s judgment regarding Mother’s possession
and access to Polly and remand this matter to the trial court for further proceedings. We affirm
the trial court’s judgment in all other respects.
1
We use pseudonyms for involved parties to protect the confidentiality of the children. See TEX. R. APP. P. 9.8.
2
I. Ineffective Assistance of Counsel Has Not Been Shown
A. Standard of Review
“In parental-rights termination cases in Texas . . . brought by the Department[,] an indigent
person has a statutory right to counsel.” In re K.O., 488 S.W.3d 829, 834 (Tex. App.—Texarkana
2016, pet. denied) (quoting In re J.M.A.E.W., No. 06-14-00087-CV, 2015 WL 1119761, at *3
(Tex. App.—Texarkana Mar. 13, 2015, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN.
§ 107.013(a) (West 2014); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003)). “This statutory right to
counsel also embodies the right to effective counsel.” Id. (quoting J.M.A.E.W., 2015 WL 1119761,
at *3). “The standard used for parental-rights termination cases is the same as that used in criminal
cases and is set forth in Strickland.” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). “The right to effective assistance of counsel does
not guarantee, however, ‘errorless or perfect counsel whose competency of representation is to be
judged by hindsight.’” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3; Robertson v. State, 187
S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To prevail on her ineffective assistance claim, Mother “must prove by a preponderance of
the evidence that (1) [her] counsel’s performance was deficient, that is, that it fell below an
objective standard of reasonableness; and (2) it is reasonably probable that, except for [her]
counsel’s unprofessional errors, the outcome of the proceeding would have been different.” Id.
(quoting J.M.A.E.W., 2015 WL 1119761, at *3) (citing Strickland, 466 U.S. at 687–88, 694).
“Failure to satisfy either prong of the Strickland test is fatal.” Id. at 834–35 (quoting J.M.A.E.W.,
2015 WL 1119761, at *3) (citing Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App.
3
2006); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied)).
“To support a finding that [Mother’s] trial counsel was ineffective, the trial record must
affirmatively demonstrate [counsel’s] deficiency.” Id. at 835 (quoting J.M.A.E.W., 2015 WL
1119761, at *3). “In reviewing trial counsel’s performance, we take into account the
circumstances surrounding the case and focus primarily on whether the manner of his performance
was reasonably effective.” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3) (citing In re H.R.M.,
209 S.W.3d 105, 111 (Tex. 2006) (per curiam); M.S., 115 S.W.3d at 545)). “We give great
deference to trial counsel’s performance and indulge a strong presumption that his conduct falls
within the wide range of reasonably professional assistance.” Id. (quoting J.M.A.E.W., 2015 WL
1119761, at *3) (citing H.R.M., 209 S.W.3d at 111; M.S., 115 S.W.3d at 545)). “This includes the
possibility that his actions were strategic.” Id. (quoting J.M.A.E.W., 2015 WL 1119761, at *3
(citing H.R.M., 209 S.W.3d at 111; M.S., 115 S.W.3d at 545)). “We only find ineffective assistance
if the conduct is ‘so outrageous that no competent attorney would have engaged in it.’” Id. (quoting
J.M.A.E.W., 2015 WL 1119761, at *3; H.R.M., 209 S.W.3d at 111).
B. Procedural History
The Department was granted temporary managing conservatorship of the children on
December 14, 2015. The first Monday after the first anniversary of the date the court rendered
that order was December 19, 2016 (the one-year deadline). This case is governed by the former
version of Section 263.401 of the Texas Family Code, which was recently amended. See Act of
May 28, 2017, 85th Leg., R.S., ch 319, § 12, sec. 263.401, 2017 Tex. Sess. Law Serv. 716, 721
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(West 2014) (codified at TEX. FAM. CODE § 263.401).2 Prior to the one-year deadline, the trial
court entered an agreed order extending the lawsuit by 180 days to June 17, 2017.
On June 9, 2017, the trial court called the case for trial. At that time, all parties appeared,
witnesses were sworn, opening statements were either reserved or heard, and the Department
called its first witness. After the witness stated her name, the trial court made the following
announcement:
I apologize for the interruption. But at this time, the Court is going to have to stop
these proceedings. I am in the middle of an ongoing jury trial involving an alleged
murder. So we’re going to have to suspend these proceedings at this time and
adjourn.
We have, for the record, begun the trial. But we’re not going to be able
today to complete it.
So, Counsel, while we’re here, if we could either work together now here
in the courtroom or go back with the coordinator to get a date on which we could
finish the trial of this case, I’d be glad to proceed at that time.
I do apologize for the inconvenience. But, again, I’ve got a jury that’s
supposed to come out in about two or three minutes, and it will be necessary for me
to take them up in precedence to this case.
Let’s go off the record so we can talk time.
2
The enacting legislation stated:
The changes in law made by this Act to Section 263.401, Family Code, apply only to a suit affecting
the parent-child relationship filed on or after the effective date of this Act. A suit affecting the
parent-child relationship filed before the effective date of this Act is governed by the law in effect
on the date the suit was filed, and the former law is continued in effect for that purpose. . . . Except
as otherwise provided by this Act, this Act takes effect September 1, 2017.
See Act of May 28, 2017, 85th Leg., R.S., ch 319, §§ 33–34, 2017 Tex. Sess. Law Serv. 716, 738 (West 2014) (codified
at TEX. FAM. CODE § 263.401).
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After an off-the-record discussion, the trial was reset for July 5, 2017. The trial court’s order
terminating parental rights was not entered until September 5, 2017, well beyond the expiration of
the 180-day period.
C. The First Strickland prong
Mother argues that counsel failed to file a motion to dismiss this case (1) before the
expiration of the one-year deadline, and (2) before the expiration of the 180-day extension
deadline. As previously stated, this case is governed by the former version of Texas Family Code
Section 263.401. As applicable, the former Section 263.401 provided:
(a) Unless the court has commenced the trial on the merits . . . or granted an
extension under Subsection (b), on the first Monday after the first anniversary of
the date the court rendered a temporary order appointing the department as
temporary managing conservator, the court shall dismiss the suit affecting the
parent-child relationship filed by the department that requests termination of the
parent-child relationship or requests that the department be named conservator of
the child.
(b) Unless the court has commenced the trial on the merits, the . . . court may
not retain the suit on the court’s docket after the time described by Subsection (a)
unless the court finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary managing conservator
is in the best interest of the child. If the court makes those findings, the court may
retain the suit on the court’s docket for a period not to exceed 180 days after the
time described by Subsection (a). . . .
....
(c) If the court grants an extension but does not commence the trial on the
merits . . . before the required date for dismissal under Subsection (b), the court
shall dismiss the suit. The court may not grant an additional extension that extends
the suit beyond the required date for dismissal under Subsection (b).
6
Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 2, 2007 Tex. Gen. Laws 1837, 1837–36, amended
by Act of May 29, 2015, 84th Leg., R.S., ch. 944, § 38, 2015 Tex. Gen. Laws 3268, 3283–84 and
Act of May 28, 2017, 85th Leg., R.S., ch. 319, §§ 33–34, 2017 Tex. Sess. Law Serv. 716, 738
(West 2014) (current version at TEX. FAM. CODE § 263.401).
Here, the trial court granted a 180-day extension to June 17, 2017. However, no evidence
of extraordinary circumstances was before the trial court at the time the extension was granted.
Rather, the appellate record indicates that the extension was the result of an agreement by the
parties that arose after the trial court referenced concern for its schedule on October 18, 2016.
After the parties announced that they would have no objections to a bench trial, the trial court
stated, “Let’s talk about when we might do that. We have just barely enough time to set it between
now and 45 days from now. . . . Let me see what I’ve got there so that we could at least start it
prior to the dismissal deadline.” After an off-the-record discussion, the trial court merely
announced that “there is no longer an objection to an extension” and extended the dismissal date
without a finding of extraordinary circumstances.
The version of Section 263.402(a) in effect at the time relevant to this case provided:
(a) The parties to a suit under this chapter may not extend the deadlines set by
the court under this subchapter by agreement or otherwise.
Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 9, sec. 263.402, 2001 Tex. Gen. Laws 2395,
2396–97 (amended 2007, 2017) (current version at TEX. FAM. CODE § 263.402(a)) (emphasis
added).
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The version of Section 263.402(b) in effect at the time relevant to this case stated:
(b) A party to a suit under this chapter who fails to make a timely motion to
dismiss the suit . . . under this subchapter waives the right to object to the court’s
failure to dismiss the suit. A motion to dismiss under this subsection is timely if
the motion is made before the . . . trial on the merits commences.
Act of May 27, 2007, 80th Leg., R.S., ch. 866, § 3, 2007 Tex. Gen. Laws 1837, 1838 (amended
2017 repealing subsection (b)).
Mother argues that counsel should have moved to dismiss the case after the initial dismissal
date of December 19, 2016. However, our appellate record does not contain counsel’s reasons for
failing to file a motion to dismiss, and we can fathom several reasons why counsel would have
instead chosen to agree to a 180-day extension. The trial court was well aware of the one-year
deadline and raised the issue two months before it expired. Counsel could have wished for more
time to better prepare the case. Because he was well-equipped with factual knowledge of the case,
counsel could have also believed that the Department would have been able to prove extraordinary
circumstances had he raised the issue. Additionally, counsel could have believed that Mother
needed additional time to comply with court orders requiring her to perform certain tasks to obtain
the return of her children. Because we can fathom reasons why counsel would have chosen not to
object to a 180-day extension, we cannot find that counsel’s conduct was so outrageous that no
competent attorney would have engaged in it.
Next, we address counsel’s failure to file a motion to dismiss after the expiration of the
180-day deadline. Former Section 262.401 provided that a trial court could not retain the
Department’s suit on its docket unless trial on the merits had commenced. Here, the trial court
called the case for trial in open court, swore in a witness, and had the witness state her name on
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June 9, 2017, which was prior to the expiration of the 180-day deadline. Mother argues that the
trial court’s putative call of the case was insufficient to continue the case beyond the deadline.
Mother cites this Court to In re D.S., 455 S.W.3d 750 (Tex. App.—Amarillo 2015, no pet.).
In that case, the trial court called the case for trial, the parties appeared and announced that they
were ready, and the court heard from counsel that trial could last “[a]t least half a day.” Id. at 751.
At that point, the trial court stated, “All right. Then I am going to call it for today, but I am going
to recess the hearing from today to a date certain that I’ll ask all of y’all to go in the—in the
coordinator’s office and get that date set at this time.” Id. The Amarillo Court of Appeals
determined that trial had not commenced as contemplated by Section 263.401. The court wrote:
[W]e are of the opinion that section 263.401 of the Texas Family Code requires
more than a putative call of the case and an immediate recess in order to comply
with the statute. We would suggest that at a minimum the parties should be called
upon to make their respective announcements and the trial court should ascertain
whether there are any preliminary matters to be taken up. To allow the trial court
to use the method set forth in the record to extend the case beyond the mandated
dismissal date would completely dismember the statute and make it worthless.
Id. at 753.
This case is factually distinguishable from D.S. because the trial court heard the parties’
announcements, swore in one witness, and had the witness answer one question before recessing
the case. However, while it appears that the June 9 hearing may be considered slightly more than
a putative call of the case, the above-quoted paragraph from D.S. was dictum, and the question of
whether trial on the merits commenced as contemplated by former Section 263.401 under the facts
presented in this case remains. In addressing this very issue, our sister courts have declared the
law unsettled, and we have found no cases that shed light on this grey area of the law prior to the
9
Legislature’s 2017 revisions to this statute. See In re D.I., No. 12-16-00159-CV, 2016 WL
6876503, at *5 (Tex. App.—Tyler Nov. 22, 2016, no pet.) (mem. op.) (“At the time of trial, and
indeed now, the law is unsettled as to whether the actions of the district court amounted to
commencement of trial for purposes of mandatory dismissal under section 263.401.”) (citing G.M.
v. Tex. Dep’t of Family & Protective Servs., No. 03-15-00825-CV, 2016 WL 3522131, at *3 (Tex.
App.—Austin June 23, 2016, no pet.) (mem. op.)).
“[I]t is well established that counsel should not be declared ineffective when counsel’s
claimed error is based on unsettled law.” Id. at *4. Thus, in agreement with the reasoning used
by our sister courts in D.I. and G.M., we conclude that, “in the absence of binding precedent
holding otherwise, trial counsel’s performance [in failing to move for dismissal under former
Section 263.402(b)] would not fall below an objective standard of reasonableness if he concluded
that trial on the merits had commenced prior to the dismissal date.” Id. at *5; G.M., 2016 WL
3522131, at *4.3
The first Strickland prong has not been met. We overrule Mother’s first point of error.
II. The Order Regarding Possession and Access Was Not Sufficiently Specific
In her second point of error, Mother argues that the trial court erred by failing to expressly
state the times and conditions of Mother’s access to Polly. We agree.
3
To be clear, we do not hold that the trial court’s actions in this case satisfied the requirements of Section 263.401.
Rather, we merely hold that the law is unsettled on this question and, therefore, defense counsel was not ineffective
for failing to object to the trial court’s procedural ruling.
10
The trial court’s order recited that Mother would have possession and access to Polly “at
times mutually agreed to in advance by the parties and, in the absence of mutual agreement, as
specified in Attachment A.” Attachment A provided:
No visitations shall occur until such time that a negative hair follicle test has been
received. Thereafter if at any time a positive drug test is received, no further visits
will occur till two negative urinalysis drug tests separated by at least 2 weeks [are]
received for visitations to resume.
. . . . Supervised visitation under the terms and conditions agreed to in advance by
the managing conservator. The managing conservator or designee shall supervise
the visitation.
If the trial court enters an order “appointing a parent as possessory conservator, the trial
‘court shall specify and expressly state in the order the times and conditions for possession of or
access to the child, unless a party shows good cause why specific orders would not be in the best
interest of the child.’”4 In re J.Y., 528 S.W.3d 679, 691 (Tex. App.—Texarkana 2017, no pet.)
(quoting TEX. FAM. CODE ANN. § 153.006(c) (West 2014)).
Here, the terms of the trial court’s order allow the Department complete discretion over
Mother’s possession of Polly and are not enforceable by contempt because they give the
Department sole authority over when and where Mother may have access to or possession of her
child. “This could effectively deny [Mother] access to the child[] and would leave her without the
remedy of contempt against [the Department].” In re A.P.S., 54 S.W.3d 493, 498 (Tex. App.—
Texarkana 2001, no pet.) (finding that order allowing parent possession at “reassonable [sic] times
and places as determined by” managing conservator was not sufficiently specific); see J.Y., 528
4
The record at trial demonstrates that the Department did not offer evidence to show good cause that specific times
and conditions for possession and access would not be in Polly’s best interests.
11
S.W.3d at 688–89) (finding order stating that “conservator[] shall have possession of the children
at times mutually agreed to in advance by the parties” was not sufficiently specific).
Because we conclude that the trial court’s order regarding possession and access was not
sufficiently specific as to the times and conditions of Mother’s possession of or access to Polly,
we sustain Mother’s second point of error.
III. Conclusion
We reverse the judgment of the trial court regarding Mother’s possession of and access to
Polly and remand this matter for further proceedings in accordance with our opinion. We affirm
the trial court’s order in all other respects.
Ralph K. Burgess
Justice
Date Submitted: August 6, 2018
Date Decided: August 15, 2018
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