In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-14-00221-CV ________________________
IN THE INTEREST OF C.J.M., H.A.J.M. AND J.M., CHILDREN
On Appeal from the 100th District Court Hall County, Texas Trial Court No. 7523; Honorable Stuart Messer, Presiding
October 17, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, B.D.M., appeals the trial court’s order terminating his parental rights to
his three children C.J.M., H.A.J.M. and J.M.1 Prior to trial, the children’s mother, F.T.,
executed an affidavit of voluntarily relinquishment of her parental rights and is not a
party to this appeal. In presenting this appeal, B.D.M.’s appointed counsel filed an
Anders2 brief in support of his motion to withdraw. We grant counsel’s motion and
affirm.
1 To protect the parent's and children's privacy, we refer to Appellant and other parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b). 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Courts, including this Court, have found the procedures set forth in Anders v.
California applicable to appeals of orders terminating parental rights. See In re A.W.T.,
61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.). See also In re D.E.S., 135
S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Taylor v. Texas Dep’t
of Protective & Regulatory Servs., 160 S.W.3d 641, 646-67 (Tex. App.—Austin 2005,
pet. denied). In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, the record reflects no
potentially plausible basis for reversal of the termination order. Counsel certifies he has
diligently researched the law applicable to the facts and issues and candidly discusses
why, in his professional opinion, the record supports that conclusion. In re D.A.S., 973
S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated he has complied with the
requirements of Anders by (1) providing a copy of the brief to Appellant and (2) notifying
him of his right to file a pro se response if he desired to do so.3 Id. By letter, this Court
granted Appellant an opportunity to exercise his right to file a response to counsel=s
brief, should he be so inclined.4 Appellant did not file a response. The Department of
Family and Protective Services notified this Court it would not file a response unless
requested to do so by this Court.
BACKGROUND
In March 2013, the Department received a report of neglectful supervision by the
children’s mother for drug use. A second report of neglectful supervision was made
3 Counsel has also demonstrated he has complied with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), by providing a copy of the appellate record to Appellant. 4 The notice to Appellant was returned in the mail on July 22, 2014, and Appellant’s attorney attempted to locate him, to no avail.
2 later that month and a Department investigator and case worker were dispatched to the
residence because the mother was being arrested in connection with drugs,5 and the
children were in the home. The children were placed with a maternal aunt and uncle
who intended to adopt them if reunification failed. The children desired to live with their
mother and they were fearful of their father. He was ordered not to have any written or
verbal contact with them. A counselor testified the children were being treated for
various adjustment disorders, anxiety and depression, but they were doing well with
their aunt and uncle.
At the final hearing, the Department investigator testified the home from which
the children were removed was not appropriate for them.6 It was filthy, with trash strewn
about and there was a large pig living in one of the bedrooms. The floor of that room
was covered in feces. Appellant testified he was separated from the children’s mother
and had moved from Memphis to Abilene.7 He was not the offending parent at the time
of removal; however, he knew the children’s mother was abusing illegal drugs when he
left them in her care. He testified to abusing illegal substances in the past and engaging
in a physical altercation with the children’s mother which resulted in an injury to his
daughter. He admitted to numerous deficiencies in complying with court-ordered
services, some due to lack of transportation. He testified he and his counselor had a
5 Law enforcement found baggies with possible methamphetamine residue, marihuana and drug paraphernalia. 6 Photographs depicting the condition of the residence were introduced into evidence over Appellant’s objection during the Department investigator’s testimony. 7 There was no evidence to show Appellant knew of the conditions of the home after he moved to Abilene.
3 falling out and their therapy sessions ended. He was making positive changes in his life
to obtain the return of his children.
The Department caseworker testified Appellant completed a parenting class but
did not successfully complete any other court-ordered services. She also offered
testimony in support of numerous grounds alleged as grounds for termination.
Following the final hearing, the trial court found that terminating Appellant’s
parental rights was in the children’s best interest and that Appellant had:
knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being;
engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well- being;
failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
constructively abandoned the children who had been in the permanent or temporary managing conservatorship of the Department for not less than six months and (1) the Department had made reasonable efforts to return the children to him; (2) he had not regularly visited or maintained significant contact with them; and (3) he had demonstrated an inability to provide the children with a safe environment.
failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal under Chapter 262 for the abuse and neglect of the children.
See TEX. FAM. CODE ANN. § 161.001(1) (D), (E), (F), (N) and (O) and (2) (West 2014).
4 By the Anders brief, counsel acknowledges he has conducted a thorough
evaluation of the record and finds no arguable grounds for reversal of the trial court’s
order. He concludes there is clear and convincing evidence to support termination of
Appellant’s parental rights.
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional
dimension. See Santosky v.
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-14-00221-CV ________________________
IN THE INTEREST OF C.J.M., H.A.J.M. AND J.M., CHILDREN
On Appeal from the 100th District Court Hall County, Texas Trial Court No. 7523; Honorable Stuart Messer, Presiding
October 17, 2014
MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, B.D.M., appeals the trial court’s order terminating his parental rights to
his three children C.J.M., H.A.J.M. and J.M.1 Prior to trial, the children’s mother, F.T.,
executed an affidavit of voluntarily relinquishment of her parental rights and is not a
party to this appeal. In presenting this appeal, B.D.M.’s appointed counsel filed an
Anders2 brief in support of his motion to withdraw. We grant counsel’s motion and
affirm.
1 To protect the parent's and children's privacy, we refer to Appellant and other parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b). 2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Courts, including this Court, have found the procedures set forth in Anders v.
California applicable to appeals of orders terminating parental rights. See In re A.W.T.,
61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.). See also In re D.E.S., 135
S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Taylor v. Texas Dep’t
of Protective & Regulatory Servs., 160 S.W.3d 641, 646-67 (Tex. App.—Austin 2005,
pet. denied). In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, the record reflects no
potentially plausible basis for reversal of the termination order. Counsel certifies he has
diligently researched the law applicable to the facts and issues and candidly discusses
why, in his professional opinion, the record supports that conclusion. In re D.A.S., 973
S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated he has complied with the
requirements of Anders by (1) providing a copy of the brief to Appellant and (2) notifying
him of his right to file a pro se response if he desired to do so.3 Id. By letter, this Court
granted Appellant an opportunity to exercise his right to file a response to counsel=s
brief, should he be so inclined.4 Appellant did not file a response. The Department of
Family and Protective Services notified this Court it would not file a response unless
requested to do so by this Court.
BACKGROUND
In March 2013, the Department received a report of neglectful supervision by the
children’s mother for drug use. A second report of neglectful supervision was made
3 Counsel has also demonstrated he has complied with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), by providing a copy of the appellate record to Appellant. 4 The notice to Appellant was returned in the mail on July 22, 2014, and Appellant’s attorney attempted to locate him, to no avail.
2 later that month and a Department investigator and case worker were dispatched to the
residence because the mother was being arrested in connection with drugs,5 and the
children were in the home. The children were placed with a maternal aunt and uncle
who intended to adopt them if reunification failed. The children desired to live with their
mother and they were fearful of their father. He was ordered not to have any written or
verbal contact with them. A counselor testified the children were being treated for
various adjustment disorders, anxiety and depression, but they were doing well with
their aunt and uncle.
At the final hearing, the Department investigator testified the home from which
the children were removed was not appropriate for them.6 It was filthy, with trash strewn
about and there was a large pig living in one of the bedrooms. The floor of that room
was covered in feces. Appellant testified he was separated from the children’s mother
and had moved from Memphis to Abilene.7 He was not the offending parent at the time
of removal; however, he knew the children’s mother was abusing illegal drugs when he
left them in her care. He testified to abusing illegal substances in the past and engaging
in a physical altercation with the children’s mother which resulted in an injury to his
daughter. He admitted to numerous deficiencies in complying with court-ordered
services, some due to lack of transportation. He testified he and his counselor had a
5 Law enforcement found baggies with possible methamphetamine residue, marihuana and drug paraphernalia. 6 Photographs depicting the condition of the residence were introduced into evidence over Appellant’s objection during the Department investigator’s testimony. 7 There was no evidence to show Appellant knew of the conditions of the home after he moved to Abilene.
3 falling out and their therapy sessions ended. He was making positive changes in his life
to obtain the return of his children.
The Department caseworker testified Appellant completed a parenting class but
did not successfully complete any other court-ordered services. She also offered
testimony in support of numerous grounds alleged as grounds for termination.
Following the final hearing, the trial court found that terminating Appellant’s
parental rights was in the children’s best interest and that Appellant had:
knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being;
engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well- being;
failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition;
constructively abandoned the children who had been in the permanent or temporary managing conservatorship of the Department for not less than six months and (1) the Department had made reasonable efforts to return the children to him; (2) he had not regularly visited or maintained significant contact with them; and (3) he had demonstrated an inability to provide the children with a safe environment.
failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of his children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal under Chapter 262 for the abuse and neglect of the children.
See TEX. FAM. CODE ANN. § 161.001(1) (D), (E), (F), (N) and (O) and (2) (West 2014).
4 By the Anders brief, counsel acknowledges he has conducted a thorough
evaluation of the record and finds no arguable grounds for reversal of the trial court’s
order. He concludes there is clear and convincing evidence to support termination of
Appellant’s parental rights.
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional
dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). See also Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings are
strictly construed in favor of the parent. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012).
Parental rights, however, are not absolute, and it is essential that the emotional and
physical interests of a child not be sacrificed merely to preserve those rights. In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002).
The Due Process Clause of the United States Constitution and section 161.001
of the Texas Family Code require application of the heightened standard of clear and
convincing evidence in cases involving involuntary termination of parental rights. See In
re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); 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 2014).
See also In re C.H., 89 S.W.3d at 25-26.
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)
5 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 2014); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976).
Only one statutory ground is required to terminate parental rights under section
161.001. See In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
Therefore, we will affirm the termination order if there are both legally and factually
sufficient evidence on any statutory ground upon which the trial court relied in
terminating parental rights as well as the best interest finding. Id.
§ 161.001(2) BEST INTEREST
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001(1), we must also find clear and convincing evidence that termination of
the parent-child relationship was in the children’s best interest. See ' 161.001(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. A non-exhaustive list of factors to consider in deciding best interest is
found at section 263.307(b) of the Family Code. See also Holley, 544 S.W.2d at
371-72.
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues which might support the appeal.
See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues.
See Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After reviewing the
6 record and counsel=s brief, we agree with counsel that there are no plausible grounds
for appeal.
Accordingly, counsel's motion to withdraw is granted and the trial court’s order
terminating Appellant’s parental rights to C.J.M., H.A.J.M. and J.M. is affirmed.
Patrick A. Pirtle Justice