Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 367th District Court Denton County, Texas
Trial Court No. 18-8366-367
Sudderth, C.J.; Birdwell and Bassel, JJ.
Sudderth Chief Justice.
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
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).
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
State filed this suit on September 12, 2018,  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]
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."
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.
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.
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.
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.
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
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
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.
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." 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."
Events before the Adversary Hearing
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.
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."
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.
Monday, September 3, 2018.
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,
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.
Islam recommended inpatient hospitalization and medication
Tuesday, September 4, 2018.
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, " and she was
"daddy's little monster."
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.
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.
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.
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.
Tuesday, September 11, 2018.
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.
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.
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."
was taken to UBH. The urine sample that she gave that day
tested positive for THC,  amphetamine,  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.
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]."
Watts noted that Mother denied being stressed by her
mother's death 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.
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.
Denton County Sheriffs Office began investigating Mother for
child endangerment based on CPS referrals from J.P.-L.'s
elementary school and UBH.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.
was discharged from UBH. UBH doctors prescribed for her a
six-day supply of Depakote, a mood stabilizer, and Risperdal,
an antipsychotic medication. 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.
Thursday, September 20, 2018.
was living in a tent with her boyfriend.
Friday, September 21, 2018.
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.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