the 85th District Court Brazos County, Texas, Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill.
E. NEILL JUSTICE.
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.
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
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).
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
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
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
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
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
3. the emotional and physical danger to the child, now and in
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;
9. any excuse for the acts or omissions of the parent.
jury found that the parent-child relationship between Gena T.
and J.W. should be terminated.
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
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).
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
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