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In re B.H.

Court of Appeals of Texas, Fifth District, Dallas

September 9, 2019


          On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-16-00779-X

          Before Justices Brown, Schenck, and Pedersen, III



         Father appeals the trial court's decree terminating his parental rights to his children B.H. and J.H. In two issues, Father contends the trial court abused its discretion in denying his motion to set aside a mediated settlement agreement (MSA) and his attorney rendered ineffective assistance of counsel in advising Father to enter into the MSA. We affirm the trial court's decree of termination.


         This case was referred to the Texas Department of Family and Protective Services (Department) as a result of Mother's and Father's drug use and neglect of the children. Attempts to unify the family failed, and the Department took possession of the children and filed a petition seeking termination of the parent-child relationships.

          The trial court entered an order requiring Father to participate in parenting classes, psychological evaluations, drug and alcohol assessment, random drug and alcohol analysis and hair strand tests, and to follow through with recommendations made by the service providers. According to a subsequent status order, the trial court found Father had reviewed and understood the service plan and had been "advised that unless he is willing and able to provide the [children] with a safe environment, even with the assistance of a service plan, within the reasonable period specified in the plan, his parental and custodial duties and rights may be subject to restriction or to termination or the child may not be returned to him."

         Thereafter, the parties, including Mother and Father together with their attorneys, signed a MSA under section 153.0071 of the Texas Family Code. See Tex. Fam. Code Ann. § 153.0071(c)-(f). In the MSA, Father agreed to termination of his parental rights "based on "O" grounds under section 161 of the [family code] and best interest." See id. § 161.001(b)(1)(O) (providing for termination based on failure to comply with provisions of court order specifically establishing actions necessary to obtain return of children). Father further agreed the MSA was entered in the best interest of the children. See id. § 161.001(b)(2). The MSA also provided the Department would conduct home studies of the children's grandfathers and, if the children were placed with one of the grandfathers, Father would be entitled to supervised visitation with the children on at least a quarterly basis.

         Placement of the children with the maternal grandfather was denied following a home study. Initially, a home study was not conducted on the paternal grandfather because he requested withdrawal of his application for placement. Following a subsequent home study, however, placement of the children was denied due to the paternal grandfather's criminal history.

         The trial court held a final prove-up hearing, and, although Father was represented by appointed counsel when he entered the MSA, he was not represented by counsel at the hearing. The trial court nevertheless entered a decree of termination, adopting the MSA as a binding order and terminating Father's parental rights. Father appealed, contending he did not receive effective assistance of counsel because his attorney did not appear at the final hearing. See In Interest of B.H., 05-18-00291-CV, 2018 WL 4443275 (Tex. App.-Dallas Sep. 18, 2018, no pet.). This Court agreed, reversing the trial court's decree as to the termination of Father's parental rights.[1]

         On remand, new counsel appointed to represent Father filed a motion to set aside the MSA. The Department filed a motion to enforce the MSA. At a hearing on the motions, Father testified he did not read the MSA before signing it, but his attorney explained it to him. Although the MSA was silent as to visitation in the event the children were not placed with either grandfather, Father understood he would have quarterly visitation with the children "under any scenario." Father believed his attorney did not provide proper counsel because Father "wasn't fully aware what would happen at the end if [his] kids got adopted" and there was nothing in the MSA "that provided for what would happen after termination." Following termination, Father was advised he has no post-termination rights to enforce visitation. As a result, Father believed his visitation was materially misrepresented in the MSA and requested the trial court to set aside the MSA as unenforceable.

         The parties also elicited testimony pertinent to the State's motion to enforce the MSA. Department case worker Casey Warren testified Father completed some of the "critical services necessary to obtain reunification" with the children, but did not comply with all of the services, including the "drug testing component." Specifically, Father tested positive on one drug test and failed to appear for numerous tests. He had "significant drug history," and his failure to complete drug testing as directed by the Department was a significant issue. Warren believed it would serve the best interest of the children if the trial court provided final relief so the children could be adopted.

         Father testified he agreed in his service package to remain drug free and he took a hair strand drug test that was positive for methamphetamine. He also acknowledged he did not comply in submitting to drug tests when asked by the Department. Because he lived outside Dallas, he was unable to leave work and get to a drug testing facility on time. When he appeared at two of the drug tests, a hair strand test and a nail test, he was told his hair and nails, respectively, were too short to test. Father submitted to at least six drug tests and believed he substantially completed his services. He was "clean" and had not continued to use drugs after the positive test. He also completed parenting classes, anger management, individual substance abuse counseling, a drug assessment, and a psychological evaluation. Although he substantially completed most of the services, he nevertheless took the advice of counsel and entered the MSA because he was told if he lost in the trial court, he would lose all rights, but he "was aware [he] would at least get visitation, so [he] took that."

         The trial court denied Father's motion to set aside the MSA. And, finding clear and convincing evidence that Father committed conduct defined in section 161.001(b)(1)(O) and termination was in the children's best interests, the trial court entered a decree of termination, adopting and incorporating the MSA ...

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