in the Interest of X.G., A.A., M.A., and A.A., Children ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00194-CV
IN THE INTEREST OF X.G., A.A., M.A., AND A.A., CHILDREN
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 71,834-L1, Honorable Jack M. Graham, Presiding
August 22, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, C.A., appeals the trial court’s order terminating his parental rights to his
children, X.G., A.A., M.A., and A.A.1 Appointed counsel for C.A. has filed an Anders2 brief
in support of a motion to withdraw. Finding no arguable grounds for appeal, we affirm the
judgment of the trial court.
1 To protect the privacy of the parties involved, we refer to them by their initials.
See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). The
mother’s rights were terminated at the same proceeding after she executed an affidavit
voluntarily relinquishing her parental rights to her children. TEX. FAM. CODE ANN.
§ 161.001(b)(1)(K) (West 2018). The mother has not appealed.
2 See Anders v. California, 386 U.S. 738 (1967).
Background
C.A., 37 years old, and the mother are the parents of four children, X.G., A.A.,
M.A., and A.A. By the time of the final hearing, X.G. was eleven years of age, A.A. was
eight, M.A. was seven, and the younger A.A. was one. All four children were living with
their maternal grandparents.
The Texas Department of Family and Protective Services became involved with
the family in March 2017 when it received a report concerning C.A. At that time, C.A. was
on deferred adjudication community supervision for burglary of a building and burglary of
a habitation. C.A. tested positive for marijuana and methamphetamine on a community
supervision drug screen. The next month, the younger A.A. was born. Both the mother
and A.A. tested positive for methamphetamine at the time of the child’s birth. As a result,
the Department conducted a drug screen on the three older children. M.A. tested positive
for methamphetamine. Two days after the younger A.A. was born, the Department filed
pleadings that included an original petition for protection of a child, for conservatorship
and for termination in suit affecting the parent-child relationship and a pleading requesting
emergency removal of the children from the care of their parents. After a hearing, the
children were removed and placed in the care of their maternal grandparents.
The final hearing was held in April 2018. A Department caseworker testified to the
positive drug tests and allegations of neglectful supervision by C.A. She also testified to
C.A.’s admissions of drug use to his community supervision officer and his convictions
and resulting sentences based on those admissions.
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C.A. also testified. He admitted to his twelve-year history of methamphetamine
use. He told the court that in June 2017, he was sent to a three-month intensive
supervision facility to address his drug use. He completed the program but, on release,
continued to use drugs. In October 2017, C.A. admitted methamphetamine use to his
community supervision officer, who supervised his probation in the two criminal cases.
He was later arrested, and his community supervision was revoked in both cases. He
was sentenced to twelve months in a state jail facility in one case and three years in the
Institutional Division of the Texas Department of Criminal Justice in the other. At the time
of the final hearing, C.A. was incarcerated in a state jail facility. He told the court he had
been sober for 126 days, loves his children, knows he “messed up” and would “like to try
to get a chance to get my children back one time.” He said, “I just haven’t had enough
time to get them back.”
The court also heard testimony from the maternal grandfather that he and his wife
have been involved in the children’s lives since birth. The children were doing well and
the grandparents planned to care for them “long term.” The grandfather agreed that drug
addiction had been part of the parents’ lives for some time and that they had “given them
chances and chances.” The grandfather agreed he and his wife would continue to keep
the children safe from their parents’ drug abuse.
After the bench trial, the trial court found there was clear and convincing evidence
to support the Department’s allegations under four of the predicate grounds for
termination set forth in the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(E), (O) and (Q) (West 2018) (identifying predicate grounds for termination of parental
rights); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.) (only one
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predicate ground required to terminate parental rights under section 161.001(b)(1)). The
trial court also found that termination was in the best interest of the children. TEX. FAM.
CODE ANN. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (evidence of acts
or omissions used to establish grounds for termination under section 161.001(b)(1) may
be considered in determining best interest of children).
C.A. filed notice of appeal challenging the trial court’s order of termination.
Analysis
Pursuant to Anders, C.A.’s court-appointed appellate counsel has filed a brief
certifying that she has conducted a conscientious examination of the record and has
concluded that the record reflects no arguably reversible error that would support an
appeal. In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig.
proceeding); Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52, 56
(Tex. App.—Corpus Christi 2003, no pet.) (“[W]hen appointed counsel represents an
indigent client in a parental termination appeal and concludes that there are no non-
frivolous issues for appeal, counsel may file an Anders-type brief”); In re L.J., No. 07-14-
00319-CV, 2015 Tex. App. LEXIS 427, at *2-3 (Tex. App.—Amarillo Jan. 15, 2015, no
pet.) (mem. op.) (noting same).
Counsel certifies that she has diligently researched the law applicable to the facts
and issues and discusses why, in her professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). In compliance with Anders,
counsel has provided to C.A. a copy of the brief, motion to withdraw, and appellate record
and notified him of his right to file a pro se response if he desired to do so. Kelly v. State,
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436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In re L.V., No. 07-15-00315-CV, 2015
Tex. App. LEXIS 11607, at *2-3 (Tex. App.—Amarillo Nov. 9, 2015) (order) (per curiam).
C.A. has not filed a response.
Due process requires that termination of parental rights be supported by clear and
convincing evidence. In the Interest of D.P., No. 07-16-00343-CV, 2017 Tex. App. LEXIS
1820, at *5-6 (Tex. App.—Amarillo, Mar. 2, 2017, no pet.) (mem. op.) (citing In re E.M.E.,
234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.)). This “intermediate standard falls
between the preponderance of the evidence standard of civil proceedings and the
reasonable doubt standard of criminal proceedings.” Id. (citing In re E.M.E., 234 S.W.3d
at 73). It is defined as 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. Id. (citing TEX. FAM. CODE ANN. § 101.007 (West 2008)).
Counsel’s brief identifies potential appellate issues, including the sufficiency of the
evidence to support the grounds on which the trial court terminated C.A.’s parental rights.
Reviewing the legal sufficiency of the evidence supporting parental termination requires
us to review “all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that its
finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In a factual sufficiency
review, we are to determine whether, on the entire record, a fact finder reasonably could
form a firm conviction or belief about the truth of the matter on which the movant bore the
burden of proof. In re C.H., 89 S.W.3d at 28-29; In re T.B.D., 223 S.W.3d 515, 517 (Tex.
App.—Amarillo 2006, no pet.).
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By her Anders brief, counsel demonstrates that reversible error is not present
because sufficient evidence supports termination under subsections D, E, and Q. In
particular, it is clear C.A. knowingly engaged in criminal conduct that has resulted in his
conviction of an offense and confinement and inability to care for the children for not less
than two years from the date the Department filed its petition in April 2017. In re J.J., No.
14-11-00652-CV, 2012 Tex. App. LEXIS 1514, at *14-17 (Tex. App.—Houston [14th Dist.]
Feb. 28, 2012, no pet.) (mem. op.) (discussing sufficiency of evidence to support
subsection Q). See also In re A.V., 113 S.W.3d 355, 361; In re T.N., 180 S.W.3d at 384
(only one predicate finding under section 161.001(b)(1) is necessary to support
termination when there is also a finding that termination is in a child’s best interest). The
judgment reflecting C.A.’s conviction for burglary of a habitation shows an offense date in
October 2016 and shows a sentence of three years’ confinement in the Institutional
Division was imposed on February 8, 2018. While C.A. indicated his belief during his
testimony that he would be released in December 2018, the trial court could have found
that release date was speculative given the three-year sentence for his burglary
conviction. And, in his testimony, C.A. expressed no plan for the care of his children
during his incarceration. See In re A.R., No. 02-14-00237-CV, 2015 Tex. App. LEXIS
382, at *7-11 (Tex. App.—Fort Worth Jan. 15, 2015, no pet.) (mem. op.) (citing In re
H.R.M., 209 S.W.3d 105, 108-09 (Tex. 2006) (parole eligibility and potential release date
within the two-year period is relevant but those dates are “inherently speculative”).
As in a criminal case, we have independently examined the entire record to
determine whether there is a non-frivolous issue that might support the appeal. See
Penson v. Ohio, 488 U.S. 75, 82-83 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.
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Crim. App. 1991). Based on this record, we conclude that a reasonable factfinder could
have formed a firm belief or conviction that sufficient evidence existed to support at least
one ground for termination, and that termination of C.A.’s parental rights was in the
children’s best interest. See In re A.V., 113 S.W.3d at 362; In re T.N., 180 S.W.3d at 384.
After reviewing the record and the Anders brief, we agree with counsel there are no
plausible grounds for reversal.
Conclusion
The trial court’s order terminating C.A.’s parental rights to his children is affirmed.3
James T. Campbell
Justice
3 We call counsel’s attention to the continuing duty of representation through the
exhaustion of proceedings, which may include the filing of a petition for review. Counsel
has filed a motion to withdraw, on which we will take no action. In re P.M., 520 S.W.3d
24, 27 (Tex. 2016) (per curiam).
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