T. C. and D. D. v. Texas Department of Family and Protective Services
03-16-00523-CV
| Tex. App. | Jan 12, 2017Background
- Child (alias Terri) born 2014; tested positive for marijuana and PCP at birth. Mother (D.D.) completed inpatient drug court but relapsed while in outpatient sober home. Father (T.C.) had a long criminal history including violent and drug offenses and was incarcerated during trial.
- Family violence and threats by T.C. were testified to by his mother and police; he violated a protective order.
- Child placed with paternal cousin (Kenetha Jones), doing well; Department’s permanency plan was adoption by the cousin.
- Department sought termination of both parents’ rights under Texas Family Code grounds; the jury returned verdicts terminating both parents’ rights.
- Appellate counsel for both parents filed briefs asserting the appeals are frivolous after reviewing the record, notified clients of their rights to file pro se briefs, and sought to withdraw; neither parent filed a pro se brief or otherwise contacted the court.
- The court conducted an independent review, agreed the appeals were frivolous, affirmed the trial court’s final decree, and denied counsels’ motions to withdraw in light of Texas Supreme Court precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence to terminate parental rights | Dept: evidence of parental drug use, violent history, protective-order violations, and risk to child supported termination under Family Code grounds | Parents: (through counsel’s review) no non-frivolous grounds to challenge sufficiency; no pro se arguments filed | Jury verdict affirmed; court found appeal frivolous after independent record review |
| Whether appellate counsel may file a brief asserting the appeal is frivolous | Dept: not applicable (issue pertains to appellate procedure) | Counsel: properly evaluated record and filed Anders-style brief advising clients of rights | Court accepted counsel’s procedures and conducted independent review; agreed appeal was frivolous |
| Whether appellants were adequately informed and given opportunity to file pro se briefs / access record | Dept: N/A | Counsel: represented they provided records or instructions and advised clients of deadline and right to proceed pro se | Court found counsel made required disclosures; neither parent filed pro se brief |
| Whether counsel may withdraw at this stage under In re P.M. | Dept: N/A | Counsel: moved to withdraw after filing frivolous-appeal brief | Court denied motions to withdraw consistent with In re P.M.; counsel’s obligations continue if petition for review is pursued |
Key Cases Cited
- Taylor v. Texas Dep’t of Protective & Regulatory Svcs., 160 S.W.3d 641 (Tex. App.—Austin 2005) (permitted Anders-style frivolous-appeal brief in termination case)
- In re D.E.S., 135 S.W.3d 326 (Tex. App.—Houston [14th Dist.] 2004) (same)
- In re K.D., 127 S.W.3d 66 (Tex. App.—Houston [1st Dist.] 2003) (same)
- Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (procedural guidance on counsel’s duties when asserting appeal is frivolous)