in the Interest of J. S. and M. S., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-18-00390-CV
________________________
IN THE INTEREST OF J.S. AND M.S., CHILDREN
On Appeal from the 154th District Court
Lamb County, Texas
Trial Court No. DCV-19481-16; Honorable Kara Darnell, Associate Judge Presiding
March 18, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, B.S., appeals the trial court’s order terminating his parental rights to his
children, J.S. and M.S.1 In presenting this appeal, appointed counsel has filed an Anders
brief2 in support of a motion to withdraw. We affirm.
1 To protect the privacy of the parent and children, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2018). See also TEX. R. APP. P. 9.8(b). The mother’s rights were
also terminated in this proceeding, but she did not appeal.
2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
BACKGROUND
J.S. and M.S. were born in March 2010, and January 2011, respectively. In June
2017, the Department received a complaint alleging physical neglect and neglectful
supervision of the children by their mother, D.S. During the investigation, D.S. admitted
that her boyfriend made her fearful for her life. She described incidents where she was
assaulted in front of her children. In addition, her home had no electricity, had a foul odor,
and looked like a “hoarder” home. The children’s father, B.S., no longer lived at the home
when they were removed. Although he was aware of the conditions under which the
children were living, he did not make any effort to help or visit them. He had decided it
was in his best interest to leave and had moved to Colorado.
The children were removed and placed with their aunt. At the time of the final
hearing, the children had bonded with their aunt and all their needs were being met. In
addition, their aunt expressed a long-term intent to keep the children if the trial court
terminated their father and mother’s parental rights.
In October 2018, a final hearing was held. By that time, J.S. was eight years old
and M.S. was seven years old. B.S. was not present at the hearing, but his court-
appointed attorney was in attendance and vigorously cross-examined witnesses on his
behalf. The Department’s evidence established that, while termination proceedings were
pending, B.S. executed a waiver of service and remained in Colorado. Following the
children’s removal, he began phoning the children each Sunday, but his calls dwindled to
once a month and then, not at all. After March 2018, he had no contact with the children
whatsoever. If their caseworker called him, he would speak with her, but he never initiated
any calls with the Department.
2
A service plan was designed for the return of his children. Under the plan, he was
required to sign a release of certain information, maintain stable employment, maintain
safe and stable housing, submit to random drug testing, complete parenting classes,
participate in individual counseling sessions, and maintain contact with the Department.3
B.S. never provided any evidence that he completed any of the requirements under the
plan. When the final hearing was held, he had not had any physical contact with the
children in three to four years and no telephonic contact in seven to eight months.
Based upon the evidence that B.S. had no contact with the children for at least
seven months, that the Department had made reasonable efforts to return the children to
him, and that he had not regularly visited or maintained significant contact with the
children and failed to demonstrate any ability to provide the children with a safe
environment, the trial court found by clear and convincing evidence that B.S. had
constructively abandoned the children while they were in the Department’s care. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2018).4 In addition, the trial court
found by clear and convincing evidence that B.S. failed to comply with the provision of a
court order that specifically established the actions necessary for him to obtain the return
of the children who had been under the Department’s supervision for in excess of nine
months as a result of the children’s removal. § 161.001(b)(1)(O). The trial court also
found that returning the children to B.S.’s care was not in their best interest due to his
continued absence from the children and his disinterest in taking steps or following a plan
3 A home study was performed in Colorado at a residence owned by a relative of B.S.; however,
that home study revealed that the owner smoked marijuana in the house on a daily basis.
4 All further references to “§” or to “section” are to the Texas Family Code unless otherwise
designated.
3
to mitigate the circumstances that necessitated their removal. See § 161.001(b)(1)(N),
(O).
Shortly after the final hearing, the trial court issued its order of termination finding
by clear and convincing evidence that termination was proper under section
161.001(b)(1)(N) and (O) and termination was in the children’s best interest. See §
161.001(b)(2). This appeal followed.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the parent-child relationship
if the Department establishes (1) one or more acts or omissions enumerated under
section 161.001(b)(1) and (2) termination of that relationship is in the child’s best interest.
See § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).
The burden of proof is clear and convincing evidence. § 161.206(a) (West Supp. 2018).
“‘Clear and convincing evidence’ means 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.” § 101.007 (West 2014).
Only one statutory ground is needed to support termination though the trial court
must also find that termination is in a child’s best interest. In re K.C.B., 280 S.W.3d 888,
894-95 (Tex. App.—Amarillo 2009, pet. denied). In reviewing a termination proceeding,
the standard for sufficiency of evidence is that discussed in In re K.M.L., 443 S.W.3d 101,
112-13 (Tex. 2014). In reviewing a best interest finding, appellate courts consider, among
other evidence, the factors set forth in Holley, 544 S.W.2d at 371-72.
4
Anders v. California
Although the Texas Supreme Court has yet to directly consider the issue, for many
years Texas appellate courts including this court have found the procedures set forth in
Anders v. California applicable to appeals of orders terminating parental rights. See In re
A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.).5 The brief filed in this
appeal meets the requirements of Anders by presenting a professional evaluation of the
record and demonstrating why there are no arguable grounds for reversal of the trial
court’s termination order.
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record, and in her opinion, the record reflects no
potentially plausible basis to support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex.
1998). Counsel complied with the requirements of Anders by providing a copy of the brief
along with the appellate record and notifying B.S. of his right to file a pro se response if
he desired to do so. Id. B.S. did not file a response. The Department notified this court
they would not file a response to the Anders brief unless specifically requested to do so.
No such request was made.
5 See also In re R.M.C., 395 S.W.3d 820 (Tex. App.—Eastland 2013, no pet.); In re K.R.C., 346
S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.); In the Interest of D.D., 279 S.W.3d 849 (Tex. App.—
Dallas 2009, pet. denied); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—Beaumont 2005, no
pet.); Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005,
pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Porter v.
Texas Dep’t of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no
pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838,
841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.);
In re P.M.H., No. 06-10-00008-CV, 2010 Tex. App. LEXIS 3330, at *2 (Tex. App.—Texarkana May 6, 2010,
no pet.) (mem. op.); In the Interest of R.R., No., 04-03-00096-CV, 2003 Tex. App. LEXUS 4283, at *10-12
(Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.).
5
ANALYSIS
As in a criminal case, we too have independently examined the entire record to
determine whether there are any non-frivolous issues that might support the appeal. See
Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford
v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Based on this record, we conclude
that a reasonable fact finder could have formed a reasonable belief or conviction that
grounds for termination existed and that termination of B.S.’s parental rights was in the
children’s best interests. See § 161.001(b)(1)(N), (O), (2). See also Gainous v. State,
436 S.W.2d 137, 138 (Tex. Crim. App. 1969); In re K.C.B., 280 S.W.3d at 894-95. Having
reviewed the entire record and counsel’s brief, we agree with counsel that there are no
plausible grounds for appeal.
CONCLUSION
We affirm the trial court’s order terminating B.S.’s parental rights.6
Patrick A. Pirtle
Justice
6 An Anders motion to withdraw filed in the court of appeals, in the absence of additional grounds
for withdrawal, may be premature. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Courts
have a duty to see that withdrawal of counsel will not result in prejudice to the client. Id. In light of In re
P.M., we call counsel’s attention to the continuing duty of representation through the exhaustion of
proceedings, which may include the filing of a petition for review in the Texas Supreme Court. Counsel has
filed a motion to withdraw on which we take no action.
6