in the Interest of A. R. Child v. Department of Family and Protective Services
01-21-00263-CV
| Tex. App. | Oct 14, 2021Background
- Trial court terminated the father's parental rights to his two-year-old son, A.R., based on clear-and-convincing evidence of endangerment, a prior termination as to another child, and constructive abandonment, and found termination was in the child's best interest.
- A.R. has lived with his maternal uncle James Orr for about a year; Orr's family is bonded with A.R. and plans to adopt him.
- The Department caseworker and the child advocate testified A.R. is thriving in his current placement and recommended termination of the father's rights.
- The father has an extensive criminal history (multiple felonies, >12 years incarcerated) and conceded he has been incarcerated for most of A.R.’s life and provided no care or financial support.
- The Department introduced a July 2017 decree that previously terminated the parents’ rights to another child on child-endangerment grounds; that decree was relied upon as a statutory predicate for terminating rights to A.R.
- Appellant’s appellate counsel filed an Anders brief asserting no non-frivolous grounds for appeal; the appellant did not file a pro se response. The court independently reviewed the record and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal sufficiency of predicate ground (prior termination/endangerment) | DFPS: prior termination of rights to another child on endangerment grounds satisfies §161.001(b)(1)(M) and supports termination for A.R. | Father: no direct challenge on appeal; record acknowledges prior decree | Held: prior termination conclusively establishes a statutory predicate ground; legally and factually sufficient |
| Best-interest finding under §161.001(b)(2) | DFPS: father’s criminal history, long incarcerations, lack of involvement, and A.R.’s stable, adoptive-ready placement support best interest | Father: no pro se challenge; argued at trial he lacked counsel contact but offered no evidence rebutting DFPS case | Held: multiple Holley factors favor termination; evidence clear and convincing to support best interest |
| Use of Anders procedures in termination appeal | DFPS/Court: Anders applicable; counsel satisfied obligations by filing compliant brief and record review required of court | Counsel for father: filed Anders brief conceding no non-frivolous issues; father did not oppose | Held: Anders procedures appropriate; court conducted independent review and found no arguable grounds |
| Alleged ineffective assistance of trial counsel | DFPS: even assuming poor counsel contact, key evidence (prior decree, criminal history, incarceration, lack of involvement) was indisputable, so no prejudice | Father: objected at trial to lack of contact with counsel and claimed no opportunity to discuss case | Held: ineffective-assistance claim not supported by the record; no prejudice shown; not an arguable appellate issue |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (permitting counsel to file brief asserting appeal is frivolous when addressing anything in record that might support appeal)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parental rights are constitutionally protected but may be terminated for unfitness)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (non-exhaustive list of factors for evaluating a child’s best interest)
- In re A.C., 560 S.W.3d 624 (Tex. 2018) (standards for legal and factual sufficiency review in termination cases)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (single factor may suffice to support termination; deference to factfinder)
- In re J.O.A., 283 S.W.3d 336 (Tex. 2009) (ineffective-assistance standard and role of record in termination suits)
- In re K.M.L., 443 S.W.3d 101 (Tex. 2014) (crediting evidence that supports the finding and disregarding contrary evidence the factfinder could reasonably have disbelieved)