S. E. and K. D. v. Texas Department of Family and Protective Services ( 2022 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00273-CV
S. E. and K. D., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY
NO. C200139CPS, THE HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants K.D. (Mother) and S.E. (Father) challenge a final order terminating
their respective parental rights to a single child, “Jimmy,” aged six years at the time of final
judgment. 1 Mother’s rights were terminated under predicates (D) (endangerment), (E) (knowing
exposure of child to circumstances resulting in endangerment), and (O) (failure to comply with
court-ordered service plan). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). She contends the
evidence is legally insufficient to support the court’s finding that termination is in Jimmy’s best
interest as required by Texas Family Code subsection 161.001(b)(2). Father’s rights were also
terminated under predicates (D), (E), and (O), but Father’s court-appointed attorney has filed a
motion to withdraw in which he argues that the record reveals only frivolous bases for appeal.
See Anders v. California, 386 U.S. 738, 744 (1967) (stating that court-appointed counsel who
1 See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
believes appeal is wholly frivolous should file motion to withdraw “accompanied by a brief
referring to anything in the record that might arguably support the appeal”); In re P.M.,
520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam) (approving use of Anders procedure in
appeals from termination of parental rights). We will deny the motion and affirm the decree of
termination with respect to both parents.
BACKGROUND
According to the affidavit filed with its original petition for protection of a child,
the Department opened an investigation into Mother and Father upon referral by law
enforcement. On September 25, 2020, the San Angelo Police Department reported that an
officer had found Mother and Jimmy asleep in a vehicle parked in front of an apartment complex
and then had arrested and jailed Mother for outstanding warrants. 2 The referring officer
indicated that Mother had been “living from hotel to hotel” and that Father was living in a
halfway house. That officer further stated that Mother conceded a history of marijuana and
methamphetamine abuse. After finding no one to pick up Jimmy, the police department called
the Department. Although Mother and Father independently identified multiple possible
caregivers for Jimmy, the Department ruled out all those individuals after investigation indicated
that all had a history of Department involvement, criminal activity, or both. The Department
placed Jimmy in a foster home, where he remained through trial.
According to this removal affidavit, additional investigation revealed Mother’s
fifteen-year history of Department involvement with respect to Jimmy and three siblings. Prior
investigations resulted in findings of physical abuse of two siblings and neglectful supervision of
2 The affidavit did not specify the nature of the outstanding warrants.
2
a third. One of these children was ultimately adopted by an unrelated party when Mother and
Father failed to cooperate with the Department; at the time of Jimmy’s removal, the other two
children were subject to joint-conservatorship orders with third parties not subjects of this suit.
Mother confirmed that the three siblings were “no longer in her care.”
Also according to the affidavit, further investigation revealed extensive criminal
histories for both Mother and Father, with both histories dating back to at least 1998. Mother’s
history includes convictions for misdemeanor theft, misdemeanor failure to identify, state jail
felony possession of a controlled substance, state jail felony manufacture and delivery of a
controlled substance, “held” charges for driving while intoxicated; and pending charges for
misdemeanor possession of a controlled substance. 3 Father’s history includes a similar record of
misdemeanor, state jail felony, and felony charges and convictions, with the most recent being a
conviction for unlawful possession of a firearm in 2018.
The case was tried to an associate judge over two days in March and April of
2022. Testifying at trial were Department investigator Brittany Medrano, Department
caseworker Kymberlie Malatek, foster mother “Brenda,” Mother, Father, Paternal Grandmother;
and guardian ad litem Vicki Keck. Exhibits admitted included the trial court’s temporary orders,
Mother’s and Father’s respective family service plans, seven criminal judgments and probation
revocations against Mother, and nine criminal judgments and probation revocations against
Father. The associate judge also agreed to take judicial notice of the Department’s home study
of Paternal Grandmother’s household.
3 It is unclear from this limited record on appeal what the Department meant by
describing certain charges as “held.”
3
Medrano testified first, primarily corroborating the substance of the removal
affidavit. She testified that she received a phone call at or around 4:00 a.m. to respond to a scene
where a mother was being detained and where no one could be reached to come to pick up the
child. Malatek responded to find the arresting officer with Mother and Jimmy. She recalled that
Jimmy was still asleep in the back seat and that the car did not have a child’s booster seat. She
testified that upon contact, Father stated that he “had concerns” about Mother caring for Jimmy.
She also testified that Mother “appeared to be” under the influence of an unknown substance at
the time of that encounter. She testified that because no appropriate family or fictive kin could
be identified for placement, the Department placed Jimmy with Brenda and her husband.
Malatek testified that Mother was not “currently” testing for drug use at the time
of removal or at that time of trial and that Mother had never conceded drug use to her. She
further testified that Mother was not working and had not had a “consistent place of residence
throughout this case.” Malatek testified that Father had tested positive for methamphetamines a
year earlier and that he declined testing two months before trial, stating that he was
“using” without specifying the substance or substances used. On the subject of visitation,
Malatek testified:
There have been visits that appear very appropriate, with both the child and the
mother engaging with one another, laughing, playing various games: board
games, phone games, discussing school, talking about some of his interests, about
dinosaurs and different things of that nature. She’s provided activities like flying
a kite. They would go outside, and he would fly the kite.
But there have also been other visits where [Mother] had been reminded to refrain
from false promises, discussing the matters in the case. And there was a visit that
ended early due to some of this as well, and I believe that was a virtual visit,
where [Mother] was reminded to not discuss the matters of the case, and then
communication continued to happen. So, the visit was ended . . . .
4
When asked to clarify what she meant by “false promises,” Malatek testified that she was
referring to Mother’s reassurances that Jimmy would return home “soon.” She also testified that
Jimmy “miss[ed]” his mother, that Mother and Jimmy became emotional during “a few visits,”
and that Jimmy was “upset” when Mother would cancel scheduled visitation.
With respect to Father, Malatek testified that to her knowledge he was gainfully
employed but did not have stable housing and that most of the persons he would likely stay with
had prior Department involvement or criminal history. Her descriptions of visitation between
Father and Jimmy echoed her descriptions of Mother’s visitation—she testified that they had
generally gone well, with both Father and Jimmy engaged, but that she had to repeatedly remind
Father not to discuss the case with or make promises to Jimmy. She testified that Father became
“angry” when reminded about the bounds of conversation with Jimmy and objected to Jimmy
referring to Brenda and her husband as “mom” and “dad.”
Malatek concluded by testifying of Mother’s and Father’s respective histories
with law enforcement and the Department. She also explained why the Department ruled out
each of the individuals Mother and Father named as possible placements. Speaking of Paternal
Grandmother, Malatek testified that the interview and home study revealed multiple “concerns,”
including concerns regarding her health, her income, her ability to care for Jimmy, and her
history of interacting with individuals with criminal records.
Brenda testified that Jimmy had become closely bonded to her family—in
particular to her own son that is close in age to Jimmy’s—describing Jimmy as “very attached”
to their son to the point that Jimmy could not sleep in a room without him. She testified that she
and her husband plan to adopt Jimmy if parental rights are terminated. She explained that,
because of the pandemic, she could hear several of Jimmy’s virtual visits with Mother; Brenda
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described some of these visitations as “very ugly,” with Mother arguing with Department staff or
with Brenda herself. She testified that Jimmy was “afraid of” Paternal Grandmother due to what
Brenda understood to be an “attempted kidnapping.” Finally, she testified that Jimmy had
initially shown aggressive tendencies toward some members of her family, but that the issue had
resolved through family counseling.
Mother testified that her attempts to establish the stable household required by the
Department had been hindered by a recent motorcycle accident, which she said resulted in
multiple broken ribs, a fractured clavicle, and a blow to the head. She testified that she was
further hindered by her intolerance to summer heat and by difficulties maintaining connectivity
when everyone communicates “by phone” and “Zoom everything.” Mother testified that she had
obtained stable housing via an arrangement with two hotels in San Angelo and that if Jimmy
were returned to her, they would live at one of these hotels together. She conceded that she had
been living at these hotels “not long.” Mother testified that she had multiple sources of income,
although it is unclear from the record what those sources were, and that she had an income of
$800 to $1200 per month. On cross-examination, she conceded that she had “already quit” one
job and had not yet started another. She testified that she had not submitted to regular drug
testing during the pendency of the case but that she would soon live “two blocks” from a testing
facility and would “get on top of it.” Like Brenda, Mother testified that Paternal Grandmother
would not be an appropriate placement because Jimmy was still afraid of her due to a
“kidnapping incident.”
In closing her testimony, Mother stated:
I am my kid’s mom, and I want a chance to be my son’s mom . . . . I may not
have been doing my best, but I’ve been dealing with what I had, and I don’t feel
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like I was a bad mom. I just want another six months to prove to everybody that I
can do this.
Father testified that he was in a halfway house at the initiation of this case but that
he had obtained stable housing shortly thereafter. He maintained that his relationship with
Jimmy was “awesome” and that Jimmy should have been placed with him as soon as Father
established stable housing following his stay at the halfway house. When asked to comment on
his long history of substance abuse, Father responded, “Just because somebody has a past doesn’t
mean that they can’t have a better future.” He explained his failure to submit to court-ordered
drug testing as a result of COVID and due to his “lack of trust” of the testing process. Father
testified that he had a “very strong” support system in place. As an example, he described how
his family and friends had helped plan a birthday party for Jimmy during a visitation in
December of 2021. Father further testified that reunification of Father and Jimmy would be in
Jimmy’s best interest because, as Jimmy’s father, “that’s [his] world right there.” He suggested,
in the alternative, that Paternal Grandmother would be an appropriate long-term placement.
Paternal Grandmother testified that Jimmy had lived with her for a year and a half
during 2018 and 2019 and that she had managed his care during that stay. She denied the
allegations of any attempted kidnapping, explaining that she just “picked him up from the
daycare” and that Mother came to Paternal Grandmother’s home and recovered Jimmy “through
a window.” Paternal Grandmother conceded that she had no possessory rights in place at the
time and that she had not obtained permission from Mother to pick Jimmy up from day care or to
have him in her home. She conceded her health issues but testified that she was “better”; she
also conceded her criminal history but testified that it had been “15, 20 years ago.” Paternal
Grandmother denied any alcohol or substance abuse but conceded that Father was living with her
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and with Jimmy “as a family” when Father was charged with misdemeanor possession of a
controlled substance and felony possession of a firearm. She also conceded that a previous live-
in boyfriend had sexually assaulted one of her grandchildren. She testified that she had not had a
valid driver’s license since 2003 and that she had been cited or arrested for driving without a
license “three or four” times.
Keck testified that she had served as CASA volunteer throughout Jimmy’s case.
In her opinion, Jimmy was “thriving” in his placement with Brenda’s family and she would have
no “confidence” in Paternal Grandmother’s household as a placement for Jimmy, as she doubted
that Paternal Grandmother could “protect him or provide for him.” Keck also expressed concern
that Paternal Grandmother planned to rely on family members for financial support.
After trial, the associate judge found that the Department had satisfied its burdens
under statutory predicates (D) (endangerment), (E) (knowing exposure of child to circumstances
resulting in endangerment), and (O) (failure to comply with court-ordered service plan). See
Tex. Fam. Code § 161.001(b)(1)(D), (E) (O). The associate judge also found that termination of
both parents’ rights is in Jimmy’s best interest. See id. § (b)(2). Mother and Father requested de
novo trial; the district court adopted the associate judge’s findings and ordered terminations
under the same statutory predicates. Both parents filed timely appeal.
DISCUSSION—MOTHER
Mother challenges the legal and factual sufficiency to support the trial court’s
determination that termination of her rights is in Jimmy’s best interest. 4 A trial court may order
4 It is not clear from Mother’s brief whether she challenges only the legal sufficiency or
both the legal and factual sufficiency of the evidence to support the best-interest finding. As
explained herein, on this record, we would reject either challenge.
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termination of the parent-child relationship only “if clear and convincing evidence supports that
a parent engaged in one or more of the [statutorily] enumerated grounds for termination and that
termination is in the best interest of the child.” In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per
curiam) (citing Tex. Fam. Code § 161.001(b)); see also A.C. v. Texas Dep’t of Fam. & Protective
Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin 2019, pet. denied). “Proceedings to terminate
the parent-child relationship implicate rights of constitutional magnitude that qualify for
heightened judicial protection.” In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). Parental rights
have been characterized as “essential,” “a basic civil right of man,” and “far more precious than
property rights.” See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois,
405 U.S. 645, 651 (1972)). They are “perhaps the oldest of the fundamental liberty interests”
protected by the United States Constitution. See Troxel v. Granville, 530 U.S. 57, 65 (2000);
E.E. v. Texas Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 396 (Tex. App.—Austin 2020,
no pet.). “When the State initiates a parental[-]rights termination proceeding, it seeks not merely
to infringe that fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745,
759 (1982). “Consequently, termination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the parent.” Holick,
685 S.W.2d at 20. “Because termination of parental rights ‘is complete, final, irrevocable and
divests for all time’ the natural and legal rights between parent and child, a court cannot
involuntarily sever that relationship” in absence of “evidence sufficient to ‘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.’” A.C., 560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007 and Holick,
685 S.W.2d at 20). “This heightened proof standard carries the weight and gravity due process
requires to protect the fundamental rights at stake.” Id.
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“A correspondingly searching standard of appellate review is an essential
procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent
to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally
sufficient if, viewing all the evidence in the light most favorable to the fact-finding and
considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or
conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires
weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”
Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence
is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.
“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 was true.” Id.
Evidence that is factually sufficient to support a trial court’s finding necessarily satisfies the
legal-sufficiency standard. 5
5 “Evidence that is factually sufficient to support a finding is necessarily legally
sufficient to do so: in conducting legal-sufficiency analysis, the reviewing court employs a
standard more favorable to the disputed finding and examines a subset of the evidence that is less
likely to controvert that finding.” S.B. v. Texas Dep’t of Fam. & Protective Servs., ___ S.W.3d
____, ____, No. 03-22-00156-CV, 2022 WL 4242538, at *2 n.2 (Tex. App.—Austin
Sept. 15, 2022, no pet. h.); see also, e.g., K.D. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00116-CV, 2020 WL 4462320, at *4 (Tex. App.—Austin July 15, 2020, pet. denied)
(mem. op.) (“Evidence that is factually sufficient to support a trial court’s finding necessarily
satisfies the legal-sufficiency standard.”); In re A.S., No. 02-16-00076-CV, 2016 WL 3364838,
at *7 (Tex. App.—Fort Worth June 16, 2016, no pet.) (mem. op.) (“If the evidence is factually
sufficient, then it is necessarily legally sufficient as well.”); In re M.V.G., 440 S.W.3d 54, 60
(Tex. App.—Waco 2010, no pet.) (“[B]ecause the evidence is factually sufficient, it is
necessarily legally sufficient.” (citing In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo
2003, no pet.))).
10
“[T]here is a strong presumption that the best interest of a child is served by
keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). “And because of
the strong presumption in favor of maintaining the parent-child relationship and the due process
implications of terminating a parent’s rights to [a] minor child without clear and convincing
evidence, ‘the best interest standard does not permit termination merely because a child might be
better off living elsewhere.’” In re D.L.W.W., 617 S.W.3d 64, 81 (Tex. App.—Houston [1st
Dist.] 2020, no pet.) (quoting In re J.G.S., 574 S.W.3d 101, 121–22 (Tex. App.—Houston [1st
Dist.] 2019, pet. denied)). “Moreover, termination is not warranted ‘without the most solid and
substantial reasons.’” Id. (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). “In
parental-termination proceedings, [the Department’s] burden is not simply to prove that a parent
should not have custody of [the] child; [the Department] must meet the heightened burden to
prove, by clear and convincing evidence, that the parent should no longer have any relationship
with the child whatsoever.” Id. (citing In re K.N.J., 583 S.W.3d 813, 827 (Tex. App.—San
Antonio 2019, no pet.)).
In evaluating best interest, we consider the factors set forth in Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976), which include the child’s wishes, the child’s emotional
and physical needs now and in the future, any emotional or physical danger to the child now and
in the future, the parenting abilities of any parties seeking access to the child, programs available
to help those parties, plans for the child, the stability of any proposed placement, any evidence
that the parent-child relationship is improper, and any excuses for the parent’s conduct.
See A.C., 560 S.W.3d at 631; In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012); A.S. v. Texas Dep’t of Fam. & Protective Servs.,
394 S.W.3d 703, 714 (Tex. App.—El Paso 2012, no pet.). It is the burden of the party seeking
11
termination to establish that termination is in the child’s best interest. See In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). The set of factors is not exhaustive, and no one factor is
necessarily dispositive of the question; but in some instances, evidence of a single factor may
suffice to support the best-interest finding. See Holley, 544 S.W.2d at 371–72; In re A.B.,
269 S.W.3d 120, 126 (Tex. App.—El Paso 2008, no pet.).
We begin with Jimmy’s wishes. Malatek testified that Jimmy missed his mother
and enjoyed visitation with her. She later testified that he was bonded to both Mother and
Father. Mother testified that she wanted a chance to maintain her relationship with Jimmy. But
“while bonding is some evidence of a child’s wishes, it is not alone determinative of
the question.” C.C. v. Texas Dep’t of Fam. & Protective Servs., ___ S.W.3d ___, ___,
No. 03-21-00617-CV, 2022 WL 1611952, at *9 (Tex. App.—Austin May 20, 2022, no pet.); see
also In re M.A.M.S., No. 02-13-00168-CV, 2013 WL 5658253, at *8 (Tex. App.—Fort Worth
Oct. 17, 2013, pet. denied) (mem. op.) (terminating notwithstanding that “mother and her
children loved each other and had a strong bond”); E.F. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-11-00325-CV, 2011 WL 6938496, at *3 (Tex. App.—Austin Dec. 30, 2011, no
pet.) (mem. op.) (explaining that courts may “consider their bond” as some evidence of child’s
wishes). Moreover, Brenda testified that Jimmy had become closely bonded to her entire family,
including Brenda, her husband, and their other children, and that he would refer to these foster
family members as “mom,” “dad,” “sister,” and “brother.”
Turning to Jimmy’s emotional and physical needs and any emotional or physical
risks now and in the future, the Department’s status reports indicate that Jimmy was clean and in
generally good health at the time of removal. However, it is well settled that stability and
permanence are the paramount considerations in evaluating the needs of a child. See In re J.D.,
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436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Rios v. Texas Dep’t of
Fam. & Protective Servs., No. 03-11-00565-CV, 2012 WL 2989237, at *9 (Tex. App.—Austin
July 11, 2012, no pet.) (mem. op.). In this case, Mother could not identify with any specificity a
plan for a stable home with adequate income. She testified that she had arranged to stay at one
or more hotels as a source of long-term housing but never described that arrangement and
testified that she has only been staying at one of the hotels a short time. She offered vague
testimony that she would have adequate income to support Jimmy but also testified that she had
quit one job and had yet to start another. Perhaps most importantly, the courts recognize that
criminal activity and a history of substance abuse subject a child to instability by “expos[ing] the
child to the possibility that the parent may be impaired or imprisoned.” D.H. v. Texas Dep’t of
Fam. & Protective Servs., ___ S.W.3d ___, ___, No. 03-21-00255-CV, 2021 WL 5098308, at *3
(Tex. App.—Austin Nov. 3, 2021, no pet.) (citing In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009)). There is an undisputed history of criminal activity and chronic substance abuse here.
With respect to the parenting abilities of any parties and evidence of any improper
parent-child relationship, a history of Department involvement with the family and evidence of
neglect of other siblings is some evidence of poor parenting ability. See C.H., 89 S.W.3d at 27
(holding relevant parent’s history of child neglect); In re E.A.F., 424 S.W.3d 742, 751 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (“A parent’s past behavior is indicative of the
quality of future care that the parent is capable of providing.”); Walker v. Texas Dep’t of Fam. &
Protective, Servs., 312 S.W.3d 608, 619–20 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
(considering past CPS involvement as evidence of lack of parenting abilities). Here, Mother has
an extensive history of Department involvement in her household: she testified that Jimmy’s
three siblings were “no longer” in her care due to the outcomes of their respective cases. The
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Department’s reports to the court indicate that the Department had made a finding of neglect
with respect to two of Jimmy’s siblings and a finding of abuse with respect to a third. In
addition, Mother’s acquiescence to Father’s history of criminal activity and substance abuse is
indicative of an improper relationship. See D.F. v. Texas Dep’t of Fam. & Protective Servs.,
393 S.W.3d 821, 836 (Tex. App.—El Paso 2012, no pet.). Meanwhile, multiple witnesses
testified that Jimmy’s foster parents are raising three children of their own and have sought out
assistance in addressing Jimmy’s educational, psychological, and physical needs. Brenda
testified that, through the help of family therapy, Jimmy’s aggressive tendencies had subsided.
When it comes to plans for Jimmy, Mother testified that she would start a job,
make enough to support Jimmy, find stable housing, arrange for transportation, and would start
regular drug testing. But she offered little testimony regarding how she hoped to accomplish
this, and self-serving testimony of such a “speculative” and “hypothetical” nature does not
constitute evidence of a concrete plan for a child. See, e.g., In re A.P.S., No. 07-11-00476-CV,
2012 WL 1835688, at *7 (Tex. App.—Amarillo May 21, 2012, no pet.) (mem. op.); Gonzalez
v. Texas Dep’t of Fam. & Protective Servs., No. 03-06-00004-CV, 2008 WL 2309208, at *6, *9
(Tex. App.—Austin June 5, 2008, no pet.) (mem. op.). Mother offered no testimony or other
evidence of how she planned to accommodate Jimmy’s need for schooling or any additional
psycho-emotional therapy. Meanwhile, both Malatek and Brenda testified that Jimmy was
“thriving” in the care of the foster family, that they had placed him in age-appropriate activities,
that they were addressing his needs for psycho-emotional care, and that they hoped to adopt him
upon termination of parental rights.
Finally, we consider any excuses for the subject parent’s conduct. Mother
testified that injuries sustained in a recent motorcycle accident and a lack of transportation made
14
it difficult for her to meet the Department’s goals for her during these proceedings. However,
she offered no explanation or excuse for her twenty-year history of substance abuse, criminal
activity, and chronic instability. And even assuming Mother accurately described her recent
circumstances, the factfinder was free to conclude that those limitations did not excuse Mother’s
long-term history of instability and poor parenting. See, e.g., In re H.R., 87 S.W.3d 691, 701
(Tex. App.—San Antonio 2002, no pet.) (holding evidence sufficient to sustain rejection of
proffered excuses where parent failed to take responsibility for conduct).
After reviewing the record, we conclude the evidence would allow a reasonable
factfinder to come to a firm belief or conviction that termination of Mother’s parental rights is in
Jimmy’s best interest. The evidence is therefore both legally and factually sufficient to support
the best-interest finding, and we reject Mother’s sufficiency challenge to that finding.
DISCUSSION—FATHER
Father’s court-appointed attorney has filed a motion to withdraw accompanied by
a brief concluding that any appeal is frivolous and without merit. See Anders, 386 U.S. at 744;
P.M., 520 S.W.3d at 27 & n.10. Counsel’s brief meets the requirements of Anders by presenting
a professional evaluation of the record demonstrating that there are no arguable grounds for
reversal to be advanced on appeal. See 386 U.S. at 744; Taylor v. Texas Dep’t of Protective &
Regul. Servs., 160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied) (applying Anders
procedure in parental-rights termination case). He has also certified to this Court that he
provided Father with a copy of the Anders brief and motion to withdraw as counsel and a notice
of his right to file a pro se brief. Father did not file a brief.
15
Upon receipt of an Anders brief, we must conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75,
80 (1988). After reviewing the record and the briefing, we find nothing that would arguably
support a meritorious appeal. We thus agree with counsel that this appeal is frivolous and
without merit.
We nevertheless deny counsel’s motion to withdraw. In P.M., the Supreme Court
of Texas explained that a parent’s right to counsel in termination suits extends to “all
proceedings in [the Supreme Court of Texas], including the filing of a petition for review.” See
520 S.W.3d at 27. Accordingly, counsel’s obligation to Father. has not yet been discharged. See
id. If Father, after consulting with counsel, desires to file a petition for review, counsel should
timely file with the high court “a petition for review that satisfies the standards for an Anders
brief.” See id. at 27–28.
CONCLUSION
For the reasons stated herein, we affirm the order of termination.
__________________________________________
Edward Smith, Justice
Before Chief Justice Byrne, Justices Triana and Smith
Affirmed
Filed: October 28, 2022
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