DFPS CASE LAW
UPDATE
By Brian Fischer
DFPS CASE LAW UPDATE
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BRIAN J. FISCHER
ATTORNEY AT LAW
BOARD CERTIFIED: JUVENILE LAW
TEXAS BOARD OF LEGAL SPECIALIZATION
6200 GULF FREEWAY
SUITE 202
HOUSTON, TEXAS 77023
(713) 520-7500
FAX# (713) 644-8080
e-mail: bjflaw@hotmail.com
DFPS CASE LAW UPDATE
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Overview.
The purpose of this paper is to discuss the DFPS case
law updates that have come down from the Courts of
Appeals and the Texas Supreme Court since last year’s
conference.
I have been providing case law updates every day to
everyone on my e-mail list since last year’s conference.
I have been advised against saying this, but if you would
like to be included in the e-mail list for Friday case law
updates (including Juvenile Law Cases and DFPS
Cases) please e-mail me and request that you be
included in the e-mail list. (God help me!)
SUPREME COURT RULE
REGARGING APPEALS
On August 11, 2011 the Texas Supreme Court adopted Misc. Docket
No. 11-9169 that totally screwed up the Appellate Procedure in DFPS
Cases. The Order mandated that if the Respondent (Parent) was
deemed indigent for trial the Respondent was automatically deemed
indigent for appeal (unless a contest to indigency is filed) and
furthermore, upon the filing of a Notice of Appeal, the Court
Reporter’s Record and Clerk’s Record must be filed within ten days
after the filing of the Notice of Appeal, with only one ten day extension
due to the Court Reporter. Additionally, the Notice of Appeal is due 20
days after the judgement is signed but the Motion for New Trial is due
30 days after the judgment is signed. Additionally, if a party files a
contect to indigence after the Notice of Appeal is filed and the contest
is upheld, the Court of Appeals will have already assigned an
appellate cause number and then a motion to dismiss must be filed.
SUPREME COURT RULE
REGARGING APPEALS
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Further, the Trial Court is Ordered to employ a
substitute Court Reporter if the Official Court
Reporter requires time to complete the Reporter’s
Record.
This has created havoc in the Courts in Harris
County and put an incredible burden on the Court
Reporters.
My opinion is that the Supreme Court needs to
revisit the accelerated appeals procedure to place
the burden on the appellate courts and revert to the
Rules of Appellate Procedure for the timetable for
the Court Reporters and the attorneys.
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas.
In this opinion that came down from the First Court of Appeals on
April 11, 2014 the Appellate Court reversed in part and rendered in part.
The appellate Court found that the only evidence presented by DFPS at
the termination trial were conclusory statements made by the caseworker
regarding the grounds for termination pursuant to TEX. FAM. CODE
ANN. §.161.001(1)(E), (F), (N), (O). Additionally, the State failed to
offer the Status Hearing Order at trial and it was missing from the
clerk’s file.
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
The appellant alleged that the evidence was legally and factually
insufficient as to each ground. The testimony as to (e) was as follows:
“As to subsection (E), Porter, the sole witness at trial, testified as follows:
[Counsel for DFPS]: . . . . [T]here’s a lot of—the house—her residence was found
to be filthy; is that correct?
[Porter]: Yes.
[Counsel for DFPS]: And there’s a lot of domestic violence in the house; is that
correct?
[Porter]: Correct.
[Counsel for DFPS]: Okay. Do you feel like this type of conduct constitutes
engaging in conduct which endangers the physical and emotional well-being of
the children?
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
[Porter]: Yes.
[Counsel for DFPS]: Are you asking that her rights be terminated under E
of 161.001?
[Porter]: Yes.
[Counsel for DFPS]: And you’re aware of the fact that she failed that drug
test; is that correct, tested positive for marijuana; is that correct?
[Porter]: Correct.
[Counsel for DFPS]: Again, that constitutes endangerment of the children;
is that correct?
[Porter]: Correct.”
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
The appellate court stated as to the only testimony offered: “(“Bare,
baseless opinions will not support a judgment even if
there is no objection to their admission in evidence,” and “such
conclusory testimony cannot support a judgment.”); Williams v.
Williams, 150 S.W.3d 436, 450 (Tex. App.—Austin 2004, pet. denied)
(concluding That caseworker’s unsupported testimony, which
constituted sole evidence at trial, did not support termination under
subsection (E)).” and found insufficient evidence as to that ground.
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
As to failure to support (n) the DFPS
concede that there was no
evidence on that ground.
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
As to constructive abandonment, (n) the appellate court found that
on cross-examination the caseworker testified as follows:
“[Counsel for Appellant]: And appellant had been in contact with you after March,
correct?
[Porter]: Correct.
[Counsel for Appellant]: She had been in contact with you all the way up to July
2013, correct?
[Porter]: Yes.
[Counsel for Appellant]: So isn’t it true that [appellant] didn’t constructively
abandon these children because [she] was participating in services, she had
visited the children, and she was in communication with you, correct?
[Porter]: Yes. “
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
The appellate court found : “Viewing the evidence in the light
most favorable to the trial court’s findings, we conclude that
the trial court could not have formed a firm belief or
conviction that appellant constructively abandoned the
children. See In re J.F.C., 96 S.W.3d at 266; In re D.T., 34
S.W.3d at 633. Accordingly, we hold that the evidence is
legally insufficient to support the trial court’s termination of
appellant’s parental rights under section 161.001(1)(N).”
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
The appellate court found that as to failure to comply with the
Family Service Plan there was no court order from the Status
Hearing ordering the appellant to comply with the Family
Service Plan and found” A termination finding under
subsection (O) cannot be upheld where there is no court
order that specifically establishes the actions necessary for
the parent to obtain return of the child. In re K.F., 402 S.W.3d
497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied)” and therefore found that there was insufficient
evidence as to (o).
In the Interest of: D.W., J.S.B., E.B., Children; Nos: 01-1300880-CV, 01-13-00883-CV and 01-13-00884-CV, First Court of
Appeals, Texas
The appellate court concluded: “We reverse the portion of the trial court’s
decree terminating appellant’s parental rights in each case and render
judgment denying DFPS’s petition for termination of appellant’s parental
rights in each case. We dismiss as moot appellant’s challenge to the trial
court’s temporary orders. Because appellant does not challenge it here,
the portion of the trial court’s final decree naming DFPS the sole
managing conservator of each child remains intact. See In re J.A.J., 243
S.W.3d 611, 613 (Tex. 2007) (concluding that reversal of termination
order does not affect unchallenged conservatorship determination).
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
In this case which came down from the 4th Court of Appeals
on
April 24, 2014 the appellate court reversed the trial court for
proceeding
with only 11 jurors over the abjection of one of the parties. In
this
divorce proceeding the court empaneled 12 jurors and 2
alternates and
then during trial dismissed two jurors leaving 12.
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
During the next recess, Juror Turney approached the bench and
explained that he had done business with Mr. Smoot for many years and
did not agree with Monica’s
counsel’s insinuation that George was responsible for Mr. Smoot’s
business troubles, and had personal knowledge that Mr. Smoot was still
in business. Juror Turney stated that he believed George. The trial court
asked Juror Turney whether he could still be a fair and impartial juror.
Juror Turney responded, somewhat indirectly, that he would like to
explain his knowledge to other jurors “unless you tell me I can’t bring up
things that were not brought up between the lawyers, but I would like to.”
The trial court instructed Juror Turney not to share any of the information
with the other jurors.
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
Monica’s counsel requested the court excuse Juror Turney.
George’s counsel objected, stating that the parties knew he
was in the electrical business based on his juror information
sheet, and that he could have been questioned on the
subject at voir dire, but he was not. The court stated, “Maybe
I’d be cautioned if we didn’t have an extra juror, but we have
an extra juror. There’s no reason to take the risk here of
impartiality or not or of extra information going into the jury
room.” The court then dismissed Juror Turney, replaced him
with an alternate juror, and proceeded with trial.
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
The trial court replaced Juror Turney with an
alternate and thereafter one morning during trial the
alternate juror called the court and stated that he
could not make it in and the judge decided to
proceed with 11 jurors. The attorney for appellant
moved for a mistrial and it was denied by the trial
court and appellant appealed.
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
The appellate court found “ But for the trial court’s dismissal
of Juror Turney, the jury would have consisted of twelve
members. By dismissing Juror Turney when he was not
“disabled from sitting,” the trial court deprived George of a
full, twelve-member jury and denied him the right to jury trial
guaranteed by the Texas Constitution. See McDaniel, 898
S.W.2d at 253. Therefore, the trial court abused its discretion
in dismissing Juror Turney and overruling George’s timely
motion for mistrial.”
In the Interest of M.G.N. and A.C.N., Minor Children, No.
No. 04-12-00108-CV, Fourth Court of Appeals, Texas
The Appellate court further found “We conclude that the trial
court abused its discretion in dismissing Juror Turney and
overruling George’s timely motion for mistrial. Because the
“[d]enial of the constitutional right to trial by jury constitutes
reversible error,” no showing of harm is necessary. See id.
Accordingly, we sustain George’s first point of error.” The
appellate court reversed the trial courts Order in Suit
Affecting the Parent-Child Relationship and remanded to the
trial court for a new trial.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
In this Opinion that came down from the 14th Court of Appeals on
July 1, 2014 the Court of Appeals reversed the trial court’s order striking
the foster parents intervention in a DFPS case. The foster parents
argued on appeal that the trial court (1) abused its discretion in striking
their petition to intervene because they had standing to intervene under
Texas Family Code sections 102.003(a)(10) and 102.004(b); (2) erred in
terminating the parental rights of A.T.’s father because there was legally
insufficient evidence to terminate his rights under the clear and
convincing evidence standard; and (3) abused its discretion in granting
the Department an extension of the legislatively prescribed dismissal date
in violation of Texas Family Code section 262.201.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
DFPS filed their Petition to terminate on July 5, 2012. After several
hearings on the DFPS case the foster parents filed their intervention on
November 1, 2012 and asserted that they had standing on (1) “they have
had substantial contact with the minor child since she was less than two
months old and a return of the child to the biological mother would result
in detriment to the emotional and/or physical development;” and (2) both
Mother and Father “have or will execute an Affidavit of Relinquishment
naming interveners as prospective adoptive parents and joint managing
conservators of the child.” The foster parents sought termination of
Mother’s and Father’s parental rights based on affidavits of
relinquishment, and sought to adopt A.T.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
The child had been placed with the foster parents
since the child was released from the hospital on
August 15, 2012 and remained there with her older
sister who was placed with the foster parents until
January 21, 2013 when the children were removed
from the foster parents placement due to the foster
mother leaving the children unattended.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
On June 27, 2013 the foster parents filed a motion to modify placement asking
the child to be placed with them. On July 12, 2013, the foster parents filed a
motion to dismiss the Department from the underlying case on grounds that (1)
Rule 245 requires 45-day-notice of a trial setting; (2) the case had been pending
for almost a year and no 45-day-notice had been given to the parties; (3) there
are no extraordinary circumstances in that all of the parties had been known for at
least 6 months; (4) the failure of the Department to get a trial setting and give 45
days notice are not grounds for granting an extension; (5) “intervenors” ask the
Department be dismissed from the case; and (6) Mother and Father have
executed affidavits of relinquishment in favor of “intervenors” and were going to
“execute necessary papers maintaining them as managing conservators” of the
child.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
The foster parents filed an amended petition
to intervene on July 15, 2013, in which they
sought permanent joint managing
conservatorship of A.T. in addition to
termination of the parental rights of A.T.’s
biological parents and adoption of A.T.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
On July 18, 2013, the foster parents filed their objection to the July 18,
2013 trial setting, stating that (1) their interests and the Department’s
interests were no longer aligned; (2) intervenors and the Department both
seek to become managing conservator of the child; (3) intervenors have
no confidence the Department will protect their interests, which was the
reason for the intervention; (4) Rule 245 mandates 45 days notice of trial
to all parties in a contested matter; (5) the matter was not set for trial until
June 27, 2013, giving the parties only 21 days notice of the July 18, 2013
trial setting; and (6) intervenors do not agree to waive the 45-day-notice
requirement.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
On July 18, 2013, all parties appeared and the court
asked the foster father how he had standing to
intervene and the foster father told the court that he
had been an intervenor since November 1, 2012;
had substantial contacts with A.T. at the time; and
had worked with the Department “hand in hand” at
the time. The trial was continued at the request of
the father.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
The Ad Litem filed a motion to strike the foster parents as intervenors and
their pleadings on October 16, 2013, arguing that the Wilsons (1) failed to
ask for leave from the trial court to intervene in this case pursuant to
Texas Family Code Section 102.004 despite having “plenty of time to
follow the procedure;” and (2) did not have substantial past contact
because A.T. had only been in the foster parent’s care for five months
from August 15, 2012 to January 22, 2013, and the foster parents did not
have contact with A.T. from January 22, 2013 to October 16, 2013. The
foster parents as intervenors filed their response to the motion to strike on
October 16, 2013.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
At the 3rd trial setting on October 24, 2013 all parties appeared. Prior to trial the
court inquired as to the foster parents standing to intervene. The following
testimony was taken: “Troy testified that he did not see A.T. in person after she
was removed from the Wilsons’ home, but his wife visited with A.T. at least once
a month; according to Troy, he saw A.T. through videotapes his wife brought back
from visits with A.T. Troy claimed to have had regular telephone contact with A.T.
but could not quantify the telephone contact. Troy testified that he purchased
clothes, foods, toys, and anything A.T.’s new foster mother requested. Troy also
testified that he filed the Wilsons’ petition to intervene on November 1, 2012, and
then faxed it to Ad Litem Prater, the Department, the case worker, and the
Father’s attorney on November 2, 2012. At that time, A.T. still was in the Wilsons’
care
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
The trial court interjected that Troy “filed the Intervention, and
probably had standing at that time.” The trial court also
stated: “I think you have to prove standing today. He
undoubtedly — I don’t know about undoubtedly —
conceivably had standing from August 2012 to January 22nd,
2013. I don’t make that finding, but I would say probably,
prima facie or something because you had the child in your
home. . . . But not since January 22nd, 2013 unless you can
establish that today. . . . I think that’s where we are.”
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
Trial was recessed and took place on
November 21, 2014 and the court signed a
Decree of Termination on December 13, 2013
and the Foster Parents appealed.
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
The Court of Appeals discussed standing and concluded as follows: “It
was error for the trial court not to consider whether the Wilsons have
standing to intervene under section 102.003(a)(10) when standing to
intervene under that section was raised by the Wilsons’ pleadings and the
Wilsons’ arguments at the hearing on intervention. Because the trial court
erred in declining to consider whether the Wilsons have standing to
intervene under section 102.003(a)(10), we conclude that the trial court
erred by striking the Wilsons’ petition to intervene without considering
whether the Wilsons have standing to intervene under section
102.003(a)(10).
In the Interest of A.T., A Minor Child, No. 14-1400071-CV, 14th Court of Appeals, Texas
We therefore sustain the Wilsons’ first issue in that regard. In light of our
disposition of the first issue, we need not address the Wilsons’ alternative
argument in issue one that there was evidence before the court
contradicting Ad Litem Prater’s contention that she did not receive the
Wilsons’ petition to intervene; we also need not address the Wilsons’
second and third issues. Having concluded that the trial court properly
struck the Wilsons’ petition to intervene for lack of standing under section
102.004(b) but erred in failing to consider whether the Wilsons had
standing to intervene under section 102.003(a)(10), we reverse the trial
court’s judgment, and remand this cause for further proceedings
consistent with this opinion.”
In the Interest of D.R.P., A Child, No. 04-14-00191CV, 4th Court of Appeals, Texas
In this case that came down from the 4th Court of Appeals on
August 6, 2014 the 4th Court of Appeals reversed the trial court
restrictions on the appellant’s right to a standard possession order.
The appellant’s attorney called the court and told the court that she
would be 15 minutes late. The court took up the case without the
appellant’s attorney present and announced an agreement and that
appellant’s attorney was in agreement with the agreed order that the
father be appointed managing conservator and that appellant mom have
supervised visitation with the child supervised by dad. Mom lived in
Indiana.
In the Interest of D.R.P., A Child, No. 04-14-00191CV, 4th Court of Appeals, Texas
Appellant filed a Motion for New Trial asserting that the
evidence was insufficient to restrict her access. The
appellate court discussed the Craddock test for a new trial
being granted and found all 3 prongs because the attorney
called the court to advise that she was late, that there was a
meritorious defense, the delay in granting the Motion for New
Trial would not cause delay or injury and the failure to appear
was not as a result of conscious indifference.
In the Interest of D.R.P., A Child, No. 04-14-00191CV, 4th Court of Appeals, Texas
The Court of Appeals found: “Because J.E.
satisfied all three elements of the Craddock
test, the trial court abused its discretion in
denying her motion for new trial. The portion
of the trial court’s final order setting forth the
terms and conditions of J.E.’s possession and
access is reversed, and the cause is
remanded for a new trial on that issue.”
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas.
In this case that came down from the 14th Court of
Appeals on August 14, 2014 the Appellate Court
reversed the trial court for failure to appoint
appellant an attorney even though she was indigent
at the time of trial. The court held several hearings
in which the mother, appellant did not appear.
Appellant filed an affidavit of indigence with the trial
court on December 2, 2013.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas.
At that point, the record does not reveal that any
counsel had appeared or represented K.M. in these
proceedings.
The trial court began a termination trial K.M. filed an
affidavit of indigence with the trial court on
December 2, 2013. At that point, the record does
not reveal that any counsel had appeared or
represented appellant in these proceedings.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The trial court began a termination trial a week later, on December 10,
2013. Appellant was not represented by counsel when the trial court
allowed the Department to proceed with its first witness, the caseworker.
After the Department finished its direct examination, the trial court
remarked, “Well, I’ve got a problem with the fact that [K.M.] has filed an
indigency form . . . as of several days ago. So we need to ask [her] a few
questions.” Instead of immediately addressing the indigency issue,
though, the Department passed its witness to the child’s attorney ad litem
for questioning.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The Department then presented its next witness, and finally, called K.M., still without
counsel, to the stand. The Department (DFPS Counsel) questioned K.M. as follows:
DFPS COUNSEL: You were present in the court back on February 26th; is that correct?
A. Yes.
DFPS COUNSEL: At that time you indicated to the Court that you had employment?
Yes.
DFPS COUNSEL: And you were ordered to pay child support . . . to begin March 1st?
A. Yes.
DFPS COUNSEL: Why haven’t you done that?
A. I’m not employed.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
DFPS COUNSEL: And so did you lie to the Court when you said you were?
A. Yes. That’s the reason why I had got the affidavit of indigence.
DFPS COUNSEL: And, in fact, Judge if the Court will take notice of its file on April 16th of 2013, the
mother was found in this court to be not indigent.
THE COURT: Was that the last court date?
DFPS COUNSEL: April 16th, 2013.
A. There was one time that I asked for [an] appointed court lawyer and it was denied because I was
working and when I came back—
DFPS COUNSEL: So how long have you not been working?
A. It’s been a couple of months.
DFPS COUNSEL: So why have you not prepared an affidavit of indigency when you were unemployed
instead of waiting until three days before trial?
A.When I came back to court, I asked for it and it got requested and I did get the paperwork, but the
money and everything to get it filed, I know it's not really a whole lot, but for somebody with no income
comingin, it has been a lot.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
I’ve been putting off school so I can try to get a job; but due to my record because of the
assault with my mother and everything like that, it hasn’t been working out. So I thought,
well, I need some type of source of income to come in. So I just decided to go back to
school so I can at least pay child support, you know. I will pay the 189. I mean, that’s not a
problem to me at all. I mean, I have dates that—when I have the refund coming in and
when I’m going to school, school schedules.
DFPS COUNSEL: Who’s paying for school?
A. Financial aid.
DFPS COUNSEL: And how much income tax do you have coming in?
A. Income tax?
DFPS COUNSEL: You said you had a refund coming?
A. The most that you can get is like $600 to like $800 a month if you’re a full–time student.
The least you can get as a part–time student is four to $500 as you can get as a part-time
student is four to $500 a month. So $189—
THE COURT: Income tax refund? That doesn’t sound—
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
DFPS COUNSEL: What type of—
CPS CASEWORKER: She’s referring to student loan.
A. Financial aid.
DFPS COUNSEL: For money that you—
A.To go to school with. . . . What I don’t use for the school, that’s what I’m left with.
Following that line of questioning, the Department began examining K.M. on issues relating
to the alleged grounds for termination. During the examination, K.M. directly brought up the
issue of legal representation:
A. I’ve done several things to—legal wise to handle this situation. I’ve been to volunteer
attorneys. I mean, unfortunately, I don’t have the money for that. I mean—
THE COURT: You don’t have the money for volunteer lawyers?
A. Because they put it in small print . . ., some fees may apply. . . .
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
THE COURT: No, no, no.
A. Unless that’s not a legit—
THE COURT: That’s not legit. Houston Volunteer Lawyers is free.
A. Okay. Well, somebody is scamming, then . . . .
The Department then passed the witness for questioning by the child’s ad litem. Afterward,
the trial court informed the parties that the trial was in recess and that it planned to appoint
counsel for K.M.:
THE COURT: I am going to appoint Christopher Buck to represent you. K.M.: Is he here?
THE COURT: He’s not here. I’m going to recess this hearing, and we will commence it after
he’s had a couple of weeks, or let’s do it after the first of the year, so he has an opportunity
to get up to speed on your case. The Department’s counsel asked the trial court to clarify
that the trial was in “recess” and that “we’re not starting over.” The trial court agreed.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The trial continued on January 21, 2014. The Department’s counsel
stated: “I would indicate to the Court just on a follow-up on December 10,
we were in here. At that time we went forward in trial. At that time, the
Agency proved up termination grounds of D, E, N and O, and failure to
support on the mother. . . . And we’re to continue the trial today . . . .” The
Department did not present any additional witnesses.
Appointed counsel asked the trial court for additional time for the mother
to complete the service plan. Relevant to the request, appointed counsel
elicited testimony from K.M., the child advocate, and the caseworker.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The trial court denied the request for additional time and
terminated K.M.’s parental rights. The final decree for
termination states that she “appeared in person and through
attorney of record Christopher Lee Buck and announced
ready.” The reporter’s record, however, does not support that
pronouncement with respect to the trial proceedings
conducted on December 10.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The appellate court cited Texas Family Code Section
107.013 and stated: “The question presented here is whether
delaying that appointment until after the commencement of
the termination trial does as well. Section 107.013 does not
specify the time by which an indigent parent requesting
representation must receive it. But the following section,
which delineates the powers and duties of an attorney ad
litem for a parent, sheds some light on the issue. See TEX.
FAM. CODE ANN. § 107.0131 (West 2014).
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
Within a reasonable time after the appointment, the attorney ad litem must:
interview the parent, the parties to the suit, and each person with knowledge of
the case; investigate the facts of the case; review all court files and conduct
discovery as necessary “to ensure competent representation at hearings,
mediations, pretrial matters, and the trial on the merits;” and meet with the parent
before each hearing and abide by the parent’s objectives for representation.
Id. § 107.0131(1). The parent’s attorney ad litem is entitled to:
request a hearing or trial on the merits; consent or refuse to consent to an
interview of the parent by another attorney; receive a copy of each pleading or
other paper filed with the court; receive notice of each hearing in the suit;
participate in any case staffing conducted by the Department in which the parent
is invited to participate; and attend all legal proceedings in the suit.
In the Interest of V.L.B., A Child, No. 01-14-00210CV, 14th Court of Appeals, Texas
The Appellate Court specifically found: “In this case, K.M. filed her
affidavit of indigence a week before the trial setting. The case’s statutory
dismissal date was two months after the trial setting, and no party had yet
asked for the dismissal date to be reset. The commencement of trial on
December 10 was a critical stage of the termination proceedings, at
which the indigent mother was not represented by counsel. Under these
circumstances, we hold that the trial court erred in failing to first consider
K.M.’s affidavit of indigency and appoint an attorney ad litem to represent
her before proceeding with the termination trial. See TEX. FAM. CODE
ANN. §§ 107.013(d)), 107.0131(1) and reversed the trial court’s
termination and remanded for a new trial.
In the Interest of K.M.L. A Child, No. 1200728, Supreme Court of Texas
In this case which came down from the Texas
Supreme Court on
August 29, 2014 the Supreme Court reversed
the trial court’s termination of both parents’
parental rights.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The mother was intellectually disabled and Anglie was given
guardianship of the mother and the father was served by
publication after DFPS filed suit for termination on August 6,
2009 without appointment of an attorney on publication.
On May 3, 2010 the father filed a pro se answer. On June 4,
2010 the mother signed an affidavit of relinquishment naming
DFPS as managing conservator. Mother believed that the
affidavit would allow Anglie to adopt the child.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
About six weeks later, as a result of Melissa’s disabilities, the County
Court of San Jacinto County signed a guardianship order naming Angali
as Melissa’s guardian of the person and estate.
Melissa, through a replacement attorney ad litem and through her mother
as guardian, made multiple attempts to strike the affidavit of
relinquishment from the case, including a “Motion for Revocation”
and a “Special Exception,” both denied and overruled, and then a “First
Supplemental Original Answer” and a “Second Supplemental Answer,”
raising an affirmative defense that the relinquishment affidavit was illegal.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
On January 18, 2011, the first day of trial, the State served John with a
subpoena to attend the trial, and John arrived by police escort. For the
first hours of the trial, John sat in the hall outside the courtroom and
missed pre-trial motions, jury selection, and part of DFPS’s opening
statement. Angali’s attorney alerted the trial court to the fact that John
was in the hallway halfway through DFPS’s opening statement, and John
came into the courtroom. The trial judge told John—after John gave a
short opening statement—that he possibly could have been entitled to
appointed counsel, but that it was “a little late for that now.”
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
“During trial, the jury heard testimony from, among others,
The exchange between the trial court and John proceeded as follows:
The Court: . . . You are in the case. You are representing yourself. I
would say that in all likelihood if you had ever made any type of
appearance before this court, that if you didn’t have a job and didn’t
represent yourself - - or didn’t - - weren’t able to hire an attorney, you
would be entitled to have an attorney appointed for you. It’s a little late for
that now. No attorney could prepare for representing you in the midst of a
trial.
John: Yes, sir.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The Court: So, I assume you still want to participate, but you
are going to have to probably make a better showing than
you have made up until now, and you are going to have to
operate within the rules. Just because you are not an
attorney, it does not mean that you get to go outside the
rules that the attorneys have to follow. Do you understand?
John: Yes, sir.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
Melissa, Angali, and John, along with testimony from Melissa’s original attorney, a
DFPS special investigator, K.M.L.’s DFPS conservatorship supervisor, K.M.L.’s
CASA volunteer, and Melissa
and Angali’s psychiatrist. Following a four-day trial, the jury found that termination
of Melissa and John’s parental rights was in K.M.L.’s best interest. Additionally,
the jury found termination grounds for Melissa
based on endangerment (Family Code section 161.001(1)(D) and (E)), voluntary
relinquishment (section 161.001(1)(K)), and failure to follow a court-ordered
reunification plan (section 161.001(1)(O)).3 The jury terminated John’s rights
based on endangerment (section 161.001(1)(D)), failure to follow a court-ordered
reunification plan (section 161.001(1)(O)), and constructive abandonment
(section 161.001(1)(N)). Finally, the jury found that DFPS, not Angali, should be
appointed the sole managing conservator of K.M.L.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The trial court ordered the termination of both Melissa and John’s
parental rights and appointed DFPS as K.M.L.’s sole managing
conservator. Melissa and Angali challenged the sufficiency of the
evidence to support all four statutory
grounds for termination of
Melissa’s rights in the court of appeals. ___ S.W.3d, at ___. The court of
appeals acknowledged that there is conflicting evidence on the issue of
whether Melissa executed the affidavit voluntarily, but it treated the
guardianship order as merely some evidence relevant to that issue and
reasoned that the jury was entitled to give the order little weight.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
Because termination could be affirmed under subsection (K)—voluntary
relinquishment—the court of appeals did not address the other grounds. See id.
at ___. The court of appeals held that the jury verdict for John’s constructive
abandonment is supported by legally sufficient evidence and did not address
John’s legal and factual sufficiency challenges to the other grounds for
termination. See id. at ___. Additionally, the court of appeals held that John
waived his complaint about notice of trial by appearing at trial and did not address
the lack of notice of the permanency hearings. See id. At ___. Finally, the court of
appeals held that John waived his right to counsel under Family Code section
107.013 because he generally appeared following service by publication and did
not request an attorney or file an affidavit of indigence until after trial.
All three parties—Melissa, Angali, and John—filed petitions for review in this
Court, which we granted. 56 Tex. Sup. Ct. J. 519, 522 (May 3, 2013).
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The mother argued on appeal that she did not have the
requisite mental capacity to sign the affidavit of
relinquishment. The Supreme Court stated: “Melissa’s
psychiatrist testified at trial that there was “no way [Melissa]
had the mental ability to understand the documents she had
signed relative to” terminating her rights, that she suffered
from
bipolar disorder and borderline intellectual functioning, and
that, at Melissa’s visit a few weeks after signing the affidavit,
she was not regularly taking her medication.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
He testified that, at her visits in June 2010, Melissa was in need of a
guardian to ensure her compliance with treatment. Further, less than two
months after Melissa executed the June 4 affidavit, a San Jacinto County
Court judge determined that, as a matter of law, Melissa could not
manage her own affairs as a result of her severe bipolar disorder. While
Melissa did graduate high school, there was uncontroverted testimony
that she read at a second-grade reading level. The evidence was also
uncontroverted that her IQ was below 70 and she had been diagnosed as
borderline intellectual functioning. Her DFPS appointed counselor
testified that someone with an IQ like Melissa’s would struggle with the
ability to comprehend or understand at times what she is doing.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
Her psychiatrist stated in his assessment letter in the guardianship proceedings that Melissa
did not have full mental and intellectual capacity to be able to properly consider, weigh, and
evaluate the factors involved to voluntarily agree to
terminate her parental rights. The Court of Appeals held that this testimony was equivocal.
The Supreme Court found “The evidence in support of the jury’s verdict—even though it
may do more than raise surmiseand suspicion—is not capable of producing a firm belief or
conviction that Melissa knowingly and intelligently irrevocably relinquished her parental
rights. See Garza, 164 S.W.3d at 621. Having
reviewed all the evidence in the record under the clear and convincing standard of proof, we
conclude that the record before us does not contain evidence of that effect and quality.
From the evidence in the record, we therefore hold that the jury could not have reasonably
found by a “firm
belief or conviction” that Melissa voluntarily executed the affidavit of relinquishment of her
parental rights.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The Supreme Court found as follows:”Because the court of appeals affirmed on
relinquishment grounds, it did not address Melissa’s challenges to the jury’s
findings on other statutory grounds for termination. ___ S.W.3d at ___ (citing
TEX. R. APP. P. 47.1). Melissa and Angali raised these issues in their briefing
before this Court, but we lack jurisdiction to review those factual sufficiency
challenges. See TEX. CONST. art. V, § 6(a); In re E.C.R., 402 S.W.3d 239, 250
(Tex. 2013). Accordingly, we remand the case to the court of appeals to consider
the factual sufficiency of the evidence to support the jury’s findings on the other
statutory grounds for termination. TEX. R. APP. P. 53.4, 60.2(d). “
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The father also petitioned for review alleging (1) whether he
waived his right to notice of the termination hearings by appearing at trial
after being subpoenaed; (2) whether the jury’s finding that John
constructively abandoned K.M.L. is supported by legally sufficient
evidence; and (3) whether the trial court erred in failing to make an
indigence determination, failing to appoint an attorney ad litem for John
when he had not yet submitted an affidavit of indigence, and failing to
admonish John that he had the right to an attorney. Because we find the
first issue determinative, we do not reach the other two issues.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
John argues that he did not receive notice of the termination hearings
and did not waive notice by appearing at the trial. Family Code section
263.301(a) provides, “[n]otice of a permanency hearing shall be given as
provided by Rule 21a, Texas Rules of Civil Procedure, to all
personsentitled to notice of the hearing.” Rule 21a provides that citation
may be served by delivering a copy to the party to be served, or the
party’s duly authorized agent or attorney of record, as the case may be,
either in person or by agent or by courier receipted delivery or by certified
or registered mail, to the party’s last known address, or by telephonic
document transfer to the recipient’s current telecopier number, or by such
other manner as the court in its discretion may direct. TEX. R. CIV. P.
21a.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
After John filed a general appearance and answer in opposition on May 3, 2010,
acknowledging his paternity of K.M.L. and providing both his address and telephone
number, he became entitled to ten days’ notice of any permanency hearing under section
263.301. See TEX. FAM. CODE § 263.301(a), (b)(3). It is undisputed that John did not
receive notice of the four permanency hearings held after his May 3, 2010, answer but
before the trial on January 18, 2011. In fact, at two of the hearings—the May and October
2010 hearings—the trial court issued orders finding that John did not receive proper notice.
At the two other hearings, in June and August, DFPS John’s lack of notice of the
permanency hearings has significance in two ways. First, one of the grounds under which
John’s parental rights were terminated is section 161.001(1)(O)—failure to comply with the
provisions of a court order specifically establishing the actions necessary for the parent to
obtain the return of the child who has been in DFPS custody for at least nine months as a
result of an abuse or neglect removal. See TEX. FAM. CODE § 161.001(1)(O).
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The court of appeals did not address his lack of notice of the permanency hearings because
it affirmed termination on constructive abandonment grounds, an independent basis from
the jury’s
findings relating to the permanency hearings. See ___ S.W.3d at ___. But
second and more importantly, John’s failure to receive notice of the permanency hearings
has implications as it relates to his lack of counsel and his due process rights. While we
note our concern about DFPS’s admitted and repeated failure to notify a parent about
proceedings in a termination suit, we need not resolve the case on these grounds because
the record indicates that DFPS may have erred in failing to provide John notice of trial. Rule
245 of the Texas Rules of Civil Procedure provides that a trial court “may set contested
cases on written request of any party, or on the court’s own motion, with reasonable notice
of not less than forty-five days to the parties of a first setting for trial, or by agreement of the
parties.” TEX. R. CIV. P. 245. If a timely answer has been filed in a contested case or the
defendant has otherwisemade an appearance, due process rights are violated when a
judgment is subsequently entered without the party having received notice of the setting of
the case, Peralta v. Heights Med. Ctr., 485 U.S. 80, 86–87 (1988), even when that party
previously waived notice of citation. See Delgado v. Hernandez, 951 S.W.2d 97, 99 (Tex.
App.—Corpus Christi 1997, no writ); Gonzalez v. State, 832 S.W.2d 706, 706–07 (Tex.
App.—Corpus Christi 1992, no writ).
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
A trial court’s failure to comply with the notice requirements in a
contested case deprives a party of his constitutional right to be present at
the hearing and to voice his objections in an appropriate manner,
resulting in a violation of fundamental due process. Armstrong v. Manzo,
380 U.S. 545, 550 (1965). The record does not show that John was
served with actual notice of the trial setting. In his original answer, John
provided his sister’s address, where he resided at the time of trial. No
return receipt of citation was included in the clerk’s record, although the
appellate rules do not require such documents to be automatically
included in the clerk’s record absent specific request, and DFPS did not
request it, even though it knew that notice was being challenged. 12 See
TEX. R. APP. P. 34.5(a), (b)(2).
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
Additionally, in this regard, the question of whether John had constructive notice
of trial is, at most, inconclusive. John testified that he knew about the termination
suit and had previously met with Angali’s attorney. However, John appeared at
trial under subpoena and, according to his testimony, was driven by a district
attorney or possibly a police officer. When asked if he was given notice of the
trial, John responded, “I have never gotten anything,” and that he “didn’t get
anything in the mail.” Failure to give a parent notice of pending proceedings
“violates the most rudimentary demands of due process of law.” Peralta, 485 U.S.
at 84 (quoting Armstrong, 380 U.S. at 549) (internal quotations omitted). Given
the constitutional implications of parental rights termination cases, see In re E.R.,
385 S.W.3d at 554, and John’s statements on the record that he did not receive
notice of trial, and absent any evidence to the contrary, we must conclude that
John did not receive notice of trial. See Gonzalez, 832 S.W.2d at 707.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
The Supreme Court concluded as follows: “We hold that the evidence is
legally sufficient to support the jury finding that termination of Melissa’s
parental rights was in K.M.L.’s best interest. However, we also hold that
termination of her parental rights under section 61.001(1)(K) was
improper because there is legally insufficient evidence that she executed
the affidavit of voluntary relinquishment knowingly and intelligently. We
reverse that portion of the court of appeals’ judgment regarding
termination under section 161.001(1)(K) and remand the case to the court
of appeals to consider the factual sufficiency of the other three grounds
for terminating Melissa’s parental rights.
In the Interest of K.M.L. A Child, No. 12-00728,
Supreme Court of Texas
We hold that John was entitled to notice of the permanency
hearings and the trial and that he did not waive that right to
notice by appearing at trial, as the record does not show that
he appeared voluntarily such as to waive his constitutional
due process right to notice. This lack of notice renders any
judgment unenforceable and void. Accordingly, we reverse
the judgment of the court of appeals as it relates to John and
remand the case to the trial court for a new trial.”
In the Interest of:J.E. and B.K., Children, No. 03-1400164-CV, 3rd Court of Appeals, Texas
In this case that came down from the 3rd Court of Appeals on
September 10, 2014 the Court of Appeals reversed the trial court based
upon the failure of the trial court to appoint an attorney for the father
who asserted his indigence. The record reflects that the father filed an
affidavit of indigency with the trial court on July 8, 2013—more than six
months before the underlying jury trial began. There is nothing in the
record to indicate that the Department or the court clerk contested the
father’s indigency, let alone filed a written contest as required. See Tex.
R. Civ. P. 145(d).
In the Interest of:J.E. and B.K., Children, No. 03-1400164-CV, 3rd Court of Appeals, Texas
Given that the father’s affidavit of indigency was not
contested, he was indigent as a matter of law, and the trial
court was required to provide him with appointed counsel.
See Hager, 856 S.W.2d at 514; see also Odoms v. Batts,
791 S.W.2d 677, 679–80 (Tex. App.—San Antonio 1990, no
writ) (noting that trial court has mandatory duty to
appoint counsel to indigent parent). Therefore, the trial court
erred in failing to provide Brian with appointed counsel.
In the Interest of:J.E. and B.K., Children, No. 03-1400164-CV, 3rd Court of Appeals, Texas
The appellate court found” Therefore, we sustain the father’s
first appellate issue, reverse the portion of the trial court’s
order terminating father’s parental rights, and remand this
case to the trial court for the appointment of an attorney ad
litem consistent with section 107.013 of the Family Code and
a new trial on the Department’s petition to terminate father’s
parental rights. See C.D.S., 172 S.W.3d at 186 (adopting
same appellate remedy for trial court’s failure to provide
indigent parent with counsel).
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
In this case which came down from the 4th Court of Appeals on
September 24, 2014 the Court of Appeals reversed the trial court’s
termination of the mother’s parental rights based upon legally insufficient
evidence of best interest. The trial court terminated Mother’s parental
rights on the grounds that she constructively abandoned the children who
had been in the managing conservatorship of the Department for not
less than six months and that she failed to comply with the court-ordered
service plan. See TEX. FAM. CODE ANN. § 161.001(1)(N), (O).
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
The trial court also found that termination was in the children’s best
interest. On appeal, Mother asserts that she was denied due process
when her parental rights were terminated while she was incarcerated,
despite a properly tendered notice of “not ready” by trial counsel. Mother
also challenges the sufficiency of the evidence in support of the statutory
termination findings and the best interest finding. Because we conclude
there is insufficient evidence to support the trial court’s best interest
finding as to Mother, we address only that issue on appeal. The appellate
court discussed the Holly factors.
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
The only witness who testified was the caseworker for DFPS. She testified that
the children are in a placement that is not a permanent placement. The court of
appeals found that the record was devoid of any testimony regarding the parental
abilities of the individuals seeking custody, programs available to assist these
individuals, plans for the children by the individuals seeking custody, or the
stability of the home or proposed placement. The appellate court found “Jones
was concerned about Mother’s bond with the older children, A.J.L. and A.R.L.,
stating that the boys seemed “detached” during their visits with her. Mother was
scheduled to begin family therapy in August 2013, but was unable to do so due to
her incarceration that same month.
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
Other than this conclusory testimony by Jones, no other evidence was
offered on whether Mother’s relationship with A.J.L. and A.R.L., or her
other children, for that matter, was inappropriate. See In re A.H., 414
S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (“conclusory
testimony, such as the caseworker’s, even if uncontradicted does not
amount to more than a scintilla of evidence”); Williams v. Williams, 150
S.W.3d 436, 450 (Tex. .—Austin 2004, pet. denied) (caseworker’s
unsupported testimony, which constituted sole evidence at trial, did not
support termination).
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
The appellate court further found “Mother’s parental rights were terminated on the
grounds that she constructively abandoned the children and failed to comply with
all the requirements of her family service plan. See TEX. FAM. CODE ANN. §
161.001(1)(N), (O). Imprisonment, standing alone, does not constitute
“abandonment” of a child for purposes of termination of parental rights. In re 0414-00013-CV D.T., 34 S.W.3d at 633-34; see also Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (holding imprisonment alone is not
conduct “endangering a child”); In re B.T., 954 S.W.2d 44, 49 (Tex. App.—San
Antonio 1997, pet. denied) (parent’s imprisonment may be a factor in
abandonment cases, but is not conclusive). Further, the record reflects that
Mother did comply with all the requirements of her family service plan up until the
time she was incarcerated.
In the Interest of A.J.L,A.R.L.,A.A.R., and B.N.G., Children,
No. 04-14-00013-CV, 4th Court of Appeals, Texas
Jones did not state whether services were available to
Mother while she was incarcerated. Jones had not had any
contact with Mother during the approximately five months
that she had been incarcerated prior to trial, but did note that
she had been informed that Mother was trying to reach her”.
The appellate court reversed the termination of mother’s
parental rights but because she did not assert that the
granting of managing conservatorship to DFPS was not error
that appointment was affirmed by the appellate court.
In the Interest of M.J.C.B.,J.R. and M.J.B., Children, No, 1114-00140-CV, 11th Court of Appeals, Texas
In this case that came down from the 11th Court of Appeals
on November 14, 2014 the court of appeals reversed the trial
court appointment of the grandparents as managing
conservators of the children and remanded the case to the
trial court to consider the placement of the children with the
father In the present case, only four witnesses testified at
trial: a caseworker for the Department of Family and
Protective Services, a CASA volunteer, the father of the
mother’s other child, and Appellant.
In the Interest of M.J.C.B.,J.R. and M.J.B., Children,
No, 11-14-00140-CV, 11th Court of Appeals, Texas
None of these witnesses offered any evidence that would indicate that
the children’s physical health or emotional development would be
significantly impaired if Appellant were appointed their managing
conservator. At the time of trial, Appellant had lived in Montana for three
years. He resided in Montana when the Department became involved
with the children, who at the time were in their mother’s care. By all
accounts, Appellant was financially stable, was gainfully employed, and
had a home in Montana that had been approved by the Department after
a home study was conducted.
In the Interest of M.J.C.B.,J.R. and M.J.B., Children,
No, 11-14-00140-CV, 11th Court of Appeals, Texas
Because no evidence was offered at trial that would show
that the appointment of Appellant as the children’s managing
conservator would significantly impair the children’s physical
health or emotional development, the trial court abused its
discretion in failing to appoint Appellant as a managing
conservator of M.J.C.B., Jr. and M.J.B. Appellant’s issues
are sustained. The appellate court reversed the appointment
of the grandparents as MC and remanded the case to the
trial court for a new trial.
In the Interest of V.D.A., A Child, No: 14-14-00561CV, 14th Court of Appeals, Texas
In this case an Order came down on
November 20, 2014 from the
14th Court of Appeals addressing the issue
that the Court Reporter’s
Record did not include Exhibit 1 and 2.
In the Interest of V.D.A., A Child, No: 14-14-00561CV, 14th Court of Appeals, Texas
The Court of Appeals Ordered: “We order Cara Skinner, the official court
reporter, to file the supplemental reporter’s record in this appeal on or before
December 5, 2014. The supplemental reporter’s record shall contain the
following:
1. The record from the hearing on the pre-trial motion for continuance during
which Petitioner’s Exhibits 1-4 were admitted;
2. Petitioner’s Exhibits 1-4;
3. The record from the pre-trial hearing on W.J.’s special exceptions;
4. The record from the Permanency Hearing held March 3, 2014;
5. The record from the Permanency Hearing held June 9, 2014;
6. A record of the hearing, if any, on W.J.’s motion for new trial.
In the Interest of V.D.A., A Child, No: 14-14-00561CV, 14th Court of Appeals, Texas
If Cara Skinner does not timely file the supplemental record
as ordered, the court may issue an order requiring her to
appear at a hearing to show cause why the supplemental
record has not been timely filed and why she should not be
held in contempt of court for failing to file the record as
ordered. If any requested record was not reported, the court
reporter shall file a certified statement that no record was
taken of the requested proceeding and file the statement with
this court by the due date for the supplemental record. “
In the Interest of V.D.A., A Child, No: 14-14-00561CV, 14th Court of Appeals, Texas
This is a case where I was the Attorney ad Litem for the child
at trial and on appeal. On December 3, 2014 a hearing was
held in the 315th District Court to admit Exhibit 1 and 2. Cara
Skinner, the Court Reporter provided me with her reporter’s
record of each excerpt that addressed the introduction of
Exhibit 1 and 2 and I offered them as Exhibit 3 (in support of
Exhibit 1) and Exhibit 4 (in support of Exhibit 2) and all 4
Exhibits were admitted for the purpose of the appellate
record.
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
In this case that came down from the 4th
Court of Appeals on
December 10, 2014 the Appellate court
reversed termination of the
father’s parental rights based upon ineffective
assistance of counsel.
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
“In one issue, he argues he was deprived of
effective assistance of counsel when his appointed
attorney failed to appear at trial and failed to make
arrangements for him to appear at trial. Because we
agree that Joe O. was deprived of effective
assistance of counsel at trial, we reverse the trial
court’s order of termination and remand the cause
for further proceedings. “
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
On May 25, 2014, the day of the termination hearing neither the father
nor his attorney appeared. Despite the absence of the father and his
appointed attorney, the trial judge proceeded with the trial. At the
beginning of the trial, the trial judge asked the clerk of his court whether
the clerk had attempted “to secure [the appointed attorney]’s participation
by phone?” The clerk responded, “Yes. . . . He didn’t answer. I got his
voice mail and I left him a message.” The trial judge noted that his
“understanding [was] dad is in TDC at Dominguez. He was at the
[chapter] 262 [proceeding] of 8/23/13.” The trial judge explained that he
“saw no extraordinary circumstances to delay any further resolution for
the young child, [J.M.O.]. We are going to go forward.”
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
The only witness who testified was the
caseworker and she said that the father was
in custody in State Jail, refused to sign his
Family Service plan and the child was placed
with the maternal great aunt. The court
terminated the father’s parental rights.
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
The next day, May 28, 2014, Joe O.’s appointed counsel filed a Motion to
Reconsider Judgment, stating that (1) Joe O. was incarcerated at a statejail facility, (2) his appointed attorney had failed to order a video
conference so that Joe O. could personally participate at his trial, and (3)
at approximately 8:30 a.m. on May 27, 2014, his appointed attorney had
notified the trial court that appointed attorney “was in another hearing in
the 436th district court and would be late.” Joe O. asked that the order of
termination be reconsidered and he be given a new hearing where he
would have an opportunity to be heard and represented by counsel.
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
On June 5, 2014, the trial judge heard Joe O.’s motion to reconsider. The
court-appointed attorney testified to the following:
Basically, Your Honor, I filed this motion. The case was set on the 27 of
May. I had notified the court that I had neglected to order my client to be
on audio. I was in Juvenile. I let the Court know in advance that I was not
going to be – that I was going to be late. The Court at about 9:15, more or
less, went ahead and heard the case. The State responded that there
was no need for the trial judge to reconsider because “[t]here is nothing
that’s going to change the outcome or any new evidence that’s going to
be garnished by doing that. He’s going to hold up permanency for [this
child].”
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
Joe O.’s appointed attorney responded, That is why I’m asking for a short–
basically to reset the merits. I’m not saying that I did not know the court date, I did
that, and it was my –it’s strictly my fault in not notifying–you know, not ordering
the client for that hearing on that date. I do think that I should have been allowed
to, you know, be present in court . . . . I’m not blaming the Court for anything. I
notified the Court. It was my fault and I strictly am entirely [to blame] for not
notifying my client–I mean not notifying– I mean not requesting that my client be
present; I’m not blaming the Court for that. The Juvenile Court, I had to go one
place or the other. I notified the Court at 8:30 that I was going to be in Juvenile,
so I fulfilled the requirement of notifying the court where I was going to be. I’m not
blaming the Court for this case because I screwed it up, not the Court. The trial
judge denied the motion to reconsider. Joe O. now appeals, arguing that he was
deprived of effective assistance of counsel at trial.
In the Interst of J.M.O., No. 04-14-00427-CV, 4th
Court of Appeals, Texas
The Appellate Court discussed the Strickland test
and cited the 3rd Court of Appeals Opinion in the
Lockwood case. Lockwood v. Texas Department of
Family & Protective Services, No. 03-12-00062-CV,
2012 WL 2383781 (Tex. App.—Austin June 26,
2012, no pet.), and reversed the termination based
upon ineffective assistance of Dad’s counsel and
remanded the case to the trial court for a new trial.