in the Interest of A.M. and A.M., Children ( 2018 )

Opinion filed April 5, 2018
In The
Eleventh Court of Appeals
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No. 11-17-00268-CV
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IN THE INTEREST OF A.M. AND A.M., CHILDREN
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. CV1644120
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of A.M. and A.M. Both parents filed a notice of
appeal. We dismiss in part and affirm in part.
Mother’s Appeal
The mother’s court-appointed counsel has filed a motion to withdraw and a
supporting brief in which he professionally and conscientiously examines the record
and applicable law and concludes that the appeal is frivolous. The brief meets the
requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim.
App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).
In light of a holding by the Texas Supreme Court, however, an Anders motion to
withdraw “may be premature” if filed in the court of appeals under the circumstances
presented in this case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). The court in
P.M. stated that “appointed counsel’s obligations can be satisfied by filing a petition
for review that satisfies the standards for an Anders brief.” Id. at 27–28.
The mother’s counsel provided her with a copy of the brief, the motion to
withdraw, and an explanatory letter. Counsel also informed the mother of her right
to review the record and file a pro se response to counsel’s brief. In compliance with
Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014), counsel provided
the mother with a motion for pro se access to the appellate record. Counsel also
notified the mother of her right to pursue a petition for review in the Texas Supreme
Court. We conclude that the mother’s counsel has satisfied his duties under Anders,
Schulman, and Kelly.
We note that the mother has not filed a pro se response to counsel’s Anders
brief. Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record in this cause, and we agree that the mother’s
appeal is without merit and should be dismissed. See Schulman, 252 S.W.3d at 409.
However, in light of P.M., we deny the motion to withdraw that was filed by the
mother’s court-appointed counsel. See P.M., 520 S.W.3d at 27.
Counsel’s motion to withdraw is denied, and the appeal is dismissed as to the
mother only.
Father’s Appeal
In two issues on appeal, the father challenges the sufficiency of the evidence
to support the trial court’s findings in support of the termination of his parental rights.
Termination of parental rights must be supported by clear and convincing evidence.
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TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine on appeal if
the evidence is legally sufficient in a parental termination case, we review all of the
evidence in the light most favorable to the finding and determine whether a rational
trier of fact could have formed a firm belief or conviction that its finding was true.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is
factually sufficient, we give due deference to the finding and determine whether, on
the entire record, a factfinder could reasonably form a firm belief or conviction about
the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002). To terminate parental rights, it must be shown by clear and convincing
evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(U) and that termination is in the best interest of the child.
FAM. § 161.001(b).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
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In this case, the trial court found that the father had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found that the father had knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered the
children’s physical or emotional well-being; that the father had engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being; that the father had
constructively abandoned the children; and that the father had failed to comply with
the provisions of a court order that specifically established the actions necessary for
him to obtain the return of the children, who had been in the managing
conservatorship of the Department of Family and Protective Services for not less
than nine months as a result of the children’s removal from the parents for abuse or
neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of the father’s parental rights would be in the best interest of the children.
In his first issue, the father challenges the legal and factual sufficiency of the
evidence with respect to the trial court’s findings under subsections (D), (E), (N),
and (O). We need only find that the evidence is legally and factually sufficient to
support one of these four findings.
The record shows that the parents had two children: A.M. (a girl) and A.M. (a
boy). At the time of the final hearing, the daughter was five years old and the son
was almost four years old. When the daughter was approximately three years old,
the father “stole” her and went to Midland to live. For about a year, he did not tell
his parents or the children’s mother where he and the daughter were. While living
in Midland with his daughter, the father exposed the daughter to a life based on his
“poor choices,” which included the father’s methamphetamine use and a lack of
food, running water, and electricity in the home. The father was eventually arrested
in Midland, and the daughter was returned to the mother. However, because of
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allegations of drug use and drug sales in the house where the children resided with
the mother and also because the mother tested positive for methamphetamine and
marihuana, the Department instituted family based safety services but, ultimately,
removed both children from the parents.
The last time that the father saw his son, the son was six months old. The
father did not call or visit the children while this case was pending—not even when
he was out of jail and the children were living with the father’s parents. The father
did nothing to comply with the court-ordered family service plan. The father, like
the mother, has a methamphetamine addiction. The father admitted to the family
based safety services worker that he and the mother had sold drugs out of their home
when they lived together. The children’s paternal grandmother testified about the
father’s poor choices and drug use. During the pendency of this case, the father was
incarcerated for four to six months. At the time of the final hearing, he was in a
court-ordered residential treatment center, with a projected release date six to nine
months away.
The Department’s goal for the children was termination of the parents’ rights
and adoption by the foster parents. The paternal grandmother testified that it would
be in the children’s best interest to terminate the father’s parental rights. The
conservatorship caseworker and the foster mother also believed that it would be in
the children’s best interest to terminate the father’s parental rights. By all accounts,
the children had bonded with the foster parents, were happy with them, and had a
wonderful relationship with them. The paternal grandmother testified that the foster
parents were providing an excellent home for the children and that they were meeting
her grandson’s special medical needs.
The record contains clear and convincing evidence to support the trial court’s
findings under subsections (D), (E), (N), and (O) of Section 161.001(b)(1). The
evidence was uncontroverted that the father failed to comply with the provisions of
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his court-ordered service plan, that he exposed his daughter to deplorable living
conditions, that he did not maintain any contact with the children while this case was
pending, that he could not provide a safe environment for the children, and that he
had engaged in conduct that endangered his children’s physical or emotional well-
being. We note that, under subsection (E), the offending conduct does not need to
be directed at the child, nor does the child actually have to suffer an injury. In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We overrule the father’s first issue.
In his second issue, the father challenges the sufficiency of the evidence to
support the trial court’s finding that termination of his parental rights was in the
children’s best interest. Based upon the Holley factors and the evidence in the
record, as set forth above, we cannot hold that the trial court’s best interest finding
is not supported by clear and convincing evidence. See Holley, 544 S.W.2d at 371–
72. The trial court could reasonably have formed a firm belief or conviction that it
would be in each child’s best interest for the father’s parental rights to be terminated.
We hold that the evidence is both legally and factually sufficient to support the trial
court’s best interest finding. The father’s second issue is overruled.
This Court’s Ruling
We dismiss this appeal as to the mother, and we affirm the trial court’s order
of termination.
PER CURIAM
April 5, 2018
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.1
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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