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F. R. v. Texas Department of Family And Protective Services

Court of Appeals of Texas, Third District, Austin

December 15, 2017

F. R. and J. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT NO. 13-2094, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING

          Before Justices Puryear, Field, and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         Appellants F.R. ("Felix") and J.R. ("Jane") appeal from the trial court's order terminating their parental rights regarding two children, J.R. ("Tiffany") and J.R. ("Erin").[1]Appellants challenge the order claiming trial-court procedural errors, ineffective assistance of trial counsel, legal and factual insufficiency of the evidence, and denial of due process. For the reasons that follow, we will affirm the trial court's order.

         BACKGROUND

         Felix and Jane are Tiffany and Erin's biological parents. Neither parent reports having any other children. Since birth, Tiffany has had an intellectual and developmental disability that her parents refer to as "autism." According to Jane, Tiffany exhibited delayed speech and motor skills in infancy and did not begin walking until she was two-and-a-half years old. Tiffany began acting violently when agitated when she was a young child by hitting, scratching, and biting her parents, other caregivers, and Erin. The parties refer to these episodes as tantrums. The violent behavior, both directed outwardly and at times self-injurious, has continued throughout Tiffany's childhood.

         In September 2013, the Texas Department of Family and Protective Services received four intakes alleging abuse and neglect of Tiffany and Erin by Felix and Jane. At that time, Tiffany was ten years old and Erin was four. The first intake, dated September 6, 2013, reported that Tiffany was observed with scratches and sores on her legs and buttocks after disrobing during a tantrum at school. The second intake, made the same day, reported that with increasing frequency no adult was present at the residence when Tiffany was dropped off by the school bus. It also noted concerns related to proper management of Tiffany's medication. The third intake was dated September 12, 2013, and reported that Felix became enraged at a school-bus driver who refused to exit the bus to aid Felix during one of Tiffany's tantrums. It also reported that Felix had subsequently called the school and made statements to the effect that "his life and his family's lives was going up in flames, " which school staff understood to be a threat to blow up his home with his wife and children inside. The same day, the Department received the fourth intake, which reported that law enforcement had responded to two incidents that afternoon in which Tiffany was biting and kicking her father, who was restraining Tiffany. The intake reported that Jane video-recorded the second incident instead of helping Felix and Tiffany.

         The Department conducted an investigation that led to it filing its Original Petition for Protection of Children, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. The paternal grandmother, R.K. ("Rita"), intervened in the suit. Tiffany and Erin were removed from their parents' home on September 26, 2013, pursuant to an order for protection of child in an emergency and writ of attachment. When the Department attempted to effectuate the order, it learned that Tiffany had been admitted to Austin State Hospital. Erin was collected from the home of an unknown individual, where Felix and Jane had left her, and placed in foster care. An adversary hearing was conducted on October 29 and 31, 2013, and the children's placements were continued, as was the Department's conservatorship. The court also ordered the parents to complete a Family Plan of Service that included psychological and psychiatric evaluations. In accordance with the Family Code in effect at the time, the order also set a dismissal date of September 29, 2014. See Tex. Fam. Code § 263.401(a).[2]

         Following a four-day bench trial, on August 21, 2014, an associate judge terminated the parental rights of Felix and Jane and appointed the Department as the children's permanent managing conservator. Felix and Jane timely requested a de novo trial on August 22, 2014, and filed an amended request on August 26, 2014. The Department also requested a de novo trial regarding attorney's fees and child support.

          The requested de novo trial did not occur until May 2017, approximately two years and ten months later. The chronology of events during the interim time period is as follows[3]:

• August 26, 2014 Counsel for Felix and Jane moved to withdraw as counsel for Jane because a conflict of interest had arisen.
• September 4, 2014 Motion for withdrawal of Jane's counsel was granted.
• September 8, 2014 Substitute counsel for Felix and Jane appeared. Felix and Jane requested the de novo trial be tried before a jury but failed to submit the required jury fee.
• January 27, 2015 The Department moved to dismiss for want of prosecution, alleging that Felix and Jane had not set their request for de novo trial by jury for hearing and had failed to appear at a hearing on January 26, 2015, that was set by the Department, despite confirmed receipt of notice of the hearing.
• January 29, 2015 Felix and Jane filed a second request for jury trial with proof of payment of the jury fee and responded to the Department's motion to dismiss, explaining that a last-minute scheduling conflict had arisen and counsel had inadvertently failed to notify parties to this cause and the court. Although a motion to set the de novo trial for hearing on April 27, 2015, was attached as an exhibit to the response, the record does not show that it was filed.
• March 25, 2015 The parties filed a Rule 11 Agreement continuing the trial to August 10, 2015.
• June 23, 2015 One of two attorneys of record for Felix and Jane moved to withdraw as counsel for Felix, citing an inability to effectively communicate with Felix in a manner consistent with good attorney-client communications.
• July 8, 2015 An amended motion for withdrawal of counsel was filed, requesting that both attorneys of record be withdrawn as counsel for both Felix and Jane, again citing inability to effectively communicate.
• August 3, 2015 A second substitute attorney appeared on behalf of Felix and Jane.
• September 14, 2015 An agreed order on motion for substitution of counsel was filed, having been signed on September 9, 2015.
• April 1, 2016 The Department filed a notice of mediation setting for April 11, 2016.
• April 12, 2016 The parties filed a limited mediated settlement agreement to set the matter for final jury trial on August 29, 2016, explaining that the attorney ad litem had requested a continuance due to a scheduling conflict with another case attempting to meet its statutory deadline.
• July 27, 2016 The Department filed a motion for preferential setting, noting that the de novo trial had been pending for approximately 2 years at that point and that the parties were originally set for a jury trial on July 30, 2015, but that the "setting [had] been continued and reset multiple times since that time at the request of different parties."
• July 28, 2016 Counsel for intervenor paternal grandmother Rita moved to withdraw ...

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