In re K.M.H.

• Decision Date: 08 December 2005
• Docket Number: No. 14-04-00458-CV.,14-04-00458-CV.
• Citation: 181 S.W.3d 1
• Parties: In the Interest of K.M.H.
• Court: Texas Supreme Court

Page 1

181 S.W.3d 1

In the Interest of K.M.H.

No. 14-04-00458-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 14, 2005.

Supplemental Opinion on Rehearing December 8, 2005.

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Mary Peter Cudd, Angleton, Melissa Kite, Surside, for appellant.

Jeffrey Douglas Kyle, Pearland, for appellee.

Panel consists of Justices YATES, ANDERSON, and HUDSON.

MAJORITY OPINION

JOHN S. ANDERSON, Justice.

Earl Leroy Hoback appeals from a judgment terminating his parental rights to his daughter, K.M.H. On appeal, Hoback complains (1) the trial court erred in denying his request for a jury trial, (2) the trial court erred in denying counsel's request to withdraw from representation, and (3) trial counsel was ineffective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Earl Hoback is the father, and Melissa Kite is the mother, of K.M.H., born April 8, 2003. Four days after her birth, K.M.H. was placed in protective custody. On April 14, 2003, the Brazoria County Children's Protective Services Unit, Texas Department of Protective and Regulatory Services ("CPS"), filed a suit affecting the parent-child relationship in which CPS sought temporary conservatorship of the child and termination of the parent-child relationship between K.M.H. and both parents. After a bench trial, the trial court terminated both parents' parental rights. Hoback files this appeal from the trial court's judgment terminating his parental rights. The trial court filed findings of fact and conclusions of law; on appeal, Hoback does not challenge the findings of fact and conclusions of law.

The trial court's findings and conclusions are excerpted below, in pertinent part:

Findings of Fact

1. The child who is the subject of this suit is [K.M.H.]

2. The mother of the child is [Kite] and the father of the child is [Hoback].

3. [CPS] was named temporary managing conservator of the child on [the] 14[th of] April 2003.

4. [Kite] did not appear for trial and wholly made default.

5. [Hoback] did not appear for trial and wholly made default.

6. All counsel announced ready for trial.

7. [Kite] consumed alcohol and smoked marijuana regularly during her pregnancy with [K.M.H.]

8. On 04-12-03, [Kite] smoked marijuana and drank alcohol to the point of intoxication.

9. On 04-12-03, [Kite] breast fed [K.M.H.] following her own usage of alcohol and marijuana.

10. On 04-12-03, [Kite] allowed [K.M.H.] to ride in a vehicle operated by [Hoback] who was operating the vehicle while he was intoxicated.

11. [Kite] used "crank" and cocaine during her pregnancy with [K.M.H.]

12. [Kite] knew that her use of alcohol, marijuana, "crank," and cocaine during her pregnancy with [K.M.H.] endangered [K.M.H.]

13. [Hoback] was aware of [Kite's] use of alcohol, marijuana, and controlled substances during her pregnancy with [K.M.H.] and he used alcohol and drugs with her during the period of her pregnancy.

14. [Hoback] knew that [Kite's] abuse of drugs and use of alcohol during

her pregnancy with [K.M.H.] endangered the child.

15. On 04-12-03, [Hoback] operated a motor vehicle while he was intoxicated while [K.M.H.] was a passenger in the vehicle.

...

17. [Hoback] pleaded guilty to the offense of endangering a child by operating a motor vehicle while he was intoxicated on 04-12-03 endangering [K.M.H.]

...

19. The temporary orders entered in this cause on 04-22-03 specifically established the following actions [Kite] and [Hoback] needed to accomplish to obtain the return of the child: submit to a psychological assessment and follow all recommendations of the psychologist; successfully complete counseling; submit to a complete drug and alcohol abuse assessment and to follow all recommendations made by facility staff for further assessment or treatment; remain drug and alcohol free during the pendency of the suit; obtain and maintain a safe and stable home; and, comply with the service plans.

...

22. [Hoback] failed to comply with and complete the foregoing actions necessary for him to obtain return of the child.

23. [Hoback] tested positive for marijuana on 04-23-03, 05-15-03, 06-18-03, 06-26-03, and 08-25-03.

24. [Hoback] did not exercise any visitation with [K.M.H.] from 08-29-03 through 03-15-04.

...

26. [Hoback] did not obtain or maintain a safe and stable home during the pendency of the case.

27. CPS provided and made the court-ordered services available to [Hoback] and [Kite].

28. CPS['s] plans for the child are to pursue adoption of the child by the foster family with which she has been placed since she was placed into protective custody.

29. [K.M.H.]'s needs are being met in her current placement and she is provided with a safe and stable home.

Conclusions of Law

...

6. CPS has had temporary managing conservatorship of [K.M.H.] in excess of nine months.

...

9. [Hoback] engaged in conduct that endangered the physical or emotional well-being of [K.M.H.]

10. [Hoback] knowingly placed [K.M.H.] with a person who engaged in conduct that endangered the physical or emotional well-being of [K.M.H.]

11. [Hoback] failed to comply with the provisions of the temporary orders in this cause which specifically established the actions he needed to take to obtain return of [K.M.H.]

12. [Hoback] failed to regularly visit or maintain significant contact with [K.M.H.]

13. CPS made reasonable efforts to return [K.M.H.] to Hoback.

14. [Hoback] has demonstrated an inability to provide the child with a safe environment.

15. Termination of the parent-child relationship between [Hoback] and [K.M.H.] would be in the best interests of the child.

16. It would be in the best interests of [K.M.H.] for CPS to be named the managing conservator of the child.

DISCUSSION

I. Denial of Request for Jury Trial and Denial of Motion to Withdraw

In his first and second points of error, Hoback argues the trial court erred in denying his request for a jury trial and in denying trial counsel's motion to withdraw. At oral argument before this court, Hoback orally waived these two points on appeal. Thus, we do not address the arguments made under these two points.

II. Ineffective Assistance of Counsel

In his third point of error, Hoback argues trial counsel failed to provide him competent representation both during and after the termination proceedings, in violation of his right to due process of law. Specifically, Hoback complains counsel was ineffective in (1) failing to preserve legal and factual sufficiency points of error, (2) failing to timely request a trial by jury, (3) failing to make any requests for discovery, (4) failing to ensure a complete record was made during significant pretrial motions, (5) failing to timely withdraw from dual representation, and (6) failing to ensure Hoback was present for trial.

A. Standard of Review

The statutory right to counsel in parental-rights termination cases embodies the right to effective counsel. See In re. M.S., 115 S.W.3d 534, 544 (Tex.2003). The Texas Supreme Court has adopted the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the standard for ineffective assistance in civil parental-termination proceedings. In Strickland, the United States Supreme Court stated:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. 2052. A defendant must successfully show both prongs of the Strickland inquiry to establish an ineffective assistance claim. See In re M.S., 115 S.W.3d at 545.

"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 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). "Counsel'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 this process, 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." Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Garcia v. State, 57 S.W.3d 436, 440-41 (Tex.Crim.App.2001); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.)). "It is only when `the conduct was so outrageous that no competent attorney would have engaged in it,' that the challenged conduct will constitute ineffective assistance." Id. (quoting Garcia, 57 S.W.3d at 440; Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999)). Scrutiny of counsel's performance is highly deferential, and there is a strong presumption that counsel's actions could have been the result of sound trial strategy. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Without testimony from trial counsel, we must presume counsel had a plausible reason for her conduct. Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).

With respect to the requirement under Strickland that an appellant must show counsel's deficient performance prejudiced his defense, as explained in Mitchell v. State, "[t]his means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the...