in the Interest of J.D.R., a Child
04-16-00076-CV
| Tex. App. | Jul 13, 2016Background
- Mother (Patricia) had parental rights to infant J.D.R.; Department filed to terminate and sought conservatorship.
- At birth, child tested positive for amphetamines and opiates; mother admitted regular methamphetamine and Hydrocodone use during pregnancy and left the hospital without visits.
- Patricia largely avoided the Department and court proceedings, was a fugitive on a federal warrant, and had not attended any prior hearings; contact with her was first made the day before trial.
- At the bench trial Patricia’s counsel announced “not ready,” citing Patricia’s incarceration and inability to secure telephonic participation; the trial court treated this as a motion for continuance and denied it.
- The trial court terminated Patricia’s parental rights and appointed the Department permanent managing conservator; Patricia appealed, arguing denial of continuance (right to participate) and ineffective assistance of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denying continuance (from counsel’s “not ready” announcement) violated Patricia’s right to participate | Patricia: Trial court erred by proceeding despite counsel’s announcement; she was effectively denied participation | Trial court: Announcement failed to comply with Rule 251 (no written/verified motion); delays had already prejudiced child; Patricia repeatedly evaded proceedings | Court: No abuse of discretion; oral “not ready” without affidavit fails Rule 251, so denial proper |
| Whether counsel was ineffective for failing to secure Patricia’s participation or file proper motions | Patricia: Counsel should have secured telephonic appearance, filed verified continuance, and given facts to preserve issue | Respondent: Counsel’s actions fall within reasonable strategy given Patricia was a fugitive who avoided contact; record fails to show prejudice | Court: Strickland standard not met; counsel not shown deficient nor prejudicial—claim fails |
Key Cases Cited
- In re R.F., 423 S.W.3d 486 (Tex. App.—San Antonio 2014) (treats oral “not ready” as motion for continuance and discusses preservation/Rule 251 requirements)
- In re M.S., 115 S.W.3d 534 (Tex. 2003) (applies Strickland standard to parental-rights termination proceedings)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance: deficient performance and prejudice)