In re Interest of J.P.-L.

• Decision Date: 19 December 2019
• Docket Number: No. 02-19-00255-CV,02-19-00255-CV
• Citation: 592 S.W.3d 559
• Parties: In the INTEREST OF J.P.-L., a Child
• Court: Texas Court of Appeals

592 S.W.3d 559

In the INTEREST OF J.P.-L., a Child

No. 02-19-00255-CV

Court of Appeals of Texas, Fort Worth.

Delivered: December 19, 2019

ATTORNEY FOR APPELLANT: ROGER M. YALE, BRITTANY A. WEAVER, JENNIFER K. YATES, YALE LAW GROUP, PLLC, DENTON, TX.

ATTORNEY FOR APPELLEE: PAUL JOHNSON, CRIM. DIST. ATTY., ANDREA R. SIMMONS, CHIEF, APPELLATE DIVISION, MATTHEW J. WHITTEN, AARYN LAMB, ASST. CRIM. DIST. ATTY., DENTON, TX.

Before Sudderth, C.J.; Birdwell and Bassel, JJ.

Opinion by Chief Justice Sudderth

I. Introduction

"Termination of parental rights is traumatic, permanent, and irrevocable." In re M.S. , 115 S.W.3d 534, 549 (Tex. 2003). In such a case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) ; Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). Consequently, the State "must first observe fundamentally fair procedures." In re E.R. , 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer , 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92, 71 L.Ed.2d 599 (1982) ). For the same reason, we carefully scrutinize termination proceedings and strictly construe involuntary-termination statutes in the parent's favor. In re E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012) ; E.R. , 385 S.W.3d at 563 ; Holick , 685 S.W.2d at 20–21. Due process demands the heightened standard of clear and convincing evidence because "[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’ " E.R. , 385 S.W.3d at 555 (quoting Santosky , 455 U.S. at 758–59, 102 S. Ct. at 1397 ); In re J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002) ; see also E.N.C. , 384 S.W.3d at 802.

Appellant Mother concedes that the evidence in this case is sufficient to support the termination of her parental rights to J.P.-L. but contends that she was deprived of due process when, as acknowledged by the Department of Family and Protective Services (State), "the interests of the child appeared to be in direct conflict with the interests of the parent." Under our current statutory scheme, as between a parent and a child, only one may prevail: the child. See Tex. Fam. Code Ann. § 153.002 ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." (emphasis added)). Further, although Mother complains of ineffective assistance of counsel, the record before us does not support reversal under Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).

Thus, despite the serious concerns raised by Mother in her two issues—that her procedural due process rights were violated when her parental rights were terminated despite her mental incapacity and that she received ineffective assistance of counsel when her court-appointed representatives waived any challenge to her capacity by failing to seek a guardianship or mental health commitment for her—we affirm the trial court's judgment.

II. Background

A. Procedural Posture

The State filed this suit on September 12, 2018,¹ the same day that the trial court issued an order appointing the State as the child's temporary managing conservator, which made the case's dismissal date September 16, 2019. See Tex. Fam. Code Ann. § 263.401(a) (stating that the court's jurisdiction terminates on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the State as temporary managing conservator unless trial on the merits has commenced or an extension has been granted). When the State took possession of then-five-year-old J.P.-L., Mother was in University Behavioral Health (UBH), a mental health facility. The trial court reset the initial adversary hearing twice to allow Mother "an opportunity to consult with her [appointed] attorney."

During the adversary hearing, which was held two weeks after J.P.-L.'s removal, when Mother was asked if she had reviewed the trial court's temporary orders, Mother said, "Yes, and I do not agree with them," but she also said that she would do whatever it took to get her son back. At the hearing's conclusion, the trial court appointed a guardian ad litem for Mother, stating in the order, "This Court finds Respondent Mother may not have capacity or may not be competent."

In its temporary orders, the trial court ordered Mother to schedule appointments to complete a psychological evaluation, a psychosocial evaluation, and counseling and to submit to an intake with MHMR or continue with mental health treatment with UBH or another provider "within 10 days of this order." The trial court also ordered her to comply with the usual service plan requirements: completing parenting classes and a drug and alcohol assessment, refraining from all criminal activity and use of alcohol or illegal substances, establishing and maintaining safe, stable, and appropriate housing, attending supervised visits with J.P.-L., and paying child and medical support, in addition to complying with any other requirements in her service plan during the pendency of the suit.

A month after the adversary hearing, the State filed a motion for temporary restraining order, asking the trial court to suspend the parent-child visits because during her supervised visits, Mother had displayed aggressive behavior similar to that which she had displayed at the adversary hearing and had "become increasingly volatile[,] leading observers to become concerned about the safety of the child ... as well as other persons nearby." Mother's caseworker told Mother that in order to resume visits, she needed to undergo the MHMR intake and to take her medication regularly. The trial court granted the State's motion on October 25, 2018, and ordered Mother to appear at the November 7, 2018 status hearing to determine whether the TRO should become a temporary injunction pending the final hearing.

Mother did not appear at the status hearing, but her attorney said that she had been given notice of the hearing. Her guardian ad litem testified that she went over Mother's service plan with Mother at the CPS office during the same visit that Mother had to be escorted out by the police. According to Mother's guardian ad litem, Mother had indicated that she understood what was asked of her and that she was supposed to call to make appointments with the providers in her service plan, but "she also exhibited a misperception of what CPS was requiring." Mother's guardian ad litem had not had any contact with Mother since that occasion.

In January 2019, Mother's attorney filed a motion to discharge Mother's guardian ad litem because Family Code Chapter 107 did not provide legal authority for the appointment of a guardian ad litem for an adult who had not been declared incapacitated by the proper court for guardianship proceedings, i.e., the probate court. In the motion, she pointed out that Family Code Section 107.010 only provided the court with discretion to appoint an attorney ad litem if it found the person incapacitated, and "if appropriate," the attorney ad litem could then refer the proceeding to the probate court. Mother's attorney did not secure a ruling on her motion or refer the proceeding to the probate court.

Mother did not appear at the June 12, 2019 permanency hearing. The trial court noted that the first question from J.P.-L., was, "Do you know where my mom is?" Mother's guardian ad litem said that she had not had any contact with Mother for approximately six months and that the last time she had had any contact, Mother had been homeless and living near the 288 bridge. Mother's counsel said that she was not sure whether Mother had notice of the hearing, although she had provided correspondence to the address Mother had given her (Mother's father's home). Mother's counsel said, "[S]omeone is receiving that information, but it -- none of the correspondence has been signed by my client."

At the June 24, 2019 bench trial, Mother's counsel announced "not ready," citing "lack of communication from [Mother] and lack of knowledge of her whereabouts," and Mother's guardian ad litem agreed, stating, "We are aware that [Mother] has made recent contact with her father. However, at this time she is not here, so I would support [Mother's counsel's] announcement of not ready." Mother's counsel said that she had sent several letters to Mother's last-known residence and that the certified mail was signed for, but not by Mother. She and Mother's guardian ad litem both said that they did not have a working phone number for Mother but had tried to reach her through her father and her friends who had been at previous hearings. The State and the child's attorney ad litem did not agree to a continuance. The trial court denied the motion for continuance, and at the conclusion of the trial, it terminated Mother's parental rights to J.P.-L.²

B. Factual Background

Mother had a history of mental illness in addition to homelessness, drug use, and domestic violence, and her MHMR records were admitted into evidence at the trial, as was a September 12, 2018 certified copy of a police report.

Mother's drug of choice at age 19 was marijuana but ten years later, methamphetamine had replaced it, although she still used marijuana daily for pain, using a "couple of hits or Vape during the day."³ Mother started using methamphetamine around the same time that her mother died, when J.P.-L. was approximately three years old. Mother said that she and J.P.-L.'s father, who used "crystal meth," were no longer together because of domestic violence between them that had resulted in a 2016 assault charge against her "because ... he was a little more beat up than [she] was." Mother said that the charge had been dismissed after she took anger management classes and paid a fine. She told MHMR that she had last...