                                     Fourth Court of Appeals
                                             San Antonio, Texas
                                        MEMORANDUM OPINION
                                                 No. 04-15-00368-CV

                                     IN THE INTEREST OF M.N., a Child

                          From the 45th Judicial District Court, Bexar County, Texas
                                       Trial Court No. 2014-PA-02675
                                Honorable Martha B. Tanner, Judge Presiding

                                      OPINION ON MOTION FOR REHEARING

Opinion by:          Patricia O. Alvarez, Justice

Sitting:             Sandee Bryan Marion, Chief Justice
                     Marialyn Barnard, Justice
                     Patricia O. Alvarez, Justice

Delivered and Filed: November 25, 2015

REVERSED IN PART, AFFIRMED IN PART, REMANDED

           On October 14, 2015, we issued an opinion and judgment in this appeal. On October 29,

2015, the State filed a motion for rehearing. Although we deny the motion for rehearing, we

withdraw our opinion and judgment of October 14, 2015, and substitute this opinion and judgment

in its stead and remand this matter to the trial court for further proceedings.

           M.M.P.N., 1 M.N.’s biological mother, and B.W.M., M.N.’s presumptive father, appeal the

trial court’s order terminating their parental rights to minor child, M.N. Although each parent filed

a separate brief, both argue they were denied effective assistance of counsel during the termination

hearing. We conclude the trial court erred in terminating both M.M.P.N.’s and B.W.M.’s parental


1
    For purposes of this opinion, and the protection of minor child M.N., we use initials to identify all parties.
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rights. Accordingly, we reverse the trial court’s judgment granting the Texas Department of

Family and Protective Services’ petition for termination of both M.M.P.N.’s and B.W.M.’s

parental rights and remand this matter to the trial court for further proceedings consistent with this

opinion. However, because neither parent challenged the Department’s conservatorship under

section 153.131 of the Texas Family Code, we affirm the trial court’s appointment of the

Department as the managing conservator of M.N.

                           FACTUAL AND PROCEDURAL BACKGROUND

A.     The Department is Awarded Temporary Managing Conservator of M.N.

       On November 6, 2014, the Department received a referral alleging neglectful supervision

of newborn M.N. M.M.P.N. tested positive for amphetamines, benzodiazepam, opiates, and

methadone at the time of M.N.’s birth. M.N. also tested positive for methamphetamines, opiates,

and methadone.

       On November 13, 2014, the Department filed its Original Petition for Protection of a Child,

for Conservatorship, and for Termination in Suit Affecting the Parent Child Relationship. The

trial court also appointed counsel to represent each parent and signed temporary orders awarding

the Department temporary managing conservatorship of M.N. on November 24, 2014. M.M.P.N.

and her counsel were present at the hearing, but M.M.P.N. did not sign the order. A status hearing

and pretrial conference was held on January 14, 2015, and a permanency hearing was held on May

13, 2015.

       The case was called for trial on June 12, 2015. Although neither parent, nor their respective

counsel, was present for the hearing, the trial court proceeded to trial in their absence.

B.     Termination of Parental Rights Hearing

       The Department called two witnesses to testify—the Department’s caseworker and M.N.’s

foster parent.
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       1.      Anwar Morgan, the Department’s Caseworker

       With respect to B.W.M., Anwar Morgan testified that B.W.M.’s name did not appear on

the birth certificate; additionally no attorney general case establishing paternity had been filed.

Morgan further testified that B.W.M. was granted weekly visitation, but never exercised his right

to visit M.N. Morgan relayed he attempted to reach B.W.M. on multiple occasions and finally

made contact with him on May 1, 2015. Morgan set a meeting with B.W.M. for May 4, 2015, to

discuss M.N. and the Department’s procedures and plans; B.W.M. failed to appear for the meeting.

       Morgan spoke with B.W.M. for a second time a few days before the hearing. They

discussed the issue of B.W.M. establishing himself as the legal father of M.N. Morgan averred

that B.W.M. did not indicate a desire to submit to a DNA test.

       With regard to M.M.P.N., Morgan testified as to her positive drug tests when M.N. was

born. He further relayed that M.N. exhibited signs of withdrawal following her birth. Although a

service plan was created for M.M.P.N., Morgan explained the Department was unable to provide

M.M.P.N. a copy of such because she failed to return calls or text messages. Like B.W.M.,

M.M.P.N. was granted weekly visitation with M.N., but never exercised the opportunity to visit

M.N.

       Morgan testified that M.N. was seven-months old and living with the foster parents with

whom she was placed when she was born. He opined the Department was requesting termination

because neither parent was able to show any commitment to change any of the circumstances that

led to M.N. coming into the Department’s care. Moreover, Morgan explained that neither B.W.M.

nor M.M.P.N. ever exhibited any commitment to M.N.

       2.      J.D., M.N.’s Foster Mother

       The only other witness called before the trial court was J.D., M.N.’s foster mother. J.D.

confirmed M.N. was released from the hospital into her care. She described several examples of
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M.N.’s withdrawal symptoms, but relayed that most of the symptoms had subsided, with the

exception of the stiffening of muscles. The symptoms, however, continued to decrease with the

help of twice daily exercises. J.D. further reiterated that she was “100% committed to M.N. long-

term.”

C.       Trial Court Findings

         Following the short hearing, the trial court terminated both B.W.M. and M.M.P.N.’s

parental rights. As to M.M.P.N., the trial court concluded M.M.P.N.:

         (1)   engaged in conduct or knowingly placed the child with persons who
               engaged in conduct which endangers the physical or emotional well-
               being of the child, per Texas Family Code section 161.001(1)(E);
         (2)   constructively abandoned the child who has been in the permanent
               or temporary managing conservatorship of the Department of
               Family and Protective Services or an authorized agency for not less
               than six months and: (1) the Department or authorized agency has
               made reasonable efforts to return the child to the mother; (2) the
               mother has not regularly visited or maintained significant contact
               with the child; and (3) the mother has demonstrated an inability to
               provide the child with a safe environment, per Texas Family Code
               section 161.001(1)(N);
         (3)   failed to comply with the provisions of a court order that specifically
               established the actions necessary for the mother to obtain the return
               of the child who has been in the permanent or temporary managing
               conservatorship of the Department of Family and Protective
               Services for not less than nine months as a result of the child’s
               removal from the parent under Chapter 262 for the abuse or neglect
               of the child, per Texas Family Code section 161.001(1)(O); and
         (4)   been the cause of the child being born addicted to alcohol or a
               controlled substance, other than a controlled substance legally
               obtained by prescription, per Texas Family Code section
               161.001(1)(R).

TEX. FAM. CODE ANN. § 161.001(1)(E), (N), (O), (R) (West 2014). As to B.W.M., the trial court

concluded, “[B.W.M.] did not respond by timely filing an admission of paternity or by filing a

counterclaim for paternity or for voluntary paternity to be adjudicated under chapter 160 of the

Texas Family Code before the final hearing in this suit.” TEX. FAM. CODE ANN. § 161.002(b)(1)

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(West 2014). Finally, the trial court determined termination of M.M.P.N.’s and B.W.M.’s parental

rights was in M.N.’s best interests. See TEX. FAM. CODE ANN. § 161.001(2).

       After the trial court announced the termination ruling, M.M.P.N.’s attorney appeared in the

courtroom.

       Trial Court: The Court’s going to find that there is clear and convincing evidence,
                    appoint the Department managing conservator, termination of the
                    mother on “E,” “N,” “O” and “R” ground and the father on failure to
                    legitimate.
       Counsel:      I was in another court, your Honor, but I have no issue with what the
                     Court’s decided to do. I understand my client has not participated at
                     any level, at any time—
       Trial Court: True.
       Counsel:      —and I have had zero contact with her throughout this case.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Both parents contend they did not receive effective assistance of counsel during the

termination hearing. Although the Department agrees, we must still address this issue.

A.     Right to Counsel

       In a suit filed by a governmental entity requesting termination of the parent-child

relationship or the appointment of a conservator, an indigent person possesses a statutory right to

counsel. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); see TEX. FAM. CODE ANN. § 107.013(a)(1)

(West 2014). The Texas Supreme Court, relying on Texas Family Code § 107.013(a)(1), held

“there is a statutory right to counsel for indigent persons in parental-rights termination cases.” In

re M.S., 115 S.W.3d at 544. This right “necessarily includes the right to effective assistance of

counsel.” Id. (citing In re K.L., 91 S.W.3d 1, 13 (Tex. App.—Fort Worth 2002, no pet.) (“[I]t

would seem a useless gesture on the one hand to recognize the importance of counsel in termination

proceedings, as evidenced by the statutory right to appointed counsel, and, on the other hand, not




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require that counsel perform effectively.”)); accord In re J.M.O., 459 S.W.3d 90, 93 (Tex. App.—

San Antonio 2014, no pet.).

        The appropriate standard used to determine whether counsel is effective is the same as the

standard enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See

In re M.S., 115 S.W.3d at 544–45.           An appellant must show (1) that appointed counsel’s

performance was deficient and (2) that the deficient performance prejudiced his case. In re J.M.O.,

459 S.W.3d 90, 93 (Tex. App.—San Antonio 2014, no pet.) (applying Strickland standard); accord

In re M.S., 115 S.W.3d at 545. “This requires showing that counsel’s errors were so serious as to

deprive the [parent] of a fair trial, a trial whose result is reliable.” In re J.M.O., 459 S.W.3d at 93

(quoting Strickland, 466 U.S. at 687). We must consider all of the circumstances surrounding the

case and focus our review on whether counsel performed in a reasonably effective manner. In re

M.S., 115 S.W.3d at 545.

        This court previously held that, in a parental termination, a parent was denied effective

assistance of counsel when his appointed counsel failed to appear at trial. See In re J.M.O., 459

S.W.3d at 94. We concluded that under the first prong of the Strickland standard, there can be no

plausible strategic reason for trial counsel to fail to appear at trial, a critical stage of litigation. See

id. Additionally, under the second Strickland prong, there need not be a specific showing of

prejudice because when appointed counsel wholly fails to appear at trial, the adversary process

itself is presumptively unreliable. See id.

        The Austin Court of Appeals addressed a similar situation in Lockwood v. Texas

Department of Family and Protective Services, 03-12-00062-CV, 2012 WL 2383781, at *6 (Tex.

App.—Austin June 26, 2012, no pet.). In Lockwood, neither the mother nor her attorney appeared

for trial. The court concluded no plausible strategic reason existed for a trial counsel’s failure to

appear at a critical stage of litigation, specifically a parental termination case. Id. Accordingly,
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the court concluded the adversarial process employed “was so unreliable that a presumption of

prejudice is warranted.” Id.

       We see no difference in this case—the trial court proceeded to trial without either parent’s

or their counsel’s presence. We thus conclude both B.W.M. and M.M.P.N. were denied effective

assistance of counsel. See In re J.M.O., 459 S.W.3d at 93; Lockwood, 2012 WL 2383781, at *6.

We, therefore, reverse that portion of the trial court’s judgment terminating B.W.M.’s and

M.M.P.N.’s parental rights and remand this matter to the trial court for further proceedings

consistent with this opinion.

       Because neither parent’s appeal challenged the Department’s Family Code section 153.131

conservatorship within their appeal of the termination order, we affirm the trial court’s

appointment of the Department as the managing conservator of M.N. pursuant to section 153.131.

TEX. FAM. CODE ANN. § 153.131 (West 2014); see In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007)

(explaining procedure to be followed by a parent, the Department, and the trial court when a

judgment terminating parental rights is reversed by the court of appeals but the Department’s

conservatorship pursuant to section 153.131 is affirmed); see also In re R.S.D., 446 S.W.3d 816,

822–23 n.5 (Tex. App.—San Antonio 2014, no pet.).


                                                 Patricia O. Alvarez, Justice




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