in the Interest of D.F. and R.F., Children

• Court: Court of Appeals of Texas
• Decided: February 13, 2019
• Docket: 07-18-00383-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

Nos. 07-18-00383-CV 07-18-00384-CV

IN THE INTEREST OF D.F. AND R.F., CHILDREN IN THE INTEREST OF K.T. AND J.S., JR., CHILDREN

On Appeal from the 320th District Court Potter County, Texas Trial Court Nos. 75,465-D and 89,467-D, Honorable Carry Baker, Presiding

February 13, 2019

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

In these two appeals, appellant N.T. (the mother), challenges final orders

terminating her parent-child relationships with D.F. (age eleven), K.T. (age eight), R.F.

(age six), and J.S., Jr. (age twenty-three months).1 See TEX. FAM. CODE ANN. § 161.001

(West Supp. 2018). The trial court’s final orders named appellee, the Texas Department

1 We identify the mother and the children in this manner to protect the children’s privacy. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). The parental rights of the two men who are the biological fathers of the children were terminated also. They have not appealed. of Family and Protective Services, the children’s permanent managing conservator. In

both appeals, the mother’s court-appointed appellate counsel has filed a motion to

withdraw from representation supported by an Anders brief. Anders v. California, 386

U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re P.M., 520 S.W.3d 24, 27 (Tex.

2016) (per curiam). We will affirm the final orders of the trial court and take no action on

counsel’s motions to withdraw.

The two cases were filed in December 2016, some two months after the birth of

J.S., Jr. They were tried together to the bench. Final hearing evidence indicated the

mother had a history with the Department dating to 2003. In the present cases, the

Department became involved with the four children when the mother tested positive for

methamphetamine at the birth of J.S., Jr. She admitted using methamphetamine during

the pregnancy. A drug test of J.S., Jr. was positive for methamphetamine. At the time,

the mother had possession of the other three children, and was living with J.S., Sr. He

also admitted illegal drug use, and his drug test results also were positive for

methamphetamine. When D.F. and R.F. were tested, their results too were positive for

methamphetamine.

To avoid immediate removal of the children, the Department transferred the case

to its family-based safety services. This allowed the mother and J.S, Sr. to work on

services without removal of the children. Under the procedure, the supervising party was

the mother’s mother, S.T. But the Department removed the children when it determined

S.T. “was not supervising,” and J.S., Jr. was not receiving care for medical issues, some

of which stemmed from his exposure to methamphetamine.

2 To mitigate the reasons for removal and provide a means for returning the children,

the Department prepared a service plan for each of the three parents. The caseworker

agreed the mother completed the “majority” of services required by the plan. The mother

acknowledged in testimony, however, that she had relapsed into drug use on four

previous occasions after completing the same family-based services she completed in

this case.

The mother, age thirty-three, admitted in testimony that she had struggled with

addiction to methamphetamine; she began using the drug in her early twenties. She

further admitted attending Alcoholics Anonymous meetings while at the same time using

methamphetamine. The mother’s December 2017 drug test was positive for

methamphetamine and she failed to attend a January 2018 court-ordered hair strand

analysis.

In January 2018, the mother learned she was again pregnant. Results of drug

tests conducted after the mother learned of her pregnancy were negative. The

caseworker testified this child’s father, T.P., had “significant criminal and CPS history.”

His parental rights to his daughter, the caseworker added, were terminated in 2015. The

caseworker further testified the mother told her she was no longer seeing T.P. but that

she considered “he has a right to see the baby.” After the mother denied two instances

of domestic violence allegedly involving T.P., the mother’s grandmother, over a hearsay

objection, was permitted to testify that the mother told her T.P. hit her in the face.

The court heard evidence supporting the caseworker’s opinion the mother had not

maintained stable and appropriate housing during the case. She noted the mother

3 formerly had lived with her grandmother, her mother, and her father. For a time, she

occupied her own apartment but was evicted. By the time of final hearing the mother was

again living with her father. When the mother was asked by the caseworker what the

living arrangement for the four children would be if they were returned to her care she

responded, “‘they would just figure it out.’” There was evidence the mother’s grandmother

lived nearby.

There was evidence also the mother remained unemployed for long stretches of

time during the case. She testified she was employed for some five months. Her

unemployment at the time of final hearing was attributed to the “high risk” nature of her

pregnancy.

The caseworker acknowledged the children were bonded with the mother, and

their weekly one-hour visits went “very well.” The mother acknowledged her multiple

relapses after other Department-initiated cases but told the court she was now making

decisions for the betterment of her children.

The caseworker testified at the time of final hearing D.F. and R.F. were placed in

a children’s home and were doing “very well.” K.T. also was placed at the children’s home

while J.S., Jr. was placed in a foster home. The caseworker acknowledged K.T. was the

alleged victim of an act of indecency with a child at the placement facility, an allegation

that remained under investigation. The caseworker said that if the court terminated the

parents’ rights the Department would begin actively seeking adoption for the four children.

The children’s ad litem recommended termination of the mother’s parental rights,

though she told the court the children badly want to live with their mom.

4 The court’s final order in both cases terminated the mother’s parental rights based

on findings she violated predicate grounds alleging endangering conditions, endangering

conduct and causing a child to be born addicted to a controlled substance, and that

termination was in the best interest of the children. TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D),(E),(R) & (2) (West Supp. 2018).

Counsel’s Anders brief presents a professional evaluation of the record supporting

his opinion there are no arguable grounds for appeal. Anders, 386 U.S. at 744-45. We

find counsel’s motion to withdraw and brief meet the requirements of Anders. Counsel

also has demonstrated he provided a copy of his brief and the record to the mother and

notified her of her right to file a pro se response if she desired. Kelly v. State, 436 S.W.3d

313, 319 (Tex. Crim. App. 2014). By letter from the clerk of this court, we also notified

the mother of her opportunity to respond to counsel’s brief. She has not filed a response.

When presented with a motion to withdraw supported by an Anders brief we are

required to independently examine the entire record and decide whether counsel has

correctly determined the record does not present an arguable ground for appeal. Stafford

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re A.W.T., 61 S.W.3d 87, 89

(Tex. App.—Amarillo 2001, no pet.). We have carefully reviewed the record and

counsel’s Anders brief and agree with counsel that the record presents no arguable

grounds for appeal. In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no

pet.).

The trial court’s final orders terminating the mother’s parental rights to D.F., K.T.,

R.F., and J.S., Jr. are affirmed. We take no action on counsel’s motions to withdraw but

5 call counsel’s attention to the continuing duty of representation through the exhaustion of

proceedings, which may include the filing of a petition for review. In re P.M., 520 S.W.3d

at 27.

James T. Campbell Justice