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In re J.R.

Court of Appeals of Texas, Sixth District, Texarkana

July 19, 2017

IN THE INTEREST OF J.R., A CHILD

          Submitted: July 6, 2017

         On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 16-0935

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Ralph K. Burgess Justice.

         While Marshall police officers were investigating a complaint about an unidentified person with a firearm, J.R.'s mother, Lacey, [1] told Officer Courtney Wells that she had been sexually molesting the five children that resided in her home. Consequently, the Texas Department of Family and Protective Services (TDFPS) sought to terminate Lacey's parental rights to J.R. After a Harrison County jury found grounds for termination of Lacey's parental rights and that termination was in the best interest of J.R., the trial court entered its order terminating her parental rights. In this appeal, Lacey contends that she was denied her right to effective assistance of counsel. Lacey does not challenge the sufficiency of the evidence to support the jury's findings. Since we find that Lacey has not shown ineffective assistance of counsel, we will affirm the judgment of the trial court.

         I. Background

         At trial, the evidence showed that, while Marshall police officers were investigating a complaint about a person with a firearm, Lacey told Wells that she had been sexually molesting the five children that resided in her home. When asked what she meant, Lacey told Wells that she sucked the boys' penises and "fingered" the little girls. She also told Wells that she and a male, Jamal, had been planning for several weeks to murder her live-in boyfriend, Gabe, and the five children. Later that morning, Lacey was interviewed by Detective Rob Farnham of the Marshall Police Department. In her recorded statement, Lacey gave fuller details as to the extent of sexual abuse of her two sons, J.R. and B.P., and of Gabe's children, A.V., G.V., and Am.V. She further claimed that a past boyfriend and Jamal had also molested the children. In her statement, Lacey said that she smokes crack and that she had smoked crack with Jamal about fifteen hours before her interview. Farnham testified that in searching Lacey's apartment, the police found handwritten journals that corroborated her story. In addition, testimony showed that two of the children made outcry statements at the Children's Advocacy Center (the CAC).

         Since the grounds for termination were based primarily on Lacey's statements regarding her sexual abuse of the children, her trial counsel sought to challenge the reliability of her statements. In counsel's cross examination of Farnham and other officers, evidence was elicited that the police could not verify many of the details of Lacey's statement. For instance, the police could never verify the identity or existence of Jamal, and the police cleared all of the people that Lacey had said also molested the children. In addition, Lacey's trial counsel sought to show that she was the victim of emotional battering by Gabe and that she may have been lying to protect him. Her trial counsel was able to obtain agreement from several of the TDFPS's witnesses that battered women will lie for their batterer and that some of the actions exhibited by Gabe, such as never allowing Lacey to be alone, handcuffing her, jealousy, and yelling and screaming, can be signs of battering.

         Lacey's trial counsel also called witnesses in her defense. Gabe's sister, Guadalupe, testified that Gabe liked to brainwash and control women, that he was jealous, and that he would not let Lacey leave the house by herself. She also testified that Gabe had accused several people of molesting children and that she believed Gabe manufactured the story about Lacey molesting the children.

         From Lacey's sister, Amy, testimony was elicited that B.P., who had made an outcry statement at the CAC, told her that he did not see a black man or know that Lacey molested him, but that Gabe had told him that they had done this to him while he was asleep. She said that he denied experiencing any molestation or seeing Lacey without clothes on or having sex, but that Gabe told him that it happened. Amy also testified that she believed Gabe brainwashed Lacey while she was under the influence of drugs to say she abused the children and tried to kill them. In addition, Lacey's trial counsel sought to put on the testimony of B.P., who was six years old at the time of trial, but after examining him, the trial court found him incompetent to testify.

         II. Standard of Review

         When termination of parental rights is sought by TDFPS, the Texas Family Code requires the trial court to appoint counsel for an indigent parent who opposes the termination. Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2016); In re A.M.M., No. 06-05-00039-CV, 2006 WL 42229, at *6 (Tex. App.-Texarkana Jan. 10, 2006, no pet.) (mem. op.). This statutory right to counsel includes the right to effective counsel. In re K.S., 420 S.W.3d 852, 856 (Tex. App.- Texarkana 2014, no pet.); A.M.M., 2006 WL 42229, at *6 (citing In re M.S., 115 S.W.3d 534, 544 (Tex. 2003)). In parental rights termination cases, Texas courts apply the standard set forth in Strickland v. Washington to determine whether counsel is effective. K.S., 420 S.W.3d at 856 (citing In re J.O.A., 283 S.W.3d 336, 341-42 (Tex. 2009); In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). To prevail on an ineffective assistance of counsel claim, the appellant must make two showings:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by [Texas law]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so ...

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