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In re I.L.

Court of Appeals of Texas, Fourth District, San Antonio

April 10, 2019

IN THE INTEREST OF I.L., C.C., and R.C., Children

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-01935 Honorable Linda A. Rodriguez, Judge Presiding [1]

          Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice

          OPINION

          LUZ ELENA D. CHAPA, JUSTICE

         Ana[2] appeals a final order in a suit affecting the parent-child relationship filed by the Department of Family and Protective Services. In her sole issue, she argues her counsel rendered ineffective assistance. As this issue relates to counsel's omissions during the motion for new trial stage, we reverse the part of the order decreeing Ana is not appointed possessory conservator, and we remand for the trial court to enter a new final order regarding possessory conservatorship. We overrule Ana's issue to the extent she complains counsel was per se ineffective by participating at trial by phone. We therefore affirm the remainder of the final order.

         Background

         The Department filed suit requesting termination of Ana's parental rights to her children, I.L. (age 14), C.C. (age 11), and R.C. (age 10) and also requested the trial court appoint a managing conservator for the children. The trial court appointed counsel to represent Ana. Although a statement of inability to afford court costs and a waiver of service were filed, Ana's counsel did not file an answer or any motion on her behalf before trial.

         The case proceeded to a bench trial. Ana appeared in person, and her trial counsel participated by phone. The record does not show why counsel was not physically present. At trial, the Department did not seek to terminate Ana's parental rights, but to have Ana appointed possessory conservator with no access to the children, stipulating this was in the children's best interest. I.L.'s older sister, Maria, agreed to be I.L.'s managing conservator and that Ana should be appointed possessory conservator with no access to the children. Ana testified she wanted more time to complete drug treatment.

         During closing arguments, the children's attorney ad litem agreed Ana should be appointed possessory conservator with no access because it is in the children's best interest. The attorney ad litem for Jose, the father of R.C. and C.C., agreed Ana should be appointed possessory conservator. The Department's attorney stated the Department was asking that Ana be appointed possessory conservator with no access to the children. Ana's counsel requested more time, but requested alternatively that she be appointed possessory conservator. The trial court orally pronounced Ana was appointed possessory conservator with no access to the children.

         The following day, the trial court signed a final written order decreeing Ana is "not" appointed possessory conservator.[3] The final written order was approved as to form by the Department's and Jose's attorneys. The signature lines for the other attorneys to approve as to form are blank. The day after the trial court signed the final written order, Ana's trial counsel filed a notice of appeal and a motion to withdraw and substitute counsel. The motion was granted a few days later, and the trial court appointed appellate counsel to represent Ana on October 23, 2018. Ana's counsel did not file any post-judgment motion complaining about the final written order.

         "Section 153.073 Parental Rights" Unrelated to Access to the Children

         At the outset, we clarify the difference between a parent who is appointed possessory conservator with no access to a child and a parent non-conservator. Ordinarily, parents have all constitutional and statutory rights regarding their children. See Tex. Fam. Code § 151.001. For proceedings in which parents may be deprived of their rights, Chapter 153 of the Family Code further parses parental rights into categories of conservatorship: managing conservatorship, possessory conservatorship, and non-conservatorship. Id. §§ 153.001-.709.

         A parent who is appointed a conservator has, at all times, various parental rights ancillary to the care, custody, and control of a child, such as the right to receive information and confer with another parent about the child's health, education, and welfare. Id. § 153.073(a)(1)-(9).[4] In addition to these rights, a parent possessory conservator has the right of physical possession and access of a child as per court order. Id. § 153.192(a). And, in addition to the rights of parent possessory conservators, a parent managing conservator has the most significant decision-making rights affecting the care, custody, and control of a child. See id. § 153.132(1)-(9). Conversely, a parent who is not appointed a conservator has none of these rights.

         The difference between possessory conservatorship with no access to a child and non-conservatorship are the parental rights in section 153.073 to receive information and confer with another parent about the child's health, education, and welfare. For clarity, we refer to the parental rights listed in section 153.073 as "section 153.073 parental rights." When the trial court orally pronounced its order in open court appointing Ana possessory conservator with no access, Ana had secured her section 153.073 parental rights unrelated to access. See id. § 153.073(a)(1)-(9). But when the trial court signed the final written order, Ana was not appointed a conservator and lost those parental rights. Thus, the difference between the order rendered in open court and the final written order is the loss of Ana's section 153.073 parental rights unrelated to access.

         Ineffective Assistance of Counsel

         Ana's sole issue is that she received ineffective assistance of counsel. To sustain Ana's ineffective assistance of counsel claim, we must conclude: (1) she had a right to effective assistance of counsel; (2) counsel performed deficiently; and (3) counsel's deficient performance was prejudicial. See In re J.O.A., 283 S.W.3d 336, 341-44 (Tex. 2009).

         A. Right to Effective Assistance of Counsel

         Section 107.013 of the Texas Family Code provides "a statutory right to counsel for indigent persons" in certain proceedings. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (citing Tex. Fam. Code § 107.013(a)(1)). The Supreme Court of Texas has held this statutory right to counsel "embodies the right to effective counsel." Id. Consistent with courts of other states, the supreme court held section 107.013's appointment provision embodied a right to effective assistance of counsel in termination proceedings because, otherwise, the appointment provision would "seem a useless gesture." Id. The supreme court's holding in M.S. is crystal clear: if the appointment of counsel is statutorily required under section 107.013, a parent has the right to effective assistance of counsel. See id.; see also In re P.M., 520 S.W.3d 24, 25 (Tex. 2016) (per curiam). Thus, whether Ana had the right to effective assistance of counsel turns on whether section 107.013 required appointment of counsel. See M.S., 115 S.W.3d at 544.[5]

         To determine whether section 107.013 required appointment of counsel, and whether the alleged ineffectiveness occurred while Ana had the right to effective assistance of counsel, we must construe section 107.013. In construing a statutory provision, our primary goal is to ascertain the Legislature's intent based on the text's plain meaning. Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018). The text of section 107.013(a)(1) provides in relevant part:

In a suit filed by a governmental entity under Subtitle E in which termination of the parent-child relationship or the appointment of a conservator for a child is requested, the court shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination or appointment.

Tex. Fam. Code § 107.013(a)(1) (formatting omitted).

         This suit was filed by the Department, and "[t]he Department . . . [i]s a governmental entity." Tex. Dep't of Family & Protective Servs. v. Whitman, 530 S.W.3d 703, 709 (Tex. App.- Eastland 2016, no pet.); accord In re K.O., 488 S.W.3d 829, 834 (Tex. App.-Texarkana 2016, pet. denied) (holding 107.013(a)(1) applies to suits "brought by the Department"). In its original petition, the Department alleged suit was filed under section 262.001 of the Family Code, which is "under Subtitle E." See Tex. Fam. Code § 262.001 (codified under Title 5, subtitle E, permitting a "governmental entity" to file a SAPCR). The Department requested termination of Ana's parental rights and requested the appointment of a permanent managing conservator for the children. Ana filed a statement of inability to afford payment of court costs, and the trial court found she was indigent and entitled to counsel.

         Ana's appointed trial counsel did not file an answer or any responsive pleading on Ana's behalf, but there are "no magic words that are required to be 'in opposition' to a request for termination." In re J.M., 361 S.W.3d 734, 738 (Tex. App.-Amarillo 2012, no pet.). A response in opposition may occur through a court filing or statements made at trial. See id.; In re C.D.S., 172 S.W.3d 179, 184 (Tex. App.-Fort Worth 2005, no pet.); In re J.C., 108 S.W.3d 914, 916 (Tex. App.-Texarkana 2003, no pet.); In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.-Corpus Christi 1998, no pet.). Ana filed a waiver of service, stating she did not intend to waive any of her parental or conservatorship rights. Another court filing stated Ana reported "she wants her kids back." And, during her testimony, Ana requested that the court not terminate her parental rights; she opposed the Department's request that her rights be terminated; and by asking for more time, she opposed any final order being rendered on the Department's requests for termination and the appointment of a conservator. We hold Ana "responded in opposition to the termination or appointment of a conservator." See Tex. Fam. Code § 107.013(a)(1).

         The record establishes section 107.013(a)(1) required the appointment of counsel. For this mandatory appointment not to "seem a useless gesture," Ana had the right to effective assistance of counsel in the trial court proceedings. See M.S., 115 S.W.3d at 544; see also P.M., 520 S.W.3d at 25-26. Section 107.013(a)(1) afforded Ana this right to effective assistance of counsel until either the Department dismissed the suit, all appeals were "exhausted or waived," or counsel was substituted or permitted to withdraw. See Tex. Fam. Code §§ 107.013(a)(1), .016(3); accord P.M., 520 S.W.3d at 26. We hold Ana had the right to effective assistance of counsel under section 107.013(a)(1) during the proceedings in the trial court.

         Although we conclude Ana had the right to effective assistance of counsel, we address a preliminary question raised by the dissent regarding prejudice. Having reviewed cases from our sister courts, we conclude the dissent's analysis raises not only a question of prejudice, but also a question as to whether Ana retroactively lost her right to effective assistance when the trial court's final written order did not terminate her rights and resolved only issues of conservatorship. "Several of our sister courts have confronted a similar situation and have concluded that a claim of ineffective assistance cannot be raised when the parent's rights are not terminated and instead the case resolves only issues of conservatorship." S.N. v. Tex. Dep't of Family & Protective Servs., No. 03-18-00539-CV, 2019 WL 471069, at *3 (Tex. App.-Austin Feb. 7, 2019, no pet. h.) (mem. op.) (citing authorities). This court has yet to decide this issue.

         Because this issue implicates parents' substantive rights and their procedural right to counsel, we will critically examine our sister courts' cases for their persuasive value. The first case to address this issue appears to be In re W.H.M., No. 01-00-01396-CV, 2003 WL 22254713 (Tex. App.-Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.). The W.H.M. court's full discussion of this issue was:

Although it initially sought to terminate [the father's] parental rights, the Department did not seek, and the jury did not find at trial, that [the father's] parental rights should be terminated. The case tried to the jury with regard to [the father] was one of conservatorship, not termination; thus, the right of effective assistance of counsel does not extend to [the father].

Id. at *12. Noting M.S. had been recently decided, the W.H.M. court relied on two pre-M.S. Cases: Stokes v. Puckett, 972 S.W.2d 921 (Tex. App.--Beaumont 1998, pet. denied), and Liva v. Liva, No. 04-96-00143-CV, 1997 WL 602884 (Tex. App.--San Antonio Oct. 1, 1997, no pet.) (not designated for publication). Stokes involved tort claims arising out of an employment relationship. 972 S.W.2d at 927. Liva involved a child custody dispute in a divorce proceeding between two parents. 1997 WL 602884, at *1.

         Before discussing other cases, we note we are not persuaded by W.H.M.'s reasoning for two reasons unique to that case. First, Stokes and Liva are distinguishable because neither involved a suit in which the appointment of counsel was statutorily required. The employment-related facts and legal issues in Stokes bear little resemblance to a family law proceeding in which appointment of counsel is statutorily required under section 107.013(a)(1). See 972 S.W.2d at 927. Liva is likewise distinguishable because the case involved a divorce proceeding between private parties, not one filed by a governmental entity. 1997 WL 602884, at *1-2. Second, Stokes and Liva both rejected ineffective assistance of counsel claims because such a right existed only in criminal proceedings and did not apply in civil cases. See 972 S.W.2d at 927; 1997 WL 602884, at *1. But in M.S., the supreme court held the right to effective assistance of counsel applies in civil cases relating to termination of parental rights.

         The second case addressing this issue appears to be In re G.J.P., 314 S.W.3d 217 (Tex. App.-Texarkana 2010, pet. denied). Unlike W.H.M. and the cases it cites, G.J.P. is much more similar to the facts of Ana's case. See id. at 221-24. As in Ana's case, the Department in G.J.P. abandoned its termination request at trial, and the "trial court denied [the father] conservatorship standing or visitation rights." Id. at 219, 222. The court rejected the father's ineffective assistance of counsel claim, holding the right to effective assistance of counsel applies only when the trial court permanently severs the parent-child relationship. See id. 221-24. As we read G.J.P., the court made four points that are fairly summarized as follows:

(1)anything less than permanently severing the parent-child relationship does not implicate a parent's fundamental constitutional right to have children sufficiently to give rise to a right to counsel;
(2)"[i]neffective assistance of counsel is a constitutional claim only available in very limited situations," and the right to counsel provides a "constitutional right to set aside a decision of a court for ineffectiveness of counsel," id. at 223;
(3) there are other methods to remedy counsel's errors, such as a disciplinary proceeding, and a subsequent suit to modify conservatorship; and
(4) other statutes provide for the discretionary appointment of counsel without conferring the right to effective assistance.

         In what we consider a fifth point, another court has suggested a parent can retroactively lose the right to counsel if the final order does not terminate the parent-child relationship. S.N., 2019 WL 471069, at *3. And, in what we consider a sixth point, two of our sister courts have implicitly concluded G.J.P.'s reasoning remains valid after the 2013 amendments to section 107.013. See id. at *1, 3 (applying G.J.P. to suit filed in March 2017); In re A.B., 548 S.W.3d 81, 84 (Tex. App.- Beaumont 2018, no pet.) (same to suit filed in March 2016). Having considered this issue, we respectfully disagree with our sister courts. We address these six points in turn.

         1. A parent's fundamental rights to her children include more than the mere formality of a legally ...


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