In re L.H.

1

In the Interest of L.H., a Child

No. 02-21-00260-CV

Court of Appeals of Texas, Second District, Fort Worth

January 27, 2022

On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-687549-20

Before Sudderth, C.J.; Wallach and Walker, JJ.

MEMORANDUM OPINION

Brian Walker Justice Appellant Mother appeals from the trial court's order terminating her parental rights to her infant daughter L.H. and appointing the Department of Family and Protective Services (DFPS) as L.H.'s permanent managing conservator.^[1] In a single issue, Mother contends that she received ineffective assistance from her appointed trial counsel. We affirm.

I. BACKGROUND

A. Removal and Pretrial Procedure

DFPS instituted a removal of L.H. from Mother's care after they both tested positive for cocaine at L.H.'s birth in the fall of 2020.^[2] DFPS petitioned to terminate Mother's parental rights, predicated mainly on Mother's drug use^[3] and violent criminal history, which included multiple convictions for felony robbery and an alleged aggravated assault which occurred during the pendency of L.H.'s case.^[4] Additionally, Mother had previously had her parental rights terminated to three older children in 2017 after it was found that Mother had violated paragraphs (D) and (E) of section 161.001(b)(1) of the Texas Family Code. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). Mother was ordered to comply with a DFPS service plan, which required her to engage in counseling, a drug assessment and any recommended drug treatment, random drug testing, a psychological evaluation, a parenting class, and maintain stable housing and employment.

Desaray Muma was appointed to represent Mother in both the 2017 termination case and L.H.'s case. The record shows that Muma attended all status hearings held in L.H.'s case but does not show that Muma propounded any written discovery upon DFPS.

B. Termination Trial

At the trial in July 2021, the DFPS caseworker testified that L.H. tested positive for cocaine at birth. Though Mother completed a parenting class, she did not complete any other services and failed to submit to drug testing on four occasions, tested positive for high levels of cocaine on a hair follicle test, and visited only sporadically with L.H. The caseworker also confirmed that Mother had a history of violent criminal conduct and had been jailed since early June 2021 after being arrested for aggravated assault.

Over Muma's hearsay objection, DFPS admitted drug test results showing that Mother had tested positive for cocaine and other illegal drugs on a hair follicle test in December 2020. DFPS also admitted (1) judgments showing that Mother had been convicted of felony robbery on two occasions for offenses that occurred in 2015 and 2017 and (2) a June 1, 2021 indictment alleging that Mother had committed aggravated assault with a deadly weapon.

Mother testified^[5] that she had completed parenting classes, some counseling, and had been receiving unemployment benefits since December 2020 after being laid off due to the Covid-19 pandemic. She confirmed past drug use but expressed concern that her mental health medications may have caused the most recent positive results. According to Mother, she and L.H. had a bonded relationship, and she only missed certain visits due to unreliable transportation. Mother expressed a desire to be reunited with L.H. and explained that she was in a drug rehabilitation program that would help her and L.H. to become reacquainted once Mother was released from jail.

Before cross-examination, Muma informed Mother on the record that Mother had a right against self-incrimination: "[S]o I don't want you to talk about your current criminal charge, okay?" During Mother's cross-examination, Muma interjected twice on the record to advise Mother that it was okay to answer certain questions concerning Mother's criminal history.

C. Order of Termination

The trial court terminated Mother's parental rights to L.H. after finding that Mother had violated (D) and (E) grounds^[6] and that termination was in L.H.'s best interest and appointed DFPS as L.H.'s permanent managing conservator. Of relevance, the order stated that "[a] jury was waived" and was approved as to form by counsel for DFPS and the unknown father, the attorney ad litem, and Muma. Mother filed a motion for new trial, arguing that Muma provided ineffective assistance. The trial court denied Mother's motion after hearing testimony on the issue. No formal findings of fact or conclusions of law were requested or filed, but before signing the denial order, the trial judge signed its "Rendition on Motion for New Trial" with extensive findings.

D. Motion for New Trial Evidence

To support her motion for new trial, Mother attached her entire client file in L.H.'s case as supplied to her by Muma. Among many documents, the file contained dozens of emails from Muma to Mother^[7] and others, various status reports from DFPS and other court-appointed entities related to L.H.'s case, and handwritten notes of phone conferences held between Muma and Mother. The emails showed that Muma: repeatedly informed Mother of hearing settings; counseled her regarding proper Zoom-hearing etiquette; implored Mother to contact Muma regarding the case; informed Mother about adoption and relinquishment; repeatedly admonished Mother to complete her service plan; and helped resolve issues such as determining the identity of the unknown father and finding a family placement for L.H.

Mother also attached to her motion an affidavit from Muma which substantively read in full:

I represented [Mother]. During the beginning of the case, we had good communication. In January of 2021, [Mother] stopped communicating with me. I sent multiple emails from January to June that went unanswered. In June of 2021, I found out that [Mother] was incarcerated. I wrote to her, but she did not respond.

Because of our poor communication, [Mother] and I never had the opportunity to discuss a bench trial versus a jury trial.

At the hearing on her motion, Mother testified that Muma did not inform her of her rights to a jury trial or against self-incrimination until the day of the trial in L.H.'s case. She also claimed to have arrived at the trial believing that it was related to her parental rights to her three older children who were the subject of her prior termination suit in 2017. Mother based this belief on a June 17, 2021 letter from Muma that Mother received while in jail informing her of the trial date but mistakenly captioned with the initials of her three older children and the case number associated with their earlier termination suit. Mother stated that it "messed [her] up in [her] mind" to learn that the trial was not, in fact, an opportunity to regain custody of her older children. This made it difficult, she said, to then testify regarding L.H.'s termination: "I wasn't prepared; I wasn't ready."

Mother also testified to strained communication with Muma throughout Muma's representation:

[MOTHER'S APPELLATE COUNSEL]: Ok. And did you have regular access to email?

[MOTHER]: Yes, but some of the email correspondence that [Muma] was sending me, I wasn't never getting them. And when they did come in, it was late. Like, when it was time for me to go to court or something like that, it was sent, like, around that same week.

So when I called [Muma] to try to discuss it with her, she'll try to quickly rush me up off the phone, and then tell me what I need to do or what need [sic] to be doing now. And that's the way it's supposed to be or how it's supposed to be done.

. . . .

[MOTHER'S APPELLATE COUNSEL]: How many times would you say you called Ms. Muma or called her office to talk to her?

[MOTHER] I called her very multiple [sic] times to talk to her.

. . . .

[MOTHER'S APPELLATE COUNSEL:]: Would you please describe Ms. Muma's reaction when you called her?

[MOTHER]: I feel that she didn't have no concern. I felt that she didn't care. I felt that - - and there was multiple times where I was hurried trying to explain to her what should I do, how should we go about doing this? She would tell me, "If they don't do this, they don't do that, I'm going to push the issue." That never occurred.

"I'm going to do this, and I'm going to do that," that never occurred. Days and days and months and months went by. I was still stuck in the same boat, going through the same thing. Going through my classes, finishing up my resource and doing everything I can to try to get my child out the [sic] system.

And I didn't have no help with my lawyer, I didn't have no - - I didn't. I didn't have that support with her.

Mother contended that Muma never visited Mother while she was in jail. Further, she claimed to have received no notice of any of the hearings in L.H.'s case and that she would have attended them had she known about them. Importantly, Mother never testified that she would have opted for a jury had Muma informed her of her right to one.

Muma testified that communication between her and Mother was strong at the outset of L.H.'s case but that she and Mother did not speak after November 2020, apart from Mother responding to a single email in April 2021. Though Muma did not visit Mother in jail, Muma sent a letter informing her of the trial in L.H.'s case and provided a self-stamped, self-addressed envelope for Mother to use to respond. Muma stated that Mother was accustomed to writing Muma from jail-this was something Mother had done in her earlier case in 2016 and 2017. But when Mother did not respond to this letter, Muma assumed that Mother ignored it like Mother had ignored Muma's recent emails.

Additionally Muma stated that she had been unaware of the erroneous caption on the letter until Mothe...