in the Interest of S.N.G. and D.D.S., Children

• Court: Court of Appeals of Texas
• Decided: August 1, 2006
• Docket: 07-06-00037-CV
• Status: Published

Opinion

NO. 07-06-0037-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 1, 2006 ______________________________

In re S.N.G. AND D.D.S. _________________________________

FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2003-524,599; HON. KEVIN HART, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

Maria E. Vargas appeals from an order terminating the parental relationship between

herself and her children S.N.G. and D.D.S. The trial court appointed Vargas counsel to

represent her on appeal. Thereafter, her appointed counsel filed an Anders1 brief and

motion to withdraw.2 In the brief, appellate counsel certified that she 1) diligently reviewed

the appellate record and 2) concluded the appeal was meritless. So too did counsel state

that she informed her client, Vargas, of her conclusion and of Vargas’ right to review the

record and file a pro se response to the brief and motion. This court also contacted

Vargas, in writing, to inform her of counsel’s motion and brief and of Vargas’ right to

1 An ders v. Ca lifornia, 386 U.S . 738, 87 S .Ct.13 96, 18 L.E d.2d 493 (196 7).

2 The trial co urt appointed appellate cou nsel to represent Va rgas via the directives contained in the Texas Family Code. T E X . F A M . C O D E A N N . §107.013 (V ernon Supp. 2005) (stating that an indig ent parent is entitled to app ointed co unse l in proceed ings to term inate the parental relations hip). respond thereto after reviewing the record. Vargas failed to file a response. For the

reasons which follow, we affirm the judgment.

Application of Anders

As previously mentioned, counsel was appointed to represent Vargas on appeal and

ultimately filed an Anders brief and motion to withdraw. In doing so, she advised the court

and her client not only that she diligently reviewed the record and applicable authorities but

also concluded that there existed no reversible error. So too did she explain why the issues

her research disclosed as potentially viable were not. Moreover, Vargas was afforded

opportunity to respond to the brief and motion but failed to do so.

Next, as we are obligated to do when the proceeding is criminal, we conducted our

own independent review of the record to discover arguable grounds of appeal. Stafford v.

State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon conducting that review, we

determined that Vargas 1) had notice of the grounds proffered for terminating her parental

rights except for one which included her failure to comply with a court order, 2) failed to

appear at the hearing and 3) had opportunity to defend against those grounds through the

use of counsel, the presentation of evidence, and the cross-examination of adverse

witnesses. Furthermore, the evidence presented at the trial legally and factually supported

the court’s findings that Vargas 1) knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endangered the physical or emotional well-

being of the children and 2) engaged in conduct or knowingly placed the children with

persons who engaged in conduct which endangered the physical or emotional well-being

of the children. However, we do not find in the record a petition alleging the failure to

comply with a court order as a ground for termination. Because Vargas did not receive

2 notice of the latter allegation, the trial court cannot rely on it as a basis for termination. See

In the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.–Amarillo 1980, no writ)

(stating that the statutory grounds for termination must be stated in the petition). Therefore,

we will reform the judgment accordingly.

The record also contains evidence upon which the court could clearly and

convincingly find that termination of Vargas’ parental rights was in the best interest of the

children. Finally, with regard to the arguable grounds raised and then negated by appellate

counsel, we agree that they were meritless.

Having found no arguable merit to the appeal, we reform the judgment by removing

paragraph 6.2.3 (involving appellant’s alleged failure to comply with a court order) as a

ground warranting termination and affirm the order as modified. So too do we grant

counsel’s motion to withdraw.

Brian Quinn Chief Justice