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In re J.P-L.

Court of Appeals of Texas, Second District, Fort Worth

December 19, 2019

In the Interest of J.P-L., a Child

          On Appeal from the 367th District Court Denton County, Texas Trial Court No. 18-8366-367

          Before Sudderth, C.J.; Birdwell and Bassel, JJ.


          Bonnie Sudderth Chief Justice.

         I. Introduction

         "Termination of parental rights is traumatic, permanent, and irrevocable." In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). In such a case, the State seeks not just to limit parental rights but to erase them permanently-to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, the State "must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92 (1982)). For the same reason, we carefully scrutinize termination proceedings and strictly construe involuntary-termination statutes in the parent's favor. In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20-21. Due process demands the heightened standard of clear and convincing evidence because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S.Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E. N.C. , 384 S.W.3d at 802.

         Appellant Mother concedes that the evidence in this case is sufficient to support the termination of her parental rights to J.P.-L. but contends that she was deprived of due process when, as acknowledged by the Department of Family and Protective Services (State), "the interests of the child appeared to be in direct conflict with the interests of the parent." Under our current statutory scheme, as between a parent and a child, only one may prevail: the child. See Tex. Fam. Code Ann. § 153.002 ("The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." (emphasis added)). Further, although Mother complains of ineffective assistance of counsel, the record before us does not support reversal under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

         Thus, despite the serious concerns raised by Mother in her two issues-that her procedural due process rights were violated when her parental rights were terminated despite her mental incapacity and that she received ineffective assistance of counsel when her court-appointed representatives waived any challenge to her capacity by failing to seek a guardianship or mental health commitment for her-we affirm the trial court's judgment.

         II. Background

         A. Procedural Posture

         The State filed this suit on September 12, 2018, [1] the same day that the trial court issued an order appointing the State as the child's temporary managing conservator, which made the case's dismissal date September 16, 2019. See Tex. Fam. Code Ann. § 263.401(a) (stating that the court's jurisdiction terminates on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the State as temporary managing conservator unless trial on the merits has commenced or an extension has been granted). When the State took possession of then-five-year-old J.P.-L., Mother was in University Behavioral Health (UBH), a mental health facility. The trial court reset the initial adversary hearing twice to allow Mother "an opportunity to consult with her [appointed] attorney."

         During the adversary hearing, which was held two weeks after J.P.-L.'s removal, when Mother was asked if she had reviewed the trial court's temporary orders, Mother said, "Yes, and I do not agree with them," but she also said that she would do whatever it took to get her son back. At the hearing's conclusion, the trial court appointed a guardian ad litem for Mother, stating in the order, "This Court finds Respondent Mother may not have capacity or may not be competent."

         In its temporary orders, the trial court ordered Mother to schedule appointments to complete a psychological evaluation, a psychosocial evaluation, and counseling and to submit to an intake with MHMR or continue with mental health treatment with UBH or another provider "within 10 days of this order." The trial court also ordered her to comply with the usual service plan requirements: completing parenting classes and a drug and alcohol assessment, refraining from all criminal activity and use of alcohol or illegal substances, establishing and maintaining safe, stable, and appropriate housing, attending supervised visits with J.P.-L., and paying child and medical support, in addition to complying with any other requirements in her service plan during the pendency of the suit.

         A month after the adversary hearing, the State filed a motion for temporary restraining order, asking the trial court to suspend the parent-child visits because during her supervised visits, Mother had displayed aggressive behavior similar to that which she had displayed at the adversary hearing and had "become increasingly volatile[, ] leading observers to become concerned about the safety of the child . . . as well as other persons nearby." Mother's caseworker told Mother that in order to resume visits, she needed to undergo the MHMR intake and to take her medication regularly. The trial court granted the State's motion on October 25, 2018, and ordered Mother to appear at the November 7, 2018 status hearing to determine whether the TRO should become a temporary injunction pending the final hearing.

         Mother did not appear at the status hearing, but her attorney said that she had been given notice of the hearing. Her guardian ad litem testified that she went over Mother's service plan with Mother at the CPS office during the same visit that Mother had to be escorted out by the police. According to Mother's guardian ad litem, Mother had indicated that she understood what was asked of her and that she was supposed to call to make appointments with the providers in her service plan, but "she also exhibited a misperception of what CPS was requiring." Mother's guardian ad litem had not had any contact with Mother since that occasion.

         In January 2019, Mother's attorney filed a motion to discharge Mother's guardian ad litem because Family Code Chapter 107 did not provide legal authority for the appointment of a guardian ad litem for an adult who had not been declared incapacitated by the proper court for guardianship proceedings, i.e., the probate court. In the motion, she pointed out that Family Code Section 107.010 only provided the court with discretion to appoint an attorney ad litem if it found the person incapacitated, and "if appropriate," the attorney ad litem could then refer the proceeding to the probate court. Mother's attorney did not secure a ruling on her motion or refer the proceeding to the probate court.

         Mother did not appear at the June 12, 2019 permanency hearing. The trial court noted that the first question from J.P.-L., was, "Do you know where my mom is?" Mother's guardian ad litem said that she had not had any contact with Mother for approximately six months and that the last time she had had any contact, Mother had been homeless and living near the 288 bridge. Mother's counsel said that she was not sure whether Mother had notice of the hearing, although she had provided correspondence to the address Mother had given her (Mother's father's home). Mother's counsel said, "[S]omeone is receiving that information, but it -- none of the correspondence has been signed by my client."

         At the June 24, 2019 bench trial, Mother's counsel announced "not ready," citing "lack of communication from [Mother] and lack of knowledge of her whereabouts," and Mother's guardian ad litem agreed, stating, "We are aware that [Mother] has made recent contact with her father. However, at this time she is not here, so I would support [Mother's counsel's] announcement of not ready." Mother's counsel said that she had sent several letters to Mother's last-known residence and that the certified mail was signed for, but not by Mother. She and Mother's guardian ad litem both said that they did not have a working phone number for Mother but had tried to reach her through her father and her friends who had been at previous hearings. The State and the child's attorney ad litem did not agree to a continuance. The trial court denied the motion for continuance, and at the conclusion of the trial, it terminated Mother's parental rights to J.P.-L.[2]

         B. Factual Background

         Mother had a history of mental illness in addition to homelessness, drug use, and domestic violence, and her MHMR records were admitted into evidence at the trial, as was a September 12, 2018 certified copy of a police report.

         Mother's drug of choice at age 19 was marijuana but ten years later, methamphetamine had replaced it, although she still used marijuana daily for pain, using a "couple of hits or Vape during the day."[3] Mother started using methamphetamine around the same time that her mother died, when J.P.-L. was approximately three years old. Mother said that she and J.P.-L.'s father, who used "crystal meth," were no longer together because of domestic violence between them that had resulted in a 2016 assault charge against her "because . . . he was a little more beat up than [she] was." Mother said that the charge had been dismissed after she took anger management classes and paid a fine. She told MHMR that she had last tried to quit methamphetamine in 2016 because of the assault charge: "I didn't want my baby's father to get CPS involved."

         1. Events before the Adversary Hearing

         The following events occurred between September 2, 2018, after Mother's father called 911 about her behavior, and the September 28, 2018 adversary hearing.

         • Sunday, September 2, 2018.

         Police took Mother to the Medical City Denton emergency room "due to family reporting aggressive behavior," including that she tried to break a car window and had been smashing plates, and she tested positive for marijuana and methamphetamine. When asked, Mother denied having increased her amount of substance abuse and told Robert Mood, the intake clinician, "I've slowed the f**k down," although she admitted to using a little marijuana daily. Mother both claimed and also denied that she heard voices, and Mood noted, "Due to client's flight of ideas it is difficult to tell if client is actually experiencing hallucinations." When Mood asked Mother about whether she had a history of substance abuse treatment, Mother responded, "I use magic[, ] now leave me alone."

         Based on her intake, Mood diagnosed Mother with "unspecified psychosis not due to a substance or known physiological condition," unspecified anxiety disorder, and "[o]ther stimulant abuse, uncomplicated." During her stay in the Medical City ER, Mother had to be restrained by hospital staff. She was transported to Mayhill Hospital from Medical City Denton by mental health deputy transport and was given Ativan to calm her.[4]

         • Monday, September 3, 2018.

         Dr. Asad Islam at Mayhill issued a verified certificate of medical examination for mental illness for Mother in which he listed as a brief diagnosis, "Major Depressive Disorder, recurrent, severe, with psychosis" and the mental health treatments of "medication stabilization, psychiatric evaluation, and medication management." Dr. Islam checked all six of the criteria for inpatient commitment, [5] listing as the basis for his opinion,

[Mother] presented as suffering from tactile and auditory hallucinations. She was not oriented to place, time, nor situation at time of admission. [Mother] reported having suicidal ideation as recently as 2 weeks ago. She demonstrated assaultive behavior before being brought to Mayhill by damaging her father's windshield, assaulting Medical City Denton staff, and throwing things while at Medical City Denton Emergency Room.
In his physician's affidavit, Dr. Islam included the following additional facts:
[Mother] presented with severe psychosis upon admission and initial evaluation. [She] reported auditory and tactile hallucinations. She stated that she can "taste love" and that she hears voices others cannot but is unable to understand what the voices are saying. [Mother] is unaware of her altered mental state and is not oriented to time, place, or situation. She presented to be in a deteriorated state as evidenced by her poor hygiene, lack of adequate clothing, and inability to maintain her daily living patterns, and the lack of sleep. [Mother] reported suicidal ideations as recently as 2 weeks ago but denied having a plan to carry out the suicide. Police were initially called to patient's father's home due to [Mother] damaging her father's car windshield. Due to her altered mental state, [Mother] became combative and assaulted hospital staff once she was at Medical City Denton. She was also observed throwing objects at staff.

         Dr. Islam recommended inpatient hospitalization and medication management.

         • Tuesday, September 4, 2018.

         A Mayhill mental health professional filed an application for court-ordered mental health services in the Denton County probate court on Mother's behalf. See Tex. Health & Safety Code Ann. § 574.002 (reciting the required contents of an application for court-ordered mental health services). In the supporting affidavit, the applicant stated that Mother was disoriented and unable to make rational decisions for her own care, had been combative, had assaulted Medical City emergency room staff, had demonstrated a lack of cognitive awareness by expressing paranoid delusions, and had reported suicidal ideations within the last two weeks, along with auditory and tactile hallucinations. Some of her delusional statements to deputies included: "[T]he Devil killed Jake," "Joel hears voices from the snake, "[6] and she was "daddy's little monster."

         The Denton County Sheriff's Office filed a notification of emergency detention in which a peace officer stated that he had reason to believe that Mother had evidenced a substantial risk of serious harm to herself or others based on her exhibited signs of mental illness, her delusions, her visual or auditory hallucinations, and her confused thinking, and that "[i]n the present mental state the patient cannot make a rational or informed decision regarding her health and safety." Some of the observations listed in the crisis intervention team report were that Mother had incoherent or illogical speech, that she was restless, hyperactive, or agitated, and that she appeared to have delusions.

         According to Mother's MHMR records, after she met with MHMR staff at court, her mental health case was dismissed. It is unclear when Mother was discharged from Mayhill, but Mother subsequently complained that although she went to Mayhill for help, "[i]nstead they told [her that she] was a meth addict and didn't need medication."

         • Wednesday, September 5, 2018.

         Mother had a follow-up appointment at home with MHMR clinician Lauren Titsworth. At that meeting, Mother both indicated an interest in obtaining MHMR services and denied being interested in them. At one point, she told Titsworth that she was going to sleep and left the room. When Titsworth asked Mother's father if Mother had used drugs since leaving court, he said, "I don't know what she[']s been doing." He then tried to get Mother to come back and talk with Titsworth, and she briefly agreed. Titsworth noted that she had reason to believe that Mother had used methamphetamine since leaving court and might have been under the influence of it during their conversation. An appointment was set for Mother to receive services on Friday, September 7, but the record does not reflect whether she complied.

         • Saturday, September 8, 2018.

         The State received a referral about J.P.-L., and Casie Darter, a Department of Family and Protective Services (DFPS) investigator, began her work.

         • Monday, September 10, 2018.

         Mother used methamphetamine.

         • Tuesday, September 11, 2018.

         Mother called the police "because [she] didn't feel right." She met with MHMR clinician Quinton Neighbors, who noted on a form that Mother had "poor personal hygiene/selfcare" and was "unkempt/disheveled." He also noted Mother's theory that her illness was being used for profit and her ruminations on body-and-soul snatching, stating,

[Client] stated she believes people are making money off her and she came to psych triage to get help with this situation. [Client] stated she feels isolated and alone because people are not giving her the answers to all of her questions. [Client] stated she feels trapped with her father who she feels is poss[ess]ed by someone else's consciousness. [Client] has been aggressive while on meth last week at the ER. [Client] has not been on drugs as reported by her herself and her collateral. [Client] stated she has anger outburst[s] on occasion by br[e]aking objects to release her anger. [Client] stated she does this to cope and not to [en]danger others. [Client] appears to be calm and has shown no aggression with police or this staff.
. . . .
[Client] stated she has been doing some math and using geometry to find out what [is] the number of the human soul. [Client] stated she found some rec[eipts] and went dump[st]er diving to find spiritual books to figure out the number of her soul. [Client] stated she went to her cousin[']s home who she was told beat up her boyfriend in the past. [Client] stated she had déjà vu while there and felt like she was living her past life with another boyfriend. [Client] stated she was upset with her boyfriend who was really someone else who stole his body. [Client] stated she started arguing with him because she felt he was another soul in his body. [Client's] father and boyfriend stated after this she locked herself in her room and stated she was going to kill everyone in the home. [Client] has a 5 year old son. [Client] stated her son is [J.P.-L.] [Client] stated she kept telling her father to read the bible to understand why she can notice when someone is [in] another['s] bod[y]. [Client] stated she was upset because she was missing time and her room was rearranged differently than it was before. [Client] stated she feels like her father and brother know more about what is really happening. [Client] stated she sometimes disassociates and feels like life is like a movie. [Client] stated she saw two black vans that were following her and her boyfriend a few days ago late at night. [Client] stated she feels these people are trying to protect her from the people who can jump into bodies. [Client] stated she hears voices and people in her attic. [Client] stated she looks around and no one is there.

         Mother admitted in her MHMR screening to having used methamphetamine eight times in the prior 30 days and reported having engaged in week-long methamphetamine binges.

         Clinician Neighbors reported that Mother said she had had suicidal ideation a month before and that she attempted to hang herself but denied homicidal ideation despite her family's reporting that she had threatened it that day. He reported that Mother "later stated she said this to her family to get her point across to her father about him possibly being controlled by another person's consciousness," but she denied intent and did not mention a method. Neighbors wrote that Mother was not able to crisis plan due to delusional thinking and flight of ideas, and a CPS case was filed "due to minor being in the custody of client who had [homicidal ideation] towards family and delusional thinking." He noted, "[Client] is voluntary and staff will transport client. 24hr phone follow up on 9/12/2018 by 5pm to UBH."

         Mother was taken to UBH. The urine sample that she gave that day tested positive for THC, [7] amphetamine, [8] methamphetamine, and benzodiazepine. At the adversary hearing, Mother said that she went to UBH on September 11 because she "wanted answers about why time was different for [her]," explaining that everyone else was "either in slow-mo or fast-mo, and [she was] in turtle speed."

         • Wednesday, September 12, 2018.

         J.P.-L. was removed from Mother's home and placed into foster care pursuant to the trial court's order, and Mother underwent a psychiatric evaluation at UBH with Dr. Garry Watts. During the psychiatric evaluation, Dr. Watts noted that Mother reportedly had had paranoid ideation that people were trying to harm her and break into her home and that while she denied homicidal ideation, she had reportedly threatened family members. She told Dr. Watts that family members were not who they seemed to be and that there were "others" posing as family members and "mimicking everything [she did]."

         Dr. Watts noted that Mother denied being stressed by her mother's death[9] and denied depression but "endorse[d] hyper-spirituality, grandiosity, and a history of racing thoughts, suggestive of bipolar disorder." With regard to her delusional and grandiose thoughts, Dr. Watts noted that Mother believed she had "spiritual gifts" and that there was something in her blood "that will cure cancer." Mother also denied overt psychotic symptoms but believed that there were evil spirits in her house who were trying to harm her by giving her poisonous drinks with the motive to "get [her] money and get [her] guns." When asked how spirits could acquire physical objects, she did not respond.

         Dr. Watts diagnosed her with "bipolar disorder with psychosis versus schizoaffective disorder, bipolar type." And he noted, "There is a reasonable expectation that the patient will make timely and significant practical improvement in the following presenting acute symptoms as a result of psychiatric inpatient hospitalization: Improvement of grandiosity and other manic symptoms, resolution of homicidal ideation, if in fact present, resolution of delusional thinking, increased ability to care for self." The initial discharge plan was for Mother to follow-up with Denton County MHMR and a 12-step program. Dr. Watts noted in his evaluation, "[W]e need to notify CPS" about Mother's admission to UBH.

         The Denton County Sheriffs Office began investigating Mother for child endangerment based on CPS referrals from J.P.-L.'s elementary school and UBH.[10]Concerned about J.P.-L.'s absences from school, personnel from J.P.-L.'s elementary school had visited the home three times; twice, they found J.P.-L. outside by a pond, unsupervised, and Mother under the influence of some form of drug. School staff had reported that J.P.-L. told them his mother was sick and in the hospital "[b]ecause she was throwing plat[e]s and breaking windows again." UBH's CPS referral listed Mother's delusional thinking that caused her to have homicidal ideations towards her family and her methamphetamine-positive drug test and referenced her "rage of anger" the previous week in the ER, which had required her to be restrained by hospital staff.

         • Monday, September 17, 2018.

         Mother was discharged from UBH. UBH doctors prescribed for her a six-day supply of Depakote, a mood stabilizer, and Risperdal, an antipsychotic medication.[11] Mother also met with John Lloyd, an MHMR clinician, that day. She reported to Lloyd that she was "having difficulty with CPS after she went to UBH voluntarily." Another psychiatric evaluation was scheduled for her on September 21.

         • Wednesday, September 19, 2018.

         Mother used marijuana.

         • Thursday, September 20, 2018.

         Mother was living in a tent with her boyfriend.

         • Friday, September 21, 2018.

         Mother was evaluated by MHMR clinician Kumud Joshi, to whom she admitted several months of increased use of crystal methamphetamine "because [she] could no longer get prescriptions" prior to both of her September hospitalizations.[12]She explained, "I felt like I was a prophet, and my dad, who was not my dad at the time but he is back now, was trying to keep me trapped so I busted out the window in my dad's car." She also said that she felt like someone had been watching her since October 2017. And she said that she felt like her boyfriend could manipulate time and that she had "regenerated [her]self because of the meth and maybe other people jump from people to people because of it" Mother claimed that the methamphetamine helped her activate other parts of her mind. Joshi diagnosed Mother with "unspecified schizophrenia spectrum and other psychotic disorder," "Amphetamine-type substance use disorder, Severe," and "Cannabis use disorder, Mild."

         • Wednesday, ...

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