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In re P.C.

Court of Appeals of Texas, Eleventh District

April 30, 2019

IN THE INTEREST OF P.C., A CHILD

          On Appeal from the 220th District Court Comanche County, Texas Trial Court Cause No. FM22517

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          JIM R. WRIGHT SENIOR CHIEF JUSTICE

         This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father of P. C . Both parents filed a notice of appeal. The father later filed an Anders brief, and the mother filed a brief on the merits in which she challenges the sufficiency of the evidence as to best interest. W e affirm.

         Father's Appeal

         The father's court-appointed counsel has filed a brief in which he professionally and conscientiously examines the record and applicable law and concludes that the appeal presents no issues of arguable merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406-08 (Tex. Crim. App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978); see also I n r e P.M ., 520 S.W.3d 24, 27-28 (Tex. 2016).

         The father's counsel provided him with a copy of the brief. In compliance with Kelly v. State, 436 S.W.3d 313, 318-20 (Tex. Crim. App. 2014), counsel provided the father with a copy of the appellate record. This court provided the father with an opportunity to file a pro se response to counsel's brief. The father did not file a response. We conclude that the father's counsel has satisfied his duties under Anders, Schulman, and Kelly. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record in this cause, and we agree that the father's appeal is frivolous.

         Mother's Appeal

         In one issue on appeal, the mother challenges the sufficiency of the evidence to support the trial court's findings in support of the termination of her parental rights. Termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018). To determine on appeal if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Fam. § 161.001(b).

         With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

         In this case, the trial court found that the mother had committed five of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), (N), (O), and (P). Specifically, the trial court found that the mother had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child's physical or emotional well-being; that the mother had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the child's physical or emotional well-being; that the mother had constructively abandoned the child; that the mother had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child, who had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parents for abuse or neglect; and that the mother had used a controlled substance in a manner that endangered her child and had either (1) failed to complete a court-ordered substance abuse treatment program or (2) continued to abuse a controlled substance after completing a court-ordered substance abuse treatment program. The trial court also found, pursuant to Section 161.001(b)(2), that termination of the mother's parental rights would be in the best interest of the child.

         In her sole issue, the mother challenges the factual sufficiency of the evidence with respect to the trial court's finding that termination of her parental rights was in the child's best interest. The record reflects that the Department became involved with P. C .'s family in November 2017 due to the parents' use of methamphetamine while P.C. was in their care and to the parents' neglect of P.C. The Department was "called due to [P.C.] having a severe, severe diaper rash." The parents had medication for P. C . 's diaper rash, but it appeared that the medication was not being used. P.C. "had like second degree burns from her diaper rash"; the rash was cracking and bleeding and was "pretty horrific." The burned area extended from the top of P.C.'s vagina all the way to her anus and down her legs approximately two inches. P. C . 's physical condition was poor; she was very thin and malnourished. She also had RSV, a coinciding bacterial infection, and a yeast infection. Additionally, the parents brought moldy bottles for P.C. when they took her to Head Start.

         In November 2017, during the Department's investigation into the allegations in this case, the mother tested positive for methamphetamine. While this case was pending, the mother tested positive for methamphetamine three times (February, April, and May), did not test for three months while she was homeless, and then tested negative three times during the two months preceding trial (September and October). The record indicates that a family service plan was prepared and made an order of the trial court. The mother admitted that she had failed to comply with most of the provisions of her service plan. While this case was pending in the trial court, the mother failed to maintain appropriate and stable housing. She also missed most of her scheduled visits with P. C ., attending about eight of the fifty scheduled visits. The mother even failed to complete the parenting packet. Although she had had eleven months to comply with her service plan, the mother asked for more time to work on her service plan and "fix" things.

         The Department's goal for P . C . was termination of the parents' rights and adoption by the foster parents. The conservatorship caseworker for the Department believed that it was in P. C .'s best interest to finalize the case on the day of trial so that the foster parents could move forward with an adoption. The foster parents intended to adopt P.C. The record reflects that the foster parents tended to P.C.'s medical needs and that P.C. was doing really well, emotionally and physically, in their care. The child's attorney ad litem/guardian ad litem pointed out that the parents had spent over half of P.C.'s life doing drugs and not attempting to do what they needed to ...


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