                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                           No. 07-18-00153-CV


                       IN THE INTEREST OF A.W. AND K.C., CHILDREN


                              On Appeal from the 108th District Court
                                        Potter County, Texas
                     Trial Court No. 89,291-E, Honorable Carry Baker, Presiding

                                            August 15, 2018

                                   MEMORANDUM OPINION
                          Before CAMPBELL and PIRTLE and PARKER, JJ.


        “Frank”1 appeals the trial court’s order terminating his parental rights to his

children, “A.W.” and “K.C.” Appointed counsel for Frank has filed an Anders2 brief in

support of a motion to withdraw. Finding no arguable grounds for appeal, we affirm the

judgment of the trial court.




        1 To protect the privacy of the parties involved, we will refer to the appellant father as “Frank,” the
mother of the children as “Jane,” and the children the subject of this appeal as “A.W.” and “K.C.” See TEX.
FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). Jane’s parental rights were also
terminated, but she did not appeal.
        2   See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
                                       Background


       In October 2016, the Department of Family and Protective Services filed its Petition

for Protection of Child, for Conservatorship, and for Termination in Suit Affecting Parent-

Child Relationship, seeking termination of the parental rights of Frank and Jane as to their

two children, six-year-old A.W. and newborn K.C. The children were removed after the

Department received a report that Jane tested positive for methamphetamine and

marijuana at the birth of K.C. A.W. was interviewed by the Department’s investigator.

She had a vast knowledge of drug use and drug paraphernalia. A.W. told the investigator

that she had seen her mother using drugs and she could explain in detail how to use

“crack” and “weed.”


       Frank and Jane had a history of domestic violence. Frank assaulted Jane in front

of A.W. and he also assaulted Jane while she was holding A.W.             The Department

produced evidence that Frank was convicted of felony assault on Jane in 2011. In 2016,

he pleaded guilty to assaulting Jane and he was sentenced to four years in the Texas

Department of Criminal Justice (TDCJ). On November 2, 2017, he was sentenced to

seven years in TDCJ for assaulting Jane and violating a protective order. His projected

release date was April 21, 2020.


       Frank maintained contact with the Department throughout the course of the case.

Frank did not testify at trial. The last contact the Department had with Jane was in July

of 2017.


       At the time of trial, A.W. and K.C. were placed in separate foster-adopt placements.

A.W. is now seven years old. She is doing well in her placement. She receives therapy


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for episodes of extreme anger and self-harming behaviors. A.W. told the caseworker that

“she is afraid that [Frank] is going to hurt her,” and “she worries that [Frank] is going to

hurt her similar to how he had hurt her mom.” K.C. is now eighteen months old. She has

cerebral palsy and chronic lung disease. She receives Early Childhood Intervention

services and physical therapy. Her placement intends to adopt her.


          On April 13, 2018, the trial court terminated Frank’s parental rights on the grounds

of endangerment and conduct that resulted in imprisonment and inability to care for the

children for not less than two years. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (Q)

(West Supp. 2017).3 The trial court also found that termination was in the best interest of

A.W. and K.C. See § 161.001(b)(1)(2). The court appointed the Department as the

Permanent Managing Conservator of A.W. and K.C.


                                                    Analysis


          Pursuant to Anders, Frank’s court-appointed appellate counsel has filed a brief

certifying that he has diligently searched the record and has concluded that the record

reflects no arguably reversible error that would support an appeal. In re Schulman, 252

S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding); 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




          3   Further references to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”

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an Anders-type brief”); In re L.J., No. 07-14-00319-CV, 2015 Tex. App. LEXIS 427, at *2-

3 (Tex. App.—Amarillo Jan. 15, 2015, no pet.) (mem. op.) (same).


       Counsel certifies that he has diligently researched the law applicable to the facts

and issues and discusses why, in his professional opinion, the appeal is frivolous. In re

D.A.S., 973 S.W.2d 296, 297 (Tex. 1998) (orig. proceeding). Counsel has complied with

the requirements of Anders by providing a copy of the brief, motion to withdraw, and

appellate record to Frank, and notifying him of his right to file a pro se response if he

desired to do so. Id.; Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); In

re L.V., No. 07-15-00315-CV, 2015 Tex. App. LEXIS 11607, at *2-3 (Tex. App.—Amarillo

Nov. 9, 2015) (order) (per curiam). Frank has not filed a response.


       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 standard falls between the civil

preponderance of the evidence standard and the reasonable doubt standard of criminal

proceedings. Id. at 73. Clear and convincing evidence is that “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). Reviewing the

legal sufficiency of the evidence supporting parental termination requires us to review “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 that its finding was true.” In re

J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, we are to determine whether,

on the entire record, a factfinder 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

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S.W.3d 17, 28-29 (Tex. 2002); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—Amarillo

2006, no pet.). By his Anders brief, counsel concludes that reversible error is not present

because sufficient evidence supports termination under subsections (E) and (Q). See In

re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—

Amarillo 2005, no pet.) (only one predicate finding under section 161.001(b)(1) is

necessary to support termination when there is also a finding that termination is in a child’s

best interest).


        As in a criminal case, we have independently examined the entire record to

determine whether there is a non-frivolous issue 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 factfinder could have formed a firm belief or conviction that sufficient

evidence existed to support at least one ground for termination, and that termination of

Frank’s parental rights was in A.W. and K.C.’s best interest. See In re A.V., 113 S.W.3d

at 362; In re T.N., 180 S.W.3d at 384. After reviewing the record and the Anders brief,

we agree with counsel that there are no plausible grounds for reversal.


        Accordingly, the trial court’s order terminating Frank’s parental rights to A.W. and

K.C. is affirmed.4




                                                                 Judy C. Parker
                                                                    Justice

        4 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. Counsel has filed a motion to withdraw,
on which we will take no action. In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam).

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