
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00347-CV


Christine Schwertner and Enos Lara, Appellants

v.

Texas Department of Family and Protective Services, Appellee




FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 243,941-B, HONORABLE RICK MORRIS, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		Appellants Christine Schwertner and Enos Lara appeal a final order terminating their
parental rights to their three children, A.R.L., K.R.L., and N.L.  In a single issue on appeal,
Schwertner and Lara contend that their appointed trial counsel was ineffective because he failed to
timely request a de novo hearing and jury trial following a bench trial before an associate judge. 
See Tex. Fam. Code Ann. §§ 201.005 (West 2008) (authorizing referral of proceedings to associate
judge), .015(a) (West Supp. 2010) (request for de novo hearing before referring judge must be made
within seven working days after learning substance of associate judge's report).  We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND
		In June 2010, the Department of Family and Protective Services ("the Department")
assumed temporary managing conservatorship of A.R.L. and K.R.L. after receiving a referral
complaining about their parents' drug use in their presence.  The children were temporarily placed
in the care of their paternal grandparents, with whom they were already living, and Schwertner and
Lara were required to leave the grandparents' home.  At the time, Schwertner was approximately
22 weeks pregnant with N.L.  Both parents subsequently tested positive for drugs, including
amphetamines, methamphetamines, and marijuana.  A.R.L., who was one year old at the time, tested
positive for amphetamines and methamphetamines.  K.R.L., who was two years old, tested positive
for cocaine.  When N.L. was born in September 2010, Schwertner was temporarily allowed to reside
at the grandparents' home with all three children, but she was later required to leave after she again
tested positive for drugs.
		Although the Department implemented a Family Service Plan to help rehabilitate
Schwertner and Lara, to help improve their parenting skills, and to reunify the family, the plan failed. 
Among other deficiencies, Schwertner and Lara failed to participate in family and individual
counseling, failed to test weekly for drug use, and failed to submit to a drug and alcohol assessment,
as required by the plan.  When they did submit to drug testing, Schwertner and Lara repeatedly tested
positive for drug use, including methamphetamines, amphetamines, and cocaine.
		Although the parents were not permitted to have contact with the children until they
achieved three consecutive clean drug tests, the grandparents continued to allow the parents to have
access to the children.  This conduct resulted in the Department's removing the children from
the grandparents' custody and instituting termination proceedings.  Following removal, all
three children were tested for exposure to drugs, and K.R.L. again tested positive for drugs, this
time methamphetamines.
		The case proceeded to a bench trial before an associate judge on March 31, 2011.  At
the conclusion of the trial, the associate judge announced in open court that Schwertner's and Lara's
parental rights were terminated on the grounds that (1) they engaged in conduct that endangered the
physical and emotional well-being of the children, (2) they failed to comply with the provisions of
a court order that specifically established the actions necessary for them to obtain return of the
children, and (3) termination of the parent-child relationship was in the children's best interests. 
See id. § 161.001(1)(E) & (O), (2) (West Supp. 2010) (providing grounds for involuntary termination
of parent-child relationship).  The Department was appointed managing conservator for the children. 
The judge's written recommendation to the referring judge was signed April 14, 2011.
		Because there had been no request for a de novo hearing, on April 21, 2001, the
referring judge adopted the associate judge's written recommendation as the order of the court. 
See id. § 201.015(a).  Seven days later, on April 28, 2011, Schwertner and Lara's attorney filed a
notice of appeal with a request for a trial de novo and a demand for a jury trial.  This request was
denied on the basis that it was untimely.
		On appeal, there is no dispute that trial counsel's request for a de novo hearing and
jury trial were untimely.  The only issue presented for review is whether trial counsel's failure to
timely request a de novo hearing and jury demand deprived Schwertner and Lara of the effective
assistance of counsel.

DISCUSSION
		Indigent parents have a statutory right to counsel in parental-rights termination cases.
Id. § 107.013(a)(1) (West 2008).  This right includes the right to effective assistance of counsel. 
In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).  To establish ineffective assistance of counsel, the
appellants must show by a preponderance of the evidence that (1) their counsel's representation fell
below the standard of prevailing professional norms, and (2) counsel's deficient performance
prejudiced their defense.  Id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). 
"'This requires showing that counsel's errors were so serious as to deprive the [parents] of a fair trial,
a trial whose result is reliable.'"  Id. (quoting Strickland, 466 U.S. at 687).
		In determining whether counsel's performance in a particular case is deficient, we
must take into account all of the circumstances surrounding the case and focus on whether counsel
performed in a reasonably effective manner.  Id. at 545.  The Texas Supreme Court has stated that
"[c]ounsel's performance falls below acceptable levels of performance when the 'representation is
so grossly deficient as to render proceedings fundamentally unfair.'"  Id. (quoting Brewer v. State,
649 S.W.2d 628, 630 (Tex. Crim. App. 1983)).  In considering the acceptability of counsel's
performance, there is "a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance," and it is only when counsel's conduct is "'so outrageous that
no competent attorney would have engaged in it,' that the challenged conduct will constitute
ineffective assistance."  Id.  (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)
and Strickland, 466 U.S. at 689).  An assertion of ineffective assistance will be sustained only if the
record affirmatively supports such a claim.  See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.
App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  However, "rarely will
the trial record contain sufficient information to permit a reviewing court to fairly evaluate the
merits of such a serious allegation:  '[i]n the majority of cases, the record on direct appeal is
simply undeveloped and cannot adequately reflect the failings of trial counsel.'"  Bone v. State,
77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813-14)
(alteration in original).  When the record is silent as to counsel's subjective motivations, courts will
ordinarily presume that the challenged action might be considered sound trial strategy.  See Rylander
v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).  An error in trial strategy will be deemed
inadequate representation only if counsel's actions are without any plausible basis.  Ex parte Ewing,
570 S.W.2d 941, 943 (Tex. Crim. App. 1978); Hollis v. State, 219 S.W.3d 446, 470-71 (Tex.
App.--Austin 2007, no pet.).
		Although the record in this case is silent regarding the reason for the delay in
requesting a de novo hearing and jury trial, we will assume, without deciding, that counsel's actions
were deficient and were not motivated by sound trial strategy.  We therefore turn to the second prong
of the Strickland inquiry, which requires us to consider whether counsel's allegedly deficient
performance prejudiced the parents' defense.  See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). 
To show prejudice, the parents must show that there is a "reasonable probability" that, but
for counsel's deficiency, "the result of the proceeding would have been different."  In re M.S.,
115 S.W.3d at 549-50 (quoting Strickland, 466 U.S. at 687).  "A reasonable probability is a
probability sufficient to undermine confidence in the outcome."  Strickland, 466 U.S. at 694.
		As described above, the record in this case shows, and the trial judge found, that
Schwertner and Lara were unable or unwilling to comply with significant provisions of the Family
Service Plan and continued to test positive for drug use.  Moreover, two of their children tested
positive for exposure to drugs while in the parents' care and one child tested positive while in the
grandparents' care.  Based upon the record before the Court, we hold that there is not a reasonable
probability that, but for counsel's alleged deficiency in not timely requesting a de novo hearing and
jury trial, the result of the proceedings would have been different in a de novo hearing.

CONCLUSION
		We overrule Schwertner and Lara's sole appellate issue.  The trial court's judgment
is affirmed.

						_________________________________________
						J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Affirmed
Filed:   October 25, 2011
