in the Interest of P.S., a Child

• Court: Court of Appeals of Texas
• Decided: August 19, 2022
• Docket: 07-22-00167-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00167-CV

IN THE INTEREST OF P.S., A CHILD

On Appeal from the 316th District Court Hutchinson County, Texas Trial Court No. 44,483, Honorable Curt Brancheau, Presiding

August 19, 2022 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

This is an appeal from the trial court’s final order terminating the parental rights of

SS to her child, PS. In presenting this appeal, appointed counsel filed an Anders brief in

support of a motion to withdraw.1 We affirm the trial court’s order but defer ruling on

counsel’s motion to withdraw.

SS is the mother of PS. Born in November 2020, the infant experienced both

gastrointestinal and drug withdrawal symptoms as a consequence of having been

exposed to methamphetamine in utero. SS admitted to having used methamphetamine

1 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). while pregnant with PS. The Department removed PS from his mother’s custody and

placed him in a foster home.

Though a service plan was in place, SS failed to avail herself of the resources

made available to address her drug addiction and improve her parenting skills. She

refused to submit to drug testing multiple times and inhibited the Department’s ability to

perform a safety assessment by refusing its entry to her residence multiple times.

In September 2021, SS was ordered to submit to drug screening, the result of

which yielded positive results for methamphetamine. Later, she was arrested as a result

of a traffic stop; marijuana and drug paraphernalia were found in her possession. So too

was it discovered that she operated the vehicle without a license. Other evidence of

record revealed that (1) her contact with PS was sporadic and (2) she failed to maintain

stable and appropriate housing and employment.

At end of trial, the trial court terminated SS’s parental rights to PS on several

grounds, including subsection (E) of § 161.001(b)(1) of the Texas Family Code.

Thereafter, she timely perfected an appeal and received appointed counsel. Again, the

latter filed an Anders brief after failing to uncover any arguable issues meriting review.

The procedures set forth in Anders v. California, pertaining to a non-meritorious

appeal of a criminal conviction, apply to the appeal of an order terminating parental rights.

See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.) (per curiam).

The brief filed by appointed counsel here meets the requirements of Anders by presenting

a professional evaluation of the record and demonstrating why there are no arguable

grounds for reversal of the termination order. So too did counsel move to withdraw,

provide SS with copies of the brief and appellate record, and notify her of her right to file

2 a pro se response if she cared to. Id. By letter, this Court also notified SS of the Anders

situation and granted her opportunity to file, by August 10, 2022, a response to counsel’s

motion and brief. No response has been filed to date.

We also independently examined the entire record to determine, per Stafford v.

State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (en banc), whether there were any

arguable issues warranting development. None were found. Rather, our analysis both

confirmed counsel’s representation and led us to conclude that clear and convincing

evidence supported the trial court’s finding under subsection (E).2 TEX. FAM. CODE. ANN.

§ 161.001(b)(1)(E) (permitting termination when clear and convincing evidence shows

that the parent engaged in conduct or knowingly placed the children with persons who

engaged in conduct endangering the children’s physical or emotional well-being). The

litany of evidence described earlier in the opinion required that conclusion. We reiterate

that evidence as (1) SS’s use of methamphetamine while pregnant with PS, (2) PS having

been born with methamphetamine in his system, (3) PS experiencing physical distress

and withdrawal from exposure to the controlled substance, (4) SS’s refusal to submit to

drug testing, (5) SS’s failure to comply with the requirements of the service plan, (6) SS’s

failure to maintain gainful employment and suitable housing, (7) SS’s continued use of

methamphetamine, (8) her continuing criminal conduct related to drug possession, and

(9) her failure to engage in productive and consistent visits with PS. See In re M.M., No.

07-19-00324-CV, 2020 Tex. App. LEXIS 2203, at *10–11 (Tex. App.—Amarillo Mar. 16,

2 Our independent review included a specific examination of the evidence supporting termination under subsection (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (observing that due process requires appellate review of evidence supporting grounds for termination under § 161.001(b)(1)(D) or (E) even when another ground for termination is sufficient due to the potential collateral consequences of findings under those subsections). 3 2020, pet. denied) (mem. op.) (noting that the decision to engage in illegal drug use during

the pendency of a termination suit, when the parent is at risk of losing a child, supports a

finding that the parent engaged in conduct that endangered the child’s physical or

emotional well-being); In re T.C., No. 07-18-00232-CV, 2018 Tex. App. LEXIS 6768, at

*7 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied) (mem. op.) (stating that “[d]rug use

is also a course of endangering conduct and a parent bears the responsibility to guard

against potential dangers to a child”); In re S.M.L.D., 150 S.W.3d 754, 757–58 (Tex.

App.—Amarillo 2004, no pet.) (upholding termination under (E) because mother’s

“ingestion of drugs while pregnant . . . brought about actual physical harm to the infant”

since the child suffered symptoms of withdrawal upon birth).

Having examined the entire record, we agree with counsel that the record presents

no meritorious grounds for reversal. We affirm the judgment of the trial court terminating

SS’s parental relationship with PS. Due to counsel’s continuing responsibility to her client,

we take no action on her motion to withdraw.3

Brian Quinn Chief Justice

3 An Anders motion to withdraw filed in the court of appeals may be premature. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Courts have a duty to see that withdrawal of counsel will not result in prejudice to the client. Id. In light of In re P.M., 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 in the Texas Supreme Court. 4