### 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. 03-11-00726- CV

Naom i Nicole Tanguma, Appellant

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

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-0 9-0 219- CP S, H ONO RAB LE JAY K . WEATH ERB Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Naomi Nicole Tang uma h a s f il e d a n o ti c e o f a

p p e al from the district court’s order terminating her pare ntal rig hts. Tang uma’s court-a ppointed counsel has filed a m o t ion to withdraw and an Anders 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. , 160 S.W .3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied) (apply ing Anders proce dure in appea l from termination of pare ntal rig hts). 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 p et i t i on to terminate Tang uma’s pare ntal rig hts to her three children: K.M.T.A., a seven- y ear -ol d g irl, S.T.C., a five-y ear -old g irl, and S.C.T., a three -y ear -old boy

. At trial, the Depa rtment proce eded

on sever al theories, arguing that Tang u m a h ad (1 ) “knowing ly place d or knowing ly allowed the children to rema in in conditions or surrounding s which endang er the p h y s i cal or emotional well-being of the children,” see Tex. Fam. Code Ann. § 161.001(1)( D) (West Supp. 2011); (2) “eng ag ed

in conduct or knowing ly place d the children with persons who eng ag ed in conduct which endang ers the phy sical or emotional well-be ing of the children,” see id . § 161.001(1)( E) (West S upp. 2011); (3) “construc tively abandone d the children who have been in the perma nent or temporar

y manag ing

conser vatorship of [t he Depa

rtment] for not less than six months, and, (i) [t he Depa rtment] has made

rea sonable efforts to return the children to [Tangum a]; (ii) [ Tang uma] has not reg ularly visited or maintained signific ant contac t with the children; and (iii) [Tanguma ] has demonstrated an inability
to provide the children with a safe environment,” see id

. § 1 6 1

. 001(1)( N) (West Supp. 2011); (4) “fa iled to comply with the pro v isions of a court order that specific ally established the actions

n ece ssary for [Tanguma ] to obtain the return of the children who have been in the perma nent o r temporar y manag ing conser

vatorship of [the Depar

tment] for not less than nine months a s a result of the children’ s remova l from [Tanguma ] under chapte r 262 for the abuse or neg lec t o f the children,” see id

. § 161.001(1)( O) (West Supp. 2011); and “used a controlled substance, as define d by cha p t er 481, Hea lth and Safety Code, in a manner that endang ere d the health and safe ty of the child and: (i) failed to complete a court-or dere d substance abuse trea tment prog ram; or (ii) afte r completion of a court-or dere d substance abuse trea tment prog ram, continued to abuse a controlled substance,” see id . § 161.001(1)( P) (West Supp. 2011).

At the t er m ination trial, Depa rtment investiga

tor Noemi Avalos claimed that the Depa rtment rec eived its first repor t ag ainst Tang uma i n J une 2008 alleg ing phy sical neg lect of the children and drug use. Avalos indicated that Tang uma was pregnant with S.C.T. at the time and not rec eiving prenatal car e. Acc ording to Avalos, the children wer e place d with a rela tive while Tang uma completed an inpatient substance abuse treatment progra m. Avalos cla i m ed t h at a y ear 2later, the Depa rtment rec eived a second repor t alleg ing neg lectful supervi s ion of the children and drug use by Tang uma. When Avalos visited Tang uma’s house with ano th e r D e p a r tm e n t in v e s ti g ator, she asser ted that they smelled marijuana and discovere d sever al adults at the house. Avalos claimed that two of the adults had prior convictio n s for drug offe nses and one adult had two convictions for assault with family violence. Avalos i ndicated that the Department pl ace d the children with a relative and, after Tang uma s ubmitted to a drug test, schedule d her to pa rticipate in F amily Ba sed Safety Service s (“F BSS”). During FB SS, Avalos claimed, the Depa rtment rec eived a

third repor

t

conce rning Tang um a’ s al l eged drug use. Depa rtment case worke r Robert Holden claimed that Tang uma admitted her use of marijuana and methamphetamine to the Depa rtment in J une 2008, and ag ain admit ted s he was using methamphetamine in Oc tober 2009. He also indicated tha t she also failed a drug test duringFB SS. The district court also h ea rd ev i dence that the children had been in the temporar y manag ing conser

vatorship of the Depa

rtment for eig hteen months when the termination trial beg an and almost two y ear s as of the last day of the termination trial. Depa rtment case worke r J oe Be ntley 1 testified that he draf

ted a service plan for Tang uma, which was adopte d an d o rdered by the district court. Tang uma admitted that she signe d her service plan, understood its require ments, and understood that the district court had order ed her to comply with it. Be ntley indicated that Tang uma initially vi s i t ed the children consistently , but later missed half of her schedule d visits. Holden indicated that Tang uma had failed to “eve n marg inally compl[y ] with her service plan.” Acc ording

The termination proceeding s wer e schedule d for April 25, 2011, but sever al parties’ 1 att orney s wer e unable to attend due to illness. After rec eiving the testimony of out-of-town an d subpoenae d witnesses, the district court rec essed the rema ining proce eding s until October 18, 2011. 3to Holden, Tang uma last saw her children in May 2010 when the district court order ed Tang uma’s visitation rig hts revoke d afte r she failed a drug test. She could reg ain visitation rig hts per the court’s order , Holden asserted, if she subm itted two neg ative drug te sts. Tang uma had been unable to do

so, Holden claimed, and, by the end of tr i al , s h e h ad not seen her children in sevente en months. Holden aff

irmed that Tang uma demonstrated an inabi l i t y t o provide her children with a safe environment. Tang uma ag ree d that she did not curr ently have an appropr iate home for the children. Tang uma further testified that she was unemploy ed and not curr ently loo k i n g fo r wo rk. She admitted that she failed to comply with her service plans i n a varie ty of way s: failing to provide notice to her case worke r when she missed appointments, failing to provide a financ ially stable home, failing to maintain a drug -fr ee home environment, failing to attend individual counseling , and failing to complete par enting classes.

Tang uma a f

f ir me d th a t s h e h a d p r e v io u s ly c o mp le ted a thirty -day inpatient substanceabuse prog ram in J une 2008. She admitted that af t er the Depa

rtment filed its petition for termination, she was order ed to return to the trea tment fac ility , but left the prog ram afte r three day s

an d made no eff

ort to return. She claimed that she did not need help from that fac ility beca use i t

was not “all that g ood, beca use appar ently I rela

psed and here I am ag ain,” but admitted she neede d help from somewher e else. Tang uma indicated that she failed to complete trea tment and rema in drug fre e beca

use her court-or dere d trea tment prog ram lacke d a detoxi fica tion prog ram. On crossexamination, Tang uma was unable to explain what a detoxi fica tion prog ram was or h o w it might be more eff

ective for her. Holden testified that the Depa rtment attempted t o p l ac e T anguma in a differ ent treatment fac ility , but was unable to do so afte r Tang uma denied using drug s within the past six ty day s. At the same time, she admitted to the Depa rtment and to CASA that she was still using 4drug s. Holden claimed that Tang uma then missed an appointment to reinitiate the proce ss to rec eive

substance abuse trea

tment and never attempted to resc hedule. Holden also indicated that Tang uma

was una ble to produce a neg ative drugtest a we ek bef ore the last day

of the ter mination trial. Holden testified that he beli ev ed it was in the children’ s best interest to terminate Tang uma’s parental rights. He claimed t hat t he children would suffe r emoti onally and p h y sically i f returne d to Tang uma. Acc ording to Holden, the children wer e thriving in their foster h o m e, and had not exhibi ted any separ ation probl em s as a result of not seeing Tang uma. He indicated the children had some behavio ra l p ro b l ems, such as speec h delay s, food hoarding , and sexually inappropriate behavior , but they wer e addre ssing these issues wit h t h er apy and showing improvement. Acc ording to Holden, the children had extensive dental problems when they arr ived in the Depa

rtment’s car e—S.T.C. and K.M.T.A. had to have thirteen and nine t ee t h s u rgi cally

remove d, respe ctively

. He a lso asserted that S.C .T. had a sthma and require d breathing trea tments when he enter ed the Depa rtment’s car e beca

use of exposure to smoke, dog s, and dust, but no longe r had bre athing problems.

Tang uma acknow ledg ed that she lived in a one-be droom apar tment wi t h h er boy friend. She admitted that her boy friend had serve d time in jail in connec tion with drug crimes. She also admitted that her utilit ies had been shut off at her house twice i n t h e p ast y ear . During trial , sever al of Tang uma’s Fa cebook entries wer e admitted into evidenc e. Tang uma admitted to authoring these entries, dated betwee n September and Oc t o b er 2011, which ref ere nced Tang uma g etting drunk and fig hting with her boy friend. She testified to an incident two y ear s p ri o r t o the termination trial when she and the children beca me extremely emotional over being separ ated at the

5end of a visit. She also asser ted that she loved her children and claimed that she provided g ifts and

car ds to them, though Holde n disputed the fre quency of these g ifts. At the conclusion o f ev i d ence , the trial court found by clea r and convincing evidenc e that the Depa rtment had establis h ed all five statutory g rounds alleg ed and that termination would be in the children’ s b es t interest. The district court signe d a final order terminating Tang uma’s pare ntal rig hts and naming the Depa rtment as the children’ s sole manag ing

conser vator. This appe al followed. Counsel’s brief m ee t s the require ments of Anders by prese nting a profe ssional evaluation of the rec ord and demonstrating t h at t h er e are no arguable g rounds for appea l. See Anders , 386 U.S. at 7 4 4 ; T a yl o r , 1 6 0 S.W .3d at 646-47. Tang uma was provided with a copy of counsel’s brief and was advised of her rig ht to examine the appellate rec ord and to file a pro se brief. No pro se br ief ha s been f iled. We have revie wed the re co rd 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 arguably 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 J ustices Pury ear , Pemberton and H enson Affir med Filed: Jul y

25, 2012 6