in the Interest Of: M.N.M., a Child ( 2014 )

AFFIRMED; Opinion Filed December 1, 2014.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-14-00723-CV
IN THE INTEREST OF M.N.M., A CHILD
On Appeal from the County Court At Law
Kaufman County, Texas
Trial Court Cause No. 87539-CC
MEMORANDUM OPINION
Before Justices Lang, Myers, and Brown
Opinion by Justice Lang
Appellant S.C. (“Mother”) 1 appeals the trial court’s order terminating her parental rights
respecting her daughter, M.N.M., following a bench trial. Proceeding pro se in this Court,
Mother contends in three issues that the trial court erred by (1) not trying the case before a jury;
(2) “failing to grant a mistrial when my attorney asked for it because the Judge tried to cut off
my attorney’s cross-examination of witnesses and expressed a bias against me intimidating my
lawyer during the trial which deprived me of the right to have my lawyer present my case during
trial”; and (3) “terminating my parental rights in the face of the evidence that I have a disability
as described in the Americans With Disabilities Act and because that [sic] the Texas Department
of Family and Protective Services, despite knowing of my disability, failed to take my disability
into consideration when working with me on doing my services.”
1
We use initials to identify appellant and her daughter in this opinion. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP.
P. 9.8(b).
We decide Mother’s three issues against her. The trial court’s order is affirmed. Because
the law to be applied in this case is well settled, we issue this memorandum opinion. See TEX. R.
APP. P. 47.2, 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
This action was filed by the Texas Department of Family and Protective Services
(“DPS”) on January 28, 2013. 2 DPS sought immediate temporary conservatorship of M.N.M.
pursuant to Chapter 262 of the Texas Family Code. See TEX. FAM. CODE ANN. §§ 262.001–
262.205 (West 2014). Additionally, DPS’s original petition stated in part that “[i]f reunification
with [Mother] cannot be achieved,” DPS requested permanent conservatorship of M.N.M. and
termination of Mother’s parental rights based on (1) the best interest of M.N.M. and (2) “one or
more” of the acts and omissions set out in Texas Family Code section 161.001(1). Id. §161.001.
Attached to the original petition was an “Affidavit in Support of Removal” containing statements
by an “authorized representative” of DPS.
In an emergency order dated the same date this case was filed, the trial court (1) named
DPS temporary sole managing conservator of M.N.M. pursuant to Chapter 262, (2) appointed an
attorney ad litem and guardian ad litem to represent M.N.M., and (3) scheduled a “full adversary
hearing under [family code] § 262.201” on February 7, 2013.
On February 7, 2013, Mother (1) filed an “Original Answer” in which she asserted a
general denial and (2) appeared at the full adversary hearing in person and through counsel.
Following that hearing, the trial court issued an order in which it listed required actions of
Mother “necessary to obtain the return of the child” and stated “failure to fully comply with these
orders may result in the restriction or termination of parental rights.” The required actions
2
In its original petition, DPS named Mother and M.N.M’s alleged father as “Parties to be Served.” M.N.M.’s alleged father signed a
voluntary relinquishment of his parental rights prior to the trial court’s order at issue and is not a party to this appeal.
–2–
included, in part, complying with “each requirement set out in [DPS’s] original, or any amended,
service plan during the pendency of this suit.” Additionally, the trial court signed a February 7,
2013 “Scheduling/Discovery Order” in which it stated in part that any jury request by a party
must be received “no less than sixty days prior to the date set for trial.”
In an April 4, 2013 order, the trial court specifically approved a service plan filed by DPS
(“the service plan”) and made it part of that order. The service plan listed requirements to be
completed by Mother, including (1) undergoing drug testing, (2) a “substance abuse assessment,”
(3) a “psychological evaluation,” and (4) participating in counseling and parenting courses.
On April 12, 2013, DPS filed a “first amended petition” in which it restated its requests
for permanent conservatorship and termination of Mother’s parental rights “[i]f reunification
with [Mother] cannot be achieved.” The grounds for the requested termination of parental rights
included, in part, failure 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 [DPS] for not less than nine months as
a result of the child’s removal from the parent under Chapter 262.” See TEX. FAM. CODE ANN.
§ 161.001(1)(O). The trial court continued to hold hearings every few months respecting review
of the conservatorship appointment, placement of M.N.M., and Mother’s “compliance with
temporary orders and the service plan.”
In an order dated November 7, 2013, the trial court stated in part that this case “is hereby
set for trial on December 19, 2013.” On November 21, 2013, Mother filed another “Original
Answer.” In that answer, Mother stated in part that she “requests a jury trial and pays the jury
fee of $ 30.00.” The trial court signed a December 19, 2013 order in which it stated in part,
With regards to [Mother’s] request for a Jury Trial, the Court sustains [DPS’s]
Objection based upon the Scheduling/Discovery Order entered by the Court in
this matter February 7, 2013 . . . . Based upon the Scheduling/Discovery Order,
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the Court does find [Mother’s] request should have been submitted no later than
October 20, 2013, and is therefore untimely . . . .
The record shows the trial date was subsequently reset several times, due in part to
Mother retaining new defense counsel in December 2013. On December 31, 2013, Mother’s
new defense counsel filed a motion for continuance requesting, in part, “a re-setting of the
nonjury trial set for 9:00 p.m. [sic] on January 6, 2013 [sic].” A hearing on that motion for
continuance was held on January 6, 2014. At that hearing, the trial court stated to counsel for
DPS, “[W]e are here before the Court today; actually today on a trial before the Court. However,
[new defense counsel] since filed a request for a jury trial; is that your understand [sic]?”
Counsel for DPS stated in part, “I am not sure—I can’t recall if [new defense counsel] requested
a jury trial or not.” The trial court granted Mother’s motion for continuance and stated in part,
“The actual reason I am extending this case or continuing this case is [new defense counsel’s]
late arrival into this case, number one, and at the same time requesting a jury trial on top of that.”
Then, counsel for DPS stated she had been told by a court administrator that the date of February
18, 2014, was available for a “trial before the Court.” Trial was reset for that date with no
objection by Mother or her counsel.
A seven-day bench trial commenced on April 28, 2014. At the start of trial, defense
counsel stated “I want to reurge my Motion that I made at the last pre-trial hearing we had where
I requested that this matter be tried to a jury, that the requisite period of time had expired
between the time the fee was paid and the time [of] the trial and therefore, I do not want to waive
that issue.” The trial court stated “[t]hat’s overruled.”
During trial, Mother testified in part that she has been diagnosed with depression and
“ADHD” and “misdiagnosed” as bipolar. She stated she is not currently taking medication for
any of those conditions. On cross-examination, Mother testified in part,
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Q. Now, you understand that ADHD is inattentive [sic] to a project once you start
it and start, stop, start stop, that kind of thing?
A. I wouldn’t agree with that, no.
Q. How do you perceive it?
A. First, I believe that it depends on the individual on how they react to it. I am
not a medical professional, but I do believe that it depends on them. . . . . Where
my symptoms of ADHD is I’m all over the place, more or less. I’ll start like a
garden outside and it becomes a huge garden, as long as—along with out front
doing the flower beds and all of that and then back inside to do the remodeling
and I have multiple projects going on at one time, but they all are completed.
Anna Marie Roberts Davis, a clinical psychologist, testified she conducted a
psychological evaluation of Mother more than year earlier. Davis testified Mother (1) has “a
history of” ADHD and depression and (2) appeared to her to be bipolar.
Julie Briscoe, a nurse practitioner, stated she treated Mother during 2013. Briscoe
testified that at the time she treated Mother, Mother told her she was on medication for ADHD
that had been prescribed by another health care provider. According to Briscoe, Mother told her
the medication was not helping her and she was not having symptoms of ADHD. Briscoe stated
Mother requested to stop the ADHD medication and start medication for anxiety and depression.
Briscoe testified she did not diagnose Mother with ADHD. Finally, Briscoe stated she believed
Mother had depression at that time.
Pamela Martinez Tovar testified she is employed by DPS and has been “involved with
this case” since February 7, 2013. Tovar testified she met with Mother shortly after that date to
“do a social history,” which covers, among other things, “drug use” and “any chronic health
issues.” According to Tovar, Mother “reported a history of mental health illness.”
Tovar testified she prepared the service plan in this case. She stated that when she
prepares a service plan, she asks the parent if they understand what services DPS is asking the
parent to complete and “if there are any other services that the department could provide for
them that we’re not already offering.” According to Tovar, (1) she reviewed with Mother the
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service plan and the “legal timeline” respecting this case and (2) Mother signed a copy of the
service plan. Tovar stated that when she reviews the legal timeline of a case with a client, she
asks the client if he or she understands that the State of Texas allows DPS one year to “find the
child permanency.” According to Tovar, Mother “did appear sort of frantic to know about the
legal timeline that the State would have a year to work on reuniting [M.N.M.] with her.”
Tovar testified she memorialized some of her conversations with Mother in written
communications and sent those written communications to Mother “to insure she understood
what I just told her” and “remind” Mother of requirements she had not yet fulfilled. Several of
those written communications were admitted into evidence. Tovar stated Mother did not
complete the requirements in the service plan. Further, Tovar testified in part on direct exam as
follows:
Q. Would it surprise you if [Mother’s] coming forward today or sometime in this
process of this trial and offers completion of or continuing services, at this point
and time?
A. That would surprise me, yes.
Q. Why?
A. Because, I have been requesting documentation from her, asking if she’s
continuing service or if I needed to set something up again, various times.
Q. At any point and time, did she indicate to you that she was continuing to work
through the service plan?
A. No.
Q. Is it something if a parent or a client, however, we shall refer to them, comes to
you and says, I am still working services, I need more time, is that something that
the department takes into consideration?
A. Yes, definitely, specifically, because [Mother] has used up all of her allocated
counseling units, so I could have just started those over again.
On cross-examination, Tovar testified in part as follows:
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Q. And, you also, through the course of your management of this case learned that
[Mother] had ADHD?
A. I did.
....
Q. Okay. And, in your continuing education or your undergraduate training or
your academy training, were you ever informed as to whether or not the
Americans with Disabilities Act in Department of Protective Family Services in
the discharge of their duties with their cases? [sic]
A. I don’t have knowledge of that.
Q. Okay. So, you don’t know whether or not someone who presents with a
disability is to be treated differently from someone who presents without a
disability, do you?
A. I don’t.
....
Q. Do you know of any other health conditions that [Mother] experienced?
A. I know of some mental health conditions that she was diagnosed with.
Q. Okay. And, those mental health issues were?
A. She was diagnosed as being Bi-polar.
....
Q. Okay. Now, we’ve touched on various different aspects of [Mother’s] ability to
cooperate or your perception of her ability to cooperate and you perceived that
she wasn’t cooperating; is that the sum and substance of what I get from what you
were saying?
A. She didn’t cooperate with services.
Q. Okay. And, you had available to you or you were placed on notice about the
fact that she had potentially a disability, correct?
A. During my case, not at the beginning.
Q. Okay. At any point and time during your case, now you are a State Agent—
member of a representative of the State Agency, correct?
A. Yes.
Q. And, as a member of that State Agency you had a duty to accommodate her;
didn’t you?
A. I don’t know that I did.
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Q. Okay. You’ve never been informed of that obligation?
A. No.
Q. Just to make certain that I can leave the subject. You’ve never been informed
of the department’s responsibilities under the American With Disabilities Act of
1995?
A. I don’t recall being trained on there being accommodations that I had to make
as a caseworker.
During cross-examination of Tovar by defense counsel, the trial judge asked defense
counsel to approach the bench alone. A discussion off the record followed and the trial then
resumed. Shortly thereafter, in chambers outside of the courtroom, defense counsel stated to the
trial judge on the record as follows:
I have been admonished by the Judge as it applies to my cross examination and I
understand that the Court has become impatient with what I am doing but because
I am trying to demonstrate the difference in the treatment of the child at the hands
of the mother in contrast to the treatment of the child while in the custody of the
Department of Family Services, I feel like now abridges any of my client’s right
to an opportunity to have a fair and impartial decision because I have offended the
Judge and I don’t think he is happy—is the best way to put it and I don’t want to
compromise my client’s ability to have a fair trial, consequently because of my
activities, and so, I have asked permission to withdraw from the case.
The trial court denied defense counsel’s request to withdraw from the case. The parties returned
to the courtroom and the trial resumed.
On the next day of trial, defense counsel stated
Comes now the Defendant before the opening of the evidence—reopening of the
evidence moves Court for mistrial based upon the events that occurred on
Wednesday afternoon wherein the counsel for the Defendant felt that his right to
cross examine a witness had been abridged. Therefore, when witness was taken
on further Direct or Cross, depending the prospective by the Ad Litem, counsel
did not feel that it was appropriate to make objections that would otherwise have
been interposed to the evidence that was offered and therefore, error has been
allowed to become a part of the record and because of the rights of the Defendant
have been prejudice to the extent that the evidence that was offered and the Cross
Examination, which may now be permissible, I am concerned that the record may
contain flaws and we would move for mistrial on that bases. [sic]
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The trial court denied the motion for mistrial. Then, the parties resumed their examination of
Tovar. Defense counsel stated in part to the trial court, “As a matter of clarification, Judge,
based on that earlier motion that I made will I be permitted to continue to Cross Examination this
witness [sic] in the areas that I have omitted because of my perception to the Court’s ruling.”
The trial court replied, “Yes, sir.”
During closing arguments, defense counsel stated in part
Ms. Tovar, likewise, told us that they have no training in the Americans With
Disability Act. Well, the Americans With Disability Act does apply to a State
Agency. Specifically, applies to a State Agency. And, in what sense does it apply?
It applies when you meet someone who has a disability. ADHD is a recognized
disability. Bipolar disorder is a recognized disability and depression is a
recognized disability. And, if you have an obligation under Federal Law to render
accommodation and you failed to do. [sic] So, you’ve exposed your state agency,
although, not in this form [sic], but in Federal Court to potential penalty that could
run up to a hundred million dollars, if that’s what they like to do. They may have
their opportunity to do so, to face that evidence in the future. But, for purposes for
our hearing, it shows a short coming, a serious short coming in the way that they
undertook their obligations.
The attorney ad litem stated in part during closing arguments
[Counsel for Mother] focuses on the American Disability Act [sic] and how the
Department has a duty to work with people who have a disability. I don’t know if
[Mother] has a disability or not, one minute she’s Bipolar, the next minute she’s
not Bipolar. One minute she’s got ADHD, the next minute she doesn’t.
Finally, counsel for DPS stated in part during closing arguments
I will refer the Court to failure to comply with provisions of a Court Order put in
place to allow those families unification, that’s [family code section
161.001(1)(O)]. Your Honor, the law provides no provision for excuses or for
partial compliance with this statute and that’s all you have evidence wise is
excuses and partial compliance with the service plan.
Following trial, by order dated May 15, 2014, the trial court terminated Mother’s parental
rights to M.N.M. That order stated in part, “A jury was waived, and all questions of fact and of
law were submitted to the Court.”
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On June 4, 2014, Mother filed (1) a request for findings of fact and conclusions of law,
(2) a notice of appeal, 3 and (3) a “Motion for Entry of Order of Judgment Nunc Pro Tunc.” In
her motion for judgment nunc pro tunc, Mother argued (1) she did not waive her right to a jury
trial and therefore the statement of waiver in the trial court’s termination order was in error 4 and
(2) the trial court’s “findings” in the termination order respecting particular elements of one of
the two specific grounds for termination listed in the order were “not supported by the record.”
After a hearing on Mother’s motion for judgment nunc pro tunc, the trial court signed a
July 1, 2014 “Nunc Pro Tunc Order of Termination.” In that order, the trial court stated in part,
“A jury request was denied by the court on December 19, 2013, based on the finding that
[Mother] waived her right to jury trial by failing to timely request same.” Additionally, the trial
court’s order stated in part
6.1. The Court finds by clear and convincing evidence that termination of the
parent-child relationship between [Mother] and the child the subject of this suit is
in the child’s best interest.
6.2. Further, the Court finds by clear and convincing evidence that [Mother] has:
6.2.1. 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,
pursuant to § 161.001(1)(N), Texas Family Code;
3
This is an accelerated appeal pursuant to Texas Rule of Appellate Procedure 28.4(a). See TEX. R. APP. P. 28.4(a); see also TEX. FAM.
CODE ANN. § 263.405. Further, recent amendments to the rules of judicial administration require disposition of appeals from judgments
terminating parental rights, so far as reasonably possible, within 180 days of the date the notice of appeal is filed. See TEX. R. JUD. ADMIN.
6.2(a), available at http://www.supreme.courts.state.tx.us/MiscDocket/12/12903200.pdf.
4
Specifically, the portion of Mother’s motion for entry of judgment nunc pro tunc respecting a jury trial stated as follows:
[Mother] did not waive empanelment of a jury. [Mother] filed a jury request but such was deemed out of time and was
overruled. The record of this action will reflect that the time between the filing and requesting of a jury was in excess of the
time required by Rule 216 of the Texas Rules of Civil Procedure. In the first re-urging of the Jury Request at pre-trial,
[Mother] complained of the Associate Judge’s Scheduling/Discovery Order filed February 7, 2013, wherein it modified
Rule 216 of the Texas Rules of Civil Procedure in violation of Texas Rule of Civil Procedure 3a(2) which states, in
pertinent part: “no time period provided by these rules may be altered by local rules.” The record reflects more than sixty
days expired between the filing of the motion and commencement of trial. [Mother] re-urged her request for a jury trial at
the commencement of trial.
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6.2.2. 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, pursuant to
§ 161.001(1)(O), Texas Family Code;
6.3. IT IS THEREFORE ORDERED that the parent-child relationship between
[Mother] and the child the subject of this suit is terminated.
(emphasis original). No findings of fact or conclusions of law were filed by the trial court.
II. MOTHER’S ISSUES
A. Jury Request
1. Standard of Review
We review the trial court’s denial of a party’s demand for a jury trial under an abuse of
discretion standard. In re J.N.F., 116 S.W.3d 426, 430 (Tex. App.—Houston [14th Dist.] 2003,
no pet.) (citing Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). This
standard requires a review of the entire record. Id. The test for abuse of discretion is whether
the trial court acted without reference to any guiding rules and principles. Id.
2. Applicable Law
A party to a suit under the family code has a right to demand a jury trial in proceedings
that do not include adoption or the adjudication of parentage. TEX. FAM. CODE ANN. § 105.002.
“In order to maintain that request, it is required that the party file a written request with the clerk
of the court in a reasonable amount of time before the trial date, but not less than thirty days in
advance, and a jury fee must also be paid to the clerk of the court within the same time frame.”
Stallworth v. Stallworth, 201 S.W.3d 338, 346 (Tex. App.—Dallas 2006, no pet.) (citing TEX. R.
CIV. P. 216; Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985)); see also TEX. CONST. art. V,
§10 (no jury shall be empaneled in any civil case unless jury fee is paid or legislature otherwise
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provides); TEX. FAM. CODE ANN. § 110.001 (except as otherwise provided, “fees in a matter
covered by this title shall be as in civil cases generally”). “The clerk shall promptly enter a
notation of the payment of such fee upon the court’s docket sheet.” TEX. R. CIV. P. 216(b). A
party who is unable to afford the jury fee must file an affidavit to that effect within the time for
making such payment. See TEX. R. CIV. P. 217.
3. Application of Law to Facts
In her first issue, Mother contends the trial court committed reversible error by not
granting her a jury trial. Specifically, Mother asserts in part that the trial court “illegally changed
Texas Rules of Civil Procedure 216 which gives me 30 days before the beginning of a trial to
request a jury trial when [the judge] ignored Texas Rule of Civil Procedure 3a(2) which says that
no one can change the times set out in the Texas Rules of Civil Procedure.” Texas Rule of Civil
Procedure 3a(2) states “no time period provided by these rules may be altered by local rules.”
TEX. R. CIV. P. 3a(2). Mother stated in her motion for judgment nunc pro tunc described above
that this argument was asserted in the trial court “at pre-trial.” 5 Even assuming without deciding
that this argument was preserved for appellate review, Mother does not cite, and the record does
not show, any “local rule” that altered the time period in rule 216. See id. Therefore, we
disagree with Mother’s contention that the trial court “illegally changed” a rule of civil procedure
in violation of rule 3a(2).
Additionally, Mother states in her brief on appeal, “My request for a jury trial was filed in
November 21, 2013, and the Judge trial started a hundred and fifty-eight days later on April 28,
2014.” We construe Mother’s appellate argument to assert that her jury demand became timely
when the trial date was reset. See TEX. R. APP. P. 38.1(f) (statement of appellant’s issue will be
5
The record on appeal does not show this argument was asserted by Mother in the trial court prior to her motion for judgment nunc pro
tunc.
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treated as covering every subsidiary question that is fairly included); see also Halsell v. Dehoyos,
810 S.W.2d 371, 371 (Tex. 1991) (untimely jury demand became timely when trial court reset
case and demand was timely as to new trial date).
DPS asserts in part that the trial court did not deprive Mother of any right to jury trial
because (1) Mother “affirmatively waived a jury trial at the hearing on her motion for
continuance on January 6, 2014” and (2) her “renewal of her request for jury trial” on the first
day of trial was “untimely.”
Even assuming without deciding that Mother’s written demand for a jury trial became
timely after the trial date was reset, a party requesting a jury in a civil case must also timely pay
the required jury fee. See TEX. CONST. art. V, §10; Stallworth, 201 S.W.3d at 346 (“In order to
maintain that [jury] request, it is required that the party file a written request with the clerk of the
court in a reasonable amount of time before the trial date . . . and a jury fee must also be paid to
the clerk of the court within the same time frame.”); TEX. R. APP. P. 216. The record shows (1)
Mother asserted in her answer filed in the trial court that she “requests a jury trial and pays the
jury fee of $ 30.00” and (2) Mother’s counsel asserted on the first day of trial that “the requisite
period of time had expired between the time the fee was paid and the time [of] the trial.”
Additionally, Mother asserts in her appellate brief that her attorney “paid the charges for a jury
trial.” However, Mother does not cite to the record respecting payment of the jury fee. See TEX.
R. APP. P. 38.1(i). Further, there is no notation of payment of a jury fee on the docket sheet.
Any jury fee paid is required to be noted on the docket sheet by rule 216(b). See TEX. R. CIV. P.
216(b) ( “The clerk shall promptly enter a notation of the payment of such fee upon the court’s
docket sheet.”). Additionally, there is no documentation or entry in the bill of costs showing
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payment of the charges, 6 nor is there other indication in the record that a jury fee was paid or that
Mother was excused from paying such fee. See TEX. R. CIV. P. 217 (jury fee not required when
party files affidavit of inability to pay fee); In re Marriage of Crosby, 322 S.W.3d 354, 355–56
(Tex. App.—El Paso 2010, no pet.) (concluding appellant was not entitled to jury trial because
“[a]lthough the petition recites that a jury fee had been tendered with the answer, the case
summary does not reflect that any such payment was received by the District Clerk”); Romero v.
Zapien, No. 13-07-00758-CV, 2010 WL 2543897, at *14 (Tex. App.—Corpus Christi June 24,
2010, pet. denied) (concluding trial court was not required to hold jury trial where there was no
evidence or documentation that jury fee was paid), disapproved on other grounds by Iliff v. Iliff,
339 S.W.3d 74, 78 n.2 (Tex. 2011); cf. Norris v. Norris, No. 05–01–01502–CV, 2002 WL
1742397, at *3 (Tex. App.—Dallas July 29, 2002, no pet.) (not designated for publication) (no
error in not holding jury trial where there was “no evidence” appellant requested jury and paid
jury fee). “An appellant has the burden to bring forth sufficient record and authority to support
reversible error.” Rosenblatt v. City of Houston, 31 S.W.3d 399, 407 (Tex. App.—Corpus
Christi 2000, pet. denied); see TEX. R. APP. P. 44.1 (“No judgment may be reversed on appeal on
the ground that the trial court made an error of law unless the court of appeals concludes that the
error complained of . . . probably cause the rendition of an improper judgment . . . .”). On this
record, we conclude Mother has not demonstrated reversible error respecting denial of a jury
trial.
We decide against Mother on her first issue.
6
The Texas Supreme Court has stated that “‘[c]osts,’ when used in legal proceedings, refer not just to any expense, but to those paid to
courts or their officers.” In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168, 175 (Tex. 2013); see BLACK’S LAW DICTIONARY 398 (9th ed.
2009) (defining “costs” as, inter alia, “[t]he charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees”).
Although the “bill of costs” in the appellate record in this case is not itemized, it shows total payments of “$0.00” respecting the amounts charged
in this case.
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B. Denial of Motion for Mistrial
In her second issue, Mother contends the trial court erred by not granting her motion for
mistrial “because the [trial judge] tried to cut off my attorney’s cross-examination of witnesses
and expressed a bias against me intimidating my lawyer during the trial which deprived me of
the right to have my lawyer present my case during trial.” We construe Mother’s issue to assert
complaints of “bias” as to the trial judge and ineffective assistance of counsel.
In support of her second issue, Mother cites (1) a portion of the trial record in which the
trial court sustained an objection by DPS on the ground of relevance during her counsel’s cross-
examination of a former DPS investigator and (2) a subsequent portion of the record in which an
objection by DPS to her counsel’s “form of questioning” as to the same former investigator was
sustained. Additionally, Mother cites the portions of the record described above in which, during
cross-examination of Tovar, defense counsel was asked to approach the bench alone, made a
request to withdraw from the case, and moved for mistrial. According to Mother’s appellate
brief,
[The trial judge] denied my attorney’s motion for a mistrial after intimidating my
attorney. [The trial judge’s] failure to grant the motion for a new trial [sic] was an
abuse of discretion because he injected himself into how my attorney was
representing me and when he did that he showed that he favored the District
Attorney who was representing [DPS], and the Guardian Ad-Litem who was
aligned with the District Attorney’s interest in terminating my parental rights. I
was denied my right to a fair and impartial trial because [the trial judge] changed
how I was being represented.
Further, Mother contends
When [the trial judge] called my attorney up to the bench and lectured him, he
affected my attorney’s willingness to oppose the termination of my parental
rights. I was denied effective assistance of counsel after [the trial judge] lectured
my attorney.
DPS asserts Mother did not preserve any error for review because “whatever was said by
the trial court to counsel is not included in this record, and [Mother] did not request a bill of
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exception or otherwise make the comments part of the record.” Additionally, DPS argues, “the
record reflects that counsel did effectively represent his client and in fact continued the cross
examination that he claimed was stifled by the [trial] court.”
1. Standard of Review and Applicable Law
We review a trial court’s denial of a mistrial under an abuse of discretion standard. See
In re J.A., 109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied); Lewis v. United Parcel
Serv., Inc., 175 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
The Texas Supreme Court has stated
[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion, and opinions the judge forms during a trial do not necessitate recusal
unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible. Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky v. United States,
510 U.S. 540, 555 (1994)). Further, expressions of impatience, dissatisfaction, annoyance, and
even anger do not establish bias or partiality. Id. “‘A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune.’” Id. (quoting Liteky, 510 U.S. at 556); accord In re A.E.A.,
406 S.W.3d 404, 420 (Tex. App.—Fort Worth 2013, no pet.).
“[T]he statutory right to counsel in parental-rights termination cases embodies the right to
effective counsel.” In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). In evaluating claims of
ineffective assistance of counsel in civil parental-rights termination cases, we begin with the
standard set forth by the United States Supreme Court for criminal cases in Strickland v.
Washington. Id. at 544–45 (citing Strickland, 466 U.S. 668, 687 (1984)). Under the Strickland
standard, a parent must show both that (1) his attorney’s performance was deficient and fell
below an objective standard of reasonableness, and (2) the deficient performance prejudiced his
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defense. Id. at 545. To show prejudice, the parent “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. In this context, “[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
2. Application of Law to Facts
In In re A.E.A., a father argued that the trial court’s negative disposition toward him
deprived him of a proceeding before a fair and impartial judge. See 406 S.W.3d at 420.
Specifically, the record in that case established that the trial court instructed the father to answer
the questions asked of him without adding nonresponsive material to his answers. Id. When the
father continued to give nonresponsive answers, the trial court stated its frustration on the record,
called for a break in the proceedings, and suggested that the father’s attorney use the break to
talk to the father about his responsiveness to questions. Id. The father pointed to the trial court’s
statement on the record that the father was “irritating” the judge and argued that the trial court’s
bias directly affected its rulings. Id. The court of appeals applied the law described above and
concluded the record did not support the father’s claims of judicial bias and prejudice. Id. (citing
Dow Chem. Co., 46 S.W.3d at 240).
In the case before us, Mother does not explain, and the record does not show, how the
sustaining of the two objections cited by her displayed “a deep-seated favoritism or antagonism.”
See Dow Chem. Co., 46 S.W.3d at 240. Further, the record does not show what the trial judge
said to defense counsel when defense counsel was asked to approach the bench alone. Cf.
Espinoza v. State, No. 04–13–00462–CR, 2014 WL 1319353 (Tex. App.—San Antonio Apr. 2,
2014, no pet.) (mem. op., not designated for publication) (“the record in this case does not
establish the nature of the outbursts upon which Espinoza bases his complaint; therefore, the
record cannot establish a clear showing of bias by the trial court’s failure to grant a mistrial
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based on these outbursts”). Additionally, the record shows that subsequent to the trial court’s
denial of Mother’s motion for mistrial, (1) defense counsel asked the trial court, “will I be
permitted to continue to Cross Examination this witness [sic] in the areas that I have omitted
because of my perception to the Court’s ruling” and (2) the trial court replied, “Yes, sir.” We
conclude the record in this case does not support Mother’s claim of judicial bias. See Dow
Chem. Co., 46 S.W.3d at 240; In re A.E.A., 406 S.W.3d at 420.
As to Mother’s claim of ineffective assistance of counsel, Mother does not cite the
applicable test described in Strickland. See In re M.S., 115 S.W.3d at 544–45. Further, even
assuming without deciding that Mother’s argument can be construed to assert that her attorney’s
performance was deficient and fell below an objective standard of reasonableness, she does not
address or demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” See Strickland, 466 U.S. at 694.
Accordingly, on this record, we conclude Mother has not met her burden to show ineffective
assistance of counsel. See id.; In re M.S., 115 S.W.3d at 544.
Mother’s second issue is decided against her.
C. Alleged Disability
In her third issue, Mother contends the trial judge “committed an error by terminating my
parental rights in the face of the evidence that I have a disability as described in the Americans
With Disabilities Act and because that [sic] the Texas Department of Family and Protective
Services, despite knowing of my disability, failed to take my disability into consideration when
working with me on doing my services.” 7 In her “summary of the argument” section of her
appellate brief, Mother states she is “complaining about the termination of my parental rights
7
In support of her argument respecting her third issue, Mother cites “42 U.S.C. section 12102(2).” See 42 U.S.C.A. § 12102(2) (West
2014). Section 12102 of the Americans With Disabilities Act is titled “Definition of Disability,” and the subsection cited by Mother defines
“major life activities” as that term is used in the definition of “disability.” Id.
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because [DPS] knew that I had disabilities which affected my ability to concentrate and complete
the services they asked me to do.” Further, in the body of her brief, she asserts in part (1) “[m]y
medical conditions were ignored and I was discriminated against in [DPS’s] handling of my
case” and (2) “[t]he sum total of Ms. Tovar’s handling of my services proves that there was a
complete lack of appreciation of my problems, that I got no help from [DPS], and that I was not
offered the fair opportunity to comply with the court’s orders or the service plan.” Additionally,
in the last paragraph of her argument, Mother states
2. Clear and Convincing Evidence. In spite of the testimony of Ms. Tovar which
contradicts itself in numerous places, the Judge committed an error by terminating
my parental rights in the face of the evidence that I have a disability as described
in the American’s [sic] With Disabilities Act and because [DPS] failed to take my
disability into consideration when working with me on doing my services. The
evidence, taken as a whole, clearly demonstrates that I tried to work services, that
my case worker, and the various court-ordered service providers failed to ensure
that my disabilities were taken into account in the handling of my case.
(emphasis original). Finally, in her prayer in her appellate brief, Mother asserts in part that the
trial judge “abused his discretion in failing to find that [DPS] failed to prove by clear and
convincing evidence that in spite of my disabilities, I understood and appreciated the significance
of the court order he found that I didn’t comply with, and failed and refused to take into
consideration my disability in denying the termination of my parental rights [sic] to my
daughter.”
DPS responds Mother “failed to preserve this claim of error for review by failing to point
out any place in this record where she presented her complaint to the trial court.” Further, DPS
argues, “even assuming [Mother] actually has ADHD, nothing in this record demonstrates that
the trial court abused its discretion in terminating her parental rights.”
1. Applicable Law
Family code section 161.001 provides two prerequisites for termination of parental rights.
See TEX. FAM. CODE ANN. § 161.001. First, the proponent must establish one or more of the
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recognized grounds for termination. Id. § 161.001(1). Second, termination must be in the
child’s best interest. Id. § 161.001(2). Because termination of parental rights involves
fundamental constitutional rights, evidence justifying termination must be clear and convincing.
See, e.g., In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re S.M.R., 434 S.W.3d 576, 580 (Tex.
2014).
Several Texas courts of appeals have concluded that a complaint respecting DPS’s lack
of compliance with the Americans with Disabilities Act (“ADA”) in the context of a termination
of parental rights constitutes an affirmative defense and a parent asserting such affirmative
defense “must plead, prove, and secure findings to sustain the defense” or it is “waived.” In re
C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999, no pet.); accord In re C.L.,
No. 07-14-00180-CV, 2014 WL 5037982, at *3–4 (Tex. App.—Amarillo Oct. 7, 2014, no pet.)
(mem. op.); In re J.I., No. 2-04-299-CV, 2005 WL 1047891, at *14 (Tex. App.—Fort Worth
May 5, 2005, no pet.) (mem. op.). However, at least one court of appeals has followed foreign
jurisdictions in declining to recognize noncompliance with the ADA as an available defense in
cases involving termination of parental rights. See In re S.G.S., 130 S.W.3d 223, 229–30 (Tex.
App.—Beaumont 2004, no pet.); cf. In re C.L., 2014 WL 5037982, at *3 (describing split among
Texas courts of appeals and stating “[o]ur supreme court has not addressed the issue”); In re
A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *5–*6 (Tex. App.—Texarkana Jan. 10, 2006,
no pet.) (mem. op.) (concluding issue respecting noncompliance with ADA was waived pursuant
to In re C.M. and “[e]ven if not waived, there is no authority that such a defense could be
properly raised in a proceeding of this nature”).
2. Application of Law to Facts
In the case before us, we construe Mother’s complaint in her third issue as an argument
that the trial court erred by terminating her parental rights because DPS failed to comply with the
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ADA by accommodating her special needs in providing services to her. See In re C.M., 996
S.W.2d at 269–70; see also In re J.I., 2005 WL 1047891, at *14. Assuming without deciding
that Texas recognizes a complaint of lack of compliance with the ADA in cases involving
termination of parental rights as an affirmative defense, Mother was required to “plead, prove,
and secure findings to sustain the defense” in order to preserve this complaint for appellate
review. In re C.M., 996 S.W.2d at 270. Mother does not address the requirement to “plead,
prove, and secure findings” respecting her complaint or explain how the record shows that
requirement was satisfied, nor does the record show Mother specified in the trial court any
provision of the ADA with which there was no compliance. See id.; In re C.L., 2014 WL
5037982, at *4. Further, Mother does not cite on appeal any applicable requirements of the
ADA that were not met or any provisions that were violated. See TEX. R. APP. P. 38.1(i). On
this record, we conclude Mother’s third issue presents nothing for this Court’s review.
We decide Mother’s third issue against her.
III. CONCLUSION
We decide against Mother on her three issues. The trial court’s order is affirmed.
140723F.P05
/ Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.N.M., A CHILD On Appeal from the County Court At Law,
Kaufman County, Texas
No. 05-14-00723-CV Trial Court Cause No. 87539-CC.
Opinion delivered by Justice Lang, Justices
Myers and Brown participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 1st day of December, 2014.
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