In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-18-00297-CV
IN THE INTEREST OF P.L.G. AND H.M.G., CHILDREN
On Appeal from the 100th District Court Childress County, Texas Trial Court No. 10,713, Honorable Stuart Messer, Presiding
August 28, 2018
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
“David” appeals the trial court’s order terminating his parental rights to his children,
“Paul” and “Hailey.”1 Appointed counsel for David has filed an Anders2 brief in support of
a motion to withdraw. Finding no arguable grounds for appeal, we affirm the judgment of
the trial court.
1 To protect the children’s privacy, we will refer to the appellant father as “David,” the mother of the children as “Tricia,” the children as “Paul” and “Hailey,” and the intervenor as “Laura.” See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). Tricia’s parental rights were also terminated. Her appeal is pending in cause number 07-18-00206-CV. 2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Background
In May of 2017, the Texas Department of Family and Protective Services filed its
petition for protection, conservatorship, and termination of the parental rights of David
and Tricia as to their children, nine-year-old Paul and eight-year-old Hailey. The children
were removed after the Department received a report that David and Tricia were using
methamphetamine and marijuana while caring for the children. David and Tricia
submitted to a drug test requested by the Department and both tested positive for
methamphetamine. There were also concerns about the stability of the home because
neither David nor Tricia was employed and they were in the process of being evicted from
their home. Both parents admitted that they were unable to provide for Paul and Hailey
at the time of the removal.
The Department developed a service plan for David. According to the plan, David
was required to: abstain from the use of illegal drugs; submit to random drug screens;
complete a substance abuse assessment and follow recommendations; maintain safe,
stable housing; maintain stable, verified employment; take parenting classes; complete a
psychological evaluation; participate in Rational Behavior Training (RBT); attend
individual and couple’s counseling; pay child support; and attend visits with Paul and
Hailey.
David completed a psychological evaluation, parenting classes, RBT, and a
substance abuse assessment. The substance abuse assessment recommended that he
attend outpatient drug treatment. David began an outpatient drug treatment program but
he did not complete the program. David did not attend individual or couple’s counseling
2 and he failed to pay his court-ordered child support. David’s visitation with Paul and
Hailey was suspended in February of 2018 after he refused to submit to multiple drug
tests. David maintained sporadic contact with the Department throughout the course of
the case. David did not provide proof of employment or maintain stable housing. The
caseworker testified that David and Tricia were living in a small camper trailer at the time
of trial. David failed to appear at the termination trial.
Paul and Hailey are placed with Laura, their maternal step-grandmother and an
intervenor in the case. Laura has known David for nine years. Laura testified that David
has had a substance abuse problem since he was thirteen years old. According to Laura,
David has been in prison twice, including a year in the federal penitentiary for
manufacturing and selling crystal methamphetamine. David recently told Laura that he
and Tricia were both using crystal methamphetamine.
Before the Department filed its termination suit, Paul and Hailey frequently stayed
overnight at Laura’s and sometimes they stayed for the weekend. The children are
bonded with Laura and they have asked to remain in her home. Paul has been diagnosed
with autism, oppositional defiant disorder, and attention deficit hyperactivity disorder. He
has had some behavioral issues at school. Laura has worked with the school to address
their concerns about Paul. She also takes Paul to counseling once a week. Paul’s grades
and behavior have significantly improved since he has lived with Laura. Laura plans to
adopt Paul and Hailey.
The trial court terminated David’s parental rights to Paul and Hailey on the grounds
of endangering conditions, endangering conduct, failure to support, failure to comply with
3 a court order that established actions necessary to retain custody of the children, and
failure to complete a court-ordered substance abuse treatment program. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E), (F), (O), (P) (West Supp. 2017).3 The court also found
that clear and convincing evidence demonstrated that termination was in the best interest
of Paul and Hailey. See § 161.001(b)(2). The court appointed Laura as the Permanent
Managing Conservator of Paul and Hailey.
Analysis
Pursuant to Anders, David’s court-appointed appellate counsel has filed a brief
certifying that she has diligently searched the record and has concluded that the record
reflects no arguably reversible error that would support an appeal. 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”); 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.) (same).
Counsel certifies that she has diligently researched the law applicable to the facts
and issues and discusses why, in her professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). Counsel has complied with
the requirements of Anders by providing a copy of the brief, motion to withdraw, and
appellate record to David, and notifying him of his right to file a pro se response if he
3 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.”
4 desired to do so. Id.; 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 11607, at *2-3 (Tex. App.—Amarillo
Nov. 9, 2015) (order) (per curiam). David has not filed a response.
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
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-18-00297-CV
IN THE INTEREST OF P.L.G. AND H.M.G., CHILDREN
On Appeal from the 100th District Court Childress County, Texas Trial Court No. 10,713, Honorable Stuart Messer, Presiding
August 28, 2018
MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.
“David” appeals the trial court’s order terminating his parental rights to his children,
“Paul” and “Hailey.”1 Appointed counsel for David has filed an Anders2 brief in support of
a motion to withdraw. Finding no arguable grounds for appeal, we affirm the judgment of
the trial court.
1 To protect the children’s privacy, we will refer to the appellant father as “David,” the mother of the children as “Tricia,” the children as “Paul” and “Hailey,” and the intervenor as “Laura.” See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). Tricia’s parental rights were also terminated. Her appeal is pending in cause number 07-18-00206-CV. 2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Background
In May of 2017, the Texas Department of Family and Protective Services filed its
petition for protection, conservatorship, and termination of the parental rights of David
and Tricia as to their children, nine-year-old Paul and eight-year-old Hailey. The children
were removed after the Department received a report that David and Tricia were using
methamphetamine and marijuana while caring for the children. David and Tricia
submitted to a drug test requested by the Department and both tested positive for
methamphetamine. There were also concerns about the stability of the home because
neither David nor Tricia was employed and they were in the process of being evicted from
their home. Both parents admitted that they were unable to provide for Paul and Hailey
at the time of the removal.
The Department developed a service plan for David. According to the plan, David
was required to: abstain from the use of illegal drugs; submit to random drug screens;
complete a substance abuse assessment and follow recommendations; maintain safe,
stable housing; maintain stable, verified employment; take parenting classes; complete a
psychological evaluation; participate in Rational Behavior Training (RBT); attend
individual and couple’s counseling; pay child support; and attend visits with Paul and
Hailey.
David completed a psychological evaluation, parenting classes, RBT, and a
substance abuse assessment. The substance abuse assessment recommended that he
attend outpatient drug treatment. David began an outpatient drug treatment program but
he did not complete the program. David did not attend individual or couple’s counseling
2 and he failed to pay his court-ordered child support. David’s visitation with Paul and
Hailey was suspended in February of 2018 after he refused to submit to multiple drug
tests. David maintained sporadic contact with the Department throughout the course of
the case. David did not provide proof of employment or maintain stable housing. The
caseworker testified that David and Tricia were living in a small camper trailer at the time
of trial. David failed to appear at the termination trial.
Paul and Hailey are placed with Laura, their maternal step-grandmother and an
intervenor in the case. Laura has known David for nine years. Laura testified that David
has had a substance abuse problem since he was thirteen years old. According to Laura,
David has been in prison twice, including a year in the federal penitentiary for
manufacturing and selling crystal methamphetamine. David recently told Laura that he
and Tricia were both using crystal methamphetamine.
Before the Department filed its termination suit, Paul and Hailey frequently stayed
overnight at Laura’s and sometimes they stayed for the weekend. The children are
bonded with Laura and they have asked to remain in her home. Paul has been diagnosed
with autism, oppositional defiant disorder, and attention deficit hyperactivity disorder. He
has had some behavioral issues at school. Laura has worked with the school to address
their concerns about Paul. She also takes Paul to counseling once a week. Paul’s grades
and behavior have significantly improved since he has lived with Laura. Laura plans to
adopt Paul and Hailey.
The trial court terminated David’s parental rights to Paul and Hailey on the grounds
of endangering conditions, endangering conduct, failure to support, failure to comply with
3 a court order that established actions necessary to retain custody of the children, and
failure to complete a court-ordered substance abuse treatment program. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E), (F), (O), (P) (West Supp. 2017).3 The court also found
that clear and convincing evidence demonstrated that termination was in the best interest
of Paul and Hailey. See § 161.001(b)(2). The court appointed Laura as the Permanent
Managing Conservator of Paul and Hailey.
Analysis
Pursuant to Anders, David’s court-appointed appellate counsel has filed a brief
certifying that she has diligently searched the record and has concluded that the record
reflects no arguably reversible error that would support an appeal. 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”); 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.) (same).
Counsel certifies that she has diligently researched the law applicable to the facts
and issues and discusses why, in her professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). Counsel has complied with
the requirements of Anders by providing a copy of the brief, motion to withdraw, and
appellate record to David, and notifying him of his right to file a pro se response if he
3 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.”
4 desired to do so. Id.; 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 11607, at *2-3 (Tex. App.—Amarillo
Nov. 9, 2015) (order) (per curiam). David has not filed a response.
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 (West 2014). 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.).
By her Anders brief, counsel concludes that reversible error is not present because
sufficient evidence supports termination under subsections (D), (E), (O), and (P). 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
5 necessary to support termination when there is also a finding that termination is in a child’s
best interest).
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). Based on this record, we conclude
that a reasonable factfinder could have formed a firm belief or conviction that sufficient
evidence existed to support at least one ground for termination, and that termination of
David’s parental rights was in Paul and Hailey’s best interest. See In re A.V., 113 S.W.3d
at 362; In re T.N., 180 S.W.3d at 384. After reviewing the record and the Anders brief,
we agree with counsel that there are no plausible grounds for reversal.
Accordingly, the trial court’s order terminating David’s parental rights to Paul and
Hailey is affirmed.4
Judy C. Parker Justice
4 We 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. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).