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In re X.E.A.

Court of Appeals of Texas, Sixth District, Texarkana

June 28, 2017

IN THE INTEREST OF X.E.A. AND X.M.A., CHILDREN

          Submitted: May 17, 2017

         On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 83144

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice.

         Beth's parental rights to her infant twin sons, X.E.A. and X.M.A., [1] have been terminated in a suit brought by the Texas Department of Family and Protective Services (the Department) following a trial to the court. In this accelerated appeal, Beth contends (A) that her counsel was ineffective in two ways, (i) failing to object when the trial court named the Department temporary managing conservator of the children without the benefit of a full adversary hearing and (ii) failing to raise issues regarding the children's removal by the Department and (B) that the trial court erred by failing to hold a hearing on Beth's competency before proceeding with the hearing on the merits of the Department's suit. Because (1) ineffective assistance of counsel has not been established and (2) the permanent order mooted any issue with the temporary order, we affirm the trial court's judgment.

         The Department's petition for conservatorship and termination alleged every statutory ground for termination found in the Texas Family Code. Attached to the petition was an affidavit of Terri Baker, an investigator for the Department, claiming, among other things, that Beth had not bonded with X.E.A. and X.M.A.; that she failed to adequately feed or care for the children; that she was unable to communicate with Baker regarding the children's needs; that she was unable to identify the children's father or his whereabouts; that the home in which the children were living was in "total disarray"; that Beth had lost custody of another child before this proceeding; and that she had criminal charges currently pending against her.

         On April 13, 2016, the trial court convened an adversarial hearing and, at that time, appointed counsel for Beth. Because Beth was in the custody of the Hunt County Jail due to an arrest for unauthorized use of a motor vehicle, the trial court continued the hearing.

         On April 26, 2016, the trial court reconvened the adversary hearing and began by ordering Beth to participate in a psychiatric evaluation. It also appointed, "in an abundance of caution, " a guardian ad litem for Beth. Further, the trial court found that, because Beth was incarcerated and the alleged fathers had not been served, it would be in the best interests of the children for the court to appoint the Department as temporary managing conservator and to delay Beth's service plan until after the report of her psychiatric evaluation was returned to the court.

         During the hearing, the trial court explained to Beth what a psychiatric evaluation was and that, during the pendency of the evaluation, the Department would have temporary managing conservatorship of her children. The trial court then asked Beth if she understood what it had just explained to her. Beth responded that she did. In addition, the trial court asked Beth if she understood its ruling, to which she responded, "I'm okay with that." When asked if she had any question regarding its ruling, Beth informed the trial court that she did not. Beth's trial counsel did not object to the trial court's appointment of the Department as temporary managing conservator of the children.

         On May 31, 2016, Beth appeared before the trial court for a status hearing. During the hearing, Nate Newell, a Department caseworker, testified that he had located Tom, who was one of the alleged fathers of the children. According to Newell, Tom had been arrested and was in custody in a correctional facility. Newell visited Tom and inquired as to whether Tom believed he was the father of Beth's children. Tom told Newell that he had not seen Beth in approximately four years and that "there was no way he could be the father" of the infant twin boys. In Newell's presence, Tom signed a waiver of citation and a waiver of interest in the children. Newell also explained that he and a Department investigator had made additional efforts to find a second alleged father, Michael, but that they had been unsuccessful. In addition, Newell tried on several occasions to locate Beth's family members in an attempt to find a suitable placement home for the children, but he had been unsuccessful in his efforts. Newell stated that, in his opinion, Beth remained in need of a psychological evaluation. Newell informed the trial court that the Department would be willing to provide her with transportation to the evaluation. He also explained that, when Beth was released from jail, supervised visits could be arranged for Beth and the children.

         Viola Mathis, a court-appointed special advocate, testified that the children were doing well in their placement, in the home of a pediatric nurse. The children's weight had normalized, and they had received all of their immunizations. Mathis explained that, in her opinion, the placement home was appropriate for the children. According to Mathis, the placement family had no issues with Beth visiting the children at the Department offices.

         Beth testified that she was currently in jail on criminal charges, which, she believed, were set for trial the following week. Beth stated that, on her release from custody, she would be residing in a local apartment complex. Beth explained that, if she could not live at the apartments, she would call her mother to see if she would be able to live with her. If Beth could not find her mother, she stated that she would contact her grandmother in order to locate her mother. The trial court emphasized to Beth the importance of staying in contact with the Department and the necessity of making use of the services she had been provided.[2]

         On September 16, 2016, the trial court held an initial permanency hearing.[3] Although Beth's attorney appeared for the hearing, Beth did not attend.[4] Despite her absence, the trial court proceeded with the hearing. Newel, Beth's caseworker, testified that he had not spoken with Beth since she had been released from custody. Newell explained that, despite making the children available to Beth, she had not attempted to visit them. Likewise, Beth's family members had not attempted to visit the children. According to Newell, the Department's plans had changed since the last hearing, and it was now seeking to terminate Beth's parental rights and to go forward with a non-family adoption of the children.

         Over six months after the trial court entered its temporary order naming the Department as the children's temporary managing conservator, the court conducted a trial on the merits. Although Beth was not present, both her attorney and guardian ad litem appeared on her behalf. At trial, Newell testified that the Department had remained unable to locate the second alleged father of the children, Michael. When the trial court asked if Michael might have been a "figment of [Beth's] imagination, " Newell stated, "[Y]es, sir." Newell also testified to multiple, unsuccessful efforts to locate Beth's family members, stating that "it was fair to say" that most of Beth's family members were incarcerated.

         In addition, Newell explained to the court that, during Beth's confinement, he had questioned her about her future living arrangements. According to Newell, Beth gave him very little information, [5] and the information she did offer was confusing.[6] Newell also testified that he had asked Beth how she planned on taking care of her children. Beth responded that she was not sure. "She didn't say much about them. She didn't ask about them. She didn't really answer the question." Newell stated that he had not seen or spoken to Beth since she had been released from jail, [7] but that his co-workers had seen her ...


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