In re J.M.A.E.W.

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

No. 06-14-00087-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: February 23, 2015

March 13, 2015

On Appeal from the 307th District Court Gregg County, Texas

Trial Court No. 2013-2394-DR

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

Memorandum Opinion by Chief Justice Morriss

Concurring Opinion by Justice Burgess

MEMORANDUM OPINION

After having his parental rights to his son, Josh, Jr.,¹ terminated, Josh appeals, not challenging the sufficiency of the evidence to establish termination,² but claiming only that his trial counsel was ineffective in failing to investigate Josh's claimed intellectual disability, in failing to plead and prove an intellectual-disability defense under the Americans with Disabilities Act³ (ADA), and in failing to plead and prove a defense of diminished capacity/intellectual disability (referred to hereafter as, simply, "intellectual disability"). Because we find that Josh has failed to show ineffective assistance of counsel, we affirm the judgment of the trial court.

While Josh does not challenge the sufficiency of the evidence, we review the factual background for the light it may shed on Josh's arguments on appeal. On November 30, 2013, Ashley Moore, an investigator for Child Protective Services,⁴ received a report of possible negligent supervision and physical abuse of Josh, Jr., by Josh. The report alleged physical abuse by Josh and that Josh, Jr., was dirty, smelled bad, and was exhibiting inappropriate sexual behavior. When Moore investigated, she found no marks or bruises on Josh, Jr. However, although Josh claimed he had bathed the child the day before, Josh, Jr., had a very strong body odor and was very dirty, having dirt caked on his feet and hands and under his fingernails. Eventhough he was almost three and one-half years old, Josh, Jr., was nonverbal and would communicate by screaming, making noises, and pointing his fingers. Although Josh claimed that this was because Josh, Jr., was deaf, it was learned later that Josh, Jr.'s, hearing was normal. Josh, Jr., was very aggressive and appeared to have no boundaries. Josh exhibited no control over him. Even though it was pretty dark outside, Josh, Jr., would continuously run around parked cars, behind their mobile home, and out into the highway; yet, Josh seemed to pay no attention. Rather, a police officer who accompanied Moore to Josh's residence redirected Josh, Jr., away from the highway. In addition, Josh, Jr., still wore diapers and had not been potty trained. Josh was unemployed and had no money. Father and son had been living place to place. Josh had only one change of clothes for Josh, Jr., and two pairs of pants for himself. He told Moore that he had cared for Josh, Jr., since the boy was six months old, when Josh, Jr.'s, mother, Laura, had left them and moved to West Virginia. He wanted Josh, Jr., to go into foster care because he was not able to provide stability for him at that time.

Josh, Jr., was removed from the home and placed in foster care. He was initially placed in a therapeutic foster home experienced in dealing with children with special needs. About three months later, the boy was placed in the home of Josh's third cousin, Carl, and Carl's wife, Patty, who had previously adopted Josh's daughter, Amy, after she had been removed from Josh's and Laura's care. Maribel Graham, a caseworker for the Department, testified that, after going into foster care, Josh, Jr., began receiving speech therapy and occupational therapy to address his delayed development. After being placed with Carl and Patty, Josh, Jr., learned to listen and follow directions, began talking and learning his letters, learned to use utensils, beganpotty training, and began appropriately giving and receiving affection. Graham and Patty stated that, in the future, he will continue to need speech and occupational therapy to help develop his motor and cognitive skills before he will be ready for school.

Though Josh, Jr., was making great strides while in foster care, Josh was neither advancing in his parenting skills nor demonstrating a strong interest in doing so. At the first hearing after Josh, Jr., was removed from his care, Josh acknowledged that his attorney had explained the temporary orders to him and that he understood what was required of him. In response to questioning by the trial court, Josh acknowledged understanding that he needed to take parenting classes, obtain a psychological evaluation, and begin counseling sessions. He stated that he understood both the importance of doing these things and that his failure to do them or to provide his child with a safe home environment could result in the termination of his parental rights. Graham testified that she met with Josh after that hearing, that she explained to him what he needed to do to complete his service plan, and that she believed he understood the plan and his obligations under it. At a hearing six weeks after removal, Graham affirmed that a psychological evaluation of Josh had been scheduled. At that same hearing, in response to questions from the trial court, Josh acknowledged that he understood the specifics of the plan, including taking parenting classes and providing a safe home for his child for at least six months. In the next four months, Josh began attending visitations with Josh, Jr., and completed parenting classes at the Department. In his initial four-hour visit with his son at a McDonalds, Josh had very little interaction with him. Graham testified that he did not talk to his son and would only tell him "no" or make noises like "eh" to him. She said he seemed more interested in playing onhis cell phone or listening to music. The only interaction would be when Josh showed his son a short video or would chase him when Josh, Jr., left the playground to go into the eating area. Although she would encourage him to talk and play with his son, Graham testified that Josh would do so for only five or ten minutes before returning his attention to his cell phone. Josh continued to have two-hour visitations with his son every other week, but, according to Graham, he still had very little interaction with his son, even after completing parenting classes and in spite of her efforts to guide him regarding appropriate parenting. The lack of interaction at the visitations continued through his last visitation in September. Josh also missed his original appointment for his psychological evaluation, as well as a second appointment. At a hearing six months after the case began, the trial court warned Josh that, if he did not obtain a psychological evaluation by the next hearing, he was in danger of losing visitation rights with his son. Josh finally had a psychological evaluation in August 2014 that showed him to be in the average intelligence range and that indicated that counseling was important for him. However, although the trial court had ordered him to begin counseling at the initial hearing and the Department had made arrangements for him to obtain counseling throughout the case, Josh never obtained counseling. Further, Josh lived at a homeless shelter from shortly after the case began through trial. Segunda Strange, a conservatorship supervisor for the Department, testified that Josh had not demonstrated that he is able to parent his son successfully, such as meeting the basic needs of food, shelter, and clothing. She said Josh had neither shown that he could obtain housing or maintain a home, nor made any other changes that indicated he would do anything differently in the future than he had in the past. Josh had not expressed any plans for Josh, Jr., and she did notthink his son would be safe with him or that he would be able to meet his son's educational and developmental needs. She agreed with Graham that Josh, Jr.'s, developmental delays and inappropriate behavior had been caused by Josh's failure to interact with, set appropriate examples for, and teach him.

Josh explained that his failure to complete his service plan resulted from his holding down two jobs. However, he had two jobs for only about three months. He testified that, if he were to get his son back, he would reunite with his wife, Laura, and they would live with her family. He explained that, when they were living with her, she took care of Josh, Jr., and made sure he went to the doctor and dentist. However, he also acknowledged that he and Laura had been separated for over two years and admitted that she had not attended any of his visitations with Josh, Jr. Further, Graham testified that, notwithstanding Josh's claims to the contrary, Laura stated that she would not be getting back together with him. Josh said he had learned how to become a better parent and that he would be able to give him the interaction and attention he needs. He also said that he had a plan to provide food, clothing, and shelter, but that the plan was dependent on reuniting with Laura.

After hearing the recommendation of Josh, Jr.'s, attorney ad litem, the trial court found that there was clear and convincing evidence to terminate Josh's parental rights under Section 161.001(1) (D), (E), and (O) of the Texas Family Code and that termination was in the best interest of the child and entered its order of termination October 12, 2014. Josh filed a motionfor new trial and an amended motion for new trial.⁵ A hearing on the amended motion for new trial was held December 2, 2014.

Although the amended motion for new trial was denied, the trial court allowed Josh to make an offer of proof. The only witness testifying at the hearing was Josh's mother. She testified that when Josh was born, he suffered from a deprivation of oxygen that resulted in a brain injury. She maintained that he has suffered from an intellectual disability all his life. According to her, Josh was always behind the other kids developmentally and was several levels behind in reading and math by the...