## In the Court of Appea ls Second Appellate Distric t of Tex as

at Fort Worth

___________________________ No. 02

- 21

- 00260

- CV

___________________________

On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360

- 687549

- 20

Before Sudderth, C.J.; Wallach and Walker, JJ. Memorandum Opinion by Justic e W alk er 

### I N THE 

### I NTEREST OF 

### L.H., A 

### C HILD2 MEMORANDUM O PINION Appellant Mother appeals f rom the t rial court ’ s order terminating her parental rights to h er infant daughter L.H. and appointing the Department of Family and
Protective Services (DFPS) as L.H. ’ s pe rmanent managing conservator. 1 In a single issue, Mother c o ntends that she received ineffec t i ve as sistance from her appointed
trial counsel

. We affirm.
I. BACKGR OUND

A. R EMOVAL AND P RETRIAL P ROCEDURE DFPS instituted a removal of L.H. from Mother ’ s care after they both tested positive fo r co cain e at L .H

. ’ s birt h in the fall of 2020

. 2 DF P S petitioned to term inate
Mother ’ s parental rights, predicated m ainly on Mother ’ s drug use 3 and violent criminal history , which included multiple conviction s f or felony robbery and an alleged
aggravat e d assault w h i c h occurred d uri ng the pendency of L.H. ’ s case . 4 Additionally,

1 W e refer to the child using her initials and to ot her family m em be rs by their
r e la tionship to th e chil d

. Se e Te x . F am. Code Ann. § 1 09.0 0 2 (d ) ; Tex

. R

. App. P. 9.8(b )(2)

.

2 DFPS also sought and obtained terminat ion of the unk nown father ’ s parental rights ; the father did not appeal the judgment.

3 The affida vi t in sup port of removal alleged that Mother had tes ted positive for cocai ne, met hampheta mines, an d marijuana on multiple prenatal drug screens in the two months leading up to L.H. ’ s birth.

4 As to the assault charge, Mother was f inally convict ed for mis demeanor assault after being arrested f

or a ggravated assault with a d eadly weapon in June of 2021 ; sh e remai ned in jail until after the t ermination trial

.3

Mother had previ ously had her parental rights terminated to three older children in
2017 after i t was found that Mother had viol ate d paragraphs ( D) and (E) of section
161.00 1 (b)( 1 ) of t he Texas Fa mi l y Code. Tex. Fam. Cod e Ann. § 161.001 (b)(1)(D) , (E)

. Mother was ordered to comply with a DFPS service plan , which required her to

en gage in counseling, a drug assessment and any recommended drug tr eatment, random dr ug tes ting, a p sy ch o logical evalu ation, a parenting class, and maintain stable
hous ing and employment

. Desaray Muma was appointed to represent Mother in b oth th e 2017
termination case and L.H. ’ s cas e . The record shows that Muma attended all status hearings held in L.H. ’ s case but does not show that Muma propounded any written discovery upon DFPS

. B. T ERMINATION T RIAL
At the trial in July 2021, the DFPS ca seworker testifi ed that L.H. tested positive
for cocaine at birth

. Though Mother completed a parenting class, she di d not complete any other servi ces and failed to submit to drug test ing on four occasions , tested positi ve for high l ev els o f cocaine on a hai r follicle test , and vis ited only sporadically with L.H. The caseworker also confirmed that Mother had a history o f
violent cri min al conduct and had been jailed since early June 2021 after being arres ted
for a ggrav ated assault

. Over Muma ’ s hears ay objection , DFPS admitted drug te st results showing th at Mother had tested positive for cocaine and other illegal drug s o n a hair foll icle test in4

December 2020

. DFPS also admitted (1) j udgments showi ng that Mother h ad been
convicted of felon y robbery on two occasions for offe nses that occurred in 2015 and
2017 and (2) a J une 1, 2021 indictment alleging that Mother had comm itted
aggrava ted assault with a deadly weapon.
Mother testifie d 5 th at she had comple t ed parenting cla sses , so me counseling,
and had been receivi ng unemployment benefits since December 2020 after being laid
off due to the Covid

- 19 pandem ic

. She confirmed pas t drug us e but expressed

concer n that her ment al he alth medications m ay have caused t he most recent positive
results

. According to Mother, she and L.H. had a bonded relationship , and she only
missed certain visit s due to unreliable transportation

. Mo ther expre sse d a d esire to be

r eunited with L.H. and explained th at she w as in a drug rehabi l i tation program that
would help he r and L.H. to become reacquainted once Mother was released from jail.
Before c ross

- examination, Muma informed Mother on the r ec ord that Moth e r had a right against s elf

- incriminatio n : “ [S]o I don ’ t want you to talk about you r current crimi nal charge, okay? ” During Mother ’ s c ross

- examination, Muma interjected twice on the record to advise Mother that it was okay to ans wer ce rtain
q ues tions conc erning Mother ’ s criminal hist o ry
.

5 Mother was brought to the trial from jail up on a be nch warrant i ssu ed upo n Muma ’ s r equest.5 C. O RDER OF T ERMINATION
T he trial court ter min ated Mother ’ s parental rights to L.H. after finding that
Mother had viol ated (D) and (E) grounds 6 and that termination was in L.H. ’ s bes t interest and appointe d DFPS as L.H

. ’ s permanent managing conservator. Of
relevan ce , th e ord er state d that “ [a] jury was wai ved ” and w as approved as to form by
counsel f or DFPS and the unknown father , the attorney ad litem, and Muma. Mother
file d a motion for new trial , argui ng that Muma provided in effective assistanc e . The
trial co urt denied Mothe r ’ s moti o n after he aring testimony on the iss ue. No formal findings of fact or conclusions of law were requested or filed , but be fore signing the denial order, the trial judge sign ed its “ Rendi t ion on Motion f

or N e w Tr ial ” wit h

exten sive find ings

. D. M OT ION FOR N EW T RI AL E VIDENCE To support her motion for new trial, Mo ther attached he r entire client file in
L.H. ’ s case as supplied to her by Muma

. Among many docu ments, t he file c ont ained
doze n s of emails from Muma to M other 7 and other s , various status r eports from
DFPS and other court

- appointed entities rel ate d to L.H. ’ s case , a nd handwritten notes
of phone con ferences h eld between Muma and Mothe r. Th e em ails showed that
Mum a : re peatedly in fo rmed M ot her of hearing settings ; counse led her regarding

6 See Tex. Fam . Co de Ann. § 161.001(b)( 1)(D), (E) , (b)(2).

7 W e re frain from providing M other ’ s email add ress for priv ac y rea sons , b ut the record confirms that Muma sent the emails to Mother ’ s cor rect email address.6

proper Zoom

- hearing etiquette ; implor ed Mother to c on tact Muma regarding the

case ; informed Mother about adoption and r elinquishment ; repeatedly admo nished
M oth er to complete her service plan ; and he lped resolve issues such as det erm ining
the ide ntity of the unknown father and finding a family placement for L.H.
Mother also at tached to her mo tion an aff idavit from Muma which
substantivel y read in full: I represented [Mother] . During the beg inning of the ca se, we had good communication. In January of 2021 , [Mother] stopped communicating wi th me. I sent multiple emails from Ja nuary t o June th at went una nswered. In June of 2021, I found out that [Mother] was incarcerated. I wrote to her , bu t she did not re spond.
Because of our poor communication, [Mother ] and I never had the opportunity t o discuss a ben ch trial versus a jury trial.
At the he aring on her motion , Mother testifi ed that Muma did not inform her of her right s to a jury tri al or aga ins t s elf

- incrimination until the day of the trial in
L.H. ’ s case . She also claim ed to ha ve arrived at t he trial belie ving that it w as r ela ted to
h e r parental rights to her t hree older children who were the subject o f her prior

t ermination suit i n 2017

. Mot h er based this belief on a June 17, 2021 letter from
Muma that Mother r eceived while i n jai l i nforming her of the tria l d ate but mistakenly caption ed with t he initials of her three older chi ldren and the case nu mber associated
with their earlie r terminatio n s uit. Mother stated th at it “ messed [her] up in [her]

m ind ” to learn t hat the trial was not, i n fact, an opportunity to regain custody of he r7

older children

. Th is made it difficult , she said, to th en testify regarding L.H. ’ s termination : “ I wasn ’ t prepa re d ; I wasn ’ t ready. ”
Mother also testified to strai ned c ommunicatio n with M uma th roughout
Muma ’ s representation :

[ MOTHER ’ S APPELLATE COUNSE L]: Ok. And did y ou have regular acces s to email? [ MOTHER] : Yes, but some of t he email correspond ence that [Mu m a ] was sending me, I wasn ’ t never getting them. And whe n they d id co me in, it w as late. L ike, when it was time for me to go to court or something like that, i t was sent, like, aro und t hat same week.
So when I called [Mum a] to try to discus s it with her , she ’ ll try to q uickly rush me up off the phone, and the n tell m e wha t I need to do or
w hat need [sic] to be doing now. And t hat ’ s the way it ’ s supposed to be or how it ’ s supposed to be done.

. . . . [ MOTHER ’ S APPELLATE COUNS EL ]: How ma ny time s woul d you say you called M s. Muma or called her office to t alk to h er? [MOTHER] I calle d h er very multiple [sic] times to tal k to her.

. . . . [ MOTHE R ’ S APPELL

ATE COUNS EL:]: Would you please describe Ms. Muma ’ s reacti on wh en you called he r? [MOTHER] : I feel that she didn ’ t have no concern. I felt t hat
s he didn ’ t care. I felt that

- - an d there was multiple times where I was hurried trying to explain to her w hat should I do , how should we go about doing this? She wo uld t e ll me, “ If the y don ’ t do thi s, t hey don ’ t do that, I ’ m going to push t he issue. ” Th at never occurred

.

“ I ’ m going t o d o this, and I ’ m going to do that, ” that never occurred

. Days and days a n d months and months w ent by. I was still8

stu ck in the sam e boa t, going throug h the same thi ng . Going through
m y classes, finishing up my resource and d oin g everyth ing I c an to tr y t o get my child out the [sic] system

. And I didn ’ t have no help with my lawyer, I didn ’ t have no

- - I didn ’ t. I di dn ’ t have that supp ort with her.
M other cont en ded that Muma never visit ed Mother while she was in jail

. Fur ther, she clai med to have received no notice of any of the hearings in L

. H. ’ s case and that sh e would have attended them had she kn own about them. Importantly,
Mothe r ne ver test

ified that s he w ould have o pted for a jury had M uma informe d h er of her right to one.
Muma test

ified that communication between he r and Mother was strong at the
outset of L.H. ’ s case but that she and Mother did not speak after Nove mber 2020 , apart fro m M other respondi ng t o a singl e email in April 2021

. Though Muma did not
visit Mother in jail, Muma sent a letter informing her o f the trial in L.H. ’ s case and provided a self

- stamped, self

- addressed env elop e for Mother to use to resp ond

. Muma state d that M o ther was accu st omed to w riting M uma from jai l

— this was something Mothe r had done in her earlier case in 201 6 a nd 2017

. Bu t w hen Mother did not respond to this letter , Muma assumed that Mother igno red it l ike Mother had ig nored Muma ’ s recent e mails.
Ad d itional ly, Mum a stated that she had been unaw are of the erroneous caption

o n the l ett er until Mother testified about it

. She explained that she had accidentally
used an old form f

rom Mother ’ s prev

ious case wh en she dr afted th e letter , but th a t9

Mothe r h ad made no indica ti on that she was confus ed or upset by this on the day of
the trial

. When aske d why she never visited Mother in jail, Muma responded that she

w ould have visited Mother ha d she respon ded to Mu ma ’ s let ter and reques te d a

meet ing

. According t o Muma, her pr ac tice was to place the burden on h er clients to
schedule meetin gs regarding their cases. Further, Muma testified that she tr ied to
prepare Mothe r for the tr ial , but this did not o ccur becau se Mothe r d id not respond

to Muma ’ s emails.
Muma confirmed th a t s he d id not inform Mother of her right s to a jury trial and against self

- incrimination until the day of t he trial

. She contende d that Mo ther

w ai ved her right to a ju ry tri al by failing to communicate with h er in the months
befo re the trial

.

II. STAND AR D OF REVIE W AND APPLICABLE LAW
A parent who respon ds in opposition to a government

- initia ted parent al

- rights

termination suit ma y asse rt a claim for i neffecti ve assistance of counsel. In re D.T. , 625 S.W.3d 62 , 73 (Tex. 20 21)

. Cour ts anal yze the effec t iv en ess of couns el in parental

- rights

- termi nation cases under the same two

- pronged Str ickland test as utilized in the crim in al con text
. 8 Str ick la nd v. Wa shi

ngton , 466 U.S. 668, 688

– 93 , 104

8 Though civil i n nature, Texas courts often seek g uidance from cri mina l ca ses w hen analyz ing ineffective assistance cl aims in parental

- righ ts

- t e rmination cases . See , e.g., In re D.T. , 625 S.W. 3d 62, 73

– 75 (Tex. 2021) ; In re M.S. , 11 5 S.W.3d 534 , 5 4 9

– 50 (Te x. 2003) ; In Interest of G.H. , No. 02

- 14

- 00 261

- CV, 2015 WL 3827 70 3, at *1 7

– 1810

S. Ct. 2052 , 2064

– 68 ( 1984) ; In re M.S. , 115 S.W.3d 5 34, 54 5 (Te x. 2 003). To establish ineffective assistance, an appellant must prove by a preponderanc e of the evidence (1) that her coun s el’s re presentation was deficie nt and (2) that the deficiency prejudi ced her defense

. St rickland , 466 U.S. at 6 87, 104 S. Ct. at 2 06 4 ; In re M.S. , 115 S.W.3d at 545. In evaluating counse l’s effectiveness under the deficient

- performance prong, we review th e tot ality of the rep resent at ion and the particular circumstances o f the
case to determ ine whether c ounsel pro vided r easonable assi st ance under a ll the circumstances and prevailing profes sional norms at the time of the alleged error. S ee Strickland , 46 6 U .S. a t 688

– 89, 104 S. Ct. a t 206 5; Nava v. State , 415 S.W.3d 289, 3 07 (Tex. Crim. A pp. 2013) ; In re M.S. , 115 S.W.3d at 545 . Our r ev iew of couns el’s representation is highly deferential, and we indulge a strong presumption that
counsel ’s conduct was no t d efici ent. In re M.S. , 115 S. W.3 d at 545.
Strickland ’s prejudice pr ong requires a show i ng that couns el’s error s were so serious tha t they depri ved the defendant of a fair trial

— that is, a trial with a reliable
result. Strickland

, 466 U.S. at 687, 104 S

. Ct. at 2064. In other words, an appellant must show a reasonable pr obability th at the p roceeding wou ld have tu rned ou t

(Tex. App.

— Fort Worth June 18, 2015, no pet.) ( mem. op. ) ; Walker v. Dep ’

t of Fam

. & P rotective S erv

s. , 312 S.W.3d 608, 624

– 25 (Tex. App

. — Houston [1st Dist .] 2009 , pet
. de nied)

.11

differently wi thout the deficient performance. Id. at 694, 104 S. C t. at 2068; Nava , 415 S.W.3d at 308.
I II . ANALYSIS
Moth er prese nt s a la undry list of al leged fa ilu res to show Muma ’ s ineffect ive ness . Specifically , she cont en ds that Muma (1) did not inform Mothe r of
her right to a jury trial although Mu ma signed the terminati on o rder which stated that
Mother waive d a jury trial ; (2) used an old for m letter captioned with a different case involving her older childr en ; (3) n ev er advised Mother before t he day of the t rial of her right not to incrimi nate herself ; (4) never gave Mother notice of any hearings in
L.H. ’ s c ase; (5) did not seek a continua nce for a permanency conference when she
learned that Mother was i n jail ; (6) nev er visited Mother in jail ; (7) assumed Mo ther ignored her correspondence a nd did not investigate why Mother was nonresponsive ; (8) put the burde n on Mo ther to request a meetin g wi th her ; (9) propounded no discovery to DFPS; (10) fi le d no pretrial motions ; (11) failed to seek a hear ing or ruling o n her special exceptions ; (12) failed to request a record of pretrial proceedings ; (13) did no t intervi ew witn esses ; (14) issu ed no su bpoe nas to potential wit nesses ; (15) or dered no records su pporting Moth er’s legal position ; (16) did not in vestigate
any c laims ; (17) did not requ est a toxicologist to evaluate the effect Mother’s prescription medic ations ha d on he r drug test resu lts ; (18 ) di d not supply Mother with copies of DFPS permanen cy rep or ts ; (19) di d not meet with Mother to prepare her
for t he tria l ; (20 ) did not speak wi th Mother from February 2020 until the day of the12

trial ; (21) spent no time pr ep aring f or the trial ; (2 2) waive d op ening statement and closing argum en t at the trial ; (23 ) made on ly o ne objecti o n at the trial ; and (24) f ailed to adeq ua tely cross

- examine the D FPS witness at the trial

. 9
A. W E D O N OT A PPLY C RONIC Citing United States v

. Cronic , 466 U.S. 648, 1 04 S. C t . 20 39 (1984), Mother
contends that we should p resume the prejudi ce pro ng of Stric kland is met i n her case
because Muma ’ s repr esentation

— encapsulating both pretrial and trial performance

— was such that Mother “ was co nstructiv ely wit hout the benefit of coun sel because [Muma] did nothing more tha n go through the p r ocedural moti ons ” and ac ted
eff ectively as “ an ar m of the Stat e. ” We disagree.
Under Cron ic

, an appellant is entitled to a legal presumption of prej u dice if she

can demonst rate that her counsel “ entirely fail [ ed ] to subject the pr osecution ’ s c ase to

mean in gful adversarial testing , ” so that th ere was a constructive d enial of the assistance of counsel altog ether. Cronic , 466 U.S. at 6 59, 104 S . Ct. at 20 47. But
counsel ’ s f

ailure to test the prosecution ’ s ca se must be “ c ompl et e ” before pre judice is
presume d. Bell v. Co ne , 535 U.S. 685, 6 96

– 97, 122 S. C t. 1843, 1851 ( 2002 ). The
standards d istinguish between “ shoddy representation ” and “ no d efense at all

. ” In re S .B. , No. 02

- 18

- 00310

- CV , 2019 WL 138876 0 , at *15 (Tex . App

. — Fort Worth
Mar. 28, 2019, pet. den ied) (pe r curi a m) ( mem. op. )

. “ [B]ad lawyering, regardless o f

9 For brev i ty we have condensed and com bine d mul tiple similar com plaints raised b y Mother into 24 comp l aints

.13

how bad, does not ” justify applying Cronic

. Id . ( quoting Childress v . Joh n so n , 103 F.3d
12 21, 1229 (5t h Cir. 1997) )

. Thus, the Cronic pr esumption will o nly apply when a n appellant establishes that her cou nsel was inert ra ther than simply i ncompetent. Id

. ;

see Ex parte McFarland

, 163 S.W.3d 743, 752 (Tex. Crim. Ap p. 2005 ) ( “ Thi s prong of
Croni c is epi tomi zed by the ‘ inert ’ or ‘ potted plant ’ lawyer who, al tho ugh physicall y and

men tally present in the co urtroom, fails to pro vide (or is preven ted from prov id ing )

any meaningful assistance. ” )

. Muma was not a potted plant

. Th e reco r d shows that , ov er the c ours e of
L.H. ’ s case, Muma :

• sent dozens of emails to Mot h er and others related to the case ;

• c onferenced with Mother by phone multiple times ;

• repeatedly in formed mother of hearing dates and times ;

• filed an swers to DF PS ’ s original and amended petition s ;

• pr o vided Mother w

ith links to att end Zoom hearing s and information about proper Zoom

- hearin g etiquette ;

• repeatedly requested Mother to c all Muma ’ s offi c e to discuss the case ;

• repeatedly admonished M other to complet e her service p lan ;

• info rmed M other about adoption and relinquishment ;

• aided in investigating the identity of L.H. ’ s father ;

• aided i n the attempt to place L.H. wi th va rious family members re quested by M other ;14

• attended scheduled hea rings ;

• ensured t hat a bench warrant issued for Mother to attend the trial ;

• object ed to t he a dmission of dr ug

- test e v idenc e ;

• cross

- examined DFP S ’ s witness ;

• calle d Mot her as a witness in Moth er ’ s defense , which p rovided the trial court with an alternative to termination by elicit ing Mother ’ s desire to be named as a poss ess ory conservator and her pla n to enter a drug rehabili tation facilit y that housed moth ers with their chi ldren ; a nd

• counsel ed Mo ther regarding t he advisability of answering certain questions while Mother testified on cross

- examination

. Thus, the record does no t re f lect a “ complete ” failure by Muma i n her
represen tati on of Mother or her testing of DFPS ’ s c ase against Mot her; we decline to

a pp ly Cronic to her complaint

. See In re S.B. , 2019 WL 1388760 at *15 ( declining to appl y C ron ic where appella nt mothe r com plained of laundry list of pre

- tria l and trial compla ints of ineffec tive a ssistance in a parental

- rights

- termination c ase )

.

B. A PPLIC AT ION OF S TRICKLA ND Having con cluded that Cronic does not apply, we must now determin e w heth er Mother has sa tisfied both prongs of Strickland

. In re M.S. , 115 S.W.3d at 545. W i thout deciding w hether Muma ’ s pe rformance was de ficient, 10 we will hold that M ot her has

10 We need not addr ess both p r ongs of the Strickland test if the app ellant makes an insu fficient showing on one component , nor must we add ress them in any par ticular order. Strickland , 4 66 U.S

. at 697, 104 S. Ct. at 2069.15

failed to sh ow that she was prejudice d by any of Muma ’ s actions

. See Stric kland , 466 U. S. at 694, 104 S. Ct. a t 2068

.

1
. Mother W as N ot P rejudiced B y Muma ’ s F ailing t o I nform H er o f R ight t o J ury T rial
Mother ’ s chief c omplai nt conc erns Muma ’ s failing to inform her of her right to a j ury trial

. In addres s ing how she was prej udiced by this , Mother asse rts

— without
supp ort

— that “ [w]hen trial counsel trespas ses on the constitutional righ ts of her client, the trespass itse lf is pr ejudice. ” She a lso highl ights certain ben efits t o presenti ng a c ase to a jury rather than a judge , such as the d ifferences in the admi ssion
and e xclusi on of evidence and the perceptions of a singl e fact finder versus that of a diverse set of 12 pe er s . I n the co ntext of the waiv er of a jury proceeding , the pr oper measure of prejudice for an att orne y ’ s de ficient performance is “ whet her t here is a reasonable
likelihood that the defe ndant would have opted for the pro ceeding if his attorney had perfor me d adeq uately. ” Miller v. State , 548 S .W.3d 497, 502 ( Tex. Cri m. Ap p. 2018) (citing Lee v. U

nited States , 1 37 S . Ct. 1958, 1965 (2017). Here , t hen, we must determine gi ven the record whether Mother has shown that a reasonab le likelihood
existed that she w ould h ave requested a jury trial had Mum a timel y informed her o f
her r i ght t o elect one

. Mother herself never testified that she d esired a j ury trial ; thus , our analy sis turns on other record evidence

.16

Apart from a single email to Muma in April 2021 and th e com pletion of a
pare nting class , Mothe r made no att empt to co mmunicat e wi t h M u ma abo ut L.H. ’ s

case for ei ght months ; did not respon d to Mum a ’ s letter in jail des pite Mother
admitti ng to receiving it and it being ac com panied by a self

- addressed, self

- st am ped

e nvelope ; did not comple te indi vidual counselin g; d id n ot com plete her drug

assessment ; did not complete he r psychological evaluation; did not find st able housing
or emp loyment ; refused to submit to drug testing on four occasions ; tes ted positive
for h igh l e vels of c ocaine on a hair follicl e test in December 2020 ; spor adica lly
attended vis itations with L.H. ; and was jailed on a n aggravated assault charge six
weeks before the trial

. G iven Mother ’ s near

- to tal lack of enga gement i n L .H

. ’ s case , 11 we are no t
p er suaded tha t it wa s reasonably likely tha t Mother would have reque sted a jury trial
even had Muma timely informed her of the existence of that right. See Miller v. S tate , N o. 05

- 14

- 01065

- CR, 201 8 W L 45 7 9788, at *3 (T ex . A pp.

— D allas Se pt. 25, 2018,
p et . den ied) (mem. op ., n ot designated for publi cation) ( holding that appe llant did not
meet his burden under St

rickland ’s prejudice prong to show that he would have opted for a ju ry trial rather than a bench t rial if his at to rne y had corr ectly advised him th at
he would not be pro bation eligible after c onviction from a judge ).

11 The trial court stated in its rendition on Mother ’s motion f or new tr ial that “[Moth er] was completely disengaged in the process after February 5, 2021. ” The
cou rt also noted th at it is uncommon for a paren t to t ake a termination tr ial to a jury: “Jury t rials in termination cases are not the norm , they ar e the exc eption. ”17

Relatedly, Mother argues that she did not expressly waive her right to a jury
trial and, thus, Muma was in effective when she sig ned the termination ord er

— wh ich
indi cated that Mother ha d wai ved her ri gh t to a jury trial

. Mother incorrectly conflates the right to a jury trial in a parental

- rights

- termination case with that afforded criminal
defen dants. The l aw does not requ ire a n e xpres s waiv er of the right to a jury tri al in parental

- t ermin ation

- rig hts case s. In re K.M.H. , 181 S.W.3d 1, 8 (Tex. App.

— Hou ston [14th Dist.] 2005, no pet.)

. Instead, a party is entitled to a civil ju ry trial only
if the p art y f i r s t m a ke s a writ ten re qu est f or a jury tr ial and pay s the jury f ee at lea st
th ir ty da ys before the dat e of trial. Tex. R. Civ. P. 216; see Tex. Fam. Code Ann. § 105.002 (

providing that “ a party may demand a jury trial ” in pare ntal

- r ights

termi natio n cases ) (emphasis adde d) ; In re A.L.M.

- F

. , 59 3 S.W.3d 271, 275 (

Tex. 2019 ) (“Under o ur perm issive st atute, p arties may demand a jury trial or elect to have a judge decide a termination case on the merits.”)

. Accor dingly , and in light of Mother ’ s lac k of en gagement in the case as set
f orth above , w e hold that Mother has not born e her burde n t o sh ow a reaso nabl e
p robab ility that , but for M uma ’ s actions , she would have requested a jury t rial

.

2
. Mother W as N ot P rejudiced By Muma ’ s Erroneou sly

- Captioned L etter
Mothe r n ext c o ntends that she was prejudiced by the letter s e nt by Muma
which i nfo rmed Mot her of the tr ial date in L.H. ’ s case but was captioned with the
initials of her older children and the case number from their termination suit. S he18

argues that th i s “ caused [ Mother] so mu c h emoti onal stress on the day of trial , that
wh en [Mothe r] learn ed t hat the tria l w as for L.H. in the instant case, she had a difficult time answering questions. ” We fail to see from the record how Muma ’ s mistake

— u n fortuna te as it may hav e been

— c aused Mother so much t urmoil as to under mine the results of the t rial

. T he record doe s not indicate that Mother had difficult y testifying

— she provide d cohesive and comprehensive answers to the qu estions propounded to her
and did no t inform M u ma on t he day of the t rial tha t she was confused or distraught.
Furth er, Mot h er has not challe nged t he evidence supporting the order to terminat e her par ental rights and, thus, we presume it was sufficient

. See Radio Station WQCK v.
T.M. Commu nic

at ions, Inc. , 744 S.W.2d 676, 67 6

– 77 ( Tex. App.

— Dallas 1988, no pet.) ( “ It is axiomat

ic that the r e is a pre su mption of evidential sufficien cy on appeal

. . . . ” ) ;

s ee also In re J.P.

-

L

. , 592 S.W.3d 559, 577 (Tex. App.

— Fort W orth 2019, pet . d enied) ( h olding tha t mo ther ’ s attorney was not ineff ective where mother conceded the

s u fficiency of the evi d enc e to terminat e her parental rights ; thus , any alleged
ineffectiveness did not re nder the outcome unreliable) ; In re A.B. , 372 S.W.3d 273, 276 (Tex. App.

— For t Worth , 2012, no pet.) ( holdi ng no pr ejudi ce under St rickland in part because appel lant

- fa ther d id n ot cha llenge the trial court ’ s conclusions of law for

te rmination). And o ur review of the record finds ampl e support for this presumption

— the evidence sho wed tha t L.H. was born with co caine in her system19

and that Mother engaged in d rug use and violent cr i minal behavi or before and after
L.H. ’ s suit was filed

. Accordingly, Mother has not shown pre judice to a degree that it is reasonably probabl e that the outcome o f the t rial would have been dif feren t had Muma not sent
the err oneously

- captioned letter.

3
. Mother F ai l ed t o Show P rejudice f or C omplaints T hree T hrough T wenty - F our As to the remaining complaints from Mother ’ s laundry list

— numbers three
thro ugh twent

y
- four

— she does not ade quately expla in how any of these alleged
failur e s by Muma w ere prej udi c ial to her d efense. Mother ’ s remaining ar gument that
she was prejudice d by an y of Muma ’ s actions is that Muma ’ s failure to “ investigate,

c ollect information, or e xe rcis e the right to d iscovery ” mea nt that Mother “ effec tively

we nt to trial with out any tri a l st rategy
. ” However, th ese conclusory statement s ar e essentially a repet ition of Mother ’ s argument from Cronic urging us to presume prejudice

— which we overruled

— an d are

no t suf ficient to bear Mothe r ’ s bu rde n to s how how , but for each of thes e action s , i t
is reasona bly probable that the outcome of the trial would have been different. See
In re G

. H

. , No. 02

- 14

- 00261

- CV , 2015 WL 3827703 , *18 ( Tex. App.

— Fort W orth Jun e 18, 20 15, no pet.) ( hold ing that concl usory statement that , but fo r cou nsel ’ s actions , “ a different r esult could have been obtained ” wa s not sufficient to show
pre judice ).20

I neffective assistance claim s based on trial coun sel ’ s gen eral failure to investig ate f

acts , collect informati on , or engag e in discovery fail absent showing s of
what th e investigation or discovery would have uncovered that reasonably could have changed the outcome of the case. Cooks v. State , 240 S.W.3d 906, 912 (Tex. Crim. App . 2007) (

holding no p rejudice for failure to show what i nvestigation would have

reve al ed) ; Sto k es v. State , 29 8 S.W.3d 428 , 432 (Tex. App.

— Ho uston [14th Dist.] 2009, pet. ref ’ d) (same); In re K.S. , 420 S.W. 3d 852 , 856

– 57 (Tex. App.

— Texarkana 2014, no pet.) ( holding no pre judice i n a p arent al

- rights

- termination case for failure to show
what propound e d discovery wou ld have uncovered that trial counsel was not already
aware of through having access to DFPS information and attending mu ltiple status hearings ) ; I

n re R.E.T.R. , N o. 14

- 13

- 0064 0

- CV , 2013 WL 6506689, at *11 (Tex. App.

— Houst on [14th Di st.] Dec

. 10, no pet.) (mem. o p. ) (same).
Here , Mother alerts us to no evidence o r facts that Muma may have discovered through a more thorough investigation or by propounding writ ten discovery on DFPS

. The r ecord shows that , while Muma did no t propound dis cover y , she was in

re ceipt of or had access to most of DFPS ’ s case information

— including caseworke r and CASA status reports , Mother ’ s drug test results, and affidavits from the
i nvestigation

. 12 Further, Muma had represented Mother before, att ended all p re trial

12 At the hearin g on Mother ’ s motion for new trial, coun sel for DFPS pointed out tha t attorn eys in t ermination cases are provided with significant amounts of information through the filing of reports and attendance at required hearings: “ W e file
o ur perman ency reports wi th the court. The attorneys get those. There ’ s so much21

h earings , and ha d been involved with L.H. ’ s case for nearly a year

. Thus, the record indicates that Muma had a strong understanding of the facts of the case and the parties involved. See In re K. S. , 4 20 S.W.3d at 856

– 57.
Moth er made no showing of facts or information that may have been
uncovered by Muma through investigation or d iscovery that may reasonably have chang ed the outcome of the case . In light of this , and g iven the weight of t he
evide nce in favor of the termination or der a nd Mother ’ s failure to challenge th e evidence , we conclude that Mother has not shown that she was prejudiced by the actions alleged in complaints three through twenty

- four. Accordingly, we ove rrule
Mother ’ s a rguments related to these complaints

. I V. CONC LUSI ON
Hav ing over r uled a ll of Mot her ’ s complaints, we affirm the t rial court ’ s judgment. /s/ Brian Walker Brian Walker Justice
Delivered: January 2 7 , 202 2

information on thos e. I th ink [ mother ’ s appellate couns el ’ s] assumption that you have to send [DFPS] discovery to know what ’ s going on in a case is inaccurate. ”