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In re R.E.T.R

Court of Appeals of Texas, Fourteenth District

December 10, 2013

IN THE INTEREST OF R.E.T.R AND D.D.R, JR., CHILDREN

On Appeal from the 314th District Court Harris County, Texas Trial Court Cause No. 2012-04492J

Panel consists of Chief Justice Frost and Justices Boyce and Jamison.

MEMORANDUM OPINION

Martha Hill Jamison Justice

Appellant, C.J., appeals from the trial court's judgment terminating her parental rights to her two children. In two issues, appellant challenges the sufficiency of the evidence to support the trial court's predicate termination findings, and she asserts that she received ineffective assistance of counsel. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant's daughter, R.E.T.R., was born January 9, 2011. D.D.R., Jr., appellant's son, was born July 8, 2012. On July 9, 2012, the Texas Department of Family and Protective Services received two referrals concerning the children. The first referral alleged appellant physically abused D.D.R., Jr. because appellant tested positive for cocaine and marijuana when he was born. See Tex. Fam. Code § 261.001(1)(I) (defining "abuse" as including a parent's current use of a controlled substance). In addition, the referral alleged the baby's urine tested positive for drugs at birth. The second referral alleged neglectful supervision of the older child, R.E.T.R.

On July 23, 2012, the Department filed a petition for protection of the children, and appellant and the children's alleged father, D.D.R., were personally served.[1] The trial court entered emergency temporary orders and scheduled an adversary hearing. Appellant and the alleged father submitted to drug testing, and both tested positive for cocaine. After the adversary hearing, the court appointed the Department temporary managing conservator of the children, signed further temporary orders, and made findings, including a finding of:

sufficient evidence to satisfy a person of ordinary prudence and caution that: (1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and makes efforts to eliminate or prevent the children's removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the children's removal and enable the children to return home, there is a substantial risk of a continuing danger if the children are returned home.

On September 25, 2012, the trial court signed a Status Hearing Order, adopting and approving the statutorily required family service plan for appellant to regain custody of the children. See Tex. Fam. Code §§ 263.101–.106. The court's order expressly advised appellant that her progress under the service plan would be reviewed at all subsequent hearings. The order also included the following express admonition:

THIS COURT ADVISES THAT THE FAMILY SERVICE PLANS, APPROVED AND INCORPORATED BY THIS ORDER AS SET FORTH ABOVE, SPECIFICALLY ESTABLISH THE ACTIONS NECESSARY FOR THE PARENTS TO OBTAIN RETURN OF THE CHILDREN WHO ARE IN THE TEMPORARY MANAGING CONSERVATORSHIP OF THE DEPARTMENT, AND THIS COURT FURTHER ADVISES THE PARENTS THAT FAILURE TO COMPLY MAY RESULT IN THE RESTRICTION OR TERMINATION OF HIS OR HER PARENTAL RIGHTS.

The court also signed a separate order that the parents were required to "[r]emain drug free, " "[r]efrain from engaging in criminal activity, " maintain stable housing and stable employment, and "[c]omplete all services" in the court-approved family service plan.

After a bench trial almost a year after the proceedings were initiated, the court found by clear and convincing evidence that termination of appellant's parental rights is in the best interest of both children. The court also found clear and convincing evidence that appellant engaged in the following conduct as grounds for termination, as set out in its decree of termination signed July 16, 2013:

1. 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 § 161.001(1)(D), Texas Family Code;
2.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 § 161.001(1)(E), Texas Family Code;
3. constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and: (1) the department or authorized agency has made reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or maintained significant contact with the children; and (3) the mother has demonstrated an inability to provide the children with a safe environment, pursuant to § 161.001(1)(N), Texas Family Code;
4. failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(1)(O), Texas Family Code;
5.used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the children, and: (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance, pursuant to § 161.001(1)(P), Texas Family Code; and
6.been the cause of the children being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by § 261.001(7), Texas Family Code pursuant to § 161.001(1)(R), Texas Family Code.

See Tex. Fam. Code § 161.001(1)(D), (E), (N), (O), (P), & (R).

Appellant filed a timely motion for new trial, which was overruled by operation of law, and a timely notice of appeal. Appellant raises two issues in this appeal, challenging the sufficiency of the evidence and the effectiveness of her counsel's representation. We first address appellant's challenge to ...


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