Opinion
No. 06-17-00034-CV
06-28-2017
On Appeal from the 196th District Court Hunt County, Texas
Trial Court No. 83144 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Beth's parental rights to her infant twin sons, X.E.A. and X.M.A., have been terminated in a suit brought by the Texas Department of Family and Protective Services (the Department) following a trial to the court. In this accelerated appeal, Beth contends (A) that her counsel was ineffective in two ways, (i) failing to object when the trial court named the Department temporary managing conservator of the children without the benefit of a full adversary hearing and (ii) failing to raise issues regarding the children's removal by the Department and (B) that the trial court erred by failing to hold a hearing on Beth's competency before proceeding with the hearing on the merits of the Department's suit. Because (1) ineffective assistance of counsel has not been established and (2) the permanent order mooted any issue with the temporary order, we affirm the trial court's judgment.
We refer to the children by their initials and to their mother and alleged fathers by fictitious names to protect the privacy of the children. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
The Department's petition for conservatorship and termination alleged every statutory ground for termination found in the Texas Family Code. Attached to the petition was an affidavit of Terri Baker, an investigator for the Department, claiming, among other things, that Beth had not bonded with X.E.A. and X.M.A.; that she failed to adequately feed or care for the children; that she was unable to communicate with Baker regarding the children's needs; that she was unable to identify the children's father or his whereabouts; that the home in which the children were living was in "total disarray"; that Beth had lost custody of another child before this proceeding; and that she had criminal charges currently pending against her.
On April 13, 2016, the trial court convened an adversarial hearing and, at that time, appointed counsel for Beth. Because Beth was in the custody of the Hunt County Jail due to an arrest for unauthorized use of a motor vehicle, the trial court continued the hearing.
On April 26, 2016, the trial court reconvened the adversary hearing and began by ordering Beth to participate in a psychiatric evaluation. It also appointed, "in an abundance of caution," a guardian ad litem for Beth. Further, the trial court found that, because Beth was incarcerated and the alleged fathers had not been served, it would be in the best interests of the children for the court to appoint the Department as temporary managing conservator and to delay Beth's service plan until after the report of her psychiatric evaluation was returned to the court.
During the hearing, the trial court explained to Beth what a psychiatric evaluation was and that, during the pendency of the evaluation, the Department would have temporary managing conservatorship of her children. The trial court then asked Beth if she understood what it had just explained to her. Beth responded that she did. In addition, the trial court asked Beth if she understood its ruling, to which she responded, "I'm okay with that." When asked if she had any question regarding its ruling, Beth informed the trial court that she did not. Beth's trial counsel did not object to the trial court's appointment of the Department as temporary managing conservator of the children.
On May 31, 2016, Beth appeared before the trial court for a status hearing. During the hearing, Nate Newell, a Department caseworker, testified that he had located Tom, who was one of the alleged fathers of the children. According to Newell, Tom had been arrested and was in custody in a correctional facility. Newell visited Tom and inquired as to whether Tom believed he was the father of Beth's children. Tom told Newell that he had not seen Beth in approximately four years and that "there was no way he could be the father" of the infant twin boys. In Newell's presence, Tom signed a waiver of citation and a waiver of interest in the children. Newell also explained that he and a Department investigator had made additional efforts to find a second alleged father, Michael, but that they had been unsuccessful. In addition, Newell tried on several occasions to locate Beth's family members in an attempt to find a suitable placement home for the children, but he had been unsuccessful in his efforts. Newell stated that, in his opinion, Beth remained in need of a psychological evaluation. Newell informed the trial court that the Department would be willing to provide her with transportation to the evaluation. He also explained that, when Beth was released from jail, supervised visits could be arranged for Beth and the children.
Viola Mathis, a court-appointed special advocate, testified that the children were doing well in their placement, in the home of a pediatric nurse. The children's weight had normalized, and they had received all of their immunizations. Mathis explained that, in her opinion, the placement home was appropriate for the children. According to Mathis, the placement family had no issues with Beth visiting the children at the Department offices.
Beth testified that she was currently in jail on criminal charges, which, she believed, were set for trial the following week. Beth stated that, on her release from custody, she would be residing in a local apartment complex. Beth explained that, if she could not live at the apartments, she would call her mother to see if she would be able to live with her. If Beth could not find her mother, she stated that she would contact her grandmother in order to locate her mother. The trial court emphasized to Beth the importance of staying in contact with the Department and the necessity of making use of the services she had been provided.
The trial court explained to Beth that she must refrain from criminal conduct and drug use, submit to random drug testing, maintain stable housing and income, and participate in a psychological evaluation and that she would only be allowed to have supervised visitation with the children.
On September 16, 2016, the trial court held an initial permanency hearing. Although Beth's attorney appeared for the hearing, Beth did not attend. Despite her absence, the trial court proceeded with the hearing. Newel, Beth's caseworker, testified that he had not spoken with Beth since she had been released from custody. Newell explained that, despite making the children available to Beth, she had not attempted to visit them. Likewise, Beth's family members had not attempted to visit the children. According to Newell, the Department's plans had changed since the last hearing, and it was now seeking to terminate Beth's parental rights and to go forward with a non-family adoption of the children.
On September 6, 2016, the Department filed a first amended petition for protection of the child, for conservatorship, and for termination in a suit affecting the parent-child relationship. Beth's attorney and guardian ad litem were served.
Kristi Kennedy-Mallow, the Department's legal liaison, testified that she had seen Beth earlier that day in a grocery store parking lot. Kennedy-Mallow stated that she pulled into the parking lot, stopped her vehicle, and identified herself to Beth. Kennedy-Mallow asked Beth "if she knew that she had court [that day] for her babies." When Beth responded that she was unaware of the court setting, Kennedy-Mallow asked Beth if she would like a ride to the courthouse. Beth informed Kennedy-Mallow that she would have her grandmother take her, and then she walked away. Despite her assurance, Beth did not appear for the hearing.
Over six months after the trial court entered its temporary order naming the Department as the children's temporary managing conservator, the court conducted a trial on the merits. Although Beth was not present, both her attorney and guardian ad litem appeared on her behalf. At trial, Newell testified that the Department had remained unable to locate the second alleged father of the children, Michael. When the trial court asked if Michael might have been a "figment of [Beth's] imagination," Newell stated, "[Y]es, sir." Newell also testified to multiple, unsuccessful efforts to locate Beth's family members, stating that "it was fair to say" that most of Beth's family members were incarcerated.
In addition, Newell explained to the court that, during Beth's confinement, he had questioned her about her future living arrangements. According to Newell, Beth gave him very little information, and the information she did offer was confusing. Newell also testified that he had asked Beth how she planned on taking care of her children. Beth responded that she was not sure. "She didn't say much about them. She didn't ask about them. She didn't really answer the question." Newell stated that he had not seen or spoken to Beth since she had been released from jail, but that his co-workers had seen her walking around various parts of town. Newell attempted to locate Beth in the areas in which she had been seen on seven different occasions, but he was unable to find her.
Newell stated that Beth was unable to provide him with any type of contact information, such as a telephone number where she could be reached. Newell explained that he had given Beth a card containing all of his contact information, including his cell phone number, email address, and the physical address of his office. Despite having this information, Beth did not contact Newell following her release from jail. Newell explained that, because he had no information as to where Beth was living, he had been unable to review the trial court's written service plan with her.
For instance, Beth told Newell that she had been living with a "person named Robert," and she provided Newell with Robert's purported address. Newell went to the address Beth had given him, but found no person by the name of Robert living there.
Beth was released from custody the second week of June.
According to Newell, Beth had done nothing that would lead him to believe she desired to have a relationship with her children. In Newell's opinion, Beth did not have the ability to provide a safe environment for her children. Newell stated that, due to Beth's perceived mental instability, her failure to provide a stable home, and her lack of steady income, he did not believe Beth was the appropriate person to care for the children. Moreover, Newell was concerned about the children's mental and physical health because Beth "never bonded with her children and therefore doesn't have that emotional connection with them."
Newell also testified that, when he first saw the children, "they [looked] slightly malnourished, skinny legs, belly kind of sticking out. They appeared to not be well taken care of." According to Newell, the children were adjusting very well in their placement home and were happy and healthy. He stated that the children's foster mother had bonded with them and "take[s] care of every need they have, make[s] sure there's food in the house, diapers. She has her living room full of toys for the kids. I believe it's a great placement for them." Newell went on to explain that, during his visits to the children's placement home, the children would smile at their foster mother when she picked them up, and they sought her out when they were hungry or needed their diapers changed. Newell stated the children were growing and had gained weight. Newell explained that the Department's plan was termination of Beth's parental rights and then adoption. According to Newell, the Department's plan was in the children's best interests.
Beth's guardian ad litem, Don Parks, testified that he was able to have contact with Beth on only one occasion. On that occasion, Parks reportedly explained to Beth who he was and what his role was during the proceedings. Parks also provided Beth with his contact information and asked her to contact him. Parks testified that Beth had not contacted him and that he had been unsuccessful in his attempts to make further contact with her.
Parks stated that he had spoken with Beth the day of the status hearing when she had been transported from the jail to the courtroom in order to attend the hearing.
Mathis testified that Beth had shown no interest in her children and that she did not believe Beth had the ability to meet the children's physical and emotional needs. Mathis also stated that, if Beth's children were returned to her, Beth might present a physical or emotional danger to them. Mathis testified,
[F]rom what I've read and the time that I saw her in court the last time, [Beth] just seems unstable. She doesn't have any housing. She doesn't have a job. The numbers that she had given have been wrong to locate her. So I just don't think she's got the stability to be a good mom.Mathis explained that she had visited the children in their foster home on several occasions. In her opinion, the children had bonded with their foster mother and were happy in their foster home.
At the conclusion of the hearing, the trial court determined there was clear and convincing evidence that (A) Beth had constructively abandoned her children, who had been in the temporary managing conservatorship of the Department for not less than six months; (B) the Department had made reasonable efforts to return the children to Beth; (C) Beth had not regularly visited or maintained any significant contact with her children; and (D) Beth had demonstrated an inability to provide a safe environment for her children. The trial court concluded that Beth's parental rights should be terminated pursuant to Section 161.001(b)(1)(N) of the Texas Family Code and that the termination of her parental rights was in the best interests of the children. This appeal followed.
See TEX. FAM. CODE ANN. § 161.001(N) (West Supp. 2017) (constructive abandonment).
(1) Ineffective Assistance of Counsel Has Not Been Established
Beth contends that, in light of the concerns regarding her mental health status, her trial counsel was ineffective because he failed to object to the court's appointment of the Department as temporary managing conservator, without the benefit of a full adversary hearing. In a similar contention, Beth also maintains that her trial counsel was ineffective because he failed to raise removal issues at the time of the adversary hearing. In response, the Department asserts that Beth failed to establish that trial counsel's performance was deficient or that the alleged deficiencies prejudiced her.
"In parental-rights termination cases in Texas . . . brought by the Department[,] an indigent person has a statutory right to counsel." In re K.O., 488 S.W.3d 829, 834 (Tex. App.—Texarkana 2016, no pet.). The statutory right to counsel also embodies the right to effective counsel." In re M.S., 115 S.W.3d 534, 544 (Tex. 2003).
In her brief, Beth states,
To simply agree with the Department and the court that the Department should be named managing conservator without compelling the Department to bring witnesses to prove its case forever stripped Appellant of her right to challenge any deficiencies in the evidence, or lack of evidence, presented in the original affidavit or to file a writ of mandamus, or to ever challenge the original removal. Clearly Appellant did not have the mental capacity to be able to make such a decision, therefore trial counsel was ineffective for not preserving Appellant's fundamental rights.
The standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), applies in cases such as this one. M.S., 115 S.W.3d at 544. In Strickland, the Court applied a two-pronged test to determine whether counsel was ineffective, requiring the party asserting ineffective assistance to prove by a preponderance of the evidence that (1) his or her counsel's representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 688. We indulge a strong presumption that counsel's conduct fell within the wide range of reasonable and professional assistance and was motivated by sound trial strategy. M.S., 115 S.W.3d at 545.
Where counsel fails to lodge certain objections or take certain actions, we assume it was due to a strategic motivation; thus, in order to succeed on an ineffective assistance of counsel claim, the appellant must rebut the presumption that trial counsel's actions were in some way reasonable. Id. at 549. The assertion that counsel was ineffective must be demonstrated by the record. In re K.K., 180 S.W.3d 681, 685 (Tex. App.—Waco 2005, no pet.). Without a record of counsel's reasons for his or her behavior, the proponent of the claim has a difficult burden to overcome because the challenged action might be considered as a sound trial strategy. In re J.M.S., 43 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.] 2001, no pet.). When the record is silent as to the reasons for counsel's conduct, the reviewing court may not speculate in an effort to find counsel's representation ineffective. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
In this case, the record is silent as to Beth's counsel's reasoning for his actions during the April 26 adversary hearing. The record does show, however, that, when the trial court named the Department as temporary managing conservator, Beth was in custody on pending criminal charges. Thus, when the trial court made its ruling, Beth was not in a position to assume custody of her children. This was so regardless of whether an issue existed as to Beth's mental competency. Further, nothing in the record suggests that the trial court had any other available placement options at the time. This record reveals no basis on which trial counsel could object to the trial court's decision to name the Department as temporary managing conservator and no evidentiary basis on which to raise removal issues.
Moreover, the testimony presented at the subsequent hearings and the termination trial established, in part, that Beth (1) failed to bond with her children from the time they were born; (2) failed to properly care for them during the time she had possession of them; (3) was incapable of providing them with suitable housing; (4) was unemployed, and had no employment prospects for the future; (5) seemed wholly disinterested in her children; and (6) was not inclined to take steps to be reunited with her children. Had trial counsel objected to the court naming the Department temporary managing conservator of the children, or had he asked the trial court for a contested adversary hearing for the purpose of raising removal issues, the Department would have very likely presented at least some of this evidence to the trial court. There is little doubt that trial counsel was aware of his client's actions or inactions and made a strategic choice to, at least, delay its presentation, thereby giving Beth the opportunity to participate in the services she had been offered. Based on the record before us, we cannot say that trial counsel's actions fell below an objective standard of reasonableness and that, thus, Beth has failed to satisfy the first Strickland prong.
Even if Beth's trial counsel erred when he failed to object to the trial court's decision to appoint the Department as temporary managing conservator of the children without the benefit of a full adversary hearing, for the reasons discussed below, she has failed to show that counsel's actions had a prejudicial effect on the outcome of the trial court's final determination, that is, termination of Beth's parental rights to her children.
Beth also contends she lacked the mental capacity to agree to the appointment of the Department as temporary managing conservator of the children. As such, Beth maintains she received ineffective assistance of counsel because her attorney failed to seek a continuance until the issue of Beth's competency had been addressed. We disagree. But, even assuming that counsel's failure to seek a continuance amounted to deficient performance, Beth's contention remains without merit.
First, this record contains no evidence showing that Beth was, or had ever been, incompetent. The trial court ordered Beth to participate in a psychological evaluation, carefully explained the process of the evaluation, and underscored the importance of Beth following through with the evaluation. Beth indicated that she understood the trial court's instructions and that she would participate in the evaluation. The evidence shows, however, that Beth demonstrated little, if any, interest in cooperating with the Department in order to be reunited with her children. This lack of cooperation included Beth's failure to participate in the court-ordered psychological evaluation, which failure continued up until the time of the final termination of Beth's parental rights. Thus, had Beth's trial counsel sought and received a continuance in an effort to address any issues of Beth's competency, the result of the proceeding would not have been any different, with the sole exception of delaying the process. Without any showing of prejudice, ineffective assistance of counsel has not been shown.
We overrule Beth's assertions of ineffective assistance of counsel.
(2) The Permanent Order Mooted any Issue with the Temporary Order
Beth contends that, because the trial court appointed the Department as temporary managing conservator without a full adversary hearing, she "was denied due process as her mental status prevented her from making a knowing, intelligent and voluntary waiver of her right to an adversary hearing." Beth states,
While it is true it was the duty of Appellant's trial counsel to object to such an order, and not doing so was ineffective on the part of trial counsel, the trial court was the last vestige of hope Appellant had for her rights to be protected. Like her trial counsel, the [trial] court also erred by accepting the agreement and allowing Appellant to forever lose her right to challenge the removal of her children from her care.Although Beth couches her claim as a due process violation, she is essentially complaining of the trial court's temporary order awarding temporary managing conservatorship to the Department. But it was the trial court's final order of termination, not its temporary order, that would finally settle at the trial level Beth's rights to challenge the removal of the children or to recover them.
"[A] temporary order is superseded by the entry of a final order of termination, rendering moot any complaint about the temporary order." In re J.F.G., III, 500 S.W.3d 554, 559 (Tex. App.—Texarkana 2016, no pet.) (quoting In re A.K., 487 S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.); In re C.R.J., No. 06-13-00053-CV, 2014 WL 199209, at *2 (Tex. App.—Texarkana Jan. 17, 2014, no pet.) (mem. op.) (complaints regarding temporary hearings or temporary orders rendered moot when final termination order was entered). Because the trial court has entered its final order in this case, Beth's challenge to the trial court's temporary order is moot. We overrule this point of error.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: May 17, 2017
Date Decided: June 28, 2017