                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-19-00369-CV

                                  IN THE INTEREST OF N.N.M.

                    From the 365th Judicial District Court, Dimmit County, Texas
                              Trial Court No. 17-01-13061-DCVAJA
                         Honorable Amado J. Abascal, III, Judge Presiding

Opinion by:       Liza A. Rodriguez, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: October 16, 2019

ABATED

           This appeal arises from a suit brought by the Texas Department of Family and Protective

Services to terminate Appellant Don S.’s parental rights to his daughter, N.N.M. On January 2,

2017, four-month-old N.N.M. was removed from her mother’s care after being hospitalized with

a brain injury. In addition to the brain hematoma, N.N.M. had two healing leg fractures and visible

bruising on her right shoulder. The boyfriend of N.N.M.’s mother admitted to grabbing N.N.M.

by the leg and swinging her across the room, causing her head to hit the wall. When asked by the

Department about N.N.M.’s father, N.N.M.’s mother eventually provided Don S.’s full name but

did not provide a date of birth or address. After multiple attempts at contacting Don S., on

November 7, 2017, the Department was able to make contact. Don S. immediately requested a

DNA test. He was assigned a courtesy caseworker in his hometown of Lubbock and was given a
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service plan. After a jury trial, his parental rights were terminated pursuant to sections

161.001(b)(1)(C), (D), (E), (N), and (O), and section 161.001(b)(2) of the Texas Family Code.

           Court-appointed counsel for Don S. has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). See In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—

San Antonio 2003, order) (applying Anders procedure in appeal from order terminating parental

rights), disp. on merits, 2003 WL 22080522 (Tex. App.—San Antonio 2003, no pet.). Counsel

concluded that a thorough review of the record revealed the appeal to be frivolous and without

merit. See Anders, 386 U.S. at 744; In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.]

2003, no pet.). When we receive an Anders brief from an appellant’s appointed attorney who

asserts that no arguable grounds for appeal exist, we must determine that issue independently by

conducting our own review of the entire record. See Anders, 386 U.S. at 744. We also consider

any pro se response. Johnson v. Tex. Dep’t of Family & Protective Servs., No. 01-08-00749-CV,

2010 WL 5186806, at *1 (Tex. App.—Houston [1st Dist.] 2010, no pet.). 1 If, after reviewing the

entire record, we find any arguable grounds for appeal, we must abate the appeal and order the

trial court to appoint other counsel to present those and any other grounds that might support

appeal. See Anders, 386 U.S. at 744.

           Here, Don S.’s parental rights were terminated pursuant to multiple predicate grounds.

Under the Texas Family Code, along with a best-interest finding under section 161.001(b)(2), a

finding of only one ground listed in section 161.001(b)(1) is required to terminate parental rights.

See TEX. FAM. CODE ANN. § 161.001(b). Thus, when termination is based on multiple predicate

grounds for termination, many appellate courts have affirmed the trial court’s order based on one

ground and not reached issues related to other predicate grounds. See, e.g., In re A.T., No. 04-18-



1
    Don S. has not filed a pro se response.


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00613-CV, 2018 WL 6793572, at *5 (Tex. App.—San Antonio 2018, no pet.); In re L.L.N.-P., No.

04-18-00380-CV, 2018 WL 6069853, at *4 (Tex. App.—San Antonio 2018, pet. denied).

       Recently, however, the Texas Supreme Court has explained that even when sufficient

evidence exists to terminate under one predicate ground, due process requires appellate courts to

address appellate points related to subsections (b)(1)(D) or (E). See In re N.G., 577 S.W.3d 230,

235 (Tex. 2019). Subsection (b)(1)(D) permits termination of parental rights if the court finds by

clear and convincing evidence that the parent has “knowingly placed or knowingly allowed the

child to remain in conditions or surroundings which endanger the physical or emotional well-being

of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Subsection (b)(1)(E) permits termination

of parental rights if the court finds by clear and convincing evidence that the parent has “engaged

in conduct or knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well-being of the child.” Id. § 161.001(b)(1)(E). The supreme court

explained that these findings under subsections (b)(1)(D) and (E) may be the basis for termination

in a subsequent suit involving a different child. See In re N.G., 577 S.W.3d at 234. Subsection

(b)(1)(M) permits parental rights to be terminated if the parent “has had his or her parent-child

relationship terminated with respect to another child based on a finding that the parent’s conduct

was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another

state.” In re N.G., 577 S.W.3d at 234 (quoting section 161.001(b)(1)(M) of the Family Code).

Because findings based on subsections (b)(1)(D) or (E) may become “a basis to terminate a

parent’s right to other children,” the supreme court reasoned that when a parent presents an

appellate issue related to subsections (b)(1)(D) or (E) and the appellate court does not address the

issue on appeal, the appellate court “eliminates the parent’s only chance for review of a finding

that will be binding as to parental rights to other children.” Id. at 235. According to the supreme

court, “the parent’s fundamental liberty interest at stake outweighs the state’s interest in deciding


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only what is necessary for final disposition of the appeal.” Id. at 237. “Allowing section

161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the

issue to the court thus violates the parent’s due process and due course of law rights.” Id.

       Given this holding by the supreme court, we must consider whether an arguable ground for

appeal exists with respect to subsections (b)(1)(D) and (E). After reviewing the record in this

appeal, we conclude that there are arguable issues for appeal relating to the legal and factual

sufficiency of the evidence to support findings under subsections (b)(1)(D) and (E). Therefore, we

abate this appeal and order the trial court to appoint new appellate counsel for Appellant Don S.

within ten days. After new appellate counsel has been appointed, we will notify the parties of the

briefing schedule for Appellant Don S.’s appeal.

                                                   Liza A. Rodriguez, Justice




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