In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00085-CV
________________________
IN THE INTEREST OF S.D., L.D., A.D., AND J.E., CHILDREN
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2014-512,750; Honorable William R. Eichman II, Presiding
July 29, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, J.D.,1 appeals the trial court’s order terminating her parental rights to
four children, S.D., L.D., A.D., and J.E. I.D., the biological father of S.D., L.D., and A.D.,
was severed from the termination suit and there is a separate order governing his
parental rights. He has not appealed. Appellant, Jason E., the biological father of J.E.,
attempts to appeal the order terminating his parental rights as to that child.
1
To protect the privacy of the parties involved, we refer to them by their initials or abbreviated
names. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b).
In presenting her appeal, J.D.’s counsel has filed an Anders brief.2 In presenting
his appeal, Jason E. has raised two issues: (1) the legal and factual sufficiency of the
evidence supporting the order of termination and (2) ineffective assistance of his court-
appointed trial counsel. Appellee, the Texas Department of Family and Protective
Services, filed a motion to dismiss Jason E.’s appeal for want of jurisdiction based upon
an untimely filed notice of appeal. That motion is pending before this court. We affirm
the trial court’s order terminating J.D.’s parental rights and we grant Appellee’s motion
to dismiss Jason E.’s appeal.
APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a
parent and a child if the Department establishes (1) one or more acts or omissions
enumerated under section 161.001(b)(1) of the Code and (2) termination of that
relationship is in the child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2)
(West Supp. 2015);3 Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of
proof is by clear and convincing evidence. § 161.206(a) (West 2014). “‘Clear and
convincing evidence’ means 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.” § 101.007.
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although an
Anders brief is to be accompanied by the filing of a motion to withdraw in the context of a criminal trial, In
re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008), counsel did not file such a motion in this case
based upon her continuing duty of representation through the exhaustion of proceedings, including the
possible filing of a petition for review. See In re P.M., No. 15-0171, 2016 Tex. LEXIS 236, at *6 (Tex.
April 1, 2016).
3
Throughout the remainder of this opinion, we will cite provisions of the Texas Family Code as
“§” or “section.”
2
Only one statutory ground is required to support termination. In re K.C.B., 280
S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Although evidence
presented may be relevant to both the statutory grounds for termination and best
interest, each element must be established separately and proof of one element does
not relieve the burden of proving the other. See In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). In appellate review of a termination proceeding, the standard for sufficiency of
the evidence is that discussed in In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2013). In
reviewing a best interest finding, appellate courts consider, among other evidence, the
factors set forth in Holley, 544 S.W.2d at 371-72.
BACKGROUND
This is a consolidated case combining the termination proceedings related to
S.D. and L.D. (Cause No. 2013-507,067) with A.D. and J.E. (Cause No. 2014-512,750).
In April 2013, S.D. and L.D. were removed from the care of J.D. and I.D. for neglectful
supervision. At that time, I.D. was incarcerated and J.D. had left her children in the care
of a pregnant drug user for an extended period of time. The children were eventually
returned to J.D., and in September 2013, A.D. was born.
By April 2014, Jason E. had become a part of J.D.’s household despite the
Department’s instructions that he not be allowed near children due to his past drug use.
When the Department learned J.D. was permitting Jason E. to be around the children,
S.D., L.D., and A.D. were placed in foster care. In June 2014, the three children were
returned from foster care to live with J.D. under a monitored return. Again, despite the
Department’s instruction that J.D. not allow Jason E. around the children, he again
became part of the household. Less than three months later in August 2014, Jason E.
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tested positive for methamphetamine. The Department subsequently learned J.D. was
using nonprescription Xanax and methamphetamine. J.E. was born to J.D. and Jason
E. in September 2014. At birth, both J.D. and J.E. tested positive for
methamphetamine. As a result of these revelations, S.D., L.D., A.D., and J.E. were
removed and placed in foster care. In October, Jason E. and J.D. executed a service
plan that was later incorporated into a court order. The service plan required among
other things, that they stay drug-free and not violate any laws.
Both Jason E. and J.D. successfully worked their service plans for nine months,
and in July 2015, all four children were returned under monitored supervision. Less
than three months later, in September 2015, Jason E. was asked to leave the
household because he tested positive for marijuana. He was subsequently arrested for
outstanding warrants. In October, during a jail house phone call, Jason E. and J.D.
discussed using drugs together and plotted how they could attain clean test results in
upcoming drug tests. Once again, the children were removed and placed in foster care.
J.D. subsequently tested positive for methamphetamine use.
At that time, the previous case pertaining to S.D. and L.D. was consolidated with
a new case pertaining to A.D. and J.E. Alleging termination of Jason E.’s and J.D.’s
parental rights was warranted under section 161.001 subsections (b)(1)(D), (E), and (O)
of the Texas Family Code, the Department filed an amended petition asserting that
termination would be in the best interest of the children. See §§ 161.001(b)(1)(D), (E),
(O), and (b)(2) (West Supp. 2015). Following a five-day trial in February 2016, a jury
returned a verdict resulting in the termination of the parental rights of both parents. The
trial court subsequently issued its Order of Termination and this appeal followed.
4
J.D.’S APPEAL
By her Anders brief, J.D.’s counsel acknowledges she has conducted a diligent
review of the record and finds no reversible error to argue on appeal. She evaluates the
circumstances under which J.D.’s parental rights were terminated and concludes the
record supports the verdict of the jury and trial court’s order.
ANDERS V. CALIFORNIA
Although the Texas Supreme Court has yet to directly consider the issue, for
many years Texas appellate courts, including this court, have found the procedures set
forth in Anders v. California applicable to appeals of orders terminating parental rights.
See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.).4 The brief filed
in this appeal meets the requirements of Anders by presenting a professional evaluation
of the record and demonstrating why there are no arguable grounds for reversible error.
In support, counsel certifies she has conducted a conscientious examination of
the record, and in her opinion, the record reflects no potentially plausible basis to
support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Counsel has
demonstrated that she has complied with the requirements of Anders by (1) providing a
copy of the brief to J.D. and (2) notifying J.D. of her right to file a pro se response if she
desired to do so. Id. By letter, this court also granted J.D. an opportunity to exercise
4
See also In re R.M.C., 395 S.W.3d 820 (Tex. App.—Eastland 2013, no pet.); In re K.R.C., 346
S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.); In the Interest of D.D., 279 S.W.3d 849 (Tex.
App.—Dallas 2009, pet. denied); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—Beaumont
2005, no pet.); Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—
Austin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [1st Dist.] 2003, no
pet.); Porter v. Texas Dep’t of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus
Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y.,
69 S.W.3d 838, 841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—
Tyler 2001, no pet.); In re P.M.H., No. 06-10-00008-CV, 2010 Tex. App. LEXIS 3330, at *2 (Tex. App.—
Texarkana May 6, 2010, no pet.) (mem. op.); In the Interest of R.R., No. 04-03-00096-CV, 2003 Tex. App.
LEXIS 4283, at *10-12 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.).
5
her right to file a response to counsel’s brief, should she be so inclined. J.D. did not file
a response. The Department notified this court it would not file a response unless
requested to do so.
ANALYSIS
As in a criminal case, we have independently examined the entire record to
determine whether there are any non-frivolous issues 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 fact finder could have formed a firm belief or conviction
that grounds for termination existed in compliance with section 161.001 and that
termination of J.D.’s parental rights was in the children’s best interest. See Gainous v.
State, 436 S.W.2d 137, 137-38 (Tex. Crim. App. 1969). Accordingly, we agree with
counsel that there are no plausible grounds for appealing the termination of J.D.’s
parental rights.
JASON E.’S APPEAL
APPELLEE’S MOTION TO DISMISS
The Department has moved to dismiss Jason E.’s appeal for want of jurisdiction
by arguing that his notice of appeal was untimely filed. A timely filed notice of appeal is
essential to invoking this court’s jurisdiction. See TEX. R. APP. P. 25.1(b). The appeal of
a final order in a suit brought by the Department to terminate parental rights is an
accelerated appeal. See § 263.405(a). In an accelerated appeal, the notice of appeal
must be filed within twenty days after the judgment or order is signed. TEX. R. APP. P.
26.1(b). Furthermore, even though parties whose interests are aligned may file a joint
6
notice of appeal, TEX. R. APP. P. 25.1(c), if one party does file a notice of appeal,
another party may file their notice of appeal within the applicable time period provided
by Rule 26.1 or fourteen days after the first filed notice of appeal, whichever is later.
See TEX. R. APP. P. 26.1(d).
Notwithstanding these limitations, a notice of appeal may still be considered
timely if an appellant (1) files the notice within fifteen days after the deadline for filing the
notice of appeal and (2) files a motion requesting an extension of time to file the notice
of appeal. See TEX. R. APP. P. 26.3, 10.5(b). A motion for extension of time is
necessarily implied when the appellant files the notice of appeal within that fifteen-day
extension period. See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997).
Here, the Order of Termination was signed on February 18, 2016. Therefore,
notice of appeal from that order was due on March 9, 2016 (twenty days after the order
was signed). See TEX. R. APP. P. 26.1(b). Because J.D. timely filed her notice of
appeal on February 24, 2016, Jason E.’s notice of appeal was due on March 9, 2016
(the later of the applicable period under Rule 26.1(b) or fourteen days after J.D.’s notice
of appeal). See TEX. R. APP. P. 26.1(d). This deadline could have been further
extended to March 24, 2016 (fifteen days after the deadline for filing the notice of
appeal). See TEX. R. APP. P. 26.3; Verburgt, 959 S.W.2d at 617. Because Jason E.
filed his notice of appeal on April 7, 2016, it was not timely filed.
Notwithstanding that the Texas Supreme Court has directed us to construe the
Rules of Appellate Procedure reasonably and liberally so that the right of appeal is not
lost by imposing requirements not absolutely necessary to effect the purpose of those
7
rules, Verburgt, 959 S.W.2d at 616-17, we are prohibited from enlarging the time for
perfecting an appeal in a civil case. See TEX. R. APP. P. 2 (providing that we may not
suspend a rule’s operation or order a different procedure to alter the time for perfecting
an appeal). This court has no discretion to permit Jason E.’s untimely filed notice of
appeal to confer jurisdiction over this appeal.5 Accordingly, his purported appeal is
dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
Moreover, even if we were to accept jurisdiction, having reviewed the record, we
are convinced Jason E.’s violations of the trial court’s orders coupled with his repeated
drug use while caring for J.E. sufficiently support termination of his parental rights under
the applicable provisions of the Texas Family Code. See §§ 161.001(b)(1)(D), (E), (O),
and (b)(2) (West Supp. 2015). See also In re E.C.R., 402 S.W.3d 239, 248-49 (Tex.
2013).
CONCLUSION
We affirm the trial court’s order granting the termination of J.D.’s parental rights
and we grant Appellee’s motion to dismiss Jason E.’s appeal.
Patrick A. Pirtle
Justice
5
Given our conclusion that Jason E.’s notice of appeal was not timely filed, by letter dated June
1, 2016, we directed him to show this court why this court should not dismiss his appeal for want of
jurisdiction. He responded that he mistakenly believed his appointed trial counsel had filed a notice of
appeal before the deadline based upon counsel’s express representation that he had done so. According
to Jason E., it was not until appellate counsel investigated the matter that he learned his trial counsel had
misrepresented the facts to him. While we recognize the constitutional dimensions of a parental
termination proceeding and are not unsympathetic to Jason E.’s allegations of ineffective assistance of
counsel, the Texas Supreme Court has not given us any guidance with respect to “out of time appeals”
similar to that provided by the Texas Court of Criminal Appeals regarding such claims in criminal
proceedings. In light of Rule 2 of the Texas Rules of Appellate Procedure, we are reluctant to create an
exception that would alter the jurisdictional requirement of a timely notice of appeal.
8