S. M. S. and L. A. E. v. Texas Department of Family and Protective Services

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00614-CV

S. M. S. and L. A. E., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 18-0007-CPS395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING

MEMORANDUM OPINION

S.M.S. (Mother) and L.A.E. (Father) appeal an order terminating their parental

rights to three children, L.S.E.-S., L.A.E.-S., and C.R.E.-S.1 Following a bench trial, the district

court found by clear and convincing evidence that multiple statutory grounds for termination

existed and that termination was in the best interest of the children. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E), (O), (P), (b)(2). On appeal, Mother challenges the sufficiency of the

evidence supporting the best-interest finding. Father’s court-appointed counsel has filed a motion

to withdraw and a brief concluding the appeal is frivolous and without merit. See Anders

v. California, 386 U.S. 738, 744 (1967) (stating that court-appointed counsel who believes appeal

is wholly frivolous should file motion to withdraw “accompanied by a brief referring to anything

1 We refer to appellants, the children, and the children’s current caregivers by initials or an alias to protect the minors’ privacy. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. in the record that might arguably support the appeal”). Mother’s counsel has not moved to

withdraw. We will affirm the district court’s order.

MOTHER’S APPEAL

The Family Code provides for involuntary termination of parental rights on

findings that the parent’s acts or omissions satisfy at least one statutory ground for termination and

that termination is in the child’s best interest. See Tex. Fam. Code § 161.001(b)(1), (2). The

petitioner must prove both prongs by “clear and convincing evidence.” Id. The Family Code

defines “clear and convincing” evidence as “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.” Id. § 101.007.

Proof by clear and convincing evidence is “a constitutional minimum and a

statutory mandate that necessitates a commensurately heightened standard of review.” In re A.C.,

560 S.W.3d 624, 626 (Tex. 2018). The distinction between legal- and factual-sufficiency review

when the standard is clear and convincing “lies in the extent to which disputed evidence contrary

to a finding may be considered.” Id. at 630. In a legal-sufficiency review, the reviewing court

“cannot ignore undisputed evidence contrary to the finding, but must otherwise assume the

factfinder resolved disputed facts in favor of the finding.” Id. at 630–31. The evidence is legally

sufficient if, “viewing all the evidence in the light most favorable to the fact-finding and

considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or

conviction that the finding was true.” Id. at 631 (citing In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)).

Factual-sufficiency review requires weighing the disputed evidence against the

evidence supporting the finding. Id. The reviewing court must consider whether the “disputed

2 evidence is such that a reasonable factfinder could not have resolved it in favor of the finding.”

Id. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not

have credited in favor of the finding is so significant that a factfinder could not reasonably have

formed a firm belief or conviction, then the evidence is factually insufficient.” In re J.F.C.,

96 S.W.3d at 266.

Mother concedes the Department proved a statutory ground for termination but

challenges the sufficiency of the best-interest finding. There is a strong presumption that

preserving the parent-child relationship serves the child’s best interest. In re R.R., 209 S.W.3d

112, 116 (Tex. 2006) (per curiam) (citing Tex. Fam. Code § 153.131(b)). In determining the best

interest of the child, we consider the non-exclusive Holley factors:

• the children’s wishes;

• the children’s present and future emotional and physical needs;

• any emotional and physical danger to the children now and in the future;

• the parental abilities of the individuals seeking custody;

• the programs available to assist the individuals seeking custody to promote the best interest of the children;

• the plans for the children by the individuals or agency seeking custody;

• the stability of the home or proposed placement;

• parental acts or omissions which may indicate that the existing parent-child relationship is improper; and

• any excuse for the parent’s acts or omissions.

3 In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976)). A best-interest finding does not require proof of a specific factor or set of factors as

a “condition precedent” to termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

The Department of Family and Protective Services (the Department) received a

report that L.A.E.-S. tested positive for cocaine at his birth in March 2017.2 The Department did

not remove the children immediately but asked Mother to take twice-weekly drug tests, among

other requirements. The Department worked with Mother for ten months before removing the

children. Every urine sample Mother provided before the children’s removal was positive for

cocaine. Mother subsequently tested negative in urine tests multiple times, except for one positive

test in October 2017. However, she continued to test positive for cocaine in hair tests, including

one the month before trial.

C.R.E.-S. was born six weeks after a positive hair test. Even though Mother tested

negative at the birth, she refused to allow testing of the child. The Department removed C.R.E.-S.

and placed him with a relative, “Sarah,” when he was five weeks old. At that time, C.R.E.-S. was

underweight, shivering, and had difficulty breathing. He required breathing treatments every four

hours at first, and daily for six months. Sarah testified that C.R.E.-S.’s treating physician told her

these problems were withdrawal symptoms caused by prenatal exposure to drugs.

Mother’s behavior during the case raised concerns regarding her mental health. In

May 2018, Mother called police to report that she heard a sound coming from her car “like an

echo, like a video record of, like, kids crying.” She then began taking apart her vehicle to find the

2 We take this factual summary from the testimony of Mother, Father, the children’s current caregivers, a Department caseworker, a Court Appointed Special Advocate volunteer, Mother’s mother, and the evidence admitted by the district court. 4 source of the sound. Photographs taken by police show that she tore up the interior carpet, removed

the interior floor, tore off exterior panels, and damaged the windshield. Mother was involuntarily

hospitalized in a psychiatric facility for six days after the incident. Four months later, Mother

heard the same sound while driving a friend’s vehicle. She again called the police and was

hospitalized in a psychiatric facility. Mother denied using drugs during either incident and

reiterated at trial that she heard the same sound coming from both vehicles.

The record also reflects that Mother did not take the steps necessary to regain

custody of the children and to provide for their needs in the future. In addition to drug testing,

Mother’s service plan required her to attend counseling, participate in visitation through the

Department, maintain stable housing and employment, and keep in regular contact with the

Department. In fifty-nine of the eighty-five times that Mother was either asked or ordered by a

court to take a drug test, she either failed to appear or appeared but refused to provide a sample.

She was discharged from therapy and failed to inform the Department when she left on a month-

long visit to her mother in New Mexico. Her visitation with the children was suspended because

she missed several visits, and she never asked to resume visitation. Later, when the Department

asked for her address to conduct a home study—a prerequisite to the children’s return—Mother

supplied the address of a gas station. Finally, Mother testified that she was unemployed and had

not secured a place to live after her lease expired at the end of the month of trial.

While there is no evidence of the children’s desires, the district court heard

undisputed evidence that the children are thriving in their new placements. Sarah testified that

C.R.E.-S. has gained weight and no longer needs breathing treatments. Sarah is his full-time

caregiver and has substantial assistance from her grown children. The Department placed the two

older children with Sarah’s sister, “Jessica.” L.S.E.-S. had “intense tantrums” and L.A.E.-S.

5 suffered from breathing problems at the time of the placement, but both issues had improved by

trial. The children are described as “happy” and see each other frequently because Jessica’s and

Sarah’s families are close. Jessica and Sarah intend to adopt the children if Mother’s rights

are terminated.

Mother does not dispute her pattern of drug use and instability or that the children

have improved in their current placements. She argues instead that her testimony established she

no longer uses cocaine and that this improvement warrants preserving her parental rights. The

district court could have reasonably disregarded her testimony, especially given the evidence that

her drug use continued during most of the case. See In re P.A.C., 498 S.W.3d 210, 214 (Tex.

App.—Houston [14th Dist.] 2016, pet. denied) (noting that under legal- and-factual sufficiency

review factfinder is “the sole judge of the credibility of the witnesses and the weight

to be given their testimony”); see also N.P. v. Texas Dep’t of Family & Protective Servs.,

No. 03-19-00217-CV, 2019 WL 3952842, at *8 (Tex. App.—Austin Aug. 22, 2019, no pet.) (mem.

op.) (“[E]vidence of a recent turn-around in behavior by the parent does not totally offset evidence

of a pattern of instability and harmful behavior in the past.” (quoting Smith v. Texas Dep’t of

Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.))). Even

if the record supported a finding that cocaine use is no longer an issue for her, Mother herself

testified that she had no place for the children to live and no income to support them, and she failed

to offer any plans for establishing a stable home for them. See In re F.M.E.A.F., 572 S.W.3d 716,

726 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (“A child’s need for permanence through

the establishment of a stable, permanent home is the paramount consideration in a best-interest

determination.”). Reviewing the record under the appropriate standards of review and considering

the relevant factors, we conclude that legally and factually sufficient evidence supports the district

6 court’s conclusion that termination was in the best interest of the children. We overrule Mother’s

sole issue.

FATHER’S APPEAL

Father’s court-appointed counsel has filed a motion to withdraw accompanied by a

brief alleging that his appeal is frivolous and without merit. See Anders, 386 U.S. at 744; 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). Counsel’s brief meets the requirements of Anders by

presenting a professional evaluation of the record demonstrating that there are no arguable grounds

for reversal to be advanced on appeal. See 386 U.S. at 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 provided Father with a copy of the Anders brief and motion to

withdraw as counsel and a notice of his right to file a pro se brief. Appellee in this case, the

Department, has not filed a response. Father has not filed a brief to date.

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

proceedings 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. After reviewing the record and the briefing, we find nothing

that would arguably support a meritorious appeal. We thus agree with counsel that this appeal is

frivolous and without merit. We nevertheless deny counsel’s motion to withdraw. The Supreme

Court of Texas has held that a parent’s right to counsel in termination suits extends to “all

proceedings in [the Supreme Court of Texas], including the filing of a petition for review.” In re

P.M., 520 S.W.3d at 27. Accordingly, counsel’s obligation to Father has not yet been discharged.

See id. If Father, after consulting with counsel, desires to file a petition for review, counsel should

7 timely file with the high court “a petition for review that satisfies the standards for an Anders

brief.” See id. at 27–28.

CONCLUSION

We affirm the district court’s order of termination.

__________________________________________ Edward Smith, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: February 19, 2020