In re E.L.T.

• Decision Date: 12 September 2002
• Docket Number: No. 14-01-00998-CV.,14-01-00998-CV.
• Parties: In the Interest of E.L.T.
• Court: Texas Court of Appeals

93 S.W.3d 372

In the Interest of E.L.T.

No. 14-01-00998-CV.

Court of Appeals of Texas, Houston (14th Dist.).

September 12, 2002.

Donald M. Crane, Katy, for appellants.

Michael Stafford, Oliver W. Sprott Jr., Sandra D. Hachem, Houston, for appellees.

Panel consists of Justices YATES, SEYMORE, and GUZMAN.

MAJORITY OPINION

CHARLES W. SEYMORE, Justice.

In a single issue, appellant Sheila Joyce Deavers appeals the termination of her parent-child relationship with her son, E.L.T. We affirm.

BACKGROUND

Appellant is the mother of E.L.T., born August 19, 2000. After the Texas Department of Protective and Regulatory Services (TDPRS) filed suit, the trial court placed E.L.T. in protective custody for the following reasons: (1) mother's inability to provide the child with food, shelter, clothing, and proper medical attention; (2) mother's mental condition; (3) mother's recent hospitalization; and (4) other siblings placed in care of TDPRS.

Appellant does not complain about the evidence presented at trial supporting termination of her parental rights. Instead, she appeals the denial of her oral motion for continuance and request for a competency evaluation. When trial began on August 15, 2001, appellant's trial counsel requested a competency evaluation and continuance because appellant repeatedly asked, "What are we doing here?" Trial counsel argued that appellant could not understand the nature of the proceeding; therefore, she was unable to assist counsel, rendering his representation ineffective. The court denied the motion for continuance and competency evaluation. The trial was reset until September 5, 2001. On that date, appellant's attorney again orally asserted the motions for continuance and competency evaluation. The motions were denied. At the conclusion of trial, the court terminated appellant's parental rights.

ISSUE PRESENTED

Appellant raises a single issue.¹ In her brief, she appears to raise the following sub-issues: (1) whether it was an abuse of discretion to deny her motion for continuance; (2) whether it was an abuse of discretion to deny her motion for a competency evaluation; (3) whether it was error to proceed with the trial if appellant was incompetent; and (4) whether appellant received ineffective assistance of counsel because of her inability to assist her attorney at trial.

MOTION FOR CONTINUANCE

First, appellant contends the trial court erred in denying her motion for continuance. The decision to grant or deny a motion for continuance is within the trial court's sound discretion. See TEX.R. CIV. P. 251. The trial court's action in denying a continuance will not be disturbed unless the record discloses a clear abuse of discretion. State v. Wood Oil Distrib. Inc., 751 S.W.2d 863, 865 (Tex. 1988). This Court cannot substitute its judgment for the trial court's, but must only determine whether the trial court's action was so arbitrary as to exceed the bounds of reasonable discretion. Philipp Bros. Inc., v. Oil Country Specialists, Ltd., 709 S.W.2d 262, 265 (Tex.App.-Houston [1st Dist.] 1986, writ dism'd). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996).

A motion for continuance shall not be granted except for sufficient cause supported by an affidavit, consent of the parties, or by operation of law. TEX.R. CIV. P. 251. If a motion for continuance is not made in writing and verified, it will be presumed that the trial court did not abuse its discretion in denying the motion. Ohlhausen v. Thompson, 704 S.W.2d 434, 436 (Tex.App.-Houston [14th Dist.] 1986, no writ). In this case, the record does not contain a written motion or affidavit. Because appellant did not comply with Rule 251, the trial court did not abuse its discretion in denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986). Thus, we overrule appellant's first sub-issue.

COMPETENCY

In her second sub-issue, appellant argues that the trial court was not authorized to proceed to trial without determining whether she was competent because the proceeding was quasi-criminal. From her brief, we distill two basic contentions: (1) the trial court erred in overruling her oral motion for a competency evaluation;² and (2) the trial should have been continued because of appellant's alleged incompetence. Appellant has failed to cite any authority in support of her first contention. An issue not supported by authority is waived. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304-05 (Tex.App.-Houston [14th Dist.] 1995, no writ). Accordingly, appellant has waived any error regarding the denial of her oral motion for a competency evaluation.

Appellant further argues that a termination proceeding is quasi-criminal, and the trial should have been continued because she was mentally incompetent.³ This argument is flawed and unsupported by authority. First, appellant's argument necessarily includes an assumption that she is incompetent. Conversely, a person is presumed to be mentally competent unless there is a judicial finding to the contrary. See TEX. HEALTH & SAFETY CODE ANN. § 576.002(b) (Vernon Supp.2002). The record does not reflect that she made any request (written or oral) for the court to find her incompetent. Second, appellant fails to cite any authority in which a family court proceeding may be halted because of a parent's incompetency. See Casteel-Diebolt, 912 S.W.2d at 304-05.

The relevant sections of the Texas Family Code do not prescribe a competency standard that a parent must meet before participating in a hearing or trial. See generally TEX. FAM.CODE ANN. §§ 161.001-161.210 (Vernon 1996 & Supp.2002). To the contrary, a parent's mental illness may serve as a basis for involuntary termination of parental rights. See id. § 161.003; Spurlock v. Tex. Dept. of Protective & Regulatory Servs., 904 S.W.2d 152 (Tex.App.-Austin 1995, writ denied) (mother's mental illness provided basis for termination of parental rights). Further, a mentally ill person may sue and be sued under Texas law. See TEX. HEALTH & SAFETY CODE ANN. § 576.001(b) (Vernon 1992). Additionally, an attorney must seek appointment of a guardian or other legal representative for, or seek other protective orders with respect to, a client whom the attorney reasonably believes is lacking legal competence. See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.02(g), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon Supp.2002) (TEX. STATE BAR R. art. X, § 9). There was no guardian or legal representative sought for appellant in this case. Lastly, Rule 44 of the Texas Rules of Civil Procedure states that "lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by `next friend" under certain rules. There was no "next friend" appearing for appellant.

In total, the record does not reflect an abuse of discretion in proceeding with trial.

INEFFECTIVE ASSISTANCE OF COUNSEL

Lastly, appellant argues that her alleged incompetence and inability to communicate with counsel prevented him from providing effective representation. Appellant contends a respondent in a termination proceeding is guaranteed effective assistance of counsel because the proceeding is quasi-criminal. Texas courts are split whether a person is constitutionally guaranteed effective assistance of counsel in proceedings for termination of parental rights. Compare In re A.V., 57 S.W.3d 51, 57 (Tex. App.-Waco 2001, no pet. h.) (stating counsel in termination proceeding is required to be effective); In re J.M.S., 43 S.W.3d 60, 63 (Tex.App.-Houston [1st Dist.] 2001, no pet.) (holding the statutory right to counsel in a termination proceeding means the right to effective assistance of counsel) with In re A.R.R., 61 S.W.3d 691 (Tex. App.-Fort Worth 2001, pet. denied) (declining to extend the Sixth Amendment right to effective assistance of counsel to a civil proceeding); Arteaga v. Tex. Dep't of Protective & Regulatory Servs., 924 S.W.2d 756, 762 (Tex.App.-Austin 1996, writ denied) (holding parents in a termination case are not entitled to the constitutionally guaranteed effective assistance of counsel afforded to criminal defendants).

This court has not yet ruled on the existence of such a right. However, even if such a right exists, scrutiny of counsel's performance is highly deferential, and there is a strong presumption that the attorney's actions could have been the result of sound trial strategy. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.App.1986) (en banc). In Texas, this presumption ordinarily cannot be overcome absent evidence in the record explaining counsel's actions. Busby v. State, 990 S.W.2d 263, 268-69 (Tex.Crim.App. 1999). Additionally, appellant must meet a burden of proof that her counsel was ineffective. She must prove (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; In re J.M.S., 43 S.W.3d at 63-64.

In this case, nothing in the record supports the assertion that appellant's trial counsel performed deficiently because of appellant's alleged incompetence. Nothing in the record supports the conclusion that the result of the proceeding would have been different but for counsel's actions. Additionally, appellant has not cited any authority that counsel's assistance is made ineffective through a client's inability to assist during trial. The Strickland test focuses on the conduct of the attorney. We overrule the final sub-issue.

Accordingly, we affirm the judgment of the trial court.

GUZMAN, J. concurring.

EVA M. GUZMAN, Justice, concurring.

Although I concur in the result the majority reaches, I...