K. W. v. Texas Department of Family and Protective Services ( 2017 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00656-CV
K. W., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-15-002572, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING
MEMORANDUM OPINION
In early 2015, the Texas Department of Family and Protective Services received a
referral regarding self-harming behavior and threats of suicide by one of appellant K.W.’s children.
The Department received a subsequent referral for possible medical neglect because one of
appellant’s children was at the hospital and appeared to have had numerous untreated ear infections.
In addition to concerns about the children, there were also allegations that appellant was using
synthetic marijuana. When appellant refused to submit to a drug test, the Department decided to
request appointment as temporary managing conservator of the children, and in May 2015, the
Department filed suit requesting termination of appellant’s parental rights on the grounds that she
• knowingly placed the children or allowed the children to remain in conditions which
endangered their well-being;
• engaged in conduct or placed the children with persons who engaged in conduct which
endangered the children’s well-being;
• constructively abandoned the children who had been in the conservatorship of the
Department for not less than six months;
• failed to comply with the provisions of a court order that specifically established the
actions necessary for appellant to obtain the return of the children; and
• that termination is in the best interest of the children.
See Tex. Fam Code §161.001(b)(1)(D), (E), (N), (O), (2).
Over the next several months the trial court held multiple hearings ordering appellant
to comply with protective parenting classes, psychological, alcohol, and drug evaluation, random
drug testing, group and individual counseling, and supervised visitation with the children. In
subsequent hearings, when appellant was found to have failed to comply fully with the court’s
orders, the court would modify its orders for additional services in an effort to reunify the family.
In March 2016, an extension of the case was granted so that appellant would have more time to
work services, establish employment, and obtain appropriate housing. Soon after the court granted
the extension, appellant was arrested on a new felony burglary charge and on a motion to revoke an
existing felony probation.
On September 8, a mediation occurred and a Mediated Settlement Agreement was
signed by all parties, including appellant, stipulating that: (1) clear and convincing evidence existed
to support a finding that appellant failed to comply with the provisions of a court order that specifically
established the actions necessary for appellant to obtain the return of the children; (2) the children
had been in the permanent or temporary managing conservatorship of the Department for not
less than nine months as a result of the children's removal from the parent for the abuse or neglect
of the children; (3) clear and convincing evidence existed to support a finding that termination
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of appellant’s parental rights to the children would be in the best interest of the children; and
(4) appellant’s failure to complete services would be the sole ground for terminating parental rights.
A trial commenced on September 12. At the trial, the Department’s representative
and the CASA representative testified that appellant had failed to complete court-ordered services
and that termination of appellant’s parental rights was in the children’s best interest. The Court also
heard evidence concerning appellant’s drug and alcohol abuse and appellant’s multiple felony
convictions. The Department’s representative asked the Court to accept the mediated settlement
agreement, terminate appellant’s parental rights based on appellant’s failure to comply with the
court-ordered services, and find that termination of parental rights is in the children’s best interest.
The Court found by clear and convincing evidence that it is in the best interest of the children to
terminate appellant’s parental rights and ordered termination of appellant’s parental rights based on
the voluntary agreement entered into in this case.
On appeal, appellant’s appellate attorney has filed a brief stating that after reviewing
the record, she believes that the appeal is frivolous.1 Counsel has presented a professional evaluation
of the record and explained why she believes there are no arguable grounds for reversal. Counsel
has represented to the Court that she provided a copy of the brief to appellant; advised her of her
right to examine the appellate record and file a pro se brief; provided her with a copy of the district
clerk’s record in this case; and notified her of her deadline for filing a pro se brief. See Taylor v.
1
This and other Texas courts have held that it is appropriate in a parental termination case
to file a brief asserting that the appeal is frivolous. See Taylor v. Texas Dep’t of Protective &
Regulatory Svcs., 160 S.W.3d 641, 646 & n.4 (Tex. App.—Austin 2005, pet. denied); In re D.E.S.,
135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66,
67 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
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Texas Dep’t of Protective & Regulatory Svcs., 160 S.W.3d 641, 646-47 & n.4 (Tex. App.—Austin
2005, pet. denied); see also Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014).
Appellant has not filed a pro se brief or made contact with this Court. We have conducted our
own review of the record and we agree that the appeal is frivolous. We therefore affirm the trial
court’s final decree. Further, in accordance with the Texas Supreme Court’s recent decision, we
deny counsel’s motion to withdraw. In re P.M., No. 15-0171, 2016 Tex. LEXIS 236, at *7-8 (Tex.
Apr. 1, 2016).2
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: February 3, 2017
2
In P.M., the Texas Supreme Court 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. In re P.M., No. 15-0171, 2016 Tex. LEXIS 236, at *3 (Tex. Apr.
1, 2016). Accordingly, counsel’s obligation to appellant has not yet been discharged. See id. If
appellant, 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.” Id.
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