IN THE INTEREST OF CHILD v. <<

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Court of Appeals of Texas, Dallas.

IN THE INTEREST OF W.J.J., A CHILD

No. 05-17-01247-CV

Decided: March 23, 2018

Before Justices Francis, Myers, and Whitehill

MEMORANDUM OPINION

The trial court terminated the parent–child relationship between Mother and her three-year-old child W.J.J. after a jury trial. Mother appeals, her sole issue being ineffective assistance of counsel. Because the record does not show any prejudice from counsel's alleged errors, we affirm.

I. BACKGROUND

W.J.J. was born in April 2014.

In July 2016, the Texas Department of Family and Protective Services sued Mother and Father to terminate their parent–child relationships with W.J.J.

The trial court appointed counsel to represent Mother.

In June 2017, the trial court signed an order retaining the case on its docket until January 2018, in keeping with Family Code § 263.401.

In October 2017, the case was tried before a jury. The jury found by clear and convincing evidence that W.J.J.'s best interest would be served by terminating his relationship with both parents. The jury also found by clear and convincing evidence four specific grounds for terminating Mother's and Father's relationships with W.J.J., specifically the grounds set forth in Family Code § 161.001(b)(1)(D), (E), (O), and (P).

The trial court signed a judgment terminating both parents' relationships with W.J.J. and appointing the Department as W.J.J.'s sole permanent managing conservator.

Mother appealed, and the trial court appointed new counsel to represent her on appeal.

II. ANALYSIS

Mother's sole issue argues that she received ineffective assistance of counsel during the proceedings below.

A. Applicable Law

An indigent parent has a statutory right to counsel in a parental rights termination case. See In re A.F., No. 05-17-00392-CV, 2017 WL 4116945, at *3 (Tex. App.—Dallas Sept. 18, 2017, no pet.) (mem. op.) (discussing statutes). That right includes the right to effective counsel. Id.

Ineffective assistance of counsel can be raised for the first time on appeal in a termination case. Id. at *5.

A party claiming ineffective assistance of counsel must show that (i) counsel made such serious errors that he or she was not functioning as “counsel” guaranteed by the Sixth Amendment and (ii) the errors prejudiced the party, meaning they were so serious as to deprive the party of a fair trial, a trial whose result is reliable. In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (per curiam).

We must give great deference to counsel's performance, and we indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.

The prejudice prong requires a showing that there is a reasonable probability that the result would have been different but for counsel's unprofessional errors. In re A.F., 2017 WL 4116945, at *3.

B. Application of the Law to the Facts

Mother's complaints about her lawyer center on the admission of evidence that she used drugs. She argues that her lawyer was ineffective because (i) he didn't conduct a proper pretrial investigation to learn the details about her positive drug tests, which would have helped him cross-examine the caseworker witness about those tests, (ii) he didn't object to drug-test results' being admitted through non-expert witnesses, and (iii) he didn't object to an investigator's testimony about the drug testing process for meconium (an infant's first feces after birth).

Mother did not file a new trial motion or otherwise develop a record that might show whether her trial counsel had strategic reasons for his decisions. There is also no record to support some of her factual claims, such as the assertion that her counsel did not conduct a proper pretrial investigation. But, because we can resolve this case based on the prejudice element, we will assume without deciding that trial counsel was deficient as Mother argues.

1. The Alleged Errors

First, we summarize the errors that Mother argues her trial counsel committed. Most of those alleged errors concerned the admission of evidence that she tested positive for drugs on four different occasions:

• She tested positive for cocaine in an oral swab test on July 22, 2016.

• She tested positive for cocaine and marijuana in a hair strand test performed in September 2016.

• She tested positive for cocaine in an oral swab test on November 9, 2016.

• She tested positive for cocaine in a hair strand test performed in January 2017.

Mother argues that counsel erred by failing to conduct an adequate pretrial investigation and that he could have impeached this evidence on cross-examination if he had conducted an adequate investigation. She also argues that counsel erred by failing to object to this evidence because the Department did not support the drug test results with expert testimony. So, we will assume without deciding that counsel so erred and could have impeached or excluded these specific pieces of evidence.

Mother also argues that counsel erred by failing to object to testimony by a Department investigator about drug tests performed on W.J.J.'s meconium. Specifically, the investigator explained that a meconium test will show whether an infant was exposed to drugs during pregnancy after about the end of the first trimester. He then testified that W.J.J.'s meconium test was positive for marijuana. Mother contends that the testimony would have been excluded on objection because the investigator was not an expert. Again we will assume without deciding that counsel erred by failing to object and could have excluded this evidence.

2. Prejudice

Even assuming counsel was deficient as appellant argues, we conclude that there is no reasonable probability that a different course of conduct by counsel would have changed the outcome because there was substantial other record evidence of Mother's drug use. Specifically, the Department introduced other evidence proving Mother's significant drug use such as the following:

• A CPS investigator who was assigned to W.J.J.'s case right after he was born in April 2014 testified that Mother admitted using cocaine and marijuana during her pregnancy.

• A CPS caseworker who worked on W.J.J.'s case when he was a few months old testified that Mother had a substance abuse problem.

• A psychologist who evaluated Mother testified that she reported a history of using marijuana and cocaine and admitted using drugs as recently as September 2016. Mother also indicated that she had used methamphetamines.

• A counselor who saw Mother and Father from November 2016 through May 2017 testified that the parents reported continuing issues with drug and alcohol use.

• Mother refused to submit to a hair strand drug test in December 2016. She also violated court orders to submit to hair strand drug tests in May and September 2017.

• A CPS conservatorship worker testified that (i) in March 2017, Mother admitted to recent cocaine use, (ii) in April 2017, Mother admitted that she had been using marijuana, and (iii) after June 2017, Mother refused to submit to drug tests.

• A CPS employee who supervised Mother's visits with W.J.J. in 2016 and 2017 testified that Mother told him that she met Father at a “dope house” and that she went to that particular place to “do drugs.”

• Mother herself testified that she (i) used marijuana and cocaine once while she was pregnant with W.J.J., (ii) used “weed” when W.J.J. was removed from her care in July 2016, and (iii) used crack throughout September 2017.

Given all this evidence of Mother's drug use—including her admission that she used crack the whole month of September 2017, shortly before trial began—the evidence that Mother complains about was merely cumulative. Impeachment or exclusion of the drug test evidence that Mother complains about would not, in reasonable probability, have changed the trial's outcome. See Marlow v. State, 886 S.W.2d 314, 318 (Tex. App.—Houston [1st Dist.] 1994, pet. ref'd) (no prejudice from failure to object to cumulative evidence).

We overrule Mother's only issue on appeal.

III. CONCLUSION

The trial court's judgment is affirmed.

BILL WHITEHILL JUSTICE

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