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In re A.M.

Court of Appeals of Texas, Eleventh District

April 5, 2018

IN THE INTEREST OF A.M. AND A.M., CHILDREN

          On Appeal from the 91st District Court Eastland County, Texas Trial Court Cause No. CV1644120

          Panel consists of: Willson, J., Bailey, J., and Wright, S.C.J. [1]

          MEMORANDUM OPINION

          PER CURIAM

         This is an appeal from an order in which the trial court terminated the parental rights of the mother and the father of A.M. and A.M. Both parents filed a notice of appeal. We dismiss in part and affirm in part.

         Mother's Appeal

         The mother's court-appointed counsel has filed a motion to withdraw and a supporting brief in which he professionally and conscientiously examines the record and applicable law and concludes that the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See In re Schulman, 252 S.W.3d 403, 406-08 (Tex. Crim. App. 2008); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In light of a holding by the Texas Supreme Court, however, an Anders motion to withdraw "may be premature" if filed in the court of appeals under the circumstances presented in this case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). The court in P.M. stated that "appointed counsel's obligations can be satisfied by filing a petition for review that satisfies the standards for an Anders brief." Id. at 27-28.

         The mother's counsel provided her with a copy of the brief, the motion to withdraw, and an explanatory letter. Counsel also informed the mother of her right to review the record and file a pro se response to counsel's brief. In compliance with Kelly v. State, 436 S.W.3d 313, 318-20 (Tex. Crim. App. 2014), counsel provided the mother with a motion for pro se access to the appellate record. Counsel also notified the mother of her right to pursue a petition for review in the Texas Supreme Court. We conclude that the mother's counsel has satisfied his duties under Anders, Schulman, and Kelly.

         We note that the mother has not filed a pro se response to counsel's Anders brief. Following the procedures outlined in Anders and Schulman, we have independently reviewed the record in this cause, and we agree that the mother's appeal is without merit and should be dismissed. See Schulman, 252 S.W.3d at 409. However, in light of P.M., we deny the motion to withdraw that was filed by the mother's court-appointed counsel. See P.M., 520 S.W.3d at 27.

         Counsel's motion to withdraw is denied, and the appeal is dismissed as to the mother only.

         Father's Appeal

         In two issues on appeal, the father challenges the sufficiency of the evidence to support the trial court's findings in support of the termination of his parental rights. Termination of parental rights must be supported by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2017). To determine on appeal if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(U) and that termination is in the best interest of the child. Fam. § 161.001(b).

         With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.-Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.

          In this case, the trial court found that the father had committed four of the acts listed in Section 161.001(b)(1)-those found in subsections (D), (E), (N), and (O). Specifically, the trial court found that the father had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the children's physical or emotional well-being; that the father had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being; that the father had constructively abandoned the children; and that the father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the children, who had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parents for abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that termination of the father's parental rights would be in the best interest of the children.

         In his first issue, the father challenges the legal and factual sufficiency of the evidence with respect to the trial court's findings under subsections (D), (E), (N), and (O). We need only find that the evidence is ...


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