### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00231- CV

J. T., App ellant

v. Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 433 RD JUDICI AL DISTRICT NO. C2012 -03 51D, H ONO RAB LE B ERT RICH ARDSON, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant J .T. appea ls from the district court’s order terminating his pare ntal rig hts
to his infant daughte r, A.T. J .T.’s court-appoint ed counsel has filed a motion to withdraw and an Anders brief, concluding that the appeal is frivolous and without merit. See A nders v. Calif ornia , 386 U. S

. 738, 744 (1967); see also Taylor v. Texas Dep’ t of Protective & Regulatory Servs. , 160 S.W .3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (apply ing Anders p ro ce d ure in appea l from termination of parental rights). Counsel’s brief meets t h e requirements of Anders by prese nting a profe ssional eva l u at i o n of the rec ord and demonstrating that there are no arg uable g rounds for appea l. See Anders , 386 U.S. at 744; Taylor , 160 S.W .3d at 646-47. J .T. was provided with a copy of counsel’s brief and was advised of his rig ht to examine the appellate rec ord and to file

a pro se brief. I n response , J .T. has filed a pro se brief, challeng ing the sufficie ncy of the evidenc e supporting the district court’s finding s on the g rounds for te rmination.I n its termination dec ree , the di strict court found by clea r and convincing evidenc e t h at t ermination of J .T.’s pare ntal rig hts was in the best interest of the child and that J .T. had : (1) knowing ly place d or knowing ly allowed the child to rema in in conditions or surrounding s which endang er the phy sical or emotional well-be ing of the child; (2) engag ed in conduct or knowing ly place d the child with persons who e ng ag ed in conduc t which endang ers the phy sical or emotional well-be ing of the child; (3) constructively abandone d the child; (4) failed to comply wi th the provisions of a court order that specific ally established the actions nece ssary for the pare nt to obtain the return of the child; and (5) knowing ly eng ag ed in crim i n al conduct that has resulted in the pare nt’s conviction of an offe nse and confine ment or imprisonment and inability to car e for the child for not less than two y ear s from the date of filing the petition. See Tex. Fam. Code § 161.001(1)( D), (E), (N ), (O ), (Q), (2). I n the same decr ee, the district court also order ed the termination of the pare ntal rig hts of A.T.’s biolog ical mother, A shley Medellin. 1 The case was tried befor e the bench, which hear d evidenc e tending to show that J .T. had a history of drug use, criminal conduct, and other behavior that endang ere d A.T.’s phy sical and emotional well-be ing. Susan L andrum, the case worke r with Child Protective Service s (CPS) who had investiga ted the case , testified t h at J .T. had admitted to law enfor ceme nt office rs that he had used drug s while the case was ong oing. Additionally , acc ording to L andrum, J .T. had an extensive criminal history dating back to when he was a juvenile, which included arr ests for burg lary of a habitation in 2003, unlawfully car ry ing a wea

pon in 2004, burg lary of a vehicle in 2005, theft of

Medellin did not persona lly appea r at the termination trial, n o r has she filed a notice of 1 appea l from the ter

mination order. 2proper

ty in 2006, criminal mischief in 2007, intox ication assault wi t h a v eh icle in 2008, 2 unauthorized use of a vehicle in 2011, and arson of a vehicle in 2012. The arson offe nse had resulted in a fe lony

conviction and a

n eig ht-y ear

prison sentenc e, which J.T. is curre ntly serving

. A.T. was born in Marc h 2012. Acc ording to L andrum, the Depa rtment took custody of A.T. “short l y af

ter the birth” of the child beca use of the risk that the Depa rtment believed the biologica l pare nts posed to the child. Specifica lly with reg ard to J .T., the Depa rtment had “conc erns 3 that he continued to be u sing meth and marihuana which he had admitted to using during the investiga tion rela ted to [N.H., Medellin’s other child].” Additionally , L and r u m te s ti f ied, J .T. had “b o t h a long criminal history as well as a previous CPS history reg arding his first child, so that 4 history along with—combined wit h the fact that he was not in touch with us ga ve the De partment a g rea t deal of c oncer

n about [A.T.’s] safety .”

J .T.’s intox ication-a ss au l t o ffense had occur red while he was being investiga ted for 2 alleg edly abusing and neg lecting a differ ent ch i l d o f h i s , a son, who was three months old at the time of the offe nse. During this investiga tion, the infant had been pl ac ed t emporarily in the car e of the child’s pater

nal g randmother

. Whil e intox icated, J .T. had retrie ved his son from the child’s g randmother , driven off

with the infant in a motor vehic le, and ha d a collision. The evidenc e tended to show that both Medellin and J .T. had a history of drug use. Whil e 3 Medellin was preg nant with A.T., she was under investiga tion by the Depa rtment for the neg lect of an o ther child in her car e, N.H. L andrum was also the case worke r in the investiga tion invo l v i n g N.H., which ultimately resulted in the termination of Medellin’s pare ntal rig hts to that child. During that investiga tion, L andrum testified, Medellin and J .T. had lived toge ther with N.H. in a house that L andrum char acte rized as “filthy ,” with “mar ihuana out in the open in prac tically ever y room within rea ch of a toddler,” “rotting food,” a nd a bathr oom “over flowing with fec es and urine.” Medellin and J.T. had been e victed fr om this house prior to A.T.’s birth. J .T.’s first child had been in J .T.’s motor vehicle while J .T. was driving intox icated. 4 Although J .T.’s pare ntal rig hts to this child wer e not terminated, acc ording t o L andrum, the Depa rtment had found “ rea son to believe” that J .T. had a bused or ne g lected the child. 3After the Depa rtment first took custody of A.T., the district c ourt held an adver sary hear ing in April 2012, which J.T. had attended. H oweve r, af ter that, the D epar

tment did not have any further contac t with J .T. until late Aug ust 2012, when he wrote a letter to the Depa rtment from the Comal County J ail “re questing involvement in the case .” The Depa rtment eventua lly prepa

red

a service plan by which J .T. might obtain eventua l reunific ation with A.T. The plan, which took into

acc ount J .T.’s inca

rce ration status, requir ed him, among other thing s, to “attend a nd participa te i n all education prog rams provided by the Texas Depa rtment of Correc tions or the county jail while he

was incar cer ated.” Acc ording to L andrum, J .T. did not comply with the plan. Specifica lly , L andrum explained, J .T.’s “la ck of contac t or interest in his child for the first five months that his child was in our custody [i ndicates] a signific ant lack of overa ll compliance .” Additionally , L andrum testified, J .T. wa s u n ab le to comply beca use of the lack of pare nting- education resour ces available at the Comal County J ail. Howeve r, L andrum believed that if J .T. had kept in touch with the Depa rtment in the five months following the adversar y hear ing, he would have been able t o “wor k the s ervic e plan” pr ior to his incar cer ation. L andrum ag ree d with the Department’s chara cter ization of J.T.’s b eh avior as having “abandone d [J .T.] into the care of the Department,” and she believed that J

. T

. was in “c omplete . .

. denial that he has a responsibility for the child being in the situation that she is in today .” L andrum further testified that J .T. has demonstrated an inabil i t y t o p ro vide a safe environment for the child. L an d ru m based her assessment on J .T.’s “fa ilure to inquire about his child for that five mont h peri o d o f t i m e an d t hat he cannot care for the child at t his point beca use he is incar cer ated curr ently and has been and will be for some time.” The assessment was also based

4on J .T.’s “patter n of arr est and rele ase from jail,” which, L andrum believed, demonstrated instabilit y and an inability to provide a safe environment for the child. For these and other rea sons, L andrum believed that termination of J .T.’s p ar en t al ri ghts was in the best interest of the child. L andrum explained that A.T. h ad been pl ace d with the child’s materna l g rea t aunt and g rea t uncle, who are in their t hirties, and that the child is “ver y well-bonde d with th em . ” I f t ermination were to occur , L andrum a dded, the g rea t aunt and g rea t uncle would be w illing to adopt the child.

J .T. also testified. J .T. denied using drug s during the pendenc y of this ca s e b u t admitted that he had used methamphetamines in the past. J

. T

. also admitted to writing a letter in which he had claimed that he wa s “on t he run from the law” and t hat he and Medellin “we re both

on drug s” while the case was ong oing. J .T. also disclaimed responsibility for the arson offe nse for 5 which h e had been convicted—notwithstanding the fac t that he had pleade d g uilty to the offe nse. I nstead, J.T. claimed, his brother wa s to blame.

J .T.’s mother, Christine Perdue, who was seeking to be named A.T.’ s p ossessory

conser vator while her son was incar cer ated, also tes t i fi ed

. Perdue admitted that J .T. had a drug problem “in the past” and believed that this drug problem had contributed to his criminal behavior

. She also admitted that all three of her sons have had drug problems and have ended up incar cer ated.

The final witness to t estify at the termination hear ing was L aure n Townsend, the Court Appointed Special A d v o c a te (CASA) supervisor in the case . Townsend testified that A.T. was

The period of time in which J .T. was “on the run from the law” corr esponded to the five- 5 month period when he was not in contac t with the Depa rtment. Acc ording to the evidenc e prese nted, during this time, J .T. was living wi t h M ed el lin in Dallas and had an open, active war rant for his arr est rela ting to the a

rson offe nse. 5“doing rea lly well” in her curr ent place ment and that, in her view, it was in the child’s best interest

to have the rig hts of her biologica l pare nts terminated to c lear the way for the curr ent place ment to adopt the child.

Ha v i n g revie wed the rec ord, counsel’s brief, and J .T.’s pro se brief, we ag ree t h at the appea l is frivolous, including the issue that J .T. raises in his pro se brief reg arding the sufficie ncy of the evidenc e. We f ind nothing in the rec ord that might arg uably support the appea l. See Anders , 386 U.S. at 741-44; Taylor , 160 S.W .3d at 646-47. We aff irm the district court’s order of termination and g rant c ounsel’s motion to withdraw.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Aug ust 15, 2013

6