Sylvia Garcia and Rocky Martinez Garcia, Sr., A/K/A Rocky Martinez Garcia, A/K/A Roque M. Garcia, A/K/A Roque Martinez Garcia v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00362-CV

Sylvia Garcia and Rocky Martinez Garcia, Sr., a/k/a Rocky Martinez Garcia,
a/k/a Roque M. Garcia, a/k/a Roque Martinez Garcia, Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-04-0226-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

MEMORANDUM OPINION

The trial court signed a final decree terminating the parental rights of appellants

Sylvia Garcia and Rocky Martinez Garcia to their five children. The Department sought emergency

conservatorship over the children after it received a report that Ms. Garcia had physically abused one

of her sons, severely bruising his buttocks and hips. In an interview with the Department, Ms. Garcia

admitted hitting her three sons with a belt. The Department had been involved with appellants and

their children for six years, investigating allegations of physical and medical neglect and physical

and sexual abuse. Three separate family preservation cases were opened and closed, and the

Department stated that although it had worked extensively with the family, “very little

change has occurred.”
 At trial, a Department caseworker testified that the Department had received more

than twenty referrals about the Garcia family. He also testified that upon their removal from

appellants’ care, the children smelled as if they had not been bathed in days. The children told the

caseworker that Ms. Garcia frequently spanked them with a belt and that Mr. Garcia, who is blind,

did not attempt to intervene to stop her. Ms. Garcia denied allegations about spanking or abusing

the children. Although Ms. Garcia testified that she worked hard keeping the house and the children

clean, there was considerable evidence that the children’s living conditions were filthy; Ms. Garcia

said that she had “bad luck” with the days on which the Department would come to the house. The

children’s court-appointed advocate testified that she believed the children had been neglected and

abused for years and that termination was in their best interests. The Department’s program director

testified that after working with the family for eight years, the Department had no further programs

to offer. She stated that each time the Department concluded its involvement, appellants lapsed back

into failing to maintain a clean home. Nor did the program director see an improvement in

Ms. Garcia’s parenting skills during the years the Department was involved and providing services.

Photographs taken after the children’s removal show that appellants’ home was unsanitary, which

violated the service plan ordered by the trial court.

Following a bench trial, the trial court found that both parents had knowingly placed

or allowed the children to remain in dangerous conditions, engaged in or placed the children with

others who engaged in dangerous conduct, failed to support the children, and failed to comply with

court orders that would have allowed her to regain custody of the children. See Tex. Fam. Code

Ann. § 161.001(1) (West Supp. 2007). The court further found that termination of appellants’

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parental rights was in the children’s best interests. See id. § 161.001(2). On appeal, each parent is

represented by separate counsel. Both attorneys have filed separate briefs stating that after reviewing

the record, they believe the appeal is frivolous.1 The briefs present thorough and professional

evaluations of the record discussing possible issues on appeal and demonstrating why those potential

issues do not present arguable grounds for reversal. Ms. Garcia’s attorney delivered a copy of her

brief to Ms. Garcia, and Mr. Garcia’s attorney delivered a copy of his brief to Mr. Garcia. Neither

appellant has sought other counsel or filed a pro se brief. The Department filed a response agreeing

that the appeal is frivolous and that there are no arguable grounds for reversal.

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

frivolous. We therefore affirm the trial court’s final decree. We grant both attorneys’ motions to

withdraw as attorneys of record.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Puryear and Henson

Affirmed

Filed: April 2, 2008

1
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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