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In re J.W.

Court of Appeals of Texas, Tenth District

May 1, 2019

IN THE INTEREST OF J.W., A CHILD

          From the 85th District Court Brazos County, Texas Trial Court No. 17-001284-CV-85

          Before Chief Justice Gray, Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          JOHN E. NEILL JUSTICE

         John W. and Gena T. appeal from the trial court's judgment that terminated the parent-child relationship between them and their child, J.W. After hearing all the evidence, the jury found by clear and convincing evidence that the parental rights of John W. and Gena T. should be terminated. The trial court entered an amended order of termination in accordance with the jury verdict. We affirm.

         Facts

         John W. and Gena T. married in February 2016. Gena T. had two children from previous relationships. Her parental rights to one child were previously terminated and the other child lives with his father. John W. did not have any children at the time he married Gena T. J.W. was born on April 24, 2017, at the home of John W. and Gena T. After his birth, he was taken to the hospital where he was intubated for respiratory problems because he aspirated meconium. Soon after his birth, J.W. tested positive for five controlled substances, and he began experiencing withdrawal symptoms. Gena T. tested positive for opiates and amphetamine. J.W. began treatment for the withdrawal symptoms. He remained in the hospital for almost a month and then he was placed with an unrelated foster family.

         Mother's Appeal

         In presenting this appeal, counsel for Gena T. filed a brief pursuant to Anders v. California asserting that she has conducted a review of the record and found no arguable issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

         The brief filed meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. Additionally, Gena T.'s attorney advised her that she had filed the brief pursuant to Anders, that Gena T. had the right to review the record and file a pro se response on her own behalf, and provided Gena T. with a copy of the record. Although given the opportunity, Gena T. did not file a response with this Court.

         The amended order of termination recites that the jury was given the following instruction with respect to Gena T.:

For the parent-child relationship in this case to be terminated with respect to [Gena T.], the mother of the child, [J.W.], it must be proven by clear and convincing evidence that at least one of the following events has occurred:
1. [Gena T.] knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child.
2. [Gena T.] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child.
3. [Gena T.] had her parent-child relationship terminated with respect to another child based on a finding that her conduct was in violation of § 161.001 (b) (1) (D) or (E), Texas Family Code.
4. [Gena T.] failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who had been in the permanent or temporary 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 parent under Chapter 262 for the abuse and neglect of the child.
5. [Gena T.] used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance.
In addition, it must be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child. Some factors to consider in determining the best interest of the child are:
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 parenting ability of the individuals seeking custody;
5. the programs available to assist those individuals to promote the best interest of the child;
6. the plans for the child of those 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.

         The jury found that the parent-child relationship between Gena T. ...


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