in the Interest of A.L.W. and A.N.W., Minor Children ( 2015 )

ACCEPTED
01-14-00805-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/11/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00805-CV
__________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT5/10/2015 10:03:05 PM
OF TEXAS AT HOUSTON CHRISTOPHER A. PRINE
Clerk
___________________________________________________________
IN THE INTEREST OF A.L.W. and A.N.W., Children
___________________________________________________________
A.L.T., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Appellee
_______________________________________________________________
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2013-05425J
_________________________________________________________________
ORIGINAL BRIEF OF APPELLANT A.L.T.
______________________________________________________________________
WILLIAM M. THURSLAND
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
713-655-0200 x 105; Fax: (713) 655-9035
Email: wmthursland@hotmail.com
ATTORNEY FOR APPELLANT, A.L.T.
ORAL ARGUMENT REQUESTED
IDENTIFICATION OF PARTIES AND COUNSEL
The names of all parties and counsel to this appeal are:
A.L.T., Appellant:
At Trial On Appeal:
Ryan J. Mitchell William M. Thursland
Attorney At Law Attorney At Law
TBN: 24053369 TBN 20016200
P.O. Box 1570 440 Louisiana St., Ste. 1130
Houston, TX 77251-1570 Houston, TX 77002
Tel: 832-534-2542; Tel: 713-655-0200; x 105
Fax: 832-369-2919 Fax: 713-655-9530
The Texas Department of Family and Protective Services, Appellee:
At Trial: On Appeal:
Amelia Strickling Sandra D. Hachem
Assistant County Attorney Sr. Assistant Harris County Attorney
TBN 24062183 TBN 08620460
1019 Congress, 157h Fl. 1019 Congress, 15th FL.
Houston, TX 77002 Houston, TX 77002
Tel: 713-274-5220; Tel: 713-274-5246;
Fax: 713-437-4700 Fax: 713-437-4700
A.L.W. & A.N.W., Children: A.L.W., Alleged Father at Trial:
Michelle Bush Oliver Sprott, Jr.
Attorney at Law Attorney at Law
TBN: 24036295 TBN: 18971700
14027 Memorial Dr., #105 2323 Caroline
Houston, TX 77079 Houston, TX 77004
Tel: 281-460-8486; Tel: 281-313-6800;
Fax: 713-513-5451 Fax: 713-659-2812
i
Unknown Father:
Joseph Wade Prasifka
Attorney At Law
TBN: 24034832
P.O. Box 658, Houston, TX 77001-0658
Tel.: 713-816-2102; Fax: 281-392-5383
REQUEST FOR ORAL ARGUMENT
Appellant requests oral argument.
RECORD REFERENCES
Clerk’s Record:
The Clerk’s Record consists of one (1) volume. It is referred to herein as CR
followed by the volume and page number(s).
Reporter’s Record:
The court reporter’s record consists of two (2) volumes. The trial testimony
and exhibits are found in the first volume. It is referred to as (RR) followed by the
volume, page and line number(s). The exhibits are identified by the offering party
and exhibit number. The testimony adduced at the hearing held pursuant to this
Court’s order dated March 12, 2015 is referred to as (RR-SUPP) followed by the
page and line numbers
Statutory Citation References:
Unless otherwise indicated, all statutory references made herein refer to the
Texas Family Code.
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL i
REQUEST FOR ORAL ARGUMENT i
RECORD REFERENCES ii
ii
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iii
STATEMENT OF THE CASE 1
ISSUES PRESENTED: 2
ISSUE ONE: DID TRIAL COUNSEL RENDER INEFFECTIVE
ASSISTANCE OF COUNSEL
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER
§161.001(1)(D) & (E)
ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER
§161.001(1)(N)
ISSUE FOUR: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER
§161.001(1)(O)
ISSUE FIVE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER
§161.001(2)
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 7
ARGUMENT: 10
Standard of Review 10
iii
ISSUE ONE: Authorities & Argument: 11
ISSUE TWO: Authorities & Argument: 24
ISSUE THREE: Authorities & Argument: 30
ISSUE FOUR: Authorities & Argument: 32
ISSUE FIVE: Authorities & Argument: 40
PRAYER 45
CERTIFICTE OF COMPLIANCE 45
CERTIFICATE OF SERVICE 46
TABLE OF AUTHORITIES
Federal Cases
Bell v. Cone, 556 U.S. 449, 129 S. Ct. 1769 (2009) 13
Burdine v. Johnson, 262 F3d 336 (5th Cir. 2001) 21
Childress v. Johnson, 103 F3d 1221 (5th Cir. 1997) 13, 19
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) 7, 12, 13, 18
United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984) 7, 16,18
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982) 10
STATE CASES
Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 26
1997, no writ)
Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013) 44
Ex Parte Burdine, 901 S.W.2d 456, 467 (Tex. Crim. App. 1995) 20
iv
Holick v. Smith, 685 S.W.2d 18 (Tex. 1985) 10
Holly v. Adams, 544 S.W.2d 367 (Tex. 1976) 42
In re A.A.A., 265 S.W.3d 507 (Tex. App. – Houston [1st Dist.] 37, 38
2008 pet. denied)
In re A.S., 261 S.W.3d 76, 83 (Tex. App. - Houston [14th Dist.] 25, 26, 30
2008 Pet. denied)
In re B.G., 317 S.W.3d 250, 256 (Tex. 2010) 21
In re C.H., 89 S.W.3d 17 (Tex. 2002) 42, 43
In re C.L., 304 S.W.3d 512, 514 (Tex. App. – Waco 2009, no pet.) 39
In re C.L.C., 119 S.W.3d 382 (Tex. App. - Tyler 2003, no pet.) 25
In re E.C.R., 402 S.W.3d 239 (Tex. 2013) 37, 38, 43
In re E.N.C. 384 S.W.3d 796 (Tex. 2012) 26, 29, 37, 43, 45
In re D.N., 405 S.W.3d 863 (Tex. App. – Amarillo 2013, no pet.) 37
In re D.T., 34 S.W.3d 625 (Tex. App. – Ft. Worth 2000, pet. denied) 30, 32
In re D.W., No. 01-13-00880-CV (Tex App. – Houston [1st Dist.] 32
April 11, 2014, no pet.)(memo op.)
In re G.M., 596 S.W.2d 846 (Tex. 1980) 11
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) 10
In re J.O.A., 283 S.W.3d 336 (Tex. 2009) 28
In re J.R., 171 S.W.3d 558, 569 (Tex. App. - Houston [14th Dist.] 25
2005, no pet.)
In re J.R.W., No. 01-14-00442-CV, (Tex. App. – Houston 39
[1st Dist.] Nov. 26, 2014, no pet.)(memo op.)
v
In re J.T.G., 121 S.W.3d 117 (Tex. App. - Ft. Worth 2003, no pet.) 24, 25
In re J.W, 152 S.W.3d 200 (Tex. 2006) 25
In re: K.F., 402 S.W.3d 497 (Tex. App. – Houston [14th Dist.] 34
2013, pet. denied)
In re K.W., 138 S.W.3d 420 (Tex. App. – Ft. Worth 2004, 31
pet. denied)
In re M.C.G., 329 S.W.3d 674 (Tex. App. – Houston 43
2010, no pet.)
In re: M.L.G.J., 14-14-00800-CV, 2015 WL 1402652 *14 (Tex. App. 24
– Houston [14th Dist.] March 24, 2015, no pet.)(memo. op.)
In re M.R., 243 S.W.3d 807 (Tex. App. – Ft. Worth 2007, no pet.) 44
In re M.S. 115 S.W.3d 534 (Tex. 2003) 12, 13, 14, 15
In re R.R., 209 S.W.3d 112 (Tex. 2006) 42
In re S.N., 287 S.W.3d 183 (Tex. App. – Houston [14th Dist.] 37
2009, no pet.)
In re S.R.L., 243 S.W.3d 232 (Tex. App. - Houston [14th Dist.] 42
2007, no pet.)
In re V.V., 349 S.W.3d 548 (Tex. App. - Houston [1st Dist] 24
2010, pet. denied)
Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App. – Houston 26
[1st Dist.] 2010, pet. denied)
Liu v. DFPS, 273 S.W.3d 785, 795 (Tex. App. – Houston [1st Dist.] 32
2008 no pet.
New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206 16
vi
(Tex. App. - Houston [1st Dist.] 2013, pet. denied)
Ruiz v. DFPS., 212 S.W.3d 804 (Tex. App. - Houston [1st Dist.] 11
2006, no pet.)
Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) 24, 25
Statutes
Tex. Family Code Ann. § 101.007 10
Tex. Family Code Ann. § 107.013 11
Tex. Family Code Ann. § 107.0131 13, 22, 23
Tex. Family Code Ann. § 161.001(1) 11
Tex. Family Code Ann. § 161.001(2) 11, 40
Tex. Family Code Ann. § 161.001(D) 24
Tex. Family Code Ann. § 161.001(E) 24
Tex. Family Code Ann. § 161.001(N) 30
Tex. Family Code Ann. § 161.001(O) 32
Tex. Family Code Ann §262.201(b) 32, 38
Tex. R. Civ. Procedure 120 17
Tex. R. Civ. Procedure 120 17
Tex. R. Civ. Procedure 251 16
Tex. R. Civ. Procedure 252 16
CONSTITUTION
U.S. CONST. 6th AMEND. 18
vii
NO. 01-14-00805-CV
__________________________________________________________
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
___________________________________________________________
IN THE INTEREST OF A.L.W. and A.N.W., Children
___________________________________________________________
A.L.T., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES,
Appellee
_______________________________________________________________
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2013-05425J
_________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
A.L.T., appellant (also called “mother”), respectfully submits her original brief in
the above styled and numbered appeal.
STATEMENT OF THE CASE
On October 2, 2013, the Department of Family and Protective Services (“DFPS”)
filed its Original Petition For Protection of a Child, For Conservatorship and
Termination in Suit Affecting the Parent-Child Relationship wherein it alleged, inter
alia., that A.L.W., a female born on February 17, 2001 and her sister A.N.W., a female
1
born on September 23, 2002, were physically abused by their step-mother.1 (CR 4-
On September 2, 2014, the case was tried before the Honorable Glenn Devlin
without a jury. The trial court found the evidence sufficient to support the termination
of appellant's parental rights under §161.001(1)(D), (E), (N) and (O). It also found that
termination of her parental rights was in the children's best interest. DFPS was
appointed as the child's sole managing conservator. On September 16, 2014 the Final
Decrees For Termination were signed.2 (CR 100-118)
A.L.T. filed a timely notice of appeal and appellate counsel was appointed to
represent her. (CR 127 & 108)
Appellate counsel filed an Anders brief and motion to withdraw on December 12,
2014. After finding at least three arguable grounds for appeal, the Court of Appeals in
an order dated March 12, 2015 recommended that counsel’s motion to withdraw be
granted and that new appellate counsel be appointed. In a hearing held on March 18,
2015, the trial court appointed new appellate counsel and found that appellant was still
indigent. (RR-Supp; p. 5 & 7)
ISSUES PRESENTED
ISSUE ONE: DID TRIAL COUNSEL RENDER INEFFECTIVE
ASSISTANCE OF COUNSEL
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
1
The clerk’s record does not contain an order appointing DFPS as the children’s temporary managing
conservator. Nevertheless, the permanency orders reflect that the appointment was made.
2
The parental rights of the alleged father, A.L.W. were also terminated and he has not appeal.
2
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)
(D) & (E)
ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(N)
ISSUE FOUR: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(O)
ISSUE FIVE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(2)
STATEMENT OF FACTS
Prior beginning testimony, mother’s appointed trial counsel made an oral motion
for continuance. He explained A.L.T. was living and working in Iowa and “thought trial
was next month.” He further explained that her number is one that changes “quite
frequently” but he was able obtain it that morning from DFPS. He then spoke to his
client who advised him she “has progressed a little further in her plan than what CPS
believes.” Counsel concluded his argument by stating, “[m]y trial was in a month.” The
motion was then denied. (RR p. 6 & p. 7; L. 1-11)
DFPS then offered the following relevant exhibits that were admitted without
objection: (RR p. 7; L. 15-25)
DFPS #2 - Birth certificates for both children showing that they and their mother
were born in Illinois.
DFPS #5 - Drug test results from samples collected on October 16, 2013
3
indicating appellant tested positive in her hair sample for cocaine (366 pg/mg),
benzoylecgonine (28 pg/mg), marihuana (>25.0), marihuana metabolite (0.1 pg/mg) and
negative for all drugs on her urine sample.
DFPS #6 - Drug test results from samples collected on November 20, 2013
indicating appellant tested positive in her hair sample for cocaine (2413 pg/mg),
benzoylecgonine (616 pg/mg), marihuana (>50.0), marihuana metabolite (0.2 pg/mg)
and negative for all drugs on her urine sample.
DFPS #7 - Appellant’s Family Service Plan (“FSP”).
The DFPS caseworker, Cherena Mills (“Mills”), was the only witness. She
testified that both children had been with the paternal grandmother in Chicago since
May 28th. She agreed with DFPS counsel who said “[v]ery well there.” (RR p. 8; L. 9-
19)
In a series of unobjected to leading questions Mills agreed with her trial counsel
that appellant “failed to complete her services” although she completed “one of the
things.” Mills has not received “any indication [mother] has completed any other
services.” She further agreed A.L.T. has not visited her children “consistently
throughout the pendency of this case” although she last visited around the end of July;
and, “before that she had not visited them in a long time.”3 (RR p. 9)
Mills asked the court to terminate mother’s parental rights “based on her failure to
do services” and “constructive abandonment of the children.” To the best of her
3
Upon DFPS’ request the trial court took judicial notice of all orders in its file. (RR p. 9; L. 12-15)
4
knowledge, she has not provided any support for the children. (RR p. 10; L. 1-9)
Mills opined it was in the best interest to terminate mother’s parental rights
because she “has not shown the stability to care for the children” and “they’re in an
adoptive placement” that is “willing to provide them a safe and stable home free of
physical abuse.” (RR p. 10; L. 10-19)
The children came into care because of “physical abuse of [A.N.W.].” (RR p. 10;
L. 20-22)
On cross-examination, Mills testified the children were in the father’s custody
when the abuse occurred. He took them from the grandmother with her permission and
brought them to Houston. His girlfriend, Tara Tew Plummer (“Plummer)4, “beat” the
children when they were in Houston. Mother was making court appearances at the
beginning of the case. However, Mills did not remember the Judge saying that “due to
family restraints (sic)” mother was excused from attending court hearing. (RR p. 11-12
& p. 13; L. 1-4)
Mills is “not sure” if appellant is “not well off financially” and she repeatedly
asked her to send information about her finances. Mother complied with her request to
send the certificate showing completion of parenting classes. Mills last spoke to her
around August 20th and advised her of the September 2nd trial date. Mother said she
“could not make it because of her job.” Mills did not explain to her “the ability to
relinquish her rights to the children.” (RR p. 13; L. 6-25 & p. 14; L. 1-9)
4
Mills never identified her by name but the removal affidavit refers to her as Tara Tew Plummer. (CR
21-27)
5
Mills explained that DFPS was seeking to terminate mother’s rights as opposed to
“PMC and things like that” because she did not complete “all the courses;” moved to
Iowa; and “initially tested positive for drugs” in October 2013. DFPS does not have any
later drug tests because appellant resides in another state and for that reason as well she
must pay for her own services. (RR p. 14; L. 10-25)
When asked again why it was better to terminate appellant’s rights where she was
the “non-offending parent as opposed to doing PMC,” Mills responded the “kids have
been staying with their grandmother most of their lives” and she is “prepared to adopt
them.” The children want to be with the grandmother; they consider her their mother;
and, they “have a relationship with their mom.” Finally, Mills agreed with her counsel
that appellant “tested positive for cocaine and marihuana in October and November of
2013.” (RR p. 15-16)
Closing arguments were succinct:
Ms. Strickling: Asking for (d), (e), (n), and (O) on the mother; …”
The Court: Okay. Court finds by - - -
Mr. Mitchell: Brief argument, Judge.
The Court: Yes.
Mr. Mitchell: We’re asking the Court to terminate on (n) grounds - - - sorry (o)
grounds, Judge, only, in light of the circumstances surrounding this whole case.”
(RR p. 17)
SUMMARY OF THE ARGUMENT
6
The record of the entire trial proceeding consists of twelve and a half, double
spaced pages. When the appellant’s oral motion for continuance and the closing
arguments are excluded the entire record consists of only nine pages. Mills was the only
witness. The process terminating mother’s parental rights resembled a summary
proceeding rather than a trial on the merits.
In her first issue, A.L.T. argues her trial counsel was ineffective. Based on the
brevity of the record and her counsel’s obvious deficiencies, the Court can conclude that
she was constructively denied the assistance of counsel at trial performance. Therefore,
the Cronic presumption of prejudice is applicable. United States v. Cronic, 466 U.S.
648, 104 S. Ct. 2039 (1984)
However, even if the Court declines to apply the Cronic presumption, it is clear
appellant was denied the effective assistance of counsel under the two-prong test
enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) Given the
number and gravity of counsel’s professional errors there is a reasonable probability that
the outcome would have been different; i.e. “a probability sufficient to undermine
confidence in the outcome.” Id. at 2068
Among the professional errors the record reveals are counsel’s lack of familiarity
with the relevant facts; his failure to maintain contact with his client; and, his inability to
make objections. Some failures also constitute violations of the duties imposed by
7
§107.0131 on appointed counsel. This section must be considered in analyzing
appointed counsel’s effectiveness.
The evidence supporting the endangerment findings is based on rank speculation.
There is no proof that mother knew or should have known that the father would fail to
protect their daughters from his girlfriend. While there is evidence that she tested
positive for drugs on her hair follicle samples at the beginning of the case, there is no
evidence to explain those results. For instance, when she last used them, the level of
usage and the frequency. Given that she was negative on the urine tests and the children
were not living with her at the time of removal such information is very relevant when
considering the endangerment evidence.
Similarly, the evidence is insufficient to support the subsection (N) finding. The
record reveals that rather than constructively abandon her children; mother who lives in
Iowa visited them at the end of July. The trial was held on September 2, 2014. She
spoke to Mills on August 20th and provided her with the certificate that showed she
completed parenting classes. She did not attend trial because she though it was
scheduled for the following month.
In regard to the subsection (O) finding, the record does not contain any order that
“specifically” states the actions appellant must take to obtain the return of her children.
When the trial court took judicial notice of the orders in its file, there is no order in the
record that meets the specificity requirement of subsection (O).
8
Moreover, under this subsection DFPS must prove by clear and convincing
evidence that the child was removed from the parent for abuse or neglect. The fact that
the court granted it temporary managing conservatorship (“TMC”) is one factor that
informs an analysis of this element. Nevertheless, the standard of evidence to grant
TMC is “a person of ordinary prudence and caution.” In this case, mother was living in
another state and the children were removed due to abuse inflicted on them by Plummer.
As noted above, there was no evidence that she was aware of Plummer’s aggressive
nature or that she knew father would fail to protect them.
Mills’ testimony regarding what appellant was required to do is stretchy at best.
She merely stated mother failed to do all her services except for parenting classes. On
the face of this record, appellant’s argument that the evidence is insufficient to support
the subsection (O) finding should be sustained.
Finally, the evidence pertaining to the best interest finding is based almost
exclusively on Mills’ opinions and conclusions. There were very few facts that relate to
the Holly factors. Mother’s positive drugs test results at the beginning of the case can be
considered as a factor in determining if termination is in the children’s best interest.
However, that fact alone, where the record is silent as to the many other factors, would
no create a firm belief or conviction that it is in the children’s best interest to terminate
their mother’s parental rights.
In conclusion, the Court should reverse the judgment terminating appellant’s
parental rights to A.L.W. and A.N.W.
9
ARGUMENT
Standard of Review:
The natural right existing between a parent and a child is of such a degree as to be
of constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S. Ct.
1388, 1397-98 (1982) See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)(The
involuntary termination of parental rights is a serious matter implicating fundamental
constitutional rights.) As a result, appellate courts strictly scrutinize termination
proceedings and involuntary termination statutes in favor of the parent. Id. at 20-21
Due to the severity and permanency of terminating a parent’s parental rights the
burden of proof is heightened to the clear and convincing evidence standard. In re
J.F.C., 96 S.W.3d 256, 265-266 (Tex. 2002) This standard is defined as “the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” §101.007
In conducting a legal sufficiency review the court must consider “all the evidence
in the light most favorable to the finding to determine whether a reasonable trier of fact
could have formed a reasonable belief that its finding was true.” Id. at 266 It assumes
the fact finder resolved disputed facts in favor of its findings if a reasonable fact finder
could do so. The court disregards evidence that a reasonable fact finder could have
disbelieved or found to be incredible. If the court determines that a reasonable fact
finder could not form a firm belief or conviction that the allegations were true, then it
must conclude that the evidence is legally insufficient Id. at 266
10
In determining factual sufficiency, the court considers the entire record, including
disputed evidence, to determine whether the evidence is such that a factfinder could
reasonably have formed a firm belief or conviction, about the truth of the allegation
sought to be established. If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant that
a factfinder could not have reasonably formed a firm belief or conviction, then the
evidence is factually insufficient. Id. at 266-67
To prevail in a termination case, DFPS must prove by clear and convincing
evidence that the parent committed one or more of the acts or omissions specifically
listed under §161.001(1) and that termination is in the child’s best interest. §161.001(2)
Proof of one element does not relief the petitioner from establishing the other. Ruiz v.
DFFS, 212 S.W.3d 804, 812 (Tex. App. - Houston [1st Dist.] 2006, no pet.)
DFPS has the burden of proof as to all grounds and elements of its case.
Appellant has no burden of proof. In re G.M., 596 S.W.2d 846, 847
ISSUE ONE: DID TRIAL COUNSEL RENDER INEFFECTIVE
ASSISTANCE OF COUNSEL
Applicable Legal Standard:
In a suit filed by a governmental entity in which termination of the parent-child
relationship is requested, an indigent parent is entitled to court appointed counsel.
§107.013(a)(1). The statutory right to counsel necessarily embodies the right to
effective counsel. The Supreme Court adopted the Strickland standard used to evaluate
effective assistance of counsel in criminal cases to similar claims in parental rights
11
termination cases. In re M.S., 115 S.W.3d 534, 544-545 (Tex. 2003)
The Strickland standard established a two-prong analysis for evaluating
ineffective assistance of counsel claims. The defendant must first show that counsel's
performance was deficient and then that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. at 697, 104 S. Ct.. at 2064
In evaluating trial counsel’s performance, there is a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance and
was based on sound trial strategy. In re M.S., 115 S.W.3d at 545 To determine if in a
particular case counsel's performance was deficient, the reviewing court primarily focus
on whether he performed in a reasonably effective manner; that is, whether the errors
made by counsel were so serious that counsel was not functioning as “counsel”
guaranteed by the Sixth Amendment. Counsel's performance falls below acceptable
levels of performance when the representation is so grossly deficient as to render the
proceedings “fundamentally unfair.” Id. at 545 The parent has the burden of showing
show that counsel's performance fell below an objective standard of reasonableness. Id.
at 549
Moreover, the parent must identify the specific errors or omissions committed by
counsel and show how they failed to meet reasonable and professional standards.
Strickland 466 U.S. at 689, 670
In regard to the second prong, “the defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the results of the proceeding
12
would have been different.” The term “reasonable probability means “a probability
sufficient to undermine confidence in the outcome.” The Court further explained “[t]he
result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair,
even if errors of counsel cannot be shown by a preponderance of the evidence to have
determined the outcome.” Strickland 466 U.S. at 693, 694, 104 S. Ct. at 2068
Thus a presumption of prejudice may be warranted if an indigent parent is denied
actual or constructive assistance of counsel at a critical stage of litigation. In such
circumstances no specific showing of prejudice is required because the “adversary
process itself is presumptively unreliable.” United States v. Cronic, 466 U.S. at 659 and
Strickland 466 U.S. at 692, 104 S.Ct. at 2067
In those cases, the reviewing court can dispense with the prejudice inquiry. The
crucial question in assessing a right to counsel claim is whether the defendant asserts he
received incompetent counsel or none at all. In the later case the two-prong deficient
performance standard applies, in the former prejudice is presumed. Childress v.
Johnson, 103 F3d 1221, 1228-1229 (5th Cir. 1997)
The Supreme Court reiterated these principles in Bell where it held that a “trial
would be presumptively unfair” if defense “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” In those cases prejudice to the
defendant is presumed. Bell v. Cone, 556 U.S. 449, 559-560; 129 S. Ct. 1769, 1776
(2009)
In addition, §107.0131 imposes specific duties on a parent’s attorney ad litem.
13
Among those duties are the following: Counsel “shall” (A) interview the parent, each
person who has significant knowledge of the case; and the parties to the suit; (B)
investigate the facts of the case; (C) ensure competent representation at hearings,
mediations, pretrial matters, and the trial on the merits; obtain and review copies of all
court files in the suit during his representation; and, (G) meet before each court hearing
with the parent, unless, (ii) the court on a showing of good cause, authorizes the attorney
to comply by conferring with the parent, as appropriate, by telephone or video
conference.
Relevant Evidence:
Appellant’s counsel made an oral motion for continuance because his client who
was living and working in Iowa thought the trial was scheduled for the next month. In
support of the motion counsel argued his client’s “number . . . changes all the time” and
based on his conversation with her that morning “she has progressed a little further in
her plan than what CPS believes.” (RR p. 6-7)
Counsel made no objections to the DFPS trial exhibits and failed to object on
direct examination when DFPS trial counsel asked Mills virtually only leading
questions.
In contrast, counsel’s cross-examination consisted of mostly open-ended
questions that revealed his knowledge of the pertinent facts was superficial as illustrated
by the following exchange:
Q. And the mother was actually in Chicago, sent her kids down to live with the
father - - or father took the kids from the mother, correct? Sorry.
14
A. From the grandmother.
Q. Took the kids from the grandmother without mother’s knowledge.
A. The kids were staying with the grandmother . . . at the time . . .
A. The grandmother allowed them to go with the father.
Q. Without the mother’s permission.
A. I’m not sure. I could not say. (RR p. 11-12; L. 1-4)
After establishing that the father’s girlfriend “beat” the children and that mother
was making court appearances at the beginning of the case, counsel asked, “[a]nd due to
the family restraints (sic) excused from the Court hearings as well, correct?” Mills
replied, “not to my knowledge” and despite being at the prior hearings, she did not
recall, “that being said.” Likewise, Mills was “not sure” if appellant was “not well off
financially” although she asked her “repeatedly” to send financial information. (RR p.
12-13)
Cross-examination further revealed that Mills spoke to A.L.T. around August 20th
and informed her of the correct court date. Mother told her she could not attend due to
her job. There were no other drug test results because mother was living in another state
and advised she had to pay for “her services in Chicago.” (RR p. 14)
Counsel also established that the decision to send the children to the grandmother
was both a safety and a financial issue; it was better to terminate appellant’s rights even
as a “non-offending parent” because the children have stayed with the grandmother most
of their lives; and, the children have been safe “in the situation where [they] lived with
15
the grandmother and the mother comes over to visit and co-parent.” (RR p. 15)
At closing counsel was “asking the Court to terminate . . . on (o) grounds . . . only,
in light of the circumstances surrounding this whole case.” (RR p. 17)
Argument & Analysis
Appellant contends that on the face of this record an appellate court can conclude
counsel’s performance was deficient. She further contends that prejudice can be
presumed because trial counsel “entirely failed” to subject the State’s case to
“meaningful adversarial testing,” In those circumstances, prejudice is presumed because
“it is unlikely that the defendant could have received the effective assistance of
counsel.” U.S. v. Cronic, 466 U.S. at 654 & 659, 104 S. Ct. 2044 & 2047
However, even if prejudice cannot be presumed, the record establishes that A.L.T.
was prejudiced.
Counsel’s Deficient Performance:
The first prong of the Strickland test is shown by the following specific errors and
omissions committed by counsel:
1. He made an oral motion for continuance even though TRCP 251 mandates that
no continuance shall be granted, “except for sufficient cause supported by affidavit.” In
addition, if the continuance is sought for want of testimony, as in this case, TRCP 252
requires the proponent to show the testimony is material and that he has used due
diligence to obtain the testimony. New York Party Shuttle, LLC v. Bilello, 414 S.W.3d
206, 217 (Tex. App. – Houston [1st Dist.] 2013, pet. denied)
16
2. On November 20, 2013, counsel filed a general denial “subject to proper
service on the Respondent.” (CR 28) By filing a general denial mother made a
voluntary appearance and thereby waived service of process. TRCP 120. Moreover, the
way to contest a court’s jurisdiction is by making a special appearance. TRCP 120a.
3. He failed to maintain contact with his client as evidenced by his representation
to the court that she thought trial was the next month. He obtained her number from
Mills who spoke to appellant as recently as August 20. Although A.L.T.’s telephone
number may have changed frequently as asserted by her counsel, Mills was apparently
able to maintain contact with her.
4. He failed to object to DFPS’ leading questions on direct examination and on
cross-examination he asked only asked open-ended questions.
5. Counsel was not familiar with the facts. For example, he was unclear if the
children were taken from the grandmother or mother. He asked Mills to confirm that the
court excused mother from attending further hearings. When she stated she did not
remember the court ever doing so, counsel had no contradicting proof such as an order
or transcript of a prior hearing. The fact that counsel asked only open-ended questions
also shows his basic lack of knowledge regarding the pertinent facts.
6. The case against his client was based primarily on conclusions, beliefs and
speculation. The shocking brevity of the record underscores how few facts were
actually elicited. Counsel failed to question the basis of conclusory statements such as
the children are doing well; A.L.T. has not visited “consistently throughout the
17
pendency of this case;” has “not shown the stability for the children;” the children
consider grandmother their mother; and, they “have a relationship with their mom.”
7. Rather than point out the lack of facts adduced at trial to support the
termination findings, counsel in his one sentence closing asked the court to terminate his
client’s parental rights on (O) grounds only.
Cronic Presumption:
The Strickland court specifically noted the Sixth Amendment right to the
assistance of counsel is not satisfied by merely having a lawyer present with the accused
at trial because “it envisions counsel’s playing a role that is critical to the ability of the
adversarial system to produce just results.” Strickland, 466 U.S. at 685, 104 S.Ct. at
2063 The court further explained the purpose of the guarantee of counsel in our
adversary system of justice is “to ensure that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding.” Any deficiencies in counsel’s
performance must be prejudicial to the defense. However, in those circumstances where
there is actual or constructive denial of counsel prejudice can be legally presumed. In
those cases where counsel was ineffective but did not entirely fail to subject the State’s
case to meaningful adversarial testing, a prejudice inquiry must be conducted. Id. at
687, 692, 104 S. Ct. at 2064, 2067
Mother contends that her counsel failed to subject DFPS’ case to any “meaningful
adversarial testing” and for that reason the Cronic presumption of prejudice should be
applied. Unites States v. Cronic, 466 U.S. 648, 659, 104 S,Ct. 2039, 2047 See also
18
Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997)(“a constructive denial of
counsel occurs when the defendant is deprived of the guiding hand of counsel”)
Counsel’s testing of the case against appellant consisted of establishing that
Plummer “beat” the children when they were in the father’s care. He also inquired why
as the “non-offending parent” DFPS was asking to terminate her rights as opposed to
“PMC and things like that.” The first point was already established by the admission of
the FSP under the paragraph entitled “Reasons For Child Protective Services
Involvement.” (DFPS #7)
With respect to the second point, Mills cited several reasons: mother did not
complete services, moved to Iowa; children staying with the grandmother “most of their
lives;” who is willing to adopt; and, she initially tested positive for drugs. There were
no follow up questions; such as, are they bonded to the mother; how long have they
actually lived with mother and/or grandmother; what is the condition of the
grandmother’s home; and why did grandmother give permission to the father to bring
them to Houston where his girlfriend physically abused them.
Other questions counsel asked illustrate his complete ignorance of his client’s
situation and, due to his failure to acquaint himself with the relevant facts, his total
reliance on Mills’ responses. To cite some notable examples, his assertion that appellant
was excused from subsequent court appearances was refuted by Mills; his representation
that A.L.T. was unaware of the correct trial date was similarly refuted by her testimony,
he elicited, that Mills told her the correct date but she could not attend due to her job;
19
and, his leading question “is it true the mother. . . is not well off financially” also elicited
a prejudicial response when Mills answered, she was not sure because despite numerous
requests appellant never forward her financial information.
At one point it appeared counsel even abdicated his responsibility to communicate
with appellant by asking Mills if she had explained to his client “the ability to relinquish
her rights to the children.” (RR p. 14; L. 7-9)
This case falls squarely into that narrow range of cases where prejudice must be
presumed. As in Childress, the court appointed lawyer in this case never investigated
the facts or apparently discussed the applicable law with his client. Although counsel
was present his role “was essentially passive.” Id. at 1226 & 1228-1229 (constructive
denial, such as where counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing is the difference between “shoddy representation” and
“no representation at all.”) The record firmly establishes that trial counsel entirely failed
to subject DFPS' case to any meaningful adversarial testing. For that reason prejudice
must be presumed.
In the infamous sleeping lawyer case, the State of Texas argued successfully in
the state courts that even though counsel slept though parts of the capital murder trial
prejudice could not be presumed because he di not entirely fail to test the prosecutions
case.5 The federal courts soundly rejected this argument. A defendant is not required to
explain how having counsel would have altered the outcome of a specific case. The
5
Three justices dissented and found that prejudice must be presumed under Strickland and Cronic. Ex
Parte Burdine, 901 S.W.2d 456, 467 (Tex. Crim. App. 1995)
20
court explained: “Unconscious counsel equates to no counsel at all. . . When we have no
basis for assuming that counsel exercised judgment on behalf of his client during critical
stages of the trial, we have insufficient basis for trusting the fairness of that trial and
consequently must presume prejudice.” Burdine v. Johnson, 262 F.3d 336, 349 (5th Cir.
2001)
The Second Strickland Prong:
Both Strickland and Cronic teach that the purpose of the Sixth Amendment is to
ensure a defendant has the assistance of counsel necessary to justify reliance on the
outcome of the proceeding. Strickland, 104 S. Ct. at 2067 and Cronic, 104 S. Ct. at 2046
(“[The right to] effective assistance of counsel is recognized not for its own sake, but
because of the effect it has on the ability of the accused to receive a fair trial.”)
In regard to the second prong, “the defendant must show that there is a reasonable
probability that, but for counsel’s professional errors, the result would have been
different.” However, the Strickland Court expressly noted that this does not mean a
defendant must “show that counsel’s deficient conduct more likely than not altered the
outcome of the case.” Rather a reasonable probability means “a probability sufficient to
undermine confidence in the outcome.” The Court stated, a proceeding can be rendered
unreliable, and hence the proceedings itself unfair, even if the errors of counsel cannot
be shown by a preponderance of the evidence to have determined the outcome.
Strickland, 104 S. Ct. at 2068 See also In re B.G., 317 S.W.3d 250, 256 (Tex.
2010)(focus for the prejudice inquiry is whether counsel’s mistakes were so serious as to
21
deny the defendant a fair and reliable trial)
Applying those principles to this case, it is clear there is a reasonable probability
that counsel’s ineffective representation rendered the trial result unreliable.
For starters, his client was not present because she believed the trial would be held the
following month. There is no reasonable explanation as to why he did not attempt to
communicate with A.L.T. when the trial date was set at the last permanency hearing.
Even if he did not have her current telephone number, at a minimum, he should have
procured her address when she appeared in court. That way he could have, at least,
contacted her by mail or possibly email. Instead he relied on Mills – who apparently did
not have the same difficulty maintaining contact with A.L.T. – to obtain her number the
morning of trial.
Counsel’s failure to fulfill the mandates of §107.0131 is also informative when
conducting an analysis under the second Strickland prong because it imposes specific
duties on an indigent parent’s attorney. Here counsel shirked those duties in several
ways.
While he might have interviewed appellant, there is no indication he interviewed
the father or the grandmother who is a person with significant knowledge of the case.
Moreover, his cross-examination of Mills reveals he did not thoroughly investigate the
facts of the case as shown by his open-ended questions.6 The record confirms, he did
6
§107.0131 permits a parent’s attorney to conduct discovery. This provides another tool to investigate
the facts of the case. However, in this case, there is no indication counsel availed himself of this
tool.
22
not meet with mother before the trial. Nor does it indicate that the court authorized him
to confer with her by telephone or videoconference. In short, the goal of §107.0131 to
“ensure competent representation . . . at trial” was thwarted in this proceeding.
As noted above, counsel failed to cross-examine Mills regarding her conclusory
statements and affirmative responses to leading questions. He ceased to be mother’s
advocate and instead merely acquiesced in terminating her parental rights. This fact was
amply demonstrated at closing. Rather than argue, as appellant does here, that the
evidence is legally and factually insufficient to support both the predicate and best
interest termination findings, he asked the court to just terminate his client’s rights on
(O) grounds. In particular, his failure to argue against the endangerment findings is
perplexing given the glaring lack of evidence to support those finding. Similarly, he
should have pointed out the best interest finding was supported, for the most part, by
Mills’ opinions and conclusions but little probative evidence.
Conclusion:
The observation made by Justice Jennings five years ago has unfortunately proven
to be prophetic:
If allowed to stand, the majority’s en banc opinion will not only encourage trial
courts to (1) constructively deny parents their statutory right to counsel in parental
termination cases and (2) terminate parental rights on less than clear and convincing
evidence in summary proceedings, it will make the practice inevitable.
In re V.V., 349 S.W.3d 548, 577 (Tex. App. – Houston [1st Dist.] 2010, pet.
denied)(J. Jennings, dissenting)
This case illustrates that for far too many indigent parents the statutory right to
23
competent representation remains unfulfilled. Nevertheless, it also presents the Court
with any opportunity to help redress this injustice. For the reasons stated above, the
Court should find that A.L.T. is entitled to a new trial based on her counsel
ineffectiveness.7
ISSUE TWO: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT’S PARENTAL RIGHTS UNDER
§161.001(1)(D) & (E)
Applicable Legal Standard
The evidence pertaining to subsections (D) and (E) is interrelated because both
focus on endangerment. Therefore, for convenience, the endangerment termination
findings are addressed in one point of error. In re J.T.G., 121 S.W.3d 117, 126 (Tex.
App. - Ft. Worth 2003, no pet.)
Both subsections use the term “endanger.” Endangerment is defined as “to
expose to loss or injury; to jeopardize.” Although “endanger” means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is
not necessary that the conduct be directed at the child or that the child actually suffers
injury. Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)
To support a subsection (D) finding the evidence must show that the parent
“knowingly placed or knowingly allowed the child to remain in conditions or
7
Justice Christopher, concurring, recently commented on the quality of the lawyering in another
parental termination trial by noting, “it was a tough call [for the trial judge] because none of the
parties presented much-needed evidence for the judge.” In re: M.L.G.J., 14-14-00800-CV, 2015 WL
1402652 *14 (Tex. App. – Houston [14th Dist.] March 24, 2015, no pet.)(memo. op.)
24
surroundings which endanger the physical or emotional well-being of the child.”
§161.001(1)(D) To sustain a subsection (E) finding, the evidence must establish that the
parent “engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child.”
§161.001(1)(E)
A subsection (D) inquiry focuses on the “child's living environment rather than
the parent's conduct, though parental conduct is certainly relevant to the child's
environment.” In re A.S., 261 S.W.3d 76, 83 (Tex. App. - Houston [14th Dist.] 2008,
writ denied) Living conditions that are merely “less than ideal” do not support a finding
under this section.” Boyd, 727 S.W.2d at 533 The relevant time period is before DFPS
removes the child. In re J.R., 171 S.W.3d 558, 569 (Tex. App. - Houston [14th Dist.]
2005 no writ) The parent need not have certain knowledge that an actual injury is
occurring but must at least be aware of the potential for danger to the child in such an
environment and must have disregarded that risk. In re C.L.C., 119 S.W.3d 382, 392
(Tex. App. - Tyler 2003, no pet.)
Under subsection (E) the danger must arise solely by the parent's actions or failure
to act. The inquiry focuses on whether evidence exists that the child's physical or
emotional well-being is endangered by parental conduct, including acts, omissions or
failure to act. In re J.W, 152 S.W.3d 200, 205 (Tex. 2006) A termination finding must
be based on more than a single act or omission and requires a voluntary, deliberate and
conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d at 125
25
The cause of the endangerment must be the direct result of the parent's conduct
alone and must be the result of a conscious course of conduct rather than a single act or
omission. In re A.S. 261 S.W.3d at 83 Thus, the relevant inquiry is whether evidence
exists that a parental course of conduct endangered the child’s physical or emotional
well-being. Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App. – Houston [1st Dist.]
2010, pet. denied) Evidence of a parent's past conduct, including criminal history, may
be relevant if it shows a conscious course of conduct occurring both before and after a
child's birth. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997,
no writ)
The Department bears the burden of producing evidence concerning the
engendering conduct and establishing that it was part of a voluntary course of conduct
that endangered the child’s well-being. In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012)
The Evidence:
The following evidence pertains to the analysis of the endangerment findings:
Mills agreed with her counsel that appellant “tested positive for cocaine and
marihuana in October and November of 2013.” DFPS does not have any later drug tests
because appellant lives in another state. (RR p. 14-15)
The drug test results from samples collected on October 16, 2013 show appellant
tested positive in her hair sample for cocaine (366 pg/mg), benzoylecgonine (28 pg/mg),
marihuana (>25.0), marihuana metabolite (0.1 pg/mg) and negative for all drugs on her
urine sample. DFPS #5
26
The results from samples collected on November 20, 2013 show she tested
positive in her hair sample for cocaine (2413 pg/mg), benzoylecgonine (616 pg/mg),
marihuana (>50.0), marihuana metabolite (0.2 pg/mg) and negative for all drugs on her
urine sample. DFPS #6
The children came into care because of “physical abuse of [A.N.W.].8” They
were in the father’s custody when the abuse occurred. He took them from the
grandmother with her permission and brought them to Houston. His girlfriend “beat”
the children when they were in Houston. (RR p. 11-12)
She asked the court to terminate mother’s parental rights “based on her failure to
do services” and “constructive abandonment of the children.” (RR p. 10)
Analysis & Argument:
The evidence supporting the endangerment findings is paltry and certainly fails to
satisfy the clear and convincing standard. In fact, Mills did not even request the trial
court to terminate A.L.T.’s parental rights be terminated on endangerment grounds.
It is undisputed the abuse occurred when the children were in the father’s custody
and Plummer was the perpetrator. Appellant was living in Illinois or Iowa at the time.
Therefore, in order to support the endangerment findings, there must be some evidence
that appellant knowingly placed or knowingly allowed the children to remain in an
environment which endangered their physical or emotional well-being. Alternatively, it
8
The first paragraph of appellant’s FSP shows Plummer physically assaulted the children on multiple
occasions. (DFPS #7, p. 1)
27
must establish that she knowingly placed the children with persons who engaged in
conduct that endangered their physical or emotional well-being.
There is no evidence in this record to establish that A.L.T. even knew Plummer;
much less that she was aware Plummer was physically abusing her daughters. Similarly,
there is no evidence to show that she knew the conditions in which the children were
living at the time of removal.
The record is also silent as to her relationship with the father. Again there is no
evidence that she knew or could predicate that he would fail to protect their children. In
fact, the paternal grandmother allowed him to take his daughters to Texas. Certainly, if
she were aware that he would not protect them, DFPS would not have placed them with
her in May.9
The two positive drug test results can be considered in determining whether a
parent has engaged in endangering conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009)(Drug use and its effect on the ability to parent can be part of an endangering
course of conduct). Nevertheless, on the face of this record, the evidence of drug use is
not so convincing as to support the endangerment findings.
The drug test results from hair samples collected on October 16, 2013 and
November 20, 2015 indicate mother tested positive for cocaine and marihuana on both
tests. She was negative for all drugs on the urine samples. At the time the samples were
collected the children were already in DFPS custody. There was no evidence that
9
Although not admitted into evidence, the clerk’s record contains the approved ICPS home study on
the paternal grandmother. (CR 66-85)
28
A.L.T. ever used illegal drugs in the presence of the children.
Most importantly, no expert testified at trial to explain the significance of the
result. For instance, do they mean mother ingested cocaine or was she merely exposed
to it? Did she use it once or on multiple occasions; in what quantities and how long
before the samples were collected. Without the benefit of any expert testimony the fact
finder is unable to determine what weight should be given to the positive hair sample
results, particularly when there are negative urine results. Simply stated, the hair follicle
results standing alone do not establish that appellant engaged in a continuing course of
conduct.
Neither DFPS nor the children’s ad litem provided any evidence to place the
positive drug results in context. The fact finder does not know when the children first
began to live with the grandmother or when the father brought them to Houston. When
and if the children lived with the mother is also a mystery. What conditions they lived
in before coming to Houston is similarly unknown.
In conclusion, the only evidence supporting the endangerment findings consists
principally of appellant’s two positive drug tests from hair samples collected at the
beginning of the case. Nevertheless, the record does not provide any context as to how
appellant’s two positive drug tests exposed the children to danger. Involuntary
termination statutes are construed strictly in the favor of the parent and DFPS is required
to “support its allegations against [appellant] by clear and convincing evidence;
conjecture is not enough.” In re E.N.C., 384 S.W.3d at 802, 8110 (Tex. 2012) Therefore,
29
based on the speculative nature of the scant evidence pertaining to the endangerment
findings, appellant’s second point of error should be sustained.
ISSUE THREE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(N)
Applicable Legal Standard:
To support termination of parental rights under subsection N, DFPS is required to
prove that (1) the parent has constructively abandoned the child who has been in the
permanent or temporary conservatorship of the Department or an authorized agency for
not less than six months; (2) the department or authorized agency has made reasonable
efforts to return the child to the parent; (3) the parent has not regularly visited or
maintained significant contact with the child; and (4) the parent has demonstrated an
inability to provide the child with a safe environment. §161.001(1)(N)
Under this subsection if the evidence is legally insufficient on any one of the four
elements, the termination finding cannot be sustained. In re D.T., 34 S.W.3d 625, 633
(Tex. App. – Ft. Worth 2000, pet. denied) Moreover, the party seeking the termination
of parental rights bears the burden of proof under §161.001(1)(N). In re A.S., 261 S.W.
3d at 90
The Evidence:
The relevant evidence relating to subsection N grounds is as follows:
Mills agreed A.L.T. has not visited her children “consistently throughout the
pendency of this case.” She last visited around the end of July and, “before that she had
not visited them in a long time.” (RR p. 9)
30
Mother moved to Iowa. For that reason, she must pay for the services set forth in
her FSP. (RR p. 14)
As far as Mills knows, appellant has not provided any support for the children.
She was making court appearances at the beginning of the case. Mills did not remember
the Judge saying that “due to family restraints (sic)” mother was excused from attending
court hearing. (RR p. 10-12)
Mills is “not sure” if appellant is “not well off financially.” She last spoke to her
around August 20th and advised her of the September 2nd trial date. Mother said she
“could not make it because of her job.” (RR p. 13-14)
Analysis & Argument:
Under subsection (N), DFPS bears the burden of proving by clear and convincing
evidence that appellant had not visited or maintained significant contact with her
children. Nevertheless, the evidence establishes she did maintain contact.
Mills agreed with her trial counsel’s conclusory statements that A.L.T. has not
visited her children “consistently throughout the pendency of this case” and “before that
she had not visited them in a long time.” The trial took place on September 2, 2014 and
Mills testified mother last visited the children around the end of July. In addition, Mills
spoke to her as recently as August 20th. When mother told her she could not attend the
trial due to work.
Thus, Mills’ testimony shows appellant did not constructively abandon her
children. In re K.W., 138 S.W.3d 420, 432-33 (Tex. App. – Ft. Worth 2004, pet.
31
denied)(holding that parent’s correspondence with caseworker demonstrated he had not
constructively abandoned his child under subsection N) and In re D.W., No. 01-13-
00880-CV (Tex App. – Houston [1st Dist.] April 11, 2014, no pet.)(memo op.)(holding
evidence insufficient under subsection N where trial in September and caseworker
testified appellant maintained contact with her from March to July of same year)
The evidence is also insufficient to show that DFPS made reasonable efforts to
reunite the children with their mother or that she has demonstrated an inability to
provide the children with a safe environment.
Generally, DFPS can prove it made reasonable efforts to return the child to the
parent element by the implementation of a family service plan. Liu v. DFPS, 273 S.W.3d
785, 795 (Tex. App. – Houston [1st Dist.] 2008 no pet.)(a family service plan is designed
to reunify a parent with a child who has been removed by DFPS) However, in this case
there is no evidence that mother received or understood the FSP. DFPS would not pay
for her services because she lives in Iowa. There was no proof of the cost to complete
the services; if they are available in Iowa; and, if A.L.T. could afford to pay for them.
Mills was “not sure” if appellant was “not well off financially.” Beyond that
statement there was no addition evidence A.L.T. demonstrated an inability to provide
the child with a safe environment. While Mills asked her to provide information
regarding her finances, there was no evidence as to her ability to provide a safe
environment for the children. Mills only offered that appellant was working as a reason
for not attending the trial. See In re D.T., 34 S.W.3d at 641 (noting caseworker’s
32
statement that appellant had not shown she could provide stable home improperly
reversed burden of proof)
In conclusion, the evidence does not legally or factually support the trial court’s
termination finding under subsection (N).
ISSUE FOUR: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE TERMINATION OF
APPELLANT'S PARENTAL RIGHTS UNDER §161.001(1)(O)
Applicable Legal Standard:
The Family Code provides that a court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent has:
Failed to comply with the provisions of a court order that specifically
establish the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as result of the child’s removal from the parent
under Chapter 262 for the abuse or neglect of the child.
§161.001(1)(O)
§262.201(b) provides that after the full adversary hearing the court must return the
child to his parent unless it finds sufficient evidence to satisfy a person of ordinary
prudence and caution that:
(1) there was a danger to the child’s physical health and safety that was caused by
an act or failure to act of the person entitled to possession, and for the child to remain in
the home is contrary to the welfare of the child;
(2) the urgent need for protection required the immediate removal of the child and
reasonable efforts, consistent with the circumstances and providing for the child’s
safety, were made to eliminate or prevent the child’s removal; and
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(3) reasonable efforts have been made to enable the child to return home, but there
is a substantial risk of a continuing danger if the child is returned home.
A termination finding under subsection (O) cannot be upheld where there is no
court order that specifically establishes the actions necessary for the parent to obtain
return of the child. In re: K.F., 402 S.W.3d 497, 501 (Tex. App. – Houston [14th Dist.]
2013, pet. denied)
Relevant Evidence:
Appellant’s FSP was admitted into evidence without objection. It was filed on
November 12, 2013 and signed by Mills on October 31, 2013. It was not signed by
A.L.T. (DFPS #7)(CR 36-42)
Mother’s attorney ad litem filed her original answer on November 20, 2013. (CR
28-29)
The trial court took judicial notice of all orders in its file. (RR p. 9; L. 12-15)
The clerk’s record contains three permanency hearing orders (“PHO”) but no order that
specifically states the actions A.L.T. must complete to be reunited with her children.
The first PHO dated February 19, 2014 recites, in relevant part, the following
boilerplate language:
IT IS ORDERED . . . the permanency plans for the children, set out in the service
plans and/or Permanency Progress Reports filed with the Court, are approved and
adopted by this Court and incorporated herein as if set forth verbatim in this order. The
actions specified in each service plan and/or Permanency Progress Report on file as of
the date of this order represent actions which this Court requires of the parent specified
in the service plan and/or Permanency Progress Report and the actions much (sic) be
performed in order for the parent to regain custody of the children who are presently in
the temporary managing conservatorship of the Department.
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It further recites that appellant was not present. (CR 62-65)
The second PHO signed on June 11, 2014 contains the same boilerplate language
and recites that appellant was not present. (CR 86-89) The last PTO was signed on the
date of the trial, September 2, 2014.
DFPS removed the children from the father’s custody due to physical abuse
inflicted on them by his girlfriend. He brought them to Houston from Chicago.
Mills agreed appellant “failed to complete her services” but completed “one of the
things.” She has not received “any indication [mother] has completed any other
services.” She further agreed A.L.T. has not visited her children “consistently
throughout the pendency of this case” although she last visited around the end of July.
Mother was making court appearances at the beginning of the case.
Mills asked the court to terminate mother’s parental rights “based on her failure to
do services.” and to the best of her knowledge, mother has not provided any support for
the children. (RR p. 10)
Mills is “not sure” if appellant is “not well off financially.” She repeatedly asked
her to send information about her finances. Mother sent the certificate showing
completion of parenting classes. Mills last spoke to her around August 20th and advised
her of the September 2nd trial date. Mother said she “could not make it because of her
job.” (RR p. 13-14)
DFPS sought to terminate mother’s rights as opposed to “PMC and things like
that” because she did not complete “all the courses;” moved to Iowa; and “initially
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tested positive for drugs” in October 2013. DFPS has no later drug tests because
appellant is in another state. Because appellant resides out-of-state she must pay for her
own services. (RR p. 14)
Appellant and her children were born in Chicago, Illinois. There is no evidence
that she ever resided in Texas. (DFPS #2)
The removal affidavit (“affidavit”) shows the children were removed from the
father because his girlfriend, Plummer, was physically abusing them. It further states
“[A.L.T.] . . . resides in Chicago which is where [A.L.W. and A.N.W.] came from.”
The father “went and got them from Chicago” which is the reason they no longer reside
with mother. Plummer at first said they were in the father’s care due to abuse by A.L.T.
However, she then stated they are “special needs children ans as to their reports of
abuse, they don’t know what they are talking about.” (CR p. 23 & 25)
Plummer has an extensive CPS and criminal history. In contrast, the affidavit
states mother has no criminal history and no CPS history was reported. (CR 25-27)
Argument & Analysis
Appellant argues that the subsection (O) finding should be reversed for several
reasons. First, the evidence does not meet the clear and convincing standard to prove
that the children were not removed from A.L.T. or even the father due to abuse or
neglect. Secondly, the evidence is legally insufficient because the record does not
contain a court order that specifically establishes the actions necessary for A.L.T. to take
in order to obtain the return of her children; and, finally, the evidence is factually
36
insufficient because a rational fact finder could not form a firm conviction or belief that
DFPS meet its burden of proof under this subsection.
Removal From A.L.T. Due to Abuse or Neglect:
Involuntary termination statutes must be “strictly construed” in favor of the parent
and due process “commands that courts apply the clear and convincing evidentiary
standard” in such cases. In re E.N.C., 384 S.W.3d at 802, 809 Subsection (O) includes
a specificity requirement and DFPS is required to “support its allegations against
[appellant] by clear and convincing evidence; conjecture is not enough.” In re D.N., 405
S.W.3d 863, 878-79 (Tex. App. – Amarillo 2013, no pet.)(citing In re E.N.C., 384
S.W.3d at 810)
Proof of abuse or neglect is a required element of subsection (O). However, it is
not require that the parent who failed to comply with the court order be the same person
whose abuse or neglect of the child warranted the child’s removal. In re S.N., 287 S.W.
3d 183, 188, 190 (Tex. App. – Houston [14th Dist.] 2009, no pet.) The words “abuse”
and “neglect” are interpreted broadly to necessarily include risks or threats of the
environment in which the child is placed. The removal “affidavit, even if not evidence,
for all purposes, can be considered in determining whether removal was justified.” In re
E.C.R., 402 S.W.3d 239, 248 (Tex. 2013)
Whether a child was removed for abuse or neglect must be determined on a case-
by-case basis. In re A.A.A., 265 S.W.3d 507, 516 (Tex. App. – Houston [1st Dist.] 2008
pet. denied)
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It is clear that subsection (O) only applies if the child was removed from the
parent for abuse or neglect under chapter 262. The Supreme Court decided that abuse or
neglect includes “placing the child’s physical health or safety at substantial [emphasis
added] risk.” The parent’s abuse or neglect of another child who is not the subject of the
case can be considered in making this determination. Specifically, the court held that
the affidavit and subsequent finding by the trial court authorizing the child’s removal
were sufficient evidence to establish, as a matter of law, the child was removed under
chapter 262 for abuse or neglect. In re E.C.R., 402 S.W.3d at 249
Here, however, the affidavit and trial evidence conclusively establish that the
children were removed from the father and Plummer due to physical abuse. The affidavit
notes that mother lives in Chicago and has no criminal or CPS history. There is no
evidence that she abused or neglected any child.10
At the full adversary hearing, §262.201(b) provides the court must return the child
to his parent unless the court finds, inter alia., there was a danger to the child’s physical
health and safety that was caused by an act or failure to act of the person entitled to
possession, and for the child to remain in the home is contrary to the welfare of the
child. The burden of proof is less than clear and convincing; i.e. sufficient evidence to
satisfy a person of ordinary prudence and caution.
While appellant found several cases where the removal affidavit and trial court’s
10
Although Plummer stated the children were living with her and the father because they were abused
by A.L.T., she then said they were residing with her because of their special needs. Given her
extensive criminal and CPS history as well as her denial that she abused the children, a reasonable
fact finder could not find her conclusory statement credible. (CR p. 25)
38
§262.201(b) findings were sufficient to support the subsection O finding that the child
was removed for abuse or neglect, there was at least some evidence that the parent posed
a “substantial” risk to the child. For instance, in E.C.R., the affidavit revealed mother
had physically abused any older child that resulted in criminal charges; none of her
children were in her care and she attempted suicide while in the county jail. Id. at 241
See also, In re A.A.A., 265 S.W.3d at 516 (mother left child at shelter, committed a
crime and did not look for child upon release from county jail) and In re J.R.W., No. 01-
14-00442-CV, (Tex. App. – Houston [1st Dist.] Nov. 26, 2014, (no pet.)(memo.op.)(at
adversary hearing mother admitted testing positive for marihuana, benzodiazepines and
opiates when child born and smoking marihuana the day he was born)
In sum, the allegations made in support of removal were based solely on
allegations of abuse committed by Plummer and father’s neglect in failing to stop the
abuse. Therefore, no reasonable fact finder could form a firm belief of conviction that
the children were removed from appellant for abuse or neglect and the subsection (O)
finding must be reversed.
Sufficiency of Evidence:
The subsection (O) finding should also be reversed because there is no court order
in the record that specifically establishes the actions necessary for a parent to obtain the
return of their child then a termination finding under subsection (O) cannot be upheld.
Proof of such an order is an essential element of subsection (O) that the State must prove
by clear and convincing evidence. In re C.L., 304 S.W.3d 512, 514 (Tex. App. – Waco
39
2009, no pet.)
Here the court took judicial notice of all orders in its file. The file contains two
PHO’s dated February 19, 2014 and June 11, 2014 that recite the FSP’s are “approved
and adopted by the court and incorporated herein as if set verbatim in this order.”
Mother was not present at either permanency hearing and transcripts of those hearings
were not admitted into evidence at trial. Her FSP was admitted into evidence. (DFPS
#7)
Mills testified only broadly regarding what services the FSP required appellant to
complete. Her responses to leading questions posed by DFPS counsel established that
mother failed to “complete her services” except for one; presumably the parenting
classes because Mills received a certificate of completion. Mills has not received “any
indication [mother] completed any other services.”
Mills stated A.L.T. has not visited the children regularly but acknowledged she
visited in late July. She advocate terminating A.L.T.’s parental rights because she did
not complete “all the courses;” moved to Iowa; and “initially tested positive for drugs”
in October 2013.
Typically, the record contains a status hearing order that approves and orders the
FSP. Again, subsection (O) includes “a specificity requirement.” The fact that the two
PHO’s reference another order that might satisfy subsection (O)’s specificity
requirement is not sufficient to meet the clear and convincing evidence burden.
40
However, even assuming the record contained such an order, Mills’ testimony
also fails to meet the required evidentiary burden. She merely stated appellant “failed to
complete her services” and then agreed she completed her parenting classes. Yet there
is no testimony regarding what specific services she failed to complete. Only Mils
conclusion that she “failed to complete services.”
The FSP states that for the psychosocial assessment, the random drugs tests, and
the drug/alcohol evaluation the provider was supposed to contact A.L.T. Again there is
no evidence this was done. Mills testified that because appellant lives out-of-state DFPS
would not pay for her services. The record shows the court found her to be indigent.
How she would pay for those services and their availability in Iowa are unknown.
Similarly, how any indigent parent living in Iowa could attend “all Permanency
Conferences, Court Hearings, scheduled family visits with her children” remains a
mystery. (DFPS #7, p. 3-4)
In sum, the evidence supporting the subsection (O) finding is based on nothing
more than Mills’ conclusory statements. Therefore, appellant’s point of error should be
sustained.
ISSUE FIVE: WAS THE EVIDENCE LEGALLY AND FACTUALLY
SUFFICIENT TO SUPPORT THE BEST INTEREST
TERMINATION FINDING
Applicable Legal Standard
DFPS must prove by clear and convincing evidence that termination of
appellant’s parental rights is in the child’s best interest. §161.001(2)
41
There is a strong presumption that the child’s best interest is served by keeping
the child with the natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) DFPS
has the burden of rebutting this presumption by presenting clear and convincing
evidence of the natural parent’s present unfitness. In re C.J.S., 383 S.W.3d 682, 691
(Tex. App. – Houston [14th Dist.] 2012, no pet.) The same evidence may be probative of
both §161.001(1) grounds and best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)
Nevertheless, the best interest determination must have a firm basis in facts standing
apart from the offending behavior. In re S.R.L., 243 S.W.3d 232, 235 (Tex. App.
Houston [14th Dist.] 2007, no pet.)
In Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the court identified nine
nonexclusive factors to consider in determining whether termination of parental rights is
in a child’s best interest. Those factors are: (1) the desires of the child; (2) the child’s
emotional and physical needs now and in the future; (3) any emotional and physical
danger to the child now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist those individuals seeking custody
to promote the best interests of the child; (6) the plans for the child by the parties
seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s
acts or omissions that may indicate that the existing parent-child relationship is improper
one; and (9) any excuses for the parent’s acts or omissions.
The Holly factors are not exhaustive. The absence of evidence pertaining to some
of the factors will not preclude a termination finding on best interest grounds. However,
42
scant evidence relevant to each Holly factor will not support such a finding. Evidence
proving on or more of the predicate grounds for termination may be probative in
determining if termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27-28
A lack of evidence pertaining to one of the factors cannot be used as if it were evidence
supporting a termination finding. In re E.N.C. 384 S.W.3d at 809 (Tex. 2012) The
appellate court reviews the entire record in deciding a challenge to the court’s best
interest finding. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013)
In cases where a governmental agency is the petitioner §263.307(a) states “the
prompt and permanent placement of the child in a safe environment is presumed to be in
the child’s best interest.” §263.307(b) provides a list of factors to consider in
determining whether a parent is willing to provide the child with a safe environment. In
re G.M.G., 444 S.W.3d 46, 55 (Tex. App. – Houston [14th Dist.] 2014, no pet.)
Analysis & Argument
The record in this case is silent as to most of the Holly and §263.307(b) factors.
As with the evidence supporting the predicate termination findings it consists mainly of
Mills’ conclusions and opinions.
To recap, the children have been living with the paternal grandmother in Chicago
since May 28th and are “very well there.” Mills opined it is in their the best interest to
terminate mother’s parental rights because she “has not shown the stability to care for
the children” and “they’re in an adoptive placement” that is “willing to provide them a
safe and stable home free of physical abuse.” She further agreed with the ad litem that
43
“they’ve lived with [grandmother], basically, their entire lives;” they want to be there;
they consider her their mother; and, they “have a relationship with their mom.”
Mother tested positive for marihuana and cocaine in October and November 2013.
Mills’ testimony provides no facts to support her opinions. Elizondo v. Krist, 415
S.W.3d 259, 264 (Tex. 2013)(“Bare, baseless opinions will not support a judgment even
if there is no objection to their admission in evidence . . . conclusory testimony cannot
support a judgment.”)
To mention but a few of the relevant factors the proponents of termination failed
to address: What dates did the children live with the grandmother and/or mother; what
needs do they have; what plans do the grandmother and/or mother have for them in the
future, what parenting skills do they have; what programs are available to assist them.
Perhaps most importantly, what are the children’s desires with respect to permanently
severing the parent-child relationship? There is no evidence in the record that the ad
litem ever spoke with the children. In effect, the children’s desires, needs, current living
conditions, and aspirations are unknown. Indeed, in this record, even their names are
missing. Like appellant they lacked an effective advocate at trial.
Mother tested positive for cocaine and marihuana in the beginning of the case.
However, as noted above, there was no expert evidence to put the drug use in context or
an explanation of how the drug use exposed the children to danger, particularly when the
children were not living with her. In re M.R., 243 S.W.3d 807, 821 (Tex. App. – Ft.
Worth 2007, no pet.)(“a parent’s drug use also supports a finding that termination of
44
parental rights is in the child’s best interest”)
In mother’s favor, there is no evidence that she has any CPS or criminal history.
She completed her parenting classes and was employed.
In conclusion, the evidence in support of the best interest termination finding is
insufficient. In re E.N.C., 384 S.W.3d at 809 (“due process command that courts apply
the clear and convincing evidentiary standard in parental rights termination cases.”)
PRAYER
Appellant, A.L.T., prays that the Court reverse the judgment terminating her
parental rights to A.L.W. and A.N.W. Appellant prays for general relief.
Respectfully submitted,
/s/ william m thursland
_________________________
William M. Thursland
TBN: 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
Email: wmthursland@hotmail.com
Tel.: (713) 655-0200 x 105; Fax: (713) 655-9035
Attorney for Appellant, A.L.T.
CERTIFICATE OF COMPLIANCE
I certify that the foregoing computer generated brief complies with word limit
requirements of TRAP 9.4 (3). Relying on the word count of the computer program used
to prepare this document, the number of words, is 11,383 excluding the caption, identify
of parties and counsel, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of procedural history, signature, proof of service,
45
certificate of compliance and appendix.
/s/ william m thursland
_______________________
William M. Thursland
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing brief was served on May 10,
2015 on appellee’s counsel, Sandra D. Hachem. Sr. assistant Harris County attorney,
1019 Congress, 16th Fl., Houston, TX 77002, by electronic delivery.
/s/ william m thursland
__________________________
William M. Thursland
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