Opinion
NO. 02-15-00286-CV
03-31-2016
IN THE INTEREST OF A.M.-H., A CHILD
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-100823-14 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellants—the mother and great-grandparents of A.M.-H. (Andrew)—appeal from the trial court's order terminating Mother's parental rights and finding that it would not be in Andrew's best interest to appoint great-grandparents (Intervenors) his permanent managing conservators. We affirm.
In accordance with rule 9.8(b)(2), we are using a pseudonym and generic references to protect the child's identity. Tex. R. App. P. 9.8(b)(2).
Procedural Background
On October 4, 2014, police found Mother pushing Andrew in a stroller "in a busy street." Mother appeared to be intoxicated, and the police arrested her. The police also called Child Protective Services to pick up Andrew because Mother was unable to give them the name of anyone who could care for him. Diana Pina, a CPS investigator, took emergency possession of Andrew and placed him in foster care.
On October 6, 2014, the Department of Family and Protective Services filed a petition in the 323rd District Court seeking temporary and permanent managing conservatorship of Andrew and, alternatively, termination of Mother's parental rights. The trial court signed an order appointing the Department Andrew's temporary sole managing conservator. The trial court also set a show cause hearing for October 10, 2014. On October 10, 2014, the trial court rendered a temporary order noting that Mother had not yet been served and passing the case on the court's docket until October 17, 2014. Sometime on October 10, 2014, Mother signed a waiver of service.
The petition also names an alleged father, R. (First Alleged Father). The Department added a second alleged father, A. (Second Alleged Father), as a party in a first amended petition.
On October 20, 2014, Intervenors filed a suit affecting the parent-child relationship in the same trial court cause number as the Department's petition. They sought to be appointed Andrew's sole managing conservators, but they did not name any father. Attached to their petition was a waiver of service that Mother had signed dated October 10, 2014.
On November 18, 2014, however, Intervenors moved to dismiss their petition "due to court dates [being] continuously changed, along with [their] understanding when they filed [their] petition . . . that they would . . . be a party of any and all hearings on this cause . . . but . . . instead have not been made a part of any hearings that have taken place on this cause no#." The trial court signed an order of nonsuit on November 26, 2014.
The only hearings that had taken place involved whether First Alleged Father had been served.
On March 3, 2015, Intervenors filed a petition in intervention in the same trial court cause number as the Department's petition, along with the waiver of service that Mother had signed in October 2014.
The Department filed a first amended petition on April 2, 2015, again seeking permanent managing conservatorship of Andrew and termination of Mother's and First and Second Alleged Fathers' parental rights. Intervenors filed a motion to dismiss the Department's petition. They alleged that they had filed a separate suit affecting the parent-child relationship in the 233rd District Court and that the trial judge of that court had appointed them Andrew's sole managing conservators. Intervenors also alleged that the Department's service on them in the 323rd District Court was defective, citing Texas Rule of Civil Procedure 165(a) and family code sections 262.201(c)(a)(1) and 263.301. They attached photographs purportedly of Beach Street that they contended rebutted the allegations regarding the night police arrested Mother. They also attached a copy of an order of the 233rd District Court dated November 17, 2014 that both they and Mother had signed on October 10, 2014. The order names Intervenors both sole managing conservators and possessory conservators of Andrew. It also states that there is no father "of record."
Trial in the 323rd District Court was set for August 11, 2015. Before trial, the Department moved to modify Andrew's temporary possessory conservator to be Mother's uncle (Uncle). This motion, as well as Intervenors' motion to dismiss, was set for a hearing on May 27, 2015. Mother did not appear at the hearing, but her counsel did; Intervenors also appeared. The trial court allowed Intervenors to pass on their motion to dismiss and granted the Department's motion to name Uncle as Andrew's temporary managing conservator.
Intervenors attempted to appeal this ruling in this court's cause number 02-15-00187-CV, but we dismissed the appeal. In re A.M., No. 02-15-00187-CV, 2015 WL 4599354, at *1 (Tex. App.—Fort Worth July 30, 2015, no pet.) (mem. op.).
On August 11, 2015, the trial court held a trial on the Department's petition as to Mother, Intervenors, and First Alleged Father. The trial court granted a continuance as to Second Alleged Father. Mother did not appear at the trial, but her appointed counsel appeared on her behalf. Intervenors did not appear. The trial court signed an interlocutory order terminating Mother's rights on D, E, and N grounds, terminating First Alleged Father's rights, and finding that appointing Intervenors as Andrew's permanent managing conservators would not be in Andrew's best interest.
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N) (West Supp. 2015).
In September 2015, the trial court held a trial on the Department's petition to terminate the rights of Second Alleged Father—also the father of Andrew's older brother Alex—who had appeared and filed pleadings in the suit. After Second Alleged Father signed an affidavit of relinquishment, the trial court signed an order terminating his rights to Andrew, thus making its August 11, 2015 order final and appealable.
Only Mother and Intervenors have appealed the trial court's judgment.
Issues on Appeal
Mother brings seven numbered issues: (1) that the Department's suit is frivolous and was filed in bad faith and that the Department failed to give her and Intervenors proper notice throughout the proceedings (first and sixth issues); (2) that the November 2014 order signed by the 233rd District Court naming Intervenors conservators of Andrew should have been allowed to stand (second issue); (3) that the Department's attorney violated certain statutes related to notice (third issue); (4) that the trial court erred by denying Intervenors' motion to dismiss the suit and refusing to allow them to offer evidence relevant to their motion to dismiss (fourth issue); and (5) that one of the Department's witnesses was allowed to testify to untrue hearsay (fifth and seventh issues). Intervenors raise five similar issues: (1) the Department's attorney failed to properly notify them of hearings and the trial setting, and the suit is frivolous and was filed in bad faith; (2) the Department failed to provide proper notices to Mother; (3) the trial court erred by refusing to admit exhibits they attached to their motion to dismiss into evidence; (4) the Department was allowed to improperly use hearsay evidence at trial; and (5) the 233rd District Court had jurisdiction over the suit instead of the 323rd District Court. Both Mother and Intervenors also argue in unnumbered issues that Mother's trial counsel was ineffective.
We will address Mother's and Intervenors' issues topically.
233rd District Court Order
We broadly construe Mother's second issue and Intervenors' fifth issue as complaints that the 233rd District Court, in which Intervenors purportedly obtained an order dated November 17, 2014 granting them conservatorship of Andrew, was the only court with jurisdiction over the case. See Tex. Fam. Code Ann. § 155.001(a) (West Supp. 2015) (providing that, with certain exceptions, a trial court acquires continuing, exclusive jurisdiction over suits affecting the parent-child relationship "in connection with a child" on the rendition of a final order); see also id. § 262.002 (West 2014) (providing that termination suit brought by governmental entity may be filed in a court with jurisdiction in "the county in which the child is found"), § 262.203 (West Supp. 2015) (providing that upon party's motion, a court that rendered a temporary order in a termination suit after an adversarial hearing "shall . . . transfer the suit to the court of continuing, exclusive jurisdiction, if any").
Intervenors attached to their motion to dismiss a copy of a purported final order rendered by the 233rd District Court dated November 17, 2014 that named both Intervenors managing and possessory conservators of Andrew. But both Intervenors and Mother assert in their brief that the 233rd District Court subsequently "voided" its November 2014 order. See, e.g., Tex. R. Civ. P. 329b(d); Thomas v. Arrow Fin. Servs., LLC, No. 09-09-00160-CV, 2010 WL 668783, at *1 (Tex. App.—Beaumont Feb. 25, 2010, no pet.) (mem. op.) (noting that when trial court judgment is vacated within trial court's plenary power, judgment is not final). Additionally, the clerk's record in the 323rd District Court suit contains a letter dated October 20, 2014 from the State Registrar and Chief of Texas Vital Statistics indicating that Andrew "has not been the subject of a suit affecting the parent-child relationship in which a judgment was entered on or after January 1, 1974." The Department filed that letter with the trial court clerk on October 30, 2014. Section 155.103 of the family code provides that "[a] court shall have jurisdiction over a suit if it has been, correctly or incorrectly, informed by the vital statistics unit that the child has not been the subject of a suit and the petition states that no other court has continuing, exclusive jurisdiction over the child." Tex. Fam. Code Ann. § 155.103(a) (West Supp. 2015). We therefore conclude and hold that the record does not show that only the 233rd District Court had jurisdiction to render an order in this case.
Moreover, Intervenors' motion sought a dismissal and the return of Andrew to the family as relief instead of a transfer to the 233rd District Court, which is the proper remedy when a different trial court has continuing, exclusive jurisdiction of a suit affecting the parent-child relationship. See Tex. Fam. Code Ann. § 262.203; see also Tex. R. Civ. P. 91a.1 (describing procedure for seeking dismissal of baseless cause of action and excluding cases brought under family code from procedure).
We overrule Mother's second issue and Intervenors' fifth issue.
Matters Related to Dismissal Motion
Intervenors complain in their third issue that the trial court erred by refusing to admit documents attached to their dismissal motion that they claim show the Department was not giving them proper notice of proceedings in the trial court.
Mother also contends that Intervenors' motion to dismiss was supported by factually sufficient evidence and complains about the trial court's alleged refusal to allow Intervenors to admit photographs attached to the dismissal motion as evidence. Even assuming Mother has standing to assert these complaints on appeal, she did not raise them in the trial court; therefore, she did not preserve them for appeal. See Tex. R. App. P. 33.1(a)(1). We therefore overrule Mother's fourth issue.
Although Intervenors and Mother's counsel appeared at the dismissal motion hearing, Mother did not appear. Intervenors did not call any witnesses; Great-grandfather told the trial court that Mother was supposed to be their witness but that she had been in the hospital the night before. When the trial court asked if they wanted to make a statement and call themselves as witnesses, Great-grandfather answered, "[W]e just admitted exhibits to go with our motion as our evidence." The trial court explained that they had to abide by the rules of evidence and present their case "through either witnesses or offering these papers into evidence." The trial judge then asked Intervenors whether they had any other witnesses or wished to make a statement under oath subject to cross-examination. Intervenors declined and passed on their motion until they could have a witness present. The trial court then proceeded to hear the Department's motion to modify temporary conservatorship that had been set for the same day and decided to name Uncle the temporary possessory conservator. Toward the end of the hearing, Great-grandmother told the court, "My husband is hurting, in pretty bad pain, and we're going to have to leave. Y'all have to take it from there."
Despite the fact that the trial court allowed Intervenors to continue the hearing—and nothing in the record indicates they tried to reset it—Intervenors complain about the trial court's purported refusal to admit into evidence the documents attached to their motion to dismiss. Although the trial court gave Intervenors the opportunity to take the stand, give a statement, and be subject to cross-examination, they declined and did not call any witnesses. Thus, the trial court did not abuse its discretion by refusing to admit the exhibits as evidence. See, e.g., Happy Jack Ranch, Inc. v. HH & L Dev., Inc., No. 03-12-00558-CV, 2015 WL 6832631, at *5 (Tex. App.—Austin Nov. 6, 2015, no pet.) (mem. op.) (op. on reh'g) (compiling cases explaining that documents attached to pleadings are not evidence until they are offered into evidence by a party and admitted by the trial court); see also Tex. R. Evid. 901-02 (setting forth requirements for authentication and identification of evidence); State v. Foltin, 930 S.W.2d 270, 272-73 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (op. on reh'g) (explaining difference in admissibility between public records and business records).
We overrule Intervenors' third issue.
Bad Faith/Perjury/Sufficiency of the Evidence
In part of their first issues, both Mother and Intervenors complain that the Department filed the petition in the 323rd District Court in bad faith; Mother specifically argues that the caseworker whose affidavit detailing the facts about the removal is attached to the petition committed perjury in the affidavit and in her trial testimony and that a Department investigator committed perjury in her deposition testimony admitted at trial. We broadly interpret these complaints as including challenges to the sufficiency of the evidence. But to the extent that appellants complain about deficiencies in the caseworker's affidavit attached to the removal petition, or the admissibility of the caseworker's testimony or the investigator's deposition testimony admitted at trial, they did not preserve these complaints, including their hearsay complaints. See Tex. R. App. P. 33.1(a)(1); cf. Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.").
We have reviewed the evidence at trial in accordance with the appropriate standards of review. See Tex. Fam. Code Ann. § 101.007(b) (West 2014), § 161.001(b) (West Supp. 2015), § 161.206(a) (West 2014); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
Diana Pina, a CPS night response investigator, testified that on October 4, 2014, she received a call from law enforcement; as a result she met with Mother at the Tarrant County Jail. When she met with Mother, Mother was slow in her speech, kept putting her hand "inside her chest" but never got anything out, and reeked of alcohol when she opened her mouth. To Pina, Mother appeared to be intoxicated. Mother gave Pina contact information for Second Alleged Father, but Pina could not reach him. Pina also testified that after Andrew's removal, Mother was placed on deferred adjudication community supervision after pleading guilty to child endangerment and signing a judicial confession. Pina said that CPS had investigated a prior referral regarding Mother and Andrew, that Mother had been offered services in that case, and that she had not been cooperative. According to Pina, on the day of removal in this case, Andrew appeared to be well taken care of but for the location where, and the circumstances under which, he had been found with Mother.
From the context of Pina's testimony, this appears to mean that Mother was reaching inside her shirt.
The Department introduced into evidence the indictment to which Mother had pled guilty. It alleged that she had
recklessly by pushing a stroller containing [the child] in a lane of traffic on a section of unlighted roadway at night while intoxicated by act or omission engaged in conduct that placed . . . [the] child . . . in imminent danger of death, bodily injury or physical or mental impairment, by pushing a stroller containing [the child] in a lane of traffic on a section of unlighted roadway at night while intoxicated.
Mother's argument regarding alleged perjury in the removal affidavit relates to her arguments in her brief that the evidence is too weak to show that she was drunk on the night of removal or that the roadway in which she was found with Andrew was dark or dangerous. Neither Mother nor Intervenors presented any evidence controverting the Department's evidence, which the trial court was allowed to believe. In particular, the Department presented evidence showing that Mother pled guilty to an indictment that contained the same factual allegations as those set forth in the affidavit attached to the removal petition. To the extent that Mother and Intervenors rely on facts in their briefing that are not included in the trial court record, including Mother's argument that CPS brought the proceedings as revenge for her actions during a prior investigation regarding Andrew, we may not consider those facts. See Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied).
The deposition testimony was from Jennifer Ware, a CPS Family Based Safety Services (FBSS) worker who worked with Mother and Second Alleged Father in 2009 in a case about Andrew's older brother Alex. Mother's appointed counsel was present at the deposition, and counsel for the Department stated on the record that he called the Intervenors, but they declined to attend because of the prior interlocutory appeal that was then pending in this court. See, supra, n.5.
Ware testified that she was working in FBSS in March 2009 and that on February 17, 2009, CPS had received a case in which it was alleged that "the maternal grandmother was smoking methamphetamines and [Mother] did not remove the child from this situation, and they didn't feel that [Mother] got the child medical care because he was losing weight." The disposition of that case was "reason to believe" that neglectful supervision had occurred "because of positive methamphetamines."
Ware had a face-to-face meeting in March 2009 with Mother at an inpatient drug rehab facility. Mother told Ware she had used methamphetamine in February 2009. But on the day of the interview, Mother told Ware that she felt alcohol was her main problem, that she had started using it at age fourteen, and that she felt that she "could drink alcohol from when she woke up until she went to bed." Later that same month, Ware met with Mother again, and they discussed Intervenors. Mother told Ware that she had used methamphetamine with them four times. Mother did not want Alex being placed with Intervenors because she "actually used methamphetamines with them." Mother's statements to Ware about Intervenors are the reason CPS did not place Andrew with them after his removal in this case.
Ware said that in the 2009 case, Mother was released from inpatient treatment before completing it and then attended outpatient treatment. Mother was likewise discharged from outpatient treatment without completing it. She also did not complete her psychological examination.
Around the time Mother was released from outpatient treatment, she told Ware that she had been attending AA meetings and provided sign-in sheets. Mother was living in various places: with her uncle, her father, and various friends. Alex was living with a paternal aunt, who supervised visits with Mother. During July 2009, Mother was released from all services although she continued to attend AA. She continued to live with various friends. Second Alleged Father, Alex's father, chose for Alex to stay with his sister, and Mother had only supervised visits. According to Ware, Mother became less cooperative as the case went on. Ware attempted to call Intervenors in that case too, and they never called her back. The investigation involving Alex closed in September 2009.
The trial court also admitted into evidence an order in a suit to modify conservatorship of Alex dated May 28, 2009. The order contained a recital that Mother "has consented to the terms of this order as evidenced by [her] signature below." Mother and Second Alleged Father were appointed joint managing conservators of Alex. Additionally, Second Alleged Father was named the parent with the exclusive rights to designate Alex's residence within Tarrant and adjacent counties, to consent to medical treatments, and to make educational decisions. The order also contained a finding "that credible evidence has been presented that [Mother] has a history of drug abuse" and awarded her only supervised visitation of Alex.
The Department was not involved in this suit.
Emily Foote, a conservatorship caseworker for CPS, testified regarding Andrew's circumstances at the time of trial in this case. According to Foote, Andrew was happy and smiling and loved to read, but his speech was a little delayed. Foote became involved in Andrew's case in February 2015 when Mother was still in jail. Foote visited Mother and discussed setting up parent-child visits with Andrew when Mother was released. Foote gave Mother her card so that Mother could call when she was released. Mother told Foote she was willing to work services and did not express any potential problems. Mother told Foote that she wanted Andrew to be placed with Intervenors. Foote tried to set up a home study with them, but they never returned her calls. When Foote finally got in touch with Great-grandfather, he said he was waiting on this court's disposition of his interlocutory appeal and did not want to agree to a visit until the appeal had been resolved. Eventually, CPS closed out the possibility of placement with Intervenors. Foote testified that her supervisor also tried to reach Intervenors and even went to their residence, but they would not answer even though she saw movement at the door. Afterwards, Great-grandmother called Foote's supervisor and told her that CPS should not come back.
Foote opined that it was not in Andrew's best interest for Intervenors to have custody because "they had somewhat assisted [Mother] in taking [Andrew] from a . . . parent-child safety placement" in a prior investigation involving Andrew. When the Department tried to locate him by contacting Intervenors, Great-grandmother would not say where he was or give any contact information. Through Foote, the Department also introduced evidence that Great-grandmother had been convicted of methamphetamine possession in 2005.
This was a different investigation from the 2009 investigation involving Alex that Ware testified about in her deposition.
Mother and Intervenors dispute the circumstances of this conviction; however, they did not present evidence at trial to contravert the Department's evidence.
Mother was released from jail two days after Foote first met with her there, but Mother did not call Foote until two weeks later. Mother did not tell Foote why she waited so long to make contact but said she was trying to "get her stuff together." Foote encouraged Mother to work her service plan and told Mother that she would give her two bus passes per week to help with transportation if those passes were available. Foote met with Mother two days later and gave her a copy of the service plan, which Mother signed, and Foote gave her a copy. Foote gave Mother bus passes and offered help with working her services. Mother did not work any of the services. In addition, Foote had trouble locating Mother after she was released from jail, and Mother failed to maintain regular contact with CPS.
Four days after Foote gave Mother her service plan, Mother had a visit with Andrew. Out of twenty-three opportunities for visits, she missed eleven. About a month after Foote gave Mother her service plan, Foote discussed Mother's housing situation with her; Mother told Foote that she was staying in a motel with a friend. Foote told Mother that she needed information for all of the people living there so that she could run background checks on them; Mother seemed "shaken up" and scared. Mother told Foote she could not come to visit because a person she was living with had hurt her and she did not want Andrew to see her that way. But Mother refused Foote's offer of help. Mother told Foote she did not know the last name of the man she was living with. Second Alleged Father told Foote that when he was talking to Mother on the phone, he heard screaming; Mother then said someone was beating her and hung up.
According to Foote, Mother's behavior was mostly appropriate during visits with Andrew, but sometimes she would not get up after him if he ran into another room. For the first four or five months, Andrew would not let Foote out of the doorway during visits with Mother; he would bury his head into Foote's shoulder and cry. He did not seem happy, which was unlike him. But as visits progressed, Andrew's reaction improved, and he would go to Mother and play with her.
In March 2015, while this case was pending, Mother was cited for consuming alcohol in front of a store. She went to one drug test, and it was positive for codeine and morphine; however, the caseworker had expected such medications to be detected as Mother had undergone surgery the day before. Mother no-showed the rest of her alcohol and drug assessments. Mother's father and stepmother told her she could stay with them until Andrew was returned to her; she stayed only two nights but then disappeared except for occasionally coming by to shower and eat a meal.
Foote also testified that because Uncle is a maternal relative, the maternal side of the family should still have contact with Andrew. However, she also did not witness any significant bond between Mother and Andrew. Foote further testified that Uncle was motivated to adopt Andrew and that his home was a healthy, safe environment. Uncle took good care of Andrew, and when she visited Uncle's house, certain individuals who were under court order not to have unsupervised contact with Andrew were not there.
Mother's attorney did not call any witnesses.
Andrew's ad litem testified as follows:
With respect to the [I]ntervenors, . . . I had at least two telephone conferences with them. I also have spoken to them in this courthouse on three different occasions indicating that I wanted to come out and visit their home, talk with them with regard to their intervention and their plans for [Andrew] in terms of their intervention.
[Intervenors] refused to allow me to come to their home, cautioned me if I should come to their home uninvited and indicated that they would -- they weren't cooperative in talking with me, coming to my office or meeting in a restaurant or something like that to discuss placement of [Andrew] in their home. I would support the Department's argument to dismiss their intervention. It would not be in [Andrew's] best interest, in my opinion, for him to be involved with [Intervenors]. And I certainly don't think that they've demonstrated anything to me, to the caseworker, to this Court about their abilities to provide for this child.
We conclude and hold that this evidence is legally and factually sufficient, under the appropriate standards of review, to support the trial court's finding that Mother knowingly placed or knowingly allowed Andrew to remain in conditions or surroundings that endangered his physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D). Additionally, we also conclude and hold that the evidence is sufficient, under the appropriate standards of review, to support the trial court's finding that it was in Andrew's best interest to terminate Mother's parental rights and that it was not in Andrew's best interest that Intervenors be named his conservators. See id. § 161.001(b)(2). We overrule the parts of Mother's and Intervenors' first issues that argue the Department filed its petition in bad faith. We also overrule Intervenors' fourth issue and Mother's fifth and seventh issues complaining about the Department's purported use of hearsay evidence.
Defective Service and Inadequate Notice Complaints
In the remainder of Mother's and Intervenors' first issues, in Mother's third and sixth issues, and in Intervenors' second issue, they complain that they did not receive adequate service, notice of hearings, and notice of the August 11, 2015 trial setting resulting in the termination of Mother's rights.
Notice to Mother
Mother complains that she was not properly served with citation because the petition and one of the citations in the record show an incorrect street name for her address. The record shows that two citations were issued: one of them was directed to Mother at the Tarrant County Jail address and one was directed to Mother at the incorrect address. The citation directed to the Tarrant County Jail address was dated October 10, 2014. Although it was returned unexecuted, the record contains an October 10, 2014 waiver of service with Mother's signature, in which her address is listed as the Tarrant County Jail address. She also signed a request for appointed counsel the same day. These were filed with the trial court clerk on October 17, 2014. The citation with the incorrect street address was dated October 6, 2014. However, it indicates in the return of service that the constable received the citation on October 13, 2014 and served it on Mother by personal delivery at the Tarrant County Jail address on October 14, 2014. Accordingly, the record shows that Mother was served and appeared in accordance with the rules of civil procedure. See Tex. R. Civ. P. 106(a)(1), 107, 119; cf. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (concluding that defective service complaint need not be raised in motion for new trial after entry of default judgment).
Similarly, the trial court did not err by finding, in accordance with section 161.206(d) of the family code, that "all persons entitled to citation were properly cited." Tex. Fam. Code Ann. § 161.206(d).
Mother also complains that the Department's attorney violated the law "throughout the case" by giving her improper notice of hearings, in particular the August 11, 2015 trial setting. The Department did fail to correct the street name in the address it used for Mother in the first amended petition and in a notice letter of the August 11, 2015 trial setting. But Mother did not raise this complaint in the trial court; thus, she has failed to preserve this issue for review. See Tex. R. App. P. 33.1(a)(1); In re R.A., 417 S.W.3d 569, 581 (Tex. App.—El Paso 2013, no pet.). Moreover, the trial setting notice also shows that Mother's counsel was copied via email or fax, both of which are acceptable forms of service under the rules of civil procedure. See Tex. R. Civ. P. 21a(2). Accordingly, we conclude and hold that the record does not support any of Mother's arguments regarding a lack of service or adequate notice.
Notice to Intervenors
Intervenors likewise complain that they did not receive proper notice "throughout the case," including notice of the final trial setting. They also contend that the trial court refused to remedy the notice issues when they brought them to the court's attention.
At a post-trial hearing on the Department's motion to sign a final judgment, Intervenors informed the trial court that they did not receive proper notice of the final trial setting because the notice they received referenced a cause number for a different case and it referenced only "the termination of the parental rights." They also contended that counsel for the Department should have tried to consolidate the Department's termination petition and their petition in intervention. The trial judge told Intervenors that if they wanted a new trial, they would need to seek one independently of the motion to sign hearing but that "this is now the time to do it." He also informed them that once he signed a final order, they could appeal it.
The record shows that in accordance with local rule 4.01(12.3) of the Tarrant County Family Courts, the Department's counsel notified the court coordinator and the parties of the August 11, 2015 trial setting in a letter dated May 8, 2015. Tarrant (Tex.) Loc. R. 4.01(12.3). Intervenors are shown as parties to receive a copy of the letter, and the address listed for them matches the address in their filings. The letter states that it is reconfirming the setting of the cause number in trial court case number 323-100823-14 "for a TERMINATION hearing on AUGUST 11, 2015 at 9:30 a.m., at the 323rd District Court, 2701 Kimbo Road, Fort Worth, Texas 76111." Intervenors provided no evidence showing that they did not receive the May 8, 2015 letter. Additionally, they pointed out in their motion to dismiss filed on May 4, 2015 that a prior trial setting letter they had received had a wrong case number on it; thus, the record shows they were aware that the setting was actually for this case.
Although Intervenors contend that the Department's suit and their petition in intervention had not been consolidated, by intervening in the Department's pending suit, they joined that suit and became parties to it for all purposes. See In re Khan, No. 09-08-00539-CV, 2008 WL 5622698, at *2 (Tex. App.—Beaumont 2009, orig. proceeding [mand. denied]) (mem. op.); In re Roxsane R., 249 S.W.3d 764, 772 (Tex. App.—Fort Worth 2008, orig. proceeding). Therefore, we conclude and hold that Intervenors have not shown that the Department failed to give them proper notice of the August 11, 2015 trial setting.
Intervenors also contend that the Department failed to give them proper notice that its motion to modify temporary conservatorship of Andrew was set for the same day as their motion to dismiss. But Intervenors failed to object to a lack of notice and participated in most of the hearing as to that motion. Accordingly, we conclude and hold that they failed to preserve any complaint as to inadequate notice of that hearing. See Tex. R. App. P. 33.1(a)(1); Caudle v. Oak Forest Apts., No. 02-14-00308-CV, 2015 WL 9244874, at *4 & n.21 (Tex. App.--Fort Worth Dec. 17, 2015, pet. filed) (mem. op.) (noting that due process right to proper service of trial settings can be waived and citing supporting case law).
Having concluded that appellants' service and notice complaints are without merit, we overrule the remainder of Mother's and Intervenors' first issues, Mother's third and sixth issues, and Intervenors' second issue.
Mother lacks standing to challenge inadequate notice to Intervenors, and Intervenors lack standing to challenge inadequate notice to Mother. See In re E.M., No. 02-13-00337-CV, 2014 WL 5409091, at *2 (Tex. App.—Fort Worth Oct. 23, 2014, no pet.) (mem. op.).
Alleged Ineffectiveness of Counsel
Mother and Intervenors also argue in unnumbered issues that Mother's trial counsel was ineffective. In reviewing ineffectiveness allegations in termination cases, we use the Strickland standard from criminal cases. In re M.S., 115 S.W.3d 534, 545 (Tex. 2003). To establish ineffective assistance of counsel under this standard, an appellant must show by a preponderance of the evidence that her counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065. The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Id. at 687, 104 S. Ct. at 2064. In other words, an appellant must show there is a reasonable probability that, without the deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068.
Because Intervenors lack standing to complain about the effectiveness of Mother's counsel, we overrule their issue. See, e.g., Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000) (explaining long-standing rule that an appealing party may not complain of errors that do not injuriously affect that party or merely affect others); see also U.S. v. Rondon, 204 F.3d 376, 379 n.2 (2d Cir.) (discussing long-standing rule that an appellant may not complain about a violation of a co-defendant's Sixth Amendment right to effective assistance of counsel), cert. denied, 531 U.S. 915 (2000).
Mother makes no specific allegations of deficient performance, nor does she allege that but for counsel's alleged deficiencies, the outcome of the trial would have differed. At a hearing on a post-trial motion to sign a final judgment, Mother's counsel told the trial court that after he was appointed and while Mother was still incarcerated, he met with her in the hallway at court, gave her his contact information, and told her to call him when she got out of jail. She never did. He tried to reach Mother through the caseworker as well, but every number he had for her was incorrect. After counsel talked to Foote about the trial setting, Foote told Mother about it, but Mother did not appear. Mother's counsel asked for a continuance on the day of trial because he had not been able to maintain contact with her, but the trial court denied the motion.
In contrast, Mother called counsel's office on the day of the motion to sign hearing and told his law clerk that counsel should not show up to that hearing. Counsel nevertheless appeared. --------
Mother's appointed counsel appeared at all pretrial status and other hearings except those involving only service on, or termination of the rights of, the alleged fathers. He appeared on Mother's behalf at trial, and he attended Ware's deposition. He sought a continuance of trial so that he could further attempt to secure Mother's presence. Although he did not call any witnesses or object to any of the Department's evidence, he cross-examined Foote and was able to elicit some favorable testimony regarding the improvement of Andrew's demeanor toward Mother during visits and Mother's attempts to work her service plan. After reviewing the entire record, we find no reversible error regarding counsel's representation. We overrule Mother's unnumbered issue contending that her trial counsel was ineffective.
Conclusion
Having overruled all of Mother's and Intervenors' issues, we affirm the trial court's judgment.
PER CURIAM PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DELIVERED: March 31, 2016