IN THE INTEREST OF T.W., A CHILD
No. 07-18-00056-CV
Court of Appeals Seventh District of Texas at Amarillo
August 9, 2018
On Appeal from the County Court at Law No. 1 Randall County, Texas Trial Court No. 69,993-L1, Honorable Jack M. Graham, Presiding
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Because neither party questions the sufficiency of the evidence underlying the jury‘s verdict to terminate the parental relationship, we forgo a factual recitation of the case. Instead, our attention will turn to the issues raised.
Issue One – Dismissal of the Action Due to Expiration of Anniversary Date
Both J.D. and E.K. assert that the termination suit should have been dismissed because the trial did not begin within one year of the Department of Family and Protective Services (Department) being appointed temporary managing conservator of T.W. We overrule the issue.
Statute requires that trial of termination proceedings commence before the first Monday after the first anniversary of the date the Department was appointed temporary managing conservator of the child.
date of trial, and 2) making additional temporary orders for the safety of the child as needed to avoid delay in the suit‘s resolution.
Here, the trial court appointed the Department as temporary managing conservator over T.W. on April 27, 2016. Thus, the first anniversary date was April 27, 2017. Additionally, trial on the merits was scheduled for April 26, 2017. Two days before the 26th, J.D. and E.K. jointly moved the court to forgo the April 26th setting, retain the proceeding on its docket, and set a new trial date. They sought the delay so they could have additional time to complete services upon which their anticipated custody of T.W. depended. The motion was considered and granted on April 24, 2017, as evinced by an entry on the trial court‘s docket. See Cadles of Grassy Meadow, II, LLC v. Herbert, No. 07-09-00190-CV, 2010 Tex. App. LEXIS 3147, at *12 (Tex. App.—Amarillo Apr. 27, 2010, no pet.) (mem. op.) (stating that a docket entry may supply facts in certain situations but cannot be used to contradict a final judicial order). Furthermore, this decision was followed by a written order issued ten days later. Therein, the trial court designated October 28, 2017, as the new dismissal date. Omitted from the decree, however, was mention of a trial date or the extraordinary circumstances underlying the decision to retain the cause on the docket.
Authority holds that one who moves for an extension of the dismissal date both agrees to the extension contemplated within
Since J.D. and E.K. moved for and received the extension, both agreed to it and neither can complain.
And, assuming arguendo that something were wrong with the manner of and time within which the trial court retained the cause on its docket, J.D. and E.K. were obligated to move the court to dismiss the suit before trial began.
Issue Two – Dismissal Due to Expiration of New Dismissal Date
J.D. and E.K. next assert that the cause should have been “automatically dismissed” because trial had not begun within the extended time period, that is, before October 28, 2017. We overrule the issue.
Reference to automatic dismissal first appeared in the 2017 amendments to
We also observe that the trial court called the suit for “final hearing” on October 17, 2017, and heard the testimony of a witness. The proceeding was then recessed to January 16, 2018, with the complete acquiescence of the parties. These circumstances appear in a supplemental reporter‘s record which this Court was obligated to obtain sua sponte. Having begun on October 17th, trial occurred within 180 days of the April 27th anniversary date.
Issue Three – Ineffective Assistance
J.D. and E.K. finally contend that their respective trial counsels were ineffective because they did not move to dismiss the cause. We overrule the issue.
An indigent parent is entitled to appointed counsel in termination cases, and that entitlement includes the right to effective counsel. In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010). In assessing whether counsel was effective, the standard used is that applied in the criminal arena. In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003); In re L.G., No. 07-14-00365-CV, 2015 Tex. App. LEXIS 3017, at *11–12 (Tex. App.—Amarillo Mar. 26, 2015, no pet.) (mem. op.). Though that standard has two prongs, see In re J.T.B., 2011 Tex. App. LEXIS 108, at *10 (describing the prongs as ineffectiveness coupled with prejudice), the one determinative here pertains to the quality of counsel‘s performance. It requires us to consider all the circumstances surrounding the proceeding and focus on whether the attorney performed in a reasonably effective manner. Id. And, unless those circumstances indicate that counsel‘s actions were so outrageous that no competent attorney would have engaged in them, the attorney was not ineffective. In re L.G., 2015 Tex. App. LEXIS 3017, at *12. Finally, claims of ineffective assistance must also be firmly founded in the record, In re J.T.B., 2011 Tex. App. LEXIS 108, at *10–11, and the burden to prove them lies with the complaining party. See In re M.S., 115 S.W.3d at 545.
An attorney is not ineffective per se for simply neglecting to move to dismiss a termination proceeding; there may well be a reasonable trial strategy underlying the decision. See In re J.T.B., 2011 Tex. App. LEXIS 108, at *11. Here, nothing of record
illustrates why trial counsel did not ask the trial court to dismiss the suit for purported noncompliance with
Accordingly, we overrule the issues and affirm the trial court‘s judgment terminating the parent-child relationship between J.D., E.K., and their biological child T.W.
Brian Quinn
Chief Justice