In the interest of: N.T, a child v. Appeal from 256th Judicial District Court of Dallas County (memorandum opinion )
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AFF11 MED; Opinion Filed March 18. 2013. In The uf ;ppia1s fift1i JiL31riCt Di LXd t1 tL111d No, O5-12Ol284-CV IN TIlE INTEREST OF N.T. A CHILD On Appeal from the 256th Judicial I)istrict Court I)allas County, Texas Trial Court Cause No 1W-i 1-00657-Z MEMORANDUM OPINION Before Chief Justice Wright, Justice Lang, and Justice Evans Opinion by Justice Lang Shannon i. appeals horn a judgment terminating her parental rights to N.T. In two issues, appellant asserts that her trial counsel was ineffective and that she was denied due process of the law protected by the Fourteenth Amendmcnt to the Constitution of the United States. After reviewing the record and finding no reversible error, we affirm the trial court s judgment. 1. BACKGROUNI) In March of 2010, the Texas Department of Family and Protective Services removed Li. and NJ., appellant s children, from appellant s care because Ashunte Minniefield, a convicted To protect the privacy of the parties, we identify the child s relatives by their CODE ANN, § 109.002(d) (West Supp. 2012). first names only. See TEX. F.\M, sex offender, was in the home. The children were ultimately returned to appellant and the case was closed afler appellant successfully completed services and agreed that she and her children would not have any contact with Minniefield. However, the Department received a report froati their statewide intake office in Austin on June 14, 2011 alleging that Minniefield had been arrested at appellant s apartment earlier that day and that appellant was threatening to kill herself Although N.T. s sibling, L.J., was not present at the time of Minniefield s arrest. N.T. was at the home. The same (lay, a L)epartment special investigator visited appellant at her home and had concerns that appellant was not taking her prescribed medication for mental health issues and had allowed at least one of her children to be around Minniefield. At the request of the Department special investigator, appellant signed a child safety evaluation and plan agreeing that she and her children would not have any further contact with Minniefield and that she would take her medication. The following day, in an interview with a Department caseworker, appellant admitted she knew Minnietield was a convicted sex offender, but stated that she never allowed him to care for her children at any time. Appellant also admitted to using drugs in the past, but the record shows drug tests performed on June 14 and June 15 were negative. After assessment the Department detennined the family would benefit from family based safety services and would be monitored by the Department. On July 20, 2011, appellant contacted her caseworker to inform her that Minniefleld s family made threats to kill appellant after learning that Minniefield had been diagnosed with a critical medical condition that his family believed to have been transmitted by appellant. After appellant refused the Department s offer to go to a shelter with her children, the Department removed Li. and N.T. from appellant s home. 2 Then, the Department filed a petition for protection, conservatorship, and termination of appellant s rights with respect to I J. only: 201 I lR\ klli d\ in paternity of NT, and it I iiiti li\ 11w was under ilIOHiL\ flU that trial court ii oltiu._ hid hlctl cause number i pLtiti()n To cst iblish that the trial court terminated appellant s parental riglils to N .T, I he trial Court signed a teniporarv order ()fl 3 uk 2(, 21)11 , af)1O1fltiflg the I)epartment temporary managing conservator of both children. Several permanency hearings respecting the status of the case were held and orders rendered durma the pendency ol this case. TcX. CoDE ANN, 6, 2011 , FAM. § 263.30406 (West 200 & Supp. 2012). At the permanency hearing on Uecember the trial court signed an order appointing counsel to appellant. ()n March 23, 2() 12. the parties signed a mediated settlement agreement incorporating an exhibit that, among other things, reset the mediation fbr June 1 201 2. On April 1 2, the trial , court held another permanency hearing setting the case liar mediation on Juiie 1 and setting a trial date of July 5 and 6. The case was not settled on .June 1 and a trial befiare the court was held on the scheduled dates. At the conclusion of the trial, the court orally rendered judgment terminating appellant s parental rights as to NT. pursuant to subsections 161 .001(1 )( D) and (F) of the Texas Family Code, On August 30, 2012, the trial court signed a decree terminating appellant s parental rights to N.T. This appeal followed. ii. APPLICATION OF LAW TO FACTS Before addressing the merits of this case, we note that the record in this appeal and the record in the separate appeal involving the termination of appellant s parental rights to L.J. are virtually the same, although the termination decrees for each child have different trial court cause numbers. 2 The cases were tried together below and the reporter s record is identical in both That judgment is the subject of a separate appeal and opinion Dallas Mar. , 2013, no pet. h.). See In re Li., 05-12-0123-CV (Tex. App. appeals .A(Idilionallv, appellant has Oled substanhl\ clv identical hi jets n both jpeals raising the same issuc, and arguments. I lowever, some of the arguments appellant presents relate only to the termmation of appellants parental rights to Li. We do not address these arguments in this opinion and hunt OUI in ul\ ls to ouR thOSL al unknts irl gin terminal i n appel lam s parental rights to to th U if outt s judLmnt N .T. A. iNI;FFE(;TIVE ASSIS[AN( I: In her first issue, appellant asserts that her trial counsel was ineffective because he was unprepared fr trial in various ways and tn led to: (1) tile special exceptions and various motions. 2) perform discovery. ( 3) make certain ohections a trial, and (4) present evidence on certain factors relative to whether termination was in NJ. s best interest. In Texas, indigent parents have a statutory right to effictive assistance of counsel in termination proceedings that we evaluate under the same standards as those set forth for criminal defense counsel in Strzclcla,id u. lkashingtun, 466 U.S. 66% ( lc%4). See In re MS., 115 S.W.3d 534, 544 45 ([cx. 2003). To succeed on her ineftictive assistance issue, appellant must establish not only that her counsel s Performance was (let icient, but also show counsel s deficient performance prejudiced her case. See id. With respect to the first prong of the test, we indulge in a strong presumption that counsel s conduct lIll within the wide range of reasonable professional assistance, which includes the possibility that counsel s actions were strategic. Id. at 545. The challenged conduct will constitute inelThctive assistance only when it was so outrageous that no competent attorney would have engaged in it. Id. In analyzing whether counsel s performance in a particular case is deficient, we consider all of the circumstances surrounding the case and focus primarily on whether counsel performed in a reasonably effective manner. Id. With respect to Strickland s second prong, we must determine whether there is a 4 isoble probability that, hut for counsel s deficient performance, the result of the proceeding \\ on Id have been dt Itcient. hi. at 5U. supported by the record. See Doe 572 (Tcx. App. I. i. An a! lcation of ineffective as;istance must he liii lv Bra::oria Ouy. Child Proieetir e Servc., 226 S.W.3d 563, Houston ji st Dist. 2007, no pet. ). I diuid Se itl ftc/u :lgflL fllL tu( Appellant initially asserts that her counsel s performance was deficient because he failed to move tin a linal udgnient based upon the parties March 23. 20! 2 Mediated Settlement Agreement an accordance with section 153.0071(e) of the Texas Family Code. See TEX. ( ODE ANN, FAM. I 53.007 he) (West 200i. According to appellant, the Family Code provides that if a mediated settlement meets those requirements. a party is entitled to judgment on the MSA, notwithstanding TRCP Rule 11 or any other rule of law. Tcx. FAM, CODE ANN. § 153.0071(e) West 200). Appellant further contends that counsel failed to object to the State s attempt to unilaterally repudiate the MSA on or about June 1, 2(12. Appellant argues that entry of a final judgment on the agreement, which did not call for the termination of her parental rights, would have been a better result fur appellant than the judgment the trial court signed after trial on the merits. We conclude the agreement does not support appellant s position. On March 23 the parties signed the above referred Mediated Settlement Agreement, which provided in part for the parties to appear in court to present evidence and secure rendition of judgment in accordance with the settlement terms. The agreement further provided, T HIS AGREEMENT IS NOT SUBJECT TO REVOCATION. The particular terms of the parties agreement, however, were set out in Exhibit A. Exhibit A specifically reset the March 23 mediation to June 1. The exhibit further provided that during the interim, appellant would finish counseling, continue her drug treatment, stay on her medication from MHMR, continue with 4F{MR services, and refrain from having contact with any registered sex offender. The settlement did not address the ultimate disposition of the termination proceeding. Urn ic iew of the agi cement shows there is nothing ol a dispositi e natrn e in the agreement upon which appellant s counsel could have sought a final judgment because the agreement did not address the issues before the trial court for final resolution, such as custody, placement. guardianship, or parental rights. Instead, the agreement provided for interim steps and an additional session of mediation, Therefore, we conclude appellant s counsel s performance was not deficient for failing to move for a final judgment on a mediated settlement agreement that addressed only interim actions appellant agreed to perform before the June 1 mediation. 2. Motion/or ontifluunce Next, appellant complains her counsel s actions were deficient because of his failure to file a written motion for a continuance of the July 5 trial date after becoming aware that the 3 Department intended to proceed with terminating appellant s parental rights. Appellant acknowledges that her counsel orally moved for a continuance on the day of trial. However, the motion was denied. The Department opposed counsel s oral request for a continuance noting the parties faced a dismissal date for the case of July 23 pursuant to section 263.401(a) of the family code, See Tux. FAM. CoDE ANN. § 263.40 [(a) (West 2008). Appellant contends a proper written motion should have been filed because the Department s decision to proceed with the termination after signing the March 23 mediated settlement agreement, is an extraordinary circumstance justifying a 180 day continuance to allow counsel additional time to prepare for Appellant asserts that the Department unilaterally repudiated the mediated settlement agreement on or about June 1, 2012. The Department contends that mediation continued on June 1 as ordered by the Court on April 24, but no final agreement was reached because appellant had not followed the terms set forth in the March 23 agreement. 6 trial under section 7o4t) I 411 the lami Iv code See it!. 263.301 ( h ). We recognize the prevailing case law that holds a trial court s ruling on a motion for continuance I es within the trial court s sound discretion. B,\ ( .o/iwaie IJe/g., \ 1. i. Maichant/, X3 S.W 3d 7X9, 7Q4 ( I cx. 2002: see a/co In re P. U.. 24k) S.W.3d 625. 647 (Tex. App. lort Worth 200S. pet. den.) (extension ol dasimssal date under section 263.401(b) similar to continuance and reviewed for abuse o I discretion). Appellant has not shown the court would have granted a timely filed written motion for continuance on the grounds she asserts or that she was in [ act harmed by the Failure to grant a continuance. Even assuming the trial court would have granted a continuance to give counsel additional time to prei e for trial as appellant urges. there is nothing in the record hetbre us to Support a conclusion that if counsel had received additional time, there was a reasonable probability that the result ol the proceedings would have been different. Accordingly, appellant has tailed to establish either prong of the Stuck/and test with respect to this complaint. 3. Soeeia/ Exceptions and Disco very Appellant also contends that her counsel s perlormance was deficient because he failed to file special exceptions to the numerous allegations in the Department s petition. Appellant asserts that as a result of counsel s failure to specially except to the pleadings he was unaware of the specific statutory grounds on which the Department based its request for termination and was unprepared for trial. The record does not support appellant s contention. The record reflects that evidence focused upon at trial by the Department was set out in a caseworker s affidavit. That affidavit, which was attached to the Department s termination petition recounted the events of June 14 and July 20, noted that appellant admitted to using marijuana to cope with things that are going on in her life at this time. 7 The affiant also tltlestk)ned appel Ltnt s alit I itv to provide a sale environilient tot her clii Idren and her ability to make decisions that are best iou the clii Idren. ineltidine her lack of h diow-up with lieu mental health, know mel v at lo\\ me a sex ollender to reside in her home, and placin the children in an unsaic cn mronmcnt aher Mmnnietield s himil\ made threats to appellant. Appellants counsel was appointed on December 6, 2011 and later attended permanency . hearings on February 14 and April I 2, as well as two mediation sessions. At the March 23 mediation, issues were raised by the Department respecting appellant s continuation with counseling, drug treatment, mental health issues. as well as her contact with any convicted sex offender, as evidenced by the agreement the parties signed. Moreover, at the beginning of the trial, counsel ior the Department stated on the record it was seeking termination based on section 161 001(1 ) D endangerment> cndangci mcnt b conditions om situ oundmng ) irni scction I 61 (>0 1(1 >( 1 )( conduct Accordingly. appellant s contention that her counsel was unaware of the grounds on which the [)epartrnent were proceeding and that he should have pursued special exceptions to learn the grounds for termination is not supported by the record. Appellant also contends that counsel was deficient because he thiled to propound formal discovery and was unprepared for trial and surprised by the Department s trial exhibits and theories. Appellant specifically references Minniefield s penitentiary packet relating to his sex offender conviction, [)allas County Sheriff records containing the number of times appellant visited Minnietield in jail, records from a drug testing agency. and expert reports and opinions from a professional counselor who treated appellant. The record before us is silent as to whether counsel propounded any discovery in this case and also does not disclose what counsel knew with respect to Minniefield s sex offenses, appellant s drug tests, visits to Minniefield, or the 8 O1fltO:flS of S ineFhcti ye &iin.ts counselor.. A.xordi.ri ply, i.rç.eihtnt has tailed br tailtiie k to e.s.t.ahi.i..sh counsel was request discovery. Additionally, appellant asserts that had her counsel made timely discovery requests early in the case, the Department s trial exhibits would have been excluded upon proper objection as being untimely because the business records allidavits and copies were dated vell withm 30 days before trial. See Tcx. R. Civ. P. 193,6, However, there is nothing the 1)epartment would not have complied with time in the record to suggest that requirements had discovery requests been made earlier. Moreover, based on the record before us, we are unpersuaded that the admission of Minniefield s criminal records evidencinu that he was a sex offender or the record of appellant s jail visits to Minnieheld prejudiced appellant s ease any more than her own admissions at trial. In her testimony, appellant admitted that at some point in 2010 she learned that Minniefield was a registered sex offender and that her children were removed from her care in 2(.) 10 based on her relationship with Minniefield. Appellant also agreed that part of the reason her children were returned to her in 2010 contact was because she agreed that she and her children would not have any with Minnietield. She also admitted that on June 14, 2011, less than one year after the 2010 case was dismissed, Minniefield was arrested at her home when her child N.T. was present. Appellant further admitted that despite signing an agreement at the March 23 meditation that she would refrain from having any contact with a registered sex offender, she had visited Minniefield in jail over sixteen times through June. Further, appellant argues that early discovery of Minniefield s criminal records would have allowed counsel to argue that appellant s children were of a different sex and age than Rule 193.6 provided that, absent a showing of good cause, or a lack of unfair surprise or unfair prejudice, a party who fads to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence material or information that was not timely disclosed. See TEX. R. ( Iv. P. 193.6. 9 Minnietields child victims. However, there is nothing in the record to indicate that appellant s counsel was unaware of the age and sex of Minniefleld s victims prior to trial We cannot detennine on this record what in counsel s failure to bring attention to the precise nature of Miriniefield s sex offenses may have been part of his trial strategy to marginalize Minniefield s impact on the case because he was currently in prison. Appellant also complains of counsel s failure to obtain early discovery of the May 25, 2012 drag test and his failure to obtain another drug test According to appellant, counsel s alleged errors left him unable to attack the objected-to, but allowed, hearsay testimony of the caseworker that appellant failed the drug test. The portions of the record relevant to this issue show the l)epartment questioned the owner of a drug testing facility about whether appellant had been tested at the owner s facility. He answered that she had and he identitied an exhibit that indicated appellant appeared fir a drug test on May 25, 2012. The exhibit was admitted without objection. However, the exhibit did not include the test results and when the owner testified he did not know the results, appellant s counsel objected to any testimony of results. The record also shows that under questioning by the Department, appellant denied using cocaine in connection with the May 25 drug test, but admitted her caseworker told her the results were positive. The Department later questioned appellant s caseworker about the positive results of the May 25 drug test, to which appellant s counsel specifically objected on the grounds that would be asking a question about results that are not in evidence. Although the trial court sustained the objection on best-evidence grounds, the caseworker subsequently testified when questioned by the Department s counsel she was concerned when the May 25, 2012 test results came back because they were positive for cocaine. mistrial, which was denied. 10 Appellant s counsel then moved for a We cannot conclude the absence ot docunientarv evidence ot whether the May 25 drur test results u crc positive prejudiced appellant s case in light of the significant evidence in the record suppoitin tennination ot her parental rights in N I We also reject appellant s complaint that counsel was ineff ective because ol his fiulure to obtain another drur test kr appellant. There is no evidence in the record ot what such a test would have revealed had it been performed or whether it would have aided or prejudiced appellant s case. Appellant has not shown that the result ol this proceeding would have been different had the results of the May 25 drug test been known or had another drug test been concluded. Finally, appellant challenges counsel s failure to obtain discovery with respect to the recommendations and opinions of appellants counselor. Appellant contends this fhilure prevented counsel from obtaining an objective risk assessment test that eould have combated the Departments subjective claims that appellant could not be protective of her children, Because there is nothing in the record to indicate what an objective risk assessment test would have revealed had it been performed, we cannot conclude appellant s counsel was ineffective for failing to obtain such a test. Accordingly we re)ect all ol appellant s ineffective assistance complaints based on counsel s failure to file special exceptions and propound discovery. 4. i rgunien/s and Questioning Based on iVon Lxistent ( oui t Order Appellant also asserts she was harmed by her counsel s failure to correct the impression created at trial that appellant was currently tinder a court order prohibiting her from contact with 5 Minniefield. Appellant s underlying assumption regarding this assertion is that if the trial court knew there was no existing court order prohibiting appellant or her children from having contact Appellant asserts this impression was created by her counsel s fiulure to object to adverse counsel s improper argument and questioning about appellant s failure to comply with non-existent court orders and appellant s counsel s own statements and questions to appellant suggesting that there were court orders prohibiting appellant from ha\ mg contact with Minniefleld. 11 with Minnietield. there was a reasonable probability that the trial court would not have terminated her parental rights. Our review ol the rccord does not support appellant s position. lucre was ample evidence that, irrespective of a court order, appellant was aware that Minniefield, a known sex offender, should not he around her children and that his presence in her home in 2010 lcd to the children s removal. Vet, less than a year later. Minniefield was arrested in her home while one of her children was present. Additionally, despite signing an agreement to refrain from any contact with any sex offenders on March 23, 2012, appellant continued to visit Minniefleld in jail regularly. On this record, we cannot say that counsel s failure to point out the absence of a specific court order prohibiting appellant s conduct prejudiced the result in this case. 5. Other hiçjleciire A.csistance Claims Appellant asserts counsel failed to object that the Department s termination petition failed to name N.T. and that no guardian and attorney ad litem had been appointed to represent her. She argues the Department was not entitled to terminate parental rights to a child not named in the tennination petition, and alternatively argues that the Department s failure to name N.T. in the termination petition was an extraordinary circumstance justifying the grant of a continuance. The record shows numerous court documents referred to both L.J. and N.T., including the July 26, 2011 Guardian Ad Litem s Original Answer, the July 26, 2011 Temporary Order removing both children, the August 29,2011 Certificate of the Court ordering payment of the ad litem attorney for representing both Li. and N.T., the December 6. 2011 Order Appointing Attorney Ad [item, the December 6, 2011 Chapter 263 Permanency Hearing Order, and the April 24, 2012 Chapter 263 Permanency Hearing Order. The record also shows the attorney general s petition to establish the paternity as to N.T. and the trial court s tennination decree 12 tinder the snie trial court cause numher as the paterility suit. Iven assuming. without decidine. counsel s act ions were deficient, appellant has not established there is a reasonable probability that, hut kr eoiuisel s unprotessional error(s) the result of the proceeding would have been diuiereru Sce In ic 4i..S, 115 SW3d at 5495O Appellant also complains about her counsel s questioning at trial of a caseworker and appellants aunt. She asserts this quesitoning elicited damacing evidence that appellant had reftised to take a drug test and that the aunt had called the police on June 14, 2() 11 because Minnielield vas allegedly heating appellant Appellant also dnects tis to questions her counsel asked her at trial, including what she would do if Minniefield came to her home and started molesting her children. She hlirther attacks counsel s failure to point out that appellant did not sign the family service plan and the lack of evidence it was ever served on her after the Department claimed she hitled to comply with the plan. Additionally, appellant complains ot counsels failure to present any evidence of her plan compliance. Based upon this record, we cannot agree with appellant that these alleged deficiencies pre)udiced the outcome ot her case such that she was deprived ol a fair trial, a trial whose result is reliable .See In re M.S., 115 S.W.3d at 545 (quoting Strickland v. Washington, 466 U.S. 668, 6X7 (1984)). The [)epartment s main tbcus throughout the termination pi oceeding was appellant s inability to adequately protect her children as evidenced by her continued contact with a knciwn sex offender even after various services were provided to her to help her make appropriate decisions to create a safe environment for her children. Flowever, the record shows every issue reviewed by the Department was countered by appellant s counsel. For example, the caseworker testified that appellant admitted to the caseworker that Minniefield slept in the only bed in the apartment with the children separated by appellant. Counsel questioned appellant 1,, I _) about the caseworker s ebim, and appellant had the opportunity to deny it. As to appellant s drug use, which was relevant to the question of whether appellant was adequately protecting the children, at tile beginning of trial, appellant s counsel sought a continuance specifically requesting additional time to obtain another drug test for appellant. That request was denied by the trial court. Throughout the trial, appellant s counsel thoroughly cross-examined the Department s witnesses and took two witnesses on voir dire regarding certain testimony. He made numerous objections to testimony, many of which were sustained. Counsel made an oral motion for a mistrial after a caseworker testified to the results of the drug test that was not in evidence. We conclude the record here is insufficient to overcome the presumption that counsel s performance was competent. See In iv MS.. 115 S.W.3d at 145. Next, appellant asserts counsel s representation was insufficient because he failed to present evidence of several factors that were relevant to the whether termination was in the best interest of the children. See IIoIlev v. .4 darns, 544 S.W.2d 367 (Tex. 1976). Once again, the record does not reveal what the purported evidence would have been or whether it would have supported appellant s position. Therefore, we cannot conclude appellant was prejudiced by counsel s fhilure to present such evidence. Finally, appellant also argues that counsel should have objected to the Department s rejection of placement of the children with appellant s aunt because of the aunt s need for financial support. However, there is no evidence that the Department rejected placement with the aunt on this basi& Among other things, the caseworker testified her main concern with the aunt was that she appeared at the last minute, less than one month before trial. Further, the caseworker stated that to be able to care for the children, the aunt would need financial assistance, which the Department could not provide immediately for placement with a relative. 14 Ihe caseworker also testified the aunt initially expressed hesitancy about taking custody of Li. because the aunt was not related [ I .1 We conclude appellant has not met her burden with respect to this inefiective assistance complaint. ilavine rejected all of appellant s inetThcti c assistance complaints, we turn to her due process complamts. B. flIJE PROCESS In her second issue. for the first time on appeal. appellant complains her due process rights were violated because (I) NJ. was not named in the order removing the children or in the termination petition. (2) she was not given t&ty tive days meaningful notice of the July 5 trial date afler the Department al legedlv repudiated the March 23 mediated settlement agreement, and (3) the Department repeatedly misrepresented that appellant was in violation of a court order prohibiting her or her children from having contact with Minniefield when no such court order existed. Our review of the record reveals that none of appellant s due process complaints were ever presented to the trial court. to preserve most issues for review, a party must bring the issue to the trial court s attention by timely request, oblection, or motion. See TEX. R. App. P. 33.1. Even constitutional claims can he waived by fiuiling to raise them in the trial court below. See In re L,M.J., 119 S.W.3d 707, 708 (Tex. 2003) ( {Ajdhering to our preservation rules isn t a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose ). In fact, our review of possible reversible error never presented to the trial court would undermine the legislative intent to ensure finality in termination proceedings and expedite the resolution of these cases. See In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003). Because appellant failed to raise her due process complaints in the trial court, she has failed to preserve 15 these issues for our review Sec Id. it 349- 50. Accordingly, we resotvc appehlants second issue nst her. ill. CONCLUSiON I lavine rcsol cU appellant s 121284 VPO5 i o issues against J hicr. e at hirin the trial court s udgmciit. QtDItrt F1tt1! Jitrirt of Apira1 ru !Lxa at Ja11a; JUDGMENT IN 1i1I Ii TERhSi ()F NF, A CHILD On Appeal from the 256th Judicial District Court, I )allas County. Texas Trial Court ( ause No. DF 1 1 M0657-Z. Opinion delivered by Justice Ling Chief Justice Wright and Justice Evans participating. No. 05I20l2X tCV In accordance with this Court s opinion ot this date, the iudgment of the trial court is AFFI I{Ni Fl). Jurlgnient entercd this Ith of March 2013. I ,__4_. J-- .. Dul (I \ S. I \\( II S I 1(11 - - ii /i
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