In re J.S.S.

594 S.W.3d 493

In the INTEREST OF J.S.S., a Child

No. 10-19-00102-CV

Court of Appeals of Texas, Waco.

Opinion delivered and filed September 18, 2019

Brandon S. Belt, Gatesville, for Appellee.

Patrick O. Brady, for Appellant.

Jamie Smith, pro se.

Dori Mistic, for Real party in interest.

Before Chief Justice Gray,^* Justice Davis, and Justice Neill^**

MEMORANDUM OPINION

REX D. DAVIS, Justice By Order signed March 8, 2019, the parental rights of J.S.S.'s mother ("Mother") were terminated.¹ The trial court found by clear and convincing evidence that Mother violated Family Code subsections 161.001(b)(1)(N) and (O) and that termination was in J.S.S.'s best interest. Mother's attorney filed an Anders brief asserting that he has identified no reversible errors in this case. Mother filed a pro se response. The Department of Family and Protective Services and the ad litem informed the Court that they are not filing responses to Mother's pro se response to her attorney's Anders brief. After a review of the record in this case, we will affirm.

Background

The affidavit in support of the original petition provides the following background:

Mother and J.S.S. first came to the attention of the Department in June 2013, shortly after J.S.S. was born, when a report was made that alleged neglectful supervision. The Department's investigation noted that Mother was hysterical, her speech was incoherent, and she would not answer direct questions posed by medical staff. Mother was also described as paranoid because she thought the hospital staff was trying to harm J.S.S. The hospital physicians diagnosed Mother as psychotic and believed she should not be the primary caregiver to J.S.S. Eventually, the allegation was ruled out by the Department because there was no evidence to support a risk of harm to J.S.S. Mother did not test positive for drugs, and a nurse at the hospital stated that Mother's behavior could be attributable to postpartum depression and hormonal changes. The case was dismissed at the adversary hearing, and J.S.S. was returned to Mother.

Less than a year later in April 2014, another report was made against Mother that alleged neglectful supervision of J.S.S. The investigator for the Department smelled marijuana in Mother's home, and J.S.S. was observed to be lethargic and have bloodshot eyes. Mother and a friend were also observed to be laughing about the fact that they were smoking. The allegation was ruled out by the Department because Mother stated that she smoked for the first time with the friend in the hopes that it would help physical pain, and there was insufficient information to prove drug use on a consistent basis.

On May 5, 2015, the Department received another report alleging neglectful supervision and physical abuse of J.S.S. by Mother. The intake reported that Mother was whipping J.S.S. with her hand every day, leaving J.S.S. unsupervised and alone in the home for five to six hours every day, and using unknown pills and smoking marijuana while caring for J.S.S. The Department could not substantiate the allegations.

The events that led to the present termination proceeding began when the Department received a report alleging neglectful supervision and sexual abuse of J.S.S. on September 23, 2017. The intake report noted that Mother was chronically homeless and was using illegal drugs and that J.S.S. was exhibiting sexualized behavior. Mother told the Department investigator that she had been using illegal drugs but refused to submit to a drug test. The investigator and three police officers all observed Mother to be under the influence of some illegal substance, noting that she displayed erratic behavior, constricted pupils, and incoherent speech. Mother was also observed to constantly scratch her arms and head, resulting in an approximately five-inch in diameter bald spot on the right side of her scalp, and she had multiple red marks and scabs covering her arms. Mother told the investigator and the police that J.S.S. had reported being sexually abused in the place they had been living, but she was unable to provide details of the assault. Mother then reported that there were children living in tunnels underneath the house where the assault occurred. Police conducted a welfare check on the residence and were unable to verify Mother's allegations. Mother also reported that she had been homeless for the previous four months and that she and J.S.S. had been staying at the homes of different friends. Prior to being homeless, Mother reported that she and J.S.S. lived in an apartment complex where J.S.S. was able to play outside unsupervised.

Mother also has a criminal history. She was convicted of a second-degree felony in 2016 and placed on probation for five years.

After an adversary hearing, the trial court granted temporary managing conservatorship of J.S.S. to the Department. The temporary orders directed Mother, in part, to submit to and cooperate in preparation of a psychological or psychiatric evaluation, to attend counseling and parenting classes, and to submit to drug and alcohol testing. The temporary orders further granted Mother one hour of supervised visitation with J.S.S. per week.

After the first adversary hearing, a family group conference was held wherein a Family Plan of Service was created. Mother and her attorney were present. The temporary orders entered by the court made the service plan an order of the court. The Family Service Plan required Mother to: obtain employment, pay child support, attend therapy, find stable housing, and submit to weekly drug tests. The Plan warned that failure to submit to a drug test would be considered a positive test for visitation purposes.

Anders Brief

As noted, Mother's appellate counsel has filed an Anders brief. Counsel asserts that he has diligently reviewed the record and that, in his opinion, the appeal is frivolous. See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ; In re E.L.Y. , 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order, no pet.) (applying Anders to termination appeal).

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio , 488 U.S. 75, 80, 109 S.Ct. 346, 350, 102 L.Ed.2d 300 (1988). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact."

McCoy v. Court of Appeals , 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

Counsel's brief meets the requirements of Anders ; it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman , 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities."); Stafford v. State , 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel has carefully discussed why, under controlling authority, there is no reversible error in the trial court's order of termination. Counsel has informed us that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel's motion to withdraw on Mother; and (3) informed Mother of her right to obtain a copy of the record and of her right to file a pro se response. See Anders , 386 U.S. at 744, 87 S.Ct. at 1400 ; Stafford , 813 S.W.2d at 510 n.3 ; High v. State , 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978) ; see also Schulman , 252 S.W.3d at 409 n.23.

Mother's Response to Anders Brief

Mother raises several issues, many of which were extracted from counsel's Anders brief. In her various pro se filings with this Court, Mother appears to argue that her appellate attorney could have raised the following, among others: (1) the family service plan was not entered into evidence at trial; (2) the family service plan did not contain her signature; (3) the judge did not take judicial notice of the status hearing order; (4) the copy of the record she was provided by her attorney is missing pages; (5) the dates on various documents do not correspond; (6) it is unfair to use J.S.S.'s time in the Department's custody as a ground because the Department is in charge of the dates; (7) the Department made no reasonable efforts to reunite J.S.S. with Mother—the Department merely gave her "to do" lists; (8) the trial court should have granted a continuance because she did not miss the trial intentionally or as a result of conscious indifference because she was in rehab and her trial counsel failed to tell her of the court date; (9) the therapist to whom she was assigned was abusive and did not assist her; and (10) her appellate attorney did not consider the information she had provided to him, relied on the "biased" transcripts from the Department, and included personal slights against her in his brief.

Discussion

A. Continuance. Mother appears to argue that the trial court erred in not granting her counsel's motion for continuance because she was not intentionally absent from the trial. On the first day of trial, Mother's counsel made an oral motion to continue until after Mother completed drug rehab on April 2nd. Mother entered rehab two days before trial began.

A trial court's ruling on a motion for continuance is reviewed for an abuse of discretion. In re K.-A.B.M. , 551 S.W.3d 275, 283 (Tex. App.—El Paso 2018, no pet.). A trial court abuses its discretion when it acts without any guiding rules or principles, or, stated another way, when the trial court's actions are arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied , 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ; see also In re M.R.R. , No. 10-15-00303-CV, 2016 WL 192583, at *7 (Tex. App.—Waco Jan. 14, 2016, no pet.) (mem. op.).

Under Rule 251 of the Rules...