Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00499-CV
In the Interest of A.N.A., a Child
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-01683 Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: December 4, 2013
AFFIRMED; MOTION TO WITHDRAW GRANTED
The trial court terminated A.S.’s and N.A.A.’s parental rights to their child, A.N.A. Both
A.S. and N.A.A. appeal the termination order. We affirm.
BACKGROUND
On July 17, 2012, the Texas Department of Family and Protective Services filed an original
petition for protection of a child. The petition named A.N.A. as the child the subject of the suit,
A.S. as the child’s mother, and N.A.A. as the child’s father. 1 Almost a year later, on June 21, 2013,
the case went to trial. At the time of trial, A.N.A. was four years old and living with her paternal
grandparents.
1 To protect the privacy of the parties in this case, we identify the child and her parents by their initials. See TEX. FAM. CODE ANN. ' 109.002(d) (West Supp. 2013). 04-13-00499-CV
At trial, a Department case worker, Kimberly Barnhill, testified that A.N.A. came into the
Department’s care because of drug use and alleged criminal activity involving both parents.
Service plans were created for both parents. The parents were informed of the service plans and
appeared to understand what was required of them to reunify their family. A.S. was required to
complete empowerment and parenting classes, counseling, and drug treatment. She was also
required to provide proof of stable housing and employment and to participate in drug testing. In
addition, A.S. was afforded two supervised visits with A.N.A. per month. Although A.S. had
completed an empowerment class and appeared for a psychosocial evaluation, she had failed to
complete a parenting class, attend counseling, participate in drug treatment, and show proof of
stable housing and employment. A.S. also tested positive for cocaine on two occasions. In addition,
a new criminal charge—a theft charge—had been filed against A.S. A.S. failed to regularly attend
her visits with the child. In fact, Barnhill scheduled a visit with A.N.A. the week before trial. A.S.
failed to attend this visit. According to Barnhill, A.S. had not completed her service plan, had not
demonstrated any type of lifestyle change, and had not demonstrated that she could provide any
kind of stability for A.N.A.
Barnhill further testified that N.A.A.’s service plan included the completion of parenting
and empowerment classes, counseling, and drug treatment as well as proof of stable housing and
employment. N.A.A. did not complete any part of his service plan. In December 2012, N.A.A. was
convicted of aggravated robbery and was sentenced to twelve years in prison. Because N.A.A. was
in prison, he did not have stable housing or employment. Barnhill stated that N.A.A. had done
nothing to eliminate concerns that brought A.N.A. into the Department’s care at the beginning of
the case. Barnhill believed it was in A.N.A.’s best interest that A.S’s and N.A.A.’s parental rights
be terminated. A.N.A. was doing well in her current placement with her paternal grandparents,
which was a long-term placement. -2- 04-13-00499-CV
A.S. also testified at trial. According to A.S., she was currently on probation for aggravated
robbery. Her term of probation was ten years. A.S. admitted she was living on the streets in January
2013, and was in jail from January 6, 2013, to March 13, 2013, on a theft charge. At the time of
trial, A.S. was living with her grandmother and helping to take care of her. A.S. stated she was
presently employed cleaning houses, and had just started counseling, and was scheduled to begin
outpatient drug treatment. A.S. denied ever receiving a message from Barnhill regarding a visit
with A.N.A., stating that the answering machine at her grandmother’s house did not work.
N.A.A., who was incarcerated at the time of trial, testified by telephone. He stated he had
received several copies of a service plan from the Department, but he did not “understand it too
well.” He admitted he had been in jail since August 3, 2012. He further admitted he was sentenced
to twelve years in prison for aggravated robbery on December 3, 2012.
At the conclusion of the hearing, the trial court found by clear and convincing evidence
that A.S. (1) had constructively abandoned the child; (2) had failed to comply with provisions of
a court order that established the actions necessary for the parent to obtain the return of the child;
and (3) had used a controlled substance in a manner that endangered the health and safety of the
child, and had failed to complete a court ordered substance abuse treatment program or after
completion of a court ordered substance abuse treatment program continued to abuse a controlled
substance. See TEX. FAM. CODE ANN. § 161.001(1)(N), (O), (P) (West Supp. 2013). The trial court
also found by clear and convincing evidence that N.A.A. (1) had constructively abandoned the
child; (2) had failed to comply with the provisions of a court order that established the actions
necessary for the parent to obtain the return of the child; and (3) had knowingly engaged in criminal
conduct that had resulted in his conviction of an offense and confinement or imprisonment and
inability to care for the child for not less than two years from the date of filing of the petition. See
id. § 161.001(1)(N), (O), (Q). The court also found by clear and convincing evidence that the -3- 04-13-00499-CV
termination of the parent-child relationship as to both A.S. and N.A.A. was in the child’s best
interest. See id. § 161.001(2).
A.S.’S APPEAL
A.S.’s court-appointed appellate counsel filed a brief containing a professional evaluation
of the record and demonstrating that there are no arguable grounds to be advanced. Counsel
concludes that A.S.’s appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL
21157944, at *4 (Tex. App.—San Antonio 2003, order) (applying Anders procedure in appeal
from order terminating parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San
Antonio 2003, no pet.). In the brief, counsel advises A.S. of her right to examine the record and to
file a pro se brief, and represents that he served a copy of the brief on A.S. by mail. Counsel
subsequently notified us in writing that he mailed a copy of the brief and the motion to A.S., but
they were returned in the original envelope bearing the notation, “Undeliverable As Addressed.
No Forwarding Order on File.” 2 No pro se brief was filed.
A.S. had a duty to keep counsel apprised of her current address. Her failure to do so means
she has forfeited her right to receive a copy of the Anders brief and the right to file a pro se brief.
See In the Interest of E.M.M.M., No. 04-10-00771-CV, 2011 WL 1600981, at *1 (Tex. App.—San
Antonio 2011, no pet.); see also In re Schulman, 252 S.W.3d 403, 408 n. 21 (Tex. Crim. App.
2008); Gonzales v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00499-CV
In the Interest of A.N.A., a Child
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2012-PA-01683 Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice
Delivered and Filed: December 4, 2013
AFFIRMED; MOTION TO WITHDRAW GRANTED
The trial court terminated A.S.’s and N.A.A.’s parental rights to their child, A.N.A. Both
A.S. and N.A.A. appeal the termination order. We affirm.
BACKGROUND
On July 17, 2012, the Texas Department of Family and Protective Services filed an original
petition for protection of a child. The petition named A.N.A. as the child the subject of the suit,
A.S. as the child’s mother, and N.A.A. as the child’s father. 1 Almost a year later, on June 21, 2013,
the case went to trial. At the time of trial, A.N.A. was four years old and living with her paternal
grandparents.
1 To protect the privacy of the parties in this case, we identify the child and her parents by their initials. See TEX. FAM. CODE ANN. ' 109.002(d) (West Supp. 2013). 04-13-00499-CV
At trial, a Department case worker, Kimberly Barnhill, testified that A.N.A. came into the
Department’s care because of drug use and alleged criminal activity involving both parents.
Service plans were created for both parents. The parents were informed of the service plans and
appeared to understand what was required of them to reunify their family. A.S. was required to
complete empowerment and parenting classes, counseling, and drug treatment. She was also
required to provide proof of stable housing and employment and to participate in drug testing. In
addition, A.S. was afforded two supervised visits with A.N.A. per month. Although A.S. had
completed an empowerment class and appeared for a psychosocial evaluation, she had failed to
complete a parenting class, attend counseling, participate in drug treatment, and show proof of
stable housing and employment. A.S. also tested positive for cocaine on two occasions. In addition,
a new criminal charge—a theft charge—had been filed against A.S. A.S. failed to regularly attend
her visits with the child. In fact, Barnhill scheduled a visit with A.N.A. the week before trial. A.S.
failed to attend this visit. According to Barnhill, A.S. had not completed her service plan, had not
demonstrated any type of lifestyle change, and had not demonstrated that she could provide any
kind of stability for A.N.A.
Barnhill further testified that N.A.A.’s service plan included the completion of parenting
and empowerment classes, counseling, and drug treatment as well as proof of stable housing and
employment. N.A.A. did not complete any part of his service plan. In December 2012, N.A.A. was
convicted of aggravated robbery and was sentenced to twelve years in prison. Because N.A.A. was
in prison, he did not have stable housing or employment. Barnhill stated that N.A.A. had done
nothing to eliminate concerns that brought A.N.A. into the Department’s care at the beginning of
the case. Barnhill believed it was in A.N.A.’s best interest that A.S’s and N.A.A.’s parental rights
be terminated. A.N.A. was doing well in her current placement with her paternal grandparents,
which was a long-term placement. -2- 04-13-00499-CV
A.S. also testified at trial. According to A.S., she was currently on probation for aggravated
robbery. Her term of probation was ten years. A.S. admitted she was living on the streets in January
2013, and was in jail from January 6, 2013, to March 13, 2013, on a theft charge. At the time of
trial, A.S. was living with her grandmother and helping to take care of her. A.S. stated she was
presently employed cleaning houses, and had just started counseling, and was scheduled to begin
outpatient drug treatment. A.S. denied ever receiving a message from Barnhill regarding a visit
with A.N.A., stating that the answering machine at her grandmother’s house did not work.
N.A.A., who was incarcerated at the time of trial, testified by telephone. He stated he had
received several copies of a service plan from the Department, but he did not “understand it too
well.” He admitted he had been in jail since August 3, 2012. He further admitted he was sentenced
to twelve years in prison for aggravated robbery on December 3, 2012.
At the conclusion of the hearing, the trial court found by clear and convincing evidence
that A.S. (1) had constructively abandoned the child; (2) had failed to comply with provisions of
a court order that established the actions necessary for the parent to obtain the return of the child;
and (3) had used a controlled substance in a manner that endangered the health and safety of the
child, and had failed to complete a court ordered substance abuse treatment program or after
completion of a court ordered substance abuse treatment program continued to abuse a controlled
substance. See TEX. FAM. CODE ANN. § 161.001(1)(N), (O), (P) (West Supp. 2013). The trial court
also found by clear and convincing evidence that N.A.A. (1) had constructively abandoned the
child; (2) had failed to comply with the provisions of a court order that established the actions
necessary for the parent to obtain the return of the child; and (3) had knowingly engaged in criminal
conduct that had resulted in his conviction of an offense and confinement or imprisonment and
inability to care for the child for not less than two years from the date of filing of the petition. See
id. § 161.001(1)(N), (O), (Q). The court also found by clear and convincing evidence that the -3- 04-13-00499-CV
termination of the parent-child relationship as to both A.S. and N.A.A. was in the child’s best
interest. See id. § 161.001(2).
A.S.’S APPEAL
A.S.’s court-appointed appellate counsel filed a brief containing a professional evaluation
of the record and demonstrating that there are no arguable grounds to be advanced. Counsel
concludes that A.S.’s appeal is frivolous and without merit. The brief meets the requirements of
Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL
21157944, at *4 (Tex. App.—San Antonio 2003, order) (applying Anders procedure in appeal
from order terminating parental rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San
Antonio 2003, no pet.). In the brief, counsel advises A.S. of her right to examine the record and to
file a pro se brief, and represents that he served a copy of the brief on A.S. by mail. Counsel
subsequently notified us in writing that he mailed a copy of the brief and the motion to A.S., but
they were returned in the original envelope bearing the notation, “Undeliverable As Addressed.
No Forwarding Order on File.” 2 No pro se brief was filed.
A.S. had a duty to keep counsel apprised of her current address. Her failure to do so means
she has forfeited her right to receive a copy of the Anders brief and the right to file a pro se brief.
See In the Interest of E.M.M.M., No. 04-10-00771-CV, 2011 WL 1600981, at *1 (Tex. App.—San
Antonio 2011, no pet.); see also In re Schulman, 252 S.W.3d 403, 408 n. 21 (Tex. Crim. App.
2008); Gonzales v. State, 903 S.W.2d 404, 405 (Tex. App.—Texarkana 1995, no pet.).
After reviewing the record, we conclude A.S.’s appeal is frivolous and without merit.
2 We issued an order informing A.S. of her right to file a pro se brief. Our order was also returned as undeliverable.
-4- 04-13-00499-CV
N.A.A.’S APPEAL
Before a trial court may terminate the parent-child relationship, it must find by clear and
convincing evidence (1) one of the statutory grounds for termination and (2) that termination is in
the child’s best interest. TEX. FAM. CODE ANN. § 161.001. There is a strong presumption that
keeping a child with a parent is in the child’s best interest. In the Interest of R.R., 209 S.W.3d 112,
116 (Tex. 2006). However, the prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2008).
The Texas Supreme Court has identified some factors that may be relevant in determining
the best interest of the child: (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 individual seeking custody; (5) the programs available to
assist the individual; (6) the plans for the child by the parent and the individual seeking custody;
(7) the stability of the home; (8) the parent’s acts or omissions that indicate that the existing parent-
child relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions. Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). But the Supreme Court has stated: “[W]e have
never held that these considerations are exhaustive, or that all such considerations must be proved
as a condition precedent to parental termination.” In the Interest of C.H., 89 S.W.3d 17, 27 (Tex.
2002) (emphasis in original); see also TEX. FAM. CODE ANN. § 263.307(b) (listing additional
factors that should be considered by the court in determining whether the child’s parents are willing
and able to provide the child with a safe environment).
N.A.A. argues the evidence was legally and factually insufficient to support a finding that
termination was in A.N.A.’s best interest. Specifically, N.A.A. faults the trial court for “ignoring”
many of the Holley factors. However, it is well-established that the trial court was not required to
consider all of the Holley factors in making its determination. See C.H., 89 S.W.3d at 27. “The -5- 04-13-00499-CV
absence of evidence about some of these considerations would not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s best interest,
particularly if the evidence were undisputed that the parental relationship endangered the safety of
the child.” See id.
Here, the evidence showed A.N.A. was four years old at the time of trial and, therefore,
too young to testify about her desires. A.N.A. was initially removed from the home because of
drug use and criminal activity involving both parents. After A.N.A. was removed from the home,
N.A.A. was convicted of a violent crime, aggravated robbery, and was sentenced to twelve years
in prison. N.A.A.’s long-term incarceration means he will not be able to provide A.N.A. with a
stable environment or provide her food, clothing, shelter, and emotional support for many years to
come. Moreover, N.A.A. did not attempt to accomplish any part of his service plan during the
pendency of the underlying case. Finally, the evidence showed A.N.A. was doing well in her
current environment, which was a permanent placement. In light of this evidence, a reasonable
trier of fact could form a firm belief or conviction that termination of N.A.A.’s parental rights was
in A.N.A.’s best interest. We conclude the evidence was legally and factually sufficient to support
the trial court’s finding.
CONCLUSION
The trial court’s termination order is affirmed. Counsel’s motion to withdraw is granted.
Karen Angelini, Justice
-6-