Opinion
NO. 03-20-00092-CV
07-24-2020
D. N.-B. and C. B., Appellants v. Texas Department of Family and Protective Services, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
NO. 18-0132-CPSC1 , THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING MEMORANDUM OPINION
Appellants D.N.-B. (Mother) and C.B. (Father) appeal from the trial court's final order, signed after a bench trial, terminating their parental rights to their children. The children involved in this proceeding are "Jack," who was twelve at the time the order was signed; "Carla," who was ten; "Dan," who was three; and "Nancy," who was two. As statutory grounds for termination, the trial court found that both Mother and Father had knowingly placed or allowed the children to remain in conditions that endangered their well-being, engaged in conduct or knowingly placed the children with someone who engaged in conduct that endangered the children's well-being, and failed to comply with the requirements of a court order that established the actions necessary to regain custody. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). In addition, the court found that Father had been convicted of or placed on community supervision for being criminally responsible for the death or serious injury of a child. Id. § 161.001(b)(1)(L).
For the sake of the children's privacy and for clarity, we refer to the parents as "Mother" and "Father" and to the children and other involved individuals by pseudonyms. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Mother is the mother of all four children, Father is the father of Dan and Nancy, and "John" is the father of Jack and Carla. John's rights were also terminated, but he did not file a notice of appeal.
Both parents filed notices of appeal. Mother's attorney has filed a brief explaining his conclusion that Mother's appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Father's attorney has filed a brief challenging the legal sufficiency of the evidence supporting the trial court's findings of statutory grounds and best interest. Because we agree with Mother's attorney that her appeal is frivolous and because Father has not established that the evidence is insufficient to support the trial court's finding under subsection (D) or its finding on best interest, we will affirm the order of termination.
STANDARD OF REVIEW
To terminate a parent's rights to his child, the Department must prove by clear and convincing evidence that the parent engaged in conduct that amounts to at least one statutory ground for termination pursuant to section 161.001 and that termination is in the child's best interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is "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 § 101.007; In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In our review, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In evaluating the legal sufficiency of the evidence, we look at "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 256, 266 (Tex. 2002); see A.C. v. Texas Dep't of Family & Protective Servs., 577 S.W.3d 689, 697 (Tex. App.—Austin 2019, pet. denied). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so" and "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible," J.F.C., 96 S.W.3d at 266, but we need not disregard undisputed evidence contrary to the determination, K.M.L., 443 S.W.3d at 113. Evidence is legally sufficient unless after reviewing the evidence in the proper light, including undisputed evidence that does not support the findings, we conclude that no reasonable factfinder could have formed a firm belief or conviction that the Department carried its evidentiary burden. J.F.C., 96 S.W.3d at 266; A.C., 577 S.W.3d at 697.
STATUTORY GROUNDS
The trial court may order termination of the parent-child relationship under subsection (D) if clear and convincing evidence establishes that the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child," Tex. Fam. Code § 161.001(b)(D), and under subsection (E) if the evidence establishes that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child," id. § 161.001(b)(E). Both subsections require proof of endangerment, which means exposing a child to loss or injury or jeopardizing a child's emotional or physical well-being. See Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); A.C., 577 S.W.3d at 698-99. A finding of endangerment requires more than the threat of metaphysical injury or possible ill effects from a less-than-ideal family environment, but the Department does not have to prove that the conduct was directed at the child or that the child suffered an actual injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); A.C., 577 S.W.3d at 699. "Endangerment does not need to be established as an independent proposition but may be inferred from the parental misconduct." A.C., 577 S.W.3d at 699. Evidence of domestic violence is relevant to endangerment, even if the violence is not directed at the child. J.G. v. Texas Dep't of Family & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.); In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Subsection (D) focuses on the child's environment—which includes the child's living conditions and the environment produced by the conduct of the parents or others in the home—and whether the environment itself endangered the child, while subsection (E) focuses on the parent's conduct and whether the parent engaged in a voluntary, deliberate, and conscious course of conduct that endangered the child. V.P. v. Texas Dep't of Family & Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.). "Inappropriate, abusive, or unlawful conduct by persons who live in the child's home—including physical violence or abusive conduct by one parent toward the other parent—is part of the" environment under subsection (D). Id. Subsection (D) primarily considers the environment as it existed at the time the child was removed, In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Ybarra v. Texas Dep't of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no writ), while the relevant time period for subsection (E) is wider and considers parental conduct occurring "both before and after the child has been removed by the Department," Pruitt v. Texas Dep't of Family & Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).
In August 2018, the Texas Department of Family and Protective Services filed its original petition seeking conservatorship of the children. It attached a removal affidavit in which Department caseworker Evangeline Hill averred that in May 2018, it received a referral alleging neglectful supervision and physical abuse. That referral arose after the police were called to the home after Mother attempted to injure herself, either by "punctur[ing] her jugular with her own finger nails while being highly intoxicated" or by striking herself in the head with a bottle and a knife; the children were in the home at the time. The Department then arranged for "Fiona," the children's maternal grandmother, to stay with the family and supervise the parents when they were in the children's presence. About a week later, in early June, the police were called again after Father came home intoxicated and got into a fight with Fiona. Jack attempted to intervene, and Father grabbed him by his throat and threw him into Carla, causing Carla to fall and hit her head on a wall. As a result of that incident, Father was charged with felony injury to a child, and the Department put a safety plan into place that barred Father from having contact with the children until further notice from the Department and required Mother to be supervised when she was with the children.
Caseworker Hill averred that she made an unannounced visit in mid-August and discovered that Mother was with the children unsupervised. Mother told Hill that Father had "just left and would be back in a few minutes" and said that because an emergency protective order against Father had been lifted, she thought he was allowed to return to the home. Hill explained that the Department's restriction had not been lifted. That same day, Hill interviewed Jack and Carla, and Jack said that he had misunderstood the June incident with Father and that he now thought Father was trying to put his hands on Fiona and was not trying to injure Jack. Hill averred that Jack "seemed to be coached to say that [he] misunderstood the events that led to his injury." Similarly, Carla denied that Father had been in the residence until Hill said she already knew he had been there, at which point Carla admitted that Father had been in the home. Because the parents had violated the safety plan by allowing Father to have contact with the children, the Department filed its petition seeking conservatorship.
In attacking the trial court's findings of statutory grounds under subsections (D) and (E), Father states that he participated in therapy, obtained housing, cooperated with the Department, completed a protective parenting class, completed a drug and alcohol assessment, "worked on a lot of anger management," completed a psychological evaluation, and twice asked to do therapy with Jack, although Jack's therapist denied those requests. Aside from that recitation of his efforts to comply with the Department's requirements, Father's entire argument as to the subsections (D) and (E) grounds is that "the judge in this case was simply not willing to accept that he had learned anything or that he had changed. Thus, [Father] could not have negated the (D) [or (E)] grounds that brought the children into care, by doing services." In other words, Father asserts that although he showed a good-faith effort to comply with the Department's requirements, the Department and the trial court would not accept that Father had learned anything from engaging in his services.
Assuming that Father's description of his engagement in services is entirely accurate, that behavior during the pendency of this proceeding does not bear on whether Dan and Nancy were in an environment that endangered them at the time they were removed. See J.R., 171 S.W.3d at 569. Father has not challenged the sufficiency of the evidence related to the conditions his children were subjected to when they were removed, and we thus uphold the trial court's finding of conditions or surroundings that endangered the children's well-being under subsection (D). See E.J. v. Texas Dep't of Family & Protective Servs., No. 03-18-00473-CV, 2018 WL 6627720, at *6 (Tex. App.—Austin Dec. 18, 2018, pet. denied) (mem. op.) ("Bare assertions of error without argument or authority waive error."); In re R.H.W. III, 542 S.W.3d 724, 742 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (mem. op.) ("Father failed to adequately brief any argument in support of this issue, and so has waived the complaint."); In re K.C.B., 280 S.W.3d 888, 896 (Tex. App.—Amarillo 2009, pet. denied) (mem. op.) (appellant waived error by failing to provide analysis of facts and law regarding sufficiency challenge).
We further observe that there is legally sufficient evidence to support a subsection (D) finding of endangerment. Evidence of a parent's mental instability or of domestic violence in the home can support a finding of endangerment, see, e.g., In re A.C., No. 10-15-00192-CV, 2015 WL 6437843, at *7 (Tex. App.—Waco Oct. 22, 2015, no pet.) (mem. op.); In re K.P., No. 09-13-00404-CV, 2014 WL 4105067, at *14 (Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.), and this record contains evidence of both. The Department presented evidence that in the May 2018 incident, Mother was highly intoxicated and suicidal and injured herself while the children were present. It also presented evidence that in the June 2018 incident, Father grabbed Jack by his throat and threw him into his sister, knocking her down and causing her to strike her head against a wall. There was also evidence that Father had been abusing alcohol for some time before the assault on Jack and that Jack and Carla seem to have been coached in their answers when interviewed by Hill after that incident, as well as of other domestic violence between the adults in the home, in which Jack would sometimes attempt to intervene. It is not necessary for the violent conduct to have been directed at Father's children, Dan and Nancy, see J.G. v. Texas Dep't of Family & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.), and the evidence showed that the two younger children were present for at least the first incident.
Because we uphold the trial court's finding under subsection (D), we need not consider Father's remaining issues related to the other statutory grounds found by the court. See Spurck v. Texas Dep't of Family & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
BEST INTEREST
We now turn to Father's challenge to the trial court's finding that termination of his parental rights was in Dan's and Nancy's best interest, which we review by considering the factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Under Holley, we take into account the children's wishes, their emotional and physical needs now and in the future, present and future emotional or physical danger posed to the children, the parenting skills of those seeking custody, any programs available to assist those seeking custody to promote the children's best interest, plans for the children's future, the stability of the home or proposed placement, conduct by the parent that might show that the parent-child relationship is inappropriate, and any excuses for the parent's conduct. Id. The Holley factors are not exhaustive, not all factors must be proved, and a lack of evidence about some of the factors does not "preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The children's need for permanence is the paramount consideration when determining their present and future physical and emotional needs. L.R. v. Texas Dep't of Family & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1 (Tex. App.—Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A parent's rights may not be terminated merely because the children might be better off living elsewhere, but the factfinder may consider whether termination and adoption versus an impermanent foster-care arrangement would better serve the children's best interest. See L.R., 2018 WL 3059959, at *1.
Both Annette Bargainer, the children's CASA volunteer, and Erin Weaver, their Department caseworker, testified that it was in the children's best interest for the parents' rights to be terminated and for the children to be adopted by their current foster family, with whom they had lived since November 2018, about a year before trial. Bargainer said she reached that conclusion:
Because of the changes that I've seen in the children since they have lived with [their foster parents]. When I first met them [Jack] was just kind of angry and detached and the two little ones couldn't speak at all. And [Dan] the little boy cried a lot. And over time I've just seen them grow and blossom and do better and become affectionate with me and their caregivers . . ., more thoughtful of each other. Like [Carla] has always been very considerate of the other children but now [Jack] is very considerate of the other children. The [foster parents] have two older children of their own that are successful. They're just teenagers but successful as teenagers go. So I just feel like they have a good track record of raising children. And the consistency in the home regarding discipline and homework and scheduling is great.Bargainer also noted the foster parents' "time and energy and thought and consideration that they have expressed to me and their diligence in getting [Jack] to all of his appointments, making additional appointments." All four children had shown improvement in their foster home and were bonded to their foster parents, and Bargainer believed "it's best for the children to know that they have a stable, peaceful home without any more chaos or drama." She admitted, however, that she had not witnessed any visits between Father and the children and did not know about his parenting skills. Carla told Bargainer that she wanted to stay in her foster home, while Jack consistently said he wanted to return to Mother but never showed interest in connecting with Father.
Weaver said that it was not easy for her to recommend termination because Jack and Carla know their parents and love them. However, she said:
[Jack and Carla] particularly, but all of the children, need stability and structure. I think that they need to know what to expect and they need to know that when they get in trouble or when something happens they're going to have patient caregivers who allow them to stay in the home, who have a plan for them, who are prepared to take care of them. I think that adoption is a more protective measure.Asked further about her recommendation of termination and adoption as opposed to the parents being appointed possessory managing conservators with the children staying in their foster home, Weaver said, "I think that there's no point in giving the parents decision making power when they've chosen to not get any information and so they're not going to make informed decisions. And I think that the safety concerns remain."
Weaver testified that the children's foster parents "have shown if they can't do it they're going to figure out how to get it done. They're willing to do whatever they can for those kids. If that means working less, if that means working different hours, if that means contacting therapists, contacting medical doctors, all those—all the people involved in the care for those kids." Weaver said the foster parents had shown that they will advocate for children and be "nurturing and attentive and sober." Weaver said that when the children were placed with the foster family in November 2018, "they weren't happy" and that she had "never seen babies like that." After about a year in the foster home, Weaver said, "they were so happy and peaceful and just comfortable in a way that I had never seen."
Once the children were placed with their foster parents in November 2018, Father was offered two-hour visits with Dan and Nancy every other week. Out of the seventeen possible visits between December 2018 and December 2019, Father missed eight. Of the nine visits he attended, he cut short five, only staying for one to one-and-a-half hours rather than the full two hours. When Father missed visits, "typically he would say that he was working." Weaver testified that the children "haven't seen [Father] for more than 25 hours, and they're two and three years old. They don't know him."
Weaver testified that although Carla initially had expressed a desire to return to the parents, she never said it was because she missed them and instead said it was because she "wants to go swimming," because "when she goes home she can start shaving her legs," and because she "can watch whatever movie she wants to watch." And more recently, Carla had said she wanted to stay with her foster parents, saying, "I love it here." Jack also initially said he wanted to go back to his parents, but when asked shortly before trial, "he was just quiet for a really long time like he was thinking about it. And then he said—he just said I like it here [with his foster parents]."
Father's children, Dan and Nancy, were nonverbal and thus could not express their wishes. However, there was testimony that they were bonded with their foster parents, sought them out when they needed something, and turned to them for comfort. The children laugh and play when they are with their foster parents and check to be sure the foster parents are nearby and watching them. Weaver believed the foster parents had "put a premium on the children's specific needs" and offered them a nurturing and structured environment. The Department intended for the children to be adopted by their foster family. Weaver said the children's foster mother "changed her work schedule completely so that she could take [Jack] to and from school because a big stress for him is the bus and so now he's driven back and forth." Because Mother had been largely cooperative with the foster parents, the foster parents were willing to work with Mother to allow for future contact, but as for Father:
They feel that they've tried and that they are receiving no cooperation, that it's not possible and it's not helpful for the children. It's constant we—he's accusing them of things, he's sending out emails to all the parties about them going to dinner without the kids. I mean, just they feel that he's not willing to work with them and it's not in the best interest of the children.
Weaver also explained that Dan and Nancy both had special medical needs. Dan entered care "with some pretty high needs," and at the time of trial, he was still largely nonverbal. He was initially "completely stoic," "just totally flat," lacked affect, and would only make noise if he was "screaming and where there was nothing that could console him." She described an early doctor's visit in which Dan sat still the entire time without exploring the exam room; "didn't move, he didn't point, he didn't gesture"; and "just laid there" through the exam without looking at any medical personnel or at a cartoon playing on a nearby television. Weaver contrasted that with what she would expect from a two-year-old, saying she would have expected him to be "constantly up and down and touching and playing," needing interaction and engagement. Weaver testified that when she saw Dan two weeks before trial, "he's an entirely different kid" who was happy, "wanted to interact," was playing and laughing, and came to her for hugs and affection—"this was just like a totally different child than I had dropped off." Weaver also "heard him say a couple of words" during that recent visit.
Weaver further testified that Dan had been born with a heart defect and required surgery early on. When he came into care, the Department learned that the parents had never brought Dan back for a follow-up visit after that surgery, and although the parents had said they had difficulty setting up the appointment, Weaver said that she did not experience any difficulty.
Nancy weighed eighteen pounds when she came into the Department's care at a year old and was not walking, crawling, pulling up, or babbling. She was "a little bit more playful" or interactive than Dan, but she too made no noise. Nancy had a medical condition in which her "brain and skull were growing at different rates," but Mother and Father had not brought her to see a specialist. Mother explained that she had "lost the card or that the car broke down or there was always a good reason that she didn't go but not a very good one."
As for the older children, Weaver testified that nine-year-old Carla was "parentified" and had taken over the role of caring for and worrying about Dan and Nancy. The parents had failed to take Jack to therapy and missed several speech therapy appointments, and in early 2017, he was found to be "two years and three months behind in his articulation skills," which "put him at risk for compromised safety and a decrease in ability to communicate." Weaver said there were notes in Jack's records indicating that the parents "did not express concern regarding the children's development and behaviors." Weaver said that Jack had been evaluated twice, and in September 2019, his psychological evaluation diagnosed him with:
depressive disorder, oppositional defiance disorder, disruptive behavior disorder, other trauma and stress related disorder, a specific learning disorder in reading, writing and math. And then other relevant medical conditions he was diagnosed [with] were possible exposure to drugs. Relevant psychosocial factors he was diagnosed with are possible physical abuse, possible sexual abuse, chronic neglect, instability, self loathing and learning issues.Weaver testified that Jack "requires a very high level of parenting" and needs a patient, attentive caregiver. She said that since being placed with his foster family, he was still behind in school but was improving:
When he came into care he was reading at a first grade level after repeating fifth grade. His—he's now reading at about fourth grade level. . . . And the teachers now are very aware of [Jack] and are working really diligently with him. He's doing really well. He's able to sit through his classes. He's not needed restraints.
As to Father's assault on Jack, Father testified that he did not remember the incident. The Department introduced into evidence Father's plea agreement and order of deferred adjudication from June 2018 under which Father pled guilty to injury to a child with bodily injury and was placed on five years deferred adjudication community supervision. The Department also elicited testimony from a responding police officer, who said that Mother had told her that Jack "advised her that [Father] grabbed him by the throat and threw him against" Carla, who fell and hit her head on a wall. Carla was shaken and scared. Jack was "kind of riled up a little bit," and the officer "could tell he was—he had experienced something." Both children said that the incident hurt. Two neighbors told the officer that they witnessed Father assault Jack. Father was combative with the officers and appeared intoxicated.
Psychologist Chelsea Bryant testified that she was currently working with Jack and Dan and that she had seen Carla in the past. Dr. Bryant said that early in her therapy with Jack, he blamed himself for his removal, had a lot of "explosive anger," and expressed thoughts of self-harm. After several months of therapy, Jack finally came to trust her and was improving. She believed the severity of Jack's condition indicates that the incident that led to the children's removal "was not an isolated occurrence." Carla was successfully discharged from therapy after about five months of therapy, during which Dr. Bryant worked on her need to be in control and her "go-to coping mechanism, avoidance." Dr. Bryant was doing play therapy with Dan and testified that he was not at the developmental stage he should be for his age and does not seem to know how to play: "He does not explore. He does not feel comfortable branching out. You have to tell him repeatedly it's okay, you can get that." Asked what she attributes his delays to, Dr. Bryant said, "I cannot speak with 100 percent certainty, but we see a lot of these same symptoms with neglect." Dr. Bryant said that all of the children needed "environments of consistency, with routine, with safety," and with nurturing.
Father's former therapist, Albert Doepner, testified that he had sixteen sessions with Father from October 2018 through March 2019. Father seemed to take therapy seriously and seemed to want to work on his issues. Doepner believed Father was truthful in their work together. Doepner and Father worked on protective parenting and anger management, and Doepner also believed Father had symptoms of post-traumatic stress disorder. Doepner testified that Father initially "blamed external factors for that incident where he threw [Jack], but as time went by he began saying yes, I'm to blame for that and I don't want [Jack] to feel like he was at all to blame." Doepner believed Father had grown from a "demonstratively angry person" to "somebody who is very calm and deliberate and thoughtful and able to go with the flow."
In contrast to Doepner's testimony, however, Weaver expressed doubts about Father's progress, saying that she did not believe "he's done the work to make realistic and real changes." Weaver explained that the Department decided to stop Father's sessions with Doepner because Doepner was not requiring Father to review his psychological evaluation or to "sort out what had happened with" Jack, both of which were recommended in the evaluation. Because Father "would refuse to talk about the psychological" and Doepner did not force the issue, the Department decided to require Father to go to a new therapist. Weaver also believed that Father still blamed Jack for the June 2018 assault and said that he "continues to make remarks that it's a two-way street, as if anything would ever warrant that kind of behavior." Weaver testified that although Father "is able to regurgitate information that he has picked up in therapy," in less formal settings than the courtroom, he insists that "what [Jack] did to deserve being choked outside is that he had schizophrenia and bi-polar disorder." The Department had had Jack evaluated "by several professionals, psychologist, psychiatrist and that's never been a diagnosis," but "there's no amount of explaining what professionals are saying that will change [Father's] mind"—"[t]he minute we're talking in the hallway he's back on the—it's because of schizophrenia, it's because of bi-polar disorder." Finally, Weaver testified that Father minimizes negative facts and claims that "he didn't choke [Jack], he just bonked him." Dr. Ericka Brothers, who performed Father's psychological evaluation in December 2018, echoed Weaver's concerns and said Father had a "recurring tendency" to blame his problems on someone else and would minimize negative facts or problems rather than taking responsibility for his own behaviors.
During the proceeding, Father had proposed placing the children with his mother. However, when Weaver asked for her contact information, Father said "she's redoing her floors." Weaver eventually got the paternal grandmother's information and left a message but did not receive a return call. The paternal grandmother eventually attended a meeting Weaver had with Father and said she only wanted to take Dan and Nancy, which distressed the older children, who did not want to be separated from their younger siblings. Nonetheless, the Department sought to do a home study, but the grandmother did not return phone calls and repeatedly cancelled at the last minute or missed appointments. The Department eventually closed that referral because after Weaver informed the grandmother that the Department would not continue to pay for people to come to her house for the home study, the grandmother "never reached out to the agency again."
Dan and Nancy were nonverbal and thus could not express their wishes. However, the evidence was that they are strongly bonded with their foster family and that they have spent little time with Father, who frequently missed or cut short his visitations with them. The evidence related to the children's relationships with their foster parents and with Father weighs in favor of termination. See E.B. v. Texas Dep't of Family & Protective Servs., No. 03-18-00427-CV, 2018 WL 6056959, at *3 (Tex. App.—Austin Nov. 20, 2018, pet. denied) (mem. op.) ("A factfinder may consider that a child has bonded with the child's current placement, is well cared for by them, and has spent minimal time with a parent."). Likewise, when we consider the children's special needs, the lack of effort put forth by Father before the children were removed, his unwillingness or inability to be cooperative with the foster family, and the trauma and neglect the children apparently suffered before their removal, the children's present and future needs weigh in favor of termination. We hold similarly as to the present and future danger posed to the children: the children showed signs of varying degrees of trauma or developmental delays when they were removed; Father had seized Jack by the throat and thrown him into Carla; Father minimized his responsibility in that and other misconduct; and he insisted that Jack was at fault because he had schizophrenia and bi-polar disorder despite several medical professionals examining him and finding no such disorders. Witnesses had concerns that Dan and Nancy, with their special needs, would be in danger if placed in Father's care.
As for Father's plans for the children, he wanted them returned to his care and offered his mother as a possible alternative placement. However, he did not immediately provide her contact information, she was difficult to reach once Weaver obtained her information, and when Weaver attempted to schedule a home study, the grandmother was uncooperative and the home study could never be completed. The Department's plan for the children is adoption by their foster parents, who have shown themselves to be engaged and willing to put forth the necessary effort to care for the children. Thus, a comparison of the parties' respective plans for the children weighs in favor of termination. There was little evidence about the stability (or instability) of Father's current living arrangements but there was testimony that the children were removed from "chaos." Significant evidence showed that the foster home was providing the children with much-needed stability and nurturing, and thus that factor weighs slightly in favor of termination.
Father completed a protective parenting class with Doepner, which weighs in his favor, but although Doepner spoke highly of Father's efforts in therapy, Weaver believed Father was able to say the appropriate thing in some circumstances without having learned very much of substance. Father refused to discuss his psychological evaluation with his therapists, as recommended in the evaluation. There was substantial evidence that the foster parents are well-equipped to parent and willing to learn about how to meet the children's needs as the circumstances change. Although there was little evidence about any programs available to the parties, the evidence related to parenting skills on balance weighs in favor of termination.
Having considered the evidence relevant to best interest, deferring to the trial court's determinations on witness credibility, the resolution of conflicts in the evidence, and the weight to be given the testimony, see A.B., 437 S.W.3d at 503, we hold that the Holley factors weigh in favor of the trial court's finding that termination is in the children's best interest. We thus overrule Father's challenge to the best-interest finding.
CONCLUSION
We have overruled Father's issues on appeal. As for Mother, her Anders brief discusses the record, the elements the Department was required to prove, and the standard of review and explains counsel's conclusions that Mother has no arguable grounds for appeal and that her appeal is frivolous. See Anders, 386 U.S. at 744; 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 has certified to this Court that he provided Mother with a copy of the brief, along with a notice advising her of her right to file a pro se brief and instructions on how to obtain a copy of the appellate record, but Mother has not filed a pro se brief. After reviewing the record, we agree with Mother's attorney's conclusion that her appeal is frivolous and without merit.
We affirm the trial court's final order of termination. We deny Mother's counsel's motion 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, Mother's attorney's obligations to his client have not yet been discharged, and the request to withdraw is premature. See id. If after consulting with counsel Mother 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." Id. at 27-28.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Baker and Triana Affirmed Filed: July 24, 2020