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In re K.B.

Court of Appeals of Texas, Fifth District, Dallas

September 15, 2017

IN THE INTEREST OF K.B., A CHILD

         On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-16-00365-W

          Before Justices Fillmore, Whitehill, and Boatright

          MEMORANDUM OPINION

          ROBERT M. FILLMORE JUSTICE

         In this accelerated appeal, Father challenges the trial court's order terminating his parental rights to his daughter, K.B., asserting he received ineffective assistance of counsel and the evidence is legally and factually insufficient to support the trial court's findings Father committed two of the statutory grounds for termination, termination of Father's parental rights was in K.B.'s best interest, and the Texas Department of Family and Protective Services (the Department) should be appointed K.B.'s managing conservator. Because Father established he received ineffective assistance of counsel when his appointed attorney failed to appear at trial, we reverse the trial court's order of termination and remand this case to the trial court for further proceedings.

         Background

         Following K.B.'s birth on March 23, 2016, the hospital notified the Department that K.B.'s urine tested positive for marijuana. The Department conducted an investigation, which included interviews of Father and of K.B.'s mother. After the Department determined K.B. should not be released from the hospital in either Father's or Mother's care, K.B. was released in the care of Mother's aunt. The aunt was unable to locate childcare for K.B. while the aunt was working and decided to relinquish custody of K.B. to the Department. On April 7, 2016, the Department filed a suit affecting the parent-child relationship in which it sought temporary and permanent managing conservatorship of K.B. and the termination of Father's and Mother's parental rights. The following day, the trial court granted the Department temporary managing conservatorship of K.B.

         On April 20, 2016, Father completed a financial statement indicating his monthly income was approximately equivalent to his monthly expenses. Although the order is not in the record, the trial court appointed an attorney to represent Father. The attorney appeared for Father at a hearing on April 20, 2016, and filed an answer on Father's behalf on April 21, 2016.

         The trial court signed temporary orders on April 20, 2016, requiring Father to participate in individual counseling which included anger management and in "drug/alcohol" counseling, to complete a parenting class, and to submit to random drug testing within twenty-four hours of request by the Department. Father completed the counseling and the parenting class, but refused to submit to the requested drug testing. On December 1, 2016, K.B.'s attorney ad litem filed a motion requesting that Father be required to submit to a "nail bed drug test, " because he claimed to be unable to submit to a hair follicle test. On January 5, 2017, Father agreed to submit to a hair follicle test that day before 5:00 p.m.

         The case was set for jury trial on February 6, 2017, but did not go to trial on that date. Although the record does not contain an order setting a new trial date and does not reflect how the parties were informed of the new trial date, the case was reset for March 27, 2017.[1] On February 9, 2017, the Department issued a subpoena requiring Father's wife to appear at trial at 8:30 a.m. on March 27, 2017. Father's wife was served with the subpoena on February 15, 2017. On the day of trial, the Department filed a motion for continuance or, in the alternative, for writ of attachment on the ground Father's wife had sent an email to the Department's attorney the previous day indicating her child was sick and she would not attend trial.

         Neither Father nor his attorney appeared at trial on March 27, 2017. Evidently believing the trial court was considering the Department's motion for continuance, the Department's attorney called only Sh'Tonia Edmond, the Child Protective Services (CPS) supervisor, and Ruth Holland, the "CASA supervisor, "[2] to briefly testify.[3] Edmond testified that, although she was now the supervisor, she had initially been the investigator in the case. K.B. came to CPS's attention due to concerns about drug use by Father and Mother, and Edmond understood K.B. was currently in foster care. Edmond affirmed Father "committed the behavior that would constitute (d) and (e) grounds." She affirmed Father's and Mother's drug use meant:

[T]hey had knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical and emotional well being [sic] of the child pursuant to Section [161.001(b)(1)(D)] of the Texas Family Code and engaged in conduct and knowingly placed the child with persons who engaged in conduct which endangered the physical and emotional well being [sic] of the child pursuant to Section [161.001(b)(1)(E)] of the Texas Family Code.

         Finally, Edmond affirmed the trial court granted the motion "to put the child into care" because K.B. was in immediate and continuing danger.

         Holland testified her "advocate" was out of town, but had "faithfully and regularly" visited K.B. and had "been very pleased with her placement; doing very well." Holland understood Father had not "been most forthright" with CPS. Holland also understood Father was married and had children with his current wife. Holland agreed Father had "been reluctant to make a decision between his legal family and the family he has started" with Mother. Although Holland had never spoken with Father's current wife, Holland agreed that Father's wife would be a necessary witness "if this were to go to trial today or any time in the future."

         It was Holland's understanding the Department did not know where Father worked or what type of employment he had. Holland also understood the Department did not know where Mother's other children were because Mother had also not been "forthright." Finally, it was Holland's understanding Mother had not passed a drug test and Father had taken one drug test and failed that test. Holland believed it was in K.B.'s best interest for Father's and Mother's parental rights to be terminated and for the Department to be appointed K.B.'s permanent managing conservator.

         The Department's attorney indicated that was "all of the evidence we have to present at this time, and for the purposes of this hearing[, ] we rest." The trial court, however, treated the hearing as a trial following default and asked K.B.'s attorney ad litem whether "this is in the best interest of the child." K.B.'s attorney ad litem responded affirmatively. As relevant to this appeal, the trial court found Father "committed the conduct as defined" in section 161.001(b)(1)(D) and (E) of the family code and that termination of the parent-child relationship between Father and K.B. was in K.B.'s best interest. The trial court named the Department as K.B.'s permanent managing conservator.

         Legal Sufficiency of the Evidence ...


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