







Affirmed and Majority and Concurring Opinions filed September 12, 2002














Affirmed and
Majority and Concurring Opinions filed September 12, 2002.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO.
14-01-00998-CV
____________
 
IN THE
INTEREST OF E.L.T.
 
 
 
On Appeal from
the 313th District Court
Harris County, Texas
Trial Court
Cause No.  00-06035J
 
 
 
M A J O R I
T Y   O P I N I O N
            In a single issue, appellant Sheila
Joyce Deavers appeals the termination of her
parent-child relationship with her son, E.L.T. 
We affirm.
                                                               Background
            Appellant is the mother of E.L.T.,
born August 19, 2000.  After the Texas Department of Protective and
Regulatory Services (TDPRS) filed suit, the trial court placed E.L.T. in
protective custody for the following reasons: (1) mother’s inability to provide
the child with food, shelter, clothing, and proper medical attention; (2)
mother’s mental condition; (3) mother’s recent hospitalization; and (4) other
siblings placed in care of TDPRS.




            Appellant does not complain about
the evidence presented at trial supporting 
termination of her parental rights. 
Instead, she appeals the denial of her oral motion for continuance and
request for a competency evaluation. 
When trial began on August 15,
 2001, appellant’s trial counsel requested a competency evaluation
and continuance because appellant 
repeatedly asked, “What are we doing here?”  Trial counsel argued that appellant could not
understand the nature of the proceeding; therefore, she was unable to assist
counsel, rendering his representation ineffective.  The court denied the motion for continuance
and competency evaluation.  The trial was
reset until September
 5, 2001.  On that date,
appellant’s attorney again orally asserted the motions for continuance and
competency evaluation.  The motions were
denied.  At the conclusion of trial, the
court terminated appellant’s parental rights. 
                                                           Issue
Presented
            Appellant raises a single issue.[1]  In her brief, she appears to raise the
following sub-issues:  (1) whether it was
an abuse of discretion to deny her motion for continuance; (2) whether it was
an abuse of discretion to deny her motion for a competency evaluation; (3)
whether it was error to proceed with the trial if appellant was incompetent;
and (4) whether appellant received ineffective assistance of counsel because of
her inability to assist her attorney at trial. 
                                                 Motion
For Continuance
            First, appellant contends the trial
court erred in denying her motion for continuance.  The decision to grant or deny a motion for
continuance is within the trial court’s sound discretion.  See Tex. R. Civ. P.
251.  The trial court’s action in denying
a continuance will not be disturbed unless the record discloses a clear abuse
of discretion.  State v. Wood Oil Distrib. Inc., 751
S.W.2d 863, 865 (Tex.
1988).  This Court cannot substitute its
judgment for the trial court’s, but must only determine whether the trial
court’s action was so arbitrary as to exceed the bounds of reasonable
discretion.  Phillip Bros. Inc., v. Oil Country Specialists, Ltd., 709 S.W.2d
262, 265 (Tex. App.—Houston [1st Dist.] 1986, writ dism’d).  A trial court abuses its discretion if its
decision is arbitrary, unreasonable, and without reference to any guiding rules
and principles.  Mercedes-Benz Credit Corp. v. Rhyne, 925
S.W.2d 664, 666 (Tex. 1996).
            A motion for continuance shall not
be granted except for sufficient cause supported by an affidavit, consent of
the parties, or by operation of law.  Tex. R. Civ. P. 251. 
If a motion for continuance is not made in writing and verified, it will
be presumed that the trial court did not abuse its discretion in denying the
motion. 
Ohlhausen v. Thompson, 704 S.W.2d 434, 436
(Tex. App.—Houston [14th Dist.] 1986, no writ). 
In this case, the record does not contain a written motion or
affidavit.  Because appellant did not
comply with Rule 251, the trial court did not abuse its discretion in denying
the motion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.
1986).  Thus, we overrule appellant’s
first sub-issue.
                                                               Competency
            In her second sub-issue, appellant
argues that the trial court was not authorized to proceed to trial without
determining whether she was competent because the proceeding was
quasi-criminal.  From her brief, we
distill two basic contentions:  (1) the
trial court erred in overruling her oral motion for a competency evaluation;[2] and
(2) the trial should have been continued because of appellant’s alleged
incompetence.  Appellant has failed to
cite any authority in support of her first contention.  An issue not supported by authority is
waived.  Casteel-Diebolt v. Diebolt,
912 S.W.2d 302, 304–05 (Tex. App.—Houston [14th Dist.] 1995, no writ).  Accordingly, appellant has waived any error
regarding the denial of her oral motion for a competency evaluation.
            Appellant further argues that a
termination proceeding is quasi-criminal, and the trial should have been
continued because she was mentally incompetent.[3]  This argument is flawed and unsupported by
authority.  First, appellant’s argument
necessarily includes an assumption that she is incompetent.  Conversely, a person is presumed to be
mentally competent unless there is a judicial finding to the contrary.  See
Tex. Health & Safety Code Ann.
§ 576.002(b) (Vernon Supp.
2002).  The record does not reflect that
she made any request (written or oral) for the court to find her
incompetent.  Second, appellant fails to
cite any authority in which a family court proceeding may be halted because of
a parent’s incompetency.  See
Casteel-Diebolt, 912 S.W.2d at 304–05.  
            The relevant sections of the Texas
Family Code do not prescribe a competency standard that a parent must meet
before participating in a hearing or trial. 
See generally Tex. Fam. Code Ann.
§§ 161.001 — 161.210 (Vernon 1996
& Supp. 2002).  To the contrary, a
parent’s mental illness may serve as a basis for involuntary termination of
parental rights.  See id. § 161.003; Spurlock
v. Tex. Dept. of Protective & Regulatory Servs.,
904 S.W.2d 152 (Tex. App.—Austin 1995, writ denied) (mother’s mental illness
provided basis for termination of parental rights).  Further, a mentally ill person may sue and be
sued under Texas law.  See
Tex. Health & Safety Code Ann.
§ 576.001(b) (Vernon
1992).  Additionally, an attorney must
seek appointment of a guardian or other legal representative for, or seek other
protective orders with respect to, a client whom the attorney reasonably
believes is lacking legal competence.  See Tex.
Disciplinary R. Prof’l Conduct 1.02(g), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon Supp.
2002) (Tex. State Bar R. art. X,
§ 9).  There was no guardian or legal
representative sought for appellant in this case.  Lastly, Rule 44 of the Texas Rules of Civil
Procedure states that “lunatics, idiots, or persons non compos mentis who have
no legal guardian may sue and be represented by ‘next friend’” under certain
rules.  There was no “next friend”
appearing for appellant.
            In total, the record does not
reflect an abuse of discretion in proceeding with trial.
Ineffective
Assistance of Counsel
            Lastly, appellant argues that her
alleged incompetence and inability to communicate with counsel prevented him
from providing effective representation. 
Appellant contends a respondent in a termination proceeding is
guaranteed effective assistance of counsel because the proceeding is
quasi-criminal.  Texas courts are
split whether a person is constitutionally guaranteed effective assistance of
counsel in proceedings for termination of parental rights.  Compare
In re A.V., 57 S.W.3d 51, 57 (Tex. App.—Waco
2001, no pet. h.) (stating counsel in termination proceeding is required to be
effective); In re J.M.S., 43 S.W.3d
60, 63 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (holding the statutory right to counsel in a termination
proceeding means the right to effective assistance of counsel) with In re A.R.R., 61 S.W.3d 691 (Tex.
App.—Fort Worth 2001, pet. denied) (declining to extend the Sixth Amendment
right to effective assistance of counsel to a civil proceeding); Arteaga v. Tex. Dep’t of Protective &
Regulatory Servs., 924 S.W.2d 756, 762 (Tex.
App.—Austin 1996, writ denied) (holding parents in a termination case are not
entitled to the constitutionally guaranteed effective assistance of counsel
afforded to criminal defendants).
            This court has not yet ruled on the
existence of such a right.  However, even
if such a right exists, scrutiny of counsel’s performance is highly
deferential, and there is a strong presumption that the attorney’s actions
could have been the result of sound trial strategy.  Strickland
v. Washington, 466 U.S. 668, 688,
694 (1984); Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc).  In Texas, this
presumption ordinarily cannot be overcome absent evidence in the record
explaining counsel’s actions.  Busby v. State, 990 S.W.2d 263, 268–69
(Tex. Crim. App. 1999).  Additionally, appellant must meet a burden of
proof that her counsel was ineffective. 
She must prove (1) counsel’s performance fell below an objective
standard of reasonableness and (2) a reasonable probability that but for counsel’s
errors, the result of the proceeding would have been different.  Strickland,
466 U.S. at 694; In re J.M.S., 43 S.W.3d at 63–64.  
            In this case, nothing in the record
supports the assertion that appellant’s trial counsel performed deficiently
because of appellant’s alleged incompetence. 
Nothing in the record supports the conclusion that the result of the
proceeding would have been different but for counsel’s actions.  Additionally, appellant has not cited any authority
that counsel’s assistance is made ineffective through a client’s inability to
assist during trial.  The Strickland test focuses on the conduct
of the attorney.  We overrule the final
sub-issue. 
            Accordingly, we affirm the judgment
of the trial court. 
 
 
 
                                                                                    
                                                                        /s/        Charles W. Seymore
                                                                                    Justice
 
 
Judgment
rendered and Majority and Concurring Opinions filed September 12, 2002.
Panel
consists of Justices Yates, Seymore, and Guzman.  (Guzman, J. concurring.)
Publish — Tex. R. App. P. 47.3(b).
 


 




Affirmed and
Majority and Concurring Opinions filed September 12, 2002.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-01-00998-CV
____________
 
IN THE
INTEREST OF E.L.T.
 
 
 
 
On Appeal from
the 313th District Court
Harris County, Texas
Trial Court
Cause No. 00-06035J
 
 
 
C O N C U R
R I N G   O P I
N I O N
            Although I concur in the result the
majority reaches, I write separately regarding the failure of Texas law to
adequately address parental competency in the context of termination of
parental rights.  As the majority
correctly states, no existing statute or 
rule requires a trial court in a termination proceeding to hold a
hearing to determine a parent’s competency. 
Thus, under certain limited circumstances, there can be no guarantee
that a party is effectively able to provide counsel with necessary or relevant
data to prevent a wrongful deprivation of parental rights.

 class=Section4>

            Two years ago, the United States
Supreme Court reaffirmed the liberty interest of parents to direct the
upbringing of their children as “perhaps the oldest of the fundamental
liberties” recognized by the Court.  Troxel v. Granville, 530 U.S. 57, 65
(2000).  After briefly surveying
“extensive precedent,” the Court firmly pronounced that “it cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care, custody,
and control of their children.”  Id. at 66. 
Accordingly, the Fourteenth Amendment governs a state’s attempt to
terminate the relationship between parent and child.  Santosky v. Kramer,
455 U.S. 745,
753–54 (1982).  Echoing these sentiments,
the Texas Supreme Court has recognized that the involuntary termination of
parental rights implicates fundamental constitutional rights.  Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985); In re G.M., 596 S.W.2d 846, 847 (Tex.
1980).  
            No Texas case
specifically addresses a due process right to a parental competency hearing
prior to a proceeding to terminate parental rights.  For this reason, I disagree with the
majority’s summary dismissal of appellant’s points for failure to cite
authority supporting her position. 
Because appellant advocates an extension of existing law, this waiver
rule should not apply.  Appellant’s
argument that termination proceedings are quasi-criminal in nature, thereby
implicating additional due process concerns, underscores the importance of
procedures to evaluate the parent’s competency. 
Notwithstanding the traditional classification of termination
proceedings as civil in nature, some courts have recognized that in certain
contexts such suits are quasi-criminal.  In re B.L.D., 56 S.W.3d 203, 211–12
(Tex. App.—Waco 2001, pet. filed) (noting that statutory right to counsel in
termination proceedings includes a due process right that counsel be
effective); In the Matter of the Marriage
of Hill, 893 S.W.2d 753, 755–56 (Tex. App.—Amarillo 1995, writ denied)
(likening the procedural issues in parental termination cases to those of
criminal cases as both implicate constitutional concerns); see also Edwards v. Texas Dep’t
of Protective and Regulatory Servs., 946 S.W.2d
130, 135 (Tex. App.—El Paso 1997, no writ) (quoting 

 class=Section5>

approvingly
of Hill); but see In re R.V., 977 S.W.2d 777, 781 (Tex. App.—Fort Worth 1998,
no pet.) (“A suit to terminate parental rights is a civil proceeding.”); Malone v. State, 864 S.W.2d 156, 159
(Tex. App.—Fort Worth 1993, no pet.) (noting that “the termination of parental
rights is a civil proceeding with a remedial result” and thus not triggering
double jeopardy concerns). 
            Set apart from “mine run civil
actions,” termination proceedings work a “unique kind of deprivation.”  M.L.B.
v. S.L.J., 519 U.S. 102,
127–28 (1996); Santosky,
455 U.S. at 762
(noting that the challenged state-initiated neglect proceeding bore “many
indicia of a criminal trial”).  Indeed,
the removal of a child from the care of his parents is “a penalty as great, if
not greater, than a criminal penalty.”  Lassiter v. Dep’t of Soc. Servs. of Durham County, 452 U.S. 18, 39 n.5
(1981) (Blackmun, J., dissenting) (citations
omitted).  Texas
commentators have gone so far as to call termination “the capital punishment of
civil law.”  Sampson & Tindall, Texas Family Code Annotated § 161, Introductory Comment p. 757
(2001).  Such a characterization rings
true considering that termination proceedings involve “the awesome authority of
the State to destroy permanently all legal recognition of the parental
relationship.”  M.L.B., 519 U.S. at 128.
            In criminal cases, “the due process
right to a fair trial prevents the government from subjecting a person to trial
whose mental condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult with counsel, and
to assist in preparing his defense.”  Alcott v. State, 51 S.W.3d 596, 598 (Tex. Crim. App. 2001). 
The same due process protection should be provided to a parent facing
the involuntary deprivation of the fundamental right to direct a child’s
upbringing.
            At least one other state has
addressed the issue of competency hearings in termination proceedings from a
due process perspective.  See In
re Alexander V., 613 A.2d 780 (Conn.
1992).  In Alexander, the Connecticut Supreme Court considered whether the
Fourteenth Amendment requires an inquiry of parental competency before a
termination proceeding.  Id.  The Fourteenth
Amendment provides that no State shall deprive any person of life, liberty, or
property, without due process of law.  U.S. Const. amend XIV, § 1;
Troxel, 530 U.S. at 65
(quotations and citations omitted).  When
dealing with procedural due process rights, it is important to remember that
the focus is not on whether the
government may act at all to deprive the party of the interest but what process
is due before the government attempts the deprivation in question.  Weighing the process due, the Alexander court invoked the balancing
test of Mathews v. Eldridge.  424 U.S. 319
(1976).  Mathews directs courts to balance three factors in determining what
procedural safeguards are required by the federal due process clause:  (1) the private interest affected by the
official action; (2) the risk of erroneous deprivation of such interest through
the procedures used and the probable value, if any, of additional or
alternative procedural safeguards; and (3) the government’s interests,
including the function involved and the fiscal and administrative costs that
the additional or substitute procedural requirements would entail.  Id. at
335.  Any procedural due process inquiry
remains “flexible and calls for such procedural protections as the particular
situation demands.”  Morrissey v. Brewer, 408 U.S. 471, 481
(1972). 
            Under the first prong of the
balancing test, a court is to consider the nature of the private interest
affected by the official action.  Mathews, 424 U.S. at 335.  Parents hold a “fundamental liberty interest”
in the care as well as the custody and management of their children.  Troxel, 530 U.S. at 65; Santosky, 455
U.S. at 753; Quilloin v. Walcott, 434 U.S. 246, 255
(1978).  The Texas Supreme Court has
recognized the natural parental right as “essential,” “a basic civil right of
man,” and “far more precious than property rights.”  Holick, 685 S.W.2d at 20 (quoting Stanley v. Illinois, 405 U.S. 645, 651
(1976); In re B.L.D., 56 S.W.3d at
210.  Both the required standard of
review and the high burden of proof suggest the enormity of the liberty
interest at stake in termination proceedings. 
Because a termination decree is complete, final, and irrevocably divests
that natural parental right, courts have reviewed such termination proceedings
under strict scrutiny.  See Troxel,
530 U.S. at 80 (Thomas, J., concurring) (noting that strict scrutiny is the
appropriate standard for reviewing the infringement of fundamental rights such
as parental right to direct child’s upbringing); Holick, 685 S.W.2d at 20–21 (“[T]ermination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the
parent.”).  Considering the magnitude of
the interest threatened in such proceedings, courts have also required clear
and convincing evidence in support of termination before rendering a judgment
that involuntarily terminates parental rights. 
Santosky,
455 U.S. at 769
(“We hold that [the clear and convincing evidence] standard adequately conveys
to the factfinder the level of subjective certainty
about his factual conclusions necessary to satisfy due process.”); Sims v. State Dep’t of Pub. Welfare, 438
F. Supp. 1179, 1194 (S.D. Tex. 1977), rev’d on other grounds
sub nom.  Moore v. Sims,
442 U.S. 415 (1979) (“[T]he fundamental right to family integrity requires at
the very least that the State notify the parents of the allegations and prove
its case by clear and convincing evidence.”) 
So too have Texas state
courts required clear and convincing evidence when the State seeks to sever the
parent-child relationship.  Richardson v. Green, 677 S.W.2d 497, 500
(Tex. 1984)
(“The evidence in support of the findings must be clear and convincing before a
court may render judgment for involuntary termination.”)
            The State must remain ever vigilant
in ensuring procedural fairness in this context, as American culture is based
upon a “strong tradition of parental concern for the nurture and upbringing of
their children.”  Wisconsin v. Yoder, 406 U.S. 205, 232,
(1972); see also Parham v. J. R., 442
U.S. 584, 602
(1979) (“Our jurisprudence historically has reflected Western civilization
concepts of the family as a unit with broad parental authority over minor
children.”)  Considering the foregoing,
the liberty interest in the parent-child relationship must be recognized as
considerable under the first prong of the Mathews
balancing test.
            Under the second prong of the
balancing test, a court is to consider not only the risk of an erroneous
deprivation of parental rights, but also the potential minimization of that
risk with the implementation of additional or alternative procedural
safeguards.  Mathews, 424 U.S. at
335.  As a preliminary matter, it is
important to note that even though there is no provision for a competency
hearing, Texas law provides for the appointment of an attorney ad litem for a parent who is the subject of a termination
proceeding if the parent suffers from a mental or emotional illness, or mental
deficiency that renders the parent unable to provide for the physical, emotional,
and mental needs of the child.  Tex. Fam. Code Ann.
§ 161.003(b).  The Alexander V. court defined a mentally incompetent person as “one
who is unable to understand the nature of the termination proceeding and unable
to assist in the presentation of his or her case.”  613 A.2d at 784.  Noting the severe disadvantages mentally
incompetent parents face, the court reasoned that without the assistance of a
competent parent, a guardian ad litem might be
without sufficient information to rebut evidence offered by the state, which,
although superficially damaging, could be refuted by a competent parent or a
witness whose availability would be made known by a competent parent.  Id.  The court also
recognized that the ability of the guardian ad litem
and mentally incompetent parent to offer affirmative proof of the existence or
prospect of an ongoing parent-child relationship might be significantly
compromised.  Id.  Moreover, a
mentally incompetent parent might be unable to assist his or her attorney or
guardian in establishing tactical and substantive goals at the termination
proceeding.  Id.
            Texas case law
has defined an incompetent person as one “whose mental condition is such that
he lacks the capacity to understand the nature and object of the proceedings
against him, to consult with counsel, and to assist in preparing his
defense.”  Alcott, 51 S.W.3d at 598.  If
this definition is extended and applied in the termination context, there is a
cognizable risk that a parent unable to assist her attorney or to understand
the proceedings might suffer an erroneous termination of parental rights,
regardless of whether an ad litem has been
appointed.  
            A competency hearing would provide
the trial court with an opportunity to gain a better understanding of the
parent’s capabilities as well as to explore alternative remedies.  It would also afford the parties an
opportunity to present the trial court with additional evidence concerning the
parent’s mental state, the ability of the parent to assist counsel, and whether
the incompetency is temporary or poses a continuing
threat to the parent or the child.  Under
the second prong of the balancing test, therefore, the availability of a
competency hearing in a termination proceeding would not only significantly
improve upon the present statutory procedure, which provides only for the
appointment of an ad litem, but also would reduce the
risk that a parent’s rights might be erroneously terminated. 
            The third prong of the balancing
test focuses on the government’s dual interests — an administrative interest in
reducing costs associated with termination proceedings and an interest in
ensuring an expeditious yet accurate resolution to protect the child’s
welfare.  Mathews, 424 U.S. at
335.  The psychological effects of
prolonged termination proceedings on a child are of such a nature and magnitude
that time is indeed of the essence.  A
timely proceeding would better serve the welfare of the child by ensuring
permanency and stability.  Delay would
not only hinder the State’s interest in promoting the children’s welfare, but
also would increase the costs with each additional hearing.  As a result, the government’s dual interests
may be burdened by a delay in holding a competency hearing.  Consideration of the three Mathews v. Eldridge factors suggests
that, under certain circumstances, due process requires that a hearing be held
to determine the legal competency of a parent in a termination proceeding.  Alexander
V., 613 A.2d at 785. 
            The majority correctly concludes
that the trial court did not abuse its discretion in refusing to conduct a
competency hearing.  The trial record
reveals that the issue of appellant’s competency was raised only on two
occasions:  the first on August 15, 2001,
when appellant’s trial counsel requested a competency evaluation and
continuance based on the following:  (1)
appellant’s inability to assist counsel, largely based on her repeated
questions of, “What are we doing here?” and (2) appellant’s denial of her
apparent pregnancy.  The second on September 5, 2001, during
trial, at which time appellant’s counsel orally asserted a motion for
continuance and competency evaluation. 
Other than conclusory remarks by appellant’s
attorney, there is no evidence to support appellant’s alleged
incompetence.  In addition, the trial
court could have been concerned that the request for a competency evaluation at
such a late stage in the termination proceeding was a tactical maneuver to
delay the proceeding, and thereby force dismissal of the suit by operation of
law, pursuant to section 263.401 of the Texas Family Code.[4]  Accordingly, the trial court was not
presented with sufficient evidence to raise a bona fide doubt as to appellant’s
competency.  
 
                                                                                    
                                                                        /s/        Eva M. Guzman
                                                                                    Justice
 
Judgment rendered and Majority
and Concurring Opinions filed September 12, 2002.
Panel consists of Justices
Yates, Seymore, and Guzman.
Publish — Tex. R. App. P. 47.3(b).
 
 




            [1]  “The trial court abused its discretion by
failing to grant respondent Sheila Joyce Deavers’s
motion for competency evaluation and continuance on September 5, 2001[,]
because Sheila Joyce Deavers suffers from a mental
illness which prevents her from effectively communicating with her
court-appointed counsel and renders her unfit to proceed with proceedings.”


            [2]  The trial testimony reveals that appellant had
been offered psychological services and that the trial court previously ordered
a mental evaluation.  Appellant attended
neither.


            [3]  Appellant cites the American Bar
Association’s standard for criminal competency to stand trial:  
The test for determining mental competence to stand trial should be
whether the defendant has sufficient present ability to consult with
defendant’s lawyer with a reasonable degree of rational understanding and
otherwise to assist in the defense, and whether the defendant has a rational as
well as factual understanding of the proceeding.
 
ABA Criminal Justice Mental
Health Standards § 7-4.1s(b) (1989).


            [4]  “On the first Monday after the first
anniversary of the date the court rendered a temporary order appointing the
department as temporary managing conservator, the court shall dismiss the suit
affecting the parent-child relationship filed by the department that requests
termination of the parent-child relationship or requests that the department be
named conservator of the child.”  Tex. Fam. Code Ann.
§ 263.401.


