in the Interest of D.J.C., a Child

• Court: Court of Appeals of Texas
• Decided: February 20, 2019
• Docket: 10-18-00320-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00320-CV

IN THE INTEREST OF D.J.C., A CHILD

From the 74th District Court McLennan County, Texas Trial Court No. 2017-3406-3

MEMORANDUM OPINION

Kristy S. appeals from a judgment that terminated the parent-child relationship

between her and D.J.C. In presenting this appeal, counsel for Kristy filed a brief pursuant

to Anders v. California asserting that he has conducted a review of the record and found

no arguable issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,

18 L.Ed.2d 493 (1967). We affirm.

The procedures set forth in Anders v. California are applicable to appeals of orders

terminating parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002,

order) (per curiam) (applying Anders to parental termination appeals). See also Taylor v.

Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-647 (Tex. App.—Austin 2005, pet. denied). Counsel certifies he has diligently researched the law applicable to

the facts and issues and candidly discusses why, in his professional opinion, the appeal

is frivolous. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). The brief filed meets the

requirements of Anders by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds to be advanced on appeal.

Additionally, Kristy’s attorney advised her that he had filed the brief pursuant to Anders,

that Kristy had the right to review the record and file a pro se response on her own behalf,

and provided Kristy with a copy of the record. Although given the opportunity, Kristy

did not file a response with this Court.

The order of termination recites that Kristy:

knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child pursuant to § 161.001 (b) (1) (D), Texas Family Code;

engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well- being of the children, pursuant to § 161.001 (b) (1) (E), Texas Family Code;

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months and: (1) the Department has made reasonable efforts to return the child to the mother; (2) the mother has not regularly visited or maintained significant contact with the child; and (3) the mother has demonstrated an inability to provide the child with a safe environment, pursuant to § 161.001 (b) (1) (N), Texas Family Code;

TEX. FAM. CODE ANN. § 161.001(1)(D), (E), and (N) (West 2014).

In the Interest of D.J.C. Page 2 In the Anders brief, counsel analyzes the legal and factual sufficiency of the

evidence to support termination. Counsel acknowledges that only one statutory ground

is necessary to support an order of termination in addition to a finding that termination

is in the child's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Counsel

further evaluates the legal and factual sufficiency of the evidence to support a finding

that termination was in the best interest of the child. Counsel’s brief evidences a

professional evaluation of the record for error, and we conclude that counsel performed

the duties required of an appointed counsel.

Due process requires application of the clear and convincing standard of proof in

cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263

(Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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. See TEX. FAM. CODE ANN. § 101.007 (West 2008). See

also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

The Family Code permits a court to order termination of parental rights if the

petitioner establishes one or more acts or omissions enumerated under subsection (1) of

the statute and also proves that termination of the parent-child relationship is in the best

interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012); Holley v.

Adams, 544 S.W.2d 367, 370 (Tex. 1976). We agree with counsel’s evaluation that there is

clear and convincing evidence to support termination for Kristy.

In the Interest of D.J.C. Page 3 Notwithstanding the sufficiency of the evidence to support termination under

section 161.001(1), we must also find clear and convincing evidence that termination of

the parent-child relationship was in the child's best interest. See TEX. FAM. CODE ANN. §

161.001(2). Evidence that proves one or more statutory grounds for termination may also

constitute evidence illustrating that termination is in the child's best interest. See In re

C.H., 89 S.W.3d at 28. There is a long-standing non-exhaustive list of factors for a court

to consider in deciding the best interest of a child in a termination case. See Holley, 544

S.W.2d at 371-72.

We agree with counsel’s evaluation that there is clear and convincing evidence

under the appropriate legal and factual sufficiency standards for the jury to have

determined that termination of the parent-child relationship was in the best interest of

D.J.C.

Upon receiving a "frivolous appeal" brief, this Court must conduct a full

examination of all proceedings to determine whether the case is wholly frivolous. See

Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also In re

M.A.R., No. 10-10-00237-CV, 2011 Tex. App. LEXIS 3596, at *2 (Tex. App.—Waco May 11,

2011, no pet.) (mem. op.). After our review of the entire record and counsel’s brief, we

agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178

S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Accordingly, we affirm the trial court's

judgment.

In the Interest of D.J.C. Page 4 If Kristy, after consulting with counsel, desires to file a petition for review, counsel

is still under a duty to timely file with the Texas Supreme Court “a petition for review

that satisfies the standards for an Anders brief.”1 See In re P.M., 520 S.W.3d 24, 27-28 (Tex.

2016).

AL SCOGGINS Senior Justice

Before Chief Justice Gray, Justice Davis, and Senior Justice Scoggins2 Affirmed Opinion delivered and filed February 20, 2019 [CV06]

1 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders proceedings.

2The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003 (West 2013).

In the Interest of D.J.C. Page 5