in the Interest of K.M. and J.O., Children ( 2008 )

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MEMORANDUM OPINION
No. 04-08-00037-CV
IN THE INTEREST OF K.M. and J.O., Children
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2007-PA-00004
Honorable Charles Montemayor, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: July 30, 2008
AFFIRMED
This is an accelerated appeal concerning the trial court’s termination of Kerry M.’s parental
rights to her children, K.M. and J.O., and the trial court’s termination of Paul H.’s parental rights
to his daughter, K.M.1 Both Kerry M. and Paul H. appeal the trial court’s order finding their
appellate points to be frivolous. We affirm.
KERRY M.’S PARENTAL RIGHTS
Although Kerry M. was found to be indigent by the trial court, her appellate points were
determined to be frivolous. See TEX. FAM. CODE ANN. § 263.405(d) (Vernon Supp. 2007). On
1
To protect the privacy of the parties in this case, we identify the children by their initials and the parents by
their first names only. See TEX. FAM. CODE ANN. § 109.002(d) (Vernon 2002).
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appeal, Kerry M. argues that the trial court erred in determining that her appellate point regarding
factual sufficiency of the best interest finding was frivolous. We disagree.
We review a trial court’s determination that an appeal is frivolous under an abuse of
discretion standard. In re M.N.V., 216 S.W.3d 833, 834 (Tex. App.—San Antonio 2006, no pet.).
An appeal is frivolous when it lacks an arguable basis in law or in fact. Id. In considering whether
an appeal is frivolous, the trial court considers whether the appellant has presented a substantial
question for appellate review. See TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(b) (Vernon 2002);
TEX. FAM. CODE ANN. § 263.405(d)(3) (Vernon Supp. 2007).
Kerry M. argues that the trial court abused its discretion because “the only evidence relating
to the best interests of the children was provided by the Texas Department of Protective and
Regulatory Services worker who came onto the case on September 19, 2007, just two months before
trial.” We disagree that this was the only evidence presented relating to the children’s best interest.
In considering whether termination is in the best interest of the children, the trial court may
consider several factors, including but not limited to the following: the desires of the child, the
emotional and physical needs of the child now and in the future, the emotional and physical danger
to the child now and in the future, the parenting abilities of the individual seeking custody, the
stability of the home or proposed placement, the parent’s acts or omissions that indicate whether the
existing parent-child relationship is a proper one, and any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
At trial, Kerry M. testified that her children were initially removed from her care because
her son, J.O., tested positive for marijuana at birth. She further testified that she was on probation
for assaulting her mother and, at the time of trial, had been in jail for two months on a motion to
revoke her probation. The basis of the motion to revoke was her testing positive for marijuana and
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cocaine. Further, Kerry M. admitted to having had used illegal drugs while under the trial court’s
order to engage in services with the Department of Protective and Regulatory Services. And, Kerry
M. admitted that although she received a certificate for completing a six-month out-patient treatment
program, she had used illegal drugs during her participation in the program. Indeed, the positive
drug test that led to her motion to revoke occurred the week before she completed the outpatient
program. Kerry M. also admitted to using cocaine around the time of August 28, 2007, when she
was involved in an altercation with J.O.’s father. This altercation occurred a mere six days after she
completed anger management classes. In explaining the incident, Kerry M. denied assaulting J.O.’s
father and claimed that he assaulted her.
In addition to her admitted continued illegal drug use, Kerry M. acknowledged that she was
currently unable to provide a safe and stable environment for K.M. and J.O. She testified that she
would remain in jail for at least a few months because, as part of the motion to revoke, she was being
ordered to complete a program that lasts three months. In addition to the three-month duration of
the program, there was testimony that it can take several months before a spot in the program
becomes available. Thus, it could be many months before Kerry M. would be able to provide any
home for her children. In the meantime, Kerry M. testified that she wanted the State to continue to
take care of K.M. and J.O. because she has no one else to care for them. According to Kerry M., her
children are “safe where they are at.” Once she is released, Kerry M. testified that her plan was to
finish massage therapy school, stay with her great-grandmother, and go to church on Sundays. She
also claimed to have a job waiting for her with her family. However, when questioned specifically
about the job, she testified that she was not sure what kind of work she would be doing and that her
uncle would tell her at the time she is released. When later questioned about her job prospects, she
changed her testimony, stating that it was her aunt, not her uncle, who would employ her. Kerry M.
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testified that her aunt owns rental properties and that she would help her aunt with these properties
and help her great-grandmother around the house.
In reviewing the record, we cannot say that the trial court abused its discretion. The evidence
shows that because of her continued illegal drug dependency, Kerry M. is unable to provide for the
emotional and physical needs of her children. Her drug addiction places her children in emotional
and physical danger. Indeed, despite the danger posed to her unborn baby, Kerry M. continued to
use illegal drugs during her pregnancy. She continued to use illegal drugs after her children were
removed from her care. And, she continued to use illegal drugs after she was placed on probation.
Because of her drug use, at the time of trial, she had no place for her children to live. Thus, in
addition to her inability to provide for the emotional and physical needs of her children, and in
addition to her drug use placing her children in emotional and physical danger, the evidence showed
that she had no stable living environment for her children. We, therefore hold that the trial court did
not abuse its discretion in finding that Kerry M.’s appellate point was frivolous.
PAUL H.’S PARENTAL RIGHTS
The trial court found Paul H. to be indigent but concluded that his appellate points were
frivolous. See TEX. FAM. CODE ANN. § 263.405(d) (Vernon Supp. 2007). Paul H.’s court-appointed
appellate attorney has also concluded that his appellate points are frivolous. Counsel has filed a
motion to withdraw and a brief in support of that motion, stating that, in his professional opinion,
the appeal is frivolous. Counsel’s brief and motion meets the requirements of Anders v. California,
386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there
are no arguable grounds for relief. See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4
(Tex. App.—San Antonio 2003, no pet.) (applying Anders procedure in appeal from order
terminating parental rights). Counsel sent a copy of his brief to Paul H. and advised him of his right
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to examine the record and to file a pro se brief. Paul H., however, did not file a pro se brief. After
reviewing the record, we agree that Paul H.’s appeal is frivolous and without merit. Therefore, we
affirm the trial court’s judgment terminating Paul H.’s parental rights and grant counsel’s motion
to withdraw.
CONCLUSION
We affirm the trial court’s judgment.
Karen Angelini, Justice
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