In re Interest of K.M.L.

Decision Date29 August 2014
Docket NumberNo. 12–0728.,12–0728.
Citation443 S.W.3d 101
PartiesIn the Interest of K.M.L., a Child.
CourtTexas Supreme Court

Teressa Anderson, Huntsville, TX, pro se for Other interested party Teressa Anderson.

Melissa Hannah, Attorney at Law, Lufkin, TX, Attorney ad Litem for Other interested party Attorney ad Litem.

Kathleen E. Matheu, Attorney at Law, Coldspring, TX, for Petitioner 1, Melissa Levalley.

Diane Macfarlane, Law Office of Diane Macfarlane, Longview, TX, Michael L. Davis, Attorney at Law, Coldspring, TX, for Petitioner 2, John Andrew James.

Kerry C. Hagan, Attorney at Law, Oakhurst, TX, for Petitioner 3, Angali Tarneja.

Eric Tek Tai, Luisa P. Marrero, Michael Shulman, Susan Marie Wolfe, Austin, TX, for Respondent, Texas Department of Family and Protective Services.

Opinion

Justice GREEN delivered the opinion of the Court, in which Chief Justice HECHT, Justice WILLETT, Justice GUZMAN, and Justice BROWN joined, and in which Justice JOHNSON and Justice BOYD joined except as to Parts II.B, II.D, and IV, and in which Justice LEHRMANN and Justice DEVINE joined except as to Parts III and IV.

In this parental termination case, we consider whether the trial court properly terminated the parental rights of an intellectually disabled and mentally ill mother who executed a voluntary affidavit of relinquishment and the parental rights of an indigent father who was not appointed trial counsel nor provided notice of the trial. Following a jury trial, the trial court signed a judgment terminating both the mother's and the father's parental rights to their minor child, and appointed the Texas Department of Family and Protective Services (DFPS) as the child's sole managing conservator. The court of appeals affirmed both terminations. 442 S.W.3d 396, 399, 2012 WL 1951111 (Tex.App.-Beaumont 2012, pet. granted) (mem.op.). Because there is legally insufficient evidence that the mother knowingly and intelligently executed the affidavit of voluntary relinquishment, and because the father did not receive notice of trial and did not waive notice, we reverse the judgment of the court of appeals and hold that termination of both parents' rights was improper.

I. Factual and Procedural Background

Just days after her eighteenth birthday, high-school student Melissa gave birth to a daughter, K.M.L., in Tennessee. The baby's father, John, seventeen at the time, lived in Texas. During the pregnancy, Melissa, her two younger brothers, and her mother, Angali, moved from Texas to Tennessee. Melissa suffers from bipolar disorder and has intellectual disabilities, and she and her mother have had a tumultuous relationship. Angali and Melissa decided that Melissa should move back to Texas to live with her uncle to finish high school, leaving K.M.L. with Angali. Over the next two years, Melissa graduated high school, visiting her daughter occasionally, and shuffled from one friend's house to the next. Angali served as K.M.L.'s primary caretaker, a position Melissa never questioned. John knew about K.M.L., but never made any attempts to see her or support her during this period.

Sometime before K.M.L.'s second birthday, Angali and Melissa consulted an attorney in Texas about making K.M.L.'s living situation permanent. Under that attorney's guidance, the women executed a “Guardianship” letter, whereby Melissa believed she had empowered Angali to manage the finances, health, and psychiatric and psychological care of K.M.L., and to make educational decisions on K.M.L.'s behalf, though it's undisputed that this document had no legal effect or power. In March and May of 2010 Melissa would again attempt to execute legal documents that were supposed to give Angali parental rights to K.M.L. Much like the “Guardianship” letter, these later attempts were also legally ineffective at providing Angali with parental rights to K.M.L.

Shortly after execution of the “Guardianship” letter, Angali, her two teenaged sons, and K.M.L. moved to Lake Livingston, Texas, temporarily living in a loft apartment. The inside stairs in the apartment did not have railings yet, though the apartment manager had agreed to install them. On August 6, 2009, left alone with her teenaged uncles, two-year-old K.M.L. fell off the stairs. As a result of the six-foot fall, she suffered injuries to her teeth and jaw, though none life-threatening. The very next day, DFPS removed K.M.L. from the home, placed her in foster care, and filed a petition to terminate Melissa's parental rights.

More than two months after suit was filed, DFPS served John by publication, without appointing an attorney ad litem. Over the next six months, John received no notice of the proceedings, nor did he have any involvement with K.M.L. After Angali contacted John and put him in touch with her attorney, John filed pro se pleadings on May 3, 2010, acknowledging paternity, requesting that his rights not be terminated, and providing his sister's address and phone number, where he was currently residing, along with his mother's contact information. Despite filing a response in opposition, John was not provided notice of any hearings in the case, nor is there evidence that he received notice of the trial. John continued to make little effort to see his daughter, even after opposing the termination.

On June 4, 2010, long after proceedings in the termination suit began, Melissa executed an affidavit of voluntary relinquishment naming DFPS as managing conservator of K.M.L., though she allegedly believed that the document enabled Angali to obtain legal custody of K.M.L. and adopt K.M.L. About six weeks later, as a result of Melissa's disabilities, the County Court of San Jacinto County signed a guardianship order naming Angali as Melissa's guardian of the person and estate. Melissa, through a replacement attorney ad litem and through her mother as guardian, made multiple attempts to strike the affidavit of relinquishment from the case, including a Motion for Revocation and a “Special Exception,” both denied and overruled, and then a “First Supplemental Original Answer” and a “Second Supplemental Answer,” raising an affirmative defense that the relinquishment affidavit was illegal.

On January 18, 2011, the first day of trial, the State served John with a subpoena to attend the trial, and John arrived by police escort. For the first hours of the trial, John sat in the hall outside the courtroom and missed pre-trial motions, jury selection, and part of DFPS's opening statement. Angali's attorney alerted the trial court to the fact that John was in the hallway halfway through DFPS's opening statement, and John came into the courtroom. The trial judge told John—after John gave a short opening statement—that he possibly could have been entitled to appointed counsel, but that it was “a little late for that now.”1 During trial, the jury heard testimony from, among others, Melissa, Angali, and John, along with testimony from Melissa's original attorney, a DFPS special investigator, K.M.L.'s DFPS conservatorship supervisor, K.M.L.'s CASA volunteer,2 and Melissa and Angali's psychiatrist.

Following a four-day trial, the jury found that termination of Melissa and John's parental rights was in K.M.L.'s best interest. Additionally, the jury found termination grounds for Melissa based on endangerment (Family Code section 161.001(1)(D) and (E) ), voluntary relinquishment (section 161.001(1)(K) ), and failure to follow a court-ordered reunification plan (section 161.001(1)(O) ).3 The jury terminated John's rights based on endangerment (section 161.001(1)(D) ), failure to follow a court-ordered reunification plan (section 161.001(1)(O) ), and constructive abandonment (section 161.001(1)(N) ). Finally, the jury found that DFPS, not Angali, should be appointed the sole managing conservator of K.M.L. The trial court ordered the termination of both Melissa and John's parental rights and appointed DFPS as K.M.L.'s sole managing conservator.

Melissa and Angali challenged the sufficiency of the evidence to support all four statutory grounds for termination of Melissa's rights in the court of appeals. 443 S.W.3d, at 59. The court of appeals acknowledged that there is conflicting evidence on the issue of whether Melissa executed the affidavit voluntarily, but it treated the guardianship order as merely some evidence relevant to that issue and reasoned that the jury was entitled to give the order little weight. See id. at 136–37. Because termination could be affirmed under subsection (K)—voluntary relinquishment—the court of appeals did not address the other grounds. See id. at 118. The court of appeals held that the jury verdict for John's constructive abandonment is supported by legally sufficient evidence and did not address John's legal and factual sufficiency challenges to the other grounds for termination. See id. at 112. Additionally, the court of appeals held that John waived his complaint about notice of trial by appearing at trial and did not address the lack of notice of the permanency hearings. See id. at 114. Finally, the court of appeals held that John waived his right to counsel under Family Code section 107.013 because he generally appeared following service by publication and did not request an attorney or file an affidavit of indigence until after trial. See id. at 114. All three parties—Melissa, Angali, and John—filed petitions for review in this Court, which we granted. 56 Tex.Sup.Ct.J. 519, 522 (May 3, 2013).

II. Melissa and Angali's Issues

Melissa, individually, and Angali, individually as intervenor and on Melissa's behalf as her guardian, filed separate petitions for review.4 Taking the two petitions collectively, Melissa and Angali raise three distinct issues: (1) whether the trial court improperly admitted Melissa's June 4 affidavit of voluntary relinquishment of parental rights; (2) whether the jury's finding that Melissa knowingly and intelligently executed the affidavit of voluntary relinquishment is supported by...

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