                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-18-00194-CV


              IN THE INTEREST OF X.G., A.A., M.A., AND A.A., CHILDREN

                        On Appeal from the County Court at Law No. 1
                                     Randall County, Texas
                Trial Court No. 71,834-L1, Honorable Jack M. Graham, Presiding

                                      August 22, 2018

                               MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       Appellant, C.A., appeals the trial court’s order terminating his parental rights to his

children, X.G., A.A., M.A., and A.A.1 Appointed counsel for C.A. has filed an Anders2 brief

in support of a motion to withdraw. Finding no arguable grounds for appeal, we affirm the

judgment of the trial court.




       1 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). The
mother’s rights were terminated at the same proceeding after she executed an affidavit
voluntarily relinquishing her parental rights to her children. TEX. FAM. CODE ANN.
§ 161.001(b)(1)(K) (West 2018). The mother has not appealed.
       2   See Anders v. California, 386 U.S. 738 (1967).
                                        Background


       C.A., 37 years old, and the mother are the parents of four children, X.G., A.A.,

M.A., and A.A. By the time of the final hearing, X.G. was eleven years of age, A.A. was

eight, M.A. was seven, and the younger A.A. was one. All four children were living with

their maternal grandparents.


       The Texas Department of Family and Protective Services became involved with

the family in March 2017 when it received a report concerning C.A. At that time, C.A. was

on deferred adjudication community supervision for burglary of a building and burglary of

a habitation. C.A. tested positive for marijuana and methamphetamine on a community

supervision drug screen. The next month, the younger A.A. was born. Both the mother

and A.A. tested positive for methamphetamine at the time of the child’s birth. As a result,

the Department conducted a drug screen on the three older children. M.A. tested positive

for methamphetamine. Two days after the younger A.A. was born, the Department filed

pleadings that included an original petition for protection of a child, for conservatorship

and for termination in suit affecting the parent-child relationship and a pleading requesting

emergency removal of the children from the care of their parents. After a hearing, the

children were removed and placed in the care of their maternal grandparents.


       The final hearing was held in April 2018. A Department caseworker testified to the

positive drug tests and allegations of neglectful supervision by C.A. She also testified to

C.A.’s admissions of drug use to his community supervision officer and his convictions

and resulting sentences based on those admissions.




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       C.A. also testified. He admitted to his twelve-year history of methamphetamine

use.   He told the court that in June 2017, he was sent to a three-month intensive

supervision facility to address his drug use. He completed the program but, on release,

continued to use drugs. In October 2017, C.A. admitted methamphetamine use to his

community supervision officer, who supervised his probation in the two criminal cases.

He was later arrested, and his community supervision was revoked in both cases. He

was sentenced to twelve months in a state jail facility in one case and three years in the

Institutional Division of the Texas Department of Criminal Justice in the other. At the time

of the final hearing, C.A. was incarcerated in a state jail facility. He told the court he had

been sober for 126 days, loves his children, knows he “messed up” and would “like to try

to get a chance to get my children back one time.” He said, “I just haven’t had enough

time to get them back.”


       The court also heard testimony from the maternal grandfather that he and his wife

have been involved in the children’s lives since birth. The children were doing well and

the grandparents planned to care for them “long term.” The grandfather agreed that drug

addiction had been part of the parents’ lives for some time and that they had “given them

chances and chances.” The grandfather agreed he and his wife would continue to keep

the children safe from their parents’ drug abuse.


       After the bench trial, 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)(D),

(E), (O) and (Q) (West 2018) (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

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predicate ground required to terminate parental rights under section 161.001(b)(1)). The

trial court also found that termination was in the best interest of the children. TEX. FAM.

CODE ANN. § 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 children).


       C.A. filed notice of appeal challenging the trial court’s order of termination.


                                          Analysis


       Pursuant to Anders, C.A.’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.) (noting 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). In compliance with Anders,

counsel has provided to C.A. a copy of the brief, motion to withdraw, and appellate record

and notified him of his right to file a pro se response if he desired to do so. Kelly v. State,


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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).

C.A. has not filed a response.


       Due process requires that termination of parental rights be supported by clear and

convincing evidence. In the Interest of D.P., No. 07-16-00343-CV, 2017 Tex. App. LEXIS

1820, at *5-6 (Tex. App.—Amarillo, Mar. 2, 2017, no pet.) (mem. op.) (citing In re E.M.E.,

234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.)). This “intermediate standard falls

between the preponderance of the evidence standard of civil proceedings and the

reasonable doubt standard of criminal proceedings.” Id. (citing In re E.M.E., 234 S.W.3d

at 73). It is defined as 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. Id. (citing TEX. FAM. CODE ANN. § 101.007 (West 2008)).


       Counsel’s brief identifies potential appellate issues, including the sufficiency of the

evidence to support the grounds on which the trial court terminated C.A.’s parental rights.

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 256, 266 (Tex. 2002). In a factual sufficiency

review, we are to determine whether, on the entire record, a fact finder reasonably could

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.).



                                              5
       By her Anders brief, counsel demonstrates that reversible error is not present

because sufficient evidence supports termination under subsections D, E, and Q. In

particular, it is clear C.A. knowingly engaged in criminal conduct that has resulted in his

conviction of an offense and confinement and inability to care for the children for not less

than two years from the date the Department filed its petition in April 2017. In re J.J., No.

14-11-00652-CV, 2012 Tex. App. LEXIS 1514, at *14-17 (Tex. App.—Houston [14th Dist.]

Feb. 28, 2012, no pet.) (mem. op.) (discussing sufficiency of evidence to support

subsection Q). See also In re A.V., 113 S.W.3d 355, 361; 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). The

judgment reflecting C.A.’s conviction for burglary of a habitation shows an offense date in

October 2016 and shows a sentence of three years’ confinement in the Institutional

Division was imposed on February 8, 2018. While C.A. indicated his belief during his

testimony that he would be released in December 2018, the trial court could have found

that release date was speculative given the three-year sentence for his burglary

conviction. And, in his testimony, C.A. expressed no plan for the care of his children

during his incarceration. See In re A.R., No. 02-14-00237-CV, 2015 Tex. App. LEXIS

382, at *7-11 (Tex. App.—Fort Worth Jan. 15, 2015, no pet.) (mem. op.) (citing In re

H.R.M., 209 S.W.3d 105, 108-09 (Tex. 2006) (parole eligibility and potential release date

within the two-year period is relevant but those dates are “inherently speculative”).


       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 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.


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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 C.A.’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.


                                         Conclusion


       The trial court’s order terminating C.A.’s parental rights to his children is affirmed.3




                                                          James T. Campbell
                                                             Justice




       3 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).

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