in the Interest of K.K., L.M., M.M., and T.K., Children

IN THE TENTH COURT OF APPEALS No. 10-04-00303-CV In the Interest of K.K., L.M., M.M., and T.K., Children From the 361st District Court Brazos County, Texas Trial Court No. 03-000440-CV-361 memorandum opinion After a nonjury trial, the trial court terminated the parental rights of Becky King to her four children, K.K., L.M., M.M., and T.K. The court also terminated the parental rights of Major Eugene Moore to L.M. and M.M., who are his children. King and Moore (Appellants) appeal the order terminating their parental rights. We will affirm. Factual Background The four children were removed from Appellant King’s possession by the Department of Family and Protective Services on February 28, 2003. The Department became involved on reports of King’s neglectful supervision involving the children being left unsupervised or supervised by other young children, including an incident of several young children and infants left in the care of an 11-year-old child while the adults were out drinking for several hours. King was involved in at least one incident of domestic violence with her live-in boyfriend while the children were in her care, and King was aware of possible abuse of her children at the hands of her boyfriend and took no corrective action. Appellant Moore had knowledge of the neglect of his two children while they were in King’s care and knowledge of possible abuse at the hands of King’s boyfriend, but Moore took no action to protect his children and failed to report abuse to the authorities. The Department filed its petition to terminate Appellants’ parental rights on March 3, 2003, and the trial court appointed the Department emergency temporary sole managing conservator for the children. The trial court set a dismissal date of March 3, 2004 for the case, which was extended to September 3, 2004. A bench trial was scheduled for September 1, 2004. While the suit was pending, King was unable to maintain stable employment or housing, she continued her relationship with her abusive boyfriend, she was involved in criminal activity and drug use, and she exhibited an unstable emotional state. Moore did not maintain regular or significant contact with his children and showed limited parenting abilities or involvement when he visited. He did not complete or participate in many court-ordered services. A bench trial began on September 1, but after one day of testimony—and during the Department’s case-in-chief—it was recessed until September 15. Neither Appellant moved to have the case dismissed after the September 3 dismissal date. The trial court terminated Appellants’ parental rights in a September 29 order. Appellants, through their respective appointed appellate counsel, each assert in one issue that their appointed trial attorneys were ineffective because neither trial attorney moved the trial court to dismiss the termination proceeding in accordance with section 263.401 of the Family Code. See Tex. Fam. Code Ann. § 263.401(a) (Vernon 2002 & Supp. 2005). Applicable Law Section 263.401 requires dismissal of a termination suit if a final order has not been rendered on or before the first Monday after the one-year anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator of a child. Id. The trial court may, as it did here, extend the deadline for dismissal for up to 180 days, and it must dismiss the suit if a final order is not rendered on or before the new dismissal date; the trial court may not extend the deadline any more. Id. § 263.401(b) (current version at id. (Vernon Supp. 2005)). Section 263.402 prohibits the parties in a termination suit from extending the dismissal deadline by agreement, but provides that the deadline can be waived: A party to a suit under this chapter who fails to make a timely motion to dismiss or to make a motion requesting the court to render a final order before the deadline for dismissal under this subchapter waives the right to object to the court’s failure to dismiss the suit. A motion to dismiss under this subsection is timely if the motion is made before the department has introduced all of the department’s evidence, other than rebuttal evidence. Id. § 263.402(b) (Vernon 2002). If a timely motion to dismiss is made, the trial court is required to dismiss the suit. In re Ludwig, 150 S.W.3d 819, 824 (Tex. App.—Austin 2004, orig. proceeding); In re T.M., 33 S.W.3d 341, 346-47 (Tex. App.—Amarillo 2000, no pet.); In re Bishop, 8 S.W.3d 412, 416-20 (Tex. App.—Waco 1999, orig. proceeding). The gist of Appellants’ issues in this appeal is that, had their trial attorneys timely moved to dismiss the Department’s case, the trial court would have been required to grant their motions and dismiss the case. Appellants are correct. However, a case dismissed under section 263.401 can be refiled and the Department can assert the same grounds for termination, although it cannot use the same facts as those used in the dismissed case as the basis for again removing the children from the parent. T.M., 33 S.W.3d at 347; In re Ruiz, 16 S.W.3d 921, 927 (Tex. App.—Waco 2000, no pet.). This leads us to the issues in this appeal: did the trial attorneys provide ineffective assistance of counsel by not moving to dismiss the case during the recess, which extended past the September 3 dismissal deadline and was before the Department had presented all its evidence?[1] Ineffective Assistance of Counsel Indigent persons have a statutory right to counsel in parental-rights termination cases. Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2005). The Texas Supreme Court has held that this right includes the right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). In analyzing the effectiveness of counsel in a parental-rights termination case, we follow a two-pronged standard set forth by the United States Supreme Court in Strickland v. Washington to determine whether an attorney’s representation was so inadequate as to violate the right to effective assistance of counsel. M.S., 115 S.W.3d at 545 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show ineffectiveness of counsel in a termination case, the appellant must show (1) that counsel’s assistance fell below an objective standard of reasonableness and (2) that counsel’s deficient assistance, if any, prejudiced the defendant. Id. On the first element, the Texas Supreme Court quoted extensively from Strickland in a termination case: “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” “The purpose [of the Sixth Amendment’s effective assistance of counsel guarantee] is simply to ensure that criminal defendants receive a fair trial.” “Judicial scrutiny of counsel’s performance must be highly deferential.” “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” “A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” “The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” “The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” In re J.F.C., 96 S.W.3d 256, 280-81 (Tex. 2002) (quoting Strickland, 466 U.S. at 688-90, 104 S.Ct. at 2065-66) (footnotes omitted); see also M.S., 115 S.W.3d at 545. Strickland’s “record” requirement also applies to ineffective-assistance claims in termination cases: “An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” In re S.R.C., 2003 WL 22966325 at *2 (Tex. App.—Fort Worth Dec. 18, 2003, no pet.) (mem. op.) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). For example, the Dallas Court of Appeals has held that the appellants did not establish ineffective assistance in part because the record was silent on counsel’s reasons for the complained-of failures. In re J.W., 113 S.W.3d 605, 616 (Tex. App.—Dallas 2003, pet. denied) (citing Thompson, 9 S.W.3d at 813-14). 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. Because this inequity existed in this appeal, we abated and remanded the cause to the trial court for a hearing at which Appellants could develop an evidentiary record in connection with their ineffective assistance of counsel claims. See In re K.K., 180 S.W.3d 681 (Tex. App.—Waco 2005, order). Analysis Having received a supplemental reporter’s record and supplemental briefs, we will now address the merits of Appellants’ ineffective-assistance claims. Kent Schuster, King’s trial attorney, testified that he made a “calculated decision” not to request a dismissal, explaining that he evaluated the Department’s evidence presented on September 1 and was of the opinion that there was not sufficient evidence to terminate King’s parental rights. He also considered the Department’s case against Moore and explained that Moore and his trial counsel had a good argument that Moore could gain custody of his two children and that King could be allowed visitation with them. Schuster believed that requesting and obtaining dismissal would have placed King in a worse position once the Department filed a new case; he explained that the Department obtained additional evidence against King during the case’s pendency and that the case against Moore was based on facts that were later found to be untrue. Thus, Schuster opined that the Department would have had a stronger case for termination against King had a dismissal occurred and a new case been filed. Paige Osburn, Moore’s trial attorney, testified that she believed that it was in her client’s best interest to conclude the trial because she did not believe that enough evidence had been presented to terminate Moore’s parental rights; most of the evidence had been against King. She thought that, had she requested dismissal, Moore would not have obtained custody of his two children and the Department would have filed a new case. Osburn further explained that she believed that there were new grounds on which the Department could have refiled the case, and because of Moore’s noncompliance with his service plan throughout the case, he would have been in a worse position had a dismissal been granted and a new case filed. Osburn did not think that giving Moore a second chance at compliance with a service plan was a viable option. Both trial attorneys admitted that, at the time the trial was recessed on September 1, the Department had not put on its strongest witness, the Department caseworker. To summarize, it was the trial strategy of both trial attorneys not to request dismissal because they both thought that they had a good chance of prevailing on the merits as of the dismissal date. Both believed the best strategy was not to seek dismissal and to continue with the trial. Obviously, both were wrong on the outcome, but taking a calculated risk and getting an undesired result is not ineffective assistance per se, as we cannot allow hindsight to distort our assessment of counsels’ conduct.[2] See, e.g., Sendejo v. State, 26 S.W.3d 676, 678-80 (Tex. App.—Corpus Christi 2000, pet. ref’d) (counsel not ineffective where defense attorney chose to “roll the dice” with an “all-or-nothing” strategy). And while it is true that, absent new facts justifying removal, King would have been entitled to possession of the children had the case been dismissed, both trial attorneys agreed that King and Moore would have been in worse positions when the Department refiled the case, and on appeal neither King nor Moore assert that they would have prevailed in a second trial. We conclude that both trial attorneys had reasonable but unsuccessful trial strategies. In light of all the circumstances, failing to request dismissal was not outside the wide range of professionally competent assistance. We overrule Appellants’ ineffective assistance issues and affirm the trial court’s termination order. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment only.) Affirmed Opinion delivered and filed March 8, 2006 [CV06] [1] Cf. In re B.T., 154 S.W.3d 200, 206-07 (Tex. App.—Fort Worth 2004, no pet.) (trial counsel not ineffective in failing to move to dismiss on ground that trial started after one-year deadline had passed because father had requested continuance and extension and counsel could have reasonably concluded that father agreed to extension beyond one-year deadline); In re D.B., 153 S.W.3d 575 (Tex. App.—Amarillo 2004, no pet.) (where Department and private party sought termination, trial counsel was not ineffective in failing to file motion to dismiss Department’s proceeding because dismissal would not have altered termination judgment in private party’s favor). [2] We decline to establish a bright-line rule that failing to request dismissal of a termination case is ineffective assistance per se. Cf. In re D.J.J., 178 S.W.3d 424, 431-32 (Tex. App.—Fort Worth 2005, no pet. h.) (trial counsel ineffective in failing to preserve parent’s legal sufficiency complaints in motion for new trial because evidence was legally insufficient).