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In re S.M.

Court of Appeals of Texas, Seventh District, Amarillo

April 17, 2017

IN THE INTEREST OF S.M., A CHILD

         On Appeal from the 108th District Court Potter County, Texas Trial Court No. 84, 073-E, Honorable Carry Baker, Presiding

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

          MEMORANDUM OPINION

          James T. Campbell Justice

         Appellant L.H. challenges the trial court's order terminating her parental rights to her child, S.M.[1] Counsel for L.H. has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Finding no arguable grounds for appeal, we will affirm the order of the trial court.[2]

         S.M., nine years old by the time of the final hearing, was removed from her parents' care after police responded to the report she was unsupervised at an Amarillo motel. S.M.'s father[3] was located asleep in their motel room, intoxicated. She was placed in foster care after the Texas Department of Family and Protective Services investigated the conditions under which S.M. lived with her parents.

         A final hearing concerning L.H.'s parental rights was held in September 2016. The trial court found clear and convincing evidence supported four predicate grounds for termination of L.H.'s rights to S.M., and supported its finding that termination was in the child's best interest.

         Undisputed evidence showed L.H.'s parental rights to six of her other children have been terminated in proceedings in two other states. The first of the terminations occurred more than twenty years before this proceeding, indicating a long history of inability to properly care for her children. See Tex. Fam. Code Ann. § 161.001(b)(1)(M) (parental rights may be terminated on finding that the parent had her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state). The out-of-state terminations were established both by authenticated copies of termination orders and by L.H.'s testimony at the final hearing.

         A counselor testified to her counseling relationship with S.M. over a year-long period since the child's removal. Her unobjected-to testimony supported the trial court's findings of L.H.'s endangerment of S.M. under both section 161.001(b)(1)(D) and section 161.001(b)(1)(E) of the Family Code.[4] See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E) (West 2016) (describing grounds concerning endangerment of the physical or emotional well-being of the child). The counselor told the court of S.M.'s father's alcohol abuse, and S.M.'s description of her role as primary caregiver for L.H., made necessary because of L.H.'s physical limitations. The counselor detailed S.M.'s reports of her father's emotional and sometimes physical abuse of L.H. and of S.M., and of L.H.'s inability to protect S.M. from the abuse.[5] The counselor said when she encountered S.M. the child was "highly traumatized" and "extraordinarily anxious and depressed." She also noted S.M. had not been taught even basic tasks necessary for personal hygiene.

         Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in her home is a part of the "conditions or surroundings" of the child's home under section 161.001(b)(1)(D). Castorena v. Tex. Dep't of Protective & Regulatory Servs., No. 03-02-00653-CV, 2004 Tex.App. LEXIS 3753 (Tex. App.-Austin Apr. 29, 2004, no pet.) (mem. op.); In re W.S., 899 S.W.2d 772, 776 (Tex. App.-Fort Worth 1995, no writ) ("environment" refers not only to the acceptability of living conditions but also to a parent's conduct in the home). See also In the Interest of D.R.J., No. 07-08-0410-CV, 2009 Tex.App. LEXIS 5231, at *7-8 (Tex. App.-Amarillo July 8, 2009, pet. denied) (mem. op.) (under section 161.001(b)(1)(E), a pattern of voluntary, deliberate, and conscious conduct by a parent, including acts, omissions, or failures to act, is evidence supporting endangerment of the child's physical and emotional well-being).

         The counselor's testimony also supported the trial court's finding that termination of L.H.'s parental rights was in S.M.'s best interest. See Tex. Fam. Code Ann. 161.001(b)(2). After her placement into foster care, with much work and therapy, she said, S.M. has made "tremendous" progress and is doing so well in school that she achieved the honor roll. The counselor also stated, "[t]here's so many good things that have happened for this child in a year that I feel like the progress she can make is limitless. So my prognosis for her, if not returned [to her parents' care], is good." The record also shows L.H.'s inability to provide a similar nurturing environment for S.M. The counselor's testimony indicates S.M. cares for her mother but has no interest in returning to live in her former conditions. The caseworker testified S.M. was not then in an adoptive placement but that the Department had adoptive prospects for the child and "would try to find her adoptive placement where she will be able to be adopted." The guardian ad litem for S.M. argued for termination, stating "termination is the only opportunity for [S.M.] to move forward."

         Any number of factors may bear on a determination of the best interest of the child. See In the Interest of D. M., 452 S.W.3d 462, 470 (Tex. App.-San Antonio 2014, no pet.), citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (setting forth factors). And, the same evidence proving acts or omissions under section 161.001(b)(1) may be probative of the best interest of the child. Id. (citation omitted).

          We are satisfied that court-appointed appellate counsel has diligently reviewed the record and the applicable law. His brief states his professional opinion the record shows no arguably reversible error. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); 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 compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has demonstrated he has served L.H. with his brief, his motion to withdraw and a copy of the appellate record, and informed his client of her right to review the record and to file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (setting forth burdens on counsel); see also In re Schulman, 252 S.W.3d at 409 n.23. By letter, this Court has also informed L.H. of her right to file a pro se response to her counsel's motion and brief. L.H. has not filed a response.

         The United States Supreme Court has advised appellate courts that when the court receives a "frivolous appeal" brief, it must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." In the Interest of L.J., No. 07-14-00319-CV, 2015 Tex.App. LEXIS 427, at *3-4 (Tex. App.-Amarillo Jan. 15, 2015, no pet.) (mem. op.), citing Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

         Due process requires that termination of parental rights be supported by clear and convincing evidence. 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 the Interest of L.J., 2015 Tex.App. LEXIS 427, at *4 (citation omitted). 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." In re J.F.C., 96 S.W.3d at 264, citing Tex. Fam. Code Ann. § 101.007 (West 2008). In reviewing the legal sufficiency of the evidence supporting termination of parental rights, 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 the Interest of L.J., 2015 Tex.App. LEXIS 427, at *4-5 (citation omitted). In reviewing the evidence for factual sufficiency, we give due deference to the fact finder's findings ...


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