DFPS CASE LAW UPDATE By Brian Fischer. DFPS CASE LAW UPDATE –BRIAN J. FISCHER –ATTORNEY AT LAW...

DFPS CASE LAW UPDATE

By Brian Fischer


– 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: [email protected]


• 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

• 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: 01-13-00880-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: 01-13-00880-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?


[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.”


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.


As to failure to support (n) the DFPS concede that there was no

evidence on that ground.


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. “


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).”


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).


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.


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.


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.


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.


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.”


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. 14-14-00071-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.


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.


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.


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.


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.


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.


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.


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.


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


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.”


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.


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).


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. 04-14-00191-CV, 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.


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.


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. 01-14-00210-CV, 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. 01-14-00210-CV, 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. 01-14-00210-CV, 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.


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.


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.


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—


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. . . .


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.


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.


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.


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).


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.


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. 12-00728, 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.


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.


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.


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.”


“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.


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.


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.


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.


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).


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.


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.


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.


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). “


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.


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.


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).


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).


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).


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.


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.


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. 03-14-00164-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).


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.


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).


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.


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.


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).


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 04-14-00013-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.


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, 11-14-00140-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.


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.


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: 14-14-00561-CV, 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.


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.


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. “


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 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. “


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.”


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.


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 state-jail 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.


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].”


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.


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.

DFPS CASE LAW UPDATE By Brian Fischer. DFPS CASE LAW UPDATE –BRIAN J. FISCHER –ATTORNEY AT LAW...

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Transcript of DFPS CASE LAW UPDATE By Brian Fischer. DFPS CASE LAW UPDATE –BRIAN J. FISCHER –ATTORNEY AT LAW...