ACCEPTED
05-18-01328-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/21/2019 3:11 PM
LISA MATZ
5th Court of Appeals
CLERK
FILED: 01/23/2019
Lisa Matz, Clerk
No. 05-18-01328-CV
14:23:11
RECEIVED IN
5th COURT OF APPEALS
In the Court of Appeals DALLAS, TEXAS
Fifth District of Texas 1/22/2019 12:00:00 AM
at Dallas, Texas LISA MATZ
Clerk
In the Interest of J.S., Jr., et al, Children
On appeal from the 304th Judicial District Court
of Dallas County, Texas
the Honorable Andrea Martin, Judge Presiding
Cause No. 13-877-W
Brief of Appellant Father
Counsel of record:
April E. Smith
State Bar No. 18532800
P.O. Box 870550
Mesquite, Texas 75187-0550
972-613-5751
972-686-4714 (Fax)
april@aesmithlaw.com
Identity of Parties and Counsel
Presiding Judge: Andrea Martin
Parties to the Appeal:
K.R., Mother
J.S., Father
J.S., Jr. and S.S., Children
The Texas Department of Family and Protective Services
Trial Counsel:
Yewande Adelumo, State Bar No. 24097276
Assistant District Attorney
2600 Lone Star Drive, LB 22
Dallas, TX 75212
(Counsel for the Department, Petitioner)
Robert James Herrera, State Bar No. 09530300
P.O. Box 600230
Dallas, TX 75360-0230
(Counsel for Father)
Irene Mugambi, State Bar No. 00796019
2720 Stemmons Frwy., Suite 711, South Tower
Dallas, TX 75207-2203
(Counsel for Mother)
ii
Delia Gonzales, State Bar No. 24034461
2213 Boll St.
Dallas, TX 75204-2613
(Guardian/Attorney ad Litem for the Children)1
Appellate Counsel:
April E. Smith, State Bar No. 18532800
P.O. Box 870550
Mesquite, Texas 75187-0550
(Counsel for Father)
John Creuzot, Dallas County District Attorney
State Bar No. 05069200
Appellate Division
133 N. Riverfront Blvd., LB 19
Dallas, TX 75207-4399
(Counsel for the Department, appellee)
1
Gonzales is now an Associate Judge for the Dallas County Family Courts. Further, the trial
court appointed CASA as the children’s representative after the hearing. (CR: 1096). Thus, the
children are not currently represented by counsel.
iii
Table of Contents
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issue One
The trial court abused its discretion by entering judgment on the Rule 11
Agreement because there was no evidence that Father’s counsel had
authority to enter into the agreement.
Issue Two
The evidence is legally insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Issue Three
The evidence is factually insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Issue Four
The evidence is legally insufficient to support the best interest finding.
Issue Five
The evidence is factually insufficient to support the best interest finding.
Issue Six
Father received ineffective assistance of counsel.
iv
Issue Seven
The evidence is legally and factually insufficient to support the
appointment of CPS as the managing conservator.
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Issue One, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Issue Two, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Issue Three, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Issue Four, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Issue Five, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Issue Six, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Issue Seven, Restated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Exhibit One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decree of Termination
Exhibit Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 11 Agreement
Exhibit Three . . . . . . . . . . . . . . . . . Letter from Father to Appellate Counsel
v
Index of Authorities
CASES PAGE
Behzadpour v. Bonton,
No. 14-09-01014-CV, 2011 Tex. App. LEXIS 565,
2011 WL 304079, at *3 (Tex. App. – Houston [14th Dist.]
Jan. 27, 2011, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
City of Roanoke v. Town of Westlake,
111 S.W.3d 617 (Tex. App. – Fort Worth 2003, pet. denied) . . . . . . . 13-15
Ebner v. First State Bank of Smithville,
27 S.W.3d 287 (Tex. App. – Austin 2000, pet. denied) . . . . . . . . . . . . . . . 14
Foreca, S.A. v. GRD Dev. Co.,
758 S.W.2d 744 (Tex. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Garcia v. State,
57 S.W.3d 436 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Holley v. Adams,
544 S.W.2d 367 (Tex. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27
In re C.H.,
89 S.W.3d 17 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 24, 25
In re H.R.M.,
209 S.W.3d 106 (Tex. 2006) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . 27
In re J.A.J.,
243 S.W.3d 611 (Tex. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31
vi
In re J.F.C.,
96 S.W.3d 256 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21
In re J.O.A.,
283 S.W.3d 336 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In re J.R.W.,
No. 14-12-00850-CV, 2013 Tex. App. LEXIS 1396,
2013 WL 507325, at *12 (Tex. App. – Houston [14th Dist.]
Feb. 12, 2013, pet. denied) (mem. op.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
In re J.T.G.,
121 S.W.3d 117 (Tex. App. – Fort Worth 2003, no pet.) . . . . . . . . . . . . . . 25
In re J.W.,
152 S.W.3d 200 (Tex. App. – Dallas 2004, pet. denied) . . . . . . . . 24, 25, 27
In re N.K.,
99 S.W.3d 295 (Tex. App. – Texarkana 2003, no pet.) . . . . . . . . . . . . . . . 25
In re S.N.,
287 S.W.3d 183 (Tex. App. – Houston [14th Dist.] 2009, no pet.) . . . . . . . 18
In the Interest of M.S.,
115 S.W.3d 534 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
In the Interest of S.J.T.B.,
No. 09-12-00098-CV, 2012 Tex. App. LEXIS 9445, 2012 WL 5519208,
at *11 (Tex. App. – Beaumont Nov. 15, 2012, no pet.) (mem. op.) . . . . . . 28
Padilla v. LaFrance,
907 S.W.2d 454 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) . . . . . . . . . . . . . . 18
vii
Spring Garden 79U, Inc. v. Stewart Title Co.,
874 S.W.2d 945 (Tex. App. – Houston [1st Dist.] 1994, no writ) . . . . . . . 15
Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) . . . . . . . . . . . . . . 28
SW Bell Tel. Co. v. Vidrine,
610 S.W.2d 803 (Tex. Civ. App. – Houston [1st Dist.]
1980, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
W. Beach Marina, Ltd. v. Erdeljac,
94 S.W.3d 248 (Tex. App. – Austin 2002, no pet.) . . . . . . . . . . . . . . . . . . 14
STATUTES
TEX. FAM. CODE ANN. § 101.007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
TEX. FAM. CODE ANN. § 107.013(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
TEX. FAM. CODE ANN. § 153.131(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE ANN. § 161.001(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
TEX. FAM. CODE ANN. § 161.001(b)(1)(Q) . . . . . . . . . . . . . . . . . 11, 21-23, 29, 30
TEX. FAM. CODE ANN. § 161.001(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 24
TEX. FAM. CODE ANN. § 161.207(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
RULES
TEX. R. CIV. P. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
viii
To the Honorable Court of Appeals:
Comes now, J.S., appellant, and respectfully submits this brief urging error
from a judgment terminating his parental rights.
Statement of the Case
The Texas Department of Family and Protective Services (the “Department”
or “CPS”) filed a motion to modify in a suit affecting the parent-child relationship.
(CR: 455). Throughout the case, Father was incarcerated in Federal prison. (CR:
911-912; RR-1: 25-26). The children were returned to Mother’s care pursuant to the
monitored return provisions. (CR: 862-864). The return failed and the Department
filed a motion to modify temporary orders. (CR: 865-878). Father wrote to the court
and was appointed counsel. (CR: 919-922). Counsel filed pleadings on Father’s
behalf. (CR: 924-930; 996-1002; 1003-1004). A Rule 11 Agreement was signed by
Father’s counsel on Father’s behalf. (CR: 1092-1095). Pursuant to the Rule 11
Agreement, a placement hearing was held and placement with Luz Reyes was denied
by the court. (CR: 1108-1115; RR-1: 167-169). Pursuant to the Rule 11 Agreement,
the court terminated Father’s parental rights pursuant to Section 161.001(b)(1)(Q) and
best interest. (CR: 1093; RR-1: 168). Notice of Appeal was timely filed. (CR:
1124).
1
Issues Presented
Issue One
The trial court abused its discretion by entering judgment on the Rule 11
Agreement because there was no evidence that Father’s counsel had
authority to enter into the agreement.
Issue Two
The evidence is legally insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Issue Three
The evidence is factually insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Issue Four
The evidence is legally insufficient to support the best interest finding.
Issue Five
The evidence is factually insufficient to support the best interest finding.
Issue Six
Father received ineffective assistance of counsel.
Issue Seven
The evidence is legally and factually insufficient to support the
appointment of CPS as the managing conservator.
Statement of the Facts
A hearing was held regarding placement of the children with L.R., a paternal
aunt. (RR-1: 8-9). The CPS worker, Kenecia Cook, testified that the children were
removed from the managing conservator, E.L., after she tested positive for
2
methamphetamine and reports of domestic violence. (RR-1: 9, 27). Father was
incarcerated at the time. (RR-1: 10). Mother was granted a monitored return but it
was unsuccessful and the children were returned to foster care. (RR-1: 10). Cook
testified as to the elements of the Rule 11 Agreement: a home study on L.R.; if
denied, a placement hearing; if the children were placed with L.R., she would be the
managing conservator and the parents would be possessory conservators (after Father
is adjudicated); if the children were not placed with L.R., the parents’ rights would
be terminated on “O” grounds for Mother and “Q” grounds for Father and best
interest of the children. (RR-1: 10-14). Cook testified that the agreement was in the
children’s best interest. (RR-1: 13-14).
Father was not responsible for any of the removal facts. (RR-1: 14). Father
communicated with Cook and indicated he would like L.R. to be considered for
placement of the children. (RR-1: 15). Father had been incarcerated on a federal
drug-related charge since 2016. (RR-1: 25-26).
Cook testified that the home study on L.R. was denied due to her criminal
history (on federal parole for drug distribution), financial issues and not being
forthcoming with information (denied emotional or physical abuse and denied having
played a role in the drug case). (RR-1: 18-19, 24). L.R. has been separated from her
abusive husband for 14 years. (RR-1: 20). L.R.’s 14-year-old daughter, D.R., lives
3
with her. (RR-1: 21). L.R. has no CPS history and is drug-tested monthly. (RR-1:
21). L.R. is employed full-time. (RR-1: 21-22). L.R. was convicted for selling
drugs, not using them. (RR-1: 24). The fact that L.R. and Father were convicted for
the same type of offense and remain in close contact is concerning to the Department.
(RR-1: 26).
Cook testified the children had no bond with Father. (RR-1: 28). Cook said
the children did not know L.R. despite them having contact when they lived with E.L.
(RR-1: 30-31). L.R. also knows maternal grandmother about whom there are
concerns of drug usage. (RR-1: 31).2 It was also concerning that L.R. had a
relationship with E.L. who also used drugs. (RR-1: 32). If the children were placed
with L.R., they would be moved from a foster home in which they have been for
almost two years. (RR-1: 34). Cook did not support placement with L.R. (RR-1:
34). L.R. had not seen the children since 2016 when they lived with E.L.; L.R.
requested visitation but was denied by the Department. (RR-1: 35, 40-41).
The Department was also concerned with L.R.’s mental health due to her being
diagnosed with anxiety, depression and insomnia. (RR-1: 35). L.R. takes medication
for her issues. (RR-1: 35, 42). One of the children, S.S., has some learning
difficulties that require someone to work with her. (RR-1: 35-36). During the home
2
L.R. is married to maternal grandmother’s brother. (RR-1: 31).
4
study, L.R. was remodeling the home and there were exposed wires, an exposed water
heater and the bathroom sink was not working properly. (RR-1: 36). The Department
was also concerned with L.R.’s ability to financially care for the children as there was
only about $300 extra per month. (RR-1: 37). The Department did not believe that
L.R. would be protective of the children upon Father’s release from prison. (RR-1:
36-37). The initial criminal check on L.R. indicated “no hit”; however, L.R. self-
reported her federal parole status. (RR-1: 39-40). Had she not done so, the
Department would not have known about it. (RR-1: 40). L.R.’s hair strand drug test
was negative. (RR-1: 40).
L.R. testified that she was Father’s aunt. (RR-1: 49). She has worked for the
same company for two years. (RR-1: 50). She would be able to add the children to
her health insurance without any extra expense. (RR-1: 50). She has resided in her
home for 18-years. (RR-1: 50). She replaced the flooring in her home that was
damaged by a water leak. (RR-1: 51). A hole in the roof and a hole in the sheetrock
was repaired. (RR-1: 51). She bought bunk beds for the children. (RR-1: 51). The
laundry room and living room ceiling were also repaired. (RR-1: 51). The front door
was repainted and the faucets were replaced. (RR-1: 52). The bathroom and kitchen
have been child-proofed. (RR-1: 52-53). She provided receipts and photographs of
the home repairs. (RR-1: 54; Exhibit 3). She was incarcerated for 37 months
5
beginning in 2013 and is on federal probation. (RR-1: 55-56). She is considered low
risk and reports online monthly. (RR-1: 56). She is fulfilling the terms of her
probation. (RR-1: 56).
While she was incarcerated, she obtained her GED, took parenting classes, an
agricultural class via SMU, she participated in 18 months of trauma classes and she
completed drug education classes. (RR-1: 56-57). She presented copies of
certificates of her accomplishments (Exhibit 1). (RR-1: 58-59). She will complete
probation on December 4, 2019. (RR-1: 60). She has a boyfriend who is attending
UNT. (RR-1: 61). She was in an abusive relationship 20-years ago. (RR-1: 62). She
takes medication for anxiety and anti-depressants. (RR-1: 62). She provided a letter
from her physician (Exhibit 5). (RR-1: 64-65). She provided copies of pay stubs
(Exhibit 6). (RR-1: 65-67). She knows S.S. takes medication for ADHD and wets
the bed; she wants to continue the children in therapy. (RR-1: 67-68). She wants the
children to attend a new school that is one-half mile from her home. (RR-1: 68). She
was denied the opportunity to visit the children [by CPS]. (RR-1: 70). She has
sufficient family support and wants the children placed in her care. (RR-1: 72). She
did not learn of the children being in care until E.L. had them. (RR-1: 73). She only
recently learned they had been returned to foster care. (RR-1: 73). She was unaware
6
of her boyfriend’s drug case and such would concern her. (RR-1: 78-79). He does
not come to her house as it is not wheelchair accessible. (RR-1: 79).
With regard to her drug conviction, she said that she drove to Laredo with her
cousin, whom she knew was involved in drug trafficking, but who assured her there
were no drugs in the car. (RR-1: 80-82). L.R. no longer associates with those family
members because they are incarcerated. (RR-1: 83). She speaks to Father about three
times per month and provides him with money for commissary. (RR-1: 84, 88).
Father’s drug history concerns her. (RR-1: 96). She has three adult children; two are
attending college with one of them having a full academic scholarship. (RR-1: 98,
99). Any involvement with drugs is in her past and she is a different person now.
(RR-1: 101). Losing three years of her children’s lives made a huge difference in her
life. (RR-1: 101). Father is in the wrong and she sees a problem with it. (RR-1:
101). If necessary, she will cease all contact with Father. (RR-1: 102). She will be
protective of the children. (RR-1: 102). She understands this case is about the
children and making sure they are protected. (RR-1: 104).
D.S., L.R.’s 14-year-old daughter, testified that she wanted the children to live
with her and her mom. (RR-1: 107). She wants what is best for them. (RR-1: 107).
Her mother takes good care of her and she feels safe in her home. (RR-1: 108). She
attends school at a leadership academy in Grand Prairie. (RR-1: 108).
7
V.M., L.R.’s 21-year-old son, testified that he was a political science major at
the University of North Texas (UNT) and hoped to graduate in Spring 2019. (RR-1:
111). His Mother provided him with love and support and is the reason he is
graduating from UNT. (RR-1: 111). He will help his mom with the children and
would be a role model to them. (RR-1: 112). L.R. would provide a safe and loving
home for the children. (RR-1: 112-113). L.R. is financially able to care for the
children. (RR-1: 113).
A.A., L.R.’s boyfriend, testified that he was 39-years-old. (RR-1: 116). He is
attending college studying criminal justice and plans to attend law school. (RR-1:
117). He was arrested in 2001 when he was 17-years-old on a drug possession
charge. (RR-1: 117-118). He was placed on deferred probation. (RR-1: 118). He
no longer speaks to the person with whom he was arrested on the drug case. (RR-1:
126). L.R. was unaware of his drug case. (RR-1: 120).
L.R. would be a positive influence on the children. (RR-1: 119). L.R. is a very
responsible parent who works hard and takes care of her children. (RR-1: 120). L.R.
is capable of taking on these children and meeting their emotional and physical needs.
(RR-1: 121). She is financially able to care for the children. (RR-1: 121).
R.B. has known L.R. since 2006 when he began driving her children to church.
(RR-1: 127-128). L.R. attends church weekly and she is very involved with her
8
children. (RR-1: 128). She would be a good role model for children. (RR-1: 128-
129). He provides financial assistance to L.R. periodically such as paying her
daughter’s orthodontia bill of $100 per month and her cell phone bill. (RR-1: 133,
134-135). L.R. would be a good placement for the children and it would be in their
best interest. (RR-1: 136).
Rasheda Warren, the children’s counselor, testified that they were doing well
in the foster home and at school. (RR-1: 138-139). S.S. suffered from severe anxiety
but is doing better now. (RR-1: 141-142). The children need structure. (RR-1: 147).
Another removal from their current placement would be difficult for them. (RR-1:
148). The children are well-adjusted in their current placement. (RR-1: 148).
Removal would result in continuous or acute trauma which would require additional
trauma therapy, play therapy and a behavioral specialist and psychiatrist for
medication management. (RR-1: 149-150). It is in their best interest to remain in the
foster home. (RR-1: 150). She cannot say whether placement with family would be
good because she does not know them. (RR-1: 152). She would continue working
with the children if placed with L.R. (RR-1: 152). It would have helped her to have
observed a visit between children and L.R. (RR-1: 154). Visits with Mother would
help in the children’s recovery. (RR-1: 157). The children need consistency and
stability which Mother has not provided. (RR-1: 159). The children have not
9
mentioned any other family to her. (RR-1: 159-160). She did not believe the family
had been there for these children. (RR-1: 161, 163). It surprised her that there had
been three home studies of family members in this case. (RR-1: 164).
Rule 11 Agreement
Father’s counsel signed a Rule 11 Agreement on his behalf. (CR: 1092-1095).
Father did not personally sign the Rule 11 Agreement. (CR: 1094). In fact, Father
was not present at the time the Rule 11 was agreed to as he was incarcerated in the
federal penitentiary in Florence, Colorado. (CR: 916). The CPS supervisor signed
the Rule 11 Agreement on August 3, 2018 (a Friday). (CR: 1094). The hearing was
held the following Monday, August 6, 2018 - a mere three days later. (RR-1: 3).
Further, trial counsel never indicated that the Rule 11 Agreement had been agreed to
by Father. (RR-1: 7-169).
Father wrote to appellate counsel insisting that trial counsel did not have
authority to enter into the Rule 11 Agreement. (Exhibit Three). In his letters to the
trial court, Father was consistent in his desire that his parental rights not be
terminated. (CR: 988-989; 1102-1103; 1134-1136; 1194-1196; 1204-1205). Trial
counsel was without authority to sign the Rule 11 Agreement on Father’s behalf.
Thus, the trial court erred in entering judgment pursuant to the Rule 11 Agreement.
10
Summary of the Argument
The trial court improperly rendered judgment on the Rule 11 Agreement which
was not signed by Father. There is no evidence that Father was aware of the
agreement or that he consented to it a mere three days before the placement hearing.
Father indicated to appellate counsel that trial counsel had no authority to enter into
any type of agreement which terminated his parental rights. Thus, the trial court
abused its discretion in terminating Father’s parental rights pursuant to the invalid
Rule 11 agreement.
The evidence is legally and factually insufficient to prove that Father would be
incarcerated and unable to care for the children for two years from the filing of the
petition. Therefore, the evidence is insufficient to support the finding terminating
Father’s parental rights pursuant to Section 161.001(b)(1)(Q).
The evidence is legally and factually insufficient to prove termination is in the
children’s best interest. No evidence was presented regarding the Holley factors.
Therefore, the evidence is insufficient to support the finding that termination was in
the children’s best interest.
Father was deprived of effective assistance of counsel. The record reflects that
counsel agreed to termination of Father’s parental rights pursuant to Section
161.001(b)(1)(Q). The record fails to prove that Father would be incarcerated and
11
unable to care for the children as required by Section 161.001(b)(1)(Q). Further,
counsel did not have authority to enter into the Rule 11 agreement (as argued in Issue
One). Thus, counsel did not have a firm command of the facts of this case and Father
received ineffective representation in this case.
Further, the trial court abused its discretion by appointing CPS as managing
conservator. The evidence was insufficient to prove the grounds for termination and
that it was in the children’s best interest. The evidence proved that the L.R. was an
appropriate family placement. Keeping children with family is paramount.
Therefore, termination was not supported by the evidence presented. Thus, the
preponderance of the evidence proved that L.R. should have been named the
managing conservator of the children.
12
Issue One, Restated
The trial court abused its discretion by entering judgment on the Rule 11
Agreement because there was no evidence that Father’s counsel had
authority to enter into the agreement.
Arguments and Authorities
Standard of Review
A trial court abuses its discretion when it acts unreasonably or in an arbitrary
manner without reference to guiding rules or principles. Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 211 (Tex. 2002).
Relevant Authorities
Rule 11 of the Rules of Civil Procedure provides, “Unless otherwise provided
in these rules, no agreement between attorneys or parties touching any suit pending
will be enforced unless it be in writing, signed and filed with the papers as part of the
record, or unless it be made in open court and entered of record.” TEX. R. CIV. P. 11.
Although a court may not render an agreed judgment absent consent of the parties at
the time the judgment is rendered, the court may nevertheless enforce a settlement
agreement that complies with Rule 11 as a contract. City of Roanoke v. Town of
Westlake, 111 S.W.3d 617, 629 (Tex. App. – Fort Worth 2003, pet. denied). Courts
construe Rule 11 settlement agreements just as they would any contract. See Padilla
v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). The intent of the parties to be bound
13
is an essential element of an enforceable contract. See Foreca, S.A. v. GRD Dev. Co.,
758 S.W.2d 744, 746 (Tex. 1988).
Generally, a court indulges every reasonable presumption to support a
settlement agreement made by a duly employed attorney. Ebner v. First State Bank
of Smithville, 27 S.W.3d 287, 300 (Tex. App. – Austin 2000, pet. denied). However,
this presumption may be rebutted by “affirmative proof that the client did not
authorize his attorney to enter into the settlement.” City of Roanoke, 111 S.W.3d at
629. When evidence demonstrates that the attorney did not have the authority to enter
into the settlement agreement, the agreement will not be enforced. Ebner, 27 S.W.3d
at 300. “Mere employment of counsel does not clothe the counsel with authority to
settle the cause without specific consent of the client.” SW Bell Tel. Co. v. Vidrine,
610 S.W.2d 803, 805 (Tex. Civ. App. – Houston [1st Dist.] 1980, writ ref’d n.r.e.).
A party may clothe his attorney with either actual or apparent authority to reach
and sign a binding settlement agreement. W. Beach Marina, Ltd. v. Erdeljac, 94
S.W.3d 248, 255 (Tex. App. – Austin 2002, no pet.). To establish authority, the
principal must make some manifestation to the agent (actual authority) or to a third
party (apparent authority) that he is conferring such authority.” Ebner, 27 S.W.3d at
300. Actual authority is authority that the principal intentionally conferred on the
agent or allowed the agent to believe was conferred. City of Roanoke, 111 S.W.3d
14
at 627. Actual authority is created through written or spoken words or conduct of the
principal communicated to the agent. Behzadpour v. Bonton, No. 14-09-01014-CV,
2011 Tex. App. LEXIS 565, 2011 WL 304079, at *3 (Tex. App. – Houston [14th
Dist.] Jan. 27, 2011, no pet.). Actual authority includes both express and implied
authority and “usually denotes that authority a principal (1) intentionally confers upon
an agent, (2) intentionally allows the agent to believe that he possesses, or (3) allows
the agent to believe that he possesses by want of due care.” Spring Garden 79U, Inc.
v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex. App. – Houston [1st Dist.] 1994, no
writ). Implied actual authority is an “adjunct” to express actual authority, “because
implied authority is that which is proper, usual, and necessary to the exercise of the
authority that the principal expressly delegates.” Id.
A party may revoke its consent to a settlement agreement at any time before
judgment is rendered on the agreement. S. & A. Rest. Corp. v. Leal, 892 S.W.2d 855,
857 n. 1 (Tex. 1995). A judgment rendered after one of the parties revokes his
consent is void. Id.
Application to the Instant Case
Father was not present at the placement hearing. (RR-1: 2). The CPS
caseworker, Kenecia Cook, testified to the terms of the Rule 11 Agreement. (RR-1:
10-14). Cook testified that Father had been writing letters to her wherein he named
15
the relatives that he wished to be considered for placement of his children, one of
whom was L.R. (RR-1: 14-15). Father’s wishes for his children to be placed with
family members is clear; however, it is equally clear that he did not want his parental
rights terminated. (CR: 988-989; 1102-1103; 1134-1136; 1194-1196; 1204-1205).
Further, the agreement was signed on Friday, August 3, 2018 with trial scheduled to
commence on Monday, August 6, 2018. (CR: 937, 1094). No evidence was
presented that Father consented to the terms of the Rule 11 agreement. (RR-1: 7-
169). Thus, counsel was without authority to enter into a Rule 11 agreement without
Father’s consent to terminate his parental rights.
Father wrote a letter to the trial court dated September 3, 2018, wherein he
indicated that he “was only informed just yesterday that my parental rights were
terminated.” (CR: 1102). Father continues, “I should have been notified imediately
[sic] that my right’s [sic] were terminated, and I was not, I don’t think that is right.
Also, I feel I should have been present in the court hearing’s [sic] even if it is through
the telephone.” (CR: 1102). The letter was received and filed on September 12,
2018. (CR: 1102). The final order was signed on September 18, 2018. (RR-1: 35,
1113).
Father wished to be present at said hearing. (CR: 1102). Due to Father not
being present, he was unable to inform the trial court that he had not agreed to the
16
terms of the Rule 11 agreement. Nor was he able to inform the court that counsel did
not have authority to enter the agreement on his behalf. Counsel’s failure to insure
Father’s presence at the hearing resulted in Father being unable to voice his
“rejection” of the Rule 11 agreement. At the time the trial court signed the order, she
was on notice that Father did not agree to the termination of his parental rights. The
trial court was also aware that counsel was without authority - either actual or implied
- to enter into a Rule 11 agreement on Father’s behalf. Father did not wish to be
bound by the terms of the agreement which is an essential element of an enforceable
contract. Thus, the trial court abused its discretion in entering a final order based on
a void or unenforceable Rule 11 agreement.
17
Issue Two, Restated
The evidence is legally insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Issue Three, Restated
The evidence is legally insufficient to support the termination of
Father’s parental rights pursuant to TEX. FAM. CODE ANN. §
161.001(b)(1)(Q).
Arguments and Authorities
Because these two issues involve the same evidence, or lack thereof, Appellant
will present argument together so as not to be repetitive.
Standard of Review
Termination of parental rights is a matter that implicates fundamental
constitutional rights. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S. Ct. 1388,
1397, 71 L. Ed. 2d 599 (1982); In re S.N., 287 S.W.3d 183, 186 (Tex. App. –
Houston [14th Dist.] 2009, no pet.). To terminate parental rights, the trial court must
find, by clear and convincing evidence, that the parent has committed one of the acts
prohibited under section 161.001(b)(1) of the Texas Family Code and that termination
of parental rights is in the child’s best interest. TEX. FAM. CODE ANN. §
161.001(b)(1); TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). Clear and convincing evidence is “proof that will produce in the
18
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” TEX. FAM. CODE ANN. § 101.007.
Legal Sufficiency
In a legal sufficiency review, a court should look at all the evidence in the light
most favorable to the finding to determine whether a reasonable trier of fact could
have formed a firm belief or conviction that its finding was true. This means that a
reviewing court must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. A corollary to this requirement is that
a court should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Disregarding undisputed facts that do
not support the finding could skew the analysis of whether there is clear and
convincing evidence. In re J.F.C., 96 S.W.3d at 266.
If, after conducting its legal sufficiency review, a court determines that no
reasonable factfinder could form a firm belief or conviction that the matter that must
be proven is true, then that court must conclude that the evidence is legally
insufficient. Id.
Factual Sufficiency
The higher burden of proof in termination proceedings elevates the appellate
standard of factual sufficiency review. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). A
19
finding that must be based on clear and convincing evidence cannot be viewed the
same as one that may be sustained on a mere preponderance of the evidence. C.H.,
89 S.W.3d at 25. When considering whether the evidence rises to the level of clear
and convincing, courts of appeals must determine whether the evidence is such that
a factfinder could reasonably form a firm belief or conviction that the allegation was
proven. C.H., 89 S.W.3d at 25. The inquiry is whether, on the entire record, a
factfinder could reasonably form a firm conviction or belief that the parent violated
the relevant conduct provisions of section 161.001(b)(1) and that termination of the
parent-child relationship would be in the child’s best interest. C.H., 89 S.W.3d at 28.
The distinction between legal and factual sufficiency lies in how courts review
the evidence. In re J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, in
determining whether the evidence is such that a finder of fact could reasonably form
a firm belief or conviction that its finding was true, courts of appeals must consider
whether disputed evidence is such that a reasonable finder of fact could not have
resolved it in favor of the finding. J.F.C., 96 S.W.3d at 266. If, in light of the entire
record, the disputed evidence that a reasonable finder of fact could not have credited
in favor of the finding is so significant that a finder of fact could not reasonably have
formed a firm belief or conviction, then the evidence is factually insufficient. J.F.C.,
96 S.W.3d at 266. If a court of appeals reverses on factual sufficiency grounds, then
20
the court must detail in its opinion why it has concluded a reasonable finder of fact
could not have credited disputed evidence in favor of its finding. Id. at 266-267.
Other Relevant Authorities
TEX. FAM. CODE ANN. § 161.001 provides, in pertinent part:
(b) The court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence:
(1) that the parent has:
(Q) knowingly engaged in criminal conduct that has resulted in
the parent’s:
(I) conviction of an offense; and
(ii) confinement or imprisonment and inability to care for the
child for not less than two years from the date of filing the petition.
TEX. FAM. CODE ANN. § 161.001(b)(1)(Q).
Application to the Instant Case
The motion to modify was filed on November 7, 2016. (CR: 455). At the time
of the placement hearing (August 6, 2018), Mother had been granted a monitored
return of the children which had failed. (CR: 862-864, 865; RR-3). A motion to
modify was filed on March 27, 2018. (CR: 865). At the placement hearing on
August 6, 2018, Cook testified that Father was in federal prison and had been so
incarcerated “since 2016, the duration of the case”. (RR-1: 3, 10, 25-26). No
evidence was presented as to Father’s release date from federal prison. (RR-1: 7-
21
169). Thus, there is no evidence proving Father’s inability to care for the child “for
not less than two years from the date of filing the petition” (e.g., November 7, 2018).
Conclusion
Based on the particular facts of this case, the State failed to present sufficient
evidence to prove grounds for termination. No evidence was presented that Father
would be incarcerated on November 7, 2018 - two years from the filing of the petition
as required by Section 161.001(b)(1)(Q). Further, as argued in Issue One, there is no
evidence that Father agreed to the termination of his parental rights because he did
not personally sign the Rule 11 agreement and counsel had no authority to do so on
Father’s behalf.
When all of the evidence is viewed in the light most favorable to the finding
that Father’s parental rights should be terminated pursuant to “Q” grounds, a
reasonable trier of fact could not have formed a firm belief or conviction that the
finding was true. Termination on “Q” grounds requires a specific finding that
Father’s confinement rendered him unable to care for the children “for not less than
two years from the date of filing the petition”. No such evidence was presented.
Thus, the evidence is legally insufficient to support termination of Father’s parental
rights on “Q” grounds.
22
Further, a finder of fact could not have reasonably formed a firm conviction or
belief that Father violated the relevant conduct provisions of section
161.001(b)(1)(Q). Thus, the evidence is factually insufficient to support termination
of Father’s parental rights on “Q” grounds. Because the evidence is legally and
factually insufficient, the case should be reversed and remanded for a new trial.
Issue Four, Restated
The evidence is legally insufficient to support the best interest finding.
Issue Five, Restated
The evidence is factually insufficient to support the best interest finding.
Arguments and Authorities
Because these two issues involve the same evidence, or lack thereof, Appellant
will present argument together so as not to be repetitive.
Standard of Review
The Standards of Review previously cited in Issues Two and Three are
incorporated herein by reference to avoid undue repetition.
Best Interest Finding
Before terminating a parent’s rights, the fact finder must find, in addition to
one of the statutory grounds, that terminating the parent’s rights is also in the child’s
23
best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). In making that
determination, these factors should be considered:
1. the desires of the child;
2. the present and future physical and emotional needs of the child;
3. the present and future emotional and physical danger to the child;
4. the parental abilities of the person seeking custody;
5. programs available to assist those persons in promoting the best
interest of the child;
6. plans for the child by those individuals or by the agency seeking
custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent that may indicate that the
existing parent-child relationship is not appropriate; and
9. any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371-372 (Tex. 1976); In re J.W., 152 S.W.3d 200,
207 (Tex. App. – Dallas 2004, pet. denied). These factors are not exhaustive, and, in
some cases, some factors may be inapplicable. C.H., 89 S.W.3d at 27. Courts may
consider other factors not on the list. C.H., 89 S.W.3d at 27. Undisputed evidence
of just one factor may be sufficient in a particular case to support a finding that
24
termination is in the best interest of the child. C.H., 89 S.W.3d at 27. Conversely,
the presence of scant evidence relevant to each factor will not support such a finding.
C.H., 89 S.W.3d at 27.
Courts strongly presume that the biological parents’ keeping a child is in the
child’s best interest. In re J.W., 152 S.W.3d at 207. The controlling question is
whether the relationship between the parent and child should be terminated. In re
J.T.G., 121 S.W.3d 117, 129 (Tex. App. – Fort Worth 2003, no pet.). The trier of fact
is not required to find the parent is unfit in order to find that termination is in the best
interest of the child. J.T.G., 121 S.W.3d at 129. The need for permanence is the
paramount consideration for the child’s present and future physical and emotional
needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex. App. – Texarkana 2003, no pet.).
The goal of establishing a stable, permanent home for a child is a compelling
governmental interest. N.K., 99 S.W.3d at 301 n.9.
Application to the Instant Case
The desires of the children were not mentioned. (RR-1: 7-169). The children’s
physical and emotional needs were not mentioned other than the need for continued
counseling and consistency and stability. (RR-1: 7-169, 153, 159). The physical and
emotional danger to the children was not mentioned other than the counselor’s belief
that moving the children would be harmful. (RR-1: 7-169, 150). There was no
25
mention of the programs available to assist in promoting the children’s best interest.
(RR-1: 7-169). There was no evidence presented regarding the parental abilities of
the foster parent. (RR-1: 7-169). There was substantial evidence presented regarding
L.R.’s parental abilities. (RR-1: 49-137). The Department’s plans for the children
were adoption by the current foster placement. (RR-1: 13). No evidence regarding
the stability of the foster home was presented other than the counselor’s testimony
that the children were well-adjusted. (RR-1: 7-169, 139, 148). L.R.’s home was
stable (she had lived there 18 years) and she could provide for the children
emotionally and financially. (RR-1: 50, 94). Two of her three oldest children were
attending college. (RR-1: 98, 111). No evidence was presented regarding any acts
(other than his incarceration) to show Father’s existing parent-child relationship was
inappropriate. (RR-1: 7-169). No evidence was presented showing any excuse for
Father’s actions or omissions because the Father’s actions did not result in the
children’s removal. (RR-1: 7-169;14).
The caseworker testified that it was in the children’s best interest for the
Father’s parental rights to be terminated and that the Rule 11 Agreement was in the
children’s best interest. (RR-1: 12-14). R.B. testified that placement with L.R. was
in the children’s best interest. (RR-1: 136). The counselor testified that it was not
in the children’s best interest to move them from the foster home. (RR-1: 148, 150).
26
Conclusion
CPS failed to present evidence sufficient to overcome the presumption that
children should be with their biological family. See In re J.W., 15 S.W.3d at 207.
Very little evidence was presented regarding the Holley factors. Based on the
evidence presented, a reasonable trier of fact could not have formed a firm belief or
conviction that its finding was true. Nor could a factfinder reasonably have formed
a firm belief or conviction that termination of Father’s parental rights was in the
children’s best interest. Thus, the evidence was insufficient to support the finding
that termination was in the children’s best interest-especially with the availability of
a viable placement option with family. See In re H.R.M., 209 S.W.3d 106, 108 (Tex.
2006) (per curiam). Thus, the case should be reversed and remanded for a new trial.
Issue Six, Restated
Father received ineffective assistance of counsel.
Arguments and Authorities
Standard of Review
The statutory right to counsel for an indigent parent in a termination
proceeding “embodies the right to effective counsel.” In the Interest of M.S., 115
S.W.3d 534, 544 (Tex. 2003); see also TEX. FAM. CODE ANN. § 107.013(a). To
27
prevail on a claim of ineffective assistance of counsel, the appealing party must show
that counsel’s performance was deficient and that counsel’s errors were so serious as
to deprive the parent of a fair trial with a reliable result. See M.S., 115 S.W.3d at 545
(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). To determine whether counsel performed in a reasonably effective
manner, the appellate court must take into account all of the circumstances
surrounding the case, and “must give great deference to counsel’s performance,
indulging ‘a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance,’ including the possibility that counsel’s actions
are strategic.” See Id. (quoting Strickland, 466 U.S. at 689). The appellate court
cannot speculate about counsel’s rationale from a silent record. In the Interest of
S.J.T.B., No. 09-12-00098-CV, 2012 Tex. App. LEXIS 9445, 2012 WL 5519208, at
*11 (Tex. App. – Beaumont Nov. 15, 2012, no pet.) (mem. op.) (not designated for
publication). To determine prejudice, the appellate court considers whether “there
is a reasonable probability that, but for counsel’s unprofessional error(s), the result
of the proceeding would have been different.” M.S., 115 S.W.3d at 550 (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) and Strickland, 466 U.S.
at 687).
28
Application to the Instant Case
As previously argued in Issues Two and Three, the evidence was insufficient
to support the trial court’s finding terminating Father’s parental rights pursuant to
Section 161.001(b)(1)(Q). However, trial counsel signed a Rule 11 Agreement which
provided, in pertinent part (in paragraph 5):
If the child is not placed with [L.R.] pursuant to any terms of this
Agreement, CPS shall request the termination of the parental rights . . .
on [sic] the father based on Section 161.001(b)(1)(Q) of the Texas
Family Code and best interest and no other grounds, and the parents
agree to the termination of their parental rights pursuant to this Section.
(CR: 1093). No evidence was presented regarding Father’s release date. (RR-1: 7-
169). As argued in Issues Two and Three, the evidence was insufficient to prove
Father’s rights should be terminated pursuant to Section 161.001(b)(1)(Q).
Furthermore, as argued in Issue One, trial counsel was without authority to sign the
Rule 11 agreement nor did Father consent to the termination of his parental rights.
However, trial counsel signed the agreement that Father’s rights should be
terminated pursuant to § 161.001(b)(1)(Q). (CR: 1094-1095). Thus, counsel agreed
to termination without a full understanding of the evidence, or lack thereof, or a full
understanding of the evidence required to terminate parental rights pursuant to
29
Section 161.001(b)(1)(Q) in the case. In addition, counsel signed the agreement
without Father’s consent or authority.
Conclusion
Father has shown that counsel’s performance was deficient and that counsel’s
errors were so serious as to deprive him of a fair trial with a reliable result. Further,
Father has shown that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Therefore, he is entitled to a new trial.
Issue Seven, Restated
The evidence is legally and factually insufficient to support the
appointment of CPS as the managing conservator.
Arguments and Authorities
Standard of Review
In contrast to termination findings, conservatorship determinations are
governed by a preponderance of the evidence standard. In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007). The appointment of a conservator is subject to review for abuse of
discretion and may be reversed only if the decision is arbitrary and unreasonable. Id.
(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451(Tex. 1982)).
30
In cases where a trial court’s termination of the parent-child relationship is
reversed, a parent is required to independently challenge a trial court’s
conservatorship finding under section 153.131(a) to obtain reversal of the
conservatorship appointment. See In re J.A.J., 243 S.W.3d at 616-617. If challenges
to the termination findings are upheld on appeal, the trial court’s appointment of the
Department as sole managing conservator may be considered a “consequence of the
termination pursuant to Family Code section 161.207.” In re J.R.W., No.
14-12-00850-CV, 2013 Tex. App. LEXIS 1396, 2013 WL 507325, at *12 (Tex. App.
– Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.).
Statutory Provisions
The Family Code creates a presumption that a parent will be named managing
conservator, unless the court finds that such appointment would not be in the child’s
best interest “because the appointment would significantly impair the child’s physical
health or emotional development” or finds that there is a history of family violence
involving the parents. TEX. FAM. CODE ANN. § 153.131(a).
Section 161.207 provides: “if the court terminates the parent-child relationship
with respect to both parents or to the only living parent, the court shall appoint a
suitable, competent adult, the Department of Protective and Regulatory Services, a
31
licensed child-placing agency, or an authorized agency as a managing conservator of
the child.” TEX. FAM. CODE ANN. § 161.207(a).
Application to the Instant Case
Upon termination of the parents’ parental rights, the Department was appointed
managing conservator of the children. (CR: 1111).
As previously argued in Issues Two through Five, the evidence was insufficient
to support the finding that Father committed the conduct in “Q” grounds or that
termination of his parental rights was in the children’s best interest. Father’s aunt,
L.R. was a suitable placement for the children. Since the home study had been
completed, L.R. had made repairs to her home and had sufficient income to support
the children. (CR: 1050-1077, 1085-1090). If finances were tight, she had other
family who would support and assist her in caring for the children. (RR-1: 65-66, 71-
72, 112, 119, 121, 129, 132-135, Exhibit 6). L.R. told the Department of her federal
conviction otherwise, the Department would not have known about it. (RR-1: 39-40).
L.R. was on probation for the charge but was doing well and there were no violations
or problems since her release onto probation. (RR-1: 55-56). She is considered a low
risk on probation and only reports online once per month. (RR-1: 56). L.R. presented
evidence of courses taken in prison to better herself. (CR: 1077-1084). The
Department did not remove L.R.’s daughter from her care for the reasons it denied
32
this home study. (CR: 1030-1031; RR-1: 65-66). Thus, appointment of L.R. as
managing conservator would not significantly impair the children’s physical health
or emotional development. Hence, the trial court abused its discretion by appointing
CPS as the managing conservator. The case should be reversed and remanded for
appointment of L.R. as managing conservator or for further proceedings.
33
Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this court
will find: (1) the trial court abused its discretion in accepting the Rule 11 Agreement
because counsel was without authority to sign the agreement on Father’s behalf, (2)
the evidence is insufficient to support the grounds for termination and best interest,
(3) Father received ineffective assistance of counsel, and (4) that the trial court erred
in appointing the Department the managing conservator. Appellant further prays that
the that the case will be reversed and remanded for a new trial.
Respectfully submitted,
/s/ April E. Smith
April E. Smith
State Bar No. 18532800
P.O. Box 870550
Mesquite, Texas 75187-0550
972-613-5751
972-686-4714 (Fax)
april@aesmithlaw.com
34
Certificate of Service
I hereby certify that a copy of this brief was e-served via efile.txcourts.gov
on Laura Ann Coats, Assistant District Attorney, at laura.coats@dallascounty.org
on January 21, 2019.
/s/ April E. Smith
April E. Smith
Certificate of Compliance
Relying on the word count of the word processing program, I certify that
this document contains 6,934 words excluding those exempted by rule 9.4(i)(1).
/s/ April E. Smith
April E. Smith
35
Appendix
Exhibit One . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decree of Termination (Redacted)
Exhibit Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 11 Agreement (Redacted)
Exhibit Three . . . . . . . . . . . . . Letter from Father to Appellate Counsel (Redacted)
36
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CAUSE NO.JC-13-00877-W-304™
IN THE INTEREST OF § IN THE DISTRICT COURT
§ TB
,ETAL., § 304™ JUDICIAL DISTRICT
§
CHILDREN § DALLAS COUNTY,TEXAS
DECREE OF TERMINATION
On the6 day ofAugust,2018,this matter came on to be heard at final trial on the meiits.
Apvearances
Petitioner, the Dallas County Children's Protective Services Unit of the Department of
Family and Protective Services, q^peared by its representative, Kenecia Cook, and through its
attorney, Kimberly L. Austin, Assistant District Attomey,and announced ready.
The Respondent Mother, ., having been duly and properly
served with citation and having entered into a Rule 11 Agreement,appeared in person and with her
attomey,Irene Mugambi,and announced ready.
The Respondent Father, having been duly and properly served
with citation and having entered into a Rule 11 Agreement,appeared by and through his attomey,
Robert Herrera,and announced ready.
Delia Gonzales,appointed by the Court as Guardian and Attom^ Ad-litem ofthe children
the subject ofthis suit, appeared and announced ready.
The Court Appointed Special Advocate(C.A.S. A.), appointed by the Court to represent
the best interest ofthe children the subject ofthis suit appeared in person.
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CAUSE NO.JC-13-877-W
DECREE OF TERMINATION page 1 of?
....
Jurisdiction
The Court, having examined the pleadings and heard the evidence and argument of
counsel, finds that it has jurisdiction of this cause and of all the parties and that no other Court
has continuing exclusive jurisdiction ofthis cause.
JuoL
A jury was waived, and all matters in controversy, including questions of fact and law,
were submitted to the Court. All persons entitled to citation were properiy cited.
Children
The Court finds that the following children are the subject ofthis suit:
NAME:
SEX:
DATE OF BIRTH:
NAME:
SEX:
DATE OF BIRTH:
Rule 11 Asreement
The Court finds that the parties have entered into a Rule 11 Agreement, which is attached
hereto as Exhibit"A" and adopted as the Order of this Court. The parties agreed to the following
terms:
1. The parental rights of the Respondent Mother, as
to both children, shall be terminated pursuant to Section 161.001(b)(l)(0) of the Texas Family
Code; and, the parental rights of the Respondent Father, as to both
children, shall be terminated pursuant to Section 161.001(b)(l)(Q) of the Texas Family Code;
and. It is the understanding of all parties that TDFPS will be named as Permanent Managing
Conservator with the right to consent to the children's adoption.
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2. It is the intention of the parties that the Department shall, barring unforeseen
circumstances, consent to the adoption of the children by the current foster parents and shall
request that any adoptive family maintain an email account for the purposes of receiving
communications fiom the parents;furthermore, it is agreed that the foster parents will correspond
with the parents at least quarterly with photos and written updates, provided that the parents
utilize the account at least once per year.
TERMINATION OF. PARENTAL RIGHTS
The Court finds by clear and convincing evidence that the
mother ofthe children the subject ofthis suit, failed to comply with the provisions of a court order
that specifically established the actions necessary for the moth^ to obtain the retum of the child
who has been in the permanent or temporary managing conservatorship ofthe Texas Department of
Family and Protective Services for not less than nine months as a result ofthe child's removal fiom
the parent under Chapter 262for the abuse or neglect ofthe child,pursuant to Section 161.001(1X0)
ofthe Texas Family Code, which is grounds for termination ofher parental ri^ts.
The Court finds by clear and convincing evidence that termination of die parent-child
relationship between. . ,the mother, and the children the subject ofthis
suit, .and ,is in the best interest ofthe childreiL
IT IS, THEREFORE,ORDERED AND DECREED by the Court that the parent-child
relationship between the mother, and the children,
, _and BE AND ARE HEREBY TERMINATED.
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TERMmATlONOF. PARENTAL RIGHTS
The Court finds by clear and convmcing evidence that , file
father ofthe children the subject ofthis suit, .and
knowingly engaged in criniinal conduct that resulted in the father^s conviction of an offense and
confinement or imprisonment and inability to care for the children for not less than two years from
the date of filing the petition, pursuant to Section I61.001(BX1XQ) of the Texas Family Code,
which is grounds for termination ofhis parental rights.
The Court finds by clear and convincing evidence that termination of the parent-child
relationship between ,the father, and the children the subject ofthis suit,
.and is in the best interest ofthe children.
IT IS,THEREFORE,ORDERED AND DECREED by the Court that the parent-child
relationship between -... ,the father, and the children,
.and ,BE AND ARE HEREBY TERMINATED.
APPOINTMENT OFA PERMANENT MANAGING CONSERVATOR
The Court finds by clear and convincing evidence that the appointment of the DIRECTOR
OF THE DALLAS COUNTY CHILD PROTECTIVE SERVICES UNIT OF THE TEXAS
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES as permanent managing
conservator would be in the best interest ofthe children, . and
IT IS, THEREFORE,ORDERED that the DIRECTOR OF THE DALLAS COUNTY
CHILD PROTECTIVE SERVICES UNIT OF THE TEXAS DEPARTMENT OF FAME^Y AND
PROTECTIVE SERVICES is appointed Permanent Managing Conservator of the subject
children, .and with the rights and duties specified
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in Chapter 153,subchapter G,ofthe Texas Family Code,this does include the right to consent to
adoption.
INFORMATIONPURSUANT TO TEXASFAMILY CODES105.006
Court: 304"^ DISTRICT COURT DALLAS County,Texas
Cause Numben JC-l3-00877-W-304'™
MANAGING CONSERVATOR:
THE TEXAS DEPARTMENT OF FAMILY AND PROTECTTVE SERVICES
MOTHER»S INFORMATION:
Name: DOB
Residence Address:
FATHER'S INFORMATION:
Name: DOB
Residence Address:
DISMISSAL OFOTHER COURT-ORDERED RELATtONSmPR
IT IS ORDERED that all prior existing court-ordered relationships or conservatorships
with the children the subject ofthis suit are hereby DISSOLVED AND DISMISSED upon entry
ofthis Final Termination Order.
IT IS ORDERED that all court-ordered relationships between the respondent parents and
their couit-^pointed attorneys in this suit are hereby DISSOLVED AND DISMISSED upon
entry ofthis Final Order.
CLARIFYING ORDERS
Without affecting the finality of this Order, this Court expressly reserves the right to
make orders necessary to clarify and enforce this Order.
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DENIAL OFOTHERRELIEF
IT IS ORDERED that all relief requested in this case by any person who has been a party
to this suit at any time, which is not expressly granted, is denied.
RIGHTTOAPPEAL
A PARTY AFFECTED BY THIS ORDER HAS THE RIGHT TO APPEAL. AN
APPEAL IN A SUIT IN WHICH TERMINATION OF THE PARENT-CHILD
RELATIONSHIP IS SOUGHT IS GOVERNED BY THE PROCEDURES FOR
ACCELERATED APPEALS IN CIVIL CASES UNDER THE TEXAS RULES OF
APPELLATE PROCEDURE. FAILURE TO FOLLOW THE TEXAS RULES OF
APPELLATE PROCEDURE FOR ACCELERATED APPEALS MAY RESULT IN THE
DISMISSAL OF THE APPEAL.
Date ofJudsment
This Final Decree of Termination was judicially PRONOUNCED AND RENDERED in
open Court at Dallas, Dallas County, Texas,on the of ^nguStr^bd further noted on the
Court's docket on the same day, but signed this
HONQRABCETUDGE ANDREA MARTIN
DISTRICT COURT
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CAUSE NO.JC-13-877-W
DECREE OF TERMINATION Page 6 of7
APPROVED AS TO FORM:
Kimberly L. Austin Delia Gonzales
Assistant Dis^t Attorney Guardian Ad Litem for the Children
Irene Mugambi Robert Herref
Attorney for Respondent Mother Attorney for Respondent Father
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CAUSE NO. JC-13-877-W
DECREE OF TERMINATION Page 7 of?
APPROVED AS TO FORM:
Kimberly L. Austin Delia Gonzales
Assistant District Attorney Guardian Ad Litem for the Children
Irene Mugambi Robert Herrera
Attorney for Respondent Mother Attorney for Respondent Father
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WO.JC>13-00877-W
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FELICIA PITRS
MSICim,DM1A8GO,'UAS
.DBHITYJ
IN THEINTEREST OF 'TBE pBiBicT.comer
304™ JUDICIAL COURT
AOHILD DALLAS COUmr,TEXAS
BPromGRBLEllAGRl
COMES NOW, the Texas Depaitment of Family and Fkotective Services as
xepiescnted by its authmized agents, Natosba Ho<^ and Keoecia Cook, and
through their attoa:^, Sandra Jad^n, Assistant IXstrict Attom^ the
Attomey/Quardian ad Lit^ Delia Oonzalesr, represenfiiig die iuteieds of die sobiect
children; and Resptxident Mother, , by and dirous^ her attorney, bene
Mugambi; and Respoodent Father, . by and thxougjh his attorney, Robert
Herreca, eater into this Rule 11 agreement regarding the above ic&renoed cause.
The children the subject ofthis Agreement is id^rtifled below,to wit:
Nave;
Sex:
DateofBlrdi:
Name;
Sex:
DateofBliHi;
We, the undersigned paities, as evidenced by our signatures bdow, agtee to
compnanise and setOe the claims aiui controversies between us, all of
termination ofparental rights, conservatoxship, child support, and possession and access
disputes legaiding tim above identified dnldbm We wi^ to awoid potentially protiacted
and costly litigation and its inherent risks,and agree and stqnilate we ha^ carefiiBy
considoed the needs ofthe child;our leipective idnfities to sigipozt and care for die ddld,
and die best interests ofthe child We stipulate thatfoe agreements set fordi hereafter are
in die diild's best intoest and that the matter is hereby resolved, hi order to resdi this
settlement, all claims were considered, dixecdy or indiiecdy, nvAiding all pending
motioiis.
The parties agree as follows:
1. The Court has Ordered CPS to conduct a home study of
t. Ifthe home study is approved by CPS and die AttDmey/Opardian
Ride IJ
Ad Litem, the children shall be placed with and CPS
shall be appointed as Managtng Cooservaior if desires
to panidpate hi die Postenng ComieGtions program,or
didl be ^jpointed as Managing Conservator if she does not want to
participate in the Fostering ConnectionB Program.If CPS Is ^ipoisted as
Mflnagtng Conservatoi* it diall request transfer of Madag^g
Conservatorship to iqwa her cmnpletioa ofthe Program
or sooner if she deddes not to complete fee Pn^giam, is ineligll^ to
comply fee Pxojgram or does sotconqilete fee requirements necessary to
be ^ened for a licensing home study wifem 90 days of tiie Final
Hearing in this cause. ,
2. If CPS and/or the Attorney/Goaidsan Ad litem do not Improve the home
lA studies for ,feem feall be a placement heanng If the
court places the children with! »cmiservstorship shall be
as set finfem Section 1 ofthis Agteemmit.-bMf'Sforr^ if
3. Ifthe child is placed with ^ pursuant to any toms offeis
Agreement)theparent'Childrelationdiipbetween. and l>C
the children sh^ be establifeed and he and fee mother, ^
shall be q;q;)oiiited as Joint PosscporyOmsenntms wife visitation
as arranged and agreed wife the Mana^g Conservator and supervised by * '
the Mianaguig Conservator or her competentaduh designee.
4. Ifthe child is not placed pursuant to any tenns of tins
Agreemoit,CPS shall request the tenmnatioa offee parental rights ofthe
mother based on Section 161.001(bXlXO} ofthe Texas Family Code and
best interest and no other grounds, and on fee fether based on Section
161.001(bXlXQ) ^Texas Family Code and best interest and no other
grounds, airi fee parents agree to the termination ofthdr parental ri^its
pursuant to this Sectioa
. S. Ifparentalxightsaretenninatedpuisuanttofeis Agreement,CPS shall be
appointed, as Mana^ng Conservator and shall, barring unfbreseen
drcumstances, consent to tiie adoption ofthe child by the current.foster
parents and shall request that any adoptive fentily maintain an email
account for purposes of receiving conimunicarions feom fee parents and
coire^xmd wife fee parents at least qumteily wife jfeotos and written
updates provided that the patents utilize the account at least once per
year.
6. All parties agree to the filing of any pleadings, including any Motfam to
Modify wfakh is necessary, and requests for any trial RmendmBnts
necessazy to efifoctuate fee terms of tiiis Agreement, and to waive fee
issuance and retum ofcitation ofthe same.
Iin!9 n Affwtviu-
7. llus Role U agreement may be niodifiedortesdaded ifaU partiestb^
Bgreemeot agree in'writing to modify orlesdod^ agreement
We agree to' end nzidetstand the jffovistons of tiiia agreement legaidmg tiw
childroi. We each enter into tiiis agreanent fieely and voluntaiily» witiiont duieaa) with
the advice and consent of our respective counsel mid not under tiw inflimice df any
intoxicating or illegal substances. We have not been tbrcad to aettie in this nttder by
anycme.
This agreemaat is made and petfonnable in Dallas Co«nty» Texas» and mbst be
coDstiued in accordance with Texas law. If any dispotea arise whh regard lb tite
interpretation or peifonnanoe of this agreement or any of its pro^dsMms, includu^ tite
nccmshy and form offinal ordos,we agree to try to xeacdve die diqmte by confoitnice.
Any disputes regarding draiting be resolved whenever possible by leforence to tiie
Texas Family Law Practioe Mwual.
We agree to i^^pear in Court at the first svaOidjIe date* or, following notice of
such a prove-up bearing, by our signature below waive appearance,to pfeaent ev|ieooe
consistent with tins agreement to secure xenditiim ofjudgmrnf in accmdance wiifa file
terms herein contained.
THE PARTIBS HERITFO AGREE THAT THIS AGREEMENT IS BINDIN^ ON
THE PARTIES AND IS NOT SUBJECT TO REVOCATION. THIS
AGREEMENT MEETS THE REQUIREMENTS OF SECHON ISieim* OF
THE TEXAS FAMQILY CODE.A PARTY TO THIS AGlOSEhfENT isENTmXD
TO JUDGMENT ON THIS SETTLEMENT AGREEMENT.
AGREED AS TO FORM AND SUBSTANCE:
,Mother ( ,Fa^
J^iejb^ab L
V CPS Casewotfcer C svuiw
Dallas CASA Delia Conzales,Xhmiey/Ooaxdian Ad Utem
Rttls II A^eement-
AGRXSD AS TO FQ«M ONLY:
i
Irene Mu
HI
Attomey for Father AttcHiieyfor
istantDistriciA
Badw U Agreement
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Olga Lesya Sytnianska Zedrick v. Stanislav Bilder
Combined Opinion