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In re M.J.V.

Court of Appeals of Texas, Fourth District, San Antonio

August 28, 2019

IN THE INTEREST OF M.J.V., a Child

          From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2018PA00861 Honorable Charles E. Montemayor, Judge Presiding

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          SANDEE BRYAN MARION, CHIEF JUSTICE

         D.C. 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.

         Background

         On 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.

         At the 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.

         When 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 ...

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