S. J. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00910-CV
S. J., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 303,297-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant S.J. (the mother) appeals from the district court’s order, following a
bench trial, terminating her parental rights to three of her children. We will affirm the district
court’s order.
The case began in September 2018 when the mother’s youngest child tested
positive after birth for methamphetamines. The mother also tested positive for
methamphetamines. Based on the test results and other allegations against the mother, the Texas
Department of Family and Protective Services (the Department) filed this suit for protection of
the children.
During the bench trial, the district court heard evidence that while the case was
ongoing, the mother tested positive for methamphetamines on November 15, 2018, January 30,
2019, May 8, 2019, and June 19, 2019. On the June 19 test, the mother also tested positive for
amphetamines, cocaine, and marijuana. Additionally, the mother tested positive for
methamphetamines on October 10, 2019, less than two weeks before the bench trial. The mother
claimed that the positive test result on May 8 was caused by prescription medication that she had
taken for a “bug bite,” but she offered no explanation for the most recent positive test result on
October 10. By testing positive for drugs, the mother had violated the conditions of her Family
Service Plan to obtain reunification with the children.
The Department had placed two of the children with a foster family and the third
child with her paternal grandmother. A Department caseworker testified that the grandmother
wanted to adopt the child who was in her care and that the foster parents wanted to adopt the
children who were in their care. The caseworker also testified that the children in foster care
were bonded with each other and loved their foster mother.
At the conclusion of trial, the district court found that termination of the mother’s
parental rights was in the best interest of the children and that the mother had: (1) engaged in
conduct or knowingly placed the children with persons who engaged 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 followed.
The mother’s court-appointed counsel on appeal has filed an Anders brief,
concluding that the appeal is frivolous and without merit. See Anders v. California, 386 U.S.
738, 744 (1967); 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
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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 & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin
2005, pet. denied). The mother’s counsel has certified to this Court that she has provided the
mother 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.
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 the mother’s behalf. We have found nothing in
the record that might arguably support an appeal, and we agree with counsel that the appeal is
frivolous. Accordingly, we affirm the district court’s order terminating the mother’s parental
rights. We deny counsel’s motion to withdraw.1
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Rose, Justices Baker and Triana
Affirmed
Filed: March 31, 2020
1
Counsel’s obligation to the mother has not yet been discharged. See In re P.M., 520
S.W.3d 24, 27 (Tex. 2016) (per curiam). If the mother, after consulting with counsel, 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. at 27-28.
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