in the Interest of M.L., a Child

• Court: Court of Appeals of Texas
• Decided: December 8, 2021
• Docket: 07-21-00160-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00160-CV

IN THE INTEREST OF M.L., A CHILD

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2020-539,477, Honorable Kara L. Darnell, Associate Judge Presiding

December 8, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Father, appeals the trial court’s order terminating his parental rights to

his son, M.L..1 Appointed counsel for Father has filed an Anders2 brief in support of a

motion to withdraw. Finding no reversible grounds for appeal, we reform the judgment of

the trial court and affirm as reformed.

1 To protect the privacy of the parties involved, we will refer to the appellant as “Father,” to the child’s mother as “Mother,” and to the child by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). Mother’s parental rights were also terminated in this proceeding. Mother does not appeal. 2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Background

In April of 2020, the Texas Department of Family and Protective Services became

involved with Mother and her newborn baby, M.L., due to concerns of Mother’s drug use.

M.L. was born two and a half months premature and was admitted to the neonatal

intensive care unit at the hospital. During the Department’s investigation, Mother

admitted that she used methamphetamine off and on since she was eighteen years old,

including during her pregnancy. Both Mother and M.L. tested positive for

methamphetamine when M.L. was born. At the time of M.L.’s birth, Father was

incarcerated for violating parole for a federal drug possession charge. The Department

filed its petition for protection, conservatorship, and termination of parental rights of

Mother and Father. Following an adversary hearing, the Department was appointed

temporary managing conservator of M.L. and he was placed with his maternal aunt.

Father maintained monthly contact with the Department while he was

incarcerated. After Father was released from jail in January of 2021, he obtained

employment and began to work the services outlined in his plan of service. He completed

a psychological evaluation, attended ten parenting classes, and maintained stable

housing. Father did not submit to a drug and alcohol evaluation, did not complete

individual counseling, and failed to comply with drug testing as requested by the

Department. M.L. was a year old when Father exercised his first visitation in April of 2021.

Father only visited with M.L. two or three times during the pendency of the case, and he

failed to attend several scheduled visits with M.L.

2 The associate judge conducted a bench trial on April 29 and June 16, 2021. At

trial, the Department produced evidence that Mother was awaiting transportation to a

federal facility to begin a twenty-year sentence for distribution of methamphetamine.

Mother testified that she and Father began living together in 2019. According to Mother,

Father knew that she used methamphetamine daily and that she was selling

methamphetamine out of the home they shared. She also claimed that he witnessed her

using methamphetamine after she told him that she was pregnant with M.L.

Father testified that he has five children ranging in age from fifteen years to five

months. Father acknowledged that he has been incarcerated four times since his first

child was born and was incarcerated when his last three children were born. The

evidence showed that Father has a significant criminal history beginning in 2005. His

criminal history includes a conviction for aggravated assault and two convictions for drug

possession. In 2016, Father was sentenced to forty-six months in federal prison due to

his involvement in a criminal enterprise involving methamphetamine. After Father was

paroled in 2019, he lived in a halfway house and met Mother. Father was aware that

Mother was a methamphetamine dealer when he began living with her and they married

a few months later. Father knew that Mother was pregnant when he left her in the fall of

2019. Father tested positive for methamphetamine in November of 2019, and he was

arrested and incarcerated for violating his parole.

The Department presented evidence that Father has a history of

methamphetamine use since 2012, and that he used methamphetamine after he was

released from incarceration in 2015 and 2019. After the termination trial began in April of

3 2021, Father was arrested twice. However, Father asserted his Fifth Amendment

privilege and declined to answer any questions concerning his recent arrests or drug use.

The Department also presented evidence that Father had previous involvement

with the Department in 2016, and that his parental rights were terminated in 2017 on

grounds including endangerment. At the time of trial, the mother of his youngest child

was incarcerated on a federal possession charge and Father had supervised visitation

with that child.

At the time of trial, M.L. had been in the care of his maternal aunt and her husband

for more than a year. M.L. is doing well and is bonded with his placement. The maternal

aunt and her husband have a stable home, own a business, and are willing to adopt M.L.

if parental rights are terminated.

The trial court terminated Father’s parental rights to M.L. on the grounds of

endangering conditions, endangerment, previous termination of parental rights to another

child based on endangering conditions or endangerment, and failure to comply with a

court order that established actions necessary to retain custody of the child. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(D), (E), (M), (O).3 The trial court also found that

termination was in the best interest of M.L. See § 161.001(b)(2).

3 Further references to provisions of the Texas Family Code will be by reference to “section ___” or “§ ___.”

4 Law and Analysis

Pursuant to Anders, Father’s court-appointed appellate counsel has filed a brief

certifying that he has diligently searched the record and has concluded that the record

reflects no arguably reversible error that would support an appeal. In re L.J., No. 07-14-

00319-CV, 2015 Tex. App. LEXIS 427, at *2-3 (Tex. App.—Amarillo Jan. 15, 2015, no

pet.) (mem. op.); In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig.

proceeding); Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56

(Tex. App.—Corpus Christi 2003, no pet.) (“[W]hen appointed counsel represents an

indigent client in a parental termination appeal and concludes that there are no non-

frivolous issues for appeal, counsel may file an Anders-type brief”).

Counsel certifies that he has diligently researched the law applicable to the facts

and issues and discusses why, in his professional opinion, the appeal is frivolous. In re

D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). By his Anders brief, counsel

concludes that reversible error is not present because sufficient evidence supports

termination under subsections (D), (E), (M), and (O) in the trial court’s order. See In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—

Amarillo 2005, no pet.) (only one predicate finding under section 161.001(b)(1) is

necessary to support termination when there is also a finding that termination is in a child’s

best interest). Counsel has complied with the requirements of Anders by providing a copy

of the brief, motion to withdraw, and appellate record to Father, and notifying him of his

right to file a pro se response if he desired to do so. Kelly v. State, 436 S.W.3d 313, 319-

20 (Tex. Crim. App. 2014); In re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS

5 11607, at *2-3 (Tex. App.—Amarillo Nov. 9, 2015) (order) (per curiam). Father has not

filed a response to his counsel’s Anders brief.

Due process requires that termination of parental rights be supported by clear and

convincing evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.)

(citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This standard falls between the civil

preponderance of the evidence standard and the reasonable doubt standard of criminal

proceedings. Id. at 73. Clear and convincing evidence is that “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.” § 101.007. Reviewing the legal

sufficiency of the evidence supporting parental termination requires us to review “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 J.F.C.,

96 S.W.3d at 266. In a factual sufficiency review, we are to determine whether, on the

entire record, a factfinder could reasonably form a firm conviction or belief about the truth

of the matter on which the movant bore the burden of proof. In re C.H., 89 S.W.3d 17,

28-29 (Tex. 2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no

pet.).

Pursuant to the Texas Supreme Court opinion in In re N.G., we must conduct a

specific review of the trial court’s findings under section 161.001(b)(1)(D) and (E),

because of the potential future consequences to appellant’s parental rights concerning a

6 different child. In re N.G., 577 S.W.3d 230, 235-37 (Tex. 2019) (per curiam);4 In re M.M.,

584 S.W.3d 885, 889 (Tex. App.—Amarillo 2019, pet. denied) (mem. op.).

Section 161.001(b)(1)(D) permits termination when clear and convincing evidence

shows that the parent knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

child. See § 161.001(b)(1)(D). Subsection (D) requires a showing that the environment

in which the child was placed posed a danger to the child’s physical or emotional health,

and it permits termination based on a single act or omission by the parent. In re J.A.S.,

No. 07-12-00150-CV, 2012 Tex. App. LEXIS 8087, at *13-14 (Tex. App.—Amarillo Sept.

25, 2012, no pet.) (mem. op.). Subsection (D) concerns the child’s living environment,

rather than the parent’s conduct, though parental conduct may produce an endangering

environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.]

2010, pet. denied). It is not necessary that the child’s living environment directly threaten

the child or that the child be injured, but the parent must at least be aware of the potential

for danger to the child in such an environment and must have disregarded that risk. In re

S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug

4 Subsection (b)(1)(M) permits parental rights to be terminated if the parent has “had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.” In re N.G., 577 S.W.3d at 234 (quoting section 161.001(b)(1)(M) of the Family Code). Because findings based on subsections (b)(1)(D) or (E) may become “a basis to terminate parent’s rights to other children,” the Supreme Court reasoned that when a parent presents an appellate issue related to subsections (b)(1)(D) or (E) and the appellate court does not address the issue on appeal, the appellate court “eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to other children.” Id. at 235. According to the Supreme Court, “the parent’s fundamental liberty interest at stake outweighs the state’s interest in deciding only what is necessary for final disposition of the appeal.” Id. at 237. “Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court thus violates the parent’s due process and due course of law rights.” Id.

7 use and criminal activity support a conclusion that the child’s surroundings endanger his

or her physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). The relevant time frame under this subsection is prior to the

child’s removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.

denied).

Section 161.001(b)(1)(E) permits termination when clear and convincing evidence

shows that the parent has engaged in conduct or knowingly placed the child with persons

who engaged in conduct which endangers the child’s physical or emotional well-being.

See § 161.001(b)(1)(E). Under subsection (E), the relevant inquiry is whether evidence

exists that the endangerment of the child’s physical or emotional well-being was the direct

result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,

121 S.W.3d at 125. Termination under subsection (E) must be based on more than a

single act or omission. A voluntary, deliberate, and conscious course of conduct by a

parent is required. Id. Thus, while both subsections (D) and (E) focus on endangerment,

they differ regarding the source and proof of endangerment. In re S.M.L., 171 S.W.3d at

477. To support a finding of endangerment, the parent’s conduct does not necessarily

have to be directed at the child, nor is the child required to actually suffer injury. Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

In this case, the trial court heard evidence of Father’s extensive criminal history

and drug use, his prior involvement with the Department, the termination of his parental

rights to another child on endangerment grounds, and his association with people known

to be involved with the distribution or use of illegal drugs. A parent’s mistreatment of other

children may be considered in deciding whether that parent engaged in a course of

8 conduct that endangered the physical or emotional well-being of a child. Cervantes-

Peterson v. Texas Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (en banc). In addition, evidence of a parent’s criminal

history, convictions, and resulting imprisonment may establish an endangering course of

conduct. In re J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st. Dist.] 2019, no pet.);

In re V.A., No. 07-17-00413-CV, 2018 Tex. App. LEXIS 1521, at *10 (Tex. App.—Amarillo

Feb. 27, 2018, no pet.) (mem. op.) (a parent’s continued use of drugs demonstrates an

inability to provide for the child’s emotional and physical needs and to provide a stable

environment); In re J.S.B., Nos. 01-17-00480-CV, 01-17-00481-CV, 01-17-00484-CV,

2017 Tex. App LEXIS 11930, at *42-43 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017,

pet. denied.) (mem. op.) (a parent’s criminal history is relevant in analyzing the present

and future emotional and physical danger to a child and whether a parent is capable of

providing a safe and stable home for his child); In re K.W., No. 02-09-00041-CV, 2010

Tex. App. LEXIS 291, at *18-23 (Tex. App.—Fort Worth Jan. 14, 2010, no pet.) (mem.

op.) (mother’s drug use supported endangerment findings against father under predicate

grounds (D) and (E)).

Upon his release from incarceration, Father partially complied with his service

plan, but he did not complete all of his services. Notably, Father failed to comply with the

service plan requirements that he obtain a substance abuse assessment and submit to

random drug testing. A parent’s refusal to submit to drug testing may be treated as if he

had tested positive for drugs. In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston

[14th Dist.] 2009, no pet.).

We conclude that the trial court’s findings with respect to (D) and (E) are

9 supported by legally and factually sufficient evidence.

The order of termination also lists subsection (M) as a predicate ground for

termination. The prior termination of a parent’s rights as to another child on child-

endangerment grounds is a sufficient statutory predicate ground for the termination of the

parent’s rights as to another child. See 161.001(b)(1)(M). Our examination of the record

reveals that the Department did not plead subsection (M) as a ground for termination and

Father’s trial counsel objected to the trial court considering subsection (M) as a ground

for termination. Because a petition for termination is required to include the statutory

grounds alleged for termination, we reform the trial court’s order of termination to delete

subsection (M) as a predicate ground for termination. See § 161.101(a).

As in a criminal case, we have independently examined the entire record to

determine whether there is a non-frivolous issue that might support the appeal. See

Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Our independent review supports

termination under subsection (D) and (E). See In re N.G., 577 S.W.3d at 234-35. Based

on this record, we conclude that a reasonable factfinder could have formed a firm belief or

conviction that grounds for termination existed and that termination of Father’s parental

rights was in the best interest of M.L. See § 161.001(b)(1), (2). After reviewing the record

and the Anders brief, we agree with counsel that there are no plausible grounds for

reversal.

10 Conclusion

We affirm the trial court’s order terminating Father’s parental rights to M.L. as

reformed.5

Judy C. Parker Justice

5We 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. Counsel has filed a motion to withdraw, on which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).