
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-05-00548-CV


Michelle Kilpatrick-Lusk, Appellant

v.


Texas Department of Family and Protective Services, Appellee





FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT

NO. 205969-B, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING 





M E M O R A N D U M   O P I N I O N


	Appellant Michelle Kilpatrick-Lusk appeals from the district court's judgment
terminating her parental rights to her two children.  Appellant's court-appointed counsel has filed
a motion to withdraw accompanied by an Anders brief, asserting that, after a conscientious and
professional evaluation of the record, he believes the appeal is frivolous because the record
demonstrates no arguable grounds for reversal.  See Anders v. California, 386 U.S. 738, 741-44
(1967); Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-47
(Tex. App.--Austin 2005, pet. denied).  The State agrees that an Anders brief is appropriate. 
Intervenors at the trial court have also filed an appellate brief urging the court to affirm the trial
court's judgment.  Appellant has filed a response to the Anders brief.  We affirm the trial
court's judgment. (1)
	The statutory grounds alleged for termination were that appellant (1) knowingly
placed or knowingly allowed the children to remain in conditions or surroundings that endangered
the physical or emotional well-being of the children; and (2) engaged in conduct or knowingly placed
the child with persons who engaged in conduct that endangered the physical or emotional well-being
of the children.  See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2006).  The factual
bases for the termination proceeding included appellant's participation in the death of the children's
father and placement of the children with her mother, who had a history of abusive behavior.  Our
independent review of the record supports counsel's decision to file an Anders brief.
	Robert Mozier and Michelle Kilpatrick met and married while in the Army, which
is where they became acquainted with Donald Lusk.  Mozier, the children's father, was reported
"missing" in October 2000.  One month later, appellant and the children moved in with  Lusk and 
appellant divorced Mozier.  She married Lusk in November 2001.  Lusk and appellant were arrested
for murdering Mozier in August 2004.  Lusk admitted beating Mozier to death.  Mozier's body was
never found; Lusk claimed that he and appellant threw the body in a dumpster.
	During the approximately four-year period between appellant beginning to reside with
Lusk and the arrest, appellant frequently left the children in Lusk's care for up to thirty days at a
time. (2)  Appellant also left the children with Lusk's mother in California who then decided she could
not keep the children and "gave" them to an aunt and uncle of Lusk's.  That placement failed, and
appellant asked her mother to come to Texas to care for the children.  Appellant testified that her
mother abused her physically, emotionally, and mentally during her childhood and once, while
intoxicated, tried to kill appellant.  Appellant was in foster care numerous times, including the years
from ages fourteen to eighteen.  Appellant's mother had a long history of drug and alcohol abuse. 
Appellant admitted that despite this history, she did not ask intervenors, Mozier's parents, to care
for the child but instead left them with her mother. 
	When arrested in August 2004, appellant told the children that she had done
something bad and was going to jail.  At trial, although she invoked her Fifth Amendment right
against self-incrimination every time she was questioned about Mozier's disappearance and her
possible involvement, she admitted that she was incarcerated because Lusk confessed that
he killed someone.
	There was evidence that termination was in the best interest of the children.  They
were in counseling, and their grades had improved to As and Bs.  The Moziers had secured benefits
that the children were entitled to receive because their father died on active duty.  The Moziers, ages
49 and 50, desired to raise the children to adulthood as their grandchildren because adoption would
result in the loss of some benefits.  The caseworker testified that "all reports had been nothing but
positive" while the children were in intervenors' care.  The children's guardian ad litem testified that
he thought further contact between appellant and the children would be harmful and recommended
termination, as did the children's attorney ad litem.
	Counsel reviewed the arguments against termination raised at trial.  He notes that one
argument raised at trial was that termination was premature because appellant had not yet been
convicted of the underlying criminal charges.  Appellant participated in the termination hearing by
telephone from North Carolina and, acting on the advice of counsel, "took the Fifth" with regard to
any questions about the murder.  In general, the exercise of the privilege against self-incrimination
should not be penalized.  However, in a civil case the fact-finder can draw a negative inference from
the assertion of the privilege.  See In re C.J.F., 134 S.W.3d 343, 352-353 (Tex. App.--Amarillo
2003, pet. denied) (termination); Texas Capital Secs., Inc. v. Sandefer, 58 S.W.3d 760, 779
(Tex. App.--Houston [1st Dist.] 2001, pet. denied) (citing Baxter v. Palmigiano, 425 U.S. 308, 318
(1976)).  Further, the basis for termination was not solely appellant's alleged involvement in
Mozier's murder, but also appellant's acts in leaving the children with a caretaker who had a history
of abuse and who actually abused one of the children and with the person who confessed to
murdering the children's father. (3)
	Counsel also notes the argument that the court should not have considered the abuse
complaint made against appellant's mother as evidence against appellant in this termination
proceeding because the children were returned to appellant after a hearing.  At the time that the
children were returned to appellant, however, she had not yet been arrested for her participation in
Mozier's murder and it was still possible for her to participate in services designed to keep the family
together.  The return of the children at that time does not negate the relevance in the termination
proceeding of appellant having left the children in dangerous surroundings.  Finally, counsel argued
that appellant's rights did not need to be terminated because the Moziers were not seeking adoption. 
An adoption placement is not a prerequisite to finding that a parent has committed one of the
grounds for termination and that termination is the child's best interest.  
	In her pro se brief, appellant states that she is not asking for physical custody of her
children and acknowledges that they are in a stable environment with their paternal grandparents. 
She details her efforts to complete various recovery programs.  She states she is asking only "to be
allowed to write and call my children to let them know I love them."  This Court does not have the
power to grant this request.
	Our review of the record shows clear and convincing evidence in support of the trial
court's decision to terminate appellant's parental rights and supports counsel's determination that
there are no arguable grounds for reversal.  Accordingly, we affirm the trial court's judgment.



  
					W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed:   November 16, 2006
1.        Counsel's pending motion to withdraw is granted.
2.        As a member of the Army, appellant was obligated to participate in various field exercises that
required her to leave the children.  She also served at least one tour of duty in Iraq.
3.        Appellant's pro se brief informs us that, as a result of a plea bargain, she is on probation in
North Carolina.  Because no other charges are discussed, it is a reasonable inference that this
sentence is for the charge as an accessory in the husband's murder.  
