In re Interest of D.T.

• Decision Date: 25 June 2021
• Docket Number: NO. 20-0055,20-0055
• Court: Texas Supreme Court
• Parties: In the INTEREST OF D.T., a Child

625 S.W.3d 62

In the INTEREST OF D.T., a Child

NO. 20-0055

Supreme Court of Texas.

Argued January 7, 2021

OPINION DELIVERED: June 25, 2021

Beauford K. Downs, Rebecca L. Safavi, for Respondent.

Katherine Anne Ferguson, Greenville, Roland Fergurson, for Petitioner.

Christina Perrone, Dallas, for Other interested party.

Justice Huddle delivered the opinion of the Court, in which Justice Devine, Justice Blacklock, Justice Busby, and Justice Bland joined.

Nearly two decades ago, this Court recognized in In re M.S. that indigent persons who are parties to a government-initiated suit to terminate their parental rights have a right to effective appointed counsel. 115 S.W.3d 534, 544 (Tex. 2003). Reasoning that the right to appointed counsel carries an implicit requirement that such counsel be competent, M.S. held that indigent parents in a state-initiated suit to terminate their parental rights could challenge their counsel's performance in the representation by asserting an ineffective-assistance claim on appeal. Id. Today, we must determine whether parents in government-initiated suits to terminate the parent–child relationship who retain counsel of their choosing, as the mother in this case did, may also challenge their counsel's performance by asserting an ineffective-assistance claim. We hold that they can, and that the court of appeals erred in rejecting the mother's ineffective-assistance claim without addressing its merits, on the basis that trial counsel was retained rather than appointed. However, because we conclude the mother's ineffective-assistance claim fails under Strickland v. Washington as a matter of law, we affirm the court of appeals’ judgment.

I. Background

D.T.’s mother (Mother) was involved with the Department of Family and Protective Services before D.T.’s birth. In 2015, when Mother was nineteen, the Department removed her first child—D.T.’s older sister—after Mother experienced a psychotic episode resulting in Mother's involuntary commitment to a psychiatric hospital, where she tested positive for methamphetamines. The Department's initial goal in that case was reunification, so Mother was ordered to complete a service plan, including drug treatment. But Mother did not complete the plan. She instead relinquished her rights to D.T.’s sister.

The Department intervened again shortly after D.T.’s birth in late 2016. Because Mother had not had prenatal care, doctors ordered that D.T. remain in the hospital for a few days for observation. But Mother left the hospital with D.T. at three o'clock in the morning—before they were released and against medical advice—because hospital staff would not give Mother pain medication for a toothache. This, together with Mother's history of drug use, prompted the Department to seek an order under Family Code chapter 264 requiring Mother to complete a service plan. About a month later, Mother was arrested on theft charges, and the Department took possession of D.T. and sought termination.¹ Following an adversary hearing, the trial court found the Department had not met its burden for removal and ordered D.T. returned to Mother. In accordance with the Department's concerns, Mother was ordered to complete a service plan including a psychological assessment, drug and alcohol assessments, random drug tests, and parenting classes.

In late 2017, when D.T. was eleven months old, Mother gave birth to a third child. In early 2018, when the infant sibling was two months old, the sibling died under Mother's care while both were sleeping. There was conflicting evidence about whether the infant was sleeping in the same bed as Mother or in a nearby bassinet. The autopsy revealed the cause of death was undetermined but reflected that the unsafe sleeping environment was a possible cause or contributing factor. Following the infant's death, D.T. was again removed from Mother's care.² At the time the Department took possession, one-year-old D.T. tested positive for marijuana and had unexplained bruises and a fractured hand. D.T. was placed with a foster family who wishes to adopt him.

While the case was pending, Mother and her boyfriend,³ with whom she lived, had multiple positive tests for marijuana. The boyfriend also tested positive for methamphetamines. Mother was ordered to work services, including anger-management classes, after various outbursts with Department employees and social workers. One caseworker observed Mother being "rough" with D.T. during a visit due to her anger with the Department. Mother conceded that there had been another incident at a mental-health center in which Mother threw a chair after being rescheduled for outpatient treatment. Throughout the proceedings, the trial court found that Mother was not making progress and was instead failing to comply with the court-ordered service plan.

Although the trial court had found Mother indigent and appointed counsel to represent her, Mother retained new counsel about six months before the trial. The record reflects that Mother's retained counsel participated in two permanency hearings. It also reflects he was active and engaged throughout the four-day trial. He conducted a voir dire examination, made an opening statement, cross-examined each of the Department's witnesses, and made appropriate evidentiary objections. After the Department rested, Mother's retained counsel called three character witnesses, re-called Mother, and through these witnesses and documentary exhibits sought to demonstrate Mother's bond with and affection for D.T. Counsel's closing argument addressed the key elements of the Department's case and noted the Department's heightened burden of proof.

The jury unanimously found that grounds existed for termination under the Family Code and that termination was in D.T.’s best interest. Mother's retained counsel filed a notice of appeal but did not file a motion for new trial or take any other steps to preserve a challenge to the legal or factual sufficiency of the evidence. One month after the notice of appeal was filed, Mother's retained counsel was suspended from the practice of law and thus became unable to continue the representation. The court of appeals abated the appeal and remanded for the appointment of new counsel, noting in its order that, because Mother had been found indigent, she was presumed to remain indigent and was entitled to appointed counsel.

The trial court appointed Mother's appellate counsel within the time in which a post-judgment motion could have been filed, but none was. Instead, Mother raised these two issues in the court of appeals: (1) the evidence was legally and factually insufficient to support the jury's verdict, and (2) her retained counsel rendered ineffective assistance. 593 S.W.3d 437, 438 (Tex. App.—Texarkana 2019). The court of appeals affirmed. It rejected Mother's challenge to the sufficiency of the evidence without addressing the merits because it was not preserved. Id. at 439. The court also held Mother could not raise an ineffective-assistance-of-counsel challenge because her counsel was retained. Id. at 439–40. Mother petitioned this Court, and we granted review.

II. Analysis

In this Court, Mother's sole issue is whether the court of appeals erred by holding that she could not challenge counsel's effectiveness because her trial counsel was privately retained rather than court-appointed. The Department responds that (1) the court of appeals correctly determined that a claim of ineffective assistance of counsel cannot be brought when the parent's counsel is retained; and (2) even if Mother could challenge retained counsel's effectiveness, Mother cannot demonstrate that her counsel was ineffective under Strickland v. Washington ’s well-established two-prong test. See 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We address these points in turn.

A. Parents in state-initiated parental-rights termination cases may assert ineffective-assistance-of-counsel claims, regardless of whether counsel is court-appointed or privately retained.

The Supreme Court of the United States has long recognized "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." See Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality op.). We have also recognized the fundamental nature of the parental right to make child-rearing decisions. See, e.g., In re C.J.C. , 603 S.W.3d 804, 807 (Tex. 2020) (orig. proceeding).

In this case, the Department seeks not only to infringe on Mother's right to care and make decisions for D.T., but to terminate all of Mother's parental rights based on the jury findings that clear and convincing evidence supports termination under at least one statutory ground and that termination is in the child's best interest. See TEX. FAM. CODE § 161.001(b). "Termination of parental rights is traumatic, permanent, and irrevocable." M.S. , 115 S.W.3d at 549. As some members of our Court have previously—and rightly—noted, parental termination constitutes the "death penalty" of civil cases. In re K.M.L. , 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring).

While the Supreme Court has noted the fundamental nature of the interests at stake in parental-termination cases, it held in Lassiter v. Department of Social Services that the United States Constitution does not require the appointment of counsel for parents in every parental-termination proceeding. 452 U.S. 18, 31, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The Lassiter Court noted that it was "neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements." Id. at 32, 101 S.Ct. 2153 (quoting Gagnon v. Scarpelli , 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) ). The Court instead left the decision of whether due process requires appointment of counsel in a particular...