in the Interest of B.W., B.W., and R.C. Jr., Children

• Court: Court of Appeals of Texas
• Decided: March 12, 2013
• Docket: 13-13-00033-CV
• Status: Published

Opinion

NUMBER 13-13-00033-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF B.W., B.W., AND R.C. JR., CHILDREN

On appeal from the County Court at Law No. 1 of Calhoun County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Rodriguez Appellant M.W. challenges the trial court's order granting appellee's, the Texas

Department of Family and Protective Services, petition to terminate her parental rights to

B.W., B.W., and R.C. Jr., children. Counsel for M.W. has filed an Anders brief.

Appellant R.C. Sr. challenges the trial court's order granting the Department's petition to

terminate his parental rights to R.C. Jr, a child. By one issue, R.C. Sr. argues that the

evidence was insufficient to support the trial court's termination of his parental rights on the statutory grounds enumerated in the court's order. We affirm, in part, and reverse

and remand, in part.

I. Termination of M.W.'s Rights

Concluding that the appeal in her case would be frivolous, counsel for M.W. has

filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We

affirm, on Anders grounds, as to the termination of M.W.'s parental rights.

A. Compliance with Anders v. California

Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), M.W.'s

court-appointed appellate counsel has filed a brief with this Court, stating that he has

diligently reviewed the record and the applicable law and concluding that, in his

professional opinion, the record shows no reversible error. See In re Schulman, 252

S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (citing Hawkins v. State,

112 S.W.3d 340, 343–44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State,

813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); see also Porter v. Tex. Dep't

of Protective & Regulatory Servs., 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003,

no pet.) ("[W]hen appointed counsel represents an indigent client in a

parental-termination appeal and concludes that there are no non-frivolous issues for

appeal, counsel may file an Anders-type brief.").

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), M.W.'s counsel has, thus, carefully discussed why, under controlling

authority, there are no errors in the trial court's judgment. Counsel has informed this

Court that he has: (1) examined the record and found no arguable grounds to advance

2 on appeal, (2) served his brief and motion to withdraw on M.W., and (3) informed M.W. of

her right to review the record and to file a pro se response.1 See Anders, 386 U.S. at

744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23.

More than an adequate period of time has passed, and M.W. has not filed a pro se

response. See In re Schulman, 252 S.W.3d at 409.

B. Independent Review

The United States Supreme Court has advised appellate courts that upon

receiving a "frivolous appeal" brief, they must conduct "a full examination of all the

proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S.

75, 80 (1988); see also In re G.M. & X.M., No. 13–08–00569–CV, 2009 WL 2547493, at

*1 (Tex. App.—Corpus Christi Aug. 20, 2009, no pet.) (mem. op.); In re M.P.O., No.

13–08–00316–CV, 2009 WL 39097, at *1 (Tex. App.—Corpus Christi Jan. 8, 2009, no

pet.) (mem. op.). We have reviewed the entire record and counsel's brief, and we have

found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d

824, 826–28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in

the opinion that it considered the issues raised in the briefs and reviewed the record for

reversible error but found none, the court of appeals met the requirement of Texas Rule of

Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509.

1 In the criminal context, the Texas Court of Criminal Appeals has held that "the pro se response [to a 'frivolous appeal' brief] need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (quoting Wilson v. State, 955 S.W.2d 693, 696–97 (Tex. App.—Waco 1997, no pet.)); see also In re K.M.B., No. 03–08–0041–CV, 2008 WL 2852301, at *1 (Tex. App.—Austin July 25, 2008, no pet.) (mem. op.) (addressing issues raised in a pro se response and a pro se letter after appellate counsel filed an Anders brief in a parental-rights termination case). 3 II. Termination of R.C. Sr.'s Rights

By one issue, R.C. Sr. argues that the trial court erred in terminating his parental

rights on the grounds specified in its order. In the termination order, the trial court gave

the following as its statutory grounds for termination of R.C. Sr.'s rights: "[R.C. Sr.] has

knowingly engaged in criminal conduct that has resulted in his conviction of an offense

and confinement or imprisonment. [R.C. Sr.] showed conscious disregard of parental

responsibilities and voluntarily abandoned his child." R.C. Sr. argues the trial court's

order is ambiguous and does not correspond to any of the statutory grounds for

termination enumerated in the family code. See TEX. FAM. CODE ANN. §

161.001(1)(A)–(T) (West Supp. 2011). R.C. Sr. then argues that, to the extent the trial

court's order references subsection (1)(N) (constructive abandonment) or (1)(Q)

(incarceration for not less than two years from the date of the petition), the evidence at the

termination hearing was insufficient to support either ground.

With regard to R.C. Sr.'s argument that the order is ambiguous, we disagree as to

the first sentence of the above-quoted excerpt, which clearly tracks subsection (1)(Q).

Subsection (1)(Q) provides that parental rights may be terminated if the parent has

"knowingly engaged in criminal conduct that has resulted in the parent's . . . conviction of

an offense . . . and . . . confinement or imprisonment and inability to care for the child for

not less than two years from the date of filing the petition." See id. § 161.001(1)(Q). As

such, we first address whether the evidence at the termination hearing was sufficient to

support this statutory ground of termination.

Involuntary termination of parental rights involves fundamental constitutional rights

4 and divests the parent and child of all legal rights, privileges, duties, and powers normally

existing between them, except for the child's right to inherit from the parent. Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W.3d 776, 778 (Tex.

App.—Corpus Christi 2006, no pet.). "Consequently, termination proceedings must be

strictly scrutinized, and 'involuntary termination statutes are strictly construed in favor of

the parent.'" In re D.S.P., 210 S.W.3d at 778 (quoting Holick, 685 S.W.2d at 20)).

Due process requires that termination be supported by clear and convincing

evidence. In re E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.) (citing In

re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)); In re D.S.P., 210 S.W.3d at 778; see TEX.

FAM. CODE ANN. § 161.001. This intermediate standard falls between the

preponderance of the evidence standard of civil proceedings and the reasonable doubt

standard of criminal proceedings. In re E.M.E., 234 S.W.3d at 73. It is defined as 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." TEX. FAM. CODE

ANN. § 101.007 (West 2008).

In reviewing the legal sufficiency of the evidence supporting parental termination,

we look at all the evidence in the light most favorable to the finding to determine whether

a reasonable trier of fact could have "formed a firm belief or conviction about the truth of

the matter on which the movant in a termination proceeding bore the burden of proof." In

re D.S.P., 210 S.W.3d at 778 (citing In re J.F.C., 96 S.W.3d at 266). We assume that the

fact finder resolved disputed facts in favor of its finding if it was reasonable to do so and

disregard all evidence that a reasonable fact finder could have disbelieved or found to be

5 incredible. Id.; In re E.M.E., 234 S.W.3d at 73.

In reviewing the evidence for factual sufficiency, we give due deference to the fact

finder's findings and do not supplant its judgment with our own. In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a fact finder

could reasonably form a firm conviction or belief about the truth of the matter on which the

movant bore the burden of proof. In re C.H., 89 S.W.3d 17, 28 (Tex. 2005); In re T.B.D.,

223 S.W.3d 515, 517 (Tex. App.—Amarillo 2006, no pet.).

Before terminating parental rights, the trial court must find (1) that the parent

committed an act prohibited by section 161.001(1) of the family code, and (2) that

termination is in the best interests of the child. TEX. FAM. CODE ANN. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Here, as discussed above, R.C. Sr. challenges only the

statutory ground for termination; he does not challenge the trial court's finding that

termination is in R.C. Jr.'s best interests.

Subsection (1)(Q), one of the grounds relied upon by the trial court in this case,

provides that a court may order termination if it is shown by clear and convincing evidence

that the parent "knowingly engaged in criminal conduct that has resulted in the

parent's . . . conviction of an offense . . . and . . . confinement or imprisonment and

inability to care for the child for not less than two years from the date of filing the petition."

See TEX. FAM. CODE ANN. § 161.001(1)(Q). Subsection (1)(Q) applies prospectively to

the two-year period following the filing of the petition, not retrospectively to the two-year

6 period before the petition was filed.2 In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)

(citing In re A.V., 113 S.W.3d 355, 360 (Tex. 2003)).

Here, the Department filed its petition for termination on September 2, 2011. The

only clear evidence in the record regarding the length of R.C. Sr.'s incarceration came

from R.C. Sr.'s testimony.3 On direct examination by the Department, R.C. Sr. testified

that he had been convicted of robbery in October 2007 and placed on probation. His

probation for that offense was revoked in December 2008, and he was sentenced to five

years' incarceration at that point. He testified that he is scheduled for release on April

26, 2013. He clarified that this was not a potential parole date that was dependent upon

a discretionary decision by the parole board, but was instead the date when he would be

discharged for completion of his sentence.

On appeal, the Department argues that the April 2013 date was merely a possible

parole date and was, therefore, no guarantee that R.C. Sr. would be released from prison

at that time. See In re H.R.M., 209 S.W.3d at 109 ("Mere introduction of parole-related

evidence, however, does not prevent a factfinder from forming a firm conviction or belief

that the parent will remain incarcerated for at least two years."). However, from our

review of the record, it appears this was not the Department's position at the time of the

hearing. In its closing argument, the Department seemed to acknowledge that April

2 We note that at the August 2012 termination hearing, the Department misrepresented this law to the trial court. In its closing argument, the Department represented to the trial court that the two-year period included in subsection (1)(Q) was the two years prior to the petition being filed. In other words, despite the 2003 Texas Supreme Court precedent expressly stating otherwise, the Department informed the trial court that subsection (1)(Q) applied retrospectively to the two-year period before the petition was filed. 3 R.C. Sr.'s judgment of conviction was not entered as evidence, nor was there any testimony by case workers or other officials regarding R.C. Sr.'s conviction and sentence length. 7 2013 was when R.C. Sr. would be released from prison, not merely up for discretionary

parole.4

Thus, having reviewed the entire record, we find that the only evidence relevant to

the length of R.C. Sr.'s incarceration indicated that he would be released in April 2013,

which would be less than two years from the September 2, 2011 termination petition.

See TEX. FAM. CODE ANN. § 161.001(1)(Q); see also In re H.R.M., 209 S.W.3d at 108.

Based on this evidence, no reasonable trier of fact could have formed a firm belief or

conviction that the State established the subsection (1)(Q) statutory ground for

termination, and the evidence supporting this ground was therefore legally insufficient.

See In re D.S.P., 210 S.W.3d at 778.

However, as to the second sentence of the complained-of excerpt—that R.C. Sr.

"showed conscious disregard of parental responsibilities and voluntarily abandoned his

child"—we agree with R.C. Sr. that this sentence is impermissibly vague. Indeed, it

touches upon at least six of the statutory grounds enumerated in section 161.001(1).

See id. §§ 161.001(1)(A), (B), (C), (D), (F), (N). Without more specificity, we cannot

ascertain which statutory ground the trial court was referencing in its second sentence.

Because of the ambiguity in the second statutory ground, we conclude the most

appropriate disposition under the facts of this case is to remand the case to the trial

court.5 See TEX. R. APP. P. 43.3(b).

4 In his closing, counsel for the Department stated, "[R.C. Sr.]'s not scheduled for release until April of [2013]." 5 We note that our customary procedure when faced with such an ambiguity would be to abate the case, order the trial court to clarify its order, and upon receipt of the clarified order, reinstate the appeal. However, the recently-enacted Texas Rule of Judicial Administration 6.2 imposes an absolute 180-day deadline for final disposition of cases involving the termination of parental rights. See TEX. R. JUD. ADMIN. 8 We sustain R.C. Sr.'s appellate issue.

III. Conclusion

In accordance with our foregoing Anders review, we affirm the judgment of the trial

court as to the termination of M.W.'s parental rights. M.W.'s attorney has asked this

Court for permission to withdraw as counsel for M.W. See Anders, 386 U.S. at 744; see

also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776,

779–80 (Tex. App.—Dallas 1995, no pet.) (noting that "[i]f an attorney believes the appeal

is frivolous, he must withdraw from representing the appellant. To withdraw from

representation, the appointed attorney must file a motion to withdraw accompanied by a

brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We

grant counsel's motions to withdraw, carried with the case on February 22, 2013. Within

five days of the date of this Court’s opinion, counsel is ordered to send a copy of the

opinion and judgment to M.W. and to advise her of her right to pursue a petition for review

in the Supreme Court of Texas. 6 See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex.

App.—Houston [1st Dist.] 2003, no pet.).

6.2(a). In this case, the district clerk did not send this Court the notice of appeal until January 23, 2013—despite its being filed with the trial court on September 14, 2012. Thus, under rule 6.2, we are required to issue a final disposition in this case on or before March 13, 2013. For this reason, in this case, rule 6.2 precludes the Court from pursuing its normal course of action with regard to ambiguous trial court orders, and we are, instead, reversing the trial court's order on the basis of the ambiguity and remanding the case to the trial court for further proceedings. See TEX. R. APP. P. 43.4(b) ("When reversing a trial court's judgment, the court must render the judgment the trial court should have rendered, except when . . . the interests of justice required a remand for another trial."). 6 No substitute counsel will be appointed. Should M.W. wish to seek further review of this case by the Supreme Court of Texas, she must either retain an attorney to file a petition for review or file a pro se petition for review. Any petition for review must be filed within forty-five days after the date of either this opinion or the last ruling by this Court on all timely filed motions for rehearing or en banc reconsideration. TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of rule 53.2 of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 53.2. 9 Having concluded that the evidence was insufficient to support the subsection

(1)(Q) ground for termination but that the order's remaining statutory ground was

ambiguous, we reverse the trial court's judgment as to the termination of R.C. Sr.'s rights

and remand the case for further proceedings in accordance with this opinion.7

NELDA V. RODRIGUEZ Justice

Delivered and filed the 12th day of March, 2013.

7 We do not alter the portion of the judgment regarding conservatorship of R.C. Jr. Reversal of a trial court's termination judgment does not affect the trial court's conservatorship appointment absent assigned error. In re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007) (reversal of termination judgment does not affect unchallenged conservatorship determination). 10