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

Opinion

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

33 (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. 34 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

35 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)

37 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