                                                                                  ACCEPTED
                                                                              01-15-00525-CV
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                         8/17/2015 2:39:56 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                      NO. 01-15-00525-CV
   _________________________________________________________
                                                       FILED IN
                                                 1st COURT OF APPEALS
                  IN THE COURT OF APPEALS            HOUSTON, TEXAS
              FOR THE FIRST JUDICIAL DISTRICT8/17/2015 2:39:56 PM
                    OF TEXAS AT HOUSTON          CHRISTOPHER A. PRINE
                                                        Clerk
   _________________________________________________________

    IN THE INTEREST OF J.M., B.L.U., B.L.U. and K.U., Children
   _________________________________________________________

                         S.P.M., Appellant

                                 v.

            TEXAS DEPARTMENT OF FAMILY AND
               PROTECTIVE SERVICES, Appellee
   _________________________________________________________

                 APPEALED FROM THE 314TH
         DISTRICT COURT OF HARRIS COUNTY, TEXAS

                   Trial Cause No. 2013-05384J
   _________________________________________________________

            ORIGINAL BRIEF OF APPELLANT S.P.M.
    ____________________________________________________________


                               WILLIAM M. THURSLAND
                               TBN 20016200
                               440 Louisiana St., Ste. 1130
                               Houston, TX 77002
                               713-655-0200; Fax: (713) 655-9035
                               Email: wmthursland@hotmail.com

                               ATTORNEY FOR APPELLANT


ORAL ARGUMENT NOT REQUESTED
              IDENTIFICATION OF PARTIES AND COUNSEL

      Appellant herein states that the names of all parties and counsel to this
appeal are:

S.P.M., Appellant:

At Trial and On Appeal:

William M. Thursland
Attorney At Law
TBN 20016200
440 Louisiana St., Ste. 1130
Houston, TX 77002
Tel: 713-655-0200; Fax: 713-655-9035

The Texas Department of Family and Protective Services, Appellee:

At Trial:                                     On Appeal:

Marc A. Ritter                                Sandra D. Hachem
Assistant County Attorney                     Sr. Assistant Harris County Attorney
TBN 16951500                                  TBN 08620460
1019 Congress, 15th Fl.                       1019 Congress, 15th Fl.
Houston, TX 77002                             Houston, TX 77002
Tel: 713-274-5220;                            Tel: 713-274-5220;
Fax: 713-437-4700                             Fax: 713-437-4700

The Children at Trial:                        Alleged Father, J.J.S. at Trial:

Gary Polland                                  Kevin H. George
Attorney at Law                               Attorney At Law
TBN: 16095800                                 TBN: 07805850
2211 Norfolk, Ste. 920                        440 Louisiana, Ste. 1130
Houston, TX 77098                             Houston, TX 77002
Tel: 713-621-6335                             Tel: 713-655-0200
Fax: 713-622-6334                             Fax: 713-655-9035


Unknown Father at Trial:                      Alleged Father, E.L., at Trial:

                                          i
Thomas Montgomery                               Lance B. Medland
Attorney At Law                                 Attorney At Law
TBN: 14301000                                   TBN: 24072237
16307 Hickory Point Rd.                         3355 W. Alabama, Ste. 100
Houston, TX 77095                               Houston, TX 77099
Tel. & Fax: 281-463-9623                        Tel: 713-444-3186
                                                Fax: 281-822-1366

Alleged Father, P.M., at Trial:

J.B. Bobbitt
Attorney At Law
TBN: 24078237
405 Main St., Ste. 620
Houston, TX 77002
Tel: 713-529-6234; Fax: 281-476-7816


                      REQUEST FOR ORAL ARGUMENT

        Appellant does not request oral argument.

                             RECORD REFERENCES

Clerk’s Record:

      The clerk’s record consists of one (1) volume and is referred to herein as CR
followed by the page number(s).

Reporter’s Record:

       The court reporter’s record consists of three (3) volumes. The third volume
contains the trial testimony. It is referenced herein as (RR) followed by the page
and line number(s). The exhibits are referred to first by the party offering followed
by the number.

Statutory Citation References:

        Unless otherwise indicated, all statutory references refer to the Texas Family
Code.


                                           ii
                           TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL                  i

REQUEST FOR ORAL ARGUMENT                              ii

RECORD REFERENCES                                      ii

TABLE OF CONTENTS                                      iii

TABLE OF AUTHORITIES                                   iii

STATEMENT OF THE CASE                                  1

ISSUE PRESENTED                                        3

ISSUE ONE:

ARE THERE ANY NON-FRIVOLOUS GROUNDS
TO ASSERT ON APPEAL

STATEMENT OF FACTS                                     3

SUMMARY OF ARGUMENT                                    6

I. APPLICABLE LEGAL STANDARD                           7

II. SUFFICIENCY OF THE EVIDENCE                        10

III. CONCLUSION & PRAYER                               18

CERTIFICTE OF COMPLIANCE                               19

CERTIFICATE OF SERVICE                                 19

                         TABLE OF AUTHORITIES

                               FEDERAL CASES

Anders v. California, 386 U.S. 738 (1967)       6, 9, 10



                                        iii
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982)                 7

                                 STATE CASES

Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005)                 10

Holick v. Smith, 685 S.W. 2d 18 (Tex. 1985)                                 7

Holly v. Adams, 544 S.W. 2d 367 (Tex. 1976)                             15

In re A.C., 394 S.W.3d 633 (Tex. App. – Houston                         17
[1st Dist.] 2012, no pet.)

In re A.V., 113 S.W. 3d 355 (Tex. 2003)                                6, 7

In re C.H., 89 S.W. 3d 17 (Tex. 2002)                                   16

In re C.A.J., 122 S.W.3d 888 (Tex. App. – Ft. Worth 2003, no pet.)      17

In re D.N., 405 S.W.3d 863 (Tex. App. – Amarillo 2013, no pet.)         11

In re E.C.R., 402 S.W.3d 239 (Tex. 2013)                                12

In re G.M., 596 S.W.2d 846 (Tex. 1980)                                   9

In re J.F.C., 96 S.W.3d 256 (Tex. 2002)                               7, 8

In re J.L., 163 S.W.3d 79 (Tex. 2002)                                   9

In re J.S., 291 S.W.3d 60 (Tex. App. – Eastland 2009, no pet.)          11

In re J.W., 152 S.W.3d 200 (Tex. 2006)                               13, 14

In re K.C.M., 4 S.W. 3d 392 (Tex. App. - Houston [1st Dist.]            15
1999, pet. denied)

In re K.D., 127 S.W.3d 66 (Tex. App. – Houston                         6, 9
[1st Dist.] 2003, no pet.)

In re M.C.G., 329 S.W. 3d 674 (Tex. App.- Houston [14th Dist.]          11

                                          iv
2010, pet. denied)

Jordan v. Dossy, 325 S.W.3d 700 (Tex. App. – Houston            14
[1st Dist.] 2010, pet. denied)

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App, 1991)         10

Tex. Dept. of Hum. Servs. v. Boyd, 717 S.W.2d 531 (Tex. 1987)    14

Yonko v. DFPS, 196 S.W.3d 236 (Tex. App. – Houston               13
[1st Dist.] 2006, no pet.)

                                 STATUTES

Tex. Fam. Code §161.001(1)                                       9

Tex. Fam. Code §161.001(1)(E)                                   13

Tex. Fam. Code §161.001(1)(J)                                   12

Tex. Fam. Code §161.001(1)(O)                                   10

Tex. Fam. Code §161.001(2)                                      9




                                       v
                         NO. 01-15-00525-CV
      _________________________________________________________

                     IN THE COURT OF APPEALS
                 FOR THE FIRST JUDICIAL DISTRICT
                       OF TEXAS AT HOUSTON
      _________________________________________________________

      IN THE INTEREST OF J.M., B.L.U., B.L.U. and K.U., Children
      ________________________________________________________

                                S.P.M., Appellant

                                        v.

               TEXAS DEPARTMENT OF FAMILY AND
                  PROTECTIVE SERVICES, Appellee
      _________________________________________________________

                     APPEALED FROM THE 314TH
             DISTRICT COURT OF HARRIS COUNTY, TEXAS

                      Trial Cause No. 2013-05384J
      _________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Appellant, S.P.M., (also referred to as “mother”), respectfully submits her
Original Anders Brief in the referenced appeal.
                             STATEMENT OF THE CASE

      On September 30, 2015, the Texas Department of Family and Protective

Services (“DFPS”) filed its Original Petition For Protection Of A Child, For

Conservatorship And Termination In Suit Affecting The Parent-Child Relationship

                                        1
And Order Setting Hearing wherein it requested, inter alia., to be named the

temporary managing conservator of Patrick, a male born on December 12, 1998;

Larkin, a female born on March 26, 2006; Lee, a female born on July 22, 2007 and

Maverick, a male born on September 6, 2008.1 (CR 003-035) On the same day, the

trial court granted DFPS’ emergency request to take temporary conservatorship of

the children. At the show cause hearing held on October 15, 2013, DFPS was

appointed as the their sole temporary managing conservator.2

       After a bench trial, the trial court found the evidence sufficient to terminate

appellant’s parental rights under §161.001(1)(E), (J) and (O). It also found that

termination of her parental rights was in the children's best interests. DFPS was

appointed as their sole managing conservator. The “Decree For Termination” was

signed on May 12, 2015. (CR 177-188)

       On June 6, 2015, mother filed her notice of appeal. (CR 190-191) In an

order dated June 23, 2015, the trial court appointed appellate counsel and

confirmed S.P.M. is indigent.

                                    ISSUE PRESENTED



1
  Pursuant to TRAP 9.8(b) the children are identified by alias.
2
  These orders as well as the status hearing order and order appointing appellate counsel were not
included in the clerk’s record. Appellant has, therefore, requested that the record be
supplemented.
                                               2
ISSUE ONE: ARE THERE ANY NON-FRIVOLOUS GROUNDS TO ASSERT
           ON APPEAL

                            STATEMENT OF FACTS

      The case was called to trial on October 2, 2014. DFPS asked for a short

continuance because its “main trial attorney” was engaged in a jury trial. The

children’s ad litem (“ad litem”) also noted that Patrick who is “old enough to come

visit with the court” wanted to attend. Knowing that the case might be reset

because the main DFPS attorney was in trial and not wanting him to miss school

the ad litem did not bring him to court that morning. (RR p. 4 & 6)

      On this date, mother and alleged father, J.J.S., were present.        Another

alleged father, P.M., was in Illinois and the other, E.L. was never found. DFPS

counsel then offered a number of trial exhibits. The trial court held that counsel

could withhold making their objections to the exhibits until the trial resumed. (RR

p. 7-10)

      When the case resumed on April 28, 2015, DFPS re-offered its exhibits.

Mother was not present but her attorney ad litem was. (RR-3 p. 6-7) The court

accepted J.J.S.’s irrevocable affidavit relinquishing his parental rights. His rights

were then terminated pursuant to subsection (K). (RR p. 9)

      The court sustained appellant’s hearsay objections to DFPS #9, the removal



                                        3
affidavit, and to the first paragraph of DFPS #19, her family service plan (“FSP”).

It also sustained her relevance objection to DFPS #19, a misdemeanor assault

conviction. (RR 10-11)

      The DFPS caseworker, Maria Garza (“Garza”), testified the children are

sixteen, nine, seven and six years old. The two older children are placed with their

half sister, Ashley, who wants to adopt them.       Their two younger siblings are

placed in a non-adoptive foster home. The “plan” is to place the younger children

with Ashley once she obtains a larger house. She also wants to adopt the younger

children. (RR p. 11; L. 21-25 & p. 12)

      Mother was provided with a FSP but did not do all her services.

Specifically, she did not do individual therapy, “another psychiatric evaluation”

and the psychosocial assessment. She attended all court hearings except “for this

one.” She regularly visited the children but missed the last two visits. (RR p. 13)

      The children originally came into care because appellant was “arrested on a

mental health warrant.” Garza opined it was in the children’s best interest to have

mother’s parental rights terminated because she “is not able to provide a safe

environment for them;” her mental health issues and “not willing to send them to

school.” (RR p. 14)

      Garza called mother on her last visit because she was late. She said she

                                         4
forgot and arrived forty minutes late. She failed to attend the last two scheduled

visits. (RR p. 15)

      Michael Luna (“Luna”), the Child Advocate coordinator, testified it is in the

children’s best interest to terminate the parents’ parental rights because they have

not completed their family service plan and mother missed her last two visits. In

addition, he went to her last known address the day before and it was an abandoned

lot. The trailer home was gone and she did not provide any information that “she

was moving or relocating.” (RR p. 20 & 21)

      When Patrick came into care he could not read or write; had difficulty

understanding numbers and calendar days. He is making progress now but needs

extra tutorials “to help catch up.” All the children show substantial delays in

education. (RR p. 21; L. 15-25)

      Patrick testified that he is sixteen years old and “fells like” his current living

circumstances are taking care of his needs. He and his siblings lived with their

mother until he was fourteen when they came into DFPS care. Appellant “pretty

much beat [them] senseless” without giving a reason. He took beatings for his

other siblings “because they wouldn’t be able to handle the beatings.” She used

“brute force” and the beatings were “an ongoing thing.”

      Neither Patrick nor his siblings ever went to school. Nor did appellant give

                                         5
them any type of home schooling. (RR p. 23; L. 20-25 & p. 24-25)

                              SUMMARY OF ARGUMENT

      After thoroughly reviewing the appellate record, the undersigned court-

appointed counsel (“counsel”) has determined, in his professional opinion, that

there are no non-frivolous grounds to assert on appeal. Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967) This Court has held that the Anders procedures are

applicable to appeals involving the termination of parental rights. In re K.D., 127

S.W.3d 66, 67 (Tex. App. – Houston [1st Dist.] 2003, no pet.)

      Counsel determined that the record contains evidence that is legally and

factually sufficient to support the termination findings under each of the predicate

grounds found by the trial court; i.e. subsections (E), (J) and (O). Although the

evidence need only support one predicate ground, counsel will review the review

the evidence supporting each of the predicate grounds found by the trial court. In

re A.V., 113 S.W.3d 355, 262 (Tex. 2003)

      Similarly, the record contains sufficient evidence to support the trial court’s

termination finding on best interest grounds. The Holly factors weight heavily in

support of the best interest finding. In contrast, the evidence weighing against that

finding is paltry.

ISSUE ONE: ARE THERE ANY NON-FRIVOLOUS GROUNDS TO ASSERT
           ON APPEAL
                                         6
                      I. APPLICABLE LEGAL STANDARD


A. Termination of Parental Rights:
      The involuntary termination of parental rights is a serious matter implicating

fundamental constitutional rights. Holick v. Smith, 685 S.W. 2d 18, 20 (Tex. 1985)

The natural right existing between a parent and a child is of such a degree as to be

of constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S.

Ct. 1388, 1397-98 (1982) As a result, appellate courts strictly scrutinize

termination proceedings and involuntary termination statutes are strictly construed

in favor of the parent. Holick v. Smith, 685 S.W. 2d at 20-21 However, the “rights

of natural parents are not absolute” and “the rights of parenthood are accorded only

to those fit to accept the accompanying responsibilities.” In re A.V. 113 S.W.3d at

361 (Tex. 1994)

B. Sufficiency of the Evidence Analysis:

      Proceedings to terminate parental rights require proof by clear and

convincing evidence. This standard requires “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.” In re J.F.C., 96 S.W.3d 256, 264-

265 (Tex. 2002)



                                         7
      In conducting a legal sufficiency review the court should consider all the

evidence in the light most favorable to the finding to determine whether a

reasonable trier of fact could have formed a reasonable belief that its finding was

true. It must assume that the fact finder resolved disputed facts in favor of its

findings if a reasonable fact finder could do so. A corollary to this requirement is

that a court should disregard all evidence that a reasonable fact finder could have

disbelieved or found to have been incredible. This does not mean however that a

reviewing court must disregard all evidence that does not support the finding.

Disregarding undisputed facts that do not support the finding could skew the

analysis of whether there is clear and convincing evidence. If the court determines

that a reasonable fact finder could not form a firm belief or conviction that the

allegations were true, then it must conclude that the evidence is legally insufficient.

Id. at 266

      When conducting a factual sufficiency review, the appellate court must

consider all the evidence equally, both disputed and undisputed, to determine if the

disputed evidence is such that a reasonable fact finder could not have resolved the

disputed evidence in favor of its finding. If in light of the entire record, the

disputed evidence that a reasonable fact finder could not have credited in favor of

the finding is so significant that a fact finder could not have reasonably formed a

                                         8
firm belief or conviction, then the evidence is factually insufficient. Id. at 266

      The State bears the burden of proving by clear and convincing evidence the

following: (1) that the parent committed one or more of the acts or omissions

specifically listed under §161.001(1); and (2) termination of the parent’s rights is

in the child’s best interest. §161.001(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2002)

The State must prove all elements of its case by clear and convincing evidence.

The parent has no burden of proof. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)

C. Anders Procedures & Requirements:

      When court-appointed counsel determines, in his or her professional

opinion, that an appeal is without merit and there are no arguable grounds for

reversal, counsel is required to file a brief that meets the requirements of Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967) The Anders procedures are

applicable to an appeal from the termination of parental rights when an appointed

counsel determines that there are no non-frivolous issues to assert on appeal. In re

K.D., 127 S.W.3d at 67

      The court of appeals is required to fully examine the record to determine

whether there are no non-frivolous issues to assert on appeal. If it determines that

an appeal is wholly frivolous, it may issue an opinion explaining that it has



                                          9
reviewed the record and finds no reversible error. Or, it may remand the cause to

the trial court so that new counsel may be appointed to brief the issues. Bledsoe v.

State, 178 S.W.3d 824, 826-827 (Tex. Crim. App. 2005) A copy of appellant’s

brief and a copy of the record must be provided to the appellant. In addition, the

appellant must be advised of her right to review the record. Stafford v. State, 813

S.W.2d 503, 510 (Tex. Crim. App. 1991)

      Finally, appointed counsel must act in the role of an active advocate on

behalf of the client. Counsel is required to refer to anything in the record that

might arguably support the appeal. Anders v. California, 386 U.S. at 744, 87 S. Ct.

at 1400

   II. DISCUSSION AND ANAYLSIS – SUFFICENCY OF THE EVIDENCE


A. Analysis- Subsection (O):

      The trial court found by clear and convincing evidence that termination of

appellant’s parental rights was warranted under §161.001(1)(O). The Family

Code provides that a court may order termination of the parent-child relationship if

it finds by clear and convincing evidence that the parent has:

      Failed to comply with the provisions of a court order that specifically
      establish the actions necessary for the parent to obtain the return of the
      child who has been in the permanent or temporary managing
      conservatorship of the Department of Family and Protective Services
      for not less than nine months as result of the child’s removal from the
                                         10
      parent under Chapter 262 for the abuse or neglect of the child.

§161.001(1)(O)


      Generally speaking, Texas courts have taken a rather strict approach to

subsection (O). This subsection looks only for a parent’s failure to comply with a

court order, without reference to the quantity of the failure or degree of

compliance. In re: D.N., 405 S.W.3d 863, 877 (Tex. App. – Amarillo 2013, no

pet.) citing In re J.S., 291 S.W.3d 60, 67 (Tex. App. – Eastland 2009, no pet.) See

also In re M.C.G., 329 S.W.3d 674, 675 (Tex. App. – Houston [14th Dist.] 2010,

pet. denied)(where failure to complete one requirement of the family services plan

supported subsection (O) termination finding)

      In the instant appeal DFPS introduced uncontroverted evidence that

established each of the elements required to support a termination finding under

subsection (O).

      Appellant was provided with a FSP that through the status hearing order and

subsequent permanency hearing orders was made approved and made an order of

the court. At the time of trial the children had been in DFPS conservatorship for

not less than nine months and had been removed from appellant due to neglect.

Garza testified that the children came into care because mother was arrested on a


                                         11
mental health warrant. Although the removal affidavit was not admitted into

evidence the trial court could consider its allegations in determining whether the

children were removed from the parent for abuse or neglect. In re E.C.R., 402

S.W.3d 239, 248 (Tex. 2013)(“[The removal] affidavit, even if not evidence for all

purposes, shows what the trial court relied on in determining whether removal was

justified.”)

       Garza also testified that mother was provided with a FSP. She did not do

her individual therapy, psychiatric evaluation or psychological assessment.

Appellant was also required to attend all court hearings but failed to appear at trial.

Although she was regularly visiting the children, she missed the last two.

       In conclusion, based on the undisputed evidence a reasonable fact finder

could form a firm belief or conviction that DFPS provided clear and convincing

proof to support a termination finding under subsection (O).

B. Analysis – Subsection (J):

       A court may order termination of the parent-child relationship if it finds by

clear and convincing evidence that the parent has been the major cause of the

failure of the child to be enrolled in school as required by the Education Code.

§161.001(1)(J) The Education Code provides that “a child who is at least six years

of age . . . shall attend school.” Educ. Code §25.085(b) See Yonko v. DFPS, 196

                                          12
S.W.3d 236, 242 (Tex. App. – Houston [1st Dist.] 2006, no pet.)

      Patrick testified that he lived with his mother for the first fourteen years of

his life. During that period of time neither he nor his siblings ever attended school.

Neither did they ever receive any type of home schooling.

      Luna confirmed that when Patrick came into DFPS care he was illiterate.

He also had difficulty understanding numbers and calendar days. Although he is

making progress he needs extra tutorials “to help catch up.” Finally, Luna stated

that all the children show substantial delays in education.

      In sum, the evidence pertaining to subsection (J) was unchallenged and

compelling.

C. Analysis – Subsection (E):

      To support the termination of parental rights under §161.001(1)(E), the State

must prove 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.” The relevant inquiry under this section involves the parent’s

acts and omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. 2006)

      Termination under subsection (E) “must be based on more than a single act

or omission and requires a voluntary, deliberate and conscious course of conduct

by the parent that endangers the child’s physical and emotional well-being.” Id. at

                                         13
205

      Endangerment is defined as “to expose to loss or injury; to jeopardize.”

Texas Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although

“endanger” means more than a threat of metaphysical injury or the possible ill

effects of a less-than ideal environment, it is not necessary that the conduct be

directed at the child or that the child actually suffers injury.

      The relevant inquiry is whether evidence exists that a parental course of

conduct endangered the child’s physical or emotional well-being.         Jordan v.

Dossey, 325 S.W. 3d 700, 713 (Tex. App. – Houston [1st Dist.] 2010, pet. denied)

      Evidence of a parent's past conduct, including criminal history, may be

relevant if it shows a conscious course of conduct occurring both before and after a

child's birth. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.]

1997, no writ) While it is not necessary that the endangering conduct be directed at

the child or that the child actually suffers an injury, the child must be exposed to

loss or injury. In re: J.W., 225 S.W.3rd at 205

      In regard to the evidence relating to subsection (E), Patrick testified that

appellant “pretty much beat” them “senseless” without giving a reason. She used

“brute force” and the beatings were an “ongoing thing.” The mother’s assaultive

conduct directed at her children coupled with her conscious failure to educate them

                                           14
is sufficient to support the trial court’s finding that she knowingly engaged in a

course of conduct that endangered the children’s physical or emotional well-being.

D. Analysis - Best Interests:

      In addition to establishing that a parent committed one of the prohibited acts

specified in §161.001(1), DFPS also has the burden of proving by clear and

convincing evidence that termination of a parent’s parental rights is in the child’s

best interest. §161.001(2) There is a strong presumption that the child’s best

interest is served by keeping custody in the natural parent. In re K.C.M., 4 S.W. 3d

392, 393-393-95 (Tex. App. – Houston [1st Dist.] 1999, pet. denied)

      In Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976), the Supreme Court

identified nine factors to consider in determining the best interest of the child.

Those factors are the desires of the child, the emotional and physical needs of the

child now and in the future, the emotional and physical danger to the child now

and in the future, the parental abilities of the individuals seeking custody, the

programs available to assist those individuals to promote the best interests of the

child, the plans for the child by the parties seeking custody, the stability of the

home or proposed placement, the acts or omissions committed by the parent that

might indicate that the existing parent-child relationship is not a proper one, and

any excuses for the acts or omission committed by the parent.

                                          15
      While the Holly court instructed that the list is by no means exhaustive it

does provide a good point of reference to aid in assessing the trial courts’ best

interest finding. The absence of evidence pertaining to some of the factors will not

preclude a fact finder from forming a strong conviction or belief that termination is

in the child’s best interest. On the other hand, scant evidence relevant to each

Holly factor will not support such a finding.

      The same evidence of acts or omissions that support termination under

161.001(1) may be probative in determining the child’s best interest. In re C.H.,

89 S.W.3d 17, 27-28 (Tex. 2002)(“While it is true that proof of acts and omissions

under section 161.001(1)(E) does not relieve the petitioner from providing the best

interest of the child, the same evidence may be probative of both issues.”) Here

the undisputed evidence shows that appellant regularly assaulted her children and

violated the Education Code by failing to enroll them in school when them attained

six years of age is also probative of the best interest factors.

      In addition, appellant failed to complete her court ordered FSP by not doing

individual therapy, her psychiatric evaluation or psychosocial assessment. The

trial court could justifiably conclude that the underlying causes that brought the

children into care had not been ameliorated.

      At the time of trial, the two older children were living with Ashley who

                                          16
wants to adopt them. The DFPS plan is to place the two younger children with her

as soon as she obtains a larger house. Ashley also wants to adopt them. The

children are attending school and their current needs are being met.

      Luna testified he attempted to visit appellant the day before trial but her

trailer home was gone and the lot abandoned. She failed to provide any

information regarding her new location. On the other hand, there was no evidence

that she could provide permanency or a stable environment for her child. See In re

C.A.J., 122 S.W.3d 888, 894 (Tex. App. – Ft. Worth 2003, no pet.) (“without

stability, income, or a home, [a parent] is unable to provide for the child’s

emotional and physical needs.”) In addition, while DFPS and Luna were providing

assistance to Patrick (and presumably the other children) to overcome their

educational deficiencies there was no evidence that appellant would be able to

meet those needs. Indeed, she was the cause of the educational delays.

      There is some evidence, however, that weighs the Holly factors in favor of

the mother. For instance, she was visiting the children regularly until the last two

visits and had been attending all court hearings except for the last one. While

Garza alluded to mother’s “mental health issues” the record contains no evidence

to explain what those issues were. Nevertheless, in regard to the first Holly factor,

the child’s desires, it was clear that Patrick preferred living with Ashley rather than

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his mother.

      Based on carefully perusal of the record counsel has concluded that the

evidence is legally and factually sufficient to support the termination finding on

best interest grounds.

                         III. CONCLUSION AND PRAYER

      Based on counsel’s professional evaluation of the record, he determined that

there are no arguable grounds for appeal and that S.P.M.’s appeal is wholly

frivolous. Counsel certifies to the Court that contemporaneously with filing this

brief, he has forwarded to appellant by certified mail, return receipt requested, and

U.S. First Class Mail to her last known mailing address a copy of this brief and a

letter informing her that she has the right to file a pro se response with this Court

within 30 days. Counsel also informed her that if this Court concludes after

independently reviewing the record that an appeal is wholly frivolous then she has

the right to challenge that holding by filing a petition for review in the Texas

Supreme Court.

      Counsel prays that he be permitted to withdraw.

                                        Respectfully submitted,

                                        /s/ William M. Thursland
                                        ___________________________
                                        William M. Thursland
                                        TBN: 20016200
                                          18
                                          440 Louisiana St., Ste. 1130
                                          Houston, Texas 77002
                                          (713) 655-0200; Fax: (713) 655-9035
                                          Email: wmthursland@hotmail.com

                                          Attorney for Appellant, S.P.M.

                         CERTIFICATE OF COMPLIANCE

        I certify that the foregoing computer generated brief complies with word
limit requirements of TRAP 9.4 (3). Relying on the word count of the computer
program used to prepare this document, the number of words, is 3,816 excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural history,
signature, proof of service, certificate of compliance and appendix.

                                          /s/ william m thursland
                                          _______________________
                                          William M. Thursland

                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of appellant’s brief was served in
accordance with TRAP on August 17, 2015 on:
        (1) Sandra D. Hachem, Sr. assistant Harris County attorney, 1019 Congress,
15th Fl., Houston, TX 77002, by electronic delivery;
        (2) Gary Polland, 2211 Norfolk, Ste. 920, Houston, TX 77098, attorney ad
litem for the children, by hand or electronic delivery; and,
        (3) S.P.M., appellant, to her last known address: 11410 Brooklyn St., TRLR
 261, Houston, TX 77093


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by certified mail, return receipt requested & U.S. First Class Mail and by electronic
delivery to sandrapmccormick@yahoo.com


                                        /s/ william m. thursland
                                        _________________________
                                        William M. Thursland




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