TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00818-CV
J. M. D., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-003782, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING
MEMORANDUM OPINION
The trial court held a bench trial and, at the conclusion, signed a final decree
terminating J.M.D.’s parental rights to his son “Keith,” who was almost two years old. 1 The
court found that J.M.D.’s parental rights to another child had been terminated and that he had
failed to comply with the provisions of a court order that established actions necessary to regain
custody. See Tex. Fam. Code § 161.001(b)(1)(M), (O). 2 The court also found that termination
of J.M.D.’s parental rights was in Keith’s best interest. See id. § 161.001(b)(2).
1 We refer to appellant by his initials and to the child and other relevant individuals by
aliases. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. The mother signed an affidavit
relinquishing her parental rights; she is not a party to this appeal.
2Subsection (M) allows a parent’s rights to be terminated if his rights to another child
were terminated based on a finding that his conduct violated subsection (D) (conditions that
endanger the child) or (E) (conduct that endangered the child). Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (M).
In June 2018, the Texas Department of Family and Protective Services sought
custody after receiving two referrals alleging that Keith was being neglected by his mother,
“Susan”; and a third referral alleging that during an incident of domestic violence between Susan
and her then-boyfriend (not J.M.D.), Susan shouted for someone to come get the baby, but before
anyone could respond, her boyfriend “yelled ‘take the fucking baby’ and then grabbed [Keith]
and threw him onto the floor.” J.M.D. was not present during that incident.
At the final hearing, a Department caseworker testified that Keith has three older
siblings—twins who are one year older than Keith and a sister who is two years older. J.M.D. is
the father of the twins but not the oldest girl. The Department removed the three older children
from the parents about six months before Keith was born due to “multiple reports of violence
between [Susan] and [J.M.D.] and concerns for significant neglect and abuse” of the three older
children. Before their removal, the three older children were living with J.M.D. at his mother’s
house with J.M.D. as the primary caretaker, and the infant twins were diagnosed as failing to
thrive. In addition, the boy had “open sores that were weeping,” and the girl’s brain scan
“indicated several bleeds . . . consistent with non-accidental injury.” The children were taken
into Department care and placed in the same foster home where Keith was later placed. The
parents’ rights to the older children were terminated in January 2019. 3 The foster parents
adopted the oldest child and were in the process of trying to adopt the twins.
Keith was born while the earlier case was pending and was removed at about six
months old due to concerns about neglect and domestic violence between Susan and her
boyfriend. J.M.D. was not living with Susan and Keith, and the caseworker said that J.M.D.
See J.M.D. v. Department of Family & Protective Servs., No. 03-19-00228-CV, 2019
3
WL 3771806 (Tex. App.—Austin Aug. 9, 2019, pet. denied) (mem. op.).
2
“wasn’t really around during” the investigation. After a DNA test established his paternity,
J.M.D. was offered services, but his “engagement with services has been limited”—he did not
attend therapy or anger management, did not show that he was employed, and failed to take
multiple drug tests. He relocated to the Dallas area in mid-2018 but did not inform the
Department of the move until the end of November. J.M.D. was first offered weekly visits and
then, after his move, monthly visits; since August 2018, he had seen Keith six times in total.
Keith was placed in the same home as his siblings after he was removed from
Susan’s care, and the caseworker said he was “doing incredibly well,” was loved by the foster
parents, and was “so bonded with all of his siblings.” Keith’s CASA volunteer testified that the
foster home was “very loving” and “very structured” and that “that’s exactly what children need
in life.” The CASA volunteer testified that the children eat healthful food, have a reliable
routine, are “very, very happy,” and love being around each other, saying, “I’ve never seen
siblings that are so connected and loved.” She had observed some of J.M.D.’s visits with Keith
and said that, although J.M.D. tried to soothe Keith, Keith would sometimes scream and cry for
the entire visit until he fell asleep or was handed back to his caseworker or one of his foster
mothers. She did not believe J.M.D. could handle parenting, saying that at one visit, Keith was
“screaming, really screaming. And [J.M.D.] got about this far from [Keith’s] face and he yelled,
Shut up. You sound like [Susan], just like your baby mama.” She said that when she tried to
have a discussion with J.M.D. about her role in the case, he “just blew me off and told me he
didn’t need to talk to me.” Keith’s foster mothers testified about the bond between the siblings,
about the children and how they interact, and about their family routines. They said that they
had adopted Keith’s oldest sibling, were in the process of adopting the twins, and wanted to
adopt Keith as well.
3
Susan signed a relinquishment of her parental rights on the same day as the final
hearing. At the conclusion of the hearing, the trial court terminated both Susan’s and J.M.D.’s
parental rights, telling J.M.D.:
I don’t have any choice, after the evidence I’ve heard today, but to order that your
rights also be terminated under 161.001 M and O. You didn’t work your services.
You just didn’t. Four visits in the last 10 months when your twins’ rights were
terminated. You should have seen it coming. I can’t explain it, and I can’t —
either you’re not getting the messages from your mother or—what really struck
me is, you had a cell phone. It went off in court. I don’t—and you wouldn’t even
talk to [the CASA volunteer]. People were trying [to] give you the help to get this
little boy back, and you just didn’t work your services. You didn’t comply. And
so I find, unfortunately, that it’s in his best interest that your rights be terminated.
The court signed a final decree to that effect, terminating J.M.D.’s parental rights under
subsections (M) and (O) and finding that termination was in Keith’s best interest, see Tex. Fam.
Code § 161.001(b)(1)(M), (O), (b)(2); Susan’s rights were terminated pursuant to subsection (K),
see id. § 161.001(b)(1)(K) (termination based on relinquishment of parental rights).
J.M.D.’s court-appointed appellate counsel has filed a brief discussing the record,
the elements that the Texas Department of Family and Protective Services was required to prove,
the standard of review, and counsel’s conclusions that J.M.D. has no arguable grounds for appeal
and that his appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 744 (1967);
High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. 1978); see also Taylor v. Texas Dep’t of
Protective & Regulatory Servs., 160 S.W.3d 641, 646-47 (Tex. App.—Austin 2005, pet. denied)
(applying Anders procedure in appeal from termination of parental rights). Counsel has certified
to this Court that he provided J.M.D. a copy of the brief and the appellate record, along with a
notice advising him of his right to file a pro se brief. No pro se brief has been filed.
4
We have thoroughly reviewed the record and counsel’s brief, and we agree with
counsel’s assessment that the appeal is frivolous and without merit. We therefore affirm the trial
court’s final decree of termination. Counsel’s motion to withdraw is denied. See In re P.M., 520
S.W.3d 24, 27 (Tex. 2016). 4
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Triana and Smith
Affirmed
Filed: February 12, 2020
4 The Texas Supreme Court has held that the right to counsel in suits seeking termination
of parental rights extends to “all proceedings in [the Texas Supreme Court], including the filing
of a petition for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). Thus, counsel’s obligation
to J.M.D. has not yet been discharged, and the request to withdraw is premature. See id. If after
consulting with counsel J.M.D. desires to file a petition for review, counsel should timely file
with the Texas Supreme Court “a petition for review that satisfies the standards for an Anders
brief.” Id. at 27-28.
5