Olga Lesya Sytnianska Zedrick v. Stanislav Bilder

• Court: Court of Appeals of Texas
• Decided: January 23, 2019
• Docket: 05-18-01356-CV
• Status: Published

Opinion

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 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).

Because these two issues involve the same evidence, or lack thereof, Appellant

will present argument together so as not to be repetitive.

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).

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.

Because these two issues involve the same evidence, or lack thereof, Appellant

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.

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.

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.

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.

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).

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).

35 Appendix

Exhibit One . . . . . . . . . . . . . . . . . . . . . . . . . . . . Decree of Termination (Redacted)

Exhibit Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule 11 Agreement (Redacted)

Exhibit Three . . . . . . . . . . . . . Letter from Father to Appellate Counsel (Redacted)

36 r~

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.

nio 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:

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. mo . , CAUSE NO.JC.I3-877'W DECREE OF TERMINATION Page 2 of7 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.

mo CAUSE NO.JC-l3-87'7-W DECREE OF TERMINATION Page 3 of7 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

mo CAUSE NO.JC-13-877-W DECREE OF TERMINATION Page 4 of7 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.

ITIO CAUSE NO. JC-13-877-W DECREE OF TERMINATION Page 5 of7 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

mc 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

mo 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

ITIO CAUSE NO.JC-U-877-W DECRFE OF TERMINATION Page 7 of7 IL. fiEin WO.JC>13-00877-W t(f! J A 1 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

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