### 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. 03-12-00229- CV

Stephan ie Anderson, 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. 237 ,522 -B , H ONO RAB LE RICK MO RRIS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Stephanie Ander son appea ls from the tri al court’s decr ee terminating Ander son’s pare ntal rig hts to her son Z .D.M., who wa s al m o s t t h ree y ear s old at t he ti me of trial. I n J u l y 2 010, when Z .D.M. was about six teen months old, the Depa rtment rec eived a ref

err al alleg ing tha t Anderson had tested positive f or phenc y clidine (PCP) while on probation for dr iving while intox icated and admitted to using PCP and marihuana , althoug h not while she was car ing for her child. Ander son agre ed t o underg o counseling , drug testing, and a psy cho-soc ial assessment. Z .D.M. was place d with his materna l g rea t-aunt, and Ander son was no t al lowed to have unsupervised contac t with him. About three months later, in October 2010, Ander son ag ain tested p o s itive for PCP

. At the time, she denied using PCP and said she inhaled it when she sat next t o

someone who was using it, but at trial, she admitted that she had used drug s in October 2010, say ing that was the la st tim e she ha d used them.During the jury trial in Fe bruar y 2012, the psy cholog ist who evalua ted Ander son about a y ear ear lier testified that Ander son had not shown that she had appropr iate pare nting skills and had used drug s to c ope with life in g ener al. Ander son was cooper ative during the assessment, but the psy cholog ist was conce rned about Ander son’s drug use b ec ause althoug h she had a car

acc ident while intox icated, which led to her being place d on probation, she continued to use drug s while on probation and even afte r Z .D.M. was remove d from her car e. He was conce rned that none of those eve nts seemed to “w ake” her up a nd convince her to e nd her dr ug use. Ander son’s drug counselor te stified that althoug h Ander son completed most of the require ments of her drug reha bilitation prog ram, she only co m p l eted about ninety perc ent of the hours of counseling require d to complete the prog ram. The drug counselor testified that despite not completing the prog ram, Anders o n m ad e “a g rea t deal of prog ress” as far as obtaining and maintaining employ

ment and transporta tion. Ander son’s thera pist testified that Ander son attended many of her sessions but was terminated from thera py afte r she missed seven sessions. The thera pist

s ai d t h at Ander son’s mood shifted up and down but that she often seeme d to have a low level of motivation to follow the Depa rtment’s require ments, that she made “minimal” prog ress in her work with the counselor, and that she had not “lea rned how to g et her life back in or der” by the time she was ter minated from ther apy . Ander son, who was twenty -two at the time of trial, admitted to twice testing positive for PCP while the Depa

rtment’s case was pending

. She said that she had used marihuana since she

was about fiftee n and that she had used PCP three or four times a months for about a y ear or a y ear and one-ha lf. She cla i med that the last time she had used drug s was in October 2011, about five

2months before trial, explaining that she finally stopped bec ause she “[r]eally hear [d] the judg e tell

me that he would terminate my rig hts.” Ander son’s Depa rtment case worke r testified that althoug h Ander son had passed a number of De partment-a dminist ere d drug tests, she missed a test or tested

on the wrong d ay eleve n times, which led to the Depa rtment deeming those drug test results to be positive. The case worke r also testified that althoug h Ander s o n h ad m aintained housing and employ ment, she did not provide proof of employ ment for a number of months, and the Depa rtment h a d b e e n u

n a b le to c o n ta c t h e r f

o r mo n th s a

t a ti me d u r in g th e p e n d e n c y o f th is c a s e . T h e c a s e w o r k e r testified that Ander son had not shown signific ant prog ress with the Depa rtment’s plan, was

unsucce ssfully discharg ed from thera py , did not fully complete her drug reha bilitation prog ram, had not reliably participa ted in visitation, and had not pa id the require d child support. Z .D.M.’s g rea taunt testified that Ander son and Z .D.M. had lived with her ess en t i al l y since Z .D.M.’s birth, and that she had been his primary car etake r for much of t h at t ime. She intended to adopt Z .D.M. if Ander son’s rig hts wer e terminated. Z .D.M.’s g uardia n ad litem rec ommended termination beca use she did not think Ande rson could be a n adequate pare nt f

or the child. She believed Ander son was too immature and unmotivated to be an appropr iate pare nt, had “minimiz ed” her drug use, and had g iven up on try ing to r eg ain custody of Z .D.M. On appea l, Ander son’s appellate attorney has filed a brief stating that afte r revie wing the rec ord, she believes that the appea l is frivolous. Counsel has prese nted a profe ssional evalua tion 1

This a nd other Texas courts have held that it is appropr iate in a pare ntal termination case 1 to file a brief asser

ting that the appea l is frivolous. See , e.g. , Matthews v. Texas Dep’ t of Protective & Regulatory Servs. , No. 03-04-00184- CV, 2005 Tex. App. L EXI S 1231, at *2 (Tex. App.—Austin Fe b. 17, 2005, no pet.) (mem. op.); In re D.E.S. , 135 S.W .3d 326, 329 (Tex. App.—Houston [14t h Dist.] 2004, no pet.); In re K.D. , 127 S.W .3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.). 3of the re cord a nd explained w hy he believes there are no arg uable g rounds for r ever sal. Ander son has not filed a pro se brief or made contac t with this Court. We have conducte d our own revie w

o f t he rec ord and we ag ree that the appea l is frivolous. We there fore aff irm the trial court’s fin al decr ee. We g rant c ounsel’s motion to withdraw as a ttorney of re cord.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and H enson Affir med Filed: Aug ust 7, 2012

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