Paul D. McInnis v. H. G. Counts, Trustee--Appeal from 33rd District Court of Burnet County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1992 » Paul D. McInnis v. H. G. Counts, Trustee--Appeal from 33rd District Court of Burnet County

State: Texas

Court: Texas Northern District Court

Docket No: 03-91-00277-CV

Case Date: 10/21/1992

Plaintiff: Gene Olin Brice

Defendant: Lisa K. Denton & In the Interest of A.R.B. and B.J.B., Children--Appeal from 18th District Court of

Preview:Gene Olin Brice v. Lisa K. Denton & In the Interest of
A.R.B. and B.J.B., Children--Appeal from 18th District
Court of Johnson County
IN THE
TENTH COURT OF APPEALS
No. 10-01-392-CV
GENE OLIN BRICE,
Appellant
v.
LISA K. DENTON,
Appellee
AND IN THE INTEREST
OF A.R.B. AND B.J.B., CHILDREN
From the 18th District Court
Johnson County, Texas
Trial Court # D200105744
O P I N I O N
The issue in this case is whether an indigent parent who was proceeding pro se is denied effective assistance of counsel
when an attorney ad litem is a) appointed on the day of a final hearing on the petition to terminate his parental rights,
b) does not request a continuance, c) does not communicate with her client, and d) proceeds to trial. We hold that he
was denied effective assistance of counsel.
BACKGROUND
Lisa Denton filed suit to terminate the parental rights of Gene Brice, the biological father of their two children. Brice is
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currently an inmate of the Texas Department of Criminal Justice, Institutional Division. Brice filed a pro se answer
opposing termination, along with a Declaration of inability to pay costs. Eight days before the scheduled hearing,
Denton sent Brice a letter informing him of the setting of a final hearing on the case. Brice, in prison, received this
notice five days before the hearing and could not attend the hearing. The trial court appointed an attorney ad litem for
Brice on the day of the final hearing. Tex. Fam. Code Ann. 107.013(a)(1) (Vernon 2002). Without consulting with
Brice, the appointed attorney allowed the hearing to proceed. After hearing no evidence from Brice during the hearing
except a perfunctory cross-examination of Denton by Brice s appointed attorney, the trial court found by clear and
convincing evidence that Brice engaged in criminal conduct that resulted in his being convicted or placed on
community supervision for violating section 22.021 of the Texas Penal Code. Id. 161.001(1)(L)(viii) (Vernon 2002);
Tex. Pen. Code Ann. 22.021 (Vernon Supp. 2004). Further, the trial court found that termination of Brice s parental
rights was in the best interest of the children. Tex. Fam. Code Ann. 161.001(2) (Vernon 2002). The court signed an
order terminating Brice s parental rights. Id. 161.206 (Vernon 2002). We granted an extension of time to file a notice
of appeal, which Brice did.
On appeal, Brice complains that the trial court erred by not appointing an attorney ad litem before the day of the final
hearing, thereby denying him effective assistance of counsel and violating his right to due process (Issue one). Brice
further contends that the attorney appointed to represent him provided ineffective assistance of counsel during the
hearing (Issue four). In additional issues, Brice complains that the trial court erred by preventing him from timely
requesting a jury by appointing an attorney ad litem on the day of the final hearing, or, alternatively, by proceeding to
final hearing without giving Brice the required notice under Rule of Civil Procedure 245, and by failing to rule on a
request for a bench warrant to allow Brice to attend the final hearing. We will reverse the trial court s order and
remand the cause for further proceedings.
TERMINATION CASES THE LEGAL STANDARD
The termination of parental rights involves fundamental constitutional rights. In re A.V., 57 S.W.3d 51, 56 (Tex. App.
Waco 2001), rev d on other grounds, 113 S.W.3d 355 (Tex. 2002); In re B.L.D., 56 S.W.3d 203, 210 (Tex. App. Waco
2001), rev d on other grounds, 113 S.W.3d 340 (Tex. 2002); In re Verbois, 10 S.W.3d 825, 830 (Tex. App. Waco 2001,
orig. proceeding). Given this significance, involuntary-termination statutes must be strictly construed in favor of the
parent. In re M.J.M.L., 31 S.W.3d 347, 350 (Tex. App. San Antonio 2000, pet. denied); Odoms v. Bates, 791 S.W.2d
677, 680 (Tex. App. San Antonio 1990, no pet.). Section 107.013 of the Texas Family Code provides that the court
shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in
opposition to the termination. Tex. Fam. Code Ann. 107.013(a)(1). Texas courts have held that trial courts must
appoint counsel for indigent parents in these cases and failure to do so is error. In re M.J.M.L., 31 S.W.3d at 354;
Odoms, 791 S.W.2d at 680. But, a precise requirement as to when counsel must be appointed in a termination
proceeding has not been discussed. See In re J.R.P., 55 S.W.3d 147, 150 (Tex. App. Corpus Christi 2001, pet. denied);
In re M.J.M.L., 31 S.W.3d at 354. Nor has a parent s right to represent himself been fully explored.
The Texas Supreme Court has held that the statutory right to counsel in parental-rights termination cases embodies the
right to effective counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). Thus, when the trial court decided to appoint
counsel to represent Brice, counsel s obligation to provide effective assistance arose. See id.
In analyzing the effectiveness of counsel in the context of a termination of parental rights, we follow a two-pronged
test that was set forth by the United States Supreme Court in Strickland v. Washington, to determine whether an
attorney s representation was so inadequate as to be in violation of the Sixth Amendment right to effective assistance
of counsel. Id. at 545 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)). In order to show
ineffectiveness of counsel in a termination-of-parental-rights case, the appellant must show that counsel s assistance
fell below an objective standard of reasonableness and that counsel s deficient assistance, if any, prejudiced the
defendant. Id. at 545 (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). We acknowledge that there is a strong
presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Id. (quoting
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065).
INEFFECTIVE ASSISTANCE OF COUNSEL
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Brice s fourth issue contends that the attorney appointed to represent him provided ineffective assistance of counsel
during the termination hearing. The trial court appointed Brice s attorney ad litem on the day of the final hearing.
Nothing in the record suggests that Brice s appointed counsel requested a continuance from the trial court. The
appointed attorney had no opportunity to meet with or consult her client, who was in prison, and she apparently
requested none. The record further shows that counsel s preparation for this hearing was to review Brice s criminal
history. Her presentation of evidence filled one and a half pages of the reporter s record of the final hearing and
consisted of a cross-examination of Denton. During this cross-examination Brice s appointed counsel adduced
evidence that Brice had been arrested for numerous things including harassment and stalking and several indecency
[sic] with a child and indecent exposure, DWI. Applying the first prong of the effectiveness-of-counsel test, we
conclude that counsel s assistance in this case fell below an objective standard of reasonableness.
Next we must consider the question of whether counsel s deficient assistance in this case prejudiced Brice. For
guidance we look again to Strickland, where the United States Supreme Court made it clear that although the burden
upon the appellant is high, a criminal defendant need not show that counsel s deficient conduct more likely than not
altered the outcome in the case. Strickland, 455 U.S. at 693, 104 S.Ct. at 2068. In fact, in every case the court should
be concerned with whether, despite the strong presumption of reliability [of the trial s outcome], the result of the
particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to
produce just results. Id. at 696, at 2069. In this case there was just such a breakdown in the adversarial process.
Counsel took no opportunity to interview Brice, to request a writ of habeas corpus ad testificandum, to find and
interview potential witnesses, to investigate the conviction that was the basis for termination, to request a jury, or to
challenge the pleadings or the statute. Applying the second prong of the test, we believe that Brice was prejudiced by
his counsel s deficient assistance. Accordingly, we hold that Brice was denied effective assistance of counsel. Issue four
is sustained.
OTHER ISSUES
Because we reverse, we do not reach Brice s additional issues, but we are confident that, upon remand, the parties will
be afforded the full protections due them under our Rules of Civil Procedure.
CONCLUSION
In sum, we hold that Brice was denied effective assistance of counsel. We therefore reverse the judgment and remand
the cause for further proceedings.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna //
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed March 10, 2004
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[CV06]
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