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In re J.L.

Court of Appeals of Texas, Sixth District, Texarkana

January 10, 2020

IN THE INTEREST OF J.L., A.L., AND J.L., CHILDREN

          Date Submitted: January 7, 2020

          On Appeal from the 102nd District Court Bowie County, Texas Trial Court No. 18C0315-102

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          SCOTT E. STEVENS JUSTICE.

         Kelly's parental rights to her children, Jeb, Amber, and James, were terminated in a suit brought by the Texas Department of Family and Protective Services (Department).[1] Bob's parental rights to Amber and James were also terminated.[2] After a bench trial, the trial court found that (1) Kelly and Bob knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, (2) Kelly and Bob engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being, (3) Kelly and Bob knowingly engaged in criminal conduct that resulted in their conviction of an offense and confinement or imprisonment and inability to care for the children for not less than two years from the date of filing the petition, and (4) termination of Kelly's and Bob's parental rights was in the children's best interests. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (Q), (2) (Supp.). Kelly and Bob appeal.

         In her sole point of error on appeal, Kelly argues that she received ineffective assistance of counsel because counsel did not challenge the trial court's aggravated circumstances finding. Bob is represented on appeal by court-appointed counsel who has filed a brief in accordance with the requirements of Anders v. California, 386 U.S. 738 (1967). Court-appointed counsel has concluded, after a thorough review of the record, that Bob's appeal is frivolous and without merit.

         We find that Kelly has not shown that her counsel rendered ineffective assistance. We also agree that no arguable issues are presented in Bob's appeal. Therefore, we affirm the judgment of the trial court. However, in consideration of appointed counsel's continuing obligation to represent Bob for purposes of any further appellate review, we deny Bob's counsel's motion to withdraw.

         I. Factual and Procedural Background

         Bob and Kelly had another child, Darrin. The affidavit in support of the Department's petition for removal of all the children alleged that Darrin suffered a subdural hematoma after being beaten at home by Bob while Kelly was in the home. At a hearing to determine whether aggravated circumstances were present, the Department presented evidence showing that Bob and Kelly took four-year-old Darrin to the hospital with fresh bruises all over his body and that both Bob and Kelly had a history of physical abuse against their children. The testimony also established that Darrin died as a result of his injuries and that Bob was being charged with homicide. As a result of this evidence, and the Department's recitation of Bob and Kelly's lengthy history of involvement with Child Protective Services (CPS), the trial court made a finding of aggravated circumstances pursuant to Section 262.2015 of the Texas Family Code, which reads, in relevant part:

(a) The court may waive the requirement of a service plan and the requirement to make reasonable efforts to return the child to a parent and may accelerate the trial schedule to result in a final order for a child under the care of the Department of Family and Protective Services at an earlier date than provided by Subchapter D, Chapter 263, if the court finds that the parent has subjected the child to aggravated circumstances.
(b) The court may find under Subsection (a) that a parent has subjected the child to aggravated circumstances if:
. . . .
(2) the child or another child of the parent is a victim of serious bodily injury . . . inflicted by the parent . . .; [or]
(3) the parent has engaged in conduct against the child or another child of the parent that would constitute an offense under the ...

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