In re Of
| Decision Date | 21 November 2018 |
| Docket Number | No. 04-18-00240-CV,04-18-00240-CV |
| Parties | IN THE INTEREST OF R.L.L. III and A.L.L., Children |
| Court | Texas Court of Appeals |
From the 408th Judicial District Court, Bexar County, Texas
Honorable Peter Sakai, Judge Presiding1
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice
AFFIRMED
This is an appeal from an order terminating appellant mother's ("Mother") parental rights to her children, R.L.L. III and A.L.L. On appeal, Mother contends: (1) her due process rights were violated based on several actions taken by the trial court; and (2) the evidence is legally and factually insufficient to establish the grounds for termination or that termination was in the children's best interests. We affirm the order of termination.
BACKGROUND
In March 2016, the Texas Department of Family and Protective Services ("the Department") became involved with the family based on allegations of drug abuse and neglectful supervision. More specifically, it was reported that Mother was abusing methamphetamines and neglecting the children by leaving them in their car seats while she engaged in drug use and locking them in a bathroom for twelve hours with methamphetamines and syringes. At the time of the initial allegations, R.L.L. was two years old and A.L.L. was a one-year-old infant. Initially, the matter was a family-based case, but because of Mother's continued drug use and failure to complete any services — inpatient drug treatment, parenting and domestic violence classes, the Department filed a petition in October 2016 to terminate her parental rights.2. Mother's children, then ages three and two, were removed and placed with a foster family. R.L.L. showed aggression toward the foster family's special-needs daughter, as well as the foster mother. The placement lasted less than a month. After a short placement in respite care, the boys were placed with a maternal aunt, L.W., and uncle, but R.L.L. again displayed anger issues and was sent to a facility — Clarity — for treatment on several occasions while he resided with his aunt and uncle. Although A.L.L. remained with his aunt and uncle, R.L.L. did not return to the home after his third stay at Clarity. Officials at Clarity recommended he not return to the home of his aunt and uncle. The Department found R.L.L. an emergency placement at K Star, where he had issues with the female director. Thereafter, he was placed in a therapeutic foster home with C.A. Ultimately, in August 2017, R.L.L. was placed with M.B. and his husband; A.L.L. was placed in the same home less than three months later. At the time of trial in December 2017, both boys, who were then ages four and three, remained with M.B. and his husband.
The Department created a service plan for Mother. Pursuant to the service plan, Mother was required to, among other things: (1) engage in individual counseling; (2) complete a drug assessment and abide by recommendations made as a result of the assessment, including inpatient drug therapy; (3) attend classes on domestic violence and parenting; (4) maintain stable employment and housing; and (5) submit to random drug tests, including urinalysis and hair follicle screenings. The trial court ordered her to comply with each requirement set out in the plan. During the course of this matter, the trial court held the statutorily required status and permanency hearings, and ultimately, the matter moved to a final hearing before an associate judge.
At the final hearing, which was held over the course of five days, the associate judge heard testimony from more than a dozen witnesses, including Mother. Ultimately, the associate judge rendered a termination order in which he found Mother: (1) knowingly placed or allowed her sons to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed her children with people who engaged in conduct that endangered their physical or emotional well-being; (3) failed to comply with a court order that established the actions necessary for her to obtain the return of her sons; and (4) used a controlled substance in a manner that endangered the health of safety of her sons and failed to complete a court-ordered drug treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P). The trial court further found termination of Mother's parental rights would be in the best interests of her children. See id. § 161.001(b)(2). Thereafter, Mother timely requested a de novo hearing. See id. § 201.015(a)(1) ().
At the de novo hearing, the trial court took judicial notice of, and admitted into evidence, the reporter's record for the hearing conducted by the associate judge. In addition, the trial courtheard testimony from three witnesses, including Mother. At the conclusion of the de novo hearing, the trial court took the matter under advisement. Subsequently, the trial court rendered its own termination order, finding Mother's parental rights should be terminated on the grounds that she: (1) knowingly placed or allowed her sons to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed her children with people who engaged in conduct that endangered their physical or emotional well-being; (3) used a controlled substance in a manner that endangered the health of safety of her sons and failed to complete a court-ordered drug treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (P). Unlike the associate judge, the trial court did not find Mother's rights should be terminated based on her failure to comply with a court order that established the actions necessary for her to obtain the return of her sons. See id. § 161.001(b)(1)(O). The trial court also determined termination of Mother's parental rights would in the best interests of the children. See id. § 161.001(b)(2). Mother perfected this appeal.
ANALYSIS
On appeal, Mother first contends her due process rights were violated based on certain actions by the associate judge. Second, Mother contends the evidence is legally and factually insufficient to support the trial court's findings under sections 161.001(b)(1)(D), (E), and (P) of the Texas Family Code ("the Code"). See id. § 161.001(b)(1)(D), (E), (P). Finally, Mother challenges the legal and factual sufficiency of the evidence in support of the trial court's finding that termination was in the best interests of her sons. See id. § 161.001(b)(2).
Violation of Rights to Due Process
As noted above, Mother contends her due process rights were violated. Specifically, she argues her due process rights were violated when the associate judge: (1) denied her request to retain counsel prior to commencement of trial, (2) made remarks indicating it could not be fair andimpartial, and (3) failed to complete the trial in a timely manner. We consider each contention in turn.
Mother's Due Process Rights Violated by Denial of Request to Retain Counsel
Mother first contends the associate judge violated her due process rights when he denied her "request to retain counsel prior to the commencement of trial." She argues that "[i]t is clear from the record that [Mother's] court appointed counsel attempted to withdraw because [Mother] desired to retain counsel." Based on our review of the record, Mother's contention is incorrect.
Immediately before the final hearing was to begin, Mother's court-appointed attorney announced "not ready," advising the court that Mother had been arrested the previous night. Counsel then stated:
I would also like to make an oral motion before the Court that I be removed from the case at [Mother's] request. She has requested that she get another attorney, and I wanted to put that before the Court, as well, in her absence.
In response, the associate judge advised that Mother's attempt to discharge current appointed counsel would create delay "in that a new counsel would have to be appointed." He noted that court-appointed counsel had been her "usual diligent self[,] working hard." There was no indication during the exchange that Mother was no longer indigent and desired to retain counsel of her own choosing. Rather, the colloquy between the associate judge and Mother's counsel suggests Mother desired to have new counsel appointed. Counsel did not disabuse the associate judge of his belief that she was requesting to withdraw and have new counsel appointed for Mother.
We hold Mother's contention that the associate judge denied her right to due process for failing to allow her to retain counsel of her choice has not been preserved for our review. First, the record does not establish that Mother asked that she be permitted to retain counsel of her choosing or that she had the ability to do so at the time counsel made the oral motion. When the associate judge discussed the matter with counsel on the record, he specifically referencedappointment of new counsel. Mother's appointed counsel made no reference to retention of counsel or any statement to that effect. Thus, Mother's request was not sufficiently specific to make the trial court aware of her complaint, and the grounds were not apparent from the context. See TEX. R. APP. P. 33.1(a)(1)(A). Additionally, Mother's request below does not comport with her complaint on appeal — requesting withdrawal of current appointed counsel and substitution of new appointed counsel versus requesting withdrawal of current appointed counsel and being given leave to find new retained counsel — thereby waiving appellate review. See In re J.N., No. 05-14-00558-CV, 2014 WL 4978656, at *2 (Tex. App.—Dallas Oct. 7, 2014, pet. denied) (mem....
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