in the Interest of A.C., R.P., and A.P., Children ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00276-CV
IN THE INTEREST OF A.C., R.P., AND A.P., CHILDREN
From the 74th District Court
McLennan County, Texas
Trial Court No. 2012-1355-3
MEMORANDUM OPINION
Angel P. appeals from a judgment that terminated the parent-child relationship
between her and her children, A.C., R.P., and A.P. See TEX. FAM. CODE ANN. § 161.001
(West 2008). In presenting this appeal, appointed counsel has filed an Anders brief in
support of his motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). We grant counsel's motion and affirm.
The procedures set forth in Anders v. California are applicable to appeals of orders
terminating parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002,
order) (per curiam) (applying Anders to parental termination appeals). See also Taylor v.
Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-647 (Tex. App.—Austin
2005, pet. denied). In support of his motion to withdraw, counsel certifies he has
conducted a conscientious examination of the record and, in his opinion, the record
reflects no potentially plausible basis to support an appeal. Counsel certifies he has
diligently researched the law applicable to the facts and issues and candidly discusses
why, in his professional opinion, the appeal is frivolous. In re D.A.S., 973 S.W.2d 296,
297 (Tex. 1998). Counsel has demonstrated he has complied with the requirements of
Anders by (1) providing a copy of the brief to Angel and (2) notifying her of her right to
file a pro se response if she desired to do so. Id. Angel has not filed a pro se response to
the Anders brief.
The order of termination recites that Angel:
knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered the physical or emotional
well-being of the children;
engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional well-
being of the children;
constructively abandoned the children who had been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than 6 months;
and
failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the
children who had 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 the parent under Chapter 262 for the
abuse and neglect of the children.
In the Interest of A.C., R.P., and A.P., Children Page 2
TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (N), & (O) (West Supp. 2012).
Appellate counsel was appointed for Angel. A motion for new trial was filed by
Angel's appellate counsel, but there is nothing in the record to indicate that a hearing
was requested or held on the motion.
By the Anders brief, counsel evaluates potential issues on all three grounds
supporting termination. Counsel acknowledges that only one statutory ground is
necessary to support an order of termination in addition to a finding that termination is
in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). He then
analyzes the evidence to support the termination order under section 161.001(1)(O) and
the best interest of the children and concludes there is no arguable error. Counsel's
brief evidences a professional evaluation of the record for error, and we conclude that
counsel performed the duties required of an appointed counsel.
Standard of Review in Termination Cases
Due process requires application of the clear and convincing standard of proof in
cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof
which 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. See TEX. FAM. CODE ANN. § 101.007
(West 2008). See also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
The Family Code permits a court to order termination of parental rights if the
In the Interest of A.C., R.P., and A.P., Children Page 3
petitioner establishes one or more acts or omissions enumerated under subsection (1) of
the statute and also proves that termination of the parent-child relationship is in the
best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West 2008); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976).
Failure to Comply with Court Order
Parental rights may be terminated if a parent fails to comply with a court order
that specifically establishes the actions necessary for the parent to obtain the return of a
child who has been in the permanent or temporary managing conservatorship of the
Department for not less than nine months as a result of the child's removal under
Chapter 262 of the Family Code for the abuse or neglect of the child. See TEX. FAM.
CODE ANN. § 161.001(1)(O) (West 2008); In re J.F.C., 96 S.W.3d at 278-79. We agree with
counsel's evaluation that there is clear and convincing evidence to support termination
under section 161.001(1)(O). Further, because only one statutory ground is necessary to
support an order of termination, we need not evaluate the evidence as it pertains to the
other grounds for termination alleged, subsections (D), (E), and (N).
Best Interest of the Children
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001(1), we must also find clear and convincing evidence that termination of
the parent-child relationship was in the children's best interest. See TEX. FAM. CODE
ANN. § 161.001(2). Evidence that proves one or more statutory grounds for termination
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may also constitute evidence illustrating that termination is in the child's best interest.
See In re C.H., 89 S.W.3d at 28. There is a long-standing non-exhaustive list of factors for
a court to consider in deciding the best interest of a child in a termination case. See
Holley, 544 S.W.2d at 371-72.
We agree with counsel's evaluations that there is clear and convincing evidence
under the appropriate legal and factual sufficiency standards for the jury to have
determined that termination of the parent-child relationship was in the best interest of
A.P., R.P., and A.C.
Summary
Upon receiving a "frivolous appeal" brief, this Court must conduct a full
examination of all proceedings to determine whether the case is wholly frivolous. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also In
re M.A.R., No. 10-10-00237-CV, 2011 Tex. App. LEXIS 3596, at *2 (Tex. App.—Waco May
11, 2011, no pet.) (mem. op.). After our review of the entire record and counsel's brief,
we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v.
State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Accordingly, we affirm the trial
court's judgment.
Motion to Withdraw
In accordance with Anders, counsel has filed a motion to withdraw. See Anders,
386 U.S. at 744, 87 S. Ct. at 1400; see also In re Schulman, 252 S.W.3d 403, 407 n.17 (Tex.
In the Interest of A.C., R.P., and A.P., Children Page 5
Crim. App. 2008). We grant counsel's motion to withdraw. 1 Within five days of the
date of this Court's opinion, counsel is ordered to send a copy of the opinion and
judgment to Angel and to advise her of her right to pursue a petition for review in the
Texas Supreme Court. See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex. App.—Houston [1st
Dist.] 2003, no pet.).
Conclusion
The motion to withdraw is granted and the judgment of the trial court is
affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed and motion granted
Opinion delivered and filed November 14, 2013
[CV06]
1
No substitute counsel will be appointed. Should Angel wish to seek further review of this case by this
Court or the Texas Supreme Court, she must either retain an attorney to file a motion for rehearing or a
petition for review or file a pro se motion for rehearing or a petition for review. Any motion for rehearing
must be filed within fifteen days of this opinion. Any petition for review must be filed within forty-five
days after the date of either this opinion or the last ruling by this Court on all timely-filed motions for
rehearing. See TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of
Texas Rule of Appellate Procedure 53.2. TEX. R. APP. P. 53.2.
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