TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00076-CV
R. S. S. and N. M., IV, Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 428TH DISTRICT COURT OF HAYS COUNTY
NO. 20-0790, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING
MEMORANDUM OPINION
Following a jury trial, the district court terminated the parental rights of R.S.S.
(Mother) and N.M., IV (Father), to their child S.M. (Daughter), born April 7, 2020. Mother and
Father each appealed. Mother’s appointed counsel has filed a brief concluding that her appeal is
frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). Father
challenges the sufficiency of the evidence supporting the predicate statutory ground for
terminating his parental rights, failure to complete services. See Tex. Fam. Code
§ 161.001(b)(1)(O). We will affirm the district court’s order.
BACKGROUND
The case began in April 2020 when the Department of Family and Protective
Services (the Department) received a report alleging that Mother had tested positive for
marijuana and amphetamines upon giving birth to Daughter, who also tested positive for
amphetamines. In response to the report, Department investigator Gina Martinez went to the
hospital where Daughter was born and spoke with Mother, Father, and Dr. Jon Mazursky, a
pediatrician and neonatologist who provided medical care to Daughter following her birth. Dr.
Mazursky expressed to Martinez “significant concerns” about Daughter’s health and welfare if
she were to be released to Mother and Father. Shortly thereafter, the Department filed its
Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit
Affecting the Parent-Child Relationship, seeking emergency removal of Daughter from her
parents and temporary conservatorship of the child. The district court granted the Department
temporary conservatorship of Daughter.
To obtain reunification with Daughter, Mother and Father each were ordered by
the district court to comply with the terms of a Family Service Plan. Among other requirements,
Mother was ordered to complete a drug and alcohol assessment, submit to random drug
screenings, attend NA/AA meetings twice monthly, submit to a psychological evaluation, engage
in individual therapy, complete protective parenting classes, maintain appropriate housing, avoid
criminal activity and criminal associations, attend all court hearings, and maintain monthly
contact with the Department. Father was similarly required to engage in individual therapy,
submit to a psychological evaluation, complete protective parenting classes, attend all court
hearings, maintain monthly contact with the Department, maintain employment, maintain
appropriate housing, and avoid criminal activity and criminal associations. The plan also
required Father to report any interactions with law enforcement to his caseworker within 48
hours and keep the Department up to date on any current or pending criminal case. The service
plan was later modified to include requirements that Mother complete a 90-day inpatient drug
2
treatment program and that Father complete an Outreach Screening Assessment Referral
(OSAR) for substance abuse and undergo drug and alcohol testing.
Father tested positive for methamphetamines and amphetamines in July 2020 and
September 2020 and failed to drug test in August 2020 and November 2020. In December 2020,
Father was arrested for and charged with the offense of continuous violence against a family
member, specifically Mother, for an incident that allegedly occurred in November 2020.
Thereafter, Father failed to complete his services. Mother also failed to complete her services,
including those related to her drug usage. After being discharged from inpatient drug treatment
in August 2020, she tested positive for methamphetamines, amphetamines, and marijuana in
November 2020. Although Mother tested negative for drugs in February and March 2021, she
tested positive again in April 2021 and failed to attend drug tests in June, July, August,
September, and October 2021, which the Department treated as positive tests.
In January 2022, the case proceeded to trial. Witnesses included Mother; Father;
doctors and a social worker from the hospital where Mother gave birth to Daughter; a CPS
investigative supervisor; officers with the Hays County Sheriff’s Office who had responded to
and investigated the report of domestic violence committed by Father against Mother;
Daughter’s foster mother and foster father, who testified that they wanted to adopt Daughter and
explained that she was doing well in their care; Mother’s mother; Father’s father; Steve Russell,
Father’s former parole officer 1; and William O’Brien, a conservatorship caseworker who had
been assigned to Daughter’s case. We discuss the evidence in more detail below as it is relevant
to each parent’s appeal.
1 Father was convicted in December 2014 for the offense of possession with intent to
deliver cocaine in an amount between four and two-hundred grams and was sentenced to ten
years’ imprisonment. Father was paroled for that offense in May 2018.
3
At the conclusion of trial, the jury found that the parental rights of Mother and
Father to Daughter should be terminated. Regarding Mother, the jury found that termination of
Mother’s parental rights was in the best interest of Daughter and that Mother had: (1) knowingly
placed or knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child; (2) 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; and (3) used a controlled substance in a manner that endangered the
health or safety of the child and, after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance. See id. § 161.001(b)(1)(D), (E), (P), (2).
Regarding Father, the jury found that termination of Father’s parental rights was in the best
interest of Daughter and that Father had failed to comply with the provisions of a court order that
specifically established the actions necessary for Father to obtain the return of the child. See id.
§ 161.001(b)(1)(O), (2). The district court rendered judgment in accordance with the jury’s
verdict. These appeals followed.
DISCUSSION
Father’s appeal
In his sole issue on appeal, Father asserts that the evidence is legally and factually
insufficient to support the predicate statutory ground for termination, failure to comply with the
provisions of a court order that specifically established the actions necessary for Father to obtain
the return of the child. See Tex. Fam. Code § 161.001(b)(1)(O). However, Father does not
dispute that he failed to comply with the requirements of his Family Service Plan. Rather, he
contends that his failure to comply was not his fault.
4
Standard of review
“Section 161.001 of the Texas Family Code requires two findings to support
termination of a parent’s legal rights: (1) the parent’s acts or omissions must satisfy an
enumerated statutory ground for termination; and (2) termination must be in the child’s best
interest.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see N.G., 577 S.W.3d at 232; A.C.
v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin 2019, pet.
denied). “Proceedings to terminate the parent-child relationship implicate rights of constitutional
magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d 624, 626
(Tex. 2018). Parental rights have been characterized as “essential,” “a basic civil right of man,”
and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are “perhaps the oldest of the
fundamental liberty interests” protected by the United States Constitution. Troxel v. Granville,
530 U.S. 57, 65 (2000); E.E. v. Texas Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 396
(Tex. App.—Austin 2020, no pet.). “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.”
Santosky v. Kramer, 455 U.S. 745, 759 (1982). “Consequently, termination proceedings should
be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the
parent.” Holick, 685 S.W.2d at 20. “Because termination of parental rights ‘is complete, final,
irrevocable and divests for all time’ the natural and legal rights between parent and child,” a trial
court “cannot involuntarily sever that relationship absent evidence sufficient to ‘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.’” A.C., 560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007; Holick, 685 S.W.2d
5
at 20). “This heightened proof standard carries the weight and gravity due process requires to
protect the fundamental rights at stake.” Id.
“A correspondingly searching standard of appellate review is an essential
procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent
to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally
sufficient if, viewing all the evidence in the light most favorable to the fact-finding and
considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or
conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires
weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”
Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence
is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.
“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant that the
factfinder could not have formed a firm belief or conviction that the finding was true.” Id.
However, “an appellate court’s review must not be so rigorous that the only fact
findings that could withstand review are those established beyond a reasonable doubt.” In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002). “While parental rights are of constitutional magnitude, they
are not absolute.” Id. “Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.” Id.
6
Relevant law
In this case, the statutory basis for terminating Father’s parental rights is Section
161.001(b)(1)(O). “[T]o terminate parental rights under section 161.001(b)(1)(O): (1) the parent
must have failed to comply with the provisions of a court order, which (2) specifically
established the actions necessary for the parent to receive custody of the child from the
Department, which serves as the permanent or temporary conservator of the child.” N.G.,
577 S.W.3d at 237 (citing Tex. Fam. Code § 161.001(b)(1)(O)). Also known as a family-service
plan, an “order referenced by section 161.001(b)(1)(O) is a mandate or directive that establishes
some steps or actions necessary for the parent to obtain return of the child who is in the
Department’s custody.” Id. at 238. “The burden of complying with the court order is on the
parent.” In re S.J.R.-Z., 537 S.W.3d 677, 690 (Tex. App.—San Antonio 2017, pet. denied).
“The Family Code does not provide for substantial compliance with a family-service plan.” In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). “Subsection
(O) looks only for a parent’s failure to comply with a court order, without reference to quantity
of failure or degree of compliance.” In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo
2013, no pet.). Thus, a parent may violate subsection (O) even when the parent had “sporadic
incidents of partial compliance” with the court order. In re J.F.C., 96 S.W.3d 256, 278 (Tex.
2002). On the other hand, “whether a parent has done enough under the family-service plan to
defeat termination under subpart (O) is ordinarily a fact question” decided on a case-by-case
basis. In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). Thus, the factfinder may terminate
parental rights for failure to fully comply with the service plan but is not required to do so as a
matter of law. See id.; see also M.D. v. Texas Dep’t of Fam. & Protective Servs.,
7
No. 03-20-00531-CV, 2021 WL 1704258, at *10 (Tex. App.—Austin Apr. 30, 2021, no pet.)
(mem. op.).
Moreover, a court may not terminate parental rights under Subsection (b)(1)(O)
based on the parent’s failure to comply with a specific provision of a court order if a parent
proves by a preponderance of evidence that: “(1) the parent was unable to comply with specific
provisions of the court order; and (2) the parent made a good faith effort to comply with the
order and the failure to comply with the order is not attributable to any fault of the parent.” Tex.
Fam. Code § 161.001(d). Section 161.001(d) is an affirmative defense to subsection (O) that
places the burden of proof on the parent. See id.; In re M.P., 618 S.W.3d 88, 101–02 (Tex.
App.—Houston [14th Dist.] 2020), rev’d on other grounds, 639 S.W.3d 700 (Tex. 2022); see
also In re G.A., No. 10-21-00001-CV, 2021 WL 1686721, at *2 (Tex. App.—Waco
Apr. 28, 2021, no pet.) (mem. op.). Additionally, the parent must satisfy this burden for each
specific provision of the court order that the State claims he failed to complete. See In re E.F.,
591 S.W.3d 138, 144 (Tex. App.—San Antonio 2019, no pet.). For example, if the State alleges
that a parent failed to complete mandatory drug testing and failed to complete parenting classes,
the parent must prove that he made a good faith effort to complete both drug testing and
parenting classes and that his failure to complete each was through no fault of his own. See id.
Finally, a parent’s incarceration does not ipso facto excuse non-compliance with a
service plan. Although a parent’s incarceration might in some cases excuse a parent’s failure to
complete services unavailable to him during the time of his incarceration, it does not excuse a
parent’s failure to complete services available to him while incarcerated or any failure to comply
with the requirements of the plan before he was incarcerated. See, e.g., D.L.S. v. Texas Dep’t of
Fam. & Protective Servs., No. 03-20-00369-CV, 2020 WL 7041564, at *4 (Tex. App.—Austin
8
Nov. 30, 2020, pet. denied) (mem. op.) (concluding that “to the extent that Father’s failure to
comply with the family-service plan could be explained in part due to his incarceration and the
COVID restrictions at the jail that began in March 2020,” record supported district court’s
finding that, “in the almost five months before his incarceration, Father had not attempted in
good faith to comply with the order and that his failure to comply was attributable at least in part
to his own fault”); W.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00713-CV,
2020 WL 1281643, at *5 (Tex. App.—Austin Mar. 18, 2020, pet. denied) (mem. op.)
(concluding that record supported district court’s finding that parent failed to meet his burden to
show good-faith attempt to comply when evidence “showed that he did not comply with the
court-ordered services during the time period that the case was pending and he was not
incarcerated”); K.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00184-CV,
2017 WL 3585255, at *2 (Tex. App.—Austin Aug. 17, 2017, no pet.) (mem. op.) (evidence was
legally and factually sufficient to support termination under subsection (O) when record showed
that services were available to parent in jail but parent chose not to complete them).
Application
The record reflects that the Family Service Plan was created by the Department
and became an order of the court in May 2020. In December 2020, Father was arrested for
assaulting Mother and incarcerated in the Hays County Jail, where he remained at the time of
trial. Thus, Father had approximately seven months before his incarceration to work on the
service plan. Father testified that he was aware the service plan was an order of the court and
that the Department had discussed with him the terms of the plan. However, he claimed that at
the beginning of the case, the requirements of the plan “confused” him.
9
Caseworker O’Brien testified that he had discussed the Family Service Plan with
Father and that Father “could articulate” to him the requirements of the plan. O’Brien disputed
Father’s claim that the plan “confused” him. He explained:
I was very clear. I had even sent e-mails listing the specific providers, their
numbers. All he had to do was call the number. I sent in the referrals for all these
providers very early on in the case.
So I tell my parents, All you have to do is—I’ve done all the work. You just have
to call the number and schedule the appointments, and that’s all that needs to
be done.
They were also discussed regularly in our permanency hearings throughout the
case. So not only me, but the judge also got to speak to these as well as [Father]
got to speak over these with his attorney. Those conversations I, of course, would
be unaware of, but through me alone I believe he had all the information to be
successful in completing his plan, outside of even having a physical copy of the
plan provided to him from the beginning of the case.
O’Brien testified that he had a “contentious” relationship with Father during the
case, especially in the last month prior to his incarceration: “[B]efore he was incarcerated, my
last month with him was probably the most contentious. He told me twice, once over a Zoom
meeting and once in text, that he was done. He refused to work services. You know, he told me
to go ‘f’ myself multiple times, said he wanted to tear the Department apart brick by brick.”
O’Brien acknowledged that Father had complied with some aspects of the service
plan before his incarceration. Specifically, Father maintained employment and appropriate
housing, completed his psychological evaluation and his OSAR, and attended his scheduled
visits with Daughter. O’Brien also explained that Father was “involved for a time” with
individual therapy: “He attended a few sessions, notified me he didn’t want to do them anymore,
10
took some time off, and then he completed three more sessions before he was incarcerated, so he
completed eight sessions total. They were usually weekly.” However, O’Brien testified that
Father had not been successfully discharged from therapy.
Father also failed to complete protective parenting classes. Although the jail did
not provide those classes, the Department had provided Father with a “jail packet” of parenting
information that O’Brien described as “some literature to read through and to write in.” O’Brien
explained that although the packet is “not a parenting class,” “it at least shows something that
[Father] can work on while in the jail.” O’Brien had not been informed that Father had done any
work on the packet, although Father testified that he “wrote ten pages” of responses to questions
contained in the packet and had provided those responses to his attorney.
Father also failed to maintain contact with O’Brien for three months from July
through October 2020. O’Brien explained that during this time period, Father “didn’t respond to
me sending him in for drug tests or replying to my monthly outreaches for our face-to-face
contacts for the month.” O’Brien added, “Post his incarceration there have been—we don’t meet
monthly because sometimes the jails have troubles or they’re not available, but that’s not due to
him. But beforehand, when it was his responsibility, he missed three months, but he attended the
others.” O’Brien also testified that Father did not report to him his November 12, 2020
interaction with law enforcement (the date when police responded to and began investigating
Father’s alleged assault of Mother) until after Father was arrested for and charged with the
offense in December 2020, which violated the plan’s 48-hour notification requirement.
O’Brien further recounted that Father had failed to take two drug tests in
November 2020. One test date coincided with Veteran’s Day, and Father told O’Brien that he
“assumed everything would be closed so he decided just not to go.” However, O’Brien had
11
called the testing facility and “ensured that they were open” that day. In a text message sent to
Father the following day, O’Brien asked Father if he had showed up for his drug test and said
that if he had not, O’Brien had “extended the referral” so that Father could test that day instead.
In response, Father wrote, “No, I did not. Everything was closed due to Veteran’s Day. Mr.
O’Brien, go fuck yourself.” Father also texted O’Brien, “No longer doing your services. I will
speak to the judge.” Father later added, “I’m no longer doing your services. Prepare for trial.”
Two weeks later, when O’Brien again ordered Father to take a drug test, Father texted him,
“[Y]our trick around the holidays is not going to work, Mr. O’Brien. It’s the day before
Thanksgiving and people have plans with family so shove that drug test up your ass.” There
were at least two other drug tests that Father had missed because he went to the wrong testing
facility, and O’Brien testified that “there were times when [Father] just said, I’m not going.
Most of the times he just would be nonresponsive with me.” Father’s failure to test led O’Brien
to believe that Father was still using drugs. O’Brien explained:
He has only tested twice for the Department. Both times he’s been positive. The
other six or seven times that he refused to test, I can only assume that those are
positive as well as is our policy. We tell parents, if you don’t test for me, I’m just
going to assume that you’re positive otherwise because we have no way to know.
Father, during his testimony, invoked his Fifth Amendment privilege not to incriminate himself
in response to a question as to when he last used methamphetamines. He acknowledged,
however, that he had used methamphetamines in the past.
Regarding the requirement that he attend individual therapy, Father testified that
he had attended “eight sessions or more” and that he had attempted to continue his sessions while
incarcerated but could not do so because the Department had failed to “follow through” with his
12
request to provide him with a therapist. Father also claimed that he had not completed his
parenting classes because he had been misinformed by his caseworker that those classes would
be combined with his individual therapy. Father acknowledged that he “may have missed one or
two” of the court hearings that he was required to attend but claimed that this was the fault of his
“legal representation.” Father also acknowledged that he did not take all the drug tests that he
was ordered to take but claimed that this was because he was ordered to take one test on a
holiday and because, for another missed test, the testing facility had tried to charge him $50 for
the test, but Father “didn’t want to pay $50 so [he] did not take the test.”
In summary, Father presented some evidence that he made a good-faith effort to
comply with some of his services and that his failure to complete those services was not his fault.
Specifically, Father testified that he had engaged in individual therapy before his incarceration
and attempted to continue his therapy while incarcerated, but he could not do so because the
Department failed to provide him with a therapist, even though he had requested one. Father
also testified that he was led by his caseworker to believe that his protective parenting classes
were included in his individual therapy and that, although the jail did not offer such classes,
Father worked on a “jail packet” containing parenting information and returned the packet to his
attorney to give to the Department. Although O’Brien never received a copy of the packet
showing Father’s work, this is nevertheless some evidence that Father made a good-faith effort
to do what he could to improve his parenting skills while in jail.
However, there was other evidence from which the jury could have reasonably
inferred that Father had not made a good-faith effort to complete individual therapy and
protective parenting classes and that his failure to complete those services was at least partly his
fault. Regarding individual therapy, O’Brien testified that Father “attended a few sessions,”
13
notified O’Brien that “he didn’t want to do them anymore” and “took some time off,” and then
completed three more sessions before he was incarcerated, for a total of eight sessions.
According to O’Brien, the sessions were “usually weekly,” so the jury could have reasonably
inferred that if Father had not taken “some time off” and decided that he “didn’t want to do them
anymore,” he could have completed more than eight therapy sessions in the seven months before
his incarceration. Regarding protective parenting, Father did not take any protective parenting
classes in the seven months before his incarceration, and the jury was not required to credit
Father’s claim that he had been led to believe that they were included in his individual
therapy sessions.
Additionally, even if the jury had believed Father’s testimony regarding
individual therapy and protective parenting, Father before his incarceration failed to comply with
other requirements of the service plan, and the jury could have found that Father did not make a
good-faith effort to comply with those requirements. Specifically, Father failed to maintain
contact with O’Brien from July through October 2020, failed to take required drug tests in
November 2020, and failed to notify the Department of his interaction with law enforcement
within 48 hours of that November 12, 2020 interaction, waiting instead until after he had been
arrested and charged in December 2020 with assaulting Mother. The jury could have reasonably
inferred that these failures were entirely Father’s fault, particularly considering his vulgar text
messages to O’Brien in November 2020 stating that he was “no longer doing services.”
On this record, viewing the evidence in the light most favorable to the finding, we
conclude that the evidence is legally sufficient to prove that Father failed to comply with the
provisions of a court order that specifically established the actions necessary for Father to obtain
the return of Daughter. We also conclude that the evidence contrary to the finding is not “so
14
significant that the factfinder could not have formed a firm belief or conviction” that Father
failed to comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return of Daughter. Thus, the evidence is also factually sufficient
to support the finding. For the same reasons, we further conclude that the evidence is legally and
factually sufficient to support the jury’s finding that Father failed to carry his burden to prove, by
a preponderance of the evidence, that he made a good faith effort to comply with the court order
and that his failure to comply with the court order is not attributable to any fault of Father.
We overrule Father’s sole issue on appeal.
Mother’s appeal
Mother’s court-appointed counsel has filed a motion to withdraw and an Anders
brief concluding that her 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)). The 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 &
Regul. Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied). Counsel has
certified to this Court that she has provided her client with a copy of the Anders brief and
informed her of her right to examine the appellate record and to file a pro se brief. No pro se
brief has been filed.
15
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
(1988); Taylor, 160 S.W.3d at 647. In her testimony, Mother admitted that she used marijuana
and methamphetamines while pregnant with Daughter but denied using any drugs after she
learned that she was pregnant. Mother claimed that her positive drug test at the hospital when
she gave birth to Daughter was possibly the result of Daughter’s meconium rupturing inside of
her uterus, thereby “contaminating” the test results. She also claimed that any positive test
results after June 18, 2020, which she claimed was her “sobriety birth date,” were the result of
either her previous drug use before that date or because the test results were somehow inaccurate.
Mother also denied that Father had ever committed domestic violence against her,
including on November 12, 2020, the date of the alleged assault. Other witnesses, however,
including the officers who investigated the assault, testified that Mother had told them that
Father had assaulted her, and photos showing Mother with bruises allegedly from the assault
were admitted into evidence. Mother gave multiple explanations for the bruises, including a dog
attack, anemia, and falling down the stairs. Mother testified that she remained in contact with
Father, as recently as two weeks before trial.
Because Daughter tested positive for methamphetamines at birth, the Department
sought and obtained a finding of aggravated circumstances against Mother. O’Brien testified
that Mother complied with some requirements of her service plan but missed approximately 75%
of her drug tests. Mother also failed to maintain regular contact with O’Brien, with their last
communication being in June 2021. O’Brien testified that the Department’s “greatest concern”
with Mother is her continued use of methamphetamines. O’Brien added that he is more
concerned now than he was at the beginning of the case because Mother had been provided tools
16
to assist in her recovery but continued to choose “drugs over her child.” O’Brien also expressed
concern about Mother continuing to associate with Father even after he was jailed for
assaulting her.
After reviewing the entire record and the Anders brief submitted on Mother’s
behalf, we have found nothing in the record that might arguably support an appeal. Our review
included the district court’s endangerment findings, see Tex. Fam. Code § 161.001(b)(1)(D), (E),
and we have found no issues that could be raised on appeal with respect to those findings, see
In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). We agree with counsel that Mother’s appeal
is frivolous. 2
CONCLUSION
We affirm the district court’s order of termination.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Baker, and Triana
Affirmed
Filed: July 15, 2022
2 We deny counsel’s motion to withdraw. 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 Mother desires to
file a petition for review, counsel should timely file with the Texas Supreme Court “a petition for
review that satisfies the standards for an Anders brief.” See id.
17