In re B.C., 02-22-00256-CV

CourtCourt of Appeals of Texas
Writing for the CourtBRIAN WALKER JUSTICE
PartiesIn the Interest of B.C. and Z.C., Children
Docket Number02-22-00256-CV
Decision Date23 November 2022

In the Interest of B.C. and Z.C., Children

No. 02-22-00256-CV

Court of Appeals of Texas, Second District, Fort Worth

November 23, 2022


On Appeal from the 97th District Court Montague County, Texas Trial Court No. 2021-0086M-CV

Before Birdwell, Bassel, and Walker, JJ.

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MEMORANDUM OPINION

BRIAN WALKER JUSTICE

In two issues with various subissues, Appellant Father appeals the trial court's judgment terminating his parental rights to his children, B.C. and Z.C.[1] Father contends that the trial court erred by depriving him of (1) his right to appointed counsel and (2) his privilege against self-incrimination. We will affirm.

I. BACKGROUND

A. Procedural Background

Based on concerns that Mother, Father, Paternal Grandmother, and Paternal Grandmother's boyfriend were using illegal drugs in the home with the children, and because of concerns that boyfriend might have engaged in sexual misconduct with B.C., the Texas Department of Family and Protective Services (Department) filed its March 24, 2021 petition seeking termination of Father's parental rights to B.C. and Z.C.[2] The only alleged conduct ground was that Father had "knowingly placed or knowingly allowed the child[ren] to remain in conditions or surroundings which endanger[ed]" their physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). That same day, the trial court entered its ex parte emergency

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order naming the Department as temporary managing conservator of the children. The order also informed the parents that they may be entitled to appointed counsel:

YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS FAMILY CODE, TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT 97TH JUDICIAL DISTRICT COURT OF MONTAGUE COUNTY 9007TH STREET, ROOM 401, WICHITA FALLS, TEXAS 76301, (940) 716-8624. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU.[3]

On April 16, 2021, an adversary hearing was held at which Father appeared via Zoom without an attorney. See id. § 262.201. After this hearing, the trial court entered temporary orders that contained a notice-identical to the one referenced above-to the parents of their right to appointed counsel.

On May 20, 2021, a status hearing was held at which Father did not appear. See id. § 263.201. On September 16, 2021, an initial permanency hearing was held at which Father did not appear. See id. § 263.304. And on January 5, 2022, a subsequent permanency hearing was held at which Father appeared from jail via Zoom and

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without an attorney.[4] See id. § 263.305. The trial court ordered that Father be provided that same day with an indigency affidavit form to determine whether he was eligible to receive appointed counsel. On January 6, 2022, based on the information Father had provided in this affidavit, the trial court appointed attorney Tiffany Fowler to represent him. Citing the need for more time to prepare for trial, Fowler moved for an extension of the case dismissal deadline, which the trial court granted.

On May 26, 2022-less than a week before the start of trial-Fowler filed a written motion to withdraw as counsel for Father on the grounds that Father "no longer wishe[d] to be represented by Tiffany Fowler and wishe[d] to represent himself or be appointed new counsel." At the commencement of the trial on June 1, 2022, Fowler orally moved for a continuance and presented her motion to withdraw as counsel, citing Father's displeasure with their "inability to effectively communicate." Fowler explained to the trial court that she had attempted to meet with Father before trial at the jail where he was incarcerated but that Father had refused to speak with her and instead asked her to file the motion to withdraw. The trial court denied both motions.

Before testimony started on the second day of trial on June 24, 2022, Fowler re-urged her motion to withdraw as counsel for Father, stating that it was her

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understanding that Father wished to represent himself. In response to questions from the trial court, Father said that he had never told Fowler that he wanted to represent himself, only that he "would rather represent himself than have [Fowler] represent [him]." This was because he had asked Fowler to "file a motion" for him to have virtual visitation with the children from jail that Fowler had declined to file. He told the trial court that he had met with Fowler three times regarding the case and that he was aware that Fowler had arranged for witnesses to appear at trial on Father's behalf. When asked if he had another attorney lined up to represent him, Father answered, "No. That's their job to appoint one to me."

Fowler acknowledged that she did not file a formal motion for virtual visitation, citing a trial court policy regarding children visiting incarcerated parents. However, she did make the request directly to the Department which was denied. The trial court again denied the motion to withdraw.

After a bench trial, the trial court found by clear and convincing evidence that Father had violated ground (D) and that termination was in the best interest of the children. See id. § 161.001(b)(1)(D), (2).

B. Trial Evidence

1. James Gibbs's Testimony

Gibbs, an investigator for the Department, testified that the Department became involved with B.C. and Z.C. in March 2021 after receiving a neglectful supervision intake related to alleged illegal drug use in the home. Gibbs went to

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Paternal Grandmother's residence, where she lived with her boyfriend, Mother, Father, and the children. Father was in the front yard with B.C. and Mother when Gibbs arrived. Father told Gibbs that Paternal Grandmother's boyfriend may have engaged "in some type of inappropriate behavior with the children." Gibbs informed Father that there had been allegations of drug use in the home and asked Father to submit to a drug test. Father told Gibbs that he would fail a drug test because he had been "living the bachelor lifestyle." Based on concerns about drug use in the home and the allegations of the boyfriend's sexual misconduct with the children, the Department removed the children from the home.

2. Father's Testimony

a. Removal

Father, testifying from jail, denied that he told Gibbs that he would test positive if he was drug tested. He admitted that he knew that Paternal Grandmother and her boyfriend were using methamphetamines while Father, Mother, and the children lived in Paternal Grandmother's home. Though he invoked the privilege against self-incrimination when asked about his drug use at the time of removal, Father also acknowledged that he had "a history of substance abuse problems" and "an addicted [sic] personality."

Father stated that he was concerned that Paternal Grandmother's boyfriend had sexually abused B.C. because of suspicious behavior Father had observed one night while B.C. was asleep and because of "the way [boyfriend] carried himself

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around [B.C.]." Father also conceded that Z.C., who was born in October 2020, had never been taken to the doctor between his birth and the children's removal in March 2021.

For most of the case-about nine months-Father had been incarcerated in multiple counties for charges including assault of a police officer, attempt to take a weapon, felony evading arrest with a vehicle, burglary of a habitation, three misdemeanor resisting arrests, and failure to identify.[5] Due mainly to these incarcerations, Father had visited with his children only four times since their removal.[6] While incarcerated, Father underwent a mental health assessment and was diagnosed as being bipolar, but he characterized this diagnosis as merely "one person's opinion," which he "did not follow." Father did not know where he would live after release from incarceration but testified that he desired to go to rehab and had applied for acceptance into a one-year treatment program.

b. Appointment of Counsel

Father testified that he first requested a court-appointed attorney at the April 16, 2021 adversary hearing. However, he was not appointed an attorney until

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January 6, 2022. He estimated that, during the pendency of the case, he had made at least a dozen requests for a court-appointed attorney, either by asking his caseworker or the trial court directly.[7] At one point, Father's caseworker had explained to Father that the trial court had initially determined that Father was ineligible for an appointed attorney based on Father's self-reported income.

c. Fifth Amendment

Father invoked his privilege against self-incrimination to a number of questions, including:

1. Had he ever pushed, shoved, or hit Mother or thrown anything at her?
2. Was he actively using methamphetamines at the time of the removal of the children in March 2021?
3. Was Mother actively using methamphetamines in March 2021?
4. Did B.C. test positive for methamphetamines?[8]

The State objected to Father's assertion of the privilege in response to question three, arguing that Mother's drug use did not incriminate Father. Father's attorney argued that his answer to that question could be deemed incriminating if Father was charged with "injury to a child or something like that if the children were [] in his

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care."[9] The trial court ordered Father to answer the question and Father testified that Mother had been using methamphetamines in March 2021. Father was not ordered to answer questions one, two, and four.

3. Tony Gilliland's Testimony

Gilliland...

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