Opinion
02-23-00396-CV
02-01-2024
In the Interest of A.S., a Child
On Appeal from the 393rd District Court Denton County, Texas Trial Court No. 22-8031-367
Before Birdwell, Bassel, and Womack, JJ.
MEMORANDUM OPINION
DABNEY BASSEL JUSTICE
I. Introduction
This is an ultra-accelerated appeal in which Appellant D.S. (Father) appeals the termination of his parental rights to his son A.S. (Andrew) following a five-day jury trial. The trial court terminated Father's parental rights based on the jury's findings that there was clear and convincing evidence of four predicate grounds-endangering environment, endangering conduct, failure to comply with his court-ordered service plan, and failure to complete a court-ordered substance-abuse treatment program- and the best-interest ground. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). Father does not challenge the sufficiency of the evidence to support the jury's termination findings. Instead, in two issues he contends that the trial court prevented him from seeking a continuance after he fired his retained counsel during the trial and that his counsel was ineffective. Because we hold that Father did not file a written motion for continuance or assert a violation of his due-process rights at trial and did not satisfy his burden to show prejudice from counsel's representation, we affirm the trial court's termination judgment.
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed).
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights).
Because Father does not challenge the sufficiency of the evidence to support the predicate-ground findings or the best-interest finding, we provide only a brief summary of the testimony at trial.
K.M. (Mother) and Father were never married. They met in March 2021 when he had a wife and a girlfriend. Mother said that Father tried to force her to sell herself to other men for money.
Mother and Father's relationship was marked by domestic violence:
• There were incidents in which Father bit Mother, slapped her across the face, and threatened her.
• While Mother was pregnant with Andrew, Father got on top of her belly and choked her until she could not breathe; when she tried to leave, he grabbed her by the leg, and she fell on her side.
• During a domestic-violence incident in August 2022, which was after Andrew had been born that March, Father tried to take Andrew out of Mother's arms. Father choked her while Andrew was in her arms and squeezed her arms while telling her to let go of Andrew. Mother told Father that she could drop Andrew, and Father said that he did not care; he wanted her to give him Andrew. The incident continued outside as Father pulled Mother by her hair; she crouched down with Andrew in her arms; and Father kept squeezing her arms, telling her to let go of Andrew. Father left scratches and bruises on her. The officer who investigated the incident testified that it involved the type of domestic assault that can endanger a child.
According to Mother, Father earned money by selling drugs and by "[t]rying to get women to sexually sell themselves to men." Mother said that Father wanted to open a drug business in Oklahoma and was preparing his twin teenage sons (from a previous relationship) to sell marijuana there by having them sell it here in Texas.
The caseworker testified that she had reported Father to the police based on comments that Mother had made regarding his human trafficking of various women. The record is absent of evidence on whether Father was ever charged for such behavior.
One of Father's teenage sons died of a Fentanyl overdose while this case was pending.
In September 2022, Andrew was removed from Mother and Father due to their domestic-violence incidents. Three weeks later, Father was arrested and charged with possession of over four ounces but less than five pounds of marijuana, which was found in a car in which he was a passenger. After a warrant was obtained to search Father's home, the detective saw marijuana in plain view in the master bedroom and a large scale in the master closet, as well as heat-sealed wraps. He also saw a firearmand ammunition in plain view. Based on the detective's observation of the home, he opined that it would not be safe for a one-and-a-half-year-old child due to the open access to marijuana and ammunition.
The detective testified that the presence of large amounts of marijuana and the scale would be consistent with a person who was not just using but was actually distributing or selling marijuana.
The firearm was determined to belong to Father's wife.
A week before Father's criminal trial on the marijuana-possession charge was initially scheduled to begin, Father drove by the detective's residence (despite that his address is confidential) and said, "Morning, Neighbor." The detective testified that he felt "[c]oncerned, threatened" because he knew Father's criminal history and his twins' propensity for violence and because he believed Father to be dangerous. The following day, the detective discovered that the window in his truck had been "forcibly rolled" down.
The detective later testified that Father had previously been charged with attempted capital murder but had pleaded down to attempted arson and that he had been charged with sexual assault of a child but had pleaded guilty to injury to a child.
According to Father, he was incarcerated at the time of the September 2023 termination trial because his bond was found insufficient due to allegations of attempting to intimidate the detective by going to his house and by rolling down the window in his truck. Father was facing two to twenty years' confinement on the drug charge.
Father said that he had been arrested "over twenty" times. Father admitted (1) that he had been indicted in 2013 for intentionally or knowingly causing the sexual organ of a child under seventeen to contact his sexual organ but that he was convicted of injury to a child and had served four years in prison; (2) that he had been indicted in 2006 for attempted capital murder and burglary of a habitation but had pleaded guilty to attempted arson of a habitation and attempted arson of a vehicle and had served seven years in prison; and (3) that he had engaged in domestic violence with Mother and that he had a history of committing family violence since he was eighteen years old. Father said that he was on deferred-adjudication community supervision for possession of methamphetamine from February 2021 and that the State had filed a motion to adjudicate that offense. Father testified that he had been in jail three times during the CPS case: for the October 13, 2022 possession-of-marijuana arrest (he posted bail the next day); from December 19 to 21, 2022, due to a warrant pursuant to a motion to adjudicate (he posted bail); and since August 16, 2023 (after his bond was revoked).
Father admitted that his January 2023 hair-strand test was positive for cocaine; that his March 2023 hair-strand test was positive for marijuana; and that he had refused in April 2023 and July 2023 to undergo drug tests, which were presumed positive. Father also did not submit to a court-ordered nail-bed test in March 2023. Father said that he chose not to provide Andrew with child support "through the courts."
Amanda Swink became the caseworker on this case in January 2023. She attempted to meet with Father before or after his visits with Andrew to try to get Father to engage with his services, but "a lot of times," she was dismissed and told that he did not want to speak with her regarding his services. Swink sent bi-weekly emails to Father's attorney and to Father directly regarding his services and requests for drug testing; Swink never received a response from Father's attorney.
After Swink and an observer noted during visits that Father often left to go to the restroom and returned not looking like himself, Swink informed the trial court of her concern that Father was under the influence at visits. The trial court ordered Father to take a drug test, but Father refused. The trial court then suspended Father's visits.
Father did not complete his service plan because he failed to
• complete counseling;
• undergo a psychosocial;
• complete parenting classes or a batterer's intervention program;
• attend outpatient treatment;
• attend any substance-abuse classes;
• maintain stable employment;
• maintain safe, stable, and appropriate housing;
• refrain from engaging in criminal activity; and
• make any child-support or medical-support payments.
During cross-examination, Swink agreed that although Father was in jail at the time of the trial, he had maintained the same home address since she had been on the case. She later explained that his housing was not safe for children.
Swink listed Father's behaviors that had directly or indirectly endangered Andrew: Father's domestic violence toward Mother; his ongoing criminal activity; his substance abuse; his surrounding himself with dangerous people; his unsafe home; and his failure to provide proof that he could provide financially for Andrew.
The Department asked the jury to terminate Father's parental rights and to reunite Andrew with Mother. The court-appointed special advocate (CASA) volunteer testified that it was CASA's position that it was in Andrew's best interest for Father's parental rights to be terminated. The jury followed the Department's and CASA's recommendations and found all four predicate grounds and the best-interest ground. The trial court signed an order terminating Father's parental rights to Andrew and appointing Mother (who had gone above and beyond in working all her services) as Andrew's sole managing conservator.
III. Father's Mid-Trial Decision to Fire His Counsel
On the first day of testimony, Father's attorney made an offer of proof after Mother testified. At the conclusion of the offer of proof, Father alerted the trial court that he wanted to fire his counsel:
[FATHER]: I would like to fire my counsel at this moment, sir.
THE COURT: Well, let me --
[FATHER]: I love him to death. It's not personal. It's not personal. But we have not had an -- I have not had an opportunity to go down through this case. We weren't even supposed to be here on today. He was telling me it was getting passed up. I have nothing. I have nothing. Everything -- asking questions, there's no knowledge -- we have no -- there's nothing going on right here. We have nothing -- he knows nothing about this case right now.
The trial court inquired as to Father's level of schooling-to which he responded that he had "some college"-and explained that he would be held to the same standards as an attorney. Father responded that he understood. The trial court informed Father that "[i]t would be incredibly difficult, almost impossible, if [he] were to conduct this without the representation of counsel." Father responded,
Yes, sir, I understand. And my question is not at [counsel's] skills but --he's very skilled[,] and I understand that a hundred percent.
My objection is to the fact that I have not had -- we have not had time to prepare for this case. Like, he has no really underlying knowledge -- so, when I'm hearing him ask her questions of things and when you want to, object I'm trying to write questions now, "[A]sk this, ask this[,]" but he doesn't know that because we haven't had the opportunity to discuss that.
I didn't come to court to drag [Mother]. I didn't even want this to come out. But the thing is, when I'm being subjected to these type of things, now we have to talk about the truth -- you know, what I mean. Now we have to talk about what really happened.
As noted in the Department's brief, Father "stated multiple times in trial that he was frustrated that [his retained counsel] wanted to use 'tactics and strategies' in the case because Father wanted to tell the truth and be open and honest regarding his past." [Record references omitted.] The fact that Father's counsel had planned "tactics and strategies" undercuts Father's argument that counsel was not prepared for trial.
The trial court suggested that instead of Father's whispering in his counsel's ear while he was trying to cross-examine a witness, Father should write down his questions. Father said that he had been doing that but that his counsel was still not asking the questions that he desired to have posed.
Mother's counsel stated that he was opposed "to doing anything that makes this go on longer than it has to" and to "anything that makes this case get delayed in an inordinate amount of way." Mother's counsel suggested that the trial court allow Father to meet with his counsel after direct examination of a witness so that he could talk about what that witness had said. The Department's counsel and the child's ad litem were both opposed to delaying the trial, and the child's ad litem noted, "Both sides have had the same amount of time to prepare for this case."
The trial court decided to have Father's counsel continue his representation of Father and to allow him ten minutes outside the presence of the jury to talk to Father before beginning cross-examination. The trial then continued with testimony from (1) the officer who responded to the domestic-violence incident when Father tried to take Andrew out of Mother's arms and (2) the program director for CPS investigations, as well as the start of testimony from (3) the detective who investigated the drug incident where Father was arrested.
The next morning, outside the presence of the jury, Father again announced that he wanted to fire his attorney. The trial court questioned Father on whether he wanted to do that knowing that there would not be a continuance for him to hire new counsel, that he would be held to the same standards as an attorney, and that he could not ask the other parties' attorneys for help. Father stated that he understood. Father said,
Later during the trial, Father was asked how long he had been displeased with his attorney's representation, and Father said, "Well, . . . from the moment of the adversary hearing," which he acknowledged had occurred a year prior to the trial. Father agreed that because he had hired his attorney, he could have fired him any time prior to the trial.
I would rather be able to get out and ask questions or cross-examine a witness as to my case, me knowing the facts, you know what I mean? So if they object to what I say, I get it, strike it down, strike it from the record or whatever. But at least the questions are getting asked and things are getting brought up[] because that hasn't been happening at all.
Upon Father's attorney's request, the trial court agreed to allow Father to meet with him to obtain documents from him and to go over trial strategy. The trial court on its own motion appointed standby counsel for Father for the limited purposes of (1) being part of the meeting when Father received the documents from his prior counsel and (2) assisting Father if an issue arose during his direct examination and cross-examination regarding his Fifth Amendment rights or other constitutional rights. After the meeting, the trial court discharged Father's counsel.
The trial continued with Father's cross-examining the detective from the drug investigation. Father also cross-examined the investigator, the caseworker, and the CASA volunteer. The trial court allowed Father much leeway when he testified and when he questioned Mother in his case in chief, and the trial court bent over backward to make sure that Father was provided with copies of exhibits, that he was able to take his own exhibits back to the jail to prepare to admit them, that he was able to call witnesses, and that the transport deputy sat in a place that did not raise undo suspicion as to whether Father was intimidating the Department's attorneys.
As noted in Father's brief, The [t]rial [c]ourt also made major accommodations for Father to present a case in chief, including but not limited to[] instructing the court coordinator to print documents for Father, organizing and marking such items as potential exhibits, arranging for a binder of exhibits, and calling of witnesses. Two of the witnesses called by Father [were] not named in the [w]itness [l]ist filed by counsel[] but were permitted to testify. [Record references omitted.]
IV. Continuance Not Requested
In his first issue, Father argues that the trial court prevented him from seeking a continuance, resulting in a violation of his due-process rights. Father's argument ignores that he never filed a written motion for continuance or raised his due-process complaint in the trial court.
A. Standard of Review, Law on Continuances, and Law on Preservation
We review a trial court's ruling on a motion for continuance for an abuse of discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). A trial court abuses its discretion if it acts without reference to any guiding rules or principles-that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.
A motion for continuance shall not be granted without "sufficient cause supported by affidavit, or by consent of the parties, or by operation of law." Tex.R.Civ.P. 251. Thus, a trial court generally does not abuse its discretion when it denies an oral motion for continuance. See id.; In re J.P.-L., 592 S.W.3d 559, 575 (Tex. App.-Fort Worth 2019, pet. denied) (holding no abuse of discretion when trial court denied an oral motion for continuance).
To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request's, objection's, or motion's context. Tex.R.App.P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g).
B. What the Record Shows
Here, midway during the afternoon of the first day of testimony, Father stated that he wanted to fire his attorney. He did not, however, request a continuance either orally or in writing. As explained above, the trial court stated that the jury had already heard "at least a day's worth of testimony," that there would "be no reset," and that Father would be allowed ten minutes with his attorney to "address the issues that [he] believe[d were] relevant" before his attorney cross-examined each witness.
The following day, before any witnesses took the stand, Father reiterated his request that he wanted to fire his attorney. Father again did not request a continuance either orally or in writing. Although the trial court stated that it was "not gonna continue this particular case based on [Father's] firing this counsel," Father did not object but instead said, "Yes, sir. I do understand that."
C. Analysis
Initially we note that Father points to nothing in the record to show how the trial court "prevented" him from filing a motion for continuance; instead, he concedes in his brief that "prudent counsel would still submit the request for a continuance to preserve error," despite "the [t]rial [c]ourt's clear instructions to keep the trial moving." Because Father did not request or move for a continuance, either orally or in writing, he failed to preserve this issue. See Tex. R. App. P. 33.1(a)(1)(A); In re L.M., No. 02-17-00421-CV, 2018 WL 2054988, at *11 (Tex. App.-Fort Worth May 3, 2018, no pet.) (per curiam) (mem. op.) (holding that father failed to preserve continuance issue because he did not raise such complaint in the trial court); cf. Misner v. State, No. 04-03-00323-CR, 2004 WL 730838, at *4 (Tex. App.-San Antonio Apr. 7, 2004, pet. ref'd) (mem. op., not designated for publication) (holding that appellant had not preserved continuance issue for appellate review because although trial court stated that it was not permitting trial counsel to withdraw and that it was not going to grant a continuance, appellant did not move for a continuance in writing based on the delayed delivery of the indictment).
Moreover, Father's brief notes his "[u]nderstanding that precedent cannot be set to allow parents to fire their counsel in the midst of a trial to delay the result[] and . . . that Father's incarceration was not the fault of the Department." We agree.
In L.M., the father waited until the eleventh month after the removal to apply for a lawyer. 2018 WL 2054988, at *6. The trial court reset the trial date from August 21, 2017, to September 11, 2017; appointed counsel for the father; and stated that it would not grant an extension: "I am not granting an extension on this case. So whoever gets it is going to have to get their trial britches out and ironed and ready to go." Id. at *6-7. After counsel was appointed, she filed an amended answer in which she asked the trial court to "[a]llow sufficient time" for the father to complete any court-ordered services, but the record contained no indication that the request was presented to the trial court. Id. at *7.
Even if we can construe the trial court's statements as having implied that Father's request to fire his counsel included an oral request for continuance, the trial court was within its discretion to deny an oral motion for continuance. See In re M.A.-O.R., No. 02-11-00499-CV, 2013 WL 530952, at *5 (Tex. App.-Fort Worth Feb. 14, 2013, no pet.) (mem. op.) (holding no abuse of discretion when pro se mother made an oral motion for continuance just before the termination trial began and the record did not contain a written motion for continuance, an affidavit, or sworn testimony in support of the motion).
Father's brief sets forth in one sentence Texas Family Code Section 263.0061(a) regarding the trial court's duty to inform each parent not represented by an attorney of the right to be represented by an attorney and, if the parent is indigent, the right to a court-appointed attorney. Tex. Fam. Code Ann. § 263.0061(a). In the sentence that follows that statement of law, Father contends that "the [t]rial [c]ourt abused its discretion when it . . . prevented Father from seeking court-appointed counsel when he was clearly indigent." Father, however, did not request the trial court to appoint counsel for him or submit a form showing that he was indigent. Nor does he explain how the trial court prevented him from taking such actions. We therefore conclude that Father failed to preserve anything for our review. See Tex. R. App. P. 33.1(a); see also Tex. R. App. P. 38.1(i); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.) (stating that appellate court has no duty to brief issues for appellant). Within the same sentence that Father argues that he was prevented from seeking court-appointed counsel, he also argues that "the [t]rial [c]ourt abused its discretion when it . . . manipulat[ed] Father into maintain[ing] representation despite the fact that his counsel was not adequately representing Father's interests." As noted in the Department's brief,
The record, however, demonstrates that the trial court attempted to alleviate Father's initial concern with his counsel by allowing for additional time before counsel questioned a witness. The hope was that Father could relay any important information to his counsel that he felt would be helpful in questioning the witness. When this method did not alleviate Father's frustrations, the trial court granted Father's request and dismissed Father's counsel. [Record reference omitted.]Additionally, Father does not set forth any questions that he was prevented from asking the witnesses who were questioned before he took over his own representation. And the record demonstrates that of the four witnesses who testified on the first day, Father was able to take over cross-examination of the detective and to call Mother during his case in chief. The record lacks any support for Father's argument that he was manipulated into maintaining his retained counsel's representation.
To the extent that Father also raises a due-process argument in his first issue, he did not raise due process as a ground for continuance in the trial court, and to the extent that Father complains of a violation of due process outside of his continuance and ineffective-assistance arguments, he has not preserved this complaint for our review. See In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (stating that complaints about due-process violations must be raised and ruled on in the trial court in order to be preserved for appeal); J.P.-L., 592 S.W.3d at 575 (holding that mother did not preserve her due-process complaints for appellate review).
At the end of Father's first issue, he requests that the judgment be reversed and that the case be remanded "to allow not only for effective counsel but also trial before the Honorable Doug Robison." To the extent that Father briefly implies that he would have received more accommodation if the Honorable Doug Robison had presided over the trial instead of a visiting judge, we hold that such issue is inadequately briefed and is moot based on our disposition of the appeal. See Zhao v. Two Steppin Towing, No. 02-21-00351-CV, 2022 WL 11456754, at *4 (Tex. App.-Fort Worth Oct. 20, 2022, pet. denied) (mem. op.); Huey, 200 S.W.3d at 854 (stating that the "[f]ailure to cite applicable authority or provide substantive analysis waives an issue on appeal").
Accordingly, we overrule Father's first issue.
V. No Prejudice Shown from Counsel's Assistance
In his second issue, Father argues that his counsel provided ineffective assistance. While a parent's statutory right to counsel in a termination-of-parental-rights case filed by the State includes the right to effective assistance of counsel, in order to satisfy his burden of showing that trial counsel was ineffective, Father must show both (1) that his trial counsel's performance was deficient and (2) that the deficient performance by his trial counsel prejudiced his case. See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)). Without deciding whether Father's attorney's performance was deficient, we conclude that Father has failed to show that he was prejudiced by his trial counsel's actions or inactions.
We need not address both prongs of the Strickland test if the appellant makes an insufficient showing on one component, nor must we address them in any particular order. 466 U.S. at 697, 104 S.Ct. at 2069.
A. Law on Ineffective Assistance of Counsel
An ineffective-assistance-of-counsel allegation in a termination proceeding must be firmly founded in the record, and the record must affirmatively show the alleged ineffectiveness and the resulting harm. In re M.M., No. 02-21-00153-CV, 2021 WL 4898665, at *9 (Tex. App.-Fort Worth Oct. 21, 2021, pets. denied) (mem. op.). When the record is silent regarding counsel's reasons for doing or not doing something, we may not speculate to find that trial counsel was ineffective. Id. Only when the conduct was so outrageous that no competent attorney would have engaged in it can we conclude that the challenged conduct constituted ineffective assistance. Id. at *8.
Likewise, even if the parent can show that his trial counsel's performance was deficient, he must still show that the deficient performance caused harm-that is, a reasonable probability exists that, but for counsel's unprofessional error or errors, the proceeding's result would have been different. M.S., 115 S.W.3d at 549-50. Put differently, the parent must show that counsel's errors were so serious as to deprive him of a fair trial, defined as a trial whose result is reliable. In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006).
B. Father's Complaints about Trial Counsel
Father argues that his trial counsel was deficient in the following ways:
• He "was nothing more than a potted plant" during the termination case and trial;
• He never responded to the Department representative's electronic communications;
• He limited Father's ability to work with the Department by requiring that no Department employee speak with Father outside trial counsel's presence;
• He did not appear for at least one hearing;
• He did not file an answer on Father's behalf or request any affirmative relief;
• He presumed the case would be reset and did nothing to prepare;
• He did not even realize that he had been sent Mother's exhibits;
• He did not prepare any trial exhibits on Father's behalf;
• He could not keep names or facts straight during voir dire and cross-examination of witnesses;
• He specifically advised Father not to answer certain questions from service providers while Father was working his services; and
• He allegedly advised Father that he did not need to appear for random drug testing requested by the Department.
At the outset, we note that Father's brief cites United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047 (1984), for the proposition that "an appellant is entitled to a legal presumption of prejudice if he . . . can demonstrate that [his] counsel 'entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing[]' so that there was a constructive denial of the assistance of counsel altogether." We have previously stated that "'[b]ad lawyering, regardless of how bad, does not' justify applying Cronic. . . . Accordingly, prejudice will be presumed only when the accused 'can establish that counsel was not merely incompetent but inert.'" In re S.B., No. 02-18-00310-CV, 2019 WL 1388760, at *15 (Tex. App.-Fort Worth Mar. 28, 2019, pet. denied) (per curiam) (mem. op.) (citations omitted). Here, there is no justification for applying Cronic because the record demonstrates that Father's trial counsel was not inert: he filed a motion to strike pleadings, a jury demand, and a witness list; he actively participated in voir dire, including requesting an equalization of strikes and urging strikes for cause on behalf of Father; and he cross-examined witnesses during the first day of trial.
Here, the record does not show any prejudice to Father as a result of trial counsel's alleged missteps or failures. As conceded in Father's brief, "The looming possibility of another jail sentence, the historical issues with violence and drugs, and other matters likely weighed on the jury, which returned a unanimous jury [verdict] in favor of terminating Father's parental rights." Some of the "other matters [that] likely weighed on the jury" were Father's engaging in criminal activity after Andrew's removal, Father's failure to complete his services, his testing positive for cocaine and marijuana during the case, and his refusal to take a drug test during the summer of 2023 despite knowing that his visitation privileges would be revoked.
Father contends that "had [he] been afforded meaningful representation during this termination case, there is a possibility that services would have been completed and other concerns of the parties addressed." Father points to the following: caseworkers were prevented from discussing services with him because his trial counsel had specifically directed that no Department representatives were to speak with Father without counsel present; service providers struggled to evaluate Father because his counsel had advised him not to answer certain questions; and his counsel advised Father that he did not need to appear for random drug testing requested by the Department because he was drug tested as part of his parole conditions. The record, however, demonstrates that despite any admonitions from his counsel, Father took several drug tests and tested positive. Additionally, there is no evidence in the record that Father's counsel instructed Father to refuse the drug test on which his visitation privileges hinged. Furthermore, Father admitted that he was unemployed during the case and had the time to work his services, including undergoing outpatient treatment for his substance-abuse issues. But during his questioning, Father also admitted that he had "stopped cooperating for the most part." Thus, Father cannot show a reasonable probability that the trial outcome would have differed but for his trial counsel's alleged actions and inactions when the record reveals that it was Father's own decision to engage in domestic violence, drug use, and drug possession (which resulted in his incarceration and potential lengthy prison sentence) and to stop cooperating with the Department. See L.M., 2018 WL 2054988, at *12 (holding that father could not show a reasonable probability that the trial outcome would have differed even if his trial counsel had requested and the trial court had granted a continuance, an extension, or both because a continuance would not have reduced the evidence supporting the endangerment and best-interest findings unchallenged by father on appeal).
Accordingly, we hold that Father has failed to demonstrate prejudice arising from his trial counsel's alleged ineffective assistance, and we overrule his second issue.
VI. Request for Anders Review Is Inapplicable
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
In his third issue, Father requests, in the alternative, an Anders review subject to his first and second issues. An Anders brief is appropriate only when a professional evaluation of the record reveals that there are no arguable grounds to be advanced on appeal. See 386 U.S. at 744, 87 S.Ct. at 1400. Here, Father's appellate counsel stated that she "can identify no non[]frivolous grounds for appeal beyond the ineffective assistance of counsel and clear need for a continuance of the trial." Despite that appellate counsel has raised arguable, nonfrivolous grounds, she also seeks to have this court review the entire record under the Anders protocol. This is an attempt to have it both ways-a review of arguable grounds that are raised and a review of the record to see if the appeal is frivolous or if there are any other arguable grounds that should have been raised; this is not permissible. See State v. Robinson, 540 P.3d 614, 615-16 (Utah 2023) (stating that hybrid-Anders briefs are procedurally improper); United States v. Corbin, No. 19-4377, 2023 WL 5032763, at *1 (4th Cir. Aug. 8, 2023) (not designated for publication) (stating that "so-called quasi- or hybrid-Anders briefing is not proper"); Cornell v. Commonwealth, 880 S.E.2d 9, 13 (Va. Ct. App. 2022) (holding that "partial" or "hybrid" Anders briefs are not permitted because the Anders procedure and its precedent "does not support permitting counsel to present both frivolous and nonfrivolous issues in the same brief and then seek to withdraw as to those frivolous issues to allow pro se briefing"). But see Ibarra v. State, 177 S.W.3d 282, 283-84 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (involving a hybrid Anders brief and a brief on the merits regarding a $1 unpronounced fine and reviewing the fine argument); Gerloff v. State, No. 01-94-00658-CR, 1995 WL 515130, at *1 (Tex. App.-Houston [1st Dist.] Aug. 31, 1995, no pet.) (per curiam) (not designated for publication) (involving a hybrid Anders brief in which appellant's counsel argued "one minor point of error" as to restitution and five potential points of error and reviewing all six points). Because we have analyzed Father's first and second nonfrivolous issues, we need not address his alternative third issue. See Tex. R. App. P. 47.1.
We do not condone this briefing tactic. An appellate practitioner must choose between raising arguable grounds or filing an Anders brief.
Decisions from a sister court are not binding on this court. See Dowell v. Quiroz, 462 S.W.3d 578, 585 n.6 (Tex. App.-Corpus Christi-Edinburg 2015, no pet.) (op. on reh'g).
VII. Conclusion
Having overruled Father's first two issues, which are dispositive of his appeal, we affirm the trial court's judgment terminating his parental rights to Andrew.