M. Y. and D. Y. v. Texas Department of Family and Protective Services ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00037-CV
M.Y. and D.Y., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 20-0090-CPS395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING
MEMORANDUM OPINION
M.Y. (Mother) and D.Y. (Father) appeal from the trial court’s order terminating
their parental rights to Son and Daughter, who were five years old and three years old at the final
hearing. 1 Father challenges the trial court’s findings that the statutory grounds for termination
exist under subsections (D), (E), (N), and (O). See Tex. Fam. Code § 161.001(b)(1)(D)
(endangering conditions), (E) (endangering conduct), (N) (constructive abandonment), (O)
(failing to comply with court-ordered family service plan). Mother’s counsel has filed a motion
to withdraw supported by an Anders brief, concluding that her appeal is frivolous and without
merit. See Anders v. California, 386 U.S. 738, 744 (1967). Based on the foregoing, we affirm
the trial court’s termination decree as to both parents.
1
For the children’s privacy, we will refer to them by aliases and to their family members
by their relationships to them or by aliases. See Tex. R. App. P. 9.8(b)(2).
BACKGROUND
On November 24, 2020, the Department filed a petition for protection,
conservatorship, and termination as to Son and Daughter, based on a referral received
approximately one month earlier of allegations of domestic violence between the parents. On
February 9, 2021, the trial court entered temporary orders appointing the Department as the
temporary managing conservator of both children. The children were initially placed with
Maternal Grandmother, but then later placed with Paternal Grandmother after concerns that
Maternal Grandmother was allowing unsupervised contact by Mother and was disciplining the
children physically.
The parents were each given separate court-ordered family service plans, and the
original bench trial occurred over three days spanning from July to October 2022. See M.Y.
v. Texas Dep’t of Fam. & Protective Servs., 667 S.W.3d 502, 505 (Tex. App.—Austin 2023, no
pet.). On November 8, 2022, the trial court rendered an order of termination, finding that
subsection (D), (E), (O), and (P)2 statutory grounds and best interest supported termination of
Father’s and Mother’s parental rights to the children and appointing the Department as the
permanent managing conservators for the children. See Tex. Fam. Code § 161.001(b).
Both parents appealed the original termination order. M.Y., 667 S.W.3d at 505.
Among other challenges, Mother argued on appeal that the trial court erred by “terminating her
parental rights without first providing notice to the tribal nations after the court was put on notice
2
Subsection (P) concerns parental use of controlled substances in a manner that
endangered the health and safety of a child coupled with either failure to complete a court-
ordered substance abuse treatment program or continued abuse of the controlled substance after
completion of a court-ordered substance abuse treatment program. See Tex. Fam. Code
§ 161.001(b)(1)(P). This ground was not reurged on remand and is not a basis for termination of
parental rights in the order under review.
2
that the Children may be Indian children, without definitively determining whether the Children
qualified for tribal membership, and without following the procedures and standards required by
the [Indian Child Welfare Act (ICWA)].” Id. Father raised a similar challenge regarding the
trial court’s failure to follow the notice provisions of the ICWA. Id.
On April 21, 2023, this Court held that the trial court committed reversible error
by failing to contact relevant Indian officials to ascertain the children’s potential Indian status
and failed to use the beyond a reasonable doubt standard pursuant to ICWA. Id. at 510. We
reversed the judgment of the trial court as to both parents and remanded for further proceedings
consistent with our opinion. Id.
After the case was remanded back to the trial court, notices were sent out to the
various identified tribal nations, and representatives of those tribal nations confirmed that neither
child was found to be registered or eligible to register as a member of a tribal nation. Neither
parent received a new court-ordered service plan, although the parents did participate in some
services during this time period.
A jury trial was then held from November 27 through 30, 2023. Numerous
witnesses testified, including Kim Sullivan, the children’s play therapist; Cyndel Shepherd, a
Department investigator supervisor; several police officers; Teri Freeman, the Department
caseworker supervisor; Kaylene Beck, the CASA worker; Paternal Grandmother; Father;
and Mother.
Kim Sullivan, the children’s play therapist, testified that the children initially
exhibited “some pretty extreme emotional responses,” including hitting other children and
teachers, and she described Son as having “some very extreme startling responses.” She
explained such responses are consistent with childhood trauma, although her role was not to
3
identify the trauma but rather to help the children “to be functional now, to get over whatever it
is.” She also described Son as having strong elements of “trauma play,” which Sullivan
described as play “where it’s not fun” but an appearance of “I must do this to get it out of my
system.” She also described Son as repeating the phrase “Open the door. Open the damn door”
with “intensity.” When asked whether that phrasing may be indicative of a child who has
experienced, witnessed, or heard domestic violence, Sullivan responded, “I would say that could
be very consistent.”
Father and Mother’s relationship began in 2017 and they confirmed they had a
physical altercation within thirty days of the start of their relationship. Father testified that both
parents hit one another but stated that Mother first punched him several times. Mother
contended that Father was the aggressor, that she did not recall hitting Father, and that by the end
of the altercation “I had two knots—swollen knots on my head.”
Father and Mother married in 2018. Mother testified that Father was violent
towards her after Son was born, but she did not leave and instead had Daughter with Father.
When asked whether she ever feared for the possibility that Father could take her life, Mother
responded in the affirmative. Mother sought an application for a protective order against Father
in 2019. The affidavit in support of the protective order described Mother as the “victim of
family violence” and referenced multiple instances of Father physically assaulting Mother,
including one instance in which Father threw a plant at Mother, “flipped” her down the stairs,
and kicked and punched her. Mother also testified that during the altercation, Father tried to go
after Son and said to her “I’m going to ruin your life. I’m going to kill you. Fuck you and
them”; the affidavit also reflected that Father “tried to go after our son as he threatened to kill
him.” Father confirmed that he and Mother “did flip down the stairs because she was on my
4
back and I fell,” but Father otherwise disputed the other statements in the affidavit. An agreed
protective order was entered on September 27, 2019, although Father clarified that he agreed to
the order because it contained a clause stating Father “has not agreed to any findings made by the
Court in this order nor to the truth of any underlying facts that support these findings.” Father
confirmed he was twice found in violation of the protective order because he continued to be
around Mother, including spending approximately ten nights in jail when he was arrested once
relating to violating the protective order.3
The parents had another altercation in October 2020, which led to the removal of
the children. At trial, Father denied he hit Mother during that altercation, and he testified that
Mother hit him. Mother confirmed she was named the aggressor, but she testified that Father
had hit her multiple times during the altercation. A responding officer described the scene as
“chaotic,” confirmed the children were awake and present at the scene when he arrived, stated
injuries on Father were consistent with Father’s statements that he had been assaulted by Mother,
and related that Mother told him that Father had “pushed her or shoved her” but that Father
described it as “him just trying to get her back and away from him.” Father testified that the
altercation occurred “outside in the yard away from the home” and the children were sleeping
inside. Father also conceded that he “can see where [the altercation] can be damaging to”
the children.
The parents had another altercation in April 2021 after the children had been
removed. Father testified that Mother again “put her hands on me.” He testified that he did not
“recall” how the argument started, but that “to defend myself, I might have pushed her off me or
3
Father confirmed that in 2019 he also pleaded guilty to sexual assault in a case
involving someone other than Mother. He later clarified that the case did not require registering
as a sex offender and did not involve any restrictions on being around children.
5
something, but I didn’t punch her.” Mother testified that she could not remember if Father had
punched, kicked, hit, or thrown something at her, but she did remember that he had “choked
[her] or impeded [her] breathing.” The responding officer to the April 2021 altercation testified
that Father provided photographs showing some bruising and swelling, as well as a bite mark on
his shoulder, and he related that Mother told him that Father had choked her and she bit him in
response. Father confirmed that he requested the charges against Mother be dropped after both
the October 2020 and April 2021 altercations.
Mother testified that the children were not around the parents during their
altercations, that she did not recall the children experiencing the incidents personally, and that
the children themselves were never physically harmed. She later clarified that during at least
some arguments or physical altercations, the children would have been in the next room and that
Son “definitely probably could have” heard the parents arguing. Father similarly testified that
the children were never physically harmed in the domestic violence between the parents and that
they “weren’t even around the physical altercations.” Father could not remember whether they
have argued in front of the children but then later conceded that the children “probably heard us
argue.” Mother described her and Father’s past relationship as a time when they were both in a
bad position together when she was drinking alcohol excessively, both parents were using
marijuana, and domestic violence was occurring. Mother also confirmed that she is an alcoholic.
When asked when their relationship had ended, Father testified that their
relationship has been over since the children were removed in November 2020, but Father
conceded that he and Mother had “mingled together” at times since then, including being
intimate as late as July 2022. Mother testified that the relationship had been over since Father
cheated, but she confirmed that the parents had been intermittently together, including in 2022
6
around their anniversary. She later testified that there has been no domestic violence since they
have separated, although the parents would continue to get into arguments when seeing each
other intermittently during this time period.
Father would later state that he was no longer the same person going through
domestic violence issues because his life had changed after the children were removed. He
testified that he has not had a drink in approximately three or four years, had not smoked
marijuana in two years, and had not had CBD in “about a month and a half” before the jury trial.
Father denied using any drugs other than marijuana. Father testified that he has no intention to
get back into a relationship with Mother, and that Mother had filed for divorce approximately
two or three years earlier but it had not yet been finalized.
Father confirmed he had a family service plan he reviewed with a caseworker, and
he testified that he completed more than half of the plan requirements. He testified that the
Department did not give him “a service plan all over again” after the case was remanded back to
the trial court in 2023. Father testified that he was told “it wouldn’t make a difference.” Father
later testified that the Department could have done more to assist him with services, that he had
approximately “five to six, maybe seven” caseworkers throughout the removal proceeding, and
that a caseworker had told him going through anger management courses was pointless. He later
testified that the caseworker told him the anger management course “was not mandatory” and
that “it was pointless to do anything.” Father also testified that he blames himself “completely”
for not completing his services.
Cyndel Shepherd, the supervisor for the original Department investigator, testified
that the Department received an intake of neglectful supervision by the parents relating to the
October 2020 altercation, and that when the Department contacted the parents, the parents
7
admitted they got into an argument after Father called Mother several racial slurs and Mother
attacked him. Shepherd testified that the initial intake noted that the children were not present in
the home, but the parents clarified that the children were asleep in the home and were taken to
the neighbors next door after they awoke from the commotion. Shepherd testified that an
emergency protective order was put in place that prohibited the parents from being around each
other for thirty days, but during an unannounced visit several weeks later, the Department worker
found both parents at the home with the children and Mother admitted to drinking. Shepherd
testified that the children were thereafter removed and placed with Maternal Grandmother.
Teri Freeman, the Department caseworker supervisor, testified that Father’s
family service plan directed that Father attend drug testing, that father attended 18 out of 36 drug
tests during the removal proceeding, that he tested positive for marijuana on 17 of the 18 drug
tests he completed, and that the Department had asked him to abstain from drug usage. Freeman
testified that a caseworker met with Father in May 2023 after the case was remanded back from
this Court, and that based on her review of records, the caseworker referred Father to services
“[b]ut I’m not sure if he decided to go with his own.” She testified that Father completed about
half of his services before the original bench trial, but since then, Father has completed
“[n]othing that has been documented” besides a single drug test in August 2023 that was positive
for marijuana. She also clarified that there were three caseworkers assigned to the case
throughout its duration.
Paternal Grandmother testified that she had not seen the parents “be physical with
each other” but she had seen them verbally arguing and “getting angry.” She testified that she
tried to talk Father and Mother out of being in a relationship “[m]any times.” When asked
whether it would surprise her that the parents had another violent altercation after the children
8
were removed, Paternal Grandmother responded, “It doesn’t surprise me. It makes me sad.” She
testified that both parents “deserve better than what they’ve given themselves,” which she
described as “[v]iolent, hostile,” and she confirmed the parents had not broken up through 2022.
She expressed concern that “the pattern will keep going on and on and on, the back-and-forth,
you know.” When asked if she had seen either parent change in the last three years of the
proceeding, Paternal Grandmother responded “[n]ot really” and explained that “they have not
made enough changes that show that they were putting their kids first.” When asked whether her
son was the victim, she explained that “he was the victim of physical assaults” but “[t]hey
verbally both were really hard on each other.” When asked if she knew whether the children
were in the vicinity or asleep when the parents fought, Paternal Grandmother explained that “the
places that [Father and Mother] live at—actually all the places that I’ve known are very small.
So, yes, the kids were within the vicinity of it. They may not have been directly in front of them,
but, yes, they were in the vicinity.” And she later confirmed that the domestic violence
“[a]bsolutely” affects the children.
Kaylene Beck, the CASA worker, then testified that at a hearing she attended with
the parents after the case was remanded, the parents spoke about their service plans and made
comments of “what’s the point . . . if they felt like [the Department] were still wanting to
terminate, like, what the point was for them to continue services at that point.” She testified that
her understanding was that the parents did not receive new service plans after the case was
remanded and that “it was a continuation of the previous services.”
At the end of the hearing, the jury found by clear and convincing evidence that
termination of Mother’s and Father’s parental rights was warranted on subsection (D), (E), (N),
and (O) grounds and that termination of their rights was in the children’s best interest. The jury
9
then found that the Department should be named the permanent managing conservators of the
children. On December 28, 2023, the trial court rendered its order of termination, consistent
with the jury’s findings. Both parents have now appealed. 4
STANDARD OF REVIEW
To terminate the parent-child relationship, a court must find by clear and
convincing evidence that (1) the parent has committed one of the enumerated statutory grounds
for termination and (2) termination is in the child’s best interest. Tex. Fam. Code § 161.001(b).
Clear and convincing evidence is “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.” Id. § 101.007.
In this context, “[t]he distinction between legal and factual sufficiency lies in the
extent to which disputed evidence contrary to a finding may be considered.” In re A.C.,
560 S.W.3d 624, 630 (Tex. 2018). When evaluating legal sufficiency of the evidence, we
consider whether “a reasonable factfinder could form a firm belief or conviction that the finding
was true” when the evidence is viewed in the light most favorable to the factfinder’s
determination and undisputed contrary evidence is considered. Id. at 631. “Evidence is factually
insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could
not have credited in favor of a finding is so significant that the factfinder could not have formed
a firm belief or conviction that the finding was true.” Id.However, “[a]n appellate court’s review must not be so rigorous that the only
factfindings that could withstand review are those established beyond a reasonable doubt.” In re
4
Mother and Father each filed motions for new trial, which were denied by the trial
court on February 27, 2024.
10
C.H., 89 S.W.3d 17, 26 (Tex. 2002). “While parental rights are of constitutional magnitude, they
are not absolute.” Id. “Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.” Id.Accordingly, an appellate court must not substitute its own judgment for that of
the jury, In re C.E., 687 S.W.3d 304, 309 (Tex. 2024) (per curiam), and we must “provide due
deference to the decisions of the factfinder, who, having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of
witnesses,” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). That is, jurors “may choose to believe
one witness and disbelieve another,” and we “cannot impose [our] own opinions to the contrary.”
In re C.E., 687 S.W.3d at 309 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 819
(Tex. 2005)).
FATHER’S STATUTORY GROUND CHALLENGE
In four issues, Father challenges the finding that the record supports termination
of his parental rights on subsection (D), (E), (N), and (O) statutory grounds. See Tex. Fam. Code
§ 161.001(b)(1)(D) (endangering conditions), (E) (endangering conduct), (N) (constructive
abandonment), (O) (failing to comply with court-ordered family service plan). We begin our
review with the trial court’s two endangerment findings—endangering environment under
subsection (D) and endangering conduct under subsection (E)—because those findings may have
additional consequences for Father in future proceedings. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E); In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019) (per curiam)
(explaining that only one statutory ground is necessary to affirm termination of parental rights
11
but recognizing due process concerns require appellate review of (D) and (E) statutory grounds);
see also In re R.R.A., 687 S.W.3d 269, 279 (Tex. 2024) (stating that “we must also review
termination under subsections (D) and (E) because a finding of termination under those grounds
may justify termination of parental rights to other children under subsection (M)”).
Subsection (D) “focuses on the child’s environment and may be utilized as a
ground for termination when the parent has ‘knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child.’” In re J.W., 645 S.W.3d 726, 749 (Tex. 2022) (quoting Tex. Fam. Code
§ 161.001(b)(1)(D)). Subsection (E) focuses on a parent’s conduct and “allows for termination
of parental rights if clear and convincing evidence supports that the parent ‘engaged in conduct
or knowingly placed the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child.’” In re N.G., 577 S.W.3d at 234 (quoting Tex.
Fam. Code § 161.001(b)(1)(E)). Because the evidence pertaining to subsections (D) and (E) is
interrelated, we consolidate our review of the evidence. See V.P. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4,
2020, no pet.) (mem. op.).
Although the jury found by clear and convincing evidence that subsection (D) and
(E) statutory grounds supported termination of Father’s parental rights, Father contends that
those statutory grounds could not support termination because of confusion as to whether Father
should have been provided a new service plan (or if the original service plan remained required)
when the proceeding was remanded after his original appeal. See M.Y., 667 S.W.3d at 510.
Father’s argument, however, is unavailing. Whether a parent has complied with (or has the
ability to comply with) a court-ordered family service plan is not the relevant analysis for
12
subsection (D) or (E); rather, the focus of subsections (D) and (E) is endangerment. 5 When
considering whether clear and convincing evidence supports subsection (D) or (E) grounds, our
analysis focuses on whether the child’s environment or the parent’s conduct is “endangering,”—
that is, exposes the child “to loss or injury; to jeopardize.” In re J.W., 645 S.W.3d at 748
(quoting Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
“‘[E]ndanger’ means more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment, [but] it is not necessary that the conduct be directed at the
child or that the child actually suffers injury.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per
curiam) (quoting Boyd, 727 S.W.2d at 533); see also A.C. v. Texas Dep’t of Family & Protective
Servs., 577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet. denied).
For purposes of analyzing an endangering environment under Subsection (D) of
the Texas Family Code, “[t]he child’s environment refers to the suitability of the child’s living
conditions as well as the conduct of parents or others in the home.” In re E.A.R., 583 S.W.3d
898, 908 (Tex. App.—El Paso 2019, pet. denied). “A child is endangered when the environment
creates a potential for danger and the parent is aware of the danger but consciously disregards it.”
In re J.E.M.M., 532 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
“Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home or with
whom the child is compelled to associate on a regular basis in the home is a part of the
‘conditions or surroundings’ of the child’s home under [Sub]section D.” Jordan v. Dossey,
325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Moreover, “[a] single
5
Father’s argument in effect seeks to replace the endangerment standard used in
analyzing subsection (D) and (E) grounds with the standard used when analyzing a challenge to
subsection (O) grounds. See Tex. Fam. Code § 161.001(b)(1)(O) (failing to comply with
court-ordered service plan).
13
act or omission can support termination under subsection (D).” J.G. v. Texas Dep’t of Family &
Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.).
For purposes of analyzing endangering conduct by a parent under Subsection (E)
of the Texas Family Code, “the cause of the danger to the child must be the parent’s conduct
alone, as evidenced not only by the parent’s actions but also by the parent’s omission or failure
to act.” C.B. v. Texas Dep’t of Fam. & Protective Servs., 458 S.W.3d 576, 582 (Tex. App.—El
Paso 2014, pet. denied); see also S.R. v. Texas Dep’t of Family & Protective Servs.,
No. 03-21-00142-CV, 2021 WL 3437891, at *1 (Tex. App.—Austin Aug. 6, 2021, no pet.)
(mem. op.). “Additionally, termination under subsection (E) must be based on more than a
single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is
required.” C.B., 458 S.W.3d at 582.
Even if we construe Father’s argument as challenging the legal and factual
sufficiency of the evidence supporting the findings of endangering conduct and endangering
environment, the record belies that assertion. “As a general rule, conduct that subjects a child to
a life of uncertainty and instability endangers the physical and emotional well-being of a child.”
J.G., 592 S.W.3d at 524 (quoting In re J.O.A., 283 S.W.3d 336, 345 n.4 (Tex. 2009) (citation
omitted)). Neither Father nor Mother disputed that domestic violence between them occurred
throughout their relationship, spanning multiple separate instances from thirty days into their
relationship through times after the children had been removed. See J.G., 592 S.W.3d at 524
(“Evidence of domestic violence is also relevant to endangerment, even if the violence is not
directed at the child.”). Although the jury heard testimony that the physical altercations between
the parents never occurred directly in front of the children, there was also testimony that the
children were in the vicinity of the altercations and that Son repeated the phrase “open the damn
14
door” and exhibited signs of trauma response in play therapy sessions. See id. (explaining that
domestic violence “may produce an environment that endangers the physical or emotional
well-being of a child” supporting termination under subsection (D) (quoting In re P.W.,
579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.))).
Although in his testimony, Father generally presented himself as the victim of
Mother’s physical violence, other evidence in the record—including Mother’s affidavit in
support of her application for a protective order in 2019 and her testimony—could have been
reasonably weighed by the jury as showing Father was also at times the aggressor and had
committed physical violence against Mother. See In re C.E., 687 S.W.3d at 309. Furthermore,
evidence showed Father repeatedly dropped criminal charges brought against Mother after
various altercations, that domestic violence was present throughout the entirety of their
relationship, and that Mother and Father were unable to end their tumultuous relationship for
years even after the children had been removed. See In re I.G., 383 S.W.3d 763, 770 (Tex.
App.—Amarillo 2012, no pet.) (“[A] parent’s failure to remove himself and his children from a
violent relationship endangers the physical or emotional well-being of the children.”); see also
J.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00187-CV, 2022 WL 7163637, at
*12 (Tex. App.—Austin Oct. 13, 2022, no pet.) (mem. op.) (concluding that parent’s refusal to
live separately from other parent “despite evidence of extensive domestic violence” and
“minimizing the severity” of other party’s violent conduct supported endangering
environment finding). 6
6
Father also admitted to past marijuana use and continued to test positive for marijuana
on almost all of his drug tests after the children’s removal. See In re C.V.L., 591 S.W.3d 734,
751 (Tex. App.—Dallas 2019, pet. denied) (“Continued illegal drug use after a child’s removal is
15
Viewing all the evidence under the applicable standards of review, we must
conclude that it was legally and factually sufficient to support the endangerment findings against
Father. See Tex. Fam. Code § 161.001(b)(1)(D), (E); In re A.C., 560 S.W.3d at 630–31. Thus,
we overrule those two issues and therefore do not address his additional issues challenging the
evidence supporting the (N) or (O) statutory grounds. See In re N.G., 577 S.W.3d at 232–33.
MOTHER’S ANDERS BRIEF
Mother also appeals the trial court’s final order terminating her parental rights to
the children. See Tex. Fam. Code § 161.001.
Mother’s court-appointed attorney has filed a motion to withdraw supported by an
Anders brief, concluding that the appeal is frivolous and without merit. See Anders, 386 U.S. at
744; In re P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam) (approving use of Anders
procedure in appeals from terminations of parental rights). The brief meets the requirements of
Anders by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced on appeal. See 386 U.S. at 744; Taylor v. Texas Dep’t of
Protective & Regul. Servs., 160 S.W.3d 641, 646–47 (Tex. App.—Austin 2005, pet. denied).
Appellant’s counsel has certified to this Court that he has provided Mother with a copy of the
Anders brief and motion to withdraw and advised her of her rights to examine the appellate
record and to file a pro se brief. To date, Mother has not filed a pro se brief. The Department
has filed a response to the Anders brief, stating that it will not file a brief unless requested by
this Court.
conduct that jeopardizes parental rights and may be considered as establishing an endangering
course of conduct under subsection (E).”).
16
Upon receiving an Anders brief, we must conduct a full examination of the record
to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988);
Taylor, 160 S.W.3d at 647. We have conducted an independent review of the entire record,
including the Anders brief submitted on Mother’s behalf. We have found nothing in the record
that might arguably support an appeal, and we agree the appeal is frivolous and without merit.
We have specifically reviewed the findings as to Mother under subsections (D) and (E) of
Family Code section 161.001(b)(1), and we have found no nonfrivolous issues that could be
raised on appeal with respect to those findings. See In re N.G., 577 S.W.3d at 237. Accordingly,
we affirm the trial court’s order terminating Mother’s parental rights.
However, the Supreme Court of Texas has held that the right to counsel in suits
seeking the termination of parental rights extends to “all proceedings in th[e Supreme Court of
Texas], including the filing of a petition for review.” In re P.M., 520 S.W.3d at 27.
Accordingly, counsel’s obligation to Mother has not yet been discharged. See id. If after
consulting with counsel, Mother desires to file a petition for review, her counsel should timely
file with the Supreme Court “a petition for review that satisfies the standards for an Anders
brief.” See id. at 27–28. Counsel’s motion to withdraw therefore is denied.
CONCLUSION
We affirm the trial court’s final order terminating Father’s and Mother’s parental
rights to the children.
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Darlene Byrne, Chief Justice
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Before Chief Justice Byrne, Justices Smith and Theofanis
Affirmed
Filed: July 3, 2024
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