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In re B.W.

Court of Appeals of Texas, Seventh District, Amarillo

November 12, 2019

IN THE INTEREST OF B.W., A CHILD

          On Appeal from the 320th District Court Potter County, Texas Trial Court No. 90, 105-D-FM, Honorable Pamela Cook Sirmon, Presiding

          Before QUINN, C.J. and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          JUDY C. PARKER, JUSTICE

         Appellant, Mother, appeals the trial court's order terminating her parental rights to her son, B.W.[1] Appointed counsel for Mother has filed an Anders[2] brief in support of a motion to withdraw. Finding no arguable grounds for appeal, we affirm the judgment of the trial court.

         Factual and Procedural Background

         In October of 2017, the Texas Department of Family and Protective Services filed its petition for protection, conservatorship, and termination of parental rights of Mother and Father as to their thirteen-month-old son, B.W. B.W. was removed after the Department received a report in July that Mother and Father were using illegal drugs. There were also concerns of domestic violence in the home. The Department investigator had a difficult time locating Mother and Father because they did not have a permanent residence. Mother was on probation for injury to a child and, during the Department's investigation, Mother tested positive for cocaine after submitting to a drug screen requested by her probation officer. Mother admitted to her probation officer that she used cocaine the day before she reported. The Department requested that Mother and Father submit to a hair follicle drug test. Mother's hair follicle test was positive for cocaine.[3]

         The Department developed a family service plan for Mother, and the court ordered compliance with the plan requirements at a status hearing in November. The service plan set out several tasks and services for Mother to complete before reunification with B.W. could occur. These tasks and services included the following: maintain a drug-free lifestyle and abstain from the use of illegal drugs; submit to random drug screens; participate in and complete a substance abuse assessment with Outreach, Screening, Assessment and Referral (OSAR) and follow through with all recommendations; locate and maintain stable housing that is free from drugs and violence; locate and maintain stable employment; participate in and complete parenting classes; complete a psychosocial assessment and follow recommendations; attend individual counseling; participate in and complete rational behavior therapy (RBT); participate in an assessment at Texas Panhandle Centers (TPC) and follow recommendations; complete a psychological evaluation and follow recommendations; attend all scheduled parent-child visits with B.W.; and maintain regular contact with her caseworker. The family service plan also informed Mother that its purpose was to assist her in providing a safe environment for B.W. The plan warned Mother that if she was "unwilling or unable to provide [B.W.] with a safe environment, [her] parental . . . rights may be restricted or terminated or [B.W.] may not be returned to [her]."

         Mother completed her parenting classes and her initial OSAR assessment, but she did not follow through with the treatment recommendations. Mother failed to maintain a drug-free lifestyle, stable housing, and employment, and she did not attend individual counseling or participate in RBT. Mother also failed to submit to an assessment at TPC or complete her psychosocial evaluation. She visited with B.W. sporadically before she was incarcerated in June of 2018.

         The Department produced evidence that Mother received community supervision probation for injury to a child causing serious bodily injury.[4] While on supervision, Mother failed a drug test in September of 2017. Mother subsequently admitted to her probation officer that she snorted cocaine on March 28, May 7, and May 26, 2018, and that prior to March, she had snorted cocaine once a week since the beginning of January 2018. As a result of these admissions, Mother's probation was amended to include a requirement that she complete a cognitive thinking program and a drug program at an Intermediate Sanction Facility (ISF). Mother was incarcerated in the Potter County Jail from June 1 until she was transferred to ISF on August 10.

         After her release from ISF on February 7, 2019, Mother resided at the Faith City Mission. Mother left the Faith City Mission program on April 22 with another resident, Wesley Keelin. Mother is engaged to Keelin and they live with his friend Toby in Amarillo. Mother does not know Toby's last name or his address. Mother is unemployed but she is looking for work.

         B.W. was placed in a foster home after his removal. B.W. is a happy, healthy toddler, and he enjoys playing with his toys and the other children in the foster home. B.W. likes to have books read to him, and his medical and physical needs are being met in this placement. The Department has no concerns about B.W.'s placement, and the foster home is willing to adopt B.W. if parental rights are terminated. According to the caseworker, appointing the Department as permanent managing conservator pending an adoption by his foster home placement is in the best interest of B.W.

         The trial court terminated Mother's parental rights to B.W. on the grounds of endangering conditions, endangerment, previous conviction or community supervision for serious injury to a child, and failure to comply with a court order that established actions necessary to retain custody of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (L), (O) (West Supp. 2019).[5] The trial court also found that termination was in the best interest of B.W. See § 161.001(b)(2).

         Analysis

         Pursuant to Anders, Mother's court-appointed appellate counsel has filed a brief certifying that she has diligently searched the record and has concluded that the record reflects no arguably reversible error that would support an appeal. In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.-Corpus Christi 2003, no pet.) ("[W]hen appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file ...


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