In re D.K.

696 S.W.3d 787

In the INTEREST OF D.K., a Child

No. 11-24-00084-CV

Court of Appeals of Texas, Eastland.

Opinion filed August 8, 2024

On Appeal from the 326th District Court, Taylor County, Texas, Trial Court Cause No. 11022-CX, Paul R. Rotenberry, Judge Jenny Henley, Law Office of Jenny Henley, 702A Hickory Street, Abilene, TX 79602, Ayan Muhumed, 2201 Rockbrook Dr. Apt 1913, Lewisville, TX 75067, James D. Saint, 601 Quail Valley Dr. #359, Georgetown, TX 78626, for appellant.

James Hicks, District Attorney, Britt Lindsey, Assistant, Austin Green, Assistant, Taylor County DA’s Office, 300 Oak Street, Suite 300, Abilene, TX 79602, for appellee.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

W. STACY TROTTER, JUSTICE

This is an appeal from a final order in which the trial court terminated the parental rights of the mother and the father to their child, D.K.¹ See Tex. Fam. Code Ann. § 161.001 (West Supp. 2023). Both parents appealed. We affirm the order of termination.

I. Factual and Procedural Background

The mother tested positive for THC and methamphetamine on March 8, 2023, when she gave birth to D.K. D.K. also tested positive for methamphetamine and spent the first two months of her life in the neonatal intensive care unit (NICU). The father left the hospital shortly after D.K. was born and did not return until nearly three weeks later. Investigator Karlye Kramer with the Department of Family and Protective Services (the Department) attempted to gather Appellants’ identifying information, but neither was forthcoming or cooperative. Because Appellants refused to provide their names, dates of birth, and address, the Department sought temporary managing conservatorship of D.K. to ensure that she would have a safe home and environment upon her release from the hospital. On March 30, 2023, the Department filed an original petition for protection and conservatorship of D.K. and for the termination of Appellants’ parental rights.

The final hearing occurred on March 12, 2024, a few days after D.K.’s first birthday. When the trial court asked for announcements, the father’s attorney advised: "Your Honor, I have to announce not ready. [The father] informed me late yesterday afternoon that he did not have the funds or the means to make it here today. So, I’m announcing not ready." The trial court replied, "Okay," and directed the Department to present its first witness.

The evidence presented as to the father shows that his contact with the Department was "sporadic" and inconsistent. Benjamin Kimble, the permanency case supervisor, testified that the Department has "not heard from [the father] hardly at all." The father’s whereabouts were unknown "throughout the majority of the case," the phone numbers he provided were typically inactive, and no residence has ever been confirmed for him. According to Kimble, the father said that "he was on the move so much that he’d just sleep in his car."

Although the father was incarcerated in Utah, Arkansas, and Abilene, Texas at various times throughout the pendency of this case, he had been released and placed on community supervision prior to the final hearing. Kimble testified that the father did not complete any of his service plan requirements, attend any of the scheduled visits with D.K., or respond to any phone contact by the Department with regard to the visits. Kimble further testified that, while the father was incarcerated, "[h]e did not try to reach out to [the Department]" and "[t]he only contact that he had while he was incarcerated was [the Department] reaching out to him." Kimble confirmed that the father "never meaningfully engaged in services throughout the life of [the] case."

D.K. is currently residing in an adoptive foster home where her caregivers are addressing her medical concerns and meeting her needs. She continues to progress with specialized treatment and "various therapies," and is awaiting a formal evaluation to determine if she suffers from cerebral palsy.

The night before the final hearing, the father attempted to contact a case manager, which was the first call that she received from the father since January 2023. Although there is no request in the record for the father to appear at the final hearing electronically or by other means, the trial court explained in its closing remarks:

I also note for the record that the Court denied the father’s request to appear electronically. And while I understand terminating a parent’s right is not something that is taken lightly … this has been a substance abuse case and it is very difficult for the Court to determine credibility of the parties when they’re not physically present.

The Court loses the ability to use all of its senses such as a sense of smell. For the record, the witness is -- the witness stand is attached directly to my left and is not uncommon for me to be able to smell things from witnesses on the bench.

In addition, if a person appears through Zoom, I can’t see anything below their neck or whatever it is that they show the Court. So, I’m not able to observe the -- you know, things such as sores on the body, the weight of the person, the color of their eyes, the whites of their eyes, if they’re fidgeting. There’s so much the Court loses in being able to observe through Zoom.

Further, the … technology in my courtroom is very simplistic. The Court has basically one camera angle, and I have to manually move the camera if I want the camera to change, and I have no way to show evidence to the witness who’s appearing by Zoom.

In addition, there have been questions throughout this case about identity and who the people are.

At the conclusion of the hearing, the trial court terminated the mother’s parental lights under Section 161.001(b)(1)(D), (E), (N), and (O), and terminated the father’s parental rights under subsections (N) and (O). The trial court further found that termination of Appellants’ parental rights is in the best interest of the child. This appeal followed.

II. Mother’s Appeal

The mother’s court-appointed counsel has filed a motion to withdraw and a supporting brief in which he professionally and conscientiously examines the record and applicable law and concludes that the appeal presents no arguable issues and is therefore frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. See In re Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim. App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

Counsel has provided the mother with a copy of the brief, the motion to withdraw, a motion for access to the appellate record, and a letter explaining her right to review the record and file a pro se response to counsel’s Anders brief. See Kelly v. State, 436 S.W.3d 313, 318–20 (Tex. Crim. App. 2014). The mother has not filed a response.

We conclude that the mother’s appellate counsel has satisfied his duties under Anders, Kelly, and Schulman. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record in this case, and we agree that the mother’s appeal is frivolous and without merit.

[1] In light of the Texas Supreme Court’s holding in In re P.M., however, an Anders motion to withdraw "may be premature" if filed in the court of appeals under the circumstances presented in this case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) ("[A]n Anders motion to withdraw brought in the court of appeals, in the absence of additional grounds for withdrawal, may be premature."). The court in P.M. held that, in parental termination cases, court-appointed counsel’s duty to his or her client generally extends "through the exhaustion of [all] appeals." Id. at 27–28. In this regard, "appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief." Id.

Accordingly, we deny counsel’s motion to withdraw, and we affirm the trial court’s order of termination as to the mother.

III. Father’s Appeal

In a single issue on appeal, the father contends that the trial court’s denial of his "request" to appear at the final hearing by electronic means rather than in person resulted in the deprivation of his right to procedural due process. As we have said, there is no request in the record for the father to appear at the final hearing by electronic means.

A. Failure to Preserve Due Process Complaint

[2] To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the relief sought and obtain a ruling. See Tex. R. App. P. 33.1. Even constitutional complaints must be raised before the trial court to preserve them for appellate review. In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003); see also In re E.R.G., No. 11-20-00248-CV, 2021 WL 1807332, at *1 (Tex. App.—Eastland May 6, 2021, no pet.) (mem. op.) ("To the extent that Appellant’s issue relates to due process, we hold that it was not preserved for review.").

[3, 4] In termination cases, "adhering to our preservation rules isn’t a mere technical nicety; the interests at stake are too important to relax rules that serve a critical purpose." L.M.I., 119 S.W.3d at 708. "[A]llowing appellate review of unpreserved error would undermine the Legislature’s intent that cases terminating parental rights be expeditiously resolved" to "ensure that children’s lives are not kept in limbo while judicial processes crawl forward." Id. at 711; In re B.L.D., 113 S.W.3d 340, 353 (Tex. 2003).

[5] The father was represented by counsel at the final hearing, who "sought no finding and raised no legal argument before the trial court about a constitutional [complaint]." See L.M.I., 119 S.W.3d at 710–11. Although the father’s trial counsel requested a...