                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-19-00325-CV

                               IN THE INTEREST OF M.J.V., a Child

                       From the 407th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2018PA00861
                          Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: August 28, 2019

AFFIRMED

           D.C. appeals the trial court’s order terminating her parental rights to M.J.V. The sole issue

raised on appeal is whether trial counsel rendered ineffective assistance of counsel. We affirm the

trial court’s order.

                                             BACKGROUND

           On April 24, 2018, the Texas Department of Family and Protective Services filed a petition

to terminate D.C.’s parental rights to M.J.V. On April 23, 2019, a bench trial was held. At the

time of the trial, M.J.V. was almost four years old.

           At the commencement of trial, D.C.’s trial attorney announced ready to proceed. The

Department’s caseworker, who was the only witness called to testify at trial, testified M.J.V. was

removed from D.C.’s care because of her drug use. On June 11, 2018, D.C. signed a copy of her
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service plan. The caseworker testified D.C. was not in compliance with the service plan because

she: (1) had not completed a drug assessment, therapy, an evaluation, domestic violence classes,

or parenting classes; (2) continued to test positive for methamphetamines; (3) refused to allow the

caseworker into the home where she was living; and (4) failed to provide documentation showing

she had stable employment. D.C. admitted to using drugs throughout the pendency of the case and

tested positive for methamphetamines the Thursday before trial when she gave birth to twins. The

caseworker explained D.C. was tested in October of 2018 and February of 2019 while D.C. was

pregnant. The caseworker also explained she had attempted to visit the home where D.C. was

living two times in March of 2019 and two times in April of 2019, but no one answered the door.

As a result, the caseworker could not determine whether D.C. could provide M.J.V. with a safe

and stable home environment. Furthermore, D.C. was living with her brother who also had a case

pending with the Department in which his children were removed due to drug use. The caseworker

further explained D.C. was referred more than once for individual therapy and was discharged

from therapy due to “no-shows.” The caseworker further testified D.C. appeared to be under the

influence of drugs when she attended her visitations with M.J.V. because she exhibited slurred

speech and appeared sleepy and inattentive.

       When D.C.’s attorney cross-examined the caseworker, she asked the caseworker when the

Department’s goal changed to terminating D.C.’s parental rights, and the caseworker responded

the goal changed in March of 2019. After the caseworker’s response, the following exchange

occurred between the trial court and D.C.’s attorney:

           [D.C.’s attorney]: Your Honor, at this time, I’m going to change my ready
       answer to not ready, because I spoke with [the Department’s supervisor] last week
       and she told me that this was not a termination case.
           THE COURT: Well —
           [D.C.’s attorney]: And I had asked that, because my client was unable to get in
       touch with the worker, I was going to ask that the case be reset to another time.



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         And she said we didn’t need to do that because this was going to be a non-
         termination case.
             THE COURT: I don’t know anything about that. I do know this, that I had a
         hearing on 1/29/19. And my notes and the record indicate that the permanency goal
         is articulated as termination. That was on 1/29/19.
             [D.C.’s attorney]: I understand that, but this is news to me. I didn’t prepare for
         this case today, because I was told this was a non-termination case. They have
         changed their goal.
             THE COURT: I don’t know.
             [D.C.’s attorney]: So I —
             THE COURT: I understand the argument. I’m going to have to deny it, though.
         We’ve got a dismissal of 4/29/19. I had a trial setting on 1/29/19, and that goal was
         articulated as termination.
             [D.C.’s attorney]: Yes, Your Honor. I understand that.

After that exchange, all parties rested.

         In closing arguments, the Department’s attorney requested that D.C.’s parental rights be

terminated. The Department’s attorney stated the first trial setting in the cause was January 29,

2019. On that date, the trial court gave D.C. additional time to complete services, but she still had

not engaged. M.J.V.’s attorney ad litem agreed with the Department’s recommendation, noting

M.J.V. had been placed with his father since January and was transitioning well. The father’s

attorney also agreed with the recommendation. D.C.’s attorney stated that other than changing her

announcement to not ready, she waived closing.

         The trial court noted the case was less than a week away from the one year dismissal, and

one reset had already been granted. The trial court terminated D.C.’s parental rights and appointed

M.J.V.’s father as M.J.V.’s managing conservator. 1



1
  D.C.’s parental rights were terminated on the following four grounds: (1) engaged in conduct or knowingly placed
M.J.V. with persons who engaged in conduct which endangered M.J.V.’s physical or emotional well-being; (2)
constructively abandoned M.J.V. who had been in the permanent or temporary managing conservatorship of the
Department for not less than six months and: (a) the Department made reasonable efforts to return M.J.V. to D.C.; (b)
D.C. has not regularly visited or maintained significant contact with M.J.V.; and (c) D.C. has demonstrated an inability
to provide M.J.V. with a safe environment; (3) failed to comply with the provisions of a court order that specifically
established the actions necessary for D.C. to obtain the return of M.J.V. who had been in the permanent or temporary
managing conservatorship of the Department for not less than nine months as a result of M.J.V.’s removal from D.C.
for abuse or neglect; and (4) used a controlled substance in a manner that endangered M.J.V. and: (a) failed to complete


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                 BURDEN TO ESTABLISH INEFFECTIVE ASSISTANCE OF COUNSEL

        As previously noted, the sole issue presented on appeal is whether D.C.’s trial attorney

rendered ineffective assistance of counsel.

        As an indigent parent in a parental termination case, D.C. was entitled to appointed counsel

which “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010)

(internal quotation omitted).      The Texas Supreme Court has adopted the two-pronged test

established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),

to analyze ineffective assistance claims in parental termination cases. In re J.O.A., 283 S.W.3d

336, 341-42 (Tex. 2009).         Under that test, D.C. was required to show: (1) her counsel’s

performance was deficient; and (2) the deficient performance prejudiced her defense. Id. (quoting

In re M.S., 115 S.W.3d 534, 545 (Tex. 2003)). In order to establish prejudice under the second

prong, D.C. was required to show a reasonable probability existed that, but for counsel’s deficient

performance, the outcome of the proceeding would be different. In re M.S., 115 S.W.3d at 549-

550.

        In applying the Strickland test, “we must give great deference to counsel’s performance,

indulging a strong presumption that counsel’s conduct falls 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) (internal quotation omitted). “When the record is silent

concerning the reasons for trial counsel’s actions, an appellate court does not engage in speculation

to find ineffective assistance of counsel.” In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109,

at *6 (Tex. App.—San Antonio May 15, 2019, pet. denied) (mem. op.). “Accordingly, ineffective




a court-ordered substance abuse treatment program; or (b) after completion of a court-ordered substance abuse
treatment program continued to abuse a controlled substance.


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assistance claims must be firmly found in the record, and the record must affirmatively show the

alleged ineffectiveness.” Id.

        D.C. asserts the following two bases upon which her trial attorney rendered ineffective

assistance: (1) failure to prepare for trial; and (2) failure to file a motion for new trial asserting her

ineffectiveness as a basis for a new trial. We first address trial counsel’s failure to file a motion

for new trial.

                            FAILURE TO FILE MOTION FOR NEW TRIAL

        “‘[W]hen a motion for new trial is not filed in a case, the rebuttable presumption is that it

was considered by the appellant and rejected.’” In re M.S., 115 S.W.3d at 549. “In this case, the

record contains no evidence to show [trial] counsel did not discuss the merits of a motion for new

trial with [D.C.].” In re J.A.R., No. 04-18-00646-CV, 2019 WL 451731, at *2 (Tex. App.—San

Antonio Feb. 6, 2019, pet. denied) (mem. op.). We also note D.C. does not raise any issues in her

brief challenging the sufficiency of the evidence to support the trial court’s findings. In re T.L.P.,

No. 09-13-00220-CV, 2013 WL 5874630, at *2 (Tex. App.—Beaumont Oct. 31, 2013, no pet.)

(noting “we presume that trial counsel believed that filing a motion for new trial was not warranted

because the evidence supporting Mother’s termination was sufficient”). Accordingly, we overrule

D.C.’s contention that trial counsel was ineffective in failing to file a motion for new trial.

                                  FAILURE TO PREPARE FOR TRIAL

        D.C. next contends trial counsel was ineffective in failing to prepare for trial, noting her

trial attorney admitted on the record that she was not prepared. D.C. also asserts “[a]fter the trial

court denied her attempt to change her announcement to ‘not ready’ . . ., it was ineffective for trial

counsel not to cross examine the State’s only witness.” D.C. further contends “trial counsel raised

but a single evidentiary objection to only one of the questions put to the opposing witness.”




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Finally, D.C. contends trial counsel “called no witnesses of her own” and “waived closing

argument.”

       By her own admission, trial counsel’s performance was deficient in failing to prepare for

trial. In order to establish trial counsel rendered ineffective assistance, however, D.C. is also

required to show she was prejudiced by the deficient performance by showing a reasonable

probability existed that the outcome of the proceeding would have been different but for counsel’s

deficient performance. In re M.S., 115 S.W.3d at 549-50. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

       In her brief, D.C. asserts if trial counsel had been prepared and called her as a witness

“there was a reasonable probability that the State might not have been able to prove that

termination of her parental rights was in the child’s best interests.” D.C. does not, however, point

to any specific evidence or testimony she could have produced or provided to contradict the

Department’s witness. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (holding appellant failed to

demonstrate counsel’s performance prejudiced her defense because she failed to point “to any

specific evidence she could have produced to contradict TDPRS’s witnesses if her attorney had

been given additional time to prepare”). She also does not suggest any additional questions her

trial counsel could have asked or any additional objections or closing arguments she could have

made that would have had a reasonable probability of changing the outcome of the proceeding.

Based on the evidence, the trial court could have found D.C. continued to use methamphetamines

throughout the pendency of the case even while pregnant with twins and before her visits with

M.J.V. The trial court also could have found D.C. did not demonstrate an ability to provide a safe,

stable environment for M.J.V. and made no effort to complete the actions necessary to obtain

M.J.V.’s return. Accordingly, we overrule D.C.’s contention that trial counsel rendered ineffective

assistance of counsel in failing to prepare for trial. See In re A.Y.C., No. 04-18-00016-CV, 2018


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WL 2694761, at *5 (Tex. App.—San Antonio June 6, 2018, pet. denied) (mem. op.) (holding

appellant failed to sustain burden to show prejudice when he did “not explain, given the evidence,

how the outcome might have been different if his counsel had reurged a motion for continuance or

asked additional questions”); In re F.L.H. IV, No. 04-17-00425-CV, 2017 WL 6597829, at *15

(Tex. App.—San Antonio Dec. 27, 2017, pet. denied) (mem. op.) (holding appellant failed to show

the result of the proceeding would have been different by offering any explanation of “how the

trial court’s determination regarding her parental rights would have changed”); cf. In re L.M., No.

02-17-00421-CV, 2018 WL 2054988, at *12 (Tex. App.—Fort Worth May 3, 2018, no pet.) (mem.

op.) (“A continuance or extension would not have reduced the evidence supporting the

endangerment and best-interest findings unchallenged by Father on appeal, especially the damning

evidence that Father endangered the twins by supplying Mother with methamphetamine when he

knew she was pregnant and that he continued to endanger them and subject them to a life of

instability by using drugs during the pendency of the case.”).

                                          CONCLUSION

       Because D.C. has not met her burden of establishing the outcome of the proceeding would

have been different but for her trial counsel’s deficient performance, the trial court’s order is

affirmed.

                                                 Sandee Bryan Marion, Chief Justice




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