                                         In The
                                    Court of Appeals
                           Seventh District of Texas at Amarillo

                                            No. 07-15-00287-CV


                               IN THE INTEREST OF M.J.F., A CHILD

                           On Appeal from the County Court at Law No. 2
                                        Randall County, Texas
                   Trial Court No. 10,650-L2, Honorable Jack M. Graham, Presiding

                                             October 6, 2015

                                   MEMORANDUM OPINION
                      Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


        Appellant D.J.F. appeals the trial court’s order terminating his parental rights to

his child, M.J.F.1 In presenting this appeal, appointed counsel has filed an Anders2 brief

in support of a motion to withdraw. We grant counsel’s motion and affirm.


                                                Background


        M.J.F. is the male child of D.J.F. and R.M. The couple lived together for several

years and had two children. M.J.F. was placed in the care of the Texas Department of

        1
          To protect the privacy of M.J.F., we refer to the child and parties by their initials.   TEX. R. APP.
P. 9.8; TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
        2
            Anders v. California, 368 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Family and Protective Services shortly after his birth based on the parents’ prior history

with the Department concerning sexual abuse, physical abuse, physical neglect and

neglectful supervision of their other children. After the Department investigated several

potential relative placements, M.J.F. was placed in a foster home where he remained

through the final hearing. The foster parents intervened in this matter.


      M.J.F. was almost a year and a half old by the time of the final hearing. Prior to

the hearing, D.J.F. had been convicted of aggravated assault with a deadly weapon

against a household member, R.M., and imprisoned for a term of 40 years.              He

participated in the hearing via telephone. By the time of the hearing, R.M. lived in a

women’s shelter, had a job, had completed many of her services, and was cooperative

with the Department. But she continued contact with D.J.F. despite their abusive

relationship and indicated she wished to remain with D.J.F.


      Intervenors, R.M., and the Department told the court an agreement had been

reached whereby the intervenors were to be named the sole managing conservators of

M.J.F. and R.M. was to be appointed as the sole possessory conservator of the child.

D.J.F. opposed the termination of his parental rights, opposed the proposed agreement,

and told the court that while he had not yet completed any of the services in his service

plan, he planned to complete his service plan from prison. D.J.F. also admitted to the

court he had been convicted of aggravated assault with a deadly weapon against R.M.

and had been sentenced to serve 40 years in prison.


      The trial court found, on D.J.F.’s admission, D.J.F. was the father of M.J.F. It

also approved the agreement and, finding clear and convincing evidence supported the


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Department’s allegations against D.J.F., terminated D.J.F.’s rights on two grounds.3

The trial court further found clear and convincing evidence had been presented to

support a finding termination was in the best interests of M.J.F. See TEX. FAM. CODE

ANN. § 161.001(b)(2) (West 2015). D.J.F.’s appointed counsel filed notice of appeal.


                                                Analysis


        Pursuant to Anders, D.J.F.’s court-appointed appellate counsel has filed a brief

stating that he has diligently reviewed the record and the applicable law and concluding

that, in his professional opinion, the record shows no arguably reversible error. See In

re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding);

Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc); 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 an Anders-type brief”).



        3
          The trial court found clear and convincing evidence showed termination was proper under
section 161.001(1)(O) and (Q) of the Family Code. TEX. FAM. CODE ANN. § 161.001(1)(O), (Q) (West
2014). See Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, ch. 1, § 1.078, sec. 161.001, 2015 Tex.
Sess. Law Serv. 1, 18-20 (West 2015) (to be codified as an amendment to Tex. Fam. Code Ann. §
161.001). For the remainder of this memorandum opinion, we will cite to the new section number as it will
appear in the Family Code.

Those provisions provide appellant:

        (O) 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 has been in the
        permanent or temporary managing conservatorship of the Department of Family and
        Protective Services for not less than nine months as a result of the child's removal from
        the parent under Chapter 262 for the abuse or neglect of the child; and

        (Q) knowingly engaged in criminal conduct that has resulted in the parent's: (i)
        conviction of an offense; and (ii) confinement or imprisonment and inability to care for the
        child for not less than two years from the date of filing the petition.

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       In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978), D.J.F.’s counsel has carefully discussed why, under controlling authority,

there are no arguably meritorious grounds on which an appeal may be predicated with

regard to the trial court's judgment. Counsel has informed this Court that he has: (1)

examined the record and found no arguable grounds to advance on appeal, (2) served

his brief, motion to withdraw and copy of the appellate record on D.J.F., and (3)

informed D.J.F. of his right to review the record and to file a pro se response. See

Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3; see also In re Schulman, 252

S.W.3d at 409 n.23. By letter, this Court has also informed D.J.F. of his right to file a pro

se response to his counsel's Anders brief and motion. D.J.F. filed a response raising

several issues. See In re Schulman, 252 S.W.3d at 409.


       The United States Supreme Court has advised appellate courts that when the

court receives a “frivolous appeal” brief, it must conduct “a full examination of all the

proceedings to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S.

75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); see also In re G.M. & X.M., No. 13-08-

00569-CV, 2009 Tex. App. LEXIS 6509, at *1 (Tex. App.—Corpus Christi Aug. 20,

2009, no pet.) (mem. op.). We have reviewed the entire record, counsel's brief, and

D.J.F.’s response and we have found nothing that would arguably support an appeal.

See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (“Due to the

nature of Anders briefs, by indicating in the opinion that it considered the issues raised

in the briefs and reviewed the record for reversible error but found none, the court of

appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”); Stafford,

813 S.W.2d at 509.


                                             4
      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 intermediate

standard falls between the preponderance of the evidence standard of civil proceedings

and the reasonable doubt standard of criminal proceedings. In re E.M.E., 234 S.W.3d at

73. It is defined as 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.” TEX. FAM. CODE ANN. § 101.007 (West 2008).


      In reviewing the legal sufficiency of the evidence supporting parental termination,

a court reviews 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 about

the truth of the matter on which the movant in a termination proceeding bore the burden

of proof.” In re J.F.C., 96 S.W.3d at 266. In reviewing the evidence for factual

sufficiency, we give due deference to the fact finder's findings and do not supplant its

judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine

whether, on the entire record, a fact finder 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 S.W.3d 17, 28 (Tex. 2005); In re T.B.D., 223 S.W.3d 515, 517 (Tex. App.—

Amarillo 2006, no pet.).


      By the Anders brief, counsel notes reversible error is not presented because

sufficient evidence supports termination under subsections (O) 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



                                           5
2005, no pet.) (only one predicate finding under section 161.001 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 are any non-frivolous issues which might support the appeal.

See Penson, 488 U.S. 75; Stafford, 813 S.W.2d at 511. After reviewing the record,

counsel's brief and D.J.F.’s response, we agree with counsel that there are no plausible

grounds for appeal.


       Accordingly, counsel's motion to withdraw is granted and the trial court's order

terminating D.J.F.’s parental rights to M.J.F. is affirmed.




                                                  James T. Campbell
                                                     Justice




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