in the Interest of J.L.B., a Child ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00143-CV
IN THE INTEREST OF J.L.B., A CHILD
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 69,035-L1, Honorable James W. Anderson, Judge Presiding
December 15, 2021
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
In this accelerated appeal, appellants, Mother and Father, appeal the judgment of
the trial court terminating their parental rights to J.L.B.1 The appellee is the Texas
Department of Family and Protective Services. Mother challenges the sufficiency of the
evidence to support the trial court’s findings under the predicate grounds, and the finding
that termination is in the best interest of the child. Appointed counsel for Father has filed
1To protect the privacy of the parties involved, we refer to the mother of the child as “Mother,” the
father of the child as “Father,” and the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX.
R. APP. P. 9.8(b).
an Anders2 brief in support of a motion to withdraw. We affirm the judgment of the trial
court as to Mother and Father.
Background
The child the subject of this appeal is J.L.B. J.L.B. was born on February 3, 2015.
In October of 2015, the Department became involved with Mother, Father, and
J.L.B. due to allegations of neglectful supervision, domestic violence, and
methamphetamine use after Mother left J.L.B. in the care of B.G., the maternal
grandmother. During the Department’s investigation, Mother blamed B.G. for the
Department’s involvement and raised concerns about B.G.’s care of J.L.B. According to
Mother, B.G. had a lengthy history of substance abuse and was not an appropriate
caregiver for J.L.B. In March of 2017, Mother completed her plan of services and J.L.B.
was returned to her care. As a part of the reunification plan, Mother was not to permit
unsupervised contact between J.L.B. and B.G. or Father.
Sometime after the 2015 case concluded, Mother and J.L.B. moved into B.W.’s
residence. In 2018, Mother relapsed and began using methamphetamine again. She
placed J.L.B. in B.W.’s care. Also in 2018, B.W.’s husband, J.W., was released from
prison and moved into B.W.’s home.
In November of 2020, the Department opened an investigation after receiving a
report alleging neglectful supervision of five-year-old J.L.B. by B.W. and J.W. The report
also alleged concerns of drug use by Mother, B.W., and J.W. The report alleged that law
2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
enforcement officers initiated a traffic stop after observing a vehicle with a defective
taillight ignoring traffic control signs near the Dallas/Fort Worth airport. The investigating
officer noted that the driver, J.W., had bloodshot eyes and slurred speech. J.L.B. was
lying unrestrained in the back seat of the vehicle at the time of the stop. B.W. was seated
in the front passenger seat. After discovering methamphetamine and drug paraphernalia
in the vehicle, J.W. and B.W. were arrested for possession of a controlled substance and
child endangerment. At the time of her arrest, B.W. admitted she had a pipe in her purse
and had used methamphetamine the day prior. Police officers found a baggie in the
passenger-side door containing pills, methamphetamine, and two syringes. They also
found a small bag of methamphetamine on the passenger floorboard. B.W. told the
officers that J.L.B.’s mother lived in Amarillo and that J.L.B. lived with B.W. due to
Mother’s drug use.
During the Department’s investigation, B.W. told the investigator that she had
possession of J.L.B. because Mother was using methamphetamine. The investigator
attempted to locate Mother by using contact information from a prior CPS case, but she
was unsuccessful. The investigator located Father in a federal penitentiary and he
remained there throughout the pendency of this proceeding.
The Department filed its petition seeking a modification3 of conservatorship and
termination of parental rights. Following an adversary hearing, the Department was
appointed temporary managing conservator and J.L.B. was placed with a foster family in
3The clerk’s record contains an agreed order of conservatorship dated March 30, 2017. This order
was entered as a result of the Department’s investigation in 2015.
3
Amarillo.
The associate judge conducted a bench trial through Zoom videoconferencing on
June 14, 2021.4 Although Mother and Father were each represented by counsel, neither
appeared at the final hearing.
The caseworker testified that she spoke to Mother one time during the pendency
of the case, on February 9, 2021. According to the caseworker, Mother did not want
anything to do with the case. Mother told the caseworker that she was living in Oklahoma,
she was in “big trouble” with her probation, and she expected to be sentenced to prison
for a significant amount of time. Mother declined to meet with the caseworker and
declined to work the service plan prepared by the Department. Mother did not answer
subsequent calls from the caseworker.
The Department produced evidence that Mother pled guilty in May of 2015 to a
state jail felony offense of credit card or debit card abuse and was placed on a four-year
deferred adjudication probation. As a part of her probation, Mother was to abstain from
the use of illegal substances and refrain from committing another criminal offense. In
January of 2016, Mother’s probation was modified to include a requirement that she
complete a drug rehabilitation program at an Intermediate Sanction Facility (ISF). In
March of 2021, an amended motion to proceed to adjudication was filed. That motion
alleged that Mother violated the terms of her probation by using methamphetamine “on
4 In response to the threat presented by the COVID-19 pandemic, the Texas Supreme Court issued
numerous emergency orders authorizing anyone involved in any hearing to participate remotely, such as
by videoconferencing. See TEX. GOV’T CODE ANN. § 22.0035(b). One such order was effective as of the
date of this hearing.
4
or about 7/23/2020” and “8/3/2020,” failing to report monthly since September of 2020,
and failing to comply with the terms and conditions of the drug court program.
The Department presented evidence that Mother has not had any contact or
visitation with J.L.B. since J.L.B. was removed from the care of B.W. in November of
2020. The caseworker testified that Mother knew that B.W. had a history of drug usage
and knowingly placed J.L.B. in B.W.’s care. She further testified that it is in the best
interest of J.L.B. to terminate Mother’s parental rights because Mother has admitted to
current methamphetamine use, is not able to provide J.L.B. with a safe and stable home,
did not want to work any services, and is expected to be sentenced to prison.
The Department offered evidence that Father is incarcerated in Colorado and has
not had any contact with J.L.B. for several years. A service plan was created for Father,
but he did not complete any services. According to the caseworker, Father has a long
history with the Department and a significant criminal history. Father’s expected release
date from prison is 2025. In 2018, Father had his parental rights to another child
terminated on endangerment grounds. A certified copy of the termination order was
admitted without objection.
J.L.B. is placed in a foster home in Amarillo. This is the same foster home
placement that J.L.B. had in the 2015 case. The foster family maintained contact with
Mother after the 2015 case concluded and babysat J.L.B. on occasion. Mother contacted
the foster mother when J.L.B. was removed in the current case to see if J.L.B. could be
placed with her. J.L.B. is doing “really well” in this placement, she is “well adjusted,” and
feels safe there. J.L.B. related that she wants to have the same last name as her foster
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parents. She told the caseworker that she is “scared” when she is with B.W. and J.W.
She does not want to live with them because “they fight and hit each other.” If parental
rights are terminated, the foster family plans to adopt J.L.B.
The trial court terminated Mother’s parental rights to J.L.B. on the grounds of
endangering conditions, endangerment, constructive abandonment, and failure to comply
with a court order that established actions necessary to obtain return of the child. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O).5 The trial court also found that
termination was in the best interest of J.L.B. See § 161.001(b)(2). The trial court
terminated Father’s parental rights to J.L.B. on the grounds of previous termination of
parental rights to another child based on endangering conditions or endangerment,
constructive abandonment, and failure to comply with a court order that established
actions necessary to obtain return of the child. See § 161.001(b)(1) (M), (N), (O). The trial
court also found that termination was in the best interest of J.L.B. See § 161.001(b)(2).
The Department was appointed the permanent managing conservator of J.L.B.
In July of 2021, the Honorable James W. Anderson granted Mother’s request for
a de novo hearing and considered the entire record from the prior hearing. In August of
2021, Judge Anderson affirmed the order of the associate judge.
Mother and Father timely appealed the resulting judgment.
5 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”
6
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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). To
give appropriate deference to the factfinder’s conclusions, we must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,
443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we
determine that no reasonable factfinder could have formed a firm belief or conviction that
the matter that must be proven was true, then the evidence is legally insufficient, and we
must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, considering
the entire record, the disputed evidence that a reasonable factfinder could not have
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credited in favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually insufficient. Id.
Applicable Law
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “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.”
§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and
termination may not be based solely on the best interest of the child as determined by the
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trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one
predicate finding under section 161.001[(b)](1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best interest.” In
re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both
legally and factually sufficient to support any alleged statutory ground the trial court relied
upon in terminating the parental rights if the evidence also establishes that termination is
in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any witness. Id. Where
conflicting evidence is present, the factfinder’s determination on such matters is generally
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no
writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, if those determinations
are not themselves unreasonable. Id.9
A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These factors include: (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to the child
now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the child, (6)
the plans for the child by these individuals or by the agency seeking custody, (7) the
stability of the home or proposed placement, (8) the acts or omissions of the parent that
may indicate that the existing parent-child relationship is not proper, and (9) any excuse
for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as
10
well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that a child’s need for permanence through the
establishment of a stable, permanent home has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
Mother’s Appeal
By her appeal, Mother raises two issues. In her first issue, she challenges the
sufficiency of the evidence to support the trial court’s finding that termination was in
J.L.B.’s best interest. In her second issue, Mother challenges the sufficiency of the
evidence to support the predicate grounds for termination. Logic dictates that we address
Mother’s second issue before we address issue one.
Sufficiency of the Evidence Under Section 161.001(b)(1)(D) and (E)
In her second issue, Mother challenges the legal and factual sufficiency of the
evidence to support the termination of her parental rights under subsections
161.001(b)(1)(D), (E), (N), and (O). Ordinarily, only one statutory predicate ground is
required to support termination when there is also a finding that termination is in the child’s
best interest. In re A.V., 113 S.W.3d at 362. However, in light of the Texas Supreme
Court opinion in In re N.G., we review the trial court’s findings under both subsections (D)
and (E), when raised on appeal because of the potential future consequences to Mother’s
parental rights in a future proceeding concerning a different child. In re N.G., 577 S.W.3d
230, 235-37 (Tex. 2019) (per curiam).
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A trial court may order termination of a parent-child relationship if the court finds
by clear and convincing evidence that a parent has knowingly placed or knowingly
allowed a child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child and/or 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. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E)
require proof of endangerment. To “endanger” means to expose the child to loss or
injury or to jeopardize the child’s emotional or physical health. Boyd, 727 S.W.2d at
533. A child is endangered when the environment creates a potential for danger that
the parent is aware of but consciously disregards. J.S. v. Tex. Dep’t of Family &
Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.). Endanger
means more than a threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment, but it is not necessary that the conduct be directed at
the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330-31 (Tex. App.—
Amarillo 2013, no pet.).
While both subsections (D) and (E) focus on endangerment, they differ regarding
the source of the physical or emotional endangerment to the child. See In re B.S.T.,
977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection
(D) requires a showing that the environment in which the child is placed endangered
the child’s physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory
Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a
parent or another person in the home can create an environment that endangers the
physical and emotional well-being of a child as required for termination under
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subsection (D). In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no
pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the child’s
home or with whom the child is compelled to associate on a regular basis in his home
is a part of the “conditions or surroundings” of the child’s home under subsection (D).
In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on
reh’g). The factfinder may infer from past conduct endangering the child’s well-being
that similar conduct will recur if the child is returned to the parent. Id. Thus, subsection
(D) addresses the child’s surroundings and environment rather than parental
misconduct, which is the subject of subsection (E). Doyle, 16 S.W.3d at 394.
Under subsection (E), 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 failure to act. In re M.J.M.L., 31 S.W.3d 347, 350-51 (Tex. App.—San Antonio
2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does not have
to have been directed at the child, nor must actual harm result to the child from the
conduct. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex.
App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex.
App.—Fort Worth 2012, no pet.). The specific danger to the child’s well-being need not
be established as an independent proposition but may be inferred from parental
misconduct. In re B.C.S., 479 S.W.3d at 926. “[A] parent’s use of narcotics and its effect
on his or her ability to parent may qualify as an endangering course of conduct.” In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Because the evidence pertaining to
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subsections 161.001(b)(1)(D) and (E) is interrelated, we may conduct a consolidated
review. In re M.R.J.M., 280 S.W.3d at 503.
The trial court heard evidence that Mother has a five-year history with the
Department due to her ongoing substance abuse and resulting incarcerations. In 2015,
two months after J.L.B.’s birth, Mother pled guilty to a state jail felony and was placed on
community supervision probation for four years. Within a few months of being placed on
community supervision, J.L.B. was removed from Mother’s care due to drug use and
domestic violence in the home of Mother and Father. In January of 2016, Mother was
incarcerated in an ISF facility after she violated the terms of her probation.
After Mother regained possession of J.L.B. in 2017, she left J.L.B. in the care of
B.W. knowing that B.W. was a long-time drug abuser. Additionally, the trial court heard
testimony that Mother is facing significant prison time due to her continued use of
methamphetamine and a motion to adjudicate her felony offense was pending. A parent’s
ongoing drug abuse is conduct that subjects a child to a life of uncertainty and instability,
which endangers the physical and emotional well-being of the child. See In re A.B., 125
S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet. denied). Moreover, “intentional
criminal activity that exposes a parent to incarceration is relevant evidence tending to
establish a course of conduct endangering the emotional and physical well-being of a
child.” In re E.L., No. 09-15-00306-CV, 2016 Tex. App. LEXIS 885, at *16 (Tex. App.—
Beaumont Jan. 28, 2016, pet. denied) (mem. op.). “[A] parent’s decision to leave a child
in the care of a known drug user is relevant to the predicate acts or omissions outlined in
subsections (D) and (E).” In re J.J., No. 07-13-00117-CV, 2013 Tex. App. LEXIS 11194,
at *12 (Tex. App.—Amarillo Aug. 29, 2013, no pet.) (mem. op.). The evidence that a
14
parent allowed a child to be around persons using drugs can support the conclusion that
the child’s surroundings endanger her physical or emotional well-being under subsection
(D) and can qualify as a voluntary, deliberate, and conscious course of conduct
endangering the child’s well-being under subsection (E). See In re C.V.L., 591 S.W.3d
734, 751 (Tex. App.—Dallas 2019, pet. denied).
Having examined the entire record, we find that the trial court could reasonably
form a firm belief or conviction that Mother knowingly placed or knowingly allowed J.L.B.
to remain in conditions or surroundings which endangered her physical or emotional well-
being and engaged in conduct which endangered J.L.B.’s emotional and physical well-
being. The same evidence is factually sufficient to support the trial court’s affirmative
finding. We overrule issue two.
In light of our conclusion regarding the trial court’s findings on subsections (D) and
(E), we need not address the findings under subsections (N) and (O). In re A.V., 113
S.W.3d at 362.
Best Interest
In her remaining issue, Mother challenges the factual and legal sufficiency of the
evidence to support the best interest finding made under section 161.001(b)(2).
The trial court was allowed to consider evidence in support of the predicate
grounds in making the best interest determination. See In re E.C.R., 402 S.W.3d at 249.
That evidence established that Mother has a history with the Department since 2015, a
substance abuse problem due to her use of methamphetamine, a criminal history
including credit card abuse, violation of her community supervision resulting in
15
incarceration, and leaving J.L.B. in the custody of B.W., a longtime drug abuser. The
statutory grounds for termination are significant in our review of the best interest finding.
The court also heard evidence from which it could have concluded that Mother was
largely disinterested in J.L.B. The caseworker testified that she offered Mother a family
plan of service and visitation with J.L.B., but Mother refused any involvement in the case.
The factfinder can infer from a parent’s failure to take the initiative to utilize the available
programs that the parent did not have the ability to motivate herself in the future. In re
S.P., 509 S.W.3d 552, 558 (Tex. App.—El Paso 2016, no pet.). A trial court is permitted
to consider a parent’s failure to comply with a family plan of service in its best interest
determination. In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.).
This evidence weighs heavily in favor of the best interest finding.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
Mother did not testify at the termination hearing or offer any specifics of her plans for
J.L.B. The record does not indicate that Mother had any bond with J.L.B. The Department
caseworker testified that Mother refused to engage in any services and has had no recent
contact with the Department. Further, Mother admitted to the caseworker she had
violated her probation and was looking at significant jail time. Conversely, the foster family
is providing a drug-free environment and the stability, structure, security, and consistency
that J.L.B. needs. The evidence shows that J.L.B. is strongly bonded with her foster
family and she wants to have their last name. This is the same foster family that cared
16
for J.L.B. when the Department was involved in 2015. J.L.B. is doing well in the home
and the foster family plans to adopt J.L.B. According to the caseworker, J.L.B. is thriving
in the home and she is well cared for in this placement. When children are too young to
express their desires, the factfinder may consider whether the children have bonded with
the foster family, are well-cared for by them, and have spent minimal time with a parent.
In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Further, the Department’s plan for J.L.B.’s adoption provides permanence and stability
for J.L.B. and weighs heavily in favor of the trial court’s conclusion that termination of
Mother’s parental rights is in the best interest of J.L.B.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Mother’s parental rights is in the
best interest of J.L.B. We overrule Mother’s issue challenging the best interest
determination.
Father’s Appeal
Pursuant to Anders, Father’s court-appointed appellate counsel has filed a brief
certifying that he has diligently searched the record and has concluded that the record
reflects no arguably reversible error that would support an appeal. 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.); 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
17
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”).
Counsel certifies that he has diligently researched the law applicable to the facts
and issues and discusses why, in his professional opinion, the appeal is frivolous. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). By his Anders brief, counsel
concludes that reversible error is not present because Father had the benefit of
appointed, effective counsel, and sufficient evidence supports termination under
subsections (M), (N), and (O) in the trial court’s order. See In re A.V., 113 S.W.3d at 362;
In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.) (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). Counsel has complied with the
requirements of Anders by providing a copy of the brief, motion to withdraw, and appellate
record to Father, and notifying him of his right to file a pro se response if he desired to do
so. Kelly v. State, 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). Father has not filed a response to his counsel’s Anders brief.
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, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford
v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Our independent review supports
termination under subsection (M). In re A.C., 394 S.W.3d 633, 641 (Tex. App.—Houston
[1st. Dist.] 2012, no pet.). Based on this record, we conclude that a reasonable factfinder
could have formed a firm belief or conviction that grounds for termination existed, and that
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termination of Father’s parental rights was in the best interest of J.L.B. See
§ 161.001(b)(1), (2). After reviewing the record and the Anders brief, we agree with
counsel that there are no plausible grounds for reversal.
We affirm the trial court’s order terminating Father’s parental rights to J.L.B.
Conclusion
Having overruled both of Mother’s issues and finding no plausible grounds for
reversal in Father’s appeal, we affirm the judgment of the trial court terminating Mother’s
and Father’s parental rights.
Judy C. Parker
Justice
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