      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00445-CV



                                     Mary Ayala, Appellant

                                                 v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
      NO. D-1-FM-08-006383, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Mary Ayala appeals from the decree terminating her parental rights to her

daughter S.A., who was one and one-half years old at the time of the final hearing. The Department

took custody of S.A. three days after she was born. The Department removed S.A. from Ayala’s

care because her four older siblings had been removed from Ayala’s care due to domestic violence

and unclean living conditions. At trial, the jury found that termination was in S.A.’s best interest

and that Ayala had a mental or emotional illness or deficiency that made her an unfit parent, had her

parental rights to other children terminated in the past, and had engaged in conduct or placed S.A.

with people who engaged in conduct that endangered S.A.’s well-being. See Tex. Fam. Code Ann.

§ 161.001(1)(E), (M) (West Supp. 2012), § 161.003(a) (West 2008).

               In September 2007, Ayala’s four older children were removed from her care after

several allegations of neglect of the children and domestic violence between Ayala and her
boyfriend, some of which were witnessed by the children. Further, the family’s home was unsafe:

the electricity was cut off, there was no running water, the house was dirty and infested with roaches,

the children had repeated lice infestations, and there was very little food in the house. S.A.’s siblings

exhibited learning delays and emotional problems at the time of their removal. Ayala’s parental

rights to her four oldest children were terminated in early 2009.

                S.A. was born in December 2008. Shortly after she was born, the Department took

custody of her, placing her with her current foster parents, the Acevedos, when she was about two

months old. The Department placed her three oldest siblings with the Acevedos about a month

later.1 At the time of trial, the Acevedos were in the process of adopting the older children, and

they planned to adopt S.A. if Ayala’s rights were terminated. Erin Acevedo, S.A.’s foster mother,

testified that S.A. was thriving, healthy, and very bonded to her, her husband, and her siblings. S.A.

was not displaying developmental delays or problems. Acevedo testified that she believed Ayala

did not have the ability to be an adequate parent because S.A. sometimes returned from extended

visitations with Ayala with diaper rashes and yeast infections, Ayala once allowed S.A. to be driven

in a car while she was not restrained in a car seat, and Ayala may have improperly administered

antibiotics to S.A. Several other witnesses testified that S.A. was extremely bonded to the Acevedos

and her siblings and that it would not be in her best interest to remove her from their home, where

she had lived since she was several days old.




        1
          S.A.’s other older sibling, J.J., was born with health problems and placed in a different
foster home. He and his siblings spend time together and have built relationships despite being
placed in separate homes.

                                                   2
                A psychologist testified that Ayala’s IQ was in “the mildly retarded range,” that she

suffered from “adjustment disorder with anxiety and depression” and a “personality disorder” with

“histrionic and narcissistic and obsessive-compulsive feature,” and that she had “significantly impaired

social knowledge and judgment.” Her low IQ and other cognitive deficiencies concerned him because

she might not realize that a situation could be dangerous for S.A. and could result in impulsive or

unstable behavior. A Department caseworker testified that she believed Ayala had, during the

pendency of the case, exposed S.A. to people who might endanger her. She explained that Ayala

had allowed her mother and sister to be with S.A. and said both women have histories with the

Department and “have shown a pattern of endangering behavior.” She also testified that Ayala

endangered S.A. because she once allowed S.A. to be transported in a car without a car seat and had

“an inability to follow medication directions, which could have had a very serious effect” on S.A.

                Ayala testified about the efforts she had made since her children were removed from

her care, including therapy, working on her cognitive abilities, finding appropriate housing and

employment, taking parenting classes, and learning about domestic violence. She also testified that

she had her tubes tied so that she could focus her attention on S.A. S.A.’s guardian ad litem, who

was a volunteer with CASA, testified that she believed S.A. should be returned to Ayala’s

care because CASA “believed that being raised by a biological family carries some weight” and

because Ayala had made progress during her most recent involvement with the Department. Ayala’s

therapist testified that Ayala was discharged from therapy several months before trial because

she had successfully met her treatment goals. The therapist said, “I see her as a much stronger,

responsible, capable woman today than when I first met her.” Several other witnesses also testified



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that they had been involved or acquainted with Ayala and that they believed she could be a good

mother to S.A., that S.A. was bonded to Ayala, and that S.A. should retain her parental rights to S.A.

                On appeal, Ayala’s appellate attorney filed a brief stating that after reviewing the

record, he believes that the appeal is frivolous.2 Counsel has presented a professional evaluation of

the record and explained why he believes there are no arguable grounds for reversal. Ayala has not

filed a pro se brief or made contact with this Court. We have conducted our own review of the

record and observed no procedural problems to support reversal, nor does the state of the evidence

lead to a conclusion that the jury erred in determining that Ayala’s rights should be terminated. We

agree with counsel that the appeal is frivolous. We therefore affirm the trial court’s final decree.

We grant counsel’s motion to withdraw as attorney of record.



                                                __________________________________________

                                                David Puryear, Justice

Before Justices Puryear, Henson and Goodwin

Affirmed

Filed: August 9, 2012




       2
           This and other Texas courts have held that it is appropriate in a parental termination case
to file a brief asserting that the appeal is frivolous. See, e.g., Matthews v. Texas Dep’t of Protective
& Regulatory Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Tex. App.—Austin
Feb. 17, 2005, no pet.) (mem. op.); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th
Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

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