Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF04-10316-Z, DF06-08087-U
Before Justices Francis and Lang-Miers, and Chief Justice Thomas, Ret.
Linda Thomas Chief Justice
In September 1987, sixteen-year-old S.T. (Mother), unrepresented by counsel, had a default judgment rendered against her terminating her parental rights to her ten-month-old daughter. More than twenty-five years later, the Texas Department of Family and Protective Services relied on that default judgment as the sole substantive ground for terminating Mother's parental rights to her two children, N.L.T. and M.T. The cases were consolidated for trial before the court. The trial court found in the Department's favor and terminated Mother's parental rights.
Among other things on appeal, Mother argues she received ineffective assistance when her appointed counsel failed to challenge the statute under which her parental rights were terminated as an unconstitutional retroactive law as applied to her. After reviewing the record and for reasons set out below, we agree with Mother. Accordingly, we reverse the trial court's judgments and remand for a new trial.
In December 2009, the Department received several referrals that N.L.T. and M.T., ages six and four respectively, were living in unsanitary and unstable conditions with Mother, who had been diagnosed as bipolar with schizophrenic features. According to the referrals, Mother was not taking her medications and was "exhibiting increasing signs of paranoia and mental instability." After investigating, the Department took custody of the children and filed a suit affecting the parent-child relationship. The parties ultimately reached an agreement to appoint a maternal aunt as sole managing conservator of the children and to give Mother supervised visitation. The trial court rendered an order in December 2010 adopting the terms of the parties' agreement. Sometime thereafter, Mother moved in with the aunt and the children.
In March 2012, the Department removed the children from the aunt's custody when it discovered the aunt was physically abusing and starving M.T. At the time of the removal, Mother was a patient in Green Oaks Hospital. The Department moved for conservatorship of both children and sought to terminate Mother's parental rights if reunification could not be achieved. As grounds for termination, the petition alleged eighteen of the twenty statutory substantive grounds set out in section 161.001(1) of the Texas Family Code: (A), (B), (C), (D), (E), (F), (G), (I), (J), (K), (L), (M), (N), (O), (P), (Q), (R), and (S). See Tex. Fam. Code Ann. § 161.001(1) (West Supp. 2013). At trial, however, the State abandoned all grounds for termination except subsection (M), which authorized the trial court to terminate the parent-child relationship if it found by clear and convincing evidence that the parent "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state" and that termination was in the child's best interest. Id. § 161.001(1)(M), (2). Grounds (D) and (E) allow termination of parental rights when a parent has engaged in conduct or placed a child with another who engaged in conduct that endangered the child's physical or emotional well-being. See id. § 161.001(1)(D), (E).
Briefly, the evidence at trial and at the new-trial hearing in these cases showed Mother gave birth to a baby girl in October 1986 when she was sixteen and using cocaine. She admitted the child was born with cocaine in her system. When the child developed respiratory problems in January 1987, Mother took the child to the hospital, and the doctors found burns on the child's back that Mother could not explain. The doctors referred the child to the Department, and Mother's parental rights to the child were terminated in September 1987. In the termination decree, the trial court found Mother had "knowingly placed and knowingly allowed the child to remain in conditions and surroundings which endanger the physical and emotional well-being of the child, and has engaged in conduct . . . which endangers the physical and emotional well-being of the child." Mother testified at the trial in this case that the child was not burned; rather, she explained the child had "so much cocaine in her system, the stuff had to come out [of] her system [and] left marks on both side[s] of her" body.
With regard to N.L.T. and M.T., the children the subject of this suit, the Department stipulated at trial that Mother "had no fault at all in the current removal." However, the Department presented evidence that since 2009, Mother voluntarily admitted herself to Green Oaks on five separate occasions when she was stressed or upset and needed time "to gather [her] thoughts." Mother testified she suffered a nervous breakdown in 1992 when her father died and again in 2010. Medical testimony showed Mother was diagnosed with schizoaffective and bipolar disorders, but she denied the need for antipsychotic medication and declined prescriptions for those symptoms. The month before trial, Mother tested positive for use of cocaine and benzoylecgonine. She admitted regular use of marijuana but denied using cocaine after 1990. She said her ex-boyfriend was a cocaine dealer and the cocaine got in her hair and on her "hands and stuff like that" because of her association with him.
The evidence also showed that M.T. was diagnosed with autism, but Mother believed his behavior was related to a hearing problem. She said M.T. was diagnosed with mental retardation and "autistic ways" but not "per say [sic] autistic." However, she testified that she planned to send M.T. to a school for autistic children because "[t]hey keep saying that he's autistic[.]" The evidence showed that M.T.'s behavior had improved considerably after being placed in a foster home experienced with autistic children.
N.L.T. was in the foster home with M.T. for six months but was removed "for a variety of behaviors" described as "red flags." In particular, N.L.T. was "acting out" sexually towards the boys in the home, wrote "sexually explicit things" on her bedroom furniture, and smeared feces on the wall of her bedroom and on her sheets. Ultimately, she was placed in Timberlawn Hospital, where it was determined she "was having signs of schizophrenia" and needed a "more structured environment." At the time of trial, N.L.T. was at a treatment facility, where she was taking psychotropic medications and receiving intense therapy. There was no time frame for her release from the facility because it depended on her improvement.
Finally, Mother's criminal history presented in evidence at trial included convictions for aggravated robbery and credit card abuse in 1987, theft and escape in 1990, aggravated assault on a correctional officer in ...