NO. 12-17-00334-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF

A.D., A.H. AND A.T.,

CHILDREN

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§

§

APPEAL FROM THE 273RD 

JUDICIAL DISTRICT COURT

SABINE COUNTY, TEXAS

ORDER

C.T.T. appeals the termination of his parental rights. C.T.T.’s counsel filed a brief in 

compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), 

and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After conducting our own 

review, we abate this case and remand for the appointment of new appellate counsel.

BACKGROUND

A.M. 1is the mother of A.D., A.H., and A.T. S.D.D.2is the father of A.D. and C.T.T. is 

the father of A.H. and A.T. On March 16, 2016, the Department of Family and Protective 

Services (the Department) filed an original petition for protection of A.D., A.H., and A.T., for 

conservatorship, and for termination of A.M.’s, S.D.D.’s, and C.T.T.’s parental rights. The 

Department was appointed temporary managing conservator of the children, A.M. was appointed 

 

1 The trial court found, by clear and convincing evidence, that A.M. executed an unrevoked or irrevocable 

affidavit of relinquishment of parental rights to A.D., A.H., and A.T. as provided by Chapter 161, Texas Family 

Code. The trial court also found that termination of the parent-child relationship between A.M. and the children was 

in the children’s best interest. Therefore, the trial court ordered that the parent-child relationship between A.M., 

A.D., A.H., and A.T. be terminated. The mother is not a party to this appeal.

2 The trial court found that appointment of a parent as managing conservator would not be in the best 

interest of A.D., and appointed a non-parent as permanent managing conservator of the child. The father, S.D.D., 

was appointed possessory conservator of A.D. with possession and access as agreed between the non-parent 

managing conservator and the father. 
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temporary possessory conservator of the children with limited rights and duties, and S.D.D. was 

appointed temporary possessory conservator of A.D. with limited rights and duties.

At the conclusion of the trial on the merits, the trial court found that C.T.T. is, and hereby 

adjudicated him to be, the father of A.H. and A.T. Further, the trial court found, by clear and 

convincing evidence, that C.T.T. had engaged in one or more of the acts or omissions necessary 

to support termination of his parental rights under subsections (D), (E), (N) and (O) of Texas 

Family Code Section 161.001(b)(1). The trial court also found that termination of the parentchild relationship between C.T.T, A.H., and A.T. was in the children’s best interest. Based on 

these findings, the trial court ordered that the parent-child relationship between C.T.T., A.H., and 

A.T. be terminated. This appeal followed. 

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he 

has diligently reviewed the appellate record and is of the opinion that the record reflects no 

reversible error and that there is no error upon which an appeal can be predicated. This court has 

previously held that Anders procedures apply in parental rights termination cases when the 

Department has moved for termination. See In re K.S.M., 61 S.W.3d 632, 634 (Tex. App.—

Tyler 2001, no pet.). From our review of counsel’s brief, it is apparent that he is well acquainted 

with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 

807, 812 (Tex. Crim. App. 1978), counsel’s brief presents a chronological summation of the 

procedural history of the case and further states that counsel is unable to raise any meritorious 

issues for appeal. After reviewing the record, we conclude that it contains at least one arguable 

issue for appeal.3

Termination of Parental Rights

Section 161.001 of the family code permits a court to order termination of parental rights 

if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2017); In re 

J.M.T., 39 S.W.3d 234, 237 (Tex. App.—Waco 1999, no pet.). First, the parent must have 

engaged in any one of the acts or omissions itemized in the second subsection of the statute. 

 

3 On June 29, 2018, C.T.T. filed a pro se brief. He presented five issues for appeal including that the trial 

court violated his first and fourteenth amendment rights to access of the courts and due process by preventing him 

from being present at all hearings and appointing him an attorney; terminated his parental rights solely on the basis 

of his incarceration; and a lack of clear and convincing evidence to support termination of his parental rights under 

subsections (D), (E), (N) and (O) of Texas Family Code Section 161.001(b)(1).
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TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2017); Green v. Tex. Dep’t of Protective & 

Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.—El Paso 2000, no pet.); In re J.M.T., 39 

S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE 

ANN. § 161.001(b)(2) (West Supp. 2017); In re J.M.T., 39 S.W.3d at 237. Both elements must 

be established by clear and convincing evidence, and proof of one element does not alleviate the 

petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley v. Spratlan, 

543 S.W.2d 349, 351 (Tex. 1976); In re J.M.T., 39 S.W.3d at 237. The clear and convincing 

standard for termination of parental rights is both constitutionally and statutorily mandated. TEX.

FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ 

denied). 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.” TEX. FAM. CODE ANN. § 101.007 (West 2014). 

In this case, the trial court found, by clear and convincing evidence, that C.T.T. engaged 

in one or more of the acts or omissions necessary to support termination of his parental rights 

under subsections (D), (E), (N) and (O) of Texas Family Code Section 161.001(b)(1). The court 

may order termination of the parent-child relationship if the court finds by clear and convincing 

evidence that the parent has knowingly placed, or knowingly allowed, the child to remain in 

conditions or surroundings which endanger the physical or emotional well-being of the child. 

TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp. 2017). Subsection (D) addresses the 

child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775–76 (Tex. App.—

Texarkana 2003, no pet.). The child’s “environment” refers to the suitability of the child’s living 

conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 

360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine 

whether there is clear and convincing evidence of endangerment is before the child was 

removed. Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus 

Christi 1993, no pet.). Here, the evidence at the final trial shows that C.T.T. was incarcerated for 

the entire duration of the case, including before removal of the children from their home. The 

record shows that he was not the offending parent and was not involved in the removal of the 

children. 

Further, the court may order termination of the parent-child relationship if it finds by 

clear and convincing evidence that the parent has engaged in conduct, or knowingly placed the 
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child with persons who engaged in conduct, that endangers the physical or emotional well being 

of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2017). Subsection (E) 

requires us to look at the parent’s conduct alone, including actions, omissions, or the parent’s 

failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet. denied); In re 

D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.). A voluntary, deliberate, and 

conscious “course of conduct” by the parent that endangers the child’s physical and emotional 

well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. 

App.—Fort Worth 2000, pet. denied). During the trial, the children’s caseworker agreed that it 

was “hard to say” that C.T.T. engaged in conduct or knowingly placed the children with persons 

who engaged in conduct that endangered their physical or emotional well being. The 

caseworker’s main objection was C.T.T.’s criminal record and that he was incarcerated at the 

time of trial. However, imprisonment alone does not constitute an endangering course of 

conduct, but it is a fact properly considered on the endangerment issue. In re S.M., 389 S.W.3d 

483, 492 (Tex. App.—El Paso 2012, no pet). (citing Tex. Dep’t of Human Svcs. v. Boyd, 727 

S.W.2d 531, 533–34 (Tex. 1987)). 

The record also showed a lack of clear and convincing evidence that C.T.T. 

constructively abandoned the children or failed to comply with the provisions of a court order 

that specifically established the actions necessary for the parent to obtain the return of the 

children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O) (West Supp. 2017). The evidence 

showed that C.T.T. maintained contact with the children through letters sent to the children’s 

caseworker. The caseworker stated that she heard from C.T.T in the months before trial. 

Moreover, the caseworker stated that C.T.T. did “everything he could do” on his service plan and 

complied as far as he was able under the circumstances.

Finally, the entire transcript of the final hearing terminating C.T.T.’s parental rights was 

just over thirty pages and the Department called only two witnesses. We conclude that the lack 

of clear and convincing evidence to support terminating C.T.T.’s parental rights presents an 

arguable issue for appeal and warrants abatement and remand.

CONCLUSION

For the above reasons, we strike counsel’s Anders brief, abate this appeal, and remand

the case to the trial court. We order the trial court to appoint new appellate counsel to represent 
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C.T.T. within seven (7) days after the date of this opinion. We further order the trial court to 

inform this court in writing of the identity of C.T.T.’s new counsel and the date counsel is 

appointed. Counsel shall then review the record, and file a brief for C.T.T. in this appeal. See

Guerrero v. State, 64 S.W.3d 436, 441 (Tex. App.—Waco 2001, no pet.) (citing Penson v. Ohio, 

488 U.S. 75, 83–84, 109 S. Ct. 346, 351–52, 102 L. Ed. 2d 300, 310–11 (1988)). Counsel’s brief 

will be due within fifteen (15) days after the date of the order appointing new counsel. The 

Department’s brief will be due within fifteen (15) days after counsel files C.T.T.’s brief.

JAMES T. WORTHEN

 Chief Justice

Order entered July 25, 2018.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)