Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 108th District Court Potter County, Texas
Trial Court No. 87, 415-E, Honorable Carry Baker, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. CAMPBELL JUSTICE
E.C.,  challenges the trial court's order
terminating her parental rights to her child, D.P. In
presenting this appeal, appointed counsel has filed an
Anders brief in support of her motion to
withdraw. We will affirm the order of the trial court.
2015, the Texas Department of Family and Protective Services
filed pleadings that included a request for termination of
E.C.'s parental rights to D.P. At the time the pleadings
were filed, D.P. was three days old. The basis for the
initial removal was the Department's concern over
E.C.'s history with the Department that included removal
of E.C.'s other three children, and E.C.'s lack of
items necessary for the care of a baby at the time of
D.P.'s birth. Caseworkers also opined that E.C. was
unable to care for D.P. and her home was unsanitary. E.C.
told a caseworker the home was infested with mice and bed
bench trial in July 2016, the trial court found there was
clear and convincing evidence to support the Department's
allegations under two of the predicate grounds for
termination set forth in the Family Code. See In re
T.N., 180 S.W.3d 376, 384 (Tex. App.-Amarillo 2005, no
pet.) (only one statutory ground is required to terminate
parental rights under section 161.001(1)). One caseworker
testified that while E.C. completed a psychological
evaluation, she failed to complete any of the other services
required for return of D.P. to her care. See Tex.
Fam. Code Ann. § 161.001(b)(1)(O) (West
2016). The trial court also found there was clear
and convincing evidence to support the ground set forth in
section 161.001(b)(1)(M) of the Family Code. See
Tex. Fam. Code Ann. § 161.001(b)(1))(M). The record shows
E.C.'s parental rights to another of her children were
terminated on subsection (D) and (E) grounds.
trial court further found termination was in the best
interest of D.P. See In the Interest of C.H., 89
S.W.3d 17, 28 (Tex. 2002) (evidence of acts or omissions used
to establish ground for termination under section 161.001(1)
may be probative in determining best interest of child).
See also Walker v. Tex. Dep't of Family and
Protective Servs., 312 S.W.3d 608, 619 (Tex.
App.-Houston [1st Dist.] 2009, pet. denied) (nonexclusive
list of factors that the trier of fact in a termination case
may use in determining the best interest of the child). A
caseworker testified to her observations of E.C. with D.P.
She noted E.C. was "unable to soothe" D.P. when he
was upset and E.C. was "always trying to put him to
sleep" and they "weren't bonding well
together." The caseworker told the court E.C. would
"forget to wipe [D.C.'s] bottom" and noted
"basic needs like that were not being met during the
visits." These issues were the same issues E.C. had with
a previous child who had been removed from her care. The
record illustrates E.C.'s inability to care for infants
and her lack of capacity to learn from her prior experiences.
The caseworker told the court D.P. was doing "extremely
well" and "thriving" in the foster home he
shared with one of his siblings. The foster father testified
he and his wife planned to adopt D.P., as they had adopted
mother filed notice of appeal challenging the trial
to Anders, E.C.'s court-appointed appellate
counsel has filed a brief certifying she has conducted a
conscientious examination of the record, and in her opinion,
the record reflects no potentially plausible basis to support
an appeal. In re Schulman, 252 S.W.3d 403, 407 n.9
(Tex. Crim. App. 2008) (orig. proceeding); Stafford v.
State, 813 S.W.2d 502, 510 n.3 (Tex. Crim. App. 1991);
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
the Interest of L.J., No. 07-14-00319-CV, 2015 Tex.App.
LEXIS 427, at *3 (Tex. App.-Amarillo January 15, 2015, no
pet.) (mem. op.) (noting same).
certifies she has diligently researched the law applicable to
the facts and issues and discusses why, in her professional
opinion, the appeal is frivolous. In re D.A.S., 973
S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated she has
complied with the requirements of Anders by (1)
providing a copy of the brief, motion to withdraw, and
appellate record to appellant and (2) notifying her of her
right to file a pro se response if she desired to do
so. Id. See also Kelly v. State, 436 S.W.3d 313
(Tex. Crim. App. 2014); In the Interest of L.V., No.
07-15-00315-CV, 2015 Tex.App. LEXIS 11607 (Tex. App.-Amarillo
Nov. 9, 2015) (order). By letter, this Court offered
appellant the opportunity to file a response to counsel's
brief. Appellant has not filed a response.
process requires that termination of parental rights be
supported by clear and convincing evidence. In re
E.M.E., 234 S.W.3d 71, 72 (Tex. App.-El Paso 2007, no
pet.) (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002)). This intermediate standard falls between the
preponderance of the evidence standard of civil proceedings
and the reasonable doubt standard of criminal proceedings.
In re E.M.E., 234 S.W.3d at 73. It is defined as the
measure or degree of 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. Tex. Fam. Code
Ann. § 101.007 (West 2008). In reviewing the legal
sufficiency of the evidence supporting parental termination,
a court reviews all the evidence in the light most favorable
to the finding to determine whether a reasonable trier of
fact could have "formed a firm belief or conviction
about the truth of the matter on which the movant in a
termination proceeding bore the burden of proof." In
re J.F.C., 96 S.W.3d at 266. In reviewing the evidence
for factual sufficiency, we give due deference to the fact
finder's findings and do not substitute its judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006). We determine whether, on the entire record, a fact
finder could reasonably form a firm conviction or belief
about the truth of the matter on which the movant bore the
burden of proof. In re C.H., 89 S.W.3d 17, 28 (Tex.
2005); In re T.B.D., 223 S.W.3d 515, 517 (Tex.
App.-Amarillo 2006, no pet.). By the Anders brief,
counsel notes reversible error is not presented because
sufficient evidence supports termination under subsections
(O) and (M). See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003); In re T.N., 180 S.W.3d at 384 (only one
predicate finding under section 161.001 is necessary to
support termination when there is also a finding that
termination is in a child's best interest).
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, 813 S.W.2d at 511. Based on this record,
we conclude that a reasonable factfinder could have formed a
firm belief or conviction that sufficient evidence to support
at least one ground for termination existed, in compliance
with section 161.001 of the Family Code, and that termination
of E.C.'s parental rights was in D.P.'s best
interest. See Gainous v. State,436 ...