in the Interest of M.N., a Child ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00368-CV
IN THE INTEREST OF M.N., a Child
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-02675
Honorable Martha B. Tanner, Judge Presiding
OPINION ON MOTION FOR REHEARING
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: November 25, 2015
REVERSED IN PART, AFFIRMED IN PART, REMANDED
On October 14, 2015, we issued an opinion and judgment in this appeal. On October 29,
2015, the State filed a motion for rehearing. Although we deny the motion for rehearing, we
withdraw our opinion and judgment of October 14, 2015, and substitute this opinion and judgment
in its stead and remand this matter to the trial court for further proceedings.
M.M.P.N., 1 M.N.’s biological mother, and B.W.M., M.N.’s presumptive father, appeal the
trial court’s order terminating their parental rights to minor child, M.N. Although each parent filed
a separate brief, both argue they were denied effective assistance of counsel during the termination
hearing. We conclude the trial court erred in terminating both M.M.P.N.’s and B.W.M.’s parental
1
For purposes of this opinion, and the protection of minor child M.N., we use initials to identify all parties.
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rights. Accordingly, we reverse the trial court’s judgment granting the Texas Department of
Family and Protective Services’ petition for termination of both M.M.P.N.’s and B.W.M.’s
parental rights and remand this matter to the trial court for further proceedings consistent with this
opinion. However, because neither parent challenged the Department’s conservatorship under
section 153.131 of the Texas Family Code, we affirm the trial court’s appointment of the
Department as the managing conservator of M.N.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Department is Awarded Temporary Managing Conservator of M.N.
On November 6, 2014, the Department received a referral alleging neglectful supervision
of newborn M.N. M.M.P.N. tested positive for amphetamines, benzodiazepam, opiates, and
methadone at the time of M.N.’s birth. M.N. also tested positive for methamphetamines, opiates,
and methadone.
On November 13, 2014, the Department filed its Original Petition for Protection of a Child,
for Conservatorship, and for Termination in Suit Affecting the Parent Child Relationship. The
trial court also appointed counsel to represent each parent and signed temporary orders awarding
the Department temporary managing conservatorship of M.N. on November 24, 2014. M.M.P.N.
and her counsel were present at the hearing, but M.M.P.N. did not sign the order. A status hearing
and pretrial conference was held on January 14, 2015, and a permanency hearing was held on May
13, 2015.
The case was called for trial on June 12, 2015. Although neither parent, nor their respective
counsel, was present for the hearing, the trial court proceeded to trial in their absence.
B. Termination of Parental Rights Hearing
The Department called two witnesses to testify—the Department’s caseworker and M.N.’s
foster parent.
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1. Anwar Morgan, the Department’s Caseworker
With respect to B.W.M., Anwar Morgan testified that B.W.M.’s name did not appear on
the birth certificate; additionally no attorney general case establishing paternity had been filed.
Morgan further testified that B.W.M. was granted weekly visitation, but never exercised his right
to visit M.N. Morgan relayed he attempted to reach B.W.M. on multiple occasions and finally
made contact with him on May 1, 2015. Morgan set a meeting with B.W.M. for May 4, 2015, to
discuss M.N. and the Department’s procedures and plans; B.W.M. failed to appear for the meeting.
Morgan spoke with B.W.M. for a second time a few days before the hearing. They
discussed the issue of B.W.M. establishing himself as the legal father of M.N. Morgan averred
that B.W.M. did not indicate a desire to submit to a DNA test.
With regard to M.M.P.N., Morgan testified as to her positive drug tests when M.N. was
born. He further relayed that M.N. exhibited signs of withdrawal following her birth. Although a
service plan was created for M.M.P.N., Morgan explained the Department was unable to provide
M.M.P.N. a copy of such because she failed to return calls or text messages. Like B.W.M.,
M.M.P.N. was granted weekly visitation with M.N., but never exercised the opportunity to visit
M.N.
Morgan testified that M.N. was seven-months old and living with the foster parents with
whom she was placed when she was born. He opined the Department was requesting termination
because neither parent was able to show any commitment to change any of the circumstances that
led to M.N. coming into the Department’s care. Moreover, Morgan explained that neither B.W.M.
nor M.M.P.N. ever exhibited any commitment to M.N.
2. J.D., M.N.’s Foster Mother
The only other witness called before the trial court was J.D., M.N.’s foster mother. J.D.
confirmed M.N. was released from the hospital into her care. She described several examples of
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M.N.’s withdrawal symptoms, but relayed that most of the symptoms had subsided, with the
exception of the stiffening of muscles. The symptoms, however, continued to decrease with the
help of twice daily exercises. J.D. further reiterated that she was “100% committed to M.N. long-
term.”
C. Trial Court Findings
Following the short hearing, the trial court terminated both B.W.M. and M.M.P.N.’s
parental rights. As to M.M.P.N., the trial court concluded M.M.P.N.:
(1) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-
being of the child, per Texas Family Code section 161.001(1)(E);
(2) constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of
Family and Protective Services or an authorized agency for not less
than six months and: (1) the Department or authorized agency has
made reasonable efforts to return the child to the mother; (2) the
mother has not regularly visited or maintained significant contact
with the child; and (3) the mother has demonstrated an inability to
provide the child with a safe environment, per Texas Family Code
section 161.001(1)(N);
(3) failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return
of the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or neglect
of the child, per Texas Family Code section 161.001(1)(O); and
(4) been the cause of the child being born addicted to alcohol or a
controlled substance, other than a controlled substance legally
obtained by prescription, per Texas Family Code section
161.001(1)(R).
TEX. FAM. CODE ANN. § 161.001(1)(E), (N), (O), (R) (West 2014). As to B.W.M., the trial court
concluded, “[B.W.M.] did not respond by timely filing an admission of paternity or by filing a
counterclaim for paternity or for voluntary paternity to be adjudicated under chapter 160 of the
Texas Family Code before the final hearing in this suit.” TEX. FAM. CODE ANN. § 161.002(b)(1)
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(West 2014). Finally, the trial court determined termination of M.M.P.N.’s and B.W.M.’s parental
rights was in M.N.’s best interests. See TEX. FAM. CODE ANN. § 161.001(2).
After the trial court announced the termination ruling, M.M.P.N.’s attorney appeared in the
courtroom.
Trial Court: The Court’s going to find that there is clear and convincing evidence,
appoint the Department managing conservator, termination of the
mother on “E,” “N,” “O” and “R” ground and the father on failure to
legitimate.
Counsel: I was in another court, your Honor, but I have no issue with what the
Court’s decided to do. I understand my client has not participated at
any level, at any time—
Trial Court: True.
Counsel: —and I have had zero contact with her throughout this case.
INEFFECTIVE ASSISTANCE OF COUNSEL
Both parents contend they did not receive effective assistance of counsel during the
termination hearing. Although the Department agrees, we must still address this issue.
A. Right to Counsel
In a suit filed by a governmental entity requesting termination of the parent-child
relationship or the appointment of a conservator, an indigent person possesses a statutory right to
counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM. CODE ANN. § 107.013(a)(1)
(West 2014). The Texas Supreme Court, relying on Texas Family Code § 107.013(a)(1), held
“there is a statutory right to counsel for indigent persons in parental-rights termination cases.” In
re M.S., 115 S.W.3d at 544. This right “necessarily includes the right to effective assistance of
counsel.” Id. (citing In re K.L., 91 S.W.3d 1, 13 (Tex. App.—Fort Worth 2002, no pet.) (“[I]t
would seem a useless gesture on the one hand to recognize the importance of counsel in termination
proceedings, as evidenced by the statutory right to appointed counsel, and, on the other hand, not
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require that counsel perform effectively.”)); accord In re J.M.O., 459 S.W.3d 90, 93 (Tex. App.—
San Antonio 2014, no pet.).
The appropriate standard used to determine whether counsel is effective is the same as the
standard enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See
In re M.S., 115 S.W.3d at 544–45. An appellant must show (1) that appointed counsel’s
performance was deficient and (2) that the deficient performance prejudiced his case. In re J.M.O.,
459 S.W.3d 90, 93 (Tex. App.—San Antonio 2014, no pet.) (applying Strickland standard); accord
In re M.S., 115 S.W.3d at 545. “This requires showing that counsel’s errors were so serious as to
deprive the [parent] of a fair trial, a trial whose result is reliable.” In re J.M.O., 459 S.W.3d at 93
(quoting Strickland, 466 U.S. at 687). We must consider all of the circumstances surrounding the
case and focus our review on whether counsel performed in a reasonably effective manner. In re
M.S., 115 S.W.3d at 545.
This court previously held that, in a parental termination, a parent was denied effective
assistance of counsel when his appointed counsel failed to appear at trial. See In re J.M.O., 459
S.W.3d at 94. We concluded that under the first prong of the Strickland standard, there can be no
plausible strategic reason for trial counsel to fail to appear at trial, a critical stage of litigation. See
id. Additionally, under the second Strickland prong, there need not be a specific showing of
prejudice because when appointed counsel wholly fails to appear at trial, the adversary process
itself is presumptively unreliable. See id.
The Austin Court of Appeals addressed a similar situation in Lockwood v. Texas
Department of Family and Protective Services, 03-12-00062-CV, 2012 WL 2383781, at *6 (Tex.
App.—Austin June 26, 2012, no pet.). In Lockwood, neither the mother nor her attorney appeared
for trial. The court concluded no plausible strategic reason existed for a trial counsel’s failure to
appear at a critical stage of litigation, specifically a parental termination case. Id. Accordingly,
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the court concluded the adversarial process employed “was so unreliable that a presumption of
prejudice is warranted.” Id.
We see no difference in this case—the trial court proceeded to trial without either parent’s
or their counsel’s presence. We thus conclude both B.W.M. and M.M.P.N. were denied effective
assistance of counsel. See In re J.M.O., 459 S.W.3d at 93; Lockwood, 2012 WL 2383781, at *6.
We, therefore, reverse that portion of the trial court’s judgment terminating B.W.M.’s and
M.M.P.N.’s parental rights and remand this matter to the trial court for further proceedings
consistent with this opinion.
Because neither parent’s appeal challenged the Department’s Family Code section 153.131
conservatorship within their appeal of the termination order, we affirm the trial court’s
appointment of the Department as the managing conservator of M.N. pursuant to section 153.131.
TEX. FAM. CODE ANN. § 153.131 (West 2014); see In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007)
(explaining procedure to be followed by a parent, the Department, and the trial court when a
judgment terminating parental rights is reversed by the court of appeals but the Department’s
conservatorship pursuant to section 153.131 is affirmed); see also In re R.S.D., 446 S.W.3d 816,
822–23 n.5 (Tex. App.—San Antonio 2014, no pet.).
Patricia O. Alvarez, Justice
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