REVERSE and REMAND; and Opinion Filed September 15, 2017.




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00428-CV

                            IN THE INTEREST OF K.B., A CHILD

                       On Appeal from the 304th Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. JC-16-00365-W

                              MEMORANDUM OPINION
                        Before Justices Fillmore, Whitehill, and Boatright
                                   Opinion by Justice Fillmore

       In this accelerated appeal, Father challenges the trial court’s order terminating his

parental rights to his daughter, K.B., asserting he received ineffective assistance of counsel and

the evidence is legally and factually insufficient to support the trial court’s findings Father

committed two of the statutory grounds for termination, termination of Father’s parental rights

was in K.B.’s best interest, and the Texas Department of Family and Protective Services (the

Department) should be appointed K.B.’s managing conservator. Because Father established he

received ineffective assistance of counsel when his appointed attorney failed to appear at trial,

we reverse the trial court’s order of termination and remand this case to the trial court for further

proceedings.

                                           Background

       Following K.B.’s birth on March 23, 2016, the hospital notified the Department that

K.B.’s urine tested positive for marijuana. The Department conducted an investigation, which
included interviews of Father and of K.B.’s mother. After the Department determined K.B.

should not be released from the hospital in either Father’s or Mother’s care, K.B. was released in

the care of Mother’s aunt. The aunt was unable to locate childcare for K.B. while the aunt was

working and decided to relinquish custody of K.B. to the Department. On April 7, 2016, the

Department filed a suit affecting the parent-child relationship in which it sought temporary and

permanent managing conservatorship of K.B. and the termination of Father’s and Mother’s

parental rights. The following day, the trial court granted the Department temporary managing

conservatorship of K.B.

           On April 20, 2016, Father completed a financial statement indicating his monthly income

was approximately equivalent to his monthly expenses. Although the order is not in the record,

the trial court appointed an attorney to represent Father. The attorney appeared for Father at a

hearing on April 20, 2016, and filed an answer on Father’s behalf on April 21, 2016.

           The trial court signed temporary orders on April 20, 2016, requiring Father to participate

in individual counseling which included anger management and in “drug/alcohol” counseling, to

complete a parenting class, and to submit to random drug testing within twenty-four hours of

request by the Department. Father completed the counseling and the parenting class, but refused

to submit to the requested drug testing. On December 1, 2016, K.B.’s attorney ad litem filed a

motion requesting that Father be required to submit to a “nail bed drug test,” because he claimed

to be unable to submit to a hair follicle test. On January 5, 2017, Father agreed to submit to a

hair follicle test that day before 5:00 p.m.

           The case was set for jury trial on February 6, 2017, but did not go to trial on that date.

Although the record does not contain an order setting a new trial date and does not reflect how

the parties were informed of the new trial date, the case was reset for March 27, 2017. 1 On


   1
       Father has not complained on appeal that he did not receive notice of the March 27, 2017 trial setting.



                                                                      –2–
February 9, 2017, the Department issued a subpoena requiring Father’s wife to appear at trial at

8:30 a.m. on March 27, 2017.                          Father’s wife was served with the subpoena on February 15,

2017. On the day of trial, the Department filed a motion for continuance or, in the alternative,

for writ of attachment on the ground Father’s wife had sent an email to the Department’s

attorney the previous day indicating her child was sick and she would not attend trial.

             Neither Father nor his attorney appeared at trial on March 27, 2017. Evidently believing

the trial court was considering the Department’s motion for continuance, the Department’s

attorney called only Sh’Tonia Edmond, the Child Protective Services (CPS) supervisor, and Ruth

Holland, the “CASA supervisor,” 2 to briefly testify. 3 Edmond testified that, although she was

now the supervisor, she had initially been the investigator in the case. K.B. came to CPS’s

attention due to concerns about drug use by Father and Mother, and Edmond understood K.B.

was currently in foster care. Edmond affirmed Father “committed the behavior that would

constitute (d) and (e) grounds.” She affirmed Father’s and Mother’s drug use meant:

             [T]hey had knowingly placed or knowingly allowed the child to remain in
             conditions or surroundings which endangered the physical and emotional well
             being [sic] of the child pursuant to Section [161.001(b)(1)(D)] of the Texas
             Family Code and engaged in conduct and knowingly placed the child with
             persons who engaged in conduct which endangered the physical and emotional
             well being [sic] of the child pursuant to Section [161.001(b)(1)(E)] of the Texas
             Family Code.

Finally, Edmond affirmed the trial court granted the motion “to put the child into care” because

K.B. was in immediate and continuing danger.

             Holland testified her “advocate” was out of town, but had “faithfully and regularly”

visited K.B. and had “been very pleased with her placement; doing very well.”                                                   Holland

understood Father had not “been most forthright” with CPS. Holland also understood Father was


     2
        “A CASA volunteer, or Texas Court Appointed Special Advocate, can be appointed to serve as guardian ad litem or a volunteer advocate
for the child under Family Code section 107.031 in termination suits.” In re K.M.L., 443 S.W.3d 101, 106 n.2 (Tex. 2014).
     3
         The reporter’s record of the trial is only twelve pages in length.



                                                                          –3–
married and had children with his current wife. Holland agreed Father had “been reluctant to

make a decision between his legal family and the family he has started” with Mother. Although

Holland had never spoken with Father’s current wife, Holland agreed that Father’s wife would

be a necessary witness “if this were to go to trial today or any time in the future.”

       It was Holland’s understanding the Department did not know where Father worked or

what type of employment he had. Holland also understood the Department did not know where

Mother’s other children were because Mother had also not been “forthright.” Finally, it was

Holland’s understanding Mother had not passed a drug test and Father had taken one drug test

and failed that test. Holland believed it was in K.B.’s best interest for Father’s and Mother’s

parental rights to be terminated and for the Department to be appointed K.B.’s permanent

managing conservator.

       The Department’s attorney indicated that was “all of the evidence we have to present at

this time, and for the purposes of this hearing[,] we rest.” The trial court, however, treated the

hearing as a trial following default and asked K.B.’s attorney ad litem whether “this is in the best

interest of the child.” K.B.’s attorney ad litem responded affirmatively. As relevant to this

appeal, the trial court found Father “committed the conduct as defined” in section

161.001(b)(1)(D) and (E) of the family code and that termination of the parent-child relationship

between Father and K.B. was in K.B.’s best interest. The trial court named the Department as

K.B.’s permanent managing conservator.

                  Legal Sufficiency of the Evidence to Support Termination

       We first address issues that would require rendition and then, if necessary, consider

issues that would result in remand. Natural Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188,

201–02 (Tex. 2003) (concluding appellate court, prior to ordering remand, should consider issues

that would result in rendition); In re S.R., 452 S.W.3d 351, 359 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied) (applying rule in parental termination appeal and first addressing legal
                                                 –4–
sufficiency challenges); see also TEX. R. APP. P. 43.3. A meritorious complaint the evidence is

legally insufficient to support an order terminating a parent’s rights to his child generally

requires rendition of judgment in favor of the parent. In re J.F.C., 96 S.W.3d 256, 266 (Tex.

2002). Therefore, we will first consider Father’s complaints in his second and fourth issues that

the evidence is legally insufficient to support the trial court’s findings (1) Father committed

conduct that violated sections 161.001(b)(1)(D) and (E) of the family code, and (2) termination

of Father’s parental rights was in K.B.’s best interest. 4

                                                             Standard of Review

           Because the fundamental liberty interest of a parent in the care, custody, and control of

his child is one of constitutional dimensions, Troxel v. Granville, 530 U.S. 57, 65–66 (2000),

involuntary parental termination proceedings must be strictly scrutinized. In re K.M.L., 443

S.W.3d 101, 112 (Tex. 2014); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). 5 In

parental termination cases, due process requires the petitioner to justify termination by clear and

convincing evidence (1) the parent has committed one of the grounds for involuntary termination

as listed in section 161.001(b)(1) of the family code, and (2) terminating the parent’s rights is in

the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016); In re

E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). Evidence is clear and convincing if it “will produce

in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought

     4
         We recognize the only relief requested by Father in the prayer in his appellate brief was that the case be reversed and remanded for new
trial, see TEX. R. APP. P. 38.1(j) (appellant’s brief “must contain a short conclusion that clearly states the nature of the relief sought”), and that we
may not generally grant relief not requested, see Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 392 (Tex. 2011) (“Generally, a
party is not entitled to relief it does not request.”); Stevens v. Nat’l Educ. Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000) (per curiam) (assuming
error in jury charge, but concluding it could not remand for new trial because appellant prayed only for rendition of judgment); W. End API, Ltd.
v. Rothpletz, 732 S.W.2d 371, 374 (Tex. App.—Dallas 1987, writ ref’d n.r.e.) (“What can be better established than the proposition that relief that
has not been prayed [for] cannot be granted?”). However, under appropriate circumstances, this Court has the authority to render the judgment
the trial court should have rendered. TEX. R. APP. P. 43.3; Jakab v. Gran Villa Townhouses Homeowners Ass’n, Inc., 149 S.W.3d 863, 870 n.7
(Tex. App.—Dallas 2004, no pet.) (concluding appellate court had authority to modify and render judgment even though party had prayed only
for a new trial). Although not specifically included in his prayer for relief, Father recognized in his brief that, if the evidence is legally
insufficient to support the trial court’s order of termination, he would be entitled to reversal of the order and rendition of judgment in his favor.
On this record, we conclude Father has sufficiently addressed the appropriate relief for a meritorious complaint that the evidence is legally
insufficient to support the trial court’s order.
     5
        However, parental rights are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed
merely to preserve that right.”); see also In re A.B. 437 S.W.3d 498, 503 (Tex. 2014).



                                                                         –5–
to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2014); see also In re E.N.C., 384

S.W.3d at 802.

       When the legal sufficiency of the evidence is challenged in a case involving the

termination of parental rights, we look at all the evidence in the light most favorable to the trial

court’s finding to determine whether a reasonable factfinder could form a firm belief or

conviction that the finding is true. In re E.N.C., 384 S.W.3d at 802 (citing in re J.F.C., 96

S.W.3d at 266).     Giving deference to the factfinder’s conclusions and the role of a court

conducting a legal sufficiency review, we assume the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not

mean we must disregard all evidence that does not support the finding. Id. If, after conducting a

review of the record evidence, we determine no reasonable factfinder could form a firm belief or

conviction that the matter that must be proven is true, then we must conclude the evidence is

legally insufficient. Id. If the evidence is legally insufficient, rendition of judgment in favor of

the parent would generally be required. In re J.F.C., 96 S.W.3d at 266.

                                Statutory Grounds for Termination

       The trial court found Father knowingly placed or allowed K.B. to remain in conditions or

surroundings which endangered K.B.’s physical or emotional well-being, see TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), and engaged in conduct or knowingly placed K.B. with persons who

engaged in conduct which endangered K.B.’s physical or emotional well-being, see id.

§ 161.001(b)(1)(E). We first consider whether there was legally sufficient evidence to support

the trial court’s finding Father committed conduct that violated section 106.001(b)(1)(E) of the

family code.

       “In considering whether the evidence is legally sufficient to support a finding of

endangerment, we must determine whether there was ‘some evidence of endangerment on which
                                                –6–
a reasonable factfinder could have formed a firm belief or conviction of endangerment.’” In re

E.N.C., 384 S.W.3d at 803 (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)). Under

section 161.001(b)(1)(E), “‘[t]o endanger’ means to expose a child to loss or injury or to

jeopardize a child’s emotional or physical health.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied); see also In re M.C., 917 S.W.2d 268, 269 (Tex.

1996) (per curiam). The term “means more than a threat of metaphysical injury or potential ill

effects of a less-than-ideal family environment.” In re E.N.C., 384 S.W.3d at 803. However, the

endangering conduct need not be directed at the child, id., and it is not necessary that the child

actually suffers injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

       Endangerment may be inferred from parental misconduct alone. Id.; D.M. v. Tex. Dep’t

of Family & Protective Servs., No. 03-17-00137-CV, 2017 WL 2628949, at *2 (Tex. App.—

Austin June 13, 2017, no pet.) (mem. op.). The evidence must show the endangerment was the

direct result of the parent’s conduct, including acts, omissions, or failures to act. In re A.C.M.,

No. 05-15-01069-CV, 2016 WL 692827, at *4 (Tex. App.—Dallas Feb. 22, 2016, no pet.) (mem.

op.). We examine the parent’s conduct both before and after the child’s birth, In re J.O.A., 283

S.W.3d at 345, and before and after removal from the home, In re S.R., 452 S.W.3d at 360. “[A]

parent’s use of narcotics and its effect on his or her ability to parent may qualify as an

endangering course of conduct.” In re J.O.A., 283 S.W.3d at 345; see also In re S.M.G., No. 01-

17-00056-CV, 2017 WL 2806332, at *4 (Tex. App.—Houston [1st Dist.] June 29, 2017, no pet.

h.) (mem. op.).

       The evidence at trial established K.B. was placed into the Department’s care due to

concerns regarding drug use by Father and Mother. Further, Father failed to comply with

requests that he submit to drug testing during the course of the proceedings, and the trial court

could have inferred from this refusal that Father would have tested positive for controlled

substances. See D.M., 2017 WL 2628949, at *3 (citing In re C.A.B., 289 S.W.3d 874, 885 (Tex.
                                               –7–
App.—Houston [14th Dist.] 2009, no pet.)). After K.B.’s attorney ad litem filed a motion

seeking to compel Father to submit to a drug test, Father submitted to a drug test approximately

two months before trial, and failed that test. Because the consistent use of illegal drugs exposes

a child to the possibility the parent may be impaired or imprisoned, evidence of the prolonged

and continued use of illegal drugs is evidence that supports a trial court’s finding of

endangerment under section 161.001(b)(1)(E). In re J.O.A., 283 S.W.3d at 345–46; D.M., 2017

WL 2628949, at *2. Further, continued use of illegal drugs in the face of the threat of a parent’s

loss of his parental rights is conduct showing a voluntary, deliberate, and conscious course of

conduct, which by its nature, endangers the child’s well-being. In re J.O., No. 09-16-00485-CV,

2017 WL 2373588, at *2 (Tex. App.—Beaumont, June 1, 2017, no pet. h.) (mem. op.). Finally,

Edmonds testified Father’s drug use was conduct that violated section 161.001(b)(1)(E) of the

family code. See In re S.N., Jr., No. 05-16-01010-CV, 2017 WL 2334241, at *3 (Tex. App.—

Dallas May 30, 2017, pet. denied) (mem. op. nunc pro tunc) (witness’s testimony parent violated

section 161.001(b)(1)(O) of family code was statement of fact that could support termination of

parental rights). We conclude there was sufficient evidence from which the trial court could

have formed a firm belief or conviction that Father committed conduct that endangered K.B.’s

physical or emotional well-being, in violation of section 161.001(b)(1)(E) of the family code.

See In re J.O.A., 283 S.W.3d at 345; Cervantes-Peterson v. Tex. Dep’t of Family & Protective

Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc). 6

                                                               Best Interest

           A judicial determination of the “best interest” of a child is “not dependent upon, or

equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such

     6
       Because we conclude there is legally sufficient evidence to support the trial court’s finding Father committed conduct that violated section
161.001(b)(1)(E) of the family code, we need not consider whether there is legally sufficient evidence he also committed conduct that violated
section 161.001(b)(1)(D). See In re. A.V., 113 S.W.3d 355, 362 (Tex. 2003) (when there is finding that termination is in child’s best interest,
finding of only one predicate violation under section 161.001(b)(1) will support termination decree); In re M.J.P., No. 05-16-01293-CV, 2017
WL 655955, at *6 (Tex. App.—Dallas Feb. 17, 2017, no pet.) (mem. op.).



                                                                      –8–
harm.” In re K.L.M., No. 05-16-01098-CV, 2017 WL 836850, at *5 (Tex. App.—Dallas Mar. 3

2017, no pet.) (mem. op.). “Rather, ‘best interest’ is a term of art encompassing a much broader,

facts-and-circumstances based evaluation that is accorded significant discretion.” Id. (citing In

re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (orig. proceeding) (plurality op.)). In reviewing a

factfinder’s best-interest finding, we consider several nonexclusive factors, including (1) the

desires of the child; (2) the emotional and physical needs of the child now and in the future; (3)

the emotional and physical danger to the child now and in the future; (4) the parental abilities of

the person seeking custody; (5) the programs available to assist the person seeking custody in

promoting the best interest of the child; (6) plans for the child by the person seeking custody; (7)

the stability of the home or proposed placement; (8) the acts or omissions of the parent that may

indicate the parent-child relationship is not a proper one; and (9) any excuse for the acts or

omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see In re

E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (in reviewing a best-interest finding, appellate court

“consider[s], among other evidence, the Holley factors”).

       The Holley factors focus on the best interest of the child, not the best interest of the

parent, Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—

Dallas 1995, no writ), and are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Some

of the listed factors may be inapplicable to a case and other factors not on the list may also be

considered when appropriate. Id. Undisputed evidence of just one factor may be sufficient in a

particular case to support a finding that termination is in the child’s best interest. Id.; D.M., 2017

WL 2628949, at *4. On the other hand, the presence of scant evidence relevant to each factor

will generally not support such a finding. In re C.H., 89 S.W.3d at 27. Evidence of one of the

predicate acts for termination under section 161.001(b)(1) of the family code may also be

relevant to determining the best interest of the child. Id. at 28.



                                                 –9–
           In this case, the evidence at trial did not address all of the Holley factors. 7 However, as to

the third, fourth, and eighth factors, which focus on emotional or physical danger to K.B.,

Father’s parental abilities, and any actions indicating an improper parent-child relationship, the

evidence established that, immediately after she was born, K.B. was removed from Father’s care

due to concerns about his and Mother’s use of illicit drugs. Father initially refused to submit to

drug testing requested by the Department and failed the only drug test to which he submitted

during the pendency of the proceedings. A pattern of illegal drug use suggests Father was not

willing and able to provide K.B. with a safe environment. See In re A.C. 394 S.W.3d 633, 642

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that past and ongoing drug use

weighed in favor of conclusion that termination of parental rights is in child’s best interest); see

also In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (“[I]t is proper

to measure a parent’s future conduct by his or her past conduct to determine whether termination

is in the child’s best interest.”).

           There was also evidence pertaining to the second, sixth, and seventh Holley factors

regarding the emotional and physical needs of K.B., the Department’s plans for K.B., and the

stability of the proposed placement. As to these factors, the evidence established Father had not

been “forthcoming” with the Department about where he worked or what he did for a living, and

had been “reluctant to make a decision between his legal family” and the family he had started

with Mother. See e.g., In re K.L.M., 2017 WL 836850, at *6 (parent’s failure to comply with

service plan may support finding that termination is in best interest of child); In re M.R., 243

S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (mem. op.) (parent’s noncompliance

with service plan may be considered by factfinder in determination of child’s best interest).

Further, we cannot ignore that neither Father nor his current wife, who had been served with a
     7
        There was no evidence pertaining to the first Holley factor, the desires of the child, because K.B. was barely one year old at the time of
trial. There was also no evidence of any programs available to assist Father in promoting K.B.’s best interest, the fifth Holley factor, or of any
excuses for Father’s acts of omissions, the ninth Holley factor.



                                                                     –10–
subpoena, appeared at trial. See In re. K.L.M., 2017 WL 836850, at *6. Finally, K.B. was in a

stable placement and was doing well.         See In re C.A.W., No. 01-16-00719-CV, 2017 WL

3081792, at *7, 8 (Tex. App.—Houston [1st Dist.] July 20, 2017, no pet. h.) (mem. op.)

(considering that child was doing very well in current placement in determining best interest of

child).

          Based on the evidence presented at trial, we conclude the trial court could have

reasonably formed a firm belief or conviction that it was in K.B.’s best interest for Father’s

parental rights to be terminated.

                                             Conclusion

          Because the evidence is legally sufficient to support the trial court’s findings Father

committed conduct in violation of section 161.001(b)(1)(E) of the family code and that

termination of Father’s parental rights was in K.B.’s best interest, we resolve Father’s second

and fourth issues against him.

                                  Ineffective Assistance of Counsel

          In his first issue, Father argues he received ineffective assistance of counsel because his

appointed counsel failed to appear at the March 27, 2017 trial setting. The Department agrees

Father did not receive effective assistance of counsel. However, the Department’s concession of

error does not relieve this Court of the obligation to perform its judicial function by

independently determining whether the concession is based on sound analysis. Tex. Farmers Ins.

Co. v. Cameron, 24 S.W.3d 386, 398 n.2 (Tex. App.—Dallas 2000, pet. denied) (concluding

stipulation of parties was of no legal effect in determining issue on appeal because parties,

“cannot concede a question of law necessary to the proper disposition of an appeal”); In re M.N.,

No. 04-15-00368-CV, 2015 WL 7563812, at *3 (Tex. App.—San Antonio Nov. 25, 2015, no

pet.) (mem. op.) (noting that, even though the Department agreed parents did not receive



                                                 –11–
effective assistance of counsel because appointed counsel failed to appear at trial, appellate court

was required to address issue).

       In Texas, an indigent parent has a statutory right to appointed counsel in a parental-rights

termination case. TEX. FAM. CODE ANN. § 107.013(a)(1) (West 2014); In re M.S., 115 S.W.3d

534, 544 (Tex. 2003).     Because it would be a useless gesture to recognize by statute the

importance of counsel in termination proceedings yet not require that counsel perform

effectively, this statutory right “embodies the right to effective counsel.” In re M.S., 115 S.W.3d

at 544; see also In re B.G., 317 S.W.3d 250, 253–54 (Tex. 2010). In evaluating claims of

ineffective assistance of counsel in a termination case, we apply the two-pronged standard

applicable to criminal cases set out in Strickland v. Washington, 466 U.S. 668 (1984). In re

J.O.A., 283 S.W.3d at 341–42; In re M.S., 115 S.W.3d at 544–45. To show ineffective assistance

of counsel under Strickland, a parent has the burden to show (1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defense in a manner so serious as to

deny the parent a fair and reliable trial. In re J.O.A., 283 S.W.3d at 342 (citing In re M.S., 115

S.W.3d at 545); see also Strickland, 466 U.S. at 687.

       “With respect to whether counsel’s performance in a particular case is 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.” In re M.S., 115 S.W.3d at 545

(citing Strickland, 466 U.S. at 687); see also In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006).

“[C]ounsel’s performance falls below acceptable levels of performance when the ‘representation

is so grossly deficient as to render proceedings fundamentally unfair.’” In re M.S., 115 S.W.3d

at 545 (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). In conducting

our review of trial counsel’s performance, there is “‘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.” Id. (quoting Strickland, 466 U.S. at 689).       Only when trial
                                               –12–
counsel’s conduct was so outrageous that no competent attorney would have engaged in it will

the challenged conduct constitute ineffective assistance. Id. The record must affirmatively

support a claim that trial counsel provided ineffective assistance. Lockwood v. Tex. Dep’t of

Family & Protective Servs., No. 03-12-00062-CV, 2012 WL 2383781, at *5 (Tex. App.—Austin

June 26, 2012, no pet.) (mem. op.) (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.

App. 1999)). When the record is silent concerning the reasons for trial counsel’s actions, we do

not engage in speculation to find ineffective assistance of counsel. P.W. v. Dep’t of Family &

Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d

w.o.j.).

           Under Strickland’s second prong, a parent must show trial counsel’s deficient

performance prejudiced his defense. In re M.S., 115 S.W.3d at 545; see also Strickland, 466

U.S. at 687. To show prejudice, the parent must show there is reasonable probability that, but for

counsel’s error, the result of the proceeding would have been different. In re M.S., 115 S.W.3d

at 550; see also Medellin v. Tex. Dep’t of Family & Protective Servs., No. 03-11-00558-CV,

2012 WL 4466511, at *5 (Tex. App.—Austin Sept. 26, 2012, pet. denied) (mem. op.) (to

establish prejudice, father must show “reasonable probability that his parental rights would not

have been terminated” absent trial counsel’s deficient performance). “A ‘reasonable probability’

is a probability sufficient to undermine confidence in the outcome of the proceeding.” P.W., 403

S.W.3d at 476; see also Strickland, 466 U.S. at 694.

           A presumption of prejudice may be warranted, however, in cases where there has been

actual or constructive denial of counsel. United States v. Cronic, 466 U.S. 648, 658–61 (1984);

Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997). In such a case, “[n]o specific

showing of prejudice [is] required,” because “the adversary process itself [is] presumptively

unreliable.” Cronic, 466 U.S. at 659; see also Smith v. Robbins, 528 U.S. 259, 286–87 (2000)

(distinguishing complete denial of counsel on appeal, warranting presumption of prejudice, from
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ineffective assistance of counsel on appeal, which does not warrant such presumption). The

presumption of prejudice arises when there are “circumstances that are so likely to prejudice the

[defendant] that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466

U.S. at 658. This can occur when (1) the defendant is denied the presence of counsel at a critical

stage of his trial, (2) counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing, or (3) circumstances at trial are such that, although counsel is available to

assist the defendant during trial, the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial. Cronic, 466 U.S. at 659–60; see also Bell v.

Cone, 535 U.S. 685, 695–96 (2002).

       The differences in the Strickland and Cronic standards are not of degree, but of kind.

Bell, 535 U.S. at 697; In re D.I., No. 12-16-00159-CV, 2016 WL 6876503, at *3 (Tex. App.—

Tyler Nov. 22, 2016, no pet.) (mem. op.). “In other words, the standards distinguish between

shoddy representation and no defense at all.” In re D.I., 2016 WL 6876503, at *3; see also P.W.,

403 S.W.3d at 477 (“[F]or Cronic to apply, counsel’s failure to test the prosecution’s case ‘must

be complete.’” (quoting Bell, 535 U.S. at 697)). “‘[B]ad lawyering, regardless of how bad, does

not support the . . . presumption of prejudice’ under Cronic.” Childress, 103 F.3d at 1229

(quoting McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990)); see also Maxwell v. Tex.

Dep’t of Family & Protective Servs., No. 03-11-00242-CV, 2012 WL 987787, at *4 (Tex.

App.—Austin Mar. 23, 2012, no pet.) (mem. op.). Rather, prejudice is presumed when the

defendant can establish counsel was not merely incompetent but inert. Childress, 103 F.3d at

1228; see also In re G.H., Jr., No. 12-16-00327-CV, 2017 WL 2464694, at *3 (Tex. App.—

Tyler June 7, 2017, pet. filed) (mem. op.).

       As to the first prong of the Strickland test, Father’s attorney did not appear at trial, which

was a critical stage of the litigation. See In re. M.N., 2015 WL 7563812, at *3. Consequently,
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Father, who also failed to appear at trial, was not represented by his appointed counsel or anyone

else. Father faced the loss of his parental rights to K.B. In the face of such serious potential

consequences, there is no plausible strategic reason for trial counsel’s failure to appear at a

critical stage of litigation and subject the Department’s case to appropriate adversarial testing.

See Lockwood, 2012 WL 2383781, at *6. We conclude Father has shown his trial counsel’s

performance was deficient. See In re J.M.O., 459 S.W.3d 90, 94 (Tex. App.—San Antonio

2014, no pet.) (concluding parent showed trial counsel’s failure to appear at termination trial

constituted deficient performance under principles of Strickland).

        Concerning the second prong of the test, Father has established he was denied counsel at

a critical stage of the litigation. Under the principles of Strickland and Cronic, the record need

not establish a specific showing of prejudice because “when appointed counsel wholly fails to

appear at trial, the adversary process itself is presumptively unreliable.” In re M.N., 2015 WL

7563812, at *3; see also In re M.R., No. 11-13-00029-CV, 2013 WL 3878584, at *8 (Tex.

App.—Eastland July 25, 2013, no pet.) (mem. op.) (concluding that because mother “was denied

counsel altogether at a critical stage” of termination proceedings, court was required to presume

prejudice); Newsom v. Dep’t of Family & Protective Servs., No. 01-09-00447-CV, 2010 WL

670568, at *4 (Tex. App.—Houston [1st Dist.] Feb. 25, 2010, no pet.) (mem. op.) (“When an

indigent parent claims he was actually or constructively denied counsel in that counsel failed to

subject the prosecution’s case to meaningful adversarial testing, we apply the test” in Cronic.);

Lockwood, 2012 WL 2383781, at *5–6 (applying presumption of prejudice following trial

counsel’s failure to appear at trial).

        Father has met his burden of establishing he received ineffective assistance of counsel

when his lawyer failed to appear at trial. Accordingly, we resolve Father’s first issue in his

favor, reverse the trial court’s judgment terminating Father’s parental rights to K.B., and remand

this case to the trial court for further proceedings consistent with this opinion. Based on our
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resolution of Father’s first issue, we need not address his third, fifth, and sixth issues relating to

factual sufficiency of the evidence to support the trial court’s findings Father committed two of

the statutory grounds for termination, termination of Father’s parental rights was in K.B.’s best

interest, and the Department should be named K.B.’s managing conservator, respectively. See

TEX. R. APP. P. 47.1.




                                                     /Robert M. Fillmore/
                                                     ROBERT M. FILLMORE
                                                     JUSTICE


1700428F.P05




                                                –16–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF K.B., A CHILD                     On Appeal from the 304th Judicial District
                                                     Court, Dallas County, Texas,
No. 05-17-00428-CV                                   Trial Court Cause No. JC-16-00365-W.
                                                     Opinion delivered by Justice Fillmore,
                                                     Justices Whitehill and Boatright
                                                     participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.


Judgment entered this 15th day of September, 2017.




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