in the Interest of S.D., L.D., A.D., and J.E., Children
07-16-00085-CV
| Tex. App. | Jul 29, 2016Background
- Four children (S.D., L.D., A.D., J.E.) were removed multiple times due to parents' drug use, neglectful supervision, and violations of court-ordered service plans; J.D. (mother) and Jason E. (father of J.E.) both tested positive for methamphetamine at various times.
- The Department filed petitions to terminate parental rights under Texas Family Code §161.001(b)(1)(D), (E), (O) and best-interest §161.001(b)(2).
- After a five-day jury trial in Feb 2016, the jury returned a verdict terminating both parents’ rights; the trial court entered an order of termination on Feb 18, 2016.
- J.D. appealed via an Anders brief (her counsel found no nonfrivolous issues); this court independently reviewed the record and affirmed termination as supported by clear and convincing evidence.
- Jason E. filed a notice of appeal late (filed Apr 7, 2016); the Department moved to dismiss for lack of jurisdiction based on untimeliness. The court dismissed his appeal as untimely and therefore beyond the court’s jurisdiction; it noted that, on the merits, termination of Jason E.’s rights would also be supported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate J.D.’s parental rights | Dept: clear-and-convincing proof of statutory grounds (D/E/O) and best interest | J.D. (via Anders) contends no nonfrivolous issues; no specific sufficiency challenge preserved | Affirmed: record permits firm belief grounds and best interest proven under §161.001 |
| Proper application of Anders procedure in parental-rights appeals | Dept: Anders procedure applicable; counsel complied with requirements | J.D.: notified and given chance to respond; did not respond | Court independently reviewed record and agreed no nonfrivolous issues exist |
| Timeliness of Jason E.’s notice of appeal (jurisdiction) | Dept: notice due by March 9, 2016 (or March 24 with extension); his Apr 7 filing untimely | Jason E.: claimed counsel misrepresented that a timely appeal was filed; sought to raise ineffective-assistance claim | Dismissed for lack of jurisdiction: notice untimely; court has no discretion to enlarge filing time |
| Merits of terminating Jason E.’s rights (alternative) | Dept: repeated drug use and violations of court orders support termination under statutory grounds | Jason E.: raised ineffective assistance of trial counsel and challenges to sufficiency | On merits review, record would support termination under §§161.001(b)(1)(D),(E),(O) and best interest |
Key Cases Cited
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (factors for best-interest analysis in parental-termination cases)
- In re C.H., 89 S.W.3d 17 (Tex. 2002) (proof of statutory ground and best interest are separate burdens)
- In re K.M.L., 443 S.W.3d 101 (Tex. 2013) (standard for appellate sufficiency review in termination proceedings)
- Anders v. California, 386 U.S. 738 (U.S. 1967) (requirements when appellate counsel finds no nonfrivolous issues)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988) (independent appellate review when counsel files an Anders brief)
- Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) (notice-of-appeal timing and implied extension when filed in the 15-day grace period)
- In re E.C.R., 402 S.W.3d 239 (Tex. 2013) (affirming termination where statutory grounds and best interest supported termination)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (discussion of appellate independent review in Anders context)
- Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969) (standard that a reasonable factfinder could form a firm belief or conviction)