In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-08-00444-CV
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IN THE INTEREST OF R.W.S. and T.W.S
Jefferson County, Texas
Trial Cause No. F-202,446
This is an appeal from the trial court's judgment terminating the rights of S.S. to her minor children, R.W.S. and T.W.S. We affirm.
Background
R.W.S. was born on December 30, 2006, and T.W.S. was born on December 18, 2007. Texas Department of Family and Protective Services ("the Department") petitioned the trial court to terminate the parental rights of S.S. on multiple grounds. The trial court conducted a termination hearing, at which both S.S. and her counsel were present. At the hearing, Child Protective Services specialist Terra Collins testified that S.S. had been involved with Family-Based Safety Services, as well as the Drug Court Program, and was ordered to participate in drug rehabilitation and to cooperate with the Department. S.S. was also required to remain drug free, to cooperate with drug testing, to follow psychological recommendations, and to inform the Department of any changes in her telephone numbers or physical address within twenty-four hours.
Collins testified that S.S. did not completely follow any of the requirements, and that after S.S. completed drug rehabilitation, her first drug test was positive for cocaine. Collins testified that S.S. had been ordered into substance abuse treatment because her abuse of controlled substances placed her children in danger, that S.S. was pregnant while she was in treatment, and that S.S. tested positive for cocaine while she was pregnant. According to Collins, S.S. continued to test positive for drugs after the children were removed. S.S. also sometimes admitted her drug usage to Collins. Collins testified that S.S. had admitted shooting cocaine into her veins, which is a behavior in which the most serious drug addicts engage. S.S. also tested positive for benzodiazepines and methamphetamines.
Collins testified that S.S. had reported several different addresses, and that S.S. had at times indicated she was "homeless and didn't have a stable place to stay." Collins explained that during her work on the case, S.S. never had a place of her own. In addition, Collins testified that S.S. was ordered to have weekly visits with the children, but S.S.'s visits were sporadic. Collins also testified that S.S. did not "look like herself" at the hearing, and Collins was concerned that S.S. had been using drugs recently.
According to Collins, S.S. has not provided for the children financially or materially since the children were removed. Collins testified that the Department planned for the children to be adopted, and that adoption would be in the children's best interest because "they need some type of permanency in their life." Collins testified that the Department has located a potential adoptive placement for the two children together.
S.S. testified that she went through drug rehabilitation twice, but she continued to use drugs. S.S. explained that she has admitted to using drugs on several occasions since the children were removed. In addition, S.S. admitted that she did not follow the court's recommendations. S.S. admitted that her drug use was bad for her children, and that although she knew it was dangerous, she used drugs once while she was pregnant with T.W.S. S.S. also admitted that she used drugs while she was pregnant with R.W.S. despite knowing it was dangerous to do so. S.S. admitted that she tested positive for drugs three times while she was pregnant with R.W.S. Furthermore, S.S. admitted that she had used cocaine a week before the trial. When asked whether she felt it was in the children's best interest to live with her, S. S. responded, "I do. . . . But not right now." S.S. explained that she wanted the court to consider placing the children with her family members.
At the conclusion of the hearing, the court found by clear and convincing evidence that S.S. had (1) knowingly placed or allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangers the children's physical or emotional well-being; (3) constructively abandoned the children; (4) failed to comply with the provisions of the court order that established the actions necessary to obtain the return of the children; and (5) used a controlled substance in a manner that endangered the health or safety of the children. The court found that termination was in the best interest of the children and terminated S.S.'s rights to the children. S.S.'s trial counsel filed a motion for new trial and statement of points for appeal, and trial counsel also filed a request for findings of fact and conclusions of law. In her statement of points for appeal, S.S. contended the evidence was legally or factually insufficient to support the trial court's findings.
The trial court filed findings of fact and conclusions of law, in which it found that S.S. voluntarily left the children alone or in the possession of another and expressed an intent not to return; voluntarily left the children alone or in the possession of another without expressing an intent to return, without providing for the adequate support of the children, and remained away for a period of at least three months; engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children; contumaciously refused to submit to a reasonable and lawful order of a court; constructively abandoned the children; failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of the children; and used a controlled substance in a manner that endangered the health and safety of the children and continued to abuse a controlled substance after completion of a court-ordered substance abuse treatment program. The trial court further found that termination of the parent-child relationship between S.S. and the children is in the best interest of the children, and that the relationship should be terminated.
The trial court subsequently conducted a hearing pursuant to section 263.405 of the Family Code. See Tex. Fam. Code Ann. § 263.405 (Vernon 2008). S.S.'s trial counsel appeared at the hearing. After the hearing, the trial court signed an order in which it denied S.S.'s motion for new trial, found S.S. to be indigent, appointed appellate counsel to represent S.S., and found S.S.'s statement of appellate points to be without merit.
Subsequently, after S.S. failed to file a brief, this Court ordered the trial court to conduct a hearing to determine whether S.S. desired to prosecute her appeal and to make a record of its findings. See Tex. R. App. P. 38.8(b)(3). At the hearing, Steve Thrower, the senior criminal investigator for the Jefferson County District Attorney's office, testified that he attempted to locate S.S. by researching public addresses that S.S. had "provided to creditors, driver's license companies, social services, those kind of things[,]" and that he had also checked the local jails. Thrower testified that S.S. was "not on the grid at any of the information that she's provided. And I personally went by several residences and knocked on doors and verified that she had moved from those residences." Thrower explained that another investigator verified that S.S. had been at a halfway house about two months ago. Thrower testified, "We understand she's in the company of a young man, but I don't have a physical address as to get her located." Thrower explained that he also had a lead that indicated that she was at an address in Beaumont, but when he checked with the residents at that address, they did not have a forwarding address for S.S.
S.S.'s appellate counsel stated on the record that he had never had any contact with S.S. Appellate counsel also stated on the record that he
sent the forms to [trial counsel] to process this, and we talked about it. And at that time [trial counsel] was in contact with the woman. I left my phone number with her, and she never called. Then I was I guess appointed at a subsequent hearing, which I did not attend.
Until this new order came out, . . . my office never told me that I was prosecuting.
Since this order came out and I talked to the DA . . . we basically have been trying to find her; and, no, I have no phone contact, I have never talked to the woman since the Day One [sic], not anything. So, I have nothing.
Appellate counsel stated that he had obtained the phone numbers trial counsel had for S.S., but S.S. has never contacted him. Trial counsel stated that on the record that S.S. "called several times after the hearing and every time she knew that [appellate counsel] was her attorney and I gave her his number a couple of times. She hasn't called me back." Trial counsel also stated that she had called all the numbers S.S. had provided, and most of them were disconnected.
At the conclusion of the hearing, the court found that S.S. did not appear at the hearing, and also found that "it does not appear that appellant desires to prosecute her appeal." The trial court also signed an order, in which it summarized the testimony concerning the various efforts to located S.S. and found that S.S. "does not wish to pursue the appeal." S.S.'s appellate counsel subsequently filed a letter in which he stated that because of the trial court's finding that S.S. does not wish to pursue her appeal, counsel did not plan to file a brief. The Department filed a motion to dismiss, in which it noted the trial court's finding that S.S. did not desire to prosecute her appeal and stated that the children were awaiting adoptive placement.
Analysis
Because the trial court found that appellant no longer desires to appeal, and appellate counsel has therefore decided not to file a brief, we now consider this appeal pursuant to section 263.405(g) of the Family Code. See Tex. Fam. Code Ann. § 263.405(g) ("The appellant may appeal the court's order . . . finding that the appeal is frivolous[.] . . . The appellate court shall review the records and may require the parties to file appellate briefs on the issues presented, but may not hear oral argument on the issues. The appellate court shall render appropriate orders after reviewing the records and appellate briefs, if any.") (emphasis added). The decision to terminate parental rights must be supported by clear and convincing evidence. See In the Interest of J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). A parent's rights can be terminated by a finding that termination would be in the child's best interest and any one of the statutory grounds for termination alleged by the Department and found by the trial court. In the Interest of B.K.D., 131 S.W.3d 10, 16 (Tex. App.--Fort Worth 2003, pet. denied); see also Tex. Fam. Code Ann. § 161.001 (Vernon 2008).
At the termination hearing, the trial court heard evidence that S.S. continued to use drugs and tested positive for controlled substances after completing drug rehabilitation. The trial court heard evidence, including S.S.'s own admissions, that S.S. continued to use controlled substances while she was pregnant with both children, as well as after the Department removed the children. S.S. admitted that she had used cocaine as recently as one week before the termination hearing. The trial court also heard evidence that S.S.'s court-ordered visits with the children were somewhat sporadic, and that S.S. had not financially provided for the children since the Department removed them. The clear and convincing evidence adduced at the hearing supports the grounds for terminating S.S.'s parental rights. See Tex. Fam. Code Ann. § 161.001(1). In addition, said clear and convincing evidence supports the trial court's determination that termination of S.S.'s parental rights was in the best interest of R.W.S. and T.W.S. See id. § 161.001(2).
The trial court did not err by finding that grounds for terminating S.S.'s parental rights existed and that termination would be in the best interest of R.W.S. and T.W.S. In addition, the trial court did not err in determining that an appeal by S.S. would be frivolous. Accordingly, because S.S. did not present a substantial question for appellate review, we affirm the trial court's judgment. The Department's motion to dismiss is denied as moot.
AFFIRMED.
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CHARLES KREGER
Justice
Opinion Delivered June 11, 2009
Before McKeithen, C.J., Gaultney and Kreger, JJ.