NO. 07-11-0503-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 16, 2012
______________________________
IN THE INTEREST OF K.B., T.B., T.B., JR., AND D.B. II, CHILDREN
_________________________________
FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;
NO. 10-06-4232; HONORABLE JACK GRAHAM, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellants, K.B. and T.B., appeal from the trial court's order terminating their
parental rights to their children K.B., T.B., T.B., Jr., and D.B. II.1 In presenting this
appeal, appointed counsel has filed an Anders2 brief in support of a motion to withdraw.
We grant counsel=s motion and affirm.
Courts, including this Court, have found the procedures set forth in Anders v.
California applicable to appeals of orders terminating parental rights. See In re A.W.T.,
1
To protect the parents' and children's privacy, we refer to them by their initials. See Tex. Fam. Code
Ann. § 109.002(d) (West 2008). See also Tex. R. App. P. 9.8(b).
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
61 S.W.3d 87, 88 (Tex.App.—Amarillo 2001, no pet.). See also In re D.E.S., 135
S.W.3d 326, 329 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Taylor v. Texas Dep’t
of Protective & Regulatory Servs., 160 S.W.3d 641, 646-67 (Tex.App.—Austin 2005,
pet. denied). In support of her motion to withdraw, counsel certifies she has conducted
a conscientious examination of the record and, in her opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel certifies she has diligently
researched the law applicable to the facts and issues and candidly discusses why, in
her professional opinion, the appeal is frivolous. In re D.A.S., 973 S.W.2d 296, 297
(Tex. 1998). Counsel has demonstrated that she has complied with the requirements of
Anders by (1) providing a copy of the brief to Appellants and (2) notifying them of their
right to file a pro se response if they desired to do so. Id. By letter, this Court granted
Appellants an opportunity to exercise their right to file a response to counsel=s brief,
should they be so inclined. Neither parent filed a response. The Department filed a
letter brief agreeing with counsel's evaluation that this appeal is frivolous.
The four children the subject of the underlying suit are K.B., a female born on
October 30, 2005, T.B., a male born on September 19, 2006, T.B., Jr., a male born on
May 8, 2008, and D.B. II, a male born on May 11, 2009.3 According to the affidavit in
support of the original petition filed by the Department of Family and Protective
Services, an intake was received for negligent supervision on June 9, 2010. A
Department caseworker was permitted into the home where she observed filth and
clutter, and the home was full of bugs and flies. She observed safety and health
3
The mother testified that she gave birth to a daughter on May 9, 2011. However, that child is not
involved in this suit.
2
hazards including "wires sticking out of outlets where [Appellants] had attempted to fix
part of the house not having electricity." The children were dirty. Appellants were
struggling financially to the detriment of the children and both parents admitted abusing
methamphetamine. The children were removed from the home on June 16, 2010.
On June 29, 2010, the trial court signed temporary orders requiring Appellants to
comply with family service plans. A permanency hearing was held on June 6, 2011, but
the case was extended on the trial court's docket pursuant to section 263.401(b) of the
Family Code. On December 21, 2011, a final hearing was held. Testimony was
presented by both parents as well as a Department caseworker. Appellants admitted to
abusing methamphetamine and the mother testified that she abused methamphetamine
while pregnant with her fifth child. According to the record, after the children were
removed from the home, Appellants moved to Oklahoma and had difficulty complying
with the service plans. By their testimony, Appellants demonstrated poor judgment in
attempting to obtain the return of their children.
The caseworker testified that termination was in the children's best interest due
to Appellants' drug use, lack of progress in completing their service plans over an
eighteen month period and inconsistency in visiting their children. The trial court's best
interest finding is supported by the fact that the children are young and adoptable.4
After hearing the evidence and recommendations from the caseworker, the
attorney ad litem and a CASA advocate, the trial court found that termination was in the
4
The attorney ad litem expressed that the children were too young and mentally incapable of expressing
their wishes.
3
children's best interest and that clear and convincing evidence was presented
establishing that Appellants had:
knowingly engaged or knowingly allowed the children to remain in
conditions or surroundings which endangered their physical or emotional
well-being;
engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered their physical or emotional well-
being;
constructively abandoned the children who had been in the permanent or
temporary managing conservatorship of the Department or an authorized
agency for not less than six months and: (1) the Department or authorized
agency had made reasonable efforts to return the children to the mother
and father; (2) the mother and father had not regularly visited or
maintained significant contact with the children; and (3) the mother and
father had demonstrated an inability to provide the children with a safe
environment; and
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
children who had been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a
result of the children's removal from the parent under Chapter 262 for the
abuse and neglect of the children.
See Tex. Fam. Code Ann. § 161.001(1) (D), (E), (N) and (O) and (2) (West Supp.
2011).
By the Anders brief, counsel raises potential issues on all four grounds found by
the trial court to support termination as well as an arguable issue on the trial court's best
interest finding. Counsel then candidly concedes there is no basis for reversing the trial
court's order.
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STANDARD OF REVIEW IN TERMINATION CASES
The natural right existing between parents and their children is of constitutional
dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d
599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
termination proceedings are strictly scrutinized. In Interest of G.M., 596 S.W.2d 846
(Tex. 1980). Parental rights, however, are not absolute, and it is essential that the
emotional and physical interests of a child not be sacrificed merely to preserve those
rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due 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 at 25-26.
The 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. 2011);
Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).
Only one predicate finding under section 161.001(1) is necessary to support an
order of termination when there is also a finding that termination is in a child's best
interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376,
5
384 (Tex.App.--Amarillo 2005, no pet.). Therefore, we will affirm the termination order if
the evidence is both legally and factually sufficient to support any statutory ground upon
which the trial court relied in terminating parental rights as well as the best interest
finding. In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio, no pet.).
§ 161.001(1) GROUNDS FOR TERMINATION
§ 161.001(1)(D)
Under section 161.001(1)(D), parental rights may be terminated when clear and
convincing evidence shows that a parent knowingly placed or knowingly allowed the
child to remain in conditions or surroundings that endanger the physical or emotional
well-being of the child. Subsection (D) requires a showing that the environment in
which the child is placed endangered the child=s physical or emotional health. Doyle v.
Texas Dept of Pro. and Reg. Serv., 16 S.W.3d 390, 395 (Tex.App.--El Paso 2000, pet.
denied). Additionally, subsection (D) permits termination based on a single act or
omission by the parent. In re L.C., 145 S.W.3d 790, 796 (Tex.App.--Texarkana 2004,
no pet.).
§ 161.001(1)(E)
Parental rights may be terminated under section 161.001(1)(E) if there is clear
and convincing evidence that a parent 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. The cause of the danger to the child must be the parent's conduct
alone, as evidenced not only by the parent's actions but also by the parent's omission or
6
failure to act. Doyle, 16 S.W.3d at 395. Additionally, subsection (E) requires more than
a single act or omission; a voluntary, deliberate, and conscious Acourse of conduct@ by
the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.App.--Fort Worth 2000, pet.
denied).
§ 161.001(1)(N)
Under section 161.001(1)(N), parental rights may be terminated if the trial court
finds that a parent has constructively abandoned a child who has been in the permanent
or temporary conservatorship of the Department for not less than six months and
reasonable efforts have been made to return the child; the parent has not regularly
visited or maintained significant contact with the child; and the parent has demonstrated
an inability to provide the child with a safe environment. See In re D.T., 34 S.W.3d at
633.
§ 161.001(1)(O)
Parental rights may be terminated under section 161.001(1)(O) if the Department
establishes that the children were removed because of abuse or neglect; the
Department has been the permanent or temporary managing conservator for at least
nine months; a court order specifically established the actions necessary for the parents
to obtain the return of their children; and the parents failed to comply with that order.5
See In re J.F.C., 96 S.W.3d at 278-79. Additionally, termination under subsection (O)
5
The clerk's record contains an order specifically establishing the actions necessary for Appellants to
obtain the return of their children. Additionally, Appellants both acknowledged by their signatures on a
Family Service Plan, that they understood the conditions necessary to obtain the return of their children.
See In re B.L.R.P., 269 S.W.3d 707, 711 (Tex.App.--Amarillo 2008, no pet.) (declining to condone
termination of parental rights on the basis of a violation of a court order that did not exist).
7
does not allow for consideration of excuses for noncompliance nor does it consider
"substantial compliance" to be the same as completion. See In re M.C.G., 329 S.W.3d
674, 675-76 (Tex.App.--Houston [14th Dist.] 2010, pet. denied).
§ 161.001(2) BEST INTEREST
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001(1), we must also find clear and convincing evidence that termination of
the parent-child relationship was in the best interest of Appellants' children. See '
161.001(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. A non-exhaustive list of factors to consider in deciding best
interest is found at section 263.307(b) of the Family Code. See also Holley, 544 S.W.2d
at 371-72.
INDEPENDENT EVALUATION
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues which might support the appeal.
See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v.
State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). See also In re J.R., No. 07-10-
0204-CV, 2011 Tex. App. LEXIS 6217, at *6 (Tex.App.--Amarillo Aug. 9, 2011, no pet.);
Hyden v. Tex. Dep't of Family & Protective Servs., No. 13-06-0314-CV, 2006 Tex. App.
11117, at *2 (Tex.App.--Corpus Christi Dec. 29, 2006, pet. denied) (holding that an
appellate court must conduct a full examination of all proceedings to determine whether
appeal is wholly frivolous). Having conducted that review, we have found no such
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issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing
the record and counsel=s brief, we agree with counsel that there are no plausible
grounds for appeal.
Accordingly, counsel's motion to withdraw is granted and the trial court=s order
terminating the parental rights of Appellants is affirmed.
Patrick A. Pirtle
Justice
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