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In re J.S.

Court of Appeals of Texas, Fifth District, Dallas

March 29, 2019

IN THE INTEREST OF J.S., JR. & S.S., CHILDREN

          On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-13-00877-W

          Before Justices Bridges, Brown, and Whitehill

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         Father appeals the termination of his parental rights. In seven issues, he challenges the validity of a rule 11 agreement, the sufficiency of the evidence to support termination and appointment of the Texas Department of Family and Protective Services as managing conservator (the Department), and the ineffective assistance of counsel. We reverse the trial court's judgment, in part, affirm in part, and remand to the trial court for further proceedings. Because the issues in this case are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Background

         Father and Mother are the parents of two children, JS, Jr. (a son) and SS (a daughter). The Department's original involvement with the family began in August 2013 when it filed its original petition for temporary managing conservatorship, permanent managing conservatorship, and for termination in a suit affecting the parent-child relationship. The trial court entered a SAPCR order on March 20, 2015 in which it appointed relatives joint managing conservators and Mother possessory conservator. The order allowed Father visitation as arranged and supervised by the joint managing conservators.

         In September 2016, CPS investigated potential domestic violence in the children's home.[1]On November 7, 2016, the Department filed a motion to modify prior order and petition for protection of the children, for conservatorship, and for termination in the suit affecting the parent-child relationship. The trial court granted the Department temporary managing conservatorship of the children. The court ordered Mother to complete parenting and individual counseling, a psychological evaluation, and random drug testing because a drug test indicated she used methamphetamine. Father was not ordered to complete any services because he was incarcerated.[2]

         Mother completed part of her services and was granted a monitored return in November 2017. The monitored return was unsuccessful.

         Subsequently, a rule 11 agreement was executed in which the Department agreed to conduct a home study of Luz Maria Raez, the Father's aunt. Based on the rule 11 agreement, if the Department or the ad litems denied placement with Raez, then the court would hold a placement hearing. The home study was denied, in part, because of Raez's criminal history and financial issues hindering her ability to care for the children.

         The court then held a placement hearing to determine whether the children should be placed with Raez. At the conclusion of the hearing, the trial court determined, "I can't find it would be safe to place these kids with the aunt considering these kids have gone back and forth between family members and foster care, considering that on both sides of the family there's drug involvement."

         In accordance with the rule 11 agreement, the Department requested termination of Mother's parental rights pursuant to family code section 161.001(b)(1)(O) and best interest of the child and termination of Father's rights pursuant to section 161.001(b)(1)(Q) and best interest of the child.

         The court adopted the rule 11 agreement and incorporated it into the final termination order. Mother and Father's parental rights were terminated, and the Department was appointed permanent managing conservator. Father now appeals.[3]

         Validity of Rule 11 Agreement

         In his first issue, Father argues the trial court abused its discretion by entering judgment on a rule 11 agreement when there was no evidence Father consented to or gave his attorney authority to enter into it. The State responds Father failed to preserve his issue for review, or alternatively, nothing in the record rebutted the presumption that Father's attorney had authority to sign the rule 11 agreement on his behalf.

         The rule 11 agreement provided, in relevant part, the following:

We, the undersigned parties, as evidenced by our signatures below, agree to compromise and settle the claims and controversies between us, including all claims of termination of parental rights, conservatorship, child support, and ...

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