In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00319-CV
IN THE INTEREST OF L.J., A CHILD
On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2013-508,256, Honorable Kara Darnell, Presiding
January 15, 2015
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant R.J. challenges the trial court’s order terminating his parental rights to
the child, L.J.1 Counsel for R.J. has filed a brief pursuant to Anders v. California, 386
U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). Finding no arguable grounds for
appeal, we grant counsel’s motion to withdraw and affirm the trial court’s judgment.
1 To protect the child’s privacy, we will refer to appellant and the child by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b). Background
L.J. was born in June 2013, three months premature. His unmarried mother,
A.Y., named R.J. as the child’s father. Both were high school students. A.Y. used
marijuana during her pregnancy and L.J. tested positive for marijuana in her system at
birth. On pleadings filed by the Department of Family and Protective Services, L.J. was
discharged from the hospital to a licensed foster home in August 2013.
R.J. was served with notice of the parental rights termination proceedings in
September 2013, was appointed an attorney ad litem in October, and by answer filed in
January 2014, denied his paternity of L.J. Although R.J. agreed and was ordered to
submit to paternity testing, he appeared for none of the scheduled paternity tests. R.J.
has never met or visited L.J., did not cooperate with or maintain contact with the
Department, did not sign the service plan and did not complete the services required in
the plan.
The final hearing on the parental rights of A.Y. and R.J. to L.J. was held in
August 2014. A.Y. appeared in person with her attorney, and voluntarily relinquished
her parental rights to L.J. She has not appealed. R.J.’s appointed attorney appeared
for the hearing, but R.J. did not attend. At the close of the hearing, the trial court found
that clear and convincing evidence supported termination of R.J.’s parental rights. His
appointed counsel filed notice of appeal.2
2 The trial court appointed R.J.’s trial counsel to represent him on appeal. Although we do not say a trial court errs by appointing trial counsel as appellate counsel, we discourage it.
2 Analysis
Standards of Review and Applicable Law
Pursuant to Anders, R.J.’s court-appointed appellate counsel has filed a brief
stating that he has diligently reviewed the record and the applicable law and concluding
that, in his professional opinion, the record shows no arguably reversible error. See In
re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding);
Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); 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), R.J.’s counsel has 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 on appeal, (2)
served his brief, motion to withdraw and copy of the appellate record on R.J. and (3)
informed R.J. of his right to review the record and to file a pro se response. 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. By letter, this Court has also informed R.J. of his right to file a pro se
response to his counsel’s Anders brief and motion. R.J. has not filed a response. See In
re Schulman, 252 S.W.3d at 409.
3 The United States Supreme Court has advised appellate courts that when the
court receives a "frivolous appeal" brief, it 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, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); see also In re G.M. & X.M., No. 13-08-
00569-CV, 2009 Tex. App. LEXIS 6509, at *1 (Tex. App.—Corpus Christi Aug. 20,
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.
Due process requires that termination of parental rights 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)). 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,
a court reviews 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
4 of proof." In re J.F.C., 96 S.W.3d at 266. 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.).
The trial court found R.J.’s parental rights, if any, were subject to termination
under section 161.002(b)(1) of the Texas Family Code, which provides that the "rights of
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-14-00319-CV
IN THE INTEREST OF L.J., A CHILD
On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2013-508,256, Honorable Kara Darnell, Presiding
January 15, 2015
MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant R.J. challenges the trial court’s order terminating his parental rights to
the child, L.J.1 Counsel for R.J. has filed a brief pursuant to Anders v. California, 386
U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed. 2d 493 (1967). Finding no arguable grounds for
appeal, we grant counsel’s motion to withdraw and affirm the trial court’s judgment.
1 To protect the child’s privacy, we will refer to appellant and the child by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b). Background
L.J. was born in June 2013, three months premature. His unmarried mother,
A.Y., named R.J. as the child’s father. Both were high school students. A.Y. used
marijuana during her pregnancy and L.J. tested positive for marijuana in her system at
birth. On pleadings filed by the Department of Family and Protective Services, L.J. was
discharged from the hospital to a licensed foster home in August 2013.
R.J. was served with notice of the parental rights termination proceedings in
September 2013, was appointed an attorney ad litem in October, and by answer filed in
January 2014, denied his paternity of L.J. Although R.J. agreed and was ordered to
submit to paternity testing, he appeared for none of the scheduled paternity tests. R.J.
has never met or visited L.J., did not cooperate with or maintain contact with the
Department, did not sign the service plan and did not complete the services required in
the plan.
The final hearing on the parental rights of A.Y. and R.J. to L.J. was held in
August 2014. A.Y. appeared in person with her attorney, and voluntarily relinquished
her parental rights to L.J. She has not appealed. R.J.’s appointed attorney appeared
for the hearing, but R.J. did not attend. At the close of the hearing, the trial court found
that clear and convincing evidence supported termination of R.J.’s parental rights. His
appointed counsel filed notice of appeal.2
2 The trial court appointed R.J.’s trial counsel to represent him on appeal. Although we do not say a trial court errs by appointing trial counsel as appellate counsel, we discourage it.
2 Analysis
Standards of Review and Applicable Law
Pursuant to Anders, R.J.’s court-appointed appellate counsel has filed a brief
stating that he has diligently reviewed the record and the applicable law and concluding
that, in his professional opinion, the record shows no arguably reversible error. See In
re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding);
Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); 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), R.J.’s counsel has 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 on appeal, (2)
served his brief, motion to withdraw and copy of the appellate record on R.J. and (3)
informed R.J. of his right to review the record and to file a pro se response. 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. By letter, this Court has also informed R.J. of his right to file a pro se
response to his counsel’s Anders brief and motion. R.J. has not filed a response. See In
re Schulman, 252 S.W.3d at 409.
3 The United States Supreme Court has advised appellate courts that when the
court receives a "frivolous appeal" brief, it 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, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); see also In re G.M. & X.M., No. 13-08-
00569-CV, 2009 Tex. App. LEXIS 6509, at *1 (Tex. App.—Corpus Christi Aug. 20,
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.
Due process requires that termination of parental rights 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)). 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,
a court reviews 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
4 of proof." In re J.F.C., 96 S.W.3d at 266. 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.).
The trial court found R.J.’s parental rights, if any, were subject to termination
under section 161.002(b)(1) of the Texas Family Code, which provides that the "rights of
an alleged biological father may be terminated if: (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." TEX. FAM. CODE ANN. § 161.002(b)(1) (West 2008). If the
alleged father does not file such an admission or counterclaim, section 161.002(b)(1)
permits the trial court to summarily terminate his parental rights without requiring the
Department to prove that the father engaged in one of the types of conduct listed in
section 161.001(1) of the Code or that termination is in the best interest of the child. In
re A.D., No. 04-02-00310-CV, 2002 Tex. App. LEXIS 9345, at *4 (Tex. App.—San
Antonio Dec. 18, 2002, no pet.) (mem. op.).
The record shows R.J. was personally served with citation at his high school in
September 2013. An attorney was appointed for R.J. in October 2013. In January
2014, an answer was filed on behalf of R.J.; however, the answer did not contain an
admission of paternity or a counterclaim for paternity. Rather, R.J. denied he is the
5 father of L.J.3 He never personally appeared at a hearing in the case. At the final
hearing, the court took judicial notice of a Certificate of Paternity Registry Search that
appears in the record. Signed by the State Registrar, it certifies “that a diligent search
of the paternity registry has been made and no notice of intent to claim paternity has
been located concerning [L.J.]. . . .” See TEX. FAM. CODE ANN. § 161.002(e) (West
2008). The record thus supports the trial court’s findings under section 161.002(b)(1).
See In the Interest of K.R.L., No. 01-14-00213-CV, 2014 Tex. App. LEXIS 8488, at *25-
26, (Tex. App.—Houston [1st Dist.] Aug. 5, 2014) (mem. op.) (finding evidence sufficient
under section 161.002(b)(1) where alleged father made no representations in the trial
court he was the child’s father and refused to participate in court-ordered DNA testing);
In the Interest of D.T., No. 02-13-00331-CV, 2014 Tex. App. LEXIS 789, at *7-8 (Tex.
App—Fort Worth Jan. 23, 2014, no pet) (mem. op.) (affirming termination under section
161.002(b)(1) where father had not written to the trial court claiming paternity, did not
appear at trial to testify, did not offer to take a paternity test and did not make any effort
to see the child outside a single visit). See also In re K.G., 350 S.W.3d 338, 350-51
(Tex. App.—Fort Worth 2011, pet. denied) (reviewing the statutory scheme of chapter
161).
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues which might support the appeal.
Stafford, 813 S.W.2d at 511. Based on the record in this case, we find the evidence is
3 Compare In re K.E.S., No. 02-11-00420-CV, 2012 Tex. App. LEXIS 7990, at *4 (Tex. App.—Fort Worth Sept. 20, 2012, pet. denied) (mem. op. on reh'g) (father admitted paternity under section 161.002 when, although he did not file a counterclaim of paternity or for voluntary paternity under chapter 160, he responded to a CPS letter acknowledging that he believed the child to be his and cooperated when asked to take a paternity test, which was admitted without objection at trial, allowing the issue to be tried by consent).
6 legally and factually sufficient to support the trial court’s findings and its termination of
R.J.’s parental rights.4 Further, we find no other potentially plausible issues which could
support an appeal. After reviewing the record and brief, we agree with counsel that
there are no arguably meritorious grounds for appeal. Accordingly, counsel's motion to
withdraw is granted and the trial court's order terminating the parental rights of R.J. to
L.J. is affirmed.
James T. Campbell Justice
4 The court also found that clear and convincing evidence supported determinations that R.J.’s parental rights, if any, should be terminated under Family Code section 161.001(1)(O), providing for termination when a parent fails to comply with the provisions of a court order, and that termination was in the child’s best interests. TEX. FAM. CODE ANN. §§ 161.001(1)(O), 161.001(2) (West 2013).