                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                 §
                                                                 No. 08-15-00360-CV
                                                 §
                                                                       Appeal from
 IN THE INTEREST OF: S.P., A CHILD.              §
                                                                  65th District Court
                                                 §
                                                               of El Paso County, Texas
                                                 §
                                                                (TC # 2013DCM5194)
                                                 §

                                          OPINION

        This appeal is from a judgment terminating the parental rights of J.P., father, and M.C.,

mother, to their child, S.P. For the reasons that follow, we affirm.

                                    FACTUAL SUMMARY

        M.C. (Mother) has four children: eighteen-year-old T.C., seventeen-year-old S.C., C.P.,

and S.P. who was five years of age at the time of trial. J.P. is the father of both C.P. and S.P.

This case involves only S.P., but the other children have been removed from Mother’s home in

the past.

        On June 14, 2013, eighteen-month-old S.P. was found alone at 9:30 a.m. behind a

restaurant. The child was dirty, her hair was matted, and she had urinated on herself. The El

Paso Police Department searched for the child’s parents around the restaurant and in the

neighborhood for approximately an hour, but they were not immediately located. Some people
in the area directed the officers to an apartment where the child was believed to live, but no one

answered the door. As the officers started to leave, a teenager approached them and identified

himself as S.P.’s brother. The officers did not leave S.P. in her brother’s care because he had

already allowed her to wander away from the apartment. The police continued to search for

S.P.’s parents and they found her mother, M.C., intoxicated in a bar around 4:00 p.m. that same

day. When the officers informed M.C. (Mother) why they were looking for her, she was

unconcerned and told them that she had left S.P. in the care of her son. The Texas Department of

Family and Protective Services (the Department) removed the child and placed her at the Child

Crisis Center.

       The following day, Mother spoke with Maria McCord, an investigator with the

Department, and told her that she was an alcoholic and she left the apartment that morning at

approximately 7:00 to go to a neighborhood bar. Mother left S.P. in the care of the child’s

father, J.P., (Father). McCord also spoke with Father, who explained that he had been watching

S.P., but he asked his step-son to watch S.P. while he went to the store. Father told McCord that

S.P. had been in her playpen when he left the apartment. When he returned home at noon, S.P.

was not in the apartment. Father told McCord that he did not look for her because he knew that

S.P. played in the playground near the apartment.        Father pointed in the direction of the

playground, but McCord could not see it from the apartment. In McCord’s opinion, it was not

safe for a child of S.P.’s age to be playing alone in a playground. In contrast with what he told

McCord, Father testified at trial that he was gone for only a half hour and he began searching for

S.P. around the area. Father denied telling McCord that he did not look for S.P. or that she

sometimes played unsupervised at the playground.




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       The Department filed suit on July 15, 2013 seeking to be made permanent managing

conservator of S.P. if the child could not be safely reunified with either parent. The petition also

sought termination of the parental rights of Mother and Father if reunification could not be

achieved. The Department initially intended to return S.P. to her parents, and the parents were

offered services. Both Mother and Father were required to participate in marriage counseling,

parenting classes, anger management classes, and Alcoholics Anonymous.                Mother was

additionally required to undergo out-patient treatment for alcoholism through Aliviane. The

parents complied with these requirements and S.P. was returned to her family under monitored

supervision in May 2014. The Department removed S.P. on August 20, 2014 because both

parents tested positive for the use of alcohol. Neither parent attended the permanency hearing

held the following day. Mother began out-patient treatment for alcoholism through Aliviane, but

she did not complete the program.         Both parents were required to participate in anger

management closes, but they failed to do so. Additionally, Father failed to complete a substance

abuse evaluation and he also missed scheduled visits with S.P. The evidence showed that

Father’s parental rights to another child, C.P., had been terminated.

       The Department filed its second amended termination petition in February 2015. It

sought to terminate Mother’s and Father’s parental rights under Section 161.001(1)(D),

161.001(1)(E), and 161.001(1)(O). See TEX.FAM.CODE ANN. § 161.001(1)(D), (E), and (O)

(West Supp. 2016). Additionally, the petition alleged that Mother had been convicted or placed

on community supervision for the offense of endangering or abandoning a child under Section

24.041. See TEX.FAM.CODE ANN. § 161.001(1)(L). After a bench trial, the trial court entered

judgment terminating the parental rights of both Mother and Father.

                                     MOTHER’S APPEAL



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       A parent’s rights may be involuntarily terminated through proceedings brought under

Section 161.001 of the Texas Family Code. See TEX.FAM.CODE ANN. § 161.001. Under this

provision, the petitioner must (1) establish one or more of the statutory acts or omissions

enumerated as grounds for termination, and (2) prove that termination is in the best interest of

the children. See id. Both elements must be established and termination may not be based solely

on the best interest of the children as determined by the trier of fact. Texas Department of

Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d

135, 138 (Tex.App.--El Paso 2015, no pet.).

       In three issues, Mother challenges the legal and factual sufficiency of the evidence

supporting the trial court’s findings that termination is in the child’s best interest, that Mother

knowingly placed or knowingly allowed S.P. to remain in conditions or surroundings which

endanger the child’s physical or emotional well-being, and that Mother engaged in conduct or

knowingly placed S.P. with persons who engaged in conduct which endangers the physical or

emotional well-being of the child. Significantly, Mother has failed to challenge the sufficiency

of the evidence supporting the trial court’s predicate termination finding under subsection O that

she failed to comply with the provisions of a court order that specially established the actions

necessary for the mother to obtain the return of the child. This unchallenged finding is sufficient

to support the order of termination provided that the evidence is legally and factually sufficient

to support the best interest finding. See Perez v. Texas Department of Protective and Regulatory

Services, 148 S.W.3d 427, 434 (Tex.App.--El Paso 2004, no pet.).

                                       Sufficiency Standards

       When reviewing the legal sufficiency of the evidence in a termination case, we consider

all of the evidence in the light most favorable to the trial court’s finding, “to determine whether a



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reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the

fact finder’s conclusions, indulge every reasonable inference from the evidence in favor of that

finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long

as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We

disregard any evidence that a reasonable fact finder could have disbelieved, or found to have

been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re

J.F.C., 96 S.W.3d at 266.

       In a factual sufficiency review, the inquiry is whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction about the challenged findings. See

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must give due consideration to evidence that

the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). A court of appeals should consider whether disputed evidence is such that

a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id.

If the disputed evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient. Id.

                                  Best Interest - Legal Sufficiency

       A determination of best interest necessitates a focus on the child, not the parent. See In

the Interest of B.C.S., 479 S.W.3d 918, 927 (Tex.App.--El Paso 2015, no pet.); In the Interest of

R.F., 115 S.W.3d 804, 812 (Tex.App.--Dallas 2003, no pet.). There is a strong presumption that

it is in the child’s best interest to preserve the parent-child relationship. In re B.C.S., 479 S.W.3d



                                                -5-
at 927. The Texas Supreme Court has enumerated certain factors which should be considered:

the child’s desires; the child’s emotional and physical needs now and in the future; the emotional

and physical danger to the child now and in the future; the parenting abilities of the individuals

seeking custody; the programs available to assist those individuals to promote the child’s best

interest; the plans for the child by those individuals or the agency seeking custody; the stability

of the home or proposed placement; the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (“the Holley factors”). We also

must bear in mind that permanence is of paramount importance in considering a child’s present

and future needs. In re B.C.S., 479 S.W.3d at 927.

       We begin by examining the legal sufficiency of the evidence supporting the best interest

finding. The first factor is the desires of the child. S.P. was five years of age at the time of the

trial and there is no evidence indicating that she articulated her wishes. The record reflects that

the little girl has been well-cared for by her foster family and she has bonded with them. Further,

there is evidence that Mother’s visitation with S.P. has been suspended because she missed visits

with her. The evidence related to this factor weighs in favor of the trial court’s best interest

finding. See In re U.P., 105 S.W.3d 222, 230 (Tex.App.--Houston [14th Dist.] 2003, pet.

denied)(evidence that a child is well-cared for by her foster family, is bonded to her foster

family, and has spent minimal time in the presence of her father and his family is relevant to the

best interest determination under the desires of the child factor).

       The next two factors are the child’s emotional and physical needs now and in the future,

and the emotional and physical danger to the child now and in the future. We will consider these

factors together because the pertinent evidence is overlapping. The need for permanence is a



                                                -6-
paramount consideration for a child’s present and future physical and emotional needs. Edwards

v. Texas Department of Protective & Regulatory Services, 946 S.W.2d 130, 138 (Tex.App.--

El Paso 1997, no pet.), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex.

2002); In re U.P., 105 S.W.3d at 230 (stating that children need permanency and security). A

factfinder may infer that past conduct endangering the wellbeing of a child may recur in the

future if the child is returned to the parent. In re D.L.N., 958 S.W.2d 934, 934 (Tex.App.--Waco

1997, pet. denied). The evidence at trial established that Mother is an alcoholic, and she has

relapsed frequently. After S.P. was returned to Mother in May 2015, Mother relapsed and the

Department removed S.P. a second time. Mother did not complete her outpatient treatment

program following this removal. Mother has engaged in a pattern of neglecting and abandoning

the children while drinking. In this case, she left the house at 7:00 a.m. to go to a bar and she

was unconcerned about her daughter’s welfare when the police contacted her in the bar at 4:00

p.m. and told her that S.P. had wandered away from home. S.P. was dirty, her hair was matted,

and she had urinated on herself. Mother has been twice convicted of abandoning a child with no

intent to return. Further, all of the children have been removed from the home at least once, and

Mother’s parental rights to C.P. were terminated. There is also evidence that Mother did not

visit S.P. consistently while this case was ongoing and it resulted in the cancellation of her visits.

Based on the evidence of Mother’s failure to comply with her court-ordered services, the trial

court was free to infer that Mona’ failure to complete her services indicates a continued danger to

the child. We conclude that the second and third factors weigh heavily in support of the best

interest finding.

        The fourth factor is the parenting abilities of the individuals seeking custody.           In

reviewing the parental abilities of a parent, a factfinder can consider the parent’s past neglect or



                                                -7-
past inability to meet the physical and emotional needs of the children.            D.O. v. Texas

Department of Human Services, 851 S.W.2d 351, 356 (Tex.App.--Austin 1993, no writ),

disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002). As set forth in our

discussion of the second and third factors, there is ample evidence that Mother has in the past

demonstrated an ability to meet the physical and emotion needs of the children. The evidence

related to this factor supports the best interest finding.

        The fifth factor examines the programs available to assist those individuals to promote

the child’s best interest. Mother participated in some of the services offered, but she refused to

take the anger management classes a second time, and she did not complete the outpatient

program following her relapse in August 2015. The factfinder can infer from a parent’s failure

to take the initiative to utilize the available programs that the parent did not have the ability to

motivate herself in the future. In re W.E.C., 110 S.W.3d 231, 245 (Tex.App.--Fort Worth 2003,

no pet.).

        We will consider the sixth and seventh factors together. The sixth factor is the plans for

the child by those individuals or the agency seeking custody. The seventh factor is the stability

of the home or proposed placement. The Department’s plan is termination of parental rights and

unrelated adoption. The foster parents intend to adopt S.P. Mother testified that she wants S.P.

to be returned to live with her and J.P. who was the sole source of the family’s income, although

Mother has a claim pending for mental disability. The evidence demonstrates that the foster

parents have provided S.P. with a stable environment and they have provided for her needs.

        The eighth factor is the parent’s acts or omissions that may indicate that the existing

parent-child relationship is not a proper one. The evidence shows that Mother has a history of

neglecting and abandoning all of her children, and this behavior continued even though the



                                                  -8-
Department became involved with the family and offered services, including those directed at

addressing Mother’s issue of alcohol abuse.

        The ninth factor is whether there is any excuse for the parent’s acts or omissions. Mother

has at various times stated that she left S.P. with Father on the morning when S.P. wandered off

by herself. As observed by the Department in its brief, Mother does not explain why she left her

family to go to a bar at 7:00 that morning. We conclude that the evidence is legally sufficient to

establish a firm conviction in the mind of the trial court that termination of Mother’s parental

rights is in the child’s best interest.

        We turn now to the factual sufficiency of the evidence supporting the best interest

finding. There is some contrary or disputed evidence relative to the Holley factors. Mother did

participate in some programs offered to her, including one outpatient program for alcohol abuse,

but she relapsed. At trial, Mother testified that she had been sober for several months and she

was taking medication for depression.        While Mother’s testimony indicated she had made

improvements in her life in contrast with her past behavior, the evidence is not such that a

reasonable factfinder could not have resolved it in favor of the challenged best interest finding.

We conclude that the evidence is factually sufficient to support the trial court’s determination

that termination of Mother’s parental rights to S.P. is in the child’s best interest.   Issues One,

Two, and Three are overruled. The final order terminating Mother’s parental rights to S.P. is

affirmed.

                                          FATHER’S APPEAL

        Father is represented on appeal by court-appointed counsel who has filed a brief in

accordance with the requirements of Anders v. California, 386 U.S. 738, 741-44, 87 S.Ct. 1396,

1398-1400, 18 L.Ed.2d 493 (1967).           Court-appointed counsel has concluded that, after a



                                                -9-
thorough review of the record, Father’s appeal is frivolous and without merit. In Anders, the

Supreme Court recognized that counsel, though appointed to represent the appellant in an appeal

from a criminal conviction, had no duty to pursue a frivolous matter on appeal. Anders, 386 U.S.

at 744, 87 S.Ct. at 1400. Thus, counsel was permitted to withdraw after informing the court of

his conclusion and the effort made in arriving at that conclusion. Id. We have held that the

procedures set forth in Anders apply to an appeal from a case involving the termination of

parental rights when court-appointed counsel has determined that the appeal is frivolous. See In

re J.B., 296 S.W.3d 618, 619 (Tex.App.--El Paso 2009, no pet.); In re K.R.C., 346 S.W.3d 618,

619 (Tex.App.--El Paso 2009, no pet.); see also In re C.A.B., No. 08-08-00346-CV, 2009 WL

3152869, * 1 (Tex.App.--El Paso Sept.30, 2009, no pet.)(mem. op.).

       Counsel’s brief meets the requirements of Anders by advancing contentions that might

arguably support the appeal. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969);

Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Currie v. State, 516 S.W.2d 684

(Tex.Crim.App. 1974). Counsel has notified the Court in writing that he has delivered a copy of

counsel’s brief and the motion to withdraw to Father, and he has advised Father of his right to

review the record, file a pro se brief, and to seek discretionary review. Kelly v. State, 436

S.W.3d 313, 318-20 (Tex.Crim.App. 2014)(setting forth duties of counsel). Father did not file a

motion for access to the appellate record or otherwise notify the Court that he wished to review

the record. Further, a pro se brief has not been filed.

       Upon receiving an Anders brief, we are required to conduct a full examination of all of

the proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 350, 109 L.Ed.2d 300 (1988). We have thoroughly reviewed the entire

record, including the Anders brief, and we have found nothing that would arguably support an



                                               - 10 -
appeal. We agree with counsel’s professional assessment that the appeal is frivolous and without

merit. Because there is nothing in the record that might arguably support the appeal, a further

discussion of the arguable grounds advanced in the brief filed by court-appointed counsel would

add nothing to the jurisprudence of the state. The final order terminating Father’s parental rights

to S.P. is affirmed.


September 14, 2016
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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