Doe v. Brazoria County Child Protective

• Decision Date: 16 January 2007
• Docket Number: No. 01-05-00987-CV.,01-05-00987-CV.
• Citation: 226 S.W.3d 563
• Parties: "Jane DOE," Appellant v. BRAZORIA COUNTY CHILD PROTECTIVE SERVICES, Appellee.
• Court: Texas Court of Appeals

226 S.W.3d 563

"Jane DOE," Appellant v. BRAZORIA COUNTY CHILD PROTECTIVE SERVICES, Appellee.

No. 01-05-00987-CV.

Court of Appeals of Texas, Houston (1st Dist.).

January 16, 2007.

Shannon Tigner, Angleton, TX, for appellant.

Courtney Tremain Gilbert, Angleton, TX, for appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.

OPINION

SHERRY RADACK, Chief Justice.

Appellant, Jane Doe, appeals the trial court's judgment, rendered on a jury verdict, terminating the parent-child relationship between her and her children, M.T. IV and R.A. This case requires us to decide (1) whether the timing of the filing of the notice of appeal deprives us of jurisdiction to decide the case and (2) whether we should reverse the judgment of termination based on ineffective assistance of Jane Doe's trial counsel. We hold that we have jurisdiction to consider this appeal and that Jane Doe has not established her claim of ineffective assistance of counsel. We affirm the trial court's judgment.

Factual and Procedural Background

Doe and M.T. III are the parents of M.T. IV, born in September 1997. Doe and Q.L. are the parents of R.A., born in August 2001.

Case investigation began based on a referral stating that minor children resided in a home where drugs were present. On March 16, 2004, Lake Jackson Police Department Detective Carey and an employee of appellee Brazoria County Children Protective Services (BCCPS), visited Doe's home where they found her and her boyfriend, R.P. The children were not there. With Doe's consent, the police searched her apartment and found two small baggies of marijuana, roach clips, a set of scales, rolling paper, and three .357 magnum bullets, though no gun was found. The police took photographs of the apartment, which were later admitted into evidence. The police arrested Doe and R.P. and charged them with possession of marijuana and child endangerment.

On March 23, 2004, the trial court signed temporary orders granting temporary managing conservatorship of the children to BCCPS, and temporary possessory conservatorship to Doe. The trial court also awarded temporary possessory conservatorship of R.A. to Q.L. and temporary possessory conservatorship of M.T. IV to M.T. III.

Additionally, the trial court ordered Doe to (1) submit to and cooperate in the development of a psychiatric evaluation, (2) successfully complete parenting classes, (3) successfully complete counseling addressing the specific issues that led to the children's removal, (4) successfully complete a drug and alcohol assessment, (5) remain drug and alcohol free during the pendency of the suit, and (6) maintain a safe and stable home environment. The court admonished Doe that fulfillment of these requirements was required to obtain the children's return and that failure to comply with any of the orders could result in the restriction or termination of her parental rights.

On December 28, 2004, BCCPS requested that the trial court restrict Doe, subject to conditions and restrictions, to supervised access to the children as the court determined was in their best interest, or, in the alternative, that the trial court terminate the parent-child relationship between her and the children. As grounds for termination, BCCPS asserted that Doe (1) knowingly placed or knowingly allowed the children to remain in conditions endangering their physical or emotional well-being,¹ (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers their physical or emotional well-being,² and (3) failed to comply with the provisions of a court order that specified the conditions required for her to obtain the return of the children, who have been in the temporary managing conservatorship of the Texas Department of Family and Protective Services for not less than nine months as the result of the children's removal from the parent, under Chapter 262 of the Texas Family Code, for abuse and neglect of the children.³

On September 6, 2005, the trial court began the hearing on BCCPS's request for final orders regarding access to the children or the termination of the parent-child relationship between the children and their parents. At the opening of the proceedings, the trial court approved an agreed judgment terminating the parent-child relationship between M.T. III and M.T. IV. The trial court also ordered the parent-child relationship established between Q.L. and R.A., dismissed the termination case against Q.L., and approved the monitored return of R.A. to Q.L., based on agreed removal of R.A. while Q.L. completed specified services over the next 180 days.

The trial court then proceeded with BCCPS's request to determine Doe's access to the children or terminate the parent-child relationship between the children and Doe. BCCPS called Doe as an adverse witness. She testified that before March 16, 2004, the children resided primarily with her. On March 16, 2004, BCCPS and the police found marijuana in her home, which led to the convictions of her and R.P. for its possession. That day, Doe admitted to the BCCPS worker that she sold marijuana from her home, and that she knew R.P. had been incarcerated a few times. At the time, she thought it was all right for R.P. to be around her children, despite his prior incarceration.

Doe admitted that prior to March 16, 2004, drug users came to her home to buy marijuana. She said that R.P. forced her to sell drugs from her house. She feels like she has a drug problem, spanning seven or eight years, or roughly M.T. IV's entire life. She tried to address the problem in 2004, when BCCPS sent her go to rehabilitation, but that did not go well. On March 29, 2004, she tested positive for marijuana and cocaine. BCCPS offered her drug rehabilitation services, but she quit because she lost hope with all she was going through, including the loss of her children.

Doe submitted to drug rehabilitation again in May 2004, and which she completed successfully. Not long thereafter, however, she miscarried R.P.'s baby and started using drugs again. She admitted to using cocaine on March 15, 2005. She has had one or two citations for public intoxication during the pendency of this case. The last time she used marijuana was the weekend before trial.

Doe conceded that she did not follow through on her individual therapy provided by BCCPS. She knows it is wrong to use drugs around children, that she "messed up," that the only environment her children know is living with a parent who is a drug addict, and that she will probably not get her children back. She is an addict because she has not been able to choose her children over drugs.

Doe testified that though she was addicted to drugs, she took care of the children, bathed them, fed them, and saw that M.T. IV went to school. She did not do drugs in front of her children. She last saw the children in July because she was in Oklahoma in August. The last place she worked was at the Country Café in February or March, but she quit again. Before she was with R.P., she and the children lived together, and she held a job.

When BCCPS offered Doe a free psychological evaluation and parenting classes, she completed the evaluation, but not the parenting classes. She has paid her $50 monthly court-ordered child support for the children. The longest she has gone without seeing the children is a month, when she was out of town.

R.P. is her ex-boyfriend with whom she lived, on and off, for the last two and one-half years, beginning a couple of months before BCCPS removed the children. He was not violent while she still had the children, and she did not know about his past of beating women. R.P. did not use drugs around her. On June 9, 2004, R.P. physically abused her, resulting in his conviction for assault. She obtained two protective orders against R.P., one in February 2005, and one in May 2005. They had been fighting off and on since May 2005, and she broke off the relationship in July 2005. Fearing for her life, she went to live for a month with relatives in Oklahoma. Doe has no home currently because of R.P.'s threats against her.

Doe lives with her mother in her mother's house in Brazoria and has returned home for only a couple of weeks. She has been back in town for only a couple of weeks. Her mother is her sole means of support. She does not believe that the children should be returned to her right now.

On cross-examination by her counsel, Doe testified that her latest effort to address her drug problem was a phone call to Brazos Place in Freeport, a drug rehabilitation facility. She completed screening over the phone and expected a call that a bed was available for her in a couple of days. There was no violence in her home when her children were taken away. The violence with R.P. occurred after the children were removed.

BCCPS case workers testified that at the beginning of the case, the goal was reunification of Doe with the children, but that it changed because of Doe's continued, positive drug screenings and noncompliance with conditions that she was required to complete, such as individual therapy and drug and alcohol rehabilitation. Doe attended most, if not all, of the visits with the children. In June 2005, Doe called BCCPS to say she had a drug problem and wanted to go to an inpatient drug rehabilitation facility. Her caseworker contacted a facility to ensure that a space was available for Doe, and then gave Doe the phone number and address for the facility. To the caseworker's knowledge, Doe never contacted the facility.

On one of Doe's visits with the children at BCCPS, the caseworker asked Doe about bandages on her arm. Doe responded that she had hurt herself by breaking some glass while moving. This event corresponded in time to the assault for which R.P. was convicted.

The children were not injured when BCCPS picked them up. They are currently placed together in a therapeutic foster home where they are...