Court of Appeals of Texas, Fourth District, San Antonio
the 365th Judicial District Court, Dimmit County, Texas Trial
Court No. 17-01-13061-DCVAJA Honorable Amado J. Abascal, III,
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
A. Rodriguez, Justice
appeal arises from a suit brought by the Texas Department of
Family and Protective Services to terminate Appellant Don
S.'s parental rights to his daughter, N.N.M. On January
2, 2017, four-month-old N.N.M. was removed from her
mother's care after being hospitalized with a brain
injury. In addition to the brain hematoma, N.N.M. had two
healing leg fractures and visible bruising on her right
shoulder. The boyfriend of N.N.M.'s mother admitted to
grabbing N.N.M. by the leg and swinging her across the room,
causing her head to hit the wall. When asked by the
Department about N.N.M.'s father, N.N.M.'s mother
eventually provided Don S.'s full name but did not
provide a date of birth or address. After multiple attempts
at contacting Don S., on November 7, 2017, the Department was
able to make contact. Don S. immediately requested a DNA
test. He was assigned a courtesy caseworker in his hometown
of Lubbock and was given a service plan. After a jury trial,
his parental rights were terminated pursuant to sections
161.001(b)(1)(C), (D), (E), (N), and (O), and section
161.001(b)(2) of the Texas Family Code.
counsel for Don S. has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). See In re
R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex.
App.- San Antonio 2003, order) (applying Anders
procedure in appeal from order terminating parental rights),
disp. on merits, 2003 WL 22080522 (Tex. App.-San
Antonio 2003, no pet.). Counsel concluded that a thorough
review of the record revealed the appeal to be frivolous and
without merit. See Anders, 386 U.S. at 744; In
re K.D., 127 S.W.3d 66, 67 (Tex. App.-Houston [1st
Dist.] 2003, no pet.). When we receive an Anders
brief from an appellant's appointed attorney who asserts
that no arguable grounds for appeal exist, we must determine
that issue independently by conducting our own review of the
entire record. See Anders, 386 U.S. at 744. We also
consider any pro se response. Johnson v. Tex. Dep't
of Family & Protective Servs., No. 01-08-00749-CV,
2010 WL 5186806, at *1 (Tex. App.-Houston [1st Dist.] 2010,
no pet.). If, after reviewing the entire record, we
find any arguable grounds for appeal, we must abate the
appeal and order the trial court to appoint other counsel to
present those and any other grounds that might support
appeal. See Anders, 386 U.S. at 744.
Don S.'s parental rights were terminated pursuant to
multiple predicate grounds. Under the Texas Family Code,
along with a best-interest finding under section
161.001(b)(2), a finding of only one ground listed in section
161.001(b)(1) is required to terminate parental rights.
See Tex. Fam. Code Ann. § 161.001(b). Thus,
when termination is based on multiple predicate grounds for
termination, many appellate courts have affirmed the trial
court's order based on one ground and not reached issues
related to other predicate grounds. See, e.g., In re
A.T., No. 04-18-00613-CV, 2018 WL 6793572, at *5 (Tex.
App.-San Antonio 2018, no pet.); In re L.L.N.-P.,
No. 04-18-00380-CV, 2018 WL 6069853, at *4 (Tex. App.-San
Antonio 2018, pet. denied).
however, the Texas Supreme Court has explained that even when
sufficient evidence exists to terminate under one predicate
ground, due process requires appellate courts to address
appellate points related to subsections (b)(1)(D) or (E).
See In re N.G., 577 S.W.3d 230, 235 (Tex. 2019).
Subsection (b)(1)(D) permits termination of parental rights
if the court finds by clear and convincing evidence that the
parent has "knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child." Tex.
Fam. Code Ann. § 161.001(b)(1)(D). Subsection (b)(1)(E)
permits termination of parental rights if the court finds by
clear and convincing evidence that the parent has
"engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical
or emotional well-being of the child." Id.
§ 161.001(b)(1)(E). The supreme court explained that
these findings under subsections (b)(1)(D) and (E) may be the
basis for termination in a subsequent suit involving a
different child. See In re N.G., 577 S.W.3d at 234.
Subsection (b)(1)(M) permits parental rights to be terminated
if the parent "has had his or her parent-child
relationship terminated with respect to another child based
on a finding that the parent's conduct was in violation
of Paragraph (D) or (E) or substantially equivalent
provisions of the law of another state." In re
N.G., 577 S.W.3d at 234 (quoting section
161.001(b)(1)(M) of the Family Code). Because findings based
on subsections (b)(1)(D) or (E) may become "a basis to
terminate a parent's right to other children," the
supreme court reasoned that when a parent presents an
appellate issue related to subsections (b)(1)(D) or (E) and
the appellate court does not address the issue on appeal, the
appellate court "eliminates the parent's only chance
for review of a finding that will be binding as to parental
rights to other children." Id. at 235.
According to the supreme court, "the parent's
fundamental liberty interest at stake outweighs the
state's interest in deciding only what is necessary for
final disposition of the appeal." Id. at 237.
"Allowing section 161.001(b)(1)(D) or (E) findings to go
unreviewed on appeal when the parent has presented the issue
to the court thus violates the parent's due process and
due course of law rights." Id.
this holding by the supreme court, we must consider whether
an arguable ground for appeal exists with respect to
subsections (b)(1)(D) and (E). After reviewing the record in
this appeal, we conclude that there are arguable issues for
appeal relating to the legal and factual sufficiency of the
evidence to support findings under subsections (b)(1)(D) and
(E). Therefore, we abate this appeal and order the trial
court to appoint new appellate counsel for Appellant Don S.
within ten days. After new appellate counsel has been
appointed, we will notify the parties of the briefing
schedule for Appellant Don S.'s appeal.
 Don S. has not filed a pro se