In the Interest of L.S.S., a Child v. the State of Texas ( 2024 )

NO. 12-24-00039-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE
L.S.S., A CHILD § COUNTY COURT AT LAW NO. 2
§ ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
M.S. appeals the termination of his parental rights. His counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
M.S. is the father of L.S.S. and D.G. is the child’s mother. 1 On March 30, 2023, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of a child, for conservatorship, and for termination of M.S.’s and D.G.’s parental
rights. The Department was appointed temporary managing conservator of L.S.S., D.G. was
appointed possessor conservator of L.S.S, and M.S. was granted supervised visitation of L.S.S.
The trial court further ordered M.S. undergo a psychological evaluation. Prior to trial, M.S.’s in-
person visitation was suspended, but he was allowed virtual visitation once per week observed
by a therapist.
At the bench trial, the evidence showed that M.S. previously took L.S.S. to the Texas
Children’s Emergency Center for possible poisoning. Both M.S. and L.S.S. believed that various
1
D.G. is not a party to this appeal.
1
people were attempting to poison their food. M.S. repeatedly claimed that the Drug Enforcement
Agency (DEA) was attempting to poison him, that D.G. worked with the DEA to poison him,
and that D.G. had someone break into his home to poison his water. M.S. was diagnosed with
delusional disorder, persecutory type, after his psychological evaluation. The psychologist
testified that M.S. “believes people are out to get him” and that passing those delusions onto his
child would be harmful to the child. D.G. also testified that M.S. has been keeping L.S.S. away
from her for the last three years, despite D.G.’s efforts to locate the child. She further testified
that M.S. had been violent in the past.
At the conclusion of trial, the trial court found, by clear and convincing evidence, that
M.S. engaged in one or more of the acts or omissions necessary to support termination of his
parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b). 2 The
trial court also found that termination of the parent-child relationship between M.S. and L.S.S. is
in the child’s best interest. Based on these findings, the trial court ordered that the parent-child
relationship between M.S. and L.S.S. be terminated. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
M.S.’s counsel filed a brief in compliance with Anders, stating that he diligently
reviewed the appellate record and is of the opinion that the record reflects no reversible error and
that there is no error upon which an appeal can be predicated. This Court has previously held
that Anders procedures apply in parental rights termination cases when the Department has
moved for termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.).
In compliance with Anders, counsel’s brief presents a professional evaluation of the record
demonstrating why there are no reversible grounds on appeal and referencing any grounds that
might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mays v.
State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no pet.).
As a reviewing court, we must conduct an independent evaluation of the record to
determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We have
carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that
2
On the record, the trial court stated it was terminating pursuant to (D), (E), and (O) of Texas Family Code
Section 161.001(b); however, the written order only reflects subsections (D) and (E).
2
might arguably support the appeal. 3 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs.,
160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied).
DISPOSITION
We agree with M.S.’s counsel that the appeal is wholly frivolous. In In re P.M., the
Texas Supreme Court held that the right to counsel in suits seeking the termination of parental
rights 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). Accordingly, counsel’s obligations to
M.S. have not yet been discharged. See id. If M.S., after consulting with counsel, desires to file a
petition for review, counsel should timely file with the Texas Supreme Court “a petition for
review that satisfies the standards for an Anders brief.” Id.; see A.C. v. Tex. Dep’t of Family &
Protective Servs., No. 03-16099543-CV, 2016 WL 5874880, at *1 n.2 (Tex. App.—Austin Oct.
5, 2016, no pet.) (mem. op.). Accordingly, we affirm the trial court’s judgment. See TEX. R.
APP. P. 43.2.
Opinion delivered May 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
3
Counsel for M.S. certified that he provided M.S. with a copy of the brief and informed him that he had the
right to file his own brief and took concrete measures to facilitate review of the record. See Kelly v. State, 436
S.W.3d 313, 319 (Tex. Crim. App. 2014); In the Matter of C.F., No. 03-18-00008-CV, 2018 WL 2750007, at *1
(Tex. App.—Austin June 8, 2018, no pet.) (mem. op.). M.S. was given the time to file his own brief, but the time for
filing such brief has expired and we received no pro se brief.
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 31, 2024
NO. 12-24-00039-CV
IN THE INTEREST OF L.S.S., A CHILD
Appeal from the County Court at Law No 2
of Angelina County, Texas (Tr.Ct.No. CV-00151-23-03)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.