in the Interest of K.S., J.H., K.M.S., M.S., B.C.S., and A.S.

• Court: Court of Appeals of Texas
• Decided: July 14, 2022
• Docket: 09-22-00041-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00041-CV __________________

IN THE INTEREST OF K.S., J.H., K.M.S., M.S., B.C.S. AND A.S.

__________________________________________________________________

On Appeal from County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 19-10-14600-CV __________________________________________________________________

MEMORANDUM OPINION

Following a trial by jury, the trial court signed an order terminating

Mother’s and Father’s parent-child relationships with Kurt, James, Kara,

Miles, Bridget, and Adrian. 1 The jury found that terminating the

relationships to be in the best interest of each child.

1To protect the identities of the minors, we use pseudonyms to refer to them. See Tex. R. App. P. 9.8(b)(2). The trial court’s order reflects the jury found Mother’s and Father’s parental rights to their children should be terminated on various grounds, which we do not address since Mother and Father have not challenged the jury’s findings on the grounds the trial court terminated them in the appeal. 1 After the trial court rendered judgment on the jury’s verdict,

Mother and Father filed appeals. After that, they filed separate but

identical briefs. Mother and Father raise two issues in their briefs. In

issue one, they argue the trial court abused its discretion when, on its

own motion, it found extraordinary circumstances required the children

to remain in the temporary managing conservatorship of the Department

of Family and Protective Services (the Department), which allowed the

trial court to avoid automatically dismissing the Department’s suit under

the mandatory dismissal deadline imposed by section 263.401 of the

Texas Family Code. 2

In issue two, Mother and Father complain about an order

consolidating Trial Court Cause Number 21-03-03100-CV (the suit

involving Adrian) into Trial Court Cause Number 19-10-14600-CV (the

suit involving Kurt, James, Kara, Miles, and Bridget). Mother and

Father argue the consolidation was prejudicial because it resulted in the

attorneys who represented them in the trial court rendering ineffective

assistance of counsel when they failed to object when the trial court

2See Tex. Fam. Code Ann. § 263.401. 2 announced it was consolidating the cases, which resulted in the case

involving Adrian being tried along with the earlier filed case involving

Mother’s and Father’s five other children in the trial that began in

November 2021. We conclude Mother’s and Father’s arguments were

either not properly preserved or that they lack merit, so we affirm.

Background

In October 2019, the Department filed a petition asking the trial

court to sign an order allowing the Department to remove Kurt, James,

Kara, and Miles from their home and to name the Department as their

temporary managing conservator. The next day, the trial court signed an

order authorizing the Department to remove the four children named in

the Department’ petition from Mother’s and Father’s home after finding

an immediate danger existed to their health. The trial court named the

Department as their temporary sole managing conservator. In due

course, the trial court appointed separate attorneys to represent Mother

and Father in the case involving Kurt, James, Kara, and Miles.

Later that same month, Mother had a fifth child, Bridget. Shortly

after that, the Department amended its petition and asked the trial court

to terminate Mother’s and Father’s rights to Bridget too. In a 3 supplemental order, the trial court named the Department as Bridget’s

temporary sole managing conservator.

Eight months later, Mother and Father demanded a trial by jury.

In July 2020, the judge of the 418th District Court transferred the case

“out of the 418th District Court and into County Court at Law Number 3

(Transferee Court) for purposes of docket equalization.”

On October 30, 2020, the judge of the County Court at Law Number

3 conducted a permanency hearing. During the hearing, the trial court

advised the attorneys that the court, “on my own motion,” was “going to

grant a general extension” and “finding extraordinary circumstances”

based on “a combination . . . but not limited to the follow[ing]:”

1. “the case was transferred to this court from the original court very late in the case, almost eight - - well, actually almost ten months into it.”

2. “We also have a jury demand that requires special consideration during this COVID period. . . I already have two or three juries that have to be scheduled before the end of the year. So I would not logistically be able to do that.”

3. “[W]e have multiple potential caregivers for these children. We have a pending ICPC home study out of the state of New Hampshire, and I think that the parties have not had an opportunity to fully mediate this case and address all possible outcomes.”

4 During the same hearing—which we note the court conducted one

year and two days after the trial court appointed the Department as

temporary sole managing conservator of Mother’s and Father’s

children—the judge found “extraordinary circumstances” required the

children to remain “in the temporary managing conservatorship of the

[Department] and that continuing the appointment of the Department as

temporary managing conservator is in the best interest of the children.”

In the same order, the trial court set the trial for April 2021. The trial

court also established a new date on which the case would be dismissed

by operation of law if it was not tried.

In March 2021, Mother gave birth to her sixth child, Adrian.

Shortly after Mother had that child, the Department filed a petition in

the County Court at Law Number 3 seeking to terminate Mother’s and

Father’s parent-child relationship with Adrian. That same day, the trial

court, by emergency order, named the Department as Adrian’s temporary

sole managing conservator.

Between March and September 2021, the trial court conducted

additional permanency hearings. In these hearings, the trial court signed

orders continuing the Department’s appointment as the temporary

5 managing conservator of the children, set a new trial date for November

15, 2021, and established a December 1, 2021, as the new date on which

the case would be automatically dismissed by operation of law if not tried.

The parties tried the case to a jury beginning in November 2021.

When the trial ended, the jury answered several issues in favor of the

Department’s allegations claiming there were grounds that justified

terminating Mother’s and Father’s parent-child relationship with each

child subject to the consolidated suit. Following the trial, the trial court

signed an order terminating Mother’s and Father’s parental rights to

their children, Kurt, James, Kara, Miles, Bridget, and Adrian.

Analysis

Did the trial court abuse its discretion by extending the dismissal deadline?

Section 263.401 of the Texas Family Code creates an automatic

dismissal deadline that generally requires trial courts to dismiss

parental rights termination cases within a year (more or less) of the date

the trial court authorized the Department to remove from a child from a

parent’s home. 3 The reason we refer to the period as a year (more or less)

3Id. § 263.401. 6 is that the automatic dismissal date allows the trial court to retain the

suit on its docket until a defined statutory deadline that ends on the first

Monday after the first anniversary of the date the trial court rendered

the temporary order appointing the Department as child’s temporary

managing conservator. 4 Then, subsection (b) of the automatic dismissal

statute provides that unless the trial has started by the statutory

deadline, the trial court

may not retain the suit on the court’s docket after the [date the trial was scheduled to have commenced] unless the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. (emphasis added). 5

In this case, the trial court conducted a permanency hearing in the

consolidated case involving Mother’s and Father’s six children on October

22, 2020. During the hearing, the trial court found that extraordinary

circumstances existed to retain Trial Court Cause Number 19-10-14600-

CV on the court’s docket. The court ordered the Department to remain as

the temporary managing conservator of Mother’s and Father’s children,

4Id. § 263.401(a). 5Id. § 263.401(b). 7 and it found that leaving the Department as their temporary managing

conservator to be in the children’s best interest.

Turning to our analysis of Mother’s and Father’s arguments, we

note the automatic dismissal statute, section 263.401, provides courts

and parties with little to no guidance about what procedures parties are

to follow when they need extensions that result from circumstances that

may arise over the life of a case. 6 For example, no definition exists in

section 263.401 for the term extraordinary circumstances. 7 Yet since the

extensions mentioned in section 263.401 are much like continuances, we

will apply an abuse of discretion standard to the ruling that Mother and

Father challenge in their appeal to the extension the trial court granted

here. 8

“The test for abuse of discretion is not whether, in the opinion of the

reviewing court, the facts present an appropriate case for the trial court’s

action. Rather, it is a question of whether the court acted without

§ 263.401. 6Id. 7As commonly understood, the term means “more than ordinary :

not of the ordinary order or pattern or norm.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 807 (2002). 8In re D.W., 249 S.W.3d 625, 647 (Tex. App.―Fort Worth 2008, pet.

denied). 8 reference to any guiding rules and principles.” 9 “The mere fact that a trial

judge may decide a matter within [their] discretionary authority in a

different manner than an appellate judge in a similar circumstance does

not demonstrate that an abuse of discretion has occurred.” 10

In our opinion, the circumstances the led the trial court to grant the

extension fall within the ordinary meaning of the word extraordinary

since the circumstances shown in the record were certainly not within

the ordinary order, pattern, or norm. During the hearing, the trial court

articulated problems it was having obtaining juries because of the Covid-

19 pandemic complicated further by the fact that other juries were

already scheduled ahead of the Mother’s and Father’s case that were on

the court’s docket. The problems in scheduling jury trials during the

Covid-19 pandemic were complicated by the fact that two of the children

involved in the case were involved in home studies being conducted in

another state, studies that had reportedly resulted in their own delays.

9Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). 10Id. at 242.

9 Mother and Father suggest the trial court abused its discretion in

failing to focus on the needs of their children during the permanency

hearing when it decided to grant the extension and focused instead on

the needs of the court. Certainly, the discussion that occurred in the

hearing reflect the trial court was concerned about when it could schedule

the case for trial given the problems associated with getting jurors during

a pandemic, but the scheduling problems associated with the need for

jurors is a problem linked to Mother’s and Father’s demand to have a jury

resolve the dispute, not a demand made by the court. And while the trial

court never specifically discussed its thoughts about the children’s needs,

there is testimony the trial court heard during the hearing about the

children’s needs and their progress while the children were in the

Department’s care. 11 Mother and Father also never asked the trial court

11During the hearing, the Department’s attorney told the court that the Department was awaiting paperwork from studies of homes involving relatives of the children, some of whom were in other states. According to the Department’s caseworker, who was present during the hearing, the Department was waiting on “everything to come back from [another] state.” She also described the Department’s current goals and alternative goals for the children, explaining that three of the four children have special needs, needs the caseworker described. The caseworker testified that in her opinion, it was in the best interest of the children for the court 10 to make specific findings beyond those the trial court orally stated in the

hearing to explain why it was finding extraordinary circumstances

existed to justify retaining the case on its docket beyond the statutory

deadline. 12

Mother’s and Father’s attorneys cross-examined the caseworker in

the hearing, but they called no witnesses of their own. In their briefs, the

appellants point to no testimony in the record to support any claim that

the trial court ignored any of the testimony before it in the hearing (or in

any of the proceedings before the hearing occurred) that addressed the

children’s needs.

In addition to criticizing the trial court for not focusing on the

children’s needs, Mother and Father argue the trial court abused its

discretion by failing to make the specific findings required by section

263.401(b) to support its extraordinary circumstances finding. While we

disagree the trial court did not make the findings that are required by

to continue the Department’s appointment as the children’s temporary managing conservator. 12See Tex. R. Civ. P. 299 (Omitted Findings). Mother and Father

filed the suit to terminate Kurt, James, Kara, and Miles on October 28, 2019. 11 263.401(b), the omitted findings Mother and Father argue the trial court

should have made—a finding focusing on the needs of the children rather

than the needs of the court—concern complaints raised for the first time

on appeal that Mother and Father failed to properly preserve for our

review. 13 As to Mother’s and Father’s argument that the trial court

omitted necessary findings in its order, the Texas Supreme Court has

explained: “[C]omplaints regarding the trial court’s compliance with the

requirements in subsection (b) must be preserved for appellate review.”14

We conclude Mother and Father failed to preserve any complaint that the

trial court failed to provide them with specific findings addressing the

children’s needs as related to why extraordinary circumstances justified

an extension of the dismissal deadline assuming without deciding that

such findings, if specifically requested, are required.

Even were we to liberally construe Mother’s and Father’s

complaints as an argument that the evidence is insufficient to support a

finding of extraordinary circumstances or a finding that it was in the

children’s best interest to continue the Department’s appointment as the

13Tex. R. App. P. 33.1. 14Interest of G.X.H., 627 S.W.3d 288, 301 (Tex. 2021). 12 children’s temporary managing conservator, those arguments would also

fail. The caseworker’s testimony supports the trial court’s best-interest

finding about continuing the Department’s appointment as the children’s

temporary managing conservator pending the trial. And we have already

explained why we agree with the trial court that this case does not fit the

ordinary pattern or norm. Because Mother’s and Father’s arguments

were either not properly preserved or if they were they lack merit, the

issue is overruled.

Did the appellants preserve their complaint about the ruling consolidating Trial Court Cause Number 21-03-03100-CV with Cause Number 19-10-14600-CV?

In issue two, Mother and Father raise two separate arguments.

First, they complain the trial court erred by ordering the case involving

Adrian, a case the Department filed in March 2021, consolidated into the

case the Department filed earlier to terminate their rights to Kurt,

James, Kara, Miles, and Bridget. Around five months before the trial

occurred in November 2021, the trial court signed the order consolidating

the two causes, which then allowed the cases to be tried before the same

jury.

13 Here, the appellants suggest they suffered prejudice when the trial

court consolidated the suit the Department filed that involved five of

their children with the suit the Department filed to address the rights to

Adrian because in Adrian’s case they did not have “the full opportunity

to fulfill the requirement[s]” of their service plans. Specifically, they

complain that had the cases not been consolidated, they would have

benefitted by having been able to participate in additional therapy

sessions given the testimony of their therapist that additional therapy

might have been beneficial in resolving anger issues their therapist

noticed that Mother and Father experienced during the therapy sessions

conducted over the four-to-five-month period in which they were in

therapy before the trial. 15 Even so, Mother and Father concede on appeal

that the attorneys who represented them in the trial court “failed to

15The psychotherapist who treated Mother and Father for a four-to- five-month period before the trial expressed there was anger and signs of domestic violence present in the home, although Mother and Father denied that Father hit Mother even though the therapist noted Mother had bruises near her elbow. Father admitted he had problems drinking in the past but denied having problems currently or during the time he was meeting with the therapist. As to recommendations for additional therapy for their anger issues, the psychotherapist testified that he thought additional therapy would be beneficial if Mother and Father “were willing to address it.” 14 object” when the trial court ordered Trial Court Cause Number 21-03-

03100-CV consolidated into Trial Court Cause Number 19-10-14600-

CV. 16

The general rule of error preservation requires parties to preserve

error through a timely request, objection, or motion in the trial court to

give the trial court a fair opportunity to rule on the party’s complaint.17

Here, Mother and Father acknowledge the trial court never ruled on any

objection and the attorneys who represented them in the trial court

lodged no objections to the Department’s motion or to the trial court’s

order consolidating the cases for trial. By failing to object, Mother and

Father failed to preserve their complaint about the trial court’s ruling

consolidating the cases for trial. 18

Alternatively, Mother and Father argue they received ineffective

assistance of counsel because their attorneys failed to object to the trial

court’s order consolidating the two causes for trial. According to the

appellants, they were prejudiced by their respective attorney’s failure to

16The attorneys who filed Mother’s and Father’s briefs are not the attorneys who represented them in the trial. 17See Tex. R. App. P. 33.1(a). 18Id.

15 object because the consolidation of the two cases interfered with Mother’s

and Father’s ability to complete the tasks in their family service plans.

In parental-rights termination cases, Texas courts follow the test

established in Strickland v. Washington, 466 U.S. 668, 687 (1984) to

measure a parent’s allegation that the parent received constitutionally

ineffective assistance of counsel. 19 To prove an ineffective assistance

claim, the party asserting the claim must establish that (1) counsel’s

performance was deficient and (2) the deficient performance prejudiced

the defense. 20 Under Strickland, the parent must “successfully show both

prongs of the inquiry.” 21 The parent who is claiming ineffective assistance

has the burden of proof on the claim. 22

In considering claims alleging ineffective assistance, we “take into

account all of the circumstances surrounding the case, focusing on

whether counsel performed in a ‘reasonably effective’ manner.” 23 Our

review of the record is deferential, and we presume counsel’s conduct fell

19In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). 20See Strickland v. Washington, 466 U.S. 668, 687 (1984); In re

J.P.B., 180 S.W.3d 570, 574 (Tex. 2005). 21See Strickland, 466 U.S. at 688, 694; M.S., 115 S.W.3d at 545. 22M.S., 115 S.W.3d at 545. 23Id. (citing Strickland, 466 U.S. at 687).

16 within the range of reasonable professional assistance since we must

consider “the possibility that counsel’s actions [were] strategic.”24

Importantly, allegations “of ineffective assistance must be firmly founded

in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” 25 So when the decision criticized in the appeal concerns

matters of trial strategy, complaints alleging ineffective assistance are

not generally firmly founded on the record unless the strategy that

counsel followed in conducting the trial was one that was so outrageous

“no competent attorney would have engaged in it[.]” 26

We cannot say no competent attorney would have allowed the cases

to be consolidated under the circumstances that exist under the record

that is before us here. Perhaps Mother’s and Father’s attorneys

considered it to the parents’ advantage to allow Adrian’s case, Trial Court

Cause Number 21-03-03100-CV, to be consolidated into the earlier cause

on the theory that the Department had less proof in Adrian’s case than

in the others, believing that the weakness of the Department’s case in

24Id. 25Walker v.Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (cleaned up). 26M.S., 115 S.W.3d at 545 (cleaned up).

17 the more recently filed case weakened the Department’s case overall.

Simply put, without a record explaining the trial counsel’s strategy, we

cannot know that no competent attorney would not have objected to

consolidating the two causes, which is what occurred here on a record

that is silent about the reasons for trial counsels’ strategy.

Mother and Father suggest that had they had more time with their

therapist, their anger issues might have improved and their chances at

avoiding having their relationship with Adrian terminated would have

likewise improved. But the psychotherapist who testified never said he

thought Mother’s and Father’s anger issues would resolve or improve by

March 2022, the one-year anniversary of the date the Department filed

the petition to terminate the parent-child relationship between Mother,

Father, and their child Adrian. He also never said their anger issues were

likely to improve, only that with more therapy and if Mother and Father

were willing to address the problems, the problems possibly could

improve.

After reviewing the record, we find Mother’s and Father’s claims of

ineffectiveness of counsel are not firmly founded or supported by the

18 record. We overrule their ineffective assistance of counsel argument

because the arguments they rely on to support it lack merit. 27

Conclusion

For the reasons explained above, the trial court’s judgment is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on June 6, 2022 Opinion Delivered July 14, 2022

Before Kreger, Horton and Johnson, JJ.

27See In re A.S., No. 09-21-00142-CV, 2021 Tex. App. LEXIS 8988, at *34 (Tex. App.—Beaumont Nov. 4, 2021, pet. denied) (mem. op.) (“An allegation of ineffective assistance of counsel in a termination proceeding must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness and the resulting harm.”); In re S.M.T., 241 S.W.3d 650, 653 (Tex. App.—Beaumont 2007, no pet.) (“Any claim of ineffective assistance must be firmly founded in the record and the record must affirmatively demonstrate the ineffectiveness.”). 19