in the Interest of A.R., J.S., A.F., A.A., and A.A., Children

Opinion filed September 22, 2016
In The
Eleventh Court of Appeals
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No. 11-16-00088-CV
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IN THE INTEREST OF A.R., J.S., A.F., A.A., AND A.A.,
CHILDREN
On Appeal from the County Court at Law No. 2
Ector County, Texas
Trial Court Cause No. CC2-3428-PC
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the fathers of the five children involved in this case: A.R.,
J.S., A.F., A.A., and A.A. The mother and one of the fathers filed a notice of appeal.
We dismiss in part and affirm in part.
I. Mother’s Appeal
The mother’s court-appointed counsel has filed a motion to withdraw and a
supporting brief in which he professionally and conscientiously examines the record
and applicable law and concludes that there are no issues of arguable merit to present
on appeal. The brief meets the requirements of Anders v. California, 386 U.S. 738
(1967), by presenting a professional evaluation of the record demonstrating why
there are no arguable grounds to be advanced. See In re Schulman, 252 S.W.3d 403,
406–08 (Tex. Crim. App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim.
App. [Panel Op.] 1978). In light of a recent holding by the Texas Supreme Court,
however, an Anders motion to withdraw “may be premature” if filed in the court of
appeals under the circumstances presented in this case. See In re P.M., No. 15-0171,
2016 WL 1274748, at *3 (Tex. Apr. 1, 2016). The court in P.M. stated that
“appointed counsel’s obligations can be satisfied by filing a petition for review that
satisfies the standards for an Anders brief.” Id.
The mother’s counsel provided the mother with a copy of the brief and the
motion to withdraw. Counsel also informed Appellant of her right to review the
record and file a pro se response to counsel’s brief. In compliance with Kelly v. State,
436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014), counsel provided the mother with
an electronic copy of the clerk’s record and the reporter’s record. We conclude that
the mother’s counsel has satisfied his duties under Anders, Schulman, and Kelly. We
note that the mother did not file a pro se response to counsel’s Anders brief.
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree that the mother’s appeal is without
merit and should be dismissed. See Schulman, 252 S.W.3d at 409. However, in light
of P.M., we deny the motion to withdraw that was filed by the mother’s court-
appointed counsel. See P.M., 2016 WL 1274748, at *3.
Counsel’s motion to withdraw is denied, and this appeal is dismissed as to the
mother only.
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II. Father’s Appeal
The father of A.A. and A.A. filed an appeal. Because the fathers of the other
three children did not appeal, we will refer to the father of A.A. and A.A. as “the
father” and to A.A. and A.A. as “the children” in this opinion. The father presents
five issues for our review. In these issues, he contends that the trial court abused its
discretion when it terminated his parental rights because the evidence was legally
and factually insufficient to support termination and because his constitutional rights
were violated.
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine on
appeal if the evidence is legally sufficient in a parental termination case, we review
all of the evidence in the light most favorable to the finding and determine whether
a rational trier of fact could have formed a firm belief or conviction that its finding
was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown by clear and
convincing evidence that the parent has committed one of the acts listed in
Section 161.001(b)(1)(A)–(T) and that termination is in the best interest of the child.
FAM. § 161.001(b).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
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limited to, (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 individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals 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. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
In this case, the trial court found that the father committed three of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found that the father had knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered the
children’s physical or emotional well-being; that the father had engaged in conduct
or knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being; and that the father had
failed to comply with the provisions of a court order that specifically established the
actions necessary for him to obtain the return of the children, who had been in the
managing conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the children’s removal from the parent for
abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of the father’s parental rights would be in the best interest of the children.
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With respect to the father’s second issue, we hold that the trial court did not
abuse its discretion in finding that the father engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangered the physical or
emotional well-being of the children. See FAM. § 161.001(b)(1)(E). There was clear
and convincing evidence from which the trier of fact could reasonably have formed
a firm belief as to that finding.
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). The offending conduct does not need to be
directed at the child, nor does the child actually have to suffer an injury. In re J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009). Domestic violence may constitute evidence of
endangerment. Id.; C.J.O., 325 S.W.3d at 265.
In this case, there was evidence that the father endangered the physical or
emotional well-being of the children in various ways: he committed domestic
violence; engaged in a course of conduct that included drug use, criminal offenses,
and attempted suicide; and knowingly placed his children with the mother, who
engaged in conduct that endangered the children’s physical or emotional well-being.
The record reveals that the mother and the father engaged in domestic violence to an
extent that the police were called several times. The father was convicted of assault
family violence against the mother. The father was incarcerated for that crime at the
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time of removal, which occurred in July 2014; he remained incarcerated until
November 2014. Although the father denied that domestic violence had occurred in
the children’s presence, the testimony of other witnesses indicated that the children
were in fact present. The record shows that the father had also engaged in domestic
violence with a previous girlfriend and had been convicted twice for family violence
against the previous girlfriend. Additionally, the record indicates that the father
attempted to commit suicide three times: once in the garage of his house while the
children were in the house.
Prior to the children’s removal, the mother’s synthetic marihuana was located
in places that were accessible to the children. A.R. testified that both parents had
smoked marihuana while the children were in their lap. While this case was pending,
both parents tested positive for illegal substances. The father tested positive for
marihuana, and the mother tested positive for methamphetamine, amphetamine, and
marihuana. The father admitted that he was aware of the mother’s use of marihuana
and that he was aware that she had tested positive for methamphetamine. Despite
such knowledge, he continued his relationship with the mother and continued to
desire that the entire family be reunited.
The evidence is legally and factually sufficient to support the finding under
Section 161.001(b)(1)(E) because the father engaged in a voluntary, deliberate, and
conscious course of conduct that endangered the children’s well-being.
Additionally, nothing in the record indicates that the father’s constitutional rights
were violated or that he preserved any such complaint for appellate review by
bringing it to the attention of the trial court. See TEX. R. APP. P. 33.1(a). The father’s
second issue is overruled.
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Because a finding that the father committed one of the acts listed in
Section 161.001(b)(1)(A)–(T) is all that is required and because we have held that
the evidence is sufficient to support the trial court’s finding under subsection (E), we
need not address the father’s first and third issues in which he challenges the findings
made pursuant to subsections (D) and (O). See TEX. R. APP. P. 47.1.
With respect to the father’s fourth issue, we hold that, based on the evidence
presented at trial and the Holley factors, the trier of fact could reasonably have
formed a firm belief or conviction that termination of the father’s parental rights
would be in the best interest of the children. See Holley, 544 S.W.2d at 371–72. The
record indicates that the children were bonded with the mother and the father; that
their visits went well; and that, at the time of the de novo hearing, the children had
only lived with their prospective adoptive parents for about a month. However, upon
considering the record as it relates to the emotional and physical needs of the
children now and in the future, the emotional and physical danger to the children
now and in the future, the parental abilities of the father and the prospective adoptive
parents, the plans for the children by the Department, the stability of the children’s
placement, acts and omissions indicating that the parent-child relationship was not a
proper one, the domestic violence committed by the father, the father’s continued
relationship with the mother, both parents’ drug use, and the father’s criminal
history, we hold that the evidence is legally and factually sufficient to support the
finding that termination of the father’s parental rights is in the best interest of the
children. See id. The trial court did not abuse its discretion when it found by clear
and convincing evidence that termination of the father’s parental rights was in the
best interest of the children. The father’s fourth issue is overruled.
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In his fifth issue, the father contends that the trial court erred and abused its
discretion when it ignored repeated violations of the father’s constitutional rights.
The father failed to object or otherwise apprise the trial court of any alleged violation
of his constitutional rights. The father has therefore failed to preserve any such
complaint for appellate review. See TEX. R. APP. P. 33.1(a); In re B.L.D., 113
S.W.3d 340, 350 (Tex. 2003). Moreover, the record does not support the father’s
contention that his constitutional rights were violated. Consequently, we overrule
the father’s fifth issue.
This Court’s Ruling
We dismiss this appeal as to the mother, and we affirm the trial court’s order
of termination.
JOHN M. BAILEY
JUSTICE
September 22, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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