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In re J.W.

Court of Appeals of Texas, Tenth District

October 9, 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.

         On May 1, 2019, this Court issued a Memorandum Opinion affirming the trial court's order of termination. On May 13, 2019, J.W. filed a motion for rehearing, and we requested a response to that motion. After reviewing the motion for rehearing and response thereto, we grant the motion for rehearing. We withdraw our Memorandum Opinion and Judgment issued on May 1, 2019, and substitute the following in their place.

         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. and J.W. should be terminated.

         In the Anders brief, counsel analyzes the legal and factual sufficiency of the evidence to support termination. Counsel acknowledges that only one statutory ground is necessary to support an order of termination in addition to a finding that termination is in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Counsel further evaluates the legal and factual sufficiency of the evidence to support a finding that termination was in the best interest of the child. Counsel's brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of an appellate counsel.

         Due process requires application of the clear and convincing standard of proof in cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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. See Tex. Fam. Code Ann. § 101.007 (West 2008). See also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

         The Family Code permits a court to order termination of parental rights if the petitioner establishes one or more acts or omissions enumerated under subsection (1) of the statute and also proves that termination of the parent-child relationship is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2018); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). We agree with counsel's evaluation that there is clear and convincing evidence to support termination under Section 161.001 for Gena T.

         Notwithstanding the sufficiency of the evidence to support termination under section 161.001 (b) (1), we must also find clear and convincing evidence that termination of the parent-child relationship was in the child's best interest. See Tex. Fam. Code Ann. § 161.001 (b) (2). Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. See In re C.H., 89 S.W.3d at 28. There is a long-standing ...


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