in the Interest of D. L., F. P. and F. P., Children ( 2021 )

NO. 12-20-00234-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN THE INTEREST OF § APPEAL FROM THE 173RD
D.L., F.P. AND F.P., § JUDICIAL DISTRICT COURT
CHILDREN § HENDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
D.P. appeals the termination of her parental rights. Her counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm.
BACKGROUND
D.P. is the mother of D.L., F.P.1, and F.P.2. R.P. is the father of F.P.1 and F.P.2. D.L.1
is the father of D.L. On August 20, 2019, the Department of Family and Protective Services (the
Department) filed an original petition for protection of the children, for conservatorship, and for
termination of D.P.’s, R.P.’s, and D.L.1’s parental rights. The Department was appointed
temporary managing conservator of the children, and the parents were allowed limited access to,
and possession of, the children.
The morning of the final trial, R.P. executed an affidavit of relinquishment of parental
rights. He testified before the trial court that he felt relinquishing his parental rights was in his
children’s best interest because he is incarcerated and “there’s nothing [he] can do for them.” At
the conclusion of trial, the trial court found, by clear and convincing evidence, that (1) R.P. filed
an affidavit of relinquishment of parental rights in accordance with Section 161.001(b)(1)(K) of
the Texas Family Code; and (2) termination of the parent-child relationship between D.P. and the
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children was in the children’s best interest. Based on these findings, the trial court ordered that
the parent-child relationship between R.P. and F.P.1 and F.P.2 be terminated.
D.L.1 did not participate in the trial and did not file any responses or pleadings. The trial
court found that D.L.1 had previously been adjudicated the father of D.L. The trial court further
found that D.L.1 constructively abandoned D.L under Section 161.001(b)(1)(N) of the Texas
Family Code and that termination of the parent-child relationship between D.L.1 and D.L. was in
the child’s best interest. Based on these findings, the trial court ordered that the parent-child
relationship between D.L.1 and D.L. be terminated.
The evidence at trial showed that D.P. allowed the children to stay with R.P. when she
knew he was using methamphetamine. All three children also tested positive for
methamphetamine. The evidence further supported a conclusion that D.P. used
methamphetamine during the pendency of the case. D.P failed to comply with the Department’s
requests for drug testing, and she admitted to, and later recanted, using methamphetamine during
the case. The evidence further showed that D.P. failed to comply with the Department’s family
service plan. At the conclusion of trial, the trial court found, by clear and convincing evidence,
that D.P. engaged in one or more of the acts or omissions necessary to support termination of her
parental rights under subsections (E) and (O) of Texas Family Code Section 161.001(b). The
trial court also found that termination of the parent-child relationship between D.P. and the
children was in the children’s best interest. Based on these findings, the trial court ordered that
the parent-child relationship between D.P. and the children be terminated. This appeal
followed. 1
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
D.P.’s counsel filed a brief in compliance with Anders, stating that he has diligently
reviewed the appellate record and is of the opinion that the record reflects no reversible error and
that there is no error upon which an appeal can be predicated. This Court has previously held
that Anders procedures apply in parental rights termination cases when the Department has
moved for termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.–Tyler 2001, no pet.).
In compliance with Anders, counsel’s brief presents a professional evaluation of the record
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D.P.1 and R.P are not parties to this appeal.
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demonstrating why there are no reversible grounds on appeal and referencing any grounds that
might arguably support the appeal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mays v.
State, 904 S.W.2d 920, 922–23 (Tex. App.–Fort Worth 1995, no pet.).
As a reviewing court, we must conduct an independent evaluation of the record to
determine whether counsel is correct in determining that the appeal is frivolous. See Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904 S.W.2d at 923. We have
carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that
might arguably support the appeal. 2 See Taylor v. Tex. Dep’t of Protective & Regulatory Servs.,
160 S.W.3d 641, 646–47 (Tex. App.–Austin 2005, pet. denied).
DISPOSITION
We agree with D.P.’s counsel that the appeal is wholly frivolous. However, we deny
counsel’s request to withdraw. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). In In re P.M.,
the Texas Supreme Court held that the right to counsel in suits seeking the termination of
parental rights extends to “all proceedings in [the Texas Supreme Court], including the filing of a
petition for review.” Id. Accordingly, counsel’s obligations to D.P. have not yet been
discharged. See id. If D.P., after consulting with counsel, desires to file a petition for review,
counsel should timely file with the Texas Supreme Court “a petition for review that satisfies the
standards for an Anders brief.” Id.; see A.C. v. Tex. Dep’t of Family & Protective Servs., No.
03–16–00543–CV, 2016 WL 5874880, at *1 n.2 (Tex. App.–Austin Oct. 5, 2016, no pet.) (mem.
op.). Accordingly, we affirm the trial court’s judgment. See TEX. R. APP. P. 43.2.
Opinion delivered January 29, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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Counsel for D.P. certified that he provided D.P. with a copy of the brief and informed her that she had the
right to file her own brief and took concrete measures to facilitate review of the record. See Kelly v. State, 436
S.W.3d 313, 319 (Tex. Crim. App. 2014); In the Matter of C.F., No. 03-18-00008-CV, 2018 WL 2750007, at *1
(Tex. App.—Austin June 8, 2018, no pet.) (mem. op.). D.P. was given the time to file her own brief, but the time
for filing such brief has expired and we have received no pro se brief.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 29, 2021
NO. 12-20-00234-CV
IN THE INTEREST OF D.L., F.P. AND F.P., CHILDREN
Appeal from the 173rd District Court
of Henderson County, Texas (Tr.Ct.No. FAM19-0612-173)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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