C. L. and R. H. v. Texas Department of Family and Protective Services ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00257-CV
C. L. and R. H., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 23DFAM338419, THE HONORABLE DALLAS SIMS, JUDGE PRESIDING
MEMORANDUM OPINION
C.L. (Father) and R.H. (Mother) appeal the trial court’s Decree of Termination,
which terminates their parental rights to their daughter, H.L. (Child). Father challenges the
findings made against him under termination statutory predicate grounds Paragraphs (D), (E), (N),
and (Q) and under the statutory best-interest ground. See Tex. Fam. Code § 161.001(b)(1)(D),
(E), (N), (Q), (2). In contrast, Mother’s attorney on appeal has filed an Anders brief, concluding
that Mother’s appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744
(1967); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (approving use of Anders
procedure in appeal from judgment terminating parental rights).
We mostly reject Father’s arguments, concluding that the evidence was sufficient
under Paragraph (E) and best interest but also concluding that the evidence was factually
insufficient under Paragraph (D). Otherwise, Mother’s brief meets the requirements of Anders by
presenting a professional evaluation of the record and demonstrating why there are no arguable
grounds 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). We thus modify
the Decree to delete the Paragraph (D) finding made against Father and affirm the Decree as
modified.
BACKGROUND
When she was born, Child, and Mother as well, had methamphetamine in her
system. She was only 11 months old at the time of trial. Soon after Child’s birth, the Department
stepped in to pursue an emergency removal, which was granted, and eventually placed Child in
foster care. Father was not in the picture—he was incarcerated when Child was born and has
remained so ever since. At the time of trial, he was awaiting transfer from a county jail to TDCJ
to serve a felony sentence. Child stayed in the foster placement for about nine and a half months.
After DNA confirmed that Father was Child’s parent, the Department moved Child’s placement
to her paternal grandfather’s home, where he lives with his current partner. The Department
prepared Family Service Plans for both Mother and Father, and Department personnel explained
to both parents that they needed to comply with the services required in the Plans for Child to be
returned to their care. Both Plans were made orders of the trial court. Father did not complete his
Plan because most or all of its required services were not available in the facility where he was
incarcerated. Mother did not complete most of what her Plan required of her. For example, she
tested positive for illegal drugs during this suit, missed many of the Plan-required drug tests, and
failed to maintain stable housing or employment.
2
The Department sought termination of each parent’s parental rights to Child and
tried those claims to the bench. The testifying witnesses were the Department caseworker,
Father’s mother, and Child’s initial foster placement. Also, Child’s guardian ad litem offered her
recommendation in support of the Department’s position. The trial court ultimately rendered
judgment terminating each parent’s rights, making findings against Father under predicate-ground
Paragraphs (D), (E), (N), and (Q); against Mother under predicate-ground Paragraphs (D), (E),
(N), and (O); and against each parent under the statutory best-interest requirement. Both parents
now appeal.
FATHER’S APPEAL
Father challenges the legal and factual sufficiency of the evidence supporting the
findings made against him under the two elements of termination of parental rights—the statutory
predicate ground and the best-interest ground. To terminate parental rights, the Department must
prove one of the statutory predicate grounds and that termination is in the best interest of the child.
See Tex. Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). It must
prove both elements by clear and convincing evidence. See Tex. Fam. Code § 161.206(a); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘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.” Tex. Fam. Code § 101.007; accord In re
C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Legal-sufficiency review of the evidence to support termination requires reviewing
all the evidence in the light most favorable to the finding under attack, and considering undisputed
contrary evidence, to decide whether a reasonable factfinder could have formed a firm belief
3
or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” Id. at 631. “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. When reviewing the evidence, we must “provide due
deference to the decisions of the factfinder, who, having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.”
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
I. The evidence was sufficient to support the finding against Father under statutory
predicate ground Paragraph (E) but factually insufficient under Paragraph (D).
Father first challenges the findings made against him under statutory predicate
grounds Paragraphs (D), (E), (N), and (Q), contending that the evidence was legally and factually
insufficient to support each finding. “To affirm a termination judgment on appeal, a court
need uphold only one termination ground—in addition to upholding a challenged best interest
finding—even if the trial court based the termination on more than one ground.” In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (per curiam). But because of the potential collateral
consequences for a parent of a Paragraph (D) or (E) finding and the dictates of due process,
when on appeal a parent has presented the issue, “an appellate court that denies review of a
[Paragraph] (D) or (E) finding deprives the 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.” Id. at 235. “We often conduct evidence-sufficiency reviews under both [Paragraphs (D)
and (E)] simultaneously when, as here, the evidence relevant under each is interrelated.” M.L. v.
4
Texas Dep’t of Fam. & Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *3 (Tex.
App.—Austin Feb. 16, 2023, no pet.) (mem. op.).
Paragraph (D) applies when a parent 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 § 161.001(b)(1)(D). Paragraph (E) applies
when a parent has “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the child.” Id.
§ 161.001(b)(1)(E). For these purposes, “‘[e]ndanger’ means ‘to expose to loss or injury; to
jeopardize.’” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep’t of
Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Although “endanger” means “more than
a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment,
it is not necessary that the conduct be directed at the child or that the child actually suffers injury,”
id. (quoting Boyd, 727 S.W.2d at 533), or even that the conduct happen in the child’s presence,
Pruitt v. Texas Dep’t of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861, at *4
(Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). See also A.S. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-23-00658-CV, 2024 WL 1587046, at *5 (Tex. App.—Austin Apr. 12,
2024, no pet.) (mem. op.) (“Father’s illegal-drug use and repeated conduct leading to incarceration
still exposed Child to jeopardy and loss even if Father did not do those things while around
Child.”). “Endangerment does not have to be established as an independent proposition, but
can be inferred from parental misconduct alone,” and courts may look to conduct “before the
child’s birth and both before and after the child has been removed by the Department.” Pruitt,
2010 WL 5463861, at *4. “A factfinder may infer endangerment from ‘a course of conduct’ that
presents substantial risks to the child’s physical or emotional well-being,” and “[t]hose risks can
5
be developed by circumstances arising from and surrounding a parent’s behavior.” In re R.R.A.,
687 S.W.3d 269, 277 (Tex. 2024). “Conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being.” Pruitt, 2010 WL 5463861,
at *4.
Important under Paragraph (E) is whether the endangerment of the child’s
well-being was the direct result of a person’s conduct, including acts, omissions, or failures to act.
See T.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471,
at *6 (Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.); In re J.F.-G., 612 S.W.3d 373,
382 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304 (Tex. 2021). “Termination under
subsection (E) requires more than a single act or omission, and the Department must show a
voluntary, deliberate, and conscious course of conduct by the parent, considering a parent’s actions
both before and after the child was removed from the home.” T.M., 2021 WL 4692471, at *6.
Much of the Department’s case against Father was evidence of his incarceration
and criminal history. Although “‘imprisonment will not, standing alone, constitute engaging in
conduct which endangers the emotional or physical well-being of a child,’ . . . incarceration does
support an endangerment finding ‘if the evidence, including the imprisonment, shows a course of
conduct which has the effect of endangering’” the child’s physical or emotional well-being. In re
J.F.-G., 627 S.W.3d 304, 312–13 (Tex. 2021) (quoting Boyd, 727 S.W.2d at 533-34). “A parent’s
criminal history—taking into account the nature of the crimes, the duration of incarceration,
and whether a pattern of escalating, repeated convictions exists—can support a finding of
endangerment.” Id. at 313. The parent’s “[l]engthy incarceration presents a risk of endangerment
to the child’s well-being” partly because the parent’s resulting absence from the child’s life can
damage the child’s emotional well-being. See id. at 314. Thus, evidence of a crime resulting in
6
incarceration, and especially of “multiple criminal episodes of escalating seriousness,” “together
with the duration and consequences of the incarceration, is relevant when the resulting
abandonment presents a risk . . . to a child’s physical or emotional well-being.” Id. at 315.
The evidence here showed the following criminal history for Father: (1) a 2005
arrest for the offense of theft of property valued at less than $500 but more than $50, which did
not lead to any conviction1; (2) 2009 and 2010 arrests for possession of marijuana of less than two
ounces,2 with the 2010 charge ultimately dismissed; (3) a 2010 arrest for possession of marijuana
of more than two ounces but not more than four,3 leading to nine months’ probation; (4) a 2018
arrest for manufacturing or delivering a controlled substance in Penalty Group 1 of at least four
grams but less than 200 grams,4 leading to five years’ probation; (5) a 2019 arrest for possession
of a controlled substance in Penalty Group 1 of at least four grams but less than 200 grams,5 which
led to the prosecutor’s rejecting the charge without pre-trial diversion; (6) a 2020 arrest for the
same level of possession offense; (7) a 2020 arrest for harassment and evading arrest,6 leading to
1
This offense was at the time a Class B misdemeanor, which can be punished by jail
time not to exceed 180 days. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 9,
sec. 31.03(e)(2)(A)(i), 1995 Tex. Gen. Laws 2734, 2737–38 (amended 2015) (offense then Class B
misdemeanor); Tex. Penal Code § 12.22 (applicable range of punishment).
2
A Class B misdemeanor. See Tex. Health & Safety Code § 481.121(b)(1).
3
A Class A misdemeanor, which level of offense can be punished by jail time not to
exceed a year. See Tex. Health & Safety Code § 481.121(b)(2); Tex. Penal Code § 12.21.
4
A first-degree felony, which can be punished by imprisonment for life or for a term of
not more than 99 years or less than five. See Tex. Health & Safety Code § 481.112(d); Tex. Penal
Code § 12.32.
5
A second-degree felony, which can be punished by imprisonment for any term of not
more than 20 years or less than two. See Tex. Health & Safety Code § 481.115(d); Tex. Penal
Code § 12.33.
6
Harassment is a Class B misdemeanor, and evading arrest is a Class A misdemeanor.
See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, sec. 38.04(b), 2009 Tex. Gen. Laws 4385,
4385–86 (amended 2011) (evading arrest); Tex. Penal Code § 42.07(c) (harassment).
7
dismissal of the evading-arrest charge but 30 days’ incarceration for the harassment charge; (8) a
2021 arrest for possession of a controlled substance in either Penalty Group 1 or 1-B of less than
a gram7; and, (9) as of April 2024, a pending felony-level charge for possession of a controlled
substance. 8 The evidence also showed that Father was incarcerated in the Williamson County jail
on the drug charge when Child was born. Around the time of trial, he was to be transferred to a
TDCJ facility to serve a different sentence, for second-degree-felony theft or fraud. When the
caseworker would ask him how long his sentence was, he would not answer but instead referred
to hoping for a quick parole.9
The evidence thus showed “multiple criminal episodes of escalating seriousness”
by Father, see J.F.-G., 627 S.W.3d at 315, leading to an incarceration that the trial court could
consider to be lengthy because Father refused to say how long it would last. A likely result of
Father’s incarceration had the Department not stepped in would be that Child would be left in
Mother’s care. See id. (evidence of parent’s incarceration is relevant under Paragraph (E) “when
the resulting abandonment presents a risk . . . to a child’s physical or emotional well-being”).
Being left in Mother’s care would endanger Child’s physical or emotional well-being for several
reasons. Mother has criminal history of her own, including incarceration. She has long struggled
with addiction, including illegal-drug use during this suit 10 and extended methamphetamine use,
7
A state jail felony, which can be punished by a jail term of at least 180 days but not more
than two years. See Tex. Health & Safety Code § 481.115(b); Tex. Penal Code § 12.35.
8
The record is unclear about whether this pending charge is connected to the 2021 arrest.
9
Other evidence showed that it was unknown when Father would be released from
incarceration.
10
Helping to show Mother’s drug use during the suit was evidence of many missed drug
tests required by the Department. See T.D. v. Texas Dep’t of Fam. & Protective Servs., 683 S.W.3d
901, 914 (Tex. App.—Austin 2024, no pet.) (“The factfinder may infer from a parent’s missing
8
all causing her to lack either a robust support system or consistent housing. See R.R.A., 687 S.W.3d
at 277–78 (parent’s course of conduct in using drugs helped show endangerment of children
when parent used marijuana daily; allowed child to stay alone with other parent, who herself
used drugs; missed required drug tests; and tested positive for drugs during suit to terminate
parent’s rights, explaining In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)). Child was born with
methamphetamine in her system from Mother. And Mother did not complete all tasks required of
her in her Family Service Plan, which had been made an order of the trial court. See A.S., 2024
WL 1587046, at *4 (“[A] parent’s failure to participate in a Department-requested Family Service
Plan can be considered in endangerment analysis.”). Specifically under her Plan, Mother did not
demonstrate sobriety—she missed many required drug tests—or the ability to care for Child,11 she
did not visit with Child regularly, she was discharged unsuccessfully from therapy for lack of
attendance, and she did not maintain stable housing or a job and so cannot meet Child’s basic
needs. Child also has advanced medical needs, including “multiple health scares with having a
hemorrhage in her heart,” as explained by the caseworker; needing plastic surgery for a deformity
in her ear; and frequent infections from needing tubes put in her ears and from a weakened immune
system. The evidence showed that Father would know about the deficiencies in Mother’s ability
to care for a child because the two had been “best friends for a long time.”
Father’s increasingly serious criminal conduct, leading to a lengthy incarceration,
created substantial risks to Child’s physical or emotional well-being because it resulted in Child
being left in Mother’s care. Given all this, we conclude that a reasonable factfinder could have
Department-requested illegal-drug tests during a parental-rights-termination suit that the tests
missed would have come up positive.”).
11
Mother has an older child, but Mother’s father is the one taking care of that child.
9
formed a firm belief or conviction that Paragraph (D) and (E) findings against Father were true,
making the evidence legally sufficient to support those findings. See A.C., 560 S.W.3d at 630–31.
As for factual sufficiency, and on the other side of the evidentiary ledger, some
evidence supported Father’s position against the Department’s request for termination under
Paragraphs (D) or (E).12 Specifically, some evidence showed that Father’s relatives quickly
stepped in to provide a home for Child when it was DNA-confirmed that Father was Child’s parent.
The evidence showed that they want to keep Child in the family. It was undisputed, however, that
Father had the criminal history detailed above and that no one was certain when he would be
released from incarceration. With him incarcerated, Child would have been left in Mother’s
endangering care. We conclude that under Paragraph (E), the evidence against the Department’s
position was not so significant that the factfinder could not have formed a firm belief or conviction
that a Paragraph (E) finding was true. See id. at 631.
But we cannot say the same under Paragraph (D). Recall that it involves the
parent’s “knowingly plac[ing] or knowingly allow[ing] the child to remain in conditions or
surroundings” endangering the child. See Tex. Fam. Code § 161.001(b)(1)(D). The Department’s
12
We disagree with the Department’s position that Father has waived his
evidence-sufficiency challenges by inadequate briefing. See Tex. R. App. P. 38.1(i). His appellate
brief states his legal- and factual-sufficiency challenges, provides argument for why the
Department’s evidence fails to prove what the statute requires, and marshals the evidence that he
believes would have prevented a reasonable factfinder from forming any firm belief or conclusion
about the truth of the findings that he attacks on appeal. See Lion Copolymer Holdings, LLC v.
Lion Polymers, LLC, 614 S.W.3d 729, 732–33 (Tex. 2020) (stating both, “[B]riefs must also ‘be
liberally, but reasonably, construed so that the right to appeal is not lost by waiver,’” and, “[C]ourts
should hesitate to resolve cases based on procedural defects and instead endeavor to resolve cases
on the merits,” and explaining why factual-sufficiency issue there was similarly adequately briefed
(quoting Horton v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam))).
10
only representative to testify at trial, its caseworker, made an admission directly contrary to the
Department’s position under Paragraph (D) in this exchange:
Q. Okay. And he’s been—he was incarcerated—excuse me—four to five months
prior to [Child]’s birth, correct?
A. I’m unsure prior to the birth because I wasn’t assigned to the case, but I know
when the child was born he was incarcerated.
Q. Okay. And so, therefore, he—you guys are not accusing him of neglecting or
abusing [Child], correct?
A. Correct.
Q. Okay.
A. He’s not the alleged perpetrator.
Q. Okay. And you guys are not alleging that he placed her in a dangerous
situation, correct?
A. Correct.
(Emphasis added.) This admission is in effect a direct statement that Father did not violate
Paragraph (D) by knowingly placing or knowingly allowing Child to remain in endangering
conditions or surroundings. The caseworker was the one witness who, by far, offered the testimony
most damaging to Father’s position in the suit. And even she did not agree with the view that
Father had violated Paragraph (D).13 We hold that no reasonable factfinder could ignore this
caseworker’s testimony directly contrary to the Department’s Paragraph (D) position and thus
that the evidence against the Paragraph (D) finding—this admission plus the evidence showing
13
Father’s counsel said in closing argument: “You heard the testimony from the
caseworker, their witness, that they’re not alleging that [Father] placed the child in danger or was—
caused the child neglect or abuse or placed her in a position where she was neglected and abused.”
11
Father’s relatives’ care for Child—was so significant that the factfinder could not have formed a
firm belief or conviction that the finding was true. See A.C., 560 S.W.3d at 631; see also T.M. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471, at *7–8
(Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.); In re H.J.Y.S., No. 10-19-00325-CV,
2019 WL 8071614, at *4–5 (Tex. App.—Waco Feb. 26, 2019, pet. denied) (mem. op.).
Because the Paragraph (E) ground was supported by legally and factually sufficient
evidence and only one meritorious predicate ground is needed when affirming a judgment
terminating parental rights, we need not reach the rest of Father’s predicate-ground issues. See
N.G., 577 S.W.3d at 232. Father’s remedy for the factual insufficiency of the Paragraph (D)
ground is a modification of the trial court’s Decree to strike the Paragraph (D) finding made against
him. See In re M.P., 639 S.W.3d 700, 704 (Tex. 2022) (per curiam). We thus overrule Father’s
predicate-ground issues in part and sustain them only to the extent of the factual insufficiency of
the evidence under Paragraph (D).
II. The evidence was sufficient to support the finding against Father under the statutory
best-interest requirement.
The rest of Father’s appeal concerns the legal and factual sufficiency of the
evidence to support the best-interest finding made against him. When reviewing best-interest
findings, factors that courts consider include (1) the child’s wishes, (2) the child’s emotional and
physical needs now and in the future, (3) emotional or physical danger to the child now and in the
future, (4) the parenting abilities of the parties seeking custody, (5) programs available to help
those parties, (6) plans for the child by the parties seeking custody, (7) the stability of the proposed
placement, (8) the parent’s conduct that may indicate that the existing parent–child relationship is
improper, and (9) any excuses for the parent’s conduct. In re J.W., 645 S.W.3d 726, 746 (Tex.
12
2022) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). This list is not exhaustive,
not all factors need be proven to determine best interest, and proof of only one factor may in a
particular factual context support termination. See M.L. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *5 (Tex. App.—Austin Feb. 16, 2023, no pet.)
(mem. op.); S.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00039-CV, 2020 WL
3892796, at *16 (Tex. App.—Austin July 10, 2020, no pet.) (mem. op.). Evidence probative
under the statutory predicate grounds may also be probative of best interest. A.C., 560 S.W.3d
at 631–32.
The evidence recounted above about the Paragraph (E) finding is relevant to best
interest. That evidence shows that Father will stay incarcerated for a long time while Child is in
her tender years and needing advanced medical care. The caseworker testified that Father cannot
meet Child’s basic needs, “has not provided any type of support to” Child, and “has not displayed
the ability to put the needs of [Child] before his own” because of the continued incarceration. By
contrast, other evidence showed that Child is forming a bond with Father’s father and his partner
now that she is placed with them and that they want to adopt her. At their home, Child “is currently
on track for each of her developmental milestones,” and the Department had no concerns that
the placement could meet Child’s advanced medical needs. The evidence allowed the trial court,
as factfinder, to draw reasonable inferences for the placement family as best serving Child’s
interests. See A.S., 2024 WL 1587046, at *6; S.S. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-23-00608-CV, 2024 WL 131757, at *7 (Tex. App.—Austin Jan. 12, 2024, no pet.) (mem.
13
op.). We see in the evidence that at least Holley factors one,14 two, three, four, seven, and eight
support termination.
For his part, Father relies on testimony by his mother that she was willing to be
Child’s placement and on both her testimony and other evidence tending to show that Father’s
parental rights need not be terminated for his family members to continue to care for Child. But
evidence allowed a reasonable factfinder to infer that it was the family’s interest in caring for
Child—rather than Father’s arranging for their support—that caused the family members to
take Child in. That evidence was the caseworker’s testimony that the family wanted to keep
Child in their family after learning of Father’s parentage. The evidence also showed that by his
incarceration and consistent criminal history, Father cannot “remain gainfully employed” and
cannot “provide a stable home” for Child, and those matters support terminating his parental rights,
see In re D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.), because “safe, stable,
and permanent home[s]” for children when that outcome “can be obtained only by adoption”
supports terminating the parent’s rights, see In re S.H.A., 728 S.W.2d 73, 92 (Tex. App.—Dallas
1987, writ ref’d n.r.e.) (en banc).
In all, we conclude that the evidence was legally and factually sufficient to support
the best-interest finding made against Father. See A.C., 560 S.W.3d at 630–31. We thus overrule
the remainder of his appellate issues.
14
See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (evidence supports termination under first factor even when child is too young to express
wishes when evidence shows good care by foster placement and bonding with them compared
with child’s having spent minimal time with parent), overruled in part on other grounds by
In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc),
disapproved of by In re R.R.A., 687 S.W.3d 269, 278 n.45 (Tex. 2024).
14
MOTHER’S APPEAL—ANDERS BRIEF
In connection with the Anders brief that Mother’s appellate attorney filed, the
attorney has certified to this Court that he has provided Mother with copies of the Anders brief,
the clerk’s record, and the reporter’s record and that he has advised her of her right to file a pro se
brief. To date, Mother has not filed a pro se brief. The Department has a filed a response stating
that it will not file a brief regarding Mother’s appeal unless requested by this Court.
Upon receiving an Anders brief, we must conduct a full examination of the record
to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988);
Taylor, 160 S.W.3d at 647. We have conducted an independent review of the entire record,
including the Anders brief submitted on Mother’s behalf, and have found nothing in the record that
might arguably support an appeal. Our review included the trial court’s endangerment findings
against Mother under Paragraphs (D) and (E), and we have found no nonfrivolous issues that could
be raised on appeal with respect to those findings. See N.G., 577 S.W.3d at 237. We agree that
Mother’s appeal is frivolous and without merit.
15
CONCLUSION
We modify the trial court’s Decree of Termination to strike the Paragraph (D)
finding made against Father and affirm the Decree as modified. Mother’s counsel’s motion to
withdraw is denied.15
__________________________________________
Chari L. Kelly, Justice
Before Justices Baker, Triana, and Kelly
Modified and, as Modified, Affirmed
Filed: October 11, 2024
15
The Supreme Court of Texas has held that the right to counsel in suits seeking the
termination of parental rights extends to “all proceedings [in that Court], including the filing of a
petition for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Accordingly,
counsel’s obligation to Mother has not yet been discharged. See id. If after consulting with
counsel, Mother desires to file a petition for review, her counsel should timely file with the
Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See id.at 27–28.
16