in the Interest of A.G., J.G., and J.G., Children
13-21-00099-CV
| Tex. App. | Aug 31, 2021Background
- The Texas Department of Family and Protective Services removed three young children after a May 15, 2019 incident in which one child ingested a sibling’s clonidine and another had a buttock bruise; the Department cited S.F.’s ongoing methamphetamine use and mental-health concerns.
- S.F. had a prior FBSS case and multiple prior Department removals; she admitted long-term drug use and conceded her substance use endangered her children.
- Over the pendency of the case S.F. had multiple positive drug tests (urine and hair), failed numerous drug tests, relapsed after inpatient treatment, did not complete parenting classes or outpatient counseling, missed visits, lost housing, and remained unemployed.
- The Department sought termination under Tex. Fam. Code §161.001(b)(1)(D), (E), (N), (O), and (P); a jury found termination appropriate and the trial court entered judgment terminating S.F.’s parental rights.
- Appellate counsel filed an Anders brief and moved to withdraw, asserting no non-frivolous appellate issues; the court of appeals performed an independent review, found no reversible error, affirmed, but denied counsel’s motion to withdraw as premature under Texas precedent requiring counsel’s continued availability for Supreme Court review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate under §161.001(b)(1)(D) and (E) | Department: S.F.’s chronic substance abuse, treatment failures, missed services, and prior removals show endangerment and inability to care for children | S.F.: (as appellant) implicitly disputes sufficiency but appellate counsel identified no non-frivolous sufficiency challenge | Court: After independent review, found no reversible error and upheld termination findings under (D) and (E) |
| Adequacy of Anders-style brief | Department: N/A (respondent) | S.F.’s counsel: brief complies with Anders/Schulman standards and shows no arguable grounds for appeal | Court: Anders brief met Texas requirements; court conducted full review and found no meritorious issues |
| Motion for counsel to withdraw at court of appeals | Department: N/A | Counsel: requests withdrawal based on finding appeal frivolous | Court: Denied motion to withdraw as premature because counsel must remain available for possible petition for review in Texas Supreme Court (In re P.M.) |
| Appellate independent-review obligation | Department: N/A | S.F./counsel: urged no issues; court must still review record for reversible error | Court: Per Penson/Anders/Schulman, court performed full review, addressed §161.001(b)(1)(D),(E) concerns, and affirmed judgment |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (standards for appointed counsel who believes appeal is frivolous)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988) (appellate courts must independently review the record after an Anders brief)
- In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) (Texas guidance on content and procedure for Anders-type briefs)
- In re N.G., 577 S.W.3d 230 (Tex. 2019) (due-process requirement that appellate courts detail analysis for termination findings under §161.001(b)(1)(D) and (E))
- In re P.M., 520 S.W.3d 24 (Tex. 2016) (appointed counsel in parental-termination appeals must remain available for proceedings in the Texas Supreme Court; counsel cannot withdraw prematurely)
- Porter v. Tex. Dep’t of Protective & Regulatory Servs., 105 S.W.3d 52 (Tex. App.—Corpus Christi–Edinburg 2003) (approving Anders-type brief in parental termination appeal)