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In re J.J.M.

Court of Appeals of Texas, Tenth District

December 18, 2019

IN THE INTEREST OF J.J.M., A CHILD

          From the 74th District Court McLennan County, Texas Trial Court No. 2018-248-3

          Before Chief Justice Gray, [*] Justice Davis, and Justice Neill

          MEMORANDUM OPINION

          REX D. DAVIS JUSTICE

         After appellant's parental rights to her child, J.J.M., were terminated following a bench trial, [1] appellant's appointed appellate counsel filed a notice of appeal.[2] Appellant's counsel has now filed an Anders brief. Counsel asserts that he has diligently reviewed the record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.- Waco 2002, no pet.) (per curiam) (applying Anders to termination appeal).

         Counsel's brief meets the requirements of Anders; it presents a professional evaluation demonstrating why there are no arguable grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) ("In Texas, an Anders brief need not specifically advance 'arguable' points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities."); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel has carefully discussed why, under controlling authority, there is no reversible error in the trial court's order of termination. Counsel has informed us that he has: (1) examined the record and found no arguable grounds to advance on appeal; (2) served a copy of the brief and counsel's motion to withdraw on Appellant; and (3) informed Appellant of her right to obtain a copy of the record and of her right to file a pro se response.[3] See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978); see also Schulman, 252 S.W.3d at 409 n.23.

         Appellant has filed a pro se response to the Anders brief and asserts that there are issues that should be addressed on appeal. Although provided the opportunity, neither the Texas Department of Family and Protective Services, represented by the District Attorney for McLennan County, Texas, nor the ad litem have filed a reply to appellant's pro se response. The brief filed by appellant's attorney specifically notes that the record is sufficient to support termination under Ground O. In her pro se response, appellant challenges the sufficiency of all of the grounds found by the trial court to support termination.

         Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509.

         Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).

In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.

J.F.C., 96 S.W.3d at 266.

         In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.

Id. (footnotes and citations omitted); see In re C.H., 89 S.W.2d at 25.

         The record reflects that J.J.M. first came to the Department's attention in January 2018 when appellant was hospitalized in Waco after being picked up by the Waco police. Appellant, while accompanied by J.J.M., abandoned her car on a bridge and took J.J.M. to the lobby of a local hotel. Appellant left her purse and her cell phone in the still-running car. Appellant was transferred to a psychiatric facility due to her mental state, and J.J.M. was placed in the custody of his grandfather. J.J.M. was eventually placed in foster care. Appellant already had a case with the Department in relation to her older son, who aged out of Department supervision while the present case ...


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