In the Interest of X.J., a Child v. the State of Texas ( 2023 )


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  •              In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-23-00305-CV
    ___________________________
    IN THE INTEREST OF X.J., A CHILD
    On Appeal from the 233rd District Court
    Tarrant County, Texas
    Trial Court No. 233-718905-22
    Before Sudderth, C.J.; Kerr and Walker, JJ.
    Memorandum Opinion by Justice Kerr
    MEMORANDUM OPINION
    The Texas Department of Family and Protective Services (Department) filed a
    petition to terminate the parent–child relationship between Father and his son X.J.1
    The trial court terminated Father’s parental rights under Family Code Section
    161.001(b) based on constructive abandonment, failure to follow court orders, and
    the child’s best interest, as well as under Family Code Section 161.002(b)(1) for failing
    to timely file an admission of paternity or counterclaim for paternity. See 
    Tex. Fam. Code Ann. §§ 161.001
    (b)(1)(N), (O), (2), .002(b)(1). Father timely appealed from the
    trial court’s order of termination.2
    Father’s appointed appellate counsel has filed a brief asserting that his appeal is
    frivolous. See Anders v. California, 
    386 U.S. 738
    , 744–45, 
    87 S. Ct. 1396
    , 1400 (1967); see
    also In re K.M., 
    98 S.W.3d 774
    , 776–77 (Tex. App.—Fort Worth 2003, no pet.)
    (holding that Anders procedures apply in parental-rights termination cases). The brief
    meets the Anders requirements by presenting a professional evaluation of the record
    and demonstrating why there are no arguable grounds to be advanced on appeal.
    Father was given the opportunity to obtain a copy of the appellate record and to file a
    1
    In a termination-of-parental-rights case, we use aliases for the names of the
    children and their parents. See 
    Tex. Fam. Code Ann. § 109.002
    (d); Tex. R. App. P.
    9.8(b)(2).
    In the same case, the trial court terminated the parental rights of the child’s
    2
    mother to X.J. and his three younger siblings and of the parental rights of the other
    children’s father; neither of these parents has appealed.
    2
    pro se response, but he has not done so. The Department has declined to file a
    response.
    When an Anders brief is filed, we must independently examine the appellate
    record to determine if any arguable grounds for appeal exist. In re C.J., No. 02-18-
    00219-CV, 
    2018 WL 4496240
    , at *1 (Tex. App.—Fort Worth Sept. 20, 2018, no pet.)
    (mem. op.); see also Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991); Mays
    v. State, 
    904 S.W.2d 920
    , 922–23 (Tex. App.—Fort Worth 1995, no pet.). We also
    consider the Anders brief itself and any pro se response. In re K.M., No. 02-18-00073-
    CV, 
    2018 WL 3288591
    , at *10 (Tex. App.—Fort Worth July 5, 2018, pet. denied)
    (mem. op.); see In re Schulman, 
    252 S.W.3d 403
    , 408–09 (Tex. Crim. App. 2008) (orig.
    proceeding).
    We have carefully reviewed counsel’s brief and the appellate record. The record
    reflects that no one offered into evidence the certificate of paternity registry search
    and that no one asked the trial court to take judicial notice of the case’s file, which
    contained that certificate. Cf. In re E.O., 
    595 S.W.3d 858
    , 866 (Tex. App.—El Paso
    2020, no pet.) (“The registry certificate entered into evidence here was sufficient to
    show lack of registration because it constituted more than a scintilla of evidence on
    the absence of registration of paternity by Alleged Father.”); In re V.S.R.K., No. 2-08-
    047-CV, 
    2009 WL 736751
    , at *3 (Tex. App.—Fort Worth Mar. 19, 2009, no pet.)
    (mem. op.) (noting that the trial court took judicial notice of the “certificate of
    paternity registry” on file with the court).
    3
    Further, Father filed a general denial in which he asserted that he was X.J.’s
    father, and in his “request for counsel/affidavit of indigence,” Father asserted that he
    was “a parent of the child/ren named above.” See E.O., 595 S.W.3d at 867 (noting
    that Section 161.002(b)(1)’s required admission does “not necessarily require that an
    alleged biological father file a formal acknowledgment of paternity in accordance with
    Section 160.302”); see also V.S.R.K., 
    2009 WL 736751
    , at *4 (same). In V.S.R.K., we
    concluded that the trial court had erred by finding the appellant failed to admit
    paternity when—as here—he asserted his paternity in documents filed in the trial
    court. 
    2009 WL 736751
    , at *3–5. Because the evidence is legally and factually
    insufficient to support the trial court’s Section 161.002(b)(1) finding, we delete it from
    the judgment. See 
    id.
    Other than deleting the Section 161.002(b)(1) finding, we agree with counsel
    that this appeal is without merit. See Bledsoe v. State, 
    178 S.W.3d 824
    , 827 (Tex. Crim.
    App. 2005); In re D.D., 
    279 S.W.3d 849
    , 850 (Tex. App.—Dallas 2009, pet. denied).
    Therefore, we modify the trial court’s judgment to delete that finding and affirm the
    trial court’s judgment as modified.3
    3
    Counsel did not file a motion to withdraw. Accordingly, he remains appointed
    in this appeal through proceedings in the supreme court unless otherwise relieved
    from his duties for good cause in accordance with Family Code Section 107.016. See
    
    Tex. Fam. Code Ann. § 107.016
    ; In re P.M., 
    520 S.W.3d 24
    , 27 (Tex. 2016).
    4
    /s/ Elizabeth Kerr
    Elizabeth Kerr
    Justice
    Delivered: December 7, 2023
    5
    

Document Info

Docket Number: 02-23-00305-CV

Filed Date: 12/7/2023

Precedential Status: Precedential

Modified Date: 12/11/2023