In re R.W.
| Decision Date | 18 October 2022 |
| Docket Number | 02-22-00143-CV |
| Parties | In the Interest of R.W. and G.W., Children |
| Court | Court of Appeals of Texas |
Before Birdwell, Bassel, and Womack, JJ.
Appellant L.A. (Mother) and Appellant D.W. (Father) appeal the trial court's order terminating their respective parental rights to R.W. and G.W. (the children). In seven issues Mother contends that the evidence is legally and factually insufficient[1] to support the termination of her parental rights to the children under Family Code Subsections 161.001(b)(1)(D), (E), (N), (O), and (P), that she was denied her right to a jury trial due to ineffective assistance of counsel and trial-court error, and that the trial court erred in overruling her motion for extension of the dismissal date. Father similarly contends that the evidence is legally and factually insufficient to support the termination of his parental rights to R.W. under Family Code Subsections 161.001(b)(1)(D), (E), (N), (O), and (P) and that he received ineffective assistance of counsel because his trial counsel failed to advise Father of his right to a jury trial and to request a jury trial on Father's behalf. Father also argues that the trial court erred by terminating Father's parental rights to G.W. under Section 161.002 of the Family Code and by admitting evidence of Father's drug test results through a witness that was not properly qualified.
As to Mother's and Father's respective issues related to termination under Family Code Section 161.001(b), we will hold that the evidence was legally and factually sufficient to support the termination of Mother's parental rights to the children and of Father's parental rights to R.W. under Subsections 161.001(b)(1)(D) and (E). We will sustain Father's issue related to the termination of his parental rights to G.W. and hold that the trial court erred by terminating Father's parental rights under Family Code Section 161.002 and that the error was harmful, but we will affirm the trial court's conservatorship appointment. With respect to Mother's complaint of ineffective assistance of counsel we will hold that Mother failed to prove that she was prejudiced by her trial counsel's representation. With respect to Father's complaint of ineffective assistance of counsel, we will hold that Father failed to prove that his trial counsel's representation was deficient. We will thus overrule Mother's and Father's respective ineffective assistance of counsel claims. On Father's issue related to the admission of evidence of Father's drug test results, we will hold that the evidence was cumulative and was therefore harmless. On Mother's issue related to her motion for extension, we will hold that the trial court did not abuse its discretion by denying Mother's motion. Accordingly, we affirm in part and reverse and remand in part for a new trial.
The Texas Department of Family and Protective Services (TDFPS) began investigating Mother and Father after receiving several reports involving domestic violence and drug abuse in the home and physical abuse. In May 2021 alone, Child Protective Services (CPS) received several reports involving Mother and Father. The children were ultimately removed in May 2021; R.W. was approximately twenty-one months old and G.W. was less than one month old. After a bench trial, the trial court signed its order terminating Mother's and Father's parental rights to the children and appointing TDFPS permanent managing conservator of the children.
On May 9, 2021, CPS immediately responded to a new report because G.W. had sustained four rib fractures and was taken to the hospital in an ambulance. When CPS investigator, Latasha Koku, arrived at the hospital, the only family member there was paternal grandmother-Mother and Father were not present. Koku tried to call both parents but was able to reach only maternal grandmother, who provided excuses for why Mother could not be at the hospital with the injured child.[2] Regarding how the child's ribs had been fractured, paternal grandmother indicated to Koku that Mother had thrown G.W. in his car seat. After Koku spoke with G.W.'s doctors at the hospital, she became concerned that G.W. had previously sustained similar injuries. Amber Maloney, a TDFPS investigation supervisor on the children's case, also expressed concerns related to the cause of G.W.'s rib fractures, stating that they likely would not have happened from being thrown in a car seat or even during childbirth.
Specifically, she was concerned that G.W.'s injuries were not accidental but were trauma induced.
At trial, Father testified that the children had been in paternal grandmother's care[3] and that he had not seen the children in the two days before G.W. went to the hospital. According to Father, G.W.'s ribs had been fractured while he was in the care of paternal grandmother. Father claimed that paternal grandmother had instructed Father to blame Mother for G.W.'s injuries.
Mother's testimony does not align with Father's version of events. Mother testified that on May 9, 2021-the day G.W. was taken to the hospital-Mother and Father were at paternal grandmother's house with the children and had gotten into an argument with paternal grandmother. Sometime around noon, they left the children with paternal grandmother, and Mother claimed that both children were in good condition when Mother and Father left paternal grandmother's house. Mother testified that when she fed G.W. and changed his diaper earlier that day, he did not show any discomfort or pain and did not have any bruises or other injuries. But later that day, G.W. was in the hospital with rib fractures that were already in the process of healing.
After investigating the incident, TDFPS determined that the children needed to be brought into TDFPS care. Maloney testified that regardless of who had inflicted G.W.'s injuries, TDFPS would have been concerned about Mother's and Father's failure to protect the children. Moreover, even discounting G.W.'s fractured ribs, TDFPS still would have sought removal.
TDFPS initially became involved with Mother and Father because the children had been exposed to domestic violence in the home. Less than a year before trial began, Mother claimed that Father had tried to kill her. Mother testified that her attempted murder had been the last incident of domestic violence, though she later claimed that she was persuaded to make those allegations. Mother acknowledged that she had "repeatedly" reported to law enforcement that Father had been physically abusive and that there was domestic violence between her and Father. But in the same line of questioning, Mother denied any domestic violence.
Notwithstanding Mother's self-contradicting testimony, Father's criminal history shows a propensity for domestic violence, including several charges for familyviolence assault and aggravated assault. When TDFPS received their initial intake involving the children, Father was being investigated for a family-violence assault against Mother. He was eventually incarcerated in February 2022 for a domesticviolence offense against Mother, which Father stated had been "bumped up" to a higher charge due to his criminal history. When questioned about this domestic- violence charge, Father testified that the allegations were false and that he was being targeting by his and Mother's families. Specifically, Father testified that Mother had been manipulated into reporting the abuse.
In addition to Father's criminal history, Mother's and Father's prior CPS histories also reflected a trend of domestic violence. Specifically, Mother had reported that she did not feel safe with Father in the home, and she had accused Father of abuse. Despite Mother's domestic-violence denials at trial, Maloney testified that even when a domestic-violence case is ruled out by CPS, TDFPS must take such allegations into consideration when meeting with families.
Both Mother and Father had ongoing problems with drug use. Mother submitted to a drug test in May 2021, which resulted positive for methamphetamines and amphetamines. The results concerned TDFPS because Mother had been breastfeeding G.W. at the time. Mother submitted to another drug test in February 2022, which also returned positive for methamphetamines and amphetamines. Mother testified that her last drug use had been in December 2021, though she did not know how much she had used then or who had given it to her. She stated she did not have an excuse for why she used. The day before trial began, Mother failed to submit to a drug test that TDFPS had requested from her. Mother conceded that she had used drugs during the termination case.
TDFPS was concerned about the effects of Mother's drug use on her ability to parent the children. Specifically, a parent that abuses illegal drugs may be extremely violent or may "pass out for hours on end," leaving children to care for themselves, which is especially concerning when the children are as young as R.W. and G.W. were at the time of trial. Mother agreed with TDFPS's contentions that her drug use was unsafe for the children.
In May 2021, Father submitted to a drug test that came back positive for methamphetamines, amphetamines, and marijuana. Father reported that his last drug use had been in early 2021, which he claimed he had been forced to use by several criminal gangs that had been harassing and threatening to kill him and his family. When asked about his use of methamphetamines Father...
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