in the Interest of E.H. and I.J., Children

• Court: Court of Appeals of Texas
• Decided: April 28, 2022
• Docket: 02-21-00429-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00429-CV ___________________________

IN THE INTEREST OF E.H. AND I.J., CHILDREN

On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-694920-21

Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant A.K. (Mother) appeals from the trial court’s final order terminating

her parental rights to E.H. (Ethan) and I.J. (Ira).1 See Tex. Fam. Code Ann.

§§ 161.001(b), 161.206. Because we find no arguable grounds for reversal, we affirm

the trial court’s final order of termination.

Appellee Texas Department of Family and Protective Services (the

Department) filed a petition seeking to terminate Mother’s parental rights, partially

based on the Department’s allegations that Mother had placed Ethan and Ira in

endangering conditions or surroundings; Mother had engaged in endangering

conduct; Mother had constructively abandoned the children, who had been in

conservatorship for at least six months; Mother had failed to comply with a court-

ordered service plan; and Mother had used a controlled substance in a manner that

endangered the children’s health or safety and failed to complete a court-ordered

substance-abuse treatment program. See id. § 161.001(b)(1)(D), (E), (N), (O), (P). The

Department also alleged that termination would be in Ethan’s and Ira’s best interest.

See id. § 161.001(b)(2).

During the resulting bench trial, there was evidence that Mother had a history

of prostitution and had a total of seven children, some of whom had tested positive

for controlled substances at birth. Mother testified that she knew none of her

We use aliases to refer to the children and their family members. See Tex. 1

Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).

2 children’s ages or where they lived. Mother also had a criminal history: a 2018 felony

conviction for theft of property valued at less than $2,500 with two prior convictions;

a 2017 felony conviction for theft of property valued at less than $2,500 with two

prior convictions; and a 2014 felony conviction for burglary of a habitation.

An investigator for the Department testified that Ira had tested positive for

opiates, methadone, and cocaine when he was born in early 2021. Mother also tested

positive for controlled substances as she had four prior times during the pregnancy.

Mother admitted to hospital staff that she was using cocaine and heroin. The

Department removed Ira from Mother’s care based on these positive drug tests and

also removed Ira’s older brother Ethan because of the risks to him based on Mother’s

drug use. Although Mother was placed under a service plan, which included weekly

visits with Ethan and Ira and required drug treatment, Mother wholly failed to

comply. Mother pointed out that she had never received information about drug-

treatment options; however, the Department’s caseworker testified that she was

unable to communicate with Mother after the initial contact because the number

Mother supplied was not a working number. At the time of trial, Ethan and Ira had

been placed with a foster family that hoped to adopt them. Ethan and Ira were well

adjusted and doing well in foster care. Their guardian ad litem recommended that

Mother’s parental rights be terminated, and the Department’s caseworker testified that

termination would be in Ethan’s and Ira’s best interest.

3 The trial court found by clear and convincing evidence that Mother had

knowingly placed or knowingly allowed Ethan and Ira to remain in endangering

conditions or surroundings; had engaged in endangering conduct or knowingly placed

Ethan and Ira with persons who engaged in such conduct; had constructively

abandoned the children; had failed to comply with a court-ordered service plan; and

had used controlled substances in an endangering manner and failed to complete an

ordered drug-treatment program. The trial court also found that the termination of

Mother’s parental rights was in Ethan’s and Ira’s best interest.

Mother’s appellate counsel has filed a brief stating that he has conducted a

professional evaluation of the record and concluded that there are no arguable

grounds to be advanced to support an appeal of the trial court’s termination order and

that the appeal is frivolous. Counsel, however, has not sought to withdraw from his

representation of Mother in this court. See generally In re P.M., 520 S.W.3d 24, 27 (Tex.

2016) (“[A]n Anders motion to withdraw brought in the court of appeals, in the

absence of additional grounds for withdrawal, may be premature.”). Counsel’s brief

presents the required professional evaluation of the record demonstrating why there

are no arguable grounds for appeal. See Anders v. California, 386 U.S. 738, 744,

87 S. Ct. 1396, 1400 (1967); see also P.M., 520 S.W.3d at 27 n.10 (recognizing Anders

procedures apply in termination of parental rights cases). Counsel provided Mother

with a copy of his brief. Further, counsel and this court informed Mother of her right

to request the record and to file a pro se response. See Kelly v. State, 436 S.W.3d 313,

4 318–20 (Tex. Crim. App. 2014). Mother did not respond. The Department has

waived its right to respond to the Anders brief.

Having carefully and independently reviewed the entire record and the Anders

brief, we conclude that there are no arguable grounds supporting the appeal; thus, we

agree with Mother’s appointed appellate counsel that Mother’s appeal is without

merit. See In re C.J., 501 S.W.3d 254, 255 (Tex. Crim. App. 2016). Accordingly, we

affirm the trial court’s final order of termination. See Tex. R. App. P. 43.2(a).

/s/ Brian Walker

Brian Walker Justice

Delivered: April 28, 2022