Opinion
NUMBER 13-23-00145-CV
08-24-2023
In the INTEREST OF R.R. and R.R., Children
Michael Burton, Texas Department of Family and Protective Services, Austin, for Appellee. Christian FitzGerald, Bradicich & Uszynski LLP, Victoria, for Appellant.
Michael Burton, Texas Department of Family and Protective Services, Austin, for Appellee.
Christian FitzGerald, Bradicich & Uszynski LLP, Victoria, for Appellant.
Before Chief Justice Contreras and Justices Benavides and Longoria
OPINION
Opinion by Justice Longoria Appellant B.S. (Mother) appeals the trial court's order terminating her parental rights to her two children R.R. (Richard) and R.R. (Randy). Mother argues that the trial court erred by: (1) "engaging in the practice of a "False Start" trial"; (2) denying Mother's request for a jury trial; (3 and 4) effectively forcing Mother to proceed pro se; and (5) proceeding with trial in Mother's absence. In her sixth and seventh issues, Mother argues she received ineffective assistance of counsel. We affirm.
To protect the identity of the minor children, we refer to the children and their relatives by their initials or an alias. See Tex. R. App. P. 9.8(a).
I. PROCEDURAL BACKGROUND
On November 16, 2020, the Department of Family and Protective Services (the Department) filed an original petition for the protection of Richard and Randy and to terminate the parental rights of Mother and Father. In the attached affidavit in support of removal, the Department alleged that it received a referral for neglectful supervision by Mother, stating that Randy, born prematurely on October 25, 2020, was born testing positive for methamphetamines and amphetamines. The day before Randy's birth, Mother tested positive for methamphetamines and ecstasy.
Father's parental rights were also terminated in the underlying proceeding. Father is not a party to this appeal.
The same day the Department filed its petition, the trial court signed an order removing Richard and Randy from Mother's custody and appointing the Department as temporary managing conservator. On November 23, 2020, Mother and Father's original answer was filed, wherein a jury trial was demanded. On December 17, 2020, counsel for Mother and Father filed a motion to withdraw from the case so that Mother and Father could "be represented by counsel that will work [with] them on their terms." Counsel's motion was granted the same day. In January 2021, new counsel filed a motion with the court to be substituted as counsel for Mother and Father, which was also granted. Subsequently, Mother and Father again obtained new counsel in September 2021. Counsel then filed an agreed motion for continuance of the scheduled permanency hearing set for September 14, 2021, and the hearing was reset for October 26, 2021. Following the October permanency hearing, the trial court issued an order granting a § 263.401 extension, extending the dismissal date of the matter until May 21, 2022. See TEX. FAM. CODE ANN. § 263.401.
On January 31, 2022, a permanency hearing was held, after which the trial court set a trial date of April 14, 2022. On April 14, 2022, the case was called, and trial began. Taylor Jones, a Department caseworker, was called to testify regarding a certificate of paternity. When the certificate was offered as evidence, an objection was made by counsel for Mother and Father which was sustained. The Department then asked for a recess, and with no objections, the trial court granted the request. On April 26, 2022, counsel for Mother and Father sought to withdraw, stating the parties no longer "desire[d]" his representation. Counsel's motion was granted.
On July 5, 2022, a hearing was held on the Department's motion to extend the time period in which the trial court had to render a final order. See TEX. FAM. CODE ANN. § 263.4011(a) ("On timely commencement of the trial on the merits under [§] 263.401, the court shall render a final order not later than the 90th day after the date the trial commences."). On the record, the trial court granted the motion and extended the deadline by 180 days. On August 15, 2022, the trial court rendered a written order reflecting the extension in compliance with § 263.4011(c) and setting trial to resume on December 20, 2022. During this time frame, new counsel for Mother and Father appeared and later withdrew from representation.
Subsequently, Mother's retained counsel filed a request for a jury trial and a motion for continuance of the December 20, 2022, trial date. The trial court subsequently set trial to resume on February 23, 2023. Father retained new counsel in January 2023. Both Mother and Father filed additional motions related to their request for a jury trial. Mother then sought a continuance until July 31, 2023.
On February 23, 2023, trial resumed. Before resuming witness testimony, counsel for Mother and counsel for Father alerted the trial court to a conflict of interest, explaining that each attorney had previously represented both Mother and Father at some point in the proceedings, withdrew from representation, and now represented only one party. When asked by the trial court if they would waive the conflict, both Mother and Father stated they would not. After a discussion on the record, the trial court denied any pending motion for a jury trial and Mother's motion to dismiss on timeliness grounds. The trial court recessed and ordered the parties to return at 1:00 p.m. After the recess, Mother and Father did not appear at 1:00 p.m. Having received no waiver of the conflict of interest and citing "cooperation issues," counsel for Mother and counsel for Father presented oral motions to withdraw, which were granted.
After the motions to withdraw were granted, the trial court ordered the trial to resume. Before any testimony was elicited, the trial court was informed that Mother had fallen in the courthouse and was being treated by emergency medical personnel. During this time, Father had returned. After taking a brief recess to gather information, the trial court determined the trial would continue in Mother's absence. At the conclusion of the bench trial, the trial court found that termination of Mother's rights to the children was in the best interest of the children, and it terminated Mother's rights pursuant to Texas Family Code § 161.001(b)(1)(D), (E), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). This appeal ensued.
II. JURISDICTION
By her first issue, Mother argues that the trial court failed to timely commence trial under Texas Family Code § 263.401. See id. § 263.401. Mother argues that the April 14, 2022 start date was what she refers to as a "false start." Mother's argument is essentially that the trial court merely called the case to trial on that date to prevent the loss of jurisdiction, after which trial was recessed for several months.
A. Standard of Review & Applicable Law
In a parental termination proceeding, the Texas Family Code requires a trial on the merits to commence by "the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator," or the trial court is deprived of jurisdiction over the suit and the suit is automatically dismissed. Id. § 263.401(a). Mother's first issue questions whether trial actually commenced before the May 21, 2022 dismissal date. See id. § 263.401(b). She contends that although the termination order recites that trial began on April 14, 2022, trial did not actually commence on that date.
B. Analysis
While this is an issue of first impression in our Court, our sister court in Houston has repeatedly addressed the exact issue Mother is raising here—i.e., whether the trial court and one or more parties have feigned the commencement of trial to avoid dismissal under the statute. See In re J.L.J. , 645 S.W.3d 294, 295–96 (Tex. App.—Houston [14th Dist.] 2022, pet. denied) ; In re Z.S. , 631 S.W.3d 313, 319 (Tex. App.—Houston [14th Dist.] 2020, no pet.) ; see also In re J.M.F. , No. 14-22-00628-CV, 2023 WL 2182435, at *3 (Tex. App.—Houston [14th Dist.] Feb. 23, 2023, no pet.) (mem. op.). In determining if a trial has truly "commenced," that court has considered, among other things, whether the putative commencement date is recited as a trial date in the final order; and whether in the time between calling the case and recessing on the putative commencement date, (a) preliminary matters were addressed, (b) the parties announced "ready," (c) opening statements were made, (d) witnesses were sworn, (e) a party called a witness to testify, and (f) exhibits were admitted. See In re J.L.J. , 645 S.W.3d at 295–96 ; see also In re J.M.F. , 2023 WL 2182435, at *3.
In In re J.L.J. ,
[n]o preliminary matters were addressed; the parties did not announce ready; no opening statements were made; and no exhibits were admitted. Moreover, no party called a witness to testify; the only witness to be sworn in and testify was called by the trial court, and the witness was asked only his name. His connection to the case was left unexplained.
In re J.L.J. , 645 S.W.3d at 296. The Houston court concluded that trial did not commence on that date. Id. at 297–98.
Conversely, in In re Z.S. , the parties signed a Rule 11 agreement to reset the trial to April 15, 2019 (five days before the automatic dismissal date) and agreed to "start and stop the trial" on that date. 631 S.W.3d at 315. On April 15, the parties appeared for trial and made announcements, and mother's counsel confirmed that the case would begin that morning but would then be recessed to a future date. The Department called its investigator to the stand and briefly testified that she had nine years’ experience and that she received allegations of neglect of the children. The trial court then recessed the trial. On that record, the Houston court concluded that trial "commenced" on April 15. Id. at 318. The court stated:
This trial started on April 15. How long it progressed before recessing, when it "stopped," or whether it "started" and "stopped" on April 15 by agreement, does not alter the conclusion that trial started for purposes of section 263.401(c) on April 15—the salient issue. Appellants suggest, plausibly, that beginning a trial only to introduce minimal evidence before recessing the proceeding indefinitely allows a termination case covered by section 263.401 to linger contrary to legislative intent. Their position is not without support. See In re J.D.G. , 570 S.W.3d 839, 857–60 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (Brown, J., concurring). The legislature, however, is free to address that concern and could have done so in recent amendments by stating for example that a trial court's jurisdiction expires on a date certain unless the court signs a final order by that date. But section 263.401 requires only that trial on the merits "commence" by the deadline, and here trial commenced
before that deadline and before the court lost jurisdiction.
In re Z.S. , 631 S.W.3d at 318 ; see also In re J.M.F. , 2023 WL 2182435, at *2 (finding trial "commenced" when the parties announced ready; a witness for the Department was sworn in and proceeded to provide "roughly a page" of testimony; and the parties agreed to recess and resume at a later date).
The record before this Court is similar to that of In re Z.S. and In re J.M.F. Here, on April 14, 2022, the trial court heard preliminary motions and matters before calling the case to trial. At that point, the parties announced ready to proceed. The Department called Jones, the Department case worker, to testify. The Department sought to admit an exhibit regarding paternity, to which there was an objection. After the trial court sustained the objection, the parties agreed to recess until a later date. The final judgment states that the trial court heard the case "[o]n April 14, 2022, through February 23, 2023." Considering the relevant factors, we conclude that the trial commenced on April 14, 2022.
We overrule Mother's first issue.
III. JURY TRIAL
By her second issue, Mother alleges that the trial court erred when it denied "multiple requests for a trial by jury."
A. Standard of Review & Applicable Law
The United States and Texas Constitutions guarantee the right to trial by jury. See U.S. CONST. art. III, § 2; TEX. CONST. art. I, § 15. We review a trial court's denial of a jury demand for an abuse of discretion. Mercedes–Benz Credit Corp. v. Rhyne , 925 S.W.2d 664, 666 (Tex. 1996). We examine the entire record and reverse only if the trial court's decision is arbitrary, unreasonable, or without reference to guiding principles. Id. (citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241 (Tex. 1985) ).
The family code provides for trial by jury upon request. See TEX. FAM. CODE ANN. § 105.002. For the request to be valid, however, the party must file a written request with the clerk of the court in a reasonable amount of time before the trial date, but not less than thirty days in advance, and a jury fee must also be paid to the clerk of the court within the same time frame. TEX. R. CIV. P. 216 ; Huddle v. Huddle , 696 S.W.2d 895, 895 (Tex. 1985).
B. Analysis
Mother argues that a jury trial was requested on each of the following dates: November 23, 2020; November 16, 2022; January 26, 2023; January 30, 2023; and February 13, 2023. Because we have already determined that trial commenced on April 14, 2022, the only relevant request is that of November 23, 2020, prior to the start of trial. There was a timely request for a jury trial on November 23, 2020; however, nothing in the record indicates that Mother ever paid a jury fee. There is no indication that payment for a jury fee was filed with any of Mother's pleadings or correspondence prior to the start of trial. Accordingly, Mother failed to perfect her jury demand prior to the start of trial. See TEX. R. CIV. P. 216 ; C.B. v. Tex. Dep't of Family & Protective Servs. , 458 S.W.3d 576, 591 (Tex. App.—El Paso 2014, pet. denied).
But "[e]ven where a party does not timely pay the jury fee, courts have held that a trial court should accord the right to jury trial if it can be done without interfering with the court's docket, delaying the trial or injuring the opposing party." Gen. Motors Corp. v. Gayle , 951 S.W.2d 469, 476 (Tex. 1997). However, "[a] party waives his right to a jury trial by failing to object when the trial court instead undertakes to try the case before the bench." Rodriguez v. Tex. Dep't of Mental Health & Mental Retardation , 942 S.W.2d 53, 56 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.) ; see Browder v. Moree , 659 S.W.3d 421, 423 (Tex. 2022) ("If a trial court indicates that it will proceed with a bench trial in a case where a jury demand was timely perfected, a demanding party that still wishes to have a jury trial must ensure that the court is aware of the demand."). Here, Mother did not object on April 14, 2022, when trial commenced or otherwise call the court's attention to her jury demand. Instead, she waited until November 16, 2022, to file a second jury demand—again, without paying the jury fee or filing an affidavit of inability to pay. At this point, a jury trial would have undoubtedly interfered with the court's docket and delayed trial, as trial had already commenced. See Browder , 659 S.W.3d at 423 (concluding that the trial court did not abuse its discretion by denying a jury demand filed after the bench trial had commenced). Because Mother failed to timely call the court's attention to her initial jury demand, we conclude that the trial court did not abuse its discretion in proceeding to a bench trial. See id. ; Rodriguez , 942 S.W.2d at 56.
We overrule Mother's second issue.
IV. PRO SE
In issues three and four, Mother argues that the trial court erred in "forcing" her to proceed pro se and denying her motion for a continuance to prepare to proceed pro se.
A. Standard of Review & Applicable Law
Mother contends the trial court violated her right to counsel when it granted her lawyer's motion to withdraw on the day of trial, forcing her to decide between waiving a conflict of interest and proceeding pro se. Then, she asserts, the trial court abused its discretion in denying her motion for a continuance of trial.
"A lawyer who has represented multiple patters in a matter shall not thereafter represent any of such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained from all such parties to the dispute." TEX. DISCIPLINARY RULES PROF'L CONDUCT 1.06(d). A lawyer who has accepted representation in violation of this rule "shall promptly withdraw." Id. R. 1.06(e). The rules of civil procedure require attorneys to "withdraw from representing a party only upon written motion for good cause shown." TEX. R. CIV. P. 10. There are additional duties a withdrawing attorney owes to her soon-to-be-former client, such as delivering a copy of the motion to the client, and notifying the client in writing of their right to object to the motion. Id. A motion for continuance shall also not be granted "except for sufficient cause supported by affidavit, or by the consent of the parties, or by operation of law." Id. R. 251.
We review the trial court's decision to grant an attorney's motion to withdraw over the objection of her client and the trial court's decision to deny a motion for a continuance for an abuse of discretion. In re Marriage of Harrison , 557 S.W.3d 99, 112 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). We may not overrule the decision unless the trial court acted unreasonably or in an arbitrary manner, without reference to guiding principles. Id. A trial court abuses its discretion if it grants a motion to withdraw that fails to meet the requirements of Rule 10. Jackson v. Jackson , 556 S.W.3d 461, 468 (Tex. App.—Houston [1st Dist.] 2018, no pet.) ; see also Spiller v. Tex. A&M Univ. Syst. , No. 13-16-00041-CV, 2016 WL 4145956, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 4, 2016, no pet.) (mem. op.). But a trial court may also abuse its discretion by failing to order counsel to withdraw when the nature of the conflict becomes apparent and mandates withdrawal. Warrilow v. Norrell , 791 S.W.2d 515, 523 (Tex. App.—Corpus Christi–Edinburg 1989, writ denied).
B. Motion to Withdraw
The record reflects that Mother hired and fired numerous attorneys during the pendency of the case. The conflicted trial counsel acknowledged the looming conflict in his motion for continuance filed the day before the hearing, but he did not simultaneously file a motion to withdraw. Mother admitted to the trial court that she then re-hired one of the previous attorneys to represent her even knowing that there was a conflict that could potentially prevent the attorney from representing her at trial at the time she re-hired him. With almost no citations to authority to support the argument, Mother contends that the trial court should have advised Mother of her right to counsel after the withdrawal of her attorney. However, Mother had been represented by counsel at all prior stages of the proceeding and was aware that she was entitled to representation.
Although counsel did not follow the formal rules governing withdrawal, on the basis of this record as a whole, we cannot conclude that the trial court abused its discretion by permitting him to withdraw. Mother engaged the services of an attorney that she knew would be conflicted from representing her. The conflict itself is apparent on the face of the record and mandated withdrawal. See id. Mother also openly made the decision to proceed pro se when discussing the matter with the trial court stating: "I'm ready. I'm ready for trial pro se. I'm ready." "The trial court was uniquely familiar with the history and personalities in this case. The court was free to consider both in deciding whether to permit [the attorney] to withdraw." See In re C.F. , 565 S.W.3d 832, 844 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing In re Marriage of Harrison , 557 S.W.3d at 119 ). Under these circumstances, we cannot say the trial court abused its discretion in granting counsel's motion to withdraw.
Mother's third issue is overruled.
C. Continuance
After stating on the record that she was ready to proceed pro se, Mother orally requested thirty days to prepare for trial. By only string citing cases relating to the denial of the right to counsel, Mother's brief does not present any cognizable argument as to why it was error for the trial court to have denied her oral motion. See TEX. R. APP. P. 38.1(i). Further, "[w]hen, as alleged here, the ground for a continuance is the withdrawal of counsel, the movant must show that the failure to be represented at trial was not due to her own fault or negligence." In re Marriage of Harrison , 557 S.W.3d at 117. As previously stated, Mother openly acknowledged she knowingly hired conflicted counsel, and as the trial court stated, such a decision may have been a tactical one. Therefore, Mother failed to meet her burden to prove that the failure to be represented at trial was not due to her own fault or negligence, and the trial court did not abuse its discretion in denying her motion for a continuance. See id.
Mother's fourth issue is overruled.
V. TRIAL IN ABSENTIA
In Mother's fifth issue, she contends that the trial court erred by proceeding with trial in her absence "following a medical emergency." Essentially, Mother argues that she did "not voluntarily absent herself from the proceedings" and that it was reversible error for the trial court to continue without her presence.
After learning of Mother's incident and taking a brief recess to check on Mother's condition, the trial court stated on the record the following:
Well, the court has concerns that this is just a further attempt to delay trial of this case. And the court has concerns that [Mother] who before the lunch break announced that she was ready to represent herself pro se in thirty minutes.
By the same token, her formal pleadings through her attorney as well as [Father's] formal pleadings through his attorney would lead the court to have concerns that the ultimate goal of the parties is to delay the litigation in this case further.
And my concern is that—that further delays are only going to enhance the difficulty in disposing of this case. So at the risk of—at the risk of being corrected on review, I'm going to find that [Mother] is intentionally setting up circumstances to delay this case, that she is not injured and that this is simply an attempt to further delay the proceedings in this case following on the heels of requests that her counsel—by her counsel to be removed from the case and following on the heels of her representation that she was going to be ready to go to trial in thirty minutes pro se and that she was going to get some documents that she wanted to get for the trial.
I just feel like basically that the court's being victimized and that the interest of the—of justice in the interest of the children are not served by further delay in this case. And so we're going to proceed, and you may call your witness.
Here, the record reflects that the trial court, being the most familiar with the history of the parties in this case, found Mother to have voluntarily absented herself from the proceedings after the determination that she would proceed pro se in trial. See Moore v. State , 670 S.W.2d 259, 261 (Tex. Crim. App. 1984) (holding, in the criminal context, that the trial court did not abuse its discretion in denying a continuance and proceeding with trial where the court "could have reasonably inferred from the information before it that appellant voluntarily absented himself"); see also In re F.E.M. , No. 11-12-00257-CV, 2013 WL 1092716, at *6 (Tex. App—Eastland Mar. 14, 2013, pet. denied) (mem. op.) (finding no error in the refusal to grant a continuance of parental termination trial where "the trial court could have determined that the parents voluntarily absented themselves from trial"); In re J.P. , No. 13-16-00240-CV, 2016 WL 6124655, at *5 (Tex. App.—Corpus Christi–Edinburg Oct. 20, 2016, no pet.) (mem. op.) (finding no error where trial court proceeded in termination case without the presence of the mother where record reflected mother was voluntarily absent). The court did not err in proceeding with trial in Mother's absence.
We overrule Mother's fifth issue.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
In her final two issues, Mother argues that trial counsel was ineffective for: (1) participating in a "false start" trial; and (2) failing to timely address the conflicts of interest resulting in Mother "being forced to proceed pro se on the day of trial."
A. Standard of Review & Applicable Law
The Texas Supreme Court has recognized that the right to effective assistance of counsel extends to parental-rights termination proceedings. In re M.S. , 115 S.W.3d 534, 544–45 (Tex. 2003). The supreme court held that in addressing a claim of ineffective assistance in the parental termination context, the two-pronged analysis as set forth in Strickland applies:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. (quoting Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In this process, we must give great deference to counsel's performance, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," including the possibility that counsel's actions are strategic. Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). 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 (quoting Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ). "In a parental-rights termination case where the parent asserts on appeal the ineffective assistance of trial counsel, but nothing in the record indicates trial counsel's reasons or strategies for the complained-of conduct, the lack of a record is practically always fatal to the parent's appellate issue under current Texas law." In re K.K. , 180 S.W.3d 681, 683 (Tex. App.—Waco 2005, order).
B. Participating in "False Start" Trial
Mother briefly argues that counsel was ineffective in participating in the alleged "false start" of trial. The extent of Mother's argument in this regard is:
[Counsel's] very participation in the feigned proceedings without objection falls below the standard of care for Texas attorneys. This is so because his mere participation putatively extended the jurisdictional window in the case unnecessarily, but more importantly his failure to object to the absence of a jury could be viewed, and has been viewed, by the [Department], and the Court below as a waiver of jury rights. Therefore, both legs of the Strickland test have been met, namely grievous substandard legal practice, resulting in catastrophic legal injury to his clients, and unnecessary extension of litigation and loss of jury rights.
The first prong of Strickland requires that trial counsel was deficient, meaning counsel made errors so serious as to render them ineffective as counsel. See In re M.S. , 115 S.W.3d at 544–45. Here, we have already determined that there was no error in the alleged "false start." Without error, there is no claim of ineffective assistance of counsel. See id.
Mother's sixth issue is overruled.
C. Conflicts of Interest
Mother next argues that trial counsel was ineffective for failing "to timely address their mutual conflicts of interest resulting in the parents being forced to proceed pro se on the day of trial." Without citation to support or authority, Mother argues that trial counsel failed to function as effective counsel because he failed to take "appropriate steps to cure their multi-year conflict situation in a timely manner." Mother then makes the blanket assertion that: "It goes without saying that rendering your client helpless on the first day of the most serious of civil trials they could face deprives them of a reliable and fair trial." Mother does not present any cognizable argument to explain the history of her multiple hiring and firing of various attorneys, of her own admission that she was aware of the conflict upon the re-hiring of her attorney, or to acknowledge that she re-hired counsel within just weeks of the trial date. Given the record before us and because we have determined that counsel's withdrawal upon the inability to resolve the conflict was not error, we hold that Mother has not met her burden to prove that counsel was ineffective in this regard. See id.
Mother's seventh issue is overruled.
Mother's pending motion "for leave to amend the accelerated appeal notice to a non-accelerated appeal notice nunc pro tunc " is dismissed as moot.
VII. CONCLUSION
The judgment of the trial court is affirmed.