NO. 07-06-0083-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 5, 2006
______________________________
IN THE INTEREST OF B. J. L., a child
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FROM THE 364th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2002-517,417; HON. BRADLEY S. UNDERWOOD, PRESIDING
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Memorandum Opinion
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Before QUINN, C.J. and REAVIS and CAMPBELL, JJ.
Daryl M. Washington appeals from an order terminating his parental rights to his
daughter B. J. L. The trial court appointed Washington counsel to represent him on
appeal. Thereafter, his appointed counsel filed an Anders1 brief and motion to withdraw. 2
In the brief, appellate counsel certified that she diligently reviewed the record and
concluded the appeal was meritless. So too did counsel inform her client of her conclusion
and of his right to review the record and file a pro se response to the brief and motion.
1
Anders v. California, 386 U .S. 738, 87 S.Ct. 1396, 18 L.Ed .2d 493 (1967 ).
2
The trial court appointe d appellate c ounsel to rep resent W ashingto n via the directives conta ined in
the Te xas Fam ily Code . T EX . F AM . C ODE A N N . §107.013 (Vernon Supp. 2006) (stating that an indigent parent
is entitled to appointed coun sel in proceed ings to term inate the pa rent/c hild relationsh ip).
This court also informed Washington in writing of counsel’s motion and brief and of his right
to respond by August 16, 2006. Washington has failed to do so.
Appellate counsel discussed one possible issue for appeal but then explained why
the issue was not viable.3 We also reviewed the record as we are obligated to do to
discover any arguable grounds of appeal. Stafford v. State, 813 S.W.2d 503, 511 (Tex.
Crim. App. 1991). Upon conducting that review, we determined that Washington 1) had
notice of the grounds proffered for terminating his parental rights except for his failure to
comply with a court order, and 2) appeared at the hearing and had the opportunity to
defend against those grounds through use of counsel, the presentation of evidence, and
the cross-examination of adverse witnesses. Furthermore, the evidence presented at trial
legally and factually supports one or more of the findings that Washington 1) engaged in
conduct or knowingly placed the child with persons who engaged in conduct that
endangered the physical or emotional well-being of the child, 2) voluntarily, and with
knowledge of the pregnancy, abandoned the child’s mother beginning at a time during her
pregnancy with the child and continuing through the birth, failed to provide adequate
support or medical care for the mother during the period of abandonment before the birth
of the child, and remained apart from the child or failed to support the child since the birth,
and 3) knowingly engaged in criminal conduct that has resulted in his conviction of an
offense and confinement or imprisonment and inability to care for the child for not less than
3
The issue is with respect to the trial court’s extension of the termination suit one day after the
statutory dea dline. See T EX . F AM . C ODE A N N . §263.401(Vernon Supp. 2006). However, the State non-suited
the law suit ag ainst W ash ington befo re an y adjud ication of his rights m aking the issue m oot.
2
two years from the date the petition was filed.4 However, we do not find in the record a
petition alleging the failure to comply with a court order as a ground for termination.
Because Washington did not receive notice of the latter allegation, the trial court cannot
rely on it as a basis for termination. See In the Interest of S.R.M., 601 S.W.2d 766, 769
(Tex. Civ. App.–Amarillo 1980, no writ) (stating that the statutory grounds for termination
must be stated in the petition). Therefore, we will reform the judgment accordingly. The
record also contains evidence upon which the court could clearly and convincingly find that
termination of Washington’s parental rights was in the best interest of the child.
Having found no arguable merit to the appeal, we reform the judgment by removing
paragraph 7(d) (involving Washington’s alleged failure to comply with a court order) as a
ground warranting termination and affirm the order as modified. So too do we grant
counsel’s motion to withdraw.
Brian Quinn
Chief Justice
4
The trial court’s decision may be affirmed if the evidence s upports the existence of one statutory
ground assuming that the State also proved that term ination was in the best inte rest of the child. In re A.V .,
113 S.W .3d 355, 362 (T ex. 2003 ).
3