528 S.W.3d 251
Tex. App.2017Background
- In 2015 the Department of Family and Protective Services removed Erin (age 2) after investigations revealed Mother’s methamphetamine use, missed psychological evaluation and treatment, and unstable placements; Mother admitted to drug use and had criminal and family-violence incidents in the record.
- Erin was placed with a foster/placement family; the Department filed a suit to terminate Mother’s parental rights and sought conservatorship.
- Mother’s retained counsel failed to appear at (1) an adversary (emergency-removal) hearing in Sept. 2015 and (2) a March 2016 hearing on the Department’s motion to modify visitation; Mother later obtained new retained counsel who withdrew, then requested and received court‑appointed counsel for trial.
- At a bench trial with appointed counsel representing Mother, the trial court terminated Mother’s parental rights under Tex. Fam. Code § 161.001(1)(E) (endangerment) and (O) (failure to comply with service plan), and found termination was in Erin’s best interest; the Department was appointed sole managing conservator.
- On appeal Mother challenged (A) the sufficiency of the evidence supporting the emergency removal/order and (B) ineffective assistance by her retained counsel for failing to appear at the two pretrial hearings.
- The court held Mother’s challenge to the emergency-removal temporary orders was moot (no mandamus was sought) and rejected the ineffective-assistance claim after applying Strickland prejudice analysis, concluding the record independently supported termination under subsection (E) and best interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for emergency removal/temporary order | Mother: Department failed to show Erin was in imminent danger or exigent circumstances at removal | Department: Temporary orders reviewable by mandamus; Mother did not pursue mandamus; matter moot after final judgment | Court: Dismissed as moot; Mother could have sought mandamus and did not, so issue overruled |
| Ineffective assistance of retained counsel / right to challenge retained counsel | Mother: Statutory right to counsel under Fam. Code §107.013(a‑1) implies right to effective counsel; retained counsel’s nonappearance prejudiced her case | Department: Non‑indigent parent with retained counsel cannot claim ineffective assistance; §107.013 only protects indigent parents | Court: §107.013 grants non‑indigent parents a statutory right to counsel; ineffective‑assistance claims apply to retained counsel and Strickland standard governs, but here Mother failed Strickland prejudice prong; claim overruled |
Key Cases Cited
- Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18 (1981) (due process balancing for appointment of counsel in parental‑termination suits)
- Cuyler v. Sullivan, 446 U.S. 335 (1980) (ineffective‑assistance framework tied to right to counsel)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance: deficient performance and prejudice)
- In re M.S., 115 S.W.3d 534 (Tex. 2003) (Texas Supreme Court applying right to effective counsel for appointed counsel in termination suits)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (standard for termination: clear and convincing evidence and review approach)
- In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (defining "clear and convincing" standard in termination cases)
- In re A.V., 113 S.W.3d 355 (Tex. 2003) (only one statutory predicate finding under §161.001(1) plus best interest required for termination)
- Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) (parental rights are fundamental but not absolute)