in the Interest of J.M.G.G., a Child ( 2020 )

Affirm and Opinion Filed March 19, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01334-CV
IN THE INTEREST OF J.M.G.G., A CHILD
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-18-00579-X
MEMORANDUM OPINION
Before Justices Myers, Molberg, and Carlyle
Opinion by Justice Molberg
In this suit affecting the parent-child relationship, a jury found that the
parental rights of J.M.G.G.’s mother (Mother) and father (Father or J.G.G.) should
be terminated and that the Texas Department of Family and Protective Services
(Department) should be named permanent managing conservator of J.M.G.G.,
instead of Father’s mother (Grandmother). The trial court rendered judgment
according to the jury’s verdict.1 Father appeals the trial court’s judgment and decree
appointing the Department as J.M.G.G.’s managing conservator. Mother appeals
1
See TEX. FAM. CODE § 105.002(c) (trial court may not contravene jury verdict on issue of appointment of
managing conservator).
the trial court’s judgment and decree terminating the parent-child relationship
between her and J.M.G.G.
BACKGROUND2
J.M.G.G. was born on November 29, 2017, with a respiratory illness that
requires substantial daily care, treatments, and monitoring. When J.M.G.G. was five
months old, Mother left him with Grandmother the day after he had been discharged
from the hospital after being admitted for congestion and fever. Two days later,
Grandmother took J.M.G.G. to the hospital again when he began having trouble
breathing. Doctors diagnosed J.M.G.G. with two viruses, including rhinovirus, and
a partially collapsed lung, and he was admitted into the intensive care unit. Mother
was informed of J.M.G.G.’s condition, but she did not go to the hospital for five
days. With Mother’s authorization, the hospital subsequently released J.M.G.G. to
Grandmother.
A month after J.M.G.G. was born, Mother was seventeen years old, homeless,
and under court order to reside at Promise House, which provides assistance to
“pregnant and teenage mothers with services like counseling, education, [and]
parenting skills.” Mother left Promise House three times. Mother has a history of
substance abuse, including use of marijuana and possibly cocaine.3 At trial, a
2
Because this Court does not have subject matter jurisdiction over Father’s appeal, we discuss the facts as
they relate to Mother’s appeal.
3
At trial, Mother denied using cocaine, but a Department investigator testified Mother admitted to him that
she used cocaine and marijuana.
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Department investigator testified Mother “would continuously leave [J.M.G.G.] in
[Grandmother’s] care, knowing that [J.M.G.G.] was born with a respiratory issue”
that required care and monitoring “basically 24/7.” The Department eventually
placed J.M.G.G. into foster care.
Mother was incarcerated for the offense of robbery from approximately May
20 through late July of 2019. Rachel Stankus, a conservator worker at Child
Protective Services (CPS), testified that after Mother was released from jail, she was
forty-five minutes late for her first scheduled visit with J.M.G.G. and she was not
able to see him. Mother canceled the second scheduled visit. Mother showed up on
time for the third scheduled visit, but only interacted with him for approximately
thirty minutes of the two hours allotted to her. Stankus testified J.M.G.G. did not
recognize Mother at that visit, he did not “call her any name or refer to her as
anything,” and he did not appear “bonded to her.” According to Stankus, the
Department ultimately requested termination of Mother’s parental rights because she
engaged in “conduct endangering the physical and emotional well-being of
[J.M.G.G.],” including “leaving [him] alone and not returning for days at a time, as
well as her being arrested” for robbery.4 Stankus testified J.M.G.G. was “doing very
well at his current placement. He’s bonded to his caregivers and has had no major
4
Mother subsequently was convicted of robbery.
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concerns while being placed there.” If he returned to the care of Mother, Stankus
believed “he would suffer physical neglect or emotional harm.”
At trial, Mother admitted she missed multiple opportunities to visit J.M.G.G.,
and she testified she did not remember how many times she visited J.M.G.G. after
CPS removed him from her care in May of 2018. Mother testified she did not know
what medication J.M.G.G. is taking, what kind of therapy he needs, how many times
a week he has therapy, or who his doctors are. She agreed no one “has denied [her]
information or hidden what was wrong with [J.M.G.G.], what he needed, and what
the next steps would be.”
J.M.G.G.’s foster mother testified to his extensive medical needs, including
respiratory treatments and administration of medication through a feeding tube twice
daily. J.M.G.G. also receives feeding therapy two to three times a week to help him
“learn how to feed himself and to be able to chew and swallow properly.” Feeding
therapy involves placing a machine “on his neck that helps trigger his muscles [to]
know how to swallow properly to try to help with the aspiration. And [therapists]
also are working with him [to learn] to speak because he is delayed in his speaking
ability.” J.M.G.G. “also works with early childhood intervention [for] occupation
therapy [such as] how to put his arms through his shirt when you are trying to put it
on and how to take his socks and shoes on and off and all those skills you would
expect an almost two year old to have.” Foster mother testified J.M.G.G. was her
first foster child. When J.M.G.G. initially was placed in her care, she understood
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the placement was “not necessarily long term” and she was “there to provide a safe
and loving home for him while he needed it.” During that period, foster mother was
“rooting for the mother” and “offered assistance to her” by inviting her to the
hospital when J.M.G.G. was having surgery, providing updates on his condition, and
notifying her of medical emergencies. Foster mother communicated with Mother
through CPS. To that end, foster mother gave Mother a cell phone5 “and charged it
up with minutes” so that “[Mother] could be in contact with CPS. [The birthday]
card said, [this cell phone] is so that CPS can contact you when [J.M.G.G.] is in the
hospital so that you can be there.” Foster mother believed Mother “did not take
advantage of that gift.” Foster mother was “never able to contact [Mother] through
CPS using that phone.” Mother testified she never used the cell phone and she did
not know what happened to it.
On May 17, 2018, the Department filed a petition seeking to terminate
Mother’s and Father’s parental rights. On June 29, 2018, Grandmother filed an
intervention seeking to be appointed J.M.G.G.’s managing conservator. After a jury
trial, the jury found that, in the child’s best interest, Mother’s and Father’s parental
rights should be terminated and CPS should be appointed managing conservator.
The trial court accepted the jury verdict and signed a judgment and decree
5
Foster mother purchased the cell phone as a birthday gift from J.M.G.G. to Mother.
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terminating Mother’s and Father’s parental rights and naming the Department as
J.M.G.G.’s managing conservator. This appeal followed.
FATHER’S APPEAL
Father does not appeal the termination of his parental rights. He only appeals
“the jury’s decision finding that the [Department] should [be J.M.G.G.’s permanent
managing conservator],” and not Grandmother. We conclude Father lacks standing
to challenge the jury’s findings and the trial court’s judgment and decree regarding
conservatorship.
An order terminating a parent’s rights to a child divests the parent and the
child of all legal rights and duties with respect to each other except the child’s right
to inherit from and through the parent. TEX. FAM. CODE § 161.206(b). Because
Father does not appeal the jury’s determination that his parental rights should be
terminated, those findings are binding on him. In re A.N.A., A.Y.A., and A.I.A, No.
05-18-00169-CV, 2018 WL 2228624, at *1–2 (Tex. App.—Dallas May 16, 2018,
no pet.) (mem. op.); In re S.M.C., No. 07-04-0429-CV, 2005 WL 441538, at *1 (Tex.
App.—Amarillo Feb. 25, 2005, no pet.) (mem. op.). Upon termination of the parent-
child relationship between Father and J.M.G.G., Father lost all legal rights with
respect to J.M.G.G. As a result, Father does not have standing to challenge the jury’s
findings concerning appointment of the Department as J.M.G.G.’s managing
conservator. In re E.M., No. 05-18-01161-CV, 2019 WL 1449791, at *9 (Tex.
App.—Dallas April 1, 2019, no pet.) (mem. op.); In re A.N.A., 2018 WL 2228624,
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at *1. Therefore, we do not have subject matter jurisdiction over his claim.
Accordingly, we dismiss Father’s appeal.
MOTHER’S APPEAL
Mother appeals the trial court’s termination of her parental rights to J.M.G.G.
On November 12 and 14, 2019, Mother filed a notice of appeal “from all portions of
the judgment” in the trial court and in this Court, respectively. On or about January
27, 2020, Mother’s appointed appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1966), stating she diligently reviewed the record and
concluded Mother’s appeal is wholly without merit and frivolous. Counsel provided
Mother a copy of the Anders brief and advised Mother of her right to examine the
appellate record and file a pro se response. This Court also provided Mother a copy
of the Anders brief and notified her of her right to examine the appellate record and
file a pro se response. Mother did not file a pro se response.
The procedures established in Anders v. California, 386 U.S. 738, apply to an
appeal from a trial court’s judgment terminating parental rights where, as here,
appellant’s appointed counsel concludes there are no non-frivolous issues to assert
on appeal. See In re D.D., 279 S.W.3d 849, 849–50 (Tex. App.—Dallas 2009, pet.
denied). This Court is not required to address the merits of each claim raised in an
Anders brief or in a pro se response. See id. at 850. Instead, we are obliged to
determine whether any arguable grounds for reversal exist and, if so, to remand the
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case to the trial court so that new counsel may be appointed to address the issues.
Id.
In her Anders brief, Mother’s appellate counsel explains why, in her
professional opinion after diligently reviewing the record and the applicable law,
there are no arguable grounds for reversal and Mother’s appeal is frivolous and
without merit. See Anders, 386 U.S. at 744. After reviewing the record, we found
nothing that arguably could support Mother’s appeal, and we conclude the appeal is
frivolous and without merit. Accordingly, we affirm the trial court’s judgment and
decree terminating Mother’s parental rights.
Having dismissed Father’s appeal and having resolved Mother’s appeal
against her, we affirm the trial court’s judgment.
/Ken Molberg//
KEN MOLBERG
JUSTICE
191334f.p05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.M.G.G., A On Appeal from the 305th Judicial District
CHILD Court, Dallas County, Texas
Trial Court Cause No. JC-18-00579-X.
No. 05-19-01334-CV Opinion delivered by Justice Molberg.
Justices Myers and Carlyle participating.
In accordance with this Court’s opinion of this date, we DISMISS J.G.G.’s appeal for lack
of subject matter jurisdiction, and the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 19th day of March 2020.
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