                                       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).


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