In the INTEREST OF J.M.O.
2014 Tex. App. LEXIS 13168
Tex. App.2014Background
- Father (Joe O.) was incarcerated in a state-jail facility; termination hearing occurred May 27, 2014, while he remained incarcerated and was not present.
- Appointed counsel also did not appear at the hearing; the court clerk left a voicemail for counsel and counsel later acknowledged he had been in another courtroom and was late.
- The trial proceeded with only one witness, the Department caseworker, who testified the child had been with maternal great-aunt since October 2013, the plan was adoption, father had no contact, had not completed or signed services, and was incarcerated until July 2015.
- The trial court terminated father’s parental rights based on that testimony.
- Appointed counsel filed a post-termination motion to reconsider admitting he failed to arrange a teleconference/video link for the incarcerated client and that his absence was his fault; the trial court denied relief.
- The Fourth Court of Appeals reversed and remanded, holding father was deprived of effective assistance of counsel because counsel failed to appear at a critical stage and no reasonable strategic basis supported that failure, warranting a presumption of prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether father was deprived of effective assistance of counsel because appointed counsel failed to appear at the termination trial | Counsel’s absence denied father meaningful representation; counsel failed to arrange client participation from jail | State: no showing counsel’s absence was nonstrategic or prejudicial; outcome would not change | Court: Counsel’s nonappearance was deficient; Cronic presumption of prejudice applies; reversal and remand |
Key Cases Cited
- In re M.S., 115 S.W.3d 534 (Tex. 2003) (statutory right to appointed counsel in termination cases includes right to effective assistance and Strickland standard applies)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance standard: deficient performance and prejudice)
- United States v. Cronic, 466 U.S. 648 (1984) (presumption of prejudice when counsel is absent at a critical stage)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (discussing deference to counsel and record-based ineffective-assistance review)