In the Interest of X.R. and X.A., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 10, 2024
• Docket: 07-24-00046-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00046-CV

IN THE INTEREST OF X.R. AND X.A., CHILDREN

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 97429-D-FM, Honorable Steven Denny, Presiding

June 10, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Mother, appeals the trial court’s order terminating her parental rights

to her children, X.R. and X.A.1 Appointed counsel for Mother has filed an Anders2 brief in

support of a motion to withdraw. Pursuant to Anders, Mother’s counsel certified 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

1 To protect the privacy of the parties involved, we will refer to the appellant as “Mother,” and to the

children by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of X.R.’s alleged father and any unknown father were also terminated in this proceeding. X.A.’s father executed an affidavit of relinquishment of parental rights. Neither father has appealed. 2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). (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).

By her Anders brief, counsel concludes that reversible error is not present

because sufficient evidence supports termination under subsections (D) and (E) and the

best-interest finding. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E);3 § 161.001(b)(2); 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 finding that termination is in 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 Mother, and notifying her of her

right to file a pro se response if she 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

11607, at *2–3 (Tex. App.—Amarillo Nov. 9, 2015) (order) (per curiam). Mother has filed

a response to her counsel’s Anders brief which we have considered.

Pursuant to the Texas Supreme Court opinion in In re N.G., we also conducted an

independent review of the evidence underlying the trial court’s findings that termination

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

“§ __.”

2 was warranted under sections 161.001(b)(1)(D) and (E), because a finding under those

grounds may justify termination of parental rights to other children under subsection (M).

In re N.G., 577 S.W.3d 230, 235–37 (Tex. 2019) (per curiam); see § 161.001(b)(1)(M).

The trial court heard evidence that Mother has an extensive history with the

Department that predates the current proceeding. Mother acknowledged that she had a

history of methamphetamine use and her parental rights to three other children had

previously been terminated.

In July of 2022, the Department opened an investigation after receiving a report

that Mother brought three-year-old X.A. to the emergency room after the child ingested

her prescription medication. From September of 2022 through October of 2022, the

Department offered family-based services to assist Mother with parenting issues, but she

declined to participate. In November, Mother was ordered to participate in services via

the Texas Family First Program. The Department initiated the emergency removal of

X.R. and X.A. after Mother tested positive for methamphetamine on November 3 and

December 5 of 2022 and failed to participate in services offered by the Department. After

an adversary hearing, X.R. and X.A. were ordered to be returned to Mother’s care. When

the Department caseworker arrived at Mother’s home to return the children, the

caseworker saw a small plastic bag containing a white crystal substance on the coffee

table. Mother again tested positive for methamphetamine, and the Department was

granted temporary managing conservatorship of X.R. and X.A. in January of 2023.

Mother’s hair follicle drug screen testing was positive for methamphetamine in February,

March, and June. Mother was uncommunicative and uncooperative with Department

representatives throughout the proceeding. She refused to complete services outlined in 3 her court-ordered service plan and routinely failed to submit to drug screens as requested

by the caseworker. Other evidence illustrated that her visits with X.R. and X.A. were

suspended until she provided a clean drug screen. Mother had limited therapeutic

visitation with X.R. and X.A. in July and August of 2023. She did not exercise any

visitation, submit to drug screens, or allow the caseworker access to her home after

September 14, 2023.

After the therapeutic visitation ended, X.R.’s and X.A.’s behavior dramatically

improved. There were concerns that six-year-old X.R. had developmental delays and

was behind in school when he was placed in foster care. He is thriving in his current

placement and any concerns of social delays have been alleviated.

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

by legally and factually sufficient evidence. See In re R.R.A., No. 22-0978, 2024 Tex.

LEXIS 242 at *23–24 (Tex. Mar. 22, 2024); In re M.M., No. 02-21-00185-CV, 2021 Tex.

App. LEXIS 9177, at *14 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem. op.)

(“Narcotics can impair or incapacitate the user’s ability to parent” and

“[m]ethamphetamine addiction can work havoc not only on the addict but on the addict’s

family . . . .”); 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.) (parent’s continued use of drugs

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

environment).

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 4 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 grounds for

termination existed and that termination of Mother’s parental rights was in X.R.’s and

X.A.’s best interest. See § 161.001(b)(1), (2); In re M.M., 584 S.W.3d at 890.

After reviewing the entire record, we agree with counsel that there are no plausible

grounds for reversal on appeal.

Accordingly, the trial court’s order terminating Mother’s parental rights to X.R. and

X.A. 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. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).