Affirm and Opinion Filed December 15, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00341-CV
IN THE INTEREST OF A.C., A CHILD
On Appeal from the County Court At Law No. 1 Kaufman County, Texas Trial Court Cause No. 107543-CC
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Nowell The trial court terminated Father’s parental rights to his child, A.C., following
a one-day bench trial. Father’s court-appointed attorney filed a brief concluding the
appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744
(1967); In re D.D., 279 S.W.3d 849, 849–50 (Tex. App.—Dallas 2009, pet. denied)
(applying Anders procedure in appeal from termination of parental rights). Because
we find no meritorious issues in our review of the record, we affirm the trial court’s
order. FACTUAL BACKGROUND On February 11, 2021, an officer stopped Father’s vehicle in which Mother1
was a passenger. Mother was arrested for possession of a controlled substance, and
five-year-old A.C. was released to Father. Father was not a licensed driver.
After the traffic stop, police contacted the Department of Family and
Protective Services. A safety plan for A.C. was put into place on February 23. The
plan called for a neighbor to regularly check on A.C. Subsequently, the neighbor
contacted the Department to report that Father attempted to purchase urine from the
neighbor for a drug test. A.C. was removed from Father’s care, placed with family
members, and then moved to foster care. When the Department was named as A.C.’s
temporary managing conservator, Ashley Gaskey was assigned as his case worker
and Doug Pritchard was the appointed CASA and guardian ad litem.
Gaskey met with Father to discuss his social history and create a service plan,
which the trial court took judicial notice of during trial. Father acknowledged he
understood what was being asked of him. Father began using methamphetamines at
or near the time of A.C.’s birth. His services included attending a drug-treatment
program. Throughout the pendency of this case, including after being ordered to
participate in substance abuse treatment, Father failed to appear for drug tests. When
a person fails to appear for drug testing, the Department considers the test a
1 Mother’s parental rights also were terminated in the same proceeding. We addressed the issues Mother raised on appeal in a separate opinion. See In re A.C., No. 05-22-00341-CV, 2022 WL 4923519, at *1 (Tex. App.—Dallas Oct. 4, 2022, no pet. h.) (mem. op.). –2– presumed positive. Gaskey had no reason to believe that Father had addressed his
methamphetamine addiction. Gaskey testified that drug use was the biggest
impediment to Father having a stable home, a stable job, and A.C. returned. When
asked whether the parents understood that their use of methamphetamines negatively
affected their ability to parent, Gaskey testified: “No. They thought if [A.C.] was in
a different room when they were smoking, it wasn’t impacting him. Even though
they were under the influence, they were still able to parent [A.C.] effectively.”
Father was required to obtain stable housing, but he did not do so. Gaskey
testified that before A.C. was removed, Mother and Father lived in a house where
the roof “was falling in,” “there were no steps to the house,” and the house smelled
like methamphetamines. Mother confirmed they had smoked methamphetamines in
the house. After A.C. was removed, Father and Mother lost this housing when Father
lost his job, and they then lived in their car, a motel, and with Father’s family.
Father was required to provide proof of income, but did not do so. Father had
four jobs during the pendency of the case. Initially, Father worked as a ranch hand
and a handyman. He lost his job as a ranch hand when he stopped going to work
because he and Mother were fighting. Father also worked at a job in Shreveport for
approximately two months; Father did not see A.C. during this time and did not tell
Gaskey that he was living and working in Shreveport. Between December 2021 and
the trial date, March 17, 2022, Father worked for a company that provided car
washing services at a car dealership; Gaskey visited Father at the car dealership and
–3– confirmed Father was employed, but she was unable to determine how many hours
per week he worked. Father’s last visit with A.C. was on December 27, 2021; Father
said he stopped visiting because he did not want to take time off from work.
Father reported Mother physically abused him. Gaskey testified: “[Father]
told me that him [sic] and [Mother] would fight all the time. She would throw things
at him. He’s missing part of his ear, and he told me that was from a situation he was
having with [Mother] and he lost part of his ear.” He explained that Mother “threw
something at him and it tore off part of his ear.” Gaskey saw fresh wounds on Father
and confirmed part of Father’s ear was missing. When Father reported the abuse to
Gaskey, he and Mother had separated, but they reunited the following week.
A.C. initially was placed with a foster family for approximately three months
and then with an uncle and aunt; he continued living with the uncle and aunt through
the time of trial. Gaskey testified the uncle “reported that he knows [A.C.] was left
alone on multiple occasions when [Mother and Father] had him.”
The foster family where A.C. was initially placed was interested in adopting
A.C. Gaskey testified the family wanted “him to come back in the home and make
sure that everything is still good with him and the other children in the home. They
are open to adopting if things go well.” The Department considered this placement
suitable for A.C., and, if the Department remained the conservator after trial, Gaskey
expected A.C. would be moved the following week. She believed this placement
would be in his best interest. Pritchard testified A.C. received “[o]utstanding care”
–4– in the foster home, and Pritchard opposed A.C. leaving that home. He “[a]bsolutely”
believed the foster home was equipped to meet all of A.C.’s needs, and it is in his
best interest to return there.
Gaskey did not believe it was in A.C.’s best interest to be returned to a parent
who is actively using methamphetamines or lacked stable housing or jobs. When
asked whether he thought termination was in A.C.’s best interest, Pritchard replied
“[a]bsolutely.” He also believed it was in A.C.’s best interest to obtain permanency
through adoption.
The trial court terminated Father’s parental rights pursuant to subsections
161.001(b)(1)(D), (E), (O), (P) of the family code and found termination was in
A.C.’s best interest pursuant to subsection 161.001(b)(2).
DISCUSSION
Father’s court-appointed counsel filed an Anders brief. The Court provided a
copy of the brief to Father and advised him of his right to review the record and file
a pro se response. Father did not file a response.
Upon receiving an Anders brief, we conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio,
488 U.S. 75, 80 (1988).
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Affirm and Opinion Filed December 15, 2022
In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00341-CV
IN THE INTEREST OF A.C., A CHILD
On Appeal from the County Court At Law No. 1 Kaufman County, Texas Trial Court Cause No. 107543-CC
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Nowell The trial court terminated Father’s parental rights to his child, A.C., following
a one-day bench trial. Father’s court-appointed attorney filed a brief concluding the
appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744
(1967); In re D.D., 279 S.W.3d 849, 849–50 (Tex. App.—Dallas 2009, pet. denied)
(applying Anders procedure in appeal from termination of parental rights). Because
we find no meritorious issues in our review of the record, we affirm the trial court’s
order. FACTUAL BACKGROUND On February 11, 2021, an officer stopped Father’s vehicle in which Mother1
was a passenger. Mother was arrested for possession of a controlled substance, and
five-year-old A.C. was released to Father. Father was not a licensed driver.
After the traffic stop, police contacted the Department of Family and
Protective Services. A safety plan for A.C. was put into place on February 23. The
plan called for a neighbor to regularly check on A.C. Subsequently, the neighbor
contacted the Department to report that Father attempted to purchase urine from the
neighbor for a drug test. A.C. was removed from Father’s care, placed with family
members, and then moved to foster care. When the Department was named as A.C.’s
temporary managing conservator, Ashley Gaskey was assigned as his case worker
and Doug Pritchard was the appointed CASA and guardian ad litem.
Gaskey met with Father to discuss his social history and create a service plan,
which the trial court took judicial notice of during trial. Father acknowledged he
understood what was being asked of him. Father began using methamphetamines at
or near the time of A.C.’s birth. His services included attending a drug-treatment
program. Throughout the pendency of this case, including after being ordered to
participate in substance abuse treatment, Father failed to appear for drug tests. When
a person fails to appear for drug testing, the Department considers the test a
1 Mother’s parental rights also were terminated in the same proceeding. We addressed the issues Mother raised on appeal in a separate opinion. See In re A.C., No. 05-22-00341-CV, 2022 WL 4923519, at *1 (Tex. App.—Dallas Oct. 4, 2022, no pet. h.) (mem. op.). –2– presumed positive. Gaskey had no reason to believe that Father had addressed his
methamphetamine addiction. Gaskey testified that drug use was the biggest
impediment to Father having a stable home, a stable job, and A.C. returned. When
asked whether the parents understood that their use of methamphetamines negatively
affected their ability to parent, Gaskey testified: “No. They thought if [A.C.] was in
a different room when they were smoking, it wasn’t impacting him. Even though
they were under the influence, they were still able to parent [A.C.] effectively.”
Father was required to obtain stable housing, but he did not do so. Gaskey
testified that before A.C. was removed, Mother and Father lived in a house where
the roof “was falling in,” “there were no steps to the house,” and the house smelled
like methamphetamines. Mother confirmed they had smoked methamphetamines in
the house. After A.C. was removed, Father and Mother lost this housing when Father
lost his job, and they then lived in their car, a motel, and with Father’s family.
Father was required to provide proof of income, but did not do so. Father had
four jobs during the pendency of the case. Initially, Father worked as a ranch hand
and a handyman. He lost his job as a ranch hand when he stopped going to work
because he and Mother were fighting. Father also worked at a job in Shreveport for
approximately two months; Father did not see A.C. during this time and did not tell
Gaskey that he was living and working in Shreveport. Between December 2021 and
the trial date, March 17, 2022, Father worked for a company that provided car
washing services at a car dealership; Gaskey visited Father at the car dealership and
–3– confirmed Father was employed, but she was unable to determine how many hours
per week he worked. Father’s last visit with A.C. was on December 27, 2021; Father
said he stopped visiting because he did not want to take time off from work.
Father reported Mother physically abused him. Gaskey testified: “[Father]
told me that him [sic] and [Mother] would fight all the time. She would throw things
at him. He’s missing part of his ear, and he told me that was from a situation he was
having with [Mother] and he lost part of his ear.” He explained that Mother “threw
something at him and it tore off part of his ear.” Gaskey saw fresh wounds on Father
and confirmed part of Father’s ear was missing. When Father reported the abuse to
Gaskey, he and Mother had separated, but they reunited the following week.
A.C. initially was placed with a foster family for approximately three months
and then with an uncle and aunt; he continued living with the uncle and aunt through
the time of trial. Gaskey testified the uncle “reported that he knows [A.C.] was left
alone on multiple occasions when [Mother and Father] had him.”
The foster family where A.C. was initially placed was interested in adopting
A.C. Gaskey testified the family wanted “him to come back in the home and make
sure that everything is still good with him and the other children in the home. They
are open to adopting if things go well.” The Department considered this placement
suitable for A.C., and, if the Department remained the conservator after trial, Gaskey
expected A.C. would be moved the following week. She believed this placement
would be in his best interest. Pritchard testified A.C. received “[o]utstanding care”
–4– in the foster home, and Pritchard opposed A.C. leaving that home. He “[a]bsolutely”
believed the foster home was equipped to meet all of A.C.’s needs, and it is in his
best interest to return there.
Gaskey did not believe it was in A.C.’s best interest to be returned to a parent
who is actively using methamphetamines or lacked stable housing or jobs. When
asked whether he thought termination was in A.C.’s best interest, Pritchard replied
“[a]bsolutely.” He also believed it was in A.C.’s best interest to obtain permanency
through adoption.
The trial court terminated Father’s parental rights pursuant to subsections
161.001(b)(1)(D), (E), (O), (P) of the family code and found termination was in
A.C.’s best interest pursuant to subsection 161.001(b)(2).
DISCUSSION
Father’s court-appointed counsel filed an Anders brief. The Court provided a
copy of the brief to Father and advised him of his right to review the record and file
a pro se response. Father did not file a response.
Upon receiving an Anders brief, we conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio,
488 U.S. 75, 80 (1988). The brief filed by Father’s counsel meets the requirements
of Anders by presenting a professional evaluation of the record demonstrating why
there are no arguable grounds to be advanced on appeal. See Anders, 386 U.S. at
744; In re D.D., 279 S.W.3d at 849–50. We independently reviewed the entire record
–5– and counsel’s Anders brief, and we agree that the appeal is frivolous and without
merit.
Counsel’s brief states he is filing a motion to withdraw and requests we grant
leave for him to withdraw as appellate counsel; no separate motion was filed with
the Court. A court-appointed attorney’s duties to a client in a parental rights
termination case continue through the filing of a petition for review, and a motion to
withdraw may be premature unless good cause is shown. In re P.M., 520 S.W.3d 24,
27 (Tex. 2016) (per curiam). Counsel has not shown good cause for withdrawing
from his representation of Father, and, as a result, his obligations have not been
discharged. See id.
CONCLUSION
We affirm the trial court’s final order terminating Father’s parental rights to
A.C.
/Erin A. Nowell// 220341f.p05 ERIN A. NOWELL JUSTICE
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF A.C., A On Appeal from the County Court At CHILD, Appellant Law No. 1, Kaufman County, Texas Trial Court Cause No. 107543-CC. No. 05-22-00341-CV Opinion delivered by Justice Nowell. Justices Partida-Kipness and Pedersen, III participating.
In accordance with this Court’s opinion of this date, the order of termination of the trial court is AFFIRMED.
Judgment entered this 15th day of December 2022.
–7–