Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Mother had two children when she was young; she gave both to her grandmother to raise and has not had regular contact with them. A few years later, mother met and married father, who, like friends mother began traveling with, was a long-haul truck driver. Mother gave birth to JW in 1993, and WDW was born in 1999. Shortly thereafter, JW was removed from the parents’ home in Oklahoma on allegations that though father’s brother, SW, was suspected of sexually abusing JW, mother and father still allowed SW to be alone with JW. Mother and father were also suspected of physical abuse of JW. Mother made minimal attempts, and father made none, to reunite with JW, and in 2004, an Oklahoma court terminated the parents’ right to JW. By this time, the couple and WDW had moved back to Texas. During their 13 years of marriage, father frequently assaulted mother in front of WDW. Father was arrested three times and served probation for family violence. He has used marijuana and methamphetamine since he was 18. Mother was convicted of food-stamp fraud and admitted to methamphetamine addiction. Mother and father frequently took WDW with them on long-haul trips, strapping his car seat with bungee cords to the rig’s back seat. Both Mother and father were using methamphetamine intravenously during this time, including while driving with WDW. When WDW was not with them, the parents left him with another of father’s brothers � also a drug user � and sometimes with SW, the abusive uncle. Social services visited the couple’s home three times. Two of the times were related to the Oklahoma proceedings regarding JW. During one visit, the caseworker noticed that WDW was left alone in a bare crib for hours; during another visit, WDW was in the crib with a “onesy” on, but no diaper on; his head and body were smeared with feces. The caseworker did not believe mother’s explanation that WDW had somehow removed his diaper from under the onesy. The Texas Department of Family and Protective Services then became involved in the possible removal of WDW from the parents’ home. The department interviewed a neighbor, TK, whose 15-year-old daughter had been entrusted by the parents to take care of WDW for a few days. TK was a drug user, had been indicted for abandonment and endangerment of children and took several mood stabilizers to treat the post-traumatic stress disorder she developed after her involvement in a car accident that killed her son. Mother left WDW with enough clothes for two or three days, but did not leave an emergency number or say where she was going. She told TK not to be surprised if WDW tried to stick a corn dog or hot dog “up his bo-bo,” and TK confirmed later that WDW acted out sexually while he stayed with her. WDW allegedly told TK that the uncle had sexually abused him, at which point TK called the police. WDW told the police that his mother, father and the uncle had sexually abused him. DFPS removed WDW from the home before mother and father returned. Once returned from their trip, mother and father did not visit WDW. Both were given a service plan. Father made no attempt to comply with his, saying he was always on the road, though he was unemployed starting in October 2003. Mother did not comply with the terms of her service plan, either, as she was incarcerated for violating the terms of probation while the proceedings were under way. Prior to the child’s removal, the parents allowed WDW to be around the uncle. At the trial to terminate mother’s and father’s parental rights, different foster parents for WDW testified about WDW’s tendency to act out sexually. Tests showed he was developmentally delayed and was overly friendly with strangers. The state’s expert testified that WDW suffered from post-traumatic stress disorder, and showed signs of reactive attachment disorder. After failed placements with three foster families, WDW had to be admitted to a psychiatric ward for three weeks and was expected to undergo treatment with therapy and medication. The expert for mother and father testified that the psychological bond between WDW and his parents was strong enough that it should not be broken. This expert admitted, however, that some of what mother and father had done was a “big problem.” Mother testified, saying she had no plans for taking care of WDW in the future, and offering contradictory responses about whether she was going to stay married to father, citing her fear of leaving him. Father said he was sorry for abusing mother, but he denied that the uncle could have been involved in any abuse. He did not offer any plan for supporting the family or getting any stable employment. The Texas social worker from JW’s case said that at the time, father said if he caught JW masturbating in public, he was told to go to his room to do it. Mother said if she caught JW sticking objects in his rectum, she would show him pictures of people dying from AIDS and leukemia and tell him the same thing would happen to him if he didn’t stop. Following a jury verdict, the trial court terminated mother’s and father’s parental rights to WDW. On appeal, both parents challenge the legal and factual sufficiency of the evidence and the admission of the testimony of the department’s expert. HOLDING:Affirmed. “Mother and Father consistently abused drugs and drove commercial trucks while using drugs with the child in the vehicle. Mother and Father allowed drug users to baby-sit W.D.W., sometimes for long periods of time, without leaving an emergency number where they could be contacted. Father repeatedly abused Mother in the presence of the child. Mother and Father allowed the child to be around the uncle even after their parental rights to another child had been terminated, in part, due to sexual abuse by this same uncle. And they refused to comply with any of the conditions for regaining custody of W.D.W. “We conclude the evidence is legally and factually sufficient to support the jury’s finding that Mother and Father engaged in conduct which endangered the physical or emotional well-being of the child or knowingly placed the child in conditions or surroundings which endangered the physical or emotional well-being of the child.” Turning next to whether termination of rights was in the best interests of WDW, the court cites the evidence of the foster parents, the state’s expert and even the admission of the parents’ expert. And, even though the comments about how mother and father handled JW’s sexually inappropriate behavior did not relate directly to WDW, the court says it was relevant to whether the parents’ conduct endangers a child’s physical or emotional well-being. The court, thus, concludes that the evidence is legally and factually sufficient to support the jury’s finding that termination of mother’s and father’s parental rights was in WDW’s best interest. Finally, the court considers whether the department’s expert should have been excluded due to the department’s alleged failure to disclose the expert as a witness. The court notes that father admitted he received the expert’s report prior to trial and does not argue the disclosure was not timely or the report was not adequate. Father also admitted he was not surprised by the expert’s testimony. The court rejects mother’s and father’s contention that the department should have attached the expert’s report to its response to the disclosure request, rather than referring to a file already produced in discovery. The court further rejects father’s contention that the disclosure fails to include any documents, tangible things, reports, models or other data compilations reviewed by or prepared by or for the expert in anticipation of his testimony, and did not identify whether he was a testifying or consulting expert. Even if the department did not comply with Texas Rule of Civil Procedure 194, which it did, there was a lack of prejudice in this case because neither mother nor father objected to the introduction of the expert’s report, which contained the same opinions as offered in his testimony, when the report was offered by WDW’s attorney ad litem. OPINION:Lang-Miers, J.; FitzGerald, Lang-Miers and Mazzant., JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.