ACCEPTED 14-14-01003-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/9/2015 12:00:00 AM CHRISTOPHER PRINE CLERK
NO. 14-14-01003-CV ________________________________________________________ FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE COURT OF APPEALS 3/7/2015 9:33:53 PM FOR THE FOURTEENTH JUDICIAL DISTRICT CHRISTOPHER A. PRINE Clerk OF TEXAS AT HOUSTON, TEXAS ________________________________________________________
IN THE INTEREST OF D.T., Jr., A CHILD ________________________________________________________
APPEALED FROM THE 315TH DISTRICT COURT OF HARRIS COUNTY, TEXAS
Trial Cause No. 2010-00284J-A ________________________________________________________
AMENDED ANDERS BRIEF OF APPELLANT, A.G. ____________________________________________________________
LANA SHADWICK TBN: 00784951 2211 Norfolk, Ste. 920 Houston, Texas 77098 PHONE:713-392-8222 Lana@LanaShadwick.com
Attorney for A.G., Appellant
ORAL ARGUMENT NOT REQUESTED 1 IDENTIFICATION OF PARTIES AND COUNSEL
The names of all parties and counsel in this cause are:
A.G., Appellant Brian Fischer (Trial) TBN 07050750 6200 Gulf Freeway, Suite 202 Houston, Texas 77023-5543 (713) 520-7500 Anna Stool (Attorney Ad Litem for Mother) TBN 19312000 2777 Allen Parkway, Suite 1000 Houston, Texas 77019-2165 (713) 522-9975 Lana Shadwick (Appeal) TBN 00784951 2211 Norfolk, Suite 920 Houston, Texas 77098 (713) 392-8222
Texas Department of Family and Protective Services David Masquelette (Trial) Assistant County Attorney TBN 13162700 Sandra D. Hachem (Appeal) TBN 08620460 2525 Murworth, Suite 300 Houston, Texas 77054 (713) 578-3900
Attorney for the Alleged Father (has not appealed) Mr. John Maisel TBN 12850800 Commercial Bank Building 917 Franklin Street, Suite 100 Houston, Texas 77002-1751 (713) 652-0000 2 Attorney for the Unknown Father Ms. Itze Soliz TBN 24004930 901 Richmond Avenue, Suite 200 Houston, Texas 77006 (713) 281-451-7000
Attorney Ad Litem for the Child Mr. JB Bobbitt TBN 24078237 1533 West Alabama Street Houston, Texas 77006 (713) 529-6234
3 APPELLANT DOES NOT REQUEST ORAL ARGUMENT
4 TABLE OF CONTENTS
INDENTIFICATION OF PARTIES AND COUNSEL 2 ORAL ARGUMENT NOT REQUESTED 1, 4 TABLE OF CONTENTS 5 TABLE OF AUTHORITIES 6 STATEMENT OF THE CASE 9 ISSUE PRESENTED 9 Whether there are any non-frivolous grounds to assert on appeal. STATEMENT OF FACTS 9 SUMMARY OF ARGUMENT 13 ARGUMENT AND AUTHORITIES 14 CONCLUSION AND PRAYER 24 CERTIFICATE OF COMPLIANCE 25 CERTIFICATE OF SERVICE 26
5 TABLE OF AUTHORITIES Federal Cases Santosky v. Kramer, 14 455 U.S. 745 (1982)
State Cases Anders v. California, passim 386 U.S. 738 (1967)
Bledsoe v. State, 18 178 S.W.3d 824 (Tex. Crim. App. 2005)
Dupree v. Texas Dep’t of Protective and Regulatory Servs., 19 907 S.W.2d 81 (Tex. App.--Dallas 1995, no writ)
Golden Eagle Archery, Inc. v. Jackson, 16 116 S.W.3d 757 (Tex. 2003)
Holick v. Smith, 14, 15 685 S.W.2d 18 (Tex. 1985)
Holley v. Adams, passim 544 S.W.2d 367 (Tex. 1976)
In re A.V., 13 113 S.W.3d 355 (Tex. 2003)
In re C.H., passim 89 S.W.3d 17 (Tex. 2002)
In re D.E.S., 13, 17 135 S.W.3d 326 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
In re E.A.G., 19 373 S.W.3d 129 (Tex. App.--San Antonio 2012, pet. denied)
6 In re E.N.C., 15 384 S.W.3d 796 (Tex. 2012)
In re G.M., 14 596 S.W.2d 846 (Tex. 1980)
In re J.F.C., 14 96 S.W.3d 256 (Tex. 2002)
In re K.C.M., 21 4 S.W.3d 392 (Tex. App.--Houston [1st Dist.] 1999, pet. denied)
In re S.R L., 21 243 S.W.3d 232 (Tex. App.--Houston [14th Dist.] 2007, no pet.)
Lewelling v. Lewelling, 21 796 S.W.2d 164 (Tex. 1990)
Richardson v. Green, 15 677 S.W.2d 497 (Tex. 1984)
Stafford v. State, 18 813 S.W.2d 503 (Tex. Crim. App. 1991)
Yonko v. Dept. of Family & Protective Servs., 21 196 S.W.3d 236 (Tex. App. - Houston [1st Dist.] 2006, no pet.)
Texas Family Code
Tex. Family Code Ann. § 101.007 15
Tex. Family Code Ann. § 161.001(1) passim
Tex. Family Code Ann. § 161.001(2) passim
Tex. Family Code Ann. § 161.206(a) 14
7 NO. 14-14-01003-CV
_________________________________________________________
IN THE COURT OF APPEALS FOR THE FOURTEENTH JUDICIAL DISTRICT OF TEXAS AT HOUSTON _________________________________________________________
IN THE INTEREST OF D.T., Jr., A CHILD _________________________________________________________
A.G., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee _________________________________________________________
APPEALED FROM THE 315TH DISTRICT COURT OF HARRIS COUNTY, TEXAS
Trial Cause No. 2010-00284J-A _________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
This Anders Brief is submitted in this appeal. Appellant has appealed the termination of her parental rights to her child D.T. The father of the child has not appealed.
8 STATEMENT OF THE CASE
This is a termination of parental rights case that was tried to the court. Appellant
mother appealed the trial court’s termination of her parental rights under sections
161.001(1)(N),(O) and section 161.001(2). Appellant now submits an Anders Brief.
ISSUE PRESENTED
Whether there are any non-frivolous grounds to assert on appeal.
STATEMENT OF FACTS
The Texas Department of Family and Protective Services (“TDFPS”) received a
referral on August 21, 2009 alleging physical neglect, and neglectful supervision of D.T.,
Jr. The child was three months old at the time (DOB 6/21/09). There was also a
neglectful supervision referral as to another child (A.G. DOB 07/09/04) who is not a
subject of this appeal. The referral alleged that D.T., Jr. was admitted to Lyndon B.
Johnson Hospital on August 21, 2009, for dehydration due to vomiting and diarrhea.
This was the second time he had been hospitalized since his birth. 4 RR Exhibit 7, pg. 2
(Removal Affidavit).
The referral also stated that prior to D.T., Jr.’s birth, A.G. had lived in Louisiana
where she was involved in a relationship with D.T., Sr. that involved domestic violence.
It also stated that A.G. left D.T., Sr. when she was pregnant but had plans to go back to
9 him. D.T., Sr. was alleged to have struck A.G. in the jaw and face and there was a criminal
action pending against him, as well as a CPS action. 4 RR Exhibit, pg. 2.
On October 28, 2009, D.T., Jr. was admitted a third time to Lyndon B. Johnson
Hospital for vomiting and diarrhea, and a urinary tract infection. It was reported that
A.G. did not have formula on the day of her child’s admission to the hospital. The
physician was allegedly concerned that the child had not been fed regularly because he
was suffering from failure to thrive. The child was discharged after three days in the
hospital. The removal affidavit states that Appellant agreed at that time to have the child
placed with a family friend. The placement allegedly broke down and the affiant stated
that Appellant told her that she planned to leave Texas and return to Louisiana to be with
D.T., Sr. According to the Department, relative placements were not available, or
otherwise inappropriate, and a Notice of Removal was served on Appellant on January
11, 2010. 4 RR Exhibit 7, pg. 3.
The Removal Affidavit stated that there was a prior removal history involving
Appellant for physical neglect of the child, A.G. and disposition was reason to believe.
A.G. had been diagnosed with failure to thrive due to malnutrition. She was nine months
old and weighed only 13.4 pounds at the time she was brought to the hospital. 4 RR
Exhibit 7, pp. 3-4.
The Department was given temporary managing conservatorship of D.T., Jr. on
January 20, 2010. 4 RR 9. The caseworker who testified at trial was the caseworker from 10 the time the case began. 3 RR 11. A Family Service Plan was ordered by the Court, and
according to the caseworker, she gave Appellant a copy of the Plan. Appellant’s signature
was not on the Plan that was admitted into evidence at trial. 3 RR 9-12, 24-26. See also 4
RR Exhibit 12 (Family Service Plan). The caseworker testified that she explained the Family
Service Plan to the mother. 3 RR 12. She also testified that Appellant knew how to reach
her by telephone. 3 RR 13.
The Family Service Plan directed Appellant to obtain and maintain stable housing,
and to participate with third-party contractors provided by the Department. She was to
be taught basic skills like cooking and cleaning. She was asked to maintain stable
employment and to complete therapy. 3 RR 10. Appellant was to complete services
through MHMRA. 3 RR 26. Although there was testimony that Appellant suffered from
limited functioning, the testimony also presented was that she was capable of completing
the tasks enumerated in the Family Service Plan. 3 RR 11, 24.
At trial, the caseworker testified that the foster caregiver was meeting all of D.T.,
Jr.’s needs the caregiver could at the time. 3 RR 6. D.T., Jr. had been diagnosed with
autism and psychosis and was receiving therapy in the foster home. 3 RR 7. He also had
behavioral and emotional issues. 3 RR 38. The child had been evaluated by MHMRA
but because of his age, there was not much that could be done at the time. 3 RR 7.
Several family members were evaluated for a placement but they were rejected, or
declined to take the child. Some of these individuals had criminal history and/or a history 11 of domestic violence in the home, and another did not have running water in the home.
3 RR 7-9, 38.
The evidence presented was that Appellant did not have restricted visitation but
that Appellant had not visited with the child, or requested visitation, or otherwise
contacted the agency since June of 2013. The Department was alleged to have never
denied her access. The testimony was also that Appellant made it to court appearances.
3 RR 12-14, 42. The caseworker also testified that she had not sent letters, or birthday
or Christmas presents, or the like. 3 RR 14. The caseworker also claimed that Appellant
never called her to ask her to pass a message along from Appellant, nor did she ask about
the child. 3 RR 14-15.
The Department also presented evidence that A.G. had not shown that she could
provide a safe or stable environment. The caseworker testified that Appellant moved
frequently and lived with others in order to have shelter, and did not have contact with
D.T., Jr. 3 RR 15-17. The Department had custody of D.T., Jr. for more than six months.
3 RR 16-17. Appellant did not complete any services, and failed to comply with the
provisions of a court ordered service plan. 3 RR 10, 17, 26-27.
The Department testified that D.T., Jr. was five years old and termination was in
his best interest. Termination would give D.T., Jr., a chance to be adopted. 3 RR 18.
The caseworker has worked with the Department for six years and she has seen children
with special needs like D.T., Jr. be adopted. The Department would be able to start 12 aggressively seeking to find someone to adopt him once a termination order was signed.
3 RR 22-23, 39.
SUMMARY OF ARGUMENT
Appellant’s parental rights were terminated under Texas Family Code sections
161.001(1)(N) (constructive abandonment) and (O) (failure to comply with court order)
and section 161.001(2) (best interest). TEX. FAM. CODE § 161.001(1)(N)(O), (2). After
thoroughly reviewing the appellate record, the undersigned court-appointed counsel has
determined, in her professional opinion, that there are no non-frivolous grounds to assert
on appeal. Anders v. California, 386 U.S. 738 (1967). The procedure to be followed in an
Anders Brief case are applicable to parental termination appeals. In Re D.E.S., 135 S.W.3d
326 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
The undersigned counsel has reviewed the record several times to examine
whether it supports a determination that there is legally and factually sufficient evidence
to support the trial court’s grounds for termination and best interest under subsections
(N) and (O) of section 161.001(1), and 161.001(2) (best interest). Only one ground plus
best interest is necessary in order for an appellate court to affirm. In re A.V., 113 S.W.3d
355, 362 (Tex. 2003).
Examining the record, it is apparent that the State meet its burden to show that
Appellant constructively abandoned her child who had been in the permanent or
temporary managing conservatorship of the Department for not less than six months. 13 The State also showed that Appellant failed to comply with the provisions of a court
order that specifically established the actions she needed to take in order to obtain the
return of her child who had been in the temporary managing conservatorship of the
Department for not less than nine months as a result of the child’s removal. The State
also met its burden to show that termination of her relationship with her child was in her
child’s best interest. TEX. FAM. CODE § 161.001(1)(N)(O), (2). Accordingly, Counsel
files this Anders Brief and a Motion to Withdraw because there are no non-frivolous grounds
for appeal.
ARGUMENT AND AUTHORITIES
I. Standard of Review in Parental Termination Cases
This is an appeal from a court trial in a parental termination case. The involuntary
termination of parental rights is a serious matter implicating fundamental constitutional
rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The relationship that exists
between a parent and their child is to be constitutionally guarded. Santosky v. Kramer, 455
U.S. 745, 758-759 (1982). Accordingly, courts must ensure that due process is afforded
by requiring that these cases be proved by the standard of clear and convincing evidence.
In re J.F.C., 96 S.W.3d at 265-266; In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). See also
TEX. FAM. CODE § 161.206(a). Clear and convincing evidence is defined as the "measure
or degree of proof that 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." TEX. FAM. CODE 14 §101.007.
The burden to prove a statutory termination ground and best interest is the State’s.
The burden is not to be shifted to the parent. See In re G.M., 596 S.W.2d at 847. Appellate
courts must strictly scrutinize parental termination cases, and the statutes and case law
that apply to them are to be strictly construed in favor of the parent. Holick v. Smith, 685
S.W.2d at 20-21. There is a strong presumption that the best interest of the child involves
protection of the child’s relationship with their parent. In re G.M., 596 S.W.2d at 847.
In parental termination cases, the Texas Family Code requires the State to prove
one or more of the grounds under section 161.001(1). It must also prove that termination
is in the child’s best interest. TEX. FAM. CODE § 161.001(1), (2); Richardson v. Green, 677
S.W.2d 497, 499 (Tex. 1984). Both a termination ground, and best interest, must be
proven by clear and convincing evidence. Holley v. Adams, 544 S.W.2d 367, 379 (Tex.
1976).
II. Standard of Review on Appeal
In conducting a legal sufficiency review, an appellate court should look at all the
evidence in the light most favorable to the finding to determine whether a reasonable
trier of fact could have formed a firm belief or conviction that its finding was true. In re
E.N.C., 384 S.W.3d 796, 801 (Tex. 2012). To give appropriate deference to the
factfinder's conclusions and the role of a court conducting a legal sufficiency review,
looking at the evidence in the light most favorable to the judgment means that a reviewing 15 court must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so. The appellate court must disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. Id. This
does not mean that a court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew the analysis of
whether there is clear and convincing evidence. If after conducting its review, the court
determines that a reasonable factfinder could not form a firm belief or conviction that
the allegations were true, then it must conclude that the evidence is legally insufficient.
In re J.F.C., 96 S.W.3d at 266.
A factual sufficiency review involves a different analysis. The appellate court must
consider all the evidence equally, both disputed and undisputed, in order to determine if
the disputed evidence is such that a reasonable factfinder could not have resolved the
disputed evidence in favor of its finding. If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not have reasonably formed a firm belief or conviction,
then the evidence is factually insufficient. Id.
An appellate court must give deference to a court’s fact findings and should not
supplant the court’s judgment with its own. In re C.H., 89 S.W.3d at 27; Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The appellate court should
inquire “whether the evidence is such that a factfinder could reasonably form a firm belief 16 or conviction about the truth of the allegations.” In re C.H., 89 S.W.3d at 25. “If, in light
of the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.” In re
J.F.C., 96 S.W.3d at 266.
In applying this standard, “[a]n appellate court’s review must not be so rigorous
that the only fact findings that could withstand review are those established beyond a
reasonable doubt.” In re C.H., 89 S.W.3d at 26 (quoting Santosky v. Kramer, 455 U.S. at
767-69).
III. Anders Procedures
If after a thorough review of the record, court-appointed counsel determines that
it is her professional opinion that urging points on appeal would be frivolous, and that
an appeal would be without merit, counsel is required under the law and the rules of
ethics to file an Anders Brief that meets the standards of Anders v. California. See Anders v.
California, 386 U.S. 738. This Court has applied Anders procedures in parental termination
cases as well as criminal cases. See In Re D.E.S., 135 S.W.3d 326. The appellate court is
then required to examine the record and determine if there are any non-frivolous points
for appeal. If the Court determines that an appeal would be wholly frivolous, it may issue
an opinion saying that it has examined the record and found no reversible error. An
appellate court can also remand the case so that the trial court can appoint new counsel 17 to brief issues. Bledsoe v. State, 178 S.W.3d 824, 826-827 (Tex. Crim. App. 2005). A copy
of the Anders Brief, and a copy of the appellate record, must be provided to the appellant.
The appellant must also be told that they have a right to review the record. Stafford v.
State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Counsel on appeal must advocate for
their client and argue any non-frivolous points on appeal. Anders v. California, 386 U.S. at
744.
IV. The evidence for the termination grounds and best interest was established by clear and convincing evidence.
A. The State Met Its Burden Under Texas Law
Appellant’s parental rights were terminated under Texas Family Code sections
161.001(1)(N) and (O), and the best interest section. The State meet its burden to show
under (N) grounds that Appellant constructively abandoned her child who had been in
the permanent or temporary managing conservatorship of the Department for not less
than six months. The State also met its burden under (O) grounds to show that Appellant
failed to comply with the provisions of a court order that specifically established the
actions she needed to take in order to obtain the return of her child who had been in the
temporary managing conservatorship of the Department for not less than nine months
as a result of the child’s removal. TEX. FAM. CODE § 161.001(1)(N), (O). The State meet
its burden to prove both grounds and best interest by clear and convincing evidence.
18 As it relates to the constructive abandonment grounds, the Department was given
temporary managing conservatorship of D.T., Jr. on January 20, 2010. 4 RR 9. The
caseworker who testified, was the caseworker from the time the case began. 3 RR 11.
She testified that Appellant did not have contact with D.T., Jr. and that the Department
had custody of D.T., Jr. for more than six months. 3 RR 15-17. Appellant did not have
restricted visitation but Appellant had not visited with the child, or requested visitation,
or otherwise contacted the agency since June of 2013. The Department testified they had
never denied her access. Appellant did make it to court appearances. 3 RR 12-14, 42.
Appellant also did not send letters, or birthday or Christmas presents to D.T., Jr. 3 RR
14. Appellant never called the caseworker to ask her to pass a message along from
Appellant, and she also did not ask about the child. 3 RR 14-15. The State met its burden
to show constructive abandonment.
As it relates to the failure to comply with the provisions of a court order, a Family
Service Plan was ordered by the Court and the caseworker said she gave Appellant a copy
of the Plan. However, Appellant’s signature was not on the Plan that was admitted into
evidence at trial. 3 RR 9-12, 24-26. See also 4 RR Exhibit 12 (Family Service Plan). The
caseworker testified that she explained the Family Service Plan to the mother. 3 RR 12.
She also testified that Appellant knew how to reach her by telephone. 3 RR 13.
The Family Service Plan directed Appellant to obtain and maintain stable housing,
and to participate with third-party contractors provided by the Department. She was to 19 be taught basic skills like cooking and cleaning. She was asked to maintain stable
employment and to complete therapy. 3 RR 10. Appellant was to complete services
through MHMRA. 3 RR 26. Although there was testimony that Appellant suffered from
limited functioning, the testimony presented was that she was capable of completing the
tasks enumerated in the Family Service Plan. 3 RR 11, 24.
The Department showed that A.G. had not presented it with any proof that she
could provide a safe or stable environment. Appellant moved frequently and lived with
others in order to have shelter. Yet, the caseworker had to admit that, as of the time of
trial, no one had been to Appellant’s new residence. This was even though Appellant’s
grandmother had notified the caseworker of this fact the month before. 3 RR 29-30.
Appellant did not complete any services, and failed to comply with the provisions of a
court ordered service plan. 3 RR 10, 17, 26-27. The State met its burden to prove under
(O) grounds.
B. Termination of the Parent-Child Relationship was in D.T., Jr.’s Best Interest
In addition to establishing that a parent’s rights to their child should be terminated
under one of the statutory termination grounds found in section 161.001(1), the State
also has the burden of proving by clear and convincing evidence that termination of
Appellant’s parental rights is in the child’s best interest. See TEX. FAM. CODE §161.001(2).
There is a strong presumption that the child’s best interest is served by maintaining the
20 parent-child relationship. In re K.C.M., 4 S.W.3d 392, 393-95 (Tex. App.--Houston [1st
Dist.] 1999, pet. denied). This presumption is set out in Texas Family Code section
153.131(b) and is a public policy that is unquestioned and deeply-rooted in Texas law.
Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990).
The burden to show by clear and convincing evidence that termination is in the
child’s best interest must be shown apart from the statutory termination grounds in
section 161.001(1). A determination of best interest must be established and is to be
analyzed on its own. Termination of a parent’s parental rights must not stand if
termination is not in the child’s best interest. In re S.R.L., 243 S.W.3d 232, 235 (Tex.
App.--Houston [14th Dist.] 2007, no pet.). Moreover, there is a very strong presumption
under Texas law that the parent-child relationship should be maintained. Yonko v. the
Dept. of Family & Protective Servs., 196 S.W.3d 236 (Tex. App.--Houston [1st Dist.] 2006, no
pet.).
A determination of whether termination would be in the best interest of a child is
done by looking at the factors set out in the seminal case of Holley v. Adams. See Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Texas Supreme Court set out nine non-
exclusive factors to use in determining the best interest of the child. Those factors are:
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;
21 4) the parental abilities of the individuals seeking custody; 5) the programs available to assist those individuals to promote the best interests of the child; 6) the plans for the child by the parties seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions committed by the parent that might indicate that the existing parent-child relationship is not a proper one; and 9) any excuses for the acts or omission committed by the parent. Id. These Holley factors are to be balanced and the exclusion of one or more, or the
existence of some other factor, can be part of the analysis. The list is not exhaustive and
is just a guide for the factfinder. The absence of evidence pertaining to some of the
factors will not preclude a factfinder from forming a strong conviction or belief that
termination is in the child’s best interest; however, scant evidence relevant to each Holly
factor will not support such a finding. In re C.H., 89 S.W.3d at 27. An appellate court
cannot rely on a lack of evidence to contradict a finding as if it were supporting the
finding. A lack of evidence does not constitute clear and convincing evidence. In re
E.N.C., 384 S.W.3d at 796.
Child Protective Services received a referral after Appellant took D.T., Jr. to the
County Hospital. The child was suffering from failure to thrive because of malnutrition.
The referral stated that D.T., Jr.’s father had committed domestic violence against
Appellant but that Appellant wanted to go back to him. 4 RR Exhibit 7, pg. 2. 22 Two months later, Appellant took the child to the hospital when he was suffering
from vomiting, diarrhea, and a urinary tract infection. Appellant told hospital personnel
that she did not have any formula. The physician was concerned that the child had not
been fed regularly because he was again suffering from failure to thrive. 4 RR Exhibit 7,
pg. 3. The caseworker testified that relative placements were not available, or otherwise
inappropriate. 4 RR Exhibit 7, pg. 3.
The Removal Affidavit stated that there was a prior removal history involving
Appellant for physical neglect of her child, A.G. Disposition was reason to believe. A.G.
had been diagnosed with failure to thrive due to malnutrition. She was nine months old
and weighed only 13.4 pounds at the time she was brought to the hospital. 4 RR Exhibit
7, pp. 3-4.
At trial, the caseworker testified that the foster caregiver was meeting all of D.T.,
Jr.’s needs the caregiver could at the time. 3 RR 6. D.T., Jr. had been diagnosed with
autism and psychosis and was receiving therapy in the foster home. 3 RR 7. He also had
behavioral and emotional issues. 3 RR 38.
The Department testified that D.T., Jr. was five years old and termination was in
his best interest. Termination would give D.T., Jr., a chance to be adopted. 3 RR 18.
The caseworker has worked with the Department for six years and she has seen children
with special needs like D.T., Jr. be adopted. The Department would be able to start
aggressively seeking to find someone to adopt him once a termination order was signed. 23 3 RR 22-23, 39. She testified to this fact even though, as of the time of trial, the
Department had been broadcasting that D.T., Jr. was available for adoption for two years
but that no one had expressed interest. 3 RR 32-33, 38. The Department only kept the
broadcast open “maybe three to six days” according to the caseworker’s testimony. 3 RR
45.
After thoroughly examining the record numerous times, Counsel is of the
professional opinion that termination of Appellant’s parental rights is in D.T., Jr.’s best
interest. Counsel has found no non-frivolous grounds for appeal and the trial court’s
judgment is in the child’s best interest.
CONCLUSION AND PRAYER
Based on the undersigned Counsel’s evaluation of the record before this
Honorable Court on appeal, Counsel has concluded that in her professional opinion there
are no arguable grounds of appeal and that an appeal would be wholly frivolous. It would
be unethical for Counsel to assert any appellate points. Counsel certifies that she has
forwarded a copy of this brief to Appellant at her last known address by certified mail,
return receipt requested, along with a letter informing Appellant that she has a right to
file a pro se response with this Court within 30 days. Counsel also informed Appellant
that if this Court concludes that an appeal would be wholly frivolous, she can challenge
that holding by filing a Petition for Review at the Texas Supreme Court. Accordingly,
Counsel asks this Court to allow her to withdraw as Appellant’s counsel. 24 Respectfully Submitted, /s/ Lana Shadwick _______________________
LANA SHADWICK TBN: 00784951 2211 Norfolk, Ste. 920 Houston, Texas 77098 PHONE: 713-392-8222 Lana@LanaShadwick.com
CERTIFICATE OF COMPLIANCE
I certify that the foregoing computer generated brief complies with word limit
requirements of TRAP 9.4 (3) and the word count as calculated under the TRAP Rules
is under 4198 words.
/s/ Lana Shadwick _______________________ LANA SHADWICK
25 CERTIFICATE OF SERVICE
I certify that a true and correct copy of appellant’s amended brief was served in
accordance with the Texas Rules of Appellate Procedure on March 7, 2015 on Sandra D.
Hachem and Anna Stool (Guardian Ad Litem for A.G., Appellant) by electronic delivery,
and to A.G., Appellant, by certified mail, R.R.R.
/s/ Lana S. Shadwick _________________________ LANA SHADWICK