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In re A.M

Court of Appeals of Texas, Second District, Fort Worth

July 25, 2019

In the Interest of A.M and H.M., Children

          On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV17-00557

          Before Sudderth, C.J.; Bassel and Womack, JJ.

          MEMORANDUM OPINION

          DANA WOMACK, JUSTICE

         I. Introduction

         Mother and Father each appeal the trial court's February 4, 2019 order terminating their parental relationships with their daughters A.M. and H.M.[1] We affirm the trial court's order.

         II. Background

         Mother and Father are the biological parents of A.M. and H.M. At the time of trial in January 2019, A.M was almost four years old, and H.M. was eighteen months old.

         A. Report/Investigation

         Father was incarcerated at the time of H.M.'s birth in August 2017. In mid-August 2017, the Texas Department of Family and Protective Services ("the Department") received a referral regarding Mother who, one month earlier, had tested positive for benzodiazepines, opiates, and codeine during a prenatal doctor's appointment.

         Investigator Kathleen Matthies conducted a post-referral interview with Mother on August 18, 2017. At the time of Matthies's visit, A.M. was approximately two years and five months old and H.M. was a few days old. Mother told Matthies that she was a recovering methamphetamine addict and that Father was incarcerated in Oklahoma. Mother admitted that she had used methamphetamine in the past and had been using marijuana since she was sixteen years old. She denied using methamphetamine during her pregnancy with H.M. and claimed that she had not used methamphetamine for almost one year, but admitted that she had used hydrocodone throughout her pregnancy. After observing Mother interact with her children and having determined that H.M. and Mother did not test positive for any illegal or nonprescribed controlled substances, and finding that the home was clean and adequate, Matthies determined that no further action was required.

         Approximately one month later, Mother called Matthies. Mother seemed confused and informed Matthies that she felt disturbed, might need to be "admitted," and had asked her father to watch the children for a week but he was unavailable. Mother had called Matthies to inform her that she was moving because her "mother-in-law" was moving "dopeheads" into Mother's home.[2] Although Matthies was Mother's caseworker, Mother also stated to Matthies that she believed "her caseworker"-a person other than Matthies-was following her. There was only one investigative unit in Cooke County, and Matthies would have known-but was unaware-of any reason for another caseworker to be involved in Mother's case. When Matthies met Mother at her father's house, Mother admitted she had taken a nonprescribed Xanax. After Matthies administered a drug test to Mother and informed her of the results, [3] Mother confessed that she had used methamphetamine less than a week before.

         B. Removal of Children and Petition for Protection and Conservatorship of Children and Termination of Parent-Child Relationships

         Matthies consulted her supervisor. Because Father was still incarcerated and because it was not possible to appropriately place the children without removal, the Department removed the children from Mother's home.

         On September 19, 2017, the Department filed a petition for protection of the children, conservatorship, and termination of Mother's and Father's parental rights. The trial court signed an emergency order removing the children from Mother's home and appointed the Department temporary sole managing conservator of the children. After their removal, one of Matthies's coworkers bathed the children. A.M. had matted hair, "a whole lot of bug bites and scratches and stuff all over her body . . . legs, arms, back and feet," a tick behind her left ear, a black sticky substance on her neck, and scabs on her scalp. The disposable diaper that H.M. was wearing was "so full of crystals that it was stuck to her bottom," and the bath water was "extremely filthy."

         C. Parental Service Plans

         Spencer Brown was the Department's conservatorship worker tasked with preparing and explaining the service plans to Mother and Father, monitoring the children's access to services, and making a recommendation regarding the children. Brown prepared family service plans for each parent, which required that Mother and Father complete participation in certain services and perform specified tasks as set forth in their respective plans. On November 9, 2017, the trial court made the service plans an order of the court and noted that the plans established the actions necessary for each parent to obtain the return of the children as set forth in section 161.001(b)(1)(O) of the Texas Family Code. See Tex. Family Code Ann. § 161.001(b)(1)(O).

         1. Mother

         Mother's service plan required that she (1) attend a substance abuse support group; (2) maintain contact with and keep the caseworker informed of service progress, case details, and pertinent changes; (3) obtain and maintain a suitable living arrangement for six consecutive months; (4) provide child support; (5) submit to random drug testing; (6) successfully complete a parenting class; (7) attend and participate in weekly individual counseling sessions; (8) complete a drug and alcohol assessment; (9) attend all scheduled case appointments; (10) avoid criminal activity, including the use of illegal substances; (11) obtain and demonstrate a legal and verifiable income for six consecutive months; and (12) complete a mental health evaluation and follow all recommendations.

         2. Father

         Father's October 11, 2017 service plan required him to (1) contact the caseworker after his release from incarceration; (2) participate in any proactive services available to him such as counseling and classes and complete caseworker-issued parenting packets and assignments; and (3) maintain monthly contact with the caseworker. The plan also encouraged Father to "write to his children (draw pictures, etc[.])."

         D. Trial Proceedings

         In its petition, the Department sought termination of Mother's parental relationships with the children based on the predicate termination grounds set forth in subsections D, E, F, O, and P of section 161.001(b)(1) of the Texas Family Code.[4]Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (F), (O), (P). The petition sought termination of Father's parental relationship with the children based on the predicate termination grounds set out in subsections D, E, N, O, and Q.[5] Id. § 161.001(b)(1)(D), (E), (N), (O), (Q).

         1. Mother

         Trial was to a jury. During her testimony, Mother acknowledged that she had failed to comply with the requirements of her court-ordered service plan by failing to refrain from criminal activity, to complete her drug treatment program, to secure safe and stable housing for six months, to secure and maintain a stable income, and to pay child support. Mother admitted that she had relapsed and had continued using methamphetamine.

         Brown confirmed that Mother had made a reasonable effort in the months before trial to satisfy her service plan but noted that before those recent efforts, Mother had been using drugs and breaking the law and, although her counseling was ongoing, Mother had failed to be successfully discharged by a counselor. He also noted that Mother had failed to follow through with drug and alcohol assessment recommendations, to avoid criminal conduct, and to secure and maintain stable income and housing. When asked whether he had seen twenty-three certificates that Mother may have received from intensive outpatient counseling, Brown answered that he had not seen any and agreed that Mother did not benefit from any intensive outpatient counseling she did complete.

         Bryce Kennedy, an officer of the Cooke County Sheriff's Office narcotics unit, arrested Mother on July 24, 2018. Acting as the middleman between a buyer and seller of methamphetamine, Mother had advised the buyer regarding what was available for purchase and then drove the seller, a recently-paroled prison gang member, to meet the buyer. Kennedy testified that Mother's name had appeared in multiple cell phones as a buyer, seller, or negotiator of drug sales and that she had been arrested on prior drug charges. After her July 24, 2018 arrest, Mother admitted to using methamphetamine that day. At the time of that arrest, Mother appeared to be under the influence of methamphetamine and possibly a depressant of some kind because she had slow or delayed reactions. Kennedy knew that Mother was involved with a "narcotics gang," but he acknowledged that he had no information that Mother or Father was a member of any other kind of gang. Mother was charged with engaging in organized criminal activity manufacturing or delivering a controlled substance in penalty group 1, a first-degree felony offense with a punishment range of confinement between five and ninety-nine years or life.

         2. Father

         At trial, Father admitted that he did not write to Brown every month but asserted that he had done his best to communicate with him. Father claimed that he took advantage of all services available to him in prison and would disagree if someone said that he did not. According to Father, Brown had visited him on a single occasion about five weeks before trial and had informed him that Mother's rights would likely be terminated, but Brown had also told him that the Department would attempt to permit Father to seek some kind of rights with his children. Father believed that his incarceration was not a basis for terminating his parental relationship.

         Brown testified that his ability to work with Father was limited because of Father's incarceration in Oklahoma and restrictions on Brown's ability to perform work in another state. Brown agreed that he first met with Father approximately five weeks before trial for fifteen minutes and discussed the legal proceedings, told Father about his children, and asked Father what he had done while incarcerated. Brown denied that he had informed Father that the Department would not be seeking to terminate his parental rights, which had been the Department's goal since February 2018. Brown did not know whether the Department had ever sought to reunify the children with Father, and he explained that Father was provided a service plan because he had a right to attempt to do his best and sometimes circumstances change. Brown could not recall whether Father had expressed to him a desire to retain his relationship with the children.

         Before they met, Brown had provided Father a minimal service plan which required that he maintain monthly contact with Brown at the address listed on the plan and seek and provide verification of his participation in any service or rehabilitative function offered to him while incarcerated. Father did not successfully complete all of his services. Father failed to stay in contact with Brown as required, had written to him only seven times during the fifteen- or sixteen-month period, and had sent a single letter addressed to one or both children. Father did not send to Brown any birthday, Christmas, or Easter cards addressed to his children. Although Brown attempted to confirm with prison personnel whether Father had completed all services available to him during his incarceration, Brown was not successful. Brown acknowledged that Father eventually provided to him certificates regarding Father's participation in some activities while incarcerated.

         3. Findings

         After considering this and other evidence, the jury determined that the parent- child relationships between Mother, Father, and the children should be terminated. The jury found that the Department had proven by clear and convincing evidence that Mother had (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, pursuant to subsection D; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being, pursuant to subsection E; (3) failed to support the children in accordance with her ability during a period of one year ending within six months of the date of the filing of the petition, pursuant to subsection F; (4) failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal from Mother under Chapter 262 for the abuse or neglect of the children, pursuant to subsection O; and (5) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the children, and (a) failed to complete a court-ordered substance abuse treatment program or (b) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance, pursuant to subsection P. Id. § 161.001(b)(1)(D), (E), (F), (O), (P).

         The jury found that the Department had proven by clear and convincing evidence that Father had (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being, pursuant to subsection D; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being, pursuant to subsection E; (3) constructively abandoned the children who had been in the permanent or temporary managing conservatorship of the Department for not less than six months when (a) the Department had made reasonable efforts to return the children to Father, (b) Father had not regularly visited or maintained significant contact with the children, and (c) Father had demonstrated an inability to provide the children with a safe environment, pursuant to subsection N; (4) failed to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal from Father under Chapter 262 for the abuse or neglect of the children, pursuant to subsection O; and (5) knowingly engaged in criminal conduct that had resulted in Father's being convicted of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date when the petition was filed, pursuant to subsection Q. Id. § 161.001(b)(1)(D), (E), (N), (O), (Q).

         The jury also found that termination of the parent-child relationships was in the children's best interest. Based on the jury's findings, the trial court thus terminated the parent-child relationships between Mother, Father, and the children and appointed the Department as the children's managing conservator.

         III. Discussion

         A. Mother's Appeal

         Mother's appointed appellate counsel has filed a motion to withdraw. In his Anders brief in support of the motion, Mother's appellate counsel asserts that he is unable to identify errors warranting reversal of the trial court's termination order and acknowledges that there is legally and factually sufficient evidence to support the five predicate grounds for termination identified in the trial court's order terminating Mother's relationship with the children, as well as the "best interest" determination. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); In re K.M., 98 S.W.3d 774, 777 (Tex. App.-Fort Worth 2003, no pet.) (holding that Anders procedures apply to termination of parental rights appeals when court-appointed counsel has concluded that there are no nonfrivolous issues for appeal).

         The brief satisfies Anders's requirements by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. See Kelly v. State, 436 S.W.3d 313, 318 (Tex. Crim. App. 2014) ("The purpose of the Anders brief is to satisfy the appellate court that the appointed counsel's motion to withdraw is, indeed, based upon a conscientious and thorough review of the law and facts . . . ."); see also In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order) (noting that counsel in termination appeal may satisfy obligation to client by "filing an appellate brief meeting the standards set in Anders v. California[] and its progeny" (footnote omitted)). Although advised by counsel of her right to obtain the appellate record and file a pro se response, Mother has not filed a pro se response to the Anders brief or counsel's motion to withdraw. The Department has declined to file a brief in response to the Anders brief of Mother.

         After an appellant's court-appointed attorney files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record to determine if any arguable grounds for appeal exist. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.--Fort Worth 1995, no pet.). When analyzing whether any grounds for appeal exist, we consider the record, the Anders brief, and any pro se response. In re Schulman, 252 S.W.3d 403, 408-09 (Tex. Crim. App. 2008) (orig. proceeding).

         We have reviewed the appellate record and find no arguable grounds for Mother's appeal. See In re D.D., 279 S.W.3d 849, 850 (Tex. App.-Dallas 2009, pet. denied) (citing Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005)). Having carefully reviewed counsel's brief and the appellate record, we find no reversible error and agree with counsel that this appeal is without merit. Therefore, we affirm the trial court's order terminating Mother's relationship with the children.

         Because counsel's motion to withdraw does not show good cause for the withdrawal independent from counsel's conclusion that the appeal is frivolous, we deny the motion. See P.M., 520 S.W.3d at 27-28; In re C.J., 501 S.W.3d 254, 255 (Tex. App.--Fort Worth 2016, pet. denied). Accordingly, counsel remains appointed in this appeal through proceedings in the supreme court unless otherwise ...


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