IN THE INTEREST OF JR AND CHILDREN v. << (2017)

MEMORANDUM OPINION

In a suit brought by the Texas Department of Family and Protective Services (the Department), Nancy's parental rights to her four children were terminated following a jury trial.¹ In this accelerated appeal, Nancy and her eldest son, John, contend that the attorney ad litem who represented the three other children (the Children), rendered ineffective assistance of counsel during trial. Because neither Nancy nor John has standing to appeal, we affirm the trial court's judgment.

I. Background

Nancy is the mother of fifteen-year-old John, eleven-year-old Abe, nine-year-old Paul, and eight-year-old Rachel. In September 2015, another of Nancy's children, not the subject of this case, was struck by a vehicle in front of Nancy's house. That child ² died as a result of his injuries.³ While law enforcement officers were investigating the death of that child, Nancy's four other children were interviewed. Eventually, referrals were made to the Department alleging that neglect, physical abuse, and sexual abuse of the children had occurred in Nancy's home. As a result, the Department filed an original petition for protection of a child, for conservatorship, and for termination affecting Nancy's rights to John. The trial court appointed Court Appointed Special Advocates (CASA) as John's guardian ad litem and Amanda Solomon as his attorney ad litem. Temporary orders were entered on December 28, 2015, giving the Department temporary managing conservatorship of John and giving temporary possessory conservatorship to Nancy.

On February 19, 2016, the trial court consolidated John's case with a similarly founded case filed by the Department against Nancy involving Abe, Paul, and Rachel.⁴ On March 23, 2016, the trial court entered a permanency hearing order showing that Solomon appeared at the permanency hearing on behalf of John and that J. Daniel Perkins appeared at the hearing as attorney ad litem for the remaining three children, Abe, Paul, and Rachel.⁵

A jury trial was held on April 24, 2017. After the presentation of evidence,⁶ the trial court ordered that Nancy's parental rights to all four children be terminated based on the jury's findings that: (1) termination was in the best interest of all four children; (2) she had “knowingly placed or knowingly allowed the child[ren] to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of the child[ren]”; and (3) she “engaged in conduct or knowingly placed the children with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the children.”

Nancy and her son, John, appeal from the trial court's order maintaining that the Children's trial counsel failed to provide effective assistance of counsel. The Department contends that Nancy and John lack standing to complain of the Children's attorney ad litem's performance. We affirm the trial court's judgment.

II. Discussion

Nancy and John do not challenge the jury's findings relating to the endangerment grounds or that it was in the Children's best interests to terminate Nancy's parental rights. Instead, they contend that Perkins' representation of the Children as their attorney ad litem amounted to ineffective assistance of counsel. Specifically, Nancy and John contend that Perkins failed to perform the requisite statutorily madated duties while representing the Children, maintaining that (1) he ignored the Children's expressed desires, as shown in their answers to interrogatories, to either remain with or have continued contact with Nancy; (2) he announced at trial that he intended to wait until after the Children testified to make a final determination as to whether their desires had changed; (3) he informed the jury that the Children would be testifying at trial, however, the testimony relating to their desires was but one of many factors that were to be considered; and (4) during jury voir dire, he “made no inquiries of prospective jurors concerning alternatives short of termination,” and he failed to “voir dire on the option of appointing [Nancy] as possessory conservator.”⁷ In response, the Department maintains that Nancy and John lack standing to complain of Perkins' alleged ineffective representation of the Children.

A party lacks standing to complain of errors that do not injuriously affect her or which only affect the rights of others. In re T. N., 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004, no pet.). Pointing to S.G.S., John claims that Texas courts have heard cases in which parents have alleged ineffective assistance of counsel claims against a child's attorney ad litem. See In re S.G.S., 130 S.W.3d 223, 226 (Tex. App.—Beaumont 2004, no pet.). In S.G.S., the parents claimed that the children's attorney ad litem failed to satisfy her duty to investigate because she failed to meet with them. Id. The appellate court addressed the substantive issue of whether S.G.S.'s attorney ad litem was ineffective; however, the court chose not to address the standing issue, stating, “For the moment, we will set aside the issue of whether the performance of the children's representative affects the parent's rights to due process and equal protection, and focus upon the factual basis for the complaint raised on appeal.” Id. In its final analysis, the appellate court found that the parents' ineffective assistance of counsel claims were without merit. Id. at 228.

On the other hand, multiple courts have directly addressed the issue of standing and found that parents do not have standing to complain of a child's attorney ad litem's performance. The Fort Worth appellate court addressed this issue in T.N., 142 S.W.3d 522. There, as in this case, the children's mother maintained that the children's ad litem attorney failed to adequately fulfill his mandated duties and that such failure amounted to a violation of the mother's due process and equal protection rights under the state and federal constitutions. Id. at 524. The court noted,

The record demonstrates that the children's attorney ad litem did not meet with his clients until three days after trial began. It also demonstrates no evidence of the children's desires about termination. While we do not reach the substance of Mother's complaint, we are appalled that any attorney, much less one appointed to represent the interests of vulnerable children, could fail to meet with his clients, not to mention fail to ascertain his client's trial objectives, until such trial was well underway.

Nevertheless, Mother does not have standing to appeal, nor did she at trial, to complain about the performance of the children's attorney on the children's behalf. At the time of trial, CPS had temporary managing conservatorship, including the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child. Mother did not have that right then, nor does she now. Further, Mother has no standing to complain about the children's lawyer on her own behalf. Even though no party's trial counsel elicited any evidence about the children's desires, we note that Mother does not challenge her own trial counsel's effectiveness. Additionally, Mother does not have standing on appeal to complain about the violation of Father's due process rights. We overrule Mother's first two issues.

Id. at 524–25 (citations omitted).

The Austin Court of Appeals addressed this issue in J.R. v. Texas Department of Family and Protective Services, No. 03-15-00108-CV, 2015 WL 4603943, at *3 (Tex. App.—Austin July 30, 2015, pet. denied) (mem. op.). In J.R., the children's father complained of the children's attorney ad litem's failure to advocate on behalf of one of the children regarding that particular child's desire to live with his father. Id. The appellate court noted, “Courts, including this Court, have applied this rule in parental-[rights] termination cases and have held that a parent does not have standing to complain about alleged deficiencies in the representation of his children or his spouse.” Id.⁸

Here, neither Nancy nor John complain of the representation they received from their own attorneys. In accordance with the foregoing cases, it is clear that Nancy does not have standing to complain on her own behalf concerning the children's attorney ad litem's alleged ineffectiveness at trial. In his brief to this Court, John argues,

There are few, if any, cases with regard to an Attorney ad Litem for a sibling raising the claim against the Attorney ad Litem for the other siblings. However, it would be tragic if siblings were precluded from raising an ineffective assistance of counsel claim. There are certainly conceivable instances where a sibling, as opposed to parents, could show harm because there will be cases where the siblings have the same interests.

John cites no authority for the proposition that one child has standing to raise an ineffective assistance claim against the attorney ad litem of another sibling, and we have found none. Yet, even if such authority exists, John could not prevail on an ineffective assistance claim on this record.

The Court of Criminal Appeals has held that in order to prevail on an ineffective assistance of counsel point of error, “appellant must prove, by a preponderance of the evidence, that his counsel's performance was deficient” and that “this deficient performance prejudiced his defense.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).⁹ An appellate court's review of an ineffective assistance of counsel claim “is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance.” Id. With respect to the prejudice prong, the Court of Criminal Appeals held, “This means that the appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). Finally, the Supreme Court has held that “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland v. Washington, 466 U.S. 668, 697 (1984).

While we do not agree with John that trial counsel's clients actually desired reunification with Nancy, even if they had, the egregious facts in this case clearly demonstrate that termination was in their best interest. Therefore, even if John had standing to raise an ineffective assistance claim, and even if he could show that trial counsel's actions were deficient, he could not demonstrate prejudice on this record.¹⁰

Nancy also contends, however, that she has standing to complain of the Children's attorney ad litem's alleged ineffectiveness pursuant to the doctrine of virtual representation. See In re G.F., No. 09-11-00316-CV, 2012 WL 112549, at *1 (Tex. App.—Beaumont Jan. 12, 2012, no pet.) (mem. op.). In order to benefit from the doctrine of virtual representation, an individual must show (1) that he is bound by the judgment; (2) that his privity of estate, title, or interest appears from the record; and (3) that there exists an identity of interest between the individual and a party to the judgment. In re C.R.G., No. 05-16-01490-CV, 2017 WL 526611, at *2 (Tex. App.—Dallas Feb. 9, 2017, no pet.) (mem. op.) (citing State v. Naylor, 466 S.W.3d 783, 789 (Tex. 2015)).

In G.F., mother maintained that she had standing under the doctrine of virtual representation to assert an ineffective assistance of counsel claim against her children's attorney ad litem. There, mother asserted that the children's ad litem counsel failed to advocate for the children's desire for reunification and instead advocated for termination of her parental rights. G.F., 2012 WL 112549, at *1. The Beaumont Court of Appeals explained that the doctrine of virtual representation “require[d,] among other things, that the appellant and the children have identical interests.” Id. In finding that mother did not have standing via the doctrine of virtual representation, the court stated,

The record does indicate that the children desired reunification with [mother], but the record does not demonstrate that [mother] and the children have identical interests. Rather, the record demonstrates, and the trial court found, that [mother], who has a history of drug abuse, permitted the children to remain in conditions or surroundings which endangered their physical or emotional well-being, and that [mother] engaged in conduct or knowingly placed the children with persons engaged in conduct that endangered the children's physical or emotional well-being. [Mother] does not challenge the sufficiency of the evidence supporting the trial court's findings regarding endangerment or best interest.

Id. The court noted also that the Department “had temporary managing conservatorship of the children, which gave [it] the right to represent the children in a legal action and to make other decisions of substantial legal significance concerning the children.” Id.

In this case, Nancy bases her ineffective assistance of counsel claim on the assertion that Perkins' representations at trial were more aligned with the Department's position favoring termination of her parental rights, rather than with the Children's desires to be reunited with her. First, the evidence falls woefully short of demonstrating that the Children desired to be reunited with Nancy. However, even assuming the evidence did support such a finding, there exists overwhelming evidence that Nancy and the Children do not have identical interests. The Children's only interest is in finding a safe, loving, and permanent family situation in which to live. Nancy's asserted interest is to be reunited with her children, despite the existence of evidence showing, among other things, (1) that the Children were subjected to physical and sexual abuse on a consistent basis, (2) that the Children were residing in a home teeming with dysfunction, and (3) that Nancy either participated in, or ignored evidence of, the majority of abuse and dysfunction.¹¹

In sum, Nancy is dissatisfied with the jury's findings and the trial court's judgment terminating her parental rights to the Children. Because she cannot establish insufficient evidence to support the jury's findings, she now attempts to attack Perkins' representation of the Children. Because Nancy's interests are not aligned with the Children's interests, we find she lacks standing pursuant to the doctrine of virtual representation to proceed with her ineffective assistance of counsel claim against the Children's attorney ad litem.

For the reasons above, we overrule Nancy and John's sole point of error.

III. Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   We assign pseudonyms to the parties in order to protect the identity of the children. See TEX. R. APP. P. 9.8.

2.   We refer to the deceased child as J.G.

3.   The State filed at least two felony charges against Nancy as a result of the child's death. At the time of trial in this matter, Nancy was out of jail on bond awaiting trial on the criminal charges.

4.   Prior to consolidation, the Department had been appointed temporary managing conservator of Abe, Paul, and Rachel. It was determined also that it was not in the Children's best interests to visit with Nancy.

5.   The Department sought to terminate the parental rights of John's and Abe's father, and the parental rights of Paul and Rachel's father. Both fathers voluntarily relinquished their parental rights, and the trial court entered an order reflecting the relinquishment of their parental rights.

6.   At trial, the evidence showed, among other things, the following:(1) Nancy sold Abe for sex to a third party;(2) Nancy taped Abe's mouth closed while Abe's stepfather tied Abe to the bed just prior to a third party anally penetrating Abe;(3) Abe was aware that his stepfather was violent with Nancy;(4) Abe's stepfather hit him with a bull whip;(5) prior to J.G.'s death, J.G. sexually assaulted Abe by putting his penis in his anus;(6) Abe anally sexually assaulted his sister and his brother;(7) Abe desired to live with his foster parents;(8) Abe had mixed feelings about living with Nancy, but he wanted to see her on occasion or talk to her on the telephone;(9) Abe intensely disliked John, stating that Abe would “probably kill [him]self” if he were required to live with John;(10) Rachel and her brothers witnessed Nancy placing a “little white thing” in another sister's anus;(11) Rachel witnessed her brothers touching each other with their penises;(12) Rachel witnessed her father hitting Nancy;(13) Rachel felt safe living with her foster parents and wanted to continue living with them;(14) Rachel did not want to live with Paul or Abe;(15) Rachel wanted to have a relationship with Nancy;(16) Paul stated, “[Abe] put his private spot in my bottom.”;(17) John forcefully struck Paul;(18) Paul was afraid of John and did not want to live with him;(19) Paul was “really not sure about” whether he wanted to live with Nancy but would like to see her on occasion;(20) John stated that he was physically abused by his stepfather multiple times, but that he did not tell Nancy because he did not think she would believe him;(21) John's stepfather sexually abused him on multiple occasions, including anally penetrating John with a “thick glow stick”;(22) Nancy admitted to having multiple cases filed against her by the Department based on neglectful supervision of her children;(23) in 2014, a case involving neglectful supervision of the children was initiated against Nancy because school employees were forced to bathe the Children when they came “to school filthy”; and(24) Nancy was indicted for continuous sexual abuse of a child in 2017, which indictment stated, [Nancy], did then and there during a period that was 30 or more days in duration, to-wit: from on or about February 9, 2013 through January 30, 2015, when [Nancy] was 17 years of age or older, commit two or more acts of sexual abuse against “Michael”, a child younger than 14 years of age, namely, intentionally and knowingly cause the anus of “Michael,” to contact the sexual organ of [Samuel Melton Franks] without “Michael's[ ] consent.”

7.   Nancy and John also challenge Perkins' “Attorney Ad Litem's Written Statement Regarding Substituted Judgment of Attorney for Child.” In it, Perkins, states, among other things, that2. All three of Attorney Ad Litem's clients have individually stated that they do not want to live with their brother, [John], an additional child the subject of this suit who is represented by another attorney ad litem. All of the Attorney Ad Litem's clients, as well as [John], have testified that [John] sexually assaulted Attorney Ad Litem's clients while in the possession and control of their mother, [Nancy], Respondent Mother.․4. Attorney Ad Litem's clients have expressed a desire to have contact with their mother.․6. The expressed objectives of Attorney Ad Litem's clients are in conflict in that their desire to possibly have contact with their mother is contradicted by their desire not to have any contact with [John].․7. Testimony of the therapist/counselors in this matter as of May 1, 2017 [,] state that placing Attorney Ad Litem's clients with Respondent Mother or [John], or with having any contact with Respondent Mother or [John] could endanger the emotional and physical safety of Attorney Ad Litem's clients.․12. Attorney Ad Litem has determined that it is in the best interest of the clients to have Respondent Mother's parental rights terminated with no contact with either Respondent Mother or [John].․13. The guardian ad litems for this case are Phyllis and Mark Kinnard whose opinion based on their personal interactions with the children and the testimony presented in court is that it is in the best interest of Attorney Ad Litem's clients to have Respondent Mother's parental rights terminated.

8.   The Austin Court of Appeals has also held that a father lacked standing to complain about the trial court's determination to proceed with a hearing without the children's ad litem attorney present. A.E. v. Tex. Dep't of Family & Protective Servs., No. 03-14-00414-CV, 2014 WL 7458731, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.).

9.   The Texas Supreme Court has ruled that the same standard applies in parental-rights termination cases. See In re M.S., 115 S.W.3d 534, 545 (Tex. 2003).

10.   Typically, an attorney “shall abide by a client's decisions: (1) concerning the objectives and general methods of representation.” TEX. DISCIPLINARY RULES PROF'L CONDUCT R. 1.02(a)(1), reprinted in TEX. GOV'T CODE ANN ., tit. 2, subtit. G., app. A (West 2013) (Tex. State Bar R. art. X, § 9). However, Section 107.008(b) of the Family Code states that “[a]n attorney ad litem ․ who determines that the child cannot meaningfully formulate the child's expressed objectives of representation may present to the court a position that the attorney determines will serve the best interests of the child.” TEX. FAM. CODE ANN. 107.008(b) (West 2014). Thus, on this record, it is difficult to see how John could overcome the presumption that trial counsel's actions “fell within the wide range of reasonable and professional assistance.” Bone, 77 S.W.3d at 833.

11.   Not surprisingly, Nancy has not challenged the sufficiency of the evidence supporting the jury's findings regarding endangerment of the Children nor has she challenged its best-interest finding.

Ralph K. Burgess Justice