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P.W v. Department of Family and Protective Services

April 23, 2013

P.W.,
APPELLANT
v.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, APPELLEE



On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 1002874J

The opinion of the court was delivered by: Rebeca Huddle Justice

OPINION

The Department of Family and Protective Services sought termination of P.W.'s parental rights to her children, Z.N.W. and R.K.T. After a bench trial, the trial court concluded that the Department had proved by clear and convincing evidence that there were grounds for termination of P.W.'s parental rights and that termination was in the children's best interest. Accordingly, the trial court terminated P.W.'s parental rights. P.W. challenges the trial court's judgment terminating her parental rights on the basis that she received ineffective assistance of counsel. We affirm.

Background

In 2007, P.W. was arrested in a narcotics sting. P.W. brought Z.N.W., her four-month-old child, with her to the drug deal. P.W. was charged with a third- degree felony of possession of a controlled substance. She received deferred adjudication community supervision in the spring of 2009, a few months before R.K.T. was born.

The Department first opened a case shortly after P.W.'s 2007 arrest. In April 2010, the Department filed suit seeking termination of P.W.'s parental rights.*fn1 At the initial hearing, the trial court ordered P.W. to comply with the Department's service plan. The plan required P.W. to refrain from using illegal drugs, submit to drug screenings, and complete outpatient and inpatient drug rehabilitation. The trial court incorporated these same requirements into a June 2010 order. In a subsequent meeting with her Department caseworker, P.W. admitted that she had used marijuana and Xanax. The caseworker ordered a drug screening, and P.W. tested positive for marijuana, cocaine, and benzodiazepine. A hair follicle drug screening a few months later yielded a positive result for the presence of cocaine. Concerning the other requirements of the service plan and the court order, P.W. completed the outpatient rehab, but not the inpatient.

At trial, Alvincher Willis, who was the case worker assigned to P.W.'s case, testified that, although the Department attempted to work with P.W., P.W. did not work with the Department. Willis did, however, acknowledge that P.W. had made some progress on her service plan before being imprisoned in January. An affidavit from one of P.W.'s previous caseworkers, which was made part of the trial court's record, corroborates Willis's statement that P.W. did not work with the Department. In the affidavit, the caseworker noted the difficulty caseworkers experienced trying to contact P.W. Despite the Department's attempts to contact her through phone calls and messages, P.W. often failed to respond. Once, when they were on the way to P.W.'s apartment, the caseworker and a uniformed law enforcement officer passed P.W. and R.K.T. in the parking lot, but the caseworker did not recognize them. When she realized the caseworker and officer were heading to her apartment, P.W. attempted to load R.K.T into a car and flee. The officer had to stop P.W. and escort her to the Department in order for the caseworker to speak with her about the case.

The children were initially placed with P.W.'s grandmother, but have been in a foster home since October 2010. The foster mother testified that the boys were doing "perfect" in the foster home. The foster family indicated a desire to adopt the children, should P.W.'s parental rights be terminated.

P.W. failed to report to her community supervision officer during her deferred adjudication community supervision. As a result, in January 2011, the trial court adjudicated P.W. guilty on the possession charge and sentenced her to four years' imprisonment.

The trial court held a bench trial on June 14, 2011. P.W. was represented by appointed counsel. Counsel cross-examined Willis, the Department's primary witness. Counsel objected to some of the questions posed to Willis by the Department and by the attorney ad litem for the children. Counsel also called and conducted direct examination of P.W. and presented argument at the close of evidence.

The trial court found the following grounds for termination:

[P.W.] knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.00l(l)(D), Texas Family Code;

[P.W.] engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to § 161.00l(l)(E), Texas Family Code; [and]

[P.W.] knowingly engaged in criminal conduct that has resulted in [her] conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the ...


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