Porter v. Texas Dept. of Protective & Reg.

• Decision Date: 06 March 2003
• Docket Number: No. 13-02-00014-CV.,13-02-00014-CV.
• Citation: 105 S.W.3d 52
• Parties: Gerald PORTER, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
• Court: Texas Court of Appeals

105 S.W.3d 52

Gerald PORTER, Appellant, v. TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.

No. 13-02-00014-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

March 6, 2003.

Rehearing Overruled May 29, 2003.

COPYRIGHT MATERIAL OMITTED

Gerald Porter, pro se.

J. Martin Clauder, Gonzales, for appellant.

Duke Hooten, Austin, Richard Deck, Texas Department of Protective and Regulatory Services, Boerne, for appellee.

Jackie Williamson, Gonzales, for ad litem.

Before Justices HINOJOSA, YAÑEZ, and GARZA.

OPINION

Opinion by Justice HINOJOSA.

Appellant, Gerald Porter, appeals from the trial court's order terminating his parental rights with his minor children, C.L.P., S.D.P., M.P., and T.P.

A. BACKGROUND AND PROCEDURAL HISTORY

In the early morning of January 1, 2001, appellant was celebrating the new year. During the celebration, a single-shot twelve-gauge shotgun discharged, wounding and killing Carmen Eaton, the mother of C.L.P., S.D.P., M.P., and T.P. Appellant was indicted for Eaton's murder.¹ As a result of appellant's actions, the children were removed from appellant's home by appellee, the Texas Department of Protective and Regulatory Services ("Department").

The Department brought suit to terminate appellant's parental rights to his children. Following a bench trial, the trial court signed a Decree of Termination on December 14, 2001. On January 14, 2002, the trial court filed findings of fact and conclusions of law which state, in relevant part:

4. Gerald Porter knowingly placed and knowingly allowed each of the children to remain in conditions and surroundings which endanger the physical and emotional well-being of each of the children.

5. Gerald Porter engaged in conduct which endangers the physical and emotional well-being of each of the children.

6. Gerald Porter knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement and imprisonment and inability to care for each of the children for not less than two years from the date of filing the petition, January 3, 2001.

7. Termination of the parent child relationship between Gerald Porter and each of the children is in the best interest of each of the children.

B. COUNSEL'S BRIEF

Appellant's court-appointed counsel filed a brief in which he concluded that this appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as it presents a professional evaluation of why there are no arguable grounds for advancing the appeal. See Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex.Crim.App.1991). Upon receiving a "frivolous appeal" brief, appellate courts must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).

In the past, Anders briefs have been limited to criminal cases, but in 1998 the Texas Supreme Court extended Anders to the civil realm, allowing attorneys to file Anders briefs in juvenile delinquency proceedings. See In re D.A.S., 973 S.W.2d 296, 299 (Tex.1998). In permitting appellate counsel to file an Anders brief, the supreme court recognized that counsel, though appointed to represent the appellant, had no duty to pursue a frivolous matter on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396; see In re A.W.T., 61 S.W.3d 87, 88 (Tex.App.-Amarillo 2001, no pet.).

While the issue of whether the Anders procedure applies to parental termination cases is one of first impression in this Court, other courts of appeals in this state have recently held that when appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief. See 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 A.W.T., 61 S.W.3d 87, 88; see also Behrends v. Tex. Dep't of Protective & Regulatory Servs., No. 03-01-00614-CV, 2002 WL 1343252 (Tex. App.-Austin June 21, 2002, no pet.) (not designated for publication); but cf. Guerra v. Tex. Dep't of Protective & Regulatory Servs., 940 S.W.2d 295, 296 (Tex.App.-San Antonio 1997, no pet.) (Although unclear why counsel called his brief an Anders brief, the court declined to treat the brief in a civil, parent-child termination case as an Anders brief).

In allowing Anders-type briefs in parental termination cases, our sister courts have found that the rationale underlying Anders is no less applicable to a civil matter than a criminal one in which counsel has been appointed to represent the appellant. Appellant's counsel remains obligated to zealously pursue the rights and interests of his client, but the obligation does not include arguing matters that are wholly frivolous and without merit. See In re A.W.T., 61 S.W.3d at 88; see also TEX. DISCIPLINARY R. PROF'L CONDUCT 3.01, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998) (TEX. STATE BAR R. art. X, § 9) ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous"). In both criminal and parental termination cases, counsel may conclude, after a thorough examination of the record, that the case lacks any non-frivolous issues for appeal. Despite the civil or criminal nature of the appeal, counsel faces the same dilemma of having to diligently represent a client who wants to appeal while still complying with counsel's ethical duties. In re K.S.M., 61 S.W.3d at 634. Accordingly, we hold that when appointed counsel represents an indigent client in a parental termination appeal and concludes that there are no non-frivolous issues for appeal, counsel may file an Anders-type brief.

Upon reviewing counsel's brief, we noted he had not certified that he had served appellant with a copy of the brief and informed him of his right to examine the appellate record and to file a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App.1975). We abated the appeal to allow counsel to send appellant a copy of the brief and to notify him of his right to review the record and to file a pro se brief, on or before September 6, 2002, if he so desired. On August 30, 2002, appellant filed a motion seeking an extension of time to file his pro se brief. We granted the motion. Appellant has now filed a pro se brief.

C. APPELLANT'S PRO SE BRIEF

In his pro se brief, appellant raises four issues. Appellant challenges the legal and factual sufficiency of the evidence to establish that: (1) he knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; (2) he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; (3) he knowingly engaged in criminal conduct that has resulted in his conviction and imprisonment and inability to care for the children for not less than two years from the date of filing the petition; and (4) the termination is in the best interest of the children.

1. Standard of Review

The parent-child relationship is recognized and protected by law to such a degree that it is of federal constitutional dimensions. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the parent-child relationship is "far more precious than any property right"). Because termination of parental rights is such a drastic remedy and is of such weight and gravity, due process requires a heightened burden of proof of "clear and convincing evidence." See TEX. FAM.CODE ANN. § 161.001 (Vernon 2002); In re G.M., 596 S.W.2d 846, 847 (Tex.1980). "Clear and convincing evidence" is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d at 847. In applying the clear and convincing evidence standard when reviewing the legal and factual sufficiency of the evidence, the appellate court must take into consideration whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

When an appellate court reviews the legal sufficiency of the evidence, it looks at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d at 265-66. This means that the reviewing court must assume that the fact finder resolved disputed facts in favor of the finding, if a reasonable fact finder could do so. Id. at 266. A corollary to this requirement is that the reviewing court should disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. Id. This does not mean that a court must disregard all evidence that does not support the finding, as this could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting a legal sufficiency review of the evidence, the appellate court determines that no reasonable fact finder could form a firm belief or conviction that the matter which must be proven is true, then it must conclude that the evidence is legally insufficient. Id.

When an appellate court reviews the factual sufficiency of the evidence, it must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. Id. at 266; In re C.H., 89 S.W.3d at 25. The inquiry must be "whether the evidence...