Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re L.M.

Court of Appeals of Texas, Second District, Fort Worth

May 3, 2018

IN THE INTEREST OF L.M. AND L.M., CHILDREN

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 16-07353-16

          PANEL: PITTMAN, J.; SUDDERTH, C.J.; and BIRDWELL, J.

          MEMORANDUM OPINION [1]

          PER CURIAM.

         After a bench trial, the trial court terminated the parental-child relationships of J.P.M. (Mother) and Appellant R.S. (Father) with their children, fraternal twins L.M. and L.M. (the twins). The trial court found that Mother had executed an unrevoked or irrevocable affidavit of relinquishment of her parental rights and that termination of the parental rights of both parents was in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(K), (2) (West Supp. 2017). The trial court also found that Father

• knowingly placed or knowingly allowed the [twins] to remain in conditions or surroundings which endanger[ed their] physical or emotional well-being;
• engaged in conduct or knowingly placed the [twins] with persons who engaged in conduct which endanger[ed their] physical or emotional well-being; [and]
• failed to comply with the provisions of a court order that specifically established the actions necessary for [him] to obtain the return of the [twins] who ha[d] been in the . . . temporary managing conservatorship of the Department of Family and Protective Services [(TDFPS)] for not less than nine months as a result of [their] removal from the parent . . . for . . . abuse or neglect.

Id. § 161.001(b)(1)(D), (E), (O). Only Father appealed. He does not challenge the sufficiency of the evidence to support termination. Instead, in two issues he contends that (1) the trial court abused its discretion by "specifically prohibiting [his] counsel from seeking an extension of the dismissal deadline, preventing a request for continuance and/or jury trial" and (2) his trial counsel was ineffective by failing "to request a continuance, extension, or jury trial following her late appointment." Because we hold that Father did not preserve his first issue and did not satisfy his burden to prove ineffective assistance of trial counsel, we affirm the trial court's judgment.

         I. BACKGROUND FACTS

         A. The Twins Tested Positive for Methamphetamine at Birth.

         Born prematurely in early September 2016, the twins tested positive for methamphetamine. Mother admitted to TDFPS Investigator Tricilla Ceballos that she had used methamphetamine during her pregnancy but claimed that she stopped in March 2016 when she found out she was pregnant. Mother also admitted to Ceballos that she had been around Father while he used methamphetamine as recently as the day before her delivery. Finally, Mother alleged that Father had been violent with her during the pregnancy.

         B. TDFPS Filed a Petition to Terminate Mother's and Father's Parental Rights, and Father Missed the First Hearing.

         On September 12, 2016, TDFPS filed a petition for termination and secured an ex parte emergency order for protection of the twins. Father did not attend the adversary hearing held September 22, 2016, but went to the trial court that same day and obtained a one-week reset of the adversary hearing pertaining to him.

         C. Father Retained Counsel Who Quickly Withdrew.

         The record shows that retained counsel filed an answer on Father's behalf on September 26, 2016 but then withdrew pursuant to a motion and agreed order on September 29, 2016, and Father was given another one-week reset of the adversary hearing because he indicated that he wanted to retain new counsel.

         D. Father Missed the Hearings in October and November 2016 but Knew by October 2016 that He Had a Right to Counsel and Had Been Ordered to Complete Services.

         Father did not attend the October 5, 2016 adversary hearing or the November 10, 2016 status hearing but admitted at trial that he received a copy of the October 2016 temporary order in October. That order included the following provisions regarding Father's right to counsel:

5. Appointment of Counsel for Parents or Parties
5.1. The Court defers its finding regarding an attorney ad litem for [FATHER] because [he] has not appeared in opposition to this suit or has not established indigency.
. . . .
22. Duty to Provide Information
. . . .
22.8. "YOU HAVE THE RIGHT UNDER §262.102(d), TEXAS FAMILY CODE, TO BE REPRESENTED BY AN ATTORNEY. IF YOU ARE INDIGENT AND UNABLE TO AFFORD AN ATTORNEY, YOU HAVE THE RIGHT TO REQUEST THE APPOINTMENT OF AN ATTORNEY BY CONTACTING THE COURT AT 16th JUDICIAL DISTRICT COURT OF DENTON COUNTY, 1450 E MCKINNEY ST, DENTON, TEXAS 76209, (940) 349-2310. IF YOU APPEAR IN OPPOSITION TO THE SUIT, CLAIM INDIGENCE, AND REQUEST THE APPOINTMENT OF AN ATTORNEY, THE COURT WILL REQUIRE YOU TO SIGN AN AFFIDAVIT OF INDIGENCE AND THE COURT MAY HEAR EVIDENCE TO DETERMINE IF YOU ARE INDIGENT. IF THE COURT DETERMINES YOU ARE INDIGENT AND ELIGIBLE FOR APPOINTMENT OF AN ATTORNEY, THE COURT WILL APPOINT AN ATTORNEY TO REPRESENT YOU."

         The temporary order also contained global provisions about the court-ordered service plan:

12. Finding and Notice
THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE CHILDREN, AND FAILURE TO FULLY COMPLY WITH THESE ORDERS MAY RESULT IN THE RESTRICTION OR TERMINATION OF PARENTAL RIGHTS.
. . . .
20. Compliance with Service Plan
20.1. [FATHER] is ORDERED, pursuant to 263.106 Texas Family Code, to comply with each requirement set out in the Department's original, or any amended, service plan during the pendency of this suit.

         Between those two global provisions, the order set out detailed services that Father was ordered to engage in and complete, including a psychological or psychiatric evaluation, counseling, parenting classes, domestic violence intervention, and drug and alcohol assessments and testing; statuses he was ordered to attain, including stable housing and employment; and activities he was ordered to not engage in, including all criminal activities and unsupervised contact with children under sixteen years of age.

         E. The Trial Court Told Father at the First Hearing He Attended-the February 9, 2017 Permanency Hearing-that He Should Apply for Appointed Counsel and Begin His Court-Ordered Services.

         The first hearing that Father attended was the February 9, 2017 permanency hearing held almost five months after the twins' removal. Father testified that he did not have a lawyer. TDFPS's counsel asked, "And you understand that you have the right to apply to the Court, if you qualify as indigent, for a Court appointed attorney? Have you been through that process?" Father replied, "No." After TDFPS's counsel and the twins' attorney ad litem finished examining Father, the following discussion occurred between Father and the trial court:

THE COURT: All right. And [Father], is this your first time to attend a court hearing in this case?
[FATHER]: Yes, ma'am. . . . I didn't know anything was going on for eleven days after the[ twins] got taken by CPS. . . . [A]ll my calls were ignored by the initial CPS worker. So the day before my first court appearance I was told by an outside source. And I showed up with a lawyer. I had to quickly get a lawyer to postpone it for a week. And then financial issues came up that second week, and she had to basically take her name off as being my lawyer.
They reset for a week, and I was told a week. And it was apparently six days. And I just got the date wrong. So I came in the third day, and that was after everything had gotten taken care of.
THE COURT: Have you tried to hire a lawyer since then?
[FATHER]: Not since then, no. I kind of went into a financial depression, if you will.
THE COURT: Okay. So before you leave here today, I want you to complete a form and let me review it and determine whether or not you qualify for a Court appointed attorney.
[FATHER]: Okay. Thank you.
THE COURT: All right. And so let me just follow up with that and ask you, have you signed up to do any services?
[FATHER]: No. I lost my vehicle . . . about three weeks after the final court appearance. That was the third week that I came in when I was a day late. And everything basically got taken, you know, there was no hearing for me. About three weeks later I got my car repo'd because I lost my job and everything. Well, I didn't lose my job. I kind of just wasn't working.
THE COURT: Okay.
[FATHER]: And so I just kind of lost everything. So I was trying to figure out what to do.
THE COURT: So you're here today. Caseworker is here today. So I'm going to tell you that you need to talk to her today if you intend to do anything about getting started on your services.
[FATHER]: I got my car yesterday. I talked to some guy today, but it doesn't start until March.
THE COURT: Okay, well, nonetheless-
[FATHER]: My stuff got transferred to Tarrant County.
THE COURT: Nonetheless, this case has been pending for just a little over five months. These cases are supposed to be concluded within twelve. So we're almost halfway-we're getting close to the halfway mark, and you haven't done anything at this point. So you need to get moving if you're going to do something.
Do you understand?
[FATHER]: Yes, ma'am.
Before the hearing ended, the trial court reminded the parents,
[T]he CPS plan is a very important document. Its purpose is to provide you with skills and knowledge that you need in order to become better parents to your children. The Court is going to review, at each hearing, whether or not you've made progress under your service plan. The review will include whether you've acquired or learned any specific skills or knowledge as stated in the plan.
If you are unwilling or unable to provide your children with a safe environment, your parental and custodial duties and rights may be restricted or terminated or your children may not be returned to you. Do you understand that, [Father]?

         Father replied, "Yes, ma'am."

         F. By May 11, 2017, About Eight Months After the Twins' Removal, Father Had Not Begun the Court-Ordered Services.

         Three months later at the May 11, 2017 permanency hearing, Father testified as follows in TDFPS's counsel's direct examination:

Q. [Father], have you received a copy of your service plan?
A. Yes.
Q. What services have you started?
A. None.
Q. Are you currently employed?
A. Yes.
Q. Where are you employed?
A. Self-employed.
Q. Doing what?
A. Doing like product placement.
Q. How often do you work?
A. Pretty much anytime I can when-I've had major car problems, vehicle problems in the past two months.
. . . .
Q. In the last six months, what has hindered you from starting your services?
A. Pretty much car trouble.
Q. Have you asked [TDFPS] to look into assisting with transportation?
A. I live an hour and fifteen minutes away.
Q. So have you asked [TDFPS] to assist you-
A. Nope.
Q. Have you asked [TDFPS] to establish services closer to where you live?
A. Yes. Some of them have been.
Q. And you still haven't gone?
A. Nope.
. . . .
Q. Do you understand what is contained within your service plan, as far as what you need to do?
A. Yeah.

         G. In the May 11, 2017 Hearing, Father Questioned the Requirement that He Have No Unsupervised Contact with a Minor Younger than Sixteen Years Old.

         After Mother testified, TDFPS's counsel recalled Father to the stand:

Q. [FATHER], how old is your son [B.]?
. . . .
A. . . . . He just turned nine.
. . . .
Q. Who is he ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.