K. E. P. v. Texas Department of Family and Protective Services
03-16-00357-CV
Tex. App.Aug 12, 2016Background
- Mother K.E.P. gave birth to twins who exhibited neonatal opiate withdrawal; DFPS obtained conservatorship.
- DFPS set a reunification plan; K.E.P. complied with many requirements but twice failed reunification after positive drug tests.
- DFPS changed its plan from reunification to termination of parental rights.
- At bench trial, testimony covered: K.E.P.’s compliance efforts and drug use, parental bonding and love, the twins’ medical needs at birth, and their progress in foster care.
- The trial court terminated K.E.P.’s parental rights under Tex. Fam. Code § 161.001(b)(1)(D), (E), (P) and (2).
- Appellate counsel filed an Anders-style brief concluding the appeal is frivolous; the court conducted an independent review and affirmed, but denied counsel’s motion to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to terminate parental rights | K.E.P. argues (through counsel’s review) no non-frivolous issue; implicitly challenges termination | DFPS argues evidence (drug use, failed reunifications, children’s needs) supports statutory grounds | Court held evidence supports termination under cited Family Code provisions |
| Application of Anders procedure in termination appeals | K.E.P. (via counsel) invoked Anders procedure; no pro se brief filed | DFPS did not contest use of Anders procedure | Court applied Anders review, performed independent review, and found appeal frivolous |
| Counsel’s obligations on appeal and withdrawal | K.E.P. implicitly relies on appointed counsel to pursue merits or file review | DFPS maintained termination is proper; court must ensure counsel fulfilled Anders duties | Court denied counsel’s motion to withdraw, noting ongoing obligations (per Texas Supreme Court guidance) |
| Procedural sufficiency of trial court rulings | K.E.P. (by counsel) suggested no reversible trial-court errors | DFPS argued trial-court rulings were proper and not harmful | Court held trial-court rulings were correct or not harmful; affirmed termination |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (establishes counsel’s obligations when concluding an appeal is frivolous)
- Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641 (Tex. App.—Austin 2005) (applies Anders procedure to termination appeals and explains counsel must identify any potential points of error)