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

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
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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.
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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).
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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).
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: December 7, 2023
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