in the Interest of T.S.C., a Child

IN THE TENTH COURT OF APPEALS No. 10-06-00366-CV In the Interest of T.S.C., a Child, From the 13th District Court Navarro County, Texas Trial Court No. 04-00-13043-CV MEMORANDUM Opinion Appellant Scott R. Brezo appeals the trial court’s termination of his parental rights to his daughter, T.S.C. We will affirm. Background Brezo was arrested in Colorado approximately seven months after the birth of T.S.C. Following his arrest, Appellee Amanda Cassady Rollins and T.S.C. moved to Texas to live with Rollins’s parents, Carl and Sharon Cassady. On January 27, 2004, the Cassadys filed an Original Petition in Suit Affecting the Parent-Child Relationship in which they sought joint managing conservatorship with Brezo.[1] Prior to the temporary orders hearing, Brezo was convicted of solicitation of a minor for sexual contact. While on probation, he attended the hearing at which the trial court appointed the Cassadys, Rollins, and Brezo as joint managing conservators. Brezo also attended supervised visitation with T.S.C., as authorized by the temporary orders. He then returned to Colorado where he violated a condition of his probation and was incarcerated in June 2005. In November 2005, Rollins and the Cassadys filed their First Amended Petition in Suit Affecting the Parent-Child Relationship and Petition to Terminate Parent-Child Relationship. The trial court granted the petition to terminate Brezo’s parental rights. Grounds for Termination In his first issue, Brezo argues that the trial court erred in terminating his rights on a ground not pled in the petition for termination. His second issue complains that there is no evidence to support this unpled ground of termination. As grounds for termination, the petition alleged that Brezo had: (1) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child; (2) been convicted, placed on six years ISP Probation for Sex Offenders on July 13, 2004 in the First Judicial District of the State of Colorado, and subsequently violated a condition of probation and was sentenced to 5 years in the Colorado Department of Corrections; and (3) knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years. However, the trial court terminated Brezo’s parental rights after finding by clear and convincing evidence that he: (1) 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; and (2) knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed. We agree with Brezo that the judgment cannot be supported on the unpled ground that he failed to support T.S.C. See In the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.—Amarillo 1980, no writ); Tex. Fam. Code Ann. § 161.101 (Vernon 2002). However, if multiple grounds for termination were found in the trial court, we will affirm based on any one ground because only one predicate violation under section 161.001(1) is necessary to a termination judgment. In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied). Brezo does not challenge the remaining ground of termination, which was pled in the petition. As one ground is sufficient to support the judgment for termination, we overrule Brezo’s first and second issues. Ineffective Assistance of Counsel In his third issue, Brezo contends that his trial counsel was ineffective because he failed to object to hearsay testimony, which provided the only evidence in support of termination. Indigent persons have a statutory right to counsel in parental-rights termination cases. Tex. Fam. Code Ann. § 107.013(a)(1) (Vernon Supp. 2006). 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. Id. 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 parent. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). 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)). 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. Texas Family Code section 161.001(1)(Q) provides that a trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent knowingly engaged in criminal conduct that has resulted in the parent’s (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition. Tex. Fam. Code Ann. § 161.001(1)(Q) (Vernon Supp. 2006). Following his probation violation, Brezo was confined in June 2005, and the petition for termination was filed on November 1, 2005. At the time of trial, Brezo had been incarcerated for fourteen months. He complains that Rollin’s hearsay statement concerning the length of his sentence was the only evidence that he would remain incarcerated for ten additional months and would not be able to care for T.S.C. Nothing in the record reflects trial counsel’s strategy for failing to object to this testimony. Without a record that reveals the reasons for the challenged conduct of Brezo’s trial counsel, we cannot speculate whether his counsel was effective. Accordingly, we overrule his third issue. Conclusion Having overruled Brezo’s three issues, we affirm the judgment of the trial court. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed May 2, 2007 [CV06] [1] The Original Petition alleged that Ms. Rollins relinquished custody of the child. pellees’ counsel. The certificate of service on Smith’s responses indicates service in this fashion. However, Appellees’ counsel advised the court that he had never received the responses. At the hearing on Smith’s motion for new trial, Smith’s counsel explained that his secretary had inadvertently faxed the responses to only Fowler’s counsel. The responses were sent to Appellees’ counsel on April 7. A showing of clerical error has been held sufficient to establish good cause for a failure to timely respond to a request for admissions. See Spiecker, 971 S.W.2d at 540-42; Burden v. John Watson Landscape Illumination, Inc., 896 S.W.2d 253, 255-56 (Tex. App.—Eastland 1995, writ denied). Clerical error is the reason for Smith’s failure to timely respond. Thus, Smith established good cause for his failure to timely respond. Regarding undue prejudice, Appellees made no suggestion in the trial court and make none in their brief as to how they may be prejudiced by the withdrawal of the deemed admissions. “The mere fact that a trial on the merits is necessary does not constitute undue prejudice.” City of Houston v. Riner, 896 S.W.2d 317, 320 (Tex. App.—Houston [1st Dist.] 1995, writ denied); accord Spiecker, 971 S.W.2d at 542 (a litigant should not be permitted to use deemed admissions “to have judgment without supporting testimony when the case can be tried on the merits”). As the Supreme Court recently stated, the “presentation of the merits will suffer . . . if [Appellees] can prepare but the case is decided on deemed (but perhaps untrue) facts anyway.” Wheeler, 157 S.W.3d at 443 n.2; accord Kellogg-Brown & Root, 45 S.W.3d at 777; Burden, 896 S.W.2d at 256; Employers Ins. Of Wausau v. Halton, 792 S.W.2d 462, 467 (Tex. App.—Dallas 1990, writ denied). Smith showed good cause for the withdrawal of the deemed admissions. Appellees will not suffer undue prejudice from their withdrawal, and the presentation of the merits will be subserved by their withdrawal. Accordingly, the court abused its discretion by failing to permit the withdrawal of the deemed admissions. Thus, we sustain Smith’s fifth issue. Conclusion We do not reach Smith’s first, second, third, and fourth issues. Because Fowler did not appeal, we do not disturb the judgment against him. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450-51 (Tex. 1998) (per curiam); Builders Transport, Inc. v. Grice-Smith, 167 S.W.3d 1, 15 (Tex. App.—Waco 2005, pet. filed). We reverse the judgment against Smith both individually and dba B & B Joint Venture and remand this cause to the trial court for further proceedings consistent with this opinion. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Reversed and remanded Opinion delivered and filed October 12, 2005 [CV06] [1] Fowler did not perfect an appeal. [2] According to the clerk’s record however, no such motion was on file at that time.