in the Interest of E. O., a Child

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN THE INTEREST OF E. O., A § No. 08-19-00261-CV
CHILD.
§ Appeal from the
§ 65th District Court
§ of El Paso County, Texas
§ (TC#2018DCM1157)
§
OPINION
Appellants G.O. (Alleged Father) and H.A (Mother) have filed appeals from a final order
terminating their parental rights to E.O. We affirm the termination order as to Mother and Alleged
Father.
I.
BACKGROUND
Factual History
E.O. was born in late December 2017. In January 2018, the Department received an intake
alleging that Mother and Alleged Father were neglectfully supervising E.O. There were also
allegations of domestic violence between Mother and Alleged Father. Specifically, in February
2018, Mother told police that Alleged Father, in the presence of E.O., had punched her twice with
a right closed fist to the top right side of her head and kicked her once in the stomach and once on
her right calf after she fell down; an officer observed “visible irritation on stated area.” Alleged
Father later pleaded guilty in March 2018 to assault with bodily injury to a family member
(Mother) and was sentenced to 25 days in the El Paso County Jail.
According to a Family Service Plan Evaluation that was admitted at trial without objection,
Mother tested positive for marijuana and “another drug” at E.O.’s birth. Ten days after E.O.’s
birth, when Mother returned for E.O.’s PKU test, records noted she was “wearing a large coat,
grinding her teeth and not speaking” and she “did not seem to understand what was being told to
her in regards to how to care for [E.O.]” Alleged Father “appeared to have not bathed in days.”
E.O., who was “shivering” and “jittery,” was wrapped in a blanket and wearing no clothes in
weather that was in the 50’s. Mother and Alleged Father stated that they had financial support and
everything they needed to take care of E.O., and that a grandmother would be caring for the child.
Hospital staff asked them to speak with a social worker, but they left before doing so.
On February 23, 2018, the Department filed an original petition for child protection and
termination of parental rights. E.O. was then nearly two months old. The petition identified G.O.
as the “alleged father.” The record on appeal shows that Mother filed a statement of indigence
and an application for a court-appointed attorney, but Alleged Father did not. On May 14, 2018,
the State Registrar for the Texas Department of State Health Services certified that Alleged Father
had not filed a notice of intent to claim paternity with the paternity registry.
During the pendency of the suit, Alleged Father was required to complete a Battering
Intervention and Prevention Program (BIPP) and obtain mental health services, among other
requirements. Alleged Father completed an online course, but a caseworker was unable to verify
if Alleged Father met the mental health services requirement because he did not sign a release.
Alleged Father was ordered to submit to random drug testing; but he did not comply, informing a
2
caseworker that his hair was not long enough to be able to do a drug test. In March 2019, Alleged
Father told the caseworker that he did not want to have any further contact with her, at which point
she stopped contact with him. In April and June of 2019, Mother tested positive for and admitted
to having used methamphetamine a few weeks earlier. While termination proceedings remained
pending, Mother and Alleged Father lived together in five or six different residences, including
several motel and hotel rooms.
Procedural History
The trial court held a final hearing on July 26, 2019. At the start and before witness
testimony, counsel for Mother moved for a continuance on the basis that his client had advised
him that she had found a place to live. Father’s counsel also requested a continuance stating that
he had not had any contact with his client in the last 30 days. The trial court denied both parties’
requests for continuances. The Department called caseworker Gloria Aguero as a witness. Aguero
testified that Mother partially complied with the service plan ordered and initially completed
inpatient treatment, but later she was unsuccessfully discharged from outpatient treatment for
nonparticipation. Aguero further testified that she was only able to view one of the five or six
temporary residences where Mother had resided, but Aguero did not believe that the residence was
appropriate for a one-year old, as the home was not clean, there were stairs that did not have a gate
which created a fall hazard, and there was a hole in the door to the water heater. According to
Aguero, Mother admitted to using methamphetamine after completing inpatient services but while
participating in outpatient services. Aguero opined that termination of Mother’s parental rights
would be in E.O.’s best interest in order to provide E.O. with a stable home and to meet his basic
needs.
3
Aguero testified that she personally had not had contact with Alleged Father since March
2019, but the Department remained in contact with him. Aguero further explained that Alleged
Father was offered transportation to attend drug testing, but he refused to go. According to Aguero,
Alleged Father did not regularly and consistently visit with the child, and he did not have
significant contact with him outside the visits. Aguero opined that if Alleged Father were
adjudicated to be E.O.’s biological father, that in such case, termination of his parental rights would
be in E.O.’s best interest.
After the Department completed its direct examination of Aguero, counsel for Alleged
Father asked for a brief recess stating, “since my client has appeared.” The trial court recessed to
allow counsel to confer with Father. When trial resumed, the trial court noted for the record that
both Mother and Alleged Father had not returned. Father’s counsel reported that the bailiff had
asked for his client’s purse and belongings and he could see through the window of the door that
Mother and Father were waiting at the elevator appearing to be leaving. Neither Mother nor
Alleged Father ever returned or offered any testimony at the proceeding.
Javier Castillo, a caseworker assistant who supervised the visits between E.O., Mother, and
Alleged Father for approximately a year and a half, also testified at the hearing. He testified that
Mother and Alleged Father were not bonded to the child; the child would be “on his own” during
the visits and would move away from the parents when they would try to hold him. Elaborating,
Castillo described that, at times, the child would become upset during visits and turn to Castillo
for comfort, not to Mother or Alleged Father. According to Castillo, Mother did not address E.O.’s
needs during visits and had to be reminded to change E.O.’s diaper or to provide him with a snack,
and she would not intervene when E.O. would try to stick his fingers into electrical outlets. Castillo
did not observe any unusual behaviors from Alleged Father. Alleged Father did not attend any
4
visits with E.O. alone, but always came with Mother, though Mother did attend some visits by
herself.
The Department’s final witness was CASA volunteer Sue Gremar. She testified that E.O.
had been placed with foster parents who expressed a desire to adopt him and he was progressing
normally with his verbal and physical development. She also testified that she had attended seven
or eight visitation sessions with E.O., Mother and Alleged Father, and that her observations were
similar to those of Castillo. Alleged Father did not show up to some visits despite Mother’s desire
for him to attend. Gremar opined that Mother and Alleged Father’s rights should be terminated
because they had not shown interest in being with him or shown that they knew how to parent him.
She also testified: “There is a general lack of interest I think with the father. He will come during
the visits, he tends to restrict [E.O.]’s motions and movements. He has restricted Mom from
talking during a visit.” Before the close of testimony, neither Mother’s nor Alleged Father’s
counsel called any witnesses on their behalf.
Following the hearing, the trial court signed an order terminating Mother’s parental rights
on four grounds: (1) knowingly placing or allowing the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child, TEX.FAM.CODE
ANN. § 161.001(b)(1)(D); (2) engaging in conduct or knowingly placing the child with persons
who engaged in conduct which endangers the physical or emotional well-being of the child,
TEX.FAM.CODE ANN. § 161.001(b)(1)(E); (3) failed to comply with the court ordered plan,
TEX.FAM.CODE ANN. § 161.001(b)(1)(O); and (4) using a controlled substance in a manner than
endangered the health or safety of the child coupled with a failure to complete a court-ordered
substance abuse treatment program or continued use after competition of a court-ordered substance
abuse treatment program, TEX.FAM.CODE ANN. § 161.001(b)(1)(P).
5
The trial court summarily terminated Alleged Father’s rights, finding that Alleged Father
did not respond to the Department’s petition by timely filing an admission of paternity or by filing
a counterclaim for paternity or for voluntary paternity to be adjudicated under Chapter 160 of the
Texas Family Code before the final hearing in this suit, nor did Alleged Father register with the
paternity registry.
This joint appeal followed.
II.
DISCUSSION
Both Mother and Alleged Father filed notices of appeal in this case. We deal first with
Alleged Father’s appellate claims. In his sole appellate issue, Alleged Father maintains that the
trial court erred by granting summary termination of his parental rights because the Department
failed to provide sufficient proof that he had not registered with the paternity registry, and because
his participation in some Department service plan activities show that even in the absence of any
explicit acknowledgement of paternity over E.O., he impliedly acknowledged paternity through
his course of conduct. We disagree that the Department failed to meet its initial evidentiary burden
and that Alleged Father’s course of conduct on this record rises to the level of an unequivocal
admission of paternity.
A.
Alleged Father’s Appeal
1.
Jurisdiction
6
The dissent has raised the issue of whether the Court has jurisdiction to entertain Alleged
Father’s appeal. Because the issue of subject-matter jurisdiction is fundamental, we deal with this
issue first as a threshold matter.
This is not the first time the Court has addressed the issue of jurisdiction in this case. After
initially dismissing Alleged Father’s appeal on September 25, 2019, in response to what appeared
to be an untimely filed notice of appeal,1 a majority of the dismissal panel2 voted to grant Father’s
motion to reconsider the dismissal decision and reinstate Alleged Father’s appeal, finding that
Alleged Father had timely filed his notice of appeal based on the following: (1) that, pursuant to
TEX.R.APP.P. 25.1(a), Mother had filed a timely and earlier-filed notice of appeal; (2) that
TEX.R.APP.P. 25.1(b) provides that the filing of a notice of appeal by any party invokes the
appellate court’s jurisdiction over all parties to the trial court’s judgment or order being appealed
from; (3) that, pursuant to TEX.R.APP.P. 25.1(c), Alleged Father is required to file his own notice
of appeal when seeking favorable relief from the trial court’s judgment or order; (4) that
TEX.R.APP.P. 26.1(d) allowed Father to file his notice of appeal within 20 days of Mother’s notice
of appeal; (5) that TEX.R.APP.P. 26.3 permitted the Court to further grant a 15-day extension
beyond the initial 20 days; and (6) that Father timely filed his notice of appeal within the extended
period. See In re E.O., No. 08-19-00233-CV, 2019 WL 6111391, at *1-*2 (Tex.App.—El Paso
Nov. 18, 2019, no pet.)(op. on motion to reconsider by Palafox, J., joined by Barajas, S.J.). The
dissent opined that Father’s notice of appeal was untimely because, under TEX.R.APP.P. 26.1(b)
and TEX.R.APP.P. 28.1(b), the timeline for filing a notice of appeal in an accelerated appeal was
1
See In re E.O., No. 08-19-00233-CV, 2019 WL 4668524, at *1 (Tex.App.—El Paso, Sept. 25, 2019, mem. op.
withdrawn).
2
The Honorable Richard Barajas, senior chief justice, sat as the third panelist when the dismissal opinion was issued
in this case. The Court later assigned the Honorable Ann Crawford McClure, senior chief justice, to sit as the third
panelist in this case. She currently serves as the third panelist for this opinion.
7
20 days from final judgment with one 15-day extension permitted, and Father’s notice of appeal
was filed outside that 35-day window. See id., at * 5-*6 (Rodriguez, J., dissenting).
Under the law-of-the-case doctrine, a court of appeals is ordinarily bound by its initial
decision on a question of law in subsequent stages of litigation. See Roman v. Ramirez, 573 S.W.3d
341, 348 (Tex.App.—El Paso 2019, pet. denied). The previous panel’s decision is a decision by
this Court. See TEX.R.APP.P. 41.1(a)(dealing with panel decisions). And while the application of
the law-of-the-case doctrine lies within the discretion of the Court depending on the particular
circumstances surrounding that case, there must be “something more than a mere disagreement
with the prior decision” to justify a departure from a previous decision in the same case. Roman,
573 S.W.3d at 348. The previous panel decided that this Court had jurisdiction. Given the
inconsistency that a departure from the original panel decision would create for the parties,
particularly at this late stage of litigation, we find that the previous panel’s decision binds this
panel under law of the case.3 Jurisdiction has been established. We proceed to review Alleged
Father’s appeal on its merits.
2.
Merits
Standard of Review
We will affirm a parental termination order if the evidence is both legally and factually
sufficient to support any alleged statutory ground the trial court relied upon in terminating the
3
The Fifth Circuit has adopted an internal practice stating that a previous panel decision binds future panels’ decisions
on a point of law absent a change in the law or an en banc decision of the Fifth Circuit, though a secondary source
indicates that there seems to be no such similar practice or rule explicitly applicable in Texas courts of appeals.
Compare In re Frazin, 732 F.3d 313, 319 (5th Cir. 2013) with George E. Dix and John M. Schmolesky, 43B TEXAS
PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 55:133, at 247 (3d ed. 2011)(noting at least one incident wherein
a panel of a court of appeals “disapproved” another panel’s ruling). Still, even absent a mandatory rule like the Fifth
Circuit’s, similar comity considerations should apply here, especially given that we are not considering a new or
different case.
8
parental rights as well as the finding of best interest. J.S. v. Texas Department of Family and
Protective Services, 511 S.W.3d 145, 159 (Tex.App.—El Paso 2014, no pet.). When reviewing
the legal sufficiency of the evidence in a termination case, we consider all of the evidence in the
light most favorable to the trial court’s finding, “to determine whether a reasonable trier of fact
could have formed a firm belief or conviction that its finding was true.” In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). We give deference to the fact finder’s conclusions, indulge every reasonable
inference from the evidence in favor of that finding, and presume the fact finder resolved any
disputed facts in favor of its findings, so long as a reasonable fact finder could do so. Id. We
disregard any evidence that a reasonable fact finder could have disbelieved, or found to have been
incredible, but we do not disregard undisputed facts. Id.In a factual sufficiency review, the inquiry is whether the evidence is such that a fact finder
could reasonably form a firm belief or conviction about the challenge findings. See In re J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). We must give due consideration to evidence that the fact finder
could reasonably have found to be clear and convincing. Id. A court of appeals should consider
whether disputed evidence is such that a reasonable fact finder could not have resolved that
disputed evidence in favor of its finding. Id. If the disputed evidence that a reasonable fact finder
could not have credited in favor of the finding is so significant that a fact finder could not
reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.Analysis
Section 161.002(b)(1) provides for summary termination of an alleged father’s rights in the
absence of a timely filing of an admission of paternity or a counterclaim for paternity. In re
O.R.M., 559 S.W.3d 738, 741 (Tex.App.—El Paso 2018, no pet.). The rights of an alleged father
may be terminated if:
9
(1) after being served with citation, he does not respond by timely filing an
admission of paternity or a counterclaim for paternity under Chapter 160;
(2) the child is over one year of age at the time the petition for termination of the
parent-child relationship or for adoption is filed, he has not registered with the
paternity registry under Chapter 160, and after the exercise of due diligence by
the petitioner:
(A) his identity and location are unknown; or
(B) his identity is known but he cannot be located;
(3) the child is under one year of age at the time the petition for termination of the
parent-child relationship or for adoption is filed and he has not registered with
the paternity registry under Chapter 160; or
(4) he has registered with the paternity registry under Chapter 160, but the
petitioner’s attempt to personally serve citation at the address provided to the
registry and at any other address for the alleged father known by the petitioner
has been unsuccessful, despite the due diligence of the petitioner.
TEX.FAM.CODE ANN. § 161.002(b).
By filing an admission or counterclaim for paternity, the alleged father is given the right to
require the petitioner to prove by clear and convincing evidence one of the predicate grounds set
forth in Section 161.001(1) and that termination is in the best interest of the child. In re O.R.M.,
559 S.W.3d at 741. If the trial court erroneously grants summary termination after the alleged
father sufficiently admits paternity, reversal and remand for further proceedings is the proper
remedy. In re C.M.C., 273 S.W.3d 862, 883 (Tex.App.—Houston [14th Dist.] 2008, no pet.).
Here, the trial court’s order recites that Alleged Father’s rights were terminated pursuant
to Section 161.002(b)(1) (failing to file an admission of paternity or counterclaim for paternity)
and Section 161.002(b)(3) (failing to register with the paternity registry in a case involving a child
under one year of age). It is undisputed that Alleged Father did not file in the trial court any
pleadings or counterclaims in which he asserts his paternity.
10
Alleged Father mounts two attacks against the summary termination order. First, Alleged
Father argues that the Department failed to provide legally sufficient threshold evidence
establishing grounds for summary termination because, he asserts, the registry search entered into
evidence at trial was only valid as of the date of the search and was not necessarily valid as to the
date of trial. He argues that summary termination here was improper because there was no
affirmative evidence showing that the registry information was accurate as of the date of trial. We
disagree.
As of May 14, 2018, the paternity registry search indicated that Alleged Father had not
filed a notice of intent to claim paternity concerning E.O., the child born to Mother on December
25, 2017. This search was conducted after the Department had filed its original petition for
termination on February 23, 2018 and its first amended petition on February 26, 2018. E.O. was
two months of age at the time the Department’s petition was filed. Thus, the record shows there
is evidence that the child was under one year of age at the time the petition for termination was
filed and Alleged Father had not registered his paternity of E.O. See TEX.FAM.CODE ANN. §
161.002(b)(1) and (3). 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. See R.H. v. Tex. Dep’t of Family & Protective Servs.,
550 S.W.3d 631, 639 (Tex.App.—El Paso 2013, no pet.)(certificates of paternity registry searches
which demonstrated alleged father’s absence of registration were legally sufficient to terminate
rights).
Alleged Father’s complaint about the date of the certificate goes to the weight of the
evidence, not its legal sufficiency. The argument that Alleged Father’s registry status could have
changed in the period between when the Department conducted the search and the date of trial,
11
absent any evidence that supports this assertion, amounts to mere surmise or speculation which
does not meet the more-than-a-scintilla standard necessary to create a fact issue that would
preclude summary termination. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004)(evidence offered to prove a vital fact that does nothing more than “create a mere surmise or
suspicion of its existence” does not meet the scintilla standard and is no evidence at all). If Alleged
Father had, indeed, registered with the paternity registry in the interim period between the date the
Department searched the registry and the date of trial, then he could have offered his own evidence
negating the Department’s evidence as a matter of law, which would preclude summary
termination. Instead, the record before us is devoid of any evidence showing he in fact registered
after the registry search was conducted. As such, Alleged Father’s failure to register with the
paternity registry has been established and has not been rebutted.
By his second attack, Alleged Father claims that regardless of his lack of registration,
nonetheless, he sufficiently asserted his paternity of the child by informal means so as to preclude
a summary termination of his rights. As to this argument, we first note that once the Department
established an absence of registration, the burden shifted back to Alleged Father to provide some
evidence that he asserted his paternity in some manner to defeat summary termination and thereby
require the Department to prove predicate grounds and best interest.
Although Section 161.002(b)(1) requires an “admission of paternity,” this provision does
not necessarily require that an alleged biological father file a formal acknowledgment of paternity
in accordance with Section 160.302. See In re O.R.M., 559 S.W.3d at 743. Our sister courts have
found that summary termination is defeated when, inter alia, a father writes a letter to the trial
court in which he states he is the child’s father;4 when a father who questions paternity throughout
4
See In re K.W., 138 S.W.3d 420, 430 (Tex.App.—Fort Worth 2004, pet. denied); In re U.B., No. 04-12-00687-CV,
2013 WL 441890, at *2 (Tex.App.—San Antonio Feb. 6, 2013, no pet.)(mem. op.).
12
a pending case files a general denial and fills out an appointed counsel request form in which he
states he is the child’s parent;5 when a father acknowledges paternity to the Department and agrees
to take a paternity test;6 when a father appears at trial and admits he is the child’s father in open
court;7 or when the father files an answer and a sworn affidavit identifying himself as the child’s
father.8
Although informal methods have been accepted, not all conduct or actions of an alleged
parent during the pendency of a termination of parental rights case qualifies as an informal
admission of paternity. In O.R.M., we addressed the nature of evidence required for an informal
“admission of paternity” sufficient to preclude summary termination such that the Department had
to meet its burden to prove a predicate ground under Section 161.001(1) and further establish the
best interest of the child. Id. In O.R.M., we held that an alleged father’s signed, handwritten
notation contained in the comments section of a family service plan was not an “unequivocal
admission of paternity” despite the fact that the alleged father’s note included general references
to “my kids” and expressed a desire to protect the children from their mother. Id. Importantly,
what we found particularly lacking in O.R.M. was the fact that the alleged father’s note on the
service plan not only failed to include an admission that he was in fact the biological father of each
of the three children who were the subject of the case, but also failed to express any opposition to
the termination of any rights he may have had to the children. Id. With his signed notation, we
5
In re V.S.R.K., No. 02-08-047-CV, 2009 WL 736751, at *4 (Tex.App.—Fort Worth Mar. 19, 2009, no pet.)(mem.
op.).
6
In re K.E.S., No. 02-11-00420-CV, 2012 WL 4121127, at *3 (Tex.App.—Fort Worth Sept. 20, 2012, pet.
denied)(mem. op.).
7
In re S.J.R.-Z., 537 S.W.3d 677, 681-82 (Tex.App.—San Antonio 2017, pet. denied).
8
In re C.M.C., 273 S.W.3d at 879.
13
found that alleged father, at most, had simply offered to step in if the mother did not comply with
requirements imposed on her for the Department’s return of the children to her. Id.Here, Alleged Father concedes there is no note or other writing in the record that would
arguably show that he informally acknowledged his paternity of E.O. or expressed that he wanted
to oppose termination of any rights he may have with respect to E.O. Nonetheless, Alleged Father
contends that he effectively admitted his paternity and opposition to termination not by “mere
words on a piece of paper,” but rather, by his “eighteen months of involvement in a CPS case.”
Specifically, he argues that his participation in certain visitations, evaluations, classes and
hearings, all taken together, evidence a “man acknowledging his responsibility as a father.” Other
than make an assertion that he participated in services, however, Alleged Father does not cite to
any record evidence directing our attention to conduct on his part, while participating in those
services or being involved in the case, in which he demonstrated an “admission of paternity,” or
showed his opposition to termination of any rights he may have with respect to E.O. See
TEX.R.APP.P. 38.1(i)(appellant’s brief must cite to the record). Moreover, Alleged Father provides
no legal authority in support of his argument, nor do we find any by our independent search, that
provides that participation in certain services alone without an assertion of paternity or opposition
to termination would suffice to overcome findings under Section 161.002(b)(1) to preclude
summary termination.
Contrary to Alleged Father’s characterization of his case involvement, our record includes
testimony from CASA volunteer Sue Gremar that in observing the family’s interactions, neither
Alleged Father nor Mother showed interest in being with E.O., and that Alleged Father showed a
“general lack of interest” in E.O. during visits. The caseworker also testified that Alleged Father
refused drug testing and informed her that he did not want to have any further contact with her
14
while his case remained pending. Additionally, Alleged Father did not file any responsive
pleadings in this case, nor did he make a full appearance at the final termination hearing.
Instead, the reporter’s record of the hearing showed that Alleged Father entered the
courtroom after the hearing had already begun and only remained briefly without ever making any
statement to the court neither directly nor through his attorney. Following a brief recess asked for
by his counsel, Alleged Father and Mother both exited the courtroom without offering testimony
or making further comment, headed for the courthouse elevators, and did not return for the
remainder of the hearing. Alleged Father’s conduct in this instance falls in stark contrast with that
described in Toliver v. Texas Dep’t of Family and Protective Services, 217 S.W.3d 85, 105
(Tex.App.—Houston [1st Dist.] 2006, no pet.). In Toliver, the Houston court addressed a
circumstance in which an alleged father who had not filed any document with the court clerk
nonetheless appeared at trial prior to the termination of his parental rights, unequivocally asserted
he was the child’s father, and requested that his parental rights not be terminated. Id. The court
held that father’s “appearing at trial before his rights were terminated and admitting that he was in
fact [the child’s] father, triggered his right to require [the Department] to prove that he engaged in
one of the types of conduct listed in Section 161.001(1) before his parental rights could be
terminated.” Id.Given that Alleged Father made no representations in the trial court or otherwise of record
that he was E.O.’s father, that he admitted his paternity, or that he opposed termination of rights
he may have to E.O., we hold that the trial court had legally and factually sufficient evidence to
support its determination under subsection 161.002(b)(1) that appellant “[did] not respond by
timely filing an admission of paternity or a counterclaim for paternity under Chapter 160” of the
15
Texas Family Code. See TEX.FAM. CODE ANN. § 161.002(b)(1); In re O.R.M., 559 S.W.3d at 743;
Toliver, 217 S.W.3d at 105. Alleged Father’s Issue One is overruled.
B.
Mother’s Appeal
Appellant Mother is represented on appeal by court-appointed counsel who has filed a brief
in accordance with the requirements of Anders v. California, 386 U.S. 738, 741-44 (1967). Court-
appointed counsel has concluded that, after a thorough review of the record, Mother’s appeal is
frivolous and without merit.
In Anders, the Supreme Court recognized that counsel, though appointed to represent the
appellant in an appeal from a criminal conviction, had no duty to pursue a frivolous matter on
appeal. Anders, 386 U.S. at 744. Thus, counsel was permitted to withdraw after informing the
court of his conclusion and the effort made in arriving at that conclusion. Id. The procedures set
forth in Anders apply to an appeal from a case involving the termination of parental rights when
court-appointed counsel has determined that the appeal is frivolous. See In re P.M., 520 S.W.3d
24, 27 n.10 (Tex. 2016)(per curiam)(recognizing that Anders procedures apply in parental
termination cases); In re J.B., 296 S.W.3d 618, 619 (Tex.App.—El Paso 2009, no pet.).
Counsel’s brief meets the requirements of Anders by containing a professional evaluation
of the record and demonstrating that there are no arguable grounds for reversal of the termination
order. Upon receiving an Anders brief, we are required to conduct a full examination of all the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80
(1988). We have thoroughly reviewed the entire record, including the Anders brief, and we have
found nothing that would arguably support an appeal. We agree with counsel’s professional
assessment that the appeal is frivolous and without merit. Because there is nothing in the record
16
that might arguably support the appeal, a further discussion of the arguable grounds advanced in
the brief filed by court-appointed counsel would add nothing to the jurisprudence of the state. The
final order terminating Mother’s parental rights is affirmed.
In the prayer section of the Anders brief, counsel for Mother asks this Court to relieve her
of this appointment and allow her to withdraw. Based on a recent change in Texas Supreme Court
precedent, we cannot do so at this time. Upon determining that counsel has fully complied with
the requirements of Anders and Kelly and finding that the appeal is frivolous following an
independent review of the record, intermediate appellate courts typically grant motions to
withdraw in criminal cases. Granting the motion to withdraw relieves counsel of any obligation
to continue with a frivolous appeal. In re D.C., 573 S.W.3d 860, 864 (Tex.App.—El Paso 2019,
no pet.). The Texas Supreme Court has determined, however, that we must deny counsel’s motion
to withdraw in this parental rights termination case because a parent’s statutory right to counsel in
suits seeking termination of parental rights extends to all proceedings in the Texas Supreme Court,
including the filing of a petition for review, and counsel’s “belief” that the appeal is frivolous does
not constitute “good cause” for withdrawal. In re P.M., 520 S.W.3d at 27; see also TEX.FAM.CODE
ANN. § 107.016(3)(in a suit by a governmental entity seeking the termination of parental rights, an
attorney appointed to serve as an attorney ad litem for a parent or alleged father continues to serve
in that capacity until the suit is dismissed, the date all appeals from the termination order are
exhausted, or the date the attorney is relieved of his duties or replaced by another attorney after a
finding of good cause is rendered by the court).
Accordingly, we must deny counsel’s motion to withdraw. See In re P.M., 520 S.W.3d at
27. In the event Mother advises appointed counsel that she wishes to challenge our decision by
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filing a petition for review, “counsel’s obligations can be satisfied by filing a petition for review
that satisfies the standards for an Anders brief.” Id. at 27-28.
III.
CONCLUSION
The judgment of the trial court is affirmed as to both Mother and Alleged Father.
GINA M. PALAFOX, Justice
January 17, 2020
Before Rodriguez, J., Palafox, J., and McClure, C.J. (Senior Judge)
McClure, C.J. (Senior Judge), sitting by assignment
McClure, C.J. (Senior Judge), concurring
Rodriguez, J., dissenting
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