Opinion
No. 07-17-00325-CV
02-09-2018
IN THE INTEREST OF T.T., G.H., A.H., W.H., J.H., AND K.H., CHILDREN
On Appeal from the 154th District Court Lamb County, Texas
Trial Court No. DCV-19528-16 , Honorable Kara Darnell, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Appellants, D.H. and J.H., appeal the trial court's order terminating their parental rights to their children, G.H., A.H., W.H., J.H., and K.H. D.H.'s parental rights were also terminated as to T.T. Appointed counsel for D.H. and J.H. has filed an Anders brief in support of a motion to withdraw. Finding no arguable grounds for appeal, we affirm the judgment of the trial court.
To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b).
D.H. initially gave the name of K.N. as the father of T.T., but later testified that he was not the father. The father of T.T. did not register with the paternity registry. An attorney was appointed for the alleged father, K.N. The trial court terminated the parent-child relationship, if any, between T.T. and K.N. and any unknown father.
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Background
On August 4, 2016, the Department of Family and Protective Services received a report that D.H. and J.H. were selling their food stamps for drugs and maintaining a home in unsanitary and dangerous conditions. The next day, an investigator from the Department visited the home of D.H. and J.H. and encountered a foul smell emanating from the home. D.H. and J.H. did not allow the investigator to have access to the home at that time. During the subsequent investigation, however, the Department discovered that the plumbing in the home was not working and the gas had been turned off due to a gas leak. In addition, feces and urine had collected in the toilet and bathtub. The Department concluded that the home was not sanitary and posed a danger to the children.
When the Department's investigator first visited the home, D.H. and J.H. consented to a cheek-swab drug test. Both tested positive for methamphetamine, and J.H. also tested positive for marijuana. During the pendency of this case, D.H. and J.H. admitted to using methamphetamine in April of 2017.
While seeking an emergency order to remove the children, the Department learned that the family had recently moved to Littlefield, Texas, from Oklahoma, and that D.H. is a member of the Cherokee tribe. After the removal, the Department gave the required notice to the Bureau of Indian Affairs and to the Cherokee Nation. No relatives or tribal placements were available for the children.
The trial court entered temporary orders appointing the Department as the temporary managing conservator and requiring D.H. and J.H. to complete the following tasks: maintain ongoing employment, obtain suitable housing, submit to drug testing and assessment, undergo psychological examination, complete counseling, maintain visits with the children, and other specifically identified services. Subsequently, a Family Group Conference Plan was developed and signed by both parents reiterating the services that the parents needed to complete to have the children returned to their care. A service plan was also prepared for each parent, but they had returned to live in Oklahoma before signing the plan. By the time of the final hearing, D.H. and J.H. had failed to comply with most of the court-ordered services.
Kristi Crawford, a social worker with the Cherokee Nation Indian Child Welfare was assigned to assist D.H. and J.H. with services. Crawford and other members of the Cherokee tribe provided transportation to parenting classes and to court-ordered assessments. D.H. and J.H. moved frequently which hindered the coordination and completion of court-ordered services. Crawford referred D.H. and J.H. to food pantries and homeless shelters when they were living in their car. Additionally, they were provided housing applications to obtain stable housing, but they did not have employment to finalize the applications. At the final hearing, Crawford was qualified as an expert in Indian Child Welfare matters and testified to the Department's and the Cherokee tribe's active efforts to reunify the family, as required by the Indian Child Welfare Act. In her opinion, it would be a danger to the children to return them to D.H. and J.H.
Prior to moving to Oklahoma, D.H. and J.H. had sporadic contact with the children even though they were provided transportation to visits by the Department. Their last visit with the children was in November of 2016, shortly before they moved to Oklahoma.
After a bench trial on July 14 and August 11, 2017, the trial court found there was clear and convincing evidence to support the Department's allegations under four of the predicate grounds for termination set forth in the Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2017) (identifying predicate grounds for termination of parental rights); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.) (only one predicate ground required to terminate parental rights under section 161.001(b)(1)). Specifically, the trial court found clear and convincing evidence to terminate the parental rights of D.H. and J.H. on the grounds of endangering conditions, endangerment, constructive abandonment, and failure to comply with a court order that established actions necessary to retain custody of the children. See § 161.001(b)(1)(D), (E), (N), (O).
Further references to provisions of the Texas Family Code will be by reference to "section___" or "§ ___."
In addition, the trial court found that termination was in the best interest of the children. See § 161.001(b)(2); In re 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 considered in determining best interest of the children). D.H. and J.H. moved at least six times after returning to Oklahoma and could not provide a safe and stable home for the children. At the beginning of trial, D.H. and J.H. were living with a friend of J.H.'s in Muskogee. When the final hearing resumed on August 11, D.H. and J.H. were living with his mother in Owasso for six to eight days. Neither D.H. nor J.H. maintained employment or remained drug free. While D.H. and J.H. participated in four or five parenting classes, they failed to complete the specialized services required by their service plan.
D.H. and J.H. timely filed notice of appeal challenging the trial court's order of termination.
Analysis
Pursuant to Anders, D.H. and J.H.'s court-appointed appellate counsel has filed a brief certifying that she has conducted a conscientious examination of 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 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 she has 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) (orig. proceeding). Counsel has complied with the requirements of Anders by providing a copy of the brief, motion to withdraw, and appellate record to D.H. and J.H, and notifying them of their right to file a pro se response if they desired to do so. Id.; 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). Neither D.H. nor J.H. has filed a response.
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 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). 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 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 at 28-29; In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no pet.). By her Anders brief, counsel concludes that reversible error is not present because sufficient evidence supports termination under subsection (O). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d at 384 (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).
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 sufficient evidence existed to support at least one ground for termination, and that termination of D.H.'s and J.H.'s parental rights was in the children's best interest. See In re A.V., 113 S.W.3d at 362; In re T.N., 180 S.W.3d at 384. After reviewing the record and the Anders brief, we agree with counsel there are no plausible grounds for reversal.
Accordingly, the trial court's order terminating D.H.'s and J.H.'s parental rights to the children is affirmed.
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. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).
Judy C. Parker
Justice