in the Interest of M. A. C., a Child ( 2020 )

NO. 12-19-00286-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE INTEREST OF
§ COUNTY COURT AT LAW NO. 2
M.A.C., JR., A CHILD
§ ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
J.S.C. appeals the termination of her parental rights. J.S.C.’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
M.A.C. 1 is the father and J.S.C. is the mother of M.A.C., Jr. On May 2, 2018, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of M.A.C., Jr., for conservatorship, and for termination of J.S.C.’s and M.A.C.’s
parental rights. The Department was appointed temporary managing conservator of the child, and
the parents were granted limited access to, and possession of, the child.
At trial, Knicole Porter, an investigator with the Department, testified that she received an
intake report on April 11, 2018, alleging neglectful supervision of M.A.C., Jr. by his parents. At
that time, M.A.C., Jr. was two months old. The allegations included concerns that both parents
abused methamphetamine, M.A.C. cooked methamphetamine in the home, domestic violence
occurred in the home, and the parents suffered from untreated mental health issues. According to
Porter, the baby was safe and living with his maternal grandparents. Porter contacted J.S.C. at
1
M.A.C.’s appeal of the termination of his parental rights has been delivered by this Court in a separate
opinion.
work and she admitted that the night before, she and M.A.C. used methamphetamine while the
baby was in their care. J.S.C. also admitted to domestic violence between the parents, including a
fight that occurred when she tried to leave. J.S.C. said that at one point, M.A.C. threatened to
“beat her like a man” if she left with the baby. Porter said that the domestic violence appeared to
be ongoing.
According to Porter, the Department made a parent-child safety placement in which J.S.C.
agreed to allow the baby to stay with the maternal grandparents and the Department would conduct
a planned removal of the baby. Porter was concerned for the safety of both the baby and J.S.C.
due to domestic violence. She stated that the actions of J.S.C. and M.A.C. placed M.A.C., Jr. in
danger. J.S.C. tested positive for amphetamine, methamphetamine, alprazolam, and marijuana.
In a previous case with the Department, M.A.C.’s and J.S.C.’s older daughter tested
positive for methamphetamine at birth and aspirated while in the womb. Consequently, the
daughter was in the hospital for “quite some time.” J.S.C. also tested positive for
methamphetamine during that time. According to Porter, J.S.C. worked services and J.S.C.’s
daughter was returned to J.S.C. and M.A.C., but was removed “very shortly thereafter,” or within
the same month. The child was removed after J.S.C. and M.A.C. were arrested and jailed on drug
charges. During the incident that led to the arrest, J.S.C. was discovered trying to throw drugs,
including K2, into the backseat of her vehicle to hide them, and the drugs were found on her
daughter. Her daughter tested positive for cocaine and was placed with, and later adopted by,
maternal relatives.
Regarding her service plan, J.S.C. completed her psychological and psycho-social
evaluation, and attended two Alcohol and Drug Abuse Council (ADAC) screenings. Her first
ADAC screening recommended outpatient rehabilitation. She began rehabilitation, but did not
complete it. Nor did she complete her counseling, having stopped two or three sessions before
completion. However, after July 2018, she consistently tested negative for drugs. Her previous
Department caseworker, Christopher Barley, stated that he referred J.S.C. for services, but she did
not complete them. She had regular contact with Barley, but struggled to maintain a residence and
employment. Although J.S.C. was always employed, she changed jobs frequently for different
reasons such as obtaining a schedule that she wanted. J.S.C.’s residence usually depended on the
status of her relationship with M.A.C., sometimes living with him or sometimes living in a
women’s shelter.
2
According to Department caseworker, Lindsay Waterman, J.S.C. refused to provide an
address and was not cooperative after Waterman took the case in March 2019. Waterman did not
know if J.S.C. participated in a Burke Center evaluation or followed the Center’s recommendations
as required by her service plan. Barley believed that J.S.C. wanted to be a good parent, but he did
not believe that she could abandon her relationship with M.A.C. or that she had the capabilities, at
that time, to become a successful parent. According to Waterman and Barley, J.S.C. was more
cooperative and willing to work services when M.A.C. was in jail and or she had left him. At that
point, Barley stated, J.S.C. made her appointments and participated, somewhat, in her services.
J.S.C.’s visitations were sporadic. However, J.S.C. did not attend visitations with M.A.C.,
Jr. from November 2018 until June 7, 2019. Waterman stated that the June 7, 2019, visitation was
“a little harder than anybody anticipated.” She described the child as being in a room with
strangers and that he was uncomfortable. The evidence also showed the caseworkers were
concerned about domestic violence between the parents. According to Barley, J.S.C. went to a
women’s shelter because she did not feel safe living with M.A.C. Barley stated that on one
occasion, J.S.C. appeared with a busted lip and admitted that M.A.C. hit her in the face. J.S.C.
characterized the incident as “just a little fight” and not a big deal. One caseworker described
J.S.C.’s and M.A.C.’s relationship as “toxic” and J.S.C.’s maternal stepfather stated that the
intensity of their arguments disturbed him. The stepfather stated that he had to retrieve J.S.C. from
M.A.C.’s house numerous times in the middle of the night.
J.S.C. claimed that most of her previous admissions about domestic violence and drug
abuse were lies. Although she admitted that M.A.C. abused drugs, J.S.C. denied any violence
between them. According to J.S.C., she lied in order to live at the women’s shelter, telling them
that M.A.C. was abusive and used cocaine. If she told the court that she was scared of M.A.C., it
was not true. She did not take M.A.C. seriously when he threatened to “beat her like a man.” At
trial, she denied that M.A.C. ever used cocaine and claimed that she had not used cocaine since
she was a teenager. She could not explain why her older daughter tested positive for cocaine.
Further, she stated that she lied to Porter when she claimed that both parents used
methamphetamine while in possession of the child.
Two months before trial, the parents were married by their pastor and attempted to
complete their service plan, obtain a residence and employment, and visit their child. J.S.C.
testified that the parents had a van and were purchasing land and a mobile home in the week after
3
trial. The evidence shows, however, that the parents’ pastor owns the van. Additionally, their
pastor was purchasing the land and mobile home and would allow the parents to live there and pay
it off.
Both caseworkers and the CASA volunteer recommended that termination of J.S.C.’s
parental rights was in the best interest of the child. According to Waterman, J.S.C.’s history
indicated her instability. Barley did not believe that J.S.C. was capable of providing the stability
M.A.C., Jr. needed.
At the conclusion of a bench trial, the trial court found that J.S.C. engaged in one or more
of the acts or omissions necessary to support termination of her parental rights under subsections
(D), (E), (N), (O), and (P) of Texas Family Code Section 161.001(b)(1). The trial court also found
that termination of the parent-child relationship between J.S.C. and M.A.C., Jr. is in the child’s
best interest. Based on these findings, the trial court ordered that the parent-child relationship
between J.S.C. and M.A.C., Jr. be terminated. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
J.S.C.’s counsel filed a brief in compliance with Anders, stating that counsel diligently
reviewed the appellate record and is of the opinion that the record reflects no reversible error and
that there is no error upon which an appeal can be predicated. This court previously held that
Anders procedures apply in parental rights termination cases when the Department moved for
termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.). In
compliance with Anders, counsel’s brief presents a professional evaluation of the record
demonstrating why there are no reversible grounds on appeal, and referencing any grounds that
might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mays v. State,
904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).
In our duties as a reviewing court, we must conduct an independent evaluation of the record
to determine whether counsel is correct in determining that the appeal is frivolous. See Stafford
v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We carefully
reviewed the appellate record and counsel’s brief. We find nothing in the record that might
arguably support the appeal. 2 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160
S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied).
2
In compliance with Kelly v. State, counsel for J.S.C. certified that he provided her with a copy of his brief,
4
DISPOSITION
We agree with J.S.C.’s counsel that the appeal is wholly frivolous. However, we overrule
counsel’s motion to withdraw. In In re P.M., the Texas Supreme Court held that the right to
counsel in suits seeking the termination of parental rights extends to “all proceedings in [the Texas
Supreme Court], including the filing of a petition for review.” 520 S.W.3d 24, 27 (Tex. 2016).
Accordingly, counsel’s obligation to J.S.C. has not yet been discharged. See id. If J.S.C., 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; see also A.C. v. Tex. Dep’t of Family & Protective Servs., No. 03-16-00543-CV,
2016 WL 5874880, at *1 n.2 (Tex. App.—Austin Oct. 5, 2016, no pet.) (mem. op.). We affirm
the trial court’s judgment. See TEX. R. APP. P. 43.2.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 12, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
informed her of her right to file a pro se response, and took concrete measures to facilitate her review of the appellate
record. 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). J.S.C. was given time to file her own brief, but the time for
filing such brief has expired and no pro se brief has been filed.
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 12, 2020
NO. 12-19-00286-CV
IN THE INTEREST OF M.A.C., JR., A CHILD
Appeal from the County Court at Law No. 2
of Angelina County, Texas (Tr.Ct.No. CV-00282-18-05)
THIS CAUSE came to be heard on the appellate record and brief filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.