                                          IN THE
                                  TENTH COURT OF APPEALS

                                          No. 10-19-00224-CV

                           IN THE INTEREST OF J.J.M., A CHILD



                                    From the 74th District Court
                                     McLennan County, Texas
                                     Trial Court No. 2018-248-3


                                   MEMORANDUM OPINION

           After appellant's parental rights to her child, J.J.M., were terminated following a

bench trial,1 appellant's appointed appellate counsel filed a notice of appeal.2 Appellant's

counsel has now filed an Anders brief. Counsel asserts that he has diligently reviewed

the record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—

Waco 2002, no pet.) (per curiam) (applying Anders to termination appeal).

           Counsel’s brief meets the requirements of Anders; it presents a professional


1
 The trial court found by clear and convincing evidence that appellant had violated Family Code
subsections 161.001(b)(1)(D), (E), (N) and (O) and that termination was in the child's best interest. See TEX.
FAM. CODE ANN. § 161.001(b).

2
    J.J.M.’s father voluntarily relinquished his parental rights, and he has not appealed.
evaluation demonstrating why there are no arguable grounds to advance on appeal. See

In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas, an Anders brief

need not specifically advance ‘arguable’ points of error if counsel finds none, but it must

provide record references to the facts and procedural history and set out pertinent legal

authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel

has carefully discussed why, under controlling authority, there is no reversible error in

the trial court’s order of termination. Counsel has informed us that he has: (1) examined

the record and found no arguable grounds to advance on appeal; (2) served a copy of the

brief and counsel’s motion to withdraw on Appellant; and (3) informed Appellant of her

right to obtain a copy of the record and of her right to file a pro se response.3 See Anders,

386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High v. State, 573 S.W.2d

807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252 S.W.3d at 409 n.23.

        Appellant has filed a pro se response to the Anders brief and asserts that there are

issues that should be addressed on appeal. Although provided the opportunity, neither

the Texas Department of Family and Protective Services, represented by the District

Attorney for McLennan County, Texas, nor the ad litem have filed a reply to appellant’s

pro se response. The brief filed by appellant’s attorney specifically notes that the record

is sufficient to support termination under Ground O. In her pro se response, appellant

challenges the sufficiency of all of the grounds found by the trial court to support


3
  The Texas Court of Criminal Appeals has held that “’the pro se response need not comply with the rules
of appellate procedure in order to be considered. Rather, the response should identify for the court those
issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696-97 (Tex. App.—Waco 1997, order)).

In the Interest of J.J.M., a Child                                                                 Page 2
termination.

        Upon receiving an Anders brief, we must conduct a full examination of all the

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

75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have reviewed

the entire record and counsel's brief and have found nothing that would arguably

support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005)

(“Due to the nature of Anders briefs, by indicating in the opinion that it considered the

issues raised in the briefs and reviewed the record for reversible error but found none,

the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);

Stafford, 813 S.W.2d at 509.

        Both legal and factual sufficiency reviews in termination cases must take into

consideration whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the matter on which the petitioner bears the burden

of proof. In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002) (discussing legal sufficiency

review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

        In a legal sufficiency review, a court should look at all the evidence in the
        light most favorable to the finding to determine whether a reasonable trier
        of fact could have formed a firm belief or conviction that its finding was
        true. To give appropriate deference to the factfinder's conclusions and the
        role of a court conducting a legal sufficiency review, looking at the evidence
        in the light most favorable to the judgment means that a reviewing court
        must assume that the factfinder resolved disputed facts in favor of its
        finding if a reasonable factfinder could do so. A corollary to this


In the Interest of J.J.M., a Child                                                       Page 3
        requirement is that a court should disregard all evidence that a reasonable
        factfinder could have disbelieved or found to have been incredible.

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

        In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the factfinder could reasonably have found to be clear and convincing. Id.

        [T]he inquiry must be “whether the evidence is such that a factfinder could
        reasonably form a firm belief or conviction about the truth of the State's
        allegations.” 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. If, in light of the entire record, 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. (footnotes and citations omitted); see In re C.H., 89 S.W.2d at 25.

        The record reflects that J.J.M. first came to the Department’s attention in January

2018 when appellant was hospitalized in Waco after being picked up by the Waco police.

Appellant, while accompanied by J.J.M., abandoned her car on a bridge and took J.J.M.

to the lobby of a local hotel. Appellant left her purse and her cell phone in the still-

running car. Appellant was transferred to a psychiatric facility due to her mental state,

and J.J.M. was placed in the custody of his grandfather. J.J.M. was eventually placed in

foster care. Appellant already had a case with the Department in relation to her older

son, who aged out of Department supervision while the present case was proceeding.

Appellant’s older son experienced mental challenges from birth and as the result of a

traumatic brain injury. The older son had a history of violence against J.J.M.




In the Interest of J.J.M., a Child                                                          Page 4
        Shortly after J.J.M. was placed in the Department’s custody, appellant moved to

Alabama with her fiancé, L.G. Appellant’s oldest son also moved to Alabama to live with

them after he was released from incarceration.

        Prior to the move to Alabama, appellant had separated from L.G. around

Christmas of 2017. Appellant and J.J.M. were homeless, although there were local

relatives and programs that could have assisted them.             Between the time of her

hospitalization in January 2018 and the move to Alabama, Appellant was admitted to

another psychiatric facility, to MHMR, and lived with friends and in homeless shelters.

Appellant reported that she elected to remain homeless and stay in shelters with J.J.M.

because they were not safe at home with L.G. At the time of the termination hearing,

appellant did not have sufficient income to support herself or her children without L.G.’s

assistance.

          In her pro se response, appellant notes that she has returned to Texas and is now

employed. Appellant’s response does not dispute the following: (1) appellant did not

feel safe with L.G., and L.G. hurt J.J.M.; (2) appellant’s oldest son also hurt J.J.M.; and (3)

appellant has not continued psychiatric or psychological treatment or medication for her

mental disorders. Appellant’s response also does not indicate that she is no longer living

with L.G. or her oldest son or that she is currently in psychological treatment or is

compliant with her medication. Appellant told the case worker early in this case that her

solution for her psychological problems was to self-medicate with marijuana.

        Appellant additionally asserts that she was unable to attend the termination

proceeding on April 16 because she was again hospitalized for psychological reasons.

In the Interest of J.J.M., a Child                                                       Page 5
Although the trial court denied the request for a continuance filed by appellant’s

attorney, the termination hearing was recessed for a month to enable appellant to attend.

The trial court noted: “Why don’t we start the hearing today? We probably won’t finish

the hearing today. We’ll give Mom an opportunity to be here.” Appellant offers no

explanation for her failure to attend the conclusion of the termination hearing on May 15.

        One of the foster parents testified at the termination hearing and indicated that

J.J.M. suffered anxiety when a telephone call with his mother was planned. J.J.M. would

also experience instances of bed wetting on the nights of the telephone calls. J.J.M. told

the foster parent that he had been hit when living with his mother and his older brother,

and that he had been exposed to pornography. The foster parent testified that J.J.M. is

happy in the foster home and that the foster parents would like to adopt him.

        The evidence is legally and factually sufficient to support the trial court’s

determination by clear and convincing evidence that termination was appropriate on

each of the identified grounds under § 161.001(b) and that it was in the best interest of

J.J.M. Accordingly, we affirm the trial court's order of termination.

        We also remind Appellant's appointed appellate counsel that if Appellant, after

consulting with counsel, desires to file a petition for review, counsel is still under a duty

to timely file with the Texas Supreme Court “a petition for review that satisfies the

standards for an Anders brief.” In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016); see In re G.P.,

503 S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied); see also TEX. FAM. CODE ANN. §

107.016.



In the Interest of J.J.M., a Child                                                     Page 6
                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,*
        Justice Davis, and
        Justice Neill
        *(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not
issue.)
Affirmed
Opinion delivered and filed December 18, 2019
[CV06]




In the Interest of J.J.M., a Child                                                 Page 7
