Summary
deciding whether the failure to file a written motion for continuance supported by affidavit was ineffective assistance
Summary of this case from In re Interest of L.N.COpinion
No. 05-07-01698-CV
Opinion issued June 25, 2008.
On Appeal from the 304th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 06-00834-W.
Before Justices MOSELEY, FRANCIS, and LANG.
MEMORANDUM OPINION
Appellant Jennifer Oneil appeals from a judgment terminating her parental rights to A.A., her biological child. In one issue, appellant argues the judgment should be reversed because trial counsel rendered ineffective assistance. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services ("CPS") filed a petition to terminate appellant's parental rights to A.A. The trial court appointed a guardian ad litem for appellant and a separate guardian ad litem for the child. Appellant did not attend the termination hearing and did not inform trial counsel or her guardian ad litem that she would not be present at the hearing. Appellant's guardian ad litem had been in contact with appellant the afternoon before the hearing. On the morning of the hearing, trial counsel and appellant's guardian ad litem both attempted to reach appellant by phone with no success. The guardian ad litem had spoken with "a lady [appellant] sometimes stays with" and informed the judge, "I think there's transportation issues today." The hearing was set for 10:00 a.m. At 10:45 a.m., the judge proceeded with the hearing. Counsel for appellant stated on the record that she had "not filed a written motion for continuance because we certainly anticipated the client were [sic] to be here today." She then proceeded to make an oral motion for continuance based on the information presented by the guardian ad litem.
At the hearing, CPS sought termination of appellant's parental rights based upon appellant's "failure to complete or comply with the court ordered services for a meaningful period of time" under section 161.001(1)(O) of the Texas Family Code. CPS presented testimony from two witnesses regarding appellant's failure to comply with any of the services outlined in the trial court's prior temporary orders; including a drug assessment, psychological evaluation, and parenting classes. After the evidence closed, the trial court terminated appellant's parental rights. Appellant filed a motion for new trial, through new counsel, asserting ineffective assistance of counsel and presented an affidavit in which she explained she had been too ill to attend the hearing. At the hearing on the motion for new trial, appellant's former counsel asserted appellant did not inform her she would not be at the termination hearing. Counsel described how she had tried to contact appellant unsuccessfully when appellant did not appear at the hearing. Further, she noted appellant had a history of non-appearance at several hearings in this case. The motion for new trial was denied and this appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL A. Applicable Law
The Texas Supreme Court has held that the statutory right to counsel in parental rights termination proceedings includes a guarantee that counsel will perform effectively. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); In re S.L., 188 S.W.3d 388, 395 (Tex.App.-Dallas 2006, no pet.); see Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2007). In analyzing the effectiveness of counsel in a parental rights termination case, we follow the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S.668 (1984). In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006); In re M.S., 115 S.W.3d at 545. To prevail on an ineffective assistance of counsel claim, appellant must show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); In re S.L., 188 S.W.3d at 395.
"With respect to whether counsel's performance in a particular case is deficient, we must take into account all of the circumstances surrounding the case, and must primarily focus on whether counsel performed in a `reasonably effective' manner." In re S.L., 188 S.W.3d at 395 (quoting In re M.S., 115 S.W.3d at 545); see also In re H.R.M., 209 S.W.3d at 111. We examine the totality of counsel's representation to determine whether appellant received effective assistance, but do not judge counsel's strategic decisions in hindsight; rather, we give "great deference" to counsel's performance and strongly presume that counsel's conduct falls within the wide range of reasonable professional assistance. In re H.R.M., 209 S.W.3d at 111; In re M.S., 115 S.W.3d at 545; Strickland, 466 U.S. at 689; In re S.L., 188 S.W.3d at 395. "It is only when `the conduct was so outrageous that no competent attorney would have engaged in it that the challenged conduct will constitute ineffective assistance.'" In re M.S., 115 S.W.3d at 545 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)); accord In re H.R.M., 209 S.W.3d at 111. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 572 (Tex.App.-Houston [1st Dist.] 2007, no pet.); see also Thompson, 9 S.W.3d at 814.
B. Application of Law to Facts
In her sole issue, appellant argues her trial counsel was ineffective for failing to file a written motion for continuance and supporting affidavit at the termination hearing. Appellant asserts when trial counsel made the oral motion for continuance, she "neglected the requirement that such motions be made in writing and supported by affidavit." The law is well settled that a motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by affidavit. See Tex. R. Civ. P. 251; Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re E.L.T., 93 S.W.3d 372, 375 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Serrano v. Ryan's Crossing Apartments, 241 S.W.3d 560, 564 (Tex.App.-El Paso 2007, no pet.).
In her motion for new trial, appellant asserted ineffective assistance of counsel and attached her affidavit explaining she had been unable to attend the termination hearing because she had a "bad ear ache" and was "quite ill." Appellant did not appear in person at the hearing on the motion for new trial. At the hearing on the motion for new trial, prior trial counsel explained in her testimony that she did not have the opportunity to present a written motion at the termination hearing because appellant's non-appearance was unanticipated and appellant did not inform counsel that she was too ill to attend. The only information counsel had about appellant's whereabouts was the guardian ad litem's statement regarding what the "lady [appellant] sometimes stays with" had said on the phone.
On this record, we conclude prior trial counsel did not comply with the rules for filing a written motion for continuance because she had no personal knowledge of the facts behind appellant's non-appearance. See Tex. R. Civ. P. 251; Serrano, 241 S.W.3d at 564. Furthermore, any motion for continuance could not be supported by an affidavit of appellant's guardian ad litem because the guardian's knowledge of the possible reason for appellant's non-appearance was, likewise, not based on personal knowledge. See Tex. R. Civ. P. 251; Serrano, 241 S.W.3d at 564.
Even assuming prior trial counsel's failure to file a sworn written motion for continuance meets the first prong of the Strickland test for ineffective assistance of counsel, we cannot conclude that the alleged error meets the second prong of the Strickland test. See Strickland, 466 U.S. at 694; In re H.R.M., 209 S.W.3d at 111. Appellant has not demonstrated a reasonable probability that "but for" the alleged error, the outcome of the hearing would have been different. See Thompson, 9 S.W.3d at 812. Even if the motion for continuance had been based on personal knowledge, the record does not reveal a reasonable probability that the trial court would have granted the motion. The ruling on a motion for continuance is at the trial court's discretion. See Villegas, 711 S.W.2d at 626. As the State points out, the record shows the one year statutory deadline for adjudication of a suit seeking termination parental rights, pursuant to Texas Family Code section 263.401, was looming; the case had already been extended once; and appellant had failed to appear at several other proceedings in the case.
Furthermore, even if the hearing had been continued in order that appellant might be available to testify, there is nothing in the record to indicate a reasonable probability that appellant's parental rights would not have been terminated. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. The grounds for termination were narrowed to a single issue; that is, whether appellant had complied with the provisions of the temporary court order to complete certain services. See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2007). That question was answered by two witnesses who testified that appellant had not completed any of the services ordered by the trial court. The fact that she did not complete the services ordered by the trial court was not disputed by appellant in her motion for new trial or otherwise. Upon reviewing the record and taking into account the circumstances surrounding the case, we conclude appellant has failed to carry her burden to prove the second prong of the ineffective-assistance test. See In re H.R.M., 209 S.W.3d at 111; Doe, 226 S.W.3d at 572; see also Thompson, 9 S.W.3d at 814.
Accordingly, we conclude appellant has not established that trial counsel rendered ineffective assistance. See In re M.S., 115 S.W.3d at 545; In re S.L., 188 S.W.3d at 395. Appellant's sole issue is decided against her.
III. CONCLUSION
Appellant has not established trial counsel rendered ineffective assistance at the hearing on termination of her parental rights. We decide against appellant on her sole issue. The judgment of the trial court is AFFIRMED.