George Martinez v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00807-CV

George Martinez, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
NO. C-04-0030-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

MEMORANDUM OPINION

This is an appeal from a decree terminating appellant George Martinez’s parental

rights to his children, G.T. and G.O. At the time of trial in November 2005, G.T. was five and G.O.

was three.1 The parental rights of their mother were also terminated. The Texas Department of

Family and Protective Services sought conservatorship over the children and their four half-brothers

and sister in May 2004. The Department had been involved with the family between December 2003

and May 2004 because the mother had a substance abuse problem and was not providing a stable

environment for the children. The Department provided the mother with various services, but

continued to receive referrals alleging neglectful supervision, physical and medical neglect, and

physical abuse. The Department also learned that the children had missed several days of school and

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Martinez did not attend trial, but phoned the court to testify by telephone. He was on his
way to San Angelo from Wisconsin by bus, but said he had not been able to make it in time for trial
because he had been ill and could not afford to travel.
had been living in a motel room with one adult. The Department removed G.T. and G.O. from their

mother in March 2004 and placed them with Martinez, and it continued to approve that placement

when it filed its original petition in May to remove the children from their mother’s care. The

Department developed a service plan under which Martinez was not to allow the children to have

unsupervised visitation with their mother, but in July an unidentified woman brought G.T. and G.O.

to the Department, saying their mother had left them with her and had not returned a day later. The

children were filthy, and the Department learned that Martinez had allowed the mother to take the

children, “and then she subsequently left them with someone, who was another CPS client and had

her children removed from her care as well.” Martinez admitted that he allowed the children to go

with their mother for two hours and said that when they did not return as promised, he searched for

the children but did not call the police or the Department. Martinez knew the children were not

supposed to be left alone with their mother and that she abused drugs.

The Department removed the children from Martinez’s care and placed them in foster

care. Martinez, who moved to San Angelo from Wisconsin for a time during the pendency of the

case, moved back to Wisconsin after the children were removed, and it has been difficult for the

Department to reach him. Among other requirements, Martinez was ordered to undergo a

psychological evaluation and a drug and alcohol assessment, complete parenting classes, participate

in individual counseling, provide medical and dental care for the children during his possession of

them, and have the children assessed by Early Childhood Intervention or enrolled in Headstart.

Martinez completed the psychological evaluation and told the Department that he took a parenting

class in Wisconsin, but he did not provide the Department with a certificate of completion from that

class. Martinez brought the children to a doctor while they were in his care, but G.T. required

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“extensive dental work” after the children were removed from Martinez. A Department caseworker

testified that Martinez had not shown that he had completed the drug and alcohol assessment, nor

had he attended individual counseling or had the children assessed by or enrolled in a proper

educational program. Martinez also failed to attend some of his visitations with the children while

he lived in San Angelo, had not visited the children at all since June 1, 2005, and had not paid child

support as ordered. At the time of trial, the children were doing well in their foster home, were

getting to see their half-siblings on a regular basis, and G.T. was enrolled in Headstart.

Following a bench trial, the trial court signed a decree terminating Martinez’s parental

rights, finding that he had knowingly placed the children in unsafe conditions or with people who

engaged in conduct that endangered the children, constructively abandoned the children for at least

six months, and failed to comply with a court order establishing actions necessary to regain custody

of the children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O) (West Supp. 2005). The

trial court further found that termination was in the children’s best interest. See id. § 161.001(2).

Martinez’s appointed counsel has filed a brief stating that, after a thorough review

of the record, she believes this appeal is frivolous.2 The brief presents a thorough and professional

evaluation of the record discussing and demonstrating why there are no arguable grounds for

reversal. A copy of the brief was delivered to Martinez, who has neither sought other counsel nor

filed a pro se brief. The Department filed its own brief agreeing that the appeal is frivolous and that

there are no arguable grounds for reversal.

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This and other Texas courts have held that it is appropriate in a parental termination case
to file a brief asserting that the appeal is frivolous. See, e.g., Matthews v. Texas Dep’t of Protective
& Regulatory Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Tex. App.—Austin
Feb. 17, 2005, no pet.) (mem. op.); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th
Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

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 We have conducted our own review of the record and we agree that the appeal is

frivolous. We therefore affirm the trial court’s judgment. We grant counsel’s motion to withdraw

as attorney of record.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Waldrop

Affirmed

Filed: August 31, 2006

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