      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00560-CV



                                          K. H., Appellant

                                                  v.

                 Texas Department of Family and Protective Services, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 241,699-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                K.H. filed a notice of appeal from the decree terminating her parental rights to E.S.,

a child born in 2009.1 K.H.’s appointed attorney has filed an Anders-style brief asserting that he

can find no arguable point for appeal. See Anders v. California, 386 U.S. 738, 744 (1967); Taylor

v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005,

pet. denied). He requests that we allow him to withdraw as counsel for appellant. Appellee

Texas Department of Family and Protective Services filed a brief agreeing with counsel’s brief and

motion. K.H. has not filed a brief responding to either. We will affirm the termination decree and

grant the motion to withdraw as counsel.

                A trial court can involuntarily terminate a parent-child relationship only if the

court finds by clear and convincing evidence (1) that the parent has committed an act or omission


       1
           The child’s father relinquished his parental rights and does not appeal the judgment.
statutorily deemed to warrant termination, and (2) that termination of the relationship is in

the child’s best interest. Tex. Civ. Prac. & Rem. Code Ann. § 161.001 (West Supp. 2011). The

trial court found by clear and convincing evidence that appellant engaged in conduct or knowingly

placed E.S. with persons who engaged in conduct that endangered the child’s physical or emotional

well-being of the child. See id. § 161.001(E). To “endanger” means to expose the child to loss,

injury, or danger. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). The endangering conduct does not

have to occur in the presence of the child. Clark v. Clark, 705 S.W.2d 218, 219 (Tex. App.—Dallas

1995, writ dism’d). The best interests of the children are assessed on an array of factors. Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).2

                The trial of this case was held without a jury. Many witnesses testified over

the course of several months. Appellant admitted using methamphetamines intermittently for an

eight-year period following the birth of her first child. Although she testified that she stopped using

methamphetamines upon learning that she was pregnant with E.S., appellant admitted she used

the drug the night before she gave birth to E.S. one month early. E.S. was removed from appellant’s

care at almost ten months of age when appellant and the child’s father tested positive for

methamphetamine use. Appellant then admittedly used methamphetamines almost daily for the next


        2
           The non-exclusive best-interest factors gleaned from Holley v. Adams are: (1) the child’s
desires, (2) the emotional and physical needs of the child now and in the future, (3) the emotional
and physical danger to the child now and in the future, (4) the parental abilities of the persons
seeking custody, (5) programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the
stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate
that the existing parent-child relationship is not a proper one, and (9) any excuse for the parent’s acts
or omissions. The Holley factors are not exhaustive, and there is no requirement that all factors be
proved as a condition precedent to parental termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

                                                   2
two to three months. Appellant said that she suffered several instances of physical abuse from the

child’s father while E.S. was in the same residence, although not always in the same room where

the violence occurred. Appellant eventually left the child’s father and began engaging in services

prescribed by the Department to improve her life and parenting skills, including drug rehabilitation.

Although she attended visits with the child, completed some services, obtained a job, and allegedly

obtained her GED, she failed to provide documentation of her income or completion of her

GED despite direction and opportunities to do so. There was evidence that appellant had not used

methamphetamines for several months at the time of her testimony. Midway through the several

months of testimony, however, appellant tested positive for use of a controlled painkilling

medication that a relative gave her.

               We have reviewed the record and agree that this appeal is frivolous. We grant

appellant’s attorney’s motion to withdraw as attorney and we affirm the judgment terminating

appellant’s parental rights to E.S.




                                              Jeff Rose, Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Affirmed

Filed: June 1, 2012




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