in the Matter of M.M.C.D.-E. ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00501-CV
IN THE INTEREST OF M.M.C.D-E., a Child
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-01118
Honorable David A. Canales, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Patricia O. Alvarez, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: December 27, 2019
AFFIRMED; MOTION TO WITHDRAW DENIED
Mom appeals the trial court’s order terminating her parental rights to her child M.M.C.D-
E. 1 Her court-appointed counsel filed an Anders brief, and Mom did not file a pro se brief.
Because there are no arguable grounds for review or reversible error, we affirm the trial court’s
order.
BACKGROUND
In May 2017, the Department of Family and Protective Services petitioned for custody of
M.M.C.D-E. based on an allegation that Mom had thrown M.M.C.D-E. across the room and Mom
had, in the past, harmed herself. The trial court gave temporary conservatorship to the Department,
and the Department placed the child in a parental-child safety placement. See TEX. FAM. CODE
1
We refer to Appellant and the child using aliases. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8.
04-19-00501-CV
ANN. § 264.902 (Parental Child Safety Placement Agreement). Tragically, in the placement, the
child suffered serious, life-threating, and permanently-life-altering injuries.
The trial court heard evidence of M.M.C.D-E.’s injuries, which include severe neurological
impairments due to a traumatic brain injury. M.M.C.D-E. has severe developmental delay and
recurring seizures. He has a VP shunt, a gastrostomy, a ventilator, and he requires constant care
from a private-duty nurse to ensure he is fed properly and is able to breathe properly. He receives
physical therapy, occupational therapy, and speech and language therapy weekly. He is under the
care of an ear, nose, and throat specialist; a general surgeon; a neurologist; a neurosurgeon; an
ophthalmologist; an orthopedist; and a sleep specialist.
The trial court also heard evidence of Mom’s mental health from a psychiatrist and a
psychologist, and her behaviors from Department investigators and case workers. The psychiatrist
testified that Mom “displayed a lot of tangential thinking, . . . she can’t stay on topic . . . [and her]
thinking was at times quite disorganized.” Mom has “generalized anxiety disorder, post-traumatic
stress disorder, and attention-deficit/hyperactivity disorder.” Mom has had “lifelong difficulties
with concentration, impulsivity, interrupting people when they are speaking, [and] having
difficulty following conversations when people are speaking to her.”
The Department workers testified that Mom was moving M.M.C.D-E.’s hospital room
equipment without permission, her behaviors disrupted M.M.C.D-E.’s medical appointments and
she was no longer allowed to participate in them, she underreported her criminal history, she did
not understand how to care for M.M.C.D-E., and she did not have the mental ability to remain
focused, alert, and able to respond to M.M.C.D-E.’s life-sustaining needs.
Multiple witnesses testified to facts that support the conclusion that, because of Mom’s
mental illnesses and M.M.C.D-E.’s special needs, it would be difficult or impossible for Mom to
meet M.M.C.D-E.’s needs. See In re E.R., 555 S.W.3d 796, 809 (Tex. App.—Houston [14th Dist.]
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04-19-00501-CV
2018, no pet.) (“The needier the child, the more able the parent must be.” (quoting In re A.L.M.,
300 S.W.3d 914, 919 (Tex. App.—Texarkana 2009, no pet.))).
Several witnesses also testified that it would not be in the child’s best interest for him to be
placed in Mom’s care. They noted M.M.C.D-E. is being well cared for in his foster placement,
and the foster family is interested in adopting him.
The trial court found by clear and convincing evidence that Mom’s mental conditions make
her unable to provide for M.M.C.D-E.’s highly specialized needs, Mom’s course of conduct met
section 161.001(b)(1)(M)’s grounds, and terminating Mom’s parental rights was in the child’s best
interest. It terminated Mom’s parental rights to M.M.C.D-E. Mom appeals.
ANDERS BRIEF
Mom’s court-appointed counsel filed a motion to withdraw and a brief containing a
professional evaluation of the record. The very thorough brief recites the relevant facts and
procedural background, including brief summaries of the hearings, the status reports, and trial
court rulings. The brief summarizes witnesses’ testimony which includes abundant evidence
supporting the trial court’s findings. The brief concludes there are no arguable grounds to reverse
the termination order. The brief satisfies the requirements of Anders v. California, 386 U.S. 738(1967). See In re P.M., 520 S.W.3d 24, 27 n.10 (Tex. 2016) (per curiam) (applying Anders
procedures to parental rights termination cases). The record shows counsel provided Mom with a
copy of the Anders brief, the motion to withdraw, and a form to request a free copy of the appellate
record. Counsel advised Mom of her right to review the record and file her own brief.
We ordered Mom to file her pro se brief, if any, not later than November 20, 2019. Mom
did not request a copy of the record or file a pro se brief.
Having carefully reviewed the record and counsel’s brief, we conclude the evidence was
legally and factually sufficient to support the trial court’s findings by clear and convincing
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evidence. We further conclude that there are no plausible grounds to reverse the termination order.
We affirm the trial court’s order.
MOTION TO WITHDRAW
In her motion to withdraw, court-appointed appellate counsel cites two reasons for her
motion. First, Mom’s appeal is frivolous and without merit, and second, “counsel has been unable
to communicate with her client consistent with an effective attorney client relationship.” Given
the circumstances of this case, counsel’s stated bases—without more—do not rise to “good cause.”
See TEX. FAM. CODE ANN. § 107.016(3); TEX. R. CIV. P. 10; In re P.M., 520 S.W.3d at 27.
Counsel’s duty to Mom is not yet complete; the motion to withdraw is denied. See In re P.M., 520
S.W.3d at 27, n.11; In re A.M., 495 S.W.3d 573, 583 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied) (“If the mother wishes to pursue an appeal to the Supreme Court of Texas, ‘appointed
counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for
an Anders brief.’” (quoting In re P.M., 520 S.W.3d at 27–28)).
Patricia O. Alvarez, Justice
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