IN THE
TENTH COURT OF APPEALS
No. 10-14-00193-CV
IN THE INTEREST OF X.H. AND M.M.G., CHILDREN
From the 74th District Court
McLennan County, Texas
Trial Court No. 2013-1745-3
OPINION
Luann appeals from a judgment that terminated the parent-child relationship
between her and her children, X.H. and M.M.G. See TEX. FAM. CODE ANN. § 161.001
(West 2008). In presenting this appeal, appointed counsel has filed an Anders brief in
support of his motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed.2d 493 (1967). We grant counsel's motion and affirm.
The procedures set forth in Anders v. California are applicable to appeals of orders
terminating parental rights. In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002,
order) (per curiam) (applying Anders to parental termination appeals). See also Taylor v.
Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646-647 (Tex. App.—Austin
2005, pet. denied). In support of his motion to withdraw, counsel certifies he has
conducted a conscientious examination of the record and, in his opinion, the record
reflects no potentially plausible basis to support an appeal. Counsel certifies he has
diligently researched the law applicable to the facts and issues and candidly discusses
why, in his professional opinion, the appeal is frivolous. In re D.A.S., 973 S.W.2d 296,
297 (Tex. 1998). Counsel has demonstrated he has complied with the requirements of
Anders by (1) providing a copy of the brief to Luann and (2) notifying her of her right to
file a pro se response if she desired to do so. Id. Luann has not filed a pro se response to
the Anders brief.
The order of termination recites that Luann:
knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endangered the physical or emotional
well-being of the children;
engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional well-
being of the children; and
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
children who had been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a
result of the children's removal from the parent under Chapter 262 for the
abuse and neglect of the children.
TEX. FAM. CODE ANN. § 161.001(1)(D), (E) & (O) (West 2008).
Appellate counsel was appointed for Luann. A motion for new trial was filed by
appellate counsel, but there is nothing in the record to indicate that a hearing was
requested or held on the motion.
In the Interest of X.H. and M.M.G., Children Page 2
By the Anders brief, counsel evaluates potential issues on all three grounds
supporting termination. Counsel acknowledges that only one statutory ground is
necessary to support an order of termination in addition to a finding that termination is
in the children's best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). He then
analyzes the evidence to support the termination order under section 161.001(1)(O) and
the best interest of the children and concludes there is no arguable error. Counsel's
brief evidences a professional evaluation of the record for error, and we conclude that
counsel performed the duties required of an appointed counsel.
STANDARD OF REVIEW IN TERMINATION CASES
Due process requires application of the clear and convincing standard of proof in
cases involving involuntary termination of parental rights. In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof
which 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. See TEX. FAM. CODE ANN. § 101.007
(West 2008). See also In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
The Family Code permits a court to order termination of parental rights if the
petitioner establishes one or more acts or omissions enumerated under subsection (1) of
the statute and also proves that termination of the parent-child relationship is in the
best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West 2008); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976).
In the Interest of X.H. and M.M.G., Children Page 3
FAILURE TO COMPLY WITH COURT ORDER
Parental rights may be terminated if a parent fails to comply with a court order
that specifically establishes the actions necessary for the parent to obtain the return of a
child who has been in the permanent or temporary managing conservatorship of the
Department for not less than nine months as a result of the child's removal under
Chapter 262 of the Family Code for the abuse or neglect of the child. See TEX. FAM.
CODE ANN. § 161.001(1)(O) (West 2008); In re J.F.C., 96 S.W.3d at 278-79. We agree with
counsel's evaluation that there is clear and convincing evidence to support termination
under section 161.001(1)(O). Further, because only one statutory ground is necessary to
support an order of termination, we need not evaluate the evidence as it pertains to the
other grounds for termination alleged, subsections (D) and (E).
BEST INTEREST OF THE CHILDREN
Notwithstanding the sufficiency of the evidence to support termination under
section 161.001(1), we must also find clear and convincing evidence that termination of
the parent-child relationship was in the children's best interest. See TEX. FAM. CODE
ANN. § 161.001(2) (West 2008). Evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the child's
best interest. See In re C.H., 89 S.W.3d at 28. There is a long-standing non-exhaustive
list of factors for a court to consider in deciding the best interest of a child in a
termination case. See Holley, 544 S.W.2d at 371-72.
We agree with counsel's evaluations that there is clear and convincing evidence
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under the appropriate legal and factual sufficiency standards for the jury to have
determined that termination of the parent-child relationship was in the best interest of
X.H. and M.M.G.
SUMMARY
Upon receiving a "frivolous appeal" brief, this Court must conduct a full
examination of all proceedings to determine whether the case is wholly frivolous. See
Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300 (1988); see also In
re M.A.R., No. 10-10-00237-CV, 2011 Tex. App. LEXIS 3596, at *2 (Tex. App.—Waco May
11, 2011, no pet.) (mem. op.). After our review of the entire record and counsel's brief,
we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v.
State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Accordingly, we affirm the trial
court's judgment.
MOTION TO WITHDRAW
In accordance with Anders, counsel has filed a motion to withdraw. See Anders,
386 U.S. at 744, 87 S. Ct. at 1400; see also In re Schulman, 252 S.W.3d 403, 407 n.17 (Tex.
Crim. App. 2008). We grant counsel's motion to withdraw. 1 Within five days of the
date of this Court's opinion, counsel is ordered to send a copy of the opinion and
1
No substitute counsel will be appointed. Should Luann wish to seek further review of this case by this
Court or the Texas Supreme Court, she must either retain an attorney to file a motion for rehearing or a
petition for review or file a pro se motion for rehearing or a petition for review. Any motion for rehearing
must be filed within fifteen days of this opinion. Any petition for review must be filed within forty-five
days after the date of either this opinion or the last ruling by this Court on all timely-filed motions for
rehearing. See TEX. R. APP. P. 53.7(a). Any petition for review must comply with the requirements of
Texas Rule of Appellate Procedure 53.2. TEX. R. APP. P. 53.2.
In the Interest of X.H. and M.M.G., Children Page 5
judgment to Luann and to advise her of her right to pursue a petition for review in the
Texas Supreme Court. See In re K.D., 127 S.W.3d 66, 68 n.3 (Tex. App.—Houston [1st
Dist.] 2003, no pet.).
CONCLUSION
The motion to withdraw is granted and the judgment of the trial court is
affirmed.2
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Motion granted
Opinion delivered and filed October 2, 2014
[CV06]
2 In this proceeding the appellant was determined to be indigent and allowed to proceed without the
advance payment of cost. See TEX. R. APP. P. 20.1. The ability to proceed without the advance payment of
cost does not, however, mean that the costs are not owed by an unsuccessful appellant. See In re
McGowan, No. 10-10-00208-CV, 2010 Tex. App. LEXIS 5046 (Tex. App.—Waco June 30, 2010, orig.
proceeding) (mem. op.). Because we have affirmed the judgment of the trial court, and thus ruled against
the appellant in this appeal, the judgment of the Court will award the appellee the appellate cost paid by
the appellee, if any, and all unpaid cost of the appeal will be taxed against the appellant. The Clerk of
this Court is hereby ordered to write off all unpaid filing fees for this proceeding from the accounts
receivable of the Court. The write off, however, in no way eliminates or reduces the fees owed by the
appellant pursuant to the Court’s judgment.
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