OPINION From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA00929 Honorable Charles E. Montemayor, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice Delivered and Filed: March 1, 2023 AFFIRMED IN PART; REVERSED IN PART AND REMANDED This is an accelerated appeal from an order terminating appellant K.H.’s parental rights to her daughter, J.C.H.-P.[1] In her sole issue, K.H. argues she received ineffective assistance of counsel at trial. Because we conclude K.H. received ineffective assistance of counsel, we reverse the trial court’s order of termination as it pertains to K.H. only and remand the cause for a new trial. We further affirm the trial court’s appointment of the Department as managing conservator of J.C.H.-P. BACKGROUND The Texas Department of Family and Protective Services became involved with the family in 2019 after receiving allegations K.H. was exposing two-year-old J.C.H.-P. to ongoing episodes of domestic violence, substance abuse, and instability. Based on these allegations, the Department opened a family-based services case in an attempt to preserve the family unit. The Department closed the case at the end of 2020 only to re-open it six months later after it continued receiving reports regarding J.C.H.-P.’s wellbeing. By May 2021, it initiated temporary removal proceedings by filing a petition seeking temporary managing conservatorship of J.C.H.-P. and termination of K.H.’s parental rights.[2] The trial court set the case for a Zoom hearing on June 21, 2021 to consider the Department’s request for temporary orders. Both K.H. and her retained attorney appeared at the June hearing, and the trial court ultimately signed a removal order naming the Department temporary managing conservator and appointing K.H. temporary possessory conservator with limited rights and duties. The trial court also ordered K.H. to comply with all the provisions of the Department’s service plan, which required her to complete parenting classes, maintain a safe and drug-free home for J.C.H.-P., submit to random drug testing, complete a drug and alcohol dependency assessment, submit to a psychological evaluation, and engage in individual counseling. The Department then placed J.C.H.-P. with her maternal grandparents. On August 19, 2021, the trial court held a Zoom status hearing, and the record reflects both K.H. and her retained counsel appeared. The trial court signed an order finding, although K.H. had reviewed and understood her service plan’s requirements, she had not signed the service plan. The order also included a pretrial scheduling order, which set the case for a Zoom bench trial on March 31, 2022. A subsequent Zoom permanency hearing was held on December 8, 2021, where only K.H.’s attorney appeared and announced not ready. The trial court proceeded with the case and entered an order finding K.H. had not demonstrated adequate compliance with the service plan; the order also included notice of the March 31, 2022 trial setting. Another Zoom permanency hearing occurred on March 3, 2022, and the record reflects neither K.H. nor her attorney appeared. Finally, on March 31, 2022, the trial court held the Zoom bench trial, and again neither K.H. nor her attorney appeared. The record shows when the trial court called the case for announcements, the trial court checked with the trial court clerk to determine if K.H.’s counsel had withdrawn. The trial court noted counsel had not filed a motion to withdraw, but he had “appeared on [K.H.'s] behalf in open court at earlier hearings.” The trial court then proceeded with the case and heard testimony from a Department caseworker and J.C.H.-P.’s maternal grandmother. The trial court terminated K.H.’s parental rights to J.C.H.-P., finding she constructively abandoned J.C.H.-P., she failed to engage in court-ordered services, she failed to complete drug treatment, and termination of her rights was in J.C.H.-P.’s best interest. See id. §§ 161.001(b)(1)(N), (O), and (P), 161.001(b)(2). K.H. now appeals, complaining her retained counsel’s absence constituted ineffective assistance. INEFFECTIVE ASSISTANCE OF COUNSEL Texas courts, including this court, have long recognized parents have a fundamental right “to make decisions concerning the care, custody, and control of their children.” In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (quoting Troxel v. Granville, 530 U.S. 57, 66, (2000) (plurality op.)) (internal quotation marks omitted); see, e.g., In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (orig. proceeding); In re I.L., 580 S.W.3d 227, 238 (Tex. App.—San Antonio 2019, pet. dism’d); Matter of S.C., 523 S.W.3d 279, 286 (Tex. App.—San Antonio 2017, pet. denied); In re J.O., No. 04-07- 00752, 2008 WL 2037404, at *3 (Tex. App.—San Antonio May 14, 2008, no pet.) (mem. op.). When the government seeks not only to infringe on this fundamental right, but to terminate the right altogether, such termination is considered “‘traumatic, permanent, and irrevocable’” and “constitutes the ‘death penalty’ of civil cases.” D.T., 625 S.W.3d at 69 (quoting In re M.S., 115 S.W.3d 534, 549 (Tex. 2003); In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)). Given the fundamental nature of the interests at stake, our laws afford indigent parents opposing state-initiated termination proceedings the right to appointed counsel. Id.; see TEX.FAM. CODE § 107.013(a) (providing indigent parents in parental-termination suits statutory right to counsel). In In re M.S., the Texas Supreme Court held this “embodies the right to effective counsel.” D.T., 625 S.W.3d at 69 (citing In re M.S., 115 S.W.3d 534, 544 (Tex. 2003)). Since then, many Texas courts of appeal, including this court, have limited M.S.‘s holding “to apply only in cases in which the parent opposing termination was indigent and had appointed counsel,” and thus, have not recognized a right to effective counsel when counsel is retained. Id. at 70; see, e.g., In re C.J., No. 04-14-00663-CV, 2015 WL 1089660, at *2 (Tex. App.—San Antonio Mar. 11, 2015, no pet.) (mem. op.) (recognizing we have previously held parent who hires counsel in parental-termination proceeding cannot raise ineffective assistance of counsel claim to challenge termination order); In re V.G., No. 04-08-00522–CV, 2009 WL 2767040, at *12 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.) (holding because parent had retained counsel rather than appointed, he was not entitled to raise ineffective assistance claim); Martin v. Martin, No. 04- 04-00828-CV, 2005 WL 1552763, at *1 (Tex. App.—San Antonio July 6, 2005, no pet.) (mem. op.) (holding “no claim for ineffective assistance of counsel lies in a civil case where counsel is retained”). Recently, however, the Texas Supreme Court clarified M.S. is not limited to only cases involving indigent parents with appointed counsel. In In re D.T., the Texas Supreme Court recognized when the state initiates a parental-termination proceeding, the need to protect a parent’s fundamental liberty interest exists irrespective of how the parent obtained representation. 625 S.W.3d at 73. The high court expressly held “a parent who responds in opposition to a government-initiated suit seeking termination of the parent–child relationship may assert a claim for ineffective assistance of counsel on appeal regardless of whether the parent’s counsel was appointed or retained.” Id. To successfully raise an ineffective assistance of counsel claim in a parental-termination case, a parent must meet the United States Supreme Court’s two-prong test set out in Strickland v. Washington. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under Strickland, a parent appealing a termination order must show by a preponderance of the evidence her “trial counsel’s performance fell below an objective standard of reasonableness” and she was “prejudiced by trial counsel’s defective performance.” In re J.A.B., 562 S.W.3d 726, 729 (Tex. App.—San Antonio 2018, pet. denied) (citing Strickland, 466 U.S. at 687). In determining whether counsel’s performance fell below an acceptable level, 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.” In re J.M.O., 459 S.W.3d 90, 93 (Tex. App.—San Antonio 2014, no pet.). “[T]o show prejudice, an appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (internal quotation marks omitted). In certain contexts, however, prejudice may be presumed. See Strickland, 466 U.S. at 692; see also United States v. Cronic, 466 U.S. 648, 659 (1984). As recognized by the United States Supreme Court in Strickland and Cronic, the “[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice[,]” and “ if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 659. Relying on these cases, we have held in cases where a parent’s court-appointed attorney failed to appear at trial, counsel’s absence amounted to ineffective assistance because “no plausible strategic reason” existed to explain counsel’s absence during “such a critical stage of litigation,” and “a presumption of prejudice [was] warranted.” J.M.O., 459 S.W.3d at 93–94 (holding father was denied effective assistance of counsel when court-appointed counsel did not appear at trial); see J.A.B., 562 S.W.3d at 729–30 (relying on Cronic and holding Strickland prongs satisfied when parent showed court-appointed counsel was not present for the entirety of the Department’s case). Here, K.H.’s argument focuses on the prejudice prong of the Strickland test. K.H. argues her retained counsel’s absence at trial is presumptively prejudicial because she was denied counsel at a “critical stage of litigation.” For support, she relies on our holding in In re J.M.O., where we concluded court-appointed counsel’s absence at trial in a parental-termination proceeding made the adversarial process “so unreliable that a presumption of prejudice is warranted.” 459 S.W.3d at 94. In response, the Department does not dispute a parent who retains counsel can raise an ineffective of assistance of counsel claim. Instead, the Department argues a presumption of prejudice is not warranted in this case as in J.M.O. It asserts this case is distinguishable from J.M.O. because K.H.’s absence was voluntary unlike the father in J.M.O., who was involuntarily absent because his counsel failed to make arrangements with the state-jail facility. We are not persuaded by the Department’s attempt to distinguish this case from J.M.O. There is nothing in the record indicating why K.H. did not appear at trial; therefore, we will not presume her absence was voluntary. Moreover, the Department has not directed us to any authority, nor have we found any, indicating a presumption of prejudice is not warranted if a parent is voluntarily absent from trial. The law is clear: the denial of counsel at a critical stage of trial is presumptively prejudicial. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 659; J.M.O., 459 S.W.3d at 94. Thus, in light of In re D.T., which applies ineffective assistance of counsel claims to parents with retained attorneys, we see no reason why a presumption of prejudice should not apply if a parent’s retained counsel fails to appear at trial in a parental-termination proceeding. Here, it is undisputed K.H.’s retained counsel did not appear at trial. As we reasoned in J.M.O., there is no plausible strategic reason to explain why K.H.’s trial counsel failed to appear at such a critical stage of the litigation and subject the Department’s case to appropriate adversarial testing. See J.M.O., 459 S.W.3d at 94. And, because counsel failed to subject the Department’s case to a meaningful adversarial process, a presumption of prejudice is warranted. See id. Accordingly, we hold K.H. was denied effective assistance of counsel. See id. CONSERVATORSHIP Regarding the portion of the trial court’s order appointing the Department as permanent managing conservator, the Department argues we should affirm this portion of the order even if we conclude K.H. received ineffective assistance of counsel. We agree because K.H. did not challenge the Department’s conservatorship appointment. Accordingly, we affirm the trial court’s appointment of the Department as managing conservator of J.C.H.-P. See J.A.B., 562 S.W.3d at 730 (affirming trial court’s appointment of Department as managing conservator when parent does not challenge appointment on appeal). CONCLUSION Based on the foregoing, we hold K.H. received ineffective assistance of counsel at trial. We therefore reverse the trial court’s order of termination as it pertains to K.H. only and remand the cause to the trial court for a new trial. We further affirm the trial court’s appointment of the Department as managing conservator of J.C.H.-P. Luz Elena D. Chapa, Justice
