Opinion
No. 11-19-00379-CV
07-31-2020
IN THE INTEREST OF A.S.A. JR., A CHILD
On Appeal from the 446th District Court Ector County, Texas
Trial Court Cause No. E-19-041-AD
MEMORANDUM OPINION
Based upon a petition filed by the mother and the stepfather of A.S.A. Jr., the trial court terminated the parental rights of A.S.A. Jr.'s father. The father filed a pro se notice of appeal and has filed a pro se brief in which he sets out fourteen issues for this court's review. We affirm the trial court's order.
Background Facts
The record reflects that Appellant and Appellee mother had two children together: A.S.A. Jr., who was nine years old at the time of trial, and S.D.A., who was twenty-two years old at the time of trial. The mother testified that she and Appellant divorced in 2012 when A.S.A. Jr. was two years old and that Appellant saw A.S.A. Jr. approximately five times shortly after the divorce. According to the mother, A.S.A. Jr. was two years old when he last saw Appellant, and A.S.A. Jr. wanted to change his last name to that of his mother and stepfather.
Appellant had an extensive criminal history, which included thirteen felony convictions. Three of those convictions were for the offenses of aggravated assault with a deadly weapon; these three offenses occurred on separate dates in 2013. Appellant also had a history of illegal drug use, and some of his felony convictions were for drug-related offenses. According to the mother, Appellant had used cocaine, marihuana, methamphetamine, and heroin. Appellant also had a temper, was violent, and had committed domestic violence. The mother testified that Appellant had verbally and physically abused her in the presence of their children. Appellant had also abused S.D.A. and had threatened to commit suicide "with . . . [A.S.A. Jr.]."
S.D.A. testified that he had observed domestic violence between his parents "too many times to count." S.D.A. also confirmed that Appellant had physically abused S.D.A. According to S.D.A., after his parents divorced, Appellant exercised his right to visitation with his children a few times only. S.D.A. described the living conditions at Appellant's residence, which "resembled an abandoned house," as very poor. S.D.A. observed drug-related items at that house.
Appellant testified that he had been incarcerated since 2013 and that he had turned his life around while in prison. Appellant testified that he had last seen A.S.A. Jr. a few months before A.S.A. Jr.'s fourth birthday. After Appellant's testimony, he asked if he could "address something to the Court." The trial court did not permit Appellant to do so, but it did permit Appellant to discuss the matter with his attorney. Appellant was then recalled and testified that he had never used heroin, cocaine, or marihuana. Appellant indicated that the only drug he had used was methamphetamine. We note, however, that three of Appellant's prior convictions were for the offenses of possession of cocaine.
Termination Findings and Issues Presented
To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) of the Texas Family Code and that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2019). Here, the trial court found that Appellant had committed three of the acts listed in Section 161.001(b)(1)—those found in subsections (C), (E), and (F). Specifically, the trial court found that Appellant had voluntarily left the child alone or in the possession of another without providing adequate support and remained away for a period of at least six months, had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being, and had failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition. See id. § 161.001(b)(1)(C), (E), (F). The trial court also found, pursuant to Section 161.001(b)(2), that termination of Appellant's parental rights would be in the best interest of the child. See id. § 161.001(b)(2).
On appeal, Appellant does not challenge the trial court's findings. He does, however, assert various complaints related to the conduct of the trial court and the assistance of his court-appointed counsel. In his first, second, third, ninth, tenth, eleventh, and thirteenth issues, Appellant complains of various actions of the trial court and asserts that he was deprived of a fair and impartial trial. In his fourth, fifth, eighth, twelfth, and fourteenth issues, Appellant complains of various actions of his trial counsel and asserts that he received ineffective assistance of counsel at trial. In his sixth issue, Appellant asserts that courts must consider the desires of the child. In his seventh issue, Appellant asserts that incarceration, in itself, does not constitute abandonment or endangerment.
We note that Appellees assert that Appellant waived all of his contentions on appeal due to his failure to comply with the briefing requirements set out in Rule 38 of the Texas Rules of Appellate Procedure. While we agree with Appellees that Appellant's brief does not comply with Rule 38, we will construe Appellant's pro se brief liberally and attempt to address the issues presented in his brief.
Analysis
In his first, second, third, ninth, tenth, eleventh, and thirteenth issues, Appellant complains of various actions of the trial court and asserts that he was deprived of a fair and impartial trial. In these issues, Appellant specifically complains that the trial court refused to entertain his motion for continuance, that the trial court was worried about taxes rather than a fair and impartial trial, that Appellant was deprived of witnesses and documents, that he was denied the right to thoroughly confront and cross-examine witnesses, that he was denied the right to cross-examine anyone from the attorney general's office with respect to the amount of child support that he owed, that he was handcuffed and shackled and was unable to participate fully during the termination hearing, and that he was not permitted to address the court in a narrative fashion.
The record reflects that Appellant's pro se motion for continuance was not properly filed and did not otherwise comply with the rules related to a motion for continuance. See TEX. R. CIV. P. 21, 251, 252. A trial court does not abuse its discretion when it denies such a motion. See In re S.M.H., 523 S.W.3d 783, 797 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). Furthermore, nothing in the record before us reflects that Appellant was handcuffed or shackled, that his right to call or cross-examine witnesses was impeded, or that Appellant was otherwise denied a fair and impartial trial. We overrule Appellant's first, second, third, ninth, tenth, eleventh, and thirteenth issues.
In his fourth, fifth, eighth, twelfth, and fourteenth issues, Appellant complains of his trial counsel's conduct. Appellant specifically complains that trial counsel failed to subpoena A.S.A. Jr., failed to object and investigate, failed to object and cross-examine the child's mother with respect to the finality of their divorce decree, failed to set the record straight with respect to the existence of a protective order, and failed to prepare and properly assist Appellant.
Assuming, without deciding, that Appellant had a right to effective assistance of counsel, he has failed to show that his trial counsel was ineffective. See In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (assuming, but not holding, that parent had right to effective assistance of counsel in parental termination case that was filed by other parent); cf. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (holding that a parent who has a statutory right to counsel—such as an indigent parent in a suit filed by a governmental entity for conservatorship or termination of parental rights, see FAM. § 107.013(a)(1) (West 2019)—has the right to effective counsel). To prevail on a claim of ineffective assistance of counsel, a parent must generally show (1) that trial counsel's performance was deficient and (2) that the deficient performance was so serious as to deny the parent a fair and reliable trial. In re J.O.A., 283 S.W.3d 336, 341-42 (Tex. 2009) (following the two-pronged analysis of Strickland v. Washington, 466 U.S. 668 (1984)); M.S., 115 S.W.3d at 545 (same). We must give great deference to counsel's performance, and we must presume that counsel's conduct falls within the wide range of reasonable professional assistance. M.S., 115 S.W.3d at 545; see Strickland, 466 U.S. at 689.
We have reviewed the entire record, and we conclude that Appellant has failed to satisfy either prong of the Strickland test. Appellant has not overcome the presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance, nor has he shown that the result of the proceeding would probably have been different but for trial counsel's conduct. See Strickland, 466 U.S. at 689, 694. Accordingly, we overrule Appellant's fourth, fifth, eighth, twelfth, and fourteenth issues.
In his sixth issue, Appellant asserts that courts must consider the desires of the child. In his seventh issue, Appellant asserts that his incarceration, in itself, does not constitute abandonment of the child or endangerment of the child. In general, we agree with the assertions made by Appellant in his sixth and seventh issues. See In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012) (incarceration, in and of itself, does not establish endangerment); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (one factor to consider when determining the best interest of a child is the desires of the child); In re M.D.P., No. 11-18-00146-CV, 2018 WL 6053931, at *2-3 (Tex. App.—Eastland Nov. 20, 2018, no pet.) (mem. op.) (imprisonment, standing alone, does not constitute abandonment or endangerment).
The record does not reflect that the trial court refused to consider the child's desires. Furthermore, the record does not suggest that Appellant's incarceration, in itself, constituted the basis for the finding that Appellant abandoned his child or that Appellant had engaged in conduct that endangered his child. The record was replete with evidence that Appellant had engaged in conduct, such as domestic violence and drug use, that endangered A.S.A. Jr. See J.O.A., 283 S.W.3d at 345; M.D.P., 2018 WL 6053931, at *2-3; In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied). We overrule Appellant's sixth and seventh issues.
This Court's Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE July 31, 2020 Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J. Willson, J., not participating.
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.