Anders Review Affirms Termination | M.B. v. Texas DFPS (2026)

M.B. v. Texas Department of Family and Protective Services, 03-26-00446-CV, August 12, 2026.

On appeal from 146th District Court of Bell County

Synopsis

In this parental-rights termination appeal, the Third Court of Appeals affirmed after conducting an independent Anders review and finding no nonfrivolous issue in the record, including no arguable challenge to the trial court’s Family Code section 161.001(b)(1)(D) and (E) findings. The court also denied appointed counsel’s motion to withdraw, reiterating that under In re P.M., appointed counsel’s duties continue through proceedings in the Supreme Court of Texas, including a petition for review if the client wishes to pursue one.

Relevance to Family Law

Although M.B. arises from a DFPS termination case rather than a divorce or SAPCR modification between private parties, its practical significance for Texas family litigators is broader. First, it underscores the continuing appellate consequences of endangerment findings under section 161.001(b)(1)(D) and (E), which remain uniquely important because of their collateral effects in future parent-child litigation. Second, it is a reminder that appellate preservation, record development, and post-judgment strategy matter just as much in high-volume trial-court family practice as they do in formal appellate work. For lawyers handling custody disputes, conservatorship restrictions, family-violence allegations, or later modification proceedings, the case reinforces that findings touching child endangerment can carry durable legal and strategic consequences well beyond the immediate order being appealed.

Case Summary

Fact Summary

The district court terminated Father’s parental rights to two children after a bench trial. The trial court found, by clear and convincing evidence, that multiple predicate grounds supported termination, including subsections (D), (E), and (N) of Texas Family Code section 161.001(b)(1), and further found that termination was in the children’s best interest under section 161.001(b)(2).

On appeal, Father’s appointed counsel did not identify a meritorious appellate issue. Instead, counsel filed an Anders brief and a motion to withdraw, representing that after professionally evaluating the record, the appeal was frivolous. Counsel also certified compliance with Anders procedures by providing Father the brief and motion, informing him of his right to review the record, and advising him of his right to file a pro se response. Father did not file a pro se brief. The Department advised the court it would not file a merits brief unless Father filed a pro se response requiring a targeted reply.

The court of appeals therefore addressed the case in the Anders posture: not as a contested merits appeal with developed briefing on alleged trial-court error, but as an appeal requiring the court itself to independently examine the entire record for any arguable ground that might support reversal.

Issues Decided

• Whether the appeal from the termination decree presented any nonfrivolous issue after independent review under Anders v. California and In re P.M.
• Whether the record presented any nonfrivolous challenge to the trial court’s endangerment findings under Texas Family Code section 161.001(b)(1)(D) and (E)
• Whether appointed counsel in a parental-rights termination appeal may withdraw upon filing an Anders brief in the court of appeals

Rules Applied

The court applied the Anders framework as adapted to parental-rights termination appeals. Under Anders v. California, when appointed counsel concludes an appeal is frivolous, counsel may file a brief identifying the record, discussing the procedural history, and explaining why no arguable appellate issue exists. The appellate court must then independently review the entire record to determine whether the appeal is wholly frivolous.

The court also relied on In re P.M., in which the Supreme Court of Texas approved use of Anders procedures in termination appeals and held that appointed counsel’s statutory duty continues through proceedings in the Supreme Court of Texas, including the filing of a petition for review that satisfies Anders-type standards if the client seeks further review.

The opinion further reflects the continuing force of In re N.G., which requires meaningful appellate attention to findings under section 161.001(b)(1)(D) and (E) because those findings may have significant collateral consequences in future termination proceedings. Even in an Anders setting, the court made express note that it specifically reviewed those findings for any arguable issue.

The statutory framework came from Texas Family Code section 161.001, particularly subsection (b)(1)(D), subsection (b)(1)(E), subsection (b)(1)(N), and subsection (b)(2), which together govern predicate grounds and best interest for termination.

Application

The court followed the standard Anders sequence. It first confirmed that appointed counsel’s brief was facially sufficient—that is, it did more than merely announce frivolity and instead provided the professional evaluation required by Anders and Texas authority such as Taylor v. Texas Department of Protective & Regulatory Services. It also confirmed procedural regularity: counsel had furnished the brief to Father and advised him of his right to inspect the record and file a pro se response.

With those threshold requirements satisfied, the court undertook its own full examination of the appellate record. That step is the decisive one in Anders cases, because the court cannot simply accept counsel’s view that no meritorious issue exists. The court stated that it reviewed the entire record, including the Anders brief, and found nothing that might arguably support an appeal.

Importantly, the court did not stop at a general statement of frivolity. In light of In re N.G., it specifically addressed the trial court’s findings under subsections (D) and (E), stating that it had reviewed those findings and found no nonfrivolous issue that could be raised with respect to them. That express discussion matters. Because endangerment findings can later be used against a parent in future proceedings, Texas appellate courts are expected to give them special attention, and M.B. reflects that practice even where the appeal arrives in Anders form.

The court then turned to counsel’s motion to withdraw. Here, the court distinguished between the conclusion that the present appeal lacked merit and the separate question whether counsel’s representation had ended. Citing In re P.M., the court held that it had not. If Father wished to pursue review in the Supreme Court of Texas, appointed counsel would remain obligated to consult with him and, if requested, timely file a petition for review meeting Anders standards. On that basis, the motion to withdraw was denied.

Holding

The court held that affirmance was proper because its independent review of the entire record disclosed no arguable ground for appeal from the termination decree. That included no nonfrivolous challenge to the trial court’s findings under Texas Family Code section 161.001(b)(1)(D) and (E), as well as no other issue that could support reversal.

The court separately held that appointed counsel may not withdraw merely because counsel filed an Anders brief in the court of appeals. In a parental-rights termination appeal, appointed counsel’s representation continues through proceedings in the Supreme Court of Texas, including the filing of an Anders-compliant petition for review if the client elects to seek further review.

Practical Application

For appellate counsel handling termination cases, M.B. is a straightforward but useful reminder that an Anders brief remains a viable path when the record truly presents no arguable error—but only if counsel performs the required professional evaluation and complies with notice obligations to the client. A conclusory filing will not do. The court expects a brief that demonstrates record review, identifies the governing law, and explains why no nonfrivolous issue exists.

For trial lawyers, the case reinforces the importance of building a record with appellate scrutiny in mind, especially where the petition includes subsection (D) or (E) allegations. Those findings are not routine surplusage. Because of In re N.G., they receive focused appellate attention even where no conventional merits brief is filed. In practical terms, if you represent a parent at trial, you must directly contest endangerment theories, obtain rulings, preserve objections, and force precision in the factual basis for the findings. If you represent DFPS or another petitioner, you should treat (D) and (E) as findings that must be independently supportable and clearly developed in the record.

The case also has indirect relevance in private family litigation. While termination standards do not govern ordinary conservatorship disputes, family lawyers know that allegations of neglect, danger, domestic violence, substance abuse, or chronic instability often migrate across proceedings—from SAPCRs to modifications, supervised-possession fights, relocation disputes, and eventual termination cases. M.B. is another reminder that once the record hardens around child-endangerment facts, the consequences can be long-lasting. Lawyers in private custody cases should therefore litigate those allegations with the same seriousness they would bring to a DFPS case, particularly when findings may shape later risk assessments, restrictions on possession, or future statutory proceedings.

A final practical point concerns client management after an Anders filing. Appointed appellate counsel should not assume that affirmance by the court of appeals ends the representation. Under In re P.M., counsel must remain in place through the Supreme Court stage. That means calendaring deadlines, advising the client about the result, discussing the viability of further review, and being prepared to file an Anders-compliant petition for review if the client wants to proceed.

Checklists

Anders Brief Compliance in a Termination Appeal

• Confirm that the appeal is truly frivolous only after a full review of the clerk’s record and reporter’s record
• Prepare a genuine professional evaluation of the record rather than a conclusory statement of no merit
• Address the procedural history, the termination grounds found, the best-interest finding, and any preserved objections or contested rulings
• Specifically evaluate whether any arguable issue exists as to section 161.001(b)(1)(D) and (E) findings
• Provide the client with the Anders brief and motion to withdraw
• Notify the client of the right to review the appellate record
• Notify the client of the right to file a pro se response
• Document compliance with those notice requirements in the appellate filing

Protecting the Record When (D) and (E) Are Pleaded

• Force clarity on which facts support subsection (D) versus subsection (E)
• Object to conclusory testimony and unsupported narrative summaries
• Challenge hearsay or embedded hearsay where appropriate
• Develop contrary evidence on housing, sobriety, treatment compliance, visitation, and protective behavior
• Preserve legal- and factual-sufficiency complaints through proper post-judgment steps when required
• Request findings or otherwise ensure the appellate record makes the trial court’s reasoning intelligible
• Treat endangerment findings as carrying future collateral consequences, not as interchangeable with other predicate grounds

Trial Strategy for DFPS and Petitioner’s Counsel

• Build a record that independently supports each pleaded predicate ground
• Present evidence connecting parental conduct to the statutory language of (D) and (E), rather than relying on generalized instability
• Tie best-interest evidence to the Holley factors and the children’s present and future needs
• Avoid assuming that one sustainable predicate ground makes (D) and (E) unnecessary on appeal
• Make the evidentiary basis for endangerment findings clear enough to withstand the heightened scrutiny associated with In re N.G.

Post-Opinion Duties for Appointed Appellate Counsel

• Do not assume the representation ends when the court of appeals affirms
• Promptly notify the client of the appellate disposition
• Advise the client about deadlines for filing a petition for review
• Consult with the client about whether to pursue Supreme Court review
• If the client elects to proceed, timely file a petition for review that satisfies Anders-type standards under In re P.M.
• Maintain a reliable calendaring system for post-opinion and post-judgment appellate deadlines

Lessons for Private Family-Law Litigators

• Treat child-endangerment allegations in custody litigation as potentially case-defining
• Build a disciplined evidentiary record on violence, drug use, neglect, and protective capacity
• Avoid casual stipulations or vague agreed language touching danger to the child
• Recognize that findings and evidence from one family case may frame later modification or termination litigation
• Advise clients early about the long-tail consequences of adverse findings involving child safety

Citation

M.B. v. Texas Department of Family and Protective Services, No. 03-26-00446-CV, 2026 WL ___ (Tex. App.—Austin Aug. 12, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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