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In re H.M.

Court of Appeals of Texas, Ninth District, Beaumont

April 25, 2019

IN THE INTEREST OF H.M.

          Submitted on March 26, 2019

          On Appeal from the 75th District Court Liberty County, Texas Trial Cause No. CV1712144

          Before McKeithen, C.J., Kreger and Horton, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON Justice.

         Mother and Father appeal the trial court's judgment terminating the parent-child relationships between "Beth, "[1] her Mother, and her Father. Mother and Father each filed appeals. In Father's appeal, his court-appointed appellate counsel submitted a brief that contends no arguable grounds can be advanced to support Father's appeal.[2] In Mother's appeal, Mother's court-appointed appellate counsel filed a brief raising six issues for our review. We affirm the trial court's judgment terminating the parent-child relationships between Beth and her Mother and between Beth and her Father.

         Background

         The Department of Family and Protective Services (the Department) initiated the proceedings that resulted in the termination of Mother's and Father's parental rights in early-June 2017, when Beth was nearly five years old. Two events, both of which occurred in late-April 2017, led the Department to investigate Mother's ability to care for Beth.[3] According to the Department's investigator, who testified in the trial, someone from Beth's school reported to the Department that Beth had not come to school. When a school employee went to Mother's home, the school employee, according to the investigator, found that Mother was passed out and that the home smelled of marijuana. The second report came from some unidentified law enforcement official. According to the investigator, the official reported seeing marijuana and open bottles of pills in Mother's home.

         The same day the Department received these reports, its investigator met with Beth and her teacher and arranged to meet with Mother at Mother's home. During the meeting, Mother showed the investigator her prescription bottles. Mother also told the investigator that a caregiver was helping her manage her medications. Mother told the investigator that she did not have marijuana in her home, and she claimed that if anyone saw it there, it belonged to her brother-in-law, who was also assisting her in her home. Finally, Mother told the investigator that she obtained additional assistance from a neighbor who helped her daily. Based on the Department's initial investigation into whether Mother was caring for Beth, the investigator concluded that the Department did not need to remove Beth from Mother's home given the assistance she was getting and because one of Mother's neighbors agreed to monitor the situation and report any concerns to the Department.

         On May 11, 2017, Mother informed the investigator that she no longer had a caregiver. On May 31, 2017, the investigator learned that the agency that had been providing Mother with a caregiver quit doing so because the agency determined that Mother required a higher level of care than it could provide. When the investigator attempted to contact Mother to discuss whether Mother still had someone to help her with her medications, Mother failed to respond to the investigator's phone calls or text messages. On June 1, 2017, the investigator met with Beth at her school. Ultimately, the investigator learned that Beth's mother was not home and that she had been hospitalized. The investigator went to the hospital, where she saw Mother. According to the investigator, Mother was "incoherent" at the hospital. The investigator stated Mother was "able to say her name[, ]" was aware she had been hospitalized, and "that was about it." That same day, the Department decided to remove Beth from Mother's custody because Mother, at that point, could not care for Beth and the Department was not able to find another family member who could care for her.

         In early-June 2017, the Department sued Mother and Father seeking to terminate their respective rights to parent Beth. Three days after the Department sued, the trial court signed an emergency temporary order naming the Department as Beth's sole managing conservator. Following an adversarial hearing, the trial court signed a temporary order, which established the requirements that Mother and Father needed to meet to have Beth returned to their care. The temporary order required Mother and Father to comply with a parenting plan created by the Department.

         In October 2019, the parties tried the case to the bench. Both Mother and Father were represented by attorneys. Six witnesses testified during the trial. While Father testified in the trial, Mother did not. When the trial ended, the trial court terminated Father's rights under subsections D, E, O, and Q of the Texas Family Code.[4] The trial court terminated Mother's parental rights under subsections B, D, E, N, and O of the Texas Family Code.[5] The court also found that terminating Father's and Mother's respective parent-child relationship with Beth is in Beth's best interest, and it appointed the Department to be Beth's managing conservator.[6]

         Analysis

         I. Father's Appeal

         Father's court-appointed appellate counsel filed an Anders brief in Father's appeal.[7] We have reviewed the brief, and it complies with the requirements that apply to such briefs. The brief presents an attorney's professional evaluation of the record and explains why, as it relates to Father, no arguable grounds exist to overturn the trial court's judgment.[8] Father's court-appointed appellate counsel also represented to the Court that she gave Father a copy of the brief that she filed in Father's appeal, notified Father of his right to file a pro se brief, and explained how Father could review a copy of the record pertinent to his appeal. Father has not filed a pro se response.

         After reviewing the record and counsel's brief, we conclude that no arguable grounds exist to support Father's appeal and that Father's appeal is frivolous.[9] As to Father, we affirm the trial court's judgment terminating his parent-child relationship with Beth.

         II. Mother's Appeal

         Mother contends the evidence admitted in the trial is insufficient to support terminating her parental rights under all grounds on which the judgment is based. She also argues that terminating her rights is not in Beth's best interest.[10]

         A. Standard of Review

         First, we note the standards of review that apply to legal and factual insufficiency issues. To involuntarily terminate a parent's rights, the factfinder must conclude, by clear and convincing evidence, that (1) the parent committed one or more of the prohibited acts or omissions listed in section 161.001(b)(1) of the Family Code, and that (2) terminating the parent's rights to her child is in the child's best interest.[11] Section 161.001(b)(1) of the Texas Family Code currently lists twenty-one grounds authorizing trial courts to terminate a parent-child relationship when terminating the relationship is in the child's best interest.[12] Nevertheless, the trial court need only find one of the statutory grounds exists and that terminating the relationship is in the child's best interest to justify terminating the parent-child relationship.[13]

         Under the standards that apply to legal insufficiency claims, appellate courts must consider 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 that its finding was true.'"[14] In doing so, appellate courts assume that the factfinder resolved disputed facts in a manner that favors its finding, if a reasonable factfinder could have done so.[15] Thus, an appellate court must disregard all evidence that a reasonable factfinder could have, by inference, disbelieved or found incredible.[16]Should the appellate court determine that a reasonable factfinder could reasonably form a firm belief or conviction that the matter that must be proven is true, it must conclude that legally sufficient evidence supports the finding that the parent has complained about in the appeal.[17]

         Under the factual sufficiency standard of review, we consider and weigh all the evidence in the record, giving deference to the findings the factfinder reached so that we do not supplant the verdict the factfinder made with our own.[18] "'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.'"[19] When conducting a factual sufficiency review, the appellate court must give due deference to the factfinder's findings, and it must avoid substituting its own judgment for that of the factfinder.[20]

         B. Analysis-Statutory Finding

         While the trial court terminated Mother's rights under five separate sections of the Family Code, we will first address the arguments Mother raises in her fifth issue, which argues that not enough evidence was admitted in the trial to support the trial court's finding that she violated the requirements of a court order.[21] The pertinent statutory subsection authorizing a trial court to terminate a parent's rights for violating a court's order are found in section 161.001(b)(1)(O) of the Family Code.[22] Under subsection O, which is the section Mother has challenged in issue five, the Department was required to prove by clear and convincing evidence that Mother:

[1] failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child [2] who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months [3] as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.][23]

         Mother's arguments focus entirely on whether she violated a court order, and she does not claim the evidence fails to show that Beth was not in the Department's custody for the required nine months or that Beth was not removed due to neglect. During the trial, a caseworker who worked for the Department on Mother's case testified that Mother did not complete her court-ordered parenting plan. The caseworker testified that she discussed the parenting plan with Mother and explained to Mother the actions Mother needed to take to regain custody of Beth. The parenting plan, which the trial court admitted into evidence at trial, required Mother to: (1) find an appropriate caregiver to help her provide for her daily activities, such as housekeeping, meal prep, personal hygiene, medication maintenance, and medication reminders; (2) comply with an independent review of proper medications by a licensed psychiatrist and medical doctor of the Department's choosing, as well as continued monitoring by the Department's caseworker; (3) sign a medical release form; (4) complete a psychological evaluation and follow the psychologist's recommendations; and (5) obtain and maintain appropriate safe and clean housing in a drug-free environment with utilities that are operational. When explaining what Mother did to comply with these requirements, the caseworker testified that Mother signed a medical release, but "that's pretty much it."

         In her brief, Mother does not dispute that she failed to comply with each of the requirements in her parenting plan. Instead, Mother claims the evidence is legally and factually insufficient because the Department failed to comply with the Americans with ...


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