INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS (termination of parental rights)
Ineffective Assistance of Counsel
Appellant also argues that she received ineffective assistance of counsel. Ineffective assistance of counsel
claims are not subject to the procedural rules of Family Code section 263.405. See In re J.O.A., 283 S.W.3d
336, 339 (Tex. 2009).
We review claims of ineffective assistance of counsel in termination cases under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). In re M.S., 115 S.W.3d 534, 545 (Tex. 2003). Under Strickland,
an appellant must establish that (1) trial counsel’s representation was deficient; and (2) the deficient
performance was so serious that it deprived the appellant of a fair trial. Strickland, 466 U.S. at 687; In re M.S.,
115 S.W.3d at 545. To statisfy these prongs, the appellant must establish by a preponderance of the evidence
that (1) counsel’s representation fell below the objective standard of prevailing professional norms; and (2)
there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been
different. Strickland, 466 U.S. at 690-94. A reasonable probability is one sufficient to undermine confidence in
the outcome of the trial. Id. at 694. Any allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness. In re K.K., 180 S.W.3d 681, 685 (Tex.
App.—Waco 2005, no pet.).
When reviewing a claim of ineffective assistance of counsel, we look to the totality of the representation and not
to isolated instances of error or to a single portion of the trial. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999); Rivera-Reyes v. State, 252 S.W.3d 781, 788-89 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). Appellate review of trial counsel’s representation is highly deferential and presumes that counsel’s
actions fell within the wide range of reasonable and professional assistance. Garza v. State, 213 S.W.3d 338,
348 (Tex. Crim. App. 2007).
If the reasons for counsel’s conduct at trial do not appear in the record and it is at least possible that the
conduct could have been grounded in legitimate trial strategy, we will defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal. Id. To warrant reversal when trial counsel has not
been afforded an opportunity to explain those reasons, the challenged conduct must be “‘so outrageous that no
competent attorney would have engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App.
2007), cert. denied, 552 U.S. 920 (2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for
finding counsel constitutionally deficient. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
Appellant argues that her trial counsel was ineffective because he did not “bother to cross-examine” DFPS’s
sole witness, Hayes. Appellant argues that her trial counsel should have asked the following:
Ms. Hayes testified about a recommended follow through after Appellant’s psychological examination but has
not asked what. She testified without details in the visits of Appellant, nothing about whether Appellant was
appropriate. Nothing was asked about her moves, or why she was unstable and why she had an inability to
care for the children. Nothing was asked for details on why [D.D.C.] and [S.L.H.C.] are thriving.
Contrary to appellant’s assertion, appellant’s trial counsel questioned Hayes at trial. Appellant’s trial counsel
asked Hayes if she had had any recent contact with appellant; Hayes testified that she had not. This testimony
was consistent with evidence that had been introduced indicating that appellant had not provided DFPS with her
current contact information. Appellant’s trial counsel also questioned Hayes regarding placement of the
children with a maternal relative as requested by appellant.
Appellant cannot satisfy Strickland’s first prong by showing by a preponderance of the evidence that trial
counsel’s representation fell below an objective standard of reasonableness based on prevailing professional
norms. See Rivera-Reyes, 252 S.W.3d at 788-89. Appellant failed to specify what testimony would have been
introduced by asking the above referenced questions. Further, the record contains no evidence regarding the
trial strategy of appellant’s trial counsel. Therefore, the record does not rebut the presumption that trial counsel’
s actions and decisions were reasonably professional and were motivated by sound trial strategy. See id.
We overrule appellant’s third issue.
In Interest of KLAC (pdf) (Tex.App.- Houston [14th Dist.] Jan. 21, 2010)(Boyce)
(termination of parental rights affirmed, ineffective assistance of counsel claim overruled)
AFFIRMED: Opinion by Justice Boyce
14-08-00960-CV In the Interest of K.L.A.C., D.D.C., and S.L.H.C
Appeal from 315th District Court of Harris County
Trial Court Judge: MICHAEL H. SCHNEIDER
The two-pronged Strickland analysis applies to claims of ineffective assistance of counsel in termination cases
In re M.S., 115 S.W.3d. at 545 (applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)).
To establish ineffective assistance of counsel under Strickland, the complaining parent must show by a
preponderance of the evidence her counsel’s performance was deficient and the deficient performance
deprived the parent of a fair trial. Id. There is a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, including the possibility that counsel’s actions are strategic. In re
H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). The parent’s burden is to show that counsel’s performance fell below
an objective standard of reasonableness. In re M.S., 115 S.W.3d at 549. Allegations of ineffective assistance
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.
In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.).
In Interest of R.S. (Tex.App.- Houston [14th Dist.] Oct. 1, 2009)(per curiam)
(termination of parental rights affirmed)(termination grounds and best interest factors,
ineffective assistance of counsel claim rejected where client did not cooperate)
AFFIRMED: Per Curiam
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-01013-CV In the Interest of R.S.
Appeal from 310th District Court of Harris County
Trial Court Judge: Lisa A. Millard
The Department asserts that appellant is estopped from claiming ineffective assistance of counsel after refusing
to cooperate with her attorney in preparing for trial. Appellant directed her attorney not to represent her at trial.
She filed pro se pleadings, and she failed to appear for trial after evidence showed she was aware of the trial
setting. For a party to be estopped from asserting a position in an appellate court based on actions it took in
the trial court, the party must have unequivocally taken a position in the trial court that is clearly adverse to its
position on appeal. In re Dep’t of Fam. & Prot. Servs., 273 S.W.3d 637, 646 (Tex. 2009). Appellant’s actions
thwarted her counsel’s efforts at trial. Appellant also could be said to have invited any error by her counsel. The
invited error doctrine applies to situations where a party requests a specific ruling or action, then complains of
that action on appeal. Id. The intentional withholding of information by a client cannot result in an ineffective
assistance of counsel claim. See Rodriguez v. State, 74 S.W.3d 563, 568-69 (Tex. App.—Amarillo 2002, pet. ref’
d). Appellant refused to cooperate with counsel and did not want her representation; thus, she should not
benefit from a reversal based on counsel’s actions at trial.
We conclude appellant’s appointed counsel did not provide ineffective assistance of counsel under the facts
presented here. Appellant’s third issue is overruled.
In re Walker II (Tex. App. - Houston [14th Dist.] May 8, 2008)(per curiam)
(mandamus re order to respond to ineffective assistance of counsel claim)
MOTION OR WRIT DENIED: Per Curiam
Before Justices Brock Yates, Anderson and Brown
14-08-00347-CV In Re James Andrew Walker, II
Appeal from 240th District Court of Fort Bend County
Trial Court Judge: Thomas Ralph Culver
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