in the Interest of W.M., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-21-00324-CV
IN THE INTEREST OF
A.D., A.D., M.D., B.D., C.M. AND A.M., CHILDREN
From the 278th District Court
Madison County, Texas
Trial Court No. 20-16841
_________________________________
IN THE
TENTH COURT OF APPEALS
No. 10-21-00330-CV
IN THE INTEREST OF W.M., A CHILD
From the 278th District Court
Madison County, Texas
Trial Court No. 20-16839
MEMORANDUM OPINION
In Cause No. 10-21-00324-CV, Brandy D. appeals from the trial court’s order
terminating her parental rights to her children, A.D.1, A.D.2, M.D., B.D., C.M., and A.M.
William M. appeals from the trial court’s order terminating his parental rights to C.M.
and A.M. After hearing all the evidence, the trial court found by clear and convincing
evidence that both Brandy and William (1) knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endanger the children, (2) engaged
in conduct or knowingly placed the children with persons who engaged in conduct that
endangers the children, and (3) failed to comply with the provisions of a court order that
specifically established the actions necessary to obtain the return of the children, and
(TEX. FAM. CODE ANN. § 161.001 (b) (1) (D) (E) (O)(West). The trial court further found by
clear and convincing evidence that termination was in the best interest of the children.
TEX. FAM. CODE ANN. § 161.001 (b) (2) (West).
In Cause No. 10-21-00330-CV, William appeals from the trial court’s order
terminating his parental rights to W.M.1 The trial court found by clear and convincing
evidence that William (1) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child, (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangers the child, and (3)
failed to comply with the provisions of a court order that specifically established the
actions necessary for him to obtain the return of the child. (TEX. FAM. CODE ANN. § 161.001
(b) (1) (D) (E) (O)(West). The trial court further found by clear and convincing evidence
1 The mother of W.M. is not a party to this appeal.
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that termination was in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (b)
(2) (West). We affirm the trial court’s orders of termination in both cause numbers.
FATHER’S APPEAL
In both Cause No. 10-21-00324-CV and Cause No. 10-21-330-CV, William’s counsel
filed a brief pursuant to Anders v. California asserting that he has conducted a review of
the record and found no arguable issues to raise on appeal. See Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The procedures set forth in Anders v.
California are applicable to appeals of orders terminating parental rights. In re E.L.Y., 69
S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (per curiam) (applying Anders to parental
termination appeals). See also Taylor v. Texas Dep't of Protective & Regulatory Servs., 160
S.W.3d 641, 646-647 (Tex. App.—Austin 2005, pet. denied).
The brief filed 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. Additionally, William’s attorney advised him that he had filed the
brief pursuant to Anders, that William had the right to review the record and file a pro se
response on his own behalf, and provided William with a copy of the record. William
did not file a response.
In the Anders brief, counsel analyzes the legal and factual sufficiency of the
evidence to support termination. Counsel acknowledges that only one statutory ground
is necessary to support an order of termination in addition to a finding that termination
is in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Counsel
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further evaluates the legal and factual sufficiency of the evidence to support a finding
that termination was in the best interest of the child. Counsel’s brief evidences a
professional evaluation of the record for error, and we conclude that counsel performed
the duties required of an appellate counsel.
Due process requires application of the clear and convincing standard of proof in
cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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. See TEX. FAM. CODE ANN. § 101.007 (West). See also
In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
The Family Code permits a court to order termination of parental rights if the
petitioner establishes one or more acts or omissions enumerated under subsection (1) of
the statute and also proves that termination of the parent-child relationship is in the best
interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West); Holley v. Adams, 544
S.W.2d 367, 370 (Tex. 1976). We agree with counsel’s evaluation that there is clear and
convincing evidence to support termination under Section 161.001(b)(1).
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001 (b) (1), we must also find clear and convincing evidence that termination
of the parent-child relationship was in the children's best interest. See TEX. FAM. CODE
ANN. § 161.001 (b) (2). Evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the child's best
interest. See In re C.H., 89 S.W.3d at 28. There is a long-standing non-exhaustive list of
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factors for a court to consider in deciding the best interest of a child in a termination
case. See Holley, 544 S.W.2d at 371-72.
We agree with counsel’s evaluation that there is clear and convincing evidence
under the appropriate legal and factual sufficiency standards for the trial court to have
determined that termination of the William’s parent-child relationship was in the best
interest of C.M., A.M., and W.M.
Upon receiving a "frivolous appeal" brief, this Court must conduct a full
examination of all proceedings to determine whether the case is wholly frivolous. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also
Interest of E.K., 594 S.W.3d 435, 438 (Tex. App. — Waco 2019) (Gray, C.J., concurring), pet.
den’d, 608 S.W.3d 815 (Tex. 2020). After our review of the entire record and counsel’s brief,
we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State,
178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005).
If William., after consulting with counsel, desires to file a petition for review,
counsel is still under a duty to timely file with the Texas Supreme Court “a petition for
review that satisfies the standards for an Anders brief.”2 See In re P.M., 520 S.W.3d 24, 27-
28 (Tex. 2016).
2 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for
rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders
proceedings
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MOTHER’S APPEAL
In Cause No. 10-21-00324-CV, Brandy brings four issues on appeal in which she
argues that the evidence was insufficient to support the jury’s predicate parental
termination findings under Section 161.001 (b) (1) (D), (E), or (O) of the Texas Family
Code and that the evidence was insufficient to support the finding that termination was
in the best interest of the child.
SUFFICIENCY OF THE EVIDENCE
Only one predicate act under section 161.001 (b) (1) is necessary to support a
judgment of termination in addition to the required finding that termination is in the
child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In conducting a legal
sufficiency review in a parental termination case:
[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder's conclusion and the role of a court conducting a
legal sufficiency review, looking at the evidence in the light most favorable
to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved
or found to be incredible. This does not mean that a court must disregard
all evidence that does not support the finding. Disregarding undisputed
facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
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[A] court of appeals must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.... [T]he
inquiry must be "whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations." A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. If, in light of the entire record, the
disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually
insufficient.
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
ENDANGERING THE CHILDREN
Sections 161.001 (b) (1) (D) and (E) both require a finding of endangerment. To
endanger means to expose to loss or injury, to jeopardize. Texas Department of Human
Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The specific danger to a child's physical
or emotional well-being need not be established as an independent proposition, but it
may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533.
When termination of parental rights is based on section D, the endangerment
analysis focuses on the evidence of the child's physical environment, although the
environment produced by the conduct of the parents bears on the determination of
whether the child's surroundings threaten his or her well-being. In the Interest of E.M.,
494 S.W.3d 209, 221 (Tex. App. —Waco 2015, pet. den’d). Section D permits termination
if the petitioner proves parental conduct caused a child to be placed or remain in an
endangering environment. Id. It is not necessary that the parent's conduct be directed
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toward the child or that the child actually be injured; rather, a child is endangered when
the environment creates a potential for danger which the parent is aware of but
disregards. Id. Conduct that demonstrates awareness of an endangering environment is
sufficient to show endangerment. Id. In considering whether to terminate parental
rights, the court may look at parental conduct both before and after the birth of the child.
Id. Section D permits termination based upon only a single act or omission. In the Interest
of E.M., 494 S.W.3d at 222.
Under subsection 161.001 (b) (1) (E), the relevant inquiry is whether evidence exists
that the endangerment of the child's physical well-being was the direct result of the
parent's conduct, including acts, omissions, or failures to act. Id. Under subsection (E) it
can be either the parent’s conduct or the conduct of a person with whom the parent
knowingly leaves the child that endangers the physical or emotional well-being of the
child. In either instance it is thus the direct result of the parent’s conduct that results in
the termination of the parental rights. It is not necessary, however, that the conduct be
directed at the child or that the child actually suffer injury. In the Interest of E.M., 494
S.W.3d at 222.
Because the evidence pertaining to subsections 161.001 (b) (1) (D) and (E) is
interrelated, we may conduct a consolidated review. In Interest of M.R.J.M., 280 S.W.3d
494, 503 (Tex. App. —Fort Worth 2009, no pet.).
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Brandy is the mother of A.D.1, A.D.2, M.D., B.D., C.M., and A.M. The Texas
Department of Family and Protective Services (the Department) had multiple instances
of involvement with Brandy and William and their children over concerns of neglect and
abuse. In April 2020, the Department became involved with the family due to concerns
about the cleanliness of the house, domestic violence, and William’s mental health. The
Department began providing services to the family at that time.
In October 2020, Sergeant Curtis Klingle, with the Madison County Sheriff’s
Office, responded to a domestic disturbance call at the family’s residence. There were
allegations of an assault and that William was experiencing suicidal thoughts. No one
was arrested at that time. Sergeant Klingle testified that he responded to another
domestic disturbance call with the family in November 2020. William beat A.D.1 with a
belt all over her body. When Brandy tried to intervene, William slapped her and shoved
her. Eventually a neighbor intervened, and William left the residence. Sergeant Klingle
located William at a convenience store, and he was placed under arrest. Brandy told
Sergeant Klingle that William had committed previous acts of domestic violence against
both her and A.D.1. There was testimony that the other children witnessed the domestic
violence in the home.
The children were removed from the home in November 2020 after the domestic
violence allegations. At the time of their removal, the children were infested with lice
and bed bugs. Some of the children had scabies and impetigo. At the time of the removal,
W.M. had a broken arm that was untreated and B.D. had chronic untreated ear infections.
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For no apparent reason, the children were behind on their immunizations, and the
youngest two children had not received any immunizations. Several of the children had
known mental health conditions for which they were not receiving treatment. C.M. and
A.M. had trouble standing because they had been confined in a space without
appropriate room to move around.
There was evidence that the condition of the home was unsanitary. There was
testimony of cat litter throughout the house, animal feces on the floors, and that the house
smelled of urine. There was further testimony of rotten food in the house and that the
refrigerator contained mold and had food sitting in the mold. There was also testimony
that the house was extremely cluttered and not safe for young children. Ladies from a
local church cleaned the home for the family, but it soon returned to being unsanitary.
Both William and Brandy testified that the condition of the home was in an unacceptable
condition for the children.
A neighbor testified that the children were dirty and wore dirty clothes. The
neighbor would bathe the children and wash their clothes. She testified that Brandy and
William did not take care of the children and that they left A.D.1 to care for the children.
The neighbor stated that the children witnessed domestic violence in the home.
Domestic violence may support a finding of endangerment under either Sections
161.001 (b) (1) (D) of Section 161.001 (E) depending on the given circumstances. See In the
Interest of A.L.H., 624 S.W.3d 47, 57 (Tex. App. —El Paso 2021, no pet.). The record shows
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that the children witnessed multiple instances of domestic violence in the home and that
A.D.1 was a victim of domestic violence. Brandy continues to reside with William. A
parent's conduct that subjects a child to a life of uncertainty and instability endangers the
child's physical and emotional well-being. In re R.W., 129 S.W.3d 732, 739 (Tex. App. —
Fort Worth 2004, pet. denied). The record shows that the family had a history of
instability in housing and employment.
Allowing children to live in unsanitary conditions, and neglecting their physical
condition, can be endangerment. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); In the Interest
of A.P., 42 S.W.3d 248, (Tex. App. —Waco 2001, no pet.). The children lived in deplorable
conditions in the home and were infested with lice and bed bugs. We find that the
evidence is legally and factually sufficient to support the trial court’s findings that Brandy
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings that endanger the children and engaged in conduct or knowingly placed
the children with persons who engaged in conduct that endangers the children. TEX.
FAM. CODE ANN. § 161.001 (b) (1) (D) (E) (West). We overrule the first and second issues
on appeal. Only one predicate act under section 161.001 (b) (1) is necessary to support a
judgment of termination in addition to the required finding that termination is in the
child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Because we find that the
evidence is sufficient under Section 161.001 (b) (1) (D) & (E), we have addressed the
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concerns of protecting Brandy’s due process and due course of law rights. See In the
Interest of N.G., 577 S.W.3d 230 (Tex. 2019). We need not address the third issue on appeal.
BEST INTEREST
In the fourth issue, Brandy argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination is in the best interest of
the children. In determining the best interest of a child, a number of factors have been
considered, including (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; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re
S.L., 421 S.W.3d 34, 38 (Tex. App. —Waco 2013, no pet.). The Holley factors focus on the
best interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38.
The goal of establishing a stable permanent home for a child is a compelling state interest.
Id. The need for permanence is a paramount consideration for a child's present and future
physical and emotional needs. Id.
The children’s ages range from fourteen years-old to one year-old. Most of the
children are too young to express their desires; however, there was testimony that the
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children are happy in their current placements. There was also testimony that A.D.1 did
not want to live with William and that Brandy is aware of A.D.1’s desires. Brandy and
William currently reside together in Las Vegas, Nevada, and Brandy plans to continue to
live with him.
The children have many emotional and physical needs. Several of the children
have been diagnosed with medical conditions that require weekly therapy sessions.
Psychologist Dr. Adam Saenz testified that he treats A.D.1, B.D., W.M., and M.D. A.D.1
was diagnosed with Tourette’s disorder, and Dr. Adam Saenz, testified that stress makes
the disorder worse. W.M. was diagnosed with hyper impulsivity, B.D. was diagnosed
with adjustment disorder, and M.D. was diagnosed with ADHD and reactive attachment
disorder. Dr. Saenz stated that if they were placed back in the home where the trauma
occurred, they would go back to their least functional moment. While in Brandy’s care
the children did not receive proper medical treatment, and Keandra Jones with the
Department testified that Brandy did not have an understanding on how to meet the
needs of the children. Jones further stated that she had no confidence Brandy would be
able to get the children the medical care they require.
While in Brandy’s care the children lived in unsanitary conditions, and they were
infected with lice and bedbugs. Brandy relied on A.D.1 to care for the children and clean
the house. Jones testified that Brandy participated in services in Texas, but she did not
show that she made progress in those services. Jones said there was nothing to show that
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Brandy had applied what she learned in services to her life. As of June 2021, there was
no improvement in their housing conditions. Brandy said that she is participating in
services in Las Vegas, but Jones was unable to verify that Brandy actually receives those
services. Jones testified that she has not seen a change in Brandy’s behavior.
The children witnessed domestic violence in the home, and A.D.1 was a victim of
domestic violence. Brandy still lives with William and plans to continue that living
arrangement. At the time of the hearing, Brandy had only recently obtained her own
housing in Las Vegas. The Department could not verify that she would be able to provide
stable housing for the children.
Brandy currently works as an Uber driver. She plans to have a family member
watch the children while she works. She also testified that while the older children are
in school, the younger children can attend a daycare so that she can work. Brandy did
not indicate that she had made arrangements for the children to attend a daycare facility.
Brandy’s current vehicle will not accommodate all of the children, and Brandy did not
testify how she plans to provide transportation for her children. The children are
currently receiving therapy. Their current placements are able to accommodate their
therapy and medical treatment needs. Brandy testified that she would be able to take the
children to therapy appointments, but she did not provide any details indicating that she
had arranged for their treatment.
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The children are not all placed together; however, there was testimony that they
see each other frequently. The children are all doing well in their current placements and
are bonded to their current caregivers. All of the children’s current placements are
willing to adopt the children or to provide care until a permanent placement can be
found.
We find that the evidence is legally and factually sufficient to support the trial
court’s finding that termination of Brandy’s parental rights is in the best interest of the
children. We overrule the fourth issue.
CONCLUSION
In Cause No. 10-21-00324-CV, we affirm the trial court’s order terminating
Brandy’s parental rights to her children A.D.1, A.D.2, M.D., B.D., C.M., and A.M. and
William’s parental rights to his children C.M. and A.M. In Cause No. 10-21-00330-CV,
we affirm the trial court’s order terminating William’s parental right to W.M.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed April 27, 2022
[CV06]
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