In the Interest of A.T., a Child v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00135-CV
IN THE INTEREST OF A.T., A CHILD
On Appeal from County Court at Law Number 1
Potter County, Texas
Trial Court No. 095005-1-FM, Honorable Walt Weaver, Presiding
August 17, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Pending before this Court is a motion to withdraw supported by a brief filed
pursuant to Anders v. California.1 Appellant, C.G., appeals from the trial court’s order
terminating her parental rights to her daughter, A.T.2 We affirm the termination order but
1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). The procedures set
forth in Anders, pertaining to a non-meritorious appeal of a criminal conviction, are applicable to the appeal
of an order terminating parental rights. See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no
pet.). The brief filed in this appeal meets the requirements of Anders by presenting a professional
evaluation of the record and demonstrating why there are no arguable grounds for reversal of the trial
court’s termination order.
2 To protect the privacy of the parent and her child, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d). See also TEX. R. APP. P. 9.8(b).
defer ruling on counsel’s motion to withdraw. See In re P.M., 520 S.W.3d 25, 27 (Tex.
2016) (per curiam).
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record, and in her opinion, the record reflects no
potentially plausible basis to support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex.
1998). Counsel has demonstrated she has complied with the requirements of Anders by
(1) providing a copy of the brief to C.G. and (2) notifying her of the right to file a pro se
response if she desired to do so. Id. By letter, this Court also granted C.G. an opportunity
to exercise her right to file a response to counsel’s brief, should she be so inclined. She
did not file a response. The Department notified this Court it would not file a response
unless specifically requested to do so. No such request was made.
BACKGROUND
A.T. was born in July 2020. C.G. is possessory conservator of an older child who
resides with his father in California.3 When A.T. was four months old, she was taken to
the hospital because she was not eating or drinking and had been shaking the previous
night. The child tested positive for amphetamines. Appellee, the Texas Department of
Family and Protective Services, removed the child from C.G.’s care, placed her in foster
care, and initiated termination proceedings. C.G. was provided with a family service plan
with a goal of reunification. She worked her services and was able to obtain a monitored
return of her child within six months.
3 The older child’s father is not A.T.’s biological father. In the underlying proceeding, the trial court
terminated the parental rights of A.T.’s alleged father.
2
Thereafter, C.G. and A.T. tested positive for drugs and the child was returned to
foster care. C.G. continued with her service plan and service providers offered positive
feedback of her participation. She obtained a second monitored return pursuant to an
agreed order. Months later, the Department again moved to return A.T. to foster care
due to C.G.’s continued drug use. The court ordered A.T., now two years old, to be
returned to the Department’s care.4 When a permanency specialist went to the home to
execute the court’s order, she discovered it was empty. She then drove to an address
for C.G.’s last known boyfriend and found that home empty also. Law enforcement was
contacted to investigate the child’s disappearance.
C.G. eventually communicated with the Department by text to inquire about next
steps if A.T. was in Las Vegas with an approved family member (C.G.’s grandmother).
The caseworker responded she was in “defiance of court order” and needed to return
immediately because there was “NO APPROVED OUT OF STATE PLACEMENT.” The
Department moved for a writ of attachment for the child, which was issued. C.G. and her
grandmother refused to comply with the writ. A complaint for interference with child
custody was filed against C.G. She and A.T. were located in California. They returned
to Texas several months later with the assistance of California law enforcement.
Thereafter, A.T. tested positive for cocaine and methamphetamine. Despite C.G.’s
substantial compliance with her service plan, she was unable to maintain a drug-free
lifestyle, and A.T. tested positive for drugs on four separate occasions all while in her
4 The monitored returns extended the dismissal date.
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mother’s care. C.G. disputed some of the test results and explained that A.T. could have
tested positive due to someone else’s drug use.
C.G. continued to participate in services and cooperated with the Department. She
was employed and had a clean and stable home. She offered a maternal family member
in Houston as a possible placement for A.T. who was willing to adopt her.5 The
caseworker expressed concern that C.G.’s pattern of drug use posed a danger to A.T. In
the caseworker’s opinion, it was in A.T.’s best interest at her young age to have
permanent placement in a drug-free environment.
After the Department rested, counsel for C.G. explained C.G. was exercising her
Fifth Amendment right not to testify due to pending criminal charges. The trial court
announced it was in A.T.’s best interest to terminate C.G.’s parental rights on the following
statutory grounds:
(1) knowingly placed or knowingly allowed her child to remain in conditions
or surroundings which endangered her physical or emotional well-being;
(2) engaged in conduct or knowingly placed her child with persons who
engaged in conduct which endangered her physical or emotional well-
being;
(3) failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the child’s return who
had been in the permanent or temporary managing conservatorship of
the Department for not less than nine months as a result of the child’s
removal from the parent under chapter 262 for abuse or neglect; and
(4) used a controlled substance as defined by chapter 481 of the Texas
Health and Safety Code in a manner that endangered the health or
safety of the child and (1) failed to complete a court-ordered substance
abuse treatment program; or (2) after completion of a court-ordered
5 A home study was pending at the time of the final hearing.
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substance abuse treatment program, continued to abuse a controlled
substance.
The trial court also found termination of C.G.’s parental rights was in the child’s best
interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). After a de
novo hearing, the trial court approved and adopted the associate judge’s order
terminating C.G.’s parental rights.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the parent-child relationship
if the Department establishes one or more acts or omissions enumerated under section
161.001(b)(1) and termination of that relationship is in the child’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976). The burden of proof is clear and convincing evidence. § 161.206(a). “‘Clear
and convincing evidence’ means the 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.
Only one statutory ground is needed to support termination though the trial court
must also find that termination is in a child’s best interest. In re K.C.B., 280 S.W.3d 888,
894–95 (Tex. App.—Amarillo 2009, pet. denied). In reviewing a termination proceeding,
the standard for sufficiency of the evidence is that discussed in In re K.M.L., 443 S.W.3d
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101, 112–13 (Tex. 2014). In reviewing a best-interest finding, appellate courts consider,
among other evidence, the factors set forth in Holley, 544 S.W.2d at 371–72.6
There is a strong presumption the best interest of the child will be served by
preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
Prompt and permanent placement of the child in a safe environment is also presumed to
be in the child’s best interest. See § 263.307(a). To assess the trial court’s best-interest
finding, we consider factors enumerated in the non-exhaustive list set forth in section
263.307(b) of the Family Code. One of those factors is providing the child with a safe
physical home environment. § 263.307(b)(12)(D).
Evidence supporting one or more statutory grounds for termination may also
constitute evidence illustrating termination is in the child’s best interest. See In re C.H.,
89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013). The best
interest analysis may consider circumstantial evidence, subjective factors, and the totality
of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677 (Tex.
App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence through the
establishment of a “stable, permanent home” has been recognized as the paramount
6 Those factors include: (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 individual seeking custody; (5) the programs available to assist the individual to
promote the best interest of the child; (6) the plans for the child by the individual 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. The absence of evidence of one or more of these factors does not preclude a
fact finder from reasonably forming a strong conviction or belief that termination is in the child’s best interest.
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
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consideration in determining best interest. See In re I.O., 645 S.W.3d 895, 904 (Tex.
App.—Amarillo 2022, no pet.).
ANALYSIS
By the Anders brief, counsel thoroughly reviews the evidence and concludes it is
sufficient to support termination under subsection (E) and the trial court’s best-interest
finding. See In re N.G., 577 S.W.3d 230, 235–36 (Tex. 2019). See also In re P.S., No.
07-22-00167-CV, 2022 Tex. App. LEXIS 6124, at *3 n.2 (Tex. App.—Amarillo Aug. 19,
2022, pet. denied) (mem. op.).
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues which might support the appeal.
See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re
Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State,
436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel’s
brief, we agree with counsel there is no plausible basis for reversal.
Our inquiry continues under the Supreme Court’s directive to review the trial court’s
findings under section 161.001(b)(1)(D) or (E) to determine if either finding is supported
by clear and convincing evidence even when another ground for termination is sufficient
because of the potential consequences for future terminations under subsection (M). See
In re N.G., 577 S.W.3d at 234–36.7 Subsection (M) provides for termination of parental
7 This Court has applied In re N.G. to appeals from terminations presented as Anders appeals.
See In re R.M., No. 07-22-00108-CV, 2022 Tex. App. LEXIS 6398, at *2 (Tex. App.—Amarillo Aug. 25,
2022, no pet.) (mem. op.); In re M.L., No. 07-21-00160-CV, 2021 Tex. App. LEXIS 9781, at *7–10 (Tex.
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rights to another child if the parent has previously had parental rights terminated based
on a finding the parent’s conduct violated subsection (D) or (E). See § 161.001(b)(1)(M).
An appellate court deprives a parent of a “meaningful appeal and eliminates the parent’s
only chance for review of a finding that will be binding as to parental rights to other
children” if that court does not review a termination based upon either of those grounds.
In re N.G., 577 S.W.3d at 235 (citing In re S.K.A. 236 S.W.3d 875, 890 (Tex. App.—
Texarkana 2007, pet. denied)).
Subsection (E) permits termination when clear and convincing evidence shows a
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 117, 125 (Tex. App.—Amarillo 2003, no pet.). Subsection (E) requires a
voluntary, deliberate, and conscious course of conduct by a parent. In re M.M., 584
S.W.3d 885, 890 (Tex. App.—Amarillo 2019, pet. denied).
Counsel’s analysis under subsection (E) supports termination. We reach the same
conclusion in our independent review of the record. Despite all of C.G.’s efforts and two
monitored returns, she engaged in a voluntary and deliberate course of conduct of
continued drug use which resulted in her very young daughter testing positive for
controlled substances on four separate occasions while in C.G.’s care. The caseworker
App.—Amarillo Dec. 8, 2021, no pet.) (mem. op.); In re J.N., 07-21-00151-CV, 2021 Tex. App. LEXIS 9087,
at *2 (Tex. App.—Amarillo Nov. 8, 2021, no pet.) (mem. op.).
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testified C.G.’s continued drug use was dangerous to A.T. and could affect her physical
and emotional welfare. See In re M.M., No. 07-19-00324-CV, 2020 Tex. App. LEXIS
2203, at *10–11 (Tex. App.—Amarillo March 16, 2020, pet. denied) (mem. op.) (noting
the decision to engage in illegal drug use during the pendency of a termination suit, when
the parent is at risk of losing a child, supports a finding the parent engaged in conduct
that endangered the child’s physical or emotional well-being).
CONCLUSION
The trial court’s Order of Termination is affirmed. We take no action on counsel’s
motion to withdraw but 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. In re P.M., 520 S.W.3d at 27.
Alex Yarbrough
Justice
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