                                          IN THE
                                  TENTH COURT OF APPEALS

                                          No. 10-19-00070-CV

                            IN THE INTEREST OF E.K. AND C.K.,
                                    MINOR CHILDREN



                                   From the 85th District Court
                                       Brazos County, Texas
                                 Trial Court No. 17-001881-CV-85


                                   MEMORANDUM OPINION


           Jesse K. appeals from the trial court’s judgment that terminated the parent-child

relationship between him and his children, E.K. and C.K.1 After hearing all the evidence,

the jury the jury found by clear and convincing evidence that the parental rights of Jesse

K. should be terminated. The trial court signed an order of termination in accordance

with the jury verdict. We affirm.

           In presenting this appeal, counsel for Jesse K. filed a brief pursuant to Anders v.

California asserting that he has conducted a review of the record and found no arguable



1   The mother of the children is not a party to this appeal.
issues to raise on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967).

        The brief filed meets the requirements of Anders by presenting a professional

evaluation of the record and demonstrating why there are no arguable grounds to be

advanced on appeal. Additionally, Jesse K.’s attorney advised him that he had filed the

brief pursuant to Anders, that Jesse K. had the right to review the record and file a pro se

response on his own behalf, and provided Jesse K. with a copy of the record. Jesse K.

filed a response asking this Court to overturn trial court’s order terminating his parental

rights to E.K. and C.K. Jesse K. complains that the Department used false evidence during

the jury trial and that the Department did not seek the best interest of the children.

        The order of termination recites that the jury was given the following instruction

with respect to Jesse K.:

        For the parent-child relationship in this case to be terminated with respect
        to [Jesse K.], the father of the children, [E.K. and C.K.], it must be proven by
        clear and convincing evidence that at least one of the following events has
        occurred:

        1. [Jesse K.] knowingly placed or knowingly allowed the child to remain
           in conditions or surroundings which endangered the physical or
           emotional well-being of the child.
        2. [Jesse K.] engaged in conduct or knowingly placed the child with
           persons who engaged in conduct which endangered the physical or
           emotional well-being of the child.
        3. [Jesse K.] failed to comply with the provisions of a court-order that
           specifically established the actions necessary for the parent to obtain the
           return of the child who had been in the permanent or temporary
           managing conservatorship of the Department of Family and Protective


In the Interest of E.K. and C.K.                                                           Page 2
             Services for not less than nine months as a result of the child's removal
             from the parent.

        In addition, it must be proven by clear and convincing evidence that
        termination of the parent-child relationship would be in the best interest of
        the child. Some factors to consider in determining the best interest of the
        child are:

        1.   the desires of the child;
        2.   the emotional and physical needs of the child, now and in the future;
        3.   the emotional and physical danger to the child, now and in the future;
        4.   the parenting ability of the individuals seeking custody;
        5.   the programs available to assist those individuals to promote the best
             interest of the child;
        6.   the plans for the child of those individuals or by the agency seeking
             custody;
        7.   the stability of the home or proposed placement;
        8.   the acts or omissions of the parent that may indicate that the existing
             parent-child relationship is not a proper one; and
        9.   any excuse for the acts or omissions of the parent.

The jury found that the parent-child relationship between Jesse K. and E.K. and C.K.

should be terminated.

        In the Anders brief, counsel analyzes the legal and factual sufficiency of the

evidence to support termination. Counsel acknowledges that only one statutory ground

is necessary to support an order of termination in addition to a finding that termination

is in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Counsel

further evaluates the legal and factual sufficiency of the evidence to support a finding

that termination was in the best interest of the child. Counsel’s brief evidences a

professional evaluation of the record for error, and we conclude that counsel performed

the duties required of an appellate counsel.
In the Interest of E.K. and C.K.                                                         Page 3
        Due process requires application of the clear and convincing standard of proof in

cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256, 263

(Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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. See TEX. FAM. CODE ANN. § 101.007 (West 2008). See

also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).

        The Family Code permits a court to order termination of parental rights if the

petitioner establishes one or more acts or omissions enumerated under subsection (1) of

the statute and also proves that termination of the parent-child relationship is in the best

interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2018); Holley v.

Adams, 544 S.W.2d 367, 370 (Tex. 1976). We agree with counsel’s evaluation that there is

clear and convincing evidence to support termination under Section 161.001(b)(1) against

Jesse K.

        Notwithstanding the sufficiency of the evidence to support termination under

section 161.001 (b) (1), we must also find clear and convincing evidence that termination

of the parent-child relationship was in the children's best interest. See TEX. FAM. CODE

ANN. § 161.001 (b) (2).            Evidence that proves one or more statutory grounds for

termination may also constitute evidence illustrating that termination is in the child's best

interest. See In re C.H., 89 S.W.3d at 28. There is a long-standing non-exhaustive list of




In the Interest of E.K. and C.K.                                                       Page 4
factors for a court to consider in deciding the best interest of a child in a termination case.

See Holley, 544 S.W.2d at 371-72.

        We agree with counsel’s evaluation that there is clear and convincing evidence

under the appropriate legal and factual sufficiency standards for the jury to have

determined that termination of the Jesse K.’s parent-child relationship was in the best

interest of E.K. and C.K.

        Upon receiving a "frivolous appeal" brief, this Court must conduct a full

examination of all proceedings to determine whether the case is wholly frivolous. See

Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also In re

M.A.R., No. 10-10-00237-CV, 2011 Tex. App. LEXIS 3596, at *2 (Tex. App.—Waco May 11,

2011, no pet.) (mem. op.). After our review of the entire record and counsel’s brief, we

agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178

S.W.3d 824, 827-28 (Tex. Crim. App. 2005).

        If Jesse K., after consulting with counsel, desires to file a petition for review,

counsel is still under a duty to timely file with the Texas Supreme Court “a petition for

review that satisfies the standards for an Anders brief.”2 See In re P.M., 520 S.W.3d 24, 27-

28 (Tex. 2016).

        We affirm the trial court’s judgment.



2 We do not address whether counsel’s duty requires the filing of a petition for review or a motion for
rehearing in the Texas Supreme Court in the absence of the client’s professed desire to do so in Anders
proceedings.
In the Interest of E.K. and C.K.                                                                Page 5
                                               JOHN E. NEILL
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring)*
Affirmed
Opinion delivered and filed July 31, 2019
[CV06]

*(Chief Justice Gray concurs. A separate opinion will not issue. He notes, however, that
in this memorandum opinion in an Anders disposition of a termination of parental rights
on predicate grounds D, E, and O, we do not “show our work” on ground D or E as
recently discussed in In the Interest of N.G., No. 18-0508, 2019 LEXIS 465, (Tex. May 17,
2019). It is not clear from N.G. that we have to or that we should. The burdens of N.G.
will be substantial and thus costly to the State and Counties with virtually no, if any,
benefit to the parents whose rights have been terminated that could not have been better
protected in an alternative manner. Accordingly, I agree that we should not impose the
N.G. holding to Anders based termination appeals until the Supreme Court of Texas
makes it clear that N.G. applies to this type of appeal.)




In the Interest of E.K. and C.K.                                                   Page 6
