J. D. v. Texas Department of Family and Protective Services

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00214-CV

J. D., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 311521, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant J.D. (Mother) appeals from the trial court’s order, following a bench

trial, terminating her parental rights to her two sons A.D., born May 17, 2008, and J.C.D., born

November 21, 2011 (Sons). 1 Mother’s court-appointed counsel has filed an Anders brief

concluding that her appeal is frivolous and without merit. See Anders v. California,

386 U.S. 738, 744 (1967); In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam)

(approving use of Anders procedure in appeals from termination of parental rights because it

“strikes an important balance between the defendant’s constitutional right to counsel on appeal

and counsel's obligation not to prosecute frivolous appeals” (citations omitted)). The brief meets

the requirements of Anders by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds to be advanced on appeal. See 386 U.S. at

1The trial court also terminated the parental rights of the father of each child, neither of whom has appealed the trial court’s order. 744; Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex.

App.—Austin 2005, pet. denied). Counsel has certified to this Court that he has provided his

client with a copy of the Anders brief and informed her of her right to examine the appellate

record and to file a pro se brief. No pro se brief has been filed. We will affirm the trial court’s

termination decree.

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

to determine whether the appeal is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80

(1988); Taylor, 160 S.W.3d at 647. The case began in August 2019, when the Texas Department

of Family and Protective Services (the Department) received a report alleging Neglectful

Supervision of Sons by Mother. In the removal affidavit, a copy of which was admitted into

evidence at trial, Department investigator Pamela Forte averred that Mother “was seen in the

Emergency Room on 08/08/19 for suicidal ideations.” Mother “woke up that morning feeling

depressed and struggling for motivation to get out of bed,” “wanted to cut her wrists,” but then

had “second thoughts” and called 911 because she “wanted to live for her kids.” At the time of

Mother’s suicidal ideations, she was receiving treatment and medications for ongoing mental-

health issues, including diagnoses of “Schizoaffective Disorder Depressive type and PTSD.”

Mother had informed hospital staff that “there was an incident that occurred [in July 2019] where

she was experiencing racing thoughts and went for a walk in her neighborhood” and that “while

she was walking, she was approached by an unknown male that started groping her and robbed

her.” Mother “went home and started crying,” “didn’t call the Police,” and has been “struggling

to leave her home since the incident.”

Mother tested positive for cocaine and marijuana at the hospital and admitted to

using cocaine three days earlier and to using marijuana “every day” to cope with her anxiety.

2 Mother acknowledged smoking marijuana “outside . . . on her front balcony” while “her children

are in the home” but claimed that she used cocaine only “at her friend’s house.” Mother also

admitted to Forte “that she has not been taking her medications daily as she has a habit of feeling

better and will stop taking her medications” and that “she uses the illegal substances as a

replacement to cope with her mental health” issues.

During the investigation, Forte spoke with Mother’s oldest son, who told Forte

that Mother and her boyfriend “smoke marijuana in the home at least twice a week while he and

his brother are present” and that “he has asked his mother to stop and she has quit doing so in the

past for a short time however [she] has since started back smoking marijuana in the home.”

Forte “advised [Mother] the Department has concerns of her illegal drug use while caring for her

children and her untreated mental health” issues, and Mother “stated she understood our

concerns” and agreed to have Sons removed temporarily from her care. To obtain reunification

with Sons, Mother was ordered by the trial court to comply with the terms of a Family Service

Plan. Among other requirements, Mother was ordered not to take any illegal drugs, submit to

random drug screenings on a weekly basis, and maintain regular contact with her caseworker.

The trial began on November 17, 2021, but the trial court only admitted exhibits

into evidence on that date and then recessed the proceedings until February 16, 2022. In

February, the trial court heard testimony from Mother and Elizabeth White, the Department

conservatorship worker assigned to the case. White, who was not the original caseworker,

provided limited testimony as to Mother’s compliance with her service plan between

September 2019, when the plan was created, and November 2020. However, the clerk’s record

reflects that Mother attended court hearings during that time, maintained “sporadic” contact with

the Department, completed a psychological evaluation, and “attend[ed] some sessions” of

3 individual therapy. According to a permanency report submitted to the court in November 2020,

Mother otherwise exhibited a “lack of progress in the completion of her Family Plan of Service,”

including the requirement that she refrain from using illegal drugs. The record further reflects

that Mother missed most of her weekly drug tests from November 2019 through April 2020.

Although Mother tested weekly in May 2020, she tested positive for cocaine and marijuana the

first week and then tested positive for marijuana in the weeks thereafter. Mother also tested

positive for cocaine and marijuana in June 2020. Mother missed most of her tests in July 2020

through September 2020, and on the occasions when she did test, she tested positive for

marijuana. In October 2020, Mother tested negative for marijuana on three occasions before

testing positive again at the beginning of November 2020.

White testified that Mother had failed to maintain contact with the Department,

drug test, or work her services from November 2020 until September 2021, although since that

time, Mother has worked on her services and maintained “consistent contact” with White. White

added that Mother has “tested consistently” for drugs since September 2021. White recounted

that Mother tested positive for marijuana “every week from September 7th to January 11th” and

had also tested positive for cocaine in December 2021, but Mother had tested negative for illegal

substances since January 2022, approximately one month before the completion of trial. Copies

of the drug test results were admitted into evidence. When White asked Mother about the test

result that was positive for cocaine, Mother told her that she last used cocaine in July 2021.

However, Mother had previously told White that she last used cocaine in February 2021, and

“she wasn’t able to give [White] an answer for the differences in those two stories.”

Additionally, the daughter of Mother’s boyfriend had reported seeing Mother and Mother’s

boyfriend using cocaine together at the home of Mother’s boyfriend. Despite denying that she

4 continued to use cocaine, Mother acknowledged to White that she continued to use marijuana

because the drug “helps her remain calm and regulate her emotions.”

At the beginning of the case, Sons were placed in the care of their maternal great

aunt and great uncle in Killeen. However, that placement was not intended to be permanent. In

March 2021, Sons were placed in the care of Mother’s brother (Uncle) in New York but were

returned to Texas after Uncle told the Department in October 2021 that he could no longer care

for Sons. White testified that Sons had been placed in a foster home since the beginning of

November 2021 and that the foster parents were wanting to adopt Sons and be their long-term

placement. According to White, Sons “appear very bonded” with the foster parents and have

told White “multiple times” that they want to remain with the foster parents. White testified that

the foster parents are meeting Sons’ emotional and physical needs and that she has no concerns

about their home environment. White recommended termination of Mother’s parental rights

because she believed that the foster parents could provide Sons with safety and stability, but

Mother could not.

Mother also testified at trial. When asked to explain why she did not take drug

tests or attend counseling from November 2020 until September 2021, Mother testified,

I lost contact with my other social worker and my kids were already in New York, which I was in contact with them the whole time, and so I thought my case was completely over, and come to find out, it wasn’t. So as soon as I found out it wasn’t, I popped back on to the case.

When counsel asked Mother if she “just assumed that [her] kids would stay with [her] brother

and that would be the end of it,” Mother answered in the affirmative. Mother testified that she

5 did not want her parental rights terminated, believed that she was now stable and drug free, and

that “in due time [she] would love to be reunited with [her] children.”

Mother acknowledged that she had used cocaine in the past and answered in the

affirmative when counsel asked her if she used that drug “strictly in a recreational way.” She

added that she did not know why she used cocaine because it “wasn’t doing nothing for” her and

“wasn’t self-medicating,” unlike marijuana, which Mother testified she had used throughout the

case to treat her anxiety and other mental-health issues. Mother admitted that she had lied to

White about last using cocaine in February 2021 and maintained that the last time she had used

that drug was in July 2021. However, she claimed that her cocaine use in July was only a “slight

relapse” and that the last time she had “really used” cocaine was in February 2021. When asked

how often she used cocaine during that time, Mother testified, “Maybe once or twice a week.”

Mother also testified that the last time she used marijuana was in September 2021, even though

she tested positive for marijuana regularly after that date. The week before trial in February,

Mother had begun an outpatient drug treatment program. When asked why she had not started

that program earlier, Mother testified, “I didn’t believe that I had an addiction.” Although

Mother acknowledged that she was addicted to marijuana, she denied that she was addicted

to cocaine.

At the conclusion of trial, the trial court found that termination of Mother’s

parental rights was in the best interest of Sons and that Mother had: (1) knowingly placed and

knowingly allowed Sons to remain in conditions and surroundings which endangers the physical

and emotional well-being of Sons; (2) engaged in conduct or knowingly placed Sons with

persons who engaged in conduct which endangered the physical or emotional well-being of the

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

6 established the actions necessary to obtain the return of Sons. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E), (O), (2). This appeal followed.

After reviewing the entire record and the Anders brief submitted on Mother’s

behalf, we have found nothing in the record that might arguably support an appeal. Our review

included the trial court’s endangerment findings, see Tex. Fam. Code § 161.001(b)(1)(D), (E),

and we have found no issues that could be raised on appeal with respect to those findings, see

In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). We agree with counsel that the appeal

is frivolous.

CONCLUSION

We affirm the trial court’s termination decree.

__________________________________________ Gisela D. Triana, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: July 21, 2022