Appeal from the 300th District Court Brazoria County, Texas
Trial Court Cause No. 82806-F
consists of Chief Justice Frost and Justices Boyce and
THOMPSON FROST CHIEF JUSTICE
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.
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"). 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.
and Procedural Background
April 2015, the Department received a referral related to
M.H.("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
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.
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.
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.
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.
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.
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.
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
Removal of the Child
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
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.
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
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
versus Appointed Counsel
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
(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.
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