Opinion
No. 07-15-00300-CV
01-12-2016
IN THE INTEREST OF L.G., JR., A CHILD
On Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2014-512,063; Honorable Kevin C. Hart, Presiding
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
N.G. appeals from the trial court's order terminating her parental rights to her son, L.G., Jr., on the sole statutory ground of an executed affidavit of voluntary relinquishment. In presenting this appeal, appointed counsel has filed an Anders brief in support of her motion to withdraw concluding there are no non-frivolous issues that could be presented on appeal and that any appeal would be without merit. We affirm and grant counsel's motion.
To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b).
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department of Protective and Regulatory Services establishes (1) one or more acts or omissions enumerated under section 161.001(b)(1) of the Code and (2) that termination of that relationship is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2015); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing evidence. § 161.206(a) (West 2014). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." § 101.007 (West 2014).
Only one statutory ground is required to support termination. In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Although evidence presented may be relevant to both the statutory grounds for termination and best interest, each element must be established separately and proof of one element does not relieve the burden of proving the other. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). In appellate review of a termination proceeding, the standard for sufficiency of the evidence is that discussed in In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2013). In reviewing a best interest finding, appellate courts consider, among other evidence, the factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
BACKGROUND
N.G. has a history with the Department related to six other children. The Department removed L.G., Jr. from his mother for various reasons. A Child Protective Services conservatorship specialist testified that in July 2014, the Department received information that N.G. was living in a motel without adequate food, clothing, or diapers for her son, who was less than two years old. She was also using drugs and engaging in prostitution in other motel rooms while she left her son unattended.
At the final hearing, N.G.'s counsel requested, and the trial court granted, an opportunity to visit with N.G. regarding her options of relinquishment, open adoption, and termination. After a fifty-five minute break, the hearing resumed and N.G. signed an affidavit of voluntary relinquishment. Her court-appointed attorney negotiated an open adoption agreement with L.G., Jr.'s foster parents. N.G. then left the courthouse before presentation of the evidence. Following testimony from the Department's sole witness and admission of exhibits, the trial court made a finding that N.G. voluntarily executed an affidavit of relinquishment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(K)) (West Supp. 2015). Based on that finding and a best interest finding, the trial court terminated N.G.'s parental rights to L.G., Jr.
A motion for new trial hearing was held to address, among other issues, whether N.G. was under duress when she signed the affidavit of relinquishment. When N.G. did not appear at the hearing, the trial court granted an extension. A week later, the hearing continued and N.G. still did not appear. After a brief recess to locate N.G. proved futile, the hearing continued without her to establish that a process server had been retained to locate her. The process server testified that N.G. assured him that she would be at the hearing. The trial court granted a second brief recess to try to contact N.G., again to no avail. N.G. also failed to contact her attorney. The trial court denied the motion for new trial.
By the Anders brief, counsel acknowledges she has conducted a diligent review of the record and finds no reversible error to argue on appeal. She evaluates the circumstances under which N.G. signed the affidavit of relinquishment and concludes the record supports it was done so voluntarily.
ANDERS V. CALIFORNIA
Although the Texas Supreme Court has yet to consider the issue, for many years Texas appellate courts, including this court, have found the procedures set forth in Anders v. California applicable to appeals of orders terminating parental rights. See In re A.W.T., 61 S.W.3d 87, 88 (Tex. App.—Amarillo 2001, no pet.). The brief filed in this appeal meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds for reversible error.
See also In re R.M.C., 395 S.W.3d 820 (Tex. App.—Eastland 2013, no pet.); In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.); In the Interest of D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—Beaumont 2005, no pet.); Taylor v. Tex. Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 646 (Tex. App.—Austin 2005, pet. denied); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re K.D., 127 S.W.3d 66, 67 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Porter v. Texas Dep't of Protective & Regulatory Services, 105 S.W.3d 52, 56 (Tex. App.—Corpus Christi 2003, no pet.); In re K.M., 98 S.W.3d 774, 777 (Tex. App.—Fort Worth 2003, no pet.); In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, no pet.); In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—Tyler 2001, no pet.); In re P.M.H., No. 06-10-00008-CV, 2010 Tex. App. LEXIS 3330, at *2 (Tex. App.—Texarkana May 6, 2010, no pet.) (mem. op.); In the Interest of R.R., No. 04-03-00096-CV, 2003 Tex. App. LEXIS 4283, at *10-12 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.). --------
In support of her motion to withdraw, counsel certifies she has conducted a conscientious examination of the record, and in her opinion, the record reflects no potentially plausible basis to support an appeal. In re D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). Counsel has demonstrated that she has complied with the requirements of Anders by (1) providing a copy of the brief to N.G. and (2) notifying her of her right to file a pro se response if she desired to do so. Id. By letter, this court also granted N.G. an opportunity to exercise her right to file a response to counsel's brief, should she be so inclined. N.G. did not file a response. The Department notified this court it would not file a response unless requested to do so.
ANALYSIS
As in a criminal case, we have independently examined the entire record to determine whether there are any non-frivolous issues that might support this appeal. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Section 161.001(b)(1)(K) authorizes the trial court to terminate parental rights upon an executed, unrevoked or irrevocable affidavit of relinquishment as governed by section 161.103 of the Code. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(K), 161.103 (West Supp. 2015). The affidavit must be voluntarily, knowingly, and intelligently executed. In re K.M.L., 443 S.W.3d at 113. The burden to prove the elements for voluntary relinquishment falls on the Department. Id.
By her motion for new trial, N.G. alleged she signed the affidavit of relinquishment under duress. Duress occurs when, due to some kind of threat, a person is incapable of exercising her free agency and unable to withhold consent. In re D.E.H., 301 S.W.3d 825, 828-29 (Tex. App.—Fort Worth 2009, pet. denied).
The affidavit signed by N.G. provides that at least forty-eight hours had passed since her son's birth, is verified, and is signed by two witnesses. § 161.103(a). The affidavit also contains the requirements set forth in section 161.103(b). Additionally, the record is devoid of evidence of duress and N.G. did not avail herself of the opportunities provided to develop such evidence at the hearing on her motion for new trial.
The CPS witness testified that L.G., Jr. was in a loving and stable foster home and well bonded with his foster brothers. The foster parents were meeting all of the child's physical and emotional needs and wished to adopt him. There is clear and convincing evidence to support the trial court's best interest finding and that N.G. voluntarily, knowingly, and intelligently signed the affidavit of relinquishment.
CONCLUSION
After carefully reviewing the appellate record and counsel's brief, we conclude there are no plausible grounds for reversal of the trial court's order. Accordingly, the trial court's order terminating N.G.'s parental rights to L.G., Jr. is affirmed and counsel's motion to withdraw is granted.
Patrick A. Pirtle
Justice