Opinion
No. 07-20-00089-CV
08-25-2020
IN THE INTEREST OF M.M., A.M., AND E.M., CHILDREN
On Appeal from County Court at Law Number 1 Lubbock County, Texas
Trial Court No. 2018-532,606; Honorable Mark Hocker, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a two-week trial with more than a dozen witnesses, including experts, presenting conflicting testimony, a jury terminated the parental rights of Appellants, S.M. and N.M., to their sons, M.M., A.M. (twin boys), and E.M. The father, S.M., and the mother, N.M., appeal the trial court's Order of Termination, presenting multiple complaints alleging ineffective assistance of trial counsel. We affirm that order.
To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b).
BACKGROUND
S.M. and N.M. have been married for more than twenty years. S.M. has been employed as a correctional officer with the Texas Department of Criminal Justice for over fifteen years. His work schedule is four days on and four days off; therefore, the mother was the primary caregiver and disciplinarian. S.M. and N.M. also have an adult son with physical challenges who lives with them. Furthermore, S.M. has an adult daughter from a previous relationship who has a family of her own. N.M. is a stay-at-home mom and a caregiver for her older son. Prior to the investigation by the Texas Department Family and Protective Services, she had been pursuing a degree in social work.
In 2009, when the twins were about seventeen months old and their younger brother was just a few weeks old, their biological mother relinquished possession of them to the Department and they were placed in foster care with S.M. and N.M. Two years later, the biological mother's rights were terminated and S.M. and N.M. adopted all three boys.
For the next five years, the family lived what can be described as a normal life. The children were described as good students and "great kids." In 2016, the twins made an outcry of physical abuse by their parents. At that time, the three children were removed from their parents' care. Some of the allegations included the mother "stomping" on them until they passed out then blowing in their faces to revive them, holding their heads under cold water in the bathtub, making one of the twins lie down in a cold shower, severe and repeated spankings with a spiked belt, washing their eyes out with Axe soap, slapping them, and injuring each of the twins' arms on separate occasions.
The evidence showed that one of the twins suffered an avulsion fracture that did require a cast and the other twin's injury was not as serious and did not require a cast.
After an investigation, the disposition against the father was that the allegations were "ruled out" and the disposition against the mother was a finding of "unable to determine." At that time, the children recanted the allegations and they were allowed to return to their parents. After the investigation, the parents decided to cease spankings as a form of discipline.
According to the caseworker, a case is "ruled out" if there is no evidence to support the allegations. A disposition of "unable to determine" suggests concern but not enough evidence to proceed.
Several years later, on October 3, 2018, while in school, the twins reported to a teacher that their younger brother had been physically abused by their parents the night before and they were afraid to go home after school. They described the abuse to the teacher. The school counselor was asked to go to the classroom and speak with the twins. She found them visibly upset and took them to her office. They were "crying," "sobbing," and "shaking" as they described the abuse to her. The allegations mirrored the 2016 allegations. Most of the accusations were directed at their mother. They stated that their mother would threaten to kick their father out of the house if he did not discipline them. The younger brother was brought to the counselor's office later that day. He was uncooperative and the counselor testified he told her the twins should not have said anything "because we're going to get in trouble."
A representative of Child Protective Services and a police officer came to the school. The boys were then taken to the Children's Advocacy Center for forensic interviews. The interviews were conducted separately. The twins described the abuse in great detail and were upset and crying. They reported they would get in trouble for making grades below an eighty-five or if they did not perform their chores. The twins claimed their mother was nice when she was in public but not at home. One of the twins alleged his mother would wash his eyes out with soap for making mistakes while reading. The twins also said their mother told them to lie if they were ever questioned about any visible injuries or bruises. They claimed their father would sometimes come to their defense but their mother would threaten to kick him out of the house. During his forensic interview, the younger brother was defiant, rude, and disrespectful. He denied there was any abuse and described his mother as "nice." He refused to answer basic questions and told the interviewer it was none of her business. At that time, the children were removed from the home and placed in the Department's care. A week later, the Department initiated proceedings to protect the children and terminate parental rights.
A Lubbock detective testified that criminal charges against the mother were pending at the time of the final hearing.
For the next seventeen months, the children lived in approximately eight to nine different foster homes in Lubbock, Tyler, Granbury, and Houston. Most of their placements were not ideal. They experienced bullying and trauma in some of the foster placements. With each move, they became more traumatized and eventually, they were treated for mental health issues with psychotropic medications.
The youngest child was eventually placed with friends in Lubbock and was doing well in their care. The goal was for that family to adopt him. The twins were placed together in a foster home in the Houston area in May 2019. However, in June 2019, they were separated when one of the twins was admitted to a residential treatment center for suicidal ideations. The foster parent was hopeful that the twin in the residential treatment center would be returned to her care upon his release and be reunited with his twin.
At the time of the final hearing, there was no discharge date for that twin.
While the children were in foster care, the parents were diligent about complying with all monitored visitation regardless of the geographical location. The testimony was that the visits went very well with two exceptions. On one occasion, the parents visited the twins in Houston. They went to dinner and the visit was observed by a CPS monitor. The monitor reported that the parents inappropriately spoke with the children about the pending case and "bad mouthed" the Department. That gave rise to a new allegation of emotional abuse by the mother and visitation with the boys was suspended.
When visitation resumed, there was an incident involving one of the twins. He had lowered his head during a visit with both parents and the CPS monitor alleged the mother inappropriately grabbed the twin by the face to get his attention. The twin left the visit and refused to return.
The evidence is undisputed that the parents have no issues with drug or alcohol abuse and complied with all of the required tests. They have sufficient income to provide a suitable home for their children. The evidence established they substantially complied with their family service plan and completed more parenting classes than were required. The only points of contention regarding the actions necessary for the parents to have their children returned involved family therapy and compliance with providing the Department with proof of employment. The parents interpreted the trial court's orders as permitting them to make an appointment with their own family therapist while the Department insisted that the parents were not ready for family therapy. Regarding proof of employment, the parents submitted pay stubs from the father's employment with vital information blacked out.
Testimony from numerous witnesses established that the events described by the children were too detailed and consistent to be fabricated. An expert witness, a doctor in counselor education with twenty-five years of experience in working with traumatized children, had several sessions with the children after their removal. She explained why the children recanted the 2016 allegations and then repeated those same allegations in 2018. According to her research, it is difficult for a child to make up a detailed description of abuse without experiencing it. She testified that it is rare for a child to lie when making an accusation but often will lie in recanting it so the child can return home. In her session with one of the twins, he told her his parents "told us what to say so CPS would send us home." She explained that "trauma bonding" causes a child to form an attachment to the abuser. She diagnosed the youngest child with PTSD and complex trauma that built up over years due to numerous incidents. In her opinion, the PTSD and complex trauma existed well before the youngest child was removed and placed in foster care.
The children's lifelong pediatrician testified that she never saw any physical signs of abuse and that a broken arm was not indicative of abuse. She was not aware of the previous allegations the children had made in 2016 and she did not treat their arm injuries. She examined the youngest child in May 2019, diagnosed him with depression, and prescribed Prozac. Another pediatrician who examined the children approximately a month after their removal testified that their statements were consistent with a history of abuse and their description of events was too unusual to be made up.
The evidence indicated that the children were sometimes treated at urgent care facilities or in the emergency room.
A CASA volunteer who established a good relationship with the children first believed it would be in their best interests to return home. As time passed, however, he changed his opinion because the parents were not addressing the reasons for removal. He testified, "[i]t's hard to keep a story that consistent over that long with professionals interviewing you and reinterviewing and talking about it." His testimony continued, "[t]hey're recalling memories. They're not recalling a story. They're recalling things they witnessed and things they experienced."
A CASA Advocacy Team Leader testified and recommended termination of parental rights. She too was of the opinion that the parents were not addressing the reasons for removal.
A Lubbock detective who was assigned to the case interviewed the caseworker and the children's older brother. He also viewed the recordings of the children's forensic interviews. During his testimony, he opined "it's hard to keep a lie, so kids shouldn't be able to say the same exact same thing two years ago and keep it that exact . . . that kind of thing is kind of worrisome."
The caseworker presented testimony on the grounds for termination. She testified the mother had engaged in conduct that endangered the physical and emotional well- being of the children and the father had knowledge of the abuse and failed to intervene or remove them from the endangering conditions. She also testified the Department's permanency goal for the children was an adoption by a non-relative.
The parents both testified and denied the allegations of abuse. Although they both admitted to spanking as a form of discipline, they disputed the severity of the spankings described by the children. The parents claimed the children began having emotional problems that required medication when the Department became involved with their family. The parents' adult son also testified on their behalf. He denied ever being abused by his parents and denied witnessing any abuse by them against his younger brothers.
After the Department rested, a hearing was held outside the jury's presence. Trial counsel moved for a directed verdict in favor of the father on the ground there was no evidence against him. The attorney ad litem concurred. The motion was denied. After both sides rested and closed, trial counsel again urged a motion for directed verdict for the father, which was again denied.
At that point, the jury was duly charged and retired to deliberate their verdict. After its deliberations, the jury returned its verdict finding the evidence sufficient to terminate the parental rights of both parents for (1) knowingly placing or knowingly allowing the children to remain in conditions or surroundings which endangered their well-being, (2) engaging in conduct or knowingly placing the children with persons who engaged in conduct that endangered their well-being, and (3) failing to comply with the provisions of a court order to obtain the return of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2019). The jury also found that termination of the parents' rights was in the children's best interests. See id. at § 161.001(b)(2). The trial court memorialized the jury's findings in its Order of Termination. The order also appointed the Department as permanent managing conservator of the children even though the jury questions pertaining to permanent managing conservatorship and possessory conservatorship were left blank by the jury. Both parents appeal the trial court's order.
The jury retired to deliberate at approximately 10:12 a.m. At approximately 2:50 p.m., the presiding juror sent a note that the jury was deadlocked. The trial court delivered an unobjected-to Allen charge pursuant to Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896), to encourage the jury to continue its deliberations if it could do so without coercing any juror to abandon his or her honest convictions regarding the verdict to be rendered. The jury returned with its verdict at approximately 4:31 p.m. that same day.
By a single issue stated in five subparts, the parents contend they did not receive effective assistance of counsel from their trial attorney due to alleged deficiencies as follows:
(1) failing to preserve factual sufficiency complaints regarding the statutory grounds for termination, the best interest findings, and the appointment of the Department as permanent managing conservator;
(2) failing to object to multiple hearsay statements regarding the children's statements which resulted in harm;
(3) failing to object to numerous witnesses testifying to the credibility of the children which invaded the province of the jury;
(4) failing to assert the defense under section 161.001(d) of the Family Code that a parent was unable to comply with the provisions of a court order and whose parental rights were terminated under section 161.001(b)(1)(O); and
(5) failing to properly authenticate the children's medical records to rebut claims that the parents failed to provide proper medical care.
Interwoven with the parents' ineffective-assistance-of-counsel claims is a challenge to the factual sufficiency of the evidence to support the grounds for termination, the jury's best interest findings, and the appointment of Appellee, the Department, as permanent managing conservator. Counsel's alleged failures, the parents argue, resulted in a violation of the right to counsel and denied them a fair trial.
Notwithstanding the accelerated time frame for the disposition of an appeal from an order terminating the parent-child relationship in a suit filed by a governmental entity, the Department filed three separate motions for extension of time to file its brief. Initially, we denied the third motion. The parents subsequently filed a reply brief. In the interest of justice, in order to consider the reply brief filed by the parents, we withdraw our denial of the Department's third motion for extension of time to file its brief and grant that motion. Accordingly, we have accepted and filed both the Department's brief on the merits, as well as the reply brief of the parents. Our doing so should not be seen as approving the dilatory practices of the Department in this case.
Rule 6.2 of the Texas Rules of Judicial Administration provides that "so far as reasonably possible," an intermediate appellate court should ensure that an appeal in a suit for termination of the parent-child relationship, filed by a governmental agency seeking managing conservatorship, is brought to final disposition within 180 days of the date the notice of appeal is filed. TEX. R. JUD. ADMIN. 6.2(a).
Because the Department's brief was untimely and not filed, the reply brief of the parents was also not filed. See TEX. R. APP. P. 38.6(c) (providing that a reply brief must be filed within twenty days after the appellee's brief is filed) (emphasis added).
In response to the argument of the parents that their trial counsel was ineffective, the Department contends that, like the criminal counterpart, trial counsel's performance should not be found to be defective on a silent record, given the strong presumption that trial counsel's performance falls within a wide range of reasonable professional assistance or is part of a sound trial strategy. The reply brief filed by the parents contends the Department failed to establish that trial counsel's representation was effective and did not result in harm.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department establishes one or more acts or omissions enumerated under section 161.001(b)(1) of the Code and that termination of that relationship is in the best interest of the child. See § 161.001(b)(1), (2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing evidence. § 161.206(a) (West Supp. 2019). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." § 101.007 (West 2019).
STANDARD OF REVIEW—TERMINATION OF PARENTAL RIGHTS
The natural right existing between parents and their children is of constitutional magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings are strictly construed in favor of the parent. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve those rights. In re C.H., 89 S.W.3d at 26. The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).
STANDARD OF REVIEW—INEFFECTIVE ASSISTANCE OF COUNSEL
The statutory right to counsel in termination of parental rights cases includes a guarantee that counsel provide effective assistance. In re B.G., 317 S.W.3d 250, 253-54 (Tex. 2010) (adopting the standard for effective assistance of counsel in criminal cases) (emphasis added). The standard of review an appellate court must apply when evaluating claims of ineffective assistance of counsel in a case involving the termination of parental rights is the same standard of review set forth by the United States Supreme Court for evaluating effective assistance of counsel in a criminal case in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003); In re J.O.A., 262 S.W.3d 7, 18 (Tex. App.—Amarillo 2008), aff'd as modified and remanded, 283 S.W.3d 336 (Tex. 2009).
"Under the well-established Strickland test, proving ineffective assistance of counsel requires a showing that (1) counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed by the Sixth Amendment and (2) the deficient performance prejudiced the defense, which 'requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (quoting In re M.S., 115 S.W.3d at 545). Under this standard, in order to determine whether representation was deficient, we must consider all of the circumstances surrounding the case and determine whether counsel was "reasonably effective." In re M.S., 115 S.W.3d at 545. In doing so, we afford great deference to counsel's performance, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. (quoting Garcia v. State, 57 S.W.3d 436, 440-41 (Tex. Crim. App. 2001)). In conducting the harm analysis under the second prong of the Strickland standard, reviewing courts must determine whether there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different. In re M.S., 115 S.W.3d at 549-50.
Therefore, an allegation of ineffective assistance of counsel in a termination proceeding must be "firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness" and the resulting harm. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citations omitted). Accordingly, when the record is silent regarding counsel's reasons for his conduct, a reviewing court may not speculate and ordinarily presumes that counsel's conduct may be considered sound trial strategy. See In re S.B., No. 07-19-00146-CV, 2019 Tex. App. LEXIS 9695, at *19 (Tex. App.—Amarillo Nov. 5, 2019, pet. denied) (mem. op.); P.W. v. Tex. Dep't of Family & Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism'd). Moreover, Texas law burdens a parent seeking reversal of an order terminating parental rights with the responsibility of demonstrating a reasonable probability that but for counsel's conduct, parental rights would not have been terminated. In re V.V., 349 S.W.3d 548, 559-60 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). (Emphasis added).
ANALYSIS
Here, the parents contend that trial counsel was ineffective for failing to file a motion for new trial in order to preserve factual insufficiency complaints to challenge termination of their parental rights. They claim the failure to do so deprived them of the opportunity to complain on appeal of the factual insufficiency of the evidence to support termination under subsections (D), (E), and (O). They also lodge factual insufficiency complaints to the jury's best interest findings and the appointment of the Department as the children's permanent managing conservator.
As counsel on appeal admits, the filing of a motion for new trial is a prerequisite for challenging the factual sufficiency of the evidence to support a jury finding. See TEX. R. CIV. P. 324(b)(2), (3); Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991). See also In re M.X.R., No. 04-20-00042-CV, 2020 Tex. App. LEXIS 4063, at *7 (Tex. App.—San Antonio May 27, 2020, no pet.) (mem. op.) (citing In re A.J.L., 136 S.W.3d 293, 301-02 (Tex. App.—Fort Worth 2004, no pet.)); In re D.T., 593 S.W.3d 437, 439 (Tex. App.—Texarkana 2019, pet. filed 3-12-20). The period in which to file a motion for new trial is a "critical stage of the proceeding." See Cooks v. State, 240 S.W.3d 906, 908 (Tex. Crim. App. 2007). See generally In re J.O.A., 283 S.W.3d 336, 343 (Tex. 2009).
A motion for new trial is not required to preserve a factual sufficiency complaint following a bench trial. See In re A.G.B., No. 04-19-00711-CV, 2020 Tex. App. LEXIS 550, at *1 n.1 (Tex. App.—San Antonio Jan. 22, 2020, no pet.) (mem. op.).
In the trial court, the parents were provided with appointed counsel. Subsequent to the return of the jury's verdict, but before the entry of a formal order of termination, trial counsel filed a motion to withdraw on February 28, 2020, simultaneous with a notice of appeal. The trial court granted counsel's motion to withdraw on March 2, 2020, but did not sign the termination order until the next day—March 3, 2020. On that day, the thirty-day time period in which to file a motion for new trial commenced.
On March 10, 2020, the Department filed a written objection to the parents' claim of indigence on appeal and they were compelled to retain appellate counsel. On March 16, 2020, retained counsel made an appearance in this court. Notwithstanding the fact that termination proceedings follow an accelerated timetable, the deadline in which to file a motion for new trial remains "prior to or within thirty days after the judgment or other order complained of is signed." TEX. R. CIV. P. 329b(a). Thus, the deadline for the parents to file a motion for new trial was April 2, 2020. Newly retained appellate counsel had seventeen days from the date of entering an appearance in this court in which to file a motion for new trial in the trial court to preserve any factual insufficiency complaints. Furthermore, in that regard, the parents cite this court to In re M.S., 115 S.W.3d at 545, for the proposition that the filing of "such a motion is not a difficult task," yet none was filed. Under these circumstances, appointed trial counsel cannot be characterized as being ineffective for failing to file a motion for new trial before the termination order was signed and after he had already been permitted to withdraw by the trial court. In addition, the parents had the benefit of retained appellate counsel during this "critical stage of the proceeding" who could have filed a motion for new trial. Under these facts, the failure to file a motion for new trial results in a procedural default of any factual insufficiency complaints.
Even though an appeal had already been perfected, the trial court had plenary power to rule on a motion for new trial. See TEX. R. APP. P. 329b(d).
As a general rule, the Texas Supreme Court has held that due process considerations do not require setting aside procedural rules. See In re M.S., 115 S.W.3d at 546 (citations omitted). However, under certain circumstances, "the failure to preserve a factual sufficiency question may very well rise to the level of a due process violation . . . ." The factors in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), could require an appellate court to review an unpreserved complaint of error to ensure that procedural rules comport with due process. Mathews, 424 U.S. at 335, 96 S. Ct. 893, 47 L. Ed. 2d 18. Having reviewed the entire record, we do not find that the parents suffered a due process violation that would require setting aside the procedural rules in this case.
Regarding the parents' claims of ineffective assistance, appellate counsel presents a thorough, well-reasoned analysis. However, one of the critical components in reviewing a claim of ineffective assistance of counsel is the presumption afforded counsel of reasonable professional assistance. An appellant bears the onerous burden of overcoming that presumption. In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—El Paso 2013, no pet.). Where, as here, trial counsel was not given the opportunity to defend his trial strategy or explain his professional decisions, we may not engage in speculation to find that counsel's representation was deficient. Id.
The parents' ineffective assistance claims are primarily directed at the failures of trial counsel to object to inadmissible hearsay statements and testimony regarding the credibility of the children. They further complain that trial counsel did not properly authenticate medical records to dispel accusations that the parents did not seek medical treatment for the children's injuries. A successful challenge to an evidentiary ruling usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. See Texas Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). To succeed on a claim of ineffective assistance for trial counsel's failure to object, the party must show that the trial court would have erred in overruling those objections. See In re E.F.P., No. 11-19-00330-CV, 2020 Tex. App. LEXIS 3698, at *8 (Tex. App.—Eastland April 30, 2020, no pet.) (mem. op.). See also F.R. v. Tex. Dept of Family & Protective Servs., No. 03-17-00487-CV, 2017 Tex. App. LEXIS 11681, at *24 (Tex. App.—Austin Dec. 15, 2017, no pet.) (mem. op.). On a silent record, we decline to find that trial counsel was ineffective for failing to make certain objections.
One critical piece of evidence complained about was the recordings of the children's forensic interviews which were admitted into evidence without objection. The parents argue that trial counsel's failure to follow the procedure in section 104.006 of the Texas Family Code to exclude those recordings constituted ineffective assistance and resulted in an improper verdict. TEX. FAM. CODE ANN. § 104.006 (West 2019). This argument, however, presumes the trial court would have excluded the recorded forensic interviews.
Section 104.006 outlines the procedure for admission of statements of abuse by a child under twelve years old and permits the admission of hearsay statements by child abuse victims in termination-of-parental-rights proceedings. The statute provides that, under certain circumstances, a statement made by a child twelve years of age or younger that describes abuse against a child is admissible. It allows admission of such a statement if the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement's reliability and (1) the child testifies or is available to testify at the proceeding in the court, or in any manner provided for by law or (2) the court determines that the use of the statement in lieu of the child's testimony is necessary to protect the welfare of the child.
Initially, we observe that the record reflects trial counsel presented a zealous defense of both parents. From his opening statement to his closing statement and in between, counsel accused the children of fabricating the abuse to avoid getting into trouble. He vigorously cross-examined all of the Department's witnesses. He made numerous hearsay and other objections throughout the trial, some of which were sustained. He also urged a motion for directed verdict for the father on two separate occasions.
What the record does not reflect is trial counsel's strategy for not objecting to admission of the recordings of the forensic interviews and other statements. When counsel is not afforded an opportunity to explain his strategy before being denounced as ineffective, we should not find deficient performance unless the conduct was "so outrageous that no competent attorney would have engaged in it." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
Section 104.006 of the Family Code is similar to article 38.072 of the Texas Code of Criminal Procedure which allows admission of a hearsay statement by a child victim of sexual abuse. TEX. CODE CRIM. PROC. ANN. art. 38.072 (West Supp. 2019). Under article 38.072, the trial court may hold a hearing outside the jury's presence to determine the reliability and admissibility of a statement. Art. 38.072, Sec. 2(b)(2).
In Lopez v. State, 315 S.W.3d 90, 96-97 (Tex. App.—Houston [1st Dist.] 2010), rev'd, 343 S.W.3d 137, 144 (Tex. Crim App. 2011), an appellant made a claim of ineffective assistance for his counsel's failure "to raise the provisions of section 38.072 of the Code of Criminal Procedure and limit the amount of hearsay that could be admitted." Id. at 96. Lopez involved a case of aggravated sexual assault where the only issue at trial was the credibility of the victim. Several witnesses, other than the victim, testified to details of the sexual assault. Id. at 98. The record was silent, however, on counsel's strategy for allowing the State to present hearsay testimony from multiple witnesses. Id. at 99. The First Court of Appeals held that where credibility was the only issue, trial counsel's failure to object to such extensive improper testimony fell below an objective standard of reasonableness, found that counsel was ineffective, and reversed the appellant's conviction. Id. at 99.
On petition for discretionary review, the State challenged the First Court's decision "in the face of a silent record and without an explanation from trial counsel." Lopez v. State, 343 S.W.3d 137, 141 (Tex. Crim. App. 2011). The Court of Criminal Appeals agreed that reversal of the conviction on a finding of ineffective assistance of counsel based on a silent record was erroneous. The Court recognized the "difficult hurdle to overcome" in evaluating a claim of ineffective assistance of counsel when the ineffectiveness is not apparent in the record. Id. at 143.
Similar to the claim raised in Lopez, here, the parents claim that trial counsel's failure to request a hearing under section 104.006 deprived them of the effective assistance of counsel. Given the facts of this case, it is not unreasonable to ponder whether trial counsel chose not to pursue the procedures of section 104.006 out of concern that the trial court could have found the children's statements reliable and possibly have had them testify. The recordings of the forensic interviews are disturbing. The twins are very emotional in their vivid descriptions of the abuse and the younger brother is defensive and confrontational. Counsel may have strategized that limiting or minimizing any attention to the children's statements may have been less harmful to his defense. Without any explanation from counsel on his sound trial strategy, this court will not denounce his representation as falling below an objective standard of reasonableness.
Although parents in a termination case have the right to effective assistance of counsel, that right does not ensure the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Based on the totality of appointed counsel's representation, we cannot say that his performance fell below an objective standard of reasonableness sufficient to satisfy the first prong of Strickland. Accordingly, the parents' challenges to trial counsel's performance as being ineffective are overruled.
Having found that the record does not support a claim of ineffective assistance of counsel, we need not address the unpreserved factual sufficiency complaints.
The parents also complain of counsel's failure to raise the statutory defense provided in section 161.001(d) to their failure to comply with the provisions of a court order. Our disposition of the ineffective assistance claims moots consideration of whether the defense should have been raised. TEX. FAM. CODE ANN. § 161.001(d) (West Supp. 2019).
CONCLUSION
The trial court's Order of Termination is affirmed.
Patrick A. Pirtle
Justice