In the Interest of T.E. and M.E., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 6, 2025
• Docket: 10-24-00278-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00278-CV No. 10-24-00290-CV

IN THE INTEREST OF T.E. AND M.E., CHILDREN IN THE INTEREST OF L.H., A CHILD

From the 272nd District Court Brazos County, Texas Trial Court Nos. 23-000533-CV-272 and 23-000534-CV-272

MEMORANDUM OPINION

The underlying cases were tried together and concern the parental rights to three

children – T.E., M.E., and L.H. K.E. (“Mother”) appeals from the trial court’s order

terminating her parental rights to her children, T.E. and M.E.1 Mother’s attorney

submitted a brief pursuant to Anders v. California contending that her appeal is frivolous,

along with a motion to withdraw as her counsel. See Anders v. California, 386 U.S. 738, 87

S. Ct. 1396, 18 L. Ed. 2d 493 (1967). C.H. (“Father”) appeals from two judgments that

1The parental rights of T.E.’s unknown father were also terminated in trial court cause number 23-00533- CV-272. T.E.’s father did not appeal. terminated his parental rights to his children, M.E. and L.H.2 In his sole issue on each

appeal, Father challenges the legal and factual sufficiency of the evidence to support the

best-interest finding. See TEX. FAM. CODE ANN. § 161.001(b)(2). We affirm the judgments

of the trial court.3

Background

On November 22, 2022, Father reported to law enforcement that Mother physically

abused T.E. three days earlier. Father also provided a written statement and a video of

the incident to law enforcement. The video depicts Mother, Father, T.E., L.H., and

another child sitting on a bed. On the video, Mother spanks T.E. multiple times before

dragging T.E. off of the bed by her hair. While T.E. is on the ground, Mother can be seen

kicking T.E. in the stomach area. Mother was arrested for the offense of injury to a child.

Bond conditions were imposed that prohibited Mother from having contact with the

children, so Mother voluntarily released T.E. to live with a family member and permitted

M.E. to live with Father. L.H. also continued to live with Father.

The Texas Department of Family and Protective Services (“the Department”)

initially attempted to address its concerns through Family Based Safety Services. When

this attempt was unsuccessful, the Department filed petitions to terminate the parental

2L.H.’s mother was appointed sole managing conservator of L.H. in trial court cause number 23-00534-CV- 272. L.H.’s mother did not appeal.

3To expedite the disposition of this appeal, we use Rule of Appellate Procedure 2 to suspend operation of the submission deadlines of Rule of Appellate Procedure 39.8. See TEX. R. JUD. Admin. 6.2, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. F app.; TEX. R. APP. P. 2 and 39.8.

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 2 rights of each of the parents, and M.E. and L.H. were removed from Father’s care.

Following a jury trial, Mother’s parental rights to T.E. and M.E. were terminated based

on evidence that Mother (1) knowingly placed or allowed the children to remain in

conditions or surroundings which endangered the children, (2) engaged in conduct or

knowingly placed the children with persons who engaged in conduct which endangered

the children, and (3) failed to comply with the provisions of a court order that established

the actions necessary to obtain the return of the children. See TEX. FAM. CODE ANN. §§

161.001(b)(1)(D), (b)(1)(E), (b)(1)(O). Father’s parental rights to M.E. and L.H. were

terminated pursuant to the same predicate grounds. See id. Termination of Mother’s and

Father’s parental rights was also found to be in the best interest of each of their respective

children. See id. at § 161.001(b)(2).

Mother’s Appeal

Mother’s court-appointed attorney has filed a motion to withdraw and an Anders

brief, stating his professional opinion that the appeal is without merit and that there are

no arguable grounds for reversal on appeal. See generally, Anders v. California, 386 U.S.

738 (1967); See In re A.S., 653 S.W.3d 298 (Tex. App.—Waco 2022, no pet.).

Anders Brief

Counsel’s brief meets the requirements of Anders by presenting a professional

evaluation demonstrating why there are no arguable grounds to advance on appeal. See

Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel has provided us

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 3 with the appropriate facts of the case and its procedural history, and has discussed why,

under controlling authority, there is no reversible error in the trial court’s termination

order. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008). Further, counsel

has informed us that he served Mother with a copy of his brief, informed Mother of her

right to examine the appellate record, provided a form motion for pro se access to the

appellate record lacking only the client’s signature and the date, and notified Mother of

her right to file a pro se response to his Anders brief. See Anders, 386 U.S. at 744; Kelly v.

State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In re A.S., 653 S.W.3d at 299-300. By

letter, we informed Mother of her right to review the appellate record and to file a

response to the Anders brief filed by her appellate counsel. Mother did not file a pro se

response.

Upon receiving an Anders brief, we must conduct a full examination of the

proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). Arguments are frivolous when they “cannot conceivably persuade the

court.” McCoy v. Ct. of Appeals, 486 U.S. 429, 436 (1988). We have reviewed the entire

record and counsel's brief and agree that the appeal is frivolous. See Bledsoe v. State, 178

S.W.3d 824, 827–28 (Tex. Crim. App. 2005). We affirm the judgment of the trial court

terminating Mother’s parental rights to T.E. and M.E.

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 4 Motion to Withdraw

Counsel has also filed a motion to withdraw as Mother’s counsel. However, a

parent’s statutory right to counsel under Section 107.013(a)(1) of the Texas Family Code

extends through the exhaustion or waiver of “all appeals,” including the filing of a

petition for review in the Texas Supreme Court. TEX. FAM. CODE ANN. §§ 107.013(a)(1),

107.016(2)(B); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). The Texas Supreme Court has

stated that “an Anders motion to withdraw brought in the court of appeals, in the absence

of additional grounds for withdrawal, may be premature.” In re P.M., 520 S.W.3d at 27.

The filing of the Anders brief is the only ground set forth by counsel in his motion to

withdraw. We therefore deny counsel’s motion, and he remains counsel of record for

Mother. Consequently, if Mother, after consulting with counsel, desires to file a petition

for review to the Texas Supreme Court, counsel’s obligations can be satisfied by filing “a

petition for review that satisfies the standards for an Anders brief.” Id. at 27-28.

Father’s Appeals

Father complains that the evidence was legally and factually insufficient to prove

that termination of his parental rights was in the best interest of M.E. and L.H.

AUTHORITY

The standards of review for legal and factual sufficiency in cases involving the

termination of parental rights are well established and will not be repeated here. See In

re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002);

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 5 see also In re J.F.-G., 612 S.W.3d 373, 381-82 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304

(Tex. 2021).

In determining the best interest of a child, a number of factors have been

consistently considered which were set out in the Texas Supreme Court's opinion, Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply

identifies factors that have been or could be pertinent in the best

interest determination. Id. There is no requirement that all of these factors must be

proved as a condition precedent to parental termination, and the absence of evidence

about some factors does not preclude a factfinder from reasonably forming a strong

conviction that termination is in the children's best interest. See In re C.H., 89 S.W.3d 17,

27 (Tex. 2002). The Holley factors focus on the best interest of the children, not the best

interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86

(Tex. App.—Dallas 1995, no writ). And while no one factor is controlling, the analysis of

a single factor may be adequate in a particular situation to support a finding

that termination is in the children's best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex.

App.—Houston [1st Dist.] 2017, pet. denied).

DISCUSSION

Evidence relating to the predicate grounds under Section 161.001(b)(1) may be

relevant in determining the best interest of the children. See In re C.H., 89 S.W.3d at 27-

28. Father does not dispute that he endangered the physical health or emotional well-

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 6 being of M.E. and L.H. as contemplated by Subsections 161.001(b)(1)(D) and

161.001(b)(1)(E). See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E); In re C.H., 89

S.W.3d at 27-28. He argues that the evidence was insufficient to support the best-interest

finding because “there are many steps the court could take to assuage any safety

concerns” without terminating Father’s parental rights. However, the existence of

alternatives to termination does not preclude a finding that termination is in the child's

best interest, and a separate consideration of available alternatives to termination is not

required. See T.W. v. Tex. Dep’t of Fam. & Protective Servs., 431 S.W.3d 645, 651 (Tex. App.—

El Paso 2014, no pet.).

In this case, the evidence supporting the endangerment predicate grounds is

particularly relevant when considering the children’s physical and emotional needs now

and in the future and the physical and emotional danger to the children now and in the

future. Abusive conduct by a person who lives in the child’s home or with whom the

child is compelled to associate on a regular basis in the home is part of the “conditions or

surroundings” of the child’s home. See Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—

Houston [1st Dist.] 2010, pet. denied); see also TEX. FAM. CODE ANN. § 263.307(b)(7). Even

where physical abuse was not directed toward a child, the child's exposure to violence in

the home undermines the safety of the home environment and is relevant when

considering the best interest of the child. See In re O.N.H., 401 S.W.3d 681, 685 (Tex.

App.—San Antonio 2013, no pet.). Here, evidence was presented that Mother assaulted

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 7 T.E. after Father threatened to “beat” Mother if she did not “whoop” T.E. as discipline for

T.E. hitting L.H. The video of this incident shows Mother pulling T.E. off of the bed by

her hair and kicking her on the ground as L.H. watches nearby. Though Father stopped

the abuse from progressing any further, he waited three days to report the abuse to law

enforcement. Additionally, Mother characterized her relationship with Father as “toxic”

in an interview with law enforcement, explaining that they frequently argued in the

residence and that their arguments often progressed to shoving one another.

The basis for removal in this case centered around Father’s failure to demonstrate

a willingness to protect his children. Approximately one month after Mother assaulted

T.E., Father requested that the trial court modify Mother’s bond conditions to grant her

access to the children and the home. This request was made when L.H. and M.E. were

still residing with Father. Despite the trial court denying the requested modification,

Father repeatedly permitted Mother to have access to the children in violation of her bond

conditions. Mother was frequently observed in the vehicle with Father and the protected

children when they were dropped off at school or daycare. According to the record,

Mother was ultimately arrested in February of 2023 for violating her bond conditions

pertaining to M.E.

The jury also heard evidence that while L.H. and M.E. were in Father’s care, the

Department received six new referrals for abuse and neglect of the children. On January

24, 2023, the Department received an intake alleging physical abuse of L.H. due to a

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 8 bruise observed on L.H.’s bicep. On February 4, 2023, a provider at M.E.’s daycare

contacted the emergency child abuse hotline with concerns that “maybe someone had

given [M.E.] something or she had been exposed to something” based on her extremely

lethargic behavior. The Department later received another intake of alleged physical

abuse of M.E. after she presented at daycare with visible injuries to her forehead and

temple, red marks on her throat, and red or purple discoloration under her eyes and on

her cheeks. Father contributed the redness on her throat to the straps on her car seat and

the other injuries to M.E. falling off of the couch and possibly hitting a coffee table.

However, Father refused to permit the Department to view his home so that his

explanation might be corroborated.

Additionally, a reviewing court may consider in a best-interest analysis that a

parent failed to comply with his court-ordered family service plan for reunification with

the children. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); In re S.B., 207 S.W.3d 877,

887-88 (Tex. App.—Fort Worth 2006, no pet.). In addition to evidence of Father’s failure

to provide adequate proof of income, evidence was presented that he failed to obtain and

maintain safe and stable housing. In particular, a representative of the Department

testified to concerns that Father was continuing to give Mother access to the home just a

few months prior to trial. In March or April of 2024, a representative of the Department

found clothing in one of Father’s closets that had recently been worn by Mother to some

of her supervised visits with M.E. The Department also expressed concern that Father

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 9 was allowing one of his other children from a prior relationship, K.H., to have access to

the children. K.H. was present at one of Father’s visits with L.H. despite having recently

been found to engage in delinquent conduct for the offense of Indecent Assault against

one of his other siblings.

Finally, L.H. was seven years old and M.E. was three years old at the time of trial.

L.H. was placed with her mother, a non-offending parent who demonstrated an ability

and willingness to provide L.H. with a safe and appropriate home. While living with her

mother, L.H. was involved with extracurricular activities and appeared to be happy. L.H.

indicated to her CASA volunteer that she was excited about living with her mother and

having her own room. As for M.E., the jury heard evidence that her placement was safe

and appropriate, that M.E. was very happy, and that her caregivers had already started

the process of obtaining their license to adopt her.

Based on the record before us, we conclude that the evidence is legally and

factually sufficient to support a finding that termination of Father’s parental rights was

in the best interest of M.E. and L.H. Accordingly, we overrule Father’s sole issue in each

appeal.

Conclusion

Having found that Mother’s appeal is frivolous, and having overruled Father’s

sole issue in each appeal, we affirm the judgments of the trial court in each case. We deny

Mother’s counsel’s motion to withdraw.

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 10 STEVE SMITH Justice

Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed; motion denied Opinion delivered and filed February 6, 2025 [CV06]

In the Interest of T.E. and M.E., Children and In the Interest of L.H., a Child Page 11