Opinion filed March 14, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-18-00251-CV
                                   __________

                 IN THE INTEREST OF M.A., A CHILD


                    On Appeal from the 326th District Court
                             Taylor County, Texas
                        Trial Court Cause No. 8873-CX


                     MEMORANDUM OPINION
      This is an appeal from an order in which the trial court terminated the parental
rights of the mother and the father of M.A. Both parents filed a notice of appeal.
The mother later filed an Anders brief, and the father filed a brief on the merits in
which he challenges the sufficiency of the evidence. We affirm.
                                 Mother’s Appeal
      The mother’s court-appointed counsel has filed a motion to withdraw and a
supporting brief in which he professionally and conscientiously examines the record
and applicable law and concludes that the appeal is groundless. The brief meets the
requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim.
App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).
In light of a holding by the Texas Supreme Court, however, an Anders motion to
withdraw “may be premature” if filed in the court of appeals under the circumstances
presented in this case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). The court in
P.M. stated that “appointed counsel’s obligations can be satisfied by filing a petition
for review that satisfies the standards for an Anders brief.” Id. at 27–28.
         The mother’s counsel provided her with a copy of the brief, the motion to
withdraw, and an explanatory letter. Counsel also informed the mother of her right
to review the record and file a pro se response to counsel’s brief. In compliance with
Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014), counsel provided
the mother with a copy of the appellate record. We conclude that the mother’s
counsel has satisfied his duties under Anders, Schulman, and Kelly.
         We note that the mother has not filed a pro se response to counsel’s Anders
brief.    Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record in this cause, and we agree that the mother’s
appeal is without merit. However, in light of P.M., we deny the motion to withdraw
that was filed by the mother’s court-appointed counsel. See P.M., 520 S.W.3d at 27.
                                    Father’s Appeal
         In two issues on appeal, the father challenges the sufficiency of the evidence
to support the trial court’s findings in support of the termination of his parental
rights. Termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To determine on
appeal if the evidence is legally sufficient in a parental termination case, we review
all of the evidence in the light most favorable to the finding and determine whether
a rational trier of fact could have formed a firm belief or conviction that its finding
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was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). To terminate parental rights, it must be shown by clear and
convincing evidence that the parent has committed one of the acts listed in Section
161.001(b)(1)(A)–(U) and that termination is in the best interest of the child. FAM.
§ 161.001(b).
      With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (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 individuals seeking custody, (5) the
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 acts or omissions of the parent. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
      In this case, the trial court found that the father had committed one of the acts
listed in Section 161.001(b)(1)—that found in subsection (O). Specifically, the trial
court found that the father had failed to comply with the provisions of a court order
that specifically established the actions necessary for him to obtain the return of the
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child, who had been in the managing conservatorship of the Department of Family
and Protective Services for not less than nine months as a result of the child’s
removal from the parent for abuse or neglect. The trial court also found, pursuant to
Section 161.001(b)(2), that termination of the father’s parental rights would be in
the best interest of the child.
       In his second issue, the father challenges the legal sufficiency of the evidence
with respect to the trial court’s finding under subsection (O). The record shows that
the Department became involved with M.A.’s family when she was two years old.
At that time, the parents were pulled over for a traffic stop. M.A. was not buckled
into a car seat, and police found methamphetamine in her diaper bag and on the
mother’s person. The parents admitted to the Department’s investigator that they
used methamphetamine on a regular basis. The father said during his interview that
he had been using methamphetamine daily. The parents admitted to being under the
influence of methamphetamine while M.A. was in their care. At the time of removal,
M.A. tested positive for methamphetamine.
       The record indicates that a family service plan was prepared, signed by the
father, and made an order of the trial court. The uncontroverted evidence reflects
that the father failed to comply with the provisions of his service plan. While the
case was pending in the trial court, the parents failed to maintain appropriate and
stable housing; they “would frequently go between homes” that were occupied by
people with prior CPS history. The parents failed to obtain housing that was suitable
for M.A. They also missed almost half of the scheduled visits with M.A. The father
failed to participate in couple’s counseling, failed to complete individual counseling,
failed to complete parenting classes, and failed to maintain a legal source of income
as required by his service plan. The father failed to abstain from the use of drugs
while this case was pending. He tested positive for amphetamines (at 2701) and
methamphetamine (greater than 10,000) in a urinalysis conducted five months after
                                           4
removal. The father refused to comply with a request for a hair follicle test, and he
participated in only one of eleven requested drug screens. He also failed to complete
substance abuse treatment.
      The Department’s goal for M.A. was termination of the parents’ rights and
adoption by the relatives with whom she had been placed. The conservatorship
caseworker for the Department believed that it would be in M.A.’s best interest to
terminate the parental rights of both parents. At the time of trial, M.A. was very
bonded with the relatives with whom she had been placed, and she was doing well
in their care. They provided a safe and stable home for M.A. The attorney and
guardian ad litem recommended that M.A. remain where she was and not be returned
to her parents.
      The record contains clear and convincing evidence to support the trial court’s
finding under Section 161.001(b)(1)(O) with respect to the father. Based on the
uncontroverted evidence in this case, the trial court could reasonably have formed a
firm belief or conviction that the father failed to comply with the provisions of his
court-ordered family service plan, which specifically established the actions
necessary for him to obtain the return of M.A., a child who had been in the managing
conservatorship of the Department for not less than nine months as a result of her
removal from the parents for abuse or neglect. The father did not present any
evidence that he was unable to comply with the provisions of his family service plan
or that he had made a good faith effort to comply with those provisions. See FAM.
§ 161.001(d). Consequently, we hold that the evidence is sufficient to support the
trial court’s finding. We overrule the father’s second issue.
      In his first issue, the father challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of his parental rights
was in the child’s best interest. Based upon the Holley factors and the evidence in
the record, as set forth above, we cannot hold that the trial court’s best interest
                                           5
finding is not supported by clear and convincing evidence. See Holley, 544 S.W.2d
at 371–72. Considering the emotional and physical needs of the child, the father’s
unstable housing and employment, the father’s continued use of methamphetamine,
M.A.’s positive drug test, the stability of the relatives’ home, and the Department’s
plans for M.A., the trial court could reasonably have formed a firm belief or
conviction that it would be in M.A.’s best interest for the father’s parental rights to
be terminated. We hold that the evidence is both legally and factually sufficient to
support the trial court’s best interest finding. The father’s first issue is overruled.
                                         This Court’s Ruling
        We affirm the trial court’s order of termination.




                                                                   JIM R. WRIGHT
                                                                   SENIOR CHIEF JUSTICE


March 14, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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