      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00496-CV
                                       NO. 03-09-00497-CV



                                   Christina Prince, Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


        FROM COUNTY COURTS AT LAW NOS. 2, 4 OF WILLIAMSON COUNTY,
   NOS. 07-2732-FC2, 08-282-FC4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Christina Prince appeals from the trial court’s decrees terminating her rights to three

of her children: T.A.U., H.D.P., and H.A.P. At the time of termination, T.A.U., H.D.P, and H.A.P.

were nine, four, and one, respectively. The Texas Department of Family and Protective Services (the

“Department”) originally initiated a case regarding T.A.U. and H.D.P.; however, shortly after the

Department opened the case, H.A.P. was born, and the Department started an additional case for

him. From the time that the Department became involved in the case, Christina1 was married to

Ronnie Prince. Ronnie is the father of H.D.P. and H.A.P. but not T.A.U. After numerous hearings

occurring over more than a year, the trial court terminated Christina’s rights to her children.




       1
          Because several of the people involved in this case have identical last names, we will refer
to those individuals by their first names.
               The Department first became involved in this case in 2007 when the Department

received a report regarding potential burn marks on T.A.U. After receiving the report, the

Department sent Jennifer Williamson to investigate the claim and to interview T.A.U.

               During her investigation, Williamson discovered that prior to Ronnie and Christina

moving to Texas, Ronnie had a criminal history of family violence, including injury to T.A.U. and

Christina. Specifically, Williamson found out that a court in another state had previously ordered

Ronnie to have no contact with T.A.U. and H.D.P. because of an injury T.A.U. had sustained from

Ronnie, that the no-contact order was violated, and that the children were removed from Christina’s

care because of the violation. Further, Williamson discovered that Ronnie previously went to prison

for domestic violence. In addition, Williamson learned that Ronnie had a history of drug abuse.

               During her interviews with T.A.U., Christina, and Ronnie, Williamson obtained

further details regarding Ronnie’s violent past, his drug use, and other issues. For example, T.A.U.

related an incident where Ronnie attempted to assault Christina in a car but hit T.A.U. instead, which

resulted in T.A.U. getting a black eye. Further, T.A.U. told Williamson that Ronnie would hit her

and H.D.P. in the face and that Ronnie spanked them hard enough to cause bruising.2 T.A.U. also

stated that she was going to get into trouble for talking to Williamson because she is not supposed

to discuss things that happen at home. During an interview, Christina admitted that she and Ronnie

were physically aggressive with one another, that she had been arrested for assaulting Ronnie in front

of the children, and that during one of their fights, T.A.U. was hit in the eye. Christina also stated




       2
         In her testimony, Williamson explained that she did not see any physical indication that
H.D.P. had been abused.

                                                  2
that she allowed Ronnie to discipline T.A.U. even though Ronnie had a history of family violence.

               In addition to conducting her own interviews, Williamson also reviewed statements

T.A.U. made to an interviewer at the Children’s Advocacy Center. Specifically, T.A.U. stated that

she had seen Ronnie hit Christina, that Ronnie drinks and smokes “black brown” things that cause

him to act “weird,” and that Ronnie and Christina leave her alone in the house sometimes.

               After Williamson’s investigation, the Department removed the three children from

the Princes’ home. At that time, the Department recommended family reunification for all three

children, and the trial court informed Christina that if she complied with the requirements of her

service plan, her children would likely be returned to her. During a preliminary hearing, the

trial court ordered that the three children be returned to Christina but explicitly conditioned their

return on Ronnie vacating the residence and not having access to the children and on Christina

attending individual therapy sessions, participating in basic parenting classes, submitting to drug

tests, finding a suitable home, and finding a job.3 Those conditions were incorporated into various

orders and were repeated by the court several times, and Christina expressly promised to keep

Ronnie away from the children. During subsequent hearings, the trial court repeatedly informed

Christina that she had to fully comply with the requirements imposed by the court, including

attending therapy and prohibiting Ronnie from having access to the children. Further, the court

warned Christina that the cases would proceed to termination if she did not completely comply with

the requirements given to her.




       3
          Ronnie initially agreed to these conditions as well, but he stopped participating in the case
shortly after one of his drug tests came back positive.

                                                  3
               After returning the children to Christina, the Department later removed the children

from Christina’s custody again when Karen Kaufman (a therapist) informed the Department that

T.A.U. had made statements indicating that she might have been sexually abused. When the

Department went to remove the children, Ronnie was in the home. During a subsequent hearing,

Christina admitted that Ronnie had been found in the house, but she denied that he lived there.

Christina also communicated that she allowed Ronnie to have access to their home when the children

were not around. In later hearings, Christina assured the court that she had officially separated from

Ronnie and had stopped seeing him. In fact, Christina stated that she had moved out of their house

in order to get away from him, that she no longer wanted Ronnie to have contact with the children,

that Ronnie was dangerous, and that she would comply with an order prohibiting her from allowing

Ronnie to have contact with the children.

               In a hearing occurring before the final termination proceeding, Christina again urged

that she was not living with Ronnie or anyone else; however, Christine Ashworth, a Department

representative, testified that she believed that a man was living with Christina in her new home.

Specifically, Ashworth stated that she found men’s clothing inside Christina’s home and on a clothes

line outside. During the hearing, Ashworth also stated that Christina’s home was not safe for

children. Specifically, she testified that there were holes in the side of the home, that the boards

were rotted, that the door to the home had to be propped up by a shovel, and that feces or rotten meat

was on the ground close to the home.

               Later, the landlord for Christina’s new home, Klevon Smith, confirmed that Christina

was living with Ronnie right before the termination hearing. After identifying Ronnie from a



                                                  4
photograph, Smith testified that Christina and Ronnie jointly rented a home from him, that Ronnie

lived in the home full-time, and that they lived in the home for several months until Smith evicted

them. Further, Smith explained that Ronnie drank heavily and that the police had been called to the

Princes’ home on several occasions.

                In addition to testimony showing that Christina allowed Ronnie to be in the Princes’

home, other evidence was introduced showing that Christina had failed to fully comply with the

other requirements imposed by the trial court. For example, a Department employee testified that

Christina had missed a drug-testing appointment and had missed several of her individual therapy

appointments.

                After several hearings were conducted, the Department switched the focus of the case

from reunification to termination, and a termination hearing was scheduled. The hearing lasted

two days, and Christina did not attend either day. Further, Christina’s attorney informed the court

that Christina “knew about [the] hearing.”

                During the termination hearing, various witnesses testified, including therapists for

T.A.U., H.D.P., and Christina. First, Kaufman, who was one of T.A.U.’s therapists, described her

therapy sessions with T.A.U. Specifically, Kaufman related that during her sessions, T.A.U.

indicated that she had been physically and sexually abused. According to Kaufman, T.A.U. also

stated that Ronnie had beaten her, had touched her inappropriately, and had threatened to hurt

Christina if T.A.U. ever discussed the abuse with anyone. In addition, Kaufman testified that

therapeutic drawings that T.A.U. had made and certain physical behaviors that she engaged in were

consistent with sexual abuse, but she also admitted that her assessment of the drawings was highly



                                                  5
subjective and that T.A.U. is prone to fantasy. Ultimately, Kaufman opined that T.A.U. should not

be placed into the custody of Ronnie or Christina.

                Second, Ronnie Williams, another of T.A.U.’s therapists, testified regarding her

sessions with T.A.U. In particular, Williams stated that she believed that T.A.U. was depressed, that

T.A.U. had experienced “a lot of trauma,” that T.A.U. had been physically and emotionally abused,

and that T.A.U. had experienced “a lot of vicarious abuse I think between Ronnie and [Christina]”;

however, Williams admitted that she could not recall any specific abuse allegations by T.A.U.

Further, Williams testified that T.A.U. strongly disliked Ronnie. Like Kaufman, Williams admitted

that T.A.U. tended to exaggerate and could be making up some of her claims. Williams also related

that she did not see any evidence of a strong bond between T.A.U. and Christina, and Williams

recommended that T.A.U. not be returned to Christina’s custody.

                Third, H.D.P.’s therapist, Michelle Tarbell, testified regarding her therapy sessions

with H.D.P. Specifically, Tarbell related that H.D.P. did not have a connection with Christina, never

freely mentioned her, never stated that he loved his mother, and could not readily recall regularly

interacting with his mother.4 Moreover, Tarbell expressed that H.D.P. had behavioral issues that

might require the primary care giver to have specialized training. Further, she stated that placing

H.D.P. in an environment with domestic abuse would be detrimental to H.D.P. and that she opposed

placing H.D.P. into a home where Ronnie was present.

                Finally, Deborah Taber, who was Christina’s therapist, testified. Taber related that

Christina would fluctuate between being very diligent in attending therapy and then missing therapy

sessions for weeks at a time. Further, Taber stated that she eventually had to discontinue her therapy


       4
           By the time Tarbell testified, H.D.P. had not seen his mother for approximately one year.

                                                  6
sessions with Christina a few months before the termination hearing. Regarding Christina’s ability

to be an effective parent, Taber testified that after having 28 therapy sessions with Christina, she

could not recommend placing the children back into Christina’s custody. Specifically, she explained

that Christina’s home was not a safe environment for children, that she was not working steadily,

that she was still involved with Ronnie, that she sometimes worked for a man belonging to a gang,

that she could not be a protective parent, and that she was very depressed. Moreover, although her

recommendation was based on information obtained from other people, Taber warned that if the

children were placed into the custody of Christina, “they would be subject to violence, they would

be subject to drug use, instability, malnutrition. Any possible type of neglect and abuse, possibly

sexual abuse, would be [her] concern.”

               In addition, Taber related the type of relationship that Christina said that she had with

Ronnie. According to Taber, Christina explained that she and Ronnie were violent with one another,

that Ronnie threw parties where drugs were consumed, and that Christina was unable to stop Ronnie

from engaging in inappropriate activities, including allowing a relative to move into their home even

though the relative was an alcoholic that may have been “prostituting herself to obtain alcohol.”

Further, Taber related that at the time Christina moved to Texas, Ronnie was in prison for assaulting

Christina and that after his release, Ronnie immediately moved into her home. In addition, Taber

expressed her belief that Christina was still involved with Ronnie and that Ronnie’s presence would

not be beneficial for the children. In fact, Taber testified that Christina had stated on more that one

occasion that she cannot function without Ronnie in her life.

               At the conclusion of the termination hearing, the trial court determined that the

evidence weighed in favor of termination and signed an order terminating Christina’s parental rights

                                                  7
and the parents rights of the children’s fathers. Specifically, the court found “by clear and

convincing evidence” that Christina constructively abandoned the children, demonstrated an inability

to provide the children with a safe environment, and “failed to comply with the provisions of a court

order that specifically established the actions necessary for [her] to obtain the return of the” children.

See Tex. Fam. Code Ann. § 161.001(1)(N), (O) (West Supp. 2009). Regarding T.A.U. and H.D.P.,

the court also found by “clear and convincing evidence” that Christina knowingly placed or allowed

the “children to remain in conditions or surroundings which endanger[ed]” their well-being and that

Christina “engaged in conduct or knowingly placed the children with persons who engaged in

conduct which undermine[d]” the children’s well-being. See id. § 161.001(1)(D), (E) (West Supp.

2009). The court further found that it was in the children’s best interests to terminate Christina’s

parental rights.

                   Christina filed a notice of appeal and a statement of points on appeal, complaining

that there is insufficient evidence to support the termination and appointment of the Department as

permanent managing conservator and that the 15-day appellate deadline listed in the family code is

unconstitutional and violates the separation of powers. See id. § 263.405 (West 2008) (requiring

filing of statement of points within 15 days after final order is signed). The statement of points also

sought to raise any issue that may be discovered upon reviewing the record. However, on appeal,

Christina’s appellate attorney has filed a brief stating that, after a thorough review of the record, he

has concluded that the appeal is frivolous.5 The brief presents a thorough and professional


        5
         Christina’s attorney notes that although a copy of Kaufman’s therapy notes were admitted
as an exhibit, those notes are not in the reporter’s record. Christina’s attorney asserts that even
though those notes are missing, the case should not be reversed for a new trial. See Tex. R. App.
P. 34.6(f) (explaining circumstances in which appellant should be given new trial when part of

                                                    8
evaluation of the record discussing and demonstrating why there are no arguable grounds for

reversal.6 A copy of the brief was delivered to Christina, and Christina has not filed a pro se brief.

The Department filed a letter response stating that it agreed that there are no arguable grounds

for reversal.

                We have conducted our own review of the record and agree that the appeal is

frivolous. Accordingly, we affirm the trial court’s decrees of termination. In addition, we grant

Christina’s counsel’s motion to withdraw as attorney of record.




                                               __________________________________________

                                               David Puryear, Justice

Before Justices Patterson, Puryear, and Henson

Affirmed

Filed: August 20, 2010




record has been lost or destroyed). Specifically, her attorney points out that Kaufman testified as to
the contents of her notes and that her testimony is in the record. Alternatively, her attorney states
that the case can be affirmed on the ground that Christina repeatedly violated court orders. We agree
that the missing notes do not warrant a reversal in this case.
        6
           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.).

                                                   9
