NO. 07-12-0115-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 11, 2012

______________________________

IN THE INTEREST OF J.R. AND H.R., CHILDREN

_________________________________

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 36,488; HONORABLE JACK M. GRAHAM, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellants, Lydia and Chris, appeal from the trial court's order terminating their 

parental rights to their children, J.R. and H.R.1 In presenting this appeal, appointed 

counsel for both parents have filed Anders2 briefs in support of their respective motions

to withdraw. We grant those motions and affirm.

 1

To protect the children's privacy, we will refer to Appellants by their first names and the children by their 

initials. See TEX. FAM. CODE ANN. § 109.002(d) (WEST 2008). See also TEX. R. APP. P. 9.8(b). 

2

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2

Courts of this State, including this Court, have found the procedures set forth in 

Anders v. California applicable to appeals of orders terminating parental rights. See In 

re A.W.T., 61 S.W.3d 87, 88 (Tex.App.--Amarillo 2001, no pet.). See also In re D.E.S., 

135 S.W.3d 326, 329 (Tex.App.--Houston [14th Dist.] 2004, no pet.); Taylor v. Texas 

Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646-67 (Tex.App.--Austin 

2005, pet. denied). In support of their respective motions to withdraw, counsel certify

they have conducted a conscientious examination of the record and, in their opinion, the 

record reflects no potentially plausible basis to support an appeal. Both counsel certify

they have diligently researched the law applicable to the facts and issues and candidly 

discuss why, in their professional opinion, the appeal is frivolous. In re D.A.S., 973 

S.W.2d 296, 297 (Tex. 1998). Counsel have demonstrated they have complied with the 

requirements of Anders by (1) providing a copy of their respective brief to Appellants 

and (2) notifying them of their right to file a pro se response if they desired to do so. Id. 

By letter, this Court granted Appellants an opportunity to exercise their right to file a 

response to their counsel’s brief, should they be so inclined. Neither Appellant filed a

response. Furthermore, the Department of Family and Protective Services did not favor 

us with a brief.

FACTUAL BACKGROUND

Lydia and Chris are married and their two children are the subject of the 

underlying suit. J.R. is a female born on June 6, 2007, and H.R. is a male born on June 

17, 2009. At some point in time, J.R. made an outcry to her grandmother. She was 

taken to the Bridge to be interviewed and she was examined by a sexual assault nurse. 
3

J.R.’s complaint was that her daddy put a stick in her butt and would play with her “nuts” 

(referring to her female sexual organ). Results of the exam showed trauma to her anal 

area, specifically dilation, although her vaginal area showed nothing out of the ordinary. 

According to the sexual assault nurse examiner, the anal dilation was consistent with 

chronic and repeated penetration of the anus over a period of time. The children were 

removed from the home by the Department and placed with their paternal grandmother 

and her husband. 

Following removal of the children, the Department devised a family service plan 

for Lydia and Chris to follow. The plan included, among other requirements, counseling, 

parenting classes, psychological evaluations and a sexual predator class for Lydia. 

Both parents completed the parenting classes and Lydia completed the sexual predator 

class. Neither parent made arrangements for the required psychological evaluations. 

Although their psychotherapist testified that neither parent completed the required six 

counseling sessions with him, Lydia disputed that fact at the final hearing. 

At the final hearing Chris acknowledged having four separate indictments 

pending against him for offenses of a sexual nature. Two of those indictments involved

J.R. and the other two involved another female he allegedly abused from the time she 

was in kindergarten through the sixth grade. Chris blamed his failure to complete his 

psychological evaluation on the Department. Throughout most of his testimony, on the 

advice of his counsel, Chris pleaded the Fifth Amendment to many questions, including 

questions regarding domestic violence directed towards Lydia. 
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Numerous witnesses, including Chris’s brother and sister testified to incidents of 

domestic violence by Chris against Lydia. An ex-girlfriend of Chris’s described how he 

physically abused her by choking her and throwing her against a wall. Testimony was 

also presented that both children were filthy, that they were left in full dirty diapers, that 

they sometimes slept in a wet bed causing the room to smell of urine, and that the home 

was dirty and at times had no running water or gas. 

The psychotherapist treating both parents testified that initially, Lydia believed 

Chris had abused J.R. and she moved in with her mother-in-law. She then doubted the 

accusations against Chris and returned to live with him. The psychotherapist further 

testified that Chris avoided questions and Lydia minimized the domestic violence issue. 

When he asked Chris about blood found on J.R.’s sheets, he explained it was from a 

nose bleed. During their sessions, questions related to the sexual allegations against 

J.R. went unanswered on the advice of Chris’s counsel. 

A psychologist licensed to treat sex offenders and their victims interviewed J.R. 

several months after her removal from the home. She testified that J.R. would shut 

down when discussing her parents and her drawings were disturbing. She drew phallic 

symbols to the best of her ability and used the word “penis” in their sessions which was 

unusual for a child her age. The psychologist opined that J.R.’s drawings were 

indicative of sexual abuse.

Testimony was presented from a former neighbor of Chris’s that when she was 

fourteen years old, he propositioned her for sex in exchange for cigarettes and forty 
5

dollars. She reported the incident to her family who called the police. Although she 

gave a statement to law enforcement, no charges were ever filed.

The Department’s case-in-chief focused on Lydia and Chris’s failure to provide a 

safe and stable home for their children. The Department’s witnesses testified to alleged 

acts of sexual abuse by Chris against J.R. and another young female and the filthy 

condition of the children and the home. Witnesses also testified to Lydia’s allegiance to 

Chris over the safety of her children. The expert witnesses all concluded that they were 

not comfortable recommending a return of the children to the parents and believed that 

termination was in the best interest of both children. The Department’s rebuttal 

witnesses offered testimony of Chris’s violent temper and Lydia’s complacent attitude 

toward the results of the sexual assault exam.

Lydia testified that she has a good marriage and loves being a mother. She also 

described Chris as being a good father. In fact, she testified that the Department’s 

witnesses had all lied about Chris’s violent temper and the condition of her children and 

home. Regarding J.R.’s anal trauma, she explained that severe constipation and use of 

suppositories was the cause of the dilation. The sexual assault nurse examiner

disputed this explanation.

An employee from a victim’s services agency testified that on April 5, 2011, Lydia

was brought in by her mother-in-law with bruises and claims of being beaten and 

strangled by Chris. Her mother-in-law testified that when she found her there was 

broken furniture strewn about the home. At the final hearing, Lydia claimed that her 
6

injuries were sustained in a fight with one of Chris’s ex-girlfriends and denied any 

violence towards her by Chris.

Regarding the best interests of the children, there was testimony that while this 

case was pending the children’s grandmother and her husband cared for the children

and tended to their needs. They also wanted to adopt them. Over a seven to eight 

month period after the children were removed from their parents, J.R.’s nightmares 

decreased, she no longer suffered from constipation, and she stopped acting out. H.R. 

was also described as being more energetic. 

After presentation of the evidence, the trial court took the case under advisement 

and on March 28, 2012, signed a final order terminating Appellants' parental rights 

based on clear and convincing evidence that they had:

knowingly placed or knowingly allowed the children to remain in conditions 

or surroundings which endangered their physical or emotional well-being;

engaged in conduct or knowingly placed the children with persons who 

engaged in conduct which endangered their physical or emotional wellbeing; and

failed to comply with the provisions of a court order that specifically 

established the actions necessary for the parents to obtain the return of 

the children who had been in the permanent or temporary managing 

conservatorship of the Department for not less than nine months as a 

result of the children's removal from the parent under Chapter 262 for the 

abuse and neglect of the children.

See TEX. FAM. CODE ANN. § 161.001(1) (D), (E) and (O) and (2) (WEST SUPP. 2012). 

The court then appointed the Department as the children’s permanent managing 

conservator with all rights and duties specified in section 153.371 of the Texas Family 
7

Code. Following the final hearing, the Department continued placement of the children 

in the home of the paternal grandmother and her husband. The trial court filed Findings 

of Fact and Conclusions of Law in support of its order.

By their separate Anders briefs, both counsel maintain the evidence is sufficient 

to support the trial court's termination order and do not raise any arguable issues. See 

Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974). Upon examination of the 

record, we agree with their evaluations.

STANDARD OF REVIEW IN TERMINATION CASES

The natural right existing between parents and their children is of constitutional 

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 

599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, 

termination proceedings are strictly scrutinized. In Interest of G.M., 596 S.W.2d 846 

(Tex. 1980). Parental rights, however, are not absolute, and it is essential that the 

emotional and physical interests of a child not be sacrificed merely to preserve those 

rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

Due process requires application of the clear and convincing standard of proof in 

cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 

263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof

which will produce in the mind of the trier of fact a firm belief or conviction as to the truth 

of the allegations sought to be established. See TEX. FAM. CODE ANN. § 101.007 (WEST

2008). See also In re C.H., 89 S.W.3d at 25-26. 
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The Family Code permits a court to order termination of parental rights if the 

petitioner establishes one or more acts or omissions enumerated under subsection (1) 

of the statute and also proves that termination of the parent-child relationship is in the 

best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (WEST SUPP. 2012); 

Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). 

Only one predicate finding under section 161.001(1) is necessary to support an 

order of termination when there is also a finding that termination is in a child's best 

interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 

384 (Tex.App.--Amarillo 2005, no pet.). Therefore, we will affirm the termination order if 

the evidence is both legally and factually sufficient to support any statutory ground upon 

which the trial court relied in terminating parental rights as well as the best interest 

finding. In re S.F., 32 S.W.3d 318, 320 (Tex.App.--San Antonio, no pet.).

§ 161.001(1) GROUNDS FOR TERMINATION

§ 161.001(1)(D)

Under section 161.001(1)(D), parental rights may be terminated when clear and 

convincing evidence shows that a parent knowingly placed or knowingly allowed the 

child to remain in conditions or surroundings that endanger the physical or emotional 

well-being of the child. Subsection (D) requires a showing that the environment in 

which the child is placed endangered the child’s physical or emotional health. Doyle v. 

Texas Dept of Pro. and Reg. Serv., 16 S.W.3d 390, 395 (Tex.App.--El Paso 2000, pet. 

denied). Additionally, subsection (D) permits termination based on a single act or 
9

omission by the parent. In re L.C., 145 S.W.3d 790, 796 (Tex.App.--Texarkana 2004, 

no pet.). 

§ 161.001(1)(E)

Parental rights may be terminated under section 161.001(1)(E) if there is clear 

and convincing evidence that a parent engaged in conduct or knowingly placed the child 

with persons who engaged in conduct which endangered the physical or emotional wellbeing of the child. The cause of the danger to the child must be the parent's conduct 

alone, as evidenced not only by the parent's actions but also by the parent's omission or 

failure to act. Doyle, 16 S.W.3d at 395. Additionally, subsection (E) requires more than 

a single act or omission; a voluntary, deliberate, and conscious course of conduct by the 

parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.App.--Fort Worth 2000, pet. 

denied). 

§ 161.001(1)(O)

Parental rights may be terminated under section 161.001(1)(O) if the Department 

establishes that the children were removed because of abuse or neglect; the 

Department has been the permanent or temporary managing conservator for at least 

nine months; a court order specifically established the actions necessary for the parents 

to obtain the return of their children; and the parents failed to comply with that order. 

See In re J.F.C., 96 S.W.3d at 278-79. Additionally, termination under subsection (O) 

does not allow for consideration of excuses for noncompliance nor does it consider 
10

"substantial compliance" to be the same as completion. See In re M.C.G., 329 S.W.3d 

674, 675-76 (Tex.App.--Houston [14th Dist.] 2010, pet. denied).

§ 161.001(2) BEST INTEREST

Notwithstanding the sufficiency of the evidence to support termination under 

section 161.001(1), we must also find by clear and convincing evidence that termination 

of the parent-child relationship was in the best interest of J.R. and H.R. See §

161.001(2). Evidence that proves one or more statutory grounds for termination may 

also constitute evidence illustrating that termination is in the child's best interest. See In 

re C.H., 89 S.W.3d at 28. A non-exhaustive list of factors to consider in deciding best 

interest is found at section 263.307(b) of the Family Code. See also Holley, 544 S.W.2d 

at 371-72. 

ANALYSIS

As in a criminal case, we have independently examined the entire record to 

determine whether there are any non-frivolous issues which might support the appeal. 

See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. 

State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Based upon the record in this case, 

we find the evidence is legally and factually sufficient to support the trial court’s findings, 

both as to the grounds for termination and best interests of the children. Furthermore, 

we find there are no other potentially plausible issues which would support an appeal. 

See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the 
11

record and both Anders briefs, we agree with counsel that there are no plausible 

grounds for appeal.

CONCLUSION

Accordingly, counsels' motions to withdraw are granted and the trial court’s order 

terminating the parental rights of Lydia and Chris to their children J.R. and H.R. is

affirmed. 

Patrick A. Pirtle

 Justice