Opinion
NO. 03-20-00202-CV
08-13-2020
C. T. and D. P., Appellants v. Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 304,873-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING MEMORANDUM OPINION
In November 2018, the Texas Department of Family and Protective Services sought custody over J.T., the four-year-old son of appellants D.P. (Mother) and C.T. (Father), after receiving a report that the child's aunt (Aunt) had been allowing the parents to have unsupervised contact with J.T. The Department explained that about six months earlier, Aunt had been named permanent managing conservator in another proceeding brought by the Department. In the earlier order, the parents were allowed to have supervised visitation with J.T. at Aunt's discretion, Aunt was authorized to request drug testing from the parents, and Aunt was instructed to refuse visitation if she suspected they were under the influence of drugs or alcohol. The earlier proceeding began after the Department received several reports of physical abuse and neglectful supervision of J.T. The reports alleged use of illegal substances by both parents, inappropriate discipline by Mother, and domestic violence between the parents.
We refer to the child by his initials and to other involved individuals by their titles. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
After the Department received the underlying report that Aunt had allowed unsupervised contact between J.T. and his parents, it started an investigation, during which Aunt admitted that she had allowed J.T. "to be with [Mother] for a few weeks." The Department conducted other interviews, during which several family members were dishonest about the situation. The Department then filed its petition seeking custody because of the parents' drug use, alcohol use, and mental health issues and because Aunt had not been protective of J.T.
The case was tried to a jury in February 2020, and the jury was asked whether the parents' rights should be terminated. The jury was instructed that to terminate, it had to find that there was clear and convincing evidence that termination was in J.T.'s best interest and that "at least one of the following events has occurred": (1) the parents had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered J.T.'s well-being or (2) the parents failed to comply with a court order that set out the actions necessary to regain custody. See Tex. Fam. Code. § 161.001(b)(1)(E), (O), (2).
The jury heard testimony about J.T.'s original removal from his parents' care, his later removal from Aunt's care, and the parents' failure to comply with various requirements placed on them. For instance, a Department caseworker agreed when asked whether the parents had been arrested "multiple times" during the proceeding, had tested positive for illegal drugs on "numerous occasions," had not paid any child support, and had not done anything "to make [the caseworker] think that this child is even remotely close to a priority in their life." She also testified that the parents, particularly Father, had been difficult to reach throughout the proceeding and had maintained contact with the Department only sporadically. They frequently missed drug tests, which resulted in presumed positive results and meant they had not been able to have visitations with J.T. The caseworker testified that the parents had not visited J.T. since her assignment to the case at least seven months before trial. Both parents had tested positive multiple times for synthetic marijuana, and Mother also tested positive for PCP. The Department investigator who responded to the November 2018 allegation of neglectful supervision testified that her investigation showed that J.T. had been left alone with Mother. She also said that Mother admitted that synthetic marijuana was her "drug of choice."
Mother testified and denied most of the Department's allegations, although she admitted to having a criminal record that included assault charges. She denied that she had continued using drugs, that the Department had informed her of certain requirements placed on her, or that J.T. was with her unsupervised while he was in Aunt's custody. She testified that she sometimes could not get to the drug tests required by the Department and admitted that she had been discharged from counseling but denied that the discharge was her fault. Father also testified, denying that he had used drugs and disputing the accuracy of the positive tests. He admitted to having a criminal record that included charges for assault, theft, and drug possession. He said he stopped going to therapy because he did not have transportation and testified that on several occasions the Department had given him incorrect information about his required services.
J.T.'s therapist testified about her work with him, saying they were addressing trauma due to physical and emotional abuse. J.T. told her that his "dad" had hit him, had "made blood happen and it hurts," and had "continuously" said that he was going to kill J.T.; the therapist testified that she had no reason to believe J.T. was referring to anyone other than Father. J.T. told her he did not want to see Father and had never made any "positive commentary" about Father. As for Mother, J.T. never said he missed her or wanted to see her, and he only talked about Mother if he was specifically asked about her. He had not made any outcries specifically about abuse by Mother, but there "are a lot of times where he has expressed fear and he groups both parents together." The therapist reported that since his removal, J.T. had made positive progress, was better able to control his impulses, was having fewer nightmares, and had less anger overall. The therapist also said J.T. was a happy child who seemed very close to his foster mother. J.T.'s guardian ad litem testified that J.T. had become more outgoing and interactive since his removal and that he seemed happier. The guardian ad litem believed it was in J.T.'s best interest for the parents' rights to be terminated, allowing J.T. to be adopted and "start a new life."
Both of the parents' court-appointed appellate attorneys have filed briefs discussing the record, the elements the Department was required to prove, the standard of review, and their conclusions that Mother and Father have no arguable grounds for appeal and that the appeals are thus frivolous. See Anders v. California, 386 U.S. 738, 744 (1967); see also In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) ("Counsel's obligation to the client may still be satisfied by filing an appellate brief meeting the standards set in Anders v. California, and its progeny."); Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental rights). Counsel have certified to this Court that they provided Mother and Father with copies of the respective briefs, along with notices advising them of their right to file a pro se brief. Father's attorney also stated in her letter to Father that she was enclosing a digital copy of the appellate record. No pro se brief has been filed by either parent.
We have thoroughly reviewed the record and the parents' briefs, and we agree with the attorneys' assessments that the appeals are frivolous and without merit. We therefore affirm the trial court's final decree of termination. We deny appellate counsel's motions to withdraw. See P.M., 520 S.W.3d at 27.
The supreme court has held that the right to counsel in suits seeking termination of parental rights extends to "all proceedings in [the Texas Supreme Court], including the filing of a petition for review." In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). Thus, the attorneys' obligations to their clients have not yet been discharged, and the requests to withdraw are premature. See id. If after consulting with counsel Mother or Father desire 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." Id. at 27-28.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: August 13, 2020