In re R.M.T.

• Decision Date: 05 October 2011
• Docket Number: No. 06–11–00037–CV.,06–11–00037–CV.
• Citation: 352 S.W.3d 12
• Parties: In the Interest of R.M.T., a Child.
• Court: Texas Court of Appeals

352 S.W.3d 12

In the Interest of R.M.T., a Child.

No. 06–11–00037–CV.

Court of Appeals of Texas, Texarkana.

Submitted: Sept. 28, 2011.Decided: Oct. 5, 2011.

Benjamin Bratteli, Longview, for appellant.

Michael C. Shulman, Office of General Counsel, Austin, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

The parental rights existing between John and Melissa with their child, R.M.T.,¹ were terminated following a bench trial in which the trial court made findings that the evidence supported by clear and convincing evidence requisite supported statutory reasons for the termination. Melissa has filed no appeal, but John has done so.

On appeal, John makes no challenge to the sufficiency of the evidence to support termination of his parental rights. Rather, John's appeal is centered on his own mental status at the time of trial, alleging that he was not mentally competent at that time. He maintains that the trial court erred by refusing to grant a continuance while he was in the state of mind he then possessed and in proceeding with the trial at a time when John was unable to understand the allegations upon which the State's case rested or to effectively assist counsel in his defense. He also complains that the trial court was in error when John, although plainly not then in a mental state to understand or comprehend the proceedings, was permitted (against the advice of his attorney ad litem) to testify.

The record indicates that John had been charged with assault family violence (enhanced) at some point prior to these termination proceedings. In connection with that criminal case, the trial court had ordered John to undergo a competency evaluation. As a result of the ensuing competency evaluation, John was determined to be incompetent to stand trial in his criminal case.² It is undisputed that at the time of the termination of parental rights trial on February 28, 2011, John remained incompetent to stand trial.³

Three days before trial, John filed his verified motion for continuance, alleging his incompetence as the reason for the requested continuance. Attached to the motion were eight exhibits, each of which were in support of the claim that John was not competent to stand trial on the date scheduled for trial, February 28, 2011.⁴ The trial court denied the motion for continuance, and the case proceeded to trial as scheduled. John was permitted to testify at trial over his attorney's objection that he was not competent to do so.

I. Issues Presented

On appeal, John claims (1) the trial court erred in denying his motion for continuance, (2) the trial court erred in proceeding to trial when John was incompetent because to do so violated John's procedural due process rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 19 of the Texas Constitution, and (3) the trial court erred when it permitted John to testify over counsel's Rule 601 objection that he was not competent to testify. See Tex.R. Evid. 601.

We affirm the judgment of the trial court.

II. AnalysisA. Did the Trial Court Err in Proceeding to Trial in Light of John's Incompetence?

John claims that his procedural due process rights under the United States and Texas Constitutions were violated when the trial court refused to continue the trial due to John's alleged incompetence. As a result, the termination proceeding took place while John was incompetent to proceed with trial. ⁵

(1) Constitutionally Protected Interest

The Fourteenth Amendment to the United States Constitution protects against deprivation of life, liberty, or property by the State “without due process of law.” U.S. Const. amend. XIV; Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The Texas Constitution provides that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Tex. Const. art. I, § 19. The Texas “due course” and federal “due process” provisions have been interpreted to be “without meaningful distinction.” Univ. of Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 929 (Tex.1995). Therefore, in matters of procedural due process, Texas courts have traditionally followed contemporary federal due process interpretations of procedural due process issues. See id.

Procedural due process guarantees the right to a fair procedure. John maintains that he was denied fair procedure due to his alleged incompetence at the time of trial. Therefore, we must determine whether John has a liberty or property interest that is entitled to procedural due process protection, and if he does, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

The United States Supreme Court has stated that a liberty interest under the Fourteenth Amendment

denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). “[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). A state's attempt to terminate the parent-child relationship is governed by the Fourteenth Amendment. Santosky v. Kramer, 455 U.S. 745, 753–54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Moreover, the Texas Supreme Court has recognized that the involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). In light of this weighty precedent, there can be no doubt that John's right to retain custody of R.M.T. is a constitutionally protected liberty interest and must be afforded procedural due process. See Martinez v. Tex. Dep't of Protective & Regulatory Servs., 116 S.W.3d 266 (Tex.App.-El Paso 2003, pet. denied); In re G.C., 66 S.W.3d 517, 525 (Tex.App.-Fort Worth 2002, no pet.).

(2) Eldridge Balance

The question then becomes one of what process is “due” before the attempted deprivation of parental rights as here. At a minimum, due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, what process is due in any given situation is measured by a flexible standard that depends on the practical requirements of the circumstances. Id. at 334, 96 S.Ct. 893; Than, 901 S.W.2d at 930. “When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.” Santosky, 455 U.S. at 753–54, 102 S.Ct. 1388. “[T]he process due in parental rights termination proceedings turns on a balancing of the ‘three distinct factors' specified in Mathews....” Id. at 754, 102 S.Ct. 1388; In re S.K.A., 236 S.W.3d 875, 892 (Tex.App.-Texarkana 2007, pet. denied).

In conducting our due process analysis, we are cognizant of the fact that there is no Texas authority which would permit a trial court to halt termination proceedings due to the incompetency of the parent. In re E.L.T., 93 S.W.3d 372, 375, 377 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In E.L.T., the court was confronted with the issue of whether an allegedly incompetent mother was entitled to a competency hearing prior to a proceeding on the merits to terminate her parental rights.⁶ At the time of trial, counsel for the mother requested a competency evaluation and a continuance because the mother repeatedly asked, “What are we doing here?” The court ruled that the denial of the motion for continuance was not an abuse of discretion because the motion was not in writing and was unverified. Id. at 375; see Tex.R. Civ. P. 251.

Counsel for the appealing parent in E.L.T. further argued that because a termination proceeding is quasi-criminal, the trial should have been continued because the mother was mentally incompetent. The court summarily dismissed this argument because there was no written or oral request for the court to make such a competency finding and because there is no authority in which a family court proceeding can be halted due to a parent's incompetency. E.L.T., 93 S.W.3d at 375. “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.” Id.; see generally Tex. Fam.Code Ann. §§ 161.001–.210 (West 2008). “To the contrary, a parent's mental illness may serve as a basis for involuntary termination of parental rights.” E.L.T., 93 S.W.3d at 375; Tex. Fam.Code Ann. § 161.003. Various procedural safeguards, such as the appointment of a guardian or other legal representative of the allegedly incompetent mother were not employed. The record, held the court, did not reflect an abuse of discretion in proceeding with the trial. E.L.T., 93 S.W.3d at 377.

E.L.T. is factually distinguishable from this case in several respects. In E.L.T., the only motion for continuance was oral, not complying with Rule 251 of the Texas Rules of Civil Procedure, the parent was appointed no guardian ad litem or attorney ad litem, and there was no finding by any court that the parent was incompetent and there was no evidence introduced to support a claim that she was not competent. John's case here is stronger because a sworn written motion was filed ...