in the Interest of J.S. and B.R., Children ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00008-CV
IN THE INTEREST OF J.S. AND B.R., CHILDREN
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 88,044-E, Honorable Carry Baker, Presiding
April 9, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Father, appeals the trial court’s order terminating his parental rights to
his daughters, J.S. and B.R.1 Appointed counsel for Father has filed an Anders2 brief in
support of a motion to withdraw. Finding no arguable grounds for appeal, we reform the
judgment of the trial court and affirm as reformed.
1 To protect the privacy of the parties involved, we will refer to the appellant as “Father,” to the
children’s mother as “Mother,” and to the children by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West
Supp. 2019); TEX. R. APP. P. 9.8(b). Mother’s parental rights were also terminated in this proceeding.
Mother does not appeal.
2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Factual and Procedural Background
Mother, Father, and their children, J.S. and B.R., have been involved with the
Texas Department of Family and Protective Services since January of 2016. In July of
2017, Mother and Father entered into an agreed final order in a suit affecting the parent-
child relationship, appointing the Department as the permanent managing conservator of
J.S. and B.R. In February of 2019, the Department filed its petition for termination of
parental rights because of allegations of Father’s continuing criminal conduct,
abandonment of the children, and lack of progress with the court-ordered family plan of
service.
Father was incarcerated in the Potter County Detention Center at the time of trial
and stated that he was unable to provide J.S. and B.R. with a safe place to live. The
Department produced evidence that Father received deferred adjudication community
supervision for assault family violence for an incident that occurred in May of 2016.
Mother was the victim of that assault. Father was arrested for another incident of family
violence assault against Mother in August of 2017 and also received deferred adjudication
community supervision for that offense. Father was incarcerated from August of 2017
until March of 2018. Also in March, Father signed his family plan of services and then
“went on the run” because he was “in trouble for theft.” In May of 2019, Father was
arrested for violating his community supervision and for charges related to a felony theft.
In July 2019, Father’s community supervision was revoked and he was sentenced to the
Texas Department of Criminal Justice for three years. Father did not work any services
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in his plan of service and the last time that he visited with the children was in August of
2017.
J.S. and B.R. are placed with a maternal cousin who plans to adopt them if parental
rights are terminated. J.S. and B.R. appear to be doing “very well” in this placement. J.S.
is five years old and attends speech therapy and pre-kindergarten. B.R. is four years old
and also receives speech therapy. The Department has no concerns about the
placement.
The trial court terminated Father’s parental rights to J.S. and B.R. on the grounds
of endangerment, constructive abandonment, failure to comply with a court order that
established actions necessary to retain custody of the children, and engaging in criminal
conduct resulting in confinement.3 See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O),
(Q) (West Supp. 2019).4 The trial court also found that termination was in the best interest
of J.S. and B.R. See § 161.001(b)(2).
Law and Analysis
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 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
3 The grounds listed in the order of termination also included a finding on subsection (D),
endangering conditions. However, the judge did not grant termination on this ground.
4 Further references to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”
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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.) (same).
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 sufficient evidence supports
termination under subsections (E), (O), and (Q) in the trial court’s order. See In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003); 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.
Due process requires that termination of parental rights be supported by clear and
convincing evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.)
(citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This standard falls between the civil
preponderance of the evidence standard and the reasonable doubt standard of criminal
proceedings. Id. at 73. Clear and convincing evidence is that “measure or degree of
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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 (West 2019). 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 at 266. In a factual sufficiency review, we are to determine whether,
on the entire record, a factfinder could reasonably 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 17, 28-29 (Tex. 2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo
2006, no pet.).
In light of the Texas Supreme Court opinion in In re N.G., we also review the trial
court’s findings under section 161.001(b)(1)(E), because of the potential future
consequences to Father’s parental rights concerning a different child. In re N.G., 577
S.W.3d 230, 235-37 (Tex. 2019) (per curiam);5 In re M.M., 584 S.W.3d 885, 889 (Tex.
App.—Amarillo 2019, pet. denied) (mem. op.).
5 Subsection (b)(1)(M) permits parental rights to be terminated if the parent has “had his or her
parent-child relationship terminated with respect to another child based on a finding that the parent’s
conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another
state.” In re N.G., 577 S.W.3d at 234 (quoting section 161.001(b)(1)(M) of the Family Code). Because
findings based on subsections (b)(1)(D) or (E) may become “a basis to terminate [a] parent’s rights to other
children,” the Supreme Court reasoned that when a parent presents an appellate issue related to
subsections (b)(1)(D) or (E) and the appellate court does not address the issue on appeal, the appellate
court “eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to
other children.” Id. at 235. According to the Supreme Court, “the parent’s fundamental liberty interest at
stake outweighs the state’s interest in deciding only what is necessary for final disposition of the appeal.”
Id. at 237. “Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent
has presented the issue to the court thus violates the parent’s due process and due course of law rights.”
Id.
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Section 161.001(b)(1)(E) permits termination when clear and convincing evidence
shows that the parent has engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the child’s physical or emotional well-being.
See § 161.001(b)(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical or emotional well-being was the direct
result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,
121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination under
subsection (E) must be based on more than a single act or omission. A voluntary,
deliberate, and conscious course of conduct by a parent is required. Id. To support a
finding of endangerment, the parent’s conduct does not necessarily have to be directed
at the child, nor is the child required to actually suffer injury. Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). A factfinder is also not limited to consideration
of the parent’s actions before the child has been removed by the Department; any actions
or inactions occurring before and after a child was born may be considered, including
evidence of a parent’s drug use or propensity for violence. In re J.O.A., 283 S.W.3d 336,
345 (Tex. 2009).
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). 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 termination of Father’s parental rights was in the best interest
of J.S. and B.R. See § 161.001(b)(1), (2) (West Supp. 2019); In re M.M., 584 S.W.3d at
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890. Specifically, we conclude the trial court’s findings with respect to subsections (E)
and (N) and its finding with respect to the best interest of J.S. and B.R. were supported
by the evidence.6
After reviewing the record and the Anders brief, we agree with counsel that there
are no plausible grounds for reversal. However, a reformation of the order of termination
is warranted to conform to the trial court’s pronouncement and the pleadings. We reform
the order of termination to delete the findings as to subsections (D) and (Q).
Accordingly, the trial court’s order terminating Father’s parental rights to J.S. and
B.R. is affirmed as reformed.7
Judy C. Parker
Justice
6 The order of termination lists the predicate grounds as subsections (D), (E), (N), (O), and (Q).
Our examination of the record reveals that the associate judge pronounced termination based on
subsections (E), (N), (O), and (Q), and that the Department did not plead subsection (Q) as a ground for
termination. We reform the order of termination so that it accurately reflects the court’s pronouncement
and the pleadings of the Department. Ruiz v. Tex. Dep’t. of Family & Protective Servs., 212 S.W.3d 804,
814 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“[A] parental rights termination order can be upheld only
on grounds both pleaded by [DFPS] and found by the trial court.”).
7We 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. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).
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