in the Interest of M.L., a Child ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00160-CV
IN THE INTEREST OF M.L., A CHILD
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2020-539,477, Honorable Kara L. Darnell, Associate Judge Presiding
December 8, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Father, appeals the trial court’s order terminating his parental rights to
his son, M.L..1 Appointed counsel for Father has filed an Anders2 brief in support of a
motion to withdraw. Finding no reversible grounds for appeal, we reform the judgment of
the trial court and affirm as reformed.
1 To protect the privacy of the parties involved, we will refer to the appellant as “Father,” to the
child’s mother as “Mother,” and to the child by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R.
APP. P. 9.8(b). Mother’s parental rights were also terminated in this proceeding. Mother does not appeal.
2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Background
In April of 2020, the Texas Department of Family and Protective Services became
involved with Mother and her newborn baby, M.L., due to concerns of Mother’s drug use.
M.L. was born two and a half months premature and was admitted to the neonatal
intensive care unit at the hospital. During the Department’s investigation, Mother
admitted that she used methamphetamine off and on since she was eighteen years old,
including during her pregnancy. Both Mother and M.L. tested positive for
methamphetamine when M.L. was born. At the time of M.L.’s birth, Father was
incarcerated for violating parole for a federal drug possession charge. The Department
filed its petition for protection, conservatorship, and termination of parental rights of
Mother and Father. Following an adversary hearing, the Department was appointed
temporary managing conservator of M.L. and he was placed with his maternal aunt.
Father maintained monthly contact with the Department while he was
incarcerated. After Father was released from jail in January of 2021, he obtained
employment and began to work the services outlined in his plan of service. He completed
a psychological evaluation, attended ten parenting classes, and maintained stable
housing. Father did not submit to a drug and alcohol evaluation, did not complete
individual counseling, and failed to comply with drug testing as requested by the
Department. M.L. was a year old when Father exercised his first visitation in April of 2021.
Father only visited with M.L. two or three times during the pendency of the case, and he
failed to attend several scheduled visits with M.L.
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The associate judge conducted a bench trial on April 29 and June 16, 2021. At
trial, the Department produced evidence that Mother was awaiting transportation to a
federal facility to begin a twenty-year sentence for distribution of methamphetamine.
Mother testified that she and Father began living together in 2019. According to Mother,
Father knew that she used methamphetamine daily and that she was selling
methamphetamine out of the home they shared. She also claimed that he witnessed her
using methamphetamine after she told him that she was pregnant with M.L.
Father testified that he has five children ranging in age from fifteen years to five
months. Father acknowledged that he has been incarcerated four times since his first
child was born and was incarcerated when his last three children were born. The
evidence showed that Father has a significant criminal history beginning in 2005. His
criminal history includes a conviction for aggravated assault and two convictions for drug
possession. In 2016, Father was sentenced to forty-six months in federal prison due to
his involvement in a criminal enterprise involving methamphetamine. After Father was
paroled in 2019, he lived in a halfway house and met Mother. Father was aware that
Mother was a methamphetamine dealer when he began living with her and they married
a few months later. Father knew that Mother was pregnant when he left her in the fall of
2019. Father tested positive for methamphetamine in November of 2019, and he was
arrested and incarcerated for violating his parole.
The Department presented evidence that Father has a history of
methamphetamine use since 2012, and that he used methamphetamine after he was
released from incarceration in 2015 and 2019. After the termination trial began in April of
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2021, Father was arrested twice. However, Father asserted his Fifth Amendment
privilege and declined to answer any questions concerning his recent arrests or drug use.
The Department also presented evidence that Father had previous involvement
with the Department in 2016, and that his parental rights were terminated in 2017 on
grounds including endangerment. At the time of trial, the mother of his youngest child
was incarcerated on a federal possession charge and Father had supervised visitation
with that child.
At the time of trial, M.L. had been in the care of his maternal aunt and her husband
for more than a year. M.L. is doing well and is bonded with his placement. The maternal
aunt and her husband have a stable home, own a business, and are willing to adopt M.L.
if parental rights are terminated.
The trial court terminated Father’s parental rights to M.L. on the grounds of
endangering conditions, endangerment, previous termination of parental rights to another
child based on endangering conditions or endangerment, and failure to comply with a
court order that established actions necessary to retain custody of the child. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(D), (E), (M), (O).3 The trial court also found that
termination was in the best interest of M.L. See § 161.001(b)(2).
3 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”
4
Law and Analysis
Pursuant to Anders, Father’s court-appointed appellate counsel has filed a brief
certifying that he has diligently searched the record and has concluded that the record
reflects no arguably reversible error that would support an appeal. In re L.J., No. 07-14-
00319-CV, 2015 Tex. App. LEXIS 427, at *2-3 (Tex. App.—Amarillo Jan. 15, 2015, no
pet.) (mem. op.); In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig.
proceeding); Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56
(Tex. App.—Corpus Christi 2003, no pet.) (“[W]hen appointed counsel represents an
indigent client in a parental termination appeal and concludes that there are no non-
frivolous issues for appeal, counsel may file an Anders-type brief”).
Counsel certifies that he has diligently researched the law applicable to the facts
and issues and discusses why, in his professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). By his Anders brief, counsel
concludes that reversible error is not present because sufficient evidence supports
termination under subsections (D), (E), (M), and (O) in the trial court’s order. See In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—
Amarillo 2005, no pet.) (only one predicate finding under section 161.001(b)(1) is
necessary to support termination when there is also a finding that termination is in a child’s
best interest). Counsel has complied with the requirements of Anders by providing a copy
of the brief, motion to withdraw, and appellate record to Father, and notifying him of his
right to file a pro se response if he desired to do so. Kelly v. State, 436 S.W.3d 313, 319-
20 (Tex. Crim. App. 2014); In re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS
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11607, at *2-3 (Tex. App.—Amarillo Nov. 9, 2015) (order) (per curiam). Father has not
filed a response to his counsel’s Anders brief.
Due process requires that termination of parental rights be supported by clear and
convincing evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.)
(citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This standard falls between the civil
preponderance of the evidence standard and the reasonable doubt standard of criminal
proceedings. Id. at 73. Clear and convincing evidence is that “measure or degree of
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.” § 101.007. Reviewing the legal
sufficiency of the evidence supporting parental termination requires us to review “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.” In re J.F.C.,
96 S.W.3d at 266. In a factual sufficiency review, we are to determine whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief about the truth
of the matter on which the movant bore the burden of proof. In re C.H., 89 S.W.3d 17,
28-29 (Tex. 2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no
pet.).
Pursuant to the Texas Supreme Court opinion in In re N.G., we must conduct a
specific review of the trial court’s findings under section 161.001(b)(1)(D) and (E),
because of the potential future consequences to appellant’s parental rights concerning a
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different child. In re N.G., 577 S.W.3d 230, 235-37 (Tex. 2019) (per curiam);4 In re M.M.,
584 S.W.3d 885, 889 (Tex. App.—Amarillo 2019, pet. denied) (mem. op.).
Section 161.001(b)(1)(D) permits termination when clear and convincing evidence
shows that the parent knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional well-being of the
child. See § 161.001(b)(1)(D). Subsection (D) requires a showing that the environment
in which the child was placed posed a danger to the child’s physical or emotional health,
and it permits termination based on a single act or omission by the parent. In re J.A.S.,
No. 07-12-00150-CV, 2012 Tex. App. LEXIS 8087, at *13-14 (Tex. App.—Amarillo Sept.
25, 2012, no pet.) (mem. op.). Subsection (D) concerns the child’s living environment,
rather than the parent’s conduct, though parental conduct may produce an endangering
environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.]
2010, pet. denied). It is not necessary that the child’s living environment directly threaten
the child or that the child be injured, but the parent must at least be aware of the potential
for danger to the child in such an environment and must have disregarded that risk. In re
S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug
4 Subsection (b)(1)(M) permits parental rights to be terminated if the parent has “had his or her
parent-child relationship terminated with respect to another child based on a finding that the parent’s
conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another
state.” In re N.G., 577 S.W.3d at 234 (quoting section 161.001(b)(1)(M) of the Family Code). Because
findings based on subsections (b)(1)(D) or (E) may become “a basis to terminate parent’s rights to other
children,” the Supreme Court reasoned that when a parent presents an appellate issue related to
subsections (b)(1)(D) or (E) and the appellate court does not address the issue on appeal, the appellate
court “eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to
other children.” Id. at 235. According to the Supreme Court, “the parent’s fundamental liberty interest at
stake outweighs the state’s interest in deciding only what is necessary for final disposition of the appeal.”
Id. at 237. “Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent
has presented the issue to the court thus violates the parent’s due process and due course of law rights.”
Id.
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use and criminal activity support a conclusion that the child’s surroundings endanger his
or her physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.). The relevant time frame under this subsection is prior to the
child’s removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.
denied).
Section 161.001(b)(1)(E) permits termination when clear and convincing evidence
shows that the parent has engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the child’s physical or emotional well-being.
See § 161.001(b)(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical or emotional well-being was the direct
result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,
121 S.W.3d at 125. Termination under subsection (E) must be based on more than a
single act or omission. A voluntary, deliberate, and conscious course of conduct by a
parent is required. Id. Thus, while both subsections (D) and (E) focus on endangerment,
they differ regarding the source and proof of endangerment. In re S.M.L., 171 S.W.3d at
477. To support a finding of endangerment, the parent’s conduct does not necessarily
have to be directed at the child, nor is the child required to actually suffer injury. Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
In this case, the trial court heard evidence of Father’s extensive criminal history
and drug use, his prior involvement with the Department, the termination of his parental
rights to another child on endangerment grounds, and his association with people known
to be involved with the distribution or use of illegal drugs. A parent’s mistreatment of other
children may be considered in deciding whether that parent engaged in a course of
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conduct that endangered the physical or emotional well-being of a child. Cervantes-
Peterson v. Texas Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (en banc). In addition, evidence of a parent’s criminal
history, convictions, and resulting imprisonment may establish an endangering course of
conduct. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st. Dist.] 2019, no pet.);
In re V.A., No. 07-17-00413-CV, 2018 Tex. App. LEXIS 1521, at *10 (Tex. App.—Amarillo
Feb. 27, 2018, no pet.) (mem. op.) (a parent’s continued use of drugs demonstrates an
inability to provide for the child’s emotional and physical needs and to provide a stable
environment); In re J.S.B., Nos. 01-17-00480-CV, 01-17-00481-CV, 01-17-00484-CV,
2017 Tex. App LEXIS 11930, at *42-43 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017,
pet. denied.) (mem. op.) (a parent’s criminal history is relevant in analyzing the present
and future emotional and physical danger to a child and whether a parent is capable of
providing a safe and stable home for his child); In re K.W., No. 02-09-00041-CV, 2010
Tex. App. LEXIS 291, at *18-23 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.) (mem.
op.) (mother’s drug use supported endangerment findings against father under predicate
grounds (D) and (E)).
Upon his release from incarceration, Father partially complied with his service
plan, but he did not complete all of his services. Notably, Father failed to comply with the
service plan requirements that he obtain a substance abuse assessment and submit to
random drug testing. A parent’s refusal to submit to drug testing may be treated as if he
had tested positive for drugs. In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston
[14th Dist.] 2009, no pet.).
We conclude that the trial court’s findings with respect to (D) and (E) are
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supported by legally and factually sufficient evidence.
The order of termination also lists subsection (M) as a predicate ground for
termination. The prior termination of a parent’s rights as to another child on child-
endangerment grounds is a sufficient statutory predicate ground for the termination of the
parent’s rights as to another child. See 161.001(b)(1)(M). Our examination of the record
reveals that the Department did not plead subsection (M) as a ground for termination and
Father’s trial counsel objected to the trial court considering subsection (M) as a ground
for termination. Because a petition for termination is required to include the statutory
grounds alleged for termination, we reform the trial court’s order of termination to delete
subsection (M) as a predicate ground for termination. See § 161.101(a).
As in a criminal case, we have independently examined the entire record to
determine whether there is a non-frivolous issue 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). Our independent review supports
termination under subsection (D) and (E). See In re N.G., 577 S.W.3d at 234-35. Based
on this record, we conclude that a reasonable factfinder could have formed a firm belief or
conviction that grounds for termination existed and that termination of Father’s parental
rights was in the best interest of M.L. See § 161.001(b)(1), (2). After reviewing the record
and the Anders brief, we agree with counsel that there are no plausible grounds for
reversal.
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Conclusion
We affirm the trial court’s order terminating Father’s parental rights to M.L. as
reformed.5
Judy C. Parker
Justice
5We call counsel’s attention to the continuing duty of representation through the exhaustion of
proceedings, which may include the filing of a petition for review. Counsel has filed a motion to withdraw,
on which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).
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