Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00646-CV

IN THE INTEREST OF J.A.R., JR., J.R.R. AND A.I.T.

From the 131st Judicial District Court, Bexar County, Texas

Trial Court No. 2017-PA-02660

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Irene Rios, Justice

Delivered and Filed: February 6, 2019

AFFIRMED

Appellant Mother appeals the trial court’s order terminating her parental rights to her

children, J.A.R., Jr., J.R.R., and A.I.T.

1

 The only issue raised by Mother in this appeal is whether 

she received effective assistance of counsel. We affirm the trial court’s order.

BACKGROUND

The Texas Department of Family and Protective Services (“the Department”) filed this suit, 

seeking termination of the parent-child relationship between the children J.A.R., Jr., J.R.R., and 

A.I.T. and Mother. After a bench trial, at which Mother was represented by counsel but did not 

 1 To protect the identity of a minor child in an appeal from an order terminating parental rights, we refer to the appellant

as “Mother” and the children by their initials. SeeTEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). The 

trial court’s order terminates Mother’s parental rights to all three children, as well as the parental rights of the presumed 

fathers to their respective children. Only Mother appeals.
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appear, the court found four independent grounds2 to terminate Mother’s rights and found that 

termination was in the children’s best interest. The trial court signed a termination order and 

designated the Department to be the children’s permanent managing conservator. Mother timely 

appealed the trial court’s order.

INEFFECTIVE ASSISTANCE OF COUNSEL

An indigent parent is entitled to appointed counsel in a termination of parental rights case, 

and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 

253–54 (Tex. 2010) (internal quotes omitted). “[I]neffective assistance claims must be firmly 

found in the record, and the record must affirmatively show the alleged ineffectiveness. In re 

L.C.W., 411 S.W.3d 116, 127 (Tex. App.—El Paso 2013, no pet.); see also Walker v. Tex. Dep’t 

of Family & Protective Servs., 312 S.W.3d 608, 622–23 (Tex. App.—Houston [1st Dist.] 2009, 

pet. denied). When the record is silent concerning the reasons for counsel’s actions, the reviewing 

court will not engage in speculation to find ineffective assistance of counsel, and the appellant 

bears the burden of overcoming the presumption that, under the circumstances, the challenged 

conduct might be considered sound trial strategy. In re L.C.W., 411 S.W.3d at 127.

In reviewing claims of ineffective assistance of counsel, we consider all of the

circumstances surrounding the case and apply the Supreme Court’s two-pronged test used in 

Strickland v. Washington, 466 U.S. 668 (1984). See In re M.S., 115 S.W.3d 534, 545 (Tex. 2003). 

 2 Specifically, the trial court found evidence Mother 

knowingly placed or knowingly allowed the children to remain in conditions or surroundings which 

endanger the physical or emotional well-being of the children,[;] ... engaged in conduct or 

knowingly placed the children with persons who engaged in conduct which endangers the physical 

or emotional well-being of the children,[;] ... constructively abandoned the children ... [; and] failed 

to comply with the provisions of a court order that specifically established the actions necessary for 

the mother to obtain the return of the children...[.]

See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O).
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Under Strickland’s first prong, the parent must show that counsel’s performance was deficient.

See id. (citing Strickland, 466 U.S. at 687). “This requires a showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.”

In re J.O.A., 283 S.W.3d 336, 342 (Tex. 2009) (quoting In re. M.S., 115 S.W.3d at 545). Under 

the second prong, the parent must show that the alleged deficient performance prejudiced the 

defense. Id. This requires a showing that counsel’s errors were so serious as to deprive the parent 

of a fair trial, meaning a trial whose result is reliable. Id. To establish prejudice, the parent “must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in the outcome.” Id.

In conducting our review, “we must primarily focus on whether counsel performed in a 

reasonably effective manner.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (internal quotes 

omitted). We “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. (internal quotes omitted). “Challenged conduct 

constitutes ineffective assistance only when it is so outrageous that no competent attorney would 

have engaged in it.” Id. (internal quotes omitted) (citing Garcia v. State, 57 S.W.3d 435, 440 (Tex. 

Crim. App. 2001)). To be successful in her ineffective assistance of counsel claim, Mother must 

show that counsel’s representation fell below an objective standard of reasonableness. See 

Strickland, 466 U.S. at 688. Failure to satisfy Strickland’s requirements defeats an ineffectiveness 

challenge. See Walker, 312 S.W.3d at 623.

DISCUSSION

Mother argues her trial counsel failed to provide effective representation because counsel 

“abandoned her in her time of need at trial.” Mother first complains that after counsel informed
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the trial court that Mother was “confused about the court setting” and requested the trial be 

continued, which the trial court denied, counsel failed to move for a new trial. “[W]here [an 

indigent parent] is represented by counsel during trial, [there is] a rebuttable presumption that this 

counsel continued to adequately represent the defendant during this critical stage.” See Cooks v. 

State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (discussing the right to effective assistance of 

counsel during the period of time in which a motion for new trial may be filed). “When a motion 

for new trial is not filed in a case, the rebuttable presumption is that it was considered by the 

appellant and rejected.” See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998)

(discussing rebuttable presumption when no motion for new trial is filed and noting that “[t]here 

[wa]s nothing in the record to suggest that the attorney did not discuss the merits of a motion for 

a new trial with the appellant”). In this case, the record contains no evidence to show that counsel 

did not discuss the merits of a motion for new trial with Mother. 

Mother also complains trial counsel did not question the Department caseworker about a 

period of time during which the children were returned to her. Mother reasons “[t]here had to have 

been reasons for the placement of the children with the mother.” The Department caseworker 

testified the children were reunified with Mother on February 20, 2018, but removed from 

Mother’s care on June 11, 2018. Upon Mother’s completion of the Making Changes to Protect 

Children course through Family Violence Prevention, the children were reunified with Mother. 

As part of Mother’s service plan, A.I.T.’s presumed father, F.T., was not allowed in the home with 

the children. However, according to the record, during the reunification period, Mother provided 

F.T. with her address. Subsequently, F.T. and Mother engaged in episodes of domestic violence 

while the children were present. When F.T. was again found in Mother’s home on June 11, 2018, 

the Department removed the children from Mother’s care.
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It is Mother’s burden to overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689. 

Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record 

must affirmatively demonstrate the alleged ineffectiveness. In re L.C.W., 411 S.W.3d at 127. The

record before us does not demonstrate counsel’s reasons for not questioning the Department 

caseworker about the period of time during which the children were returned to Mother. 

Accordingly, Mother’s allegation of ineffective assistance of counsel is not firmly founded in the 

record. Mother has not overcome the presumption that, given the circumstances, counsel not 

eliciting testimony from the caseworker about the reunification might be considered sound trial 

strategy. Because the record does not show deficient performance, we conclude that Mother has 

failed to meet the first prong of the Strickland test.

Even if Mother had met Strickland’s first prong, she has failed to show that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. See 

Strickland, 466 U.S. at 694. Mother does not explain in her brief how trial counsel’s lack of 

questions regarding the reunification prejudiced her defense by depriving her of a fair trial. 

Because Mother does not show that there is a reasonable probability that the result of the 

proceeding would have been different if counsel had questioned the Department caseworker about 

the reunification, she has failed to satisfy Strickland’s second prong.

Accordingly, Mother’s sole issue on appeal is overruled.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s order terminating Mother’s parental 

rights.

Irene Rios, Justice