## In the Court of Appeals Second Appellate District of Texas at Fo rt Wor th

___________________________ No. 02

- 24

- 00099

- CV

___________________________

On A ppeal from the 360th District Court Tarrant County, Texas Trial Court No. 360

- 729460

- 23
Before Sudderth, C.J.; Bassel and Walker, JJ. Memorandum Opinion by Justice Bassel 

### I N THE 

### I NTEREST OF 

### S.D., A 

### C HILD2 MEMORANDUM OPINION
This is an u ltra

- acc elera t ed a p peal 1 i n which App ellant M.D. ( Fa ther) a ppeal s the ter mination of his parental rights to his daughter , S.D. , 2 following a benc h trial

. Fa ther ’ s court

- appointed appe llate counse l filed a n A nde rs b r ief ave rring that after
dil igently reviewing the record, he believes that the appeal i s frivolous because even though the evidence is allegedly fac tually insufficient to support termination under Family Code Se ction 161.001(b)(1)(D) , the record contains s ufficien t ev i den ce to support termination under S ubs ections (E) and (N)

. 3 See Anders v. C alifornia , 386 U .S. 738, 744

– 45, 87 S. Ct . 1396, 1400 (1967); see also In re K.M

. , 98 S.W.3d 774, 776

– 77 (T ex. App.

— Fort Wort h 2003, no pet .) (reasoning that A nders pro cedu re s apply in noncriminal appe als when appoi ntment of c ounsel is man dated by statut e)

. Altho ugh the brief requests modification of the termination order to d elete the trial court ’ s Subsection ( D) finding , it nevertheless meet s the requirements of An ders by p resenting a professional evalu ation of the record and dem onstrati ng wh y the re ar e no argu able

1 See T e x . R. Jud. Admin. 6. 2( a) (re quiring app ellate court to dispose of app e a l from a jud g m ent termin ating parent al rights, so far as r easo nably possib l e , w i thi n 180 days a fter noti c e of ap p eal is fi l ed).

2 S ee T ex. R . Ap p. P . 9.8(b ) (2) (r e q uir ing court to use a n alias to refer to a mi no r in an app eal from a j udgmen t terminating par e n t al rig hts) ; see also Tex. R. App. P. 9.8 (a) (defin ing “ alias ” to include “ one or more of a person ’ s initia ls or a fictit ious name ” )

.

3 See In re E.P.C. , 381 S.W.3d 670, 684 n.3 (T ex. App.

— Fo rt Worth 2012, no pet.) ( e xpl aining that a f inding of only one Fami ly Code Section 161.001 (b)(1) termination ground

— along with a best

- interest fi nding

— is sufficient to su pport a judgme nt terminat i ng a paren t ’ s rights)

.3 grounds for reversal to be advanced o n appeal

. See Mitchell v . State , 653 S.W.3d 295, 297 (Tex. App.

— Texarkana 2022, no pet.) ( “ [A] ppellate courts are authoriz ed to reform judgments and affirm as modified in Anders cases invol ving non

- revers ible

error. ” ) ; cf. R.J.O. v. Tex. Dep ’ t of Fam. & Protective Servs. , No. 03

- 13

- 00478

- CV,
2013 WL 6060778, at *1 (Tex. App.

— Austin Nov. 13, 2013, no pet.) (mem. o p.) (reformin g trial co urt ’ s final decree to remove a statutory termination ground and
affi rming judgment, as modified, in Anders case)

. Father did not file a response desp ite being given the opp ortunity to do so . The D epartment filed a letter brief stating that
althou g h it general ly agreed with the An ders brief , it opposed Fath er ’ s counsel ’ s r equest to modify the terminat ion order by del eting the Subsection (D) finding

. As the reviewing ap pellate court, we mu st independently examine the r ecord to
deci d e whet her a n a t torney is correct in determini ng that the appeal is frivolous. See
St afford v. State , 8 13 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re K. R.C. , 346 S.W .3d 618, 619 (Tex. App.

— E l Paso 2009, no pet. ). Having carefully reviewed the recor d

an d the A nders br i ef, we agree that Fa ther ’ s app eal is frivolous. We find nothing in
th e record that might arguably warr ant reversal of the trial court ’ s termination order

. See Ble d soe v. State , 178 S .W.3d 824, 82 7 (Tex. Crim. App. 2005). Further, we con clude t hat the e vidence is factually sufficient to support
termination under Subsection (D) and therefore d eny Father ’ s counsel ’ s request to modify the t rial court ’ s order

. Subsec t ion (D) prov i des that a trial court may order parental rights terminated if it fin ds by cl e ar and convincing evidence t hat the parent4 has “ knowingly placed o r k nowingly allowed the child to remain in conditions o r surroundings which en danger the p hysical or emotional well

- being of the child. ” Tex. Fam. Code Ann. § 161.001(b)(1)( D). As used in the statute, “ ‘ endanger ’ means to
expose to loss or i n jury; to jeopardize. ” Tex. Dep ’ t of Human Servs

. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987). Endangerment unde r S ubsection (D) arises from the child’s environment, but a parent’s conduct can co ntribute to an endangeri ng environment.
In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.) ; s ee J. G. v. Tex. Dep ’ t of F am. & Protective Servs. , 592 S.W. 3d 515, 524 ( Tex. App.

— Austin 2019, no pet.). “ A single act or omission can suppor t termin a tion under [S] ubsection (D)

. . . . ” J.G. , 592 S.W.3d at 524

. Evidence of the foll owing can support the conclusion that a
child ’ s surroundings end an ger her physic al or e mot ional well

- being for purp oses of Subsection (D) : a pa rent ’ s drug use, 4 a parent ’ s allow ing a child to be around another
person

— including another parent

— who is using drugs or participating in unlawful
conduct , 5 a parent ’ s knowledge of the other parent ’ s drug use during pregnancy and

4 Se e E.G. v. Tex

. Dep’t of Fam. & Pro tective Servs. , No. 03

- 22

- 004 69

- CV, 2022 WL 17970222, at *8 (Tex. App.

— Austin Dec. 28, 2022, no pet.) (mem. op.)

.
5 See In re B.U. , 02

- 23

- 00150

- CV, 2023 WL 5967604, at *4 (Tex. A pp.

— For t Worth Sep t. 14, 2023, pet. denied ) ( m em. op.) ( “ [A] parent ’ s choice t o conti nue relationship s with peop le who abuse il legal drugs may constitute evidence of endanger m ent [un der Subsect ion (D)]

. ” (citing I n re K .W. , N o . 09

- 19

- 00442

- CV , 2020 WL 1 755985 , at * 8 (T ex. App

. — Beaumont Apr. 9, 2020, p et. denied) ) ) ; In re M.R.J.M. , 28 0 S.W.3d 494, 502 (Tex. App.

— Fort Worth 200 9, no pet.) (op. on reh ’ g) ( “ Inappropriate, abusive, or unlawf ul conduct by persons who live in the child ’ s home or with whom t he c hild is compelled to associat e on a regu lar basi s in his home is a part of the ‘ co nditions or surroundings ’ of the child ’ s home un der [Su bsect ion (D)]

. ” ).5 corresponding f ailure to attempt to protect the unborn child from the effects of that drug use , 6 a parent ’ s impri sonment or intentio n al act ivity that ex p oses the parent to potential incar ceration, 7 or a parent ’ s men tal i ns ta bility or untreated mental illne ss. 8 Here, the record reflects that

• S.D. tested positi ve for methamphetamine and marijuana when she was born, and S.D. ’ s mother (Mot her) ad mi tted to usi ng methamphet amine and amphetamines during her pregnanc y .

• Rayshon Jones , t he permanency specialist assigned to S. D. ’ s case , testified that she believed that Father and Mother were a couple and lived tog ether prior t o S.D. ’ s removal.

• Al though Father denied having lived with Mother , he test ified t hat he had

“ spent nights with her ” and that he had learned that Mother was pregnant when she was about six or seven months along.

• Father and his si ster to l d Jones that th ey kn ew that Mother was not going to st op using dr ugs.

• Father has a len g thy cr iminal h istory , including four convi c tions for possessing methamp h etamine ; has been in an d out of pr ison ; and was incarcer ated at the time of tri al

.

6 See In re J.W. , 645 S.W.3d 726, 74 9

– 50 (Tex. 2022)

.
7 See Boyd , 727 S.W.2d at 533 ; D.N. v. Te x. Dep’t of Fam. & Protective Servs. , No. 03

- 15

- 00658

- C V, 2 016 WL 1407808, at *2 (Tex. A pp.

— Austi n Apr. 8, 2016, no pet.) (mem. op.)

.
8 See T.A.W. v. Tex

. Dep’t of Fam. & Protective Servs. , No. 03

- 20

- 0036 4

- CV, 2021 WL 81866, at *4 (Tex. App.

— Austin Jan. 8, 2021, pet. denied) (mem. op.) (mental instability); In re L .L.F. , No. 02

- 11

- 00485

- CV, 20 12 WL 29232 91, at *15 (Tex. App.

— Fort Worth July 19, 2012, no pet.) (mem. op.) (untreated mental ill ness) ; In re J. I.T.P. , 99 S.W.3d 841, 845 (Tex. App.

— Houston [14th Dist.] 2003, no pet.) (noncompliance with mental health medi cation)

.6 • Although Father denied having a drug problem, he ac know l ed ged th at he had multiple “ drug charges ” and could have been considered to have had a drug problem in th e past
.

• Father testifi ed that he had trade d drugs to “ [ c ] u s tomers ” for old, broken elect ronics but denied that h e had supplied Moth er with her met hamphet amine

.

• Father wa s prescr ibed medication for anxiety/depression and post

traumatic stress disorder, but h e stopp ed taki ng his medica tion in 200 3 because he “ felt like [ he] didn’t need it

. ” He resumed takin g his medic ati on in 2 007 befo re stopping again in 2021 because he could not pay for it and
was “ [ j ] us t b eing irresponsible. ”

• Father admitted to self

- medicat ing with meth amphetamine

. Giving due deference to the trial court ’ s findings, In re H. R .M. , 20 9 S.W.3d 105, 108 (Tex. 2006) , we conclude that based on th is evidence, the trial court could reasonably have formed a firm conviction o r beli ef that Father had e ndangered S.D. by placing her

— or by allowing her to remain

— i n a dangerous environment , see In r e C.H. , 89 S.W.3d 17, 28 (Tex. 2002) ; see also Tex. Fam. Code Ann. § 161.001(b)(1)(D)

. Thus, the
evide nce is factually sufficient to s upport the tr ial court ’ s S ubsectio n (D) finding. See
C.H. , 89 S.W.3d at 18

– 1 9. Accor di ngly, w e deny Father ’ s couns el ’ s request to m odify the
terminat ion order by deleting the Subsection (D) findi ng , and we affirm the order as

- is.
Fa ther ’ s counsel remain s ap po inted i n this case t hrough proceedi ngs in the
Texas S upreme C ourt unle ss otherwi se relieved from hi s du ties fo r good cause in

ac cordance with Family Code Section 107.016(2)(C). See In re P. M. , 520 S.W.3d 24,7 27

– 28 (Tex. 2016) (order) ; see also Tex. Fam. C ode Ann . § 107.016(2 )(C). /s/ Dabney Bassel Dabney Bassel Justice
Delivered : July 11, 2024