ACCEPTED
01-15-00525-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/17/2015 2:39:56 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00525-CV
_________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT8/17/2015 2:39:56 PM
OF TEXAS AT HOUSTON CHRISTOPHER A. PRINE
Clerk
_________________________________________________________
IN THE INTEREST OF J.M., B.L.U., B.L.U. and K.U., Children
_________________________________________________________
S.P.M., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES, Appellee
_________________________________________________________
APPEALED FROM THE 314TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
Trial Cause No. 2013-05384J
_________________________________________________________
ORIGINAL BRIEF OF APPELLANT S.P.M.
____________________________________________________________
WILLIAM M. THURSLAND
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
713-655-0200; Fax: (713) 655-9035
Email: wmthursland@hotmail.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTIFICATION OF PARTIES AND COUNSEL
Appellant herein states that the names of all parties and counsel to this
appeal are:
S.P.M., Appellant:
At Trial and On Appeal:
William M. Thursland
Attorney At Law
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
Tel: 713-655-0200; Fax: 713-655-9035
The Texas Department of Family and Protective Services, Appellee:
At Trial: On Appeal:
Marc A. Ritter Sandra D. Hachem
Assistant County Attorney Sr. Assistant Harris County Attorney
TBN 16951500 TBN 08620460
1019 Congress, 15th Fl. 1019 Congress, 15th Fl.
Houston, TX 77002 Houston, TX 77002
Tel: 713-274-5220; Tel: 713-274-5220;
Fax: 713-437-4700 Fax: 713-437-4700
The Children at Trial: Alleged Father, J.J.S. at Trial:
Gary Polland Kevin H. George
Attorney at Law Attorney At Law
TBN: 16095800 TBN: 07805850
2211 Norfolk, Ste. 920 440 Louisiana, Ste. 1130
Houston, TX 77098 Houston, TX 77002
Tel: 713-621-6335 Tel: 713-655-0200
Fax: 713-622-6334 Fax: 713-655-9035
Unknown Father at Trial: Alleged Father, E.L., at Trial:
i
Thomas Montgomery Lance B. Medland
Attorney At Law Attorney At Law
TBN: 14301000 TBN: 24072237
16307 Hickory Point Rd. 3355 W. Alabama, Ste. 100
Houston, TX 77095 Houston, TX 77099
Tel. & Fax: 281-463-9623 Tel: 713-444-3186
Fax: 281-822-1366
Alleged Father, P.M., at Trial:
J.B. Bobbitt
Attorney At Law
TBN: 24078237
405 Main St., Ste. 620
Houston, TX 77002
Tel: 713-529-6234; Fax: 281-476-7816
REQUEST FOR ORAL ARGUMENT
Appellant does not request oral argument.
RECORD REFERENCES
Clerk’s Record:
The clerk’s record consists of one (1) volume and is referred to herein as CR
followed by the page number(s).
Reporter’s Record:
The court reporter’s record consists of three (3) volumes. The third volume
contains the trial testimony. It is referenced herein as (RR) followed by the page
and line number(s). The exhibits are referred to first by the party offering followed
by the number.
Statutory Citation References:
Unless otherwise indicated, all statutory references refer to the Texas Family
Code.
ii
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES AND COUNSEL i
REQUEST FOR ORAL ARGUMENT ii
RECORD REFERENCES ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iii
STATEMENT OF THE CASE 1
ISSUE PRESENTED 3
ISSUE ONE:
ARE THERE ANY NON-FRIVOLOUS GROUNDS
TO ASSERT ON APPEAL
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT 6
I. APPLICABLE LEGAL STANDARD 7
II. SUFFICIENCY OF THE EVIDENCE 10
III. CONCLUSION & PRAYER 18
CERTIFICTE OF COMPLIANCE 19
CERTIFICATE OF SERVICE 19
TABLE OF AUTHORITIES
FEDERAL CASES
Anders v. California, 386 U.S. 738 (1967) 6, 9, 10
iii
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982) 7
STATE CASES
Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005) 10
Holick v. Smith, 685 S.W. 2d 18 (Tex. 1985) 7
Holly v. Adams, 544 S.W. 2d 367 (Tex. 1976) 15
In re A.C., 394 S.W.3d 633 (Tex. App. – Houston 17
[1st Dist.] 2012, no pet.)
In re A.V., 113 S.W. 3d 355 (Tex. 2003) 6, 7
In re C.H., 89 S.W. 3d 17 (Tex. 2002) 16
In re C.A.J., 122 S.W.3d 888 (Tex. App. – Ft. Worth 2003, no pet.) 17
In re D.N., 405 S.W.3d 863 (Tex. App. – Amarillo 2013, no pet.) 11
In re E.C.R., 402 S.W.3d 239 (Tex. 2013) 12
In re G.M., 596 S.W.2d 846 (Tex. 1980) 9
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) 7, 8
In re J.L., 163 S.W.3d 79 (Tex. 2002) 9
In re J.S., 291 S.W.3d 60 (Tex. App. – Eastland 2009, no pet.) 11
In re J.W., 152 S.W.3d 200 (Tex. 2006) 13, 14
In re K.C.M., 4 S.W. 3d 392 (Tex. App. - Houston [1st Dist.] 15
1999, pet. denied)
In re K.D., 127 S.W.3d 66 (Tex. App. – Houston 6, 9
[1st Dist.] 2003, no pet.)
In re M.C.G., 329 S.W. 3d 674 (Tex. App.- Houston [14th Dist.] 11
iv
2010, pet. denied)
Jordan v. Dossy, 325 S.W.3d 700 (Tex. App. – Houston 14
[1st Dist.] 2010, pet. denied)
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App, 1991) 10
Tex. Dept. of Hum. Servs. v. Boyd, 717 S.W.2d 531 (Tex. 1987) 14
Yonko v. DFPS, 196 S.W.3d 236 (Tex. App. – Houston 13
[1st Dist.] 2006, no pet.)
STATUTES
Tex. Fam. Code §161.001(1) 9
Tex. Fam. Code §161.001(1)(E) 13
Tex. Fam. Code §161.001(1)(J) 12
Tex. Fam. Code §161.001(1)(O) 10
Tex. Fam. Code §161.001(2) 9
v
NO. 01-15-00525-CV
_________________________________________________________
IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
_________________________________________________________
IN THE INTEREST OF J.M., B.L.U., B.L.U. and K.U., Children
________________________________________________________
S.P.M., Appellant
v.
TEXAS DEPARTMENT OF FAMILY AND
PROTECTIVE SERVICES, Appellee
_________________________________________________________
APPEALED FROM THE 314TH
DISTRICT COURT OF HARRIS COUNTY, TEXAS
Trial Cause No. 2013-05384J
_________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Appellant, S.P.M., (also referred to as “mother”), respectfully submits her
Original Anders Brief in the referenced appeal.
STATEMENT OF THE CASE
On September 30, 2015, the Texas Department of Family and Protective
Services (“DFPS”) filed its Original Petition For Protection Of A Child, For
Conservatorship And Termination In Suit Affecting The Parent-Child Relationship
1
And Order Setting Hearing wherein it requested, inter alia., to be named the
temporary managing conservator of Patrick, a male born on December 12, 1998;
Larkin, a female born on March 26, 2006; Lee, a female born on July 22, 2007 and
Maverick, a male born on September 6, 2008.1 (CR 003-035) On the same day, the
trial court granted DFPS’ emergency request to take temporary conservatorship of
the children. At the show cause hearing held on October 15, 2013, DFPS was
appointed as the their sole temporary managing conservator.2
After a bench trial, the trial court found the evidence sufficient to terminate
appellant’s parental rights under §161.001(1)(E), (J) and (O). It also found that
termination of her parental rights was in the children's best interests. DFPS was
appointed as their sole managing conservator. The “Decree For Termination” was
signed on May 12, 2015. (CR 177-188)
On June 6, 2015, mother filed her notice of appeal. (CR 190-191) In an
order dated June 23, 2015, the trial court appointed appellate counsel and
confirmed S.P.M. is indigent.
ISSUE PRESENTED
1
Pursuant to TRAP 9.8(b) the children are identified by alias.
2
These orders as well as the status hearing order and order appointing appellate counsel were not
included in the clerk’s record. Appellant has, therefore, requested that the record be
supplemented.
2
ISSUE ONE: ARE THERE ANY NON-FRIVOLOUS GROUNDS TO ASSERT
ON APPEAL
STATEMENT OF FACTS
The case was called to trial on October 2, 2014. DFPS asked for a short
continuance because its “main trial attorney” was engaged in a jury trial. The
children’s ad litem (“ad litem”) also noted that Patrick who is “old enough to come
visit with the court” wanted to attend. Knowing that the case might be reset
because the main DFPS attorney was in trial and not wanting him to miss school
the ad litem did not bring him to court that morning. (RR p. 4 & 6)
On this date, mother and alleged father, J.J.S., were present. Another
alleged father, P.M., was in Illinois and the other, E.L. was never found. DFPS
counsel then offered a number of trial exhibits. The trial court held that counsel
could withhold making their objections to the exhibits until the trial resumed. (RR
p. 7-10)
When the case resumed on April 28, 2015, DFPS re-offered its exhibits.
Mother was not present but her attorney ad litem was. (RR-3 p. 6-7) The court
accepted J.J.S.’s irrevocable affidavit relinquishing his parental rights. His rights
were then terminated pursuant to subsection (K). (RR p. 9)
The court sustained appellant’s hearsay objections to DFPS #9, the removal
3
affidavit, and to the first paragraph of DFPS #19, her family service plan (“FSP”).
It also sustained her relevance objection to DFPS #19, a misdemeanor assault
conviction. (RR 10-11)
The DFPS caseworker, Maria Garza (“Garza”), testified the children are
sixteen, nine, seven and six years old. The two older children are placed with their
half sister, Ashley, who wants to adopt them. Their two younger siblings are
placed in a non-adoptive foster home. The “plan” is to place the younger children
with Ashley once she obtains a larger house. She also wants to adopt the younger
children. (RR p. 11; L. 21-25 & p. 12)
Mother was provided with a FSP but did not do all her services.
Specifically, she did not do individual therapy, “another psychiatric evaluation”
and the psychosocial assessment. She attended all court hearings except “for this
one.” She regularly visited the children but missed the last two visits. (RR p. 13)
The children originally came into care because appellant was “arrested on a
mental health warrant.” Garza opined it was in the children’s best interest to have
mother’s parental rights terminated because she “is not able to provide a safe
environment for them;” her mental health issues and “not willing to send them to
school.” (RR p. 14)
Garza called mother on her last visit because she was late. She said she
4
forgot and arrived forty minutes late. She failed to attend the last two scheduled
visits. (RR p. 15)
Michael Luna (“Luna”), the Child Advocate coordinator, testified it is in the
children’s best interest to terminate the parents’ parental rights because they have
not completed their family service plan and mother missed her last two visits. In
addition, he went to her last known address the day before and it was an abandoned
lot. The trailer home was gone and she did not provide any information that “she
was moving or relocating.” (RR p. 20 & 21)
When Patrick came into care he could not read or write; had difficulty
understanding numbers and calendar days. He is making progress now but needs
extra tutorials “to help catch up.” All the children show substantial delays in
education. (RR p. 21; L. 15-25)
Patrick testified that he is sixteen years old and “fells like” his current living
circumstances are taking care of his needs. He and his siblings lived with their
mother until he was fourteen when they came into DFPS care. Appellant “pretty
much beat [them] senseless” without giving a reason. He took beatings for his
other siblings “because they wouldn’t be able to handle the beatings.” She used
“brute force” and the beatings were “an ongoing thing.”
Neither Patrick nor his siblings ever went to school. Nor did appellant give
5
them any type of home schooling. (RR p. 23; L. 20-25 & p. 24-25)
SUMMARY OF ARGUMENT
After thoroughly reviewing the appellate record, the undersigned court-
appointed counsel (“counsel”) has determined, in his professional opinion, that
there are no non-frivolous grounds to assert on appeal. Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967) This Court has held that the Anders procedures are
applicable to appeals involving the termination of parental rights. In re K.D., 127
S.W.3d 66, 67 (Tex. App. – Houston [1st Dist.] 2003, no pet.)
Counsel determined that the record contains evidence that is legally and
factually sufficient to support the termination findings under each of the predicate
grounds found by the trial court; i.e. subsections (E), (J) and (O). Although the
evidence need only support one predicate ground, counsel will review the review
the evidence supporting each of the predicate grounds found by the trial court. In
re A.V., 113 S.W.3d 355, 262 (Tex. 2003)
Similarly, the record contains sufficient evidence to support the trial court’s
termination finding on best interest grounds. The Holly factors weight heavily in
support of the best interest finding. In contrast, the evidence weighing against that
finding is paltry.
ISSUE ONE: ARE THERE ANY NON-FRIVOLOUS GROUNDS TO ASSERT
ON APPEAL
6
I. APPLICABLE LEGAL STANDARD
A. Termination of Parental Rights:
The involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W. 2d 18, 20 (Tex. 1985)
The natural right existing between a parent and a child is of such a degree as to be
of constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S.
Ct. 1388, 1397-98 (1982) As a result, appellate courts strictly scrutinize
termination proceedings and involuntary termination statutes are strictly construed
in favor of the parent. Holick v. Smith, 685 S.W. 2d at 20-21 However, the “rights
of natural parents are not absolute” and “the rights of parenthood are accorded only
to those fit to accept the accompanying responsibilities.” In re A.V. 113 S.W.3d at
361 (Tex. 1994)
B. Sufficiency of the Evidence Analysis:
Proceedings to terminate parental rights require proof by clear and
convincing evidence. This standard requires “the measure or degree of proof that
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.” In re J.F.C., 96 S.W.3d 256, 264-
265 (Tex. 2002)
7
In conducting a legal sufficiency review the court should consider all the
evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a reasonable belief that its finding was
true. It must assume that the fact finder resolved disputed facts in favor of its
findings if a reasonable fact finder could do so. A corollary to this requirement is
that a court should disregard all evidence that a reasonable fact finder could have
disbelieved or found to have been incredible. This does not mean however that a
reviewing court must disregard all evidence that does not support the finding.
Disregarding undisputed facts that do not support the finding could skew the
analysis of whether there is clear and convincing evidence. If the court determines
that a reasonable fact finder could not form a firm belief or conviction that the
allegations were true, then it must conclude that the evidence is legally insufficient.
Id. at 266
When conducting a factual sufficiency review, the appellate court must
consider all the evidence equally, both disputed and undisputed, to determine if the
disputed evidence is such that a reasonable fact finder could not have resolved the
disputed evidence in favor of its finding. If in light of the entire record, the
disputed evidence that a reasonable fact finder could not have credited in favor of
the finding is so significant that a fact finder could not have reasonably formed a
8
firm belief or conviction, then the evidence is factually insufficient. Id. at 266
The State bears the burden of proving by clear and convincing evidence the
following: (1) that the parent committed one or more of the acts or omissions
specifically listed under §161.001(1); and (2) termination of the parent’s rights is
in the child’s best interest. §161.001(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2002)
The State must prove all elements of its case by clear and convincing evidence.
The parent has no burden of proof. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)
C. Anders Procedures & Requirements:
When court-appointed counsel determines, in his or her professional
opinion, that an appeal is without merit and there are no arguable grounds for
reversal, counsel is required to file a brief that meets the requirements of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967) The Anders procedures are
applicable to an appeal from the termination of parental rights when an appointed
counsel determines that there are no non-frivolous issues to assert on appeal. In re
K.D., 127 S.W.3d at 67
The court of appeals is required to fully examine the record to determine
whether there are no non-frivolous issues to assert on appeal. If it determines that
an appeal is wholly frivolous, it may issue an opinion explaining that it has
9
reviewed the record and finds no reversible error. Or, it may remand the cause to
the trial court so that new counsel may be appointed to brief the issues. Bledsoe v.
State, 178 S.W.3d 824, 826-827 (Tex. Crim. App. 2005) A copy of appellant’s
brief and a copy of the record must be provided to the appellant. In addition, the
appellant must be advised of her right to review the record. Stafford v. State, 813
S.W.2d 503, 510 (Tex. Crim. App. 1991)
Finally, appointed counsel must act in the role of an active advocate on
behalf of the client. Counsel is required to refer to anything in the record that
might arguably support the appeal. Anders v. California, 386 U.S. at 744, 87 S. Ct.
at 1400
II. DISCUSSION AND ANAYLSIS – SUFFICENCY OF THE EVIDENCE
A. Analysis- Subsection (O):
The trial court found by clear and convincing evidence that termination of
appellant’s parental rights was warranted under §161.001(1)(O). The Family
Code provides that a court may order termination of the parent-child relationship if
it finds by clear and convincing evidence that the parent has:
Failed to comply with the provisions of a court order that specifically
establish the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services
for not less than nine months as result of the child’s removal from the
10
parent under Chapter 262 for the abuse or neglect of the child.
§161.001(1)(O)
Generally speaking, Texas courts have taken a rather strict approach to
subsection (O). This subsection looks only for a parent’s failure to comply with a
court order, without reference to the quantity of the failure or degree of
compliance. In re: D.N., 405 S.W.3d 863, 877 (Tex. App. – Amarillo 2013, no
pet.) citing In re J.S., 291 S.W.3d 60, 67 (Tex. App. – Eastland 2009, no pet.) See
also In re M.C.G., 329 S.W.3d 674, 675 (Tex. App. – Houston [14th Dist.] 2010,
pet. denied)(where failure to complete one requirement of the family services plan
supported subsection (O) termination finding)
In the instant appeal DFPS introduced uncontroverted evidence that
established each of the elements required to support a termination finding under
subsection (O).
Appellant was provided with a FSP that through the status hearing order and
subsequent permanency hearing orders was made approved and made an order of
the court. At the time of trial the children had been in DFPS conservatorship for
not less than nine months and had been removed from appellant due to neglect.
Garza testified that the children came into care because mother was arrested on a
11
mental health warrant. Although the removal affidavit was not admitted into
evidence the trial court could consider its allegations in determining whether the
children were removed from the parent for abuse or neglect. In re E.C.R., 402
S.W.3d 239, 248 (Tex. 2013)(“[The removal] affidavit, even if not evidence for all
purposes, shows what the trial court relied on in determining whether removal was
justified.”)
Garza also testified that mother was provided with a FSP. She did not do
her individual therapy, psychiatric evaluation or psychological assessment.
Appellant was also required to attend all court hearings but failed to appear at trial.
Although she was regularly visiting the children, she missed the last two.
In conclusion, based on the undisputed evidence a reasonable fact finder
could form a firm belief or conviction that DFPS provided clear and convincing
proof to support a termination finding under subsection (O).
B. Analysis – Subsection (J):
A court may order termination of the parent-child relationship if it finds by
clear and convincing evidence that the parent has been the major cause of the
failure of the child to be enrolled in school as required by the Education Code.
§161.001(1)(J) The Education Code provides that “a child who is at least six years
of age . . . shall attend school.” Educ. Code §25.085(b) See Yonko v. DFPS, 196
12
S.W.3d 236, 242 (Tex. App. – Houston [1st Dist.] 2006, no pet.)
Patrick testified that he lived with his mother for the first fourteen years of
his life. During that period of time neither he nor his siblings ever attended school.
Neither did they ever receive any type of home schooling.
Luna confirmed that when Patrick came into DFPS care he was illiterate.
He also had difficulty understanding numbers and calendar days. Although he is
making progress he needs extra tutorials “to help catch up.” Finally, Luna stated
that all the children show substantial delays in education.
In sum, the evidence pertaining to subsection (J) was unchallenged and
compelling.
C. Analysis – Subsection (E):
To support the termination of parental rights under §161.001(1)(E), the State
must prove that the parent “engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical or emotional well-
being of the child.” The relevant inquiry under this section involves the parent’s
acts and omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. 2006)
Termination under subsection (E) “must be based on more than a single act
or omission and requires a voluntary, deliberate and conscious course of conduct
by the parent that endangers the child’s physical and emotional well-being.” Id. at
13
205
Endangerment is defined as “to expose to loss or injury; to jeopardize.”
Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although
“endanger” means more than a threat of metaphysical injury or the possible ill
effects of a less-than ideal environment, it is not necessary that the conduct be
directed at the child or that the child actually suffers injury.
The relevant inquiry is whether evidence exists that a parental course of
conduct endangered the child’s physical or emotional well-being. Jordan v.
Dossey, 325 S.W. 3d 700, 713 (Tex. App. – Houston [1st Dist.] 2010, pet. denied)
Evidence of a parent's past conduct, including criminal history, may be
relevant if it shows a conscious course of conduct occurring both before and after a
child's birth. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.]
1997, no writ) While it is not necessary that the endangering conduct be directed at
the child or that the child actually suffers an injury, the child must be exposed to
loss or injury. In re: J.W., 225 S.W.3rd at 205
In regard to the evidence relating to subsection (E), Patrick testified that
appellant “pretty much beat” them “senseless” without giving a reason. She used
“brute force” and the beatings were an “ongoing thing.” The mother’s assaultive
conduct directed at her children coupled with her conscious failure to educate them
14
is sufficient to support the trial court’s finding that she knowingly engaged in a
course of conduct that endangered the children’s physical or emotional well-being.
D. Analysis - Best Interests:
In addition to establishing that a parent committed one of the prohibited acts
specified in §161.001(1), DFPS also has the burden of proving by clear and
convincing evidence that termination of a parent’s parental rights is in the child’s
best interest. §161.001(2) There is a strong presumption that the child’s best
interest is served by keeping custody in the natural parent. In re K.C.M., 4 S.W. 3d
392, 393-393-95 (Tex. App. – Houston [1st Dist.] 1999, pet. denied)
In Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976), the Supreme Court
identified nine factors to consider in determining the best interest of the child.
Those factors are the desires of the child, the emotional and physical needs of the
child now and in the future, the emotional and physical danger to the child now
and in the future, the parental abilities of the individuals seeking custody, the
programs available to assist those individuals to promote the best interests of the
child, the plans for the child by the parties seeking custody, the stability of the
home or proposed placement, the acts or omissions committed by the parent that
might indicate that the existing parent-child relationship is not a proper one, and
any excuses for the acts or omission committed by the parent.
15
While the Holly court instructed that the list is by no means exhaustive it
does provide a good point of reference to aid in assessing the trial courts’ best
interest finding. The absence of evidence pertaining to some of the factors will not
preclude a fact finder from forming a strong conviction or belief that termination is
in the child’s best interest. On the other hand, scant evidence relevant to each
Holly factor will not support such a finding.
The same evidence of acts or omissions that support termination under
161.001(1) may be probative in determining the child’s best interest. In re C.H.,
89 S.W.3d 17, 27-28 (Tex. 2002)(“While it is true that proof of acts and omissions
under section 161.001(1)(E) does not relieve the petitioner from providing the best
interest of the child, the same evidence may be probative of both issues.”) Here
the undisputed evidence shows that appellant regularly assaulted her children and
violated the Education Code by failing to enroll them in school when them attained
six years of age is also probative of the best interest factors.
In addition, appellant failed to complete her court ordered FSP by not doing
individual therapy, her psychiatric evaluation or psychosocial assessment. The
trial court could justifiably conclude that the underlying causes that brought the
children into care had not been ameliorated.
At the time of trial, the two older children were living with Ashley who
16
wants to adopt them. The DFPS plan is to place the two younger children with her
as soon as she obtains a larger house. Ashley also wants to adopt them. The
children are attending school and their current needs are being met.
Luna testified he attempted to visit appellant the day before trial but her
trailer home was gone and the lot abandoned. She failed to provide any
information regarding her new location. On the other hand, there was no evidence
that she could provide permanency or a stable environment for her child. See In re
C.A.J., 122 S.W.3d 888, 894 (Tex. App. – Ft. Worth 2003, no pet.) (“without
stability, income, or a home, [a parent] is unable to provide for the child’s
emotional and physical needs.”) In addition, while DFPS and Luna were providing
assistance to Patrick (and presumably the other children) to overcome their
educational deficiencies there was no evidence that appellant would be able to
meet those needs. Indeed, she was the cause of the educational delays.
There is some evidence, however, that weighs the Holly factors in favor of
the mother. For instance, she was visiting the children regularly until the last two
visits and had been attending all court hearings except for the last one. While
Garza alluded to mother’s “mental health issues” the record contains no evidence
to explain what those issues were. Nevertheless, in regard to the first Holly factor,
the child’s desires, it was clear that Patrick preferred living with Ashley rather than
17
his mother.
Based on carefully perusal of the record counsel has concluded that the
evidence is legally and factually sufficient to support the termination finding on
best interest grounds.
III. CONCLUSION AND PRAYER
Based on counsel’s professional evaluation of the record, he determined that
there are no arguable grounds for appeal and that S.P.M.’s appeal is wholly
frivolous. Counsel certifies to the Court that contemporaneously with filing this
brief, he has forwarded to appellant by certified mail, return receipt requested, and
U.S. First Class Mail to her last known mailing address a copy of this brief and a
letter informing her that she has the right to file a pro se response with this Court
within 30 days. Counsel also informed her that if this Court concludes after
independently reviewing the record that an appeal is wholly frivolous then she has
the right to challenge that holding by filing a petition for review in the Texas
Supreme Court.
Counsel prays that he be permitted to withdraw.
Respectfully submitted,
/s/ William M. Thursland
___________________________
William M. Thursland
TBN: 20016200
18
440 Louisiana St., Ste. 1130
Houston, Texas 77002
(713) 655-0200; Fax: (713) 655-9035
Email: wmthursland@hotmail.com
Attorney for Appellant, S.P.M.
CERTIFICATE OF COMPLIANCE
I certify that the foregoing computer generated brief complies with word
limit requirements of TRAP 9.4 (3). Relying on the word count of the computer
program used to prepare this document, the number of words, is 3,816 excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural history,
signature, proof of service, certificate of compliance and appendix.
/s/ william m thursland
_______________________
William M. Thursland
CERTIFICATE OF SERVICE
I certify that a true and correct copy of appellant’s brief was served in
accordance with TRAP on August 17, 2015 on:
(1) Sandra D. Hachem, Sr. assistant Harris County attorney, 1019 Congress,
15th Fl., Houston, TX 77002, by electronic delivery;
(2) Gary Polland, 2211 Norfolk, Ste. 920, Houston, TX 77098, attorney ad
litem for the children, by hand or electronic delivery; and,
(3) S.P.M., appellant, to her last known address: 11410 Brooklyn St., TRLR
261, Houston, TX 77093
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by certified mail, return receipt requested & U.S. First Class Mail and by electronic
delivery to sandrapmccormick@yahoo.com
/s/ william m. thursland
_________________________
William M. Thursland
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