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In re A.W.

Court of Appeals of Texas, First District

February 23, 2017

IN THE INTEREST OF A.W. AND B.M.W., CHILDREN

         On Appeal from the 314th District Court Harris County, Texas, Trial Court Case No. 2014-04355J

          Panel consists of Chief Justice Radack and Justices Bland and Jennings.

          MEMORANDUM OPINION

          JANE BLAND JUSTICE.

         In this appeal, we determine whether legally and factually sufficient evidence supports an order terminating J.D.W.'s parental rights to his two children. We affirm.

         Background

         The mother and father first came to the Department of Family Protective Services' attention in early 2013, when A.W. was a few months old and the family was living at a hotel. One day, the mother and father were using marijuana and began fighting. The paternal grandmother, who lived nearby, testified that police came to her home late that night looking for the father. She told police he was not there and that she had not had any contact from him. The paternal grandmother then checked her cell phone and found numerous texts from the father and a picture of his bruised and swollen face. After reviewing the texts, the police left to continue their search for the father. They found him in the bed of a truck parked near a motel. He was holding A.W., who was very dirty. He explained that he came to the motel to stay with a friend who lived there, but when he found his friend was not at home, he decided to wait for him in his truck.

         This incident resulted in a referral to the Department for neglectful supervision. The Department brought suit against the parents and took A.W. into custody. The parents participated in the Family-Based Safety Services (FBSS) program, which included psychosocial assessments, domestic violence and anger management courses, and parenting classes.

         A second child, B.M.W., was born during this period.

         The parents completed the safety services program in July 2014, when B.M.W. was nearly three months old. The Department dismissed the suit and returned custody of A.W. to the parents.

         Only a week later, in early August 2014, the parents had gone out for dinner and drinks to celebrate the mother's promotion at work. They picked up A.W. and B.M.W. from the grandmother, who cared for the children while the parents worked, and returned home. The mother and the grandmother had a very contentious relationship. Shortly after arriving home, the mother told the father that she had enrolled the children in day care and that they would not be staying with the grandmother during the day anymore. This sparked a heated argument. Shortly after the argument began, the father called the grandmother to have her pick up A.W. and B.M.W. so that they would not have to be around while the parents argued.

         When the grandmother arrived, she saw broken glass in the entryway of the apartment. She picked up A.W. and the father got B.M.W., and they brought the children out to the grandmother's sport utility vehicle. They were strapping the children into their carseats when the mother came into the parking lot and demanded the baby's return. According to the grandmother, the mother appeared intoxicated and was yelling obscenities. The mother went over to the SUV, shoved the grandmother out of the way, and pulled out B.M.W.'s carseat, while B.M.W was not buckled into it. B.M.W. ended up on the pavement outside of the car seat. The grandmother did not see whether B.M.W. fell or simply rolled out of the carseat, and the mother testified that she caught B.M.W. before she landed on the pavement.

         The mother took B.M.W. back into the apartment, and the father followed her while shouting at the grandmother to call 9-1-1. The grandmother called 9-1-1 and went into the apartment to check on B.M.W., but the parents had locked the bedroom door and would not let her in. The grandmother went back outside to wait for the emergency responders. When the responders arrived, they also attempted to enter the bedroom but were rebuffed. Law enforcement was called in. They retrieved B.M.W., who was examined and found unharmed.

         To explain the broken glass in the entry way, the father told the investigating officer that the mother broke a glass vase and cut herself. At trial, however, he explained that he inadvertently swung his arm and knocked a glass off the counter earlier that evening.

         The Department initially placed the children with the paternal grandmother. They remained in the grandmother's home for several months, until shortly before trial, when the grandmother asked for the children to be placed in a foster home. She explained that she was being harassed by the mother, who kept sending her threatening text messages, and she also was concerned that she was too old to be able to care for them until they were grown; she did not want them to have to be uprooted again. The Department placed the children with foster parents who planned to adopt the children.

         Meanwhile, in late October 2014, the trial court ordered the parents to comply with the family service plan, which required, among other things, that the father pay child support, remain "sober/drug free, " and submit to random drug testing.

         The trial court presided over a bench trial in the proceeding on October 29, 2015 and signed a decree terminating the father's parental rights on December 1, 2015 based on subsections 161.001(1)(E) and 161.001(1)(O) of the Texas Family Code.

         The father and mother both timely appealed from the decree. This court reviewed the mother's appellate complaints in a prior decision, concluding that the evidence supported the trial court's judgment terminating her parental rights. In re A.W., No. 01-15-01030-CV, 2016 WL 3022824 (Tex. App.-Houston [1st Dist] May 26, 2016, no pet.). The appellate attorney first appointed to the father moved to withdraw from representation and filed a brief pursuant to Anders v. California,386 U.S. 738, 87 S.Ct. 1396 (1967), asserting that the appeal lacked merit and the record presented no arguable grounds for reversal of the judgment. We disagreed with that assessment, so we severed the father's appeal, granted the motion to withdraw, and remanded to the trial court for the appointment of new ...


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