M. R. and F. M., Jr. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00133-CV

M. R. and F. M., Jr., Appellants

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 303.459-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING

MEMORANDUM OPINION

Appellants M.R. (the mother) and F.M., Jr., (the father) appeal from the district

court’s decree, following a bench trial, terminating their parental rights to two-year-old K.M. and

one-year-old K.A.M. (the children). Counsel for each parent has filed a brief pursuant to Anders

v. California, 386 U.S. 738, 744 (1967). We will affirm the district court’s decree of termination.

The case began in August 2018, when the Texas Department of Family and

Protective Services (the Department) received a report that the mother was using illegal drugs

while caring for the children. In October 2018, the mother tested positive for amphetamine,

methamphetamine, and marijuana, and the Department filed suit for termination of the mother’s

parental rights. The Department also sought to terminate the parental rights of the father, who

had refused to cooperate with the Department and declined to take a drug screen, informing the
Department that if he chose to take a drug test, he would need to wait 30 days so that the results

would be negative.

Department caseworker Monica Salazar testified that the mother and the father

were each given a family service plan that they needed to complete to obtain reunification with

the children. Both parents were required to complete psychological evaluations, individual

counseling, and random weekly drug testing. The parents also were required to perform

community service and pay child support in the amount of $200 per month. Additionally, the

father was required to complete an Outreach, Screening, and Assessment Referral (OSAR).

The mother completed some services but not others. The mother completed her

psychological evaluation but was discharged unsuccessfully from individual counseling. She

failed to perform any community service hours and made only one $30 child-support payment.

While the case was ongoing, the mother tested positive for marijuana on multiple occasions and

missed numerous drug tests, which the Department presumed would be positive. At least two of

the mother’s positive drug tests occurred while she was pregnant with another child.

The mother testified at trial. When asked to explain why she tested positive for

marijuana, the mother claimed that she “never physically smoked any marijuana.” She added,

“I’ve been around people that have done it, but I’ve never hit it or did anything.” The mother

testified that on the occasions she tested positive, she had nowhere to live other than with friends

who smoked marijuana.

The father failed to comply with most of his court-ordered services. The father

failed to complete his OSAR assessment and his psychological evaluation. He completed some

individual counseling sessions but was discharged unsuccessfully from therapy. The father

failed to complete any community service hours and failed to pay any child support. The father

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tested positive for marijuana on multiple occasions while the case was ongoing and missed

numerous drug tests, which the Department presumed would be positive.

The father was present at trial but walked out of the courtroom during the

caseworker’s testimony and did not testify. The Department presented evidence that in January

2019, while the case was ongoing, the father was arrested for assaulting the mother. At the time

of trial, the father was out on bond for that offense.

The children were placed first with the father’s sister, but after three weeks, she

decided that she could not care for the children and returned them to the custody of the

Department. By the time of trial, the father’s sister had changed her mind, and she testified that

she wanted to “get them back.” She claimed that she had received a raise at work and now had a

stronger support system that would enable her to be a better caregiver for the children. However,

the children’s guardian ad litem recommended against returning the children to the father’s

sister, remarking that the sister “has given the children back already one time” and opining that

the court should not “take a chance on placing [the] children in a home that may or may not work

out.”

The children are placed currently in a foster home. The children’s guardian ad

litem had visited the children in that home, and she testified that the children were doing

“amazing” there. She added, “They fit right into the family. It really is a perfect match.”

Salazar testified that the Department’s plan was for the foster parents to adopt the children and

that the foster parents wanted to adopt the children.

At the conclusion of trial, the district court found that termination of the mother’s

and the father’s parental rights was in the best interest of the children and that the mother and the

father had: (1) engaged in conduct or knowingly placed the children with persons who engaged

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in conduct which endangered the physical or emotional well-being of the children; and (2) 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. See Tex. Fam. Code § 161.001(b)(1)(E), (O),

(2). This appeal by each parent followed.

Court-appointed counsel for each parent has filed an Anders brief and a motion to

withdraw as counsel, concluding that the appeal is frivolous and without merit. See 386 U.S. at

744; In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam) (approving use of Anders

procedure in appeals from termination of parental rights because it “strikes an important balance

between the defendant’s constitutional right to counsel on appeal and counsel’s obligation not to

prosecute frivolous appeals” (citations omitted)). Each brief meets the requirements of Anders

by presenting a professional evaluation of the record and demonstrating why there are no

arguable grounds to be advanced on appeal. See 386 U.S. at 744; Taylor v. Texas Dep’t of

Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).

Each counsel has certified to this Court that they have provided their client with a copy of the

Anders brief and informed them of their right to examine the appellate record and to file a pro se

brief. No pro se brief has been filed by either parent.

Upon receiving an Anders brief, we must conduct a full examination of the record

to determine whether the appeal is wholly frivolous. See Penson v. Ohio, 488 U.S. 75, 80, 109 S.

Ct. 346, 102 L. Ed. 2d 300 (1988); Taylor, 160 S.W.3d at 647. We have reviewed the entire

record, including the Anders brief submitted on each parent’s behalf. We have found nothing in

the record that might arguably support an appeal, and we agree that the appeal is frivolous.

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Accordingly, we affirm the district court’s order terminating the mother’s and the father’s

parental rights. We deny each counsel’s motion to withdraw. 1

__________________________________________
Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Baker and Triana

Affirmed

Filed: May 6, 2020

1
The Texas Supreme Court has held that the right to counsel in suits seeking termination
of parental rights extends to “all proceedings [in the Texas Supreme Court], including the filing
of a petition for review.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (per curiam).
Accordingly, if after consulting with counsel either parent desires to file a petition for review,
that parent’s counsel should timely file with the Texas Supreme Court “a petition for review that
satisfies the standards for an Anders brief.” See id.
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