### 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. 03-12-00268- CV

A. S., Appellan t

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

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 252 ,206 -B , H ONO RAB LE RICKMO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant A.S. has filed a notice of appea l from the district court’s order terminating her parenta l rig hts. A.S.’s court-a ppointed counsel has filed a motion to withdraw and an A n ders brief, concluding that the appea l is frivolous and without merit. See Anders v. Calif ornia , 386 U.S. 738, 744 (1967); see also Taylor v. Texas Dep’ t of Protective & Regulatory Servs. , 16 0 S.W .3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (apply ing Anders proce dure in appea l from termination of pare n t al ri gh t s ). We rea ch the same conclusion and will aff irm the order of termination. The Texas Depa rtment of Family and Protective Service s (the Depa rtment ) filed a petition to terminate A.S.’s pare ntal rig hts to her daug hter, P.D., an infant. The petition was based in part on alleg ations that A.S. had endang ere d the phy sical or emotional well-be ing of the child by , among other things, using drug s. See Tex. Fam. Code Ann. § 161.001(1)( D), (E) (West Supp. 2011).At the final hear ing, t h e d i s t ri ct court hear d evidenc e that on Marc h 15, 2012,

Offic er An d re w McCather ine of the Killeen Police Depa rtment responde d to a call of a criminal trespass at a local motel. Once inside the motel room, McCather ine testif i ed , h e discovere d A.S. ly ing in a bed aslee p, unresponsive t o M cC at h erine ’s attempts to wake her. Next to the bed, McCather ine observe d what he believed to be drug p ar ap h ernalia. Acc ording to McCather ine, when A.S. finally awoke , she admitted to using drug s and was place d under arr est. This incident had

occur red a pproxi mately

one we ek bef

ore the final hea

ring commence d. The district court also hear d evidenc e from Carrie Gre en, the conser vatorship

case worke r assig ned to the case . Gre en provided extensive testimony reg arding the case and her

rec ommendations for the child. During her testimony , Gre en rec ited A.S.’s criminal history , which inclu ded mul tiple arr ests and convictions in the past ten y ear s for primarily drug -re lated offenses. Gre en testified that A.S. had eng ag ed in conduct that endang ere d the child by using drug s, alcohol, and having drug para

pherna lia in the prese nce of the ch i l d , h ad fa iled to comply with her courtorder ed service plan for reunific ation, and had failed to take action to cre ate a safe and stable home environment for the child. Gre en further testified that the child had been place d with rela tives who

wer e interested in adopting her and that the child was doing very well in he r curr ent place ment. I n Gre en’s opinion, termination wa s in the best interest of the child.

On the second day of the final hear ing, the district court order ed A.S. to submit t o

a drug test administered by the Depa rtment. A.S. tested positive at that time for amphet ami nes and coca ine. A.S. admitted that she had “re lapsed.” After this, the district court hear d evidenc e from Dr. Michae l Campbell, who had perf ormed a psy cholog ical evalua tion on A.S. Dr. Campbell

2testified that A.S. had been diag nosed with drug d ep en dence , Bor derline Personality Disorder ,

and Antisocial Personality Disorder , among other things. Ba sed on his evalua tion, Dr. Campbell had conclude d that it wa s unlikely that A.S. c ould pr ovide a stable home for her child, and he believed that termination was in the best interest of the child. Another witness who opined that termination

was in the best interest of the child was Venita Mathis, a Depa rtment investiga

tor who had conclude d that A.S.’s drug use had e ndang ere d the child.

The final wi t n ess at the termination hear ing was A.S., who admitted to many of t h e De p ar t m ent’s alleg ations ag ainst her but attempted to excuse her curr ent behavior by claiming that her pa st problems and prior convictions had made it difficult for her to comply with the court-or dere d service plan, car e for her child, and find suitable employ ment. A.S. believed that 1 participa ting in a drug -re habilitation prog ram would enable her to take car e of herse lf and her child.

At the conclusion of th e h ea ri n g, the district court found by clea r and convincing evidenc e that the alleg ations in the Depa rtment’s petition wer e true and that termination was in the best interest of the child. This appea l followed.

Counsel’s brief meets the require ments of Anders by p re s enti ng a profe ssional eval u at i o n o f t he 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. A.S. was provided with a copy of counsel’s brief and was advised of her rig ht to examine the appellate rec ord an d t o file a pro se brief. No pro se br ief ha s been f

iled.

A.S. testified that she curr ently worke d as a “danc er” at a “g entl em en ’s club.” She 1 explained that she worke d the nig ht shift from 7:00 p.m. until 2:00 a.m. or 4:00 a.m., which ma de it difficult for her

to wake up in the mor

ning a nd participa te in court-or dere d service s. 3W e h av e revie wed the rec ord and counsel’s brief and ag ree that the appea l is

frivolous and without merit. We find 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 Rose Affir med Filed: June 29, 2012

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