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

                                         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,


                                               4
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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