in the Interest of A.A.Z., A.A.Z., and A.A.L., Children ( 2021 )

NUMBERS 13-21-00160-CV & 13-21-00161-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF A.A.Z., A.A.Z., AND A.A.L., CHILDREN
On appeal from the 156th District Court
of Live Oak County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Hinojosa and Silva
Memorandum Opinion by Chief Justice Contreras
Appellants A.G. and J.G.L. perfected separate appeals from the trial court’s order
terminating their parental rights. In appellate cause number 13-21-00161-CV, A.G., the
biological mother of A.A.Z.1, A.A.Z.2, and A.A.L., 1 argues the evidence was legally and
factually insufficient to support grounds for termination under family code
§ 161.001(b)(1)(O) or to support a finding that termination was in the children’s best
1 We refer to the children and their family members by their initials in accordance with the rules of
appellate procedure. See TEX. R. APP. P. 9.8(b)(2). Because the two eldest children share the same initials
with their biological father, we refer to them as A.A.Z.1 and A.A.Z.2.
interest. In appellate cause number 13-21-00160-CV, court-appointed appellate counsel
for J.G.L., the biological father of A.A.L., has filed a brief stating he has identified no
arguable grounds for appeal. We affirm in both cause numbers.
I. BACKGROUND
A.A.Z.1, a girl, and A.A.Z.2, a boy, were born to A.G. and father A.A.Z. in 2012 and
2015, respectively. A.A.L., a girl, was born in 2017. Appellee, the Texas Department of
Family and Protective Services (the Department), filed its petition seeking termination of
appellants’ parental rights on August 6, 2019. 2 The final termination hearing was held via
video conference on April 12, 2021, at which time the children were nine, six, and three
years old, respectively. Both appellants were represented by counsel.
Olivia Cote, a Department caseworker, testified the Department received a report
that the children were locked out on the patio of their second-story apartment, that the
apartment was “very dirty,” and that there was substance abuse. At the time of this report,
there was already an active family-based safety services (FBSS) case pending, and the
children had previously been removed and placed with J.G.L.’s parents. Cote said there
was a safety plan in place requiring J.G.L.’s parents to watch the children and to “not
leave the parents alone with them at any time.” Because J.G.L.’s parents left the children
with appellants unsupervised, they were removed again and placed with A.G.’s mother.
They were later removed from that placement as well, placed in a temporary shelter in
Calallen, and then a foster home in San Antonio. Because the San Antonio foster parents
moved out of state, the children were moved again, and they have been in their current
foster home with the Pena family since May 11, 2020. Cote said the children have
2 The petition also sought termination of the parental rights of A.A.Z., the father of A.A.Z.1 and
A.A.Z.2. A.A.Z. is not a party to this appeal.
2
“bonded really closely” with the Penas and are “doing very well.” According to Cote,
A.A.Z.2 had “severe dental decay” and asthma and A.A.Z.1 needed glasses when they
first came into the Penas’ care, but they are now receiving treatment. She said the Penas
“are going through the licensing protocols” to be able to adopt the children.
Cote said that the Department set up a service plan for appellants which required
them to undergo, among other things, counseling and random urinalysis drug tests.
However, because appellants did not consistently submit to drug tests, they were asked
to attend a residential drug treatment facility, and they agreed to do so in August of 2020.
Before A.G. was accepted into the residential treatment facility, she spent several days
in the hospital because she was having withdrawal symptoms and “was detoxing from a
prescription that she was not prescribed.” While appellants were at the residential
treatment facility, they maintained contact with the children via video calls, though J.G.L.
did not always attend.
J.G.L. was released from inpatient treatment on September 23, 2020, and A.G.
was released on November 5, 2020; both appellants moved in with J.G.L.’s parents. On
November 16, Cote observed an in-person visitation during which J.G.L. dropped A.G.
off with the children while he went out to get food, causing him to miss some of the visit.
Additionally, J.G.L. was driving without a valid license. At one time, when the children
were walking away from their school, J.G.L. stopped his car in the middle of the street
and “approached the children while they were walking through the crosswalk.” Another
time, A.G. approached the children “unannounced” while they were walking from school,
even though the court had already admonished A.G. “not to be doing things like that.”
Cote said that, in October of 2020, J.G.L. began missing visitations and appeared
sleepy and unable to keep his eyes open during a court hearing; therefore, Cote surmised
3
that J.G.L. was “relapsing into misusing his prescriptions again.” On December 9, 2020,
J.G.L. left a phone message for Cote in which he was slurring his words and “was very
upset” that the children were not returned to appellants after they finished inpatient drug
treatment. Cote said J.G.L. called her a “coward” and asked for a new caseworker to be
assigned.
Cote read from medical records indicating that, when A.G. was seen by a doctor
on February 1, 2021, she “appear[ed] over medicated,” had “difficulty completing
sentences, loses train of thought,” was “confused on what meds she is taking,” was
“shaking all of [her] extremities,” and had large pupils. Cote confirmed that, aside from
the time A.G. was just released from treatment, the descriptions in the February 1, 2021
medical records are consistent with her personal observations of A.G. throughout the
case.
During a visit at the end of February 2021, both appellants appeared under the
influence “of something” because they had “very slurred words” and “scattered brains.”
According to Cote, J.G.L. “doubled over his own feet” and nearly dropped his drink on
multiple occasions; while A.G. “was gone for 45 minutes during that visit in her vehicle,
preparing things for the kids, she said.” Cote asked appellants to submit to drug tests the
following day; they did, and they both tested positive for methamphetamines. Cote said
that when she and the court-appointed special advocate (CASA) asked appellants why
they tested positive, “they stated because they were told they were never going to get
their kids back and they wanted to feel numb.” According to Cote, A.G. tested positive for
methamphetamines in “early March” of 2021, and on March 29, J.G.L. tested “negative
dilute” and A.G. tested positive for her prescribed anxiety medication.
On cross-examination, Cote acknowledged that the Department originally wanted
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the two eldest children to be placed with their father A.A.Z.; however, A.A.Z. tested
positive for methamphetamines and opiates and was not responsive to the Department.
She stated J.G.L. told her he was taking anxiety medication three times a day, even
though his prescription read two per day. He was also prescribed Suboxone and a
sleeping aid. Cote stated the children call J.G.L. “Dad” during his visits. She said that A.G.
has been critical of the foster family’s care of the children; she once asked A.A.Z.1
whether the Penas “give her too much loving on her bottom” and A.A.Z.1 informed A.G.
that “those were her birth marks that she had.”
Cote said J.G.L. is “not making any progress” on his service plan, though both
appellants previously completed inpatient drug treatment, a parenting class, individual
counseling, and family counseling. She said neither parent has provided financial support
while the children have been in foster care. A.G. currently works one to three hours per
day as a caretaker for her mother-in-law. According to Cote, J.G.L. did not obtain
employment after being released from inpatient treatment but “was hoping that he would
get disability so that he wouldn’t have to work due to his accident that he had had the
year prior.” However, Cote stated that J.G.L. “currently is not injured.”
Cote opined that the children enjoy their visits with appellants, but she said the
visits sometimes have “negative effects” due to appellants being under the influence or
being late. 3 She said the children once told her “they know that they’re not safe and
[appellants] don’t do safe things for children and that’s why they’re living with their
caregiver right now.” The two older children told her about “times where they wouldn’t be
able to wake up their parents when they were living there; they’d have to feed their baby
3 Patricia Clifton, a CASA volunteer appointed to the case, stated that she observed visitations
during which both appellants allowed the children to “play recklessly” and were “not attentive” at times.
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sister.” Recently, the two older children saw J.G.L. being arrested after a car accident in
which he rear-ended another vehicle; Cote opined that the children “were actually more
concerned about the lady that he hit because she needed to be taken in an ambulance.” 4
Juanita Pena, the foster mother, testified that A.A.Z.2 is “doing very good” in school
whereas A.A.Z.1 “was bringing home As and Bs” but “lately her grades have been going
down because of everything that’s been happening,” such as her father A.A.Z. “stopping
contact.” She said A.A.Z.1’s behavior “is getting a little bit out of hand” and that the child
has started therapy. Pena testified that she is willing to adopt the two youngest children
but “do[esn’t] think [she] could handle [A.A.Z.1]” on a permanent basis. Nevertheless, she
asked to remain A.A.Z.1’s caregiver until the Department can find another placement. 5
A.G. testified that she has been on prescription medication since she suffered back
injuries while powerlifting at the age of sixteen. She said she attended rehab because she
was addicted to opiates and she believed the treatment would help her and her case to
have the children returned to her. 6 A.G. admitted she had a “relapse” of her drug problem
4 Martin Ramos, a George West police officer who responded to the accident, testified that J.G.L.
was unable to produce a valid driver’s license and appeared impaired, though Ramos did not know whether
that was the cause of the accident. Ramos stated that he arrested J.G.L. for possession of a controlled
substance after finding a bottle in the car containing pills and an empty plastic bag with the words “Stay
high” printed on them. According to Ramos, J.G.L. claimed that the pills in the bottle were Xanax and that
he had a prescription. Ramos did not observe any children at the scene.
5 At closing, the attorney ad litem appointed for the children stated that Pena “probably doesn’t
want the older two children permanently.”
6 The Department argues that A.G. appeared to acknowledge she will “always” have a drug problem
during her direct examination:
Q. [A.G.’s counsel] You had a drug problem. Well, you—you’re always going to have
a drug problem, aren’t yeah [sic]?
A. [A.G.] (Laughter.)
Q. Aren’t you? I mean, that’s always something that you guys—
A. Yeah.
Q. —suffer from, isn’t it?
A. They say once you are, you always are.
6
in March of 2021 because she had a “breakdown” after Cote advised her the Department
would be recommending her rights be terminated. A.G. said she “ha[sn’t] even thought
about doing that ever again.” She said she previously worked in food service and recently
“finished all the paperwork” to start a job at Tex Best, a convenience store. She conceded
that she has not provided Pena with any cash support. A.G. stated that her children have
told her they want to come home with her.
J.G.L. testified that he injured his hand “[w]ith a blade” while working in
construction in June of 2019 and is not supposed to lift anything over ten pounds. He said
his father pays him $200 per week to provide care for his mother. He said: “I’m trying to
[wean] myself off of my anxiety meds, my Subox, and I take my Suboxone and my
Amitriptyline and my depression pill.” He admitted using methamphetamine with A.G.
after they learned the Department would be recommending termination. On cross-
examination, J.G.L. admitted he had previously been sent to a substance abuse felony
punishment facility (SAFPF) for opiate abuse on three different occasions.
As to both appellants, the trial court found grounds for termination under parts (O)
and (P) of family code § 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O)
(authorizing termination if the parent “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 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 from the
parent under Chapter 262 for the abuse or neglect of the child”); id. § 161.001(b)(1)(P)
(authorizing termination if the parent “used a controlled substance, as defined by Chapter
481, Health and Safety Code, in a manner that endangered the health or safety of the
child, and: (i) failed to complete a court-ordered substance abuse treatment program; or
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(ii) after completion of a court-ordered substance abuse treatment program, continued to
abuse a controlled substance”). It further found that termination of appellants’ parental
rights and permanent managing conservatorship with the Department was in the best
interest of the children. See id. § 161.001(b)(2). These appeals followed.
II. A.G.
A. Standard of Review and Applicable Law
Involuntary termination of parental rights involves fundamental constitutional rights
and divests the parent and child of all legal rights, privileges, duties, and powers normally
existing between them, except for the child’s right to inherit from the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—
Corpus Christi—Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex.
2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and irrevocable
dissolution of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.”).
Accordingly, termination proceedings must be strictly scrutinized. In re K.M.L., 443
S.W.3d at 112.
A trial court may order termination of the parent-child relationship only if it finds by
clear and convincing evidence that: (1) the parent committed an act or omission described
in family code § 161.001(b)(1); and (2) termination is in the best interest of the child. TEX.
FAM. CODE. ANN. § 161.001(b)(1), (2). The “clear and convincing” standard falls between
the preponderance of the evidence standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847
(Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as the “measure or degree of
proof that 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.” TEX. FAM. CODE ANN. § 101.007.
8
Evidence is legally sufficient to support termination if a reasonable factfinder could
form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 630–
31 (Tex. 2018). In conducting a legal sufficiency review, we assume that the fact finder
resolved disputed facts in favor of its finding if it was reasonable to do so, and we
disregard all evidence that a reasonable fact finder could have disbelieved or found to be
incredible. In re L.J.N., 329 S.W.3d at 671. We must also consider undisputed evidence,
if any, that does not support the finding. In re K.M.L., 443 S.W.3d at 113; see In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002) (“Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.”).
Evidence is factually insufficient to support termination if, “in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction” that the finding was true. In re A.C., 560 S.W.3d at 631; In re J.F.C.,
96 S.W.3d at 266. Under the factual sufficiency standard, we defer to the trier of fact’s
determinations on the credibility of the witnesses “so long as those determinations are
not themselves unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per
curiam); see In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); see also In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“A standard that focuses on whether a reasonable
jury could form a firm conviction or belief retains the deference an appellate court must
have for the factfinder’s role.”).
B. Predicate Grounds
By her first issue on appeal, A.G. contends that the evidence was legally and
factually insufficient to support the trial court’s finding of predicate grounds for termination
under part (O) of family code § 161.001(b)(1). See TEX. FAM. CODE ANN.
9
§ 161.001(b)(1)(O). However, she does not dispute that the evidence was sufficient to
support the trial court’s finding of grounds for termination under part (P) of that statute.
Accordingly, consideration of A.G.’s first issue is not necessary to the final disposition of
the appeal, and we do not address it. See In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)
(per curiam) (“To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—even if
the trial court based the termination on more than one ground.”); see also TEX. R. APP. P.
47.1 (“The court of appeals must hand down a written opinion that is as brief as
practicable but that addresses every issue raised and necessary to final disposition of the
appeal.”). 7
C. Best Interests
By her second issue, A.G. argues the evidence was legally and factually
insufficient to support the trial court’s finding that termination of her parental rights was in
the children’s best interest. There is a strong, though rebuttable, presumption that keeping
a child with a parent is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131; In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Factors that we consider in
determining whether termination of parental rights is in a child’s best interest include: (1)
the desires of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the
7 The Texas Supreme Court has held that, regardless of whether other grounds for termination are
unchallenged on appeal, an appellate court must always review issues alleging the evidence was
insufficient to support findings of endangerment under parts (D) or (E) of family code § 161.001(b)(1). In re
N.G., 577 S.W.3d 230, 234, 237 (Tex. 2019) (holding that “due process and due course of law requirements
mandate that an appellate court detail its analysis for an appeal of termination of parental rights” on
endangerment grounds because an endangerment finding “becomes a basis to terminate that parent’s
rights to other children” under § 161.001(b)(1)(M)). The trial court did not make findings under parts (D) or
(E) in this case, and there is no similar due process concern regarding a finding under part (O).
10
parenting abilities of the parties seeking custody; (5) the programs available to assist the
parties seeking custody; (6) the plans for the child by the parties seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions committed by the
parent which may indicate that the existing parent-child relationship is not proper; and (9)
any excuse for the acts or omissions committed by the parent. Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976). The party seeking termination is not required to prove all
of these factors; in some cases, undisputed evidence of just one factor may be sufficient
to support a finding that termination is in the best interest of the child. In re C.H., 89
S.W.3d at 25, 27.
As to the first factor—the desires of the child—Cote appeared to agree that A.A.Z.1
and A.A.Z.2 stated they did not want to return to live with their parents at the present
time. 8 A.G. testified that the children told her they want to come home with her; however,
it would not have been unreasonable for the trial court to discredit that testimony. See In
re L.J.N., 329 S.W.3d at 671; In re J.P.B., 180 S.W.3d at 573.
Regarding the second factor, A.A.Z.2 had dental issues, for which he is now
receiving treatment, and A.A.Z.1 requires glasses. Pena further said that A.A.Z.1 has had
8 The following colloquy occurred during Cote’s cross-examination:
Q. [A.G.’s counsel] Have the children ever expressed to you or have you ever asked
the children if they want to go back to their parents?
A. [Cote] Yes. I did talk to the two oldest who are more understanding of the
situation and they don’t. They tell me about the times where they
wouldn’t be able to wake up their parents when they were living
there; they’d have to feed their baby sister. They have a lot of
concerns.
Q. Okay. Did they express to you that they do not ever want to go
back to their parents?
A. Um . . .
Q. Did you ask them that?
A. We never had that conversation about ever going back.
11
recent behavior issues but is currently in therapy. Other than that, there was no evidence
that the children have any emotional or physical needs beyond the substantial needs
which are typical of children their age.
The evidence regarding the third factor centers mainly on A.G.’s persistent drug
use. Cote said that A.G. did not consistently submit to random drug tests as required by
the Department’s service plan and the court’s orders. See In re W.E.C., 110 S.W.3d 231,
239 (Tex. App.—Fort Worth 2003, no pet.) (“The jury could reasonably infer that
appellant’s failure to complete the scheduled screenings indicated she was avoiding
testing because she was using drugs.”). A.G. agreed to undergo inpatient drug
rehabilitation in August of 2020, but before she could attend, she had to be hospitalized
for several days because she was suffering withdrawal symptoms in connection with an
unprescribed medication. A.G. successfully completed the inpatient treatment, but when
she was seen by a doctor on February 1, 2021, she appeared “over medicated” and
“confused,” and Cote said that this was generally consistent with her personal
observations of A.G. throughout the case. Cote also testified A.G. appeared intoxicated
at a visit with the children at the end of February, during which A.G. absented herself for
forty-five minutes and claimed to be “preparing things for the kids” in her car. In early
March of 2021, A.G. tested positive for methamphetamines; she stated she and J.G.L.
did so because they “wanted to feel numb” after learning the Department intended to seek
termination of their parental rights. Finally, as noted, A.G. does not dispute that the
evidence was sufficient to support the trial court’s finding, under § 161.001(b)(1)(P), that
she continued to use drugs even “after completion of a court-ordered substance abuse
treatment program.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(P). The trial court could
have inferred from all of this evidence that A.G. presents a risk of emotional and physical
12
danger to the children. See In re B.M.S., 581 S.W.3d 911, 917 (Tex. App.—El Paso 2019,
no pet.); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (reasoning that a parent’s illegal drug use
may support termination because “it exposes the child to the possibility that the parent
may be impaired or imprisoned”); In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas
2007, no pet.) (noting that the fact-finder can give “great weight” to the “significant factor”
of drug-related conduct by a parent).
As to the fourth and eighth factors, A.G. once approached the children outside their
school, even though she was not supposed to have unsupervised contact with them. A.G.
has completed a parenting class and counseling, but according to Cote, she has not “put
the matters that [she has] been taught in those counseling sessions into practice.” Cote
said that, though the children seem to enjoy the visits with their parents, “[q]uite a few” of
the visits have had “negative effect[s]” on the children because of appellants’ tardiness
and apparent intoxication. This evidence established that A.G. has subpar parenting
abilities and that the relationship between her and the children is improper.
Regarding the sixth and seventh factors, the children were initially removed from
appellants’ care because they were found locked out of their “very dirty” apartment. A.G.
did not have gainful employment outside the home at the time of trial, though she said
she completed paperwork for a job at a convenience store. On the other hand, Cote stated
the children are “doing very well” in their current placement with the Pena family. Pena
testified that A.A.Z.1 has occasional behavior issues but A.A.Z.2 is “doing very good” in
school.
A child’s need for permanence through the establishment of a “stable, permanent
home” has been recognized as the paramount consideration in determining best interest.
13
In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C.,
219 S.W.3d at 931; see In re R.S.-T., 522 S.W.3d 92, 113 (Tex. App.—San Antonio 2017,
no pet.). A factfinder may consider the consequences of failure to terminate parental
rights and may also consider that the child’s best interest may be served by termination
so that adoption may occur, rather than the impermanent foster-care arrangement that
would result in the absence of termination. See In re K.C., 219 S.W.3d at 931. A.G.’s
counsel emphasized at trial that, although the Department initially believed Pena would
be willing to adopt all three children, Pena testified that she did not think she could
“handle” A.A.Z.1 on a permanent basis because of her behavior issues. However, it is not
necessary for the Department to establish “definitive plans for permanent placement and
adoption” to show that termination is in the children’s best interests. See In re C.H., 89
S.W.3d at 28 (“Evidence about placement plans and adoption are, of course, relevant to
best interest. However, the lack of evidence about definitive plans for permanent
placement and adoption cannot be the dispositive factor; otherwise, determinations
regarding best interest would regularly be subject to reversal on the sole ground that an
adoptive family has yet to be located.”).
A.G. claims that “[v]irtually no direct evidence was provided at trial to support a
finding that termination of A.G.’s parental rights was in the best interest of her children,”
but we disagree. Considering all the Holley factors, we conclude that the evidence was
legally and factually sufficient to rebut the strong presumption that keeping the children
with their biological mother is in their best interest. See TEX. FAM. CODE ANN. § 153.131.
Instead, a reasonable trier of fact could have formed a firm belief or conviction that
termination of A.G.’s parental rights was in the children’s best interests, and the contrary
evidence was not so significant as to preclude such a finding. See In re J.L., 163 S.W.3d
1479, 85 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266.
A.G.’s second issue is overruled.
III. J.G.L.
A. Anders Brief
J.G.L.’s court-appointed appellate counsel has filed a brief stating that he has
diligently reviewed the entire record and has concluded that there are “no non-frivolous
issues for appeal.” See Anders v. California, 386 U.S. 738 (1967); Porter v. Tex. Dep’t of
Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi–Edinburg
2003, no pet.) (“[W]hen appointed counsel represents an indigent client in a parental
termination appeal and concludes that there are no non-frivolous issues for appeal,
counsel may file an Anders-type brief.”). Counsel’s brief meets the requirements of
Anders as it presents a professional evaluation showing why there are no arguable
grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.
Crim. App. 2008) (orig. proceeding) (“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.”).
Counsel has informed this Court in writing that he has: (1) notified J.G.L. that he has filed
an Anders brief and a motion to withdraw; (2) provided J.G.L. with copies of both
pleadings; (3) informed J.G.L. of his rights to file a pro se response, 9 to review the record
preparatory to filing that response, and to seek review if we conclude that the appeal is
9 In the criminal context, the Texas Court of Criminal Appeals has held that “the pro se response
need not comply with the rules of appellate procedure in order to be considered. Rather, the response
should identify for the court those issues which the indigent appellant believes the court should consider in
deciding whether the case presents any meritorious issues.” In re Schulman, 252 S.W.3d 403, 409 n.23
(Tex. Crim. App. 2008).
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frivolous; and (4) supplied J.G.L. with a form motion for pro se access to the appellate
record. See Anders, 386 U.S. at 744. More than an adequate time has passed, and J.G.L.
has not filed a pro se response.
B. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. See Penson v. Ohio,
488 U.S. 75, 80 (1988); see also In re G.M., No. 13-08-00569-CV, 2009 WL 2547493, at
*1 (Tex. App.—Corpus Christi–Edinburg Aug. 20, 2009, no pet.) (mem. op.). We have
reviewed the record and counsel’s brief and we have found no reversible error with
respect to J.G.L. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005)
(“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues
raised in the brief and reviewed the record for reversible error but found none, the court
of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”).
C. Motion to Withdraw
J.G.L.’s counsel has filed a motion to withdraw. See Anders, 386 U.S. at 744; see
also In re Schulman, 252 S.W.3d at 408 n.17 (“If an attorney believes the appeal is
frivolous, he must withdraw from representing the appellant.”). However, when an Anders
brief is filed in a parental termination appeal, the appellant’s right to appointed counsel
extends to “all proceedings in [the Texas Supreme Court], including the filing of a petition
for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (citing TEX. FAM. CODE
ANN. § 107.013(a)(1)). Thus, in the absence of additional grounds for withdrawal, a motion
to withdraw brought in the court of appeals may be premature. Id. Counsel is permitted
to withdraw only for good cause, and counsel’s belief that the client has no grounds to
seek further review from the court of appeals’ decision does not constitute good cause.
16
Id.
J.G.L.’s counsel’s motion to withdraw does not show “good cause” other than his
determination that an appeal would be frivolous. Accordingly, we deny counsel’s motion
to withdraw. See id.; In re C.J., 501 S.W.3d 254, 255 (Tex. App.—Fort Worth 2016, pets.
denied) (denying a motion for withdrawal in light of In re P.M. where it did not show “good
cause” other than counsel’s determination that an appeal would be frivolous); In re A.M.,
495 S.W.3d 573, 582 & n.2 (Tex. App.—Houston [1st Dist.] 2016, pets. denied) (noting
that since In re P.M. was handed down, “most courts of appeals affirming parental
termination orders after receiving Anders briefs have denied the attorney’s motion to
withdraw”). 10
IV. CONCLUSION
The trial court’s judgments of termination in both cause numbers are affirmed.
DORI CONTRERAS
Chief Justice
Delivered and filed on the
10th day of November, 2021.
10 The Texas Supreme Court has noted that, in cases such as this, “appointed counsel's obligations
[in the supreme court] can be satisfied by filing a petition for review that satisfies the standards for an Anders
brief.” In re P.M., 520 S.W.3d 24, 28 (Tex. 2016).
17