Court of Appeals of Texas, Fourth District, San Antonio
the 407th Judicial District Court, Bexar County, Texas Trial
Court No. 2018PA00861 Honorable Charles E. Montemayor, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Beth Watkins, Justice
BRYAN MARION, CHIEF JUSTICE
appeals the trial court's order terminating her parental
rights to M.J.V. The sole issue raised on appeal is whether
trial counsel rendered ineffective assistance of counsel. We
affirm the trial court's order.
April 24, 2018, the Texas Department of Family and Protective
Services filed a petition to terminate D.C.'s parental
rights to M.J.V. On April 23, 2019, a bench trial was held.
At the time of the trial, M.J.V. was almost four years old.
commencement of trial, D.C.'s trial attorney announced
ready to proceed. The Department's caseworker, who was
the only witness called to testify at trial, testified M.J.V.
was removed from D.C.'s care because of her drug use. On
June 11, 2018, D.C. signed a copy of her service plan. The
caseworker testified D.C. was not in compliance with the
service plan because she: (1) had not completed a drug
assessment, therapy, an evaluation, domestic violence
classes, or parenting classes; (2) continued to test positive
for methamphetamines; (3) refused to allow the caseworker
into the home where she was living; and (4) failed to provide
documentation showing she had stable employment. D.C.
admitted to using drugs throughout the pendency of the case
and tested positive for methamphetamines the Thursday before
trial when she gave birth to twins. The caseworker explained
D.C. was tested in October of 2018 and February of 2019 while
D.C. was pregnant. The caseworker also explained she had
attempted to visit the home where D.C. was living two times
in March of 2019 and two times in April of 2019, but no one
answered the door. As a result, the caseworker could not
determine whether D.C. could provide M.J.V. with a safe and
stable home environment. Furthermore, D.C. was living with
her brother who also had a case pending with the Department
in which his children were removed due to drug use. The
caseworker further explained D.C. was referred more than once
for individual therapy and was discharged from therapy due to
"no-shows." The caseworker further testified D.C.
appeared to be under the influence of drugs when she attended
her visitations with M.J.V. because she exhibited slurred
speech and appeared sleepy and inattentive.
D.C.'s attorney cross-examined the caseworker, she asked
the caseworker when the Department's goal changed to
terminating D.C.'s parental rights, and the caseworker
responded the goal changed in March of 2019. After the
caseworker's response, the following exchange occurred
between the trial court and D.C.'s attorney:
[D.C.'s attorney]: Your Honor, at this time, I'm
going to change my ready answer to not ready, because I spoke
with [the Department's supervisor] last week and she told
me that this was not a termination case.
THE COURT: Well -
[D.C.'s attorney]: And I had asked that, because my
client was unable to get in touch with the worker, I was
going to ask that the case be reset to another time. And she
said we didn't need to do that because this was going to
be a non-termination case.
THE COURT: I don't know anything about that. I do know
this, that I had a hearing on 1/29/19. And my notes and the
record indicate that the permanency goal is articulated as
termination. That was on 1/29/19.
[D.C.'s attorney]: I understand that, but this is news to
me. I didn't prepare for this case today, because I was
told this was a non-termination ...