Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF X.E.A. AND X.M.A., CHILDREN
Submitted: May 17, 2017
Appeal from the 196th District Court Hunt County, Texas Trial
Court No. 83144
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice.
parental rights to her infant twin sons, X.E.A. and X.M.A.,
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.
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.
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.
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.
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.
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.
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.
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.
September 16, 2016, the trial court held an initial
permanency hearing. Although Beth's attorney appeared for
the hearing, Beth did not attend. 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.
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.
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,  and the information she did offer
was confusing. 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,  but that his co-workers had seen her