In the Interest of R.H. and S.H.--Appeal from 359th District Court of Montgomery County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-124 CV
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IN THE INTEREST OF R.H. AND S.H.
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 05-11-10004-CV
MEMORANDUM OPINION

We must decide two issues in this parental-rights termination case. We must determine whether fundamental error occurred when certain statutory deadlines were not satisfied after the children were taken into protective custody. Second, we must decide whether the parents were denied the effective assistance of counsel because at trial their attorneys failed to object to the participation of an attorney for the foster parents. We overrule both issues raised by the parents and affirm the trial court's judgment.

 

Background

Appellants, Virginia Hood and Robert Hood (the "Hoods"), are the parents of R.H. and S.H., the children who are the subject of this suit. (1) On October 20, 2005, the Texas Department of Family and Protective Services (the "Department") removed the children from the Hoods' custody without first obtaining a court order. The Department filed its original petition to terminate the Hoods' parental rights on November 10, 2005. On that same day, the trial court approved the Department's emergency removal, entered emergency temporary orders, and scheduled a date for the full adversary hearing. The trial court also appointed separate counsel for Virginia and Robert. On November 22, 2005, the trial court conducted a hearing, heard the testimony presented by the parties, and appointed the Department as temporary managing conservator. (2) No written order regarding this hearing appears in the record.

The Department previously removed the children from the Hoods in March 2004. After counseling and completion of other tasks required by the Department, the children were returned to the Hoods sixteen months later on July 22, 2005. During this period, the children were placed in the foster home of Lisa and Salvador Vasquez. In the subsequent October 2005 removal that is the subject of this dispute, the children were again placed in the Vasquezes' home.

After a bench trial, the trial court terminated the Hoods' parental rights on March 17, 2006. We do not find in the record that the Hoods complained of the Department's timing with respect to the removal of the children or the progression of the case, including the Department's failure to provide them with a family service plan. (3) Soon after trial, the Hoods filed notices of appeal and sought the appointment of new appellate counsel. Neither party filed a motion for new trial.

On appeal, the Hoods complain of two issues. First, the Hoods assert that their due process rights were violated by:

a. the Department's failure to timely file its original petition affecting the parent-child relationship and the trial court's failure to conduct the initial hearing no later than the first working day after October 20, 2005;

b. the trial court's failure to order the return of the children or issue an appropriate temporary order because it did not hold a full adversary hearing within fourteen days of October 20, 2005; and

c. the Department's failure to provide the Hoods with a service plan within forty-five days of the trial court's appointment of the Department as temporary managing conservator.

See Tex. Fam. Code Ann. 262.105; 262.106; 263.101 (Vernon 2002); 262.201 (Vernon Supp. 2006). Second, the Hoods assert their attorneys were ineffective because these procedural errors were overlooked and because the foster parents, without objection, were allowed to participate in the trial as intervenors.

Fundamental Error/Due Process Complaint

The Hoods complain that the Department's failure to follow the requirements set forth in sections 262.105, 262.106, 262.201, and 263.101 of the Family Code violated their due process rights. The Texas Supreme Court describes the relationship between a parent and a child as a constitutionally protected right "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). As a result, we carefully review child termination cases and strictly construe involuntary termination statutes in the parents' favor. See id. Nevertheless, the constitutional dimension of the parent-child relationship does not automatically override the procedural requirements for error preservation. See In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003).

Generally, to preserve error for appellate review, a party must present the complaint to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). Except in cases of recognized exceptions, even constitutional complaints occurring in the trial court are waived if not properly preserved. See B.L.D., 113 S.W.3d at 350. The Hoods failed to bring the complaints they now raise on appeal to the trial court's attention. To avoid the affect of their waiver, the Hoods argue that the complaints they now raise should be reviewed under the fundamental-error doctrine.

In B.L.D., the Texas Supreme Court refused to extend the fundamental-error doctrine to parental-rights termination cases and held that termination cases are unlike juvenile delinquency cases and do not apply criminal procedural or evidentiary rules. Id. at 351. With respect to the Hoods' due process complaints, the rules governing error preservation must be followed in cases involving termination of parental rights, as in other cases in which a complaint is based on constitutional error. See In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005), cert. denied, 126 S. Ct. 483 (2005). We hold that the fundamental-error exception does not apply to the complaints that the Hoods now attempt to raise for the first time on appeal, and that due process does not require that we review the Hoods' unpreserved complaints. We overrule the Hoods' first issue.

Ineffective Assistance of Counsel

The Hoods argue in their briefs that their attorneys were ineffective because they did not require strict compliance with the procedural requirements of the Family Code as described in their first issue. They further contend that their attorneys were ineffective because they failed to object to the foster parents' participation at trial. The Hoods assert that an intervention is a necessary prerequisite to the trial court's allowing the foster parents' participation in the trial court.

Applicable Law

The Texas Supreme Court has held that the statutory right to counsel in parental-rights termination cases includes the right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see also Tex. Fam. Code Ann. 107.013(a)(1) (Vernon Supp. 2006). In evaluating the effectiveness of counsel, the Court adopted the Strickland test that sets standards for effective assistance in criminal cases. See 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)).

Under Strickland, to prevail on a claim of ineffective assistance of counsel, an appellant must show that trial counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The appellant must successfully satisfy both prongs of the test. See M.S., 115 S.W.3d at 545.

To determine whether a trial attorney's performance was deficient, "we must take into account all of the circumstances surrounding the case, and must primarily focus on whether counsel performed in a 'reasonably effective' manner." Id. (quoting Strickland, 466 U.S. at 687). We must indulge in the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 689. Challenged conduct constitutes ineffective assistance only when the conduct is so outrageous that no competent attorney would have engaged in it. M.S., 115 S.W.3d at 545; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

To satisfy the second prong of the test, the appellant must show that his attorney's defective assistance caused harm. See M.S., 115 S.W.3d at 549-50. The test is whether "there is a reasonable probability that, but for counsel's unprofessional error(s), the result of the proceeding would have been different." Id. (quoting Garcia, 57 S.W.3d at 440).

Complaint Regarding Procedural Errors

The Hoods' trial attorneys' alleged ineffectiveness is not apparent from the record. Additionally, the Hoods provide no evidence that their trial attorneys rendered ineffective assistance by not objecting to the Department's failure to adhere to statutory guidelines. At the point the Department removed the children in October 2005, the children had only been in the Hoods' possession for the previous three months because of the Department's previous removal of the children in March 2004. Moreover, the Hoods' complaints do not undermine the jurisdiction of the court; they relate to the procedures to be followed upon a child's removal from his parents. Procedural complaints that cannot be remedied on appeal can generally be remedied through mandamus. See In re B.T., 154 S.W.3d 200, 207 (Tex. App.-Fort Worth 2004, no pet.); In re E.D.L., 105 S.W.3d 679, 687-89 (Tex. App.-Fort Worth 2003, pet. denied). The circumstances of this case include: 1) this was the Department's second removal of the children; 2) the Hoods had a pre-existing history with the Department; and 3) the Hoods received a trial on the merits of the termination case. Therefore, under these circumstances, the conduct of the Hoods' trial counsel was not unreasonable.

Failure to Object to Vasquezes' Participation at Trial

The Hoods' chief ineffective assistance of counsel claim concerns the court's allowing the foster parents' participation at trial as intervenors without first filing an intervention in the case. Lisa Vasquez testified that she filed a plea in intervention on November 7, 2005. However, the record before us does not contain any intervention. The Department filed its original petition in this case on November 10, 2005. Because the Department had filed a prior proceeding, it appears that the intervention mentioned in Lisa's testimony was likely filed in the prior case involving the first removal of the children.

The Hoods point to nothing specific in the record in support of their argument that an attorney's failure to object to the foster parents' participation at trial was so outrageous that no competent attorney would have failed to object. Rather, they generally state the harm was irreparable because the Vasquez family desired to adopt the children. Nonetheless, under these circumstances it is apparent that had the Hoods' attorneys objected, the trial court would have allowed the Vasquezes to correct the erroneous filing. See First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (intervention generally may be filed any time before judgment rendered). We also note that the Family Code specifically provides for the foster parents' involvement in matters concerning children under their care. See Tex. Fam. Code Ann. 102.003(a)(12) (Vernon Supp. 2006) (provides foster parents standing to file original petition for suit affecting parent-child relationship); see also Tex. Fam. Code Ann. 263.301(b) (Vernon 2002) (foster parents entitled to notice and right to present evidence and be heard at permanency hearing). Thus, a reasonable attorney could have anticipated the Vasquezes' participation in all facets of this case, including trial, and there is no showing that anyone was surprised that they were allowed to participate in the trial proceeding at issue.

The record in the court below shows no surprise. Counsel for the Hoods extensively cross-examined Lisa and lodged a number of objections to portions of her testimony. During opening and closing arguments, the attorneys for the Hoods attempted to use the Vasquezes' participation in the case to their advantage, and contended that the Vasquezes' participation reflected a bias because the Vasquezes' goal was to adopt the children. Even if the Vasquezes had not been a formal party to the case, the Department could have called Lisa as a witness at trial. A trial with Lisa's participation as a witness but not as a party would, as in this case, contain her considerable testimony regarding her involvement with the children. We hold that the Hoods have failed to overcome the presumption that their trial counsels' performances fell outside the range of reasonable assistance, and that their counsels' decisions were not tactical decisions. See M.S., 115 S.W.3d at 545. Therefore, we find that any failure to object to the Vasquezes' participation at trial did not result in ineffective assistance. Because the Hoods' counsels' failure to object to the Department's statutory compliance and the Vasquezes' participation at trial were not ineffective assistance, we need not address the harm prong of the Strickland test. See id. at 546. We overrule the Hoods' ineffective assistance of counsel issue and affirm the judgment of the trial court.

AFFIRMED.

 

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HOLLIS HORTON

Justice

 

Submitted on October 10, 2006

Opinion Delivered November 30, 2006

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Virginia Hood and Robert Hood separately appeal from the trial court's ruling. However, both Virginia and Robert are represented by the same appellate counsel and filed identical briefs with this Court. Therefore, we address their issues together.

2. The Supplemental Record indicates that a hearing occurred on November 22, 2006. We assume "2006" is a typographical error and that the hearing actually occurred on November 22, 2005.

3. The Department concedes no family service plan was provided in relation to the October 2005 removal; however, the Department argues a plan was not required under the circumstances.