Opinion
No. 07-15-00393-CV
03-29-2016
IN THE INTEREST OF J.R.Y. AND J.R.Y., CHILDREN
On Appeal from the 223rd District Court Gray County, Texas
Trial Court No. 37,920, Honorable Jack M. Graham, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
The father and the mother appeal the trial court's final order terminating their parental rights to their children, J.R.Y.-1 and J.R.Y.-2. Prior to trial, both parents executed voluntary, irrevocable affidavits relinquishing their parental rights. The mother argues the evidence offered at trial by appellee, the Texas Department of Family and Protective Services, was factually insufficient to prove termination was in the children's best interest. The father's court-appointed attorney has filed a motion to withdraw from the representation supported by an Anders brief. We will overrule the mother's issue, grant the father's counsel's motion to withdraw, and affirm the order of the trial court.
To protect the children's privacy, we refer to appellants as "the father" and "the mother." We will identify the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8 (a),(b).
See TEX. FAM. CODE ANN. § 161.103 (West Supp. 2015).
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). The Anders procedures are applied in appeals of orders terminating parental rights. See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet).
Background
On October 24, 2014, the Department filed its "Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship." By order of the same date it was named temporary managing conservator of the children. The children were placed in a foster home.
The trial court conducted a final hearing on September 30, 2015. At the time of hearing, J.R.Y.-1 was six years old and J.R.Y.-2 was three. Prior to the hearing, the father and the mother executed irrevocable affidavits voluntarily relinquishing their parental rights to J.R.Y.-1 and J.R.Y.-2. The affidavits were admitted into evidence at the hearing without objection. By their affidavits, the father and the mother stated termination of the parent-child relationship was in the best interest of the children. The affidavits also contained each parent's designation of the Department as the children's managing conservator and acknowledgement that by executing the affidavits they permanently relinquished all parental rights to the Department. The children's caseworker and the foster father testified briefly for the Department and were the only hearing witnesses.
The father and the mother each timely noticed an appeal. As noted, the mother's counsel filed a brief on the merits while the father's counsel filed a motion to withdraw supported by an Anders brief.
Analysis
The Mother's Appeal
In her only issue, the mother argues the evidence was factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the children.
The trial court was empowered to order termination of the parent-child relationship on findings based on clear and convincing evidence that the mother timely executed an irrevocable affidavit of relinquishment of her parental rights and that termination was in the best interest of J.R.Y.-1 and J.R.Y.-2. TEX. FAM. CODE ANN. § 161.001(b)(1)(K), (2) (West Supp. 2015). Clear and convincing evidence 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." TEX. FAM. CODE ANN. § 101.007 (West 2014). In reviewing the evidence for factual sufficiency, we give due deference to the fact finder's findings and do not supplant its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a fact finder 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 (Tex. 2005); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no pet.).
The law recognizes a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2008). The best interest analysis evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no pet.).
When assessing the best interest of a child, a court may consider the non-exhaustive factors announced in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These 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 a proper one, and (9) any excuse for the acts or omissions of the parent.
No party objected to admission of the parents' affidavits of relinquishment into evidence. On appeal, the mother disclaims any contention her affidavit of relinquishment was procured by fraud. She concedes the affidavit is sufficient to satisfy the ground for termination set out in section 161.001(b)(1)(K). And as noted, the parents' affidavits contain the averments that termination was in the best interest of the children.
Nor did the parents cross-examine or otherwise challenge the Department's two witnesses. The father and the mother offered no evidence showing termination was not in the best interest of the children.
A number of Texas courts of appeals, including our court, have found that an unrevoked affidavit of relinquishment containing the parent's statement that termination is in the child's best interest can by itself provide the clear and convincing evidence required to meet section 161.001(b)(2)'s best interest requirement. See In re Z.F., No. 07-14-00448-CV, 2015 Tex. App. LEXIS 3998, at *4 (Tex. App.—Amarillo April 21, 2015, no pet.) (mem. op.); In re C.D., No. 02-14-00054-CV, 2014 Tex. App. LEXIS 8694, at *8-9 (Tex. App.—Fort Worth August 7, 2014, no pet.) (mem. op.); S.H. v. Tex. Dep't of Family & Protective Servs., 2013 Tex. App. LEXIS 7137 (Tex. App.—Austin, June 12, 2013, no pet.). Others disagree, holding additional evidence is required. See In re K.D., 471 S.W.3d 147, 162 (Tex. App.—Texarkana 2015, no pet.); In re A.H., 414 S.W.3d 802, 806 (Tex. App.—San Antonio 2013, no pet.). We adhere to our statement in In re Z.F. But even if we are mistaken, and additional evidence is required, the record contains such additional evidence.
The caseworker testified to his opinion termination was in the children's best interest. Asked if either parent was able to provide for the children's emotional or physical needs "now," he responded, "No, sir, they're not." And he said it "doesn't appear" they would be able to do so in the future. He testified both parents tested positive for marijuana and methamphetamines in September. Asked about their appearance for drug testing, he said, "I believe that they appeared for all their drug tests but tested positive . . . throughout the case." See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (drug use supports a finding termination is in the best interest of child); In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.) (in best interest determination, factfinder may give "great weight" to the "significant factor" of drug-related conduct).
Apparently, September 2015.
The caseworker also said the parents "participated in counseling but were discharged due to a lack of progress." Finally, he agreed it was "fair to say" the parents "were not willing and did not have the ability to affect a positive environment for the children."
The caseworker indicated adoption by the foster parents was the Department's plan for the children. He agreed their home was a safe and stable environment, in which the children's needs were being met. He agreed also it appeared the foster parents had an adequate support system to help with the children.
The foster father also testified, telling the court the children had been in the foster home for almost a year. He said he "very much" desired to adopt the children, and that his and his wife's families were "very supportive" of the adoption. He told of hiring tutors, unreimbursed by the Department, to help the older child in school, and of their plans to do so for the younger child during the coming year. Both, he agreed, are "somewhat behind" in school. He said the children did not ask about their parents until they "were on our way" to visits. The foster father said the children had bonded with him and his wife, and described the children's relationship with each other, telling the court the two "could not function without each other." He also described family trips and activities, telling the court the children "love" to help take care of the family dogs.
The children's ad litem and the court-appointed special advocate both recommended termination.
We compare the evidence of best interest in this record with that the San Antonio court found legally insufficient in In re A.H., 414 S.W.3d at 807. There, the caseworker provided the only evidence of best interest, and then only in brief and conclusory testimony. The court also pointed out the lack of information about the caregivers or the nature of the environment they would provide for the children. Id.
Though in the present case the testimony of the caseworker and the foster father was relatively brief and was not subjected to cross-examination, the trial court reasonably could have seen it as addressing the children's present and future emotional and physical needs; the foster parents' parenting abilities and plans for the children; the acts and omissions of the mother and father indicating the parent-child relationship was not a proper one, and their inability to meet the children's needs; and, inferentially, the desires of the children. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (factfinder may consider whether child has bonded with foster family, is well-cared for by them, and has spent minimal time with a parent).
We find the evidence supporting the trial court's finding that termination is in the children's best interest is supported by factually sufficient evidence of a quality that was clear and convincing. The mother's issue is overruled. The Father's Appeal
"Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Family Code section 161.211(c) limits a direct attack, such as an appeal, of an order terminating parental rights based on an unrevoked affidavit of relinquishment to "issues relating to fraud, duress, or coercion in the execution of the affidavit." TEX. FAM. CODE ANN. § 161.211(c) (West 2014). The mother's issue might have been resolved against her solely because she makes no claim of fraud, duress, or coercion. But the parties did not brief the application of section 161.211(c) to the facts of this case, and we choose not to undertake the analysis on our own.
As noted, the father's court-appointed appellate attorney filed a motion to withdraw supported by an Anders brief. Counsel certifies she conducted a diligent examination of the record and, in her opinion, the record reflects no arguable basis to support an appeal. She further certifies having 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). Counsel also provided the father with a copy of her motion and brief, and a copy of the record. She notified the father of his right to file a pro se response. Id. The father did not file a response.
As the reviewing court we conduct an independent evaluation of the record to determine whether counsel correctly determined the appeal is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). After carefully reviewing the appellate record and counsel's brief, we conclude that the record does not demonstrate an arguable ground for appellate review. We therefore grant counsel's motion to withdraw.
The father's attorney shall, within five days after this opinion is handed down, mail the father a copy of the opinion and judgment along with notification of the right to file a pro se petition for discretionary review under appellate rule 53. The documents and notification shall be sent to the father at his last known address via certified mail, return receipt requested. Counsel shall also send this court a letter certifying compliance and attaching a copy of the return receipt within the time for filing a motion for rehearing. TEX. R. APP. P. 2; cf. TEX. R. APP. P. 48.4. --------
Conclusion
For the reasons discussed, the trial court's order terminating the parental rights of the father and the mother to J.R.Y.-1 and J.R.Y.-2 is affirmed. TEX. R. APP. P. 43.2(a).
James T. Campbell
Justice