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

NO. 03

- 19

- 00448

- CV

D. J. and A. S., Appellant s

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTR ICT COURT OF BELL CO UNTY NO. 300,832

- B, THE H ONORABLE JACK WELDON J ONES, JUDGE PRESIDIN G

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

A fter t he trial court signed an order terminating A.S. ’ s parental rights to her sons,
who were two and four years old at the time of the final hearing, A.S. and D.J., grandmother to
the chil dr en, filed not ice s of appeal . Mother ’ s appointed attorney has since filed a brie f concluding that her appeal is friv olous and without merit. 1 Grandm other has filed a pro se brief complaining of the trial court ’ s refu sal to place the children in h er care
. We will affirm the trial

court ’ s order of termination.

1 See In re P.M. , 520 S.W.3d 2 4, 27

- 28 ( Tex. 2016) ( “ Counsel ’ s obligation to the client may s till be sati sf ie d by filing an a ppellate bri ef meeting the sta ndards set in Ander s v. California , [ 386 U.S. 738 (1967) , ] and its progeny

. ” ) ; T aylor v. Texas Dep ’ t of Protecti ve & Regulatory Servs. , 160 S.W.3d 641, 646

- 47 & n .4 (Tex. App.

— Austin 2005, pet. denied).2 BACKGROUND For a trial court t o terminate a parent’s rights to their child, the Texas Department of Family and Protective Services mus t prove by cle a r and convincing evidence that the paren t
engag ed in conduct that amounts to a statu tory ground for termination and that termination is in
the child’s best int erest. Tex. Fam. Code § 161.001 ; In re S.M.R. , 434 S.W.3d 576, 580 (Tex. 2014). The Department filed a petition seeking to terminate t he pare n t al rights of A.S. and
the children ’s f ather s , 2 alleging that A.S. was using drugs while she was supposed to be caring
for the children and that there were concerns about her mental health and parenting ab ilit ies

. D.J. hired an attorney, who filed a pe ti t i on in intervention on her behalf about two months be fore the final hearing asking to be named sole managing conservator . Aft er her petition in
intervention was filed, t he Department filed a final report in which it named D.J. as a person
entitled to n o t i c e of hearing and stated that it had done a home st udy for her as requested. The Department explained that it had rejected D.J. as a placement because she and A.S. ’ s father, w ith whom D.J. lived, were not “ forthcoming about their criminal history ” and be c a use i t was

concern ed that D.J. “ w ill not be protective since she minimizes [A.S

. ’ s] behaviors and would not comply with the court order regarding supervised visits and allow [A.S .] access to [the children] if they are placed in the home. ” The Dep a rtment e xplained that D.J. had admitted that A.S. stays
with her “ since she does not have anywhere else to stay ” and that D.J. cannot handle A.S. “ when she is under the influence of drugs or having a ma nic episode. ” Finally , the Department reported
that o ne of t h e boys “ expressed con cerns about being beat by his grandma who he refers to as

‘ nana. ’ ”

2 T wo men w ere named a s legal fathe r or all eged father, and both of their parental rights were termi nated. Neither is a party to this appeal.3 At the final hearing, D.J. was noted by the trial court as being present and represent ing herself. Department witnesses testified and reiterated the Departm e nt ’ s o b j ection s
to D.J. ’ s request to be the children ’ s caretake r. D.J. was allowed to question w itnesses, and when she was called to testify, the trial court a llowed her to “ come back up and tell ” the court

an ything she had not yet had a chance to s ay. D.J. te s t ified on her own behalf and d enied hitting her grandson, acknowledged that A.S. had “ issues, ” insisted that she would be protective of the
children , and said that she wanted to adopt the boys. At the conclusion of the hearing, the trial

court a sked D.J. i f she wanted to make a closing argument or summar ize her position, and D.J. responded, “ No, I just believe that the boys belong with me

. ” T he trial court made a verbal ruling that it would terminate the parents ’ rights and appoint the Departme n t as c ons e r v ator. Two weeks later , D.J. , through a new attorney, filed a motion for new trial , asserting that she was entitled to a new trial because her a ttorney did not appear at the final hearing and the trial court had not tried to determine the cau se of his a b sence or whether D.J

. was prepared for trial. The trial court hel d a hearing , during which D.J. ’ s new attorney clarified that he was not seeking a new trial as to the termination decision but only as to D.J., “ who filed the petition to interve ne to seek c ustody , ” a nd argued that D.J. received insufficient notice of the final hearing and was unfairly left without representation at the hearing. The Department responded, e xplain ing that the case was supposed to be heard by an a ssocia te judge in N ovember
20 1 8 but that the associate ju dge recuse d himself the day of the s chedule d hearing because D. J

. and other family members had “ bombarded ” him with letters “ outside of evidence

. ” As a result of the recusal, t he matter was set for fin al hearing befor e the re fe r r ing trial court in May 2019 , and the Department insisted that D.J. had more than for ty

- five days ’ notice of that trial setting. The Department also asserted that at the November hearing, the associate judge had allowed4 D.J. ’ s attorney to withd raw , and th a t D.J. chose n ot to hire new counsel before the May 2019 hearing and that she instead w a it ed to see whe ther she would like the tr ial court ’ s decision

. The
trial court de nied D.J. ’ s motion for new trial and signed its final decree of terminatio n, naming

t h e Department as managing conservator.

DISCUSSION D.J. does not dispute the sufficiency of the evidence supporting the terminat ion of the parents ’ rights. She in stead contends that her request to be na med the children ’ s conservator or placeme nt was not g iven fair treatment by the trial court. Speci fically, D.J. asserts that the
trial court di d not “ con sider ” her rights “ as Grandmo ther of the children , ” did not allow her to intervene, wrongfully proceeded to trial without allowing her to have legal repre s entation, did not allow her to present her case , di d n ot give her an opport unity to conduct ful l discovery, failed
in its “ role as an independent party, ” and “ did not afford equality of arms ” to her

. 3 First, we note that D.J. was p ermitted to interven e i n the proceeding and to cross

exam ine witnesses and testify on her own b ehalf at trial

. Further, although an indigent parent has

a statutory right to effective counsel in a parental

- rights termination case , that right does not extend to grandp arents. In re B.L.M. , No. 0 2

- 07

- 00 214

- CV, 2008 WL 1867141, at *11 (Tex. App.

— Fort Worth Apr. 24, 2008 , no pet.) (mem. op. ) ; In re J.S. , No. 0 2

- 04

- 00 277

- CV, 2005 WL 1693537, at *5 (Tex. App.

— For t Worth July 21, 2005 , n o pet.) (mem. op. ) . Thus, the fact

3 “ Equality of arms ” is a concept “ created by the European Court of Human Rights in the context of the r ight to a fa ir trial ” that requires a fair b alance of opportunities afforded to all parties to a litigation , such as the ability to call and cross

- examine witnesses , and t hat may i n some circumstances require “ the provision of financial support to allow a person of li mi ted me ans to pay for legal rep resentation

. ” O xford Re ference , Equality of Arms , http:// https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095755504 (last visited October 18, 2019).5 th at D. J . was not represented by counsel at the final hearing a n d any complaints she has related

to the quali ty of assistance she received from her trial attorney s before that hearing are not grounds for reversal

. See B.L.M. , 2008 WL 1867141, at *1 1 ; J.S. , 200 5 WL 169 3 537, at *5 ; see also In re H.M.J.H. , 209 S.W.3d 320, 322 (Tex. App.

— Dallas 2006 , no pet.) ( grandparent ’ s decision to proceed pro se at trial d id not alter her burden )

. Finally, an y assertions D. J. has about the proceeding being “ fixe d ” or unfair are not b riefed in such a way that we can con sider their
merits. See B.L.M. , 2008 WL 1867141, at *11

- 12. We next consider the eviden ce as it relates to
the trial court ’ s conservatorship decision.
If the trial court terminates both parent s ’ rights to their ch i ldren , as it did in this

case, the court mus t appoint a suitable, competent adult ; the Department ; or a licensed child

placing agency as managing conservator of the child. Tex. Fam. Code § 161.2 07 ( a )

. In reviewing that decision , w e apply a n abuse

- of

- discr etio n standard and will rev e r se only if the decision is arbitrary and unreasonable

. In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007) ; In re A.C. , 394 S.W.3d 633, 644 (Tex. App.

— Houston [1st Dist.] 2012 , no pet. )

. T he p rimary

cons ideration in a conserv atorsh ip decision is always the be st interest of the child , Tex. Fam.
Code § 153.002 , and in making or reviewing a conservatorship decision , courts must consider
the factors set out in the family code, id

. § 263.307(b ), 4 and Holley v. Adams , 544 S.W.2d 367 ,

4 P rompt and permanent placement in a safe e nvironment i s presum ed to be in a child ’ s be st interest , and the Department and the courts should consider fac to rs includ ing the child ’ s age ; any physical and mental vulnerabilities ; the harm suffered by the child ; whether the child fear s living in or retu rning home ; ps ychiat ric, psychological, or d evelopmental evaluations of the child and his family members ; any history of abus e or substance abuse by family members or others who have access to the home; the open n ess of the proposed placement to counseling services and s upervi sion ; the placement ’ s pa renting skills and openness to making necessary changes within a reasonable period of time; and whether the placement has an adequate support system . Tex. Fam. Code § 2 63. 307.6 371

- 72 (Tex. 1976). 5 T here is n o statutory presumption that a grandparent should be preferred as managing con servator over the Department or other non

- parents

. A.C. , 394 S.W.3d at 644 ; In
re J.R.P. , 55 S.W.3d 147, 1 52 (Tex. App.

— C orpus Chris t i

- Edinburg 2001 , pet. denied )

. When reviewing the sufficiency of the evidence, we must “provide due deference
to the decisions of the factfinder, who, having full opportunity to observe witness testimony first

hand, is the sole arbiter when a ssessing the credibili ty and demeanor of witn esses.” In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005)

. In evaluating the legal sufficiency of the evidence, we look at “all the evidence in the li ght most f avorable to the find ing ” to de t ermin e whether a reasonable factfinder could reach the trial court ’ s conclusion.
In r e J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002); Williams v. Williams , 150 S.W.3d 436, 449 (Tex. App.

— Austin 200 4, pet. denied). We “assume that the fact finder res ol ved disput ed fac ts in favor of its finding if a reasonable factfinder could do so” and “disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been in credible.” J.F .C. , 96 S.W.3d at 266. In considering fac tual suffici ency, we c onsi de r the entire record and ask whether the “disputed evidence is such that a reasonable factfinder c ould not have resolved that disputed evidence in favor of its finding.” Id

. The Department introduced into evidence its removal affidavit, w hich recit ed tha t
in June 2018 , it received a report that A.S. had w alked with her children to a hospital , where she
told staff “ she could not take care of her children any longer for f ear of harming them out of

5 In determining a child ’ s best in terest, co ur ts shoul d con sider his wishes ; h is present and future e motional and physical needs ; emotional and physical danger to the child now and in the future; parenting skills of th os e seeking custody; programs available to assist th o se individua ls ; the competing p la ns for the child ; the stabilit y of the possible placement s ; the parents ’ acts or omissions indicat ing that the exi sting parent

- child relationship is not a proper one; and any excuse for th os e acts or omissions

. Holley v. Adams , 544 S.W.2d 36 7, 372 (Tex. 1 976)

.7 f rustration. ” A.S. explained th at she and t he childre n had been left at D.J. ’ s house without any
food or means to get any food and that the children kep t crying because they were hun gry. A.S. told the invest igator that she “ has untreated mental health [ issues] and is diagnosed wit h bip olar d isorde r, schizop h renia , anxiety, and postpartum depression ” but that she does not take any medication and had not filled a prescription a hospital had given her. She said she had been to the hospital at least three times in the last month and went onc e in early M ay 2018 becaus e she was using methamphetamines

. She claim ed that she had not used since that time but that she had been selling methamphetamines “ to help prov id e for her children. ” The Department deci ded to remove the children in early June, when D.J. “ came run n ing ou t of [her] house s tating that 9

- 1

- 1 needs to be called due to [A.S.] fight ing in the house. ” The Department investigato r who was present heard “ audible screaming ” and saw A. S. in a violent struggle with her brother , “ ripping
thi ngs off of s helves, m oving furniture, and hitting and kicking other s in the home. ” After A.S. was arrested, D.J., A.S. ’ s father, and A.S

. ’ s brother all received medical attention. The children, who were present during the incident, were the n removed into Department care. A t tria l , t he Department caseworker explained the Department ’ s decision to oppose the placeme nt of the children with D.J. , testif ying that D.J. could not control A.S. physically and that if A.S. w ere to go to D.J. ’ s home, “ there ’ s no wa y that she ’ s able to contro l ”
A .S. and protect the children. D.J. also “ continues to make excuses for ” A.S. and “ minimizes the criminal history and the mental health and the drug use. ” The caseworker said that during the proceeding , D.J. had not been hon est about wh ether A. S . was livi ng with her and that th e Department therefore fear ed that if D .J. was giv en custody , she would still allow A.S. to live
with her and “ woul d not comply with the visitation orders. ” The caseworker further noted that
D.J. conti nued to driv e despit e not h avin g a valid driver ’ s license and that the older child said8 that D. J. had “ whooped ” him

. Finally, t he cas ew orker testified that A.S. ’ s father, who lived with
D.J. , did not w ant to adopt the boys a nd that it “ would be difficult for [the chi ldren] t o live ther e and [A.S. ’ s father] to be caregivers [sic] when he doesn ’ t want to adopt them. ” The casewo rker
testified that the older boy was currently in a “ s pecialized ” foster home due to “ extreme behaviors ” that he exhibited when he was fi rst removed , i n cludin g “ major ta ntrums about three times a day. ” H e had been participating in therapy for se veral months, and his behavior had

“ improved tremendously , ” and once his behavior normalized , the Department hoped to move
him into the same foster home with h is brothe r
. The younger child was thriving and “ doing really well ” and was “ very attached ” to his foster parents.
The children ’ s guardian ad litem testified that she opposed the appo intment of
D.J. as the children ’ s conservator because D.J . allowed A. S. to liv e with her a nd because the
children were removed from A.S. ’ s care while they and A.S. were living with D .J. “ after witnessing an in cident of extreme violence in the home. ” She said that D.J. ’ s failure to seek
assistance with A.S. ’ s is sues :

led to t h e chil dren being i n an atmosphere that was not conducive to their best interest, being exposed to domestic vi olence, being exposed to the violence in the home that on that particular incident, according to the removal affidavit, you and [A .S

. ’s father ] ha d to re ceive medica l attention. This occurred when the children were in the home. That is a dangerous situation for children.
The guardian ad litem also said that D.J. had not been “ completely honest with the Department ”
about whether A.S. lived with h er during the proceed ing

. She believed it was in the boys ’ best
interest to remain in their current placements and echoed the caseworker ’ s hope s that the older child could soon be placed with his brother and th at the two boys would be adopted t ogether

.9 D

. J . expl ained that he r driver’s license had been suspended due to unpaid tickets
and that she w as working on regaining it. D.J. said that although she lived with A.S. ’ s father, they were “ not really tog ether

. ” She said she was in the process of b uying a n e w home and that
sh e earned enough money to support herself and the boys. She wanted to adopt them because

“ [t] hey ’ re my grandkids, and I thin k the best place for them kids is with their family. ” D.J. said
A. S. was “ sch izo, bipolar, like tha t , ” and said s he wou ld remind A. S. to take her medication but
would not be able to force her to do so. Asked what she would do if t he boys were placed with
her and A.S. showe d up at the house, D .J. said she would call the police. She also denied ever
hi tting her gr an d sons. The recor d reflects that the children were present during a violent fight between A.S. and her brother, which occurred in D.J. ’ s home while D.J. was present. There was also
evidence that A.S. ha d used drugs on at least on e occasio n and had so ld drugs and given some of
the mon ey to D. J., although A.S. denied that D.J. knew the source of the mon ey
. D.J. had not been honest about whether she allow ed A.S. to live with her during the proceeding, and both the
caseworker and the children ’ s guardian ad litem were concerned that she would not and co uld

not prote c t the boys from A.S. The olde r child exhibi ted extreme behavior, which ha d improved
since his removal , and the younger child was thriving and had bon ded with his foster family.
Th e Department h o ped to place the boys together and for them to be adopted by t hat family. On this record, c onsidering the relevant statutory and Holley factors, we cannot conclude that the trial court abused its discretion in dec iding that placement with D.J. was not i n the c hildren’s best interest

. See J.A.J. , 243 S.W.3d at 616 ; A.C. , 394 S.W.3d at 644

.10 CONCLUSION We have overruled D.J. ’s complaints on appeal. Further, in our re view of the record, we agree with Mother ’ s attorney that the appeal is f ri v olous and w it h out m e rit . We
affirm the trial court ’ s order of termination.

_ _________________________________________ Jeff Rose, Chief J ustice
Befor e C hief J ustice Rose, J us tices Triana and Smith
Affirmed
File d: November 7, 2019