Opinion
No. 07-18-00072-CV
07-20-2018
IN THE INTEREST OF A.M., E.M., AND A.W., CHILDREN
On Appeal from the County Court at Law No. 1 Randall County, Texas
Trial Court No. 71,330-L1; Honorable James Anderson, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, K.M., appeals from the trial court's order terminating his parental rights to his children, A.M., E.M., and A.W. In presenting this appeal, appointed counsel has filed an Anders brief. The trial court's order terminating K.M.'s parental rights to A.M., E.M., and A.W. is affirmed.
To protect the privacy of the parties, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017). See also TEX. R. APP. P. 9.8(b).
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel's motion to withdraw did not cite his continuing duty of representation through the exhaustion of proceedings, including the filing of a petition for review. See In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016).
BACKGROUND
In January 2016, the Department of Family and Protective Services filed its Original Petition for Protection of Child, for Conservatorship, and for Termination in Suit Affecting Parent-Child Relationship, seeking termination of the parental rights of K.M. and N.W. as to their three children, A.M., E.M., and A.W. The children were removed after the Department received information that N.W. was using drugs while caring for the children. During her interview, N.W. admitted to using methamphetamine and morphine two weeks prior and signed an acknowledgement of drug use. N.W. and A.M. tested positive for methamphetamine. N.W. also tested positive for heroin, morphine, and amphetamine. N.W. subsequently filed an affidavit of relinquishment of her parental rights, which the trial court accepted before ordering termination of those rights. N.W. did not appeal that termination order.
When the children were removed, K.M. was incarcerated. He had been convicted of criminal impersonation on August 17, 2015, and two second-degree burglaries stemming from criminal activity in 2014. In April 2016, he was sentenced to two consecutive ten-year sentences for larceny of a motor vehicle and for felon in possession of a firearm. In 1998, K.M. had been sentenced to seven years probation for possession of a controlled substance with intent to distribute, carrying a weapon, and possession of drug paraphernalia. There were multiple revocations filed in these cases, and he was required to be incarcerated and perform community service. His contact with his children prior to incarceration was very infrequent. At the time of the final hearing, he had not seen A.M. for more than six years, and E.M. or A.W. for more than three years. Since their births, Appellant never sought to obtain custody of the children even though in July 2012, Child Protective Services in Tennessee took temporary custody of the children from N.W.
For these crimes, he was sentenced to a total of twelve years of which nine years remained to be served.
On February 22, 2018, the trial court terminated K.M.'s parental rights on the grounds of endangering conditions, endangerment, using a controlled substance in a manner that endangered the children's health and safety, and knowingly engaging in criminal conduct that resulted in an inability to care for the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (P), (Q) (West. Supp. 2017). See M.C. v. Tex. Dep't of Family and Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied).
We will cite to provisions of the Texas Family Code throughout the remainder of this memorandum opinion simply as "section ___" or "§ ___."
The trial court also found termination was in the children's best interest. See § 161.001(b)(2). See also In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002) (evidence of acts or omissions used to establish grounds for termination under section 161.001(b)(1) may be probative in determining best interest of child). See also Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 619 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (nonexclusive list of factors that the trier of fact in a termination case may use in determining the best interest of the child). Appellant testified at the final hearing that he will be serving approximately five months of the time remaining on his sentence with the remainder being suspended because he completed substance abuse therapy. His plan for going forward included asking the trial court to place the children with an in-law he had not seen in years and whom the children no longer remembered. A.M. and E.M. are living in foster homes where they have bonded with their foster families and are doing well in school. The foster families are proposing adoption. A.W. is receiving treatment at a special school and the Department hopes to relocate him with his siblings in the near future.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department establishes (1) one or more acts or omissions enumerated under section 161.001(b)(1) and (2) termination of that relationship is in the child's best interest under section 161.001(b)(2). See § 161.001(b)(1), (2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is clear and convincing evidence. See § 161.206(a) (West Supp. 2017). "'Clear and convincing evidence' means 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 (West 2014).
Only one statutory ground is needed to support termination though the trial court must also find termination is in the child's best interest. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). In review of a termination proceeding, the standard of the sufficiency of the evidence is that discussed in In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2013). In reviewing a best interest finding, appellate courts consider, among other evidence, the factors set forth in Holley, 544 S.W.2d at 371-72.
ANDERS V. CALIFORNIA
Although the Texas Supreme Court has yet to directly consider the issue, for many years Texas appellate courts, including this court, have found procedures set forth in Anders v. California applicable to appeals of orders terminating parental rights. See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.). The brief filed in this appeal meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are not arguable grounds for reversible error.
See also In re R.M.C., 395 S.W.3d 820 (Tex. App.—Eastland 2013, no pet.); In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.); In the Interest of D.D., 279 S.W.3d 849 (Tex. App.—Dallas 2009, pet. denied); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—Beaumont 2005, no pet.); Taylor v. Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Porter v. Texas Dep't of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.); In re P.M.H., No. 06-10-00008-CV, 2010 Tex. App. LEXIS 3330, at *2 (Tex. App.—Texarkana May 6, 2010, no pet.) (mem. op.); In the Interest of R.R., No. 04-03-00096-CV, 2003 Tex. App. LEXIS 4283, at *10-12 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.).
In support, counsel certifies he has conducted a conscientious examination of the record, and in his opinion, the record reflects no potentially plausible basis to support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated that he has complied with the requirements of Anders by (1) providing a copy of the brief to K.M. and (2) notifying him of his right to file a pro se response if he desired to do so. Id. By letter, this court also granted K.M. an opportunity to exercise his right to file a response to counsel's brief, should he be so inclined. K.M. did not file a response. The Department notified this court it would not file a response unless specifically requested to do so. No such request was made.
ANALYSIS
As in any criminal case or termination proceeding where an Anders brief has been filed, we have independently examined the entire record to determine whether there are any non-frivolous issues 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 fact finder could have formed a firm belief or conviction that grounds for termination existed in compliance with section 161.001(b)(1) and that termination of K.M.'s parental rights was in the children's best interest in accordance with section 161.001(b)(2). See Gainous v. State, 436 S.W.2d 137, 137-38 (Tex. Crim. App. 1969).
At trial, the evidence established K.M. had little contact with his children while he engaged in a substantial criminal history that led to a lengthy period of incarceration. § 161.001(b)(1)(Q). During his early years as a father, he never sought custody of his children despite the fact that Child Protective Services in Tennessee had taken them into temporary custody. The evidence established that by his absence, he knowingly placed or allowed A.M., E.M., and A.W. to remain in conditions or surroundings that endangered their physical and emotional well-being, engaged in conduct or knowingly placed them with persons who engaged in conduct which endangered their physical and emotional well-being, and used a controlled substance in a manner that endangered the children's health and safety. See § 161.001(b)(1)(D), (E), (P). The record also conclusively establishes the children were removed under chapter 262 of the Family Code for neglect, and it is undisputed that the children have been in the Department's custody for more than nine months after removal. In re E.C.R., 402 S.W.3d 239, 248-49 (Tex. 2013). The parental conduct described in section 161.001(b)(1)(D), (E), (P), and (Q) was established by clear and convincing evidence and termination was in the children's best interest. Id. Having reviewed the entire record and counsel's brief, we agree with counsel that there are no plausible grounds for appeal.
CONCLUSION
The trial court's order terminating K.M.'s parental rights to A.M., E.M., and A.W. is affirmed.
In light of the Texas Supreme Court's decision in In re P.M., 520 S.W.3d at 27 (per curiam), we 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.
Patrick A. Pirtle
Justice