T. S. A. v. Texas Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00550-CV
NO. 03-21-00551-CV
T. S. A., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY
NOS. 20-FL-289 & 20-FL-289-A,
THE HONORABLE THOMAS NATHANIEL STUCKEY, JUDGE PRESIDING
MEMORANDUM OPINION
Mother T.S.A. appeals from the trial court’s orders terminating her parental rights
to her sons “Mike” and “Matt,” who were six and four at the time of the final hearing. 1 Mother’s
court-appointed attorney has filed an Anders brief explaining that he has concluded that the
appeal is without merit. See Anders v. California, 386 U.S. 738, 744 (1967).
The Texas Department of Family and Protective Services presented evidence that
the police responded to a report of “a small child in the street unattended in a diaper.” The
responding officer approached a shed in the back yard, smelled marijuana, and saw four people
in the shed using marijuana and methamphetamine. One of the men, later confirmed to be
1 For the children’s privacy, we refer to them and other family members by pseudonyms.
See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Matt’s father’s rights were also
terminated but he is not a party to this appeal. Mike’s father’s rights were not terminated.
Mother’s boyfriend, was known to the police due to his criminal history involving “[n]arcotics,
family violence, [and] Class C misdemeanors.” During the officer’s visit, Mother came out from
the house looking like she had just woken up and had not showered or changed her clothes in a
few days. Mother was “kind of nonchalant” about Matt having been out in the street unattended,
and the officer “smelled a heavy odor of unburnt marijuana” coming from the house. The
Department was called, and an investigator spoke to Mother, who said that she had nothing to do
with the drugs found in the shed, that she had been asleep in the house asleep the whole time,
that she thought her boyfriend was watching Matt, and that she had recently learned that Matt
could open the door by himself and was trying to “figure something out to keep him from doing
that.” Mother agreed to take urine and hair-follicle drug tests, which returned positive results for
marijuana and methamphetamine, but she “adamantly denied” using anything other than
marijuana. When the investigator asked how methamphetamine could have gotten into her
system, Mother “explained that it could be in the cocaine that she sales [sic] or the marijuana that
she smokes,” but then later denied she had told the investigator she was selling drugs.
Matt was placed with “Maria,” a family friend, and Mike was placed with his
father “Brad,” with whom he had been staying at the time the police were called about Matt.
Soon after he was placed with her, Matt “started having white bowel movements,” and Maria
brought him to the emergency room, where a “doctor confirmed that he has anemia” and was
supposed to be taking medication. Mother told the investigator that she knew Matt was anemic,
that a doctor had given him medicine, and that she was giving Matt “over the counter vitamins.”
The doctor reported to the Department that although Mother was supposed to bring Matt back for
a check-up, the child had not been back in more than six months. The doctor did not know if
Mother had ever picked up or refilled Matt’s prescription. The investigator found “reason to
2
believe for both neglectful supervision of both of the children and medical neglect for” Matt, and
he testified that Mother engaged in endangering conduct by failing to provide Matt with his
prescription medication and by selling cocaine while caring for two small children.
The Department prepared a safety plan for Mother, but her caseworker testified
that she had not complied with most of the requirements, including drug testing, completing a
parenting class, undergoing a psychological evaluation, completing a follow-up drug and alcohol
assessment, providing proof of employment, or successfully completing therapy. She had also
missed fifteen of twenty-seven visits with the children. The Department believed it was in the
children’s best interest for Mother’s rights to be terminated because the case had been pending
for more than a year and, in that time, Mother had not “been able to alleviate one concern that . .
brought both the children into her care”—she had not maintained sobriety, she did not seem to
have learned anything during the case, and she did not “engage in any services or make any type
of behavioral changes.” The caseworker worried that if Mother’s rights were not terminated, she
could endanger the children if she had contact with them while she was under the influence.
Mother reported that she had been diagnosed with “[a]nxiety, depression and then bipolar” and
prescribed “Xanax, Lexapro, Procardia, and Zoloft” but that was not taking those mediations
because she “didn’t want to rely on them.” Instead, she used marijuana to calm herself down,
smoking twenty joints a day.
At the time of the final hearing, Matt was still living with Maria, who hoped to
adopt him if Mother’s rights were terminated, and Mike was still living with Brad, who the
Department believed should be named sole managing conservator. The caseworker said Matt
had “grown so much” and was thriving with Maria, who was “meeting all of his needs and
more,” taking him to all of his medical and therapy appointments, and providing him with “a safe
3
and stable environment that is drug free.” The caseworker said Matt had “come such a long
way,” from not knowing how to speak or interact with other children to “starting to talk a lot
more,” being active and social, and wanting to play. The caseworker did not have any concerns
about Brad being Mike’s sole managing conservator and said that Brad had been a safe and
appropriate parent and that Mike “has continued to do well in his home.”
Maria testified that when Matt arrived about a year earlier, he was speech delayed
and “would cry because that’s the only way he could communicate.” He had few social skills,
ate very little, was not toilet-trained, and would scream every time she put him on the toilet.
Since the emergency room visit, Matt had been taking prescription iron every day and gets
“blood work done frequently.” He has between fifteen and twenty appointments a month, seeing
an occupational therapist and a speech therapist twice a week, along with going to an eye
specialist for “eye drifts,” and an ear, nose, and throat specialist. Matt has started to like school,
is active and social, has “grown tremendously,” is “doing a lot more than he was doing at the
very beginning,” is toilet trained, talks, and is happy. Maria said, “I love [Matt], I am very much
attached to him. . . . And he is just a really good kid.” Maria did not believe Mother had “done
the things that she needed to do to have her son,” noting that Mother had missed about half of her
visitations. Maria had concerns about Matt’s safety if he were returned because she thinks
Mother might be homeless. More importantly, she has “huge concerns” about Mother’s drug use
because “when she is doing drugs, and she is high or under the influence, how is she going to
handle an active three-year-old?” Maria is committed to making sure Matt and Mike maintained
a relationship and said they have a “very much well-kept bond” and “love each other very
much.” Mike lives with his father Brad, and the Department agreed that Brad should be named
4
the child’s sole managing conservator. Brad and Maria are on good terms and intend to maintain
relationships between the children and with “Andrew,” the children’s maternal grandfather.
Andrew testified that he has a “great” relationship with Brad and Maria and said
that Maria “does an amazing job” with Matt, who “has come a long way.” Andrew supported
the Department’s plan to have Maria adopt Matt, saying that Matt “needs a stable environment,”
that Matt and Maria love each other, and that Matt “needs extra above and beyond just, I think,
normal so-called childhood and she gives that to him.” He believed it was in the children’s best
interest for Mother’s rights to be terminated so Matt could be adopted by Maria and so Mike
could remain in Brad’s sole care, saying Mother “just hasn’t done what she is supposed to do.”
Brad testified similarly, saying that Mother had changed in recent years and was not a safe
parent. Brad believed Maria was providing Matt with a good home, and he testified that he
thought it was in the children’s best interest for Mother’s parental rights to be terminated.
Mother testified that on the day the police were called, she and Matt had been
taking a nap together when he had gotten out of bed and let himself out of the house, and that she
went to the store that same day to buy a child safety lock to stop it from happening again.
Mother insisted that she had given Matt his prescription iron medication until he was two and at
the time of his removal was weaning him off the prescription and onto over-the-counter iron
supplements, as the doctor had instructed. Mother denied smoking marijuana the day Matt got
outside, denied that her then-boyfriend was supposed to be caring for Matt, and denied knowing
that her boyfriend and the other people were in the shed using drugs. She said she did not recall
telling the investigator that she sold cocaine, noting that her drug test was negative for cocaine.
Mother testified that she had tried to work her required services but said she had
been evicted and had trouble with internet connectivity. She admitted that she had missed all the
5
drug tests requested by the Department after her initial test. She said she did not test because she
was “bitter” about the situation and because she “just didn’t feel the severity of these little drug
tests,” although she acknowledged that she had been ordered by the trial court to test and that she
knew she could not regain custody without testing. Mother acknowledged that she had tested
positive for methamphetamine but insisted she had never used it. She admitted that she had
smoked marijuana since she was young and that she smoked twenty joints a day, saying that it
eases her mind and “relaxes [her] and makes [her] forget about a lot of things.” However, she
insisted that she had never been a bad or neglectful parent and that her children were never in
danger. Mother did not think it should matter if she used marijuana if the children were not
present but admitted that although she “tried not to,” she had smoked marijuana “from time to
time” while her children were in her care. Mother stated, “I just knew that this whole case—I
mean, no matter what I tested dirty for, you know, I have never been a neglectful mother. My
kid getting out of the sliding door does not show how I’m neglectful to my kid.”
The trial court signed orders finding that termination was in the children’s best
interest and that Mother had placed or allowed the children to remain in conditions or
surroundings that endangered their well-being, that she had engaged in conduct or placed the
children with others who engaged in conduct that endangered the children’s well-being, that she
had constructively abandoned the children, and that she had failed to comply with a court order
establishing the actions necessary to regain custody. See Tex. Fam. Code § 161.001(b)(1)(D),
(E), (N), (O), (2).
On appeal, Mother’s court-appointed attorney has filed a motion to withdraw
supported by an Anders brief, concluding that the appeal is frivolous and without merit. See
386 U.S. at 744; In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (approving use of
6
Anders procedure in appeal from termination of parental rights). The brief meets the
requirements of Anders by presenting a professional evaluation of the record and demonstrating
why there are no arguable grounds to be advanced. See 386 U.S. at 744; Taylor v. Texas Dep’t
of Protective & Reg. Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
Counsel has certified to this Court that he provided Mother with a copy of the Anders brief and
motion to withdraw and advised her of her right to examine the appellate record and to file a
pro se brief. To date, Mother has not filed a pro se brief.
We have conducted an independent review of the record, including the Anders
brief submitted on Mother’s behalf. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Taylor,
160 S.W.3d at 647. We have found nothing in the record that might arguably support an appeal
and agree with counsel that the appeal is frivolous and lacks merit. Accordingly, we affirm the
trial court’s decree terminating Mother’s parental rights. Counsel’s motion to withdraw
is denied. 2
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Kelly and Smith
Affirmed
Filed: February 4, 2022
2 The Texas Supreme Court has held that the right to counsel in suits seeking the
termination of parental rights extends to “all proceedings in [the Texas Supreme Court],
including the filing of a petition for review.” See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per
curiam). Accordingly, counsel’s obligation to Mother has not yet been discharged. See id. If
Mother, after consulting with counsel, desires to file a petition for review, counsel should timely
file with the Texas Supreme Court “a petition for review that satisfies the standards for an
Anders brief.” See id. at 27-28.
7