A. S. v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: June 29, 2012
• Docket: 03-12-00268-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00268-CV

A. S., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 252,206-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant A.S. has filed a notice of appeal from the district court’s order terminating

her parental rights. A.S.’s court-appointed counsel has filed a motion to withdraw and an Anders

brief, concluding that the appeal is frivolous and without merit. See Anders v. California, 386 U.S.

738, 744 (1967); see also Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d

641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in appeal

from termination of parental rights). We reach the same conclusion and will affirm the order of

termination.

The Texas Department of Family and Protective Services (the Department) filed a

petition to terminate A.S.’s parental rights to her daughter, P.D., an infant. The petition was based

in part on allegations that A.S. had endangered the physical or emotional well-being of the child by,

among other things, using drugs. See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2011). At the final hearing, the district court heard evidence that on March 15, 2012,

Officer Andrew McCatherine of the Killeen Police Department responded to a call of a criminal

trespass at a local motel. Once inside the motel room, McCatherine testified, he discovered A.S.

lying in a bed asleep, unresponsive to McCatherine’s attempts to wake her. Next to the bed,

McCatherine observed what he believed to be drug paraphernalia. According to McCatherine,

when A.S. finally awoke, she admitted to using drugs and was placed under arrest. This incident had

occurred approximately one week before the final hearing commenced.

The district court also heard evidence from Carrie Green, the conservatorship

caseworker assigned to the case. Green provided extensive testimony regarding the case and her

recommendations for the child. During her testimony, Green recited A.S.’s criminal history, which

included multiple arrests and convictions in the past ten years for primarily drug-related offenses.

Green testified that A.S. had engaged in conduct that endangered the child by using drugs, alcohol,

and having drug paraphernalia in the presence of the child, had failed to comply with her court-

ordered service plan for reunification, and had failed to take action to create a safe and stable home

environment for the child. Green further testified that the child had been placed with relatives who

were interested in adopting her and that the child was doing very well in her current placement. In

Green’s opinion, termination was in the best interest of the child.

On the second day of the final hearing, the district court ordered A.S. to submit to

a drug test administered by the Department. A.S. tested positive at that time for amphetamines

and cocaine. A.S. admitted that she had “relapsed.” After this, the district court heard evidence

from Dr. Michael Campbell, who had performed a psychological evaluation on A.S. Dr. Campbell

2 testified that A.S. had been diagnosed with drug dependence, Borderline Personality Disorder,

and Antisocial Personality Disorder, among other things. Based on his evaluation, Dr. Campbell had

concluded that it was unlikely that A.S. could provide a stable home for her child, and he believed

that termination was in the best interest of the child. Another witness who opined that termination

was in the best interest of the child was Venita Mathis, a Department investigator who had concluded

that A.S.’s drug use had endangered the child.

The final witness at the termination hearing was A.S., who admitted to many

of the Department’s allegations against her but attempted to excuse her current behavior by

claiming that her past problems and prior convictions had made it difficult for her to comply with

the court-ordered service plan, care for her child, and find suitable employment.1 A.S. believed that

participating in a drug-rehabilitation program would enable her to take care of herself and her child.

At the conclusion of the hearing, the district court found by clear and convincing

evidence that the allegations in the Department’s petition were true and that termination was in the

best interest of the child. This appeal followed.

Counsel’s brief meets the requirements of Anders by presenting a professional

evaluation of the record and demonstrating that there are no arguable grounds for appeal. See

Anders, 386 U.S. at 744; Taylor, 160 S.W.3d at 646-47. A.S. was provided with a copy of counsel’s

brief and was advised of her right to examine the appellate record and to file a pro se brief. No

pro se brief has been filed.

1 A.S. testified that she currently worked as a “dancer” at a “gentlemen’s club.” She explained that she worked the night shift from 7:00 p.m. until 2:00 a.m. or 4:00 a.m., which made it difficult for her to wake up in the morning and participate in court-ordered services.

3 We have reviewed the record and counsel’s brief and agree that the appeal is

frivolous and without merit. We find nothing in the record that might arguably support the appeal.

See Anders, 386 U.S. at 741-44; Taylor, 160 S.W.3d at 646-47. We affirm the district court’s order

of termination and grant counsel’s motion to withdraw.

__________________________________________

Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: June 29, 2012