in the Interest of J.J.M., a Child ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00224-CV
IN THE INTEREST OF J.J.M., A CHILD
From the 74th District Court
McLennan County, Texas
Trial Court No. 2018-248-3
MEMORANDUM OPINION
After appellant's parental rights to her child, J.J.M., were terminated following a
bench trial,1 appellant's appointed appellate counsel filed a notice of appeal.2 Appellant's
counsel has now filed an Anders brief. Counsel asserts that he has diligently reviewed
the record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—
Waco 2002, no pet.) (per curiam) (applying Anders to termination appeal).
Counsel’s brief meets the requirements of Anders; it presents a professional
1
The trial court found by clear and convincing evidence that appellant had violated Family Code
subsections 161.001(b)(1)(D), (E), (N) and (O) and that termination was in the child's best interest. See TEX.
FAM. CODE ANN. § 161.001(b).
2
J.J.M.’s father voluntarily relinquished his parental rights, and he has not appealed.
evaluation demonstrating why there are no arguable grounds to advance on appeal. See
In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief
need not specifically advance ‘arguable’ points of error if counsel finds none, but it must
provide record references to the facts and procedural history and set out pertinent legal
authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel
has carefully discussed why, under controlling authority, there is no reversible error in
the trial court’s order of termination. Counsel has informed us that he has: (1) examined
the record and found no arguable grounds to advance on appeal; (2) served a copy of the
brief and counsel’s motion to withdraw on Appellant; and (3) informed Appellant of her
right to obtain a copy of the record and of her right to file a pro se response.3 See Anders,
386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High v. State, 573 S.W.2d
807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252 S.W.3d at 409 n.23.
Appellant has filed a pro se response to the Anders brief and asserts that there are
issues that should be addressed on appeal. Although provided the opportunity, neither
the Texas Department of Family and Protective Services, represented by the District
Attorney for McLennan County, Texas, nor the ad litem have filed a reply to appellant’s
pro se response. The brief filed by appellant’s attorney specifically notes that the record
is sufficient to support termination under Ground O. In her pro se response, appellant
challenges the sufficiency of all of the grounds found by the trial court to support
3
The Texas Court of Criminal Appeals has held that “’the pro se response need not comply with the rules
of appellate procedure in order to be considered. Rather, the response should identify for the court those
issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696-97 (Tex. App.—Waco 1997, order)).
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termination.
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
U.S. 429, 438 n.10, 108 S. Ct. 1895, 1902 n.10, 100 L. Ed. 2d 440 (1988). We have reviewed
the entire record and counsel's brief and have found nothing that would arguably
support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005)
(“Due to the nature of Anders briefs, by indicating in the opinion that it considered the
issues raised in the briefs and reviewed the record for reversible error but found none,
the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 509.
Both legal and factual sufficiency reviews in termination cases must take into
consideration whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the matter on which the petitioner bears the burden
of proof. In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002) (discussing legal sufficiency
review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).
In a legal sufficiency review, a court should look at all the evidence in the
light most favorable to the finding to determine whether a reasonable trier
of fact could have formed a firm belief or conviction that its finding was
true. To give appropriate deference to the factfinder's conclusions and the
role of a court conducting a legal sufficiency review, looking at the evidence
in the light most favorable to the judgment means that a reviewing court
must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. A corollary to this
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requirement is that a court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible.
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually
insufficient.
Id. (footnotes and citations omitted); see In re C.H., 89 S.W.2d at 25.
The record reflects that J.J.M. first came to the Department’s attention in January
2018 when appellant was hospitalized in Waco after being picked up by the Waco police.
Appellant, while accompanied by J.J.M., abandoned her car on a bridge and took J.J.M.
to the lobby of a local hotel. Appellant left her purse and her cell phone in the still-
running car. Appellant was transferred to a psychiatric facility due to her mental state,
and J.J.M. was placed in the custody of his grandfather. J.J.M. was eventually placed in
foster care. Appellant already had a case with the Department in relation to her older
son, who aged out of Department supervision while the present case was proceeding.
Appellant’s older son experienced mental challenges from birth and as the result of a
traumatic brain injury. The older son had a history of violence against J.J.M.
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Shortly after J.J.M. was placed in the Department’s custody, appellant moved to
Alabama with her fiancé, L.G. Appellant’s oldest son also moved to Alabama to live with
them after he was released from incarceration.
Prior to the move to Alabama, appellant had separated from L.G. around
Christmas of 2017. Appellant and J.J.M. were homeless, although there were local
relatives and programs that could have assisted them. Between the time of her
hospitalization in January 2018 and the move to Alabama, Appellant was admitted to
another psychiatric facility, to MHMR, and lived with friends and in homeless shelters.
Appellant reported that she elected to remain homeless and stay in shelters with J.J.M.
because they were not safe at home with L.G. At the time of the termination hearing,
appellant did not have sufficient income to support herself or her children without L.G.’s
assistance.
In her pro se response, appellant notes that she has returned to Texas and is now
employed. Appellant’s response does not dispute the following: (1) appellant did not
feel safe with L.G., and L.G. hurt J.J.M.; (2) appellant’s oldest son also hurt J.J.M.; and (3)
appellant has not continued psychiatric or psychological treatment or medication for her
mental disorders. Appellant’s response also does not indicate that she is no longer living
with L.G. or her oldest son or that she is currently in psychological treatment or is
compliant with her medication. Appellant told the case worker early in this case that her
solution for her psychological problems was to self-medicate with marijuana.
Appellant additionally asserts that she was unable to attend the termination
proceeding on April 16 because she was again hospitalized for psychological reasons.
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Although the trial court denied the request for a continuance filed by appellant’s
attorney, the termination hearing was recessed for a month to enable appellant to attend.
The trial court noted: “Why don’t we start the hearing today? We probably won’t finish
the hearing today. We’ll give Mom an opportunity to be here.” Appellant offers no
explanation for her failure to attend the conclusion of the termination hearing on May 15.
One of the foster parents testified at the termination hearing and indicated that
J.J.M. suffered anxiety when a telephone call with his mother was planned. J.J.M. would
also experience instances of bed wetting on the nights of the telephone calls. J.J.M. told
the foster parent that he had been hit when living with his mother and his older brother,
and that he had been exposed to pornography. The foster parent testified that J.J.M. is
happy in the foster home and that the foster parents would like to adopt him.
The evidence is legally and factually sufficient to support the trial court’s
determination by clear and convincing evidence that termination was appropriate on
each of the identified grounds under § 161.001(b) and that it was in the best interest of
J.J.M. Accordingly, we affirm the trial court's order of termination.
We also remind Appellant's appointed appellate counsel that if Appellant, after
consulting with counsel, desires to file a petition for review, counsel is still under a duty
to timely file with the Texas Supreme Court “a petition for review that satisfies the
standards for an Anders brief.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016); see In re G.P.,
503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied); see also TEX. FAM. CODE ANN. §
107.016.
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REX D. DAVIS
Justice
Before Chief Justice Gray,*
Justice Davis, and
Justice Neill
*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not
issue.)
Affirmed
Opinion delivered and filed December 18, 2019
[CV06]
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