### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00450
- CV

M. M. H.
- A., Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 19
- 002261, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant M.M.H.

- A. (Mother) appeals from the district court ’ s decree, following a bench trial, terminating her parental rights to A.H.

- A. (the child) . The mother ’ s court

appointed co unsel ha s filed a brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967)

. We will affirm the district court ’ s de cree of termination.

The case began in April 2019, when the Texas Department of Family and Protective Services (the Department) received a r eferral alleging neglectful supervision of the
child by Mother. According to Kayla Rascon , the Department ’ s conservatorshi p supervisor for the case, the referral alleged that Mother “ was high off of K2 on I

- 35 and 6th Street, and she had [the child] in a stro ller, and was walking across the highway with [the child]. ” A Department investigator responded to the report and found Mother and the child under the bridge at I

- 35

. Mother told the Departmen t investigator that she had been living under the bridge f or 3 4 years ,2

that she was “ trying to get some dick, ” and that she had ten children “ but didn ’ t know where they

were
. ” The child , who at that time was approximately one year old, “ had dirty clothes , ” “ food
around her face , ” “ was wearing shorts but no dia pe r , ” had “ lon g fingernails and dirty hands , ” and

a “ cigarette smell in her hair

. ”

The Department initiated an emergency removal of the child from Mother’s care

. Meanwhile, Mo ther was t ransported to Austin Lakes H ospital for a mental

- health evaluation

. U pon her discharge from the hospital later that month , Mother was charged with t h e o f f e n s e s o f
b u r g l a r y o f a b u i l d i n g a n d child endangerment and jailed at the Travis County Correctional Complex

. In July 2019, Mother was transferred to Austin State Hospita l for a competency

eva luation and , in late September 2019 , was transferred to a competency restoration program run by Inte gra l Care , a community center in Travis County. Mother was found competent to stand
trial in January 2020

. 1

To obtain reunificati o n with the child , Mother was ordered to complete several services, including random drug testing, therapy , and parenting classes . She was also required to
maintain contact with the Department

. According to Ra scon, Mother “ attempted to comple te

some ” of h er services

. Mother took some parenting class es but did not complete them, and she
took thirteen drug tests but missed five

. 2 She participated in therapy but was discharged unsuccessfully in July 2020 “ due to excessive no shows

. ”

Mother visited the ch ild on multiple occasions . Rascon testified that Mother’s
initia l visits with t he child “went really well,” but eventually the child began exhibiting

1 At the time of the termination trial, Mother ’ s criminal charges remain ed pe nding.
2 Mother tested positive for opiates on three of the tests but provided Ras con with a doctor ’ s note indicating that she had been prescribed Hydrocodone.3

“aggressive behavior” toward others after the visits had concluded. Consequently, beginning in May 202 0, the Department reduced the number of visits between Mother and the child

.

In response to the red uced visitation, Mother called Rascon and told her that she

was con templating suicide. Mother also stopped attending therapy sessions , began miss ing visi t s

w ith the child , failed to complete a drug test, and stopped comm unicating with the Department

. Attempts by Mother ’s therapist, the police , and Rascon to contact Mother were unsuccessful. Eventually , Rascon found Mother outside Mother ’s apartment and no ticed that “ she just looked very different, you know, really red faced. Her lips were bluish. She was slurring her words

. ”
Rascon asked Mother if she was okay but Mother did not respond and instead “ turned around
and went inside

. ” After that encounter , Mothe r ’s communication with the Department and participation in services was “inconsistent. ” Mother had one visit with the child in June but
missed the next two visits. At around the same time, Rascon notic ed that the child “ started
disc onnecting ” emoti onally with Mother , who had stopped receiving mental

- health treatment and was becoming increasingly agitated during the visits

. After Ra s con ended one visit due to what
she charac terized as Mother ’ s “ inapp ro priate behavior , ” Mother called Rascon , screamed at he r, and threatened to have a family member “ f**k [her] up

. ”

The child ’ s first placement with a foster family was unsuccessful because of the
child ’ s aggressive behavior . Howe ver, according to multiple witnesses, the child was doing well
in her curren t plac e ment. The child ’ s current foster parents were trained in Trust Based Relational Interventions (TBRI) and had demonstrated s ome success in improving the child ’ s behavio r. Rascon did not believe that Mother was able to provide for the child ’ s nee ds but th at the foster parents were
. CASA volunteer Gemma DeLeon provided similar testimony. She had observed the child interact with the foster pare nts

. Based on her observations, DeLeon described4

the relationship between the child and the foster parents as “ [ l ] oving and secure
. ” She added that
the child was “happy ” and looked to her foster parents “ to feel safe ” and to provide “ affirming
words and care

. ” One of the foster parents testified that she and her wife loved t he child and wanted to adopt her

. She ex plained,

We want to adopt [the child] because we have gotten to be attached to her and her to us. We love her. And she tells us often that she loves us and this is her home, and Sadie keeps her safe, and Sadie is her dog. And we want to have the

— we wan t to have the opportunity to help her grow and give her everyt hing that she deserves. She is a really incredible

— incredible child and w e want to be able to parent her and give her a safe home.
The Department ’ s plan for the child was adoption by the foster parents.

M other testified at trial. W hen asked to explain what went wrong “ to where CPS is no longer seeking to reunify you with [t he child ] , ” Mother testified, “ I think it was just lack of
communication. And when the C OVID virus hit it just

— it was not the same and just

— we were not able to complete our services

. ” Mother claimed that she had been “doing a great job” in the
case and “moving in the right direction” until the onset o f C OVID restrictions in March 2020 ,

w hen she “just got discouraged .” Moth er believed that by taking parenting classes, she had “learned to be a better nurturing, caring, loving, guiding, just individual.” Mo ther also testified
that she and the child “ have a really good bond ” and that she “ just love [ s ] that little girl

. ”
When asked why she had stopped attending therapy, Mother testified that she

“ was told that [her therapist] was going on vacation ” for two w eeks and that she “ didn ’ t hear
from her after that

. ” Mother claimed that she was scheduled to meet with another therapis t the day after trial. When asked why she had stopp ed taking drug tests, Mother testified that she had
lost her phone and “ didn ’ t know that [she] was supposed to go do one. ” She added, “ And it took5

me about three weeks to get situated

. So I gues s, withi n that time period, I must have missed a couple

. ” Mother testified that moving forward, she was “ willing to do drug test [ s ] , parenting

c lasses, anything, any kind of services ” to obtain reun ification with the child. She testified that adoption of the chi ld by the foster parents “ would hurt me very much. ” She explained, “ [ S ] he is
all I have, I mean, really

— and I am all she has, and w e nee d each other. ”

On cross

- examination, Mother testified t hat she did not remember any of the

events that occurre d on the day when she and the child were found under the bridge and the child
was removed from her care. Also, Mother either denied or claimed not to recall missing five of
the la st seven schedu led visits with the child, telling the caseworker that she wa s contem plating
sui cide, threatening the case worker with physical violence, ceasing communication with the Department in July 2020, and receiving calls from her therapist

.

At the conclusion of trial, the district court found by clear and convincing

e vidence tha t Mother had failed to comply with the provisions of a court order that established the actions necessary for her to obtain the re turn of the children , see Tex . Fam. Code § 161.001(b)(1)(O) , and that termination of Mother ’ s parental rights was i n the best interest of the child, see id . § 161.001(b)(2)

. Based on these findings, the district court terminated M other ’ s parental rights

. This appeal followed.

Court

- appointed couns el has filed an Anders brief and a moti on to withdraw as
counsel , concluding tha t the appeal is frivolous and without merit. See 386 U.S. at 744 ; In re
P.M. , 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per cu riam) (approving use of Anders procedure in appeals from termination of parental rights because it “strikes an import ant balance betw een the
defendant ’ s constitutional right to counsel on appeal and counsel ’ s obligation not to prosecute frivolous appeals” (citations omitted)). The brie f meets the requirements of Anders by6

presenting a profess ional evaluation of the reco rd and demonstra ting why there are no arguable grounds to be advanced on appeal. See 386 U.S. at 744 ; Taylor v. Texas Dep ’ t of Protective & Regulatory Servs. , 160 S.W.3d 641, 646

- 47 (Tex. App.

— Austin 2005, pet. denied)

. Counsel has
certified to this Cour t that she has p rovided her client with a copy of the Anders brief and informed her of her right to examine the appellate record and to fil e a pro se brief. No pro se
br ief has been filed.

Upon receiving an Anders brief, we must co nduct a full examinati on of the record to determine whether the appeal is wholly frivolous. See Penson v. Ohio , 488 U.S. 75, 80 (1988) ; Taylor , 160 S.W.3d at 64 7

. After reviewing the entire record and the Anders brief
submitted on Mother ’ s behalf, we h ave found nothing in the record that mig ht arguably support an appeal. We agree with counsel that the appeal is frivolous. Accordingly, we affirm the
district co urt ’ s termination decree

. We d eny counsel ’ s motion to withdraw. 3

__________________________________________ Gisela D. Triana , Justice
Bef ore Justices Goodwin, Triana, a nd Smith
Affirmed
Filed: Decem ber 4, 2020

3 The T e xas Supreme Court has held that the right to coun sel in suits seeking termination of parental rights extends to “all proc eedings [in the Texas Supreme Court], including t he filing of a petition for review. ” In re P.M. , 520 S.W.3d 24, 27

- 28 (Tex. 2016) (p e r curiam). Accordingly, if after consulting with c ounsel Mother desires to file a petition for review, counsel should tim ely file with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See id

.