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In re D.P.

Court of Appeals of Texas, Seventh District, Amarillo

March 2, 2017

IN THE INTEREST OF D.P., A CHILD

         On Appeal from the 108th District Court Potter County, Texas Trial Court No. 87, 415-E, Honorable Carry Baker, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL JUSTICE

         Appellant, E.C., [1] 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[2] brief in support of her motion to withdraw. We will affirm the order of the trial court.

         Background

         In July 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.[3] 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 bugs.

         After a 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.[4] See Tex. Fam. Code Ann. § 161.001(b)(1)(O) (West 2016).[5] 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).[6] The record shows E.C.'s parental rights to another of her children were terminated on subsection (D) and (E) grounds.

         The 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 D.P.'s sibling.

         The mother filed notice of appeal challenging the trial court's order.

         Analysis

         Pursuant 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).

         Counsel 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.

         Due 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 ...


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