Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 108th District Court Potter County, Texas
Trial Court No. 84, 073-E, Honorable Carry Baker, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. Campbell Justice
L.H. challenges the trial court's order terminating her
parental rights to her child, S.M. 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
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 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.
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.
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.
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. 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. 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
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).
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
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.
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.
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).
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 ...