COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-300-CV
IN THE INTEREST OF M.C.,
A CHILD
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Appellant L.B. appeals from the termination of her parental rights to her son,
M.C. Because we hold that the trial court found that Appellant understood the
service plan and proceedings; that even if the law required her to be competent, the
record does not raise a bona fide doubt of her competence; and that she has not
proved that her trial counsel was ineffective for failing to request a competency
evaluation, we affirm the trial court’s judgment.
Background Facts
At the initial adversarial hearing held June 25, 2008, the following transpired:
1
See Tex. R. App. P. 47.4.
THE COURT: All right. So you do not have an attorney to
represent you. Is that correct, ma’am?
[APPELLANT]: Yes.
THE COURT: All right. It’s my understanding that you have had
an opportunity to review the proposed order that
has been submitted to the court and further my
understanding that you have agreed to that order.
Is that correct?
[APPELLANT]: Yes.
THE COURT: You do understand that you have the right to retain
an attorney, to hire an attorney to advise you before
you enter into any agreement before the court?
[APPELLANT]: Yes.
THE COURT: And further, if you were indigent, if you were truly
too poor to hire an attorney, the court would appoint
one to represent you in this type of case. Do you
understand that?
[APPELLANT]: Yes.
THE COURT: And despite the fact that you do not have an
attorney here today, you’re asking the court to go
ahead with this hearing and approve the agreed
temporary order which has been presented. Is that
correct?
[APPELLANT]: Yes.
Next, Appellant was questioned by the attorney for the Texas Department of
Family and Protective Services (TDFPS):
Q. . . . I introduced myself with [sic] you this afternoon. Is that
correct?
2
A. Yes.
Q. And I explained to you what the purpose of the hearing today
was. Is that correct?
A. Yes.
Q. And in doing that, I told you that you had four options on how to
proceed with the hearing today. Do you recall that?
A. Yes.
Q. And I told you that you could apply to the court for a
court-appointed attorney.
A. Yes.
Q. It being that you’re homeless and that you don’t have a job at this
time that you would very likely qualify?
A. Yes.
Q. Okay. And I also told you that you could inform the court that
you wanted the hearing to be reset so you could have time to
hire an attorney on your own if you would like. Is that correct?
A. Yes.
Q. And the other two options I gave you was to have an opportunity
to go over the order with Cassidy Baker, the CPS supervisor, and
you could make a decision on whether you agreed with the order,
and if you agreed with the order, you could sign that you agreed
and we’d have a short hearing in front of the court. Do you recall
that?
A. Yes.
Q. And the last option I gave you was if you did not agree with the
order that you could represent yourself today and ask the judge
to make an independent decision on whether she believed that
your child needed to stay in care. Is that correct?
3
A. Yes.
Q. And you’ve decided that you’re in agreement with [M.C.]
remaining under the conservatorship of the Department at this
time. Is that correct?
A. Yes.
Q. And prior to you signing the paperwork, we gave you an
opportunity to sit down with your friend David and discuss the
paperwork with him if you had any questions or if you wanted his
input. Is that correct?
A. Yes.
Q. Okay. Now, you’ve been previously diagnosed with a mental
illness. Is that correct?
A. Yes.
Q. And which mental illness is that, ma’am?
A. Bipolar.
Q. And are you currently taking your medication?
A. No.
Q. Do you feel that your failure to take your medications affects your
thinking process in any way?
A. Yes.
Q. Do you feel that it’s affected your thinking process today for this
hearing?
A. No.
Q. Okay. So you believe that you’re fully capable of making a
decision on whether or not to agree with the orders?
4
A. Yes.
Q. Okay. And I also asked you if you received a copy of the petition
that was filed by the Department when you were served with your
papers.
A. Yes.
Q. And you did receive that, correct?
A. Yes.
Q. And you have had an opportunity to read the petition as well,
haven’t you?
A. Yes.
Q. And you did read the petition?
A. Yes.
Q. And you understand that at this point forward if you don’t
complete the services that the Department is asking you to
complete successfully and if the Department does not feel it’s
safe to return [M.C.] to your care, that the Department would be
asking the court for termination of your parental rights?
A. Yes.
Q. W hen is the last time you’ve spoken with [M.C.]’s father, [A.C.]?
A. Saturday.
Q. And how did you have contact with him?
A. I left a voice message on his cell phone.
Q. Okay. And you recently came to Texas from Oklahoma. Is that
correct?
A. Yes.
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Q. And [M.C.] was born in Oklahoma?
A. Yes.
Q. And when he was born in Oklahoma, were you living with his
father, [A.C.]?
A. Yes.
Q. Okay. And [A.C.] and you are not legally married. Is that
correct?
A. Yes.
Q. But you believe he is the father?
A. Yes.
Q. Do you have any doubt in your mind that [A.C.] is the father of
[M.C.]?
A. No.
Q. And you completed an affidavit of status stating that you believe
he is the father, correct?
A. Yes.
Q. And has [A.C.] accepted [M.C.] as his child?
A. Yes.
Q. Has he expressed to you that he believes he is [M.C.]’s father?
A. Yes.
Q. Is his name on the birth certificate in Oklahoma?
A. Yes.
6
Q. W hat is your understanding of why [M.C.] came under the care
or into the care of the Department?
A. Because I wasn’t supervising him enough and I wasn’t paying
attention to him.
Q. And [M.C.] was born in April of this year. Is that correct?
A. That’s correct.
Q. And where are you currently living?
A. I’m homeless.
Q. And when you came—since you’ve come back to Texas in June
of this year, have you been homeless the entire time?
A. No. I was staying with Friends of the Family for a while.
Q. Okay. And then you left Friends of the Family on your own. Is
that correct?
A. That’s correct.
Q. W hen you left Friends of the Family, you left with [M.C]. Is that
correct?
A. That’s correct.
Q. Have you been employed in any manner since you’ve been back
to Texas?
A. No.
Q. So you did not have the financial resources to care for [M.C.], did
you?
A. That’s correct.
Q. Okay. And [M.C.] was hospitalized after he was born at Cushing
Regional Hospital. Is that correct?
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A. That’s correct.
Q. Can you tell us what led up to the hospitalization?
A. He had a sore on his knee, and it turned out to be like a —they
said it was either a burn or a chemical burn.
Q. Okay. Do you know what could have caused the chemical burn?
A. It was—what his grandfather told me, because I had let his
grandfather watch [M.C.] for a few minutes and he put him down
on his couch, which [M.C.] put his knee underneath the couch
and started rubbing. And he didn’t notice that until after he
picked [M.C.] up.
....
Q. Does [A.C.] use illegal drugs?
A. Yes.
Q. W hich drugs?
A. Toluene.
Q. And toluene is?
A. Paint thinner.
Q. Okay. And he huffs it?
A. Yes.
Q. And how often does [A.C.] use or huff toluene?
A. Every day.
Q. Did you ever leave [M.C.] in his care?
A. No.
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Q. W as—did [A.C.] support you financially while you were pregnant
with [M.C.]?
A. No.
Q. During your pregnancy, where did you live?
A. A hotel.
Q. W as that here in Texas?
A. Yes.
Q. And where at? In Denton or another city?
A. Denton.
Q. And how did you take care of yourself during your pregnancy?
A. I had another friend of mine take care of me, and I was raking
leaves.
Q. Okay. And where was [A.C.] when you were living in the hotel
during your pregnancy?
A. In jail.
Q. And was he in jail for huffing?
A. Yes.
Q. Towards the end of your pregnancy, did you go to live with [A.C.]
in Oklahoma?
A. Yes.
Q. And did he help support you then?
A. No.
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Q. W ho was supporting you when you were living with him in
Oklahoma?
A. His grandfather.
....
Q. Okay. Do you feel that [A.C.] would be an appropriate caretaker
of [M.C.]?
A. No.
Q. W hy not?
A. Because he does the drugs and I don’t trust him.
Q. Okay. W as [A.C.] ever abusive to you?
A. Yes.
Q. In what ways?
A. Physical.
Q. How would he physically abuse you?
A. He would throw me down, he would choke me, he would hit me
with his fist, and he would throw spray paint on me.
Q. W hen he—was he physically abusive to you while you were
pregnant . . . ?
A. No.
Q. W hen some of those times—or during any of those times, when
he was physically abusive to you, throwing you down, hitting you,
or choking you, was [M.C.] in the room?
A. No.
Q. W ere you ever holding [M.C.] when he was abusive to you?
10
A. No.
Q. Okay. And you read the order, and you understand all the
services the Department is asking you to complete?
A. Yes.
Q. And you understand how important it is for you to complete those
services?
A. Yes.
Q. And you understand that if you have any questions about your
services or if you have problems calling your service providers or
getting there that you need to communicate to your case worker?
A. Yes.
[TDFPS ATTORNEY]: Pass the witness.
THE COURT: Do you have any other testimony that you wish to
offer, ma’am?
[APPELLANT]: No.
Next, someone appearing on behalf of the M.C.’s ad litem questioned
Appellant:
Q. . . . . Do you understand that under these orders that you’re not
going to be the primary caretaker of your son [M.C.]?
A. Yes.
Q. And do you also understand that under these orders that your
contact with your son is going to be limited to supervised
visitation at least on a temporary basis?
A. Yes.
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Q. Okay. And do you agree that these orders are in the best
interest of your son?
A. Yes.
After the questioning, the trial court advised Appellant:
THE COURT: Okay. Then based upon what has been presented,
the court will approve the agreed temporary order
and I will sign that order. I do need to advise you,
[Appellant], that the CPS service plan is a very
important document. Its purpose is to help you
provide your child with a safe environment within a
reasonable period specified in the plan. If you are
unwilling or unable to provide your child with a safe
environment, your parental or custodial duties or
rights could be restricted or terminated. Do you
understand that?
[APPELLANT]: Yes.
THE COURT: Okay. It’s important that you get a copy of this
order before you leave here today because it tells
you not only what is required of you but it also tells
you when the next hearing will be. So you need to
have a seat, and once you’ve received your copy of
it today, then you’re free to go for today, okay?
[APPELLANT]: Okay.
Appellant also appeared at the status hearing held August 7, 2008. The
following transpired:
THE COURT: Okay. [Appellant] is here and—where is
[Appellant]?
Okay. And you have agreed—have had an
opportunity to review the status hearing order which
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has been submitted to the court. It appears as
though you are agreed to it. Is that correct?
[APPELLANT]: Yes, ma’am.
THE COURT: You do not have an attorney to represent you at this
time?
[APPELLANT]: Right.
THE COURT: Okay. I’ll start with you. You do understand, and I
probably told you before, that you have the right to
hire an attorney to represent you before you enter
into any agreements in this case. Do you
understand that?
[APPELLANT]: Yes.
THE COURT: If you applied to the court and could show that you
were indigent, you would be entitled to a
court-appointed attorney to represent you. Do you
understand that?
[APPELLANT]: Yes.
THE COURT: And despite the fact that you do not have an
attorney to represent you today, you wish to enter
into this agreement and have it become the order of
the court. Is that correct?
[APPELLANT]: Yes.
....
THE COURT: Have you filled out paperwork for a court-appointed
attorney?
[APPELLANT]: W e both have.
THE COURT: You both have. Okay. W hy don’t you present
those to me.
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....
[APPELLANT]: He hasn’t finished his.
....
THE COURT: . . . . Understanding that now, [Appellant], you’ve
filled out a form requesting a court-appointed
attorney. However, are you still wanting to agree to
this order for today and have a court-appointed
attorney for any future hearings?
[APPELLANT]: Yes.
THE COURT: That is what you want to do?
[APPELLANT]: Yes.
Next, the attorney for TDFPS questioned Appellant:
Q. . . . [Y]ou’ve had an opportunity to sit down with your case worker
Amy Yi and go over the service plan?
A. Yeah.
Q. Regarding the services you need to complete, correct?
A. Correct.
Q. And you understand those services?
A. Yes.
Q. And you understand the importance of those services?
A. Yes.
Q. You understand that if you do not successfully complete those
services that the Department may recommend or proceed with
termination of your parental rights to [M.C.]?
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A. Yes.
....
THE COURT: Ma’am, since you are essentially representing
yourself here today for the purposes of this hearing,
is there any other testimony that you wish to offer?
[APPELLANT]: No.
At the end of the hearing, the following occurred:
THE COURT: Okay. [Appellant], do you have anything further you
wish to bring before the court today?
[APPELLANT]: No.
....
THE COURT: Okay. Then based upon everything that’s
presented, including the CASA report which I have
had an opportunity to review, the court will approve
and sign the status hearing order which has been
submitted that is agreed to by all parties.
I do need to advise . . . you, [Appellant] . . . that the
CPS service plan is a very important document. Its
purpose is to help you provide your child with a safe
environment within a reasonable period specified in
the plan. If you are unwilling or unable to provide
your child with a safe environment, your parental
and custodial rights could be terminated or
restricted.
Do you understand that, [Appellant]?
[APPELLANT]: Yes.
....
15
THE COURT: Okay. Both of you need to get a copy of this order
before you leave here today because it’s going to
notify you of when the next hearing is.
....
I’m going to try to go ahead and appoint you
somebody, [Appellant], that you can talk to before
you leave here today. So if you’ll just have a seat,
when y’all get these—your copies of this order and
we have the attorney issue resolved, then you’re
free to go, okay?
[APPELLANT]: Okay.
Appellant did not personally appear at any of the remaining hearings, including
the bench trial, but she was represented by counsel at all of them.
Section 263.202 Finding
In her first point, Appellant complains that the trial court failed to make a
finding under section 263.202 of the family code that she understood the service
plan and proceedings which may result in a restriction or termination of her parental
rights to M.C. 2 But, as TDFPS points out, the trial court did find in its first status
hearing order that Appellant
has reviewed and understands the service plan and has been advised
that unless she is willing and able to provide the subject child with a
safe environment, even with the assistance of a service plan, within the
reasonable period of time specified in the plan, her parental and
custodial duties and rights may be subject to restriction or to
termination or the subject child may not be returned to her.
W e therefore overrule Appellant’s first point.
2
See Tex. Fam. Code Ann. § 263.202(b)(2) (Vernon 2009).
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No Bona Fide Doubt of Appellant’s Competency
In her second point, Appellant contends that the trial court should have sua
sponte ordered a competency evaluation for her because of evidence that her
bipolar disorder was untreated and also argues that the trial court’s failure to order
the competency evaluation was fundamental error and violated her rights to due
process. As TDFPS points out, the family code does not prescribe a competency
standard that parents must meet before participating in a hearing or trial. 3 W ithout
engrafting such a standard on the family code, we conclude that even if parents in
Texas were required to be competent or were entitled to a competency evaluation
before termination proceedings, Appellant’s arguments would fail.
Appellant appears to equate untreated bipolar disorder with incompetency, but
they are not the same. In criminal law, to which Appellant likens the termination
proceeding, a person is incompetent if she does not have (1) sufficient present ability
to consult with her lawyer with a reasonable degree of rational understanding or (2)
a rational as well as factual understanding of the proceedings against her. 4 As the
Texas Court of Criminal Appeals has explained,
If a trial judge has a bona fide doubt about the competency of the
defendant, he or she shall conduct an informal inquiry to determine if
there is evidence that would support a finding of incompetence. A bona
3
See In re E.L.T., 93 S.W .3d 372, 375 (Tex. App.—Houston [14th Dist.]
2002, no pet.).
4
Tex. Code Crim. Pro. Ann. art. 46B.003(a) (Vernon 2006); Montoya v.
State, 291 S.W .3d 420, 425 (Tex. Crim. App. 2009).
17
fide doubt may exist if the defendant exhibits truly bizarre behavior or
has a recent history of severe mental illness or at least moderate
mental retardation. 5
But we have reviewed the entire record, including Appellant’s testimony at the two
hearings she attended, the testimony of two CPS caseworkers and the CPS
investigator, the CASA supervisor’s testimony, and Appellant’s MHMR records, and
we conclude that the record does not demonstrate sufficient evidence to raise a
bona fide doubt in the trial court’s mind about Appellant’s competency to stand trial. 6
Accordingly, even if the law did recognize a parent’s right to have a competency
evaluation at any stage of the termination proceeding, we hold that nothing in this
record would trigger that right for Appellant. W e overrule Appellant’s second point.
No Ineffective Assistance of Counsel
In her third point, Appellant contends that her trial counsel was ineffective for
failing to request a competency evaluation below. Because we have already held
that nothing in the record shows a bona fide doubt as to Appellant’s competency, we
hold that Appellant’s claim of ineffective assistance of counsel fails. 7 W e overrule
her third point.
5
Montoya, 291 S.W .3d at 425.
6
See id.
7
See In re J.O.A., 283 S.W .3d 336, 343 (Tex. 2009); In re M.S., 115 S.W .3d
534, 549 (Tex. 2003).
18
In her fourth point, Appellant contends that requiring postjudgment testimony
by trial counsel to support an appellate claim of ineffective assistance when an
appellate record is not yet available violates a parent’s due process rights by denying
her an effective appeal. Because we have already held that the record
demonstrates no bona fide doubt of Appellant’s competency and that her claim of
ineffective assistance fails for that reason, we overrule her fourth point.
Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, W ALKER, and MCCOY, JJ.
DELIVERED: May 27, 2010
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