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In re L.J.G.

Court of Appeals of Texas, Fourth District, San Antonio

January 10, 2018

IN THE INTEREST OF L.J.G., et al., Children

         From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2016PA00461 Honorable Antonia Arteaga, Judge Presiding

          Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         Christy G. appeals the trial court's order terminating her parental rights to five of her children, L.J.G., G.J.G., Z.I.G., A.A.G., and L.G.-R.F.[1] Christy G. contends the trial court erred in granting the motion to strike her request for a jury trial as a sanction for her failure to attend court-ordered mediation. Christy G. also contends the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the children's best interest. We sustain Christy's first issue and reverse the portion of the trial court's order terminating Christy's parental rights. We remand the cause to the trial court for further proceedings.

          Background

         On March 3, 2016, the Texas Department of Family and Protective Services filed a petition seeking to terminate Christy G.'s parental rights. On that same day, Rosie Reyes was appointed as Christy G.'s attorney ad litem. On March 16, 2016, however, the trial court granted Reyes's motion to withdraw and appointed Byron Barnett to represent Christy G. Christy G. personally appeared at the hearing on temporary orders on March 29-30, 2016, and at the status hearing on April 27, 2016.

         Christy G. also personally appeared at the permanency hearing before final order on August 24, 2016. The following day, Christy G. filed a timely request for a jury trial.

         On December 5, 2016, the trial court signed an order referring the case to mediation on May 15, 2017. The order stated, "A violation of this Order shall be punished by contempt of Court, which is punishable by confinement in the County Jail for up to six (6) months and a fine of up to $500."

         On December 30, 2016, the trial court sent a notice that the cause was set for a jury trial on June 19, 2017. Christy G. personally appeared at a permanency hearing before final order on March 22, 2017.

         On April 17, 2017, the children's attorney and guardian ad litem filed a motion to modify temporary orders based on Christy G.'s failure to appear for a hair follicle test and concerns that continued contact between Christy G. and the children would be detrimental to the children's mental and emotional health. Specifically, the motion referred to Christy's G.'s erratic behavior and the emotional trauma the oldest child was experiencing after family therapy. The motion requested that Christy G.'s visits with the children and family therapy be terminated.

         Christy G. did not personally appear at the hearing on the motion to modify which was held on April 24, 2016; however, she appeared through her attorney of record. The trial court granted the motion to modify, terminating the family therapy and Christy G.'s visits with the children.

         On May 5, 2017, Christy G.'s attorney ad litem filed a motion to withdraw stating he was "unable to effectively communicate with Christy [G.] in a manner consistent with good attorney-client relations." On May 10, 2017, the trial court signed an order granting the motion to withdraw. On May 11, 2017, the trial court signed an order appointing Monica Guerrero as Christy G.'s attorney ad litem. The mediation was held on May 15, 2017.

         On June 9, 2017, the Department filed a motion for continuance of the June 19, 2017 trial date. On June 15, 2017, the trial court signed a pre-trial scheduling order resetting the trial to July 10, 2017. The order also stated that "mediation is ordered prior to July 6, 2017."

         On July 7, 2017, the Department filed a motion to strike the jury demand/setting as a sanction for Christy G.'s failure to attend the May 15 court-ordered mediation. On July 10, 2017, Christy G.'s attorney ad litem filed a motion for continuance stating she was recently appointed and did not have sufficient time to prepare. The motion also stated Christy G. did not appear at the mediation because of medical problems requiring hospitalization.

         On July 10, 2017, the case proceeded to trial. After some discussion off the record, the trial court went on the record noting Christy G.'s attorney had filed a motion for continuance and asked the other attorneys to identify themselves for the record. The trial court then recapped the off-the-record discussion stating the trial court heard Christy G.'s motion for continuance off the record, noting a conversation between Christy G. and her attorney in which Christy G. stated she missed the mediation because she was in the hospital. The trial court also noted that Guerrero was appointed as Christy G.'s attorney ad litem on May 11, 2017, and the mediation was scheduled for May 15, 2017. The following exchange then occurred regarding Christy G.'s failure to appear at the mediation:

THE COURT: …. And let the record reflect that after the Court inquired, it turns out mom was hospitalized, but it was at Easter, not during the mediation timeframe.
Would that be correct ma'am?
[CHRISTY G.]: I was not told about the ...

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