FILED TARRANT COUNTY 5/8/2014 7:22:18 PM THOMAS A. WILDER DISTRICT CLERK

233-525285-12

CAUSE NO. 233-525285-12 IN THE INTEREST OF

§ § § § § §

NICHOLAS ELLIOTT AND KEARNEY ELLIOTT CHILDREN

IN THE DISTRICT COURT 233RD JUDICIAL DISTRICT

TARRANT COUNTY, TEXAS

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND BRIEF IN SUPPORT

Respondent, BRANDY RADACY, asks the Court to disregard all the jury findings and sign a judgment notwithstanding the verdict. PROCEDURAL HISTORY 1.

Petitioner, TEXAS DEPARTMENT

OF

FAMILY

AND

PROTECTIVE SERVICES

(hereinafter sometimes referred to as “the Department”), filed its Petition for Protection of Children, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on February 15, 2013. 2.

Respondent, mother is BRANDY RADACY (hereinafter sometimes referred to as

“Respondent Radacy”). 3.

Respondent, father is BILLY ELLIOTT (hereinafter sometimes referred to as

“Respondent Elliott”). 4.

The original statutory dismissal date was February 17, 2014.

5.

The extended statutory dismissal date is August 16, 2014.

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6.

On February 15, 2013, the Department presented its Petition for Protection of

Children, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship to this Court and this Court signed an Ex Parte Order for Protection of the Children wherein the Department was appointed sole managing conservator of the children the subject of this suit. A Show Cause Hearing was set for February 26, 2013. 7.

On February 19, 2013, Respondent RADACY, completed a Request for Counsel,

which is attached hereto as Exhibit ‘1.’ As indicated on her Request for Counsel, Respondent RADACY was indigent at the time. In violation of her constitutional rights, Respondent RADACY’s request for counsel was denied in open court on February 26, 2013. 8.

On February 19, 2013, the Department had Respondent RADACY execute a

Waiver of Service. 9.

On February 26, 2013, a full adversary hearing was held. Respondent RADACY

appeared in person and in opposition of the termination of the parent-child relationship. On February 26, 2013, the Court entered a Temporary Order appointing the Department as the Temporary Managing Conservator of the children the subject of this suit. 10.

On March 1, 2013, the Department completed a Family Service Plan for

Respondent RADACY. The Department is statutorily mandated to file the Family Service Plan with the court not later than the 45th day after the court renders a temporary order appointing the department as temporary managing conservator of a child. Texas Family Code, Section 263.101. In this case, the Department did not file the Family Service Plan until April 14, 2014, a mere 14 days before final trial. 11.

On March 3, 2013, when presented with a Family Service Plan by the

Department, Respondent RADACY responded that she was “afraid to sign anything, in case it

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would back fire on her,” and because she didn’t have a lawyer to advise her, she would be willing to work services, but not sign the plan. 12.

On April 18, 2013, a Status Review Hearing was held and a Status Review Order

was entered by this Court 13.

On August 12, 2013 a Permanency Hearing was held and a Permanency Hearing

Order was entered by this Court. Although the Order reflects that Respondent RADACY “appears in person and through attorney of record, and announced ready,” she was not represented by counsel, and her request for counsel continued to be denied. Although the Department is statutorily mandated under Section 263.303 of the Texas Family Code, to file with the court and provide all parties copies of a Permanency Progress Report at least 10 days prior to each permanency hearing. At no time during the entirety of this case did the Department complete or file a single Permanency Progress Report. 14.

On December 9, 2013, a Permanency Hearing was held and a Permanency

Hearing Order was entered by this Court. As with the prior Permanency Hearing, although the Department is statutorily mandated under Section 263.303 of the Texas Family Code, to file with the court and provide all parties copies of a Permanency Progress Report at least 10 days prior to each permanency hearing, the Department again failed to complete or file a Permanency Progress Report in this case. 15.

On January 16, 2014, the Department filed a Motion for Extension of Dismissal

16.

On January 17, 2014, this Court signed an Order Extending Dismissal Date and

Date.

Setting Hearing Dates, extending the original dismissal date to August 16, 2014, and setting this case for a bench trial on April 17, 2014.

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17.

On January 17, 2014, some 332 days later, this Court finally granted Respondent

RADACY’s Request for Counsel. See attached Exhibit ‘1.’ 18.

On February 4, 2014, Respondent RADACY, by and through her attorney of

record filed Respondent’s First Amended Answer and Request for Jury Trial. 19.

On February 28, 2014, this case was set for a jury trial on April 28, 2014.

20.

After a trial on the merits, the Court submitted this case to the jury. The jury

returned a verdict terminating the parent-child relationship between the children the subject of this suit and Respondent, BRANDY RADACY. The jury returned a verdict terminating the parent-child relationship between the children the subject of this suit and Respondent, BILLY ELLIOTT.

Respondent, BRANDY RADACY, attaches as Exhibit ‘2’ the questions the jury

considered and its answers. 21.

Respondent, BRANDY RADACY, asks the Court to disregard all the jury

findings and sign a judgment notwithstanding the verdict that dismisses this lawsuit. EVIDENCE COLLECTED FROM THE DATE RESPONDENT RADACY REQUESTED COUNSEL AND THE DATE RESPONDENT RADACY WAS PROVIDED WITH COUNSEL 1.

Any and all records and information obtained from Substance Abuse Guidance and Education (“SAGE”) by the Department from February 19, 2013 through January 17, 2014.

2.

Any and all admissions and statements made by Respondent RADACY to the Court or to any Department worker or agent from February 19, 2013 through January 17, 2014.

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3.

Any and all evidence collected which pertains to Respondent RADACY not completing an out-patient drug treatment program.

4.

Any and all evidence collected which pertains to Respondent RADACY discontinuing counseling.

5.

Any and all admissions and statements made by Respondent RADACY from February 19, 2013 through January 17, 2014 regarding placement of her children.

6.

February 26, 2013, admission by Respondent RADACY that she used illegal drugs in February 2013.

7.

July 31,

2013,

admission

by Respondent

RADACY

that

she

used

methamphetamines on July 19, 2013. 8.

August 12, 2013, admission by Respondent RADACY that she used methamphetamines “less than one month ago.”

9.

October 2013, oral swab drug test on Respondent RADACY administered by the Department.

10.

November 2013, oral swab drug test on Respondent RADACY administered by the Department.

11.

Any and all admissions and statements made by Respondent RADACY to the Department regarding any requests for hair drug testing in the month of December 2013.

12.

Any and all admissions and statements made by Respondent RADACY to the Department regarding a voluntary relinquishment of her parental rights.

13.

Any and all evidence obtained by the Department from February 19, 2013 through January 17, 2014.

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ARGUMENT & AUTHORITIES A court may disregard all the jury findings and grant a motion for judgment notwithstanding the verdict if a directed verdict would have been proper. See Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex. 1991). Even when a party proves all the allegations in its pleadings, a court may disregard the jury’s answers if a legal principle precludes the party’s recovery and justifies a judgment notwithstanding the verdict. UPS, Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 n.4 (Tex. App.— Houston [14th Dist.] 2000, pet. denied); Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 932 (Tex. App.—Texarkana 1997, pet. denied). In this case, the Court should disregard all the jury findings and sign a judgment in favor of BRANDY RADACY because Respondent RADACY was denied her constitutional and statutorily mandated right to an attorney in this termination proceeding. Respondent RADACY was further denied her constitutional right to due process.

CONSTITUTIONAL PROVISIONS The Fourth Amendment to the United States Constitution provides in pertinent part: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Fifth Amendment to the United States Constitution provides in pertinent part: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,

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when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Fourteenth Amendment to the United States Constitution provides in pertinent part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Due process ensures the “essential fairness of state-ordered proceedings anterior to adverse state action.” M.L.B., 519 U.S. at 120.

FUNDAMENTAL RIGHTS The natural right between parents and their children is one of constitutional dimensions. The termination of this right is complete, final, and irrevocable. It forever divests the parent and child of all legal rights, privileges, duties and powers between each other except for the child's right to inherit. Therefore the proceedings in a suit to terminate the parent child relationship must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976); Holley v. Adams, 544 S.W.2d 367 (Tex.1976). Due to the fundamental rights that are at stake in this case and the great number of improper termination of parental rights cases that will be forthcoming if the Department is allowed to continue to wholly deny a parent due process, Respondent RADACY

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urges the Court to dismiss this case. Respondent RADACY further urges the Court to adopt the same procedural safeguards that are utilized in criminal cases. RIGHT TO COUNSEL Section 107.013 of the Texas Family Code provides in pertinent part: In a suit filed by a governmental entity in which termination of the parent-child relationship is requested, the court shall appoint an attorney ad litem to represent the interests of . . . an indigent parent of the child who responds in opposition to the termination. In Lassiter v. Dep't of Social Services, 452 U.S. 81 (1981), the Court declined to extend a constitutional right to counsel in every termination proceeding. However, the United States Supreme Court has repeatedly recognized that although a constitutional right may not exist, once a state undertakes to grant individuals certain rights, those rights are entitled to constitutional protection. Once a state chooses to act and grants rights to its citizens, such rights cannot be withdrawn without consideration of applicable due process norms. The Second Court of Appeals has held that because termination proceedings are included within the finite class of liberty interests protected by the Fourteenth Amendment and because the State of Texas has undertaken to grant indigent parents the right to appointed counsel in termination proceedings, the State must administer that right consistent with the Due Process Clause of the Fourteenth Amendment.” In the Interest of K.L., I.L., M.L., and D.L., 91 S.W.3d 1, at 6 (Tex.App. —Fort Worth 2002).

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DUE PROCESS The United States Supreme Court has held that in determining what process is due in a particular proceeding requires consideration of three factors: (1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedures used. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Had the Department followed the laws that govern their procedures in a termination action, and had Respondent RADACY been appointed an attorney, then she would have received the due process that she was entitled to under Mathews. In Texas, in a case where children are under the care of the Department, the Department must comply with the following statutory mandates: 1.

The Department is statutorily mandated to file the Family Service Plan with the court not later than the 45th day after the court renders a temporary order appointing the department as temporary managing conservator of a child. Texas Family Code, Section 263.101.

2.

The Department is statutorily mandated to have both the person preparing the Family Service Plan and the parents sign the Family Service Plan. If the parent refuses to sign the Family Service Plan, the Department may file the Family Service Plan without the parents’ signatures. The original service plan takes effect when (1) the child’s parents and the representative of the department sign the plan; or (2) when the court issues an order giving effect to the plan without the parents’ signatures. Texas Family Code, Section 263.103.

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3.

Under Section 263.105 of the Texas Family Code, the court is required to review the plan at the hearing following the filing of the service plan.

4.

Under Section 263.102 of the Texas Family Code, the service plan must… be specific… state appropriate deadline, state whether the goal of the plan is return of the children to the child’s parents or termination of parental rights and placement of the child for adoption…state the steps necessary to return the child to the child’s home if the placement is in foster care… state the actions and responsibilities that are necessary for the child's parents to take to achieve the plan goal during the period of the service plan and the assistance to be provided to the parents by the department or other authorized agency toward meeting that goal… state any specific skills or knowledge that the child's parents must acquire or learn, as well as any behavioral changes the parents must exhibit, to achieve the plan goal.

5.

The Department is statutorily mandated under Section 263.303 of the Texas Family Code, to file with the court and provide all parties copies of a Permanency Progress Report at least 10 days prior to each permanency hearing.

6.

The Department is statutorily mandated under Section 263.3025 to prepare a permanency plan for a child for whom the department has been appointed temporary managing conservator. The department shall give a copy of the plan to each person entitled to notice under Section 263.301(b) not later than the 10th day before the date of the child's first permanency hearing.

In Texas, the Court is statutorily mandated to appoint an attorney ad litem to represent the interests of an indigent parent of the child who responds in opposition to the termination. As

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stated above, Respondent RADACY was not provided with an attorney until eleven months after her request, and a mere 90 days before the final trial in her case. Respondent RADACY only had the benefit of legal counsel for 90 days while the Department was represented by counsel for 415 days prior to trial. During the entire pendency of this case, the Department was actively collecting evidence against Respondent RADACY for use in the termination of her parental rights. In this case the Department did not file the Family Service Plan until April 14, 2014, a mere 14 days before final trial. The Family Service Plan that was filed is not signed by anyone. It was not signed by the parent or the agent of the Department. Therefore, pursuant to Section 263.103 of the Texas Family Code, the Family Service Plan never went into effect. The Family Service Plan does not contain one single deadline. The Family Service Plan states that “Brandy Radacy must understand that these tasks are not a checklist, but rather a way of making positive life changes. Ms. Radacy must also be able to demonstrate these life changes so as to prove she is capable of safely and properly taking care of her children.” Exhibit ‘3’. This is in direct contradiction to the statute which mandates that the plan must state the steps necessary to return the child to the child’s home if the placement is in foster care and must state the actions and responsibilities that are necessary for the child's parents to take to achieve the plan goal during the period of the service plan. Since the plan was not a checklist, Respondent RADACY was never made aware of what she was required to do in order to have her children returned to her care. The goal on the Family Service Plan that was filed by the Department states the Permanency Goal is family reunification. The Department never changed their Permanency

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Goal under the Family Service Plan. There was no way for Respondent RADACY to know that the Department’s goal was really to terminate her parental rights rather than family reunification. The Department did not complete or file a single Permanency Progress Report in this case. The reports are designed to inform the court and the parent of the parent’s progress and what tasks are still outstanding in order for the parent to have her child returned to her care. Instead, the Department just blatantly disregarded the law. There was no way for Respondent RADACY to know what the Department expected of her. There is no specific task checklist in the Family Service Plan and the Department did not provide Respondent RADACY with one single Permanency Progress Report. Meanwhile, the Department represented to the Court and to the parents that their goal was family reunification. It is still unclear as to when the Department changed their goal from family reunification to termination/adoption. The Department never provided Respondent RADACY with a Permanency Plan for the children as required under Section 263.3025 of the Texas Family Code. Throughout the pendency of this entire case, Respondent RADACY, operating with a 5 th grade education, was never told exactly what she must do in order to have her children returned to her. Further, she was never made aware by the Department that their goal was termination. Caseworker Pitts testified in open court during the trial of this case, that she did not learn what “termination” meant until the week prior to trial. So, the Department’s position that Caseworker Pitts orally advised Respondent RADACY that their goal was termination, is disingenuous and this argument must fail because the caseworker testified that she did not know that “termination” meant a permanent severing of the parent child relationship. Caseworker Pitts did not know and therefore could not have told Respondent RADACY that if the Department was successful with a

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termination that she would never see her children again. Had Respondent RADACY been represented by counsel, she would have been properly advised on the law.

QUASI-CRIMINAL PROCEEDING Termination of parental rights proceedings are quasi-criminal in nature and thereby implicate additional due process requirements. Although proceedings in termination of parental rights cases have traditionally been classified as civil in nature, they work a "unique kind of deprivation," and are therefore set apart from "mine run civil actions," M.L.B. v. S.L.J., 519 U.S. 102, 127-28.

Despite this, some Texas courts have recognized that in certain contexts

termination of parental rights suits are quasi-criminal. In the case of In the Matter of the Marriage of Hill, 893 S.W.2d 753, 755-56 (Tex.App.Amarillo 1995, writ denied) where the court found no civil cases on point, the court likened the procedural issues in civil parental termination cases to procedural issues in criminal cases because both involve questions of constitutional proportion. The court in Edwards v. Texas Dep't of Protective and Regulatory Servs., 946 S.W.2d 130, 135 (Tex.App.-El Paso 1997, no writ), agreed with the court in Hill. In re B.L.D., 56 S.W.3d 203, 211-12 (Tex.App.-Waco 2001, pet. filed) the court noted that when appropriate, the court looks to criminal law to determine similar or corresponding issues of civil law. The court stated that “just as a Sixth Amendment constitutional right to counsel in a criminal case includes that the representation be effective, statutory right to counsel in termination proceedings includes a due-process right that counsel be effective.” In M.L.B., when determining determine whether indigent parents have the right to a waiver of the costs of preparing the appellate record in appeals of trial court decisions

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terminating their parental rights, the United States Supreme Court analogized a mother endeavoring to defend against the State’s destruction of her family bonds to a criminal defendant resisting criminal conviction. The Court further stated that the mother in that case sought to be spared from the State’s devastatingly adverse action. M.L.B. v. S.L.J., 519 U.S. 102 In the case of In re J.M.S., 43 S.W.3d 60, 63 n. 1 (Tex.App.-Houston [14th Dist.] 2001, no pet.), the court applied the same right to counsel standard that is applied in criminal cases because the termination case is “more like a criminal case than a civil case.” Id. at 63. Since a termination of parental rights proceeding is quasi-criminal in nature, Respondent Radacy urges this Court to apply the Exclusionary Rule to this termination proceeding.

APPLICATION OF THE EXCLUSIONARY RULE No Texas case specifically addresses whether the Exclusionary Rule applies in a termination case, where a parent has been denied the appointment of a statutorily required attorney and where a state agency actively collected incriminating evidence for use in the termination proceedings against that parent, all while the parent was unrepresented by counsel. The Texas Code of Criminal Procedure, Article No. 38.23 provides that no evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In the case of Baxter v. Texas Department of Human Resources, et al., 678 S.W.2d 265 (Tex. App- Austin 1984), the court held that Article 38.23 is inapplicable to the termination of parental rights case therein because the provision applies only to criminal cases. However, the court in Baxter made the

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important distinction that the evidence in Baxter was acquired by an individual not acting as an agent of the State. In the case of Gates v. Tex. Dep’t of Protective & Regulatory Servs., 537 F.3d 404 (5th Cir. 2008), the considered whether Texas Department of Protective and Regulatory Services (hereinafter sometimes referred to as “TDPRS”) employees violated the Fourth Amendment by entering the parents’ home without a warrant or court order. The court began by noting that the case concerned areas of the law that had not been fully developed. The court went on to state that “it is well established in this circuit [5th] that the Fourth Amendment regulates social workers’ civil investigations.” Id. at 420. The 5th Circuit Court has also held that identical fourth amendment standards apply in both the criminal and civil contexts. Wooley, 211 F.3d 913, 925 (5th Cir. 2000). In its analysis, the court stated that a statutory command for TDPRS to investigate child abuse allegations within twenty-four hours is not a license to ignore the Fourth Amendment and it is unreasonable for TDPRS to think otherwise. Gates at 421. In the case of Miranda v. Arizona, 384 U.S. 436 (1966), Ernesto Miranda was arrested at his home and taken in custody to a police station where he was identified by the complaining witness. He was then interrogated by two police officers for two hours, which resulted in a signed, written confession. At trial, the oral and written confessions were presented to the jury. After a trial, Miranda was found guilty of kidnapping and rape and was sentenced to imprisonment on each count. On appeal, the Supreme Court of Arizona held that Miranda’s constitutional rights were not violated in obtaining the confession. The United States Supreme Court held that “there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from

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being compelled to incriminate themselves.” Id. at 467. As such, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. at 444. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. The Court held that in a criminal interrogation an individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id at 475. In this case, on February 19, 2013, Respondent RADACY, completed a Request for Counsel, which is attached hereto as Exhibit ‘1.’ As indicated on her Request for Counsel, Respondent RADACY was indigent at the time. In violation of her constitutional and statutory right to an attorney, Respondent RADACY’s request for counsel was denied in open court on February 26, 2013. Respondent RADACY wasn’t provided with an attorney until January 17, 2014, some eleven months after her initial request.

The denial of counsel allowed the

Department eleven months to continue to gather evidence for use against Respondent RADACY in their crusade to terminate her parental rights. Respondent RADACY never waived her right to counsel. In the case of In the Interest of C.D.S., 172 S.W.3d 179 (Tex. App.-Fort Worth 2005), the court held that the trial court’s failure to appoint an indigent mother counsel, after eight

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months and on the eve of trial, following numerous reports to the court involving the mother was reversible error and calls for a new trial. Here, the facts are distinguished from Baxter because the Department caseworkers are agents for the Department and the State of Texas and they did actively obtain all of the evidence against Respondent RADACY in this case. All of the evidence that is specifically listed out above was actively collected by the Department after Respondent RADACY asked for an attorney but was improperly denied an attorney. Such evidence was used against her in the final trial of this case, which ultimately resulted in the termination of her parental rights. Any and all evidence obtained after her request for counsel is “fruit of the poisonous tree” and is tainted evidence and is not admissible against Respondent RADACY. Baxter is the only case directly on point in attempting to apply the Exclusionary Rule to a suit to terminate parental rights. Since this case is quasi-criminal, Respondent RADACY urges this Court to apply the same procedural safeguard, the Exclusionary Rule, which is applied in criminal cases. The Department’s position, as made in closing arguments in this case, is that these parents didn’t need lawyers and that they don’t need lawyers to tell them how to parent. I suppose that based on this premise, the Department’s position would also be that Ernesto Miranda should have known not to speak to police.

PRAYER BRANDY M. RADACY’s constitutional right to due process was violated and BRANDY M. RADACY has suffered the irrevocable loss of the parent-child relationship. There is no meaningful remedy to cure such a violation other than a dismissal of the Department’s

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lawsuit. Therefore BRANDY M. RADACY prays that the Court dismiss the Department’s lawsuit. In the alternative, BRANDY M. RADACY, urges this Court to exclude all evidence that was obtained by the Department, a state agency after the date she requested court appointed counsel in this case and grant a new trial in this case. For these reasons, BRANDY RADACY asks the Court to grant this motion and sign a judgment notwithstanding the verdict that dismisses the Department’s suit.

Respectfully submitted, NUNNELEY FAMILY LAW CENTER 1845 Precinct Line Road, Suite 100 Hurst, TX 76054-3109 Tel: (817) 485-6431 Fax: (817) 577-9899

By: SONYA R. CARRILLO State Bar No. 24078317 E-Mail: [email protected] Attorney for BRANDY M. RADACY

Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure May 9, 2014.

SONYA R. CARRILLO Attorney for BRANDY M. RADACY

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