Opinion
No. 01-04-00810-CV
Opinion Issued April 7, 2005.
On Appeal from the 313th District Court, Harris County, Texas, Trial Court Cause No. 2003-0522OJ.
Brian J. Fischer, Houston, TX; Valentian Polanco, Houston, TX, for Appellant.
Sandra D. Hachem, Senior Asst. County Atty., Houston, TX, for Appellee.
Panel consists of Justices TAFT, KEYES, and HANKS.
MEMORANDUM OPINION
Appellant, Valentina Polanco, appeals the trial court's order terminating her parental rights to her daughter, T.P. Polanco's court-appointed appellate counsel has filed an Anders brief, in which he concludes that, after his evaluation of the entire record, there are no grounds that can arguably support any appeal. We grant counsel's motion to withdraw and affirm the judgment of the trial court.
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967).
The Department of Family and Protective Services ("DFPS") brought suit to terminate Polanco's parental rights. Following a bench trial, the trial court signed a decree terminating Polanco's parental rights to T.P. The decree recited that termination of Polanco's parental rights was in T.P.'s best interests and that Polanco had "engaged in conduct or knowingly placed [T.P.] with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of [T.P.]. . . ." See Tex. Fam. Code Ann. § 161.001(1)(E) (Vernon 2002).
Anders applies to termination-of-parental-rights cases. See In re K.D., 127 S.W.3d 66, 67 (Tex.App.-Houston [1st Dist.] 2003, no pet.); accord In re D.E.S., 135 S.W.3d 326, 327 (Tex.App.-Houston [14th Dist.] 2004, no pet.). We have reviewed counsel's brief and hold that counsel has met the briefing requirements set forth in Anders: the brief sets forth a professional evaluation of the record and states why there are no arguable issues to assert on appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel explains, for example, why he concludes that legally and factually sufficient evidence supported the termination, which requires at least one basis for termination enumerated in Family Code section 161.001(1) and evidence that termination was in T.P.'s best interest. See TEX. FAM. CODE ANN. § 161.001(1), (2) (Vernon 2002). We have reviewed the entire record and concur with counsel's evaluation concerning the sufficiency of the evidence.
As for legal sufficiency, for example, one of DFPS's witnesses, caseworker Maria Campble, testified that T.P. came into care for physical abuse because doctors had informed DFPS that "the mother used to punish [T.P.] and put her in a closet and beat her up." Campble also testified that Polanco had not yet participated in the domestic-violence program required in DFPS's family-service plan; had missed three visits with T.P.; had displayed aggressive or inappropriate behavior in some of the visits that she had made with T.P. or at the residence at which T.P. was staying, which upset T.P. and once made her have an asthma attack; threatened to hurt T.P. and "everyone involved in the case"; threatened "many times" to commit suicide; had a history of getting together with violent men, at least one of whom had "brutally hit [Polanco] against the wall" in T.P.'s presence, at least one of whom had hit T.P. in the face, and at least one of whom had had an "extensive criminal history"; and acted inappropriately during visits when not taking her medication, which she took inconsistently. Campble also testified that T.P. was "doing great" in her current placement with an aunt and that it was in T.P.'s best interest to stay there because the relative was meeting T.P.'s basic social, emotional, medical, and educational needs and was providing a safe and structured environment with a lot of love and attention for T.P. Campble also testified that she had concerns about Polanco's continuing the pattern of seeing undesirable men, and Campble agreed with the statement that "the mother's acts from the very beginning, from the time that the incident that led — led to the child being removed to the present day constitute acts which place [T.P.] in danger[.]" We concur with Polanco's appellate counsel that this evidence is legally sufficient under the applicable standard. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (holding that appellate standard of review for legal-sufficiency challenge in termination-of-parental-rights cases is whether evidence, viewed in light most favorable to finding, is such that fact finder could reasonably have formed firm belief or conviction about truth of matter on which State bore burden of proof). Evidence relating to a factual-sufficiency review is noted in footnote 3. We also agree with counsel that that evidence does not make the judgment factually insufficient under the applicable standard of review. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (holding that standard of review for factual-sufficiency challenge in parental-rights-termination case is whether, considering both evidence supporting and evidence contradicting finding, fact finder reasonably could have formed firm conviction or belief about truth of matter on which State bore burden of proof).
Furthermore, counsel's motion to withdraw recites that counsel has delivered a copy of the motion and supporting brief to Polanco and informed her of the right to file her own pro se response and to review the appellate record. See Sowels v. State, 45 S.W.3d 690, 693 (Tex.App.-Waco 2001, no pet.). To date, Polanco has not filed a response. We have also discharged our responsibility, upon the filing of an Anders brief, to search the record for possible reversible error, but have found none. For example, trial counsel appears to have represented Polanco vigorously; no clearly harmful, erroneous evidentiary rulings are evident; DFPS's pleadings support the judgment; and no fundamental error is evident. Accordingly, we affirm the trial court's judgment.
Counsel filed a pre-trial motion for family visitation, she was shown as having appeared for an unrecorded pre-trial permanency hearing, and she filed a motion for new trial. Trial counsel also invoked the rule before trial, objected during trial seven times (five of which were objections sustained), presented Polanco as a witness, thoroughly cross-examined adverse witnesses, and presented a closing argument. Through Polanco's testimony and the cross-examination of adverse witnesses, counsel elicited testimony favorable to Polanco, such as the fact that Polanco had completed required parenting classes successfully; had attended domestic-violence classes; had attended all but three bi-monthly meetings with T.P.; had generally come to all court appearances; had brought appropriate gifts to T.P. during visits; had been living with her brother (rather than with an abusive man) for at least four or five months during the case's duration; had been able to function fairly well when she took her medication; had evidenced a bond with T.P. during at least one visit; had obtained employment, transportation, and a residence by the time of trial; had no drug or alcohol problems; had apologized to Campble at least once after having used profanity; loved her children; had a difficult time getting her medication that she needed because she had no car, health insurance, or consistent ability to pay; and believed that she could support T.P. financially if parental rights were not terminated. Counsel also elicited that Polanco's psychiatrist planned to continue therapy sessions with Polanco and with T.P.
We grant appellate counsel's motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We note that counsel still has a duty to inform Polanco of the result of this appeal and also to inform Polanco that she may, on her own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997).