In re H.L.W.
| Decision Date | 08 November 2022 |
| Docket Number | 01-21-00654-CV |
| Parties | IN THE INTEREST OF H.L.W. AND S.K.W., Children |
| Court | Texas Court of Appeals |
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 91619-F
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
In this accelerated appeal, Father challenges the trial court's order, entered after a bench trial, terminating his parental rights to his minor children, H.L.W. and S.K.W. In his first seven issues, Father contends that the evidence is legally and factually insufficient to support the trial court's predicate findings for termination under Family Code Section 161.001(b)(1) and that termination of his parental rights are in his children's best interest. In his eighth issue Father contends that the trial court abused its discretion by denying him his right to counsel. We affirm.
The two children in this case, H.L.W. and S.K.W., were 13 and 12 years old, respectively, at the time of trial and the two children of Father and Mother. The children resided with Mother and her boyfriend, E.Z., before the Texas Department of Family and Protective Services (DFPS or the Department) removed them in May 2017. DFPS removed the children from Mother's home after receiving and investigating a report of neglectful supervision and sexual abuse. The affidavit attached to the petition indicated that there were concerns that H.L.W. and S.K.W. stated that E.Z. had sexually abused them and that Mother knew of the sexual abuse but did not want to contact police.[1] The affidavit also detailed Father's prior Child Protective Services (CPS) history from Texas and New Jersey, which included prior allegations of domestic violence between Father and Mother, and sexual abuse of the children by Father when the family lived in New Jersey. Although the allegations of sexual abuse were investigated and determined to be not "founded," Father's visitations with the children were suspended by a court order and a CPS case in New Jersey remained open. The family then moved back to Texas from New Jersey in 2016.Because DFPS could not locate a suitable placement for the children, DFPS sought temporary managing conservatorship of the children.
The trial court entered a temporary order, dated May 3, 2017 which named DFPS as the temporary conservator of H.L.W. and S.K.W., following a hearing conducted pursuant to Texas Family Code Section 262.201. A week later, the trial court appointed counsel, Papa Dieye, to represent Father in these proceedings. On June 21, 2017, DFPS filed a status report with the trial court, recommending that Father "participate and successfully complete the family plan of service." Service plan goals for father included that he: (1) "demonstrate the willingness and ability to protect the child from harm," (2) "demonstrate an ability to provide basic necessities such as food, clothing shelter, medical care, and supervision for the child," (3) "demonstrate the ability to protect child[ren] from future abuse or neglect, and will show concern for future safety of the child[ren]," and (4) "demonstrate an ability to change the pattern of behaving that resulted in abuse/neglect."
A Status Hearing was held on June 22, 2017, and an order entered on June 23, 2017.The trial court found that "the goal of the service plan is to return the children to the parents, and the plans adequately ensure that reasonable efforts are being made to enable the parents to provide a safe environment for the children." The order made the family service plan for Father an order of the court.
On July 24, 2017, Dieye, Father's first court-appointed counsel, filed a motion to withdraw, citing an inability Dieye explained at a hearing on his motion to withdraw that Father had "fired" him from the case and that he no longer wanted Dieye to represent him. The trial court granted the motion to withdraw and appointed Cortez Pouncil as Father's counsel.
On February 22, 2018, the trial court conducted a subsequent permanency hearing. At the hearing, Samantha Fernandez, CPS caseworker assigned to Mother, testified that Father had not started any services required under his family service plan. The trial court entered a subsequent permanency hearing order before final order on February 26, 2018, and found that Father had not demonstrated "adequate and appropriate compliance with the service plan." The trial court ordered that Father was to have no visitation with the children.
On July 26, 2018, the trial court conducted a permanency hearing and special review, at which Stephanie Sammons, a CPS supervisor, testified that Father was not engaged in his family plan. She testified that when she initially met with Father regarding setting up services, he "stormed out of the meeting" and said he was "not going to participate in services." Sammons testified that CPS's later attempts to contact Father had not been successful and that they did not know if he was "clean and sober" or if "he has a safe and stable home." Sammons also testified that CPS's concerns about placing the children with Father stemmed from the no-contact order from New Jersey.
On October 15, 2018, at a hearing on the merits, the trial court heard testimony related to an agreement reached between DFPS and Father. Father testified that he agreed that there was clear and convincing evidence that he had engaged in conduct supporting termination under subsection (O), but that there was not clear and convincing evidence that termination was in the best interest of the children. Father also testified that they agreed he would not be named as possessory conservator, but that he would have the right to be informed of medical and educational information, that he would be entitled to at least two monthly telephone calls with the children, as well as the potential for in-person visitation, if agreed, and he would continue engaging in the services required by the family service plan. At the conclusion of the hearing, the trial court permitted Father to have three CPS-supervised visits with the children at the courthouse. A final order was signed by the trial court reflecting these findings.
On November 9, 2018, DFPS filed an emergency application for writ of attachment stating that Mother and Father were in violation of the trial court's October 15th judgment because they took possession of the children and hid them from DFPS. In the affidavit attached to the emergency application, DFPS caseworker, Chevelle Bosier, stated that she received a phone call from the children's foster parent who stated that the children did not return home after school, but instead went to a friend's house. When Bosier and the children's attorney ad litem arrived at the friend's house, the friend's mother told them that H.L.W. said her mother was coming to pick up the children, and that the children left in a gray-colored SUV. Ultimately, Bosier was informed that Father had possession of the children, and he told Bosier that Mother had kidnapped their children and brought them to him in Surfside. Father refused to return the children to CPS because the children indicated they were unhappy in the foster home.
The parties entered into a Rule 11 Agreement on November 19, 2018, in which they agreed to temporary orders that neither Mother nor Father would have any contact with the children until further order from the court. The trial court entered a temporary modification order on December 2, 2018, in light of the parties' agreement.
On January 10, 2019, DFPS submitted a Permanency Report to the trial court, which included updates on the progress of the case and a recommendation that DFPS continue as permanent managing conservator and that H.L.W.'s and S.K.W.'s placements in foster care be continued. The trial court entered a placement review order on January 14, 2019, approving of the children's placement in foster care.
On May 16, 2019, Father's second court-appointed counsel, Cortez Pouncil, filed a motion for withdrawal of counsel, stating that Father no longer wished to retain Pouncil as his counsel and he wished to represent himself. The motion stated that good cause existed for Pouncil's withdrawal because he was unable to "effectively communicate with [Father] in a manner consistent with good attorney-client relations."
The trial court held a hearing on Pouncil's motion to withdraw on June 6, 2019. Pouncil stated at the hearing that he was not able to effectively represent Father, and that Father agreed to the withdrawal and requested that the trial court appoint him another attorney. The trial court granted the motion to withdraw but did not appoint another attorney as there was not a pending case at that time.
On June 19, 2019, DFPS submitted a Permanency Report to the trial court, which included updates on the progress of the case and included a note that, although the caseworker had set up a drug test for Father on three separate occasions, he only appeared for one and left the drug-testing site before submitting to the test.
On September 29, 2019, DFPS filed an original petition to modify the trial court's November 19, 2018 prior final order. With respect to Father, DFPS sought to terminate his parental rights under subsections (D), (E), (N), and (O) of Section 161.001(b)(1) of the Texas Family Code.
On December 4, 2019, DFPS submitted another Permanency Report to the trial court, which included updates on the progress of the case as well as a recommendation that DFPS continue as permanent managing conservator and that H.L.W.'s and S.K.W.'s...
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