                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo
                                     ________________________

                                         No. 07-18-00390-CV
                                     ________________________


                         IN THE INTEREST OF J.S. AND M.S., CHILDREN


                          On Appeal from the 154th District Court
                                   Lamb County, Texas
       Trial Court No. DCV-19481-16; Honorable Kara Darnell, Associate Judge Presiding


                                               March 18, 2019

                                   MEMORANDUM OPINION
                          Before QUINN, C.J., and PIRTLE and PARKER, JJ.


        Appellant, B.S., appeals the trial court’s order terminating his parental rights to his

children, J.S. and M.S.1 In presenting this appeal, appointed counsel has filed an Anders

brief2 in support of a motion to withdraw. We affirm.




        1 To protect the privacy of the parent and children, 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.S. and M.S. were born in March 2010, and January 2011, respectively. In June

2017, the Department received a complaint alleging physical neglect and neglectful

supervision of the children by their mother, D.S. During the investigation, D.S. admitted

that her boyfriend made her fearful for her life. She described incidents where she was

assaulted in front of her children. In addition, her home had no electricity, had a foul odor,

and looked like a “hoarder” home. The children’s father, B.S., no longer lived at the home

when they were removed. Although he was aware of the conditions under which the

children were living, he did not make any effort to help or visit them. He had decided it

was in his best interest to leave and had moved to Colorado.


       The children were removed and placed with their aunt. At the time of the final

hearing, the children had bonded with their aunt and all their needs were being met. In

addition, their aunt expressed a long-term intent to keep the children if the trial court

terminated their father and mother’s parental rights.


       In October 2018, a final hearing was held. By that time, J.S. was eight years old

and M.S. was seven years old. B.S. was not present at the hearing, but his court-

appointed attorney was in attendance and vigorously cross-examined witnesses on his

behalf. The Department’s evidence established that, while termination proceedings were

pending, B.S. executed a waiver of service and remained in Colorado. Following the

children’s removal, he began phoning the children each Sunday, but his calls dwindled to

once a month and then, not at all. After March 2018, he had no contact with the children

whatsoever. If their caseworker called him, he would speak with her, but he never initiated

any calls with the Department.

                                              2
       A service plan was designed for the return of his children. Under the plan, he was

required to sign a release of certain information, maintain stable employment, maintain

safe and stable housing, submit to random drug testing, complete parenting classes,

participate in individual counseling sessions, and maintain contact with the Department.3

B.S. never provided any evidence that he completed any of the requirements under the

plan. When the final hearing was held, he had not had any physical contact with the

children in three to four years and no telephonic contact in seven to eight months.


       Based upon the evidence that B.S. had no contact with the children for at least

seven months, that the Department had made reasonable efforts to return the children to

him, and that he had not regularly visited or maintained significant contact with the

children and failed to demonstrate any ability to provide the children with a safe

environment, the trial court found by clear and convincing evidence that B.S. had

constructively abandoned the children while they were in the Department’s care. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2018).4 In addition, the trial court

found by clear and convincing evidence that B.S. failed to comply with the provision of a

court order that specifically established the actions necessary for him to obtain the return

of the children who had been under the Department’s supervision for in excess of nine

months as a result of the children’s removal. § 161.001(b)(1)(O). The trial court also

found that returning the children to B.S.’s care was not in their best interest due to his

continued absence from the children and his disinterest in taking steps or following a plan



        3 A home study was performed in Colorado at a residence owned by a relative of B.S.; however,

that home study revealed that the owner smoked marijuana in the house on a daily basis.

       4 All further references to “§” or to “section” are to the Texas Family Code unless otherwise
designated.

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to mitigate the circumstances that necessitated their removal. See § 161.001(b)(1)(N),

(O).


       Shortly after the final hearing, 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 termination was in the children’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 (1) one or more acts or omissions enumerated under

section 161.001(b)(1) and (2) 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) (West Supp. 2018).

“‘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,

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.




                                              4
        Anders v. California

        Although the Texas Supreme Court has yet to directly consider the issue, for many

years Texas appellate courts including this court have found the procedures set forth in

Anders v. California applicable to appeals of orders terminating parental rights. See In re

A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.).5 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 providing a copy of the brief

along with the appellate record and notifying B.S. of his right to file a pro se response if

he desired to do so. Id. B.S. did not file a response. The Department notified this court

they would not file a response to the Anders brief unless specifically requested to do so.

No such request was made.




        5  See also In re R.M.C., 395 S.W.3d 820 (Tex. App.—Eastland 2013, no pet.); In re K.R.C., 346
S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.); In the Interest of D.D., 279 S.W.3d 849 (Tex. App.—
Dallas 2009, pet. denied); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—Beaumont 2005, no
pet.); Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005,
pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Porter v.
Texas Dep’t of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no
pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838,
841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.);
In re P.M.H., No. 06-10-00008-CV, 2010 Tex. App. LEXIS 3330, at *2 (Tex. App.—Texarkana May 6, 2010,
no pet.) (mem. op.); In the Interest of R.R., No., 04-03-00096-CV, 2003 Tex. App. LEXUS 4283, at *10-12
(Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.).

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        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

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 reasonable belief or conviction that

grounds for termination existed and that termination of B.S.’s parental rights was in the

children’s best interests. 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 B.S.’s parental rights.6




                                                           Patrick A. Pirtle
                                                               Justice




        6 An Anders motion to withdraw filed in the court of appeals, in the absence of additional grounds
for withdrawal, may be premature. See 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.

                                                      6
