TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00805-CV
B. A., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-22-008572, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant B.A. (Mother) appeals from the district court’s order, following a bench
trial, terminating her parental rights to her son, J.L. (John), who was approximately one year old
at the time of trial.1 Mother’s court-appointed counsel has filed an Anders brief concluding that
the 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 & n.10 (Tex. 2016) (per curiam) (approving use of Anders
procedure in appeals from termination of parental rights). The 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 & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
Counsel has certified to this Court that he has provided Mother with a copy of the Anders brief
1 For the child’s privacy, we refer to him using a pseudonym and to his parents and other relatives by their familial relationships to each other. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. and informed her of her right to examine the appellate record and to file a pro se brief. No pro se
brief has been filed.
Upon receiving an Anders brief, we must conduct a full examination of the record
to determine whether the appeal is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80
(1988); Taylor, 160 S.W.3d at 647. According to the affidavit in support of relief filed by the
Texas Department of Family and Protective Services (the Department), a copy of which was
admitted into evidence at the termination trial, the case began in October 2022, shortly after John
was born, when the Department received a referral that Mother had “given birth outside of a
Goodwill with little to no prenatal care and both her and [John] were positive for opiates on a
urine analysis drug testing at birth.” The referral further stated that Mother and John’s father
were homeless and that Mother had been diagnosed with bipolar disorder but was not receiving
any medications. The Department received an additional referral stating that Mother had
“consumed methamphetamines and heroin throughout the pregnancy which as a result led to
[John] experiencing signs of withdraw[al].” During the investigation, Mother admitted to
“shooting up” heroin during her pregnancy, “including twice before she knew that she was
pregnant and three times after knowing that she was.” John’s meconium results returned positive
for opioids and THC. The Department also received information that Father used illegal
substances, including methamphetamine and marijuana.
Based on the above information, the Department filed a petition requesting that
Mother and Father participate in court-ordered services, including drug testing. The Department
later amended its pleadings to seek termination of Mother’s and Father’s parental rights to John.
The case proceeded to a bench trial. Department investigator Kate Torres
testified about the circumstances leading to John’s removal, including the Department’s concerns
2 regarding Mother’s admitted drug use during pregnancy, John’s positive drug test, and Mother’s
untreated bipolar disorder. When Torres went to the hospital to speak with the family, she
observed John experiencing physical symptoms of withdrawal, including “tremors that were
pretty bad,” difficulty feeding, and frequent vomiting. Torres spoke to Mother and Father about
participating in the Department’s drug-court program, which would allow them to have custody
of John while working services. Mother agreed to participate but Father did not. The
Department transported Mother and John to a drug-treatment facility in Houston. However, after
one day, Mother left the facility, telling Torres that “she no longer wanted to participate in the
program.” Torres advised Mother that discontinuing drug court meant that John would be
removed from her care, and Mother indicated that she understood, informing Torres that she
wanted to return to Austin to be with Father. Torres also testified that Mother and Father did not
complete three requested drug tests in October and November 2022.
While the case was ongoing, Father was arrested for the offense of unauthorized
use of a motor vehicle, and Mother was with him at the time of the arrest. Officer Christopher
King of the Austin Police Department (APD) testified that on May 19, 2023, he and other
officers responded to a report of a stolen vehicle. Officers conducted a traffic stop on the
vehicle, and the occupants of the vehicle were identified as Father and Mother. Officers found
drug paraphernalia inside the vehicle, including narcotics pipes with burnt residue, foil with burn
marks on it, small baggies, and, within a black backpack located in the backseat behind where
Mother was sitting, a prescription pill bottle with Mother’s name on it and a clear plastic bag
containing “numerous tablets” that King “recognized from training and experience to be
consistent with MDMA or Ecstasy tablets.” The tablets later tested positive for
methamphetamine with a total weight of 11.5 grams.
3 Department caseworker Melynie Harris testified that during the case, Mother had
not engaged in her court-ordered services. Specifically, Mother had not attended therapy
sessions, taken parenting classes, completed a psychological evaluation, or completed an
Outpatient Screening Assessment Referral (OSAR) for substance abuse. Mother had completed
only three out of thirteen requested drug tests, and she had participated in only nine visits with
John between November 2022 and November 2023, even though the Department had authorized
visits on a weekly basis. Because of the lack of regular visitation between Mother and John,
Harris did not believe that John had formed a bond with Mother. Harris also did not believe that
Mother had addressed her substance-abuse issues or demonstrated that she could provide a safe
and protective home for John.
Throughout the case, John had been placed with his maternal great aunt (Aunt).
Harris testified that the Department’s plan for John was for him to continue to reside with and be
adopted by Aunt. Harris had visited John in Aunt’s home, and John appeared happy there, “very
active,” “very comfortable,” and “very bonded with the caregiver.” Harris believed that Aunt
had provided for John’s physical and emotional needs, and the Department had no concerns
about Aunt’s ability to meet John’s future emotional, medical, and physical needs. The
Department believed Aunt was a loving and safe placement and that John would continue to
grow and thrive there.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00805-CV
B. A., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-22-008572, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant B.A. (Mother) appeals from the district court’s order, following a bench
trial, terminating her parental rights to her son, J.L. (John), who was approximately one year old
at the time of trial.1 Mother’s court-appointed counsel has filed an Anders brief concluding that
the 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 & n.10 (Tex. 2016) (per curiam) (approving use of Anders
procedure in appeals from termination of parental rights). The 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 & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
Counsel has certified to this Court that he has provided Mother with a copy of the Anders brief
1 For the child’s privacy, we refer to him using a pseudonym and to his parents and other relatives by their familial relationships to each other. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. and informed her of her right to examine the appellate record and to file a pro se brief. No pro se
brief has been filed.
Upon receiving an Anders brief, we must conduct a full examination of the record
to determine whether the appeal is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80
(1988); Taylor, 160 S.W.3d at 647. According to the affidavit in support of relief filed by the
Texas Department of Family and Protective Services (the Department), a copy of which was
admitted into evidence at the termination trial, the case began in October 2022, shortly after John
was born, when the Department received a referral that Mother had “given birth outside of a
Goodwill with little to no prenatal care and both her and [John] were positive for opiates on a
urine analysis drug testing at birth.” The referral further stated that Mother and John’s father
were homeless and that Mother had been diagnosed with bipolar disorder but was not receiving
any medications. The Department received an additional referral stating that Mother had
“consumed methamphetamines and heroin throughout the pregnancy which as a result led to
[John] experiencing signs of withdraw[al].” During the investigation, Mother admitted to
“shooting up” heroin during her pregnancy, “including twice before she knew that she was
pregnant and three times after knowing that she was.” John’s meconium results returned positive
for opioids and THC. The Department also received information that Father used illegal
substances, including methamphetamine and marijuana.
Based on the above information, the Department filed a petition requesting that
Mother and Father participate in court-ordered services, including drug testing. The Department
later amended its pleadings to seek termination of Mother’s and Father’s parental rights to John.
The case proceeded to a bench trial. Department investigator Kate Torres
testified about the circumstances leading to John’s removal, including the Department’s concerns
2 regarding Mother’s admitted drug use during pregnancy, John’s positive drug test, and Mother’s
untreated bipolar disorder. When Torres went to the hospital to speak with the family, she
observed John experiencing physical symptoms of withdrawal, including “tremors that were
pretty bad,” difficulty feeding, and frequent vomiting. Torres spoke to Mother and Father about
participating in the Department’s drug-court program, which would allow them to have custody
of John while working services. Mother agreed to participate but Father did not. The
Department transported Mother and John to a drug-treatment facility in Houston. However, after
one day, Mother left the facility, telling Torres that “she no longer wanted to participate in the
program.” Torres advised Mother that discontinuing drug court meant that John would be
removed from her care, and Mother indicated that she understood, informing Torres that she
wanted to return to Austin to be with Father. Torres also testified that Mother and Father did not
complete three requested drug tests in October and November 2022.
While the case was ongoing, Father was arrested for the offense of unauthorized
use of a motor vehicle, and Mother was with him at the time of the arrest. Officer Christopher
King of the Austin Police Department (APD) testified that on May 19, 2023, he and other
officers responded to a report of a stolen vehicle. Officers conducted a traffic stop on the
vehicle, and the occupants of the vehicle were identified as Father and Mother. Officers found
drug paraphernalia inside the vehicle, including narcotics pipes with burnt residue, foil with burn
marks on it, small baggies, and, within a black backpack located in the backseat behind where
Mother was sitting, a prescription pill bottle with Mother’s name on it and a clear plastic bag
containing “numerous tablets” that King “recognized from training and experience to be
consistent with MDMA or Ecstasy tablets.” The tablets later tested positive for
methamphetamine with a total weight of 11.5 grams.
3 Department caseworker Melynie Harris testified that during the case, Mother had
not engaged in her court-ordered services. Specifically, Mother had not attended therapy
sessions, taken parenting classes, completed a psychological evaluation, or completed an
Outpatient Screening Assessment Referral (OSAR) for substance abuse. Mother had completed
only three out of thirteen requested drug tests, and she had participated in only nine visits with
John between November 2022 and November 2023, even though the Department had authorized
visits on a weekly basis. Because of the lack of regular visitation between Mother and John,
Harris did not believe that John had formed a bond with Mother. Harris also did not believe that
Mother had addressed her substance-abuse issues or demonstrated that she could provide a safe
and protective home for John.
Throughout the case, John had been placed with his maternal great aunt (Aunt).
Harris testified that the Department’s plan for John was for him to continue to reside with and be
adopted by Aunt. Harris had visited John in Aunt’s home, and John appeared happy there, “very
active,” “very comfortable,” and “very bonded with the caregiver.” Harris believed that Aunt
had provided for John’s physical and emotional needs, and the Department had no concerns
about Aunt’s ability to meet John’s future emotional, medical, and physical needs. The
Department believed Aunt was a loving and safe placement and that John would continue to
grow and thrive there. Additionally, John had an older brother who was also residing with Aunt.
Aunt testified that John has been in her care since November 2022. Aunt was
aware of John’s withdrawal symptoms after birth, and she made sure to take him to his follow-up
medical appointments. Aunt lived with her husband, three biological children, and John’s older
brother, who was eight years old at the time of trial and had been placed with Aunt in 2017.
Aunt explained that John and his older brother get along well, that John was bonded with her and
4 her family, and that she wanted to adopt him. She believed that it would be traumatizing for
John to be removed from her care.
Aunt testified that Mother did not frequently ask about or visit John. She did not
believe that John knew that Mother and Father were his biological parents or that there was a
bond between Mother and John. Aunt was concerned about Mother’s ability to support John and
remain sober. She recounted that she had known Mother “almost her whole life,” “since she was
three or four years old,” and that “this is a pattern. She does good for a little bit and then after
that she goes back to doing her drugs and not being stable, so it’s just a pattern.”
CASA volunteer Jayne Snyder testified that she first visited John at Aunt’s home
in January 2023 and that CASA personnel had no concerns about the placement. Snyder testified
that CASA personnel were concerned about Mother and Father not engaging in services and not
regularly visiting John. CASA personnel were also concerned about the parents’ ability to
provide a safe environment for John and the fact that John had been exposed to illegal substances
in utero. Snyder testified that John was “thriving” in his current placement, that he was “clearly
bonded to the family,” and that he was “growing and comfortable in the environment.” CASA
personnel were in agreement with the Department’s recommendation that Mother’s and Father’s
parental rights be terminated.
Mother testified that she was sober at the time of trial and had been sober for over
“six, seven months now.” However, she later changed her testimony to “seven, eight months
now,” and she later had difficulty remembering her specific date of sobriety. Mother testified
that her “drug of choice” had been heroin and that the prescription bottle that was found in the
stolen vehicle was for her Suboxone strips, which “helped [her] get off the heroin that [she] was
using.” Mother was receiving assistance from Lifeworks, which Mother described as “an
5 organization that helps young teens, young parents get housed and just they help us maintain our
goals in trying to maintain stability and work.” Mother was currently staying in a hotel that
Lifeworks had provided for her and believed that she was on track to have an apartment within
two months. Mother acknowledged that she had been arrested in May 2023 for possession of a
controlled substance but testified that she did not understand why that would be used against her
“when it’s the past” and she was currently “clean.”
Mother further testified that she had difficulty communicating with the
Department for various reasons when the case began and had been unaware of many of the
services that the court had ordered her to complete. Regarding her decision not to continue with
the drug court program, Mother testified that “she didn’t understand it” and “didn’t know what
exactly [she] was doing” at that time. When asked if it would have been in John’s best interest
for her to participate in drug court, Mother testified, “Everyone’s different. Everyone has their
own pace and time, so I’m ready now to try and—you know what I’m saying—show y’all that I
can be there for my kid and I’m trying to be there for my kid.” She testified that she had not
attended any NA or AA meetings but that she “will start” attending meetings if the court granted
her an extension and gave her more time to prove that she was “ready to be a mother to [her]
son.” Mother acknowledged that she had not completed her court-ordered services but indicated
a willingness to do so if the court continued the case, including completing a psychological
evaluation that she testified was scheduled for the day after trial.
At the conclusion of trial, the district court found by clear and convincing
evidence that Mother had (1) 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;
(2) constructively abandoned the child; and (3) failed to comply with the provisions of a court
6 order that specifically established the actions necessary for Mother to obtain the return of the
child. See Tex. Fam. Code § 161.001(b)(1)(E), (N), (O). The district court further found by
clear and convincing evidence that termination of Mother’s parental rights was in the child’s best
interest. See id. § 161.001(b)(2). The district court made the same findings regarding Father. In
accordance with these findings, the district court terminated Mother’s and Father’s parental
rights to John. This appeal by Mother followed.
After reviewing the entire record and the Anders brief submitted on Mother’s
behalf, we have found nothing in the record that might arguably support an appeal. Our review
included the district court’s endangerment finding, see Tex. Fam. Code § 161.001(b)(1)(E), and
we have found no issue that could be raised on appeal with respect to that finding, see In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019). We agree with counsel that the appeal is frivolous.
CONCLUSION
We affirm the district court’s order of termination.
__________________________________________ Gisela D. Triana, Justice
Before Justices Baker, Triana, and Kelly
Affirmed
Filed: February 28, 2024