in the Interest of A. R. Child v. Department of Family and Protective Services ( 2021 )

Opinion issued October 14, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-21-00263-CV
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IN THE INTEREST OF A.R., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2020-27937
MEMORANDUM OPINION
The trial court terminated the appellant’s parental rights as to his son. On
appeal, the appellant’s counsel has filed an Anders brief contending that his client’s
appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967) (authorizing
appellant’s counsel to assert that there are not any non-frivolous grounds for appeal
so long as he files brief addressing “anything in the record that might arguably
support the appeal”). We agree. We therefore affirm the trial court’s judgment.
BACKGROUND
After a bench trial, the trial court terminated the appellant’s parental rights as
to his son. As grounds for termination, the trial court found by clear and convincing
evidence that the appellant had:
• engaged in conduct or knowingly placed his son with persons who
engaged in conduct that endangers his son’s physical or emotional
wellbeing;
• his parent–child relationship terminated with respect to another child
based on a finding that he either knowingly placed or knowingly allowed
the child to remain in conditions or surroundings that endangered the
child’s physical or emotional wellbeing or engaged in conduct or
knowingly placed the child with persons who engaged in conduct that
endangered the child’s physical or emotional wellbeing; and
• constructively abandoned his son as defined by the Family Code.
See TEX. FAM. CODE § 161.001(b)(1)(E), (M), (N). It also found by clear and
convincing evidence that the termination of the appellant’s parental rights was in his
son’s best interest. See id. § 161.001(b)(2).1
A.R., the child at issue, was two years old at the time of trial. At trial, four
witnesses testified: Angel Greer, a caseworker for the Texas Department of Family
1
The trial court also terminated A.R.’s mother’s parental rights. But she has not appealed
from the trial court’s judgment.
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and Protective Services; the appellant, who is A.R.’s father; Adrianna Martinez, a
child advocate; and James Orr, who is A.R.’s maternal uncle.
Greer testified that A.R. first came to the Department’s attention when he was
one year old as a result of his mother’s mental-health issues and erratic behavior.
The Department initially placed A.R. with his maternal grandmother and later placed
him with Orr, which is where A.R. remains. Greer testified that A.R. is doing well
in his current placement. A.R. has bonded well with Orr’s family, and Orr and his
family plan to adopt A.R. Greer testified that it is in A.R.’s best interest to remain
with Orr’s family as well as for the appellant’s parental rights to be terminated.
In her testimony, Greer noted that the appellant was incarcerated at the time
of trial. Evidence shows that the appellant has significant criminal history spanning
the period from July 1994 through January 2016. His criminal history includes
convictions for arson, assault causing bodily injury, burglary, criminal mischief,
criminal trespass, driving while intoxicated, interference with an emergency request
for assistance, making a false report to a police officer, and unauthorized use of a
vehicle.2 According to Greer, the appellant has not financially supported A.R.
2
This information is taken from the affidavit of Ashley Fulton, who is an investigator
employed by the Department. The appellant’s counsel states in his Anders brief that
Fulton’s affidavit was not introduced into the evidence at trial. But counsel is mistaken.
The affidavit was introduced as part of Exhibit P1.
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During Greer’s testimony, she also discussed a July 2017 decree terminating
both the mother’s and the appellant’s parental rights as to another child when he was
a year-and-a-half old. The decree terminating their parental rights as to this other
child included child-endangerment grounds. See id. § 161.001(b)(1)(D)–(E). The
Department introduced this July 2017 decree into evidence.
The appellant testified that he was incarcerated in the Harris County Jail when
A.R. first came to the Department’s attention and had been incarcerated there for
about five months preceding the bench trial. He was in jail at the time of the bench
trial awaiting trial on charges of credit card abuse, possession of a controlled
substance, robbery, and making a terroristic threat. But he did not know when he
would stand trial for these alleged offenses or when he would get out of jail.
The appellant testified that he has been to prison four times. These four
sentences stem from his prior felony convictions for arson, assault, burglary, and
unauthorized use of a vehicle. In total, the appellant has spent a little more than
twelve-and-a-half years in prison.
The appellant conceded that he has been incarcerated for most of A.R.’s life—
all but three months of it. The appellant also agreed that he has not provided any care
for A.R. thus far, including during the three months in which he was free. The
appellant explained that he was “in a residential drug and alcohol treatment facility
during those three months,” and thus unable to care for A.R.
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Martinez has been assigned to A.R.’s case for almost a year. She testified that
he is doing well in his current placement with Orr and his family. Martinez
recommended that A.R. remain with the Orr family. In addition, Martinez was
supportive of the Orr family’s plan to adopt A.R.
Finally, Orr testified that A.R. has lived with his family for almost a year. Orr
stated that he treats A.R. like one of his own children. He also stated that he and his
wife are willing and able to adopt A.R. Orr thought it was in A.R.’s best interest to
remain with his family.
DISCUSSION
The appellant’s counsel has filed an Anders brief. Based on counsel’s
evaluation of the record, he contends there are not any non-frivolous grounds for
appeal. In particular, he maintains that the evidence is legally and factually sufficient
to support the trial court’s termination of the appellant’s parental rights because:
• the appellant has already had his parental rights terminated as to another
child based on child-endangerment grounds;
• the appellant’s lengthy criminal history and corresponding history of
incarceration shows parental unfitness; and
• the appellant’s son is doing very well in his current foster placement and
his foster parents are willing and able to adopt him.
The appellant’s counsel also contends no other arguable grounds for appeal exist.
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We ordered the district clerk to provide the appellant with a copy of the record.
The deadline for the appellant to file a pro se response opposing his counsel’s Anders
brief passed more than two months ago, but he has not filed a pro se response.
I. Anders Briefs in Suits Involving the Termination of Parental Rights
Anders procedures are appropriate in appeals from judgments terminating
parental rights. In re J.S., 584 S.W.3d 622, 638 (Tex. App.—Houston [1st Dist.]
2019, no pet.). Under Anders, counsel fulfills his professional obligations by filing
a brief that complies with the appellate rules, evaluates the record, and explains why
there are no arguable grounds for reversal on appeal. See id. at 638–39.
When we receive an Anders brief, we must independently review the record
and decide for ourselves whether arguable grounds for an appeal exist. Id. at 639. If
we conclude that one or more arguable grounds exist, we must abate the appeal and
remand the case to the trial court so that it may allow counsel to withdraw and
appoint another attorney to represent the appellant on appeal. Id. If we conclude that
there are no non-frivolous grounds for appeal, we affirm the trial court. Id.II. Legal and Factual Sufficiency of the Evidence Supporting Termination
A. Legal Standard for Terminating Parental Rights
A parent’s rights to the care, custody, and management of his or her child are
constitutional in scope. Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute; the
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Department may seek termination of the rights of those who are not fit to accept the
responsibilities of parenthood. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). The
primary focus in a termination suit is protecting the child’s best interest. Id.To terminate parental rights under the Family Code, the Department must
establish that a parent committed one or more statutorily enumerated predicate acts
or omissions and that termination is in the child’s best interest. FAM.
§ 161.001(b)(1)–(2). The Department need only establish one of these predicate acts
or omissions, along with the best-interest finding. See id.; In re A.V., 113 S.W.3d at
362. But the Department must make these showings by clear and convincing
evidence. FAM. § 161.001(b). Clear and convincing evidence is “proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Id. § 101.007.
Section 161.001(b)(2)’s best-interest finding is a separate inquiry from section
161.001(b)(1)’s predicate acts and omissions. In re S.R.L., 243 S.W.3d 232, 235
(Tex. App.—Houston [14th Dist.] 2007, no pet.). But evidence used to prove
predicate acts or omissions may be probative in deciding a child’s best interest. In
re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
Multiple non-exclusive factors bear on a child’s best interest. Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include:
• the child’s desires;
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• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of those seeking custody;
• the programs available to assist them to promote the child’s best interest;
• their plans for the child or the plans of the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent that may indicate the existing parent–
child relationship is not proper; and
• any excuse for the parent’s acts or omissions.
Id.; Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one
factor is controlling, and a single factor may be adequate to support termination on
a particular record. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T., 519
S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
B. Legal and Factual Sufficiency Review in Termination Cases
Because of the elevated burden of proof in a termination suit—clear and
convincing evidence—we do not apply the traditional formulations of legal and
factual sufficiency on appeal. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
In conducting a legal-sufficiency review in a termination case, we cannot
ignore undisputed evidence contrary to a finding, but we must otherwise assume the
factfinder resolved disputed facts in favor of the finding. Id. at 630–31; see In re
K.M.L., 443 S.W.3d 101, 112–13 (Tex. 2014) (reviewing court credits evidence that
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supports finding if reasonable factfinder could do so and disregards contrary
evidence unless reasonable factfinder could not do so). The evidence is legally
insufficient if, viewing all the evidence in the light most favorable to a finding and
considering undisputed contrary evidence, a reasonable factfinder could not form a
firm belief or conviction that the finding is true. In re A.C., 560 S.W.3d at 631.
In conducting a factual-sufficiency review in a termination case, we must
weigh disputed evidence contrary to a finding against all the evidence in favor of the
finding. Id. We consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding. Id. The evidence is
factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant
that the factfinder could not have formed a firm belief or conviction that the finding
is true. Id. In reviewing for factual sufficiency, however, we must be careful not to
usurp the factfinder’s role. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
Deciding whether, and if so to what degree, to credit the evidence introduced
at trial is the factfinder’s role, not ours. In re J.O.A., 283 S.W.3d 336, 346 (Tex.
2009). The factfinder is the sole arbiter of witness credibility. Id.; In re J.S., 584
S.W.3d 622, 634 (Tex. App.—Houston [1st Dist.] 2019, no pet.). In a bench trial,
the trial judge is the factfinder who weighs the evidence, resolves evidentiary
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conflicts, and evaluates witnesses’ demeanor and credibility. In re R.J., 579 S.W.3d
97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
C. Analysis
1. Predicate Acts and Omissions
The prior termination of a parent’s rights as to one child on child-
endangerment grounds is a sufficient statutory predicate ground for the termination
of the parent’s rights as to another child. See id. § 161.001(b)(1)(M). Thus, standing
alone, the prior termination of the appellant’s rights as to another child constitutes
legally and factually sufficient evidence of a predicate ground for the termination of
the appellant’s parental rights as to A.R. as a matter of law. See In re C.M.J., 573
S.W.3d 404, 411–12 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (holding
that prior termination of parental rights on child-endangerment grounds conclusively
proved statutory predicate ground for termination under § 161.001(b)(1)(M)).
The trial court also found by clear and convincing evidence two additional
statutory predicate grounds for termination, including one child-endangerment
ground. See FAM. § 161.001(b)(1)(E). Ordinarily, an appellate court must review
such an endangerment finding even if, as here, another predicate ground for
termination is satisfied, given the collateral consequences of endangerment findings.
See In re N.G., 577 S.W.3d 230, 234–37 (Tex. 2019) (per curiam). But we need not
do so in this case because the trial court’s endangerment finding does not impose
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any collateral consequences that the appellant is not already subject to as a result of
the prior July 2017 termination decree, which also included endangerment findings.
See In re R.S., No. 01-20-00126-CV, 2020 WL 4289978, at *6 (Tex. App.—Houston
[1st Dist.] July 28, 2020, no pet.) (mem. op.) (current child-endangerment finding
does not impose any additional consequences on appellant who already has had
parental rights to another child terminated on child-endangerment grounds).
2. Child’s Best Interest
The record before us is limited. However, this limited record is sufficient to
support the trial court’s judgment. In particular, we note four circumstances on
which the trial court could have relied in finding by clear and convincing evidence
that termination of the appellant’s parental rights is in A.R.’s best interest.
First, the appellant has recently had his parental rights terminated as to another
child on endangerment grounds, which permits an inference that his past
endangering conduct may recur as to A.R. See In re J.D.G., 570 S.W.3d 839, 851
(Tex. App.—Houston [1st Dist.] 2018, pet. denied) (past endangering conduct may
create inference that it will recur and endanger child’s wellbeing). The record does
not contain any evidence of reformation on the appellant’s part. Thus, nothing in the
record rebuts the inference that the appellant’s endangering conduct may recur.
Second, the appellant has a criminal history that spans two decades and
includes multiple felony convictions. He has been imprisoned more than once for
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significant periods of time. In total, he has spent more than a decade in prison. Such
repeated criminal conduct evidences parental unfitness and permits an inference that
the appellant poses a danger to A.R.’s wellbeing. See In re V.V., 349 S.W.3d 548,
555 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc) (extensive
criminal history and history of incarceration permits inference of endangerment).
Third, the appellant has played no part in A.R.’s life. A.R. was two years old
at trial, and the appellant has not provided any care to his son. Whether the
appellant’s failure to play a role in A.R.’s life results from indifference,
unavailability, or both, his lack of involvement evidences an inability to parent that
weighs in favor of the trial court’s best-interest finding. See In re M.D.M., 579
S.W.3d 744, 773 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (scant support and
contact supported finding that termination was in children’s best interest).
Fourth, A.R. has bonded well with his foster family, who wish to adopt him.
His foster family provides the love, stability, and support that a young child like A.R.
requires and that he otherwise would lack. These circumstances likewise support the
trial court’s finding that the termination of the appellant’s parental rights is in A.R.’s
best interest. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.]
2017, pet. denied) (stability and permanence are important in upbringing of child
and fact that child was thriving in foster care supported best-interest finding).
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Taken together, these four circumstances show that multiple Holley factors
weigh in favor of the termination of the appellant’s parental rights, including A.R.’s
emotional and physical needs now and in the future, the emotional and physical
danger to A.R. now and in the future, the appellant’s parental abilities, the stability
of A.R.’s present home and proposed future placement, and the acts and omissions
of the appellant indicating the existing parent–child relationship is not proper.
Furthermore, the limited record contains no countervailing evidence in the father’s
favor whatsoever. Thus, the evidence is legally and factually sufficient to support
the trial court’s best-interest finding. See In re A.C., 560 S.W.3d at 630–31.
III. The Absence of Other Arguable Grounds for Appeal
We have reviewed the record. Like appellant’s counsel, we have not identified
any other arguable grounds for appealing from the trial court’s judgment.
The lone issue that the record could conceivably raise is ineffective assistance
of counsel. At trial, the appellant interjected, “I object to this trial because I haven’t
had any contact with my attorney at all since the beginning of this case.” He added
that he had “no opportunity to discuss this case” with counsel. Thus, one might
suggest, the limited record and lack of evidence in the appellant’s favor resulted
from the appellant’s trial counsel’s ineffective assistance.
But as in criminal cases, a claim of ineffective assistance in a termination suit
requires an appellant to show that his counsel’s performance was deficient and that
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this deficiency prejudiced the defense. In re J.O.A., 283 S.W.3d at 341–42, 344.
Here, assuming that counsel’s failure to meet with his client before trial constitutes
deficient performance, the appellant nonetheless cannot show prejudice because the
record establishes that most of the evidence weighing in favor of the termination of
his parental rights was not only undisputed but also effectively indisputable.
The Department introduced into evidence the July 2017 decree terminating
the appellant’s parental rights as to another child on child-endangerment grounds.
The appellant acknowledged this prior termination in his testimony. Similarly, the
Department introduced into evidence a summary of the appellant’s extensive
criminal history. The appellant acknowledged the most serious of these offenses, the
four felonies for which he was imprisoned for more than twelve years total. Thus,
the key evidence from which the appellant’s parental unfitness may be inferred is
incontestable in the main.
Moreover, the appellant has not filed a response opposing his counsel’s
Anders brief. Thus, he has not called to our attention any evidence that he claims his
counsel could have introduced at trial but did not introduce to his detriment. When
his trial counsel asked the appellant if there was “anything” he wanted to let the trial
court know showing that “somehow the best interest of the child” was not served by
his current placement, he replied, “No.” The appellant conceded that he could not
care for A.R. at present due to his incarceration.
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In sum, the record does not raise an arguable claim of ineffective assistance
because a claim for ineffective assistance must be firmly founded in the record, and
this is not the case here. See In re M.T.R., 579 S.W.3d 548, 574 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied) (ineffective-assistance claim must be firmly founded
in record, which must affirmatively show ineffectiveness and resulting harm).
CONCLUSION
We have reviewed the entire record and find no reversible error. We therefore
affirm the trial court’s judgment terminating the appellant’s parental rights.
The appellant’s counsel also moved to withdraw. By separate order, the court
has already denied his motion to withdraw. See In re J.S., 584 S.W.3d at 639 (counsel
filing Anders briefs in suits for termination of parental rights not entitled to withdraw
even when they are correct that non-frivolous grounds for appeal do not exist). If the
appellant chooses to pursue a petition for review in the Supreme Court of Texas,
counsel may fulfill his obligations by filing a petition for review that satisfies the
standards for an Anders brief, just as he did in this court. See id.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Landau, and Countiss.
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