in the Interest of J.D., Jr., a Child ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-18-00408-CV
________________________
IN THE INTEREST OF J.D., JR., A CHILD
On Appeal from the County Court at Law Number 1
Randall County, Texas
Trial Court No. 72,943-L1; Honorable Jack Graham, Presiding
April 15, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, J.D., Sr. appeals the trial court’s order terminating his parental rights to
his child, J.D., Jr.1 In presenting this appeal, appointed counsel has filed an Anders2 brief
in support of a motion to withdraw. We affirm.
1 To protect the privacy of the parties, we refer to them by their initials. See TEX. FAM. CODE ANN.
§ 109.002(d) (West Supp. 2018). See also TEX. R. APP. P. 9.8(b). The mother’s rights were also terminated
in this proceeding, but she did not appeal.
2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
BACKGROUND
J.D., Jr. was born February 23, 2016. In September 2017, law enforcement
officers were called to the residence where he was living with his mother, M.C. When
they arrived, M.C. complained that she was being choked by J.D., Sr. During the incident,
J.D., Jr. was in her arms. In the parents’ three-year relationship, domestic violence was
a recurring event in the home.
In November 2017, officers were again called to the residence on a domestic
violence complaint involving J.D., Sr. Relying on help from a friend, M.C. escaped from
the residence with J.D., Jr. before the police arrived. Once they were away from the
residence, M.C. asked her friend to stop and pull over. When she refused, M.C.
threatened her with a tire iron. The friend complied with M.C.’s demand and pulled over.
M.C. then removed J.D., Jr. from the car and ran down the street where she was
apprehended by law enforcement officers. She was arrested for child endangerment,
evading arrest, and possession of marijuana. Shortly thereafter, the Texas Department
of Family and Protective Services filed its Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship.
Based upon that petition, the child was removed from his parents and placed in foster
care. At the time of his removal, J.D., Jr. tested positive for marijuana and cocaine.
The Department’s evidence at the final hearing established that J.D., Sr. was
uncooperative throughout the termination proceedings. He was ordered four times by the
court to submit to drug tests and was a “no show” for all four tests. He was given a plan
of service—compliance of which was incorporated into a court order. In April 2018, J.D.,
Sr. tested positive for methamphetamine, marijuana, and amphetamine. Although he did
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complete parenting classes, he failed to complete six sessions of counseling and quit
because he was tired of hearing that marijuana was illegal. He also failed to (1) report
regularly to the Department, (2) attend a batterer’s intervention and prevention program,
(3) complete a drug/alcohol assessment, (4) provide proof of stable employment, or (5)
establish a safe environment for the child. He left the state for an extended period and
only visited J.D., Jr. once during the entire proceedings.
The Department’s evidence further established that J.D., Jr. had bonded with his
foster family and all his needs were being suitably met. In addition, his foster family
expressed an intent to adopt J.D., Jr. if the trial court terminated the parental rights of his
mother and father.
Based upon the evidence that J.D., Sr. had no contact with J.D., Jr. for at least
seven months; the Department had made reasonable efforts to return his child to him; he
did not regularly visit or maintain significant contact with the child; and he failed to
demonstrate any ability to provide the child with a safe environment, the trial court found
by clear and convincing evidence that J.D., Sr. had constructively abandoned J.D., Jr.
while he was in the Department’s care. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N)
(West Supp. 2018).3
In addition, the trial court found by clear and convincing evidence that J.D., Sr.
failed to comply with the provisions of a court order that specifically established the
actions necessary for him to obtain the return of his child who had been under the
3 All further references to “§” or to “section” are to the current edition of the Texas Family Code
unless otherwise designated.
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Department’s supervision for a period in excess of nine months as a result of the child’s
removal for neglect or abuse. § 161.001(b)(1)(O).
The trial court also found that returning the child to J.D., Sr.’s care was not in the
child’s best interest due to his father’s continued absence, ongoing drug use, and
disinterest in taking steps or following a plan to mitigate the circumstances that
necessitated his removal. See § 161.001(b)(1)(N), (O). Accordingly, the trial court issued
its order of termination finding by clear and convincing evidence that termination was
proper under section 161.001(b)(1)(N) and (O) and it was in the child’s best interest. See
§ 161.001(b)(2). This appeal followed.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the parent-child relationship
if the Department establishes one or more acts or omissions enumerated under section
161.001(b)(1) and termination of that relationship is in the child’s best interest. See §
161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The
burden of proof is clear and convincing evidence. § 161.206(a). “‘Clear and convincing
evidence’ means 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.”
§ 101.007 (West 2014).
Only one statutory ground is needed to support termination though the trial court
must also find that termination is in a child’s best interest. In re K.C.B., 280 S.W.3d 888,
894-95 (Tex. App.—Amarillo 2009, pet. denied). In reviewing a termination proceeding,
the standard for sufficiency of evidence is that discussed in In re K.M.L., 443 S.W.3d 101,
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112-13 (Tex. 2014). In reviewing a best interest finding, appellate courts consider, among
other evidence, the factors set forth in Holley, 544 S.W.2d at 371-72.
ANDERS V. CALIFORNIA
The procedures set forth in Anders v. California, pertaining to a non-meritorious
appeal of a criminal conviction, are applicable to the appeal of an order terminating
parental rights. See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.).
The brief filed in this appeal meets the requirements of Anders by presenting a
professional evaluation of the record and demonstrating why there are no arguable
grounds for reversal of the trial court’s termination order.
In support of her motion to withdraw, counsel certifies she has conducted a
conscientious examination of the record, and in her opinion, the record reflects no
potentially plausible basis to support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex.
1998). Counsel complied with the requirements of Anders by (1) providing a copy of the
brief to J.D., Sr. and (2) notifying him of his right to file a pro se response if he desired to
do so. Id. By letter, this court also granted J.D., Sr. an opportunity to exercise his right
to file a response to counsel’s brief, should he be so inclined. He did not file a response.
The Department notified this court it would not file a response to the Anders brief unless
specifically requested to do so. No such request was made.
ANALYSIS
As in a criminal case, we too have independently examined the entire record to
determine whether there are any non-frivolous issues that might support the appeal. See
Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford
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v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Based on this record, we conclude
that a reasonable fact finder could have formed a firm belief or conviction that grounds
for termination existed and that termination of J.D., Sr.’s parental rights was in the child’s
best interest. See § 161.001(b)(1)(N), (O), (2). See also Gainous v. State, 436 S.W.2d
137, 138 (Tex. Crim. App. 1969); In re K.C.B., 280 S.W.3d at 894-95. Having reviewed
the entire record and counsel’s brief, we agree with counsel that there are no plausible
grounds for appeal.
CONCLUSION
We affirm the trial court’s order terminating J.D., Sr.’s parental rights.4
Patrick A. Pirtle
Justice
4 An Anders motion to withdraw filed in the court of appeals, in the absence of additional grounds
for withdrawal, may be premature. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). Courts have a
duty to see that withdrawal of counsel will not result in prejudice to the client. Id. In light of In re P.M., we
call counsel’s attention to the continuing duty of representation through the exhaustion of proceedings,
which may include the filing of a petition for review in the Texas Supreme Court. Counsel has filed a motion
to withdraw on which we take no action.
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