Third Court of Appeals Affirms Termination of Parental Rights Following Anders Brief Submission

F.M.H. v. Texas Department of Family and Protective Services, 03-25-00833-CV, March 11, 2026.

On appeal from the 98th District Court of Travis County, Texas.

Synopsis

The Third Court of Appeals affirmed a trial court’s decrees terminating a mother’s parental rights to her two children after appointed counsel filed an Anders brief. Following an independent review of the record, the Court concluded the appeal was wholly frivolous due to the mother’s complete failure to engage in court-ordered services, persistent drug concerns, and the children’s successful integration into stable, prospective adoptive placements.

Relevance to Family Law

For the Texas family law practitioner, this case reinforces the high appellate hurdle for parents who remain entirely disengaged from Department service plans. While Anders procedures are designed to protect the constitutional right to counsel, this opinion demonstrates that a record reflecting “zero effort” toward rehabilitation—specifically regarding drug testing and domestic violence services—virtually guarantees an affirmance. It serves as a stark reminder that in termination litigation, the “best interest” inquiry is heavily weighted by a parent’s failure to mitigate the very risks that led to removal, especially when the children have achieved stability in alternative care.

Case Summary

Fact Summary

The Texas Department of Family and Protective Services (the Department) intervened after receiving reports of neglectful supervision involving the mother’s two children, Sarah and Nick. Investigative reports indicated that the mother was frequently using crack cocaine in the presence of the children and leaving them unsupervised for extended periods. The older child, Nick, was eventually removed after being found alone at an apartment complex, a situation the mother initially declined to remedy by phone. Sarah was removed later following a violent confrontation where the mother and an associate allegedly attempted to reclaim the child by force using a firearm.

During the ensuing suit affecting the parent-child relationship (SAPCR), the mother was ordered to complete a psychological evaluation, domestic violence classes, an OSAR drug assessment, and regular drug testing. At trial, the Department caseworker testified that the mother failed to complete any of these services and did not submit to a single drug test. Furthermore, the mother’s contact with the children was sporadic at best; she never visited Sarah and visited Nick only once in person. Conversely, testimony established that Nick was thriving with maternal relatives and Sarah was bonded with a family friend, both of whom expressed a desire to provide permanent, adoptive homes.

Issues Decided

1. Whether any arguable grounds for appeal existed to challenge the trial court’s termination of parental rights under the Anders framework.
2. Whether the evidence was legally and factually sufficient to support termination under Texas Family Code Section 161.001(b)(1) grounds (D), (E), and (N), and the best-interest finding under Section 161.001(b)(2).

Rules Applied

• Anders v. California, 386 U.S. 738 (1967) & In re P.M., 520 S.W.3d 24 (Tex. 2016): These cases establish the procedural requirements for appointed counsel to withdraw when an appeal is deemed frivolous, requiring a professional evaluation of the record and an independent review by the appellate court.
• Texas Family Code § 161.001(b)(1)(D) & (E): Statutory grounds for termination based on endangerment through conditions, surroundings, or the parent’s specific conduct.
• Texas Family Code § 161.001(b)(1)(N): Statutory ground for constructive abandonment.
• Texas Family Code § 161.001(b)(2): The requirement that termination must be in the child’s best interest, often analyzed via the Holley factors.

Application

In applying the Anders standard, the Third Court of Appeals conducted an exhaustive review of the trial record to see if any non-frivolous arguments could be raised. The legal narrative was dominated by the mother’s non-compliance. The Court focused on the Department’s testimony regarding the mother’s refusal to participate in the OSAR process or any form of drug testing, which effectively left the Department’s original drug concerns unaddressed.

The Court further analyzed the “best interest” finding by contrasting the mother’s lack of effort with the children’s current environments. The application of law to fact centered on the stability Nick found with his maternal aunt and the bond Sarah formed with her caregiver. Because the mother offered no evidence at trial to rebut the Department’s claims of neglect and total failure to comply with the service plan, the Court found that there was no bridge to an arguable legal challenge. The testimony from both the caseworker and the CASA volunteer regarding the children’s “happy and healthy” status in their placements provided a solid evidentiary foundation for the trial court’s decision.

Holding

The Court of Appeals affirmed the trial court’s decrees terminating the mother’s parental rights to both children. The Court held that counsel’s Anders brief successfully demonstrated that there were no arguable grounds to be advanced on appeal.

Specifically, the Court agreed with the trial court’s findings that the mother had knowingly placed or allowed the children to remain in endangering conditions and had engaged in conduct that endangered their physical or emotional well-being. Additionally, the Court upheld the finding of constructive abandonment and the determination that termination was in the best interest of the children, given the mother’s failure to maintain a relationship or comply with the court-ordered service plans.

Practical Application

For litigators, this case highlights the importance of the trial record in Anders scenarios. When a parent fails to appear at trial and fails to engage in services, the appellate court has no “competing evidence” to weigh. To protect a parent’s appellate rights, counsel must attempt to document even marginal efforts at compliance or obstacles to compliance (such as lack of transportation or communication issues with the Department) during the trial phase. For the Department, this case illustrates that meticulous testimony regarding the specific referrals made (e.g., specific dates and agencies) and the foster parents’ intent to adopt creates an nearly bulletproof record for affirmance.

Checklists

Mitigating “Constructive Abandonment” Findings

• Document every phone call, text, or email the client sends to the Department caseworker.
• Ensure the client attends at least some visits, as even sporadic visitation can sometimes be used to argue against the “intent” element of abandonment.
• File motions for specific visitation schedules if the Department is being non-responsive to scheduling requests.

Challenging Best Interest Findings in Anders Situations

• Scrutinize the Holley factors: If the child has a strong emotional bond with the parent despite the parent’s drug use, ensure that bond is reflected in the record.
• Identify whether the Department failed to explore other less restrictive placements (kinship care) before seeking termination.
• Check for “lapse in therapy” or other stability issues in the foster placement, as mentioned in the caseworker’s testimony in this case, to create a factual dispute.

Citation

F.M.H. v. Texas Department of Family and Protective Services, 03-25-00833-CV (Tex. App.—Austin Mar. 11, 2026, no pet. h.).

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