in the Interest of M. T. & P. T., Children ( 2021 )

NO. 12-21-00118-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 420TH
M.T. & P.T., § JUDICIAL DISTRICT COURT
CHILDREN § NACOGDOCHES COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
J.T. and T.T. appeal the termination of their parental rights. J.T.’s and T.T.’s counsel
filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
J.T. is the father and T.T. is the mother of M.T. and P.T. On July 29, 2020, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of M.T. and P.T., for conservatorship, and for termination of J.T.’s and T.T.’s parental
rights. The Department was appointed temporary managing conservator of the children, and the
parents were granted limited access to, and possession of, the children.
At trial, neither parent appeared. The trial judge noted that on April 16, 2021, he inquired
about appointing an attorney for the parents. The parents requested an appointed attorney, but
neither parent contacted the court to obtain an indigency application or completed an application.
Macee Skillern, the Department’s caseworker, testified that the parents were in court on April
16, when the final hearing date was announced. Further, she stated that she sent J.T. and T.T.
notice of the trial date and the information for them to participate by Zoom, and contacted the
parents two days before trial to remind them of the hearing. According to Skillern, the parents
lived approximately one and one-half miles from the courthouse, within walking distance and
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easy access to public transportation.
Skillern testified that the Department received a referral of neglectful supervision of both
children and of substance abuse by both parents. During interviews, both children reported that
their parents used a “green leafy” substance in their presence. M.T. stated that he traveled with
J.T. to a home where his father obtained a baggie of a “white powdery” substance. P.T. also
made an outcry of domestic violence where she witnessed her father hitting her mother and
pulling her mother’s hair. Skillern stated that she had multiple conversations with the children
regarding witnessing violence between their parents. M.T. remembered an incident in which
P.T. was playing outside when he saw his father hitting his mother. M.T. went outside, brought
P.T. back into the home, and hid the children in a closet to try to keep them safe. During that
incident, P.T. stated that she saw her father pinning her mother against a wall by her throat and
lifting her mother off the ground in a choking manner. M.T. also stated that he was hit by his
father when he tried to intervene during an altercation between the parents. The parents both
denied the incidents happened.
Skillern believed that the parents’ drug use in the children’s presence and the children’s
exposure to domestic violence were conditions or surroundings that endangered the children’s
physical or emotional well being. Further, Skillern believed that in leaving the children in these
circumstances, J.T. and T.T. engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangered the children’s physical or emotional well being.
Skillern testified that a family plan of service was generated for both parents, filed with
the court, and made an order of the trial court. But neither parent completed the service plan’s
requirement that they build a sober support group that reinforced a sober lifestyle. She stated
that the parents reported that they relied heavily on J.T.’s mother for their support group.
However, Skillern stated that J.T.’s mother allegedly used illegal substances in the children’s
home.
As part of their required service plan, the parents were obligated to complete a drug
assessment with the Alcohol and Drug Abuse Council (ADAC) and follow all recommendations.
Skillern stated that T.T. completed an initial ADAC drug assessment and was referred to
outpatient services. After receiving outpatient services, Skillern stated that T.T. again tested
positive for methamphetamine. After Skillern asked T.T. to complete a second ADAC
assessment, the assessment recommended T.T. complete an inpatient program. T.T. began
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receiving services in an inpatient program on June 21, 2021, and stopped receiving services on
June 29. Skillern stated that T.T. was unsuccessfully discharged from the inpatient program
because she did not want to complete the program. According to Skillern, J.T. completed an
ADAC assessment and was referred for inpatient services. However, as recently as June 2021,
J.T. told Skillern and the CASA volunteer that he did not believe he needed inpatient services
and was not going to complete such services. Skillern stated that J.T. reported that he needed to
take care of his ill mother.
Further, the service plan required both parents to submit to random drug testing. Skillern
stated that neither parent tested regularly when requested by the Department even though she
explained that failure to test when requested counted as a positive drug test. J.T. failed to test
when requested over twenty times, and T.T. failed to test when requested over fifteen times. On
April 16, 2021, both parents were ordered to submit to drug testing after a court hearing but did
not appear as ordered. Skillern testified that on April 20, J.T.’s hair follicle test was positive for
methamphetamine metabolite. On May 20, T.T.’s urinalysis was positive for marijuana and
methamphetamine. According to Skillern, J.T. and T.T. failed to complete a court ordered drug
substance abuse program, and both parents used controlled substances after that date and in a
manner that endangered the health or safety of their children.
Skillern testified that both parents were required by their service plan to participate in
counseling to learn the signs of domestic violence and its impact on children. They were
referred to Crossover Counseling but failed to participate in domestic violence counseling.
Skillern stated that she spoke to T.T. alone regarding the domestic violence in the home and
offered to assist her if she needed help to leave a dangerous situation. However, T.T. told
Skillern that she did not believe she was in any danger or in a domestic violence relationship.
J.T. was required to complete a Batterer’s Intervention Prevention Program (BIPP) as part of his
service plan to address domestic violence and its affect on the children’s development. He failed
to do so.
Both parents were required to complete a psychosocial assessment as part of the service
plan and to follow all recommendations. Skillern stated that neither parent completed a
psychosocial assessment even though the Department referred them to a psychologist’s office
three separate times. They scheduled a fourth appointment at their own expense but failed to
appear. According to Skillern, J.T. and T.T. did not successfully complete any of the services on
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their service plan.
Skillern testified that the children were removed once before, in 2015, based on M.T.
obtaining a shotgun in the house and shooting it twice. That investigation found that the parents
were under the influence of methamphetamine. According to Skillern, M.T. and P.T. do not
believe that their parents would be able to keep them safe, and M.T. expressed fear of entering
foster care again. She stated that neither child wanted to return home, particularly M.T., or be
with relatives who they do not believe can keep them safe. Both children have told their parents
that they did not feel comfortable returning home nor is either child comfortable participating in
Zoom calls with their parents. Skillern testified that both children would like to stay in foster
care until they could find a family that would offer them a safe and appropriate home. The
children have a strong bond even though they are in separate foster homes due to M.T.’s
behavioral problems.
Skillern believed that it was in the children’s best interest for J.T.’s and T.T.’s parental
rights to be terminated. She stated that after almost one year, the parents failed to show that they
are protective towards the children and failed to address the issues that created the situation
leading to the Department’s involvement. The CASA volunteer and the children’s attorney ad
litem both recommended that J.T.’s and T.T.’s parental rights be terminated.
At the conclusion of a bench trial, the trial court found by clear and convincing evidence
that J.T. engaged in one or more of the acts or omissions necessary to support termination of his
parental rights under subsections (D), (E), (O), and (P) of Texas Family Code Section
161.001(b)(1). The trial court also found by clear and convincing evidence that termination of
the parent-child relationship between J.T., M.T., and P.T. is in the children’s best interest. Based
on these findings, the trial court ordered that the parent-child relationship between J.T., M.T.,
and P.T. be terminated.
The trial court also found by clear and convincing evidence that T.T. engaged in one or
more of the acts or omissions necessary to support termination of her parental rights under
subsections (D), (E), (O), and (P) of Section 161.001(b)(1). The trial court found by clear and
convincing evidence that termination of the parent-child relationship between T.T., M.T., and
P.T. is in the children’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between T.T., M.T., and P.T. be terminated. This appeal followed.
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ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
J.T.’s and T.T.’s counsel filed a brief in compliance with Anders, stating that counsel
diligently reviewed the appellate record and is of the opinion that the record reflects no
reversible error and that there is no error upon which an appeal can be predicated. This court
previously held that Anders procedures apply in parental rights termination cases when the
Department moved for termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler
2001, no pet.). In compliance with Anders, counsel’s brief presents a professional evaluation of
the record demonstrating why there are no reversible grounds on appeal, and referencing any
grounds that might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400;
Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).
In our duties as a reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is frivolous. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We
carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that
might arguably support the appeal. 1 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs.,
160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied).
DISPOSITION
We agree with J.T.’s and T.T.’s counsel that the appeal is wholly frivolous. Counsel for
J.T. and T.T. has moved to withdraw. In In re P.M., the Texas Supreme Court held that the right
to counsel in suits seeking the termination of parental rights extends to “all proceedings in [the
Texas Supreme Court], including the filing of a petition for review.” 520 S.W.3d 24, 27 (Tex.
2016). Accordingly, counsel’s obligation to J.T. and T.T. has not yet been discharged. See id. If
J.T. and T.T., after consulting with counsel, desire to file a petition for review, counsel should
timely file with the Texas Supreme Court “a petition for review that satisfies the standards for an
Anders brief.” See id. at 27-28; see also A.C. v. Tex. Dep’t of Family & Protective Servs., No.
03-16-00543-CV, 2016 WL 5874880, at *1 n.2 (Tex. App.—Austin Oct. 5, 2016, no pet.) (mem.
op.). Accordingly, we deny counsel’s motion to withdraw and we affirm the trial court’s
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In compliance with Kelly v. State, counsel for J.T. and T.T. certified that he provided them with a copy of
his brief, informed them of their right to file a pro se response, and took concrete measures to facilitate their review
of the appellate record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). J.T. and T.T. were given time to file their
own brief, but the time for filing such brief has expired and no pro se brief has been filed.
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judgment. See TEX. R. APP. P. 43.2.
Opinion delivered December 21, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 21, 2021
NO. 12-21-00118-CV
IN THE INTEREST OF M.T. & P.T., CHILDREN
Appeal from the 420th District Court
of Nacogdoches County, Texas (Tr.Ct.No. C2035889)
THIS CAUSE came to be heard on the appellate record and brief filed herein,
and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and, Neeley, J.
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