IN THE TENTH COURT OF APPEALS
No. 10-18-00344-CV
IN THE INTEREST OF J.W., A CHILD
From the 85th District Court Brazos County, Texas Trial Court No. 17-001284-CV-85
MEMORANDUM OPINION
John W. and Gena T. appeal from the trial court’s judgment that terminated the
parent-child relationship between them and their child, J.W. After hearing all the
evidence, the jury found by clear and convincing evidence that the parental rights of John
W. and Gena T. should be terminated. The trial court entered an amended order of
termination in accordance with the jury verdict. We affirm.
FACTS
John W. and Gena T. married in February 2016. Gena T. had two children from
previous relationships. Her parental rights to one child were previously terminated and
the other child lives with his father. John W. did not have any children at the time he
married Gena T. J.W. was born on April 24, 2017, at the home of John W. and Gena T. After his birth, he was taken to the hospital where he was intubated for respiratory
problems because he aspirated meconium. Soon after his birth, J.W. tested positive for
five controlled substances, and he began experiencing withdrawal symptoms. Gena T.
tested positive for opiates and amphetamine. J.W. began treatment for the withdrawal
symptoms. He remained in the hospital for almost a month and then he was placed with
an unrelated foster family.
MOTHER’S APPEAL
In presenting this appeal, counsel for Gena T. filed a brief pursuant to Anders v.
California asserting that she has conducted a review of the record and found no arguable
issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967).
The brief filed meets the requirements of Anders by presenting a professional
evaluation of the record and demonstrating why there are no arguable grounds to be
advanced on appeal. Additionally, Gena T.’s attorney advised her that she had filed the
brief pursuant to Anders, that Gena T. had the right to review the record and file a pro se
response on her own behalf, and provided Gena T. with a copy of the record. Although
given the opportunity, Gena T. did not file a response with this Court.
The amended order of termination recites that the jury was given the following
instruction with respect to Gena T.:
For the parent-child relationship in this case to be terminated with respect to [Gena T.], the mother of the child, [J.W.], it must be proven by clear and convincing evidence that at least one of the following events has occurred:
In the Interest of J.W. Page 2 1. [Gena T.] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. 2. [Gena T.] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. 3. [Gena T.] had her parent-child relationship terminated with respect to another child based on a finding that her conduct was in violation of § 161.001 (b) (1) (D) or (E), Texas Family Code. 4. [Gena T.] failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who had been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse and neglect of the child. 5. [Gena T.] used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance.
In addition, it must be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child. Some factors to consider in determining the best interest of the child 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; 4. the parenting ability of the individuals seeking custody; 5. the programs available to assist those individuals to promote the best interest of the child; 6. the plans for the child of those individuals or by the agency seeking custody; 7. the stability of the home or proposed placement; 8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and 9. any excuse for the acts or omissions of the parent.
The jury found that the parent-child relationship between Gena T. and J.W. should be
terminated.
In the Interest of J.W. Page 3 In the Anders brief, counsel analyzes the legal and factual sufficiency of the
evidence to support termination. Counsel acknowledges that only one statutory ground
is necessary to support an order of termination in addition to a finding that termination
is in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Counsel
further evaluates the legal and factual sufficiency of the evidence to support a finding
that termination was in the best interest of the child. Counsel’s brief evidences a
professional evaluation of the record for error, and we conclude that counsel performed
the duties required of an appellate counsel.
Due process requires application of the clear and convincing standard of proof in
cases involving involuntary termination of parental rights. 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 2008). See
also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
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) 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 Supp. 2018); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976). We agree with counsel’s evaluation that there is
clear and convincing evidence to support termination under Section 161.001 for Gena T.
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001 (b) (1), we must also find clear and convincing evidence that termination
In the Interest of J.W. Page 4 of the parent-child relationship was in the child's best interest. See TEX. FAM. CODE ANN.
§ 161.001 (b) (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. There is a long-standing non-exhaustive list of factors for
a court to consider in deciding the best interest of a child in a termination case. See Holley,
544 S.W.2d at 371-72.
We agree with counsel’s evaluation that there is clear and convincing evidence
under the appropriate legal and factual sufficiency standards for the jury to have
determined that termination of the Gena T.’s parent-child relationship was in the best
interest of J.W.
Upon receiving a "frivolous appeal" brief, this Court must conduct a full
examination of all proceedings to determine whether the case is wholly frivolous. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also In re
M.A.R., No. 10-10-00237-CV, 2011 Tex. App. LEXIS 3596, at *2 (Tex. App.—Waco May 11,
2011, no pet.) (mem. op.). After our review of the entire record and counsel’s brief, we
agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178
S.W.3d 824, 827-28 (Tex. Crim. App. 2005).
If Gena T., after consulting with counsel, desires to file a petition for review,
counsel is still under a duty to timely file with the Texas Supreme Court “a petition for
In the Interest of J.W. Page 5 review that satisfies the standards for an Anders brief.”1 See In re P.M., 520 S.W.3d 24, 27-
28 (Tex. 2016).
FATHER’S APPEAL
John W. argues in two issues that the evidence was insufficient to support the
jury’s predicate parental termination findings under Section 161.001 (b) (1) (D), (E), or (O)
of the Texas Family Code and that the evidence was insufficient to support the finding
that termination was in the best interest of the child. In another issue, John W. argues
that this Court must reverse and remand for a new trial because he objected to the trial
court’s broad-form submission because there was no evidence to support at least one
predicate.2
The amended order of termination recites that the jury was given the following
instruction with respect to John W.:
For the parent-child relationship in this case to be terminated with respect to [John W.], the Father of the child, [J.W.], it must be proven by clear and convincing evidence that at least one of the following events has occurred:
1. [John W.] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child. 2. [John W.] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child. 3. [John W.] failed to comply with the provisions of a court order that specifically established the actions necessary for the father to obtain the return of the child who had been in the permanent or temporary
1 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders proceedings. 2 Other than stating this contention as an issue on appeal, John W. does not address the merits of this
argument. In the Interest of J.W. Page 6 managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse and neglect of the child.
In addition, it must be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child. Some factors to consider in determining the best interest of the child 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; 4. the parenting ability of the individuals seeking custody; 5. the programs available to assist those individuals to promote the best interest of the child; 6. the plans for the child of those individuals or by the agency seeking custody; 7. the stability of the home or proposed placement; 8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and 9. any excuse for the acts or omissions of the parent.
The jury found that the parent-child relationship between John W. and J.W. should be
Sufficiency of the Evidence
In the first issue J.W. argues that the evidence is insufficient to support the
predicate grounds for termination. Only one predicate act under section 161.001 (b) (1)
is necessary to support a judgment of termination in addition to the required finding that
termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In
conducting a legal sufficiency review in a parental termination case:
[A] 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. To give appropriate deference to the factfinder's conclusion and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable
In the Interest of J.W. Page 7 to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. 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.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex .2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.... [T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that 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 reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
Section 161.001 (b) (1) (O) of the Texas Family Code provides that the court may
order termination of the parent-child relationship if the court finds by clear and
convincing evidence that the parent has:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child
In the Interest of J.W. Page 8 John W. does not challenge that J.W. has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective Services for not
less than nine months as a result of the child's removal from the parent under Chapter
262 for the abuse or neglect of the child. Therefore we will turn to whether John W. failed
to comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of J.W.
The service plan required John W. to:
obtain and maintain a stable and legitimate income complete a drug and alcohol assessment and follow recommendations contact CPS caseworker at least twice a month and notify CPS within 48 hours of address and/or phone changes sign releases of information with service providers in order to allow CPS to access information with service providers attend supervised visits with J.W. as approved and scheduled by CPS complete a psychological evaluation and follow recommendations complete a parenting assessment and follow recommendations attend individual counseling and follow recommendations including parenting classes live a criminal free lifestyle
Kelly Allen, with the Department of Family and Protective Services, testified that
John W. did not maintain stable housing as required by the service plan. Allen stated
that John W.’s house was extremely cluttered and was unsafe for J.W. The Department
introduced photographs of John W.’s house depicting the condition of the house. The
photographs show that there is little room to walk in the house and that there are pill
bottles, cigarette butts, trash, glass, and other items that would be hazardous for a
toddler.
In the Interest of J.W. Page 9 Allen further testified that John W. failed to maintain contact with the CPS
caseworker as required by the service plan. Although John W. attended visits with J.W.,
he failed to maintain contact with the Department as required.
Allen testified that John W. initially did not attend counseling as required by the
service plan. John. W. began attending counseling, but the Department considered this
requirement inconclusive or incomplete. Allen stated that the counseling was
unsuccessful and that the counseling notes indicated John W. would struggle to be a
protective parent. The counseling notes stated that John W. would do anything Gena T.
told him to do and that he minimized her substance abuse problems. Allen testified that
John W. did not comply with the provisions of the service plan and that termination was
appropriate.
Ground O of Section 161.001 (b) (1) does not quantify any particular number of
provisions of the family service plan that a parent must not achieve in order for the
parental rights to be terminated or the degree of a parent's conduct that will be deemed
to be a failure to achieve a particular requirement of the plan. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O) (West Supp. 2018); In Interest of B.H.R., No. 06-17-00081-CV, 2017 WL
5150852, *5 (Tex. App.—Texarkana, November 7, 2017, no pet.). The record shows that
although John W. did comply with some of the provisions of the service plan, he did not
comply with all of the provisions of the court order. Accordingly, a finding that John W.
failed to comply with the requirements of the family service plan is supported by legally
and factually sufficient evidence. We overrule John W.’s first issue on appeal.
In the Interest of J.W. Page 10 Best Interest
In the third issue, John W. complains that the evidence is insufficient to support
the jury’s finding that termination is in the best interest of the child. In determining the
best interest of a child, a number of factors have been considered, including (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 individuals seeking custody; (5) the programs available to assist these
individuals; (6) the plans for the child by these individuals; (7) the stability of the home;
(8) the acts or omissions of the parent that may indicate the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re S.L., 421 S.W.3d 34, 38 (Tex. App.—
Waco 2013, no pet.). The Holley factors focus on the best interest of the child, not the best
interest of the parent. In re S.L., 421 S.W.3d at 38. The goal of establishing a stable
permanent home for a child is a compelling state interest. Id. The need for permanence
is a paramount consideration for a child's present and future physical and emotional
needs. Id.
J.W. was under two years-old at the time of trial. He had been placed with the
foster family since his release from the hospital. The record shows that J.W.’s physical
and emotional needs are being met by the foster family. The foster family plans to adopt
J.W. in the event the parental rights of John W. and Gena T. are terminated. The foster
parents have received training and have a family support system.
In the Interest of J.W. Page 11 John W. was seventy years-old at the time of trial and J.W. is his first child. John
W. testified that he planned to live with Gena T.’s sister for a while if he is given custody
of J.W. so that she can help him. John W. then plans to move to the Dallas/Fort Worth
area where he has family who can help provide a support system for J.W. The jury heard
evidence that John W. is not able to protect J.W. from Gena T. and that he allows Gena T.
to control him. The jury heard evidence that after becoming involved with Gena T., John
W. allowed persons to live in his home who abused drugs. John W. was also arrested for
domestic violence after an incident with Gena T. and an acquaintance of hers. Although
John W. and Gena T. both testified that they planned to divorce, the jury heard testimony
that the divorce was in name only so that John W. could obtain custody of J. W. We find
that the evidence is legally and factually sufficient to support the jury’s finding that
termination is in the best interest of the child. We overrule the third issue.
Broad-Form Submission
In the second issue, John W. argues that “if there is evidence to support the jury’s
predicate finding under one ground, the Court must nonetheless reverse and remand for
a new trial, as Father objected to the trial court’s broad-form submission because there
was no evidence to support at least one predicate.”
On appeal, John W. does not argue that the trial court erred in failing to submit
the grounds for termination as separate questions or by including an instruction that at
least ten of the jurors must agree as to which predicate act was used to support the
termination of his parental rights. John W. does not specifically address the second issue
in his brief. John W. only references the second issue when setting out his argument and
In the Interest of J.W. Page 12 only cites to a dissent in Harris County v. Smith, 96 S.W.3d 230, 238 (Tex. 2002). John W.
does not cite to the record in referencing his argument. See TEX. R. APP. P. 38.1 (i). Because
we find that this issue is inadequately briefed and presents nothing for review, we
overrule the second issue.
CONCLUSION
We affirm the trial court’s judgment.
JOHN E. NEILL Justice
Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed May 1, 2019 [CV06]
In the Interest of J.W. Page 13