In the Interest of K. M.H--Appeal from 300th District Court of Brazoria County

Affirmed and Majority and Concurring Opinions filed July 14, 2005

Affirmed and Majority and Concurring Opinions filed July 14, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00458-CV

____________

IN THE INTEREST OF K.M.H.

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 23903*RH03

C O N C U R R I N G O P I N I O N

I agree with the majority=s conclusion that Hoback failed to prove ineffective assistance of counsel in this case. However, I write separately to express my disagreement with the majority=s analysis in reaching that conclusion.

Request for Jury Trial

The majority simply states that Hoback=s second appointed trial counsel did not request a jury on his behalf. I do not think it is clear that no such request was made. The record shows that on February 10, 2004, the trial court signed an order appointing new counsel for both Hoback and Kite. Apparently, new counsel was confused, thinking she represented only Kite, and filed a written jury request on her behalf only on February 27, 2004. At a pretrial hearing on March 9, 2004, counsel renewed her Aearlier@ request for a jury trial. The court clarified that counsel in fact represented both parents and then denied all her various motions, including the jury request, and the termination hearing was held on March 15, 2004. Given that the trial court denied counsel=s oral motions after clarifying that she represented both parties, the record could be interpreted that trial court considered counsel=s request as applying to both parties.

AThe right to jury trial is one of our most precious rights, holding >a sacred place in English and American history.=@ Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997) (orig. proceeding) (quoting White v. White, 196 S.W. 508, 512 (Tex. 1917)). Restrictions placed on that right will be subjected to the utmost scrutiny. In re J.C., 108 S.W.3d 914, 917 (Tex. App.CTexarkana 2003, no pet.). Given the ambiguous circumstances and the importance of the right to a jury trial, I would find that counsel did in fact request a jury for Hoback, albeit untimely.

Though whether to try a case to a judge or jury is a strategic choice, once the decision is made to request a jury, it should be done timely. Making an untimely jury demand is not a reasonable strategic choice. Cf. Batiste v. State, 834 S.W.2d 460, 466 (Tex. App.CHouston [14th Dist.] 1992) (finding trial counsel=s performance deficient because he did not raise his Batson challenge timely), aff=d, 888 S.W.2d 9 (Tex. Crim. App. 1994). Thus, I would conclude that, because her jury request was untimely, her performance was deficient under the first prong of Strickland. Strickland v. Washington, 466 U.S. 668, 687 (1984); In re M.S., 115 S.W.3d 534, 545 (Tex. 2003).

Having found deficient performance, I would next analyze whether Hoback was harmed by the deficiency. Strickland, 466 U.S. at 687; In re M.S., 115 S.W.3d at 545; see also Johnson v. State, __ S.W.3d __, No. PD-1623-03, 2005 WL 1225158, at *5 (Tex. Crim. App. May 25, 2005) (holding that Strickland harm analysis applies to all misconduct claims flowing from conduct of defense counsel unless claims involve a complete denial of counsel, a conflict of interest, or a structural defect[1]). The majority states that Hoback was not harmed because Athe record reflects no material issues of fact existed and an instructed verdict would have been justified.@ While that is the harm standard for denial of a jury trial in a typical civil case, see Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex. 1991), I disagree that we should apply that standard to a claim alleging ineffective assistance of counsel based on an untimely jury request in a case involving the termination of parental rights. The parent-child relationship is one of constitutional dimension, and a termination decree is complete, final, and irrevocable. In re V.R.W., 41 S.W.3d 183, 189B90 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Parental rights termination cases involve inherent discretion by the fact finder to decide, even if all acts alleged in support of the termination are true, whether termination is in the best interest of the child at that point in time. Rather, I would apply the typical ineffective assistance of counsel standard and find harm if the deficient performance undermined confidence in the outcome of the proceeding. See Strickland, 466 U.S. at 694; see also In re B.W., No. 14-03-00068-CV, 2004 WL 2749138, at *5 (Tex. App.CHouston [14th Dist.] Dec. 2, 2004, pet. denied) (mem. op.) (applying Strickland harm standard to ineffective assistance of counsel claim based on failure to request a jury in a parental termination case).

Even under this standard, I would conclude that Hoback has not shown harm. He does not explain how he was prejudiced by the failure to request a jury, stating only that AHoback should not have been terminated without the benefit of a jury trial.@ That is insufficient to undermine confidence in the outcome of the proceeding. Thus, I agree with the majority=s ultimate conclusion that Hoback has not shown ineffective assistance of counsel based on counsel=s untimely request for a jury trial.

Presence at Trial

The majority analyzes an inmate=s right to appear at a termination hearing under the typical standard for granting or denying a request for a bench warrant. I believe this standard does not adequately protect the rights of the parent and thus does not apply in the termination context.[2] Termination is a serious proceeding, and a parent=s presence, or lack thereof, can be quite significant, especially for an incarcerated parent. As the Texarkana Court of Appeals has explained,

The absence of a parent at the trial to terminate his or her parental rights is prejudicial to the parent. The parent=s absence could leave the fact-finder with the impression that the proceeding is not important to the parent. Furthermore, because of the obvious negative connotations associated with a parent who is incarcerated, it is important for the fact-finder to witness the demeanor and credibility of the parent. In short, the presence, or nonpresence, of the parent in the courtroom at his or her termination hearing is vital to the fact-finder=s decision to terminate a parent=s rights to his or her child.

In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.CTexarkana 2003, no pet.). Thus, I believe that, absent extraordinary circumstances, any request on behalf of an incarcerated parent to be present at a termination hearing should be granted.

Despite the importance of a parent=s presence at a termination hearing, a strategic choice not to appear is possible. In the motion for new trial hearing, Hoback=s counsel seemed to imply that her failure to secure Hoback=s presence was an oversight or mistake. However, CPS pointed out that the record actually was silent on whether this was a tactical decision, and Hoback=s counsel did not put on any evidence to the contrary or respond to that argument in any way, though having the opportunity to do so. At best, the record is conflicting regarding whether the failure to request a bench warrant was strategy or mistake, and in reviewing allegations of ineffective assistance of counsel, we presume competent performance. In re M.S., 115 S.W.3d at 545. Because the record here is insufficient to overcome the presumption of competence, I agree that Hoback cannot show ineffective assistance of counsel based on the failure to secure his presence at the termination hearing.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Majority and Concurring Opinions filed July 14, 2005.

Panel consists of Justices Yates, Anderson, and Hudson (Hudson J., joining concurrence) (Anderson J., majority).

[1] The Court of Criminal Appeals has held that structural defects are only those so labeled by the United States Supreme Court, which does not include the errors at issue in this case. See Johnson, 2005 WL 1225158, at *7; Gray v. State, 159 S.W.3d 95, 96B97 (Tex. Crim. App. 2005).

[2] The case the majority relies upon, In re Z.L.T., 124 S.W.3d 163 (Tex. 2003), involves a petition to establish paternity rather than the termination of parental rights.