in the Interest of J.P., J.S.P., and A.P., Children

Opinion filed March 9, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00209-CV
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IN THE INTEREST OF J.P., J.S.P., AND A.P., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 7971-CX
MEMORAND UM OPI NI ON
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of J.P., J.S.P., and A.P. after previously having
entered an order denying a petition to terminate the parents’ parental rights. Both
parents filed a notice of appeal. We affirm the order of termination.
Mother’s Appeal
The mother’s court-appointed counsel has filed a brief in which he
professionally and conscientiously examines the record and applicable law and
concludes that the appeal is frivolous and without merit. 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).
Counsel provided the mother with a copy of the brief and an explanatory letter.
Counsel informed the mother 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 a copy of the clerk’s
record and the reporter’s record. Counsel also notified the mother of her right to
pursue a petition for review in the Texas Supreme Court. We conclude that the
mother’s counsel has satisfied his duties under Anders, Schulman, and Kelly. We
note that the mother has not filed a pro se response to counsel’s Anders brief.
Following the procedures outlined in Anders and Schulman, we have independently
reviewed the record in this cause, and we agree that the mother’s appeal is without
merit.
Although the mother’s court-appointed counsel did not file a motion to
withdraw in conjunction with the Anders brief, he requests that this court grant him
leave to file a motion to withdraw. The Texas Supreme Court has held, however,
that 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., 520 S.W.3d 24, 27
(Tex. 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. at 27–28. In light of P.M., we deny counsel’s request for leave to file a
motion to withdraw in this court.
Father’s Appeal
In a single issue on appeal, the father challenges the legal and factual
sufficiency of the evidence to support the trial court’s findings in support of the
termination of his parental rights. Termination of parental rights must be supported
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by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp.
2020). 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)–(U) and that
termination is in the best interest of the child. FAM. § 161.001(b).
In this case, the trial court found that the father had committed two of the acts
listed in Section 161.001(b)(1)—those found in subsections (E) and (N).
Specifically, the trial court found 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 constructively
abandoned the children. 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. The trial court found further, pursuant to
Section 161.004, that there had been a material and substantial change in the
circumstances of the children and the parents since the trial court’s denial of a prior
petition to terminate. See id. § 161.004(a) (West 2014).
Section 161.004(a) provides that, after the rendition of an order that
previously denied termination of the parent–child relationship, a trial court may
terminate the parent–child relationship if (1) a subsequent petition seeking to
terminate parental rights was filed after the date that the order denying the
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termination was rendered; (2) the circumstances of the child, parent, conservator, or
other party affected by the order denying termination have materially and
substantially changed “since the date that the order was rendered”; (3) the parent
committed an act listed in Section 161.001 “before the date the order denying
termination was rendered”; and (4) termination of the parent–child relationship is in
the best interest of the child. Id. § 161.004(a). At a hearing under Section 161.004,
the trial court may consider evidence presented at a previous hearing on termination.
Id. § 161.004(b).
When the Department seeks termination after a trial court’s prior denial of
termination, the Department is not limited to proceeding under Section 161.004. In
such a situation, the trial court may terminate parental rights (1) under
Section 161.001, which requires clear and convincing evidence of acts or omissions
having occurred since the denial, or (2) under Section 161.004, which requires clear
and convincing evidence of an act or omission under Section 161.001 that occurred
before the denial and evidence of a material and substantial change since the denial.
In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—Houston [14th Dist.] 2017, pet. denied);
In re K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet. denied). Here,
the Department sought termination under both sections.
In his sole issue on appeal, the father challenges the sufficiency of the
evidence to support the termination of his parental rights under Section 161.004.
The father does not challenge the sufficiency of the evidence with respect to the trial
court’s finding that the circumstances of the parents and the children had materially
and substantially changed. See FAM. § 161.004(a)(2). Rather, the father asserts that,
because the trial court had denied the Department’s prior petition based upon the
trial court’s finding that the Department had failed to meet its burden of proof in the
previous trial, the trial court could not later consider—as evidence to support the
Department’s subsequent request for termination—any conduct committed by the
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father prior to the date of the previous order denying termination. See id.
§ 161.004(a)(3). Our review of the record reveals that the conduct that would
support a finding as to the father under Section 161.001(b)(1)(E) occurred prior to
the trial court’s previous order denying termination. The father asserts that, because
the trial court could not consider conduct committed by the father prior to the trial
court’s order denying termination, the evidence was insufficient to support the trial
court’s findings under Section 161.001(b)(1)(E) and (N). We disagree with the
premise underlying the father’s contention.
The father is correct in stating that the trial court denied the Department’s
previous petition to terminate the father’s parental rights and that, at least with
respect to J.P. and J.S.P., the basis of that denial was the trial court’s determination
that the Department had failed to meet its burden of proof. The father is not correct,
however, in assuming that the trial court found that the Department had failed to
meet its burden of proof with respect to the father’s conduct: i.e.,
Section 161.001(b)(1). Nothing in the record supports such an assumption. The trial
court’s denial may well have been based upon the Department’s failure to meet its
burden of proof with respect to the best interests of the children: i.e.,
Section 161.001(b)(2).
Moreover, Section 161.004(b) specifically provides that a trial court may
consider evidence presented at a previous hearing. The language of
Section 161.004(b) has been interpreted to bar a res judicata complaint about the
relitigation of issues previously tried in a parental termination case. See K.G., 350
S.W.3d at 346, 349. Thus, it was proper for the trial court to consider conduct
committed by the father prior to the trial court’s previous denial of the petition to
terminate.
We must next consider whether the evidence was sufficient to support the trial
court’s finding under Section 161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230,
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234–35 (Tex. 2019) (addressing due process and due course of law with respect to
appellate review of grounds (D) and (E) and holding that an appellate court must
provide a detailed analysis if affirming the termination on either of these grounds).
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, 34 (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 need not 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). Drug use may constitute evidence of endangerment. Id. A
parent’s drug addiction and its effect on the parent’s life and ability to parent a child
may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d 117, 125–
26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of Protective
& Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ)).
Further, domestic violence may also constitute evidence of endangerment. C.J.O.,
325 S.W.3d at 265.
The record shows that J.P., J.S.P., and A.P. had been removed from the care of
their parents in January 2015. At the time of removal, the Department had received
two separate intakes involving the family. The intakes related to the use of drugs by
the parents, the living conditions to which the children were exposed, neglectful
supervision of the children, physical abuse, and domestic violence. When J.P. and
J.S.P. were finally located, they were in a motel room with two other children and
four adults, including adults with an extensive criminal history. The parents were
not present in the room at that time and had left J.P. and J.S.P. with inappropriate
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caregivers. The room had been “trashed,” and the motel staff reported that they had
heard “screaming, yelling, and things of that nature” coming from the room. The
manager reported having seen the father with bruises and blood on his face multiple
times. The record reflects that the father has an extensive criminal history, that
domestic violence occurred in the presence of the children, and that drug use
occurred in the presence of the children.
The children were removed from the parents, and the Department
subsequently filed a petition to terminate the parents’ parental rights as to J.P. and
J.S.P. The Department filed another petition to terminate, with respect to A.P., after
she was born. The two causes were subsequently consolidated.
Although the father seemed to be concerned about his children and their best
interest while the proceedings were pending below, he has not seen his children in
years. Other than a few phone calls early in the case, the father did not call or visit
the children while this case was pending—not even when he was out of jail—and he
did not answer his phone when the foster parents called him for the scheduled phone
visitation that had been ordered by the trial court.
The Department’s goal for the children was termination of the parents’ rights
and adoption by the foster parents with whom the children had been placed for
approximately five years. By all accounts, the children had bonded with the foster
parents, were happy with them, and had a wonderful relationship with them. The
eldest child, J.P., was adamant that he did not want to be returned to the parents and
that he wanted to be adopted by the foster parents. The foster mother testified that
she and her husband intended to adopt all three children if they became available for
adoption.
Here, based upon evidence of domestic violence committed by the father
against the mother while the children were in their care, the father’s extensive
criminal history, and the use of drugs in the children’s presence, the trial court could
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have reasonably found by clear and convincing evidence that the father had engaged
in a course of conduct that endangered his children or that he had knowingly placed
the children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being. Therefore, we hold that the evidence is legally
and factually sufficient to uphold the trial court’s finding as to the father under
subsection (E).
The record contains clear and convincing evidence to support the trial court’s
findings under Section 161.001(b)(1)(E) and Section 161.004. The evidence was
uncontroverted that, prior to the previous order denying termination, the father had
engaged in conduct that endangered his children’s physical or emotional well-being.
Because only one statutory ground is necessary to support termination and because
we have upheld the trial court’s finding as to subsection (E), we need not address the
father’s contention regarding the sufficiency of the evidence under subsection (N).
See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also TEX. R.
APP. P. 47.1. Accordingly, we overrule the father’s sole issue.
This Court’s Ruling
We affirm the trial court’s order of termination.
W. BRUCE WILLIAMS
JUSTICE
March 9, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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