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

NO. 03
- 21
- 00550
- CV NO. 03
- 21
- 00551
- CV

T. S. A. , Appellant

v. Texas Department of Family and Protective Services , Appellee

FROM THE 421ST DISTRICT COURT OF CALDWELL COUNTY NO S
. 20
- FL
- 289 & 20
- FL
- 28 9
- A , THE HONORABLE THOMAS NATHANIEL STUCKEY , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Mother T.S.A . appeals from the trial court ’ s orders terminating her p arental rights
to her sons “ Mike ” and “ M att , ” who were six and f our at the time of t h e final hearing

. 1 Mother ’ s
court

- appointed attorney has filed an Anders brief ex plainin g that he has concluded that the appeal is without merit. See Anders v. California , 386 U.S. 738, 744 (1967)

. T he Texas Department of Famil y and Protective Services pr esented evidence that the police responded to a report of “ a sm all child in the street unattended in a diaper. ” The responding officer approached a shed i n the back yard , smelle d marijuana , and saw four people
i n the shed using marijuana and methampheta mi ne. One of the men, later confirmed to be

1 For the ch ild ren ’ s privac y , w e r e fer to them and other family mem bers by p seu donym s
. See Tex. F am
. Code § 109 .002 (d ) ; Tex. R. A pp. P. 9 .8

. Matt ’ s f ather ’ s rights were also termin ated but he is not a party to this appeal

. Mike ’ s father ’ s rights were not term inated.2 Mother ’ s boyfriend , was known to the police due to his criminal history involving “ [n ]a r cotics, family violence, [and] Class C mis d emeanors. ” During the officer ’ s visit, Mother came out from
the house looking l ik e she had just woken up and had not shower ed or changed her clothes in a few days

. Mother was “ kind of n onchalant ” about Matt having been out in the street unattend ed,
and the officer “ sm elled a heavy odor of unburn t marijuana ” coming from the house. T he Department was called , and an investigator s poke t o Mother, who said that she had nothing to do
with the d rugs found in the shed , that she had been asleep in the ho use asleep the whole time , t hat she thought her boyfriend was watching Matt , and that she h ad recently learned t hat Matt could open th e door by himself and was trying to “ figure something out to keep him from doing
that. ” Mother agreed to tak e u rine and h air

- follicle drug tests, which returned positive result s for marijuana and methamphet amin e , but she “ adamantly denied ” using anything other than marijuana . When the inve sti gator asked how methamphetamine c ould have gotten into her

s yst em , Mother “ explaine d that it could be in the cocaine that she s ales [si c] or the marijuana that
she sm okes , ” b ut then later denied she had told the investigator she was se lling drugs

. Matt was placed with “ Maria, ” a famil y friend , and Mi ke was placed with his
father “ Bra d , ” w ith whom he had been staying at the time the police were called a bout Matt.
Soon af ter he was placed with her , Matt “ started having white bowel movements, ” and Maria brought him to the emergency room, where a “ doctor confirm ed that he has a nemia ” and was supposed to be taking medication. Mother told the inves tigator that she knew Matt w a s a nemic , that a doctor had given him medicine , and that she was giving Matt “ over the counter vitamins

. ”
T he doctor reported to the Department that although Mother was supposed to bring Matt back for

a check

- up, the child had not been back in more than six months

. The doct or did not know if
Mother had ever pi cked up or refilled Matt ’ s prescription

. The investigator found “ rea son to3 believe for bo th neglec tful super vision of both of the children and medical neglect for ” Matt , and
he testified that Mothe r en gaged in endangering conduct by failing to provide Matt with his prescription medication and by selling cocaine while car ing for two small children

. T he Departme nt prepared a safety plan for Mother, but her caseworker testified
that she had not compl ied with most of the requirements, including drug test ing , complet ing a parenting class, undergo ing a psychological evaluation, complet ing a follow

- up drug and a lcohol assessment, provid ing proof of employment , or successfully complet ing therapy

. She had also
misse d fifteen of twenty

- seven visits with the children. The Department believed it was in the
children ’ s best interes t for Mother ’ s rights to be terminated bec a use the case had been pending
for more than a year and , in that time , Mother had not “ bee n ab le to alle viate one concern that

. . brought both the children in to her care ”

— she had not maintained sobriety, she did not seem to have learned anything during t he case, and she did not “ engage in any services or make an y t ype of behavioral changes. ” The casewo rker worried that if Mother ’ s right s were not terminated , she
could en danger the children if she had cont act with them while she was under the influence.
Mother reported that she had been diagnosed with “ [a]n xiety, depression and then bipolar ” and
p rescribed “ Xanax, Lexapro, Procardia, and Zoloft ” but that was not taking those mediations
because she “ di dn ’ t want to rely on them

. ” Instead, she used marijuan a to calm herself down , smoking twenty joints a day

. At the time of the final hearing, Matt w as still living w ith Maria , who hoped to adopt him if M o ther ’ s rights were terminated , and Mike was still living w ith Brad, who the Department believed should be named sole managing conservator . The caseworke r said Matt
had “ g rown so much ” a nd was t hrivin g with Maria , who was “ meeting all of his needs and

more, ” taking him to all of his medical and therapy appointments, and provid ing him with “ a safe4 and stable e nvironment that is drug free. ” The caseworker said Matt had “ come such a long
way, ” from no t knowing ho w to speak or interact with other children to “ starting to talk a lot

more , ” being active and social , and want ing to play

. The caseworker d id not have any concerns about Brad being Mike ’ s sole managin g conservator and said that Brad had be e n a sa fe and appropriate parent and that Mike “ has continued t o do well in his home. ”
Maria testified that when Matt arrived about a year earlier , he was speech delayed
and “ would cry because that ’ s the only way he could communicate. ” He had few social skills , ate very little, was not toilet

- trained , and would scream every time she put him on the toilet

. S ince the emergency room visit , Matt had been taking pres cription iron every day and gets

“ blood work done frequently

. ” He has between fi fteen and twe nty ap pointments a month , see ing an occupational therapist and a speech therapist twice a week, along with going to an eye specialist for “ eye dri fts , ” and an ear, nose , and throat specialist

. Matt ha s started to l ike school,
is active and social, ha s “ gr own tr emendously , ” is “ doing a lot more than he was doing at the very beginning , ” is toilet trained, talk s, and is happy

. Maria said, “ I love [Matt ], I am very much
attached to him. . . . And he is just a really good kid. ” Mari a did not believe Mother h ad “ do ne the things that she needed to do to have her son , ” noting that Mother had missed about half of her
visitations . Maria had con cerns about Matt ’ s safety if he were returned because she thinks
Mother might be homeless . More importantly, she ha s “ hu ge con cerns ” about Mother ’ s drug use
because “ when she is doing drugs, and she is high or under the influence, how is sh e going to
hand le an active three

- year - old ? ” Maria is committed to making sure Matt and Mike maintained a relationship and sa id they ha ve a “ very much well

- kept bond ” and “ love each other very
much

. ” Mike lives with his father Brad, and t he Department agree d th at Brad should be named5 the child ’ s sole managing conservator. Brad and Maria are on good terms and intend to maintain
relations hips b etween the children and with “ Andrew, ” the children ’ s maternal grandfather.
Andrew testified that he ha s a “ gr eat ” relationship with Brad and Maria and said
that Maria “ does an amazing jo b ” with Matt, who “ has come a long way. ” Andrew supported

t he Dep artment ’ s plan to have Maria adopt Matt, saying that Matt “ needs a stable environment, ”
that Matt and Maria love each other , and that Matt “ needs extra above and beyond just, I think,
normal so

- called childhood and she gives that to him. ” H e believe d it w as in the children ’ s be st interest fo r Mother ’ s rights to be terminated s o Matt could be adopted by Maria and so Mike
could remain in Brad ’ s sole care , saying M o ther “ just hasn ’ t done what she is supposed to do. ”
Brad testified similarly , saying tha t Moth er had changed in recent years and was not a safe parent. Brad believed Maria was providing Matt with a good hom e , and he testified that he thought it was in the children ’ s best interest for Mother ’ s parenta l rights to be termi n ated

. Mother testif ied th at on the day the police wer e called, she and Matt had been
tak ing a nap together when he had gotten out of bed a nd let himself out of the house , and that she
went to the store that same day to b uy a child safety lock to stop it from happening again.
Moth er insisted that she had given Matt his presc ription i ron medication until he was two and at the time of his remo val was wean ing him off the prescription and onto over

- t he

- counter iron supplements, as the doctor had in structed

. Mother denied smoking marij uana the day Matt got
outside , denied that her then

- boyfriend was supposed to be caring for Matt , and denied know ing
that her boyfriend and the other people were in the shed using drugs. She said she did not recall telling the invest igator that she sol d c ocaine , not ing that her drug test was negative for cocaine

. Mother testified that she had tried to work her r equired services but said she had
been evicted and had trouble with internet connectivity

. She admitted that she had missed all the6 drug test s r equested by the Department after her initial test. She said she did not test because she

was “ b itter ” about th e situation and beca use she “ just didn ’ t feel the severity of these little drug

test s, ” although she acknowledged that she had been order ed by th e trial court to test and that she knew she could not regain custody without testing

. Mother acknowledge d that she had tested positive for methamphetamine but insisted she had never used it

. She admitted that she had smoked marijuana since she wa s young and that she smok ed twenty joints a day , saying that it
eases her mind and “ relaxe s [ her] and makes [her ] forge t about a lot of things. ” However, she
insisted that she had never been a ba d or neglectful parent and that her children were never in
d anger. Mother did not think it should matter if she used marijuana if the chi ldren were not present but admitted that although she “ tried not to, ” she had smoked marijuana “ from time to
time ” while her children were in her care. Mother stated , “ I just kn ew that this whole case

— I

mean, no matter what I tested dirty for, you know, I have never been a neglectful mother. My kid getting out of the sliding door does not show how I ’ m neglectful to my kid

. ”
T he trial court signed order s finding that terminati on was i n the children ’ s best
interest and that Mother had placed or allowed the children to remain in conditions or

s urroundings that endangered their wel l

- being, th at she had engaged in conduct o r placed the children with others who engaged in conduct th at end an gered the children ’ s well

- being , that she had constructively abandoned the children, and that she had failed t o comply with a court order
establish ing the actions ne cessary to regain cus tody

. See Tex. Fam. Code § 161.001(b)(1)(D), ( E), (N), (O), ( 2).
On a ppeal, Mother ’ s c ourt

- appointed attorney has file d a mo tion to withdraw

su pported by a n Anders brief , conclu ding that the appeal is frivolous and without merit. See
386 U.S. at 74 4 ; In re P. M. , 520 S.W.3d 24 , 27 (Tex. 2 0 16 ) (per curiam ) ( approvi ng use o f7 Anders procedure i n appe al from term inat i on of parental rights)

. The brief m eets the requirements of Anders by presenting a professional evaluation of the record and d emo n stra ting why there are no arguab le grounds to be ad va nced. Se e 386 U.S. a t 744 ; T aylor v. Texas D ep ’ t of Pr otective & Reg

. Servs. , 160 S.W.3d 641, 646

- 47 (Tex. App.

— Austin 2005, pet . denied)

. C ounsel has certified to th is Court that he provided Mother with a copy of the An ders brief and

m otion to withdraw an d advised her of he r right to ex amine the ap pell ate r ecord and t o file a
pro se brief

. To date, Mot her h a s n ot fi led a pro se brief

. We have condu cted an independent review of the record, including the Anders
brief submitted on Mother ’ s b ehal f. S ee Pen son v. Ohio , 488 U. S. 75, 8 0 (1988); Taylor , 160 S.W.3d at 647

. We hav e found nothing in the record that might arguably supp ort an app eal
and agre e with counsel that the appeal is frivolous and lacks merit. Accordingly, we affirm the
tri al court ’ s decree terminati ng Mother ’ s paren tal rights. Co un sel ’ s m otion to withdraw
is denied

. 2

__________________ ________________________ Darlene Byrne , Chief Justice
Before C hief Justice Byrne, J ustices Kelly and Smith
Affirmed
Filed: February 4, 2022

2 The T e x as Supreme Court has held that th e right to counsel in suits see king the te rmination of parental rights extends to “ all proce eding s in [t h e Texas Supreme Cour t], i ncluding the filing of a petition for re v iew. ” See I n r e P

. M

. , 520 S.W.3 d 24 , 27 ( Tex. 2016) (pe r curiam)

. Accordingly, counsel ’ s obligation to Mother has not yet bee n discharged . See id. If M other , after consulting with counsel , desires to file a peti tion for review, cou nsel should timely file with the Texas S upreme C ourt “ a p et itio n fo r re view that satisfie s the standards for an An ders brief. ” See i d. a t 27

- 28.