TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00726-CV

Naomi Nicole Tanguma, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT

NO. C-09-0219-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

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

Appellant Naomi Nicole Tanguma hasfiled a notice of appeal from the district court’s

order terminating her parental rights. Tanguma’s court-appointed counsel has filed a motion to

withdraw and an Anders brief, concluding that the appeal is frivolous and without merit. See Anders

v. California, 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) (applying Anders procedure

in appeal from termination of parental rights). We reach the same conclusion and will affirm the

order of termination.

The Texas Department of Family and Protective Services (the Department) filed a

petition to terminate Tanguma’s parental rights to her three children: K.M.T.A., a seven-year-old

girl, S.T.C., a five-year-old girl, and S.C.T., a three-year-old boy. At trial, the Department proceeded

on several theories, arguing that Tanguma had (1) “knowingly placed or knowingly allowed the

children to remain in conditions or surroundings which endanger the physical or emotional well-
being of the children,” see Tex. Fam. Code Ann. § 161.001(1)(D) (West Supp. 2011); (2) “engaged

in conduct or knowingly placed the children with persons who engaged in conduct which endangers

the physical or emotional well-being of the children,” see id. § 161.001(1)(E) (West Supp. 2011);

(3) “constructively abandoned the children who have been in the permanent or temporarymanaging

conservatorship of [the Department] for not less than six months, and, (i) [the Department] has made

reasonable efforts to return the children to [Tanguma]; (ii) [Tanguma] has not regularly visited or

maintained significant contact with the children; and (iii) [Tanguma] has demonstrated an inability

to provide the children with a safe environment,” see id. § 161.001(1)(N) (West Supp. 2011);

(4) “failed to comply with the provisions of a court order that specifically established the actions

necessary for [Tanguma] to obtain the return of the children who have been in the permanent or

temporary managing conservatorship of [the Department] for not less than nine months as a result

of the children’s removal from [Tanguma] under chapter 262 for the abuse or neglect of the

children,” see id. § 161.001(1)(O) (West Supp. 2011); and “used a controlled substance, as defined

by chapter 481, Health and Safety Code, in a manner that endangered the health and safety of

the child and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after

completion of a court-ordered substance abuse treatment program, continued to abuse a controlled

substance,” see id. § 161.001(1)(P) (West Supp. 2011).

At the termination trial, Department investigator Noemi Avalos claimed that the

Department received its first report against Tanguma in June 2008 alleging physical neglect of

the children and drug use. Avalos indicated that Tanguma was pregnant with S.C.T. at the time

and not receiving prenatal care. According to Avalos, the children were placed with a relative while

Tanguma completed an inpatient substance abuse treatment program. Avalos claimed that a year

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later, the Department received a second report alleging neglectful supervision of the children and

drug use byTanguma. When Avalos visited Tanguma’s house with anotherDepartment investigator,

she asserted that they smelled marijuana and discovered several adults at the house. Avalos claimed

that two of the adults had prior convictions for drug offenses and one adult had two convictions

for assault with family violence. Avalos indicated that the Department placed the children with a

relative and, after Tanguma submitted to a drug test, scheduled her to participate in Family Based

Safety Services (“FBSS”). During FBSS, Avalos claimed, the Department received a third report

concerning Tanguma’s alleged drug use. Department caseworker Robert Holden claimed that

Tanguma admitted her use of marijuana and methamphetamine to the Department in June 2008, and

again admitted she was using methamphetamine in October 2009. He also indicated that she also

failed a drug test during FBSS.

The district court also heard evidence that the children had been in the temporary

managing conservatorship of the Department for eighteen months when the termination trial began

and almost two years as of the last day of the termination trial. Department caseworker Joe Bentley 1

testified that he drafted a service plan for Tanguma, which was adopted and ordered by the

district court. Tanguma admitted that she signed her service plan, understood its requirements, and

understood that the district court had ordered her to comply with it. Bentley indicated that Tanguma

initially visited the children consistently, but later missed half of her scheduled visits. Holden

indicated that Tanguma had failed to “even marginally compl[y] with her service plan.” According

The termination proceedings were scheduled for April 25, 2011, but several parties’ 1

attorneys were unable to attend due to illness. After receiving the testimony of out-of-town and

subpoenaed witnesses, the district court recessed the remaining proceedings until October 18, 2011.

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to Holden, Tanguma last saw her children in May 2010 when the district court ordered Tanguma’s

visitation rights revoked after she failed a drug test. She could regain visitation rights per the court’s

order, Holden asserted, if she submitted two negative drug tests. Tanguma had been unable to do

so, Holden claimed, and, by the end of trial, she had not seen her children in seventeen months.

Holden affirmed that Tanguma demonstrated an inability to provide her children with a safe

environment. Tanguma agreed that she did not currently have an appropriate home for the children.

Tanguma further testified that she was unemployed and not currently looking for work. She

admitted that she failed to comply with her service plans in a variety of ways: failing to provide

notice to her caseworker when she missed appointments, failing to provide a financially stable home,

failing to maintain a drug-free home environment, failing to attend individual counseling, and failing

to complete parenting classes.

Tanguma affirmed that she had previouslycompleted a thirty-dayinpatient substanceabuse program in June 2008. She admitted that after the Department filed its petition for

termination, she was ordered to return to the treatment facility, but left the program after three days

and made no effort to return. She claimed that she did not need help from that facility because it

was not “all that good, because apparently I relapsed and here I am again,” but admitted she needed

help from somewhere else. Tanguma indicated that she failed to complete treatment and remain

drug free because her court-ordered treatment program lacked a detoxification program. On crossexamination, Tanguma was unable to explain what a detoxification program was or how it might

be more effective for her. Holden testified that the Department attempted to place Tanguma in a

different treatment facility, but was unable to do so after Tanguma denied using drugs within the past

sixty days. At the same time, she admitted to the Department and to CASA that she was still using

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drugs. Holden claimed that Tanguma then missed an appointment to reinitiate the process to receive

substance abuse treatment and never attempted to reschedule. Holden also indicated that Tanguma

was unable to produce a negative drug test a week before the last day of the termination trial.

Holden testified that he believed it was in the children’s best interest to terminate

Tanguma’s parental rights. He claimed that the children would suffer emotionally and physically

if returned to Tanguma. According to Holden, the children were thriving in their foster home,

and had not exhibited any separation problems as a result of not seeing Tanguma. He indicated

the children had some behavioral problems, such as speech delays, food hoarding, and sexually

inappropriate behavior, but they were addressing these issues with therapy and showing

improvement. According to Holden, the children had extensive dental problems when they arrived

in the Department’s care—S.T.C. and K.M.T.A. had to have thirteen and nine teeth surgically

removed, respectively. He also asserted that S.C.T. had asthma and required breathing treatments

when he entered the Department’s care because of exposure to smoke, dogs, and dust, but no longer

had breathing problems.

Tanguma acknowledged that she lived in a one-bedroom apartment with her

boyfriend. She admitted that her boyfriend had served time in jail in connection with drug crimes.

She also admitted that her utilities had been shut off at her house twice in the past year. During

trial, several of Tanguma’s Facebook entries were admitted into evidence. Tanguma admitted to

authoring these entries, dated between September and October 2011, which referenced Tanguma

getting drunk and fighting with her boyfriend. She testified to an incident two years prior to the

termination trial when she and the children became extremely emotional over being separated at the

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end of a visit. She also asserted that she loved her children and claimed that she provided gifts and

cards to them, though Holden disputed the frequency of these gifts.

At the conclusion of evidence, the trial court found by clear and convincing

evidence that the Department had established all five statutory grounds alleged and that

termination would be in the children’s best interest. The district court signed a final order

terminating Tanguma’s parental rights and naming the Department as the children’s sole managing

conservator. This appeal followed.

Counsel’s brief meets the requirements of Anders by presenting a professional

evaluation of the record and demonstrating that there are no arguable grounds for appeal. See

Anders, 386 U.S. at 744; Taylor, 160 S.W.3d at 646-47. Tanguma was provided with a copy of

counsel’s brief and was advised of her right to examine the appellate record and to file a pro se brief.

No pro se brief has been filed.

We have reviewed the record and counsel’s brief and agree that the appeal is

frivolous and without merit. We find nothing in the record that might arguably support the appeal.

See Anders, 386 U.S. at 741-44; Taylor, 160 S.W.3d at 646-47. We affirm the district court’s order

of termination and grant counsel’s motion to withdraw.

__________________________________________

Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Henson

Affirmed

Filed: July 25, 2012

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