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In re E.R.W.

Court of Appeals of Texas, Fourteenth District

September 5, 2017

IN THE INTEREST OF E.R.W., A CHILD

         On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 82806-F

          Panel consists of Chief Justice Frost and Justices Boyce and Jewell.

          OPINION

          KEM THOMPSON FROST CHIEF JUSTICE

         In this appeal we address an issue of first impression in Texas: whether the current version of Family Code section 107.013 -"Mandatory Appointment of Attorney Ad Litem for Parent" - provides a non-indigent parent with a statutory right to representation by counsel in a suit by the government for termination of parental rights. Concluding that it does, we next consider whether a parent may challenge the trial court's termination of parental rights based on ineffective assistance of the parent's retained counsel. We conclude that a parent may assert such a challenge, though the parent's challenge in this appeal is unsuccessful.

         Introduction

         Appellant M.L. ("Mother") appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services ("Department") as sole managing conservator of her child E.R.W. ("Erin").[1] On appeal, Mother challenges the trial court's emergency removal of Erin from Mother's care. Mother also contends her retained counsel provided ineffective assistance. We affirm.[2]

         Factual and Procedural Background

         In April 2015, the Department received a referral related to M.H.[3]("Mindy"), then age ten, and Erin, then age two, alleging, among other things, that Mother might have been abusing prescription medication and methamphetamines and neglecting the two-year-old child. During the Department's investigation, Mother tested positive for methamphetamines. Her history with the Department included a 2012 referral for neglectful supervision. Mother was on probation for two 2013 driving-while-intoxicated convictions. Mother underwent a family-based services assessment. Following a substance-abuse assessment, Mother received a recommendation for inpatient treatment.

         Mother agreed to place Erin with an aunt in a parental-child safety placement, but after a while the aunt indicated she could not care for Erin much longer. In considering additional placement options for Erin, Mother suggested the child's grandfather ("Grandfather") and his fiancée. Grandfather's fiancée told the Department of physical altercations between the Grandfather and the fiancée, at least one of which occurred in Mother's presence. Mother then agreed to a new parental-child placement for Erin with her friend Sam and Sam's mother Margaret.

         Shortly thereafter, in July 2015, the Department caseworker received Mother's drug test results indicating "Amphetamines; Benzodiazepine; Opiate/Amp: 6049 . . . Methamp: > 10000 . . . Benzo: 485 . . . Hydrocodone: 3321 ng/ml." Mother failed to show up for a scheduled psychological evaluation. Mother did not complete her inpatient treatment or initiate other services identified in the Family Service Plan, and drug tests included numerous positives.

         Mother engaged in behavior that Erin's caregivers reported to the Department. Margaret contacted the Department's caseworker and informed the caseworker she had requested a "no trespass" for the child's grandmother ("Grandmother"), who had come to the house insisting on taking Erin. A few days later, Margaret again contacted the caseworker stating Mother had threatened to revoke the parental-child safety plan for Erin.

         Later that summer, the caseworker received a call from Sam about difficulties Sam and Margaret were experiencing with Mother. Sam had brought Erin to Grandfather's home for a visit. After the visit, Sam placed Erin in his vehicle and as he was getting in, Mother took the child from Sam's vehicle, went into Grandfather's home, and locked the door. The caseworker contacted law enforcement for assistance. When the caseworker arrived at Grandfather's home, Grandfather told her to get off his property. Mother would not participate in a phone conversation or respond to the caseworker's text messages.

         The caseworker then contacted the Brazoria County Sheriff's Office to meet her at Grandmother's home. The officers indicated no one answered the door at the home, but they heard a child crying. Sometime later, when Mother and Grandmother left the property, Lake Jackson Police officers pulled them over. Erin was with Mother and Grandmother. The Lake Jackson police officer informed the caseworker not to contact Mother because she was violent. He told the caseworker that Mother had accused Sam of molesting Erin. At that time, the police arrested Mother for a probation violation and released Erin to the caseworker. The Department then placed Erin in a foster home.

         The Department filed a petition for termination of Mother's parental rights to Erin. During the bench trial that followed, the trial court heard testimony from nine witnesses over a four-day period. At the conclusion of the trial, the trial court terminated Mother's parental rights, citing the predicate findings under Family Code sections 161.001(1)(E) (concerning endangerment of the child) and (O) (failure to comply with a service plan). The trial court also found that termination of Mother's parental rights was in Erin's best interest. The trial court appointed the Department as sole managing conservator.

         Issues Presented

         Mother raises two issues on appeal. In her first issue, Mother challenges the sufficiency of the evidence supporting the trial court's emergency removal of the child. In her second issue, Mother alleges ineffective assistance of her retained counsel.

         Emergency Removal of the Child

         Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1), (2) (West 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Mother contends "that the Department failed to prove by clear and convincing evidence that Mother engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical health or emotional well-being of the child at the time the child was removed on August 6, 2015." Mother further contends the Department failed to provide clear and convincing evidence that Erin was in imminent danger and there were exigent circumstances when Erin was removed and placed in foster care. We construe Mother's argument as challenging the trial court's temporary order issued after an adversary hearing related to the emergency removal.

         The Department's emergency removal of Erin on August 6, 2015 was the subject of a September 10, 2015 adversary hearing. After the hearing, the trial court issued temporary orders appointing the Department as Erin's temporary managing conservator. Mother could have challenged the removal and temporary orders under section 262 of the Family Code through a mandamus proceeding. See In re J.D.S., 494 S.W.3d 387, 389 (Tex. App.-Waco 2015, no pet.) (holding that the trial court's decision to allow Department to maintain custody of child following an adversary hearing is reviewable, if at all, through petition for writ of mandamus); see also In re M.N.M., No. 14-17-00328-CV, 2017 WL 2819349, at *3-9 (Tex. App.-Houston [14th Dist.] June 29, 2017, orig. proceeding) (granting mandamus relief as to trial court's decision to allow Department to maintain custody of child following an adversary hearing); In re Pate, 407 S.W.3d 416, 418-20 (Tex. App.-Houston [14th Dist.] 2013, orig. proceeding) (same as In re M.N.M.). She did not do so. Because the trial court since has rendered a final judgment, Mother's complaints about the temporary orders authorizing emergency removal are moot. See L.F. v. Dep't of Family & Protective Servs., No. 01-10-01148-CV, 01-10-01149-CV, 2012 WL 1564547, at *14 (Tex. App.-Houston [1st Dist.] May 3, 2012, pet. denied) (declining to consider the courts temporary orders authorizing emergency removal after final order of termination entered) (mem. op.). Therefore, we overrule Mother's first issue.

         Ineffective-Assistance-of-Counsel Claim

         Mother contends the trial court erred in terminating her parental rights because she received ineffective assistance of counsel during critical times in the proceedings and suffered irreparable harm. Mother asserts her original retained counsel failed to render effective assistance because he did not appear for the adversary hearing related to the emergency removal. Mother contends her second retained counsel failed to render effective assistance by not appearing at a hearing on the Department's motion to modify Mother's visitation.[4]

         In response to the ineffective-assistance allegations, the Department points out that the counsel about whom Mother complains are lawyers Mother retained rather than appointed counsel. The Department contends Mother cannot challenge the trial court's judgment based on ineffective assistance of retained counsel.

         Retained versus Appointed Counsel

         In support of its argument that Mother cannot challenge ineffective assistance of retained counsel, the Department cites to several decisions from sister courts of appeal. See In re Z.C., No. 12-15-00279-CV, 2016 WL 1730740, at *2 (Tex. App.-Tyler Apr. 29, 2016, no pet.) (mem. op.); In re J.B., No. 07-14-00187-CV, 2014 WL 5799616, at *5 (Tex. App.-Amarillo Nov. 6, 2014, no pet.) (mem. op.); In re V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *12 (Tex. App.-San Antonio Aug. 31, 2009, no pet.) (mem. op.). The Eighth Court of Appeals in El Paso has applied an analysis similar to the analyses of these three courts. See In re A.B.B., 482 S.W.3d 135, 140-41 (Tex. App.-El Paso 2015, pet. denied). All conclude that a non-indigent parent may not assert an ineffective-assistance claim based on the representation of retained counsel in a suit by a governmental entity to terminate the parent-child relationship ("Termination Suit"). See In re Z.C., 2016 WL 1730740, at *2; In re A.B.B., 482 S.W.3d at 140- 41; In re J.B., 2014 WL 5799616, at *5; In re V.G., 2009 WL 2767040, at *12. These courts appear to base this conclusion on the following premises:

(1)Ineffective assistance of counsel may be asserted only by one who has a constitutional or statutory right to be represented by counsel; and
(2)A non-indigent parent represented by retained counsel in a Termination Suit has no constitutional or statutory right to be represented by counsel in the suit.

See In re A.B.B., 482 S.W.3d at 141.

         Courts have based a party's right to assert ineffective assistance of counsel on the party's constitutional or statutory right to assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 343-45, 100 S.Ct. 1708, 1715-16, 64 L.Ed.2d 333 (1980); In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (discussing statutory right of indigent parents to appointed counsel in parental-termination cases). Though a right to assistance of counsel in civil cases developed long ago under the common law, courts have declined to allow parties to assert ineffective assistance of counsel based on a common-law right to assistance of counsel; instead, courts have required a constitutional or statutory right to assistance of counsel before a party may assert ineffective assistance of counsel. See Faretta v. California, 422 U.S. 806, 823, 95 S.Ct. 2525, 2535, 45 L.Ed.2d 562 (1975) (recognizing that the right to assistance of counsel developed long ago under the common law); In re A.L.H., 515 S.W.3d 60, 87 (Tex. App.-Houston [14th Dist.] 2017, pet. Denied) (concluding that a party has no general right to assert ineffective assistance of counsel in a civil case); In re A.B.B., 482 S.W.3d at 140 (concluding that a party may not assert ineffective assistance of counsel in a civil case unless the party has a constitutional or statutory right to assistance of counsel); Smith v. Smith, 22 S.W.3d 140, 151 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (recognizing a civil litigant's common-law right to assistance of counsel). We presume that Mother may not assert ineffective assistance of counsel unless she has a constitutional or statutory right to ...


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