In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-19-00248-CV 

IN THE INTEREST OF B.W., A CHILD 

 

On Appeal from the 320th District Court 

Potter County, Texas 

Trial Court No. 90,105-D-FM, Honorable Pamela Cook Sirmon, Presiding 

 

November 12, 2019 

 

MEMORANDUM OPINION 

 

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

Appellant, Mother, appeals the trial court’s order terminating her parental rights to 

her son, B.W.1 Appointed counsel for Mother has filed an Anders2 brief in support of a 

motion to withdraw. Finding no arguable grounds for appeal, we affirm the judgment of 

the trial court.

1 To protect the privacy of the parties involved, we will refer to the appellant as “Mother” and to the 

child by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b). Father’s 

parental rights were also terminated in this proceeding. Father does not appeal.

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

Factual and Procedural Background

In October of 2017, the Texas Department of Family and Protective Services filed 

its petition for protection, conservatorship, and termination of parental rights of Mother 

and Father as to their thirteen-month-old son, B.W. B.W. was removed after the 

Department received a report in July that Mother and Father were using illegal drugs. 

There were also concerns of domestic violence in the home. The Department investigator 

had a difficult time locating Mother and Father because they did not have a permanent 

residence. Mother was on probation for injury to a child and, during the Department’s 

investigation, Mother tested positive for cocaine after submitting to a drug screen 

requested by her probation officer. Mother admitted to her probation officer that she used 

cocaine the day before she reported. The Department requested that Mother and Father 

submit to a hair follicle drug test. Mother’s hair follicle test was positive for cocaine.

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The Department developed a family service plan for Mother, and the court ordered 

compliance with the plan requirements at a status hearing in November. The service plan 

set out several tasks and services for Mother to complete before reunification with B.W. 

could occur. These tasks and services included the following: maintain a drug-free 

lifestyle and abstain from the use of illegal drugs; submit to random drug screens; 

participate in and complete a substance abuse assessment with Outreach, Screening, 

Assessment and Referral (OSAR) and follow through with all recommendations; locate 

and maintain stable housing that is free from drugs and violence; locate and maintain 

stable employment; participate in and complete parenting classes; complete a 

3

 Father cut his hair and shaved his beard and armpits to avoid taking the hair follicle drug test.
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psychosocial assessment and follow recommendations; attend individual counseling;

participate in and complete rational behavior therapy (RBT); participate in an assessment 

at Texas Panhandle Centers (TPC) and follow recommendations; complete a 

psychological evaluation and follow recommendations; attend all scheduled parent-child 

visits with B.W.; and maintain regular contact with her caseworker. The family service 

plan also informed Mother that its purpose was to assist her in providing a safe 

environment for B.W. The plan warned Mother that if she was “unwilling or unable to 

provide [B.W.] with a safe environment, [her] parental . . . rights may be restricted or 

terminated or [B.W.] may not be returned to [her].”

Mother completed her parenting classes and her initial OSAR assessment, but she 

did not follow through with the treatment recommendations. Mother failed to maintain a 

drug-free lifestyle, stable housing, and employment, and she did not attend individual 

counseling or participate in RBT. Mother also failed to submit to an assessment at TPC 

or complete her psychosocial evaluation. She visited with B.W. sporadically before she 

was incarcerated in June of 2018.

The Department produced evidence that Mother received community supervision 

probation for injury to a child causing serious bodily injury.4 While on supervision, Mother 

failed a drug test in September of 2017. Mother subsequently admitted to her probation 

officer that she snorted cocaine on March 28, May 7, and May 26, 2018, and that prior to 

March, she had snorted cocaine once a week since the beginning of January 2018. As 

a result of these admissions, Mother’s probation was amended to include a requirement 

4

 Mother relinquished her parental rights to this child in 2016.
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that she complete a cognitive thinking program and a drug program at an Intermediate 

Sanction Facility (ISF). Mother was incarcerated in the Potter County Jail from June 1 

until she was transferred to ISF on August 10.

After her release from ISF on February 7, 2019, Mother resided at the Faith City 

Mission. Mother left the Faith City Mission program on April 22 with another resident, 

Wesley Keelin. Mother is engaged to Keelin and they live with his friend Toby in Amarillo. 

Mother does not know Toby’s last name or his address. Mother is unemployed but she 

is looking for work.

B.W. was placed in a foster home after his removal. B.W. is a happy, healthy 

toddler, and he enjoys playing with his toys and the other children in the foster home. 

B.W. likes to have books read to him, and his medical and physical needs are being met 

in this placement. The Department has no concerns about B.W.’s placement, and the 

foster home is willing to adopt B.W. if parental rights are terminated. According to the 

caseworker, appointing the Department as permanent managing conservator pending an 

adoption by his foster home placement is in the best interest of B.W.

The trial court terminated Mother’s parental rights to B.W. on the grounds of 

endangering conditions, endangerment, previous conviction or community supervision for 

serious injury to a child, and failure to comply with a court order that established actions 

necessary to retain custody of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), 
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(E), (L), (O) (West Supp. 2019).5 The trial court also found that termination was in the 

best interest of B.W. See § 161.001(b)(2).

Analysis

Pursuant to Anders, Mother’s court-appointed appellate counsel has filed a brief 

certifying that she has diligently searched the record and has concluded that the record 

reflects no arguably reversible error that would support an appeal. In re Schulman, 252 

S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding); Porter v. Tex. Dep’t of 

Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no 

pet.) (“[W]hen appointed counsel represents an indigent client in a parental termination 

appeal and concludes that there are no non-frivolous issues for appeal, counsel may file 

an Anders-type brief”); In re L.J., No. 07-14-00319-CV, 2015 Tex. App. LEXIS 427, at *2-

3 (Tex. App.—Amarillo Jan. 15, 2015, no pet.) (mem. op.) (same).

Counsel certifies that she has diligently researched the law applicable to the facts 

and issues and discusses why, in her professional opinion, the appeal is frivolous. In re 

D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). Counsel has complied with 

the requirements of Anders by providing a copy of the brief, motion to withdraw, and 

appellate record to Mother, and notifying her of her right to file a pro se response if she

desired to do so. Id.; Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In 

re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS 11607, at *2-3 (Tex. App.—Amarillo 

5

 Further references to provisions of the Texas Family Code will be by reference to “section __” or 

“§ __.”
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Nov. 9, 2015) (order) (per curiam). On September 16, 2019, Mother filed a response to 

her counsel’s Anders brief.

Due process requires that termination of parental rights be supported by clear and 

convincing evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.) 

(citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This standard falls between the civil 

preponderance of the evidence standard and the reasonable doubt standard of criminal 

proceedings. Id. at 73. Clear and convincing evidence is that “measure or degree of 

proof that 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.” § 101.007 (West 2019). Reviewing the 

legal sufficiency of the evidence supporting parental termination requires us to review “all 

the evidence in the light most favorable to the finding to determine whether a reasonable 

trier of fact could have formed a firm belief or conviction that its finding was true.” In re 

J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, we are to determine whether, 

on the entire record, a factfinder could reasonably form a firm conviction or belief about 

the truth of the matter on which the movant bore the burden of proof. In re C.H., 89 

S.W.3d 17, 28-29 (Tex. 2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo 

2006, no pet.).

By her Anders brief, counsel concludes that reversible error is not present because 

sufficient evidence supports termination under subsection (O). 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.) (only one predicate finding under section 161.001(b)(1) is necessary to support 

termination when there is also a finding that termination is in a child’s best interest). 

However, in light of the recent Texas Supreme Court opinion in In re N.G., we also review 
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the trial court’s findings under section 161.001(b)(1)(D) and (E), because of the potential 

future consequences to appellant’s parental rights concerning a different child. In re N.G., 

577 S.W.3d 230, 235-37 (Tex. 2019) (per curiam);

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In re M.M., No. 07-19-00105-CV, 

2019 Tex. App. LEXIS 7505, at *6-7 (Tex. App.—Amarillo Aug. 21, 2019, pet. denied) 

(mem. op.).

Section 161.001(b)(1)(D) permits termination when clear and convincing evidence 

shows that the parent knowingly placed or knowingly allowed the child to remain in 

conditions or surroundings which endanger the physical or emotional well-being of the 

child. See § 161.001(b)(1)(D). Subsection (D) requires a showing that the environment 

in which the child was placed posed a danger to the child’s physical or emotional health, 

and it permits termination based on a single act or omission by the parent. In re J.A.S., 

No. 07-12-00150-CV, 2012 Tex. App. LEXIS 8087 at *14 (Tex. App.—Amarillo Sept. 25, 

2012, no pet.) (mem. op.). Subsection (D) concerns the child’s living environment, rather 

than the parent’s conduct, though parental conduct may produce an endangering 

environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied). It is not necessary that the child’s living environment directly threaten 

the child or that the child be injured, but the parent must at least be aware of the potential 

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 Subsection (b)(1)(M) permits parental rights to be terminated if the parent has “had his or her 

parent-child relationship terminated with respect to another child based on a finding that the parent’s 

conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another 

state.” In re N.G., 577 S.W.3d at 234 (quoting section 161.001(b)(1)(M) of the Family Code). Because 

findings based on subsections (b)(1)(D) or (E) may become “a basis to terminate parent’s rights to other 

children,” the Supreme Court reasoned that when a parent presents an appellate issue related to 

subsections (b)(1)(D) or (E) and the appellate court does not address the issue on appeal, the appellate 

court “eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to 

other children.” Id. at 235. According to the Supreme Court, “the parent’s fundamental liberty interest at 

stake outweighs the state’s interest in deciding only what is necessary for final disposition of the appeal.” 

Id. at 237. “Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent 

has presented the issue to the court thus violates the parent’s due process and due course of law rights.” 

Id.
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for danger to the child in such an environment and must have disregarded that risk. In re 

S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug 

use and criminal activity support a conclusion that the child’s surroundings endanger his 

or her physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). The relevant time frame under this subsection is prior to the 

child’s removal. In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. 

denied).

Section 161.001(b)(1)(E) permits termination when clear and convincing evidence 

shows that the parent has engaged in conduct or knowingly placed the child with persons 

who engaged in conduct which endangers the child’s physical or emotional well-being. 

See § 161.001(b)(1)(E). Under subsection (E), the relevant inquiry is whether evidence 

exists that the endangerment of the child’s physical or emotional well-being was the direct 

result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G., 

121 S.W.3d at 125. Termination under subsection (E) must be based on more than a 

single act or omission. A voluntary, deliberate, and conscious course of conduct by a 

parent is required. Id. Thus, while both subsections (D) and (E) focus on endangerment, 

they differ regarding the source and proof of endangerment. In re S.M.L., 171 S.W.3d at 

477. To support a finding of endangerment, the parent’s conduct does not necessarily 

have to be directed at the child, nor is the child required to actually suffer injury. Tex.

Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

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

determine whether there is a non-frivolous issue that might support the appeal. See 

Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford
9

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Based on this record, we conclude 

that a reasonable factfinder could have formed a firm belief or conviction that grounds for 

termination existed and that termination of Mother’s parental rights was in B.W.’s best 

interest. See § 161.001(b)(1), (2) (West Supp. 2019); In re M.M., No. 07-19-00105-CV, 

2019 Tex. App. LEXIS 7505, at *9. Specifically, we conclude the trial court’s findings with 

respect to subsections (D) and (E) and its finding with respect to the best interest of B.W. 

were supported by the evidence.

After reviewing the record, the Anders brief, and Mother’s response, we agree with 

counsel that there are no plausible grounds for reversal. 

Accordingly, the trial court’s order terminating Mother’s parental rights to B.W. is 

affirmed.7

Judy C. Parker

 Justice

7 We call counsel’s attention to the continuing duty of representation through the exhaustion of 

proceedings, which may include the filing of a petition for review. Counsel has filed a motion to withdraw, 

on which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).