In the Interest of S.D., a Child v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00099-CV
___________________________
IN THE INTEREST OF S.D., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-729460-23
Before Sudderth, C.J.; Bassel and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
This is an ultra-accelerated appeal 1 in which Appellant M.D. (Father) appeals
the termination of his parental rights to his daughter, S.D.,2 following a bench trial.
Father’s court-appointed appellate counsel filed an Anders brief averring that after
diligently reviewing the record, he believes that the appeal is frivolous because even
though the evidence is allegedly factually insufficient to support termination under
Family Code Section 161.001(b)(1)(D), the record contains sufficient evidence to
support termination under Subsections (E) and (N). 3 See Anders v. California, 386 U.S.
738, 744–45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77
(Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders procedures apply in
noncriminal appeals when appointment of counsel is mandated by statute). Although
the brief requests modification of the termination order to delete the trial court’s
Subsection (D) finding, it nevertheless meets the requirements of Anders by presenting
a professional evaluation of the record and demonstrating why there are no arguable
1
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal
from a judgment terminating parental rights, so far as reasonably possible, within 180
days after notice of appeal is filed).
2
See Tex. R. App. P. 9.8(b)(2) (requiring court to use an alias to refer to a minor
in an appeal from a judgment terminating parental rights); see also Tex. R. App. P.
9.8(a) (defining “alias” to include “one or more of a person’s initials or a fictitious
name”).
3
See In re E.P.C., 381 S.W.3d 670, 684 n.3 (Tex. App.—Fort Worth 2012, no
pet.) (explaining that a finding of only one Family Code Section 161.001(b)(1)
termination ground—along with a best-interest finding—is sufficient to support a
judgment terminating a parent’s rights).
2
grounds for reversal to be advanced on appeal. See Mitchell v. State, 653 S.W.3d 295,
297 (Tex. App.—Texarkana 2022, no pet.) (“[A]ppellate courts are authorized to
reform judgments and affirm as modified in Anders cases involving non-reversible
error.”); cf. R.J.O. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-13-00478-CV,
2013 WL 6060778, at *1 (Tex. App.—Austin Nov. 13, 2013, no pet.) (mem. op.)
(reforming trial court’s final decree to remove a statutory termination ground and
affirming judgment, as modified, in Anders case). Father did not file a response despite
being given the opportunity to do so. The Department filed a letter brief stating that
although it generally agreed with the Anders brief, it opposed Father’s counsel’s request
to modify the termination order by deleting the Subsection (D) finding.
As the reviewing appellate court, we must independently examine the record to
decide whether an attorney is correct in determining that the appeal is frivolous. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re K.R.C., 346 S.W.3d
618, 619 (Tex. App.—El Paso 2009, no pet.). Having carefully reviewed the record
and the Anders brief, we agree that Father’s appeal is frivolous. We find nothing in
the record that might arguably warrant reversal of the trial court’s termination order.
See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).
Further, we conclude that the evidence is factually sufficient to support
termination under Subsection (D) and therefore deny Father’s counsel’s request to
modify the trial court’s order. Subsection (D) provides that a trial court may order
parental rights terminated if it finds by clear and convincing evidence that the parent
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has “knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child.” Tex.
Fam. Code Ann. § 161.001(b)(1)(D). As used in the statute, “‘endanger’ means to
expose to loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). Endangerment under Subsection (D) arises from the child’s
environment, but a parent’s conduct can contribute to an endangering environment.
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see J.G. v.
Tex. Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no
pet.). “A single act or omission can support termination under [S]ubsection (D) . . . .”
J.G., 592 S.W.3d at 524. Evidence of the following can support the conclusion that a
child’s surroundings endanger her physical or emotional well-being for purposes of
Subsection (D): a parent’s drug use, 4 a parent’s allowing a child to be around another
person—including another parent—who is using drugs or participating in unlawful
conduct, 5 a parent’s knowledge of the other parent’s drug use during pregnancy and
See E.G. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-22-00469-CV, 2022 WL
417970222, at *8 (Tex. App.—Austin Dec. 28, 2022, no pet.) (mem. op.).
5
See In re B.U., 02-23-00150-CV, 2023 WL 5967604, at *4 (Tex. App.—Fort
Worth Sept. 14, 2023, pet. denied) (mem. op.) (“[A] parent’s choice to continue
relationships with people who abuse illegal drugs may constitute evidence of
endangerment [under Subsection (D)].” (citing In re K.W., No. 09-19-00442-CV, 2020
WL 1755985, at *8 (Tex. App.—Beaumont Apr. 9, 2020, pet. denied))); In re M.R.J.M.,
280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g)
(“Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home
or with whom the child is compelled to associate on a regular basis in his home is a
part of the ‘conditions or surroundings’ of the child’s home under [Subsection (D)].”).
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corresponding failure to attempt to protect the unborn child from the effects of that
drug use,6 a parent’s imprisonment or intentional activity that exposes the parent to
potential incarceration, 7 or a parent’s mental instability or untreated mental illness. 8
Here, the record reflects that
• S.D. tested positive for methamphetamine and marijuana when she was
born, and S.D.’s mother (Mother) admitted to using methamphetamine and
amphetamines during her pregnancy.
• Rayshon Jones, the permanency specialist assigned to S.D.’s case, testified
that she believed that Father and Mother were a couple and lived together
prior to S.D.’s removal.
• Although Father denied having lived with Mother, he testified that he had
“spent nights with her” and that he had learned that Mother was pregnant
when she was about six or seven months along.
• Father and his sister told Jones that they knew that Mother was not going to
stop using drugs.
• Father has a lengthy criminal history, including four convictions for
possessing methamphetamine; has been in and out of prison; and was
incarcerated at the time of trial.
6
See In re J.W., 645 S.W.3d 726, 749–50 (Tex. 2022).
See Boyd, 727 S.W.2d at 533; D.N. v. Tex. Dep’t of Fam. & Protective Servs., No.
7
03-15-00658-CV, 2016 WL 1407808, at *2 (Tex. App.—Austin Apr. 8, 2016, no pet.)
(mem. op.).
8
See T.A.W. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-20-00364-CV, 2021
WL 81866, at *4 (Tex. App.—Austin Jan. 8, 2021, pet. denied) (mem. op.) (mental
instability); In re L.L.F., No. 02-11-00485-CV, 2012 WL 2923291, at *15 (Tex. App.—
Fort Worth July 19, 2012, no pet.) (mem. op.) (untreated mental illness); In re J.I.T.P.,
99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (noncompliance
with mental health medication).
5
• Although Father denied having a drug problem, he acknowledged that he
had multiple “drug charges” and could have been considered to have had a
drug problem in the past.
• Father testified that he had traded drugs to “[c]ustomers” for old, broken
electronics but denied that he had supplied Mother with her
methamphetamine.
• Father was prescribed medication for anxiety/depression and post-
traumatic stress disorder, but he stopped taking his medication in 2003
because he “felt like [he] didn’t need it.” He resumed taking his medication
in 2007 before stopping again in 2021 because he could not pay for it and
was “[j]ust being irresponsible.”
• Father admitted to self-medicating with methamphetamine.
Giving due deference to the trial court’s findings, In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006), we conclude that based on this evidence, the trial court could
reasonably have formed a firm conviction or belief that Father had endangered S.D. by
placing her—or by allowing her to remain—in a dangerous environment, see In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002); see also Tex. Fam. Code Ann. § 161.001(b)(1)(D). Thus, the
evidence is factually sufficient to support the trial court’s Subsection (D) finding. See
C.H., 89 S.W.3d at 18–19. Accordingly, we deny Father’s counsel’s request to modify the
termination order by deleting the Subsection (D) finding, and we affirm the order as-is.
Father’s counsel remains appointed in this case through proceedings in the
Texas Supreme Court unless otherwise relieved from his duties for good cause in
accordance with Family Code Section 107.016(2)(C). See In re P.M., 520 S.W.3d 24,
6
27–28 (Tex. 2016) (order); see also Tex. Fam. Code Ann. § 107.016(2)(C).
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: July 11, 2024
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