in the Interest of A.M.D., a Child ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-15-00134-CV
________________________
IN THE INTEREST OF A.M.D., A CHILD
On Appeal from the 223rd District Court
Gray County, Texas
Trial Court No. 37,585; Honorable Jack M. Graham, Presiding
July 30, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, H.N.M.,1 appeals the trial court’s order terminating her parental rights
to her child, A.M.D.2 At the time of her removal, A.M.D. was less than a year old. In
presenting this appeal, appointed counsel has filed an Anders brief in support3 of his
motion to withdraw, and we grant counsel’s motion and affirm.
1
To protect the parent’s and child’s privacy, we refer to Appellant and other parties by their
initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b).
2
The father’s rights were also terminated but he is not a party to this appeal.
3
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
In December 2013, the Department of Family and Protective Services filed its
Original Petition for conservatorship and termination of H.N.M.’s parental rights. The
bases for A.M.D.’s removal were child neglect and neglectful supervision, i.e., not caring
for the child and refusing to learn basic parenting skills in multiple foster care
environments. After a hearing, the trial court entered an order requiring H.N.M. to
participate in and complete all tasks and services specified in a service plan as well as
all subsequent service plans ordered by the trial court. Thereafter, H.N.M. failed to
initiate or complete multiple services ordered for A.M.D.’s return, including: (1) attend
individual counseling, (2) undergo a psychological evaluation, (3) undergo substance
abuse screenings, and (4) participate in mental health services. H.N.M. also moved her
residence a number of times, failed to make visitations, became pregnant a second
time, and tested positive for marijuana use.
After a bench trial in March 2015, the trial court found there was clear and
convincing evidence that H.N.M. had failed to comply with the court’s order specifically
establishing the actions necessary for A.M.D.’s return. See TEX. FAM. CODE ANN. §
161.001(1)(O) (West 2014). See M.C. v. Tex. Dep’t of Family and Protective Servs.,
300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied) (only one statutory ground
is required to terminate parental rights under section 161.001(1)). The trial court also
found termination was in the best interest of the child. See In the Interest of C.H., 89
S.W.3d 17, 28 (Tex. 2002) (evidence of acts or omissions used to establish ground for
termination under section 161.001(1) may be probative in determining best interest of
child). See also Walker v. Tex. Dep’t of Family and Protective Servs., 312 S.W.3d 608,
619 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (nonexclusive list of factors that
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the trier of fact in a termination case may use in determining the best interest of the
child).
APPLICABLE LAW
In a termination proceeding the standard of review is that discussed in In re
K.M.L., 443 S.W.3d 101, 108 (Tex. 2013). The evidence must be such that a fact finder
could reasonably form a firm belief or conviction about the truth of the matter on which
the Department bears the burden of proof. Id. at 112. Furthermore, only one statutory
ground is needed to support termination, though the trial court must also find that
termination is in the child’s best interest. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex.
App.—Amarillo 2009, pet. denied). In reviewing a best interest finding, appellate courts
consider, among other evidence, the factors set forth in Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).
ANDERS V. CALIFORNIA
Courts, including this court, have found the procedures set forth in Anders v.
California applicable to appeals of orders terminating parental rights. See In re A.W.T.,
61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.). In support of his motion to
withdraw, counsel certifies he has conducted a conscientious examination of the record,
and in his opinion, the record reflects no potentially plausible basis to support an
appeal. Counsel certifies he has diligently researched the law applicable to the facts
and issues and candidly discusses why, in his professional opinion, the appeal is
frivolous. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated
he has complied with the requirements of Anders by (1) providing a copy of the brief to
H.N.M. and (2) notifying her of her right to file a pro se response if she desired to do so.
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Id. By letter, this Court granted her an opportunity to exercise her right to file a
response to counsel’s brief should she be so inclined. She did not favor us with a
response. Neither did the Department favor us with a responsive brief.
ANALYSIS
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues that might support the appeal.
See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Based on this record,
we conclude that a reasonable fact finder could have formed a firm belief or conviction
that grounds for termination existed in compliance with section 161.001 of the Family
Code and that termination of H.N.M.’s parental rights was in the child’s best interest.
See Gainous v. State, 436 S.W.2d 137, 137-38 (Tex. Crim. App. 1969).
At the bench trial, the evidence established H.N.M. did not initiate many of the
material provisions of court orders requiring compliance to avoid termination of her
parental rights. In re J.F.C., 96 S.W.3d 256, 277-79 (Tex. 2002). The record also
conclusively establishes A.M.D. was removed from H.N.M. under Chapter 262 of the
Family Code for abuse or neglect, and it is undisputed that A.M.D. was in the
Department’s custody for more than nine months after removal. In re E.C.R., 402
S.W.3d 239, 248-49 (Tex. 2013). The parental conduct described in subsection
161.001(1)(O) of the Family Code was thus established as a matter of law, and
termination was in the best interest of A.M.D. Id.
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After reviewing the record and counsel’s brief, we agree with counsel that there
are no plausible grounds for appeal.
CONCLUSION
The trial court’s order terminating H.N.M.’s parental rights to A.M.D. is affirmed
and counsel’s motion to withdraw is granted
Patrick A. Pirtle
Justice
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